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 I J ii'ikic \jll'« '
 
 EOSOOE'S DIGEST 
 
 LAW OF EVIDENCE 
 
 IN 
 
 CRIMi:tTAL CASES. 
 
 By HORACE SMITH, Esq., B.A., 
 
 OF THE INNER TEMPLE AND MIDLAND CIRCUIT, BARRISTER-AT-LAW, 
 
 RECORDER OF LINCOLN, 
 
 AUTHOR OF " THE LAW OF NEGLIGENCE ;" EDITOR OF "ADDISON ON CONTRACTS," ETC. 
 
 FROM THE TENTH LONDON EDITION. 
 WITH NOTES AND REFERENCES TO AMERICAN CASES 
 
 By Hon. GEORGE SHARSWOOD, LL.D., 
 
 AND ADDITIONAL NOTES 
 
 By FRANCIS LINCOLN WAYLAND, Esq., 
 
 or THE PHILADELPHIA BAB. 
 
 IN TWO VOLUMES. 
 Vol. II. 
 
 PHILADELPHIA: 
 
 T. & J. W. JOHNSON & CO., 
 
 No. 535 Chestnut Street. 
 1888.
 
 Entered, according to the Act of Congress, in the year 1841, by 
 
 T. & J. W. Johnson, 
 
 In the Clerk's Ollice of the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 Entered, according to the Act of Congress, in the year 1846, by 
 
 T. & J. W. Johnson, 
 
 In the Clerk's Office of the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 Entered, according to the Act of Congress, in the year 1852, by 
 T. & J. W. Johnson, 
 
 In the Clerk's Office of the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 Entered, according to the Act of Congress, in the year 1854, by 
 
 T. & J. W. Johnson & Co., 
 
 In the Clerk's Office of the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 Entered, according to the Act of Congress, in the year 1866, by 
 
 T. & J. W. Johnson & Co., 
 
 In the Clerk's Office of the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 Entered, according to the Act of Congress, in the year 1874, by 
 
 T. & J. W. Johnson & Co., 
 
 In the Office of the Librarian of Congress at Washington. 
 
 Entered, according to the Act of Congress, in the year 1888, by 
 
 T. & J. W. Johnson & Co., 
 
 In the Office of the Librarian of Congress at Washington, 
 
 T
 
 EXPLOSIVES. (531 
 
 ♦EXPLOSIVES. [♦484 
 
 TAGK 
 
 Blowing up dwelling-house, any person being therein . . , 484 
 
 building with intent to murder .... 484 
 
 Placing gunpowder, etc., near any building witli intent to destroy . 484 
 Placing gunpowder, etc., near any ship or vessel with intent to 
 
 destroy 485 
 
 Placing gxinpowder, etc., near any ship or vessel with intent to do 
 
 bodily injury 485 
 
 Injuries to persons by gunpowder, etc 485 
 
 Sending or throwing explosive or dangerous substance . . . 485 
 
 Making or having possession of gunpowder, etc. .... 486 
 
 Proof of malice 486 
 
 Persons endangered within sect. 9 of 24 & 25 Vict. c. 97 . , 486 
 
 Meaning of explosive substance ..,,,,.. 486 
 
 Explosive Substances Act, 1875 . , 486 
 
 Explosive Substances Act, 1883 . , . . ... 487 
 
 Injuries by persons in possession . 488 
 
 Form of indictment 488 
 
 Blowing up dwelling-house, any person being therein. By the 
 24 & 25 Vict. c. 97, s. 9, " whosoever shall unlawfully and maliciously, 
 by the explosion of gunpowder or other explosive substance, destroy, 
 throw down or damage the whole or any part of any dwelling-house, 
 any person being therein, or of any building whereby the life of any 
 person shall be endangered, shall be guilty of felony, and being con- 
 victed thereof, shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any term not less than three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labor, and with or without solitary con- 
 finement, and if a male under the age of sixteen years with or with- 
 out whipping." 
 
 Blowing up building with intent to murder. By the 24 & 25 
 
 Yict. c. 100, s. 12, "whosoever, by the explosion of gunpowder or 
 other explosive substance, shall destroy or damage any building 
 with intent to commit murder, shall be guilty of felony, and 
 being convicted thereof, shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term not less than 
 three [now five] years, or to be imprisoned for any terni not 
 exceeding two years, with or without hard labor, and with or without 
 solitary confinement." 
 
 Placing gunpowder, etc., near any building with intent to de- 
 stroy. By the 24 & 25 Vict. c. 97, s. 10, " whosoever shall unlawfully 
 and maliciously place, or throw in, into, upon, under, against,^ or near 
 any building any gunpowder or other explosive substance, with intent to 
 ♦destroy or'damage any building, or any engine, machinery, r*^^^ 
 working tools, fixtures, goods, or chattels, shall, ^vhether or 
 
 ^3oS0^
 
 632 EXPLOSIVES. 
 
 not any explosion take place, and wlietlier or not any damage be caused, 
 be guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term not 
 exceeding fourteen and not less than three [now five] years, or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labor, and with or without solitary confinement, and if a male 
 under the age of sixteen years with or without whipping." 
 
 Placing gunpowder near any ship or vessel with intent to de- 
 stroy it. J>y the 24 & 25 Vict. c. 97, s. 45, " whosoever shall un- 
 lawfully and maliciously place or throw in, into, upon, against, or near 
 any ship or vessel any gunpowder or other explosive substance, with 
 intent to destroy or damage any ship or vessel, or any machinery, 
 -working tools, goods, or chattels, shall, whether or not any explosion 
 take place, and whether or not any injury be effected, be guilty of 
 felony, and being convicted thereof, shall be liable, at the discretion of 
 the court, to be kept in penal servitude for any term not exceeding 
 fourteen and not less than three [now five] years, or to be imprisoned 
 for any term not exceeding two years, with or Avithout hard labor, and 
 with or without solitary confinement, and if a male under tlie age of 
 sixteen years with or without whipping." 
 
 Placing gunpowder near any ship or vessel with intent to do 
 any bodily injury. By the 24 & 25 Vict. c. 100, s. 30, "whosoever 
 shall unlawfully and maliciously place or throw in, into, upon, against, 
 or near any building, ship, or vessel any gunpowder or other explosive 
 substance with intent to do any bodily injury to any person, shall, 
 whether or not any explosion take place, and whether or not any bodily 
 injury be effected, be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for any term not exceeding fourteen years and not less than 
 three [now five] years, or to be imprisoned for any term not exceeding 
 two years, with or without hard labor, and with or without solitaiy 
 confinement, and if a male under the age of sixteen years with or with- 
 out whipping." 
 
 Injuries to person by gunpowder, etc. By the 24 & 25 Vict. c. 
 100, s. 28, "whosoever shall unlawfully and maliciously, by the ex- 
 plosion of gunpowder or other explosive substance, burn, maim, dis- 
 figure, disable, or do any grievous bodily harm to any person, shall be 
 guilty of felony, and being convicted thereof shall be liable at the 
 discretion of the court, to be kept in penal servitude for life or for any 
 term not less than three [now five] years, or to be imprisoned for any 
 term not exceeding two years, with or without hard labor, and with or 
 without solitary confinement, and if a male under the age of sixteen 
 years with or without whipping." 
 
 Sending or throwing explosive or dangerous substances. By s. 
 29, "whosoever shall unlawfully and maliciously cause any gunpowder
 
 EXPLOSIVES. g33 
 
 or other explosive substance to explode, or send or deliver to or cause 
 to be taken or received by any person any explosive substance, or 
 any other dangerous or noxious thing, or put or lay at any place 
 or cast or throw at or upon, or otherwise apply to any person any 
 corrosive fluid, or any destructive or explosive substance, Avith intent 
 *in any of the cases aforesaid to burn, maim, disfigure, or dis- 
 able any person, or to do some grievous bodily harm to any L 
 pei-son, shall, whether any bodily injury be etfected or not, be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion of 
 the court, to be kept in penal servitude for life or for any term not less 
 than three [now five] years, or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labor, and with or without solitary 
 confinement, and if a male under the age of sixteen years with or 
 without whipping." 
 
 Making or having possession of gunpowder, etc. By the 24 & 
 
 25 Vict. c. 97, s. 54, " whosoever shall make or manufacture, or know- 
 ingly have in his possession any gunpowder or other explosive sub- 
 stance, or any dangerous or noxious thing, or any machine, engine, 
 instrument, or thing, with intent thereby or by means thereof to com- 
 mit, or for the purpose of enabling any other person to commit, any 
 of the felonies in this act mentioned, shall be guilty of a misde- 
 meanor, and being convicted thereof shall be liable, at the discretion 
 of the court, to be imprisoned for any term not exceeding two years, 
 with or without hard labor, and with or without solitary confinement, 
 and if a male under the age of sixteen years with or without whip- 
 ping." 
 
 A similar provision is contained in the 24 & 25 Vict. c. 100, s. 64. 
 
 See as to keeping large quantities of gunpowder or other explosive 
 substances, post. tit. " Nuisances. 
 
 Proof of malice. As to malice against the owner of the property 
 being unnecessary, see 24 & 25 Vict. c. 97, s. 58, supra, p. 289. 
 
 Persons endangered within sect. 9 of 24 & 25 Vict. c. 97. It 
 would seem from the report of a case in Cox's Crown Cases, that the 
 endangering of life to be within 24 & 25 Vict. c. 97, s. 9, must result 
 from the damage done to the building particularized in the indictment, 
 and the statute includes the case of persons outside the building whose 
 lives are imperilled by anything proceeding from the damaged build- 
 ing. R. V. McGrath,' 14 Cox, C. C. 598. Endanirering of Jife by 
 damage done to other buildings not mentioned in the indictment 
 which are injured by the explosion, is not evidence of the endan- 
 gering of life alleged in the indictment, but evidence of the damage 
 done to them is admissible for the purpose of showing the character 
 of the explosion damaging the building mentioned in the indictment. 
 
 Explosive substance. It must be shown under section 10 that the 
 substance thrown was in a condition to explode at the time it was throAvn.
 
 634 EXPLOSIVES. 
 
 The throwing of a bottle of gnnpoAvdor alone which by itself would 
 not expl(xle, would not be within the section. E,. v. Sheppard, 11 Cox, 
 C. C. 302. Fer Kelly, C. B. 
 
 Explosive Substances Act, 1875. The Explosive Substances A ct, 
 1875, being an act to amend the law with respect to manufacturing, 
 keeping, selling, carrying and importing gunpowder, nitro-glycerine, 
 and other explosive substances, 38 & 39 Vict. c. 17, post, tit. " Nuisance," 
 made various offences punishable by fine or imprisonment ; by s. 91 
 such offences may be prosecuted by indictment ; by s. 92 a person 
 accused of any offence the penalty for which exceeds 100^. may object 
 ^^ „-| *to be tried by a court of summary jurisdiction, and the oiieuce 
 -I may be tried on indictment accordingly. 
 
 Explosive Substances Act, 1883. In consequence of many das- 
 tardly threats and attempts to blow up and destroy buildings and 
 other property in the United Kingdom, by means of dynamite and 
 other explosives, and also in consequence of the inadequate provisions 
 of either the common or statute law to meet the mischief to be appre- 
 hended, the Explosive Substances Act, 1883 (46 Vict. c. 3), was passed. 
 In the case of R. v. Gallagher, 15 Cox, C. C. 291, the prisoners had 
 threatened to blow up the House of Commons and Scotland Yard. 
 They were charged under the 11 & 12 Vict. c. 12, s. 3, with treason- 
 felony, that is, with intending to depose the Queen, and to levy war 
 against tlie Queen in order to compel her to change her counsels, and 
 in order to overawe the Houses of Parliament. Four of the prisoners 
 were found guilty and sentenced to penal servitude for life. It 
 was, however, easy to be seen that great mischief might be done or 
 attempted by wicked persons possessing themselves of, or dealing with, 
 explosives for the purpose of terrifying or injuring others, and that 
 such wicked persons might not by their acts have brought themselves 
 within the treason-felony statute, or within any other criminal statute 
 providing an adequate punishment for such grave offences. The legis- 
 lature therefore passed a measure which is of a ■\vide and far-reaching 
 character, and provides for the infliction of very severe punishments. 
 
 By sect. 2 of the Explosive Substances Act, 1883 (46 Vict. c. 3), 
 Any person who unlawfully and maliciously causes by any explosive 
 substance an explosion of a nature likely to endanger life or to cause 
 serious injury to property, shall, whether any injury to person or 
 property has been actually caused or not, be guilty of felony, and on 
 conviction shall be liable to penal servitude for life, or for any less 
 term (not less than the minimum term allowed by law) or to imprison- 
 ment, with or without hard labor, for a term not exceeding two years. 
 
 Sect. 3. Any person who within or (being a subject of Her Majesty) 
 without Her Majesty's dominions unlawfully and maliciously — 
 
 (a) Does any act with intent to cause by an explosive substance or 
 conspires to cause by an explosive substance, an explosion in the United 
 Kingdom of a nature likely to endanger life or to cause serious injury 
 to property, or
 
 EXPLOSIVES. (335 
 
 _ (b) Makes or has in his possession, or under his control, any explo- 
 sive substance with intent by means thereof to endanger hfe, or cause 
 serious injury to property in the United Kingdom, or to enable any 
 other persons by means thereof to endanger life or cause serious injury 
 to property in the United Kingdom, shall, Avhether any explosion does 
 or not take place, and whether any injury to person or property has 
 been actually caused or not, be guilty of felony, and on conviction 
 shall be liable to penal servitude for a term not exceeding twenty 
 years, or to imprisonment with or without hard labor for a term not 
 exceeding two years and the explosive substance shall be forfeited. 
 
 Sect. 4. (1) Any person who makes, or knowingly has in his pos- 
 session or under his control, any explosive substance, under such cir- 
 cumstances as to give rise to a reasonable suspicion that he is not 
 making it or does not have it in his possession, or under his control, 
 *for a lawful object, shall, unless he can show that he made it r*4oq 
 or had it in his possession or under his control, for a lawful L '*^'^ 
 object, be guilty of felony, and, on conviction, shall be liable to penal 
 servitude for a term not exceeding fourteen years, or to imprison- 
 ment for a term not exceeding two years with or without hard labor, 
 and the explosive substance shall be forfeited. 
 
 (2) In any proceeding against any person for a crime under this 
 section, such person ,and his wife, or husband, as the case may be, 
 may, if such person thinks fit, be called, sworn, examined, and cross- 
 examined as an ordinary witness in the case. 
 
 Sect. 5. Any person who within or (being a subject of Her Majesty) 
 without Her Majesty's dominions, by the supply of or solicitation for 
 money, the providing of premises, the supply of materials, or in any 
 manner whatsoever procures, counsels, aids, abets, or is accessory to, 
 the commission of any crime under this Act, shall be guilty of felony, 
 and shall be liable to be tried and punished for that crime as if he 
 had been guilty as a principal. 
 
 By sect. 6 provision is made for inquiry by order of the Attorney- 
 General, into oifences under this Act before justices, and for the ap- 
 prehension of absconding witnesses. 
 
 By sect. 7, (1) If any person is charged before a justice with any 
 crime under this Act, no further proceeding shall be taken against 
 such person without the consent of the Attorney-General, except such 
 as the justice may think necessary by remand, or otherwise, to secure 
 the safe custody of such person. 
 
 (2) In framing an indictment, the same criminal act maybe charged 
 in different counts as constituting different crimes under this Act and 
 upon the trial of any such indictment the prosecutor shall not be put 
 to his election as to the count on which he must proceed. 
 
 (3) For all purposes of and incidental to arrest, trial, and punish- 
 ment, a crime for which a person is liable to be punished under this 
 Act, when committed out of the United Kingdom, shall be deemed to 
 have been committed in the place in which such person is apprehended 
 or is in custody. 
 
 (4) This Act shall not exempt any person from any indictment or
 
 636 EXPLOSIVES. 
 
 proceeding for a crime or offence wliich is punishable at common law, 
 or by any jV.ct of Parliament other than this Act, but no person shall 
 be punished tAvice for the same criminal act. 
 
 Sect. 8 provides for search and seizure of explosives. 
 
 Bv sect. 9. In this Act, unless the context otherwise requires — The 
 expression "explosive substance," shall be deemed to include any 
 materials for making any explosive substance; also any apparatus, 
 machine, implement, or materials used, or intended to be used, or 
 adapted for causing, or aiding in causing, any explosion in or with 
 any explosive substance ; also any part of any such apparatus, machine 
 or implement. 
 
 Injuries by persons in possession of property injured. As to 
 
 this, see 24 & 25 Vict. c. 97, s. 59, supra, p. 289. 
 
 Form of indictment. See 24 & 25 Vict. c. 97, s. 60, supra, p. 289, 
 and sect. 7 (2) of the Explosive Substances Act, 1883, supra. ^
 
 FALSE COPIES OF RULES OF TRADE UNIONS. 637 
 
 *FALSE COPIES OF RULES OF TRADE UNIONS. [*489 
 
 By the Trade Union Act, 1871 (34 & 35 Vict. c. 31) sect. 18, it is 
 enacted that " if any person with intent to mislead or defraud gives to 
 any member of a trade union registered under this act, or to any per- 
 son intending or applying to become a member of such trade union a 
 copy of any rules or of any alterations or amendments of the same 
 other than those respectively which exist for the time being, on the 
 pretence that the same are the existing rules of such trade union ; or if 
 any person with the intent aforesaid gives a copy of any rules to any 
 person on the pretence that such rules are the rules of a trade union 
 registered under this act which is not so registered, every person so 
 offending shall be guilty of a misdemeanor." 
 
 By sect. 19, sub-sect. 2, the description of any offence under this 
 Act in the words of the Act shall be sufficient in law. A definition 
 of Trade Union is given in the 39 & 40 Vict. c. 22, s. 16.
 
 638 FALSE DECLARATIONS. 
 
 *490] 
 
 *FALSE DECLARATIONS. 
 
 PAGE 
 
 At elections — parliamentary . . . . . « . • 490 
 
 municipal . . . • 490 
 
 Before magistrates , . , . 490 
 
 On registration of births, deaths, and marriages .... 491 
 
 Customs 492 
 
 Bankruptcy . . . . 492 
 
 In other cases 492 
 
 At elections — parliamentary. By the Reform Act, 2 & 3 Will. 
 4, c. 45, s. 58, three questions were allowed to be put to the voter at 
 the poll, to be answered by him on oath ; but bv the 6 & 7 Vict. c. 
 18, ss. 81, 82, and see the Ballot Act (35 & 36 Vict. c. 33), s. 10, 
 these were reduced to two. See Rogers on Elections, chap. Proceed- 
 ings at the Elections. Sect, 81 of the 6 & 7 Vict. c. 18 euacts, that 
 "if any person shall wilfully make a false answer to either of the 
 questions, he shall be deemed guilty of a misdemeanor, and shall and 
 may be indicted and punished accordingly." 
 
 Upon an indictment under this statute the word " wilfully " should 
 be construed in the same way as in an indictment for perjury, and be 
 supported by the same sort of evidence. Per Patteson, J., in R. v. 
 Ellis, Car. & M. 564, 41 E. C. L. For other cases upon the 2 & 3 
 Will. 4, c. 45, s. 58, see R. v. Bowler, Car. & M. 559, 41 E. C. L.; 
 R. V. Spalding, Car. & M. 568, 41 E. C. L. ; and R. v. Lacy, Car. & 
 M. 511, 41 E. C. L. See also R. v. Bent, 1 Den. C. C. R. 157, 
 infra. 
 
 By the Corrupt Practices Prevention Act, 1883 (46 & 47 Vict. c. 
 51), s. 33 (7), candidates or election agents knowingly making decla- 
 rations required by that section falsely are indictable, and are also 
 guilty of a " corrupt practice " within the meaning of the Act. As to 
 the procedure and punishment, see ante, tit. " Bribery." 
 
 At elections — municipal. The Municipal Corporation Act, 5 & 6 
 Will. 4, c. 76, s. 34 (now re])caled), amended by the 35 & 36 Vict. c. 
 33, 4th schedule, provided likewise for questions being put to persons 
 voting at municipal elections, and in the same words as those used in 
 the 6 & 7 Vict. c. 18, make it a misdemeanor for a burgess wilfully to 
 make a false answer to any of these questions. It was held, that an 
 indictment charging that " the defendant falsely and fraudulently 
 answered " was bad for omitting the word " wilfully." R. v. Bent, 1 
 Den. C. C. R._ 157. See now 45 & 46 Vict. c. 50, s. 59. Falsely and 
 fraudulently signing a declaration under the Parliamentary and Muni- 
 cipal Registration Act, 1878 (41 & 42 Vict. c. 26), is made a misde- 
 meanor by sect. 25 of that Act. For other offences at elections, see 
 ante, tit. " Elections."
 
 FALSE DECLARATIONS. 639 
 
 Before magistrates. The 5 & 6 Will. 4, c. 62, s. 18, after rccitino- 
 " whereas it may be necessary and proper in many cases not herein 
 specified to require confirmation of written instruments or alleo-ations 
 or proof of debts or of the execution of deeds or otlier Diatters " 
 *enacts, that "it shall and may be lawful forany justice of the r^.. ' 
 peace, notary public, or other officer now by law authorized to •- 
 administer an oath, to take and receive the declaration of any jierson 
 voluntarily making the same before him in the form in the schedule to 
 this Act annexed ; and if any declaration so made shall be false and 
 untrue in any material particular, the person wilfully making such 
 false declaration shall be deemed guilty of a misdemeanor." 
 
 Erskine, J., held, in R. v. Boynes, 1 C. & K. 65, 47 E. C. L., that 
 the enacting words of this section were not restrained by those in the 
 preamble, so as to exclude from the operation of the statute a decla- 
 ration by a member of a benefit society that he had sustained a loss by 
 an accidental fire, it being a rule of such benefit society that any full 
 free member thereof, Avho sustained a loss by an accidental fire, was to 
 be indemnified to the extent of 15/., on making a declaration before a 
 magistrate verifying his loss. 
 
 On registration of births, deaths, and marriages. The statute 6 
 & 7 Will. 4, c. S6, s. 41, which formerly related to births and deaths 
 as well as marriages, enacts that '' every person who shall wilfully 
 make, or cause to be made for the purpose of being inserted in any 
 register of [birth, death, repealed by 37 & 38 Vict. c. 88 : see infra] 
 marriage, any false statement touching any of the particulars herein 
 required to be known and registered, shall be subject to the same pains 
 and penalties as if he were guilty of perjury." 
 
 The law relating to the registration of births and deaths in Eng- 
 land is now governed by 37 & 38 Vict. c. 88, repealing 6 & 7 Will. 
 4, as far as that statute relates to births or deaths, by s. 40. 
 
 Any person who commits any of the following offences, that is to 
 say : — 
 
 (1) Wilfully makes any false answer to any questions put to him 
 by a registrar relating to the particulars required to be registered con- 
 cerning any birth or death, or wilfully gives to a registrar any false 
 information concerning any birth or death, or the cause of any 
 death ; or, 
 
 (2) Wilfully makes any false certificate or declaration under or for 
 the purposes of this Act, or forges or falsifies any such certificate or 
 declaration, or any order under this Act, or, knowing any such certifi- 
 cate, declaration, or order to be false or forged, uses the same as true, 
 or gives or sends the same as true to any person ; or, 
 
 (3) Wilfully makes, gives, or uses any false statement or represen- 
 tation as to a child born alive having been still-born, or as to the body 
 of a deceased person or a still-born child in any coffin, or falsely pre- 
 tends that any child born alive was still-born ; or, 
 
 (4) Makes any false statement with intent to have the same entered 
 in any register of births or deaths ; —
 
 G40 FALSE DECLARATIONS. 
 
 Shall for each offence be liable on summary conviction to a penalty 
 not exceediiu; ten pounds ; and, on conviction on indictment, to fine 
 or to imprisonment witli or without hard labor for a term not exceed- 
 ino- two years, or to penul servitude for a term not exceeding seven 
 years. 
 
 As to destroyino;, defacing, etc., registers, see 24 & 25 Vict. c. 98, 
 s. 36, post, tit. " Forgery." 
 
 To support an indictment on the 41st section of the 6 & 7 Will. 4, 
 c. 86, for making a false statement touching the particulars required 
 to be registered for the purpose of their being inserted in a register 
 *io9T '^ of marriages, it is essential that the false statement should 
 "■-I have been made wilfully and intentionally, and not by mistake 
 only. R. V. Lord Dunboyne, 3 C. & K. 1, j)er Campbell, C. J, To 
 constitute an offence under this section it is not essential that the pur- 
 pose for wliich the false declaration was made should have been effected. 
 Per Crcsswell, J., in R. v. Mason, 2 C. & K. 622, 61 E. C. L. An 
 indictment under this section charged that a clergyman had solemnized 
 a marriage, and was about to register in duplicate the particulars re- 
 lating to the marriage^ and that the prisoner did wilfully make to the 
 clergyman, for the purpose of being inserted in the register of mar- 
 riage, certain false statements. The proof Mas that the particulars 
 were entered by the clerk of the church before the marriage ; that 
 after the marriage the clergyman asked the prisoner if they were 
 correct, and that he answered in the affirmative, and the clergyman 
 signed the register. It was held, that the ))risoner had been rightly 
 convicted. R. v. Brown, 1 Den. C. C. R. 291 ; 17 L. J., M. C. 145. 
 Upon such an indictment it is not necessary to prove that the marriage 
 register book is the idoitical book directed to be furnished by the reg- 
 istrar-general under 6 & 7 Will 4, c. SQ, s. 30. 
 
 It was a felony, under sect. 43 of the 6 & 7 Will. 4, c. 86, now re- 
 pealed, to cause the registrar to make an entirely false entry of a birth, 
 marriage, or death. Per Cresswell, J., in R. v. Mason, supra. There- 
 fore, where a woman went to a registrar of births, and asked him to 
 register the birth of a child, giving him the particulars necessary for 
 the entry, which were false, and he made the entry accordingly, and 
 she signed it as the person giving the information : it was held by the 
 same learned judge that this amounted to the felony of causing a false 
 entry to be made within sect. 43, and was not merely the misdemeanor 
 of making a false statement under sect. 41. R. v. Dewitt, 2 C. tfeK. 
 905, 61 E. C. L. 
 
 Customs. As to making false declarations in matters relating to 
 the Customs, see Customs Laws Consolidation Act, 39 & 40 Vict. c. 
 36, s. 168. 
 
 Bankruptcy. By the 32 & 33 Vict. c. 62, s. 14, if any creditor in 
 any bankruptcy or liquidation by arrangement or composition with 
 creditors in pursuance of The Bankruptcy Act, 1869, wnHully and 
 with intent to defraud makes any false claim, or any proof, dcclanxtion,
 
 FALSE DECLARATIONS. 641 
 
 or statement of account which is nntrue in any material particular he 
 shall be guilty of a misdemeanor, punishable with imprisonment not 
 exceeding one year, with or without hard labor. 
 
 In other cases. Persons making false declarations with respect to 
 registration under the Pharmacy Act, 1868 (31 & 32 Vict. c. 121 s. 
 14) are guilty of a misdemeanor. So persons making false statements 
 with respect to lunatics, 16 & 17 Vict. c. 97, s. 122; false declara- 
 tions under the Capital Punishment Amendment Act, 31 Vict. c. 24 
 s. 9 ; false certificates under the Vaccination Act, 30 & 31 Vict. c. 
 84, s. 30 ; false declarations under the Pensions Commutation Act, 
 34 & 35 Vict. c. 36, s. 9 ; false declarations under Lodgers' Goods 
 Protection Act, 34 & 35 Vict. c. 79 ; under Land Titles and Transfer 
 Act, 1875, 38 & 39 Vict. c. 87, ss. 99, 100, 101 ; under the Dentists' 
 Act, 1878, 41 & 42 Vict. c. 33, s. 35 ; under the Burials Act, 43 &44 
 Vict. c. 41, s. 10, and in many other cases, are guilty of misdemeanors. 
 
 41
 
 642 FALSE PERSONATION. 
 
 *493] *FALSE PERSONATION. 
 
 PAGE 
 
 Offence at common law 493 
 
 by statute , . . . 493 
 
 Personating bail— acknowledging recovery, etc 493 
 
 False personation of soldiers and seamen 493 
 
 voters , 494 
 
 Personating owners of real estate, etc 495 
 
 owners of stocks, etc 496 
 
 Oflfence at common law. The offence of falsely personating another 
 for the purpose of fraud is a misdemeanor at common law, and pun- 
 ishable as such. 2 East, P. C. 1010 ; 2 Russ. Cri. 886, 5th ed. In 
 most, cases of this kind, however, it is usual, where more than one are 
 concerned in the offence, to proceed as for a conspiracy ; and very few 
 cases are to be found of prosecutions at common law for false persona- 
 tion. In one case, where the indictment merely charged that the pris- 
 oner personated one A. B., clerk to H, H., justice of the peace, with 
 intent to extort money from several persons, in order to procure their 
 discharge from certain misdemeanors, for which they stood committed, 
 the court refused to quash the indictment on motion, but put the de- 
 fendant to demur. R. v. Duj>ee, 2 East, P. C. 1010. It is observed 
 by Mr. East, 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, for that it was an attempt to 
 pollute public justice. Id.^ 
 
 Offence by statute. In a variety of statutes against forgery, pro- 
 visions are likewise contained against false personation, which in gen- 
 eral is made felony. Vide post, tit. " Forgery." 
 
 Personating bail — acknowledging recovery, etc. By the 24 & 25 
 
 Vict. c. 98, s. 34, " whosoever without lawful authority or excuse, the 
 proof whereof shall lie on the party accused, shall in the name of any 
 other person acknowledge any recognizance or bail, or any cognovit 
 actionem, or judgment, or any deed, or other instrument, before any 
 court, judge, or other person lawfully authorized in that behalf, shall be 
 guilty of felony, and being convicted thereof shall be liable, at the dis- 
 cretion of the court, to be kept in penal servitude for any term not 
 exceeding seven years and not less three [now five] years, or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labor, and with or without solitary confinement." 
 
 False personation of soldiers and seamen. The false personation of 
 soldiers and seamen was made felony by several statutes, some of 
 * See Eenoard v. Noble, 2 Johns. Cas. 293. S.
 
 FALSE PERSONATION. 643 
 
 which have been repealed. The statutes still in force are, Mith 
 *respect to soldiers : 7 Geo. 4, c. 16, ss. 35, 38 ; 2& 3 Will. L ,^^ 
 4, c. 53, s. 49 ; 19 & 20 Vict. c. 15, s. 5 ; 44 & 45 Vict. .c. L '^^^ 
 57, s. 36, and c. 58, s. 142 ; and with respect to sailors : 28 & 29 
 Vict. c. 124, ss. 8, 9. 
 
 The repealed statute 5 Geo. 4, c. 107, as well as the former statutes, 
 made use of the words " some officer," etc., " entitled, or supposed to 
 be entitled," etc. Upon a prosecution, therefore, for such false per- 
 sonation there must be some evidence to show that there was some 
 person of the name and character assumed, who was either entitled, 
 or might, priind facie at least, be supposed to be entitled, to the wages 
 attempted to be acquired. R. v. Brown, 2 East, P. C. 1007. Where 
 the prisoner was indicted for personating and falsely assuming the 
 character of Peter M'Cann, a seaman on board the Tremendous, and 
 it appeared in evidence that there had been a seaman of the name 
 of M'Carn on board the vessel, but no one of the name of M'Cann ; 
 the prisoner being convicted, the judges held the conviction wrong. 
 They were of opinion that "personating" must apply to some 
 person who had belonged to the ship, and that the indictment must 
 charge the personating of some such person. R. v. Tannet, Russ. & 
 Ry. 351. 
 
 It has been held that the offence is the same, though the seaman 
 personated was dead at the time the oifence was committed. R. v. 
 Martin, Russ. & Ry. 324 ; R. v. Cramp, Id. 327. 
 
 Under the repealed statute 57 Geo. 3, c. 127, it was held, that all 
 persons present aiding and abetting a person in personating a seaman, 
 Avere principals in the offence. R. v. Pott, Russ. & Ry. 353. 
 
 Under the 2 Will. 4, c. 43, s. 49, on an indictment against B. for 
 personating a soldier, it appeared that A. instigated B. to represent 
 himself to be C, the soldier entitled to the prize money. The learned 
 judge (Lush, J.) directed the jury that if they believed that A. insti- 
 gated B. to represent himself as C, and that B. knowingly and 
 wilfully represented himself as C, then whatever B.'s motive may 
 have been both were equally guilty. Even if B. believed A. was 
 really C, or had C.'s authority to get the money, yet if he falsely 
 represented himself to be C, thougli authorized by A. to do so, he 
 would be guilty. R. v. Lake, 11 Cox, C. C. 333. 
 
 False personation of voters. To falsely personate a burgess at an 
 election of a town-councillor was no offence at common law, and was 
 no offence under the repealed statute 5 & 6 Will. 4, c. 76 ; R. v. 
 Thompson, 1 Den. C. C. R. 355, but was made an offence by the 22 
 Vict. c. 35, s. 9, which statute is now repealed. Under that statute 
 tendering a voting paper in a wrong name was held to be a persona- 
 tion, although upon being asked, the prosecutor at once admitted that 
 he was not the person named in the voting paper, and though the 
 vote was not recorded. R. v. Hague, 9 Cox, C. C. 412. At the 
 election of a poor-law guardian under the 14 & 15 Vict. c. 105, s. 3, 
 it was held not an offence to tender a voting paper purporting to be
 
 644 FALSE PERSONATION. 
 
 signed by a man wlio was dead, the words of the statute being " any 
 person who shall personate any person entitled to vote," and as the 
 man was dead, he could not be said to be entitled to vote. Whitley v. 
 Chappell, 11 Cox, C. C. 307, Q. B., Lush, Hannen, and Hayes, J J., 
 38 L. J., M. C. 51 ; Q. B. 70. 
 
 The 45 & 46 Vict. c. 50, s. 77, now makes personation at muni- 
 cipal elections a corrupt practice punishable as if committed at a 
 ^ ,^p-, *parliamentary election; and sect. 78 enacts, that "a person 
 J guilty of a corrupt practice at a municipal election sliall be 
 liable to the like actions, prosecutions, penalties, forfeitures and pun- 
 ishments, as if the corrupt practice had been committed at a parlia- 
 mentary election." Sect. 84 provides for the costs and expenses of the 
 prosecution. 
 
 By the Ballot Act, 1872, 35 & 36 Vict. c. 33, s. 24, it is enacted 
 that the following enactments shall be made with respect to persona- 
 tion at parliamentary and municipal elections : 
 
 A person shall, for all purposes of the laws relating to parliament- 
 ary and municipal elections, be deemed to be guilty of the offence of 
 personation, who at an election for a county or borough, or at a muni- 
 cipal election applies for a ballot paper in the name of some other 
 person, whether that name be that of a person living or dead, or of a 
 fictitious person, or who having voted once at any such election applies 
 at the same election for a ballot paper in his own name. 
 
 By 46 & 47 Vict. c. 51, s. 6 (2), a person wdio commits the offence 
 of personation, or of aiding, al)etting, counselling, or procuring the 
 commission of that offence, shall be guilty of felony, and any person 
 convicted thereof on indictment (defined by sect. 64, to include "in- 
 formation "), shall be punished by imprisonment for a term not ex- 
 ceeding two years, together with hard labor; and by the second para- 
 graph of sect. 24 of the Ballot Act, 1872, which is still unrepealed 
 (see 46 & 47 Vict. c. 51, sched. 5) it shall be the duty of the return- 
 ing officer to institute a prosecution against any person whom he may 
 believe to have been guilty of personation, or of aiding, abetting, 
 counselling, or procuring the commission of the offence of personation 
 by any person at the election for which he is returning officer, and the 
 costs and expenses of the prosecutor and the witnesses in such case, 
 together with compensation for their trouble and loss of time, 
 shall be allowed by the court in the same manner in which courts are 
 empowered to allow the same in cases of felony. See as to municipal 
 elections, 45 & 46 Vict. c. 50, parts 3, 4. The provision of the Reg- 
 istration Acts specified in the Third Schedule to the Ballot Act, 1872, 
 shall in England (6 & 7 Vict. c. 18, ss. 85—89) and Ireland (13 & 14 
 Vict. c. 69, ss. 92 — 96) respectively apply to personation under this 
 act in the same manner as they apply to a person who knowingly per- 
 sonates and falsely assumes to vote in the name of another person as 
 mentioned in the said acts. 
 
 By 46 & 47 Vict. c. 51, s. 3, the offence of personation, and of 
 aiding, abetting, counselling, and procuring the commission of the 
 offence of personation is a corrupt practice within the meaning of the
 
 FALSE PERSONATION. 645 
 
 Corrupt Practices Prevention Act, 1854 (17 & 18 Vict. c. 102 ss. 2 
 Z,ante, p. ,'U4; and the Parliamentary Elections Act, 1868,31 & zi 
 Vict. c. 1 2').) For other offences and elections, sec ante, tit. " Elec- 
 tions ; " and ante, tit. " Bribery." 
 
 Personating owners of real estate, etc. Personation in order to 
 deprive any jierson of real estate or other property is now governed 
 by 37 & 38 Vict. c. 36, an act passed after the notorious attempt of 
 Arthur Orton to obtain possession of estates and other property by 
 psrsonatinir Sir Roger Tichborne. By s. l,"if any person shall liilsely 
 and deceitfully personate any person, or the heir, executor, or admin- 
 istrator, wife, widow, next of kin, or relation of any person with 
 intent fraudulently to obtain any land, estate, chattel, money, vahia- 
 ble security, or property, he shall be guilty of felony, and, upon 
 *conviction, shall be liable, at the discretion of the court by r^.^^ 
 which he is convicted, to be kept in penal servitude for life, or L '"^^o 
 any period not less than five years, or to be imprisoned for any terra 
 not exceeding two years, with or without hard labor, and with or with- 
 out solitary confinement." 
 
 Sect. 2, " nothing in this act shall prevent any person from being 
 proceeded against and punished under any other act, or at common 
 law, in respect of an offence (if anv) punishable as well under this act 
 as under any other act, or at common law. 
 
 By s. 3, the offence is not triable at quarter sessions. 
 
 Personating owners of stock, etc. See the 24 & 26 Vict. c. 98, 
 s. 4, post, tit. " Forgery," 26 & 27 Vict. c. 73, s. 14 (India stock), 
 30 & 31 Vict. c. 131, s. 35 (ordinary shares, etc.), 33 & 34 Vict c. 
 68, s. 4, (National Debt).
 
 646 
 
 FALSE PRETENCES. 
 
 *497] 
 
 •FALSE PRETENCES. 
 
 Obtaining money, etc.. by false pretences 
 
 No acquittal because the offence amounts to larceny 
 
 Form of indictment and evidence 
 
 Causinf money, etc., to be delivered to another person . 
 
 Inducing persons by fraud to execute deeds and other instruments . 
 
 Interpretation ,* » ," 
 
 Indictment for obtaining money, etc., by false pretences not to be 
 
 preferred unless authorized , . 
 
 Obtaining credit by false pretences ..... 
 What constitutes an " obtaining by false pretence" 
 
 1. The obtaining . . _ • , . . , 
 
 Meaning of word obtain ..... 
 Obtaining as a loan . , . . 
 Result of the false pretence . . , . 
 Constructive obtaining . . 
 
 Causing money, etc., to be delivered ta another 
 Obtaining amounting to larceny 
 Obtaining by means of a forged document 
 
 2. The nature of the pretence 
 
 Existing fact ... ... 
 
 Combination of several false statements 
 
 Acts and not words 
 
 False account of wages paid, work done, weight de 
 livered, etc 
 
 False pretence of quality, quantity, or weight in 
 
 course of a contract — puff . 
 Pretences obviously false — no defence 
 3. The property obtained .... 
 
 Cliattel, money, or valuable security 
 Proof of the false pretences being made . , 
 
 of the falsity of the pretences 
 Evidence confined to the issue . . , . 
 Proof of intent to cheat or defraud .... 
 
 the ownership of the projierty 
 Pretence to one person — money o))tained from another 
 Pretence made through an innocent agent . 
 Proof of all being principals .... 
 
 Form of indictment 
 
 Description of property 
 
 Obtaining bounty-money 
 
 Venue 
 
 PAOB 
 
 497 
 498 
 498 
 498 
 498 
 498 
 
 498 
 499 
 499 
 499 
 499 
 499 
 501 
 502 
 502 
 503 
 503 
 503 
 503 
 504 
 506 
 
 508 
 
 511 
 514 
 515 
 515 
 517 
 519 
 520 
 521 
 522 
 522 
 523 
 523 
 523 
 524 
 525 
 525 
 
 Obtaining money, etc., by false pretences. By 24 & 25 Viet. c. 
 96, s. 88, whosoever sliall, by any fiilse pretence, obtain from any other 
 person any chattel, money, or valnable security, with intent to defraud, 
 shall be i^uilty of a misdemeanor, and being convicted thereof shall 
 *4Qsn * liable, at the discretion of the court, to be kept in penal ser- 
 J vitude for the term of three [now five] years, or to be impris- 
 oned for any terra not exceeding two years, with or without hard 
 labor, and with or without solitary confinement. 
 
 No acquittal because the offence amounts to larceny. By the 
 same section it is proyided " that if, upon the trial of any person in- 
 dicted for such misdemeanor, it shall be proved that he obtained the
 
 FALSE PRETENCES. 647 
 
 property in question in any such manner as to amount in law to lar- 
 ceny, he shall not, by reason thereof, be entitled to be ac{iuitte(l of such 
 misdemeanor; and no person tried for such misdemeanor shall be 
 liable to be afterwards prosecuted for larceny upon the same fa(!ts." 
 
 Form of indictment and evidence. By the same section, " pro- 
 vided also, that it shall be sufficient in any indictment for obtaiuinw-, 
 or attempting- to obtain, any such property by false pretences to allege 
 that the party accused did the act with intent to defraud, without 
 alleging any intent to defraud any particular person, and without 
 alleging any ownership of the chattel, money, or valuable security ;* 
 and, on the trial of any such indictment, it shall not be necessary to 
 prove an intent to defraud any particular person, but it shall be 
 sufficient to prove that the party accused did the act charged with an 
 intent to defraud." 
 
 Causing money, etc., to be delivered to another person. By s. 
 
 89, " whosoever shall by any false pretence cause or procure any money 
 to be paid, or any chattel or valuable security to be delivered to any 
 other person, for the use or benefit, or on account of the person making 
 such false pretence, or of any other person with intent to defraud, 
 shall be deemed to have obtained such money, chattel, or valuable 
 security within the meaning of the last preceding section." 
 
 Inducing persons by fraud to execute deeds and other instru- 
 ments. By s. 90, " whosoever with intent to defraud or injure any 
 other person shall, by any false pretence, fraudulently cause or induce 
 any other person to execute, make, accept, indorse, or destroy the whole 
 or any part of any valuable security, or to write, impress, or affix his 
 name, or the name of any other person, or of any company, firm or 
 co-partnership, or the seal of any body corporate, company, or society, 
 upon any paper or parchment, in order that the same may be after- 
 wards made or converted into, or used, or dealt with as a valuable 
 security, shall be guilty of a misdemeanor, and being convicted 
 thereof, shall be liable, at the discretion of the court, to be kept in 
 penal servitude for the term of three [now five] years, or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labor, and with or without solitary confinement."^ 
 
 Interpretation. As to the meaning of the term " valuable security," 
 see 24 & 25 Vict. c. 96, s. 1 ; infra, tit. " Larceny." 
 
 ^ An indictment for false pretences must state the owner of the goods obtained. 
 Commonwealth v. Graham, 1 County Ct. Rep. (Pa.) 282. And must show what the 
 false pretences are ; it is not sufficient to charge the crime substantially in the lan- 
 guage of the statute. Commonwealth v. Dennis, 1 County Ct. Kep. (Pa.) 2/8; Com- 
 monwealth V. Frey, 14 Wright, 245. 
 
 2 To susUin a criminal prosecution for obtaining the signature of one to a mortgage 
 by false pretences, the mere fact of the instrument being signed is not enough ; a de- 
 livery must also be shown, Fenton v. People, 4 Hill, 126. S.
 
 G48' FALSE PRETENCES. 
 
 Indictment for obtaining money, etc., by false pretences not to 
 be preferred unless authorized. By the 22 & 23 Vict. c. 17, supra, 
 p. 192, no indictment for obtaining money or other property by false 
 pretences is to be presented or found by the grand jury unless the 
 party has been connnitted by a magistrate, or the indictment 
 */iQal *otherwise authorized, as there mentioned. See this statute in 
 J the Appendix. And see now 30 & 31 Vict. c. 35, s. 1, in 
 Appendix. 
 
 Obtaining credit by false pretences. The obtaining credit by 
 false pretences under the Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 
 13, is dealt with, ante, tit. " Bankruptcy," p. 318. 
 
 What constitutes an obtaining by false pretence within the 
 statute. Great difficulty has been experienced in deciding where to 
 draw the line between the frauds which may be punished criminally 
 under this statute and those which only give rise to civil remedies. On 
 the one hand, the tendency of modern legislation and modern opinion 
 has been, as far as possible, to bring all frauds within the penalties of 
 the criminal law. On the other hand, the necessity has been felt that 
 the line which separates the criminal law should be clearly drawn. 
 The consequence is, that there is some conflict between the decisions, 
 as will appear from a perusal of the following cases. These cases are 
 arranged, as far as possible, under the following heads : 1st. Those 
 which relate to the act of obtaining the property. 2ndly. Those which 
 relate to the nature of the pretences which were used in obtaining the 
 property. 3rdly. Those which relate to the nature of the property 
 obtained. This arrangement, it is hoped, will be found to be more 
 convenient, and will render a comparison of the somewhat conflicting 
 decisions less perplexing than the chronological arrangement of the 
 cases in the previous editions of this work. In reading these cases, it 
 should be borne in mind that there is a distinction between holding 
 that a sufficient false pretence has not been alleged in the indictment, 
 and that a sufficient false pretence has not been proved. Many ex- 
 pressions of the court in various cases, which are apparently contra- 
 dictory, may be reconciled if this distinction be attended to.^ 
 
 ^ A representation, though false, is not within the statute against obtaining property, 
 etc., by false pretences, unless calculated to mislead persons of ordinary prudence and 
 caution. People v. Williams, 4 Hill, 9. An indictment lies for obtaining goods by 
 false pretences where a party represents himself to be tlie owner of property, 
 which does not belong to him, and thus fraudulently induces the owner to sell the 
 goods to him on credit. People v. Kendall, 25 Wend. 3.39. Where it was proved 
 that the owner of a horse represented to anotlier, that liis horse, which was ofieied in 
 exchange for the property of the other, was called the Charley, wlien he knew that it 
 was not the horse called by that name, and that by such false representation lie ob- 
 tained the property of the other person in exchange; it was held, that the indictment 
 was sustained, although the horse said to be the Charley was equal in value to the 
 property received in exchange, and as good a liorse as the Charley. State i\ Mills, 17 
 Me. 211. It is a well-settled, and a rational rule tliatthe false pretences, in order to sus- 
 tain an indictment, must be such that, if true, they would naturally, and according to 
 the usual operation of motives upon the minds of persons of ordinary prudence, pro- 
 duce the alleged results ; or in other words, that the act done by the person defrauded,
 
 FALSE PRETENCES. G49 
 
 1. THE "obtaining." 
 
 Meaning of the word " obtain." Tho property must be " ob- 
 tained " by the prisoner. In R. v. Garrett, see infm, p. o()3, Maule 
 J., said, "the word * obtain' means tlie same as the word 't^et' in its 
 sense of 'acquire,'" and Parke, B., said, "the word 'ol)t;iin' seems 
 to moan not so much a defrauding or depriving an(jther man of his 
 ])ronerty as the obtaining some benefit to the party." But in R v 
 Kiliiam, L. R. 1 C. C. R. 261 ; 39 L. J., M. C. 109, infm, p. m] 
 it was held that the word " obtain " does not mean obtain the loan of, 
 but obtain the property in, and that the obtaining must be coupled 
 with au intention to deprive the owner of his property, and not a 
 mere intention to make use of the thing and return it. It was in 
 consequence of the decision in R. v. Garrett, infra, tiiat section 89, 
 supra, 498, was enacted, under which it is necessary that the defend- 
 ant should obtain in the sense of " get " or " acquire " for his own 
 benefit, and it is sufficient under that section if he causes money, 
 etc., to be paid to any other person, whether for his own benefit or 
 for the benefit of anybody else. 
 
 Obtaining as a loan. Very frequently chattels, moneys, or valua- 
 ble securities are fraudulently obtained, but only by way of a loan. 
 The result of the cases appears to be that it is immaterial whether the 
 prosecutor regarded the matter as a loan or not, but there must be an 
 intention in the mind of the prisoner to deprive the owner wholly of 
 *his property, and not a mere intention to make use of the thing r:^r(\o 
 obtained and then return it. The prisoner had accepted a bill •- 
 drawn upon him by the prosecutor for 2,638/., which he owed the lat- 
 ter. AVheu the bill became due, the prosecutor asked the prisoner if he 
 was prepared to pay it, and the prisoner said he had enough all but 
 300/., and that he expected to get the loan of that from a friend. The 
 prosecutor, who was not any longer the holder of the bill, exjjressed 
 his willingness to advance the 300/. himself, and ultimately did so ; 
 but the prisoner, instead of taking up the bill, applied the 300/. to his 
 own purposes, and suffered the bill to be dishonored, and the prose- 
 cutor eventually had to pay it. Evidence was also given, that at the 
 time the prisoner obtained the money, he was not in possession of 
 funds sufficient to make up the balance between the 2,638/. and the 
 
 must be such as the apparent exigency of the case would directly induce an honest 
 and ordinary prudent person to do, if the pretences were true. People v. Stetson, 4 
 Barb. 151. 
 
 See further, Tompkins v. State, 33 Tex. 228 ; Robinson v. State, Id. 341 ; Common- 
 wealth ('. Hooper, 14 Mass. 549 ; State v. Scott, 48 Mo. 422 ; State v Lincoln, 49 
 N. H. 464 ; Smith v. People, 47 N. Y. 303 ; Commonwealth v. Poulson, 4 Clark, 20 ; 
 McCord V. People, 46 N. Y. 470; State v. Evers, 49 Mo. 542; Scott v. People, 62 
 Barb. 62. Representing a bogus check as good— held an indictable folse pretence, 
 and not a mere promise that the check should be paid. Maley «'. State, 31 Ind. 192, 
 Paying or exchanging counterfeit money for goods is not obtaining them on fiilse 
 pretences. Check v. State, 1 Cold. 172. False pretence though the party might by 
 common prudence have avoided the imposition. People v. Pray, 1 Mich. (N. P.) 69. 
 False pretence must be such as is calculated to impose. Commonwealth v. Hutchin- 
 son, 1 "Clark, 302. S.
 
 G50 FALSE PEETENCES. 
 
 300?., but was in insolvent circumstances. For the prisoner it was 
 contended, that the representation was not a false pretence within tlie 
 statute, being a mere misstatement, or at the worst a naked lie, and R. 
 V. Codrington, infra, was cited ; and secondly, that the act did not ex- 
 tend to cases where the prosecutor had only lent, not parted with the 
 property of the goods or money, l^atteson, J., said " The words of 
 this act are very general, and I do not think I can withdraw the case 
 from the jury. If they are .satisfied that the prisoner fraudulently ob- 
 tained the 300/. from the prosecutor by a deliberate falsehood, averring 
 that he had all the funds required to take up the bill, except 300l 
 when in fact he knew that he had not, and meaning all the time to ap- 
 ply the 300/. to his own purposes, and not to take up the bill, it appears 
 to me that the jury ought to convict the prisoner. In R. v. Codring- 
 ton, it does not appear that the prisoner did distinctly allege that he 
 had a good title to the estate which he was selling. As to the money 
 being advanced by the prosecutor only as a loan, the terms of the act 
 of parliament embrace every mode of obtaining money by false pre- 
 tences, by loan as well as by transfer." The prisoner was acquitted. 
 R. V. Crossley, 2 Moo. & R. 17 ; 2 Lew. C. C. 164. The prisoner 
 represented to the prosecutor that he had built a house worth 300/. on 
 certain land, and deposited with the prosecutor a lease of the land as 
 a security, and entered into a written agreement to execute a mortgage 
 of the land ; whereas in fact the house was built on land adjoining, 
 which had already been mortgaged by the defendant. By these false 
 statements, the prosecutor was induced to advance the sum of 80/., by 
 way of loan, which he paid to the prisoner. It was held by all the 
 judges that the prisoner was properly convicted of obtaining the money 
 by false pretences. R. v. Burgon, 25 L. J., M, C. 105. In R. v. Cod- 
 rington, 1 C. & P. 661, 12 E. C. L.,the indictment stated that the de- 
 fendant, by falsely pretending to the prosecutor that he was entitled to a 
 reversionary interest in one-seventh share of a sum of money left by 
 his grandfather, obtained the sum of 29/. 3s. from the prosecutor. It 
 was proved that the defendant asked the prosecutor to purchase the 
 seventh part of an interest in some money to which he would be 
 entitled on the death of a relation ; and that the prosecutor agreed to 
 do so ; and an assignment was accordingly prepared containing a 
 covenant for title, and the money paid by the prosecutor to the 
 defendant. A previous assignment of the same interest by the de- 
 fendant to a person named Peek was then put in. After argument, 
 Littledale, J., held that this was not an indictable offence, but was 
 only a breach of covenant for title, for which a civil action would lie, 
 *5mi *^*^^ Patteson, J., in R. v. Crossley, supra, said it did not ap- 
 ^ pear that the prisoner in R. v. Codrington tlid distinctly allege 
 that he had a good title to the estate which he was selling. 
 
 A railway pass ticket was obtained by a person in order to enable 
 him to travel free. At the end of the journey he would have to return 
 it to the possession of the owner. The court having held that it was 
 a " chattel," held also that the fact that it was to be returned at the 
 end of the journey did not alFect the question. R. v. Boulton, 1 Den.
 
 FALSE PRETENCES. 651 
 
 C. C. R. 508 ; 19 L. J., M. C. 67. It is said by the court in R. v. 
 Kilhara, infra, that the reasons for tlie above decision do not very 
 clearly appear, but that it might be said that the prisoner, by usinc 
 the ticket, entirely converted it to his own use for the only purpose iiir 
 which it was capable of being api)lied. But where a man by fiiLse 
 pretences obtained a horse on hire, and rode him for the day, and re- 
 turned him in the evening, but never paid the hire, it was hdd that as 
 he had no intention to deprive the owner of his property in tiie horse 
 or to appropriate it to himself, but only intended to obtain the use of 
 it for a limited time, he could not be convicted of obtaining the horse 
 by false pretences. The word " obtain " does not mean obtain the 
 loan of, but obtain the property in, any chattel, etc. R. v. Kilham, 
 L. R., 1 C. C. R. 261 ; 39 L. J.,"M. C. 109. Had the prisoner, in the 
 above case, meant to ride away with the horse altogether wliieh he 
 fraudulently pretended to hire, tliat would have been an obtaining by 
 false pretences, but it would also have amounted to a larceny. See 
 " Larceny/' post, and see post, p. 503. 
 
 Result of the false pretence. The obtaining must be the result of 
 the false pretences, and must not be too remotely connected with them.^ 
 In R. V. Ady, 7 C. & P. 140, 32 E. C. L., for the defence an en- 
 deavor was made to show that the prosecutor and his friend went to the 
 defendant, well knowing who he was, for the purpose of making 
 evidence to support the case against him, and that they parted with 
 their money Avith a full knowledge that the pretence Avas false. 
 Patteson, J., is reported to have said, if the defendant did obtain the 
 money by false pretences, and knew them to be false at the time, it 
 does not signify Avhether they intended to entrap him or not. But 
 according to the subsequent cases the defence set up would, if proved, 
 have been good. Thus in R. v. Mills, Dears. & B. C. C. 205 ; 
 26 L. J., M. C. 79, the prisoner was convicted on an indictment, 
 which alleged that the money was obtained by the prisoner by a 
 false pretence that he had cut sixty-three fans of chaff, Avhen in fact 
 he had only cut forty-five fans, for which he demanded 10s. 6(/., being 
 at the rate of 2d. a fan. The prosecutor had seen the prisoner nuiiove 
 eighteen fans of chaff, from a heap for which he was not entitled to be 
 paid, and place them Avith that for Avhich he Avas entitled to be paid ; 
 and notwithstanding that the prisoner's fraud was thus exposed, paid 
 him the amount Avhich he demanded. It was held that the convic- 
 tion Avas wrong, as the money Avas not obtained by means of the 
 false pretence. The prisoner might hoAvever be convicted of the 
 attempt. R. v. Hensler, 11 Cox, C. C. R. 570. In R. v. Gardner, 25 
 L. J., M. C. 100, the prisoner represented himself to be a naval officer, 
 and by that false pretence obtained lodging, but not board. He sub- 
 
 ^ Owner must part with his property on the faith of the pretences. Clark v. Peo- 
 ple, 2 Lans. 329. In an indictment for obtaining goods by falsely pretending tJiat the 
 defendant was acting for an undisclosed principal, the vendor may testify that he gave 
 credit to such principal, although in iiis books of account he entered the transaction 
 as a sale to the defendant, and made out a bill of parcels in that form. Commonwealth 
 V. Jeffries, 7 Allen, 548. S.
 
 652 FALSE PRETENCES. 
 
 sequently and without any fresli pretence obtained articles of food, 
 and was indicted for obtaining articles of food by falsely pretending 
 he was a naval officer ; it was held that the obtaining of the articles. 
 ^ -, *()f food was too remotely the result of the false pretence. So 
 ^^^J in the case of 11. v. Bryan, 2 F. & F. 567, where the first con- 
 tract was for board and lodgings, and the prisoner subsequently ob- 
 tained a sixpence as a loan, it was held too remote. The prisoner was 
 charged with obtaining the prize in a swimming race by false pretences. 
 He obtained his entry ticket for the race by representing himself to be 
 a member of a certain club ; on the faith of this, which turned out to 
 be false, he was allowed twenty seconds' start in the race and won 
 the prize. It was held by the Common Serjeant after consulting 
 Stephen, J., that the obtaining the prize was too remotely connected 
 with the false pretence. R. v. Larner, 14 Cox, C. C. 497. In a case 
 tried at the summer assizes at Nottingham in 1879 before Lindley, J., 
 a professional runner, by representing himself to be an amateur and 
 assuming a false name, competed in a race exclusively for amateurs, 
 and was allowed a start, and won the race. He was convicted of 
 attempting to obtain a prize by false pretences. R. v. Dickenson 
 (not reported). It would seem, however, that in all such cases the 
 question of remoteness is for the jury. See R. v. Martin, L. R., 1 
 C. C. R. 56 ; 36 L. J., M. C. 20. In that case it was held that it is 
 not necessary that the goods obtained should be in existence at the 
 time the pretence is made, provided the subsequent delivery of the 
 chattel is directly connected with the false pretence, and such con- 
 nection is a question for the jury. At all events where a false pre- 
 tence had been made, and after the lapse of some time allusion is 
 made to the same matters by the prisoner, and thereupon the prose- 
 cutor parts with his property to the prisoner, it is for the jury to say 
 whether the conversations are so connected as to form one continuing 
 representation. R. v. Welman, Dears C. C. 188j ante, p. 93. 
 
 Constructive obtaining. Where a prisoner was indicted for obtain- 
 ing from A., to whom he made the false pretence, and the proof was 
 that he obtained from A.'s wife, A. not being present at the time of 
 obtaining, this was held to be an obtaining from A. R. v. Moseley ; 
 see post, p. 522. So where the prisoner sent a little boy to obtain 
 money from the prosecutor, and the little boy innocently brought the 
 money to the prisoner, it was held to be an obtaining by the prisoner. 
 R. V. Butcher ; see post, p. 523. So where several persons are present 
 and are acting together in })ursuance of the fraudulent purpose, there 
 is an obtaining by all. See R. v. Young, post, p. 504 ; and even 
 where they are not present, if they have assisted and concurred in the 
 fraud. R. v. Moland, 2 Moo. C. C. 276. 
 
 Causing money, etc., to be delivered to another person. We 
 have seen, ante, p. 498, that by the statute the causing (by false pre- 
 tences) money, etc., to be delivered to another person for the defend- 
 ant's benefit, or any other person's with intent to defraud, is an obtain-
 
 FALSE PRETENCES. 653 
 
 ing by false pretences. In a case before tlie passing of the Act, the 
 defendant was indicted in England for a misdemeanor, in attempting 
 to obtain moneys from L. & Co. by false pretences. The defendant 
 had a circular letter of credit for 210/. from D. S. & Co., of New 
 York, with authority to draw on L. & Co. in London in favor of 
 any of the correspondents of the bank for such portions of the 210/. 
 as he might require. The defendant came to England and drew 
 drafts for diiferent sums, amounting in all to less than 210/., and 
 then carried the letter to St. Petersburg. He there exhibited it to 
 *W. & Co., one of the aforesaid correspondents, having pre- r^.Koo 
 viously altered the sum from 210/. to 5,210/. and then drew on L 
 L. & Co., for, and obtained, large amounts far exceeding 210/. These 
 drafts were forwarded by W. & Co. to L. & Co., who refused to honor 
 them. The learned judge (Parke, B.) asked the jury whether, although 
 the prisoner's immediate object was to cheat W. & Co., he did not also 
 Inean that they or their correspondents, or the indorsers from them, 
 should present these unauthorized drafts, and obtain payment of them 
 from L. & Co., and the jury found that he did so intend. The case 
 was reserved, and the court held that, even if L. & Co. had paid the 
 cheques, no offence would have been committed by the prisoner within 
 the statute ; that his act was complete at St. Petersburg, and for what 
 took place afterwards he was not criminally responsible. K,. v. Gar- 
 rett, 1 Dears. C. C. 232. See "Greaves' Criminal Statutes," p. 136, 
 2 Russ. on Cr. 525, note (d), 5th ed., where it is said that this case 
 would be met by the section of the act above alluded to. 
 
 Obtaining amounting to larceny. Sometimes the obtaining 
 amounts to a taking sufficient to constitute the offence of larceny. See 
 post, tit. "Larceny." By the 24 & 25 Yict. c. 96, s. 88 {vide ante, p. 
 498), if it appears on the trial that the defendant obtained the property 
 in question in any such manner as to amount in law to larceny, he 
 shall not, by reason thereof, be entitled to be acquitted of such misde- 
 meanor. In all cases, therefore, where it is doubtful whether, in point 
 of law, the offence is larceny or a misdemeanor, the safest course is to 
 indict the party as for a misdemeanor ; for should it appear upon an 
 indictment for larceny, that the offence is in fact, that of obtaining 
 money, etc., under false pretences, the prisoner must be acquitted. If 
 the facts proved amount to larceny, still the false pretences must be 
 proved as laid, for it is the misdemeanor which is charged, and which 
 he must be proved to have committed. R. v. Bulmer, L. & C. 482. 
 See also R. v. Shott, 3 C. & K. 206, post, tit. " Rape." As to^ the 
 distinction between false pretences and larceny, see tit. " Larceny." 
 
 Obtaining by means of a forged document. It was formerly the 
 law, that where goods were obtained by false representation, but that 
 representation was in writing, and amounted to a warrant or order for 
 the payment of money or delivery of goods, so as to constitute a for- 
 gery, the offender must be indicted for the forgery, and could not be 
 convicted of obtaining the property by false pretences. R. v. Evans,
 
 654 FALSE PRETENCES. 
 
 5 C. & P. 553, 24 E. C. L. ; R. v. Anderson, 2 Moo. & R. 469 ; R. 
 V. Tucler, 1 Den. C. C. 325. But now by the 14 & 15 Vict. c. 100, 
 s. 12, any person tried for misdemeanor is not to be acquitted of the 
 misdemeanor when duly proved if the offence turn out to be felony. 
 See supra. 
 
 2. THE NATUEE OF THE PRETENCE. 
 
 Existing fact. The false pretence laid in the indictment must be 
 of some bycgone or existino; fact and not of some future event, or a 
 mere promise. See II. v. Welman, Dears. C. C. 188, per Jervis, C. J.' 
 -. * Where the four prisoners came to the prosecutor representing 
 -I that they had betted that a person named Lewis should walk a 
 certain distance within a certain time, and that they should probably 
 win, and thus obtained money from the prosecutor towards the bet ; it 
 was objected that, although the representation of a thing past or pres- 
 ent, against which caution cannot guard, may be within the statute (30 
 Geo. 2, c. 24, now repealed), yet if it be the representation of some 
 future transaction respecting which inquiries may be made, it is not an 
 indictable offence, but the subject only of a civil remedy. The Court 
 of King's Bench, however, were of opinion that the false pretences 
 were within the statute. R. v. Young, 3 T. R. 98. It is to be ob- 
 served that the pretence of having made a bet was a pretence of an 
 existing fact. 
 
 Where the prisoner falsely pretended that he had got to pay his rent 
 when in fact he did not mean to pay it, but intended to appropriate the 
 money to his own purposes, it was held that this was not a false pre- 
 tence of an existing fact. R. v. Lee, Id. & C 309. 
 
 Where the indictment alleged that the defendant falsely pretended 
 that she had the power to bring back A.'s husband over hedges and 
 ditches, it was held that this was not a mere promise, but was a false 
 pretence Avithin the statute. R. v. Giles, L. & C. 502 ; 34 L. J., M. 
 C. 50. The prisoner obtained money by representing that a new 
 directory which W. & Co. were getting up was about to be published, 
 whereas in fact W. & Co. were not doing so ; and it was held that 
 this was a misrepresentation of an existing fact. R. v. Speed, 15 Cox, 
 C. C. R. 24 ; R. V. Taylor, 15 Cox, C. C. 265, 268.^ 
 
 Where the indictment alleged that the prisoner pretended to Hen- 
 rietta Pond, who then lived at Madame Temple's, and acted as her 
 representative, that she was to give 10s. to one Clerk, and that Madame 
 Temple was going to allow Clerk 10s. a week, it was held that it did 
 not sufficiently appear from these averments that there was any false 
 pretence as to an existing fact. R. v. Henshaw, L. & C. 444 ; 33 L. 
 J., M. C. 132. 
 
 ^ A mere promise in the future will not sustain the action. State v. Haines, 23 S. 
 C. 170. 
 
 ' An indictment for obtaining money on false pretences is sustained by evidence that 
 defendant induced A. to purchase an interest in a concern which did not exist. Com- 
 monwealth V. Blood, 8 Crim. Law Mag, 89.
 
 FALSE PRETENCES. 6o5 
 
 tencc 
 Dak 
 p. 518. 
 
 Where the prisoner was charged with pretending that he would tell 
 the prosecutor where his horses were, and so obtaining a soverei<'-n it 
 was held that this was not a false pretence of an existing fact and 
 the prisoner ought to have been indicted for ])rctending that he knew 
 as a fact Avhere the horses were. li. v. Douglas, R. & M., C. C 
 E. 462. 
 
 It is a question for the jury, whether the words used by the de- 
 fendant fairly conveyed to the prosecutor a representation of an exist- 
 ing fact. It is for the judge to decide whether they are ca})al)le of 
 such an interpretation, and if they are, it is for the jury to decide 
 whether in fact thev were so intended. R. v. Cooper, 2 Q. B. D. 510 : 
 46 L. J., M. C. 219. 
 
 Combination of several false statements. Very oflen the prisoner 
 has made a series of false statements, some of which are false pretences 
 of existing facts and some were promises or exaggerated statements. 
 R. V. Jennison, infra, p. 506. 
 
 The third count of the indictment charged the defendant with 
 *having falsely pretended to A. C. that he was an unmarried r^rritr 
 man and having thereby obtained a promise of marriage from L 
 the said A. C; that she refused to marry the defendant, and that he 
 falsely pretended, at the time of such refusal, that he was an unmar- 
 ried man, and entitled to bring an action against her for the breach of 
 promise of marriage, by which means he obtained from her 100^. 
 Whereas, in truth, etc., he was not an unmarried man, and not entitled 
 to maintain an action for the breach of promise of marriage against 
 her. The fact that the prisoner was a married man was proved ; and 
 the prosecutrix stated that she being a single woman, and possessed of 
 considerable property, the prisoner had paid his addresses to her, and 
 that she had consented to marry him ; she being ignorant, at the time, 
 that he was already married. She further stated that, after promising 
 to marry the prisoner, she changed her mind, and wished "to be off" 
 the match ; that she intimated as much to the prisoner, and that he, 
 thereu]3on, threatened her with an action at law for breach of promise 
 of marriage, and, he added, that by such proceedings he could take 
 half 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 re- 
 frain from doing so, agreed to pay, and did pay him the sum of money. 
 The money was paid and received on a written stipulation (produced 
 at the trial) that, in consideration of such payment, he (the prisoner) 
 would forego proceedings at law against the prosecutrix for the promise 
 of marriage broken by her. She stated, on cross-examination, that, 
 but for the prisoner's threat of bringing an action, she would not have 
 paid the money ; and that she was induced by such threat to pay it ; 
 and she added that, had she known that the prisoner was a married
 
 656 FALSE PRETENCES. 
 
 man she would not have paid the money. Lord Denman, C. J., 
 allowed the case to proceed, notwithstanding an objection rai'-od to the 
 snfficiency of the evidence. At the close of the case, his lordship left 
 it to the jury to say, whether the money was, in fact, obtained by the 
 false pretence that the prisoner was single, and a verdict of ^'Guilty" 
 Avas returned. On the following day his loixlship intimated that he 
 had conferred Avith Mr. Justice Maule, and that they 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 Avas a single man, 
 and in a condition to intermarry with the prosecuti'ix ; and that Mr. 
 Justice Maale was further of opinion that there was also evidence of 
 the money having been obtained by the false pretence of the prisoner, 
 that he Avas entitled to maintain an action for breach of promise of 
 marriage ; and that such latter false pretence Avas a sufficient false pre- 
 tence within the statute. R. v. Copeland, C. & Mar. 516, 88, 41 E. 
 C. L. 
 
 In R. V. Johnston, 2 Moo. C. C. 255, the indictment was that the 
 prisoner pretended to H. G. H. that he intended to marry her on the 
 8th day of February, and that he had purchased a suit of clothes for 
 the Avedding. and that he Avanted the sum of 41. to pay for the same, 
 by which said false pretences he obtained from the said H. G. H. 41. 
 with intent to cheat and defraud her of the same. To support this 
 indictment, it Avas proved that the prisoner paid his addresses to 
 H. G. H., and that the banns were regularly published in church Avith 
 his sanction. That after the publication of both banns, the prisoner 
 met the said H. G. H. at a draper's shop by appointment, in order 
 that he might there buy a suit of clothes for 41., and asked her for 
 41. to enable him to pay for them. That she accordingly gave him 
 *f^npl *^^' ^'°^' ^^^^^ purpose. The learned Judge (Rolfe, B.) doubted 
 -" A\diether the pretence stated was one on which a conA'iction 
 could take place, and reserved the point. The judges held the con- 
 viction Avrong. Though the evidence in this case to support the 
 court AA'as Aveak, yet it certainly seems doubtful whether the count 
 Avas bad. See the case of R. v. Coj)eland, fnipra, and R. v. Jennison, 
 infra. 
 
 Where the defendant had falsely represented that he was a single 
 man, and that he Avould go to LiA^erpool to furnish a house Avith the 
 money Avhich he demanded, and that he Avould return and marry the 
 prosecutrix, it Avas held that the statement of his being an unmarried 
 man Avas a false pretence of an existing fact, and AA'as essential, for 
 Avithout it he Avould not haA'c obtained the money, and that although 
 it Avas united Avith tAA'O promises, neither of Avhich alone Avould have 
 supported the conviction, yet the conviction AA'as right. R. v. Jenni- 
 son, L. & C. 157 ; 31 L. J., M. C. 147. 
 
 The prisoner falsely told the prosecutrix that she kept a shop at N., 
 and promised the prosecutrix that if she lent her half a soA'creign she 
 should go home with her until she got a situation, and that the money 
 should be paid as soon as they arrived home. Tlie ]irosccutrix lent 
 her the half-sovereign, and the prisoner immediately decamped. The
 
 FALSE PRETENCES. 657 
 
 jury found tliat the prosecutrix parted with the money under the be- 
 lief that the j)risoner kept a shop at N., and that she (the prosecutrix) 
 should ImA-e the money when they arrived home. It was held that 
 the jH-isoner was rightly convicted. R. v. Fry, Dear. & V). C. C. 449 ; 
 27 L. J., M. C. 68. So Avhen the prisoner' pretended that he had 
 bought some skins and liad paid ten shillings on them, and wanted 
 4/f. 10s. to enable him to fetch them away ; all whicli was false, but 
 the prosecutrix, believing it to be true, lent him the ten shillings, 
 with which he decamped ; this was held to be obtaining money 
 by false pretences. R. v. AVest, 27 L. J., M. C. 227 : Dears. & 
 B. C. C. R. 577. 
 
 If the prisoner makes several statements which are true, and which 
 influence the mind of the prosecutor, or if the prosecutor's mind is 
 influenced by other circumstances, yet if the prisoner makes one false 
 statement Avhich materially aifects the mind of the prosecutor, that 
 is sufficient to support a conviction. R. v. English, 12 Cox, C. C. 
 171 ; R. V. Lince, 12 Cox, C. C. R. 451. See also R. v. Hewgill, 
 Dears. C. C. 315. 
 
 It seems that if the indictment alleges two circumstances conducing 
 to the fraud, and the jury find only a general verdict of guilty, and as 
 to one of the circumstances the allegation in the indictment does not 
 disclose a "false pretence," the indictment will be bad on a writ of 
 error. R. v. Wickham, 10 Ad. & Ell. 34, 37 E. C. L.; but if the 
 jury had found specially that the false pretence, which was properly 
 laid, had been proved, the conviction would have been good. See this 
 case cited infra, and see j)ost, p. 515. 
 
 Pretence made by acts, not words. Very frequently false pre- 
 tences have been made by means of acts calculated to deceive, for 
 instance, as by assuming a character or an appearance of position and 
 credit, or by issuing documents purporting to be of some value.^ 
 
 So where a person at Oxford, who was not a member of the uni- 
 versity, went to a shop for the purpose of fraud, wearing a commoner's 
 gown and cap, and obtained goods ; this was held a sufficient false 
 *pretence to satisfy the statute, though nothing passed in words, r.^ ^-^.m 
 R. V. Barnard, 7 C. & P. 784, 32 E. C. L. ^ 
 
 The indictment stated that the prisoner falsely pretended to A. B. 
 that he was a captain in the East India Company's service, and that 
 a certain promissory note which he then delivered to A. B., was a 
 valuable security for 21^,; by means of which false pretences he ob- 
 tained from A. B. 81. 15s. It was held that as it did not appear but 
 that the note was the prisoner's own note, or that he knew it to be 
 worthless, there was no sufficient false pretence in that respect ; and 
 that, as the two pretences were to be taken together, the indictment 
 was bad ; and the judgment given upon it was reversed in error. 
 Wickham v. Reg., 10 Ad. & E. 34, 37 E. C. L. And it is said in 
 
 ^ Guilty intent may be inferred from the commission of acts which will inevitably 
 deprive the owner of his property. Commonwealth v. Schuyler, 1 County Ct. Eep. 
 (Pa.) 403. 
 
 42
 
 658 FALSE PRETENCES. 
 
 R. V. West, Bears. & B. -575, 583, that if the jury had found that the 
 money had been obtained by means of the false pretence of being a 
 captain, the conviction would have been good. See also R. v. Gard- 
 ner, ante, p. 501. 
 
 The case of R. v. Abbott, cited infra, p. 511, is also a case where 
 the i^oods were obtained by an acted false pretence in the course of a 
 contract. 
 
 With respect to the presenting of false cheques or notes, etc., the 
 following cases have been decided : — 
 
 The j)ris()ner was indicted for unlawfully producing to A. B., etc., 
 of the Nottingham post-office, a money order for the payment of one 
 pound to one John Storer, and for unlawfully pretending to the said 
 A. B. that he was the person named in such order, with intent, etc., 
 whereas, etc. It appeared in evidence that the prisoner had gone to 
 the post-office, and inquired for letters for John Story, whereupon, by 
 mistake, a letter for John Storer, containing the money order Mas de- 
 livered to him. He remained a sufficient time to read the letter, and 
 then presented the order to A. B., who desired him to write his name 
 upon it, which he did in his real name, John Story, and received the 
 money. The terms of the letter clearly explained, that the order could 
 not have been intended for the prisoner, who, on being apprehended, 
 denied that he had ever received the money, but afterwards assigned 
 the want of cash as the reason of his conduct. Chambre, J., left it to 
 the jury to find against the prisoner, if they were satisfied that he had, 
 by his conduct, fraudulently assumed a character which did not belong 
 to him, although he made no false assertions. The jury found him 
 guilty. The judges held the conviction right, being of opinion, 1st, 
 that the prisoner writing his own name on the order, did not amount to 
 a forgery ; and 2ndly, that by presenting the order for payment, and 
 signing it at the post-office, he was guilty of obtaining money by a 
 false pretence within the statute. R. v. Story, Russ. & Ry. 81. See 
 R. V. Freeth, Id. 127. 
 
 If a person with intent to defraud gives a cheque upon a banker 
 with whom he keeps no account, this is a false pretence within the 
 statute. Where a prisoner was indicted for so doing, Bayley, J., said, 
 "this point has been recently before the judges, and they were all of 
 opinion that it is an indictable offence fraudulently to obtain goods by 
 giving in payment a cheque upon a banker with whom the party 
 keeps no cash, and which he knows will not be paid." R. v. Jack- 
 son, 3 Camp. 370. So where the prisoner was charged with falsely 
 pretending that a post-dated cheque, drawn by himself was a 
 good and genuine order for 25/., and of the value of 25/., whereby he 
 obtained a watch and chain, the judges held that the conviction was 
 
 *5081 *"S^^*- ^' '"' P^^^^^' 7 C. & P. 825, 32 E. C. L.; 2 Moo. C. 
 -I C. 1. So where the prisoner, who formerly had an account at 
 a bank drew cheques upon the bank and thereby obtained goods, but 
 he knew that the account was virtually closed, and that his cheques 
 would not be paid. It was held that there was evidence of the false 
 pretence that the cheques were good and valid orders for the payment
 
 FALSE PRETENCES. 659 
 
 of their amount, and that the prisoner was riglitly convicted. R v 
 Hazelton, L. R. 2 C. C. 134 ; 44 L. J., M. C. 11 ; and see; also R. v. 
 Dowey, 37 L. J., M. C. 52. Where the prisoner was indicted for ob- 
 taining goods by false pretences from several persons by sending half 
 bank notes, and requesting goods to the value of the entire noteTto be 
 sent to her, and by pretending that she had in her custody the corres- 
 ponding halves, and it was proved that she had not the corresponding 
 half notes in her custody, having, in fact, sent them to other persons 
 with similar requests, it was held by the whole court, consisting of 
 seven judges, that she was rightly convicted. R. v. Murphy, 13 Cox, 
 C. C. R. (Irish), 298. This decision is directly contrary to a rnling 
 of Pennefather, B., in R. v. Masterson, 2 Cox, C.'C. (Irish), 100, which 
 case does not appear to have been referred to in R. v. Murphy. See 
 2 Russ. Cri. 551 (l), 5th ed. 
 
 Fraudulently offering a "flash note" in payment, under a false 
 pretence that it is a Bank of England note, is within the statute. 
 R. V. Coulson ; 1 Den. C. C. 592 ; 19 L. J„ M. C. 182 ; or the 
 note of a bank which has stopped payment. R. v. Jarman, 14 Cox, 
 C. C. R. 111. 
 
 False account of wages paid, work done, weight delivered, etc. 
 
 The prisoner was indicted under the 30 Geo. 2, for obtaining money 
 under false pretences. The prosecutors were clothiers, and the pris- 
 oner a shearman in their service, and employed as superintendent to 
 keep an account of the persons employed, and the amount of their 
 wages and earnings. At the end of each week he was supplied with 
 money to pay the different shearmen by the clerk of the prosecutors, 
 who advanced to him such sums as, according to a written account or 
 note delivered to him by the prisoner, were necessary to pay them. 
 The prisoner was not authorized to draw money generally on account, 
 but merely for the sums actually earned by the shearmen ; and the 
 clerk was not authorized to pay any sums, except such as he carried 
 in, in his note or account. The prisoner delivered to the prosecutor's 
 clerk a note in writing, in this form, "9 Sept. 1796, 44^. lis. Od," 
 which was the common form in which he made out the note. In a 
 book in his handwriting, which it was his business to keep, were the 
 names of several men who had not been employed, who were entered 
 as having earned dilferent sums of money, and also false accounts of 
 the work done by those who were employed, so as to make out the 
 sum of 4:4:1. lis. Od. The prisoner being found guilty, on a case re- 
 served for the opinion of the judges, it was argued that the statute did 
 not extend to cases where there was a previous confidence. At first 
 there was some diversity of opinion ; but finally they all agreed, that 
 if the false pretence created the credit, the case was within the statute. 
 They considered that the defendant would not have obtained the 
 credit, but for the false account he had delivered in ; and, therefore, 
 that he was properly convicted. The defendant, as was observed by 
 one of the judges, was not to have any sum that he thought fit on 
 ♦account, but only so much as was worked out. R. v. Witch- r*5Q9 
 ell, 2 East, P. C. 830. '■
 
 660 FALSE PRETENCES. 
 
 Falsely pretending that a certain quantity of v/orlc has been done 
 would be witliin the statute, but a mere overcharge for work would 
 not. In an indictment for obtaining money by false pretences the pre- 
 tence stated in some of the counts was, that the prisoner unlawfully, 
 knowingly, and designedly, did falsely pretend that he having exe- 
 cuted certain work, there was a certain sum of money due and owing 
 to him for and on account of the work, liy means of wliicli said false 
 pretence the prisoner did then unlawfully obtain, etc., with intent 
 tiu!ro!n' them to defraud : in other counts, the false pretences were 
 stated to be that the prisoner did falsely pretend that the money v/as 
 due and owing. It was proved that the defendant worked for the 
 prosecutors as a journeyman, and that the quantities of the ^^^ork 
 done by him for them during each week were entered in a book kept 
 exclusively for that purpose. The prices for the work so entered were 
 placed in a column opposite to each quantity of work, and were added 
 up on behalf of the prosecutors at the end of each week. The weekly 
 t(3tals of these prices were entered by them in this account book, and 
 tiie amount of those totals was paid by them to the defendant as the 
 ascertained sum of money due to him for work done on the production 
 by him of the book. It was further proved that, after these v>'Cekly 
 totals had been entered as above, the defendant had altered them into 
 larger amounts, and then had procured payments of those larger 
 amounts, and restored the figures of the original totals. The de- 
 fendant was found guilty. After verdict had been recorded, it was 
 objected that the indictment did not disclose any false pretence within 
 the meaning of the statute. Parke, B., "An indictment for false 
 pretences must disclose a false pretence of an existing fact. In this 
 case there is merely a fraudulent claim in respect of a quantum 
 meyuit of the prisoner's work and labor ; and the indictment would 
 be supported by evidence that the prisoner made a false estimate of 
 the value of his work. I do not think that is an indictable offence. 
 The short ground of my judgment is, that the indictment contains 
 no false statements of an existing fact. The decision in R. i\ Woolley, 
 infra, p. 514, went wholly on the facts, and the form of the indictment 
 was not considered by the court. In this case the false pretence con- 
 sists of nothing more than what might be mere matter of opinion, 
 and it would be frightful if every person who made an overcharge 
 should be liable to a criminal prosecution." Wightman, J., Cromp- 
 ton, J., and Crowder, J., all thought that the indictment was defective, 
 as there was no statement of a false pretence of an existing fact, and 
 that the allegations might be proved by evidence of a wrongful over- 
 charge. R. V. Oates, Dears. C. C. 459. By means of a false wage- 
 sheet the prisoner obtained from his master a cheque for the amount 
 stated in the sheet to pay the men's wages. The cheque was in- 
 formally dra^vn, and payment was refused by the bank. The 
 prisoner returned it to his master, telling him of the cause for non- 
 payment ; and the master tore it up, and gave another, which the 
 prisoner cashed, and appropriated the difference between what was 
 really due for wages, and what was falsely stated to be due in the
 
 FALSE PRETENCES. QQl 
 
 wage-sheet. It was held tliat the false pretence was a continuing one, 
 and that the second cheque Avas obtained thereby equally with the 
 first. R. V. Greathoad, 14 Cox, C. C. R. 108. 
 
 A baker contracted with tiie guardians of the poor of a parish to 
 ♦deliver to the out-door poor, as the guardian should direct, r^^-,^ 
 loaves, each weighing 31 lbs., at Id. a loaf The course of busi- •- '^ ^ 
 ness was for the relieving officer to give tickets to the out-door poor, upon 
 which was specified the number of loaves they Nvere to receive. Upon 
 receiving their loaves, the poor persons gave up their tickets to the 
 baker, and he, in the ensuing week, returned them to the relieviu"-- 
 officer with a note stating the wliole niunber sent. He was then 
 credited in an account between him and the guardians accordingly, and 
 the account was paid at certain specified times. The baker knowingly 
 delivered three loaves of less weight than 3i lbs., but charged them to 
 the guardians as of full weight : and it was held that he was properly 
 convicted of attempting to obtain one shilling, the value of the differ- 
 ence in weight, from the guardians by false pretences. R. v. Eagleton, 
 1 Dears. C.'^C. 515; 25 L. J., M. C. 39. See this case, ante, p. 396. 
 In this case, Parke, B., in delivering the judgment of the court, said, 
 "It was contended for the prisoner that the indictment for attempting 
 to obtain money by false pretences could not be supported, because the 
 offence of obtaining money under false pretences w^as committed only 
 when the money was obtained wholly without consideration, and the 
 offence was analogous to larceny, of which the prisoner might, by stat. 
 7 & 8 Geo. 4, c. 29, s. 53 (now repealed), be convicted in case the 
 offence should appear on the trial to be larceny. There are many 
 cases, no doubt, as is mentioned in that section, in which the distinc- 
 tion is very subtle between the misdemeanor of obtaining money under 
 false pretences and larceny, and it was very proper to make that pro- 
 vision in the statute ; but it does not follow that all the cases of ob- 
 taining money by false pretences are of that description. But it was 
 strongly contended that the statute against obtaining money by false pre- 
 tences applied to no cases where there was some bargain or consideration 
 for giving money, and so some cause for the giving other than the false 
 pretence ; as where goods were sold under a false representation of the 
 quality or value, and the purchaser had the commodity ; other-vvise the 
 range of indictable offences would be greatly extended, and breaches 
 of contract made the ground of criminal proceedings. If this had 
 been the sale of bread to the prosecutor.i vnth a false representation of 
 the weight, and an attempt thereby to receive a larger price than was 
 really due, we should have had to decide whether an indictable offence 
 had iDcen thereby committed, and should have had to consider the case 
 of R. V. Kenrick, infra, and also tliat of R. v. Abbott, infra, p. 511, 
 decided upon the authority of R. v. Kenrick. In all these cases, the 
 prosecutor did not part, with his money merely on account of the false 
 pretences, but principally because he had a consideration for it in the 
 property vested in him by the contract. But this is not the case of the 
 sale of goods by a false pretence of their weight, it is an attempt to 
 obtain money by the false and fraudulent representation of an antece-
 
 6G2 FALSE PRETENCES. 
 
 dent fact, viz., that a greater number of pounds of bread had been 
 delivered than had been actually delivered, and that representation 
 made with a view of obtaining as many sums of twopence as the lunn- 
 bcr of pounds falsely pretended to have been furnished amount to. In 
 this respect the case exactly resembles that of R. v. Witchell, supra, 
 where the prisoner obtained money by the iiilse pretence that certain 
 workmen had earned more than they really had, and there since are 
 cases of similar convictions where the prisoner ialsely stated the (|uan- 
 tity of work which ho had done according to which he was to be paid ; 
 ^r--.-.n *we therefore think that the indictment would be maintainable 
 J if the money had been paid. 
 
 False statement as to quality, quantity, or weight in course of 
 a contract — puff. 1. As to quality. — The fourth count of an indict- 
 ment stated, that the defendants unlawfnlly, knowingly, and design- 
 edly did falsely ])retcnd to G. W. F., that a phaeton, mare, and geld- 
 ing, which the dexendants oifered him for sale, had been the property 
 of a lady then deceased, and were then the property of her sister, and 
 were not the property of any horsed ealer, and that the mare and geld- 
 ing were then respectively quiet to ride and drive. Evidence was 
 given that the bargain had been made by G. W. F. in consequence of 
 his belief in these representations : that they were false; and that the 
 horses were vicious. The jjrisoner was convicted, and a rule Avas ob- 
 tained for arresting the judgment on the ground that the indictment 
 was insufficient, and on other grounds ; as to this point Lord Den man 
 said, in delivering the judgment of the court, "a general question 
 seems here to be raised, whether, if money be obtained though the 
 medium of a contract between the defendant and the party defrauded, 
 the charge of false pretences can be maintained. Questions approach- 
 ing this have been raised in the criminal courts. With some plausi- 
 bility the tiling obtained though the false pretence may be said to be 
 the contract, and not the money which is paid in fulfilment of it, and 
 which the party is probably by its terms liable to repay." His 
 Lordship then referred to a case of R. v. Adamson, 2 Moo. C. C 286, 
 and concluded thus, " We think that in this case the two ingre- 
 dients of the offence of obtaining money under false pretences were 
 proved by the evidence. The pretences were false ; and the money 
 was obtained by their means. The count therefore is good." R. v. 
 Kenrick, 5 Q. B. 49, 31 E. C. L. The indictment charged that the 
 prisoner having in his possession divers lbs. weight of cheese of little 
 value and of inferior quality, and contriving and intending to cause 
 it to be believed that said cheese was of good flavor and of excellent 
 quality, and also having in his possession divers pieces of cheese called 
 ''tasters" of good flavor, taste, and quality, and contriving and in- 
 tending to cheat one W. B,, unlawfully and knowingly did falsely 
 pretend to the said W. B., that the said pieces of cheese called "tast- 
 ers," which he the said prisoner then and there delivered to the said 
 W. R, were part of the said cheese then oifered for sale. It was 
 proved at the trial that the prisoner kept a cheese stall at F., and sold
 
 FALSE PRETENCES. GG3 
 
 to W. B. a quantity of cheese at 6|d. per lb. At the time the j)ri8- 
 oner offered the cheese for .sale, he bored two of them with an iron 
 scoop, and produced a piece of cheese which is called a "taster" fur 
 the prosecutor to taste, and the prosecutor did so. The cheese, liow- 
 ever, which he^ so tasted, had nut in fact been extracted irom the 
 cheese from which it was pretended, but was a taster of another and 
 superior kind of cheese, which the prisoner had privilv inserted into 
 the top of the scoop. The prosecutor would not have l)ou<,dit the 
 cheese unless he had believed that the taster had been extracted irom 
 it. The cheese which had been so bought was delivered to tlie j)rose- 
 cutor and he retained it. It was of a very inferior kind. This and 
 two other similar cases were reserved for the opinion of the judges, 
 and they held the convictions right, on the authority of R. v. Kenrick, 
 supra; R. v. Abbott, 1 Den. C. C. 273. See also R. v. (loss, 29 
 L. J., M. C. 86, pod, p. 514, where the facts were almost identical. 
 
 *The prisoner called at a pawnbroker's shop with a chain, r^-io 
 on which he asked for an advance of ten shillings. The pawn- L '^ -■ 
 broker asked if the chain was silver; the prisoner replied that it Avas. 
 The pawnbroker then examined the chain, and tested it with an acud, 
 which the chain withstood. The pawnbroker then lent the prisoner 
 ten shillings on the chain, which he took as a pledge. He paid the 
 money, relying on his own examination and test, and without ])lacing 
 any reliance on the statement of the prisoner. Evidence was admitted 
 to prove that the prisoner a few days afterwards offered a chain similar 
 in appearance to another pawnbroker, requesting him to advance ten 
 shillings upon it. Twenty-six similar chains were found on the person 
 of the prisoner when he was apprehended. The chains were worth a 
 farthing an ounce, being much less than ten shillings each. The 
 recorder told the jury that, though they could not convict of the 
 offence charged in the indictment, they might convict the prisoner of 
 an attempt, which they did. The judges, upon the authority of R. v. 
 Abbott, supra, upheld the conviction ; Jervis, C. J., apparently, being 
 the only one who approved of the decision ; Parke, B., who was 
 present at the argument, but gave no judgment, was very strong 
 against the conviction. R. v. Roebuck, 25 L. J., M. C. 101. 
 
 The prisoner induced a pawnbroker to advance him money on some 
 spoons which he represented as silver-plated spoons, which had as 
 much silver on them as "Elkinton's A" (known class of plated 
 spoon), and that the foundations were of the best material. The 
 spoons were plated with silver, but were to the prisoner's knowledge of 
 very inferior quality, and not worth the money advanced on them. It 
 was held by the court (dissenfiente Willes, J., and dubitanie Bramwell, 
 J.), that this was not an indictable offence. R. v. Bryan, Pears. & 
 B. C. C. 265 ; 26 L. J., M. C. 84. As was pointed out by Erie, C. J., 
 in R. V. Goss, infra, the judgment of Willes, J. (which was very 
 elaborate, and appears to be that also of Jervis, C. J.), proceeded not 
 so much on a different view of the law, but on a difPerent May of 
 viewing the facts. And the following remarks of Willes, J., have 
 been frequently alluded to as particularly lucid and applicable to cases
 
 6(54 FALSE PRETENCES. 
 
 of this kind. He says, " if the matter was a simple commendation of 
 tlie goods without any specific falsehood of what they were : if it was 
 entirely a case of one person dealing with another in the way of busi- 
 ness, who might expect to pay the price of the articles which were 
 otfered for the purpose of pledge or sale, and knew what they were, I 
 apprehend it would easily have been disposed of by the jury, who 
 were to pass an opinion upon the subject, acting as persons of conmion 
 sense and knowledge of the world, and abstaining from coming to any 
 conclusion as that praise of that kind should have the eifect of making 
 the party resorting to it, guilty of obtaining money by a false pre- 
 tence. I say nothing on the effect of a simple exaggeration except 
 that it appears to me that it would be a question for the jury, in each 
 case, whether the matter was such ordinary praise of the goods (dolus 
 bonus) as that a person ought not to be taken in by it, or whether it 
 was a representation of a specific fact material to the contract, and 
 intended to defraud, and did defraud, and by which the money in 
 question was obtained. * * * j^ is said that the effect of 
 establishing a rule, such as that for whicli I contend, wonld be 
 to interfere with trade ; no doubt it would, and I think it ought 
 ^^-,0-, to prevent trade being carried on in the way in which *it 
 J is said to be carried on. * * * I am far from wishing to 
 interfere with the rule as to simple commendation or praise of 
 the articles which are sold, on the one hand, or to fair cheapening on 
 the other ; those are things persons may expect to meet with in the 
 ordinary and usual course of trade ; but I cannot help thinking that 
 peoi)le ought to be protected from any such acts, as those I have re- 
 ferred to, being resorted to for the purpose and with intent to cheat 
 and defraud purchasers'of their money, and tradesmen of their goods. 
 If the result of it would be to multiply prosecutions, that must be 
 because we live in an age in which fraud is multiplied to a very great 
 extent, and amongst others in this form. I agree in what the late C. 
 J. Jervis said, as peculiarly applicable to such a supposed state, though 
 I hope not to ordinary trade, that if there be such a commerce as re- 
 quires to be protected by the statute being limited in the mode pro- 
 posed, it ought to be made honest and conform to the law, and not the 
 law bent to the purpose of allowing fraudulent commerce to go on." 
 R. V. Bryan, supra. 
 
 In R. V. Ardley, L. R. 1 C. C. R. 301 ; 40 L. J., M. C. 85, the 
 case of R. v. Bryan, sup7'a, is commented upon, and it was pointed out 
 that if the prisoner in that case had represented the spoons as being 
 in fact Elkington's manufacture when he knew they were not, he 
 would have been rightly convicted, and in the present case, where the 
 jury had found that the prisoner represented a chain as in fact 15-carat 
 gold when he knew in fact tiiat it was nothing of the sort, he was 
 held rightly convicted. Where the prisoner was indicted for falsely 
 pretending that he was in the tea trade in Leicester, and that he had 
 good tea for sale, and that he did sell 16 packages which he falsely 
 pretended were composed of good tea, and it was proved that he A\\as 
 not in the tea trade in Leicester, and that the mixture he sold was not
 
 FALSE PRETENCES. 665 
 
 tea at all, he was held to be rightly convicted. Kelly, C. B. in de- 
 livering the judgment of the court said, ''To call tea good when it 
 was not good might be mere commendation, and not the i^uhjcct 
 of a criminal prosecution." R, v. Foster, 2 Q. B. D. 301 • 4(j L J 
 M. C. 128. ' ■ '' 
 
 A false representation of the value of a business upon the sale of 
 the goodwill will not, it seems, support an indictment for ol)taining 
 money by false pretences, nor will such a representatiim when made 
 for the purpose of obtaining a deposit from a proposed assistant in the 
 business. R. v. Williamson, 11 Cox, C. C. 328. But whore it is not 
 a question of degree, and the fact is there is no business M-hatever, 
 there is no doubt that the prisoner may be convicted. R. v. Crab, 11 
 Cox, C. C. 85, C. C. R. 
 
 2. As to quantity or weight. — The prisoner having agreed with the 
 prosecutrix to sell and deliver a load of coal at a certain ])rice per ewt., 
 delivered a load which he knew to be only 14 cwt,, but which he 
 falsely and fraudulently pretended to be 1 8 cwt., stating that it had 
 been weighed at the colliery ; and he produced a ticket which showed 
 the weight to be 18 cwt., and which ticket he said he had made out 
 himself when the coal was weighed, and he thereupon received the 
 money for 18 cwt. It was held that upon this evidence the prisoner 
 Avas properly convicted of obtaining the money of the prosecutrix by 
 false pretences. R. v. Sherwood, Dears. & B. C. C. 251 ; 26 L. J., 
 M. C. 8. The attention of the court was drawn to R. v. Reed, 7 C. & 
 P. 848, 32 E. C. L., a precisely similar case, in which the twelve judges 
 held the other way, but it was considered that that case was already 
 ♦overruled by R. v. Abbott, R. v. Bryan, and R. v. Roebuck, r=i-.ri4 
 supra, p. 512. ■- 
 
 In R. V. Goss, 29 L. J., M. C. 86, Bell, C. C. 208, it was attempted 
 to induce the Court of Criminal Appeal to reconsider the decision in 
 R. V. Abbott, supra, p. 511, the facts being precisely similar. But the 
 court confirmed that decision, and held that the prisoner was rightly 
 convicted. And in R. v. Ragg, which was argued at the same time as 
 R. V. Goss, and which Avas similar to that of R. v. Sherwood, supra, 
 they also upheld the conviction. The case of R. v. Bryan, supra, p. 
 512, was relied on by the counsel for the prisoner, but Erie, J., pointed 
 out in the judgment of the court that there the false representation was 
 a matter of undefined opinion, whereas here the statement was not one 
 of undefined opinion, or of exaggerated praise, but a false pretence, of 
 a definite flict, about which, with the means of information which the 
 prisoner had, there could be no mistake. 
 
 The difference between a mere lie and an indictable false pretence 
 upon the subject of false weights is thus stated by Bramwell, B.: "If 
 a man is selling an article, such as a load of coal for a load of coal, for 
 a lump sum, and makes a false statement as to its weight or quantity, 
 for the purpose of inducing the intended purchaser to complete the 
 bargain, that is not a false pretence within the statute. But if he is 
 selling it by quantity, and says there is a greater quantity than there 
 really is, and thereby gets paid for a quantity of coal over and above
 
 6G6 FALSE PRETENCES. 
 
 the quantity delivered, I am quite satisfied he is indictable." E.. v. 
 Ridgway, 3 F. & F. 838 ; and see also R. v. Lee, L. & C. 418 ; 35 
 L. J., M. C. 171. 
 
 Pretences obviously false. Although the false pretences are so 
 obviously false that no reasonable person ought to have been taken in 
 bv tliem, yet if in fact the property was olitained by means of the false 
 pretences, it is no defence to say that the prosecutor ought not to have 
 been deceived.^ 
 
 It appeared that the prisoner was the secretary of an Odd Fellows' 
 Lodge, whose duty it was to receive money for the mcml)ers at lodge 
 hours, but not at other times. The prisoner made a written demand 
 on J. B., a member, in the following form : — " I hereby give you 
 notice, that you owe to your lodge for contributions, etc., the sum of 
 13s. dd., due on the 20th instant." The 20th of November was the 
 ensuing lodge-night. Prisoner brought this demand himself to J. B., 
 who said, " Do I owe that amount, 13s. 9<i. ?" Prisoner said, " You 
 do." J. B. said, " It is not very long since I paid a sum at the 
 lodge to you." Prisoner said, " That is what you owe." J. B. paid 
 him. The real sura wdiich would have been due on the 20th of 
 November from J. B. was 2s. 2c?. The prisoner did not pay over to 
 the treasurer the 13s. 9c?. received from J. B. It further appeared 
 that W. B. was a member of the lodge, and that on the 18th of June 
 he presented himself at the lodge, it being a lodge-night, and that the 
 prisoner told him he could not be admitted till he was clear. W. B. 
 asked what was due. The prisoner said, 13s. 5d. W. B. gave him 
 a sovereign, and Avas then admitted. The prisoner paid over to the 
 treasurer 5s. only, which was the sum really due for W. B. The 
 prisoner was found guilty on both indictments, and a case was reserved 
 as to whether there was in either a false pretence within the meaning 
 of the statute. In the argument Lord Campbell said, " What is your 
 definition of a false pretence which would exclude this case ? Do you 
 j^^-. p.-| *mean that it must be a representation of some fact the truth 
 ' -I of which cannot be ascertained ?" Alderson, B. : — " If a man 
 represents as an existing fact that which is not an existing fact, and so 
 gets your money, that is a false pretence : for instance, that a certain 
 church had been built, and that there was a debt still due for the 
 building, when there was no debt due, that would be a false pretence, 
 yet the matter might easily be inquired into and ascertained. Or take 
 the common case : The prisoner says, ' I am sent by Mrs. T. for a pair 
 of shoes.' Is not that a false pretence? Yet inquiry can be made, 
 and after the thing has happened usually is made and the falsehood 
 detected." Lord Campbell : — " It seems that the legislature meant to 
 prevent such gross frauds as may easily be perpetrated, though an in- 
 quiry might easily be made. Suppose a tax-gatherer demands money 
 for taxes alleged to be due ; you inquire and find that the persons 
 through whom you usually make such payments have not paid it, and 
 you accordingly pay it, though in reality nothing be due, would not 
 ^ Watson V. State, 16 Tenn. 604.
 
 FALSE PRETENCES. 667 
 
 that be a false representation ?" Parlce, B., referred to 2 Tliiss. on 
 Cri. 5th ed., 575 {j), and to the observations of Lord Dennian in R. 
 V. Winkham, 10 Ad. & EL 34, 37 E. C. L.,and said that Mr.CJroave's 
 view seemed to be correct. Erie, J. : — '' It was once thouolit that the 
 law was only for the protection of the strong and prudent ; tiiat notion 
 has ceased to prevail." Alderson, B. : — '< The old law about a false 
 token was a much more stringent rule. Wliy sliould Ave not hold 
 that a mere lie about an existing fact, told for a fraudulent ])ur])()se, 
 should be a false pretence ?" Lord Campbell : — " If a tradesman 
 knowing that a customer owes him nothing M'hatever, savs that he 
 owes him 51. and gets the money, I think he comes within the 
 statute. I entirely agree with the observations of Lord Denman in 
 R. V. Wickham, and think this case clearly within the statute." 
 The rest of the court concurred. R. v. Woolley, 1 Den. C. C. 559. 
 
 The prisoner fraudulently pretended that a genuine 11. Irish bank- 
 note was a 51. note, and thereby obtained the full change for a 5/. 
 note. It was held that he Avas properly convicted of obtaining money 
 by false pretences, although the person to whom the note was passed 
 could read, and the note upon the face of it afforded ample means of 
 detecting the fraud. R. v. Jessop, Dears. & B. C. C. 442 ; 27 L. J., 
 M. C. 70. 
 
 3. THE PROPERTY OBTAINED. 
 
 •• Chattel, money, or valuable security." The words used by the 
 statute are any " chattel, money, or valuable security," and therefore 
 the thing obtained must come within the meaning of these words. 
 The meaning of " valuable security " is given by the interpretation 
 clause of the Act, see post, tit, " Larceny," and as to what are " goods 
 and chattels " and wliat are " valuable securities " generally, see 
 the cases as to larceny of written instruments, post, " Written In- 
 struments." 
 
 An unstamped order for the payment of money Avhich ought to be 
 stamped under the 55 Geo. 3, c. 184, was held not to be a valuable 
 security within the statute — R. v. Yates, 1 Moo. C. C. 170. But see 
 R. V. Watts, 2 Den. C. C. 14, infra, tit. " Larceny," " Possession obtained 
 by Servants," and " Written Instruments," and 24 & 25 Vict, c. 96, s. 1. 
 G., a secretary to a burial society, was indicted for falsely pretending 
 that a death had occurred, and so obtaining from the president an 
 *order on the treasurer in the following form : — " Bolton Uni- r*c-i g 
 ted Burial Society, No. 23, Bolton, Sept. 1st, 1853. Mr. A. L 
 Entwistle, Treasurer. Please to pay the bearer 21. 10s. Greenhalgh, 
 and charge the same to the above society, Robert Ford. (Signed) B. 
 B., President." It was held that this was a valuable security within 
 the meaning of the repealed statute 7 & 8 Geo. 4, c. 29, s. 53, as ex- 
 plained by s. 5, see the 24 & 25 Vict. c. 96, s. 1, infra, tit. " Larceny." 
 R. V. Greenhalgh, Dears. C. C. 267. 
 
 The prisoner was convicted on an indictment which charged Inm 
 with obtaining a valuable security by false pretences. The facts
 
 668 FALSE PRETENCES. 
 
 were that the prisoner falsely represented to the prosecutor that a 
 third person was buying up a quantity of leather for him which was 
 to come into his warehouse that afternoon. The prosecutor there- 
 uj)()u agreed to purchase the leather and to accept a bill for the 
 amount of the purchase-money. The prisoner then handed to the 
 prosecutor a bill drawn in the usual way, which tlic prosecmtor 
 accepted and returned to the prisoner. The prisoner negotiated the 
 bill, and got money for it. It was held that the indictment could not 
 be supported, as the prisoner had obtained nothing from the prose- 
 cutor, but had only by his fraud induced him to sign the bill. R. v. 
 Danger, Dears. & B. C. C. 307. But this case is now met by the 24 
 & 25 Vict. c. 9G, s. 90, supra, p. 498. 
 
 A railway pass-ticket, enabling a person to travel free on the 
 journey, is a " chattel " within the statute. " The ticket," said 
 Pollock, C. B., in delivering the judgment of the court, "while in the 
 hands of the party using it, wns an article of value, entitling him to 
 travel without farther payment ; and the fact that it was to be re- 
 turned at the end of the journey does not affect the question." R. v. 
 Boulton, 1 Den. C. C. R. 508 ; 19 L. J., M. C. 67. As to the fact of 
 its having to be returned at the end of the journey, see R. v. Kilham, 
 ante, p. 501. 
 
 The property need not be in existence at the time when the false 
 pretence is made. R. v. Martin, supra, p. 502. 
 
 Obtaining a dog by false pretences is not an obtaining a cliattel 
 within the repealed statute 7 & 8 Geo. 4, c. 29, as dogs are not 
 the subject of larceny. R. v. Robinson, 1 Bell, C. C 34 ; 28 L. J., 
 M. C. 58. 
 
 The defendant was indicted for obtaining money under false pre- 
 tences. The first count stated the false pretences by which the 
 defendant procured the prosecutors to cash a cheque in favor of 
 one Jacob, and concluded thus, " and obtained from them the 
 amount of the cheque to be paid to the said Jacob, and further 
 advances to him to answer other cheques drawn by him on the 
 prosecutors, viz., etc., with intent, etc." In the second count it was 
 alleged, that the defendant by means, etc., obtained a large sum of 
 money, to wit, etc., from the prosecutors, and also the cheque men- 
 tioned to be paid to the said Jacob, with intent, etc. It apjjeared 
 in evidence, that in order to induce the prosecutors, who were the 
 defendant's bankers, to give him credit and honor his cheques, he 
 delivered to them a bill drawn by him upon a person with whom 
 he had no account, and which had no chance of being paid. The 
 prosecutors paid the amount of the cheque to Jacob. The defendant 
 was convicted, and on a case reserved for the opinion of the judges, 
 they were of opinion that the prisoner could not be said to have 
 obtained any specific sum on the bill ; all that was obtained was 
 
 * 
 
 517] 
 
 * credit on account, and they therefore held the conviction wrong. 
 
 R. V. Wavell, 1 Moody, C. C. 224. In R. v. Garrett, supra, 
 p. 502, where the prisoner by drawing on L. & Co., induced W. & 
 Co., at St. Petersburg, to advance him money, it was held that he
 
 FALSE PRETENCES. ggg 
 
 could not be convicted of obtaining money by false pretences from L. 
 & Co., as he had obtained nothing from them, not even credit. Camp- 
 bell, C. J., in giving judgment, said, " no advantage could arise to the 
 prisoner from the cheque being honored. He had gained his full ob- 
 ject at St. Petersburg. It was a matter of perfect indiirerenc(; to him 
 whether W. & Co. were paid by L. & Co. or not." In II. v. Eagleton 
 supra, p. 510, all that the prisoner obtained was credit in account be- 
 tween him and the prosecutor. The money was not actually due till 
 after the trial of the prisoner took place, but he was nevertlieless held 
 to be rightly convicted of attempting to obtain the money. See also 
 R. V. Witchell, supra, p. 508. 
 
 It is sufficient for the prosecutor to prove that some part of the 
 goods, etc., stated in the indictment (for the rule in this respect is the 
 same as in larceny, see that title), were obtained from him by the false 
 pretences used. 
 
 Proof of the false pretences being made. That the false pretences 
 were made must be proved as laid. Where in the averment of the 
 pretence it was stated " that the defendaut pretended that he had paid 
 a certain sum into the Bank of England," and the witness stated that 
 the words used were " the money has been paid at the bank," Lord 
 Ellenborough said, " In an indictment for obtaining money by false 
 pretences, the pretences must be distinctly set out, and at the trial they 
 liiust be proved as laid. An assertion that money has been paid into 
 the bank, is very different from an assertion that it had been })aid into 
 the bank by a particular individual. The defendant must be acquitted. 
 R. V. Plestow, 1 Camp. 494. There the assertion that an individual 
 had paid the money was not proved. See per Maule, J., in R. v. Hew- 
 gill, 1 Dears. & B. C. C. R. 322. But where the indictment charged, that 
 the defendant having in his custody a certain parcel to be delivered, etc., 
 for which he was to charge Qs., delivered a ticket for the sum of 9s. lOd., 
 by means, etc., and it appeared in evidence that the parcel mentioned in 
 the indictment was a basket of fish, it was objected that this was a vari- 
 ance ; but Lord Ellenborough overruled the objection, saying that a 
 basket answered the general description of a parcel well enough, but 
 that if the indictment had been on the 39 Geo. 3, c. 58 (which enacts 
 that if any porter, or other person employed in the porterage, or de- 
 livery of boxes, baskets, packages, parcels, trusses, game, or other 
 things, shall take any greater sum, etc.), it would have been a fatal 
 variance. R. v. Douglas, 1 Camp. 212. 
 
 It is sufficient if the actual substantial pretence, which was the main 
 inducement to the prosecutor to part Avith his money, be alleged and 
 proved ; although it may be shoAvn by evidence that other matters, not 
 laid in the indictment, operated in some measure upon the mind of the 
 prosecutor as an inducement to him to part with his money. R. v. 
 Hewgill, 1 Dears. C. C. R. 315 ; R. v. English, 12 Cox, C. C. 171 ; R. 
 V. Lince, 12 Cox, C. C. R. 451, ante, p. 506. But the nile that it is 
 sufficient to prove any part of the pretences laid, if the property were 
 obtained thereby, must be confined to those cases where such part is a
 
 670 FALSE PRETENCES. 
 
 ♦ f^lSl separate and independent pretence; for if false *pretences are 
 J so connected together upon the record that one cannot be sepa- 
 rated from the other, and the statement of one of those pretences is in- 
 sufficient in point of law, no judgment can be given on the other 
 pretence. 2 Russ. Cri. 598, 5th ed., cited R. v. Wickham, 10 Ad. & 
 E. 34, 37 E. C. L., ante, p. 507. 
 
 Parol evidence is admissible of the false pretences laid in the in- 
 dictment, though a deed between the parties stating different considera- 
 tions for parting with the money, be also put in evidence for the 
 prosecution, such deed having been made for the purpose of the fraud. 
 R. V. Adamson, 2 Moo. C. 0. 286. The prisoner was indicted for 
 falsely pretending that his wife was dead, with intent to defraud a 
 benefit so(Mety. The stewards required a certificate of her death, and 
 the prisoner produced to them a false one. It was held, that the real 
 false pretence was that of the wife's death, and not the feigned certifi- 
 cate of it, which latter was the only evidence of the actual false pre- 
 tence. R. V. Dent, 1 C. & K. 249, 47 E. C. L. Where the false 
 pretences are contained in a letter, and such letter has been lost, the 
 prisoner, after proof of the loss, mav be convicted on parol evidence of 
 its contents. R. v. Chadwick, QC.&F. 181, 25 E. C. L. 
 
 The prisoner was indicted for obtaining a filly by the false pretence 
 that he was a gentleman's servant, and had lived at Brecon, and had 
 bought twenty horses in Brecon fair. It appeared that the prisoner 
 bought the filly of the prosecutor, and made him this statement, which 
 Avas false, and also told him that he would come down to the Cross 
 Keys and pay him. The prosecutor stated that he parted with his 
 filly, because he believed that the prisoner would come to Cross Keys 
 and pay him, and not because he believed that the prisoner was a gen- 
 tleman's servant, etc. It was held by Coleridge, J., that the prisoner 
 must be acquitted. R. v. Dale, 7 C. & P. 352, 32 E. C. L. ; see also 
 R. V. Smith, 2 Russ. Cri. 575, 5th ed. 
 
 A. was indicted for a misdemeanor in unlawfully attempting by false 
 pretences made to " B. and others," to obtain goods, the property of 
 the said B. and others, with intent thereby to cheat the said B. and 
 others of the same. It was proved that B. was one of a firm, and that 
 the pretences were made to B. alone, though with intent to defraud the 
 firm. On a case reserved, Jervis, C. J., said in delivering his judg- 
 ment, " I am of opinion that the conviction was right. The averment 
 of the pretences may be viewed in three ways. The words ' Baggal- 
 lay and others ' may either mean * B, and the rest of the firm,' in which 
 case we should have to consider whether a pretence made to one partner 
 alone may be laid as made to the whole firm ; or they may mean ' B., 
 and other persons,' not belonging to the firm, in which case, I think, 
 proof of a pretence to B. alone would be sufficient ; or, which is, I 
 think, the correct view, the words, ' and others ' may be rejected as 
 surplusage, and the objection of variance thereby removed." Patteson, 
 J., concurred in the latter view. Creswell, J., concurred. Erie, J. : 
 " I think that the allegation of a pretence to Baggallay and others 
 only admitted proof of a pretence to B. alone ; it would perhaps have
 
 FALSE PRETENCES. 671 
 
 been dififerent if the pretence had been laid as made to two persons, A. 
 and B. by name ; proof of a distinct several pretence to eacli must then 
 have been rcg-arded." Martin, B. : "I think that the pretence as laid 
 means a pretence to the firm, and was correctly proved." K. v. Kealcy 
 2 Den. C. C. 68 ; 20 L. J., M. C. 57. 
 
 *Proof of the falsity of the pretence. This must be clearly r^j^ri q 
 proved.^ Tiie prisoner bought from the prosecutor a horse for L "^^^ 
 121. and tendered hira in payment notes to that amount in the Oundle 
 bank. On the prosecutor objecting to receive these notes, the prisoner 
 assured hira they were good notes, and upon tliis assurance the prose- 
 cutor parted with the horse. The prisoner was indicted for obtaining 
 the horse on false pretences, viz. by delivering to the prosecutor certain 
 papers purporting to be promissory notes, well knowing them to be of 
 no value, etc. It appeared in evidence that these notes had never been 
 presented by the prosecutor at Oundle, or at Sir J. Esdaile's in Lon- 
 don, where they were made paj^able. A witness stated, that he recol- 
 lected Rickett's bank at Oundle stopping payment seven years before, 
 but added that he knew nothing but what he saw in the papers, or 
 heard from the people who had bills there. The notes appeared to 
 have been exhibited under a commission of bankruptcy against the 
 Oundle Bank. The words importing the memorandum of exhibit 
 had been attempted to be obliterated, but the names of the commis- 
 sioners remained on each of them. The jury found the prisoner 
 guilty, and said they Avere of opinion, that when the prisoner obtained 
 the horse he well knew that the notes were of no value, and that it 
 was his intention to cheat the prosecutor. On a case reserved, the 
 judges held the conviction wrong, and that the evidence was defective 
 in not sufficiently proving that the notes were bad. No opinion was 
 given, whether this would have been an indictable fraud, if the evi- 
 dence had been sufficient. R. v. Flint, Russ. & Ry. 460. The de- 
 fendant was indicted for obtaining money by falsely pretending that 
 a note purporting to be the promissory note of Coleman, Smith, and 
 Morris, was a good and available note of C, S., and M., whereas it 
 was not a good and available note. The defendant gave the note to 
 the prosecutor in payment for meat. A witness proved that he had 
 told the defendant that the Leominster bank (from which the note 
 issued) had stopped payment. It was also proved that the bank was 
 shut up, and that Coleman and Morris had become bankrupts ; but 
 it appeared that Smith, the third partner, had not become bankrupt, 
 Gaselee, J., said, that upon this evidence the prisoner must be acquit- 
 ted, because, as it appeared, that the note might ultimately be paid, it 
 could not be said that the defendant was guilty of a fraud in passing 
 it away. R. v. Spencer, 3 C. & P. 420, 14 E. C. L.; R. v. Clark, 2 
 Dick. Q. S., by Talfourd, 315 ; R. v. Evans, 29 L. J., M. C. 20 ace; 
 R. V. Walne^ 11 Cox, C. C. R. 647. But where the note was the 
 
 ^ Bowler v. State, 41 Miss. 570. S. 
 
 It must also be shown that the defendant knew that his representations were false. 
 Commonwealth v. Devlin, 8 Crim. Law Mag. 53.
 
 672 FALSE PRETENCES. 
 
 note of a bank which had been made banlcrupt forty years before, 
 and it was proved tliat the prisoner was aware of the fact, it was 
 Iiekl that the evidence was snfficient to support a conviction though 
 the bankruptcy proceedings were not proved, and there was no evi- 
 dence as to what dividend (if anv) had been paid. li. v. Dowey, 37 
 L. J., M. C. 52 ; 11. V. Hazelton, L. R. 2 C. C. 134 ; 44 L. J., M. C. 
 11, ante, p. 508. 
 
 Tlie question of proof was a good deal discussed in R. i\ Copeland, 
 supra, p. 504, where it was hekl, that the fact of the prisoner paying 
 his addresses was sufficient evidence for tlie jury on which they 
 might find the first pretence that the prisoner was a single man, and 
 in a condition to marry ; and that this, coupled with the fact that he 
 was at the time married to another woman, was sufficient evidence on 
 which to find the falseness of the other pretence, that he was entitled 
 to maintain his action for breach of promise of marriage. An 
 *"9nl ^indictment for false pretences alleged that the prisoner ob- 
 -J tained goods by falsely pretending that a person who lived in 
 a large house down the street, and had a daughter married, had asked 
 him to procure the goods. No person was named in the indictment, 
 or appears to have been named by the prisoner as being the lady in 
 question. A lady was called wlio answered the description given by 
 the prisoner, and denied that she had ever asked the prisoner to pro- 
 cure any goods. The prisoner was convicted, and on a case reserved as 
 to whether the false pretence was sufficiently negatived by the evidence, 
 the court affirmed the conviction. R. v. Burnsides, 30 L. J., M. C 
 42. The court probal)ly thought that the jury must have been satis- 
 fied that the lady called was from local circumstances sufficiently iden- 
 tified with the person alluded to by the prisoner. 
 
 Evidence confined to the issue. The general rule is applicable 
 that the evidence must be confined to the issue, see p. 92.' But some- 
 times a fraud is constructed out of a long series of transactions. If 
 that is the case, then all may be given in evidence upon their connec- 
 tion being shown. Thus in R. v. Welman, Dears. C. G. 188 ; 22 L. 
 J., M. C. 118, the evidence showed that the prisoner in July, 1850, 
 called upon the prosecutrix and made false representations relative to 
 a benefit club, but failed on this occasion to obtain any money. In 
 August of the same year the prisoner again called relative to the club, 
 and referred to the previous conversation. It was held on a case re- 
 served that it was for thejuiy to say whether these conversations were so 
 connected as to form one continuing representation ; and that if so, 
 they might connect them. 
 
 In R. I'. Roebuck, supra, p. 512, the prisoner Avas indicted for ob- 
 taining money from a pawnbroker by falsely pretending that a chain 
 was silver. The chain was of a very inferior metal, and evidence 
 was admitted, apparently without objection, that twenty-six chains 
 
 ' Evidence cannot be given of false pretences made subsequent to the delivery of 
 the property, for they could have formed no inducement. State v. Church, 43 
 Conn. 471.
 
 FALSE PRETENCES. 673 
 
 were found on the prisoner, and that these were of similar materials. 
 Evidence Avas also admitted that the defendant, a few days after the 
 occasion in question, oifered a similar chain to another pawnbroker, 
 under similar circumstances. This was objected to, and the point 
 with other points, reserved. There is no trace of any discussion on 
 this point, or any allusion to it in the judgment of the court, in any 
 of the reports ; but the conviction was affirmed. The defendant did 
 not appear by counsel. In K. v. Holt, 30 L. J., M. C. Ill, the defend- 
 ant obtained money by falsely representing to a creditor of his employer 
 that he was authorized to receive payment of the debt. Evidence that 
 the prisoner had subsequently obtained money from another creditor 
 of his employer by a similar representation was admitted. But the 
 Court of Criminal Appeal quashed the conviction, saying that the 
 evidence was inadmissible. In this case no counsel appeared on either 
 side, and no reasons are given in the judgment. The latter case, how- 
 ever, seems to overrule the inference which might be drawn from 
 R. V. Roebuck. Evidence of a previous obtaining of money by similar 
 false pretences is clearly admissible in order to show guilty knowledge. 
 In R. V. Francis, L. R. 2 C. C. 128 ; 43 L. J., M. C. 97, ante, p. 101, 
 where the prisoner was indicted for endeavoring to obtain an 
 advance from a pawnbroker upon a ring by the false pretence that it 
 was a diamond ring, evidence was held to be rightly admitted to the 
 effect that two days before the transaction in question, the prisoner 
 had obtained an advance from a pawnbroker upon a chain which he 
 *represented to be a gold chain, but Avhich was not so, and en- r^f.91 
 deavored to obtain from other pawnbrokers advances upon a '- 
 ring which he represented to be a diamond ring, but which in the 
 opinion of the witnesses, was not so, see ante, p. 101. 
 
 Proof of intent to cheat or defraud. It must appear that the 
 defendant obtained the money, etc., with intent to cheat or defraud 
 some person of the same. Thus, where in an indictment for obtain- 
 ing money under false pretences, the allegation of the obtaining the 
 money did not state that it was with intent, etc., the judges, on the 
 point being reserved for their consideration, were of opinion that the 
 indictment was bad. R. v. Rush worth, Russ. & Ry. 317; 1 Stark. 
 396.^ 
 
 ^ A false representation tending merely to induce one to pay a debt previously due 
 from him, is not within the statute against obtaining property by false pretences, 
 though payment be thereby obtained. People v. Thomas, 3 Hill, 169. [A false rep- 
 resentation whereby one is cheated into performing a duty, as the payment of an ex- 
 isting debt, is not within the statute. Commonwealth v. Leisey, 1 County Ct. Rep. 
 (Pa.) 50 ; Commonwealth v. Thompson, 3 Penna. Law Journal, 197 ; s. c. 2 Clark, 
 33 ; and see Commonwealth v. Henry, 22 Pa. St. 253. It is otherwise, if the person is 
 not only cheated into doing his duty, but also as to the fact that he is doing it. Peo- 
 ple f. Smith, 5 Park, C. C. (N. Y.) 490.] Under an indictment for obtaining money 
 by false pretences it must be shown that the pretences were made for the purpose of 
 obtaining the money. Bowler v. State, 41 Miss. 570. In an indictment for obtaining 
 goods under false pretences, evidence that the defendant was deeply insolvent at the 
 time of making the false representations relied on, is competent against him 
 for the purpose of showing his intent. Commonwealth v. Jeffries, 7 Allen, 548. [A 
 guilty intent may be inferred from the commission of acts which inevitably deprives 
 
 43
 
 674 FALSE PRETENCES. 
 
 Tlie primary intent must be to cheat and defraud. Thus, where 
 the prisoner was indicted for having procured from the overseer of a 
 parish, from which he received parochial relief, a pair of shoes, by 
 falsely pretending that he could not go to work because he had no 
 shoes, when he had really a sufficient pair of shoes ; and it appeared 
 in evidence, that on the overseer bidding him go to work, he 
 said he could not, because he had no shoes, upon which the overseer 
 supplied him with a pair of shoes, whereas the prisoner had a 
 pair before ; the prisoner being convicted, the case was considered by 
 the judges, who held that it was not within the act (30 Geo. 3, c. 24), 
 the statement made by the prisoner being rather a false excuse for 
 not working than a false pretence to obtain goods. R. v. AVakeling, 
 Russ. & Ry. 504. A. owed B. a debt, of which B. could not obtain 
 payment. C. a servant of B., went to A.'s wife, and got two sacks of 
 malt from her, saying that B. had bought them of A., which he knew 
 to be false, and took the malt to his master, in order to enable him to 
 pay himself; it was held by Coleridge, J., that if C. did not intend 
 to defraud A., but only to put it in his master's power to compel A. 
 to ])ay him a just debt, he could not be convicted of obtaining the 
 malt by false pretences. The prisoner, on entering the service of a 
 railway company, signed a book of rules — a copy of which was given 
 to him — one of the rules was " no servant of the company shall be 
 entitled to claim payment of any wages due to him on leaving the 
 company's service until he shall have delivered up his uniform cloth- 
 ing," On leaving the service, the prisoner knowingly and fraudu- 
 lently delivered up to an officer of the company, as part of his uniform, 
 a great coat belonging to a fellow-servant, and so obtained the wages 
 which would have been due to him. It M^as held that he was properly 
 convicted of obtaining the money by false pretences. R. v. Bull, 14 
 Cox, C. C. R. 608. R. V. Williams, 7 C. & P. 354, 32 E. C. L. It 
 is no defence to a charge of obtaining goods by false pretences, that at 
 the time of falsely pretending or of obtaining, the defendant intended 
 to pay the price of the goods when it should be in his power to do so. 
 R. V. Naylor, L. R., 1 C. C. R. 4 ; 35 L. J., M. C. 61.^ A defendant 
 was charged in the first count of an indictment with having falsely 
 pretended that he was Mr. H., who had cured Mrs. C. at the Oxford 
 Infirmary, and thereby obtained one sovereign with intent to defraud 
 G. P. " of the same." The second count laid the intent to be to 
 defraud G. P. " of the sum of 5s., parcel of the value of the said last- 
 mentioned piece of current gold coin." It M'as proved that the 
 defendant made the pretence, and thereby induced the prosecutor to 
 buy, at the price of 5s., a bottle containing something which he said 
 
 the owner of his property. Commonwealth v. Schuyler, 1 County Ct. Rep. (Pa.) 403.] 
 If a particular result is designed to be accomplished by making the false pretence, 
 which, however, fails, and another thing of value is obtained and accepted with like 
 intent to defraud, the law imputes to the persons making the false pretence a design 
 from the beginning to consummate the latter result. Todd v. State, 31 Ind. 514. S. 
 
 ^ Intended repayment is no defence. Commonwealth v. Schuyler, 1 County Ct 
 Itep. (Pa.) 403.
 
 FALSE PRETENCES. G75 
 
 * would cure the eye of the prosecutor's child. The prosecutor r:|:r99 
 gave him a sovereign, and received 15s. in change. It was ^ "• 
 further proved that the defendant was not Mr. H. It was held that 
 this was a false pretence within the act, and that the intent was prop- 
 erly laid in the second count. R. v. Bloomfield, Car. & M. 537. But 
 see the note to R. v. Leonard, 1 Den. C. C. R. 306, where it is suggested 
 that the second count in R. v. Bloomfield was bad, as averring an 
 obtaining of one thing with intent to cheat of another. In R. v. Leo- 
 nard, the first count of the indictment charged the prisoner with 
 obtaining from the prosecutor an order for the payment of 14^. Is. 2d. 
 by false pi'etences, with intent to defraud him of the same : the evi- 
 dence as to this count was that the prisoner only intended to defraud 
 the prosecutor of 7s., as the rest of the money was really due ; it was 
 held that the first count was proved. The second count was similar 
 to the second count in R. v. Bloomfield, and the court recommended 
 the recorder, who had reserved the case, to pass a separate sentence 
 upon it. 
 
 Now by the 24 & 25 Vict. c. 96, s. 88, supra, p. 497, it is sufficient 
 to allege in the indictment, " that the defendant did the act with in- 
 tent to defraud, without alleging the intent of the defendant to be 
 to defraud any particular person." And by the same section it is not 
 necessary " to prove an intent on the part of the defendant to defraud 
 any particular person, but it sliall be sufficient to prove that the de- 
 fendant did the act charged with intent to defraud." 
 
 Proof of the ownership of the property. The property obtained 
 by means of the false pretences must be proved to be the property of 
 the party mentioned in the indictment. The prisoner was indicted for 
 obtaining the sum of 3s. 4c/. of the moneys of the Countess of Ilchester. 
 It appeared in evidence that the prisoner brought a basket of fish, 
 which he delivered to the servant of the Countess, with a false ticket, 
 charging 3s. 4(i. too much for carriage. The servant paid him the 
 full amount and was repaid by Lady Ilchester. On it being objected, 
 that at the time of payment this was not her money, Lord Ellenbor- 
 ough said, that her subsequent allowance did not make the money 
 paid to the defendant her money at the time. She was not charge- 
 able for more than was actually due for the carriage, and it depended 
 upon her whether she should pay the overplus. The servant, how- 
 ever, afterwards swore that, at the time of this transaction, he had in 
 his hands upwards of 9s. 10c?. (the whole sum charged), the property 
 of his mistress, which Lord Ellenborough considered sufficient to 
 sustain the averment. R. v. Douglas, 1 Campb. 212.^ 
 
 A., B., and C. entered into partnership for the sale of lamps. It 
 was afterwards ag-reed that A. should act as agent for the sale of the 
 lamps on commission, and that his expenses and the commission to 
 
 ^ On an indictment for obtaining goods and chattels by false pretences, it is ne- 
 cessary to allege that they were the property of some person, as in a case of lar- 
 ceny, or an excuse must be stated for not making the averment. State v. Lath- 
 rop, 15 Vt. 279. S. Commonwealth v. Graham, 1 County Ct. Eep. (Pa.) 282.
 
 676 FALSE PRETENCES. 
 
 which he might be entitled should be deducted from the amount of 
 the sales before the profits were divided between the partners. A. 
 falsely pretended that he had received orders for 100 lamps, whereby 
 he obtained from B. and C. 121. 10s., which would be the amount of 
 his commission. It was held that inasmuch as his charges were to 
 be payable out of the capital funds of the partnership, and would thus 
 be a matter of account between him and his partners, he could not be 
 convicted. R. v. Evans, 32 L. J., M. C. 38. 
 
 Pretence to one person — money obtained from another. A pris- 
 oner was indicted for obtaining money from A. by false pretences. The 
 *f^9'^1 *false pretence was made to A., who told the prisoner to go to 
 -• his wife for the money. A.'s wife gave the money to the pris- 
 oner, A. not being present. The prisoner was convicted, and the 
 court confirmed the conviction. R. v. Moseley, L. & C. 92 ; 31 L. J., 
 M. C. 24. 
 
 Pretence made through an innocent agent. The prisoner sent a 
 little boy to get J. B.'s wages. The boy innocently asked for them, 
 and took them to the prisoner. The indictment charged the prisoner 
 with obtaining the money from the prosecutor by falsely pretending to 
 him, that he, the prisoner, had authority from J. B. to receive it. The 
 second count charged the prisoner with obtaining money from the 
 prosecutor and the boy by falsely pretending to the boy that he had 
 authority^ from J. B. to receive it. It was held that both these counts 
 were bad ; but that a count, charging the prisoner with obtaining 
 money from the prosecutor by falsely pretending to him that the boy 
 had autlwM'ity from J. B. to receive it, would have been good. R. v. 
 Butcher, 1 Bell, C. C. 6 ; 28 L. J., M. C. 14. 
 
 Proof of all being principals. Where several persons were in- 
 dicted for obtaining money under false pretences, it was objected, that 
 although they were all present when the representation was made to 
 the prosecutor, yet the words could not be spoken by all, and one of 
 them could not be affected by words spoken by another, but that each 
 was answerable for himself only, the pretence conveyed by words 
 being, like the crime of perjury, a separate act in the person using 
 them ; the Court of King's Bench, however, held, that as the defend- 
 ants were all present, acting a different part in the same transaction, 
 they were guilty of the imposition jointly. R. v. Young, 3 T. R. 
 98.' 
 
 ' Where two persons are jointly indicted for obtaining goods by false pretences, 
 made designedly and with intent to defraud, evidence that one of them, with the 
 knowledge, approbation, concurrence, and direction of the other, so made the false 
 pretences eharged, warrants ,the conviction of both. Commonwealth v. Harley, 7 
 Mete. 462.. And it is not necessary, in order to convict the defendants in such case, to 
 prove that they, or either of them, obtained the goods on their own account, or de- 
 sired or expected to derive personally any pecuniary benefit therefrom. Id. S. 
 
 Where two are jointly indicted for obtaining goods by false pretences, letters which 
 passed between them are admissible to show the scheme. Commonwealth v. Blood, 8 
 Grim. Law "
 
 FALSE PRETENCES. 677 
 
 On an indictment for obtaining money under false pretences, n 
 party who has concurred and assisted in the fraud may be con- 
 victed as principal, though not present at the time of making the 
 pretence and obtaining the money. R. v. Moland and others, 2 
 Moo. C. C. 276. See, too, R. v. Kerrigan, L. & C. 383 ; 33 L. J., 
 M. C. 71. 
 
 See, as to obtaining money by means of forged instruments, 24 & 
 25 Vict. c. 98, s. 38, post, tit. " Forgery." 
 
 Form of indictment. As to the allegation of the intent to de- 
 fraud it is enacted by the 24 & 25 Vict. c. 96, s. 88, that it shall be 
 sufficient in any indictment for obtaining or attempting to obtain any 
 property by false pretences, to allege that the defendant did the act 
 with intent to defraud, without alleging the intent of the defendant to 
 be to defraud any particular person, and it shall be sufficient to prove 
 that the defendant did the act charged with intent to defraud. This 
 is similar to the 14 & 15 Vict. c. 100, s. 8, now repealed. It seems, 
 however, that the indictment is bad and not amendable if it omits to 
 allege in express words an " intent to defraud." R. v. James, 1 2 Cox, 
 C. C. 127, so held by Lush, J., notwithstanding that it was submitted 
 that the intent to defraud might be inferred from the general words of 
 the indictment,^ 
 
 The great difficulty in framing indictments for obtaining property 
 by false pretences, arises on the statement of the false pretences 
 themselves. Many of the cases already stated, where the question of 
 the sufficiency of the false pretences has arisen on the statement in 
 the indictment will be a guide on this subject. The following are 
 *cases in which objections of a more formal nature had been r^roj^ 
 taken. An indictment alleged that " F. P. was possessed of a L 
 raare, and H. of a horse, and that H. and B. falsely pretended to F. 
 P. that B. was possessed of the sum of 12^., and that if F. P. would 
 exchange his mare for H.'s horse, B. was willing to purchase the said 
 horse of F. P. and give him 1 21. for it ;" whereas in truth and in fact 
 B. was not then possessed of 121. This indictment was held on de- 
 murrer to be insufficient, as not averring that the defendant H. knew 
 that B. was not possessed of the 121. R. v. Henderson, 2 Moo. C. C 
 192 ; Car. & M. 321, 41 E. C. L. In Hamilton v. R., 9 Q. B. 271, 
 58 E. C. L.; 16 L. J., M. C. 9, the indictment charged that the de- 
 fendant contriving and intending to cheat W., on a day named, did 
 falsely pretend to W., that he, the defendant, then was a captain in 
 the 5th regiment of Dragoon Guards, by means of which false pre- 
 tences the defendant did obtain of W, a valuable security, the property 
 of W., with intent to cheat W. of the same, whereas the defendant was 
 not at the time of making such false pretence a captain in the said 
 regiment, as he well knew. It was held in error, that, after conviction 
 and judgment, this was a good indictment, as to the allegation both of 
 the intent and the mode of obtaining the money, and as to the denial 
 
 ^ An indictment for obtaining goods by false pretences must contain an absolute 
 negative of the truth of the pretences employed. Tyler v. State, 2 Humph. 37. S.
 
 678 FALSE PRETENCES. 
 
 of the truth of the pretence, and that it was unnecessary to aver that 
 the security was unsatisfied, it being generally sufficient, after verdict, 
 that the indictment, as in this case, followed the words of the statute 
 creating the olfence. In R. v. Bowen, L3 Q. B. 790, 66 E. C. L.; 19 
 L. J., M. C. 6e5, where the indictment alleged that the defendant "did 
 unlawfully, falsely pretend, etc.," this was objected to on a motion to 
 arrest the judgmiMit on the same ground as that taken in R. v. Hen- 
 derson, supra, but the court thought that in that case it was not 
 sufficiently noticed the word " knowingly " did not occur in the statute, 
 and they held the indictment good alter verdict. R. v. Gruby, 1 Cox, 
 C. C. 249. An indictment stated that the defendant "did unlawfully 
 attempt and endeavor fraudulently, falsely, and unlawfully to obtain 
 from the Agricultural Cattle Insurance Company a large sum of money, 
 to wit, 22^. 10.S'. with intent thereby to cheat and defraud the company." 
 It was held that there was no misdemeanor stated of which the pris- 
 oner could be convicted of attempting. See R. v. Marsh, 1 Den. C. 
 C. 405 ; 19 L. J., M. C. 12. In Sill. v. R., Dears. C. C. 132 ; 22 
 L. J., M. C. 41, it was held that, notwithstanding the provision in the 
 14 & 15 Vict. c. 100, s. 8, it was necessary to allege whose property 
 the money obtained was, and that this was not a formal defect which 
 might be amended under s. 25 of the same statute. An indictment, 
 charging that A. unlawfully did falsely pretend that a printed paper 
 was a good and valid promissory note, is sufficient without setting out 
 the paper. R. v. Coulson, 1 Den. C. C. 592 ; 19 L. J., M. C. 182. 
 An allegation that the prisoner obtained " from A. a cheque for the 
 sum of 1/. 146'. Qd. of the moneys of B., is a sufficient allegation that 
 the cheque was the property of B." R. v. Godfrey, 1 Dears. & B. C. 
 C. 426. 
 
 Where the indictment charged that the prisoner falsely pretended 
 he was the servant of A., and in fact he did so pretend at first, but 
 subsequently pretended that he was the servant of B., and the prose- 
 cutor was induced to part with his money upon such second false pre- 
 tence, it was held that the evidence did not support the indictment. 
 R. V. Bulmer, L. & C. 476. 
 
 Description of property. See post, tit. " Larceny," 
 
 iifrc)r-\ *Obtaining bounty-money. By the Annual Mutiny Act, 
 "^ -I recruits obtaining enlistment-money improperly are punisha- 
 ble summarily before justices of the peace. Under the old mutiny 
 acts it was made punishable in the same way as obtaining money by 
 false pretences, to obtain money by making false representations as to 
 any matters contained in the oaths and certificates mentioned in those 
 acts. See R. v. Jessup, 25 L. J., M. C. 54. There can be no doubt 
 that obtaining bounty-money fraudulently is within the general law 
 relating to false pretences. Obtaining the property of Building Socie- 
 ties or Industrial Societies by false pretences is punishable on summary 
 conviction or by indictment by 37 & 38 Vict. c. 42, s. 1 ; 39 & 40 
 Vict. c. 45, s. 12 (10).
 
 FALSE PRETENCES. 679 
 
 Venue. The prisoner was indicted for obtaining; money by false 
 pretence, the venue being laid in Herefordshire. The false pretences 
 were made in Herefordshire, but the money was received in Mon- 
 mouthshire. The judges thought the indictment was laid in the 
 wrong county. R. v. Buttery, cited in R. v. Burdett, 4 Barn. & Aid. 
 at p. 179, 6 E. C. L. The contrary seems to have been held in the 
 case of R. v. Richards, decided on the 1st of March, 1884, although 
 in that case the prisoner not only made the false pretences but also ob- 
 tained the delivery orders for the goods at the place where he was in- 
 dicted, though the actual delivery of the goods took place elscM^iere. 
 (See this case referred to in Addenda.) The prisoner residing in the 
 county of M., wrote a begging letter to the prosecutor, who resided in 
 the same county, but which letter was posted by an accomplice of the 
 prisoner, in the county of L. The prosecutor, according to the re- 
 quest contained in the letter, sent a post-office order to the prisoner, 
 addressed to him at G., in the county of L., which the accomplice re- 
 ceived, and delivered tho proceeds to the prisoner in the county 
 of M. It was held that the prisoner was rightly tried in M. 
 R. V. Jones, 1 Den. C. C. 551. The prisoner wrote and posted in the 
 county of A. a letter containing a false pretence, which the prosecutor 
 received in the borough of B. The prosecutor, in answer posted a 
 letter in the borough of B., containing money, which the prisoner re- 
 ceived in the county of A. It was held that, under the 7 Geo, 4, c. 
 64, s. 12 (supra, p. 249) which authorizes the trial in any jurisdiction 
 where the offence is begun or completed, the prisoner might be tried 
 in the borough. R. v. Leech, 25 L. J., M. C. 77 ; 1 Dear. C. C. 642. 
 See R. V. Holmes, 12 Q. B. D. 23; 53 L. J., M. C. 37 ; R. v. Rogers, 
 3 Q. B. D. 28; 47 L. J., M. C. 11, ante, tit. "Embezzlement," p. 
 474. Where the prisoner was indicted for obtaining money by send- 
 ing a false return of fees to the Commissioners of the Treasury, and 
 it appeared that the return was posted in Northampton and received 
 at Westminster, upon which a minute was drawn up directing the 
 money to be paid by the paymaster-general, and the money was paid 
 at Westminster, it was held that the prisoner might be indicted and 
 tried as for an offence in Northamptonshire. R. v. Cooke, F. & F. 64. 
 
 Where the prisoner obtained sheep by false pretences in Middlesex, 
 and a few days afterwards removed them into Essex, where he was 
 apprehended, it was held that the quarter sessions of Essex had no 
 jurisdiction to try the offence. R. v. Stanbury, L. & C. 128 j 31 
 L. J., M. C. 88.
 
 680 FER^ NATURiE. 
 
 526*] *FER^ NATURE. 
 
 LARCENY OF ANIMALS. 
 
 Op domestic animals, as sheep, oxen, horses, etc., or of domestic 
 fowls, as hens, ducks, geese, etc., and of their eggs, larceny may be 
 committed at common law, for they are the subjects of property, and 
 serve for food. 1 Hale, P. C. 511 ; Hawk. P. C. b. 1, c. 19, s. 43. 
 The indictment should show the species of eggs, so that it may appear 
 that they are the subject of larceny. R. v. Cox, 1 C. & K. 494, 47 
 E. C. L. ; and see R. v. Gallears, 1 Den. C. C. R. 501 ; 19 L. J., M. C. 
 13. And it being felony to steal animals themselves, it is also a felony 
 to steal the product of any of them, though taken from the living 
 animal. Thus milking cows at pasture, and stealing the milk, was 
 held felony by all the judges. Anon,, 2 East, P. C. 617. So pulling 
 the wool from a sheep's back. R. v. Martin, Id. 618. The stealing 
 of a stock of bees also seems to be admitted to be felony. Tibbs v. 
 Smith, L. Raym. 33 ; 2 East, P. C. 607 ; 2 Russ. on Cri. 235, 5th 
 ed. The Scotch law corresponds with that of England in this respect, 
 the stealing of bees in a hive, being considered theft at common law, 
 and the prosecutions of such thefts being very numerous. Alison's 
 Princ. Crim. Law of Scotland, 260 ; see also 1st Rep. Crim. Law C. 
 p. 14. 
 
 Larceny cannot be committed of animals in which there is no prop- 
 erty, as of beasts that areferce naturae and unreclaimed, such as deer, 
 liares, or conies in a forest, chase, or warren, fish in an open river or 
 pond, or wild fowl at their natural liberty, although any person may 
 have the exclusive right, railone loci aut privilegii, to take them if he 
 can in those places. 1 Hale, P. C. 511 ; 4 Bl. Com. 235, 6 ; 2 East, 
 P. C. 607. So of swans, though marked, if they range out of the 
 royalty, because it cannot he known that they belong to any person. 
 
 1 Hale, P. C. 511. So of rooks in a rookery. See Hannam v. Mockett, 
 
 2 B. & C. 934, 9 E. C. L.; 4 D. & R. 518. 
 
 Where animals ferce naturce are dead, reclaimed (and known to be 
 so), or confined, and may serve for food, it is larceny at common law 
 to take them. Thus, deer inclosed in a park, fish in a trench or net, 
 or, as it should seem, in any other place which is private property, 
 and ^vliere they may be taken at the pleasure of the owner at any 
 time, pheasants or partridges in a mew, young hawks in a nest, or 
 even old ones, or falcons reclaimed, and known by the partv to be so. 
 1 Hale, P. C. 511 ; 2 East, P. C. 607 ; R. v. Cory, 10 Cox, C. C. 23. 
 So of young pigeons in a dove-cot. 1 Hale, P. C. 511. So where 
 pigeons were shut up in their boxes every night. Per Parke, B., R. v. 
 Luke, MS. Durham Spring Ass. 1839. And the Court of Criminal 
 Appeal has decided, that tame pigeons, although unconfined with
 
 FER^ NATURE. 681 
 
 free access at their pleasure to the open air, are the subjects of lar- 
 ceny : Campbell, C. J., in pronouncing judgment, saying, "It had 
 been supposed that Parke, B., had decided that there could be no ' 
 *larceny of pigeons, unless they were shut up in a house or r^nnn 
 box, but Parke, B., had in fact not so decided. We all think i ^'^' 
 that tame pigeons may be the subject of larceny, although they have 
 the opportunity of getting out and enjoying themselves in the open 
 air." R. v. Cheafor, 2 Den. C. C. 361. So of tame pheasants ; R. v. 
 Head, 1 F. & F. 350. So of partridges three weeks old, and able to 
 fly, reared in a coop since removed, they still returning to sleep under 
 a hen's wings. R. v. Shickle, L. R., 1 C. C. R. 158; 38 L. J., M. C. 
 21. 
 
 Of the eggs of hawks or swans, though reclaimed, larceny cannot 
 be committed, the reason of which is said to be, that a less punish- 
 ment, namely, fine and imprisonment, is appointed by statute for that 
 offence. 2 East, P. C. 607 ; 2 Russ. Cri. 235, 5th ed. And this is 
 probably so as to eggs of pheasants and pai-tridges and other birds 
 irreclaimed ; as the taking of the parents is not felony. 
 
 When an animal ferce natwrce is killed, larceny may be committed 
 of its flesh, as in the case of wild deer, pheasants, partridges, etc., for 
 the flesh or skins are the subject of property. 3 Inst. 116 ; 1 Hale, 
 P. C. 83. An indictment for stealing a dead animal should state that 
 it was dead, for upon a general statement that the party stole the 
 animal, it is to be intended that he stole it alive. Per Holroyd, J., 
 R. t;. Edward, Russ. & Ry. 498 ; Reg.t;. Roe, 11 Cox, C. C. R. 559. 
 So an indictment for stealing two turkeys was held by Hullock, B., 
 not to be supported by proof of stealing two dead turkeys. R. v. 
 Halloway, 1 C. & P. 128, 12 E. C. L. So where the prisoner was 
 indicted for stealing a pheasant, value 40s., of the goods and chattels 
 of H. S., all the judges, after much debate, agreed that the conviction 
 was bad ; for in the case of larceny of animals ferce naturce, the in- 
 dictment must show that they were either dead, reclaimed, or confined, 
 otherwise they must be presumed to be in their original state, and it 
 is not sufficient to add " of the goods and chattels " of such a one. 
 R. V. Rough, 2 East, P. C. 607. But where the prisoner wa^ indicted 
 for receiving a lamb before then stolen, and it appeared in evidence 
 that the animal had been killed before it was received by the prisoner, 
 the prisoner being convicted, the judges held the conviction good, 
 according to the report, on the ground that it was immaterial as to 
 the prisoner's offence whether the lamb was alive or dead, his offence 
 and the punishment for it being in both cases the same. R. v. Puck- 
 ering, 1 Moo. C. C. 242 ; 1 Lew. C. C. 302. Rabbits upon being 
 killed by a wrong-doer become the property of the owner of the 
 soil. Blades v. Higgs, 11 H. of L. Cases, 621 ; 34 L. J., C. P. 286; 
 but they are not thereby reduced into possession, so that an indictment 
 for larceny would lie against a person wrongfully removing and carry- 
 ing them away ; for if the wrong-doer kill and carry away as one 
 continuous act it is not larceny ; but if there is a discontinuance it is 
 larceny, at all events, if there is a reduction into possession of the
 
 682 FERiE NATURE. 
 
 owner. U. v. Townley, L. R., 1 C. C. R. 315 ; 40 L. J., M. C. 144 ; 
 see post, 532, where the case is more fully reported. In R. v. Fetch, 
 * 14 Cox, C. C. R. 116, the wrong-doer took the rabbits to another part 
 of the same land, and placed them in a bag, with the intention of 
 appropriating them to his own use, and carrying them away ; a 
 keeper observing him, went and nicked some of the rabbits in the 
 wrong-doer's absence. There was no abandonment of possession on 
 the part of the wrong-doer ; and the act of the keeper was only for 
 the purpose of identifying them, and not for the purj)ose of reducing 
 *fi9«l ^^1®'^ ^^^o ^^^® possession of the master. It was held that the 
 J *vvrong-doer could not be convicted of larceny in taking a'way 
 the rabbits. See also R. v. Read, 3 Q. B. D. 131 ; 47 L. J., M. C. 
 50 ; ante, p. 472. Where the indictment was for stealing a dead ])art- 
 ridge, and it turned out that it was shot by one of a shooting ]:>arty, 
 and was only wounded, and was picked up by the prisoner in a dying 
 state, it was held that it was not the subject of larceny, as it was 
 ferce naturm, and alive, and not reduced into possession. R, v. Roe, 
 11 Cox, C. C. R. 554. 
 
 Before the late game act, it was held that it was not necessary that 
 a person in possession of game, which has been reclaimed, should be 
 a qualified person, in order to support an indictment laying the prop- 
 erty in him. R. v. Jones, 3 Burn's Just., "Larceny," 218. 
 
 There is, says Lord Coke, a distinction between such beasts as are 
 feroe natiirce, and being made tame, serve for pleasure only, and such 
 as being made tame, serve for food, etc. 3 Inst. 101. Thus, although 
 the owner may have a lawful property in them, in respect of which he 
 may maintain an action of trespass, yet there are some things of which, 
 in respect of the baseness of their nature, larceny cannot be committed, 
 as mastiffs, spaniels, greyhounds, and bloodhounds ; and other things, 
 though reclaimed by art and industry, as bears, foxes, ferrets, etc., and 
 their whelps or calves, because, though reclaimed, they serve not for 
 food but pleasure, and so differ from pheasants, swans, etc., which, 
 when made tame, serve for food. 1 Hale, P. C. 512 ; R. v. Searing, 
 Russ. & Ry. 350. The rule with regard to animals /erce naturce not 
 fit for food, is said to include " bears, foxes, monkeys, apes, polecats, 
 cats, dogs, ferrets, thrushes, singing birds in general, parrots and squir- 
 rels." 1st. Rep. Crim. Law Com., p. 14. The young of wild ani- 
 mals are also included. Id. 
 
 See as to dogs, supra, p. 451. 
 
 See as to cattle, supra, p. 389.
 
 FISH. 683 
 
 *FISH. [*529 
 
 TAKING OR DESTROYING FISH. 
 
 It will be seen {post, tit. " Larceny "), that larceny might be com- 
 mitted at common law of fish in a tank or net, or, as it seems, in any 
 inclosed place, where the owner might take them at his will. 2 East, 
 P. C. 610. But it was no larceny to take fish in a river, or other great 
 water, where they were at their natural liberty. Hawk. P. C. b. 1, c. 
 33, s. 39. Property of this kind was protected by various statutes (22 
 & 23 Car. 2, c. 25, s. 7 ; 4 & S Will. 3, c. 23, s. 5 ; 9 Geo. 1, c. 22 ; 
 5 Geo. 3, c. 14). Those statutes were repealed, and the substance of 
 them re-enacted in the 7 & 8 Geo. 4, c. 29. This statute is also now 
 repealed, and by the 24 & 25 Vict. c. 96, s. 24, " whosoever shall un- 
 lawfully and wilfully take or destroy any fish in any water which shall 
 run through oi be in any land adjoining or belonging to the dwelling- 
 house of any person being the owner of such water, or having a right 
 of fishery therein, shall be guilty of a misdemeanor, and whosoever shall 
 unlawfully and wilfully take or destroy, or attempt to take or destroy, 
 any fish in any water not being such as hereinbefore mentioned, but 
 which shall be private property, or in which there shall be any private 
 right of fishery, shall, on conviction thereof before a justice of the 
 peace, forfeit and pay, over and above the value of the fish taken or 
 destroyed (if any), such sum of money, not exceeding five pounds, as 
 to the justice shall seem meet : provided that nothing hereinbefore con- 
 tained shall extend to any jjerson angling between the beginning of 
 the last hour before sunrise, and the expiration of the first hour after 
 sunset ; but whosoever shall, by angling between the beginning of the 
 last hour before sunrise and the expiration of the first hour after sun- 
 set, unlawfully and wilfully take or destroy, or attempt to take or de- 
 stroy, any fish in any such water as first mentioned, he shall, on 
 conviction before a justice of the peace, forfeit and pay any such 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 parish, township, or vill shall happen to be in or by the side of 
 any such water as is hereinbefore mentioned, it shall be suiRcient to 
 prove that the offence was committed either in the parish, township, or 
 vill named in the indictment or information, or in any parish, town- 
 ship, or vill adjoining thereto." 
 
 On an indictment under the above section, the taking of the fish need 
 not be such a taking as would be necessary to constitute larcenv. See 
 K. V. Glover, Russ. & R. 269. 
 
 Under the above section it is no defence that the accused acted under 
 a bond fide though mistaken notion of a right which could not by pes-
 
 684 FISH. 
 
 sibillty exist, or that there was no mens rea, the accused having acted 
 without criminal intent. Hudson v. Macrae, 4 B. & S. 592, 116 E. 
 C. L. 
 
 ^P-or^-i *A bond fide claim of right, involving a real question be- 
 J tween the parties, will oust the jurisdiction of the justices, but 
 if the justices decide that there is no such bona fide claim, the court 
 above will review their decision. R. v. Stimpsou, and R. v. Peak, 4 
 B. & S. 301, 116 E. C. L.; 9 Cox, C. C. 356. 
 
 It seems that the word "adjoining" imports actual contact, and, 
 therefore, ground separated from a house by a narrow walk and pal- 
 ing, wall, or gate, is not within the meaning of that word, though it 
 might be within the meaning of the word " belonging." R. v. Hodges, 
 M. &M. 341. 
 
 By the 24 & 25 Vict. c. 96, s. 25, " if any person shall at any time 
 be found fishing, against the provisions of this act, it shall be lawful 
 for the owner of the ground, water, or fishery where such offender shall 
 be so found, his servants, or any person authorized by him, to demand 
 from such offender any rods, lines, hooks, nets, or other implements 
 for taking or destroying 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 
 that any persons angling, against the provisions of this act, between 
 the beginning of the last hour before sunrise and the expiration of the 
 first hour after sunset, from whom any implement used by anglers shall 
 be taken, or by whom the same shall be delivered up as aforesaid, shall 
 by the taking or delivering thereof be exempted from the payment of 
 any damages or penalty for such angling." 
 
 And by s. 26, " whosoever shall steal any oysters or oyster brood 
 from any oyster bed, laying, or fishery, being the property of any other 
 person, and sufficiently marked out or known as such, shall be guilty 
 of felony, and being convicted thereof shall be liable to be punished as 
 in the case of simple larceny ; and whosoever shall unlawfully and 
 wilfully use any dredge, or any net, instrument, or engine whatsoever 
 within the limits of any such oyster bed, laying, or fishery, being the 
 property of any other person, and sufficiently marked out and known 
 as such, for the purpose for taking oysters or oyster brood, although 
 none shall be actually taken, or shall unlawfully and wilfully, with 
 any net, instrument, or engine drag upon the ground or soil of any 
 such fishery, shall be deemed guilty of a misdemeanor, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be im- 
 prisoned for any term not exceeding three months, with or Avithout 
 hard labor, and with or without solitary confinement ; and it shall be 
 sufficient in any indictment to describe either by name or otherwise, 
 the bed, laying, or fishery in which any of the said offences shall have 
 been committed, without stating the same to be in any particular parish, 
 township, or vill : provided that nothing in this section contained shall 
 prevent any person from catching or fishing for any floating fish within 
 the limits of any oyster fishery, with any net, instrument, or engine 
 adapted for taking floating fish only."
 
 PISH. 685 
 
 By the 31 & 32 Vict. c. 45, s. 51, all oysters and mussels being in 
 or on an oyster or mussel bed within the limits of a several oyster and 
 mussel fishery granted by an order under this part of this Act, and 
 all oysters being in or on any private oyster bed which is owned 
 by any person independently of this Act, and is sufficiently marked 
 out or sufficiently known as such, shall be the absolute property of 
 the grantees, or of such owner as the case may be, and in all courts 
 *of law and equity, and elsewhere, and for all purposes, civil r:(:Koi 
 or criminal, or other, shall be deemed to be in the actual pos- ^ 
 session of the grantees and such owner respectively. 
 
 By s. 52, All oysters and mussels removed by any person from an 
 oyster or mussel bed within the limits of any such several fishery, 
 and all oysters removed by any person from any such private oyster 
 bed, and not either sold in market overt or disposed of by or under 
 the authority of the grantees or owner (as the case may be), shall be 
 the absolute property of the grantees and owners respectively, and in 
 all courts of law and equity, and elsewhere, and for all purposes, civil, 
 criminal, or other, the absolute right to the possession thereof shall be 
 deemed to be in the grantees and owners respectively. 
 
 By s. 55, When two or more oyster or mussel beds or fisheries 
 belonging to diiferent proprietors are contiguous to each other, and 
 any proceeding by indictment or otherwise is taken against any person 
 for stealing oysters or mussels from any bed formed under an order 
 made in pursuance of this part of this Act, or for stealing oysters 
 from any bed formed independently of this Act, it shall be sufficient 
 in alleging and proving the property and lawful possession of the 
 oysters or mussels stolen, and the place from which they were stolen, 
 to allege and prove that they were the property of, and in the lawful 
 possession oi^ one or other of such proprietors, and were stolen from 
 one or other of such contiguous beds or fisheries. 
 
 As to destroying the dams of fish ponds, etc., see tit. " Sea and 
 River Banks, etc." 
 
 As to poisoning fish, see tit. " Poison."
 
 686 FIXTURES. 
 
 ^532] 
 
 ♦FIXTURES. 
 
 At common law larceny could not be committed of things which 
 were attached to land, or which belonged to it, as trees, grass, bushes, 
 bridges, stones, the lead of a house, and the like. 1 Hale, P. C. 510; 
 2 East, P. C. 587 ; and this is said to extend not only to things actually 
 attached to the realty, but to things savoring of and belonging to 
 the realty, as title deeds. R. v. Westbeer, 1 Lea. 12 ; R. v. AValker, 
 1 Moo. C. C. 155. But this would probably not now be extended, as 
 it has fre((uently been held that if these things be severed from the 
 freehold, as wood cut, grass in cocks, stones dug out of a quarry, etc., 
 then felony may be committed by stealing them, for then they are 
 personal goods. So if a man came to steal trees, or the lead of a 
 church, and severed it, and after about an hour's time came and 
 fetched it away, this was held felony, because the act was not con- 
 tinued, but interpolated, and in that interval the property lodged in 
 the right owner as a chattel ; and so with regard to corn standing on 
 the ground, for that is a chattel personal. 1 Hale, P. C. 510. '' If," 
 says Gibbs, C. J., " a thief severs a copper, and instantly carries it 
 away, it is no felony at common law, yet if he lets it remain after it 
 is severed any time, then the removal constitutes a felony, if he 
 comes back and takes it ; and so of a tree which has been some time 
 severed." Lee v. Ridson, 7 Taunt. 191. The rule on this subject is 
 thus stated by the criminal law commissioners : " Although a thing 
 be part of the realty, or be any annexation to, or unsevered produce 
 of the realty, yet if any person sever it from the realty with intent to 
 steal it, after an interval, which so separates the acts of severance 
 and removal that they cannot be considered as one continued act, 
 the thing taken is a chattel, the subject of theft, notwithstanding such 
 previous connection with the realty. If any parcel of the realty, or 
 any annexation to or unsevered produce of the realty be severed, 
 otherwise than by one who afterwards removes the same, it is the 
 subject of theft, notwithstanding it be stolen instantly after that 
 severance." 1st Rep. p. 11. It seems this must be taken to mean, 
 that it is larceny if a thing is severed and the party severing has gone 
 away and abandoned all kind of possession, and afterwards, when 
 liis wrongful possession has ceased, he comes again and resumes it ; 
 but a mere, interval of time, during which there was no full possession 
 by the wrong-doer, would not render a subsequent carrying awav 
 larceny. Per Blackburn, J., R. v. Townley, L. R. 1 C. C. R. 315 ; 40 
 L. J., M. C. 144. In the alDOve case some poachers killed rabbits, and 
 deposited them on the land where they had killed them. One of the 
 poachers afterwards returned and carried the rabbits away. It 
 was found as a fact that the poachers had no intention of abandoning
 
 FIXTURES. 687 
 
 the rabbits, but only deposited them for convenience. It was held 
 that the prisoner who subsequently removed them could not be 
 convicted of larceny. To remedy the inconvenience which arose 
 from this state of the law, it has been made larceny in certain cases 
 *to steal things annexed to a part of the freehold. These enact- r* r qo 
 ments will now be stated. L ^'^^ 
 
 By the 24 & 25 Vict. c. 96, s. 31, replacing the 7 & 8 Geo. 4 c. 29, 
 B. 44, " whosoever shall steal, or shall rip, cut, sever, or break with in- 
 tent to steal, any glass or wood work belonging to any buildino- what- 
 Boever, or any lead, iron, copper, brass, or other metal, or any utensil 
 or fixture, whether made of metal or other material, or of both, re- 
 spectively fixed in or to any building whatsoever, or any thing made 
 of metal fixed in any land being private property, or for a fence to any 
 dwelling-house, garden or area, or in any square or street, or in any 
 place dedicated to public use or ornament, or in any burial ground 
 shall be guilty of felony, and being convicted thereof shall be liable 
 to be punished as in the case of simple larceny ; and in the case of 
 any such thing fixed in any such square, street, or place as afore- 
 said, it shall not be necessary to allege the same to be the property of 
 any person." 
 
 See, as to the punishment, 24 & 25 Vict. c. 96, ss. 4, 7, 8, 9, infra, 
 tit. " Larceny." As to the proof of previous summary convictions for 
 larceny, see 24 & 25 Vict. c. 96, s. 112, Id. As to venue, see 24 & 
 25 Vict. c. 96, s. 114, Id. 
 
 Upon the repealed statute, 4 Geo. 2, c. 32, it was held, that a per- 
 son who procured possession of a house imder a written agreement 
 between him and the landlord, with a fraudulent intention to steal the 
 fixtures belonging to the house, was, in stealing the lead affixed to the 
 house, guilty of a felony within the statute. R. v. Munday, 2 Leach. 
 850 ; 2 East, P. C. 594. 
 
 With regard to what shall be deemed a building within this act, it 
 was held (upon the 4 Geo. 2, which, after specifying certain buildings, 
 used the words, " any other building whatever "), that a summer-house, 
 half a mile from the dwelling-house, was within the Act. R. v. Nor- 
 ris, Russ. & Ry. 69. So upon the same statute a majority of the 
 judges determined that a church was within the meaning of the Act. 
 R. V. Parker, 2 East, P. C. 592. But it was agreed that the property 
 in lead affixed to a church could not be laid to be either in the church- 
 wardens, or in the parishioners or inhabitants. Id. The new statute, 
 by omitting to specify any particular building, and using only the 
 words, "any building whatsoever," has removed the doubts which 
 gave rise to the above decisions. An unfinished building intended as 
 a cart-shed which was boarded up on all its sides, and had a door with 
 a lock to it, and the frame of a roof ready for thatching with loose 
 gorse thrown on, was held by Littledale, J., to be a building within 
 the above section. R. v. Worrall, 7 C. & P. 516. 
 
 Upon the words, "any square, street, or other place dedicated to 
 public use or ornament," it has been held that a churchyard comes 
 within the meaning of the Act. Pe?' Bosanquet, J., R. v. Blick, 4 C.
 
 688 FIXTURES. 
 
 & P. 377, 19 E. C. L.; see also R. v. Reece, 2 Russ. Cri. 212, 5th ed.; 
 and a similar decision with respect to a tombstone in a churchyard, in 
 R. V. Jones, 2 Russ. Cri. 211, 5th ed. 
 
 The prisoner was indicted (in the usual form) for stealing lead 
 affixed to a building. The jury found him guilty of stealing the lead 
 when lying severed, but not of stealing it when fixed. Tindale, C. J., 
 after conferring with Vaughan, B., held that the prisoner could not 
 be found guilty of a simple larceny on such an indictment, and directed 
 a verdict of not guilty to be entered, R. v. Gooch, 8 C. <fe P. 293, 34 
 E. C. L. 
 
 ^^Idl *^^ indictment for stealing a copper pipe fixed to the dwel- 
 -• ling-house of A. and B., is not supported by proof of stealing 
 a pipe fixed to two rooms, of which A. and B. are separate tenants, in 
 the same house. R. v. Finch, 1 Moo. C. C. 418. 
 
 A copper sun-dial fixed on the top of a wooden post standing in a 
 churchyard is "metal fixed to land" within the above section. R. v. 
 Jones, Dears. & B. 555 ; 27 L. J., M. C. 171. The prisoner was in- 
 dicted for stealing lead fixed to a wharf, and it was proved that the 
 wharf was made of bricks and timber ; it was held that it was suffi- 
 ciently alleged and proved that the lead was affixed " to a building.'* 
 R. V. Rice, Bell, C. C. 87 ; 28 L. J., M. C. 64.
 
 FOECIBLE ENTRY AND DETAINER. 689 
 
 *FORCIBLE ENTRY AND DETAINER. 
 
 [*535 
 
 PAOE 
 
 Offence at common law ....«•.,, 535 
 
 by statute i , 535 
 
 Proof of the entry or detainer . .•»«,,, 536 
 
 force and violence . . • . , , , 537 
 
 Proof that the detainer was forcible ....,,, 537 
 
 of the possession upon which the entry was made . , 638 
 
 that the offence was committed by the defendant . , , 539 
 
 Award of restitution 539 
 
 OflFence at common law. It seems that entering with such force 
 and violence into lands or tenements, as to exceed a bare trespass, was 
 an offence indictable at common law. Wilson's case, 8 T. R. 357 ; 1 
 Russ. on Cri. 404, 5th ed.' But against this offence provision has 
 been made by various statutes. 
 
 Offence by statute. The first enactment against forcible entries is 
 that of 5 Ric. 2, st. 1. c. 7, which merely forbids them. 
 
 By the 15 Ric. 2, c. 2, it is accorded and assented, that the ordi- 
 nances and statutes, made and not repealed, of them that make entries 
 with strong hand into lands and tenements or other possessions what- 
 soever, and them hold with force, and also of those that make insur- 
 rections, or great ridings, riots, routs or assemblies in disturbance of 
 the peace or of the common law, or in affray of the people, shall be 
 holden and kept, and fully executed, joined to the same that at all 
 times that such forcible entry shall be made, and complaint thereof 
 Cometh to the justices of the peace, or to any of them, that the same 
 justices or justice take sufficient power of the county, and go to the 
 place where such force is made ; and if they find any that hold such 
 place forcibly after such entry made, they shall be taken and put in the 
 next gaol, there to abide convict by the record of the same justices or 
 justice, until they have made fine and ransom to the king. 
 
 This statute was followed by that of 8 Hen. 6, c. 9, which, after 
 reciting the 15 Rich. 2, c. 2, enacts, for that the said statute doth not 
 extend to entries in tenements in peaceable manner, and after holden 
 with force, nor if the persons which enter with force into lands and 
 tenements be removed and voided before the coming of the said jus- 
 tices or justice as before, nor any pain ordained if the sheriff do not 
 obey the commandments and precepts of the said justices, for to exe- 
 cute the said ordinances, many wrongful and forcible entries be daily 
 made in lands and tenements, by such as have no right, and also 
 divers gifts, feoffments and discontinuences, sometimes made to lords 
 
 ' An entry on land merely to cut and take away the grass thereon, and not for the 
 purpose of taking possession, is not forcible entry and detainer. Merrill v, Forbes, 
 23 Cal. 379 ; Bell v. Cowan, 34 Mo. 251. S. 
 44
 
 690 V FORCIBLE ENTRY AND DETAINER. 
 
 and other puissant persons, and extortioners, within the said counties 
 where they may be conversant, to have maintenance, and sometimes 
 to such persons as to be unknown to them so put out, to the intent 
 ^_f.„-| *to delay and defraud such rightful possessors of their right 
 -■ and recovery forever, to the final disherison of divers of the 
 king's faithful liege people, and likely daily to increase, if due remedy 
 be not provided in this behalf, enacts, that from henceforth, where 
 any doth make any forcible entry on lands and tenements, or other 
 possessions, or them hold forcibly after complaint thereof made within 
 the same county where such entry is made, to the justices of the peace, 
 or to one of them, by the party grieved, that the justices or justice so 
 warned within a convenient time shall cause, or one of them shall 
 cause, the said statutes duly to be executed, and that at the cost of the 
 party so grieved. (See R. v. Wilson, post, p. 538.) 
 
 By section 9 of this statute, the justices are directed to re-seize the 
 lands or tenements entered upon, and to put the party put out into full 
 possession of the same. But it is provided by s. 7, that they who 
 keep their possession with force, in any lands and tenements whereof 
 they or their ancestors, or they whose estate they have in such lands 
 and tenements have continued their possession in the same, for three 
 years or more, be not endamaged by the statute. This proviso is en- 
 forced by the 31 Eliz. c. ] 1, s. 3, which declares that no restitution 
 shall be made, if the person indicted has had the occupation or been 
 in quiet possession for the space of three whole years together, next 
 before the day of the indictment found, and his estate therein not 
 ended or determined. 
 
 In order to extend the remedy for forcible entries upon other estates 
 than those of freehold, it was, by 21 Jac. 1, c. 15, enacted, "that such 
 judges, justices, or justices of the peace as, by reason of any Act or 
 Acts of parliament now in force, are authorized and enabled, upon 
 inquiry, to give restitution of possession unto tenants of any estate of 
 freehold, of their land or tenements which shall be entered upon with 
 force, or from them withholden by force, shall by reason of this present 
 Act have the like and the same authority and ability from henceforth 
 (upon indictment of such forcible entries, or forcible withholding before 
 them duly found), to give like restitution of possession unto tenants 
 for term of years, tenants by copy of court-roll, guardians by knight's 
 service, tenants by eleffit, statute-merchant and staple, of lands or tene- 
 ments by them so holden, which shall be entered upon by force, or 
 holden from them by force." 
 
 Upon a prosecution under these statutes the prosecutor must prove, 
 1, the entry or detainer; 2, that it was forcible; 3, the possession 
 upon which the entry was made ; and 4, that it was made by the 
 defendant. 
 
 Proof of the entry or detainer. A forcible entry or detainer is 
 committed by violently taking or keeping possession of lands or tene- 
 ments by menaces, force and arms, and without the authority of law. 
 4 Bla. Com. 248. It must be accompanied with some circumstances
 
 FORCIBLE ENTRY AND DETAINER. G91 
 
 of actual violence or terror, and therefore an entry which has no other 
 force than such as is implied by law in every trespass, is not within 
 the statutes. Hawk. P. C. b. 1, c. 64, s, 25. The entry may be vio- 
 lent, not only in respect to violence actually done to the person of a 
 man, as by beating him if he refuses to relinquish possession ; but 
 also in respect to any other kind of violence in the entry, as by 
 breaking open the doors of a house, whether any person be within or 
 *out, especially if it be a dwelling-house ; and perhaps by acts r*(-o7 
 of outrage after the entry, as by carrying away the party's •- 
 goods. Id. s. 26 ; see 3 Burr. 1702 (n). 
 
 But if a person who pretends a title to lands, barely goes over 
 them, either with or without a great number of attendants armed or 
 unarmed, in his way to the church or market, or for such like pur- 
 poses, without doing any act which expressly or impliedly amounts 
 to a claim to such lands, this is not an entry within the meaning of 
 the statutes. Hawk. P. C b. 1 c. 64, s. 20. Drawing a latch and 
 entering a house is said not to be a forcible entry, according to the 
 better opinion. Id. s. 26 ; Bac. Abr. " Forcible Entry " (B) ; 1 Russ. 
 Cri. 410, 5th ed. 
 
 Proof of the force and violence. Where the party, either by his 
 behavior or speech, at the time of his entry, gives those who are in 
 possession just cause to fear that he will do them some bodily hurt if 
 they do not give way to him, his entry is esteemed forcible, whether 
 he cause the terror by carrying with him such an unusual number of 
 servants, or by arming himself in such a manner as plainly to inti- 
 mate a design to back his pretensions by force, or by actually threat- 
 ening to kill, maim, or beat those who continue in possession, or by 
 making use of expressions which plainly imply a purpose of using 
 force against those who make resistance. Hawk. P. C. b. 1, c. 64, 
 s. 27. But it seems that no entry is to be judged forcible from any 
 threatening to spoil another's goods, or to destroy his cattle, or to do 
 him any similar damage which is not personal. Id. s. 28 ; sed vide 
 supra. 
 
 It is not necessary that there should be any one assaulted to con- 
 stitute a forcible entry ; for, if persons take or keep possession of 
 either house or land, with such numbers of persons and show of force 
 as are calculated to deter the rightful owner from sending them 
 away, and resuming his own possession, that is sufficient in point of 
 law to constitute a forcible entry, or a forcible detainer. Per Abbott, 
 C. J., Milner v. Maclean, 2 C. & P. 18, 12 E. C. L. An indictment 
 for a forcible entry cannot be supported by evidence of a mere tres- 
 pass, but there must be proof of such force, or at least such kind of 
 force as is calculated to prevent any resistance. Per Lord Tenterden, 
 C. J., R. V. Smyth, 5 C. & P. 201, 24 E. C. L. 
 
 Proof that the detainer was forcible. The same circumstances of 
 violence or terror which make an entry forcible will make a detainer 
 forcible also ; therefore, whoever keeps in his house an unusual num-
 
 692 FORCIBLE ENTRY AND DETAINER. 
 
 ber of people, or unusual weajjons, or threatens to do some bodily 
 hurt to the former possessor if he return, shall be adjudged guilty of 
 a forcible detainer, though no attempt is made to re-enter ; so, also, it 
 is said, if he place men at a distance from the house, to assault any 
 one who shall attempt to make an entry : but barely refusing to go 
 out of a house, and continuing therein in despite of another, is not a 
 forcible detainer. Hawk. P. C. b. 1, c. 64, s. 30. So where a lessee, 
 at the end of his term, keeps arms in his house to prevent the entry of 
 the lessor, or a lessee at will retains possession with force, after the 
 determination of the will : these are forcible detainers. Com. Dig. 
 Fore. Det. (B. 1). 
 
 The statute, 15 Kic. 2, only gave a remedy in cases of forcible 
 detainer, where there had been a previous forcible entry ; but the 
 *'i'^sl *st^^ute 8 Hen. 6, c. 9, gives a remedy for forcible detainer after 
 ^ a previous unlawful entry ; for the entry may be unlawful, 
 though not forcible. R. v. Oakley, 4 B. & Ad. 307, 24 E. C. L. But 
 it does not hence follow that the statute 8 Hen, 6 does not apply to 
 the case of a tenant at will, or for years, holding over after the will is 
 determined, or the term expired ; because the continuance in posses- 
 sion afterwards may amount, in judgment of law, to a new entry. Per 
 Parke, J., Id. p. 312, citing Hawk. P. C. b. 1, c. 64, s. 34. 
 
 A conviction for a forcible detainer is bad, if it only states that the 
 prosecutor complained to the justices of an entry and unlawful 
 expulsion and forcible detainer, and that they personally came and 
 found the defendant forcibly detaining the premises, whereupon 
 they convict him, etc. For the justices cannot know by their view 
 without evidence that the detainer was unlawful, or that there had 
 been an unlawful entry. Semble, that the conviction ought to show 
 that the defendant was summoned, or had otherwise an opportunity 
 to defend himself. Held, also, that the court was bound to award a 
 re-restitution, as a consequence of quashing the conviction without 
 inquiring into the legal or equitable claims of the respective parties. 
 R. V. Wilson, 3 A. & E. 817, 30 E. C. L.; Attwood v. Joliffe, 3 New 
 Sess. Cas. 116. 
 
 Proof of the possession upon which the entry was made. With 
 regard to. the kind of entry in respect of which a person may be 
 guilty of a forcible entry, it is said by Hawkins to be a general rule, 
 that a person may be indicted for a forcible entry into such incor- 
 poreal hereditaments, for w^hich a writ of entry will lie either at 
 common law, as for rent, or by statute, as for tithes ; but that there 
 is no good authority that such an indictment will lie for a common 
 or an office. So no violence offered in respect of a way or other 
 easement will make a forcible entry. Hawk. P. C. b. 1, c. 64, s. 31. 
 Nor can a person be convicted under the 15 Ric. 2, of a detainer 
 of any tenements into which he could not have made a forcible entry. 
 Id. 
 
 It is said by HaAvkins, that it seems clear that no one can come 
 witMa* tJie intention of the statutes, by any force whatsoever done
 
 FORCIBLE ENTRY AND DETAINER. 693 
 
 by him on entering into a tenement whereof he himself had the 
 sole and lawful possession, both at and before the time of such 
 entry, as by breaking open the door of his own dwelling-house, or of 
 a castle, which is his own inheritance, but forcibly detained from him 
 by one who claims the bare custody of it, or by forcibly enterino- 
 into the land of his own tenant at will. The learned writer has 
 added a " sed qucere " to this passage, and Lord Kenyon has observed 
 that perhaps some doubt may hereafter arise respecting what Mr. 
 Serjeant Hawkins says, that at common law the party may enter 
 with force into that to which he has a legal title. R. v. Wilson 8 
 T. R. 361. 
 
 There seems now to be no doubt that a party may be guilty of a forcible 
 entry, by violently and with force entering into that to which he has a 
 legal title. Newton v. Harland, 1 M. & G. 644, 39 E. C. L.; 1 Russ. 
 Cri. 405 (g), 5th ed. See also R. v. Studd, 14 W. R. 806 ; 14 L. T., il. 
 S. 633. In Newton v. Harland, supra, the judges thought that a land- 
 lord might be guilty of a forcible entry after the expiration of his 
 tenant's term both at common law and under the statutes ; but that 
 *possession so obtained might, nevertheless, be legal ; see r^f-on 
 Davison v. Wilson, 11 Q. B. 890 ; Burling v. Read, Id. 904. L ^^^ 
 
 The possession of a joint tenant, or tenant in common, is such a 
 possession as may be the subject of a forcible entry or detainer by his 
 co-tenant ; for though the entry of the latter be lawful per mie et per 
 tout, so that he cannot in any case be punished for it in an action of 
 trespass, yet the lawfulness of the entry is no excuse for the violence. 
 Hawk. P. C. b. 1 c. 64, s. 33. 
 
 Upon an indictment founded on the 8 Hen. 6, it must be shown 
 that the entry was on a freehold ; and if founded on the 21 Jac. 1, 
 that it was upon a leasehold, etc., according to that statute. R. v. 
 Wannop, Sayer, 142. On a prosecution for a forcible entry on the 
 possession of a lessee for years, it is sufficient to prove that such lessee 
 was possessed, although the indictment allege that the premises were 
 his freehold. R. v. Lloyd, Cald. 415. Proof that the party holds 
 colorably, as a freeholder or leaseholder, will suffice ; for the court will 
 not, on the trial, enter into the validity of an adverse claim, which 
 the party ought to assert by action, and not by force. Per Vaughan, 
 B., R. V. Williams, Talf. Dick. Sess. 239. 
 
 Proof that the offence was committed by the defendant. This 
 offence may be committed by one person as well as by several. Hawk. 
 P. C. b. 1, c. 64, s. 29. All who accompany a man when he makes a 
 forcible entry will be adjudged to enter with him, whether they actually 
 come upon the land or not. Id. s. 22. So also with those who, hav- 
 ing an estate in land by a defeasible title, continue by force in 2:>os- 
 session, after a claim made by one who has a right of entry. Id. 
 s. 23. But where several come in company with one who has a right 
 to enter, and one of the company makes a forcible entry, that is not 
 a forcible entry in the others. 3 Bac. Abr. " Forcible Entry " (B). 
 And a person who barely agrees to a forcible entrv made to his use,
 
 694 FORCIBLE ENTRY AND DETAINER. 
 
 without his knowledge or privity, is not witliin the statutes, because 
 he no way concurred in, or promoted the force. Hawk. P. C b. 1, c. 
 64, s. 24. 
 
 An infant or feme covert may be guilty of a forcible entry, for actual 
 violence done by such party in person ; but not for violence done by 
 others at their command, for such command is void. A feme covert, 
 it is said, may be imprisoned for such offence, though not an infant, 
 because he shall not be subject to corporal punishment by force of the 
 general words of any statute in which he is not expressly named. 
 Hawk. P. C. b. 1, c. 64, s. 35. A feme covert may be guilty of a 
 forcible entry, by entering with violence into her husband's house. R. 
 V. Smyth, 5C. & P. 201, 24 E. C. L. 
 
 Award of restitution. The court in which the indictment is found, 
 or the Court of King's Bench upon the removal thither of the indict- 
 ment by certiorari, has power on the conviction of the defendant to 
 award restitution to the party upon whose possession the entry has 
 been made. Hawk. P. C. b. 1, c. 64, ss. 49, 50, 51. Though by the 
 provisoes in the statutes of Hen. 6 and James 1 , the defendants may 
 set up a jwssession of three years to stay the award of restitution. 
 Id. s. 53. A supersedeas of the award of restitution may be granted 
 by the same court that made the award. Id. s. 61. And a 
 
 ^540] 
 
 *re-restitution may be awarded by the King's Bench. Id. 
 
 s. GCy. See R. v. Wilson, ante, p. 538. 
 Before conviction it is in the discretion of the judge of assize to 
 award a restitution or not, although a true bill has been found by the 
 grand jury for a forcible entry. R. v. Harland, 2 Lew. C. C. 170; 
 8 Ad. & Ed. 826, 35 E. C. L.; 1 P. & D. 93 • 2 M. & R. 141.
 
 FORGERY. 695 
 
 ♦FORGERY. [*541 
 AND OFFENCES CONNECTED THEREWITH. 
 
 PAGE 
 
 Forgery at common law ......... 542 
 
 by statute 544 
 
 Forging her Majesty's seals 544 
 
 transfers of stock, and powers of attorney relating thereto 544 
 
 Forging Metropolitan Consolidated Stock 545 
 
 Forging stock issued under National Debt Act .... 645 
 Personating the owner of stock, and transferring or receiving divi- 
 dends 546 
 
 Forging attestation to power of attorney for transfer of stock . , 546 
 
 Making false entries in books of the public funds .... 547 
 
 Clerks of the bank making out false dividend warrants . . . 547 
 
 Forging East India securities 547 
 
 East India loan securities 548 
 
 exchec^uer bills, bonds, debentures, etc. .... 548 
 
 Making plates in imitation of those used tor exchequer bills, etc. . 548 
 
 paper in imitation of that used for exchequer bills, etc. . 548 
 Having in possession paper, plates or dies used for exchequer bills, 
 
 etc 549 
 
 Forging bank notes and bills 549 
 
 Purchasing or receiving or having forged bank notes and bills . 549 
 Making or having mould or paper for forging notes of banks of Eng- 
 land or Ireland 550 
 
 Engraving or having plate or paper for making forged notes . . 551 
 Engraving any part of a bank note or bill, or using or having any 
 
 such plate, or uttering or having any impression thereof , . 651 
 Making or having mould for making paper with the name of any 
 
 banlcer thereon, or making or having such paper . . . 552 
 Engraving plates for foreign bills or notes, or using or having such 
 
 plates, or uttering or having any impression thereof . . . 652 
 
 Forging deeds, bonds, etc 653 
 
 wills 653 
 
 bills of exchange or promissory notes 553 
 
 orders, receipts, etc., for money or goods .... 554 
 Drawing, making, accepting, endorsing, or signing bills, notes, re- 
 ceipts, etc., without autliority ....... 554 
 
 Obliterating crossings on cheques 554 
 
 Forging debentures . . » 555 
 
 proceedings of courts of record 555 
 
 copies or certificates of records, process of courts not of rec- 
 ord, and using forged process ...... 555 
 
 instruments made evidence by act of parliament . . 556 
 
 court rolls 556 
 
 register of deeds 556 
 
 orders of justices, recognizances, affidavits, etc. . . . 557 
 name of officer of any court, or of banks of England or 
 
 Ireland 557 
 
 marriage licence or certificate 557 
 
 *Destroying, altering, or forging parish registers, and giving false [*542 
 
 certificates 557 
 
 Making false entries in copies of register sent to registrar . . 558 
 
 Demanding property on forged instruments ..... 558 
 
 Forging instrument, however designated, which is by law a will, 
 
 deed, bill of exchange, etc. ........ 559 
 
 Forging documents purporting to be made abroad, or bills of ex- 
 change, etc., payable abroad 559 
 
 Offences triable where prisoner apprehended 560 
 
 Description of instruments in indictments for forgery . . . 560 
 
 engraving . . . 560
 
 696 FORGERY. 
 
 PAGE 
 
 Intent to defraud particular persons need not be alleged or proved 560 
 
 Interpretation of tlie term " possession " , 561 
 
 Punishment of forgery under statutes not repealed , . . 561 
 
 Principals in the second degree, and accessories .... 562 
 
 Forging seal, stamp or signature of public documents . . . 562 
 
 documents made evidence by 
 
 statute .... 563 
 
 Forging trade-marks 563 
 
 Forgery in other cases 563 
 
 What amounts to forgery 565 
 
 by using a person's own name . . . 566 
 by using another person's or a fictitious 
 
 name 566 
 
 not necessary that the document should 
 
 be perfect 569 
 
 Proof of forging transfer of stock 569 
 
 personating owner of stock ...... 570 
 
 forging a bank note 570 
 
 engraving part of a note , . 672 
 
 making a note 572 
 
 forging deeds 572 
 
 wills 573 
 
 bills of exchange 573 
 
 undertakings, warrants, or orders for the payment 
 
 of money 577 
 
 receipts • . . 581 
 
 warrants, orders, and requests for the delivery of 
 
 goods -. . 583 
 
 destroying, defacing, or injuring registers. . . 584 
 
 forging county court process 584 
 
 the uttering, disposing of, or putting off , . . 585 
 
 the intent to defraud 587 
 
 party intended to be defrauded .... 589 
 
 the falsity of the instrument .... 589 
 
 Form of indictment 691 
 
 Proof with regard to principals and accessories .... 593 
 
 of guilty knowledge 594 
 
 Venue 595 
 
 Forgery at common law. At common law the offence of forgery 
 was punishable as a misdemeanor. It is defined by Sir W. Blackstone 
 as " the fraudulent making or altering of a writing to the 
 *^4'^1 *P''6Judice of another man's right ;" 4 Com. 247 ; and by Mr. 
 J East, as " a false making, a making malo animo, of any written 
 instrument for the purpose of fraud and deceit." 2 East, P. C. 852. 
 Forgery consists not in making a deed which has a false statement in 
 it ; but in making an instrument appear to be what it is not.^ Per 
 Blackburn, J., in R. v. Ritson, L. R. 1 C. C. R. 200 ; 39 L. J., M. 
 C. 10. Expte. Windsor, 34 L. J., M. C. 163. 
 
 The forgery of any document, whether public or private, with in- 
 tent to defraud, is punishable as a misdemeanor at common law. And 
 in R. V. Hodgson, Dears. & B. C. C. 3 ; 25 L. J., M. C. 78, the court 
 said it was unnecessary to consider whether or not the document which 
 the prisoner was charged with forging (a diploma of the College of 
 Surgeons) was of a public nature or not, because, whether it was or 
 
 * Forgery is the alteration of a deed or writing in a material part, to the prejudice 
 of another, as well as when the whole deed or writing is forged. 5 Strob. 58. In an 
 indictment for forgery, the proof was that the defendant wrote a promissory note for 
 $141.26, and read it to another, who was unable to read, as a note for $41.26, and in- 
 duced him to sign it as maker. Held, that this did not constitute a forgery. Com- 
 monwealth V. Sankey, 22 Pa. St. 390. But see Clay v. Schwab, 1 Mich. (N. P.) 168. S.
 
 FORGERY. 697 
 
 was not, in order to make out the offence there must have been, at the 
 time of the instrument being forged, an intention to defraud some per- 
 son. The distinction, therefore, as to the intent to defraud, between 
 the forgery of public and private documents at common law, which has 
 sometimes been drawn, seems to be of little importance. If any other 
 inference is to be drawn from the passage in Hawk. P. C b. 1, c. 21, 
 s. 11, it must be considered as overruled by this case. There are in- 
 deed many public documents the forgery of which is made punishable 
 by statute as a criminal offence without any intent. But these provi- 
 sions in no way affect the general principle of law just stated ; on the 
 other hand, they impliedly recognize it, as, had it been otherwise, they 
 would, many of them, have been unnecessary. 
 
 Though doubts were formerly entertained on the subject, it is now 
 clear that forging any document, with a fraudulent intent, and Avhere- 
 by another person may be prejudiced, is within the rule.' Thus, after 
 much debate, it was held that forging an order for the delivery of 
 goods was a misdemeanor at common law.^ R. v. Ward, Str. 747 ; 2 
 Ld. Raym. 1461. And the same was held by a majority of the judges, 
 with regard to a document purporting to be a discharge from a creditor 
 to a gaoler, directing him to discharge a prisoner in his custody. R. 
 V. Fawcett, 2 East, P. C. 862. R. v. Ward is considered by Mr. East 
 to have settled the rule, that the counterfeiting of any writing, with a 
 fraudulent intent, whereby another may be prejudiced, is forgery at 
 common law. 2 East, P. C. 861. 
 
 Forgery at common law must be of some document or writing. 
 Therefore where the prisoner was indicted for forging the name of J. 
 Linnell, and the evidence was that he painted it in the corner of a 
 picture, with intent to pass off the picture as a work of that artist, this 
 was held not to be a forgery. But that, if money had been obtained 
 bv the fraud, the defendant was indictable for a cheat at common law. 
 R. V. CIoss, Dears. & B. C. C. 460 ; 27 L. J., M. C. 54. So where 
 the prisoner caused wrappers to be printed similar to those of another 
 tradesman, and sold in them a composition called " Berwick's Baking 
 Powder," but caused the signature and the notification that without 
 such signature no powder was genuine, which appeared on the genuine 
 wrappers, to be omitted : it was held that this was no forgery, though 
 the jury found that the wrappers were procured by the prisoner with 
 intent to defraud. R. v. Smith, Dears. & B. C. C. 566 ; 27 L. J., M. 
 C. 225. And see now the 25 & 26 Vict. c. 88, ss. 1, 2, 3, 4, 5. 
 
 It is not necessary to the sustaining an indictment for forgery at 
 *common law, that any prejudice should in fact have happened r*t-j^j^ 
 by reason of the fraud.^ R. v. Ward, Str. 747 ; 2 Ld. Raym. L ^'^^ 
 1461. Nor is it necessary that there should be any publication of the 
 forged instrument. 2 East, P. C. 855, 951 ; Russ. on Cri. 618, 
 5th ed. 
 
 ' Ames's Case, 2 Greenl. 365 ; Penna. v. McKee, Add. 33. S. 
 ' Commonwealth v. Ayer, 3 Cush. 150. S. 
 « Arnold v. Cost, 8 GUI & Johns. 220. S.
 
 698 FORGERY. 
 
 It is not forgery fraudulently to procure a party's signature to a 
 document, the contents of which have been altered without his knowl- 
 edge ; R. V. Cliadwicke, 2 Moo. & R. 545 ; or fraudulently to induce 
 a person to execute an instrument on a misrepresentation of its con- 
 tents. Per Rolfe, B., R. v. Collins, MS., 2 Moo. & R. 461. This 
 comes under another class of offences, and is especially provided for by 
 the 24 & 25 Vict. c. 96, s. 90 ; supra, p. 498. 
 
 Forgery by statute. By several statutes certain forgeries have been 
 made felonies, and the punishment increased. Many of these statutes 
 were consolidated by the 11 Geo. 4 & 1 Will. 4, c. 66, which is 
 now repealed, and the statutes again consolidated by the 24 & 25 
 Vict. c. 98. 
 
 Forging her Majesty's seals. By s. 1 of that Act, " whosoever 
 shall forge or counterfeit, or shall utter, knowing the same to be forged 
 or counterfeited, the great seal of the United Kingdom, her Majesty's 
 privy seal, any privy signet of her Majesty, her Majesty's royal sign 
 manual, any of her Majesty's seals appointed by the twenty-fourth 
 article of the union between England and Scotland to be kept, used, 
 and continued in Scotland, the great seal of Ireland, or the privy seal 
 of Ireland, or shall forge or counterfeit the stamp or impression of any 
 of the seals aforesaid, or shall utter any document or instrument what- 
 soever, having thereon or affixed thereto the stamp or impression of 
 any such forged or counterfeited seal, knowing the same to be the stamp 
 or impression of such forged or counterfeited seal, or any forged or coun- 
 terfeited stamp or impression made or apparently intended to resemble 
 the stamp or impression of any of the seals aforesaid, knowing the same 
 to be forged or counterfeited, or shall forge or alter, or utter, knowing 
 the same to be forged or altered, any document or instrument having 
 any of the said stamps or impressions thereon or affixed thereto, shall 
 be guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for life, or for 
 any term not less than three [now five] years, or to be imprisoned for 
 any term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement." 
 
 Forging transfers of stock, and powers of attorney relating 
 thereto. By s. 2 " whosoever shall forge or alter, or shall offer, utter, 
 dispose of, or put off, knowing the same to be forged or altered, any 
 transfer of any share or interest of or in any stock, annuity, or other 
 public fund which now is or hereafter may be transfemble at the bank 
 of England or at the bank of Ireland, or of or in the capital stock of 
 any body corporate, company, or society whicih now is or hereafter 
 may be established by charter, or by, under, or by virtue of any act 
 of parliament, or shall forge or alter, or shall offer, utter, dispose of, 
 or put off, knowing the same to be forged or altered, any power of 
 attorney or other authority to transfer any share or interest of or in 
 any such stock, annuity, public fund, or capital stock, or to receive
 
 FORGERY. 699 
 
 any dividend or money payable in respect of any such share or 
 *interest, or shall demand or endeavor to have any such share i-Hcr^K 
 or interest transferred, or to receive any dividend or money L '^'*^ 
 payable in respect thereof, by virtue of any such forged or altered 
 power of attorney or other authority, knowing the same to be forged 
 or altered, with intent in any of the cases aforesaid to defraud, shall 
 be guilty of felony, and being convicted thereof, shall be liable, at the 
 discretion of the court, to be kept in penal servitude for life, or for any 
 term not less than three [now five] years, or to be imprisoned for any 
 term not exceeding two years, with or without hard labor, and with or 
 without solitary confinement." Extended to Scotland by the 33 & 
 34 Vict. c. 58, s. 7. Extended also to stock under the Local Authori- 
 ties Loan Act, 1875 (38 & 39 Vict. c. 83.) 
 
 Forging Metropolitan Consolidated Stock. By the 32 & 33 
 Vict. c. 102, s. 19, all consolidated stock is to be deemed to be capital 
 stock of a body corporate within the meaning of the 24 & 25 Vict. 
 0.98. 
 
 By s. 20, " Any person who, with intent to defraud, makes any 
 false entry in or alters any word or figure in any of the said books for 
 transfers, or in any manner falsifies any of the said books, or makes 
 any transfer of any consolidated stock in the name of any person who 
 is not the true owner thereof, shall be guilty of felony, and on convic- 
 tion shall be liable to penal servitude for any term not exceeding four- 
 teen years, or be imprisoned for any term not exceeding two years, 
 with or without hard labor." 
 
 By s. 21, clerks and servants of the board who, with intent to de- 
 fraud, make out dividend warrants, etc., for a greater amount than 
 that to which the person who receives it is entitled, are guilty of 
 felony. 
 
 Forging stock issued under National Debt Act, or any former 
 Act. By the 33 & 34 Vict. c. 58, s. 3, " If any person forges or 
 alters, or offers, utters, disposes of, or puts off, knowing the same to 
 be forged or altered, any stock certificate or coupon, or any document 
 purporting to be a stock certificate or coupon, issued in pursuance of 
 Part 5 of the National Debt Act, 1870, or of any former Act, or de- 
 mands or endeavors to obtain or receive any share or interest of or in 
 any such stock, as defined in the National Debt Act,1870, or to receive 
 any dividend or money payable in respect thereof, by virtue of any 
 such forged or altered certificate or coupon, or document purporting as 
 aforesaid, knowing the same to be forged or altered, with intent in 
 any of the cases aforesaid to defraud, he shall be guilty of felony, and 
 being convicted thereof, shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term noi less than 
 five years, or to be imprisoned for any term not exceeding two years, 
 with or without hard labor, and with or without solitary confinement." 
 
 By s. 4, "If any person falsely and deceitfully personates any 
 owner of any share or interest of or in any such stock as aforesaid,
 
 700 FORGERY. 
 
 or of any such stock certificate or coupon as aforesaid, and thereby 
 obtains or endeavors to obtain any sucli stock certificate or coupon, 
 or receives or endeavors to receive any money due to any such 
 owner, as if such person were the true and lawful owner, he shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for life, or for 
 *KArl *^"y ^^^'"^ ^^^ ^^^^ *^^^" ^^^ years, or to be imprisoned for any 
 -• term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement." 
 
 By. s. 5, " If any person, without lawful authority or excuse, the 
 proof whereof shall lie on the party accused, engraves or makes on 
 any plate, wood, stone or other material any stock certificate or coupon 
 purporting to be such a stock certificate or coupon as aforesaid, or to 
 be such a stock certificate or coupon as aforesaid in blank, or to be a 
 part of such a stock certificate or coupon as aforesaid, or uses any such 
 plate, wood, stone or other materials for the making or printing of 
 any such stock certificate or coupon, or blank stock certificate or coupon 
 as aforesaid, or any part thereof respectively, or knowingly has in his 
 custody or possession any such plate, wood, stone or other material, or 
 knowingly offers, utters, disposes of, or puts off, or has in his custody 
 or possession any paper on which any such blank stock certificate or 
 coupon as aforesaid, or part of any such stock certificate or coupon 
 as aforesaid, is made or printed, he shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding fourteen years, and 
 not less than five years, or to be imprisoned for any term not exceeding 
 two years, with or without hard labor, and with or without solitary 
 confinement." 
 
 By s. 6, " If any person forges, or alters, or offers, utters, disposes 
 of, or puts off, knowing the same to be forged or altered, any certifi- 
 cate or duplicate certificate required by Part 6 of the National Debt , 
 Act, 1870, or by any former like enactment, with intent in any of the 
 cases aforesaid to defraud, he shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be kept 
 in penal servitude for life, or for any term not less than five years, or 
 to be imprisoned for any term not exceeding two years, with or with- 
 out hard labor, and with or without solitary confinement." 
 
 Personating the owner of stock, and transferring or receiving 
 dividends. By the 24 & 25 Vict. c. 98, s. 3, " whosoever shall 
 falsely and deceitfully personate any owner of any share or inter- 
 est of or in any stock, annuity, or other public fund which now is or 
 hereafter may be transferrable at the bank of England, or at the bank 
 of Ireland, or any owner of any share or interest of or in the capital 
 stock of any body corporate, company, or society which now is or 
 hereafter may be established by charter, or by, under, or by virtue of 
 any act of parliament, or any owner of any dividend or money paya- 
 ble in respect of any such share or interest as aforesaid, and shall 
 thereby transfer or endeavor to transfer any share or interest belong-
 
 FORGERY. 701 
 
 ing to any such owner, or thereby receive or endeavor to receive any 
 money due to any such owner, as if such offender were the true and 
 lawful owner, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal servi- 
 tude for life, or for any term not less than three [now five] years, or 
 to be imprisoned for any term not exceeding two years, with or with- 
 out hard labor, and with or without solitary confinement." 
 
 Forging attestation to power of attorney for transfer of stock. 
 
 By s. 4, " whosoever shall forge any name, handwriting, or signature 
 *purporting to be the name, handwriting, or signature of a wit- r^rj.? 
 nsss attesting the execution of any power of attorney or other L 
 authority to transfer any share or interest of or in any such stock, 
 annuity, public fund, or capital stock as is in either of the last two pre- 
 ceding sections mentioned, or to receive any dividend or money pay- 
 able in respect of any such share or interest, or shall offer, utter, dis- 
 pose of, or put off any such power of attorney or other authority, 
 with any such forged name, handwriting, or signature thereon, know- 
 ing the same to be forged, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be kept 
 in penal servitude for any term not exceeding seven years and not less 
 than three [now five] years, or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labor, and with or without 
 solitary confinement." Extended to Scotland by the 33 & 34 Vict. c. 
 58, s. 7. 
 
 Making false entries in the books of the public funds. By s. 5, 
 ** whosoever shall wilfully make any false entry in, or wilfully alter 
 any word or figure in, any of the books of account kept by the 
 governor and company of the bank of England or the governor and 
 company of the bank of Ireland, in which books the accounts of the 
 owners of any stock, annuities, or other public funds which now are 
 or hereafter may be transferable at the bank of England or at the bank 
 of Ireland shall be entered and kept, or shall in any manner wilfully 
 falsify any of the accounts of any such owners in any of the said 
 books, with intent in any of the cases aforesaid to defraud, or shall 
 wilfully make any transfer of any share or interest of or in any stock, 
 annuity, or other public fund which now is or hereafter may be trans- 
 ferable at the bank of England or at the bank of Ireland, in the name 
 of any person not being the true and lawful owner of such share or 
 interest, with intent to defraud, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any term not less than three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labor, and with or without solitary con- 
 finement." 
 
 Clerks of the bank making out false dividend warrants. By s. 
 6, " whosoever, being a clerk, officer, or servant of, or other person em-
 
 702 FORGERY. 
 
 ployed or intrusted by the governor and company of the bank of Eng- 
 land, or the governor and company of the bank of Ireland, shall know- 
 ingly make out or deliver any dividend warrant or warrant for payment 
 of any annuity, interest, or money payable at the bank of England or 
 Ireland for a greater or less amount than the person on whose behalf 
 sucli warrant shall be made out is entitled to, with intent to defraud, 
 shall be guilty of felony, and being convicted thereof shall be liable, at 
 the discretion of the court, to be kept in penal servitude for any term not 
 exceeding seven years and not less than three [now five] years, or to 
 be imprisoned for any term not exceeding two years, with or without 
 hard labor, and with or without solitary confinement." 
 
 Forging East India securities. By s. 7, "whosoever shall forge 
 or alter, or shall oifer, utter, dispose of, or put off, knowing the same 
 to be forged or altered, any bond commonly called an East India bond, 
 *fiJ.8l *^^ ^"^ bond, debenture, or security issued or made under the 
 -I authority of an act passed or to be passed relating to the East 
 Indies, or any indorsement on or assignment of any such bond, deben- 
 ture, or security, with intent to defraud, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term not less than three 
 [now five] years, or to be imprisoned for any term not exceeding 
 two years, with or without hard labor, and with or without soli- 
 tary confinement." 
 
 Forging East India loan securities. By the East India Loan 
 Acts, 1873, 1874, 36 & 37 Vict. c. 32, s. 13 ; 37 & 38 Vict. c. 3, s. 13, 
 the provisions of the above (sect. 7) are extended to the debentures and 
 bonds issued under those acts. 
 
 Forging exchequer bills, bonds, debentures, etc. By s. 8, " who- 
 soever shall forge or alter, or shall offer, utter, dispose of, or put off, 
 knowing the same to be forged or altered, any exchequer bill, or ex- 
 chequer bond, or exchequer debenture, or any indorsement on or as- 
 signment of any exchequer bill, or exchequer bond, or exchequer 
 debenture, or any receipt or certificate for interest accruing thereon, 
 with intent to defraud, shall be guilty of felony, and being convicted 
 thereof, shall be liable, at the discretion of the court, to be kept in 
 penal servitude for life, or for any term not less than three [now five] 
 years, or to be imprisoned for any term not exceeding two years, with or 
 without hard labor, and with or without solitary confinement." 
 
 Making plates, etc., in imitation of those used for exchequer 
 bills, etc. By s. 9, "whosoever, without lawful authority or excuse 
 (the proof whereof shall lie on the party accused), shall make, or cause 
 or procure to be made, or shall aid or assist in making, or shall know- 
 ingly have in his custody or possession, any frame, mould, or instru- 
 ment having therein any words, letters, figures, marks, lines, or de- 
 vices peculiar to and appearing in the substance of any paper provided
 
 FORGERY. 703 
 
 or to be provided or used for exchequer bills, or exchequer bonds, or 
 exchequer debentures, or any machinery for working any threads into 
 the substance of any paper, or any such thread, and intended to imi- 
 tate such words, letters, figures, marks, lines, threads, or devices, or 
 any plate peculiarly employed for printing such exchequer bills, bonds, 
 or debentures, or any die or seal peculiarly used for preparing any such 
 plate, or for sealing such exchequer bills, bonds, or debentures, "or any 
 plate, die, or seal intended to imitate any such plate, die, or seal as 
 aforesaid, shall be guilty of felony, and being convicted thereof shall 
 be liable, at the discretion of the court, to be kept in penal servitude 
 for any term not exceeding seven years, and not less than three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labor, and with or without solitary con- 
 finement." 
 
 Making paper in imitation of that used for exchequer bills. By 
 
 s. 10, "whosoever, without lawful authority or excuse (the proof 
 whereof shall lie on the party accused), shall make or cause or pro- 
 cure to be made, or aid or assist in making, any paper in the sub- 
 stance 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 such ex- r*r/iQ 
 chequer bills, bonds, or debentures, or any part of such words, L ^ ^ 
 letters, figures, marks, lines, threads, or other devices, and intended 
 to imitate the same, or shall knowingly have in his custody or posses- 
 sion any paper whatsoever, in the substance whereof shall appear any 
 such words, letters, figures, marks, lines, threads, or devices as afore- 
 said, or any parts of such words, letters, figures, marks, lines, threads, 
 or other devices, and intended to imitate the same, or 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 shall take or 
 assist in taking any impression of any such plate, die, or seal, as in the 
 last preceding section mentioned, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding seven years, and 
 not less than three [now five] years, or to be imprisoned for any term 
 not exceeding two years, with or without hard labor, and with or with- 
 out solitary confinement. 
 
 Having in possession paper, plates, or dies to be used for ex- 
 chequer bills, etc. By s. 11, "whosoever without lawful authority 
 or excuse (the proof whereof shall lie on the party accused), shall pur- 
 chase or receive or knowingly have in his custody or possession any 
 paper manufactured and provided by or under the directions of the 
 commissioners of inland revenue or commissioners of her Majesty's 
 treasury, for the purpose of being used as exchequer bills, or exchequer 
 bonds, or exchequer debentures, before such paper shall have been duly
 
 704 * FORGERY. 
 
 stamped, signed, and issued for the public use, or any such plate, die, 
 or seal, as in the last two preceding sections mentioned, shall be guilty 
 of a misdemeanor, and being convicted thereof shall be liable, at the 
 discretion of the court, to be imprisoned for any term not exceeding 
 three years, with or without hard labor." 
 
 Forging bank notes and bills. By s. 12, "whosoever shall forge 
 or alter, or shall offer, utter, dispose of, or put off, knowing the same 
 to be forged or altered, any note or bill of exchange of the governor 
 and company of the bank of England, or of the governor and com- 
 pany of the bank of Ireland, or of any other body corporate, company, 
 or persons carrying on the business of bankers, commonly called a 
 bank note, a bank bill of exchange, or a bank post bill, or any indorse- 
 ment on or assignment of any bank note, bank bill of exchange, or 
 bank post bill, with intent to defraud, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term not less than 
 three [now five] years, or to be imprisoned for any term not exceeding 
 two years, with or without hard labor, and with or without solitary 
 confinement." 
 
 Purchasing or receiving or having forged bank notes and bills. 
 
 By s. 13, "whosoever, without lawful authority or excuse (the proof 
 whereof shall lie on the party accused), shall purchase or receive from 
 any other person, or have in his custody or possession, any forged bank 
 note, bank bill of exchange, or bank post bill, or blank bank note, 
 blank bill of exchange, or blank post bill, loiowing the same to 
 j^- -„-, *be forged, shall be guilty of felony, and being convicted there- 
 -1 of, shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding fourteen years and not less 
 than three [now five] years, or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labor." 
 
 Making or having mould or paper for forging notes of banks of 
 England and Ireland. By s. 1 4, " whosoever, without lawful author- 
 ity or excuse (the proof whereof shall lie on the party accused), shall 
 make or use, or knowingly have in his custody or possession, any frame, 
 mould, or instrument for the making of paper with the words ' bank 
 of England ' or ' bank of Ireland,' or any part of such words intended 
 to resemble and pass for the same, visible in the substance of the paper, 
 or for the making of paper Avith curved or waving bar lines, or Avith 
 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 let- 
 ters, visible in the substance of the paper, or with any device or dis- 
 tinction peculiar to and appearing in the substance of the paper used 
 by the governor and company of the banks of England and Ireland 
 respectively for any notes, bills of exchange, or bank post bills of such 
 banks respectively, or shall make, use, sell, expose to sale, utter, ov 
 dispose of, or knowingly have in his custody or possession, any paper
 
 FORGERY. 705 
 
 whatsoever with the words ' bank of England ' or ' bank of Ireland,' 
 or any part of such words intended to resemble and pass for the same, 
 visible in the substance of the paper, or any paper with curved or 
 Avaving bar lines, or with the laying wire lines thereof in a waving or 
 curved shape, or with any number, sum or amount expressed in a word 
 or words in Roman letters, appearing visible in the substance of the 
 paper, or with any device or distinction peculiar to and appearing in 
 the substance of the paper used by the governor and company of the 
 banks of England and Ireland respectively for any notes, bills of ex- 
 change, or bank post bills of such banks respectively, or shall by any 
 art or contrivance cause the words ' bank of England ' or ' bank of 
 Ireland,' or any part of such words intended to resemble and pass for 
 the same, or any device or distinction peculiar to and appearing in the 
 substance of the paper used by the governor and company of the banks 
 of England and Ireland respectively for any notes, bills of exchange, or 
 bank post bills of such banks respectively, to appear visible in the 
 substance of any paper, or shall cause the numerical sum or amount of 
 any bank note, bank bill of change, or bank post bill, blank bank 
 note, blank bank bill of exchange, or blank bank post bill, in a word 
 or words in Roman letters, to appear visible in the substance of the 
 paper whereon the same shall be written or printed, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion of 
 the court, to be kept in penal servitude for any term not exceeding 
 fourteen years and not less than three [now five] years, or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labor." 
 
 But it is provided, by s. 15, that "nothing in the last preceding 
 section contained shall prevent any person from issuing any bill of ex- 
 change or promissory note having the amount thereof expressed in 
 guineas, or in a numerical figure or figures denoting the amount 
 thereof in pounds sterling appearing visible in the substance of 
 the paper upon which the same shall be written or printed, nor 
 *shall prevent any person from making, using, or selling any t^ickki 
 paper having waving or curved lines, or any other devices in L ' 
 the nature of water-marks visible in the substance of the paper, not 
 being bar lines or laying wire lines, provided the same are not so con- 
 trived as to form the groundwork or texture of the paper, or to resem- 
 ble the waving or curved laying wire lines or bar lines, or the water- 
 marks of the paper used by the governor and company of the banks 
 of England and Ireland respectively." 
 
 Engraving or having any plate or paper for making forged bank 
 notes or bills. By s. 16, " whosoever, without lawful authority or 
 excuse (the proof whereof shall lie on the party accused), shall en- 
 grave or in anywise make upon any plate Avhatsoever, or upon any 
 wood, stone, or other material, any promissory note, bill of exchange, 
 or bank post bill, or part of a promissory note, bill of exchange, 
 or bank post bill, purporting to be a bank note, bank bill of ex- 
 change, or bank post bill of the governor and company of the bank 
 45
 
 706 FORGERY. 
 
 of England, or of the governor and company of the bank of Ireland, 
 or of any other body corporate, company, or person carrying on the 
 business of bankers, or to be a blank bank note, blank promissory 
 note, blank bank bill of exchange, or blank bank post bill of the 
 governor and company of the bank of England, or of the governor 
 and company of the bank of Ireland, or of any such other body 
 corporate, company, or person as aforesaid, or to be a part of a bank 
 note, promissory note, bank bill of exchange, or bank post bill of the 
 governor and company of the bank of England, or of the governor 
 and company of the bank of Ireland, or of any such other body 
 corporate, company, or person as aforesaid, or any name, word, or 
 character resembling or apparently intended to resemble any sub- 
 scription to any bill of exchange or promissory note issued by the 
 governor and company of the bank of England, or the governor and 
 company of the bank of Ireland, or by any such other body corporate, 
 company or person as aforesaid, or shall use any such plate, wood, 
 stone, or other material, or any other instrument or device, for the 
 making or printing any bank note, bank bill of exchange, or bank 
 post bill, or blank bank note, blank bank bill of exchange, or blank 
 bank post bill, or part of a bank note, bank bill of exchange, or bank 
 post bill, or knowingly have in his custody or possession any such 
 plate, wood, stone, or other material, or any such instrument or de- 
 vice ; or shall knowingly oifer, utter, dispose of, or put oif, or have in 
 his custody or possession any paper upon which any blank bank note, 
 blank bank bill of exchange, or blank bank post bill of tlie governor 
 and company of the bank of England, or of the governor and com- 
 pany of the bank of Ireland, or of any such other body corporate, 
 company, or person as aforesaid, or part of a bank note, bank bill of 
 exchange, or bank post bill, or any name, word, or character resem- 
 bling or apparently intended to resemble any such subscription, shall 
 be made or printed, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding fourteen years, and not 
 less than three [now five] years, or to be imprisoned for any term not 
 exceeding two years with or without hard labor, and with or with- 
 out solitary confinement." 
 
 Engraving any part of a bank note or bill, or using or having any 
 such plate, uttering or having any impression thereof. By section 
 ^t-f-rt-i 17, *" whosoever, without lawful authority or excuse (the proof 
 -■ whereof shall lie on the party accused), shall engrave or in any- 
 wise make upon any plate whatsoever, or upon any wood, stone, or 
 other material, any word, number, figure, device, character, or orna- 
 ment the impression taken from which shall resemble or apparently be 
 intended to resemble any part of a bank note, bank bill of exchange, 
 or bank post bill of the governor and company of the bank of Eng- 
 land, or of the governor and company of the bank of Ireland, or of 
 any other body corporate, company, or person carrj'ing on the 
 business of bankers, or shall use or knowingly have in his custody or
 
 FORGERY. 707 
 
 possession any such plate, wood, stone, or other material, or any other 
 instrument or device for the impressing or making upon any paper or 
 other material any word, number, figure, character, or ornament 
 which shall resemble or apparently be intended to resemble any part 
 of a bank note, bank bill of exchange, or bank post bill of the governor 
 and company of the bank of England, or of the governor and company 
 of the bank of Ireland, or of any such other body corporate, com- 
 pany, or person as aforesaid, or shall knowingly offer, utter, dispose 
 of, or put off, or have in his custody or possession, any paper or other 
 material upon which there shall be an impression of any such matter 
 as aforesaid, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for any term not exceeding fourteen years and not less than 
 three [now five] years, or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labor, and with or without 
 solitary confinement." 
 
 Making or having mould for making paper with the name of any 
 banker thereon, or making or having such paper. By section 18, 
 *' whosoever, without lawfid authority or excuse (the proof whereof 
 shall lie on the party accused), shall make or use any frame, mould, 
 or instrument for the manufacture of paper, with the name or firm of 
 any body corporate, company, or person carrying on the business of 
 bankers (other than and except the banks of England and Ireland 
 respectively), appearing visible in the substance of the paper, or 
 knowingly have in his custody or possession any such frame, mould, 
 or instrument, or make, use, sell, expose to sale, utter, or dispose of, 
 or knowingly have in his custody or possession any paper in the sub- 
 stance of which the name or firm of any such body corporate, com- 
 pany or person shall appear visible, or by any art or contrivance 
 cause the name or firm of any such body corporate, company, or person 
 to appear visible in the substance of the paper upon which the same 
 shall be written or printed, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be kept 
 in penal servitude for any term not exceeding foui-teen years, and not 
 less than three [now five] years, or to be imprisoned for any term not 
 exceeding two years, with or without hard labor, and with or with- 
 out solitary confinement." 
 
 Engraving plates for foreign bills or notes, or using or having such 
 plates, or uttering or having any impression thereof. By s. 19, " who- 
 soever, without lawful authority or excuse (the proof whereof shall 
 lie on the party accused), shall engrave or in anywise make upon any 
 plate whatsoever, or upon any wood, stone, or other material, any 
 *bill of exchange, promissory note, undertaking, or order for r*Kco 
 payment of money, or any part of any bill of exchange, prom- •- 
 issory note, undertaking, or order for payment of money, in whatever 
 language the same may be expressed, and whether the same shall or 
 shall not be or be intended to be under seal, purporting to be the bill, note,
 
 708 FOEGERY. 
 
 undertaking, or order, or part of the bill, note, undertaking, or order of 
 any foreign prince or state, or of any minister or officer in the service 
 of any foreign prince or state, or of any body corporate, or body of the 
 like nature, constituted or recognized by any foreign prince or state, 
 or of any person or company of persons resident in any country not 
 under the dominion of her Majesty, or shall use, or knowingly have 
 in his custody or possession any plate, stone, wood, or other material 
 upon which any such foreign bill, note, undertaking, or order, or any 
 part thereof, shall be engraved or made, or shall knowingly offer, 
 utter, dispose of, or put off, or 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, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding fourteen years and 
 not less than three [now five] years, or to be imprisoned for any term 
 not exceeding two years, with or without hard labor, and with or 
 without solitary confinement." 
 
 Forging deeds, bonds, etc. By s. 20, " whosoever, with intent to 
 defraud, shall forge or alter, or shall offer, utter, dispose of, or put off, 
 knowing the same to be forged or altered, any deed or any bond or 
 writing obligatory, or any assignment at law or in equity of any such 
 bond or writing obligatory, or shall forge any name, handwriting, or 
 signature purporting to be the name, handwriting, or signature of a 
 witness attesting the execution of any deed, bond or writing obliga- 
 tory, or shall offer, utter, dispose of, or put off any deed, bond, or 
 writing obligatory, having thereon any such forged name, handwrit- 
 ing, or signature, knowing the same to be forged, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion of 
 the court, to be kept in penal servitude for life or for any term not 
 less than three [now five] years, or to be imprisoned for any term not 
 exceeding two years, with or without hard labor, and with or without 
 solitary confinement." 
 
 Forging wills. By s. 21, " whosoever, with intent to defraud, shall 
 forge or alter, or shall offer, utter, dispose of, or put off, knowing the 
 same to be forged or altered, any will, testament, codicil, or testa- 
 mentary instrument, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for life, or for any term not less than three [now five] 
 years, or to be imprisoned for any term not exceeding two years, 
 v/ith or without hard labor, and with or without solitary confine- 
 un.'nt." 
 
 Forging, bills of exchange or promissory notes. By s. 22, " Avhoso- 
 ever shall forge or alter, or shall offer, utter, dispose of, or put off, 
 knowing the same to be forged or altered, any bill of exchange, or 
 any aoceptancc, indorsement, or assignment of any bill of ex(,'hange, 
 or any prondssory note for the payment of money, or any indorsement,
 
 FORGERY. 703 
 
 or assignment of any sncli promissory note, with intent to defraud, 
 *shall be guilty of felon}^, and being convicted thereof shall be r^j^-rj^ 
 liable, at the discretion of the court, to be kept in penal servi- ^ '^'^ 
 tude for life, or for any term not less than three [now five] years, of 
 to be imprisoned for any term not exceeding two years, with or with-, 
 out hard labor, and with or without solitary confinement." 
 
 Forging orders, receipts, etc., for money or goods. By s. 23, 
 
 " whosoever shall forge or alter, or shall oifer, utter, dispose of, or put 
 off, knowing the same to be forged or altered, any undertaking, war- 
 rant, order, authority, or request, for the payment of money, or for 
 the delivery or transfer of any goods or chattels, or of any note, 
 bill, or other security for the payment of money, or for procuring or 
 giving credit, or any indorsement on or assignment of any such un- 
 dertaking, warrant, order, authority, or request, or any accountable 
 receipt, acquittance, or receipt for money or goods, or for any 
 note, bill, or other security for the payment of money, or any indorse- 
 ment on or assignment of any such accountable receipt, with intent, 
 in any of the cases aforesaid, to defraud, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for life or for any term not less 
 than three [now five] years, or to be imprisoned for any term not 
 exceeding two years, with or without hard labor, and with or without 
 solitary confinement." 
 
 Drawing, making, accepting, indorsing, or signing bills, notes, 
 receipts, etc., without authority. By s. 24, " whosoever, with intent 
 to defraud, shall draw, make, sign, accept, or indorse any bill of ex- 
 change, or promissory note, or any undertaking, warrant, order, au- 
 thority, or request for the payment of money, or for the delivery or 
 transfer of goods or chattels, or of any bill, note, or other security for 
 money by procuration or otherwise, for, in the name, or on the account 
 of any other person, without lawful authority or excuse, or shall offer, 
 utter, dispose of, or put off any such bill, note, undertaking, warrant, 
 order, authority, or request so drawn, made, signed, accepted, or in- 
 dorsed by procuration or otherwise, without lawful authority or excuse 
 as aforesaid, knowing the same to have been so drawn, made, signe^l, 
 accepted, or indorsed as aforesaid, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding fourteen years 
 and not less than three [now five] years, or to be imprisoned for any 
 term not exceeding two years, with or without hard labor, and \vith 
 or without solitary confinement." 
 
 Obliterating crossings on cheques. By s. 25, " whenever any cheque 
 or draft on any banker shall be (crossed with the name of a banker, 
 or with two transverse lines with the words 'and company,' or any 
 abbreviation thereof, whosoever shall obliterate, add to, or alter any 
 such crossing, or shall offer, utter, dispose of, or put off any cheque
 
 710 FORGERY. 
 
 or draft wliercon any such obliteration, addition, or alteration has 
 been made, knowing the same to have been made with intent, in any 
 of the cases aforesaid, to defraud, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life or for any terra not less than 
 three [now five] years, or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labor, and with or without 
 ^(.ppl *solitary confinement." Extended to stocks under the Local 
 ' '^'^■^ Authorities Loan Act, 38 & 39 Vict. c. 83, by section 32. 
 
 Forging debentures. By s. 26, "whosoever shall fraudulently 
 forge or alter, or shall offer, utter, dispose of, or put off, knowing the 
 same to be forged or fraudulently altered, any debenture issued under 
 any lawful authority whatsoever, either within her Majesty's domin- 
 ions or elsewhere, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for any term not exceeding fourteen years and not less than 
 three [now five] years, or to be imprisoned for any term not exceeding 
 two years, with or without hard labor, and with or without solitary 
 confinement." 
 
 Forging proceedings of courts of record. By s. 27, "whoso- 
 ever shall forge or fraudulently alter, or shall offer, utter, dispose of, 
 or put off, knowing the same to be forged or fraudulently altered, any 
 record, writ, return, panel, process, rule, order, warrant, interrogatory, 
 deposition, affidavit, affirmation, recognizance, cognovit actionem, or 
 warrant of attorney, or any original docimient whatsoever of or be- 
 longing to any court of record, or any bill, petition, process, notice, 
 rule, answer, pleading, interrogatory, deposition, affidavit, affirmation, 
 report, order, or decree, or any original document whatsoever of or be- 
 longing to any court of equity or court of admiralty in England or Ire- 
 land, or any document or writing, or any copy of any document or writ- 
 ing used or intended to be used as evidence in any court in this section 
 mentioned, shall be guilty of felony, and being convicted thereof shall be 
 liable, at the discretion of the court, to be kept in penal servitude for any 
 term not exceeding seven years and not less than three [now five] 
 years, or to be imprisoned for any term not exceeding two years, with 
 or without hard labor, and with or without solitary confinement." 
 
 Forging copies or certificates of records, process of courts not 
 of record, and using forged process. By s. 28, " whosoever, being 
 the clerk of any court, or other officer having the custody of the rec- 
 ords of any court, or being the deputy of any such clerk or officer, 
 shall utter any false copy or certificate of any record, knowing the 
 same to be false ; and whosoever, other than such clerk, officer, or 
 deputy, shall sign or certify any copy or certificate of any record as 
 such clerk, officer, or deputy ; and whosoever shall forge or fraudu- 
 lently alter, or offer, utter, dispose of, or put off, knoAving the same to 
 be forged or fraudulently altered, any coj)y or certificate of any record,
 
 FORGERY. 711 
 
 or shall offer, utter, dispose of, or put off any copy or certificate of any 
 record having thereon any false or forged name, handwriting, or sig- 
 nature, knowing the same to be false or forged ; and whosoever shall 
 forge the seal of any court of record, or shall forge or fraudulently 
 alter any process of any court other than such courts as in the last 
 preceding section mentioned, or shall serve or enforce any forged pro- 
 cess of any court whatsoever, knowing the same to be forged, or shall 
 deliver or cause to be delivered to any person any paper falsely pur- 
 porting to be any such process, or a copy thereof, or to be any judgment, 
 decree, or order of any court of law or equity, or a copy thereof, 
 knowing the same to be false, or shall act or profess to act under any 
 such false process, knowing the same to be false, shall be guilty of 
 *felony, and being convicted thereof shall be liable, at the dis- rjicKKft 
 cretion of the court, to be kept in penal servitude for any term L 
 not exceeding seven years, and not less than three [now five] years, or 
 to be imprisoned for any term not exceeding two years, with or with- 
 out hard labor, and with or without solitary confinement." 
 
 See also 9 & 10 Vict. c. 95, s. 57, which contains a similar provision 
 as to county court process. 
 
 Forging instruments made evidence by act of parliament. By 
 
 s. 29, " whosoever sliall forge or fraudulently alter, or shall offer, utter, 
 dispose of, or put off, knowing the same to be forged or fraudulently 
 altered, any instrument, whether written or printed, or partly written 
 and partly printed, which is or shall be made evidence by any act 
 passed or to be passed, and for which offence no punishment is 
 herein provided, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal servi- 
 tude for any term not exceeding seven years and not less than three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labor, and with or without solitary con- 
 finement." 
 
 Forging court rolls. By s. 30, " whosoever shall forge or alter, or 
 shall offer, utter, dispose of, or put off, knowing the same to be forged 
 or altered, any court roll or copy of any court roll, relating to any 
 copyhold or customary estate, with intent to defraud, shall be guilty 
 of felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for life or for any term not 
 less than three [now five] years, or to be imprisoned for any term not 
 exceeding two years, with or without hard labor, and with or without 
 solitary confinement." 
 
 Forging register of deeds. By s. 31, "whosoever shall forge or 
 fraudulently alter, or shall offer, utter, dispose of, or put off, knowing 
 the same to be forged or fraudulently altered, any memorial, affidavit, 
 affirmation, entry, certificate, indorsement, document, or writing, made 
 or issued under the provisions of any act passed or hereafter to be 
 passed for or relating to the registry of deeds, or shall forge or coun-
 
 712 FORGERY. 
 
 terfeit the seal of or belonging to any office for the registry of deeds, 
 or any stamp or impression of any such seal ; or shall forge any 
 name, handwriting, or signature, purporting to be the name, hand- 
 writing, or signature of any person to any such memorial, affidavit, 
 affirmation, entry, certificate, indorsement, document, or writing, 
 which shall be required or directed to be signed by or by virtue 
 of any act passed or to be passed, or shall offer, utter, dispose of, 
 or put off any such memorial or other writing as in this section 
 before mentioned, having thereon any such forged stamp or impres- 
 sion of any such seal, or any such forged name, handwriting, or 
 signature, knowing the same to be forged, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding four- 
 teen years and not less than three [now five] years, or to be imprisoned 
 for any term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement." 
 
 ^__--| *Porging orders of justice, recognizances, affidavits, etc. 
 -I By s. 32, " whosoever, with intent to defraud, shall forge or 
 alter, or shall offer, utter, dispose of, or put off, knowing the same to be 
 forged or altered, any summons, conviction, order, or warrant of any jus- 
 tice of the peace, or any recognizance puqiorting to have been entered 
 into before any justice of the peace, or other officer authorized to take 
 the same, or any examination, deposition, affidavit, affirmation, or solemn 
 declaration, taken or made before any justice of the peace, shall be 
 guilty of felony, and being convicted thereof shall be liable, at the dis- 
 cretion of the court, to be kept in penal servitude for the term of three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labor, and with or without solitary con- 
 finement." 
 
 Forging name of officer of any court, or of the bank of Eng- 
 land or Ireland. By s. 33, " whosoever, with intent to defraud, shall 
 forge or alter any certificate, report, entry, indorsement, declaration of 
 trust, note, direction, authority, instrument, or writing made, or pur- 
 porting or appearing to be made, by the accountant-general (now pay- 
 master-general or his deputy clerk or officer, 35 & 36 Vict. c. 44, s. 
 11), or any other officer of the Court of Chancery in England or Ire- 
 land, or by any judge or officer of the Landed Estates Court in Ire- 
 land, or by any officer of any court in England or Ireland, or by any 
 cashier or other officer or clerk of the governor and company of the 
 bank of England or Ireland, or the name, handwriting, or signature 
 of any such accountant-general, judge, cashier, officer, or clerk as 
 aforesaid, or shall offer, utter, dispose of, or put off, any such certifi- 
 cate, repc>rt, entry, indorsement, declaration of trust, note, direction, 
 authority, instrument, or writing, knowing the same to be forged or 
 altered, shall be guilty of felony, and being convicted thereof shall be 
 liable, at the discretion of the court, to be kept in penal servitude for 
 any term not exceeding fourteen years and not less than three [now
 
 FORGERY. 713 
 
 five] years, or to be imprisoned for any term not exceeding two years, 
 with or without hard labor, and with or without solitary confine- 
 ment." 
 
 Forging of marriage license or certificate. By s. 35, " whosoever 
 shall forge or fraudulently alter any license of or certificate for mar- 
 riage, or shall offer, utter, dispose of, or put oif any such license or 
 certificate, knowing the same to be forged or fraudulently altered, shall 
 be guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term not 
 exceeding seven years and not less than three [now five] years, or to 
 be imprisoned for any term not exceeding two years, with or without 
 hard labor, and with or without solitary confinement." 
 
 Destroying, altering, or forging parish registers, and giving false 
 certificates. By s. 36, " whosoever shall unlawfully destroy, deface, 
 or injure, or cause or permit to be destroyed, defaced, or injured, any 
 register of births, baptisms, marriages, deaths, or burials, which now 
 is or hereafter shall be by law authorized or required to be kept in 
 England or Ireland, or any part of any such register, or any certified 
 copy of any such register, or any part thereof, or shall forge or fraud- 
 ulently alter in any such register, any entry relating to any birth, 
 *baptism, marriage, death, or burial, or any part of such regis- r:(crp-Q 
 ter, or any certified copy of such register, or of any part thereof, ■- 
 or shall knowingly and unlawfully insert or cause or permit to be 
 inserted in any such register, or in any certified copy thereof, any false 
 entry of any matter relating to any birth, baptism, marriage, death, or 
 burial, or shall knowingly and unlawfully give any false certificate re- 
 lating to any birth, baptism, marriage, death, or burial, or shall certify- 
 any writing to be a copy or extract from any such register, knoAving 
 such writing or part of such register whereof such copy or extract 
 shall be so given to be false in any material particular, or shall forge 
 or counterfeit the seal of or belonging to any register-office, or burial 
 board, or shall offer, utter, dispose of, or put off' any such register, 
 entry, certified copy, certificate, or seal, knowing the same to be false, 
 forged, or altered, or shall offer, utter, dispose of, or put off any copy 
 of any entry in any such register, knowing such entry to be false, 
 forged, or altered, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 j)enal servitude for life, or for any term not less than three [now five] 
 years, or to be imprisoned for any term not exceeding two years, with 
 or without hard labor, and with or without solitary confinement." 
 
 Making false entries in copies of register sent to registrar. 
 
 By s. 37, " whosoever shall knowingly and wilfully insert, or cause 
 or permit to be inserted, in any copy of any register directed or re- 
 quired by law to be transmitted to any registrar or other officer any 
 false entry of any matter relating to any baptism, marriage, or burial, 
 or shall forge or alter, or shall offer, utter, dispose of, or put off, know- 
 ing the same to be forged or altered, any copy of any register so
 
 714 FORGERY. 
 
 directed or required to be transmitted as aforesaid, or shall know- 
 ingly and wilfully sign or verify any copy of any register so "directed 
 or required to be transmitted as aforesaid, which copy shall be 
 false in any part thereof, knowing the same to be false, or shall un- 
 lawfully destroy, deface, or injure, or shall, for any fraudulent pur- 
 pose, take from its place of deposit, or conceal, any such copy of any 
 register, shall be guilty of felony, and being convicted thereof shall 
 be liable, at the discretion of the court, to be kept in penal servitude 
 for life, or for any term not less than three [now five] years, or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labor, and with or without solitary confinement." 
 
 Demanding property on forged instruments. Bys. 38, "whoso- 
 ever, with intent to defraud, shall demand, receive, or obtain, or cause, 
 or procure to be delivered or paid to any person, or endeavor to re- 
 ceive or obtain, or to cause or procure to be delivered or paid to any 
 person, any chattel, money, security for money, or other property 
 whatsoever, under, upon, or by virtue of any forged or altered instru- 
 ment whatsoever, knowing the same to be forged or altered, or under, 
 upon, or by virtue of any probate or letters of administration, know- 
 ing the will, testament, codicil, or testamentary writing on which 
 such probate or letters of administration shall have been obtained 
 to have been forged or altered, or knowing such probate or letters 
 of administration to have been obtained by any false oath, 
 affirmation, or affidavit, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 ^-P-q-i *kept in penal servitude for any term not exceeding fourteen 
 -• years, and not less than three [now five] years, or to be impris- 
 oned for any term not exceeding two years, with or without hard labor, 
 and with or without solitary confinement." ^ 
 
 Forging any instrument however designated which is in law a 
 will, deed, bill of exchange, etc. By s. 39, " where by this or by 
 any other act any other person is or shall hereafter be made liable to 
 punishment for forging or altering, or for offering, uttering, dis- 
 posing of, or putting off, knowing the same to be forged or altered, 
 any instrument or writing designated in such act by any special 
 name or description, and such instrument or writing, however desig- 
 nated, shall be in law a will, testament, codicil, or a testamentary 
 writing, or a deed, bond, or writing obligatory, or a bill of exchange, 
 or a promissory note for the payment of money, or an indorsement on 
 or assignment of a bill of exchange or promissory note for the pay- 
 ment of money, or an acceptance of a bill of exchange, or an under- 
 taking, M^arrant, order, authority, or request for the payment of money, 
 or an indorsement on or assignment of an undertaking, warrant, order, 
 authority, or request for the payment of money, within the true intent 
 and meaning of this act, in every such case the person forging or 
 
 ^ A telegram asking for money may be the subject of a forgery, Dooley v. State, 
 21 Tex. App. 549.
 
 FORGEEY. 715 
 
 altering such instrument or writing, or offering, uttering, disposing of, 
 or putting off such instrument or writing, knowing the same to be 
 forged or altered, may be indicted as an offender against this act, and 
 punished accordingly." 
 
 Forging documents purporting to be made abroad or bills of ex- 
 change, etc., passable abroad. By s, 40, " where the forging or 
 altering any writing or matter whatsoever, or the offering, uttering, 
 disposing of, or putting off any writing or matter whatsoever, know- 
 ing the same to be forged or altered, is in this act expressed to be an 
 offence, if any person shall, in England or Ireland, forge or alter, 
 or offer, utter, dispose of, or put off, knowing the same to be forged 
 or altered, any such writing, or matter, in whatsoever place or country 
 out of England and Ireland, whether under the dominion of her 
 majesty or not, such writing or matter may purport to be made or 
 may have been made, and in whatever language the same or any 
 part thereof may be expressed, every such person, and every person 
 aiding, abetting, or counselling 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 writing or matter had purported 
 to be made or had been made in England or Ireland ; and if any 
 person shall in England or Ireland forge or alter, or offer, utter, 
 dispose of, or put off, knowing the same to be forged or altered, 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, order, authority, or 
 request for the payment of money, or for the delivery or transfer of 
 any goods or security, or any deed, bond, or writing obligatory for 
 the payment of money (whether such deed, bond, or writing obliga- 
 tory shall be made only for the payment of money, or for the pay- 
 ment of money together with some other purpose), or any indorse- 
 ment on or assignment of any such undertaking, Avarrant, order, 
 authority, request, deed, bond, or writing obligatory, in whatsoever 
 *place or country out of England and Ireland, whether under r^rar) 
 the dominion of her majesty or not, tlie money payable or se- L 
 curcd by such bill, note, undertaking, warrant, order, authority, request, 
 deed, bond, or writing obligatory, may be, or may purport to be payable, 
 and in whatever language the same respectively or any part thereof 
 may be expressed, and whether such bill, note, undertaking, warrant, 
 order, autliority, or request be or be not under seal, every such person, 
 and every person aiding, abetting, or counselling such person, 
 shall be deemed to be an offender within the meaning of this act, 
 and shall be punishable thereby in the same manner as if the money 
 had been payable or had purported to be payable in England or 
 Ireland." 
 
 Offences triable where prisoner apprehended. By s. 41, " If any 
 person shall commit any offence against this act, or shall commit any
 
 716 FORGERY. 
 
 offence of forging or altering any matter whatsoever, or of offering, 
 uttering, disposing of, or putting off any matter whatsoever, knowing 
 the same to be forged or altered, whether the offence in any such case 
 shall be indictable at common law, or by virtue of any act passed 
 or to be passed, every such offender may be dealt with, indicted, tried, 
 and punished in any county or place in which he shall be appre- 
 hended or be in custody, in the same manner in all resjiects as if his 
 offence had been actually committed in that county or place ; and 
 every accessory before or after the fact to any such offence, if the same 
 be a felony, and every person aiding, abetting, or counselling the com- 
 mission of any such offence, if the same be a misdemeanor, may be 
 dealt with, indicted, tried, and punished, in any county or place in 
 which he shall be apprehended or be in custody, in the same manner 
 in all respects as if his offence, and the offence of his principal, had 
 been actually committed in such county or place." 
 
 Description of instruments in indictments for forgery. By s. 42, 
 " in any indictment for forging, altering, offering, uttering, disposing 
 of, or putting off any instrument it shall be sufficient to describe 
 such instrument by any name or designation by which the same may 
 be usually known, or by the purport thereof, without setting out any 
 copy or fac-simile thereof, or otherwise describing the same or the 
 value thereof." • 
 
 Description of instrument in indictments for engraving, etc. By 
 
 s. 43, " in any indictment for engraving or making the Avhole or any 
 part of any instrument, matter or thing whatsoever, or for using or 
 having the unlawful custody or possession of any plate or other 
 material upon which the whole or any part of any instrument, matter, 
 or thing whatsoever shall have been engraved or made, or for having 
 the unlawful custody or possession of any paper upon whicli the 
 whole or any part of any instrument, matter, or thing whatsoever 
 shall have been made or printed, it shall be sufficient to describe 
 such instrument, matter, or thing by any name or designation by 
 whicli the same may be usually known, without setting out any copy 
 or fac-simile of the whole or any part of such instrument, matter, or 
 thing." 
 
 Intent to defraud particular persons need not be alleged or 
 proved. By s. 44, " it shall be sufficient, in any indictment for forging, 
 *'"fin *^ltering, uttering, offering, disposing of, or putting off any 
 -I instrument whatsoever, where it sliall be neces^"ary to allege 
 any intent to defraud, to allege tliat the party accused did the act with 
 intent to defraud, without alleging an intent to defraud any particular 
 person ; and on the trial of any such offence it shall not bo necessary 
 to prove an intent to defraud any particular ])erson, but it shall be 
 sufficient to prove that the party accused did the act charged, with an 
 intent to defraud."
 
 FORGERY. 717 
 
 Interpretation of the term " possession." By s. 45, " where the 
 having any matter in the custody or possession of any person is in 
 this act expressed to be an offence, if any person sliall have any such 
 matter in his personal custody or possession, or shall knowingly and 
 wilfully have any such matter in the actual custody and possession of 
 any other person, or shall knowingly and wilfully have any such mat- 
 ter in any dwelling-house or other building, lodging, apartment, field 
 or other place, open or inclosed, whether belonging to or occupied by 
 himself or not, and whether such matter shall be so had for his own 
 use or for the use or benefit of another, every such person shall be 
 deemed and taken to have such matter in his custody or possession 
 within the meaning of this act." 
 
 Punishment of forgery under statutes not repealed. By s. 47, 
 "whosoever shall, after the commencement of this act, be convicted of 
 any offence which shall have been subjected by any act or acts to the 
 same pains and penalties as are imposed by the act passed in the fifth 
 year of the reign of Queen Elizabeth, intituled ' An Act against 
 Forgers of False Deeds and Writings,' for any of the offences first 
 enumerated in the said 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 kept in penal servitude for any term not exceeding fourteen 
 years and not less than three [now five] years, or to be imprisoned for 
 any term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement." And by s. 48, " where by any 
 act now in force any person falsely making, forging, counterfeiting, 
 erasing, or altering any matter whatsoever, or uttering, publishing, 
 offering, disposing of, putting away, or making use of any matter 
 whatsoever, knowing the same to have been falsely made, forged, 
 counterfeited, erased, or altered, or any person demanding or endeav- 
 oring to receive or have any thing, or to do or cause to be done 
 any act upon or by virtue of any matter whatsoever, knowing such 
 matter to have been falsely made, forged, counterfeited, erased, or 
 altered, would according to the provisions contained in any such act 
 be guilty of felony, and would, before the passing of tliQ act of the 
 first year of King William tlie Fourth, chapter sixty-six, have been 
 liable to suffer death as a felon ; or where by any act now in force 
 any person falsely personating another, or falsely acknowledging any 
 thing in the name of another, or falsely representing any other per- 
 son than the real party to be such real party, or wilfully malcing a 
 false entry in any book, account, or document, or in any manner wil- 
 fully falsifying any part of any book, account, or document, or wil- 
 fully making a transfer of any sto(!k, annuity, or fund in the name 
 of any person not being the owner thereof, or knowingly taking any 
 false oath, or knowingly making any 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 r*(rp9 
 which such probate shall have been obtained to have been false ^ 
 or forged or knowing such probate or letters of administration to
 
 718 FORGERY. 
 
 have been obtained by means of false oath or false affirmation, Avould, 
 according to the provisions contained in any such act, be guilty of 
 felony, aud would, before the passing of the said act of the first year 
 of King William the Fourth, have been liable to suffer death as a 
 felon ; or where by any act 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 caus- 
 ing certain words to appear visible in the substance of any paper, 
 would, according to the provisions contained in any such act, be 
 guilty of felony, and would, before the passing of the said act of 
 the first year of King William the Fourth, have been liable to suffer 
 deatli as a felon ; then, and in each of the several cases aforesaid, if 
 any person shall, after the commencement of this act, be convicted of 
 any such felony as is hereinbefore in this section mentioned, or of aid- 
 ing, abetting, counselling, or procuring the commission thereof, and 
 the same shall not be punishable under any of the other provisions of 
 this act, every such person shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life, or for any term not less than 
 three [now five] years, or to be imprisoned for any term not exceeding 
 two years, Avith or without hard labor, and with or without solitary 
 confinement." 
 
 Principals in the second degree and accessories. By section 49, 
 "in the case of every felony punishable under this act, every principal 
 in the second degree, and every accessory before the fact, shall be 
 punishable in the same manner as the principal in the first degree is 
 by this act punishable ; and every accessory after the fact to any fel- 
 ony punishable under this act shall on conviction be liable, at the dis- 
 cretion of the court, to be imprisoned for any term not exceeding two 
 years, with or without hard labor, and with or without solitary con- 
 finement ; and every person who shall aid, abet, counsel, or procure 
 the commission of any misdemeanor punishable under this act shall be 
 liable to be proceeded against, indicted, and punished as a principal 
 offender." , 
 
 Forging seal, stamp, or signature of public documents. By 8 
 
 & 9 Vict. c. 113, s. 4, "if any person shall forge the seal, stamp, or 
 signature of any such certificate, official or public document, or docu- 
 ment or proceeding of any corporation, or joint stock or other com- 
 pany, or of any certified copy of any document, by-law, entry in any 
 register or other book or other proceeding as aforesaid, or shall tender 
 in evidence any such certificate, official or public document, or docu- 
 ment or proceeding of any corporation or joint stock or other com- 
 pany, or any certified copy of any document, by-law, entry in any 
 register or other book, or of any other proceeding, with a false or 
 counterfeit seal, stamp, or signature thereto, knowing the same to be 
 false or counterfeit, whether such seal, stamp, or signature be those 
 of or relating to any corporation or company already established, or
 
 FORGERY. 719 
 
 to any corporation or company to be hereafter established ; or if any 
 person shall forge the signature of any such judge as aforesaid to any 
 order, decree, certificate, or other judicial or official document, or 
 *shall tender in evidence any order, decree, certificate, or other r*fr/>o 
 judicial or official document, with a false or counterfeit signa- '- 
 ture of any such judge as aforesaid tliereto, knowing the same to be 
 false or counterfeit ; or if any person shall print any copy of any pri- 
 vate act of, or of the journals of either house of parliament, which 
 copy shall falsely purport to have been printed by the printers to 
 the crown, or by the printers to either house of parliament [or under 
 the superintendence or authority of Her Majesty's stationery office, 
 45 Vict. c. 9, ss. 2, 3], or by any or either of them ; or if any person 
 shall tender in evidence any such copy, knowing that the same was 
 not printed by the person or persons by whom it so purports to have 
 been printed, every such person shall be guilty of felony, and shall, 
 upon conviction, be liable to transportation for seven years, or to im- 
 prisonment for any term not more than three [now five] nor less than 
 one year, with hard labor." 
 
 Forging seal, stamp, or signature of documents made evidence 
 by statute. By the 14 & 15 Vict. c. 99, s. 17, "if any person shall 
 forge the seal, stamp, or signature of any document in this act men- 
 tioned or referred to, or shall tender in evidence any such document 
 with a false or counterfeit seal, stamp, or signature thereto, knowing 
 the same to be false or counterfeit, he shall be guilty of felony, and 
 shall upon conviction be liable to transportation for seven jears, or to 
 imprisonment for any term not exceeding three years nor less than 
 one year, with hard labor ; and whenever any such document shall 
 have been admitted in evidence by virtue of this act, the court or the 
 person who shall have admitted the same may, at the request of any 
 party against whom the same is so admitted in evidence, direct that 
 the same shall be impounded and kept in the custody of some officer 
 of the court or other proper person for such period and subject to such 
 conditions as to the said court or person shall seem meet; and every 
 person who shall be charged with committing any felony under this 
 act, or under the 8 & 9 Vict. c. 113, may be dealt with, indicted, tried, 
 and, if convicted, sentenced, and his offences may be laid and charged 
 to have been committed in the county, district, or place in which he 
 shall be apprehended, or be in custody ; and every accessory before or 
 after the fact to any such offence may l)e dealt with, indicted, tried, 
 and, if convicted, sentenced, and his offence laid and charged to have 
 been committed in any county, district, or place in which the principal 
 offender may be tried." 
 
 Forging trade marks, etc. By the 25 & 26 Vict. c. 88, s. 2, forg- 
 ing trade marks is made a misdemeanor ; and by s. 3, applying, etc., 
 forged trade marks to goods, etc., is made a misdemeanor. By s. 4, 
 knowingly selling goods having forged trade marks upon them is a 
 finable offence.
 
 720 FORGERY. 
 
 Forgery in other cases. There are innumerable provisions scat- 
 tered tliroiigh the statute book which relate to the crime of forgery. 
 Many of these relate to offences which are also provided for by the 
 24 & 25 Vict. c. 98. 
 
 It is always usual, when an act is passed which creates government 
 securities, to provide specially against the offence of forging such 
 securities. If this was necessary before, it is necessary since the 
 24 & 25 Vict. c. 98, with respect to exchequer bills, etc., the 
 j^_„ .-. *clause relating to that class of securities (s. 8) not containing 
 J the prospective words of the clause (s. 7) relating to East India 
 securities. 
 
 As to the forging and uttering, fraudulently mutilating or erasing, 
 of stamps, or of the making or possessing materials for forged stamps, 
 see 33 & 34 Vict. c. 98, ss. 18, 19, 20, 21, 22, 23. 
 
 As to forging stamps on gold aud silver wares, see 7 & 8 Vict. c. 
 22, s. 2. 
 
 As to forgery of certificates annexed to a copy or extract of a pro- 
 clamation, order, or regulation issued by the Queen, the Privy Coun- 
 cil, etc., see 31 & 32 Vict. c. 37. 
 
 As to the forgery of non-parochial registers, see the 3 & 4 Vict. c. 
 92, s. 8 ; for punishment, see 7 & 8 Geo. 4, c. 28, ss. 8 & 9 ; and the 
 7 Will. 4 & 1 Vict. c. 90, s. 5. 
 
 As to forgeries relating to the navy, see the 28 & 29 Vict. c. 124, 
 s. 6. 5 & 6 Will. 4, c 24, s. 3, forgeries relating to service in the 
 navy. 7 Geo. 4, c. 16, false certificate or representation as to Chelsea 
 Hospital ; s. 38, false personation of officers and soldiers entitled to 
 pay, forging their names, etc. 2 & 3 Will. 4, c. 53, s. 49, forgeries 
 relating to officers entitled to prize-money, or to the officers of Chelsea 
 Hospital. 19 & 20 Vict. c. 15, s. 5, as to both hospitals. 2 & 3 Vict, 
 c. 51, forging documents relating to pensions granted for service in the 
 army, navy, royal marines, and ordnance. 19 & 20 Vict. c. 41, s. 6, 
 as to forgeries relating to seamen's savings banks. 
 
 Forging the name of any commissioner or of the comptroller-gen- 
 eral, etc., of the customs, see 39 & 40 Vict. c. 36, s. 28. Unauthorized 
 persons making paper in imitation of excise paper, and persons forg- 
 ing or counterfeiting plates or types, are guilty of felony, and subject 
 to transportation, by the 2 & 3 Will. 4, c. 16 (U. K.), s. 3 ; and by s. 
 4, persons counterfeiting permits, or uttering forged permits, are like- 
 wise guilty of felony, and punishable in the same manner. By the 7 
 & 8 Geo. 4, c. 53 (U. K.), the forging of the name of the receiver- 
 general or comptroller of excise, is made a capital felony ; but the 
 capital punishment is taken away by 1 Will. 4, c. 66. 
 
 The forgery of contracts for the redemption of the land tax is pro- 
 vided against by the 52 Geo. 3, c. 143, s. 6. So the forging of the 
 names of the commissioners of woods and forests, by the 10 Geo. 4, 
 c. 50, s. 124. 
 
 Forging the name of the paymaster-general of the Court of Chan- 
 cery, 35 & 36 Vict. c. 44, s. 12 ; or of certificate of former convic- 
 tion, 7 & 8 Geo. 4, c. 28, s. 11 ; or forging any false certificate or de-
 
 FORGERY. 721 
 
 claration under the Births and Deaths Registration Act, 37 & 38 Vict, 
 c. 88, s. 40, subs. 2. 
 
 Forgeries of documents relating to the suppression of the slave 
 trade are provided against by the 5 Geo. 4, c. 113, s. 10. 
 
 Forgeries relating to the post-office are provided for by the 7 Will. 
 4 & 1 Vict. c. 36, ss. 33 & 34, and 3 & 4 Vict. c. 96, ss. 22, 29, 30, 
 which also applies to telegraphic messages. See 32 & 33 Vict. c. 73, 
 s. 23, and 43 & 44 Vict. c. 33, s. 3. 
 
 Forgeries relating to stage and hackney carriages are provided 
 against by the 2 & 3 Will. 4, c. 120, and the 6 & 7 Vict. c. 86. 
 Forging licenses and documents under the Explosive Substances Act, 
 38 & 39 Vict. c. 17, s. 81; certificates or warranties under the Sale 
 of Food and Drugs Act, 38 & 39 Vict. c. 63. 
 
 Forging any declaration, warrant, order, or other instrument, or 
 *any affidavit or affirmation required by the commissioners for r^rRK 
 the reduction of the national debt, etc., is provided against by '- 
 the 2 & 3 Will. 4, c. 59, s. 19, but the capital punishment is taken 
 away by Stat. Law Rev. Act, 1874. 
 
 Certifying as true any false copy of or extract from any of the 
 records in the public record office ; felony, transportation for life, or 
 not less than seven years, or imprisonment not exceeding four years ; 
 1 & 2 Vict. c. 94, ss. 19 & 20. Master's report as to seamen's charac- 
 ter ; 17 & 18 Vict. c. 104, s. 176. 
 
 Forgery of nomination papers at elections and ballot papers is pro- 
 vided for by the 35 & 36 Vict. c. 33, s. 3, extended to nomination 
 papers in municipal elections, 45 & 46 Vict. c. 50, s. 74, ante, tit. 
 " Elections." Forging seal or signature of municipal corporation, 45 
 & 46 Vict. c. 50, s. 235. 
 
 Fraudulently procuring an entry, erasure or alteration to be made 
 on registry of land under 38 & 39 Vict. c. 87, s. 100, is a misde- 
 meanor, see ante, tit. " Concealment of Deeds." 
 
 Forgery under the Sea Fisheries Act, 1883, 46 & 47 Vict. c. 22, 
 s. 17. 
 
 What amounts to forgery. The act of forgery consists in the 
 making of a false document or writing. It will make no diffi^rence 
 whether an entirely new document be constructed, or whether an old 
 one be altered so as to have a different effect. Thus in R. v. Bleukin- 
 sop, 1 Den. C. C. 276 ; 1 7 L. J., M. C. 62, an address was put to 
 the name of the drawer of a bill of exchange while the bill was in 
 course of completion, with the intention of making the acceptance ap- 
 pear to be that of a different person, and it was held to be forgery. 
 See also R. v. Epps, 4 F. & F. 81.^ 
 
 ^ The forging of any writing by which a person may be prejudiced is forgery at 
 common law. State v. Kimball, 50 Me. 409. Forgery is the signing by one without 
 authority, and falsely and with intent to defraiid, the name of another to an instru- 
 ment wliich, if genuine, might apparently be of legal efficacy or the foundation of a 
 legal liability. State v. Thompson, 19 la. 299. Where an indictment for forgery 
 against the maker of a promissory note charged the defendant with having with fraud- 
 ulent intent written on the back of the note the words " Eeceived the sum of forty- 
 
 46
 
 722 FORGERY. 
 
 In R. V. Autey, Dears. & B. C. C. 294 ; 26 L. J., M. C. 190, the 
 prisoner was convicted npon an indictment for uttering a dividend 
 warrant of a railway company bearing a forged indorsement. The 
 instrument was regularly drawn and signed by tlie secretary in 
 favor of one J. L., and it was stated upon it that the name of J. L. 
 must be indorsed upon the back, and it was proved that without such 
 indorsement the bankers would not pay the dividend even to J. L. 
 himself. Tlie indorsement v/as forged, and it was held that the pris- 
 oner was rightly convicted, as the making of the indorsement M^as a 
 forgery. In this case, R. v. Arscott, 6 C & P. 408, 25 E. C. L., in 
 which it was decided that the forgery of an indorsement of a receipt upon 
 an order for the payment of money was not within the repealed statute 
 11 Geo. 4& 1 Will. 4, c. 66, s. 3, was much relied on for the prisoner. 
 But that case seems to be doubted by some of the judges, and at any 
 rate is confined to the section of the act above mentioned. In R. v. 
 Griffiths, Dears. & B. C. C. 548 ; 27 L. J., M. C. 205, the prisoner was 
 a railway station-master, and it was his duty to pay B. for collecting 
 and delivering parcels for the company, who provided the prisoner 
 with a form in which to enter under dilferent heads the sums so paid 
 by him. The prisoner then paid B. for collecting only, but filled up 
 items of charges for both delivering and collecting, to which he 
 obtained the signature of B.'s servant, apparently acknowledging the 
 receipt of the money. It was held that the prisoner was rightly 
 convicted of forgery. It was once attempted under the former law 
 to convict a man for forgery for indorsing a bill as by procuration of 
 another person without having that person's authority. In R. v. 
 *rppT *Maddock, 2 Russ. Cri. 821, 5th ed., the prisoner was clerk to 
 -I an attorney, and had no authority to indorse bills. He indorsed 
 a bill in the usual form, " per pro. for R. F., G. M.," R. F. being his 
 master's name, and by that means received the amount of the bill. 
 The prisoner was found guilty, and the question whether this was a 
 forgery Avas reserved for the opinion of the judges, but tlie prisoner 
 dying in the meantime no decision was given. But in R. v. White, 
 1 Den. C C. 208, where the same point arose, the judges held that it 
 was no forgery. See now 24 & 25 Vict. c. 98, s. 24, supra, p. 554. 
 If a person, having the blank acceptance of another, be authorized to 
 write on it a bill of exchange for a limited amount, and he write 
 on it a bill of exchange for a larger amount, with intent to de- 
 fraud either the acceptor or any other person, it has been held that it 
 
 six dollars," held that such act did not amount to the crime of forgery. State v. 
 Monnur, 8 Minn. 212. Signing a promissory note in the name of a fictitious firm, 
 with intent to defraud and falsely representing that the firm consists of the writer and 
 another person, is not forgery. Commonwealth j;. Baldwin, 11 Gray, 197. A man who 
 makes a false charge in his own book of account is not guilty of forgery. State v. 
 Young, 40 N. H. 266. Whce a party detached from a written instrument a condition 
 annexed thereto, which condition was made contemporaneously with the instrument, 
 was a part of, and which together with such instrument, constituted one contract, 
 and the detachment of the condition changed the instrument from one which was not 
 negotialjie to one which was ; held forgery. State v. Stratton, 27 la. 420. 
 
 Forgery in altering instrument. State v. Kroega, 47 Mo. 552 ; Flint v. Craig, 59 
 Barb. 319 ; State v. Wooderd, 20 la. 541 ; State v. Kattleman, 35 Mo. 105. S.
 
 FORGEEY. 723 
 
 is forgery. E. v. Hart, 7 C. & P. 652, 32 E. C. L. So of a blank 
 cheque ; R. v. Bateman, 1 Cox, C. C. 186. It is not necessary that 
 additional credit should have been gained by the forgery, if any per- 
 son has been thereby intentionally defrauded. R. v. Taft, 1 Leach, 
 172 ; 2 East, P. C. 954 ; R. v. Taylor, 2 East, P. C. 960 : 1 Leach, 
 214. 
 
 Where a customer of a bank altered his own handwriting on a paid 
 cheque so as to make it appear to be forged, and upon returning it as 
 forged, got credit for the amount, it was held not to be forgery. 
 Brittain v. Bank of London, 3 F. & F. 465. 
 
 What amounts to forgery — by using a person's own name. It 
 is essential to the crime of forgery that the document should contain a 
 false statement. But this may be done by a person barely signing 
 his own name to a document. ' Thus, where a bill of exchange pay- 
 able to A. B. or order came to the hands of another A. B. who fraud- 
 ulently indorsed it, this was held to be forgery. Meed v. Young, 
 4 T. R. 28. The indorsement of the bill amounted in fact to a 
 statement that the indorser was that A. B. to whom the bill was 
 payable. If a person uses his own name, but attaches a false de- 
 scription to it, it will be the same as if he had used a fictitious 
 name. See infra} 
 
 What amounts to forgery — by using another person's or a ficti- 
 tious name. Sometimes the only false statement in the document 
 which is charged as a forgery is the use of a name to which the prisoner 
 is not entitled. If the name be that of a known existing person, which 
 is the commonest species of forgery, there is no difficulty. But it was 
 at one time doubted whether, if the name was a fictitious one and of 
 a non-existing person, it was forgery in any case. But that doubt 
 has long been settled.^ 2 East, P. C 957 ; 2 Russ. Cri. 640, 5th ed., 
 331 ; R. V. Lewis, Foster, 116. And the same rule applies to a signature 
 in the name of a fictitious firm. Per Bosanquet, J., R. v. Rogers, 8 C. & 
 P. 629, 34 E. C. L. If the name be an assumed one, then it will be 
 forgery to draw up a document in that name, if the name were as- 
 sumed for the express purpose of giving an appearance of genuine- 
 ness to the document and carrying the fraud into effect. The prisoner 
 was indicted for forging a bill of exchange, dated 3rd of April, 1812, 
 in the name of Thomas White, as drawer. It appeared that the pris- 
 oner came to Newnham on the 21st March, 1813, where he intro- 
 duced himself under the name of White, and where he resided 
 under that name until the 22d of May, officiating as curate under • 
 that name. On the 17th of April he passed away the bill in question. 
 *Dallas, J., told the jury that if they thought the prisoner r*K/^7 
 went to Newnham in the fictitious character of a clergyman, ^ 
 
 * People V. Peacock, 6 Cow. 72. S. 
 
 ' Riley's Case, 5 Rog. Rec. 37 ; Gotobed's Case, 6 Id. 25 ; United States v. Turner, 7 
 Pet. 132 ; see Commonwealth t). Boynton, 2 Mass. 77. S.
 
 724 rOEGERY. 
 
 with a false name, for the sole purpose of getting possession of the 
 curacy, and of the profits belonging to it, they should acquit him ; 
 but if they were satisfied that he went there intending fraudulently to 
 raise money by bills in a false name, and that the bill in question was 
 made in prosecution of such intent, they should convict him. The 
 iury convicted him accordingly, and found that the prisoner had 
 formed the scheme of raising money by false bills before he went 
 to Newnham, and that he went there meaning to commit such fraud. 
 The judges, on a case reserved, were of opinion that where proof is 
 given of a prisoner's real name, and no proof of any change of name 
 until the time of the fraud committed, it throws it upon the prisoner 
 to show that he had before assumed the name on other occasiwis, and 
 for different purposes. They were also of opinion that where the 
 prisoner is proved to have assumed a false name, for the purpose 
 of pecuniary fraud connected with the forging, drawing, accepting, 
 or indorsing in such assumed name is forgery. R. v. Peacock, Rus. 
 & Ry. 278.^ 
 
 The prisoner, Samuel Whiley, was indicted for forging a bill of ex- 
 change, drawn in the name of Samuel 3Iilward. On the 27th of De- 
 cemljer, 1804, the prisoner came to the shop of the prosecutor, at Bath, 
 and ordered some goods, and, a few days afterwards, he called and said 
 he would give a draft upon his banker in London, and accordingly he 
 gave the bill in question. No such person as Samuel Milward kept an 
 account with the London banker. The prisoner had been baptized and 
 married by the name of Whiley, had gone by that name in Bath in 
 the July preceding this transaction, and at Bristol the following Oc- 
 tober, and at Bath again on the 4th of December. About the 20th of 
 that month he had taken a house in Worcestershire, under the same 
 name ; but, on the 28th of December, the day after his first appli- 
 cation to the prosecutor, he ordered a brass plate to be engraved with 
 the name of " Milward," which was fixed upon the door of his house 
 on the following day. 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, and had no reason 
 to susj^ect the contrary ; and if the prisoner had come to him under 
 the name of Samuel Whiley, he should have given him equal credit 
 for the goods. In his defence, the prisoner stated that he had been 
 christened by the name of Samuel Milward, and that he had omitted 
 the name of ^Vhiley for fear of arrest. The judge left it to the jury 
 to say, ■Avhether the prisoner had assumed the name of " Milward " in 
 the purchase of the goods, and given the drafts, with intent to defraud 
 the prosecutor. The jury found the prisoner guilty, and the judges, 
 upon a reference to them, were of opinion, that tlie question of 
 fraud being so left to the jury, and found by them, the conviction 
 was right. R. v. Whiley, 2 Russ. Cri. 647, 5th ed.; Russ. & Ry. 90. 
 The prisoner, John Francis, was indicted for forging an order for 
 payment of money upon the bankers, Messrs. Praed & Co., in favor 
 of Mrs. Ward. On the 15th of August the prisoner had taken 
 1 State V. Hayden, 15 N. H. 355. S.
 
 FORGERY. 725 
 
 lodgings at Mrs. W.'s house, under the name of Cooke, and conthiued 
 there till the 9th of September, when he gave her the order in ques- 
 tion, for money lent liim by her. The order, whieh was signed " James 
 Cooke," being refused by the bankers, he said he had omitted the 
 *word "junior," which he added; but the draft was again re- r:),pr/>o 
 fused, and the prisoner in the meantime left the house. The •- 
 case was left by the judge to the jury, with a direction that they should 
 consider whether the prisoner had assumed the name of Cooke Avitli a 
 fraudulent purpose, and they found him guilty. On a case reserved, 
 all the judges who were present held the conviction right, and were of 
 opinion that, if the name were assumed for the purpose of fraud and 
 avoiding detection, it was as much a forgery as if the name were 
 that of any other person, though the case would be dilFerent if the 
 party had habitually used, and become known by, another name 
 than his own. R. v. Francis, Russ. & Ry. 209 ; 2 Russ. Cri. 648, 
 5th ed. 
 
 So in R. V. Parkes, 2 Leach, 775 ; 2 East, P. C. 963, where a per- 
 son of the name of T. B., dated a note at Roughton, Salop, and made 
 it payable at Messrs. Thornton & Co.'s, bankers, London, and signed 
 it in the name of T. B., and passed off the note as a note of his 
 brother ; and it was proved that the prisoner had no brother of the 
 name of T. B., and that there was no person of that name who re- 
 sided at Roughton, or kept an account with Thornton & Co.; this was 
 held by Grove, J., to be forgery. The case of R. v. Walker, tried be- 
 fore Chambers, J., 6 Ev. Stat. 580, is sometimes quoted as an author- 
 ity against this ; but there the prisoner had been in the habit of draw- 
 ing bills in the same fictitious name for some time, and they had been 
 regularly paid, so that the learned judge thought very properly that 
 there was not sufficient evidence to go to the jury that the name had 
 been assumed for the express purpose of carrying out the forgery, 
 which is a necessary ingredient in this class of cases. This appears 
 from the following case : — The prisoner, Thomas Bontien, was charged 
 with forging the acceptance of a bill of exchange. It appeared from 
 the evidence of the prosecutrix, that having a house at Tottenham to 
 let, in October, 1811, the prisoner took it, and, to pay for the furni- 
 ture and fixtures, wrote the bill in question, which the prosecutrix 
 signed as drawer, and the prisoner accepted in the name of Thomas 
 Scott. The bill was dated 12th of November, 1810; the prisoner 
 went at the time by the name of Thomas Scott : at various times he 
 had gone by the name Bontien ; but he called a witness, who stated 
 that he first knew the prisoner at the latter end of August, 1810, and 
 knew him continually by the name of Scott ; that he had a nickname 
 of Bont or Bontien at times. He proved that he had transacted busi- 
 ness with the prisoner in the name of Scott, in the year 1810 ; that he 
 never knew him by any other name ; and that his only knowledge of 
 his having gone by other names was from the newspapers. The pris- 
 oner being convicted, a majority of the judges, upon a case reserved 
 (Mr. Justice Heath appearing to be of a contrary opinion), thought
 
 726 FORGERY. 
 
 that it did not sufficiently appear npon the evidence that the pris- 
 oner had not gone by the name of Scott before the time of ac- 
 cepting the bill, or that he had assumed the name for that purpose, 
 and they thought the conviction wrong. 11. v. Bontien. Russ. & 
 Ry. 260. 
 
 The result of the above cases is that where the fictitious name is 
 assumed for the purposes of the fraud, the offence of forgery may be 
 proved, but it is otherwise where the credit is given solely to the 
 person without any regard to the name, as in the case of R. v. Martin, 
 
 *5691 *^ ^* ^' ^' ^^ ' "^^ ^' '^•' ^' ^' ^^' ^^^^^^'^ *^^^ prisoner Rob- 
 J ert Martin, in payment for a pony and cart purchased by him 
 
 from the prosecutor, drew a cheque in the name of William Martin, 
 in the presence of the prosecutor, upon a bank at which he, the pris- 
 oner, had no account, and gave it to the prosecutor as his own cheque 
 drawn in his own name. The prisoner was an old acquaintance of the 
 prosecutor, and the prosecutor received the cheque on the credit of the 
 prisoner himself, not observing the name in which it was signed. It 
 was held, following R. v. Dunn, 1 Lea. C C. 59, that the prisoner 
 was not guilty of the offence of forgery. 
 
 What amounts to forgery — not necessary that document should 
 be perfect. It is not necessary that the document which is forged 
 should be perfectly valid for the purpose for which it was intended. 
 Thus, where a man was indicted at common laAV for forging a surren- 
 der of the lands of J. S , and it did not appear in the indictment that 
 J. S. had any lands; upon motion in arrest of judgment it was held 
 good, it not being necessary to show any actual prejudice. R. v. Goate, 
 1 Ld. Raym. 737. So the making of a false instrument is forgery, 
 though it may be directed by statute that such instrument shall be in 
 a certain form, which, in the instrument in question, may not have 
 been complied with, the statute not making the informal instrument 
 absolutely void, but it being available for some purposes. This ques- 
 tion arose upon a prosecution for forging a power of attorney for the 
 receipt of prize-money, which, by the repealed statute 26 Geo. 3, c. 63, 
 was required to have certain forms. The power had not, in one par- 
 ticular, followed the directions of the act. The prisoner being con- 
 victed, a case was reserved for the opinion of the judges, when all 
 (except Graham, B., and Bayley, J.) were of opinion that the letter of 
 attorney was not a void instrument, but that it might be the subject of 
 a criminal prosecution ; that a payment made under it, to the use of 
 the petty officer, would be good as against him, and that the attorney 
 under it might bring an action for the prize-money, or execute a re- 
 lease. Graham, B., and Bayley, J., thought that it was a void instru- 
 ment ; that no person, without a breach of duty, could make the payment 
 of the prize-money under it; and consequently that no person could 
 be guilty of a capital crime by forging it. R. v. Lyon, Russ. & Ry. 
 255. Upon the same principle, a man may be convicted of forging 
 an unstamped instrument, though such instrument can have no opera-
 
 FORGERY. 727 
 
 tion in law.^ But although at common law forgery of an imperfect 
 document may be committed, yet it would be otherwise where the offence 
 charged is for forgery of any particular instrument, the forgery of 
 which is made felony by statute ; see R. v. Harper, 7 Q. B. D. 78 ; 
 50 L. J., M. C. 90, and cases, post, p. 574. 
 
 Upon an indictment for vending counterfeit stamps (contrary to the 
 44 Geo. 3, c. 98), it appeared that the stamps in all respects resembled 
 a genuine stamp, excepting only the centre part, which in a genuine 
 stamp specifies the duty, but for which, in the forged stamp, the words 
 "Jones, Bristol," were substituted. The fabrication was likely to de- 
 ceive the eye of a common observer. The judges, on a case reserved, 
 held that the prisoner was rightly convicted of forgery. E,. v. Colli- 
 cott, 2 Lea. C. C. 1048 ; 4 Taunt. 300 ; Russ. & Ry. 212. 
 
 See, as to county court process, post^ p. 584. 
 
 Proof of forging transfer of stock. In the following case, which 
 was *an indictment founded on the former statute, 33 Geo. 3, r*K7rv 
 c. 30 (now repealed), several points were ruled with regard to •- 
 indictments for forging a transfer of stock. Three objections were 
 taken on behalf of the prisoner : 1st, that there did not appear in 
 evidence to be any acceptance of the transfer by the party who was 
 alleged to be possessed of the stock, till which time it was said the 
 transfer was incomplete ; 2ndly, that till the stock was accepted, no 
 transfer at all could be made ; 3rdly, that the instrument was not wit- 
 nessed, which, according to the printed form used by the bank, should 
 have been done. The prisoner having been convicted, the opinion of 
 the judges on the case was delivered by Buller, J. He observed, that, 
 as to the two first objections, two answers had been given : 1st, that 
 the stock vested by the mere act of transferring it into the name of the 
 party, and that if he had died before he accepted it, it would have 
 gone to his executors as part of his personal estate"; 2ndly, that the 
 nature of the offence would not have been altered, if the party had not 
 
 1 Pennsylvania v. Misner, Add. 44; Butler v. Commonwealth, 12 S. & R. 237 ; 
 People ('. Sluill, 9 Cow. 778 ; People v. Fitch, 1 Wend. 198. A written instrument to 
 be tlie subject of indictment for forgery must be valid, if genuine, for the purpose in- 
 tended. If void or invalid on its face, and it cannot be made good by averment, the 
 crime of forgery cannot be predicated of it. People v. Plarrison, 8 Barb. 560 ; Harri- 
 son V. People, 9 Barb. 664. It makes no difference that the name forged is not rightly 
 spelled. Case of Grant et al., 3 Rog. Rec. 142. Nor need the handwriting' resemble 
 his whose name is forged. Dobb's Case, 6 Id. 61. An indorsement upon a draft which 
 is unstamped may be a forgery. People v. Frank, 25 Cal. 507. Instrument need not 
 be stamped. Cross v. People, 47 111. 152 ; State v. Hajmes, 6 Cold. 550. Contra, John 
 V. State, 23 Wis. 504. It is sufficient to establish the forgery of a check and tlie sig- 
 nature thereto, to show a similarity between the spurious check and the genuine one, 
 such as to create a possibility of a fraud. State v. Dennett, 19 La. 395 ; Reed v. 
 State, 28 Ind. 396. It is an indispensable element in the crime of forgerv, that the 
 forged paper must be such, that if genuine it may injure another. State r. Briggs, 34 
 Vt. 501. K. without authority drew an order upon A. and signed K.'s name, with 
 the fraudulent purpose of obtaining goods on K.'s credit ; held that no acceptance of 
 the order was necessary to constitute forgery. Hale v. State, 1 Cold. 167. An indict- 
 ment for forgery of notes need not allege that the genuine notes are current. Poller 
 i;. State, 17 Md. 415. _S. 
 
 A prima fane case is made out when the indorsement upon a bank check is shown 
 not to be in the payee's handwriting. Schroeder v. Harvey, 75 111. 638.
 
 728 FORGERY. 
 
 had any stock standing in his name ; for the transfer forged by the 
 prisoner was complete on the face of it, and imported that there was 
 such a description of stock capable of being transferred. Neither the 
 forgery nor the fraud would have been less complete, if the party had 
 really had no stock. As to the third objection, the judges all thought that 
 the entry and signatures, as stated in the indictment, were a complete 
 transfer, without the attestation of witnesses, which was no part of the 
 instrument, but only required by the bank for their own protection. 
 R. V. Gade, 2 East, P. C. 874 ; 2 Leach, 732. 
 
 Proof of personating owner of stock. The following case was 
 decided upon the former statute, 31 Geo, 2, c. 22 : The prisoner was 
 indicted for personating one Isaac Hart, the proprietor of certain 
 stock, and thereby endeavoring to receive from the bank of England 
 the sum of, etc. It appeared that the prisoner, representing himself 
 to be Isaac Hart, received from the dividend-payer, at the bank, a 
 dividend warrant for the sum due, on receiving which, instead of car- 
 rying it to the pay-office, he walked another way, and made no attempt 
 to receive the money. It was objected for the prisoner, that there was 
 no proof of his having endeavored to receive the money, but being 
 convicted, the judges held the conviction right. They said, that the 
 manner in which he applied for and received the warrant was a per- 
 sonating of the true proprietor, and that he thereby endeavored to re- 
 ceive the money, within the intent and meaning of the act of parlia- 
 ment. R. V. Parr, 1 Leach, 434; 2 East, P. C. 1005. 
 
 Proof of forging a bank-note. It has been already said, supra, 
 p. 5G9, that it is not essential that the forged instrument should, in 
 all respects, be perfect. Where the forgery, says Mr. East, consists 
 in counterfeiting any other known instrument, it is not necessary 
 that the resemblance should be an exact one : if it be so like as to be 
 calculated to deceive, when ordinary and usual observation is given, 
 it seems sufficient. The same rule holds, in cases of counterfeiting 
 the seals, and coining. 2 East, P. C. 858. Thus where the prisoner 
 was indicted for forging a bank-note, and a person from the bank 
 stated that he should not have been imposed upon by the counterfeit, 
 the difference between it and the true note being to him so apparent ; 
 yet, it appearing that others had been deceived, though the counter- 
 feiting was ill executed, Le Blanc, J., held, that this was a forgery. 
 j^p.„-,-| *R. V. Hoost, 2 East, P. C. 950. The prisoner was indicted for 
 -I forging a bank of England note. The instrument, though it 
 much resembled a real bank-note, was not made upon pajjer bearing 
 the water-mark of the bank ; the number also was not filled up, and 
 the word " })ounds " was omitted after the word " fifty ;" but in the 
 margin were the figures 50^. It was contended, that on account of 
 these defects, this could not be held a forgery of a bank-note ; but the 
 judges held the prisoner rightly convicted ; for, first, in forgery, there 
 need not be an exact resemblance — it is sufficient that the instrument 
 is primd facie fitted to pass for a true one ; secondly, the majority in-
 
 FOEGERY. 729 
 
 cHued to think that the omission of " pounds " in the body of tlie note, 
 had nothing else appeared, would not have exculpated the prisoner ; 
 but it was matter to be left to the jury, whether the note purported to 
 be for 50/., or any other sum ; but all agreed that the 50/. in the mar- 
 gin removed all doubt. R. v. Elliott, 2 East, P. C. 951 ; 1 Leach, 175; 
 2 New Rep. 93 (n). See also R. v. M'Connell, 1 C. & K. 371 ; 2 
 Moo. C. C. 298. 
 
 The jjrisoner was indicted for uttering a forged note of a private 
 bank. It appeared, that he had altered a note of the Bedford Bank, 
 from one to forty pounds, but had cut off the signature of the party 
 who had signed it, so that the words for " Barnard, Barnard and 
 Green," only were left. The prisoner being convicted, the judges 
 were clearly of opinion that the conviction was wrong. R. v. Pate- 
 man, Russ. & Ry. 455. 
 
 The prisoner was indicted for having in his custody a certain 
 forged paper Avriting, purporting to be a bank-note, in the following 
 form : — 
 
 I promise to pay J. W., Esq., or bearer, £10. 
 London, March 4, 1776. 
 
 For Self and Company of 
 £Ten my Bank of England. 
 
 Entered. John Jones. 
 
 A special verdict was found, and the question argued before the court 
 was, whether this paper writing purported to be a bank-note. The 
 court were of opinion, that the representation which the prisoner had 
 made that it was a good note, could not alter the purport of it, which 
 is what appears on the face of the instrument itself; for although 
 such false representations might make the party guilty of a fraud or 
 cheat, they could not make him guilty of felony. R. v. Jones, 1 
 Leach, 204 ; 2 East, P. C. 883 ; see 4 Taunt. 303. 
 
 The prisoner was indicted for putting off a forged note. The in- 
 strument was as follows : — 
 
 No. 6414. Blackburn Bank. 30 shillings. 
 
 I promise to take this as thirty shillings, on demand, in part for a 
 two pound note, value received. 
 
 Entered. J. C. Blackburn, Sept. 18, 1821. 
 
 No. 6414. 
 Thirty shillings. For Cuncliflfe, Brooks, and Co. 
 
 R. Cuncliffe. 
 
 The prisoner was convicted, but it being doubted by the judge 
 whether the instrument had any validity, a case was reserved, and 
 the judges held that the judgment ought to be arrested. It has been 
 observed of this instrument, that it was not payable to the bearer on 
 *demand ; that it was not payable in money ; that the maker pcyo 
 only promised to take it in payment ; and that the requisitions L
 
 730 FOEGEEY. 
 
 of the statute, 17 Geo. 3, c. 30 (now repealed), were not complied with. 
 R. V. Burke, Russ. & Ry. 496. 
 
 Proof of engraving part of a note. In R. v. Keith, 1 Dears. C. C. 
 E.. 486; 24 L. J., M. C. 110, the prisoner was convicted under this 
 section for engraving upon a plate part of a promissory note of a bank- 
 ing company. Being possessed of a promissory note of the British 
 Linen Banking Company, he had cut out the centre of the note on 
 which the whole of the promissory note was written, and had pro- 
 cured to be engraved upon a plate part of the ornamental border of 
 the note, consisting of the royal arms. The question reserved for 
 the consideration of the Court of Criminal Appeal was, whether this 
 amounted to an engraving upon a plate " part of a bill of exchange 
 or promissory note, purporting to be part of the bill or note," within 
 the meaning of this section. The court held that it did. Parke, B., 
 in his judgment said, " To see whether an engraving purports to be 
 part of a note you must compare it with the original note. If the 
 forged engraving is clearly intended to imitate any part of a note, 
 whether that part be the obligatory part of the note or not, it is, I 
 think, an offence within the statute. There must be such a portion 
 engraved, that you can say clearly on comparison that it is intended 
 to imitate part or to purport to be part of a note. If a single dot or 
 line only were engraved, there would not be enough to induce one to 
 say, that the engraving puq^orted to be part of a note. But in the 
 present case the royal arms of Scotland in the position in which they 
 are found and tlie Britannia in the margin, appear on comparison 
 without any doubt to purport to be part of the ornaments of a real 
 note." 
 
 The 24 & 25 Vict. c. 98, s. 16, applies to the engraving in England 
 of the plates of notes of Scotch banks, notwithstanding the section 
 excepting Scotland from the operation of the statute. R. v. Bracken- 
 bridge, L. R. 1 C. C. R. 133 ; 37 L. J., M. C. 86. 
 
 Making a note, etc. The taking of a positive impression on glass 
 by photography is a making within the meaning of the section, 
 although such impression is evanescent, and cannot be printed or 
 engraved from until it has been converted into a negative. R. v. Rin- 
 aldi, L. & C. 330 ; 30 L. J., M. C. 28. 
 
 Proof of forging deeds. On an indictment against accessories be- 
 fore the fact to the forging of an administration lx)nd, on administra- 
 tion granted for the effects of J. C, it was objected that the 22 & 23 
 Car. 2, c. 10, requiring the bond to be given by the party by whom ad" 
 ministration was granted, and not by the party that was entitled to ad- 
 ministration, the bond could not be treated as a forgery, but was a 
 good bond within the statute, having been given by the party to whom, 
 in fact, administration was granted. The objection was overruled. 
 R. V. Barber, 1 C. & K. 434, 47 E. C. L. 
 
 The forging of a power of attorney to receive a seaman's wages,
 
 FORGERY. 731 
 
 was held to be the forgery of a deed within the repealed section of 
 the statute, 2 Geo. 2, c. 25. R. v. Lewis, 2 East, P. C. 957. So a 
 power of attorney for the purpose of receiving prize-money. E.. v. 
 Lyon, Russ. & Ry. 255, ante, p. 569. In the same manner, a power of 
 *attorney to transfer government stock ; R. v. Fauntlerov, 1 r^-^o 
 Moo. C. C. 52; 2 Bingii. 413; and an indenture of appren- ^'^''^ 
 ticeship ; R. v. Jones, 2 East, P. C. 991 ; 1 Ijeach, 366. And though 
 the instrument in question may not comply with the directory provis- 
 ions of a statute, it may still be described as a deed, R. v. Lyon, Rnss. 
 & Ry. 255, if it has some apparent validity. See supra, p. 569. But 
 a letter of orders under the seal of a bishop is not a deed within s. 20 
 of 24 & 25 Vict. c. 98, and the conviction of the prisoner, who had 
 been indicted under that section was quashed. R. v. Morton, L. R., 
 2 C. C. 22 ; 42 L. J., M. C. 58. 
 
 Proof of forging wills. The prisoner was indicted for forging the 
 will of Peter Perry. The will began, " I, Peter Perry," and was 
 signed, John X Perry, his mark. It was objected that tliis was not 
 a forgery of the will of Peter Perry as laid in the indictment, but the 
 prisoner was convicted, and afterwards executed. R. v. Fitzgerald, 2 
 East, P. C. 953. 
 
 The prisoner was convicted of forging a will of land of one T. S., 
 deceased, attested by two witnesses only. It did not appear in evi- 
 dence what estate the supposed testator had in the land demised, or of 
 what nature it was ; and it was urged that it must be presumed to 
 have been freehold, and that the will, therefore, was void by the Stat- 
 ute of Frauds for want of attestation by three witnesses. The judges 
 held the conviction wrong ; for, as it was not shown to be a chattel 
 interest, it was to be presumed to be freehold, and the will, therefore, 
 void. R. V. Wall, 2 East, P. C. 953. 
 
 It was held that, at common law, it made no difference that the party 
 whose will is forged is living. R. v. Coogan, 1 Lea. 449 ; 2 East, P. 
 C 948. Nor does it make any difference that the will is made in the 
 name of a non-existing person. R. v. Avery, 8 C. & P. 596, 34 E. 
 C L., per Patteson, J. 
 
 A probate, unrevoked, is not conclusive proof of the validity of a 
 will. R. V. Buttery, Russ. & Ry. 342. 
 
 Proof of forging bills of exchange. It has already been said 
 (ante, p. 569) that it is not necessary that the instrument should be 
 perfect ; it is sufficient if it bear such a resemblance to the document 
 it is intended to represent as is calculated to deceive. The prisoner 
 was indicted for forging, and also for uttering, a forged bill of ex- 
 change. He discounted the bill and indorsed the name upon it ; but 
 there was no indorsement of the name of the drawers, to whose order 
 it was payable. It was urged for the prisoner, that as there was no 
 indorsement by the payees, nor anything purporting to be such an in- 
 dorsement, the instrument could not pass as a bill of exchange, and 
 could not therefore, effect a fi*aud. The prisoner was convicted, and
 
 732 FORGERY. 
 
 all the judges, who were present on the argument on a case reserved, 
 held the conviction proper. Lawrence, J., at first doubted, but his 
 doubts were removed by the argument that, had it been the true and 
 genuine bill it purported to be, the holder for a valuable consideration 
 from the payees might have compelled the latter to indorse it. Mr. 
 Justice Bayley was not present at the meeting, but thought the con- 
 viction wrong ; he was of opinion that, for want of an indorsement, 
 the bill was not negotiable, and therefore, if genuine, not of value to 
 the holder of it. R. v. Wicks, Russ. & Ry. 149. 
 
 An instrument drawn by A. upon B., requiring him to pay to the 
 *c;7/iT *order of C a certain sum at a certain time "without accept- 
 -■ ance" is a bill of exchange. Per Patteson, J., R. v. Ivinnear, 
 2Moo. & R. 117. 
 
 So where the prisoner was indicted for forging the acceptance of a 
 bill of exchange for 3/. Ss., and it appeared that the requisitions of 
 the statutes, 15 Geo. 3, c. 5, and 17 Geo. 2, c. 30, had not been com- 
 plied with, the bill not specifying the place of abode of the payee, nor 
 being attested by any subscribing witness, the prisoner having been 
 convicted, the judges, on a reference to them, were unanimously of 
 opinion that the instrument, if real, would not have been valid or ne- 
 gotiable, and that therefore the conviction was wrong. R. v. Moffatt, 
 1 Leach, 431 ; 2 East, P. C. 954. This case was distinguished, on 
 the conference of the judges from R. v. Hawkeswood, infra, where the 
 holder of the bill had a right to get it stamped (see R. v. ^Morton, post, 
 p. 575) ; and the stamp act only says, it shall not be used in evidence 
 till stamped. 2 East, P. C. 954. Where the prisoner forged an ac- 
 ceptance to a document which was a bill of exchange except for Mant 
 of the drawer's signature. Chambers, Common Serjeant, ruled that he 
 could not be convicted of forging an accejitance to a bill of exchange. 
 R. V. Mopsey, 11 Cox, C. C. 143 ; R. v. Harper, 7 Q. B. D. 78 ; 50 
 L. J., M. C. 90. 
 
 A document in the ordinary form of a bill of exchange, but requir- 
 ing the drawer to pay his own order, and purporting to be indorsed by 
 the drawer, and accepted by the drawee, cannot, in an indictment for 
 forging and uttering be treated as a bill of exchange. Per Erskine, J., 
 R. V. Bartlett, 2 Moo. & R. 362. The prisoner Avas indicted for forg- 
 ing an order for the payment of money upon the treasurer of the 
 navy. There was no payee named in the order ; and upon this ground, 
 and also upon the ground that the order was directed to the treasurer 
 and not to the commissioners of the navy (the latter being the legal 
 paymasters), it was objected that the prisoner was wrongly convicted. 
 Eleven of the judges having met, agreed that the direction to the 
 treasurer instead of the commissioners would not prevent its being 
 considered an order for the payment of money ; but the majority of 
 them (Mansfield, C. J., diss.) held that it was an order for the }iay- 
 ment of money, because of the want of a jiayee, and that the convic- 
 tion was wrong. R. v. Richard, Russ. & Ry. 193. In a case Avhich 
 occurred soon after the preceding, the judges ruled the same way, with 
 regard to a bill of exchange, in which the name of the payee was left
 
 FORGERY. 733 
 
 blank. R. V. Randall, Riiss. & Hy. 195. But it has been holden, on 
 a case reserved, that an instrument in the form of a bill of exchange 
 with an acceptance on it is a bill of exchange, although there be no 
 person named as drawee in the bill. R. v. Hawkes, 2 Moo. C. C 60, 
 diss. Parke, B., Patteson, J., and Coleridge, J., and it seems doubtful 
 whether an instrument can be a bill of excliange unless it have both a 
 drawer and drawee. Peto v. Reynolds, 9 Exch. 410, 
 
 Upon the same principle, a man may be convicted of forging an 
 unstamped instrument, though such instrument can have no operation 
 in law. The prisoner was indicted for forging a bill of exchange. 
 It was objected for him, that the bill was unstamped, and the 23 
 Geo. 3, c. 58, s. 11 (repealed), was referred to, which enacts, that no 
 bill of exchange shall be pleaded, or given in evidence in any court, 
 or admitted in any court to be good or available at law or in equity, 
 unless stamped. This prisoner was convicted, and the judges deter- 
 mined that the conviction was right ; for the words of the act cited 
 *mean only, that the bill shall not be made use of to recover r^r^e 
 the debt ; and besides, the holder of a bill was authorized to ^ 
 get it stamped after it was made. R. v. Hawkeswood, 1 Leach, 257. 
 Soon after this decision, the point arose again, and on the authority of 
 R. V. Hawkeswood, the prisoner was convicted and executed. R. v. 
 Lee, Id. 258 (n). Tlie question, a few years afterwards, again under- 
 went considerable discussion, and was decided the same way, though in 
 the meantime, the law, with regard to the procuring of bills and notes to 
 be subsequently stamped, upon which, in R. v. Hawkeswood, the judges 
 appear in some degree to have relied, had been repealed. The pris- 
 oner was indicted for knowingly uttering a forged promissory note. 
 Being convicted, the case was argued before the judges, and for the 
 prisoner it was urged that the stat. 31 Geo. 3, c. 25, s. 19 (repealed), 
 which prohibits the stamp from being afterwards affixed, distin- 
 guished the case from R. v. Hawkeswood. Though two or three 
 of the judges doubted at first the propriety of the latter case, if the 
 matter were res Integra, yet they all agreed, that being an authority 
 in point, they must be governed by it ; and they held, that the stat. 
 31 Geo. 3 made no difference in the question. Most of them main- 
 tained the principle of R. v. Hawkeswood to be well founded, for the 
 acts of parliament referred to were 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 recovering upon it in a 
 court of justice, though it might be evidence for a collateral purpose ; 
 that it was not necessary to constitute forgery that the instrument 
 should be available ; that the stamp itself might be forged, and it 
 would be a strange defence to admit in a court of justice, that because 
 the 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. R. v. Morton, 2 
 East, P. C. 955 ; 1 Lea. 258 (n). The doctrine was again confirmed 
 in R. V. Teague, 2 East, P. C. 979, when the judges said that it had 
 been decided that the stamp acts had no relation to the crime of
 
 734 FORGERY. 
 
 foro-eiy ; but that, supposing the instrument forged to be such, on the 
 face of it, as would be valid provideil it had a proper stamp, the 
 offence was complete. 
 
 If the prisoner write another person's name across a blank stamp, 
 on which, after he is gone, a third person who is in league with him 
 writes a bill of exchange, it was said that this was not a forgery of the 
 acceptance of a bill of exchange by the prisoner. R. v. Cooke, 8 C. & 
 P. 582, 34 E. C. L. So where the prisoner, who was a partner in a 
 firm, was indicted for forging an acceptance of a bill of exchange, and 
 it appeared that another party, by the direction of the prisoner, had 
 written the name of a customer across a blank stamp, on which 
 the prisoner some time subsequently drew a bill of exchange in the 
 name of the firm ; Parke, B., held that this was not a forgery of an 
 acceptance of a bill of exchange within the statute, which does not 
 make it forgery merely to counterfeit an acceptance, but an accept- 
 ance of a bill of exchange. R. v. Butterwick, 2 Moo. & R. 196. 
 But both these would probably be considered forgeries at common 
 law. 
 
 In order to bring the case within the statute, the instmment in 
 question, which is laid to be a bill of exchange or promissory note, 
 must purport on the face of it to be legally such. Where the instru- 
 ment was in the following form : — " I promise to pay the bearer one 
 guinea on demand, here in cash, or a Bank of England note :" the 
 *KT'\ *j"tlges were of opinion, that this was not a note for the pay- 
 J raent of money within the repealed stat. 2 Geo. 2, c. 25, the 
 guinea being to be paid in cash or a Bank of England note, at the op- 
 tion of the payer. R. v. Wilcock. 2 Russ. Cri. 826, 5th ed. But it 
 is not necessary, in order to constitute a promissory note for the pay- 
 ment of money within the statute, that it should be negotiable. The 
 prisoner was convicted under the 2 Geo. 2, c. 25, of forging a promis- 
 sory note, in the following form : — 
 
 "On demand, we promise to pay to Mesdames S.W. and S. D., stew- 
 ardesses, for the time being, of the Provident Daughters' Society, held 
 at Mr. Pope's, or their successors in office, 64/., value received. 
 
 " For C. F. & Co., 
 "J. F." 
 It was moved in arrest of judgment, that this was no promissory note; 
 but the judges were of a different opinion, saying, that it was not ne- 
 cessary that it should be negotiable, and that it was immaterial whe- 
 ther the payees were legally stewardesses, and that their successors 
 could not take the note. R. v. Box, 2 Russ. Cri. 829, 5th ed.; Russ. 
 & Ry. 300 ; 6 Taunt. 325. 
 
 Even before the 11 Geo. 4 & 1 Will. 4, c. 66, s. 4 (now repealed), it 
 was held, that the instrument was not the less a bill of exchange if, 
 containing the requisites which constitute a bill of exchange in law, it 
 professed also to be drawn in pursuance of some particular statute, 
 with the requisitions of which it failed to comply. Thus a bill 
 drawn upon commissioners of the navy for pay was held to be a 
 bill of exchange, although it was not such an instrument as was
 
 FOEGERY. 735 
 
 warranted by the 35 Geo. 3, c. 94 (repealed). R. v. Chlsholm, Russ. 
 & Ry. 297. 
 
 It has been ah-eady stated, that Avhere the instrument alleged 
 to be a promissory note, or bill of exchange, is not signed, it cannot 
 be treated as such. R. v. Pateman, Russ. & Ry. 455 ; R. v. Mopsey, 
 ante, p. 574. So where the name of the payee is in blank. R. v. 
 Randall, Russ. & Ry. 195. So an instrument for the payment ot 
 money under 5/., but unattested. R. v. Moffatt, 1 Leach, 431, ante, 
 p. 574. 
 
 An instrument drawn by A. upon B,, requiring him to pay to the 
 order of C. a certaim sum, at a certain time, " without acceptance," 
 is a bill of exchange, and may be so described in an indictment for 
 forgery. Per Patteson, J., R. v, Kinnear, 2 Moo. & Rob. 117. 
 
 A document in the ordinary form of a bill of exchange, but re- 
 quiring the drawee to pay his own order (" please to pay to your 
 order "), and purporting to be indorsed by the drawer, and accepted 
 by the drawee, is not a bill of exchange for the forgery of which an 
 indictment can be sustained. Per Erskine, J., R. v. Bartlett, 2 Moo. 
 & R. 362 ; and see R. v. Smith, 1 C. & K. 700, 47 E. C. L. 
 
 The forgery of a single indorsement on the back of a bill of exchange 
 made payable to the i^arty whose name is forged, together with 
 several otliers, as executrixes, was held to be within the third section 
 of the late act. R. v. Winterbottom, 1 Cox, C. C. 164 : 1 Den. 
 C.C. R. 41. 
 
 A seaman's advance note, promising to pay, " provided the payee 
 shall sail in the said ship, etc.," cannot be described as a promissory 
 note for the payment of money, as it is not a peremptory order to pay, 
 but a conditional agreement. R. v. Howie, 11 Cox, C. C. 320. See 
 post, p. 579. 
 
 *Proof of forging undertakings, warrants, or orders for ^^1-77 
 the payment of money. An undertaking to pay a sum which ^ "^ 
 is uncertain and dependent upon a contingency, is within the third 
 section of the statute. Thus where the undertaking was to pay 
 W. B. 100/., " or such other sum of money, not exceeding the same, 
 as he may incur, or be put unto for or by reason or means of his be- 
 coming one of the sureties to M. M. Esq., sheriff elect for the county 
 of Y ;" the judges held it to be within the act. R. v. Reed, 8 C. & P. 
 623, 34 E. C. L. ; and see R. v. Joyce, L. & C. 576. 
 
 Forging an indorsement upon a warrant or order for the payment of 
 money, is not within the above section. R. v. Arscott, 6 C. & P. 408. 
 But if the undrtaking, warrant, or order is incomplete, without the 
 indorsement, so that until the indorsement be added, the instrument 
 is of no validity in the hands of any person, then a forgery of the 
 indorsement may be charged as a forgery of a warrant or order for 
 the payment of money. R. v. Autey, supra, p. 565. 
 
 If a cheque payable to order is indorsed by a person other than the 
 payee, and is not indorsed by the payee, the person so indorsing is 
 liable on the cheque, and if such an indorsement is forged in order to
 
 736 FORGERY. 
 
 get tlic cheque cashed l)y the credit of the name, it is an offence within 
 s. 24 (Willes, J.). R. v. Wardcll, 3 F. & F. 82. 
 
 Previously to the 2 & 3 Will. 4, c. 123, s. 3 (now repealed), in an 
 indictment for forging an order for the payment of monc}^, it must 
 have ap])oared, either upon the face of the instrument itself, or by 
 proper averments, that the instrument bore the character of an order. 
 The prisoner was charged with forging " a certain order for payment 
 of money " as follows : — 
 
 "Gentlemen, "London, April 24, 1809. 
 
 " Please to pay the bearer, on demand, fifteen pounds, and accompt 
 it to 
 
 " Your humble servant, 
 
 " Charles H. Ravenscroft. 
 " Payable at Messrs. Masterman & Co., 
 
 " White Hart Court, 
 
 " Wm. Mclnerheney." 
 
 The prisoner being convicted, a majority of the judges, on a case 
 reserved, held that this was not an order for the payment of money, 
 but Mansfield, C. J., Wood, B., and Graham, B., held that it was. 
 R. V. Ravenscroft, Russ. & Ry. 161. 
 
 A paper in the following form, "Mr. Johnson, Sir, please to pay to 
 James Jackson the sum of 13/. by order of Christopher Sadler, Thorn- 
 ton-le-Moor, brewer. I shall see you on Monday. Yours obliged, 
 Chr. Sadler, the District Bank," was held, on a case reserved, to be 
 an order for the payment of money within the repealed statute 1 1 Geo. 
 4 & 1 Will. 4, c. 66, s. 3 ; Sadler being proved to be a customer of 
 the District Bank, whose draft, if genuine, would have been paid, 
 although, at the time of the forgery, he had no effects in tiie bank. 
 R. V. Carter, 1 C. & K. 741, 47 E. C. L.; 1 Den. C. C. R. 65. See 
 also R. V. Vivian, 1 C. <fe K. 719, 47 E. C. L. ; 1 Den. C. C. R. 35 ; 
 where it was held by the judges on consideration, that "any instru- 
 ment for payment under which, if genuine, the payer may recover the 
 amount against the party signing it, may properly be considered a war- 
 rant for the payment of money, and it is equally this, whatever be the 
 ^(._Q-| state of the *account between the parties, and whether the party 
 -I signing it has, at the time, funds in the hands of the party to 
 whom it is addressed. 
 
 A. C." 
 
 or not." A document in the following form, "I. O. U. 35/. 
 
 G. W. 
 given by A. C. to his creditor, the G. W. being forged, was held to be 
 an undertaking for the payment of money. R. v. Chambers, L. R., 
 1 C. C. R. 341 ; 41 L. J., M. C. 15. 
 
 To constitute an order for the payment of money, within the statute, 
 it is not necessary that the instrument should specify in terms the 
 amount ordered to be paid. AYhcre the order was, "Pay to Mr. 
 H. Y., or order, all my proportions of prize-money due to me for
 
 FORGERY. 737 
 
 my services on board his Majesty's ship Leander," it was objected, 
 that tliis was not an order for the payment of money, as no sum of 
 money was mentioned, but the prisoner was convicted, and the 
 judges held the conviction right. R. v. M'Intosh, 2 East, P. C 
 942. 
 
 In the construction of the words " warrant " and " order " for tlie 
 payment of money, it has been held, that instruments, which in the 
 commercial world have peculiar denominations, are within the mean- 
 ing of those words, if they be, in law, orders or warrants. 2 East, 
 P. C. 943. Thus a bill of exchange may be described as an order for 
 the payment of money, for every bill of exchange is, in law, an order 
 for the payment of money. R. v. Lockett, 2 East, P. C. 940, 943 ; 1 
 Leach, 94 ; R. v. Shepherd, 2 East, P. C. 944 ; 1 Leach, 226. So a 
 bill of exchange is a "warrant, for the payment of money," and may 
 be described in the indictment as such ; for, if genuine, it would be a 
 voucher to the bankers or drawers for the payment. R. v. Wil- 
 loughby, 2 East, P. C. 944. 
 
 A forged paper purporting to be an authority signed by three offi- 
 cers of a benefit club, to receive the money of the club lodged in a 
 bank, was held, on a case reserved, to be well described in some 
 counts as a warrant, and in others as an or-der, for the payment of 
 money. R. v. Harris, 2 Moo. C. C. 267. A post-dated cheque is an 
 order for the payment of money. R. v. Taylor, 1 C. & K. 213, 47 
 E. C. L. But a post-office order form abstracted and filled up is an 
 order to pay though no letter of advice has been sent. R. v. Vander- 
 stein, 10 Cox, C. C. (Irish), 177. See R. v. Gilchrist, 2 M. C. C. 233, 
 post, title " Post-office;" see also R. v. Howie, ante, p. 576, and post, 
 p. 579. 
 
 If the instrument purport to be an order which the party has a 
 right to make, although in truth he had no such right, and althoTigh 
 no such person be in existence as the order purports to be made by, 
 it is still an order within the statute. 2 East, P. C. 940. The 
 prisoner, Charles Lockett, was convicted of uttering a forged order 
 for the payment of money, as follows : " Messrs. Neale & Co., pay 
 to Wm. Hopwood, or bearer, 16^. 10s. 6d. R. Vennist." The pris- 
 oner had given this order in payment for goods. No such person as 
 Vennist kept cash with Neale & Co. ; nor did it appear that there 
 was any such person in existence. The judges, on considering the 
 case, held it to be a forgery. They thought it immaterial whether 
 such a man as Vennist existed or not ; or if he did, whether he kept 
 cash with Neale & Co. It was sufficient that the order assumed 
 those facts, and imported a right on the part of the drawer to direct 
 such a transfer of his property. R. v. I^ockett, 2 East, P. C. 940 ; 
 *1 Leach, 94, This appears to have been always the law, r^r^n 
 though there was some confusion at one time upon the point, L 
 which appears to have arisen out of the subtle distinctions formerly 
 taken, and the necessity of showing the nature of the document fully 
 upon the face of the indictment. Thus in R. v. Clinch, 2 East, P. C. 
 938 ; 1 Leach, 540, which is sometimes quoted to the contrary, the 
 47
 
 738 FORGERY. 
 
 discussion, as is pointed out by Jervis, C. J., in R. v. Snelling, infra, 
 turned entirely on the form of the indictment, which on its face 
 showed that the person whose name was forged had no authority. 
 
 In R. V. Dawson, 2 Den. C. C. R. 75 ; 20 L. J., M. C. 102, the 
 document was in the following farm : " Mr. Lowe, London. Bought 
 of C. Dawson, English and foreign fruit merchant, two bushels of 
 apples, 9s. Nov. 9. Sir, I hope you will excuse me sending for such 
 a trifle ; but I have received a lawyer's letter this morning, and unless 
 I can make up a certain amount by one o'clock, there will be an action 
 commenced against me, and I am obliged to hunt after every shilling. 
 Yours, &c., F. Dawson." It was proved at the trial that Lowe was 
 indebted to F. Dawson, who carried on business in the name of C. 
 Dawson, in the sum of nine shillings for two bushels of apples : that 
 the document was forged and uttered to Lowe as a genuine instru- 
 ment coming from F. Dawson, with the intention of fraudulentl}^ ob- 
 taining from Lowe the above sum. The document was held to be a 
 warrant. In that case, Jervis, C J., stated the test to be, whether, 
 "if this had been a genuine document, and payment had been made on 
 its production, proof of those facts would have been a good defence to 
 an action." See, however, R. v. Thorn, 2 Moo. C. C. 210. There 
 was no doubt that this would have been a request for the delivery of 
 money, but it was said not to be a wai^rant or order; and the word 
 request does not occur in the repealed statute 11 Geo. 4 & 1 Will. 4, 
 c. 66, s. 3. But this distinction no longer exists. See 24 & 25 Vict, 
 c. 98, s. 23, supra, p. 554. 
 
 A letter of credit, on which the correspondents of the writer of it, 
 having funds of his in their possession, apply them to the use of the 
 party in whose favor it is given, was held by the judges to be a war- 
 rant for the payment of money within the 11 Geo. 4 & 1 Will. 4, c. 
 66, s. 3, R. V, Raake, 8 C. & P. 626, 34 E. C. L.; 2 Moo. C. C. 66. 
 A forged paper was in the following form: — "To M. & Co. Pay to 
 my order, two months after date, to Mr. I. S. the sum of 80/., and 
 deduct the same out of my account." It was not signed, but across it 
 was written, "Accepted, Luke Lade ;" and at the back the name and 
 address of I. S. M. & Co. were bankers, and Luke Lade kept cash 
 with them. It was held, on a case reserved, that this paper was a 
 warrant for the payment of money ; as, if genuine, it would have 
 been a warrant from Luke Lade to the bankers to pay the money to 
 I. S. R. V. Smith, 1 C. & K. 700, 47 E. C. L.; 1 Den. C. C. R. 
 79. ^ 
 
 An instrument containing an order to pay the prisoner or order a 
 sum of money, being a month's advance on an intended voyage, as 
 per agreement with the master, in the margin of which the prisoner 
 had written an undertaking to sail in a certain number of hours, is an 
 order for the payment of money within the 11 Geo. 4 & 1 Will. 4, 
 c. 66, s. 3. R. V. Bamfield, 1 Moo. C. C. 416. R. v. Anderson, 2 
 M. & Rob. 469. In R. v. Howie, 11 Cox, C. C. 320, ante, p. 576, it 
 seems to have been held that a sailor's advance note payable upon a con- 
 tingency was nota bill of exchange or promissory note ; it does not clearly
 
 FORGERY. 739 
 
 appear whether there was anotlier count in the indictment alleging it to 
 *be an order for the payment of money or not, but it would r^^rorx 
 seem there was not. L '^^^ 
 
 The prisoner was charged with forging " a certain warrant and 
 order for the payment of money." The instrument in question was 
 a forged cheque upon a banker. It was objected that this charged an 
 offence with regard to two instruments ; but Bosanquet, J., was of 
 opinion that the indictment was sufficient. He thought the instru- 
 ment was both a warrant and an order ; a warrant authorizing the 
 banker to pay, and an order upon him to do so. R. v. Crowther, 5 C 
 & P. 316; and R. v. Taylor, 1 C. & K. 213, 47 E. C. L. 
 
 An indictment describing the forged order as being for the payment 
 of 85/. is good, although it appears that by the course of business the 
 bank where it is payable would pay that sum with interest. R. v. 
 Atkinson, Carr. & M. 325, 41 E. C. L. 
 
 Nor will the order be less the subject of forgery on account of its 
 not being available, by reason of some collateral objection not appear- 
 ing on the face of it. 2 East, P. C. C. 19, s. 45, p. 956. The pris- 
 oner was convicted of forging an order for the payment of money, and 
 it appeared that the party whose name was forged was a discharged 
 seaman, who was at the time the order was dated within seven miles 
 of the place where his wages were payable ; under which circumstance 
 his genuine order would not have been valid, by virtue of the repealed 
 statute 32 Geo. 3, c. 34, s. 2. The judges, however, held the convic- 
 tion proper, the order itself on the face of it purporting to be made at 
 another place beyond the limited distance. R. v. M'Intosh, 2 East, 
 P. C. 942 ; 2 Leach, 883 ; 2 Russ. Cri. 664, 5th ed. 
 
 In R. V. Snelling, 1 Dears. C. C. R. 219 ; 23 L. J., M. C. 8, the 
 forged document was in the following form: — "Holton, Mar. 31, 
 1853, — Sirs, please to pay the bearer, Mrs. J., the sum of 854/. 10s. 
 for me, J. R." It was held, that, although not addressed to any one, 
 it might be shown, by parol evidence, for whom the document was 
 intended, and this appearing to be the banker with whom J. R. kept 
 an account, the document was an order for the payment of money. 
 
 So it is no defence to an indictment for forging and uttering an order 
 of a board of guardians for the payment of money, to show that the 
 person who signed the order as presiding chairman was not in fact 
 chairman on the day he signed, the forgery charged being of another 
 name in the order. R. v. Pike, 2 Moo. C. C 70. 
 
 But an indictment for forging an order for relief to a discharged 
 prisoner, under the repealed statute 5 Geo. 4, c. 85, which was in many 
 respects ungrammatical and at variance with the Act, was held bad. 
 R. V. Donnelly, 1 Moo. C. C. 438. 
 
 A scrip certificate of a railway company is not an undertaking for 
 the payment of money. R. v. West, 1 Den, C. C. R. 258.* 
 
 An undertaking by a supposed party to the instrument for the pay- 
 ment of money by a third person is within the section. Therefore, 
 
 ^ The fraudulent counterfeiting of a railroad ticket is forgery by the common law. 
 Commonwealth v. Ray, 3 Gray, 441. S.
 
 740 FORGERY. 
 
 where the supposed maker of a forged instrument undertook, in con- 
 sideration of goods to be sold to R. P., to guarantee to the vendor the 
 due payment of such goods ; this was held to be the forgery of an 
 undertaking for the payment of money. R. v. Stone, I'Den. C. C. R. 
 181 ; and see R. v. Joyce, L. & C. 576. 
 
 A receipt for repayment of a deposit in a building society was held 
 to be a warrant, authority, or request for payment of money. R. v. 
 Kay, L. R., 1 C. C. R. 257 ; 39 L. J., M. C. 118. 
 
 ^_^. -| *Proof of forging receipts. In R. v. "West, 1 Den. C. C. R. 
 -I 258, the majority of the judges held that an instrument profes- 
 sing to be a scrip certificate of a railway company was not a receipt 
 nor an undertaking for the payment of money within the statute : 
 " That it was not a receipt in ordinary parlance, nor made with the 
 intent of being such, though it might be used as evidence of a payment 
 of the deposit ; but that any w^ritten paper capable of being so used 
 was not a receipt ; as, for instance, a letter written by a landlord to a 
 third person, saying that his tenant had duly paid his rent ; that it was 
 only an undertaking to deliver shares bearing interest, not that the 
 interest should be paid ; as an undertaking to deliver a bond for the 
 payment of money with interest, would be no undertaking for the 
 payment of money." See also Clarke v. Newsam, 1 Exch. R. 131 ; 
 16 L. J., Ex. 296. 
 
 It was the practice of the treasurer of a county, when an order had 
 been made on him for the payment of expenses of a prosecution, to 
 pay the whole amount to the attorney for the prosecution, or his 
 clerk, and to require the signature of every person named in the order 
 to be written on the back of it, and opposite to each name the sum 
 ordered to be paid to each person respectively. Erie, J., held, that 
 such a signature was not a receipt within this section, but merely an 
 authority to the treasurer to pay the amount. R. v. Cooper, 2 C. & 
 K. 586,*61 E. C. L. 
 
 Since the passing of the 2 & 3 Will. 4, c. 123, s. 3 (now repealed), 
 the document need not be shown to be a receipt upon the face of the 
 indictment, if by the evidence it appears to have been such. Though 
 no reasons were given, this was doubtless the ground of the decision 
 in R. V. Martin, 7 C. & P. 549, 32 E. C. L., in which it was held by 
 the judges that an indictment for uttering the acquittance, which set 
 out the bills of parcels with the word " settled," and the supposed sig- 
 nature at the foot of it, without any averment that the word " settled " 
 imported a receipt or acquittance, was sufficient. A servant employed 
 to ])ay bills received from her mistress a bill of a tradesman, called 
 Sadler, together with money to pay that and other bills. She brought 
 the bill again to her mistress, with the words, *' Paid, sadler," upon it; 
 Sadler being written with a small s, and there being no initial of the 
 Christian name of the tradesman. Lord Denman, C. J., left it to the 
 jury to say whether, under the circumstances, the document was 
 intended by the servant as a receipt or acquittance for the money 
 ^nder the circumstance, and not merely as a memorandum of her
 
 FORGERY. 741 
 
 having paid the bill. R. v. Ilousoman, 8 C. & P. 180, 34 E. C. Ti. 
 So whore the prisoner was charged with forging and nttering a receipt, 
 and the proof was that he had altered a fignre in the following voncher, 
 "11/. 5s. lOd for the high constable, T. H. ;" and it was objected, on 
 the authority of R. v. Barton, 1 Moo. C. C. 141, that the indictment 
 was bad for not containing an averment what T. H. meant ; Alder- 
 son, B., held it sufficient, and that the word " acquittance or receipt " 
 was not necessary to constitute the instrument such, if it contairicd 
 other words which sufficiently demonstrated that it was a receipt. R. 
 V. Boardman, 2 Lew. C. C. 181 ; 2 Moo. & R. 147. 
 
 A scrip receipt, with the blank for the name of the subscriber not 
 filled up, and therefore not purporting to be a receipt of the sum 
 therein mentioned from any person, is not a " receipt for money.'* 
 Grose, J., in delivering the opinion of the judges in this case, 
 observed, that the instrument, the tenor of which was necessarily set 
 *forth in the indictment, was not a receipt for money in con- rj^roo 
 templation of law, within the repealed statute 2 Geo. 2, c. 25. L 
 That it was the duty of the cashier, appointed by the bank, to receive 
 such subscriptions ; to fill up the receipt with the names of the sub- 
 scribers ; and until the blank was filled up, the instrument did not be- 
 come an acknowledgment of payment, or, in other words, a receipt for 
 money ; while, in such a state, it was no more a receipt than if the 
 sum professed to be received were omitted. That in R. v. Harrison, 2 
 East, P. C. 926, the book in which the entry was made imported to 
 be a book containing receipts for money received by the bank for 
 their customers, and sliowed that the money was received from the 
 person to whom the book belonged. R. v. Lyon, 2 East, P. C. 933 ; 
 2 Leach, 597. 
 
 INIaking a false entry in what purports to be a banker's pass-book, 
 with intent to defraud, is a forgerv of an accountable receipt. R. v. 
 Smith, L. & C. 168 ; 31 L. J., M. C. 154 ; and R. v. Moody, L. & 
 C. 173; 31 L. J., M. C. 156. 
 
 A turnpike toll-gate ticket, under the 3 Geo. 4, c. 126, s. 37 (repealed), 
 " denoting the payment of toll," is a receipt for money. R. v. Fitch, 
 L. & C. 159. 
 
 The document must be such that, if genuine, it would amount to a 
 receipt. Thus the prisoner was indicted for forging a receipt and ac- 
 quittance as follows : — 
 
 " William Chinnery, Esq. paid to X tomson the som of 8 pounds 
 feb. 13, 1812."" 
 
 It was not subscribed, but was uttered by the prisoner as a genuine 
 receipt, and taken as such by Mr. Chinnery's housekeeper. The pris- 
 oner being convicted, the judges held the conviction wrong, being of 
 opinion that this could not be considered as a receipt. It was an as- 
 sertion that Chinnery had paid the money, but did not import an ac- 
 knowledgment thereof. R. v. Harvey, Russ. & Rv. 227. 
 
 On an indictment for uttering a forged receipt for the sum of 10/.,
 
 742 FORGERY. 
 
 it appeared that the prisoner pretended that he was authorized by 
 James Reese to settle the debt and costs in an action brouglit by Reese 
 against Pritchard, and thereby obtained from Pritcliard the sum of 
 10/., for which he produced the following receipt, which was stamped 
 with a 2s. Qd. stamp : — 
 
 " Received of Mr. Wm. Pritchard by the hands of Mr. Wm. Grif- 
 fiths the sum of 10/., being in full for debf and costs due to the said 
 Jas. Reese, having no further claim against the said Wm. Pritchard. 
 As witness my hand, this 15th day of October, 1842. 
 
 " The mark of X James Reese." 
 
 And it was clearly proved that Reese had not signed the receipt or 
 authorized it to be signed, or empowered the prisoner to settle the 
 debt and costs. It was objected that the receipt was not properly 
 stamped ; that the instrument was not a receipt, but an agreement ; 
 and that the statute only applied to cases where a debt was actually 
 due. But Wightman, J., overruled the objection, and the prisoner was 
 convicted. R. v. Griffith, 2 Russ. Cri. 874, 5th ed. 
 
 But the document need not be signed. In R. v. Juda, 2 C. & K. 635, 61 
 E. C. L.,an unsigned forged paper, " Received from Mr. Bendon, due to 
 *f^8'^1 *^I^'- Warman, 17s. — Settled," was held to be a forged receipt 
 ' -I within this section. 
 
 A " clearance ticket," issued upon the transferring of a member 
 from one branch of a benefit society to another, certifying that 
 the member had paid all dues, is not an acquittance or receipt 
 within section 23. R. v. French, L. R., 1 C. C. R. 217 ; 39 L. J., 
 M. C. 58. 
 
 So also it has been ruled that an ordinary railway-ticket is not a 
 " receipt or acquittance." Per Cleasby, B., R. v. Gooden, 11 Cox, C. 
 C. 672. 
 
 Forgery of particular instruments — warrants, orders, and re- 
 quests for the delivery of goods. The law as to forging undertak- 
 ings, warrants, and orders for the payment of money serves to illus- 
 trate this class of forgeries also. The same particularity was formerly 
 required in stating the offence upon the indictment, and the same stat- 
 utory alteration of the law in this respect has occurred with the same 
 consequences. Seep. 501. The prisoner was indicted for uttering 
 a forged request for the delivery of goods, in the words and figures 
 following : — 
 
 " Gentlemen, Be so good as to let bearer have 5J yards of blue to 
 pattern, etc., and you will oblige W. Reading, Mortimer St." 
 
 The request was not addressed to any one. The prisoner being con- 
 victed, the recorder respited the judgment, to take the opinion of the 
 judges on the question whether, as the request was not addressed to 
 any individual person by name or description, it was a request for 
 the delivery of goods within the words and true intent of the statute.
 
 FORGERY. 743 
 
 All the judges who were present at the meeting held the conviction 
 right. R. V. Carney, 1 Moo. C. C. 351. This is contrary to some of 
 the previous cases ; see R. v. Cullen, Id. 300. No difficulty would 
 arise now in such a case ; as the person to whom the request was 
 made might be shown by the evidence under the provisions of the 
 14 & 15 Vict. c. 100, s. 5, or the 24 & 25 Vict. c. 98, s. 44, supra, 
 p. 560. R. V. Pulbrook, 9 C. & P. 37, 38 E. C. L., where the judges 
 held that an instrument merely specifying the goods, may be shown to 
 be a request by the custom of the trade ; see also R. v. Rogers, 9 C.& 
 P. 41, 38 E. C. L.; R. v. Walters, Carr. & M. 588, 41 E. C. L., and 
 R. V. Snelling, ante, p. 580. 
 
 An instrument may be a request, although it be also an undertakino- 
 to pay for the goods. R. v. White, 9 C. & P. 282, 38 E. C. L. ^ 
 " In the following case a forged order was held to be within the 
 act, although the party whose name was forged had not any authority 
 over, or interest in the goods, neither did the request profess to charge 
 such party, the goods being supplied on the credit of the prisoner : 
 — The letter represented to the prosecutor that JNI. C. was dead, and 
 had left him 50/. or 60/., and it was in the hands of A. D., and that 
 he wanted mourning. The prosecutor refused to let the prisoner have 
 the goods^ but said he should have them if he would get an order for 
 them from A. D. In about half an hour the prisoner returned with 
 a forged jmper, purporting to be signed by A. D., containing (inter 
 alia) as follows : " Please to let W. T. have such things as he wants 
 for the purpose. Sir, I have got the mount of 27/. for M, C in my 
 keeping these many years." The prisoner being convicted, it was 
 held by the judges that the conviction was right. R. v. Thomas, 7 C. 
 & P. 851, 32 E. C. L.; 2 Moo. C. C. 16. 
 
 *So a forged paper purporting to be addressed to a trades- r^roj. 
 man by one of his customers in the following form : " Pleas to '- 
 let bearer, William Gof, have spillshoul and grafting tool for me," 
 was held by Gurney, B., to be a forged request for the delivery of 
 goods within the statute. R. v. James, 8 C. & P. 292, 34 E. C. L. 
 See also R. v. White, 9 C. & P. 282, supra, 38 E. C. L. 
 
 A tasting order to taste wine in the London Docks has been held 
 to be an order for the delivery of goods within this section. R. v. 
 Illidge, 1 Den. C. C. R. 404 ; 18 L. J., M. C. 179. 
 
 In a forged order for the delivery of goods, it does not appear to be 
 necessary that the particular goods should be specified in the order, 
 provided it be in terms intelligible to the parties themselves to whom 
 the order is addressed. 2 East, P. C. 941. The prisoner was indicted 
 for forging an order for the delivery of goods, as follows : — " Sir, 
 Please to deliver my work to the bearer. Lydia Bell." Mrs. Bell, 
 a silversmith, proved that she had sent several articles of plate to 
 Goldsmiths'-hall to be marked. The form of the order was such as 
 is usually sent on 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 prisoner being 
 convicted, the judges were of opinion that the conviction was right.
 
 744 FORGERY. 
 
 R. V. Jones, 2 East, P. C. 941 ; 1 Leach, 53 ; and see R. v. Thomas, 
 supra. 
 
 Proof of destroying, defacing, or injuring registers. The pris- 
 oner was employed in getting up a pedigree for the purpose of evidence 
 in a civil action, and for that purpose searched the registers of births, 
 etc., in the parish of C On one occasion, whilst the curate of the 
 parish, who was with him, was looking into an iron chest for another 
 book, and had his back turned, the prisoner tore off the lower portion 
 of one of the leaves of one of the registers. The part torn off was not 
 destroyed, and the book was subsequently repaired, and was then as 
 legible as before. The jury found that the prisoner tore the book 
 wilfully, and he was convicted, and the Court of Criminal Appeal 
 affirmed the conviction. R. v. Bowen, 1 Den. C. C. 22. 
 
 Proof of forging county court process. In R. v. Evans, Dears. 
 & B. C. C. 236 ; 26 L. J., M. C. 92, the prisoner, being a creditor 
 of R., sent him a letter, not in any way resembling county court 
 process, but headed with the royal arms, and purporting to be signed 
 by the clerk of the county court, threatening county court proceed- 
 ings. He afterwards told the wife of R. that he had ordered the 
 county court to send the letter, upon which she paid the debt ; he 
 also made a claim for county court expenses, which was not paid. 
 Held, that the prisoner was rightly convicted on an indictment 
 charging him with forging county court process. In R. v. Castle, 
 Dears. & B. C. C. 363, the prisoner delivered to one T. C. a paper, 
 headed, "In the county court of L., A. plaintiff and T. C. de- 
 fendant ;" it was addressed to " T. C. the above defendant," and 
 gave him notice to produce, " on the trial of this cause," on a given 
 day, certain accounts and papers ; and at the foot of tlie paper were 
 the words, " By the plaintiff." It was held that a conviction under 
 the above section was wrong, inasmuch as the paper did not purport 
 to be a copy of summons to witnesses under s. 85 (now repealed) of 
 the 9 & 10 Vict. c. 95, or of any other process of the county court, or 
 *f;q"1 *^o b^ anything more than a mere notice to produce. In R. v. 
 '^^'^-1 Richmond, 1 Bell, C. C. 142 ; 28 L. J., M. C. 188, the pris- 
 oner iiad obtained a blank printed form for plaintiff's instructions to 
 issue county court summons, wiiich he filled up with particulars of 
 the names and addresses of himself as plaintiff, and B. as defendant, 
 and of the nature and amount of the claim. He then, without any 
 authority, signed it with the name of the registrar, and indorsed upon it 
 a notice in the name of that officer, that unless the amount claimed 
 were paid by a certain day, an execution warrant would issue against 
 him. This paper he delivered to B., with intent thereby to obtain 
 payment of the debt ; it was held that this was a forgery of county 
 court process within the 9 & 10 Vict. c. 95, s. 57. 
 
 Proof of the uttering, disposing of. or putting off. It is an 
 offence at common law to utter a forged instrument, the forgery of
 
 FORGERY. 745 
 
 which is an offence at common law. Where, therefore, the prisoner 
 was indicted for uttering a forged testimonial to his character as a 
 schoolmaster, and the jury found him guilty of uttering the forged 
 document with intent to obtain the emoluments of the place as school- 
 master, and to deceive, it was held that the prisoner was properly con- 
 victed. R. V. Sharman, Dears. C. C. 285 ; 23 L. J., M. C. 51 • over- 
 ruling R. V. Boult, 2 C. & K. 604, 47 E. C. L. 
 
 The terms generally used to describe the offence in the various stat- 
 utes relating to forgery are, "offer, utter, dispose of, or put off." 
 
 The proof is very similar to that of uttering, etc., counterfeit coin, 
 as to which, see ante, p. 413, and cases there cited.^ 
 
 Where the prisoner presented a bill for payment with a forged in- 
 dorsement on it of a receipt by the payee, and on the person to whom 
 it was presented objecting to a variance between the spelling of the 
 payee's name in the bill and in the indorsement, the prisoner altered 
 the indorsement into a receipt by himself for the drawer, it was ruled 
 that the presenting of the bill before the objection was a sufficient 
 uttering of the forged indorsement. R. v. Arscott, 6 C. & P. 408, 25 
 E. C. L. 
 
 Where upon an indictment for uttering a forged acceptance to a bill 
 of exchange it appeared that the bill in question came inclosed in a 
 letter in the prisoner's handwriting, and that the day before the bill 
 became due the prisoner wrote a letter acknowledging that it was a 
 forgery, it was held not to be necessary to prove either that the pris- 
 oner put the letter into the post himself, or commissioned anybody 
 else to do so. B. v. M'Quin, 1 Cox, C. C. 34. 
 
 It has been said that handing forged instruments from one person 
 to another is not " uttering," in the criminal sense of that word, if the 
 person to whom the instruments are handed knows that they are 
 forged. In R. v. Hey wood, 2 C. & K. 352, 61 E. C. L., Alderson, 
 B., held that if A. handed to B., who was a party to the fraud, a 
 forged certificate of a pretended marriage between himself and B., in 
 order that B. might give it to a third person, A. was not guilty of 
 uttering. But a different decision has been come to on the words, 
 "dispose of or put away," in the repealed statute of 15 Geo. 2, c. 13, 
 s. 11. The prisoners were indicted for disposing and putting away 
 forged Bank of England notes. It appeared that the prisoner, Palmer, 
 had been in the habit of putting off forged bank notes, and had em- 
 ployed the other prisoner, Sarah Hudson, in putting them off. The 
 latter having *offered a forged note in payment, in the ev^ening r*ro/^ 
 of the same day Palmer went with her to the person wno nad •- 
 stopped it, and said, " This woman has been here to-day, and offered 
 a two-pound note, which you have stoj^ped, and I must either have 
 the note or the change," It was contended for the prisoners that the 
 
 ' Proof that the defendant had in his possession and uttered a forged commercial 
 instrument, raises no presumption tliat the defendant committed the forgery. Miller 
 r. State, oT Ind. 405 On a trial for uttering a forged promissory note, evidence to 
 show that the note had been paid is immaterial, and should be excluded. Brown v. 
 State, 8 Hun, (N. Y.) 562. Uttering forged paper is not forgery. Buren v. State, 
 1(3 Lea, (Tenn.) 61.
 
 746 FORGERY. 
 
 evidence was of two distinct and separate offences, and not of a joint 
 offence. The jury having found Palmer guilty of the offence of dis- 
 posing and putting away the note, a case was reserved for the opinion 
 of the judges, which was delivered by ISIr. Justice Grose. He said 
 that a difference of opinion had existed among the judges, some hold- 
 ing that until Sarah Hudson uttered the note it was to be considered 
 as virtually in Palmer's possession, and that when she did utter it he 
 was to be considered only as an accessory before the fact, and ought to 
 have been so indicted. But a great majority of the j udges were of opinion 
 that the conviction was right. It clearly appeared that Palmer know- 
 ingly delivered the forged note into the hands of Sarah Hudson, for 
 the fraudulent purpose of uttering it for his own use. He could not 
 have recovered it back by any action at law. It was out of his legal 
 power, and when it was actually uttered by her, the note was disposed 
 of, and put away by him through her means. As delivering an instru- 
 ment to another was a step towards uttering it, it seemed most con- 
 sonant to the intentions of the legislature to hold that the delivery to 
 another for a fraudulent purpose was an offence within the words, "dis- 
 posed of," or "put away," R. v. Palmer, 2 Leach, 978 ; 1 Bos. & P. 
 N. R. 96 ; Russ. & Ry. 72. 
 
 The same point arose, and was decided in the same way, in R. v. 
 Giles, 1 Moo. C. C. 166. The jury in that case found the prisoner 
 had given the note to one Burr, and that he was ignorant of its being 
 forged, and paid it away. The judges to whom the case was referred, 
 thought that Burr knew it was forged ; but were of opinion that the 
 giving the note to him, that he might pass it, was a disposing of it 
 to him, and that the conviction was right. Had the prisoner been 
 charged with uttering instead of disposing of the note, it seems that, 
 according to the view of the case taken by the judges. Burr being 
 cognizant of the forgery, the prisoner could not have been convicted 
 on that indictment, as in that case his offence would have been that of 
 accessory before the fact. See R. v. Soares, Russ. & Ry. 25 ; 2 East, 
 P. C. 974; R. V. Davis, Russ. & Ry. 113, ante, p. 414. 
 
 It seems that in the case of the forgery of an instrument which has 
 effect only by its passing, the mere showing of such false instrument 
 with intent thereby to gain credit is not an offence within the statutes 
 against forgery. The prisoner was indicted (under the repealed statute 
 13 Geo. 3, c. 79) for uttering and publishing a promissory note con- 
 taining the words, etc. It appears that in order to persuade an inn- 
 keeper that he was a man of substance, he one day after dinner 
 pulled out a pocket-book, and showed him the note in question, and a 
 50/. note of the same kind. He said he did not like to carry so much 
 property about him, and begged the innkeeper to take charge of them, 
 which he did. On opening the pocket-book some time afterwards the 
 notes were found to be forged. The prisoner being convicted, the 
 judges held that this did not amount to an uttering. In order to 
 make it such, they seemed to be of opinion that it should be parted 
 with, or tendered, or offered, or used in some way to get money or 
 credit upon it. R. v. Shukard, Russ. & Ry. 200. " The words, * upon
 
 FORGERY. 747 
 
 *it,' we considered as equivalent to, ' by means of it/ otherwise r^roj 
 there could hardly be an uttering of court-rolls and other in- ^ 
 struments enumerated in the statute." Pei' Campbell, C. J., in deliv- 
 ering the judgment of the court in R. v. Jones, infra. 
 
 But if A. exhibit a forged receipt to B., a person with whom he is 
 claiming credit for it, this is an uttering within the 11 Geo. 4 & 1 
 Will. 4, c. 60, s. 10 (repealed), although A. refuse to part with the 
 possession of the paper out of his hand. R. v. Radford, 1 C. & K. 
 707, 47 E. C. L. ; 1 Den. C. C. 59. In this latter case, which was 
 reserved for the consideration of the judges. Pollock, C. B., said, " In 
 all these cases reference must be had to the subject. A purse is of no 
 use except it be given. Not so a receipt, or turnpike ticket. A prom- 
 issory note must be tendered to be taken. Not so a receipt, as the per- 
 son who has it is to keep it." In R. v. Jones, 2 Den. C. C. R. 475 ; 
 21 L. J., M. C. 166, the prisoner placed a forged receipt for poor-rates 
 in the hands of the prosecutor for inspection, in order that by repre- 
 senting who had paid the rates he might induce the prosecutor to ad- 
 vance money to a third person. This was held to be an uttering within 
 the 11 Geo. 4 & 1 Will. 4, c. 6Q, s. 10. 
 
 The prisoner was indicted in London under the 44 Geo. 3, c. 98, 
 for uttering forged medicine stamps. Having an order to supply 
 medicines to certain persons at Bath, he delivered them at his house 
 in Middlesex to a porter, to carry them to Aldersgate Street, in 
 London, to the Bath wagon. It was objected that this was not an 
 utter-ing by the prisoner in the city of London, and upon the argu- 
 ment of the case before the judges, there was a difference of opinion 
 upon the subject, although the majority held the offence complete in 
 London. R. v. Collicott, 2 Leach, 1048 ; Russ. & Ry. 212 ; 4 Taunt. 
 300. 
 
 In R. V. FItchie, Dears. & B. C. C. 175 ; 26 L. J., M. C. 90, the 
 prisoner, a pawnbroker, was indicted for uttering a forged account- 
 able receipt for goods. The uttering proved was that the prisoner 
 being called upon to produce the pawn-ticket in a proceeding before 
 the magistrates to recover the goods by the person who pledged them, 
 his attorney. In his presence, produced and handed up the forged 
 ticket as the genuine ticket relating to the goods. The jury found 
 that the prisoner, through his attorney, delivered the ticket to the 
 magistrate as a genuine ticket ; and It was held that this was an 
 uttering by the prisoner. 
 
 A conditional uttering of a forged Instrument is as much a crime 
 as any other uttering. Where a person gave a forged acceptance, 
 knowing It to be so, to the manager of a banking company with 
 which he kept an account, saying that 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 Inquiries respecting the ac- 
 ceptors, Patteson, J., held It to be a sufficient uttering. R. v. Cooke, 
 8 C. & P. 582, 34 E. C. L. 
 
 Where an engraving of a forged note was given to a party as a 
 pattern or sijeclmen of skill but with no intention that that particular
 
 748 FORGERY. 
 
 note slioukl be put in circulation, Littlodale, J., held that this was not 
 an uttering. R. v. Harris, 7 C. & P. 428, 32 E. C. L. 
 
 Proof of the intent to defraud. In general, as has already been said 
 (p. 543), an intent to defraud is an essential ingredient in the offence 
 of forgery. The definition of the crime by Grose, J., on delivering 
 the opinion of the judges, is " the false making of a note or other 
 . -, *instrument with intent to defraud.'' R. v. Parkes, 2 Leach, 
 ^«»J 775 . 2 East, P. C. 853. So it was defined by Eyre, B., " the 
 false making of an instrument, which purports on the face of it to be 
 good and valid, for the purposes for which it was created, with a de- 
 sign to defraud." R. v. Jones, 1 Leach, 367 ; 2 East, P. C. 853. The 
 word deceive has been used by BuUer, J., instead of the word defraud; 
 but it has been observed, that the meaning of this word must doubt- 
 let^s be included in that of the word defraud. 2 East, P. C. 853. In 
 R. V. Tylney, 1 Den. C. C. R. 321, the judges were divided in opinion 
 whether the prisoner could be convicted of forging a will without 
 proof that the forged instrument was capable of effecting a fraud on 
 some person or other. 
 
 But this doubt is settled by R. v. Hodgson, supra, p. 543, from 
 which it appears that, except in those statutory forgeries where no 
 intent is mentioned in the statute, an intent to defraud is always 
 necessary to be proved. And it has been said that it is necessary to 
 allege an intent to defraud in an indictment under s. 28, ante, p. 555, 
 for forging any process of a court. Per Quain, J., R. v. Powner, 12 
 Cox, C: C. 233. 
 
 If A. put the name of B. on a bill of exchange, as acceptor, without 
 B.'s authority, expecting to be able to meet it when due, or expecting 
 that B. will overlook it, this is a forgery ; but if A. either had author- 
 ity from B., or, from the coarse of their dealing, bond fide believed 
 that he had authority from B., to use his name, it is not forgerv. Per 
 Coleridge, J., R. v. Forbes, 7 C. & P. 224, 32 E. C. L.; R. v. Parish, 
 8 C. & P. 94, 34 E. C. L. And the fact that the party in whose 
 name the bills were drawn had not paid or recognized such bills Avould 
 be good evidence of the authority, or bond fide belief of the authority. 
 R. V. Beard, 8 C. & P. 143. The prisoner, a solicitor, being applied to 
 for a loan of money by one R. T., entered into a negotiation with J. 
 E. to advance the money. This J. E. agreed to do, upon the prisoner 
 giving him proper security. Accordingly the prisoner handed him a 
 bond, purporting to be signed by R. T. and E. D., the brother-in-law 
 of R. T., whose execntion professed to have been M'itnessed by the 
 prisoner ; and the money was handed over by J. E. to the prisoner, 
 and by him paid to R. T. Both the signatures were written by the 
 prisoner, in his own handwriting, and without any attempt at con- 
 cealment or imitation. Great intimacy was admitted to have existed 
 between all the parties, and R. T. and E. D. being called, though tliey 
 denied that the prisoner had any authority to sign the deed in their 
 name, admitted that, if they had been;ipplied to for that purpose, they 
 would themselves have executed it. Cliuiuiell, B., said, that if the jury
 
 FORGERY. 749 
 
 thought the prisoner intended to defraud J. E. when he delivered to 
 him the bond, they ought to convict the prisoner, which they did. R. 
 V. Trenfield, 1 F. & F. 43. So where a clerk i-eceived a blank cheque 
 signed with directions to fill in a certain amoinit, and he filled in a 
 larger amount and appropriated the cheque, it was held to be forgery, 
 although the larger amount was due to him for salary. 11. v. Wilson, 
 1 Den. C. C. 284, 17 L. J., M. C. 82. 
 
 The intent to defraud may be presumed from the general conduct 
 of the defendant ; and if the necessary consequence of the prisoner's 
 acts be to defraud some particular person, the jury may convict, not- 
 witlistanding that that person states his belief, on oath, that the pris- 
 oner did not intend to defraud him. R. v. Sheppard, Russ. & Ry. 
 169 ; R. V. Hill, 8 C. & P. 274, 34 E. C. L.^ 
 
 *The only cases in which on an indictment for forgery or r^roq 
 uttering an intent to defraud need not be proved, are where L 
 the forgery of an instruunent is made by any statute criminal without 
 proof of any intent. There it is not necessary. R. v. Ogden, 6 C. 
 & P. 631, 25 E. C. L. 
 
 Proof of the intent to defraud — party intended to be defrauded. 
 
 Although by the 24 & 25 Vict. c. 98, s. 44 {supra, p. 560), it is no 
 longer necessary to specify in the indictment the particular person 
 whom the prisoner intended to defraud, or even to prove an intent to 
 defraud any particular person ; yet the general intent to defraud, 
 which it is necessary to prove, cannot exist unless the circumstances 
 of the case are such that the natural consequence of the prisoner's act 
 would be to defraud some one or other.^ Thus in R. v. Hodgson, 
 Dears. & B. C. C. 3 ; 25 L. J., M. C. 78, where the prisoner forged a 
 diploma of the College of Surgeons, Avith intent to induce people to 
 believe that he was a member of the college, the convcition was quaslied, 
 because it appeared that he had no intent in forging to commit any 
 
 ^ United States v. Moses, 4 Wash. C. C. 726. [An intent to defraud may be inferred 
 by the jury from the fact that the defendant obtained goods on the paper alleged to 
 be forged. So also that he forged the paper. Allen r. State, 74 Ala. 557. An intent 
 to defraud will be presumed from the forgery itself. Rounds v. State, 78 Me. 42.] If 
 the indictment lay the intent to defraud A., proof of an intent to defraud A. and B. 
 will sustain the indictment. Veazie's Case, 7 Greenl. 131. To constitute the oflTence 
 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, sliould liave a le.gal existence. Wliere, how- 
 ever, the intent is charged to have been to defraud the bank, purporting to liave is- 
 sued tlie notes, the bank must be shown to be a real body, capable of being defrauded. 
 People V. Peabody, 25 Wend. 472. Intent may be laid to defraud either the party 
 whose name is forged, or the party to whom it is passed. State v. Cleveland, 6 Nev. 
 181. The criminal intent which the law infers from forging an instrument and using 
 it as evidence of a claim against the person whose name is forged, cannot be negatived 
 by proof that the cla m was really a just one. State v. Wooderd, 20 la. 541. S. 
 
 Tlie intent to defraud must appear either on the face of the instrument or in aver- 
 ments in indictment as to facts. State v. Weaver, 94 N, C. 836. 
 
 ^ The intent to defraud must be proved. Constructive notice by a public record is 
 no substitute for actual notice to establish the scienter requisite to criminal intention. 
 Pearson v. State, 55 Ga. 659. One who forges the name of a deceased person, for the 
 purpose of defrauding his estate, is guilty of the crime of forgery. Billings v. State, 
 107 Ind. 54.
 
 750 FORGERY. 
 
 fraud or specific wrong to any person. This was V held on the 14 & 
 15 Vict. c. 100, s. 8, which is in similar terms to the 24 & 25 Vict, 
 c. 98 s. 44. 
 
 ' Nash's case (2 Den. C. C. 493 ; 21 L. J., M. C. 147), on the other 
 hand, shows that if the prisoner had an intent by forgery to defraud 
 a particular person, it is immaterial A\hetlier there was any person 
 capable of being so defrauded. In giving judgment in that case, 
 Maule, J., put the case of a man forging a cheque on a bank at which 
 the forger wrongly supposed the person whose name was foi'ged to 
 keep an account. In such a case, he said, there would be an intent to 
 defraud although no person could be defrauded. See, too, R. v. Hol- 
 den, Russ. & R. 154. If the intent to defraud exists, the fact that 
 the person who would have to pay the forged instrument (if genuine) 
 is not likely to be imposed upon by the forgery, does not disprove an 
 intent to defraud that person, even if the forger had no special intent 
 in relation to him, but intended only to defraud those who might hap- 
 pen to take the forged instrument in the first instance. R. v. Maza- 
 gora, R. & R. 291. This was decided under the old law, when it was 
 necessary to lay in the indictment an intent to defraud a particular 
 person, and to prove it as laid ; but it is now of little importance, as 
 there can be no doubt that the intent to defraud those particular, 
 though at the moment of the forgery unascertained, persons, who 
 might happen to deal with the forged instruments in the first instance, 
 would be such an intent to defraud as is contemplated by 24 & 25 
 Vict. c. 98, s. 44. 
 
 Proof of the falsity of the instrument. It is essential, of course, 
 to prove the falsity of the instrument. This may be done in various 
 ways. If the forgery is of the name of an existing person, it is ne- 
 cessary to disprove that the handwriting is his, and circumstances must 
 be shown from which it may be inferred that the prisoner, in assum- 
 ing to use the name, acted fraudulently.' The person whose name is 
 used need not be called ; see the cases collected, supra, p. 5. But if 
 there be more than one person who might be meant, it is necessary to 
 show, either directly or by inference, that the prisoner did not use the 
 name of any one of these honestly. Thus, where the bill had been 
 sent to one P., the payee and indorser, an intimate friend of D., the 
 drawer ; but it never came to his hands, and it was proved to have 
 *piQm *^^^^^ uttered by the prisoner with the indorsement, "William 
 -• Pearce," upon it ; Davis was not called, and the testimony of 
 Pearce was rejected by Adair, S., recorder ; for although it might not 
 be his handwriting, yet it might be the handwriting of a William 
 Pearce, or as he had not been proved to be the person intended as the 
 payee of the bill, it might be the handwriting of the William Pearce 
 to whom the bill was made payable. The prisoner was accordingly 
 acquitted. R. v. Sponsonby, 1 Leach, 332 ; 2 East, P. C. 996. It 
 
 ' It is error to charp;e the jury that defendant cannot be convicted nnlesH by proof 
 by an eve-witness to the signature or by the defendant's own admission. Jordan v. 
 State, 52 Ala. 188.
 
 FORGERY. 751 
 
 has been observed upon this case, that it may be doubted whether the 
 fact of this William Pearce being an intimate acquaintance and corres- 
 pondent of the drawer, and no evidence being given of the existence 
 of any other William Pearce, to whom it might be su})j)osc(l that the 
 bill was made payable, was not sufficient evidence of the identity of 
 the payee. 2 East, P. C. 997. The decision in 11. v. Sponsonljy may 
 be considered as much shaken by the following authority. The pris- 
 oner was indicted for forging a promissory note, purporting to be made 
 by one William Holland payable to the prisoner or order. It ap- 
 peared that the prisoner had offered the note in payment to the prose- 
 cutor, who at first refused to take it, upon which the prisoner said he 
 need not be afraid, for it was drawn by William Holland, who kept 
 the Bull's Head, at Tipton. William Holland was called, and proved 
 that it was not his handwriting. He stated that there was no other 
 publican of his name at Tipton, but there was a gentleman of the 
 name of WiUiam Holland living there on his means, who, for distinc- 
 tion, was allied Gentleman Holland. The latter William Holland not 
 being called, it was contended for the prisoner that there was not suf- 
 ficient evidence of the note having been forged. The prisoner being 
 convicted, on a case reserved, the judges held, that as the prisoner had 
 stated that William Holland, of the BidUs 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 that it was not the note of 
 that William Holland, and that it lay upon the prisoner to prove, if 
 the case were so, that it was the genuine note of another William 
 Holland. R. v. Hampton, 1 Moo. C. C. 225.» 
 
 But that the party who is called is the same person as the party 
 whose name is forged may also be established by the admission of the 
 prisoner himself, as in the following case. The prisoner was charged 
 with forging and uttering a bill of exchange in the name of Andrew 
 Helme, with intent to defraud one Anthony, and also with forging an 
 indorsement in the name of John Sowerby, on a bill purporting to be 
 drawn by the said A. Helme, with the like intent. Some letters 
 written by the prisoner, after his apprehension, to A. Plelme, who was 
 the prisoner's uncle, were produced, from which it clearly appeared 
 that the name of A. Helme was forged. In the same manner the 
 forgery of Sowerby's name appeared, and that he was the son of a 
 person of the same name at Liverpool. A witness proved that the 
 prisoner offered him the bill in question with the indorsement upon 
 it, informing him that A. Helme was a gentleman of credit at Liver- 
 pool, and the indorser a cheesemonger there who had received the bill 
 in payment for cheeses. Sowerby, the father, was then called, who 
 swore that the indorsement was not his handwriting ; that he knew 
 of no other person of the same name at Liverpool ; that his son 
 
 ^ Evidence that the prisoner uttered as genuine what purported on its face to be a 
 bank-note, is competent proof that it was a bank-note, though it is not otherwise 
 shown tliat such a bank existed. United States v. Foye, 1 Curt. C. C. 3()4. In a 
 prosecution for uttering a forged bank-note of the Bank of Dehiware, in Pennsyl- 
 vania, the existence of such a bank may be proved by parol. Cady v. Commonwealth, 
 10 Gratt. 776. S.
 
 752 FORGERY. 
 
 had been a cheesemonger there, but liad left that town four months 
 before, and was gone to Jamaica, and that the indorsement Mas not 
 j^P-f -|-| *in his handwriting. It was objected that Helme, the drawer, 
 -^ was not called to prove what Sowerby, the payee, was ; but the 
 prisoner was convicted. The judges, on a case reserved, held the con- 
 viction right. They said, the objection supposed that there was a gen- 
 uine drawer, who ought to have been called, but to this there were two 
 answers, 1st, that the drawei*'s name was forged, which the prisoner 
 himself had acknowledged ; and 2ndly, that the prisoner himself had 
 ascertained who was intended by the John Sowerby, whose indorse- 
 ment was forged, for he represented him as a cheesemonger at Liver- 
 pool, and that he meant young Sowerby appeared from his mentioning 
 his mother; and it appearing not to be young Sowerby's hand- 
 writing, the proof of the forgery was complete. E,. v. Downes, 2 East, 
 P. C. 997. 
 
 If the false assertion on which the charge of forgery is founded be 
 the use of a fictitious name, the evidence that will be necessary will 
 depend much on the particularity with which the fictitious person 
 is described. In order to prove that the name " Samuel Knight, 
 Market-place, Birmingham," was fictitious, the prosecutor was called, 
 and stated that he went twice to Birmingham to make inquiries, and 
 inquired at a bank there, and at a place where the overseers usually 
 met ; and that he also had made inquiries at Nottingham, without 
 success. The prosecutor was a stranger in both of these towns. It 
 was objected for the prisoner, that this evidence was not sufficient ; 
 that in the case of a prosecution at the instance of King's College, in 
 order to prove a certain name fictitious, the twopenny postman and 
 police officer of the district were called. The judges at the Old Bailey 
 (Park and Parke, JJ., and Bolland, B.) were of opinion, that there 
 was evidence, though not satisfactory, to go to the jury, not being 
 the usual evidence given on such occasions, but that it was for the 
 jurv to say whether it was sufficient. The jury found the prisoner 
 not guilty. R. v. King, 5 C. & P. 123, 2-1 E.'C. L. Upon an in- 
 dictment for uttering a forged cheque upon Jones Loyd & Co., bankers, 
 purporting to be drawn by G. Andrews, it was held sufficient ^^rimd 
 facie evidence of the drawer's name being fictitious to call a clerk of 
 the bankers, who stated that no person of that name kept an account 
 with, or had any right to draw cheques on, their house. R. v. Back- 
 ler, 5 C. & P. 118, 24 E. C. L. ; P. v. Brannan, 6 C. & P. 320, 25 
 E. C. L.' 
 
 Form of indictment. A material alteration in the form of indict- 
 ments for forgery was made by the 14 & 15 Vict. c. 100, s. 8, and is 
 continued by the 24 & 25 Vict. c. 98, s. 44, supra, p. 560. 
 
 ^ Where the prosecution lias introduced evidence that the names to a bond to dis- 
 solve an attachment are fictitious, and that the persons could not he found, tlie de- 
 fendant should be allowal to show that the prosecutintj officer had ojienly threatened 
 to prosecute these persons for perjury, and that they had lied the state. Common- 
 wealth i. Coatello, liy Mass. 214.
 
 FORGERY. 753 
 
 The nature of the forged instrument must be stated in the indict- 
 ment ; R. V. Wilcox, Russ. & Ry. 50 ; and the proof must correspond 
 with such statement. But any immaterial variance would be amended, 
 Stat. 14 tS 15 Vict. c. 100, si! 1. 
 
 At common law the forged instrument miglit be described by its 
 purport, as a paper writing purporting to be the i)articular instrument 
 in question. 2 East, P. C. 980. And now by the 24 & 25 Vict. c. 98, 
 s. 42, replacing the 14 & 15 Vict. c. 100, s. 4 {supra p. 500), it is 
 sufficient to describe any instrument by any name or designation by 
 which the same may be usually known, or by the purport thereof, 
 without setting out any copy or fae-slmile thereof. And in the 24 & 
 25 Vict. c. 98, s. 43 (supra, p. 560), there is a similar provision with 
 respect to indictments for engraving, etc. Where in one count the 
 instrument was described as purporting to be a bank note, the court, 
 *being of opinion that it did not on the face of it purport to be p^ ^^.^ 
 such, held that the count could not be supported, and that the •- ' "* 
 representation of the prisoner at the time he passed it off as such, could 
 not vary the purport of the instrument itself. R. v. Jones, 2 East, P. 
 C 883, 981. Where a receipt was signed "C Oilier," and the indict- 
 ment stated it as purporting to be signed by Christopher Oliver, the 
 Court (consisting of Heath and Lawrence, JJ., and Thompson, B.) 
 were inclined to think there was no absolute repugnance in the 
 statement, and they reserved the case for the judges, but no opinion 
 was ever given. R. v. Reeves, 2 Leach, 808, 814 ; 2 East, P. C. 
 984 (7iy 
 
 Where a fictitious signature is stated, it should be described as p?tr- 
 porting to be the signature of the real party. Thus, where the instru- 
 ment was described as " a certain bill of exchange, requiring certain 
 persons by the name and description of Messrs. Down, etc., to pay to 
 the order of R. Thompson the sum, etc., and signed by Henry 
 Hutchinson, for T. G. T. and H. Hutchinson, etc., which bill is as 
 follows," etc., and it appeared in evidence that the signature to the 
 bill, " Henry Hutchinson," was a forgery, it was objected that 
 the indictment averring it to have been signed by him and not 
 merely that it purported to be signed by him, which was a sub- 
 stantial allegation, was disproved, and so the judges held, on a 
 
 ^ An indictment for forgery must set out the tenor of the instrument forged. Gus- 
 tin's Case, 2 South. 744. But if tlie instrument be lost, or in the hands of defendant, 
 it may show the excuse and set forth the instrument in general terms. People v. 
 Kingsley, 2 Cow. 522. As to proof of forgery without producing the writing, see 
 Commonwealth v. Hutchinson, 1 Mass. 7 ; Commonwealth v. Snell, 3 Jd. 82 ; 2 Russell, 
 359, n. 1. It is not necessary to set forth the marks and ciphers, ornaments or mot- 
 toes on bank notes. People 7'. Franklin, 3 Johns, 299; Commonwealtli v. Searle, 2 
 Binn. 332. See Commonwealth v. Parmenter, 5 Pick. 279. It is not necessary to set 
 out the numbers, vignettes, mottoes, and devices, or the words and figures in the mar- 
 gin which constitute no part of tlie contract of the instrument. Grifiin r. State, 14 O. 
 St. 55. In an indictment for forgery, charging that the same consisted in the altera- 
 tion of a true instrument, the rule that the forged instrument must be set out in 
 words and figures will govern. State v. Bryant, 17 N. H. 323. An indictment upon 
 a lost paper which it is avowed was a forgery, should set out the substance and effect 
 of the instrument ; that the court may see that it was such an instrument that the 
 forgeiy of it would constitute a crime. Wallace v. People, 27 111. 45. S. 
 48
 
 754 FORGERY. 
 
 reference to them after conviction. R. v. Carter, 2 East, P. C. 
 985. 
 
 A bank post bill must not be described as a hill, of exchange, but it 
 is sufficiently described by the designation of a bank bill of exchange. 
 R. V. Birkett, Russ. & Ry. 251. 
 
 Where an indictment for forgery charged that the prisoner " did 
 forge a certain promissory note for the payment of 50/.," without 
 stating it to be of any value ; Patteson, J., said that the court must 
 take judicial notice of what a promissory note is, and held the de- 
 scription to be sufficient. R. v. James, 7 C. & P. 553, 32 E. C. L. 
 With reference to this statute, it was held that an instrument payable 
 to tlic order of A., and directed " Messrs. P. & Co., bankers," may be 
 described as a bill of exchange; R, v. Smith, 2 Moo. C. C. 295; that 
 " a deed purporting to be a lease of certain premises," is a sufficient 
 description; R. v. Davies, 2 Moo. C. C. 177 ; so "a request for the 
 delivery of goods ;" R. v. Robson, 2 Moo. C. C. 182 ; that the instru- 
 ment may be described as a deed, without assuming that it is one which 
 may be the subject of larceny ; R. v. Collins, 2 M. & Rob. 461 ; that 
 an indictment charging that the prisoner " did forge a writing as a 
 certificate of W. N. with intent to deceive and defraud W. P. and 
 others," was good. R. v. Toshack, 1 Den. C. C. 492. 
 
 If an instrument is set out in full in the indictment, the description 
 of its legal character would appear to be surplusage. Thus in R. v. 
 Williams, 2 Den. C. C. R. 61 ; 20 L. J., M. C. 106, the prisoner was 
 indicted for forging a certain warrant order and request in the words, 
 etc., following : " Please to send by bearer a quantity of basket nails 
 and clasps for E. Lloyd ;" it was proved to be only a request. Pol- 
 lock, C. B., in delivering the judgment of the court, said, " the case 
 has stood over to enable the court to see a copy of the indictment. 
 The judges find that the instrument was set out in hac verba, and 
 therefore the only ground of doubt being removed, the conviction 
 must be affirmed." 
 
 It may be remarked, however, that here the proper description was 
 5^p.qo-| *used, but something was added. In R. v. Hunter, Russ & Ry. 
 -I 511, where an instrument was set out in the following form: 
 
 "Two months after date, pay to Mr. B. H., or order, the sum of 
 28?. 15s., value received. "John Jones. 
 
 " At Messrs. Spooner & Co.'s, 
 " Bankers, London," 
 
 which in the indictment was called a promissory note, the judges held 
 that the variance was fatal, and the conviction wrong. The indict- 
 ment w^ould now, of course, be amended. 
 
 It will be no variance, if it appear that the instrument which is de- 
 scribed in the indictment as a forged instrument, was originally a gen- 
 uine one, but that it has been fraudulently altered by the prisoner j 
 for every alteration of a true instrument for a fraudulent purpose 
 makes it, when altered, a forgery of the whole instrument. R. v.
 
 FORGERY. 755 
 
 Teague, 2 East, P. C. 979. Tims wliere the prisoner altered a figure 
 of 2 in a bank note into 5, the judges agreed that it was forging and 
 counterfeiting a bank note, forgery being the alteration of a deed or 
 writing in a material part to the prejudice of another, as well as when 
 the whole deed or writing is forged. R. v. Dawson, 2 East P. C. 
 978. In practice, however, forgeries of this kind are stated, in one 
 count at least, as alterations. 2 East, P. C. 986 ; 2 Russ. on Cri. 707 
 5th ed. ' 
 
 The power of amendment given by the 14 & 15 Vict. c. 100 s. 1 
 renders these decisions of much less importance than formerly. 
 
 Proof with regard to principals and accessories. Although, in 
 general, it is necessary, in order to render a party guilty as principal 
 in an offence, that he should have been present at the commission of 
 the complete act, yet it is otherwise in forgery, where a person may 
 incur the guilt of a principal offender by bearing a part only in the 
 committing of the act, and in the absence of the other parties. Thus 
 where the prisoner impressed the water-marks, the date, line, and 
 number, on forged bank notes, and the other requisites were added 
 at different times, and by different parties, not in the presence of the 
 prisoner ; on conviction, the judges were of opinion that the convic- 
 tion was right ; that each of the offenders acted in completing some 
 part of the forgery, and in pursuance of the common plan each was a 
 principal in the forgery, and that though the prisoner was not present 
 when the note was completed by the signature, he was equally guilty 
 with the others. R. v. Bingley, Russ. & Ry. 446. Nor does it make 
 any distinction in the case, that the prisoner was ignorant of those 
 who were to effect the other parts of the forgery ; it is sufficient to 
 know that it is to be effected by somebody. R. v. Kirkwood, 1 Moo. 
 C. C. 304 ; R. V. Dade, Id. 307. 
 
 But where three persons were jointly indicted under the 11 Geo. 4 
 & 1 Will. 4, c. 6Q, s. 19 (repealed), for feloniously using plates con- 
 taining impressions of foreign notes, it was held by Littledale, J., that 
 the jury must select some one particular time after all three had 
 become connected, and must be satisfied, in order to convict them, 
 that at such time they were all either present together at one act of 
 using, or assisted in such one act, as by two using and one Avatching 
 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 different times they had singly r^ic^qj^ 
 used the plates, and were individually in possession of forged *- 
 notes taken from them. R. v. Harris, 7 C. & P. 416, 132 E. C. L. 
 
 Where three prisoners were indicted under the same section for felo- 
 niously 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 the engraving of the plates ; but 
 they said they were employed to get it done by a third person, and 
 there was some evidence to connect the third prisoner with the other
 
 756 FORGERY. 
 
 two in subsequent parts of tlie transaction ; it was lield 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 communicated with the other two, and all three concurred in 
 the eraplovment of the engraver. R. v. Mazeau, 9 C. & P. 676, 38 
 E. C. L. { 2 Russ. on Cri. 691, 5th ed. 
 
 With regard to the offence of uttering forged instruments, it is neces- 
 sary, in order to render a party guilty as principal, that he should have 
 been present. R. v. Soares, Russ. & Ry. 25 ; 2 East, P. C. 974, ante, 
 p. 414. At the time of uttering forged orders for the payment of 
 money and obtaining goods from a shop by means of such orders, two 
 prisoners remained outside the shop in which the third prisoner uttered 
 the orders, and assisted him in taking away the goods. All three 
 prisoners were held to be properly convicted for uttering the orders. 
 R. V. Vanderstein, 10 Cox, C. C. R. (Irish), 177. Where a wife, 
 with her husband's knowledge, and by his procurement, but in his 
 absence, uttered a forged order and certificate for the payment of 
 prize-money, it was held by the judges, that the presumption of coer- 
 cion on the part of the husband did not arise ; that she might be in- 
 dicted as principal, and her husband as accessory before the fact. R. v. 
 Morris, Russ. & Ry. 270; 2 Leach, 1096. So an assent afterwards 
 does not render the party guilty as a principal. 1 Hale, P. C. 684 ; 
 2 East, P. C 973. But in forgery at common law, which is a misde- 
 meanor, as in other cases of misdemeanor, those who, in felony, would 
 be accessories, are principals. 2 East, P. C. 973. 
 
 Proof of guilty knowledge. Where the prisoner is charged with 
 uttering or putting off a forged instrument, knowing it to be forged, 
 evidence of that guilty knowledge must be given on the part of the 
 prosecution ; and for that purpose the uttering or having possession of 
 similar forgeries will be admissible. Most of the cases upon this sub- 
 ject have already been stated. Ante, p. 95. 
 
 On an indictment for forging and uttering a forged bill, a letter 
 written by the prisoner, after he was in custody, to a thii'd party say- 
 ing that such party's name is on another bill, and desiring him not 
 to say that the latter bill is a forgery, is receivable in evidence to 
 show guilty knowledge, but the jury ought not to consider it as evi- 
 dence that the other bill is forged, unless such bill is produced and 
 the forgery of it proved in the usual way. Per Coleridge, J., 
 R. V. Forbes, 7 C. & P. 224, 32 E. C. L. So it was held by 
 Patteson, J., that evidence of what the prisoner said respecting 
 other bills of exchange, which are not produced, is not admissible. 
 R. V. Cooke, 8 C. & P. 586, 34 E. C. L. The case of R. v. 
 Cooke was doubted by Crompton, J., in R. v. Brown, 2 F. & F. 
 559, where it was proposed to put in evidence statements 
 j^p.qp-1 *made by the prisoner with reference to other notes supposed 
 -■ to be forged. There seems to be some doubt as to what is the 
 mode of proving the other instruments to be forgeries. See R. v.
 
 FORGERY. 757 
 
 Moore, 1 F. <& F. 73. As to the proof of a guilty knowledge gen- 
 erally, see R. V. Francis, L. R. 2 C. C. 128 ; 43 L. J., M. C. <J7 ; ante, 
 pp. 101, 510, and supra, p. 94. 
 
 Venue. It was formerly necessary to lay the venue in the county 
 where the forgery was committed ; and as it was frequently difficult 
 to procure direct proof of the act of forgery, much inconvenience was 
 occasioned ; see 2 Russ. Cri. 710, 5th ed.^ But this difliculty has 
 been removed by the 11 Geo. 4 & 1 Will. 4, c. 66, s. 24, which ])ro- 
 vided that the prisoner might be tried where he was apprehended. 
 This provision is now replaced by the 24 & 25 Vict. c. 98, s. 41, which 
 is similar in its terms. Seesupra, p. 560. 
 
 Under the 11 Geo. 4 & 1 Will. 4, c. Q6, s. 24 (repealed), Patteson, 
 J., held it to be sufficient to prove that the party was in custody in 
 the county where he was tried, and that the indictment need not con- 
 tain any averment of his being in custody there. R. v. James, 7 C. 
 & P. 553, 32 E. C. L. So in R. v. Smythies, 1 Den. C. C. R. 498 ; 
 19 L. J., M. C. 31, the prisoner was not shown to have been in cus- 
 tody till he surrendered just before the trial. The jury found that he 
 was guilty of forging, but that there M'as no evidence of its having 
 been done within the jurisdiction of the court ; this finding was held 
 to amount to a conviction. 
 
 On an indictment for forging and uttering a cheque, it appeared 
 that the cheque had been dated abroad and drawn by the prisoner 
 abroad, and that he had caused it to be presented to a banker abroad : 
 througli whom it was presented in this country without a stamp ; 
 held, that the prisoner might be convicted of uttering in this country 
 if he set other persons in motion in another country as his agents, by 
 whom the cheque was presented in this country. R. v. Taylor, 4 F. 
 &F. 511. 
 
 1 The feet of forging a note within a county cannot be inferred from its having 
 been uttered therein. Commonwealth v. Parmenter, 5 Pick. 279. A person may be 
 guilty of forgery, though he did not write tlie instrument forged in the county in 
 which the indictment was found, if he altered and published it there. McGuin v. 
 State, 37 Ala. 161. S.
 
 758 FUEIOUS DRIVING. 
 
 *596] *FURIOUS DRIVING. 
 
 This, considering the probable danger to the lives of the public, 
 would seem to be an indictable offence at common law ; Williams v. 
 E. I. Company, 3 East, 192 ; and now by the 24 & 25 Vict. c. 100, 
 s. 35, replacing the 1 Geo. 4, c. 4, " Whosoever having the charge of 
 any carriage or vehicle, shall by wanton or furious driving or racing, 
 or other wilful misconduct, or by wilful neglect, do or cause to be done 
 any bodily harm to any person whatsoever, shall be guilty of a mis- 
 demeanor, and being convicted thereof shall be liable, at the discretion 
 of the court, to be imprisoned for any term not exceeding two years, 
 with or without hard labor." 
 
 Under 5 & 6 Will. 4, c. 50, s. 78, it was held that a person, riding 
 a bicycle on a highway, may be summarily convicted of furiously 
 driving a " carriage." Taylor v. Goodwin, 4 Q. B. D. 228 ; 48 L. 
 J., M. C. 104. 
 
 As to death caused by negligent driving, see pod, tit. " Man- 
 slaughter" and "Murder."
 
 GAME, 759 
 
 *GAME. [*597 
 
 PAGE 
 
 Taking or killing hares or rabbits in the night 597 
 
 Taking or destroying game or rabbits by night .... 697 
 
 Power to apprehend ofienders 598 
 
 Limitation of time for prosecutions .,..., 698 
 
 Proof of previous conviction « , 599 
 
 Three persons entering land by night armed in pursuit of game . 599 
 
 Definition of night 599 
 
 of game 599 
 
 Destroying game or rabbits on a public road 599 
 
 Proof of the taking or killing 600 
 
 entering or being in the place specified . . . 600 
 situation and occupation of the land where the offence 
 
 was committed 601 
 
 that the prosecution was commenced within the time limited 602 
 
 of being armed 602 
 
 Joinder of otiences 603 
 
 Apprehension of offenders , . . 603 
 
 All offences with regard to game, which are the subject of indict- 
 ment, are statutable offences, not known to the common law. Such 
 animals being jeraa natu7'ce, are not, in their live state, the subjects of 
 larceny. Vide supra, p. 526. 
 
 The principal provisions Avith regard to offences relating to game 
 were formerly contained in the 7 & 8 Geo. 4, c. 29, s. 30 ; the 9 Geo. 
 4, c. 69 ; and the 7 & 8 Vict. c. 29. The 7 & 8 Geo. 4, c. 29, s. 30, 
 is now repealed, and a similar provision is substituted by the 24 & 25 
 Vict. c. 96, s. 17. 
 
 Taking or killing hares or rabbits in the night. By the 24 & 25 
 Vict. c. 96, c. 17, " whosoever shall unlawfully and wilfully, between 
 the expiration of the first hour after sunset and the beginning of the 
 last hour before sunrise, take or kill any hare or rabbit, in any 
 warren or ground lawfully used for the breeding or keeping of hares 
 or rabbits, whether the same be inclosed or not, every such offender 
 shall be guilty of a misdemeanor." 
 
 Taking or destroying game or rabbits by night. By the 9 Geo. 4, 
 c. 69, s. 1 (repealing 57 Geo. 3, c. 90), it is enacted, that, " if any 
 person shall, after the passing of this Act, by night, unlawfully take 
 or destroy any game or rabbits, in any land, whether open or inclosed, 
 or shall by night unlawfully enter, or be in any land, whether open 
 or inclosed, with any gun, net, engine, or other instrument for the 
 purpose of taking or destroying game (which word, by s. 13, shall 
 be deemed to include hares, pheasants, partridges, grouse, heath or 
 *moor game, black game, and bustards), such offender shall, r^Kno 
 upon conviction thereof before two justices of the peace, be L
 
 760 GAME. 
 
 committed for the first offence to the common gaol or house of correc- 
 tion, for any period not exceeding three calendar months, there to be 
 kept to hard labor, and, at the expiration of such period, shall find 
 sureties by recognizance, or in Scotland, by bond of caution, himself 
 in 10/., and two sureties in 61. each, or one surety in 10/., for his not 
 so offending again for the space of one year next following ; and in 
 case of not finding such sureties, shall be further imprisoned and kept 
 to hard labor for the space of six calendar months, unless such sureties 
 are sooner found ; and in case such person shall so offend a second 
 time, and shall thereof be convicted before two justices of the peace, 
 he shall be committed to the common gaol or house of correction, for 
 any period not exceeding six calendar months, there to be kept to hard 
 labor, and at the expiration of such period shall find sureties by 
 recogrnizance or bond as aforesaid, himself in 20/. and two sureties in 
 10/. each, or one surety in 20/. for his not so offending again for the 
 space of two years next following, and in case of not finding such 
 sureties shall be further imprisoned and kept to hard labor for the 
 space of one year, unless such sureties are sooner found ; and in case 
 such person shall so offend a third time he shall be guilty of a misde- 
 meanor, and being .convicted thereof shall be liable, at the discretion 
 of the court, to be transported beyond the seas for seven years, or to 
 be imprisoned and kept to hard labor in the common gaol or house 
 of correction, for any term not exceeding two years." By the 20 & 
 21 Vict. c. 3, s. 2, three [now five] years penal servitude is substituted 
 for seven years' transportation. 
 
 Power to apprehend offenders. By s. 2, " where any person shall 
 be found upon any land, committing any such offence as is hereinbe- 
 fore mentioned, it shall be lawful for the owner or occupier of such 
 land, or for any person having a right of free warren or free chase 
 thereon, or for the lord of the manor or reputed manor, wherein such 
 land may be situate, and also for any gamekeeper or servant of any 
 of the persons hereinbefore mentioned, or any person assisting such 
 gamekeeper or servant, to seize and apprehend such offender upon 
 such land, or in case of pursuit being made in any other place to 
 which he may have escaped therefrom, and to deliver him, as soon as 
 may be, into the custody of a peace officer, in order to his being 
 conveyed before two justices of the peace. And in case such offender 
 shall assault or offer any violence wath any gun, crossbow, firearms, 
 bludgeon, stick, club, or any other offensive weapon wiiatsoever, 
 towards any person hereby authorized to seize and apprehend him, 
 he shall, whether it be his first, second, or any other offence, 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 
 seven years, or to be imprisoned and kept to hard labor in the 
 common gaol or house of correction, for any term not exceeding two 
 years ; and in Scotland, whenever any person shall so offend, he shall 
 be liable to be punished in like manner." See also 7 & 8 Viet. c. 29, 
 s. 1, infra, p. 599. By the 20 & 21 Vict. c. 3, s. 2, three [now
 
 GAME. 7G1 
 
 five] years' penal servitude is substituted for seven years' transporta- 
 tion. 
 
 tiimitation of time for prosecutions. By s. 4, " the prosecution for 
 *every offence punishable upon indictment, or otherwise than r^rnq 
 upon summary conviction, by virtue of this Act, shall be com- ^ '^ 
 menccd within twelve calendar months after the commission of such 
 offence." 
 
 Proof of previous conviction. By s. 8, "every conviction under 
 this Act for a second offence, the convicting justices shall return the 
 same to the next quarter sessions for the county, riding, division, city, 
 or place wherein such offence shall have been committed ; and the rec- 
 ord of such conviction, or any copy thereof, shall be evidence in any 
 prosecution to be instituted against the party thereby convicted for a 
 second or third offence." 
 
 Three persons entering land by night armed in pursuit of game. 
 
 By s. 9, '' if any persons to the number of three or more together, 
 shall, by night, unlawfully enter or be in any land, whether open or 
 inclosed, for the purpose of taking or destroying game or rabbits, any 
 such person being armed with any gun, crossbow, firearms, bludgeon, 
 or any other offensive weapon, each and every of such persons shall 
 be guilty of a misdemeanor, and being convicted thereof before the 
 justices of gaol delivery, or of the court of great sessions of the county 
 or place in which the offence shall be committed, 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 im- 
 prisoned and kept to hard labor for any term not exceeding three 
 years." By the 20 & 21 Vict. c. 3, s. 2, penal servitude is substituted 
 for transportation. 
 
 Definition of night. By s. 12, "for the purposes of this Act the 
 night shall be considered, and is hereby declared to commence at the 
 expiration of the first hour after sunset, and to conclude at the begin- 
 ning of the last hour before sunrise." 
 
 Definition of game. By s. 13, "for the purposes of this Act the 
 word 'game' shall be deemed to include hares, pheasants, partridges, 
 grouse, heath or moor game, black game, and bustards." 
 
 Destroying game or rabbits on a public road. By the 7 & 8 
 
 Vict. c. 29, s. 1, "from and after the passing of this Act (the 4th 
 July, 1844) all the pains, punishments, and forfeitures imposed by the 
 9 Geo. 4, c. 69, upon persons by night unlawfully taking or destroy- 
 ing any game or rabbits, in any land, open or inclosed, as therein set 
 forth, shall be applicable to, and imposed upon any person by night, 
 unlawfully taking or destroying any game or rabbits on any public 
 road, highway, or path, or the sides thereof, or at the opening, outlets,
 
 762 GAME. 
 
 or gates from any such land into any such public road, highway, 
 or path, in the like manner as upon any such land, open or inclosed ; 
 and it shall be lawful for the owner or occupier of any land adjoining 
 either side of that part of such road, highway, or patli, where the 
 offender sliall be, and the gamekeeper or servant of such owner or 
 occupier, and any person assisting such gamekeeper or servant, and 
 for all persons authorized by the said Act (the 9 Geo. 4, c. 69) to 
 apprehend any offender against the provisions thereof, to seize and 
 apprehend any person offending against the said Act or this Act ; and 
 the said Act and all the powers, provisions, authorities and jurisdic- 
 tions therein or thereby contained or given, shall be apj)licable for 
 ♦fiom *carrying this Act into execution as if the same had been 
 -I therein specially set forth." 
 
 Proof of the taking or killing. Under the 5 Geo. 3, c. 14 (24 & 
 25 Vict. c. 96, s. 17), it was held not to be necessary to give evidence 
 that the defendant was seen in the act of taking or killing the hare, 
 nor to prove such a taking as would constitute larceny. Thus, where 
 the defendant had set wires, in one of which a rabbit was caught, and 
 the defendant, as he was about to seize it, was stopped by the keeper ; 
 this was held by the judges to be a taking ; the word taking meaning 
 catching y and not taking away. R. v. Glover, E-uss. & Ry. 269. 
 
 Proof of the entering or being in the place specified. The 
 prosecutor must show that at least three persons entered, or were (the 
 words of the statute are, "shall unlawfully enter or be"), by night, in 
 the place specified. It will not, therefore, be necessary to show that 
 they entered by night, provided they be in the place within the hours 
 meant by the words "by night" {ante, p. 599). The indictment must 
 state that the entry and arming were by night. Where an indictment 
 stated that the defendants on, etc., did by night enter divers closes, and 
 were then and there in the closes armed, etc.; the judgment was re- 
 versed, on the ground that the indictment did not contain a sufficient 
 averment that the defendants were by night in the closes armed, etc. 
 Davies v. R., 10 B. & C. 89, 21 E. C. L.; see also R. v. Kendrick, 7 
 C. &. P. 184, 32 E. C. L.; R. v. Wilks, Id. 811 ; Fletcher v. Cal- 
 throp, 6 Q. B. 880, 51 E. C. L. On an indictment for perjury an in- 
 formation alleging that the defendant did enter and was on certain land 
 there, called A. close, etc., for the purpose of taking and destroying 
 game contrary to the statute, etc., but not saying " for the purpose of 
 destroying game there" was held to be sufficient to give jurisdiction 
 to the justices before whom the information was laid. R. v. Western, 
 L. R. i C. C. R. 122 ; 37 L. J., M. C. 81. It is not necessary to give 
 direct evidence that the men were on the land without the permission 
 of the occupier or landlord ; the jury may infer that they were there 
 unlawfully, from their conduct and other circumstances. R. v. Wood, 
 Dears. & B. C. C. 1 ; 25 L. J., M. C. 96. See ante, p. 6. If per- 
 sons go out with the intention of taking game and pass through a close 
 where they might expect to find game, they are guilty of entering that
 
 GAME, 763 
 
 close for the purpose of destroying game therein, even altliough tliey 
 pass through it without attempting to destroy game. Per Willcs J, 
 in R. V. Higgs andOtliers, 10 Cox, C. C. 527. 
 
 Where only one defendant was seen in the place charged in tlie in- 
 dictment, the others being in a wood separated therefrom l)y a h'vAx 
 road, Patteson, J., held the indictment not proved. R. v. Dowscll 6 
 C. & P. 398, 25 E. C. L.; 1 Russ. Cri. G34, 5th cd. In R. v. Whit- 
 taker, 1 Den. C. C. R. 310, however, although five of the judges were 
 of opinion that, to constitute a misdemeanor under this section, the 
 party must enter into, and be bodily in the close ; and that if three 
 were in the close and three out, the latter were not guilty; and that as 
 the three who, in that case entered, could not be ascei'taincd, all were en- 
 titled to be acquitted ; yet seven of the judges held, that all the others 
 who were aiding and assisting those who entered tiie field^ Avere guilty 
 of the same misdemeanor, though they themselves were not in the 
 field, and therefore that the conviction of all the prisoners was good. 
 *And see R. v. Scotton, 5 Q. B. 493, 48 E. C. L. In R. v. ^^ . 
 Whittaker, a particular close was specified in the indictment, L 
 but in the subsequent case of R. v. Uezzell and Others, 2 Den. C. C. 
 R. 274; 20 L. J., M. C. 192; 1 Russ. Cri. 636, 5th ed., Campbell, 
 C. J., 2 Den. C C. P. 275, observed : " Some confusion seems to have 
 arisen in this matter, from not attending sufficiently to the provisions 
 of the act of parliament : it has been treated as though the word close 
 occurred in the act, whereas it only specifies ' any land whether open 
 or inclosed ;' a practice has consequently prevailed of naming a cer- 
 tain close in the indictment, which is quite needless ;" and Parke, B., 
 adverting to Mr. Greaves' note, 1 Russ. 4th ed. by Greav. 655 note 
 (o), said : " The reasoning appears to me to be founded on the assump- 
 tion that the statute provided only for the case of three being together 
 in one and the same piece of inclosed land if the land was inclosed, or 
 one and the same piece of land if it was open, whereas the statute con- 
 tains no such provision." In R. v. Uezzell and Others, therefore, the 
 prisoner was held to have been properly convicted, he being one of a 
 party of three, armed with guns, one of whom was in a close occupied 
 by G. W., in which were pheasants, for the purpose of destroying 
 game there, and all of whom were found to have been in another ad- 
 joining close of G. W., in which there were not any pheasants, 
 on their way to the former close ; one of the counts of the indict- 
 ment charging the prisoners Avith being in inclosed land occupied by 
 G. W. 
 
 Merely sending a dog to drive the game in a field while the owner 
 stands in the road is not an entry by the ^wner. R. v. Nichless, 8 
 Car. & P. 757, 34 E. C. L.; R. v Pratt, Dears. C. C. 502 ; 24 L. J., 
 M. C. 113 ; but the soil of the road frequently belongs to the owner 
 of the adjoining close, and in that case perhaps the defendants might 
 be convicted though they never left the road. In R. v. Pratt, whei'c the 
 defendant had been summarily convicted before justices for an offence 
 under the 1 & 2 Will. 4, c. 32, s. 30, for entering and being upon 
 land in pursuit of game, the conviction was upheld under similar cir-
 
 764 GAME. 
 
 ciimstances. See also Pickering v. Riuld, ante, p. 367, from which it 
 appears that shooting on to a person's land would be an entry. 
 
 Proof of the situation and occupation of the land where the of- 
 fence was committed. Under the 24 & 25 Vict. c. 96, s. 17, it must 
 be proved tliat the oifence was committed in some warren or ground 
 lawfully used for the breeding of hares or rabbits. That is, in some 
 place which is either a warren, or which is similar to a warren. R. v. 
 Garratt, 6 C. & P. 369, 25 E. C. L. 
 
 The indictment must particularize, in some manner, the place in 
 which the offence was committed ; for being substantially a local 
 offence, the defendant is entitled to know to what specific place 
 the evidence is to be directed. P. v. Ridley, Puss. & P. 515. "A 
 certain cover in the parish of A." is too general a description. P. v. 
 Crick, 5 C. & P. 508, 24 E. C. L. But it has been held sufficient by 
 Gurney, B., to charge entering certain lands in the occupation of A. B., 
 without specifying whether it is inclosed or not. P. v. Andrews, 2 
 Moo. & P. 37. 
 
 AVhere there was a variance between the allegation of the occupation 
 of the land, and the proof of the occupation, Lindley, J., held that the 
 indictment could be amended if the prisoners were not misled thereby. 
 P. V. Sutton, 13 Cox, C. C. 648. 
 
 *fi09l *Wiiere the indictment alleged an entry into a particular 
 -I close, with intent then and there to kill game, it was held, that 
 the intent Avas confined to the killing of game in that particular place. 
 P. V. Barham, 1 INIoo. C. C. 151 ; P. v. Capewell, 5 C. & P. 549, 24 
 E. C. L.; P. V. Gainer, 7 C. & P. 231, 32 E. C. L. Where it appeared 
 that the prisoners were in Shutt Leasowe, a place named in the indict- 
 ment, and which adjoined Short Wood, and were apparently going to 
 the wood, Patteson, J., said, " The intent was evidently to kill game 
 in the wood, into which none of the parties ever got for that purpose ; 
 it is true that they were charged with being in Shutt LcasoAve, but 
 they had no intention of killing game there ; they must be acquitted." 
 P. V. Davis, 8 C. & P. 759, 34 E. C. L. But see P. v. Higgs, 10 
 Cox, C. C. 527, ante, p. 600. 
 
 Proof that the prosecution was commenced within the time 
 limited. On the trial of an indictment under the 9th section of the 
 9 Geo. 4, c. 69, for night poaching, it appeared that the offence was 
 committed on the 12th of January, 1844, the indictment was preferred 
 on the 1st of March, 1845, the warrant of commitment was dated on 
 11th December, 1844. It was held that it was sufficiently shown that 
 the prosecution was commenced "within twelve calendar months after 
 the commission " of the offence within the 4tli section. P, i\ Austin, 
 1 C. & K. 621, 47 E, C. L. So where the offence was committed on 
 the 4th December, 1845, the information and warrant were on the 
 19th December : one prisoner was apprehended on the 5th September, 
 1846, and the other on the 21st of October, 1846; and the indi<'t- 
 ment was preferred on the 5th of April, 1847 : it was held that the
 
 GAME. 765 
 
 prosecution was commenced in time. R. v. Brooke, 1 Den. C. C. R. 
 217. 
 
 In order to prove that proceedings were commenced within the pro- 
 per time a warrant for defendant's apprehension was produced, but 
 the information on which it was founded was not put in evidence, nor 
 did the warrant purport to be grounded on an information in writing, 
 and it was held not sufficient. 11. v. Parker, L. & C. 459 ; 33 L. J., 
 M. C. 135. 
 
 Proof of being armed. Though it must be proved under the 9 
 Geo. 4, c. 69, s. 9, that three persons at least were concerned in tlic com- 
 mission of the offence, the statute does not require that it should appear 
 that each was armed with a gun or other weapon, the words being 
 " any of such persons being armed," etc., and this was held upon the 
 former statute, 57 Geo. 3, c. 90, which did not contain the word " any." 
 R. V. Smith, Russ. & Ry. 386. It is not necessary that the gun should 
 be found upon any of the defendants. The prisoners were shooting in 
 a wood in the night, and the flash of their guns was seen by a keeper ; 
 but before they were seen they abandoned their guns, and were caught 
 creeping away on their knees. Being convicted, the judges held this 
 a being " found armed " within the 57 Geo. 3, c. 90. R. v. Nash, 
 Russ. & Ry. 368. See also R. v. Goodfellow, 1 C. & K. 724, 47 E. C. L.; 
 1 Den. C. C. R. 81, where it was held (overruling on this point R. v. 
 Davis, 8 C. & P. 759, 34 E. C. L.) that if one of a party of three or 
 more poaching in the night-time has a gun, all are armed within 
 the 9 Geo. 4, c. 69, s. 9. See also R. v. Whittaker, 1 Den. 
 C. C. R. 310. Where several go out together, and only one is 
 armed, without the knowledge of the others, the latter are not guilty 
 within the statute. R. v. Southern, Russ. & Ry. 444. It must appear 
 *that the weapon was taken out with the intention of being r^n^o 
 unlawfully used. The defendant was indicted for being out at •- 
 night for the purpose of taking game armed with a bludgeon. It 
 appeared that he had with him a thick stick, large enough to be called 
 a bludgeon, but that he was in the constant habit of using it as a 
 crutch, being lame. Taunton, J., ruled, that it was a question for the 
 jury whether he took out the stick with the intention of using it as 
 an offensive weapon, or merely for the purpose to which he usually 
 applied it. The defendant was acquitted. R. v. Palmer, 1 Moo. & 
 Rob. 70 ; see also R. v. Williams, 14 Cox, C. C. 59. A walking- 
 stick of ordinary size was ruled to be an offensive weapon within the 
 7 Geo. 2, c. 21. R. v. Johnson, Russ. & Ry. 492. The jn-isoners 
 were indicted for entering land at night armed with bludgeons, with 
 intent to destroy game ; there was also a count for a common assault. 
 The only weapons proved to have been used by the prisoners were 
 sticks. One of these was produced, with which one of the prisoners, 
 on being attacked by the gamekeepers, had defended himself, and 
 knocked the gamekeeper down. The stick, however, was a very small 
 one, fairly answering the description of a common walking-stick. On 
 its being objected that the' stidi could not be considered an offensive
 
 766 GAME. 
 
 weapon within the statnte, K. v. Johnson was cited for the prosecution, 
 and it was contended that the use made of the stick by the prisoner 
 showed both his intention and the nature of the stick. Gurney, B., 
 said that if a man went out with a common walking-stick, and there 
 were circumstances to show that he intended to use it for purposes 
 of offence, it might, perhaps, be called an oifensive weapon within the 
 statute ; but if he had it in the ordinary way, and upon some unex- 
 pected attack or collision was provoked to use it in his own defence, 
 it would be carrying the statute somewhat too far to say it was an 
 offensive weapon within the meaning of the statute. The prisoners 
 were convicted of a common assault only. R,. v. Fry, 2 Moo. & Rob. 
 42; 11. V. Sutton, 13 Cox, C. C. 648. Large stones are offensive 
 weapons if the jury are satisfied that the stones are of a description 
 capable of inflicting serious injury if used offensively, and that they 
 were brought and used by the defendants for that purpose. R. v. 
 Grice, 7 C. & P. 803, 32 E. C. L. 
 
 Joinder of oflfences. It has been ruled that a count on the 9 Geo. 
 4, c. 69, s. 4, may be joined with a count on section 2, and with counts 
 for assaulting a gamekeeper in the execution of his duty, and for a 
 common assault. R. v. Finacane, 5 C. & P. 551, 24 E. C. L. Where 
 a prisoner was indicted for shooting at a gamekeeper, and in another 
 indictment for night poaching, it was held that the prosecution need 
 not elect between the two indictments ; the offences being quite dis- 
 tinct, although they related to the same transaction. R. v. Handley, 
 Id. 565. 
 
 Apprehension of offenders. Although the 9 Geo. 4, c. 69, s. 2, is 
 confined to the oifences specified in the first section, yet offenders, 
 under the ninth section may also be apprehended ; for though a 
 greater punishment is inflicted where several are out armed, they are 
 still guilty of an offence under the first section. R. v. Ball, 1 Moo. 
 C. C. 330. 
 
 A gamekeeper and his assistants warned a party of poachers off 
 his master's grounds, and followed them into the highway, where the 
 *6041 *poachers rushed upon the keeper and his men, and blows 
 -• ensued on both sides. After the keeper had struck several 
 blows, a shot was fired by the prisoner, one of the party, which wounded 
 the prosecutor. The prisoner was indicted under the 9 Geo. 4, c. 31, 
 for shooting at the prosecutor with intent to kill, etc. It was urged 
 for the prisoner that as the keeper had knocked down three of the 
 men before the shot was fired, it would have been manslaughter only 
 if death had ensued ; but the judge (Bayley, B.) was of opinion that 
 if the keeper struck, not vindictively, or for the purpose of offence, 
 but in self-defence only, and to diminish the violence which was ille- 
 gally brought into operation against him, it would have been murder 
 if death had ensued. He told the jury that he thought that the 
 keeper and his men, even if they had no right to apprehend, had full 
 right to follow the prisoner and his party, in order to discover who
 
 GAME. 767 
 
 they were, and that the prisoner and his party were not warranted in 
 attempting to prevent thera ; and that if they had attempted to a})pre- 
 hend them, which, however, they did not, he thouglit they woiikl have 
 been warranted by the statute in so doing. The prisoner being convicted, 
 on a case reserved, the judges were of opinion that tiie keeper had 
 power to apprehend, and that notwithstanding the blows given by tlie 
 keeper, it woukl have been murder had the keeper's man died. Id. The 
 rule laid down in the above case, with regard to blows first given by 
 the keeper in self-defence, was soon afterwards recognized in another 
 case. A gamekeeper and his assistants proceeded to apprehend a party 
 of poachers whose guns they heard in a wood, and rushed in upon the 
 poachers, who ran away, and then ranged themselves in a row. One 
 of the poachers exclaimed, "The first man that comes out, I'll be 
 damn'd if I don't shoot him." The poachers then ran away again 
 followed by the prosecutor. At length several of the poachers stopped, 
 and the prisoner, one of them, putting his gun to his shoulder, fired 
 at and wounded the prosecutor ; being indicted for this offence, it was 
 objected that it was incumbent on the prosecutor to have given notice 
 to the poachers by calling upon them to surrender, which he did not 
 appear to have done; the judge reserved the point, and the judges 
 were all of opinion that the circumstances constituted sufficient notice, 
 and that the conviction was right. R. v. Payne, 1 Moo. C. C. 378. 
 Upon an indictment for murder, it appeared that the deceased, the 
 servant of the prosecutor, attempted to apprehend the prisoner, who 
 was poaching at night in a wood. The prosecutor was neither the 
 owner nor occupier of the wood, nor the lord of the manor, having 
 only the permission of the owner to preserve the game there. The 
 deceased having been killed by the prisoner in the attempt to appre- 
 hend him, it was held to be manslaughter only. R. v. Addis, 6 C. & P. 
 388, 25 E. C. L. Gamekeepers who were out watching in the night 
 heard firing of guns in the preserves of their employer, and they 
 waited in a turnpike road, expecting the poachers to come there, which 
 they did, and an affray ensued between the gamekeepers and the 
 poachers. Wightraan, J., held, that if the gamekeepers were there en- 
 deavoring to apprehend the poachers they were not justified in so 
 doing. R. V. Meadham, 2 C. & K. 633, 61 E. C. L. 
 
 In these cases a question frequently arises how far the companions 
 of the party who actually comiuitted the offence participate in the 
 guilt. The prisoners were charged with shooting James Mancey, with 
 intent to murder. It appeared that the prisoners, each having a gun, 
 *were out at night in the grounds of C. for the purpose of r*gQK 
 shooting pheasants, and the prosecutor and his assistants went •- 
 towards them for the purpose of apprehending them. The poachers 
 formed into two lines, and pointing their guns at the keepers, threat- 
 ened to shoot them. A gun was fired, and the prosecutor was wounded. 
 Some of the keepers were also severely beaten, but no other shot was 
 fired. It was objected that as there was no common Intent to commit 
 any felony, Mancey alone could be convicted ; but Vauglian, B., said, 
 " I am of opinion that when this act of parliament (57 Geo. 3, c. 90,
 
 768 GAME. 
 
 repealed by 9 Geo. 4, c. 69) empowered certain parties to apprehend 
 persons wlio were out at night armed for the destruction of game, it 
 gave them the same protection in the execution of that power which 
 the law affords to constables in the execution of their duty. With 
 respect to the other point, it is rather a question of fact for the jury ; 
 still, on this evidence it is quite clear what the common purpose 
 was. They all draw up in lines, and point their guns at tlie keepers, 
 and they are all giving their countenance and assistance to the one who 
 actually fires the gun. If it could be shown that either of them sep- 
 arated himself from the rest, and showed distinctly that lie would have 
 no hand in what they were doing, the objection would have much 
 weight in it." R. v. Edmeads, 3 C. & P. 390, 14 E. C. L. So when 
 two persons had been seized by a gamekeeper and his assistants, and 
 while standing still in custody, called to another man, who was coming 
 up, rescued the two men, and beat and killed one of the keeper's party, 
 Vaughan, B., ruled that all the three men were equally guilty, though 
 if the two had acquiesced and remained passive, it would not have 
 been so. R. v. Whithorne, 3 C. & P. 324, 14 E. C. L. 
 
 If a person having only a right of shooting over land empowers 
 keepers to apprehend parties trespassing in search of game, and these 
 parties, on an attempt being made to apprehend them, resist, no of- 
 fence is committed under the 9 Geo. 4, c. 69, s. 2. R. v. Wood, 1 F. 
 & F. 470 As to what persons are entitled to seize and apprehend 
 under this section, see Chit. Stat. Cr. Law, p. 140. 
 
 By the Game Amendment Act, 1 & 2 Will. 4, c. 32, s. 31, trespas- 
 sers in search of game may be required to quit the land, and to tell 
 their names and abodes, and in case of refusal, may be apprehended 
 and taken before a justice. See R. v. Long, 7 C. & P. 314, 32 E. C. 
 L. A person engaged in fox-hunting is not justified in entering the 
 land of another against his will. Paul v. Summerhayes, 1 Q. B. D. 
 9 ; 48 L. J., M. C. 33. 
 
 See also, as to apprehending generally offenders found committing 
 offences in the night, 14 & 15 Vict. c. 19, s. 21, ante, p. 263. 
 
 By the 25 & 2(3 Vict. c. 114, s. 2, it is provided tliat "It shall be 
 lawful for any constable or peace officer in any county, borough, or 
 place in Great Britain and Ireland, in any highway, street, or public 
 place, to search any person whom he may have good cause to suspect 
 of coming from any land where he shall have been unla^vfully in 
 search or pursuit of game, or any person aiding or abetting such 
 person, and having in his possession any game unlawfully obtained, 
 or any gun, part of gun, or nets or engines, used for the killing or 
 taking game, and also to stop and search any cart or other conveyance 
 in or upon which such constable or peace officer should have good 
 cause to suspect that any such game or any such article or thing is 
 being carried by such person, and should there be found any 
 game or any such article or thing as aforesaid upon such person, cart, 
 *Rarl *^^ other conveyance, to seize and detain such game, article, or 
 J thing and such constable or peace officer shall in such case ap- 
 ply to some justice of the peace for a summons citing such person
 
 GAME. 769 
 
 to appear before two justices of the peace assembled in petty ses- 
 sions, as provided in the eighteenth and nineteenth of her present 
 Majesty, chapter one hundred and twenty-six, section nine, as far 
 as regards England and Ireland, and before a sheriif or any two 
 justices of the peace in Scotland ; and if such person shall Iiave 
 obtained such game by unlawfully going on any land in search or 
 pursuit of game, or shall have used any such article or thing as 
 aforesaid for unlawfully killing or taking game, or shall have been 
 accessory thereto, such person shall, on being convicted thereof, 
 forfeit and pay any sum not exceeding five pounds, and shall for- 
 feit such game, guns, parts of guns, nets and engines, and the jus- 
 tices shall direct the same to be sold or destroyed, and the proceeds 
 of such sale, with the amount of the penalty, to be paid to the 
 treasurer of the county or borough where the conviction takes place; 
 and no person who, by direction of a justice in writing shall sell 
 any game so seized shall be liable to any penalty for such sale ; and if 
 no conviction takes place, the game or any such article or thing as 
 aforesaid, or the value thereof, shall be restored to the person from 
 whom it had been seized." 
 
 It is not necessary to prove from what particular land the game 
 was taken. Brown v. Turner, 13 C. B., N. S. 485 ; Evans v. Botter- 
 ell, 33 L. J., M. C. 50. Under this section a policeman has no power to 
 apprehend, but only to stop and search. See K. v. Spencer, 3 F. & F. 
 854. In order to justify a policeman in stopping and searching, 
 it is necessary to prove the existence of reasonable grounds, but for 
 this purpose general evidence of bad character cannot be given. R. v. 
 Spencer, 3 F. & F. 854. It seems, however, it would be sufficient 
 for the policeman to state in chief that he had reasonable grounds, 
 and to leave it to the defendant to inquire into the nature of those 
 grounds. See R. v. Tuberfield, ante, p. 265. In order to give the 
 magistrate jurisdiction the game, etc., must be found by the constable on 
 the person of the accused in the highway, etc. Clark v. Crowder and 
 Others, 38 L. J., M. C. 118. 
 
 49
 
 770 GAMING. 
 
 *607] *GAMmG. 
 
 Gaming, says Hawkins, is permitted in England, upon every pos- 
 sible subject, excepting where it is accompanied by circumstances re- 
 pugnant to morality or public policy, or where, in certain special cases, 
 it is restrained by positive statutes. Hawk. P. C. b. 1, c. 92, s. 1. 
 But where the playing is from the magnitude of the stake excessive, 
 and such as is now commonly understood by the term " gaming," it is 
 considered by the law as an offence, being in its consequences most 
 mischievous to society. 1 Russ. by Greav. 4th ed. 455.^ 
 
 The principal statutory provisions against gaming were contained in 
 the 9 Anne, c. 14 (E.); the 18 Geo. 2, c. 34 (E.); the 10 Will. 
 3(1.); and the 11 Anne (I.) ; but these statutes, with regard to 
 the punishment of gaming, are repealed by the 8 & 9 Vict. c. 109, s. 
 15. 
 
 By the seventeenth section of the latter statute (E. & I.), which is 
 entitled " An Act to amend the Law concerning Games and Wagers,'* 
 "every person who shall by any fraud or unlawful device or ill prac- 
 tice in playing at or with cards, dice, tables, or other games, or in 
 bearing a part in the stakes, wagers, or adventures, or in betting on 
 the sides or hands of them that do play, or in wagering on the event 
 of any game, sport, pastime, or exercise win from any other person to 
 himself, or any other or others, any sum of money or valuable thing, 
 shall be deemed guilty of obtaining such money or valuable thing 
 from such other person by a false pretence, with intent to cheat or de- 
 fraud such person of the same, and being convicted thereof shall be 
 punished accordingly." Persons playing or betting in the street, 
 highway, or other open or public place or open place to which the pub- 
 
 ' The statute against gaming " at any faro bank or at any other table of the same or 
 like kind under any denomination whatsoever," includes the game called "Thimble 
 or Thimble and Balls." State v. Red, 7 Rich. 8. Playing at cards, with an agree- 
 ment that the losing party shall pay for drinks round, the same being called for and 
 drunk accordingly, on the result being known, constitutes gambling. State ?'. Leicht, 
 17 la. 28. Throwing dice to determine who shall pay for whiskey, is gaming. Mc- 
 Daniel r. Commonwealth, 6 Bush, 326. S. 
 
 An indictment for illegal gaming must charge an offence specified by statute. Wal- 
 lace V. State, 12 Tex. App. 479. It is not necessary to particularize with whom de- 
 fendant played, nor for what amount. Hinton v. State, OS Ga. 322. It is sufficient to 
 specify that the gaming house is in the county where indictment is brought. Dohme 
 V. State, 68 Ga. 339. On sufficient description of the character of the game. State 
 V. Kaufman, 59 la. 273 ; Parker v. State, 13 Tex. App. 213 ; Pembcrton v. State, 
 85 Ind. 507. The indictment need not allege that the house is a public place, but 
 evidence of playing in a room over a store with which it was not connected, does not 
 sustain an indictment charging cardplaying in a house used for retailing liquors. 
 Watson V. State, 13 Tex. App. 160. The words "billiard table" in the Alabama 
 code covers anv table on which billiards or a kindred game can be played. Sikes v. 
 State, G7 Ala. 77.
 
 GAMING. 771 
 
 lie have access, etc., are rogues and vagabonds, see 36 & 37 Viet. c. 
 38. A railway carriage in transit on a railway is witliin this Act. 
 Langrish v. Archer, 52 L. J., M. C. 47. 
 
 It must be proved not only that the defendant won the money, but 
 that he won it by some "fraud or unlawful device or ill-])ractiee " R 
 V. Rogier, 1 B. & C. 272, 8 E. C. L. "Tossing with coins" for a 
 wager is within the Act, 8 & 9 Vict. c. 109, s. 17. R. v. O'Connor, 
 15 Cox, C. C. R. 3. It seems that it would not be necessary to state 
 in the indictment the name of the person from whom the money was 
 won. R. V. Moss, 1 Dears. & B. C. C. 205 ; 20 L. J., M. C. 9. 
 
 Keeping and maintaining a common gaming-house for lucre and 
 gain, and causing and procuring idle and evil-disposed persons to come 
 there and play for large sums of money, is an indictable offence at 
 common law, and it seems that an indictment for such an ollence merelv 
 charging the defendant with keeping a common gaming-house would 
 be good. R. v. Rogier, supra. R. v. Taylor, 3 B. & C. 502, 10 
 E. C. L. And a betting-house would probably be considered to be a 
 gaming-house. See post, tit. " Nuisance." As to what is a gaming- 
 house, see 8 & d Vict. c. 109, s. 2. It is usual, however, to resort to 
 summary mode of procedure given as to betting-houses by the 16 & 
 *17 Vict. c. 119, amended by 37 Vict. c. 15, and as to gaming- ^^nf)c^ 
 houses generally by the 1 7 & 1 8 Vict. c. 38 ; and see post, tit. L 
 " Nuisance." As to what is an " office or place " within the 1 6 & 1 7 Vict, 
 c. 119, s. 2, see Shaw v. Morley, L. R. 3 Ex. 137 ; 37 L. J., M. C. 
 105. Bows V. Fenwick, L. R. 9 C. P. 339 ; 43 L. J., M. C. 107 ; 
 Doggett V. Catterns, 17 C. B. N. S. 669, 112 E. C. L.; Eastwood v. 
 Miller, L. R. 9 Q. B. 440 ; 43 L. J., M. C. 139 ; Haigh v. Town Council 
 of Sheffield, L. R. 10 Q. B. 102 ; 44 L. J., M. C. 17. In the latter case 
 it was also held that any owner or occupier might be convicted of know- 
 ingly permitting any other person to use such house or place for the 
 purpose of betting though the person so using it was in no sense the 
 occupier or keeper. As to advertisements of bets not to be made in 
 any office or place, see Cox v. Andrews, 12 Q. B. D. 126. 
 
 It has been doubted Avhether under the 8 & 9 Vict. c. 109, s. 17, it 
 would be necessary to prove that the money was actually paid over, or 
 whether it is not sufficient if the money be lost by one side and Mcm 
 by the other. Per Bramwell, B., in R. v. Moss, ubi supra. The 
 statute, however, seems to contemplate actual payment by the use of 
 the word " obtaining " in the latter part of the section. If the money 
 were not actually paid over, the prisoner might be convicted of the 
 attempt to commit the statutable misdemeanor. See the 14 & 15 Vict. 
 c. 100, s. 9, supra, p. 311.
 
 772 . GRiEVOua bodily harm. 
 
 *609] *GRIEVOUS BODILY HARM. 
 
 Ix numerous instances the words " grievous bodily harm " occur 
 in criminal statutes, which make either doing such harm, or intending 
 to do it, or attempting to do it, an offence punishable in a particular 
 way. Sometimes the words are slightly varied. By the 24 & 25 
 Vict. c. 100, s. 11, "whosoever shall cause grievous bodily harm with 
 intent to murder" is guilty of felony. See infra, tit. "Murder, At- 
 tempt to Commit." By s. 18, whosoever shall "cause any grievous 
 bodily harm to any person, or shoot at any person, or, by drawing a 
 trigger, or in any other manner attempt to discharge any kind of 
 loaded arms at any person, with intent, in any of the cases aforesaid, 
 to maim, disfigure, or disable, or to do any other kind of grievous 
 bodily harm to any person" is made guilty of felony. Supra, p. 301. 
 By s. 20, inflicting "grievous bodily harm upon any person with or 
 without any weapon or instrument," is made a misdemeanor. Supra, 
 p. 301. By s. 23, administering poison so as to inflict "grievous bodily 
 harm/' is made a felony. Infra, tit. " Poison." By s. 26, doing or 
 causing to be done any "bodily harm" to apprentices and servants by 
 neglect of masters, etc., is made a misdemeanor. Infra, tit. " Ill- 
 treating Apprentices." By s. 28, whosoever shall do any "grievous 
 bodily harm" to any person by explosive substances, is made guilty of 
 felony. Ante, p. 485. By s. 29, causing gunpowder to explode, or 
 sending any explosive substance, or throwing any corrosive fluid, with 
 intent to do any "grievous bodily harm," is make a felony. Ante, p. 
 485. By s. 30, placing any explosive substance near any building or 
 vessel, with intent to do any " bodily injury," is made a felony. Ante, 
 p. 485. By s. 31, setting spring guns, with intent to inflict "grievous 
 bodily harm," is made a misdemeanor. Infra, tit. " Spring Guns." 
 By s. 35, drivers of carriages by furious driving doing or causing to 
 be done any " bodily harm," are made guilty of a misdemeanor. Supra, 
 p. 596. 
 
 The prisoner was indicted, under the repealed statute of 7 Will. 4 
 & 1 Vict. c. 85, s. 2, for causing a bodily injury dangerous to life, with 
 intent to commit murder. It appeared at the trial that the prisoner 
 intending to cause the death of her infant child exposed it in an open 
 field on a cold wet day, where it was found afler some hours nearly 
 dead from congestion of the lungs and heart caused thereby. The 
 court said that looking to the character of the other offences provided 
 for by that section (poisoning, stabbing, etc.), and seeing that in this 
 case there had been no lesion of any part of the body of the infant, 
 the conviction for causing "a bodily injury" could not be supported. 
 R. V. Gray, Dears. & B.^C. C. 303; 26 L. J., M. C. 203. See 24 i& 
 25 Vict, c 100, s. 27, supra, p. 398.
 
 GRIEVOUS BODILY HARM. 773 
 
 It is not necessary to prove malice in the prisoner against the 
 person injured ; or, if tlic intent be punishable, that any grievous 
 bodily harm was in fact inflicted. The prisoner having been a})pre- 
 hended by one Headley, in an attempt to break open his stable in 
 *the night, was taken into Headley 's house, Avhere he threatened r^p-, ^ 
 him with vengeance, and endeavored to carry his thrciits into L 
 execution with a knife which lay before him'; in so doing he cut the 
 prosecutor, one of Headley's servants, who, with Headley, was trying 
 to take away the knife. The jury, ■who found theprisoner guilty, said 
 that the thrust was made with intent to do grievous bodily harm to 
 anybody upon whom it might alight, though the particular cut was not 
 calculated to do so. Upon the case being submitted to the consideration 
 of the judges, they were of opinion, that general malice was sufficient 
 under the statute, without particular malice against the person cut ; 
 and that if there was an intent to do grievous bodily harm, it was im- 
 material whether grievous bodily harm was done. R. v. Hunt, 1 Moo. 
 C. C. 93. This case appears to have resolved the doubts expressed by 
 Mr, Justice Bayley, in a case previously tried before liim. R. v. 
 Akenhead, Holt, N. P. C. 469. The same construction, with regard 
 to general malice, was put upon the Coventry Act. See R. v. Carroll, 
 1 East, P. C. 394, 396. 
 
 Where the prisoner, in attempting to commit a robbery, threw down 
 the prosecutor, kicked him, and produced blood ; Denman, C. J., left 
 it to the jury to say, whether his intent was to disable the prose- 
 cutor, or to do him some grievous bodily harm; adding that noth- 
 ing was more likely to accomplish the robbery which he had in 
 view, than the disabling which such violence would produce. R. v. 
 Shadbolt, 5 C. & P. 504, 24 E. C. L. 
 
 The intent to do grievous bodily harm may be inferred, although 
 the prisoner had also an intent to commit another felony. Thus 
 where, on an indictment, charging the prisoner with cutting M. E., 
 with intent to do her some grievous bodily harm, — it appeared that 
 the prisoner cut the private parts of a girl, ten years of age, — Gra- 
 ham, B., told the jury, that they were to consider whether this was 
 not a grievous bodily injury to the child, though eventually not danger- 
 ous. As to the intent, though it probably was the prisoner's intention 
 to commit a rape, yet, if to eifect the rape, he did that which the law 
 makes a distinct crime, viz., intentionally did the child a grievous 
 bodily harm, he was not the less guilty of that crime, because his 
 principal object was another. He added, that the intention of the 
 prisoner might be inferred from the act. The jury found the pris- 
 oner guilty, and, on a case reserv^ed, the judges held the conviction 
 right. R. V. Cox, Russ. & Ry. 362. So where the prisoner was 
 charged with shooting, watli intent to do A. B. some grievous bodily 
 harm, and the jury found that the prisoner's motive was to prevent 
 his lawful apprehension, but that, in order to effect that purpose, he 
 had also the intention of doing A. B. some grievous bodily harm ; 
 the prisoner being convicted, the judges held that if both the intents 
 existed, it was immaterial which was the principal and which the
 
 774 GRIEVOUS BODILY HARM. 
 
 subordinate, and that the conviction was right. E,. v. Gillow, 1 Moo. 
 C. C. 85. 
 
 If a person wound another in order to rob him, and thereby inflict 
 grievous bodily harm, he may be convicted on a count charging him 
 with intent to do grievous bodily harm. R. v. Bowen, Carr. & M. 
 14D. In this^case, it was also held that even if tiie prisoner's was not 
 the hand that inflicted the wound, he ought to be convicted on tliis in- 
 dictment, if the jury was satisfied that he was one of two persons 
 engaged in the common purpose of robbing the prosecutor, and that 
 the otlier person's was the hand that inflicted the wound. 
 *ri n *With respect to cases in which the prisoner's intention was 
 -J to injure one person, and in which he has in fact injured an- 
 other, the following points have been decided : — 
 
 1. If the prisoner meant to inflict grievous bodily harm when he 
 struck, and did in fact inflict grievous bodily harm, a mistake on the 
 prisoner's part as to the identity of the person injured makes no dif- 
 ference, and he may be convicted of wounding the person, whom he 
 did in fact wound, with intent to do grievous bodily harm to that per- 
 son. A. shoots at B., desiring to wound C, and supposing B. to be 
 C, and wounds B., A. may be convicted of M^ounding B. with intent 
 to do B. griev^ous bodily harm. R. v. Smith, Dears. C. C. 559 ; and 
 see R. V. Stopford, infra. These cases appear to be inconsistent with 
 and to overrule R. v. Holt (per Littledale, J.), in 7 C. & P. 518, 32 
 E. C. L., but they may perliaps be reconciled by referring to the direc- 
 tion of Littledale, .1., to the jury that a man must be held to intend 
 the natural consequences of his act. The learned judge said, " If 
 this had been a case of murder, and the prisoner intending to murder 
 one person had by mistake murdered another, he would be equally 
 liable to be found guilty : the question, however, may be different on 
 the construction of this act." 
 
 2. If the prisoner had a general intention to inflict grievous bodily 
 harm on any one of a group of persons, and in pursuance of that in- 
 tent did inflict grievous bodily harm on A., with respect to whom 
 he had no specific intention, he may be convicted of wounding A. with 
 intent to do grievous bodily harm to A. 
 
 The prisoner fired a loaded pistol at a group of boys, of whom A. 
 was one, and hit A. Held, that he was rightly convicted of wound- 
 ing A., with intent to do A. grievous bodily harm. R. v. Fretwell, 
 L. & C. 443. The prisoner put out the gas-lights on a staircase in a 
 theatre with the intention of causing terror to persons who were about 
 to descend ; and also, with the intention of obstructing the exit, placed 
 an iron bar across the doorway. Upon the lights being thus extin- 
 guished, a panic seized the audience, and they rushed in fright down 
 the staircase, forcing those in front against the iron bar. Several of 
 the audience were injured by the pressure thus occasioned, and amongst 
 them A. and B. Held, that the prisoner was rightly convicted of un- 
 lawfully and maliciously inflicting grievous bodily liaim upon A. and 
 B. R. V. Martin, 8 Q." B. D. 54^51 L. J., M. C. 3G. 
 
 3. If the prisoner intend-; to inflict gricvons bodily harm on A., and 
 in endeavoring to wound A. accidentally inflicts such harm on B., he
 
 GRIEVOUo i:ODILY HARM. 770 
 
 cannot be convicted of wounding B., with intent to do grievous bodily 
 harm to B. 11. v. Ryan, 2 M. & R. 213, and see R. v. Hewlett, 1 
 F. & F. 91. See, however, R. v. Stopibrd, 11 Cox, C. C. 643, where 
 from the report it would a[)pear that Brett, J., thought that these cases 
 were not distinguishable from R. v. Smith, cited supra. 
 
 All these cases are reducible to the single principle that the crimi- 
 nal intention referred to by the statutes is an intention to injure the 
 person actually injured, whether the reason from which that inten- 
 tion proceeds was mistaken or not. Intention is the direction of the 
 mind towards a certain lesult, and is altogether a different thing 
 from motive. If I level a loaded gun at a man and fire it, I intend 
 to shoot that man. My belief that that man is A. may be my motive 
 for shooting him ; but it is quite independent of my intention to 
 do so. On the other hand, if I take A. for B., and shoot at A. on 
 *that supposition, and accidentally shoot B., though my desire r^r>-i n 
 to hurt B. was the cause of my intention to shoot A., I can L 
 hardly be said to have shot B. intentionally, and it may be doubted 
 whether a wounding of B. under such circumstances would be within 
 the statute, but the distinction would probably be considered too sub- 
 tle to be allowed to prevail. 
 
 A constable ^vas employed to guard a copse from which wood had 
 been stolen, and for this purpose carried a loaded gun; from this 
 copse he saw the prosecutor come out, carrying wood which he was 
 stealing, and called him to stop; the prosecutor, however, running 
 away, the constable, having no other means of bringing him to jus- 
 tice, fired and wounded him in the leg. It appeared that the consta- 
 ble was not aware at the time that any felony had been committed by 
 the prosecutor. The constable having been convicted upon an indict- 
 ment charging him with assaulting the prosecutor with intent to do 
 him griev^ous bodily harm, the Court of Criminal Appeal held that 
 the conviction was right, upon the ground that "the fact that the 
 prosecutor was committing a felony was not known at the time; he 
 was therefore liable to be convicted, though the amount of punishment 
 might deserve great consideration." R. v. Dadson, 2 Den, C. C. R. 
 35 ; 20 L. J., M. C. 57. 
 
 Where a party who is being assaulted, and who is entitled to defend 
 himself, unnecessarily resorts to the use of a deadly weapon, he may 
 be convicted of wounding with intent to do grievous bodily harm. 
 R. V. Adgar, 2 Moo. & R. 497. 
 
 Upon an indictment for " wounding with intent," if the proof of 
 the intent to do grievous bodily harm fails, the defendant may be 
 found guilty of unlawfully wounding. 14 & 15 Vict. c. 19, s. 5, 
 infra, tit. "Wounding," and see R. v. Miller, 14 Cox, C. C. 356; or 
 if the indictment be for the misdemeanor of inflicting grievous bodily 
 harm, he may be found guilty of a common assault, ante, p. 309. 
 
 See as to the form of indictment, R. v. Cruse, 8 C. & P. 541, 34 
 E. C. L.; 2 Moo. C. C. 53, infra, tit. "Murder, Attempt to commit." 
 
 GUNPOWDER, ^ee EXPLOSIVES.
 
 776 HIGHWAYS — NUISANCE. 
 
 ^613] 
 
 ♦HIGHWAYS. 
 
 PAGE 
 
 Nuisance to highways .......•• 613 
 
 Proof of the way being a highway ...... 613 
 
 Proof of the highway as set forth • . . . . . 618 
 
 With regard to the termini 618 
 
 Proof of changing 618 
 
 Proof of the nuisance — what acts amount to . . . . 619 
 
 Authorized by an Act of parliament .... 622 
 
 Whether justifiable from necessity ... . 622 
 
 Judgment and sentence 623 
 
 Abatement of nuisances ,,...«.. 623 
 
 Not repairing highways 623 
 
 Proof of liability to repair ....... 623 
 
 Parish 623 
 
 Inclosure • • 626 
 
 Particular districts by custom ..... 627 
 
 Corporations 629 
 
 Private individuals 629 
 
 Proofs in defence . . ...... 630 
 
 Parish 630 
 
 District or private individuals ..... 631 
 
 Particulars of the highways obstructed, etc 632 
 
 Costs, etc -. 632 
 
 New trial 633 
 
 Indictment by justices 633 
 
 NUISANCE TO HIGHWAYS. 
 
 Upon prosecutions for nuisance to a highway, the prosecutor must 
 prove : 1st, that the way in question is a common highway ; 2nd, 
 the obstructing of it, or other nuisance. 
 
 Proof of the way being a highway. Every way which is common 
 to the public is a highway. Thus a bridge may be a common high- 
 way. 2 Ld. Raym. 1174. Stt a footway; Logan v. Burton, 5 B. & 
 C. 513, 11 E. C L.; for it is a public highway for foot passengers ; 
 Allen V. Ormond, 8 East, 4. So a public bridle-way. R. v. Inhab. 
 of Salop, 13 East, 95. So a' towing-path, used only by horses em- 
 ployed in towing vessels, is a highway for that purpose. Per Bayle}', 
 J., R. V. Severn and Wye Railway Co., 2 B. & A. 648. And a railway 
 made under the authority of an Act of parliament, which provides that 
 the public shall have the beneficial enjoyment of it, is also a highway 
 to be used in a particular manner. R. v. Severn and Wye Rail- 
 way Co., 2 B. <fe A. 646. A river which is common to all the 
 king's subjects has been frequently held to be a highway ; and if 
 its course change, the highway is diverted into the new channel ; 
 *«i/n *1 Rol.Ab. 390; R. r. Hammond, 10 Mod. 382; Hawk. P. 
 ^^^^ C. b. 1, c. 76, s. 1. 
 It must appear that the highway was a way common to all the
 
 HIGHWAYS — NUISANCE. 777 
 
 king's subjects ; for, though numerous persons may be entitled to 
 use it, yet if it be not common to all, it is not a public highway. 
 Thus a private way, set out by commissioners under an inclosure Act, 
 for the use of the inhabitants of nine parishes, and directed to be 
 repaired by them, does not concern the public, nor is it of a public 
 nature, but merely concerns the individuals who have a right to use 
 it, and consequently cannot be the subject of an indictment. R, v. 
 Ricliards, 8 T. R. 634. In general, the proof of any particular 
 way being a highway, is from the use of it by the public as 
 such for such a number of years as to afford evidence of a dedication 
 by the owner of the soil to the public. The particular manner in 
 which it has been used, says Mr. Starkie, as where it has been used 
 for some public purpose, as conveying materials for the repairs of 
 other highways (R. v. Wadswdrth, 1 B. &. Aid. 63), or upon any 
 occasion likely to attract notice, is very material ; for such instances 
 of user would naturally awaken the jealousy and opposition of any 
 private owner, who was interested in preventing the acquisition of 
 any right by the public; and consequently acquiescence affords a 
 stronger presumption of right, than that which results from posses- 
 sion and user in ordinary cases. 2 Stark. Ev. 380, 2nd ed. A road 
 may be dedicated to the public for a certain time only, as by the pro- 
 visions of an Act of parliament, and upon the expiring or repeal of 
 the act, its character as a public highway will cease. R. v. Mellor, 1 
 
 B. & Ad. 32, 20 E. C. L. With reference to this case, however, Pat- 
 teson, J., in giving judgment, in R. v. Landsmere, 15 Q. B. 689 ; 19 
 L. J., M. C. 215, said, " At the trial I was pressed with R. v. Mellor, 
 but I cannot help thinking that the court decided on the old doctrine 
 of adoption by the parish throu gh which the road passes, which has 
 been now quite abandoned," In R. v. Landsmere, a turnpike road, 
 made under a local Act, which was to be in force for a limited time, 
 and which had been used by the public both during that time and 
 after its expiration, was held to be a highway which the parish was 
 bound to repair. Where commissioners for setting out roads have 
 exceeded their authority, in directing that certain private roads, 
 which they set out, shall be repaired by the township, if the public 
 use such roads, it is a question for the jury whether they have not been 
 dedicated to the public.^ R. v. Wright, 3 B. & Ad. 681, 23 E. C. L. 
 In the same case, Lord Tenteixien held, that when a road runs through 
 a space of fifty or sixty feet, between inclosures set out by Act of par- 
 liament, it is to be presumed that the whole of that space is public, 
 though it may not all be used or kept in repair as a road. Ace. R. v. 
 The United Kingdom Electric Telegraph Co., 2 B. & S. 647, 110 E. 
 
 C. L.; 31 L. J.,'M. C. 166. 
 
 Unless there be some one who was capable of dedicating the road 
 to the public, it seems that a use of it as a highway by them, and re- 
 
 > Ward V. Follv, 2 South. 582 ; Galatian v. Gardiner, 7 Jolins, 166 ; Todd v. Kome, 
 2 Greenl. 55 ; Georpjetown v. Taylor, 2 Bay, 282 ; State v. Wilkinson, 2 Vt. 480. But 
 see Hincklev v. Hastings, 2 Pick. 162; Commonwealth v. Low, 3 Id. 408 ; Odiorne v. 
 Wade, 5 Id." 421. S.
 
 778 HIGHWAYS — NUISANCE. 
 
 pairs done by the parish under a mistaken idea of their liability, will 
 not create such liability, though it would be otherwise if the repairs 
 were done with a full knowledge of the facts, and with an intention 
 of taking upon themselves the burden. R,. v. Edmonton, 1 Moo. &, R. 
 24. Trustees, in whom land is vested for public purposes, may dedicate 
 the surface to the use of the public as a highway, provided such use be 
 not inconsistent with the purposes for which the land is vested in 
 them. R. V. Leake, 5 B. & Ad. 469, 22 E. C. L.; 2 Nev. & M. 583. 
 *fil K] *^^® ^^^^ Grand Surrey Canal v. Hall, ante, p. 355 ; and R. v. 
 -' Eastmark, 11 Q. B. 877. As to inferring a dedication from 
 user, although the lands have been let on lease, see Winterbottom v. 
 Ld. Derby, L. R. 2 Ex. 316 ; 36 L. J. Ex. 194. 
 
 In determining whether or not a way has been dedicated to the 
 public, the proprietor's intention must be considered. If it appear 
 only that he has suffered a continual user, that may prove a dedi- 
 cation ; but such proof may be rebutted by evidence of acts showing 
 tliat he contemplated lonly a license resumable in a particular event. 
 Thus where the owner of land agreed with an iron company, and with 
 the inhabitants of a hamlet repairing its own roads, that a way over 
 his land in such hamlet should be open to carriages, that the company 
 should pay him 5s. a year, and find cinder to repair the way, and that 
 the inhabitants of the hamlet should load and lay down the cinder, 
 and the way was thereupon left open to all persons passing with car- 
 riages for nineteen years, at the end of Avhich time a dispute arising, 
 the passage was interrupted, and the interruption acquiesced in for 
 five years, it was held that the evidence showed no dedication, but 
 a license only, resumable on breach of the agreement. Barraclough 
 V. Johnson, 8 A. & E. 99 ; and see R. v. Chorley, 12 Q. B. 515, 64 
 E. C. L. 
 
 There may be a partial dedication, as in the case of a footpath 
 through a field which is constantly ploughed across the footpath. See 
 Mercer v. Woodgate, L. R. 5 Q. B. 26 ; 39 L. J., M. C. 21 ; Arnold 
 V. Blaker, L. R. 6 Q. B. 433; 40 L. J., Q. B. 185; Arnold v. Hol- 
 brook, L. R. 8 Q. B. 96 ; 42 L. J., Q. B. 96. 
 
 Now, by the Highway Act, 5 & 6 Will. 4, c. 50, s. 23, no road or 
 occupation way, made or liereafter to be made by any individual or 
 private person, body politic or corporate, nor any roads already set 
 out, or to be hereafter set out as a private driftway or horsepath, in 
 any award of commissioners under an inclosure Act, shall be deemed, 
 etc., a highway which the inhabitants of any parish shall be liable to 
 repair, unless the person, etc., proposing to dedicate such highway to 
 the use of the public, shall give three montlis' notice in writing to the 
 surveyor of the parish of his intention to dedicate such highway, 
 describing its situation and extent, and shall have made the same in 
 a substantial manner, and of the width required by the Act, and to 
 the satisfaction of the said surveyor, and of any two justices, etc., 
 who on receiving notice from sucli person, etc., are to view the same, 
 and to certify that such highway has been made in a substantial 
 manner, etc., which certificate shall be enrolled at the next quarter
 
 HIGHWAYS — NUISANCE. 779 
 
 sessions, then and in such case, after the said highway shall have been 
 used by the public, and duly repaired by the said person, etc., for 
 twelve calendar months, such highway shall for ever thereafter be kept 
 in repair by the parish in which it is situate : provided that, on re- 
 ceipt of such notice as aforesaid, the surveyor shall call a vestry meet- 
 ing, and if such vestry shall deem such highway not to be of sufficient 
 utility to justify its being kept in repair at the expense of the said 
 parisli, any one justice of the ])eace, on the application of the said 
 surveyor, shall summon the party proposing to made the new higliM-av, 
 to appear before the justices at the next special sessions for the high- 
 ways, and the question as to the utility of such highway shall be de- 
 termined at the discretion of such justices. This section is not retro- 
 spective in respect of roads completely public by dedication at the 
 passing of the act, but applies to roads then made and in progress of 
 dedication. R. v. Westmark, 2 Moo. & R. 305. 
 
 *Formerly, according to the opinions of some persons, a way r^p^ ^ 
 was only a highway when it led directly from a market town, L " " 
 or from town to town. Hawk. P. C. b. 1, c. 76, s. 1. It is said by 
 Lord Hale, that if a way lead to a market, and it is a way for all 
 travellers, and communicates with a great road, it is a highway ; but if 
 it lead only to a church, or to a private house, or to a village, then it 
 is a private way ; but it is a matter of fact, and much depends upon 
 common reputation. R,. v. Austin, 1 Vent. 189. But it was long 
 since held to be sufficient if the way in question communicates at its 
 termini with other highways. Thus on an indictment for obstructing 
 a passage, which led from one part of a street by a circuitous route, 
 to another part of the same street, and which had been opened to the 
 public as far back as could be remembered. Lord Ellenborough held 
 this to be a highway ; though it was not in general of use to those 
 ■walking up and down the street, but was only of convenience when 
 the street was blocked up with a crowd. R. v. Lloyd, 1 Camp. 260. 
 Whether a street which is not a thoroughfare can be deemed a highway 
 has been a subject of considerable discussion. In the case last cited, 
 Lord Ellenborough said, " I think that, if places are lighted by public 
 bodies, this is strong evidence of the public having a right of way 
 over them ; and to say that this right cannot exist, because a particu- 
 lar place does not lead conveniently from one street to anotlier, would 
 go to extinguish all highways where (as in Queen's square) there is no 
 thoroughfare." The same doctrine was recognized by Lord Kenyon, 
 in the case of The Rugby Charity v. Merry weather, 1 1 East, 375 {n)^ 
 where he says, " As to this not being a thoroughfare, that can make 
 no difference. If it were otherwise, in such a great town as this, it 
 would be a trap to make persons trespassers." The opinions of Lord 
 Kenyon and I^ord Ellenborough on this point have, however, been 
 questioned. In Woodyer v. Hadden, 5 Taunt. 125, 1 E. C. L., the 
 court expressed their dissatisfaction with the dictum of Lord Kenyon 
 in the Rugby case; and in Wood v. Veal, 5 B. & A. 454, Abbott, C. 
 J., did the same. There is now, however, no doubt, that a way may 
 be a highway, though it be what is commonly called a cul-de-sac.
 
 780 HIGHWAYS — NUISANCE. 
 
 Bateman v. Bluck, 21 L, J., Q. B. 407 ; Campbell v. Lang, 1 Macq. 
 H. L. Ca. 451 ; Young v. Cuthbertson, Id. 455. 
 
 A way ceases to be a public way Avhere the access to it has been 
 stopped by stopping up the roads leading to it. Baily v. Jamieson, 1 
 C. P. D. 329. 
 
 „ As to wil^c^'^l' there can l^e .-i public right of way over every part 
 of a close, see 1 Russ. on Cri. 445, 5th ed. 
 
 Where justices in petty sessions have made an order for stopping a 
 highway under a local Act giving a power of appeal, and the time for 
 appeal has elapsed, it cannot be contended, on an indictment for 
 obstructing such way, that the order was bad, because the justices 
 were not properly summoned to the petty session. But an order 
 made under the repealed statute 55 Geo. 3, c. 68, s. 2, which enacts, 
 " that where it shall appear upon the view of any two or more 
 justices " that a highway is unnecessary, the same may be stoppeol by 
 order of such justices ; the order is not valid if it state only that the 
 justices having viewed the public roads, etc., within the parish, etc. (in 
 which the road lies), and being satisfied that certain roads are unneces- 
 sary, do order the same to be stopped up, and the objection may be 
 taken at the trial of such indictment. R. v. Marquis of Downshire, 4 
 ^n^ y-j *A. & E. 698, 31 E. C. L. And see further as to stopping 
 -" highways. R. v. Cambridgeshire, Id. 111. 
 
 By an Act for inclosing lands in several parishes and townships, it 
 was directed that the allotments to be made in respect of certain mes- 
 suages, etc., should be deemed part and parcel of the townships re- 
 spectively in which the messuages, etc., were situate. And the commis- 
 sioners under the Act were directed in their award to make such orders 
 as they should think necessary and proper concerning all public roads, 
 " and in what townships and parishes the same are respectively situate, 
 and by whom they ought to be repaired. The commissioners by their 
 award directed that there should be certain roads. One of these, called 
 the Sandtoft-road, passed between two allotments. The road was an- 
 cient. The part of the common over which it ran before the award 
 was in the townsiiip of H., and the road was still in that township, 
 unless its situation was changed by the local Act and the award. The 
 new allotments on each side were declared by the award to be in other 
 townships than H. The award did not say in what townships the 
 road was situate, nor by wliom it was repairable. It was held that 
 the Act, by changing the local situation of the allotments, did not, as 
 a consequence, change that of the adjoining portions of the road, and, 
 therefore, that the road in question continued to be in H. It was 
 also held by Lord Denman, C. J., that where the herbage of a road 
 becomes vested by the General Inclosure Act (41 Geo. 3, c. 109, s. 11) 
 in tlie proprietors of allotments on each side, no presumption arises 
 that the soil itself belongs to such proprietors. R. v. Hatfield, 4 A. 
 & E. 156, 31 E. C. L. 
 
 By the Highways Act, '5 & 6 Will. 4, c. 50, ss. 88, 89, persons 
 aggrieved by the decision of the justices in stopping or diverting 
 highways, may appeal to the sessions where a jury is to determine
 
 HIGHAVAYS — NUISANCE. 781 
 
 whether the highways stopped, etc., are unnecessary, or more commo- 
 dious, etc. 
 
 By sect. 92, where a highway is turned or diverted, the parisli 
 or other party liable to repair the old highway, shall repair the 
 new highway, without any reference whatever to its parochial locality. 
 
 Where, on an indictment for obstructing a highway, a principal 
 question was, whether the way was public or private, and evidence 
 was offered that a person since deceased had plantc.'d a willow on a 
 spot adjoining the road, on ground of which he was tenant, saying at 
 the same time that he planted it to show where the boundary of the 
 road wvLS when he was a boy ; it was held that such declaration was not 
 evidence either as showing reputation, as a statement accompanying 
 an act, or as the admission of an occupier against his own interest. 
 K. V. Bliss, 7 A. & E. 550, 34 E. C. L. 
 
 But on an indictment against a township for non-repair of a road, an 
 indictment against an adjoining township for non-repair of a pcn-tion 
 of highway in continuation of the road in question, either submitted 
 to, or prosecuted to conviction, is admissible as evidence to prove the 
 road in question to be a highway. R. v. Brightside Bierlow, 13 Q. B. 
 933, QQ E. C. L. ; 19 L. J., M. C. 50. 
 
 On an indictment for the continuance of a nuisance the conviction 
 on a former indictment for the same nuisance, against the same de- 
 fendant, is conclusive evidence that the way is a highway, and that 
 the obstruction is a nuisance. R. v. Maybury, 4 F. & F. 90. 
 
 *Proof of the highway as set forth. The highway in r^/^^o 
 question must be proved as set forth in the indictinent; but if L 
 the description be too general and indefinite, advantage must be taken 
 of that defect by plea in abatement, and not under the general issue. 
 R. V. Hammersmith, 1 Stark. N. P. C. 357 ; and see R. v. AVaverton, 
 2 Den. C. C. R. 340 ; 21 L. J., M. C. 7. But an indictment describ- 
 ing a way as from A. towards and unto B., is satisfied by proof of a 
 public way leading from A. to B., though it turns backward between 
 A. and B. at an acute angle, and though the part from A. to the angle 
 be an immemorial way, and the part from the angle to B. be recently 
 dedicated. B. was a church : the path from A., after passing the point 
 at which the obstruction took place, reached the churchyard, but not 
 the church, before reaching the angle : it was held by Lord Denman, 
 C. J., and semble, per Coleridge, J,, that this proof would not have 
 supported an indictment describing the whole as an immemorial way. 
 R. V. Marchioness of Downshire, 4 A. & E. 232, 31 E. C. L. 
 
 An indictment for obstructing a highway (by ])lacing a gate across 
 it) stated the way to be " from the town of C." to a place called H., 
 and charged the obstruction to be " between the town of C." and H. 
 By a local paving Act, the limits of the toAvn of C. were defined, and 
 the locus in quo was within these limits, and the prosecutors relied on 
 the local turnpike acts, which prohibited the erection of gates within 
 the town. It was held by Patteson, J., that there was a variance, and 
 the indictment could not be sustained, as the terms " li'om " and " be-
 
 782 HIGHWAYS — NUISANCE. 
 
 tween " excluded the town, and according to the limits defined by the 
 local paving Act on which the prosecutors relied as bringing the ob- 
 struction within the other local Acts, the obstruction was shown to be 
 within the town. R. v. Fisher, 8 C. & P. 182, 34 _E. C. L. ^ So 
 where it appeared on a similar indictment which described the high- 
 way as " leading from the to\vnshIp of D. in, etc., unto the town of 
 C," that the gate was put up in the township of D. ; Coleridge, J., 
 held, that the defendant must be acquitted, as the words " from " and 
 "unto" excluded the terminL II. v. Botfield, Carr. & M. 151,41 
 E. C. L. ; see also R. v. Steventon, 1 C. & K. 55, 47 E. C. L. Where 
 the way was stated to be " for all the liege subjects, etc., to go, etc., 
 with tfieir horses, coaches, carts, and carriages," and the evidence was 
 that carts of a particular description, and loaded in a particular man- 
 ner, could not pass along the way, it was held to be no variance. R. v. 
 Lyon, Ry. & Moo. N. P. C. 151. Where the way is stated to be a 
 pack and prime way, and appears to be a carriage-way, the variance 
 is fatal. R. V. Inhab. of St. Weonard's, 6 C. & P. 582, 25 E. C. L. 
 But where the indictment alleged an immemorial way, and the evi- 
 dence proved that the way had been made within legal memory, the 
 variance was held to be immaterial. R. v. Norweston, 1 6 Q. B. 109, 
 71 E. C. L. ; 20 L. J., M. C. 46 ; and now see 14 & 15 Vict. c. 100, 
 s. 1, as to the power of amendment in cases of variance between the 
 indictment and the proof, ante, p. 209. 
 
 Proof of the highway as set forth — with regard to the termini. 
 
 Although it is unnecessary to state the termini of the highway, yet 
 if stated they should be proved as laid. R. v. Upton-on-Severn, 6 
 C. & P. 133, 25 E. C. L. See also R. v. Norweston, supra. 
 
 Proof of changing. An ancient highway cannot be changed with- 
 out the king's license first obtained, ujion a writ of ad quod damnum, 
 *filQl *^"^ inquisition thereon found that such a change will not be 
 J prejudicial to the public; but it is said that the inhabitants are 
 not bound to watch such new way, or to make amends for a robbery 
 committed therein, or to repair it. 1 Hawk. P. C. b. 1, c. 76, s. 3. 
 A private Act of parliament for inclosing lands, and vesting a power 
 in commissioners to set out a new road, is equally strong, as to these 
 consequences, with the writ of ad quod damnum. 1 Burr. 465. An 
 owner of land, over which there is an open road, may inclose it of his 
 own authority ; but he is bound to leave sufficient space and room for 
 the road, and he is obliged to repair it till he throws up the inclosure. 
 Id. 
 
 Tiie power of widening and changing highways was given to justices 
 of the peace by the now repealed statutes 13 Geo. 3, c. 78, and 55 Geo. 
 3, c. 68, and is continued to them, under certain modifications, by the 
 Highways Act, 5 & 6 Will. 4, c. 50. See also 25 & 26 Vict. c. 61, s. 
 44 ; 27 '& 28 Vict. c. 101, ss. 21, 47, 48. 
 
 A statute giving authority to make a new course for a navigable 
 river, along which there is a towing-patli, will not take away the right
 
 HIGHWAYS — NUISANCE. 783 
 
 of the public to use that path, without express words for that purpose. 
 R. V. Tippett, 1 Russ. Cri. 469, 5th ed. 
 
 Proof of the nuisance — what acts amount to. There is no doubt 
 but that all injuries whatever to any highway, as by digging a ditch or 
 making a hedge across it, or laying logs of timber on it, or doing any 
 act which will render it less commodious to the public, are nuisances 
 at common law ; and it is no excuse that the logs are only laid here 
 and there, so that people may have a passage, by winding and turning 
 through them. Hawk. P. C. b. 1, c. 76, ss. 144, 145. So erecting a 
 gate across a highway is a nuisance ; for it not only interrupts the 
 public in their free and open passage, but it may in time become evi- 
 dence in favor of the owner of the soil. Id. c. 75, s. 9. It is also a 
 nuisance to suffer the ditches adjoining a highway to be foul, by reason 
 of which the way is impaired ; or to suffer the boughs of trees grow- 
 ing near the highway to hang over the road in such a manner as to 
 incommode the passage.^ Id. c. 76, s. 147 ; and see 5 & 6 Will. 4, c. 
 50. Walker v. Horner, 1 Q. B. D. 4 ; 45 L. J., M. C. 4. There 
 can be no doubt, that every contracting or narrowing of a public high- 
 way is a nuisance ; it is frequently, however, difficult to determine how 
 far in breadth a highway extends, as where it runs across a common, 
 or where there is a hedge only on one side of the way, or where, though 
 there are hedges on both sides, the space between them is much larger 
 than what is necessary for the use of the public ; in these cases it would 
 be for a jury to determine how far the road extended. It seems that, 
 in ordinary cases, where a road runs between fences, not only the part 
 which is maintained as solid road, but the whole space between the 
 fences is to be considered as highway. 1 Russ. Cri. 474, 5th ed.; 
 Brownlow v. Tomlinson, 1 M. & Gr. 484, 39 E. C. L.; R. v. Wright, 
 3 B. & Ad. 681,23 E. C. L.; R.v. Birmingham Railwav, 1 Railw. 
 C. 317; R. V. The United Kingdom Electric Telegraph' Co., 2 B. & 
 S. 647, 110 E. C. L.; 31 L. J., M. C. 166. Now, however, by the 
 27 & 28 Vict. c. 101, s. 51, any obstruction therein mentioned, which 
 is within fifteen feet of the centre of the highway, may be removed. 
 Where a wagoner occupied one side of a public street in a city, 
 before his warehouses, in loading and unloading his wagons, 
 for several hours at a time, by night and by day, having one 
 *wagon at least usually standing before his warehouses, so r:^f>c)(\ 
 that no wagon could pass on that side of the street ; this was '- 
 held to be a nuisance, although there was room for two carriages to 
 pass on the opposite side. R. v. Russell, 6 East, 427. So excavations 
 made close to a highwav are a nuisance. Barnes v. Ward, 9 C. B. 
 392, 67 E. C. L.; Hardcastle v. S. Yorkshire Railwav, 4 H. & N. 
 67 ; Hounsell v. Smyth, 7 C. B., N. S. 731, 97 E. C. L.; Hadley v. 
 Taylor, L. R. 1 C. P. 53. So keeping coaches at a stand in a street 
 plying for passengers, is a nuisance. R. v. Cross, 3 Camp. 226 ; 
 
 ^ Urinating in a spring near a public highway, from which travellers are accus- 
 tomed to drink, is a public offence within the definition of a nuisance. State v. Tay- 
 lor, 29 Ind. 517. S.
 
 784 HIGHWAYS — NUISANCE. 
 
 Wilkins V. Day, 12 Q. B. D. 110. So exhibiting effigies at <i window, 
 and thereby attracting a crowd. R. v. Carlisle, 6 C & 1*. 6o6, 25 
 E. C. L. Ploughing up a footpath is a nuisance, R. v. Griesley, 1 
 Vent. 4, Wellbeloved on Highways, 443, both on the ground of incon- 
 venience to the public, and of injuring the evidence of their title; 
 but there may be a limited dedication of a foot-path subject to the 
 right to plough it up, see anfe, p. 615. Where at the trial it aj)- 
 peared, that the defendants were a company, established by deed, 
 for the purpose of lighting the streets of a town with gas, and had 
 obtained a certificate of complete registration under the 7 & 8 Vict. 
 c. 110 (now repealed by 25 & 26 Vict. c. 89); that they had opened 
 a trench in one of the streets for the purpose of laying down their 
 mains along the middle of the street ; that they had obtained the 
 permission of the highway board as well as of the commissioners 
 for lighting the town appointed under a local Act for so doing ; 
 and it was admitted that they had used reasonable despatch in lay- 
 ing down the pipes and restoring the road, but during the execution 
 of the works the street was impassable ; it was held, that inasmuch 
 as the acts of the defendants were in no respect done in the neces- 
 sary or proper use of the highway, they were guilty of a nuisance 
 in obstructing the use of it. Ellis v. Sheffield Gas Consumers' Com- 
 pany, 2 E. & B. 767, 75 E. C. L.; 18 Jur. 146. The question was 
 again much considered in R. v. Longton Gas Company, 29 L. J., M. C. 
 118, and a similar decision was come to. See also R. t;. Train, 31 L. J., M. 
 C. 169. Provision is made by the 5 & 6 Will. 4, c. 50, ss. 64, 65, QQ, 
 and the 27 & 28 Vict. c. 101, s. 51, for the removal of many such 
 nuisances as are above mentioned, and for imposing a penalty upon 
 the persons so obstructing the highway. 
 
 The obstruction of a navigable river is likewise a public nuisance, 
 as b}^ diverting part of the water whereby the current is weakened, 
 and made unable to carry vessels of the same burthen as before. 
 Hawk. P. C.b. 1, c. 75, s. 11. The building of a bridge partly in 
 the bed of a navigable river will be a nuisance if it obstruct the naviga- 
 tion, but not otherwise.' R. v. Betts, 16 Q. B. 1022, 71 E. C. L. 
 See also York and North INIidland Railwav Co. v. Reg. (in error), 7 
 Railw. Cas. 459. In R. v. Russell, 3 El. &"B1. 942, 77 E. C. L.; 23 
 L. J., Q. B. 173, the jury found that the obstruction, "although a 
 nuisance, was not sufficiently so as to render the defendant criminally 
 liable," upon which the judge directed a verdict of acquittal, and the 
 Court of Queen's Bench held, that the jury must be understood as find- 
 ing that the obstruction in question was so insignificant as not to consti- 
 tute a nuisance, and refused to disturb the verdict. But if a vessel sink 
 by accident in a navigable river, the owner is not indictable as for a 
 nuisance in not removing it. R. v. Watt, 3 Esp. 675. Where on the 
 trial of an indictment for a nuisance by erecting and continuing piles and 
 
 ' A crib and pier erected in the waters of the New York harbor, are a purpresture 
 and per se a public nuisance. People v. Vanderbilt, 28 N. Y. 396. A party maintaining 
 a dam creatinjif a nuisance no greater nor of any different character from what would 
 have existed without it, is not punishable therefor. Beach v. People, 11 Mich. 106. S.
 
 HIGHWAYS — NUISANCE. 785 
 
 planking in a harbor, and thereby obstructing it ancV rendering it inse- 
 cure, a special verdict was found, that by the defendant's works the har- 
 bor was in some extreme cases rendered less se(!ure ; it was held, that 
 *the defendant was not responsible criminally for consequences r^^oi 
 so slight, uncertain and rare, and that a vei-dict of not guilty L 
 must he entered. R. v. Tindall, 6 A. & E. 143, P>r, E. C. L. Where 
 a staith was erected stretching into the river Tyne, and used in ship- 
 ping coals, whereby the public had a better and cheaper sup})ly of that 
 article, it was held to be no nuisance, diss. Lord Tcnterden, R. v. Rus- 
 sell, 6 B. & C. 566, 13 E. C. L. ; 9 D. & R. 566. But see R. v. 
 Ward and other cases, post. In R. v. Russell, it was said by Mr. Jus- 
 tice Bay ley, in his summing up to the jury, that where a great public 
 benefit accrues from that which occasions the abridgment of the right 
 of passage, that abridgment is not a nuisance, but proper and benefi- 
 cial ; and he directed the jury to find a verdict for the defendants, if 
 they thought the abridgment of the right of passage was for a public 
 purpose, and produced a public benefit, and if it was in a reasonable 
 situation, and if a reasonable space was left for the passage of vessels 
 navigating the river Tyne. On a motion for a new trial, the Court of 
 King's Bench, with the exception of Lord Tenterden, held this direc- 
 tion right. Lord Tenterden said, " Admitting there was some public 
 benefit both from the price and condition of the coals, still I must own 
 that I do not think those points could be properly taken into consid- 
 eration, in the question raised by this indictment. That question I take 
 properly to have been, whether the navigation and passage of the ves- 
 sels on the public navigable river was injured by these erections." 
 Where the lessee of the corporation of London, the conservators of 
 the river Thames, erected a wharf between high and low water mark, 
 extending for a considerable space along the river ; upon an indict- 
 ment for a nuisance, it was contended, that as claiming under the cor- 
 poration, the party had a right to make the wharf. But Abbott, C. J., 
 said, " Will 3'^ou contend that you have a right to narrow the river 
 Thames, so long as you have space sufficient for the purposes of navi- 
 gation ?" The argument that the wharf was a public benefit was then 
 adv^anced ; but the Chief Justice said, " Much evidence has been ad- 
 duced on the part of the defendant, for the purpose of showing that 
 the alteration affords great facility and convenience for loading and 
 unloading ; but the question is, not whether any private advantage 
 had resulted from the alterations to any particular individual, but 
 whether the convenience of the public at large, or of that portion of 
 it which is interested in the navigation of the river Thames, has been 
 affected or diminished by this alteration."^ R. v. Lord Grosvenor, 2 
 Stark, 511, 3 E. C. L. R, v. Russell has been overruled by several 
 later decisions. On an indictment for a nuisance in a navigable river 
 and common king's highway, called the harbor of C, by erecting an 
 embankment in the water-way, the jury found that the embank- 
 ment was a nuisance, but was counterbalanced by the public benefit 
 
 * Eesp. v. Caldwell, 1 Dall. 150 ; Angell on Tide Waters, c. 8 ; Commonwealth v. 
 Wright, 3 Am. Jur. 185. S. 
 50
 
 786 HIGHWAYS — NUISANCE. 
 
 arising from the alteration. It was held by the Court of King's 
 Bench, that this finding amounted to a verdict of guilty, and that it is 
 no defence to such an indictment, that although the work be in some 
 degree a hindrance to navigation, it is advantageous, in a greater de- 
 gree, to other uses of the port. R. v. Ward, 4 A. & E. 384, 31 E. C. 
 L.; and see R. v. Morris, 1 B. & Ad. 441, 20 E. C. L.; R. v. Ran- 
 dall, Car. & M. 496, 41 E. C. L. ; and Atty.-Gen. v. Terry, L. R. 9 
 Ch. 423, per Jessel, M. R., 425. Where the crown has no right to 
 obstruct the whole passage of a navigable river, it has no right to 
 erect a weir to obstruct a part, except subject to the rights of the pub- 
 lic, and therefore the weir would become illegal if those rights are 
 ^„.^^-, *interfered with. Williams v. Wilcox, 8 A. & E. 314, 35 E. 
 ^^"-1 C. L. See R. v. The United Kingdom Electric Telegraph Co., 
 and R. v. Train, supra. Where the defendant's workmen stacked the 
 refuse of the colliery so as to obstruct a navigable river, it was held 
 that the defendant's orders to the contrary and his absence from per- 
 sonal superintendence did not relieve him from liability. R. v. Ste- 
 phens, L. R. 1 Q. B. 702; 35 L. J., Q. B. 251. 
 
 Proof of the nuisance — authorized by an Act of Parliament. By 
 
 an Act reciting that a railway between certain points would be of 
 great public utility, and would materially assist the agricultural in- 
 terest and the general traffic of the country, power was given to a 
 company to make such railway according to a plan deposited with 
 the clerk of the peace, from which they were not to deviate more 
 than one hundred yards. By a subsequent Act, the company or 
 persons authorized by them were empowered to use locomotive en- 
 gines upon the railway. The railway was made parallel and adja- 
 cent to an ancient highway, and in some cases came within five 
 yards of it. It did not appear whether or not the line could have 
 been made in those instances to pass at a greater distance. The 
 locomotive engines on the railway frightened the horses of persons 
 using the highway as a carriage-road. On an indictment against the 
 company for a nuisance, it was held, that this interference with the 
 rights of the public must be taken to have been contemplated and 
 sanctioned by the legislature, since the words of the statute authoriz- 
 ing the use of the engines were unqualified : and the public benefit 
 derived from the railway, whether it would have excused the alleged 
 nuisance at common law or not (see R. v. Ward, supra), showed, at 
 least, that there was nothing unreasonable in a clause of an Act of 
 parliament giving such unqualified authority. R. v. Pease, 4 B. & 
 Ad. 30, 24 E. C. L. 
 
 But where a railway company are authorized by Act of parliament 
 to obstruct public or private roads only on conditions which they have 
 not performed, they may be indicted for a nuisance on the old highway. 
 R. V. Scott, 3 Q. B. 543, 43 E. C. L.; and see R. v. Rigby, 14 Q. B. 
 687, 68 E. C. L. So also where water authorities or others interfere 
 lawfully with the highway, they are bound to see that they do not 
 create a nuisance. White v. Hindley, L. R. 10 Q. B. 219 ; 44 L. J.,
 
 HIGHWAYS — NUISANCE. 787 
 
 Q. B. 114; Kent V. Worthing Local Board, 10 Q. B. D. 118; 52 
 L. J., Q. B. 77 ; Blackraore v. Mile End Old Town, 9 Q. B. D. 451 ; 
 51 L. J., Q. B. 496. 
 
 Where an Act of parliament authorizes alterations in a highway, 
 they must be made with reasonable care, and if not, the contractor is 
 liable to be indicted for obstructing the highway. R. v. Burt, 11 Cox 
 C. C. 399. 
 
 Proofof the nuisance — whether justifiable from necessity. It not 
 unfrequently becomes a question, whether the obstruction complained 
 of is justifiable by reason of the necessity of the case, as when it 
 occurs in the usual and necessary course of the party's lawful busi- 
 ness. The defendant, a timber-merchant, occupied a small timber- 
 yard close to the street ; and from the small ness of his premises, 
 he was obliged to deposit the long pieces of timber in the street, 
 and to have them sawed up there before they cx)uld be carried 
 into the yard. It was argued, that this was necessary for his trade, 
 and that it occasioned no more inconvenience than draymen letting 
 *down hogsheads of beer into the cellar of a publican. But r*/^9q 
 Lord Ellenborough said, " If an unreasonable time is occupied L 
 in the operation of delivering beer from a brewer's dray into the cel- 
 lar of a publican, this is certainly a nuisance. A cart or wagon may 
 be unloaded at a gateway, but this must be done with promptness. So 
 as to the repairing of a house ; the public must submit to the inconve- 
 nience occasioned necessarily in repairing the house ; but if this incon- 
 venience be prolonged for an unreasonable time, the public have a 
 right to complain, and the party may be indicted for a nuisance. The 
 defendant is not to eke out the inconvenience of his own premises by 
 taking the public highway into his timber-yard ; and if the street be 
 narrow, he must remove to a more commodious situation for carrying 
 on his business." R. v. Jones, 3 Campb. 230 ; Fritz v. Hobson, 14 
 Ch. D. 542 ; 49 L. J., Ch. 321. So although a person who is rebuilding 
 a house is justified in erecting a hoard in the street, which serves as a 
 protection to the public, yet, if it encroach unreasonably upon the 
 highway, it is a nuisance.' See Bush v. Steinman, 1 Bos. & Pul. 404 ; 
 R. V. Russell, 6 East, 427, ante, p. 619. See this point discussed in 
 R. V. Longton Gas Co., 29 L. J., M. C. 118. 
 
 Judgment and sentence. Where a defendant indicted for a nui- 
 sance to a navigable river allowed judgment to go by default, and was 
 under no recognizances to appear in the Court of Queen's Bench for 
 judgment, the court would not, in his absence, give judgment that the 
 nuisance should be abated, although notice had been left at his residence 
 of the intention of the crown to pray for judgment, the proper course 
 being to sue out a writ of capiat and proceed to outlawry. R. v. Chi- 
 chester, 2 Den. C. C. R. 458. 
 
 Abatement of nuisance. As to the abatement of nuisances, see 
 pody tit. " Nuisance." 
 
 ^ Commonwealth v. Passmore, 1 Serg..& fiawle,,217. S.
 
 788 HIGHWAYS — NUISANTE. 
 
 NOT REPAIRING HIGHWAYS. 
 
 Upon an indictment for not repairing a highway, to which the 
 general issue is pleaded, the prosecutor must j)rove : 1st, that the 
 way in question is a public highway (vide, ante, pp. 013, et seq.), and 
 that it agrees Avith the description of the way in the indictment 
 (ante, p. 618) ; 2udly, that it is within the parish or other district 
 charged ; 3rdly, that it is out of repair ; and 4thly, where the 
 charge is not upon the parish, but against common right, as upon an 
 individual ratione tenurce, the liability of the party to make the 
 repairs. 
 
 Proof of liability to repair — parish. Parishes of common right 
 are bound to repair their highways, and by prescription one parish 
 may be bound to repair the way in another parish. Per Holt, C. J., 
 R. V. Ragley, 12 Mod. 409 ; Hawk. P. C. b. 1, c. 76 ; R. v. Midville, 
 4 Q. B. 240, 31 E. C. L. No agreement with any person whatever can 
 take off this charge. 1 Ventr. 90. The parish generally, and not the over- 
 seers, are liable ; and an indictment against the latter was quashed. 
 R. V. Dixon, 12 Mod. 198. If particular persons are made liable by 
 statute to repair, and become insolvent, the parish again becomes 
 liable. 1 Ld. Raym. 725. And where a township, which has been 
 accustomed to repair its own ways, is exempted by Act of parliament 
 from the repair of a certain road, the liability reverts to the parish. 
 *fi9n *^' ^' Sheffield, 2 T. R. 106. The parish will remain liable, 
 -• though the duty of repairing may likewise be imposed upon 
 others. Thus where a statute enacted, that the paving of a particular 
 street should be under the care of commissioners, and provided a fund 
 to be applied to that purpose, and another statute, which was passed 
 for paving the streets of the parish, contained a clause that it should 
 not extend to the particular street, it was held, that the inhabitants of 
 the parish were not exempted from their common-law liability to keep 
 the street in repair ; and that the parish was under the obligation, in 
 the first instance, of seeing that the street was properly repaired, and 
 might seek a remedy over against the commissioners. R. v. St. George's, 
 Hanover Square, 3 Campb. 222. By a navigation Act, the proprietors 
 of the navigation were required to keep a road in repair, and were 
 declared to be liable to indictment if it was out of repair. Coleridge, 
 J., held that this did not relieve the township from their common-law 
 liability. R. v. Brightside Bierlow, 13 Q. B. 933, 66 E. C. L.; 19 L. J., 
 M. C. 50. So where the trustees of a turnpike road are required by sta- 
 tute to make the repairs, the parish, or other district, is not exonerated, 
 but is liable to be indicted. In such cases, the tolls, granted by 
 the Act, are only an auxiliary and subordinate fund, and the persons 
 whom the public have a right to look to, are the inhabitants of 
 the district, who may apply for relief under the 23rd section of the 
 General Turnpike Act. R. v. Netherthong, 2 B. & A. 179 ; see also 
 R. V. Oxfordshire, 4 B. & C. 194, 10 E. C. L.; R. v. Preston, 2 Lew. 
 Q. C. 193 ; R. v. Landsmere, supra, p. 614. Nor can other parties ren-
 
 HIGHWAYS — XTTISANCE. 789 
 
 der themselves liable to an indictment for not repairing by agreement. 
 Thus an indictment against the corporation of Liverpool, stating that 
 they were liable to repair a certain highway, by reason of an agreement 
 with the owners of houses alongside of it, was held bad, because the 
 inhabitants of the parish, who are primd facie bound to re})air all ways 
 within their boundaries, cannot be discharged from their liability by an 
 agreement with others. R. v. Mayor, etc., of Liverpool, 3 East, 80. 
 
 If the repairs are done by a parishioner, under an agreement with 
 the parish, in consideration of his being excused his statute duty, that 
 is virtually a repaii- bv the parish. Per Loiti Ellenborough, li. v. 
 Wandsworth, 1 B. & Aid. GQ. 
 
 Where by Act of parliament trustees are authorized to make a road 
 from one point to another, the making of the entire road is a con- 
 dition precedent to any part of it becoming a highway repairable 
 by the public. An indictment charged a township with the non- 
 repair of a highway ; and it appeared in evidence, that the road in 
 question was begun six years before, under a local turnpike Act ; 
 that the trustees had finished it all but about 300 yards at one end of 
 the line, and one mile at the other (both out of the township), 
 fenced Avhat they had made, put up two turnpike-gates, and taken 
 toll ; that the road Avas convenient, much used by the public, and 
 leading at each end into old, open and public highways ; but it was held 
 by Hullock, B.,that the indictment was premature, the trustees not hav- 
 ing finished their road according to the Act of parliament, and conse- 
 quently that it Av^as no public highway. R. v. Hepworth, cited 3 B. & 
 Adol. 110, 23 E. C. L.; 1 Lewin, C. C. 1 60. So where trustees empow- 
 ered by Act of parliament to make a road from A. to B. (being in length 
 twelve miles), completed eleven miles and a half of such road to a point 
 where it intersected a public highway ; it was held, that the district 
 *in which the part so completed lay was not bound to rejiair it. rjH/^or 
 R. V, Cumberworth, 3 B. & Ad. 108, 23 E. C. L.; and see •- ^"^^ 
 R. V. Paddington Vestrv, 9 B. & C. 460, 17 E. C. L.; R. v. Hatfield, 
 4 A. & E. 156, 31 E. C. L.; R. v. Edge Lane, Id. 723 ; R. v. Cum- 
 berworth, Id. 731. 
 
 It was for some time a matter of doubt whether, where an individ- 
 ual dedicated a way to the public, and the public used such way, the 
 parish in which it was situated was bound to repair it, without any 
 adoption of it on their part. In the case of R. v. St. Benedict, 4 B. 
 & Aid. 447, 6 E. C. L., an opinion Avas expressed by Bayley, J., that 
 the parish was not liable ; but this doctrine was denied in a late case, 
 and it was held, that no distinct act of adoption was necessary, in order 
 to make a parish liable to repair a public road ; but that, if the road 
 is public, the parish is of common right bound to repair it. R. v. 
 Leake, 5 B. & Ad. 469, 27 E. C. L.; 2 Nev. & M. 583 ; R. v. Lands- 
 mere, 15 Q. B. 689, 69 E. C. L.; 19 L. J., M. C. 215, supra, p. 614; 
 see also R. v. The Paddington Vestrv, 9 B. <& C. 456, 17 E. C. L.; 
 R. V. Inhabitants of Bradfield, L. R. 9 Q. B. 552; 43 L. J., M. C. 
 155. See now ante, p. 615, 5 & 6 Will. 4, c. 50, s. 23. 
 
 This section does not prevent the way from becoming public, but
 
 790 HIGHWAYS — NUISANCE. 
 
 only exempts the parish from repair where its conditions are not com- 
 plied with. A party obstructing a public road not within the section 
 would still be liable for so doing, though no one would be liable for a 
 mere want of repair. Roberts v. Hunt, 15 Q. B. 17, 69 E. C. L.; 
 R. V. Wilson, 18 Q. B. 348, 83 E. C. L. 
 
 Where a parish is situated partly in one county and partly in 
 another, and a highway, lying in one of those parts, is out of repair, 
 tiie indictment must be against the whole parish, and must be preferred 
 in that county in which tlie ruinous part lies. R. v. Clifton, 5 T. R. 
 498. By the 5 & 6 Will. 4, c. 50, s. 58, where a highway lies in two 
 parishes, justices of the peace are to determine what parts shall be re- 
 paired by each ; and by s. 59, parishes are bound to repair the part 
 aUotted to them. The same proceeding may be adopted in the case of 
 highways repairable by bodies politic or corporate, or private persons, 
 ratione tenurce. 
 
 Where a question arises as to the road being within the boundaries 
 of the parish, it is sometimes necessary to prove these boundaries, by 
 giving in evidence the award of commissioners appointed to set them 
 out. In such case, it must be shown that the award of the commis- 
 sioners pursues their authority. By an inclosure Act, commissioners 
 were directed to fix the boundaries of a parish, and to advertise in a 
 provincial newspaper such boundaries. The boundaries were also to be 
 inserted in the award of the commissioners, and to be conclusive. The 
 boundaries in the award varying from those in the newspaper, it was 
 held that the commissioners had not pursued their authority, and the 
 award was not binding as to tlie boundaries of tlie parish. R. v. 
 Washbrook, 4 B. & C! 732, 10 E. C. L. By a similar Act, commis- 
 sioners had power to settle the boundaries of certain parishes, upon 
 giving certain previous notices to the parishes to be affected by the 
 award. The highway in question never having been required by the 
 parish to which it was allotted, the judge refused to admit the award in 
 evidence until the requisite notices were proved to have been given ; 
 and upon an application for a new trial, it was refused. R. v. 
 Hastingfield, 2 M. & S. 558. AVhere two parishes are separated by 
 a river, the medium jilum is the boundary. R. v. Landulph, 1 Moo. 
 & R. 393. 
 
 *P9n *0\\ the trial of an indictment for the non-repair of a high- 
 J way, a map of the parish produced from the parish chest, 
 which map was made under an inclosure Act (which was a private Act 
 not printed), is not receivable in evidence to show the boundaries of 
 the parish, without proof of the inclosure Act. Per Erskine, J., R. v. 
 Inhab. of Milton, 1 C. & K. 58, 47 E. C. L. In that case it was 
 proved by the surveyor, who made the map thirty-four years before 
 the trial, that he laid down the boundaries of the parish from the in- 
 formation of an old man, then about sixty, who went round and showed 
 them to him. The learned judge held, that the map would have been 
 receivable as evidence of reputation, if it had been also proved that the 
 old man was dead, but that, without proof of his death, it was not ad- 
 missible.
 
 HIGHWAYS — NUISANCE. 7D1 
 
 Where a highway crosses the bed of a river which washes over it and 
 leaves a deposit of mud, it seems the parish is not bound to repair that 
 part. R. V. Landulph, 1 Moo. & R. 393. On an indictment for the 
 non-repair of a highway, in the ordinary form, a parish cannot be 
 convicted for not rebuilding a sea-wall washed away by the sea, 
 over the top of which the alleged way used to pass. R. v. Paul, 
 2 Moo. & R. 307. 
 
 Upon an indictment for non-repair of a public highway, it appeared 
 that the way was an ancient highway. Eighteen years before the in- 
 dicted parish wherein the road Avas situate was inclosed under the 6 & 
 
 7 Will. 4, c. 115. Before the award the commissioners made an alter- 
 ation in the original road by straightening and widening it, but the 
 whole of the original road was comprehended in the existing road as 
 set out in the award. Both before and since the award the pari!?h had 
 repaired the road, but no steps had ever been taken by the commis- 
 sioners for putting the road into complete repair (see 41 Geo. 3, c. 109, 
 ss. 8 & 9) : nor was there any declaration by justices that it had been 
 fully completed and repaired, and no proceedings had been taken under 
 
 5 & 6 Will. 4, c. 50, s. 3 (now repealed), supra. The road passed 
 through allotable land on both sides, except as to a small portion on 
 one side which was an old inclosure. It was held that the parish was 
 not liable to repair this road. R. v. Inhab. of East Hagbourne, 1 Bell, 
 C, C. 135; 28L. J., M. C. 71. 
 
 Evidence that a parish did not put guard fences at the side of a road, 
 is not receivable on an indictment which charges that the king's subjects 
 could not pass as " they were wont to do," if no such fences existed be- 
 fore. R. V. Whitney, 7 C. & P. 208, 32 E. C. L. 
 
 An indictment for non-repair of a highway, describing the way 
 as immemorial, is not supported by proof of a highway extinguished 
 as such sixty years before by an inclosure Act, but since used by the 
 public and repaired by the district charged. R. v. Westmark, 2 Moo. 
 
 6 R. 305. 
 
 Proof of liability to repair — inclosure. Where tne owner of 
 lands not inclosed, next adjoining to a highway, incloses his land on 
 both sides of the way, he is bound to make the road a 'perfect good way, 
 and shall not be excused by making it as good as it was before the in- 
 closure, if it were then defective ; because, before the inclosure, the 
 public used, where the road was bad, to go, for their better passage, 
 over the fields adjoining, which liberty is taken away. And if the 
 owner inclose on one side only, he is bound to repair the whole, 
 if there be an ancient inclosure on the other side ; but if there be not 
 such an ancient inclosure, he is bound only to repair half; and 
 *upon laying open the inclosure, he is freed, as seems, altogether r*/>07 
 from the liability to repair. Hawk. P. C. b. 1, c. 76, ss. 6, 7, '- 
 
 8 ; 3 Bac. Ab. " Highways " (F.); 1 Russ. Cri. 487, 5th ed.; Wellbe- 
 loved on Highways, 90 ; 2 Wms. Saund. 160 a. n. (12); Woolrych on 
 Ways, 80. But where a highway is inclosed under the directions of 
 an Act of parliament for dividing and inclosing common fields, the
 
 792 HIGHWAYS — NUISANCE. 
 
 party inclosing the way is not bound to repair, R. v. Flecknow, 1 
 Burr. 461. And so also with regard to a road made in pursuance 
 of a writ of ad quod damnum. Ex parte Venner, 3 Atk. 772 ; Hawk. 
 P. C. b. 1, c. 76, s. 7. 
 
 As to the liability of an individual to repair a highway ratione 
 clausurce, see R. v. Sir J. W. Ramsden, 27 L. J., M. C. 296, where it 
 was held that the liability fell upon the owner and not upon the occu- 
 pier. It seems also that it only arises in the case of land inclosed 
 abutting on an immemorial highway, and which but for the inclosure 
 might have been used as a highway. But see now 25 & 26 Vict. c. 
 61, s. 46, as to highway districts. 
 
 Proof of liability to repair — particular districts by custom. 
 Altliough primd facie the parish is bound to repair all the ways 
 within the boundaries, yet other bodies or individuals may be liable 
 to such repairs, to the exoneration of the parish. Thus a township, 
 or other particular district, may, by custom, be liable to repair ; and 
 it is sufficient to state in the indictment, that the township has been 
 used and accustomed to repair, and of right ought to repair. R. v. 
 Ecclesfield, 1 B. & A. 348 ; R. v. West Riding of Yorkshire, 4 B. & 
 A. 623, 6 E. C. L.; R. v. Heap, 2Q. B. 128, 42 E. C. L. But where 
 an indictment charged that the inhabitants of the townships of Bond- 
 gate in Auckland, Newgate in Auckland, and the borough of Auck- 
 land, in the parish of St. Andrew, Auckland, were immeraorially lia- 
 ble to repair a highway in the town of Bishop Auckland, in the parish 
 of St. Andrew, Auckland, and no consideration was laid for such lia- 
 bility ; the indictment was held bad in arrest of judgment as not show- 
 ing that the highway was within the defendant's district. But it was 
 held to be no objection that the inhabitants of the three townships 
 were charged conjointly. R. i\ Inhab. of Auckland, 1 A. & E. 744, 
 28 E. C. L. It seems doubtful whether one parish can be bound by 
 prescription to repair the roads in another parish. R. v. Ashby-Fol- 
 ville, infra. 
 
 Where it aj>pears that a township has been used immemorial ly to 
 repair all roads within it, such township is ];)]aced, as to repairs, in 
 the same situation as a parish, and cannot discharge itself from its lia- 
 bility without showing that some other p<'rsons, in certainty, are liable 
 to the repairs. R. v. Hatfield, 4 B. & A. 75, 6 E. C. L.; R. v. Ardsley, 
 3 Q. B. D. 255 ; 47 L. J., M. C. 65 ; R. v. Ashby-Folville, L. H.'l 
 Q. B. 213 ; 35 L. J., M.C. 154. Where a new way is made within the 
 limits of the township, and which, had the parish been bound to repaii', 
 must have been repaircfl by the parish, such way must be repaired bvtho 
 township. R. v. Ecclesfield, 1 B. & A. 338 ; R. v. Netherthong, 2 B. & 
 A. 179. It appears that the liability of a township, or other district, 
 has its origin in custom rather than in prescription ; a prescrij)tion 
 being alleged in the person, a custom in the land or place ; and the 
 obligation to repair is of a local, and not of a personal nature. R. v. 
 Ecclesfield, 1 B. & A. 348. So it is said by Bay ley, J., that a parish 
 cannot be bound by prescription ; for individuals in a parish cannot
 
 HIGHWAYS — NUISANCE. 793 
 
 bind their successors. R. v. St. Giles, Cambridge, 5 M. & S. 260. See 
 R. V. Ashby-Folville, supra. The inhabitants of a township, or other 
 *district, cannot be charged to repair ratione tenurce ; for unin- t^^qq 
 corpo rated inhabitants cannot, as inhabitants, hold lands. R. v. L 
 Machynlleth, 2 B. & C. 166, 9 E. C. L. 
 
 To charge a township with liability by custom to repair all high- 
 ways within it, which would otherwise be repairable by the parish 
 comprising such township, it is not necessary to prove that there are, 
 or have been, ancient higliAvays in the township. Without su{*h proof 
 a jury may infer the custom from other evidence. As that the 
 parish consists of five townships, one of which is the township in 
 question ; that four have always repaired their own highways ; that 
 no surveyor has ever been appointed for the parish, and that the 
 township in question has repaired a highway lately formed within it. 
 R. V. Barnoldswick, 4 Q. B. 499, 45 E. C. L. See also R. v. Mid- 
 ville, Id. 240. 
 
 Upon an indictment against the inhabitants of the township of H., 
 for the non-repair of a highway, a prior judgment of quarter sessions 
 upon a presentment by a justice under the 13 Geo. 3, c. 78, (repealed) 
 for non-repair of the same highway by H., and which presentment 
 alleged that the highway was in H., and that H. was liable to repair 
 it, — it appearing by the judgment that two of the inhabitants of H. 
 had appeared and pleaded guilty, and that a fine was imposed, — 
 was held to be conclusive evidence that the highway was in H., 
 and that H. was liable to repair it. R. v. Haughton, 1 El. & Bl. 
 501, 72 E. C. L.; 22 L. J., M. C. 89. Upon an appeal against the 
 appointment of a surveyor of the highways for the toAvnship of K. N., 
 the sessions found that the parish of M. consisted of two townships ; 
 that surveyors had been appointed for each ; but, latterly, to save expense, 
 there had been two surveyors appointed for the parish at large. They 
 likewise found that each acted as surveyor in his OAvn township ; that 
 distinct rates had been made for each township, and applied distinctly 
 to the repau's of the highways in each ; that the surveyors kept distinct 
 accounts (which were examined by the general vestry), and that the 
 occupiers of lands had been rated, in respect of their occupation, to the 
 repair of the highways of that township in M'hich the houses they re- 
 sided in were situate. Lord Tenterden said, that if there had been an 
 indictment against either township, and an allegation that each town- 
 ship had immemorially repaired the roads within it, these facts would 
 be sufficient evidence to support the averment. R. v. King's Newton, 
 1 B. & C. 826, 8 E. C. L. On an issue, whether or not certain land, 
 in a district repairing its own roads, was a common highway, it is ad- 
 missible evidence of reputation (though slight) that the inhabitants 
 held a public meeting to consider of repairing such way, and that sev- 
 eral of them, since dead, signed a paper on that occasion, stating that 
 the land was not a public highway, there being at the time no litiga- 
 tion on the subject. Barraclough v, Johnson, 8 A. & E. 99, 35 E. C. 
 L.; ante, p. 615. 
 
 It seems that the inliabitants of a district, not included within any
 
 794 HIGHWAYS — NUISANCE. 
 
 parish, cannot be bonnd to repair the highways within such district. 
 This point arose, bnt was not decided in the case of R.. v. Kingsmoor, 2 B. 
 & C. 190, 9 E. C, L., which was an indictment against an extra- paro- 
 chial hamlet. The court held that it should have been shown on the face 
 of the indictment that the hamlet neither formed part of, nor was con- 
 nected with any other larger district, the inhabitants of which were 
 liable to the repair of the road in question. Upon this point the 
 judgment for the crown was reversed ; but Best, J., observed, " I 
 *fi9Ql *^^" ^"^ "^ authority for saying that anything but a parish 
 -I can be charged. If the law authorizes no charge except upon 
 parishes, places that are extra-parochial are not, by the general rule of 
 law, liable." See the observations on this case in Wellbeloved on 
 Highways, 81. 
 
 Proof of liability to repair — corporations. A corporation, sole 
 or aggregate, may be bound by prescription or usage to repair a high- 
 way, without showing that it is in respect either of tenure or of any 
 other consideration. Hawk. P. C. b. 1, c. 76, s. 8 ; R. v. St, Giles, 
 Cambridge, 5 M. & S. 260. A corporation may be indicted in its 
 corporate name for non-repair of a highway. R. v. Mayor, etc., of 
 Liverpool, 3 East, 86 ; R. v. Birmingham & Gloucester Railway Co., 
 3 Q. B. 223, 43 E. C. L. 
 
 Proof of liability to repair — private individuals. A jirivate 
 individual cannot be bound to repair a highway, except in respect of 
 some consideration, and not merely by a general prescription, because 
 no one, it is said, is bound to do what his ancestors have done, except 
 for some special reason, as the having lands descending from such 
 ancestors which are held by such service, etc. Hawk. P. C. b. 1, c. 
 76, s. 8; 13 Rep. 33; R. v. St. Giles, Cambridge, 5 M. & S. 260; 
 Nichol V. Allen, 31 L. J., Q. B. 43 ; R. v. Ardsley, 3 Q. B. D. 255 ; 
 47 L. J., M. C. 75. Yet an indictment charging a tenant in fee 
 simple with being liable to repair, by I'eason of the tenure of his land, 
 is sufficiently certain without adding that his ancestors, whose estate 
 he has, have always so done, which is implied in the above allegation. 
 Hawk. P. C. b. 1, c. 76, s. 8. In order to exempt a parish, by show- 
 ing that a private person is bound to repair, it must be shown that 
 the burthen is cast upon such other person, under an obligation 
 equally durable with that which would have bound the parish, and 
 which obligation must arise in respect of some consideration of a 
 nature as durable as the burthen. Per Lord Ellenborough, R. v. St. 
 Giles, Cambridge, 5 M. & S. 260. Where lands, chargeable with the 
 repairs of a bridge or highway, are conveyed to different persons, each 
 of such persons is liable to the charge of all the repairs, and may 
 have contributions from the others ; for the law will not suffer the 
 owner to apportion the charge, and thus to render the remedy for the 
 public more difficult. Therefore, where a manor thus charged, was 
 conveyed to several persons, it was held that a tenant of any parcel, 
 either of the demesnes, or of the services, was liable to the whole
 
 HIGHWAYS — NUISANCE. 795 
 
 repairs. And the grantees are cliargeable with the repairs, though the 
 grantor should convoy the lands discharged from the burthen, in which 
 case, the grantee has his remedy over against the grantor. 11. v. Duchess 
 of Buecleugh, 1 Salk. 358 ; R. v. Buckeridge, 4 Mod. 48 ; 2 Saund. 
 159 (n) ; 1 Russ. Cri. 486, otli ed. Where a navigation company was 
 bound under an Act of parliament to repair a highway, on an indict- 
 ment for non-repair, a count alleging the liability to repair ratione 
 tenurce was held bad ; but one alleging their liability under the Act was 
 held good. R. V. Sheffield Canal Co., 13 Q. B. 913 ; 19 L. J., M. C. 44. 
 
 Repairing a highway for a length of time will be evidence of a 
 liability to repair ratione tenurce. Thus, if a person charged as being 
 bound to repair ratione tenurce, pleads that the liability to repair arose 
 from an encroachment which has been i-emoved, and it appears that 
 the road has been repaired by the defendant twenty-five years since 
 *the removal of the alleged encroachments, tlmt is presumptive r^oork 
 evidence that the defendant repaired ratione tenurce generally, •- 
 and renders it necessary for him to show the time when the encroach- 
 ment was made. R. v. Skinner, 5 Esp. 219; 1 Russ. on Cri. 487, 
 5th ed. In determining whether the act of repairing a way is evi- 
 dence to prove a liability to repair ratione tenurce, the nature of the 
 repairs must be regarded. Thus it is said by Hullock, B., that an 
 adjoining occupier occasionally doing repairs for his own convenience 
 to go and come, is no more like that sort of repair which makes a 
 man liable ratione tenurce, than the repair by an individual of a road 
 close to his door, is to the repair of the road outside his gate. R. v. 
 Allanson, 1 Lewin, C. C. 158. In R. v. Blakemore, 2 Den. C. C. R. 
 410 ; 21 L. J., M. C 60, evidence was given of the conviction of a 
 former owner and occupier of the lands in respect of which the liability 
 was said to arise, for the non-re|)air of the same highway, which 
 showed that he had pleaded guilty to a presentment against him, 
 alleging his liability to repair the highway. Repairs by occujiiers of 
 the same lands subsequently to this conviction were also proved ; and 
 evidence was given that the defendant purchased these lands after 
 public notice of the liability to repair the higlnvay, and that he was 
 the owner and occupier of the same ; it wa.? held that there was evi- 
 dence to go to the jury of immemorial usage and liability ratione 
 tenurce. An indictment for the non-repair of a highway in the parish 
 of A., alleging the liability by reason of the tenure of certain lands 
 in the said parish, is not suppoi-ted by proof of a liability to repair a 
 road extending through A. and other parishes by reason of the 
 tenure of a farm made up of land in A. and the other parishes. R. v. 
 Mizen, 2 Moo. & R. 382. See also R. v. Haughton, 1 E. & B. 501, 
 72 E. C. L. ; R. v. Maybury, 1 F, & F. 90 ; R. v. Nether Hallam, 
 6 Cox, C. C. 435. As to previous conviction upon an indictment 
 being conclusive evidence of liability, and in the case of an adjoining 
 township, see R. v. Brightside Bierlow, 13 Q. B. 933, 66 E. C. L. 
 
 A record of an acquittal, ho^vever, is not evidence to show that the 
 parish is not liable. R. v. St. Pancras, Peake Rep. 219 ; R. v. Cotton, 
 3 Camp. 444.
 
 796 HIGHWAYS — NUISANCE. 
 
 By the 5 & 6 AYill. 4, c. 50, s. 62, liighways repaired by parties 
 ratione tenune, may be made parish liighways ou payment of an 
 annual sum, to be fixed by the justices. And see now. also 25 & 26 
 Vict. c. 61, ss. 34, 35, as to highway districts. 
 
 Proof for the defence — parish. Upon an indictment against a 
 parish for not repairing the defendants may show under the plea of 
 not guilty, either that the way in question is not a higliway, or that it 
 does not lie within the parish, or that it is not out of repair; for all 
 these are facts which the prosecutor must allege in the indictment, and 
 prove under the plea of not guilty. 2 Saund. 158, w (3); 1 lluss. 
 Cri. 497, 5th ed. But where a parish seeks to discharge itself from 
 its liability, by imposing the burthen of repair upon others, this de- 
 fence must be specially pleaded, and cannot be given in evidence 
 under the general issue. In such special plea, the parish must show 
 with certainty who is liable to the repairs. R. v. St. Andrews, 1 
 Mod. 112; 3 Salk. 183; 1 Vent. 256; R. v. Hornsey, Carth. 212; 
 Fort. 254 ; Hawk. P. C. b. 1, c. 76, s. 9. See also R. v. Eastington, 5 
 A. & E. 765, 31 E. C. L., where a plea alleging that a particular 
 township had been accustomed to repair all roads within it, " which 
 *fi"^n **jt]ierwise would be repairable by the parish at large," was held 
 -^ bad, in arrest of judgment, because it did not aver that the 
 highway was one which but for custom would be repairable by the 
 parish at large, and did not show what party other than the de- 
 fendants was liable to repair. But where the burthen of repairs 
 was transferred from the parish by Act of parliament. Lord Ellen- 
 borough held that this might be shown under a plea of not guilty. 
 R. V. St. George's, Hanover Square, 3 Campb. 222. Where the parish 
 pleads specially that others are bound to repair, the plea admits the way 
 to be a highway, and the defendants cannot under such plea give evi- 
 dence that it is not a highway. R. v. Brown, 11 Mod. 273. In 
 order to prove the liability of a parish to repair, when denied un- 
 der a special plea, the prosecutor may give in evidence a conviction 
 obtained against tiie same parish upon another indictment for not 
 repairing, and whether such judgment was after verdict or by de- 
 fault, it will be conclusive evidence of the liability of the whole 
 parish to repair. R. v. St. Paneras, Peake, 219 ; R. v. Whitney, 
 7 C. & P. 208, 32 E. C. L. But fraud will be an answer to such 
 evidence. Peake, 219. A record of acquittal is not admissible as 
 evidence of the non-liability of the parish acquitted, for it might 
 have proceeded upon other grounds than the non-liability of the 
 parish to repair. Id. But where an indictment has been preferred 
 against a parish consisting of several t(»wnships, and a conviction 
 has been obtained, but it appears that the defence was made and 
 conducted entirely by the district in which the way lay, without the 
 privity or consent of the otlier districts, the indictment will be con- 
 sidered as in substance an indictment against that district only, and 
 the others will be pcn'mitted to jilead the prescription to a subse- 
 quent indictment for not repairing the highways in that parish. 2
 
 HIGHWAYS — NUISANCE. 797 
 
 Saiind. 158 c. {n); R. v. Townsend, Doug. 421. On an indictment 
 for not repairing, against the parish of Eardisland, consisting of three 
 townships, Eardisland, Burton, and Hardwicke, where there was a 
 plea on the part of the township of Burton, that each of the three 
 townships had immemorially repaired its own highways separately, it 
 was held that the records of indictments against the parish generally, 
 for not repairing highways situate in the township of Eardisland, and 
 the township of Hardwicke, with the general pleas of not guilty, 
 and convictions thereupon were primd facie evidence to disprove 
 the custom for eacli township to repair separately, but that evidence 
 was admissible to show that these pleas of not guilty were pleaded 
 only by the inhabitants of the townships of Eardisland and Hard- 
 wicke, without the privity of Burton. R. v. Eardisland, 2 Campb. 494. 
 
 Proof for the defence — district or private individual. Where a 
 particular district, not being a parish, or where a private individual 
 by reason of tenure, is indicted for not repairing a highway, as the 
 prosecutor is bound to prove the special ground of their liability, viz., 
 custom or tenure, under the plea of not guilty, so the defendants are 
 at liberty under that plea to show that no special grounds exist. In 
 such case, it is not necessary for the defendants after disproving their 
 own liability to go further, and prove the liability of others. But 
 if, as in the case of a parish, they choose, though unnecessarily, to 
 plead the special matter, it has been held that it is not sufficient to 
 traverse their own liability, but that they must show in particular who 
 *is bound to repair. R. v. Yarnton, 1 Sid. 140; R. v. Hornsev, rtnoo 
 Carth. 212 ; 2 Saund. 159 a, n. (1.); 1 Russ. Cri. 498, 5th ed. L '^'^^ 
 As to the evidence of custom to exempt a district from liability, see 
 n.v. Rollett, L. R., 10 Q. B. 469; 44 L.J.,M. C. 190. Where 
 charged ratione tenurce, the defendant may show that the tenure origi- 
 nated within the time of memory. R. v. Hay man, M. & M. 401. It 
 has been held by Maule, J., that evidence of reputation is not admis- 
 sible to show a liability in the occupiers of land to repair a road ratione 
 tenurce. R. v. Wavertree, 2 Moo. & R. 353. But this case must be 
 considered as overruled by R. ??. Bedford, 24 L. J., Q. B. 81 ; supra, 
 p. 355. Where the land over which the road passed Avas washed a^vay 
 by the sea, the liability of the defendant, charged ratione tenurce, was 
 held to have ceased. R. v. Bamber, 5 Q. B. 279, 48 E. C. L.; but the 
 road must be substantially destroyed. R. v. Greenhow, 1 Q. B. D. 
 703; 45L. J., M. C. 141. 
 
 Particulars of the highways obstructed, etc. On an indictment 
 for obstructing divers horse and carriage ways, and footpaths, I'arke, 
 B., upon the production of an affidavit from the attorney for tlie de- 
 fendant, that he was unable to understand all the precise tracks indicted, 
 made an order for the delivery of particulars of the ways in question, 
 which were nine in number, seven described, generally, as highways, 
 and two described as footwavs. R. v. Marquis of Downshire, 4 A. & 
 E. 698, at p. 699, 31 E. C. L. See supra, p. 195.
 
 798 HIGHWAYS — NUISANCE. 
 
 Costs, etc. By 5 & 6 Will. 4, c. 50, s. 95, the costs of the prose- 
 cution upon an indictment for non-repair of highways shall be directed 
 to be paid out of the rates by the judge of assize (see R. v. Ipstones, 
 L. R., 3 Q. B. 216 ; 37 L. J., M. C. 37) before whom the said indict- 
 ment is tried, and it was long thought that a judge could not give costs 
 when the defendants pleaded guilty, but that opinion is now overruled. 
 See II. V. Inhab. of Haslemere, 32 L. J., M. C. 30. But this power is 
 confined to the judge of assize, that is the judge sitting under tiie com- 
 mission of oyer and terminer, and where the indictment is removed by 
 the defendants into the Court of Queen's Bench by certiorari, and a 
 verdict is found for the defendants, the court has no power under this 
 section to award costs to the prosecutor. E,. v. Inhab. of Ipstones, L. 
 R. 3 Q. B. 216. 
 
 By the 5 & 6 Will. 4, c. 50, s. 98, the court before whom any in- 
 dictment for not repairing highways is preferred may award costs to 
 the prosecutor, to be paid by the person so indicted, if it shall appear 
 to the said court that the defence made to such indictment was frivolous 
 and vexatious. Bat under this section there is no power for the court 
 before whom the indictment is preferred to award costs where the de- 
 fendants plead guilty. R. v. Inhab. of Denton, 34 L. J., M. C. 13, 
 distinguishing R. v. Inhab. of Haslemere, supra. By sect. 99, pre- 
 sentments on account of highwa ys or turnpike roads being out of re- 
 pair, are abolished. See, as to costs, R. v. Inhab. of Hickling, 7 Q. 
 B. 890, 53 E. C. L.; 15 L. J., M. C. 23 ; R. v. Down Holland, 15 L. 
 J., M. C. 25 ; R. V. Clarke, 5 Q. B. 887, 48 E. C. L. See R. v. In- 
 hab. of Yorkhill, 9 C. & P. 218, 38 E. C. L. ; R. v. Inhab. of 
 Chedworth, 9 C. & P. 285, 38 E. C. L., and 1 Russ. Cri. 507 
 (/) 5th ed.; R. f. Inhab. of Preston, 1 C. & K. 137, 47 E. C. L.; 
 R. V. Merionethshire, 6 Q. B. 343, 51 E. C. L.; R. v. Inhab. of 
 Heanor, 6 Q. B. 745, 51 E. C. L.; R. v. Inhab. of Pembridge, 3 
 Q. B. 901, 43 E. C. L. ; 3 G. & D. 5 ; R. v. Inhab. of Paul, 1 
 Moo. (fe R. 307, and R. y, Inhab. of Chillicombe, therein cited, p. 311 ; 
 R. V. Inhab, of Great Broughton, 2 Moo. & R, 444. See also R. v. 
 *A':j'?-l *Buckland, 12 L. T., N. S. 380; R. v. Heath, 12 L. T. 492; 
 ^'"^^-1 R. V. Lee, 1 Q. B. D. 198 ; 45 L. J., M. C. 54, as to costs 
 under the 25 & 26 Vict. c. 61. See further, title "Bridges," ante. 
 
 The amount of costs must be ascertained and ordered by the same 
 sessions ; the sessions cannot refer the costs to be taxed by their officer 
 after the sessions. R. v. Lambeth, 3 C. L. R. 35. 
 
 New trial. It is now conclusively settled on an indictment for 
 nuisance to a highway, that, inasmuch as if there had been a verdict of 
 guilty, the defendant would have been liable to fine and imprisonment, 
 and the right is not bound, the court will not grant a new trial. R. i\ 
 Russell, 3 El. & Bl. 943, 77 E. C. L. ; 23 L. J., M. C. 173 ; R. v. 
 Johnson, 29 L. J., M. C. 133 ; R. v. Duncan, 7 Q. B. D. 198; 50 L. 
 J. M. C. 95. 
 
 It has, however, long been the practice on an indictment against 
 parishes for the non-repair of highways, in which the consequences
 
 HIGHWAYS — NUISANCE. 799 
 
 are not penal in the sense that proceedings against an individual are 
 penal, to suspend the judgment, upon an application on the part of 
 the prosecution, R. v. Sutton, 5 Barn. & Ad. 52, 27 E. C. L., if it is 
 considered necessary that a new indictment should be preferred. And 
 the present practice is, instead of resorting to this indirect method, to 
 grant a new trial in similar cases. See R. v. Russell, supra. In one 
 case, R. v. Chorley, 12 Q. B, 515, 64 E. C. L., a new trial was granted 
 after an acquittal of an indictment for a nuisance, but that decision is 
 explained in R. v. Russell, as resting on the consideration, that there 
 the matter had resolved into a pure question of civil right. Perhaps 
 it can scarcely now be considered as an authority. Vide supra, p. 
 235. 
 
 Indictment by justices. Where under sect. 19 of 25 & 26 Vict. c. 
 61, the justices direct an indictment, their jurisdiction is limited to ad- 
 mitted highways ; but if the fact of the road being a highway is denied, 
 and the liability to repair is admitted, the justices have no jurisdiction, 
 R. V, Farrer, L. R. 1 Q. B. 558 ; 35 L. J., M. C. 210.
 
 800 HOMICIDE. 
 
 *g34-J *HOMICIDE. 
 
 Those homicides which are felonies, viz., murder and manslaughter, 
 will, for the convenience of reference, be treated of under separate 
 heads. It will be useful in this place to distinguish the nature of the 
 different kinds of homicide not amounting to felony. 
 
 Homicides not felonious may be divided into three classes, justifiable 
 homicide, excusable homicide, and homicide by misadventure. 
 
 Justifiable homicide is where the killing is in consequence of an im- 
 perious duty prescribed by law, or is owing to some unavoidable ne- 
 cessity induced by the act of the party killed, without any manner of 
 fault 'in the party killing, 1 East, P. C. 219 ; Hawk. P. C. b. 1, c. 
 28, ss, 1, 22. 
 
 Excusable homicide is where the party killing is not altogether free 
 from blame, but the necessity ^vhich renders it excusable may be 
 said to be partly induced by his own act. Formerly in this case it 
 was the practice for the jury to find the fact specially, and upon cer- 
 tifying the record into chancery, a pardon issued, of course, under the 
 statute of Gloucester, c. 9, and the forfeiture was thereby saved. 
 But latterly it was usual for the jury to find the prisoner not guilty. 
 1 East, P. C. 220. And now by the 24 & 25 Vict. c. 100, s. 7, " no 
 punishment or forfeiture shall be incurred by any person who shall 
 kill another by misfortune or in his own defence, or in any other 
 manner without felony," 
 
 Homicide by misadventure is where a man doing a lawful act, Mnth- 
 out any intention of bodily harm, and after using proper precautions 
 to prevent danger, unfortunately kills another person. The act upon 
 which the death ensues must be lawful in itself, for if it be malum 
 in se, the case will amount to felony, either murder or manslaughter, 
 according to the circumstances. If it be merely malum prohibitum, as 
 (formerly) the shooting at game by an unqualified person, that 
 will not vary the degree of the offence. The usual examples under 
 this head, are — 1, where death ensues from innocent recreations ; 
 2, from moderate and lawful correction in foro domestico ; and 3, 
 from acts lawful or indifferent in themselves, done with proper and 
 ordinary caution. Homicide by chance-medley is strictly where death 
 ensues from a combat Ijetween the j^arties upon a sudden quarrel ; but 
 it is frequently confounded with misadventure or accident. 1 East, 
 P. C. 221. 
 
 HOUSEBREAKING. See Dwelling-House.
 
 ILL-TEEATING APPRENTICES, SERVANTS, ETC. 801 
 
 «ILL-TREATING APPRENTICES, SERVANTS, LUNATICS, AND r*635 
 HELPLESS PERSONS. 
 
 PAGE 
 
 In cases of apprentices or servants, 24 & 25 Vict. c. 100 . . . 636 
 Lunatics, etc 636 
 
 In cases of apprentices or servants. The 24 & 25 Vict. c. 100, s. 
 26, replacing the 14 & 15 Vict. c. 11, s. 1, enacts that, "whosoever, 
 being legally liable either as a master or a mistress to provide for 
 any apprentice or servant, necessary food, clothing, or lodging, shall 
 wilfully and without lawful excuse refuse or neglect to provide the 
 same, or shall unlawfully or maliciously do or cause to be done any 
 bodily harm to any such apprentice or servant, so that the life of such 
 apprentice or servant shall be endangered, or the health of such ap- 
 prentice or servant shall have been or shall be likely to be perma- 
 nently injured, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for the term of three [now five] years, or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labor." 
 
 Under sect. 6 of the Conspiracy Act, 1875, 38 & 39 Vict. c. 86, 
 where a master being legally liable to provide for his servant or ap- 
 prentice necessary food, clothing, medical aid or lodging, wilfully and 
 without lawful excuse refuses or neglects to provide the same, whereby 
 the health of the servant or apprentice is, or is likely to be, seriously 
 or permanently injured, he shall, on summary conviction, be liable 
 either to pay a penalty not exceeding 20/., or to be imprisoned for a 
 term not exceeding six months with or without hard labor, or by 
 sect. 9, the oifence may be prosecuted on an indictment at the request 
 of the party accused. 
 
 See as to costs, 24 & 25 Vict. c. 100, ss. 74, 75, and 77, supra, p. 
 243. 
 
 By sect. 73 of the 24 & 25 Vict. c. 100, "where any complaint shall 
 be made of an offence against s. 26 of this act, or of any bodily injury 
 inflicted upon any person under the age of sixteen years, for which 
 the party committing it is liable to be indicted, and the circumstances 
 of which offence amount in point of law to a felony, or an attempt to 
 commit a felony, or an assault with intent to commit a felony, and two 
 justices of the peace, before whom such complaint is heard, shall cer- 
 tify under their hands, that it is necessary for the purposes of public 
 justice, that the prosecution should be conducted by the guardians of 
 the union or place, or, where there are no guardians, by the overseers 
 of the poor of the place in which the offence shall be charged to have 
 51
 
 802 ILL-TREATING APPRENTICES, SERVANTS, ETC. 
 
 been committed, such guardians or overseers, as the case may be, upon 
 personal service of such certificate, or a duplicate thereof upon the 
 clerk of such guardians, or upon any one of such overseers, shall 
 *fi'^Pl *conduct the prosecution, and shall pay the costs, reasonably and 
 J properly incurred by them therein, so far as the same shall not 
 be allowed to them under any order of any court, out of the common 
 fund of the union, or out of the funds in the hands of the guardians 
 or overseers, as the case may be ; and when there is a board of guar- 
 dians, the clerk or some other officer of the union or place, and where 
 there is no board of guardians, one of the overseers of the poor, may, 
 if such justices think it necessary for the purposes of public justice, 
 be bound over to prosecute." 
 
 It has been held, that a master is not bound by law to furnish med- 
 ical advice for his servant ; but that it is otherwise in the case of an 
 apprentice, and that a master is bound, during the illness of his ap- 
 prentice, to furnish him with proper medicines. See R. v. Smith, 8 
 C. & P. 135. And see now the new statute, supra. 
 
 Lunatics, etc. The 8 & 9 Vict. c. 100, contains several provisions 
 for regulating the care and supervision of lunatics, and in many in- 
 stances rendering the breach of those regulations a misdemeanor. By 
 sect. 44 it is a misdemeanor to receive two or more lunatics into a 
 house which is not duly licensed under the Act. Under this section it 
 has been held that if the persons so received are found by the jury to 
 be lunatic the offence is made out, notwithstanding that the defendant 
 honestly and on reasonable grounds believed that they were not lunatic. 
 R V. Bishop, 5 Q. B. D. 259 ; 49 L. J., M. C. 45. The 16 & 17 
 Vict. c. 96, s. 9, enacts, that " if any superintendent, officer, nurse, 
 attendant, servant, or other person employed in any registered hospital, 
 or licensed house, or any person having the care or charge of any sin- 
 gle patient, in any way abuse, or ill-treat, or wilfully neglect, any 
 patient in such hospital, or house, or such single patient ; or if any 
 person detaining, or taking, or having the care or charge, or concerned 
 in taking part in the custody, care, or treatment, of any lunatic or 
 person alleged to be a lunatic, in any way abuse, ill-treat, or wilfully 
 neglect such lunatic, or alleged lunatic, he shall be guilty of a misde- 
 meanor, and shall be subject to indictment for every such offence, or 
 to forfeit for every such offence, on a summary conviction thereof, be- 
 fore two justices, any sum not exceeding 20/." 
 
 A husband having been tried and convicted under this statute, for 
 that he, having the care and charge of his wife, a lunatic, did abuse 
 and ill-treat her ; upon a case reserved, the court held that he was 
 not a person having the care and charge of a lunatic within the mean- 
 ing of the statute, which was not intended to apply to persons whose 
 care or charge arose from natural duty. R. v. Rundle, 1 Dears. C C. 
 R. 432 ; 24 L. J., M. C. 129. 
 
 But where a man voluntarily took upon himself the care and charge 
 of a lunatic brother in his own private house, he was held to be liable 
 to be indicted for ill-treatinff him under the above statute. R. v. For-
 
 ILL-TREATING APPRENTICES, SERVANTS, ETC. 803 
 
 ter, L. & a 394 ; 33 L. J., M. C. 126. K. v. Smith, 14 Cox, C. C. 
 R. 398. 
 
 A mistress was indicted for manslaughter by neglecting to sui)ply 
 her servant who, it was contonde<l by the prosecution, was of weak 
 mind, with proper food and lodging. It was held that the question 
 for the jury was, whether there was evidence that the deceased was 
 reduced to such a state of body and mind as to be helpless and unable 
 to take care of herself, and that she was so under the dominion and 
 restraint of her mistress as to be unable to withdraw herself from 
 *her control. R. v. Smith, L. & C. 607 ; 34 L. J., M. C. 153. r^^^y 
 See now tlie new statute, supra. L 
 
 By 16 & 17 Vict. c. 97, s. 123. If any superintendent, officer, 
 nurse, attendant, servant, or other person employed in any asylum, 
 shall strike, wound, ill-treat, or wilfully neglect any lunatic confined 
 therein, he shall be guilty of a misdemeanor. 
 
 By 23 & 24 Vict. c. 75. Any superintendent, officer, nurse, at- 
 tendant, servant, or other person employed in any asylum for criminal 
 lunatics, who strikes, wounds, ill-treats, or wilfully neglects any person 
 confined therein, shall be guilty of a misdemeanor, and shall be sub- 
 ject to indictment for every such offence, and on conviction under 
 the indictment, to fine or imprisonment with or without hard labor, 
 or to both fine or imprisonment at the discretion of the court, or to 
 forfeit for every such offence, on a summary conviction thereof before 
 two justices, any sum not exceeding twenty pounds, nor less than two 
 pounds. 
 
 For ill-treating children, see " Children — offences relating to," ante, 
 p. 398. 
 
 " By the Children's Dangerous Performances Act, 1879 ; 42 & 43 
 Vict. c. 34, an employer of a child under the age of 14 years may be 
 indicted for an assault where any accident causing any actual bodily 
 harm occurs to any such child in the course of a public exhibition 
 which in its nature is dangerous to life or limb."
 
 804 INCITING TO MUTINY. 
 
 '638] 
 
 ♦INCITING TO MUTINY. 
 
 By 37 Geo. 3, c. 70, s. 1 (E.) after reciting that divers wicked and 
 evil-disposed persons, by the publication of written or printed papers, 
 and by malicious and advised speaking, had of late industriously en- 
 deavored to seduce persons serving in his Majesty's forces by sea and 
 land, from their duty and allegiance to his Majesty, and to incite them 
 to mutiny and disobedience ; it is enacted, "that any jjcrson \vho shall 
 maliciously and advisedly endeavor to seduce any person or persons 
 serving in his Majesty's forces, by sea or land, from his or their duty 
 and allegiance to his Majesty, or to incite or stir up any such person 
 or persons, to commit any act of mutiny, or to make, or endeavor to 
 make, any mutinous assembly, or to commit any traitorous or muti- 
 nous practice whatsoever, shall, on being legally convicted of such 
 offence, be adjudged guilty of felony [and shall suffer death, as in 
 cases of felony, without benefit of clergy]." 
 
 S. 2 provides and enacts, " that any offence committed against this 
 act, whether committed on the high seas or within that part of Great 
 Britain called England, shall and may be prosecuted and tried before 
 any court of oyer and terminer, or gaol delivery for any county of 
 that part of Great Britian called England, in such manner and form 
 as if the said offence had been therein committed." 
 
 By the 7 Will. 4 & 1 Vict. c. 91 (U. K.), s. 1, after reciting {inter 
 alia) the above statutes, it is enacted, " that if any person shall, after 
 the commencement of this act, be convicted of any of the offences 
 hereinbefore mentioned, such persons shall not suffer death, or have 
 sentence of death awarded against him or her for the same, but shall 
 be liable, at the discretion of the court, to be transported beyond the 
 seas for the term of the natural life of such persons, or for any term 
 not less than fifteen years, or to be imprisoned for any term not ex- 
 ceeding three years." 
 
 By s. 2, hard labor and solitary confinement may be awarded in 
 cases of imprisonment. 
 
 By the Naval Discipline Act, 1866, 29 & 30 Vict. c. 109, s. 10, mu- 
 tiny with violence is punishable Avith death, and penalties are awarded 
 for acting traitorously, with cowardice and with negligence respect- 
 ively during such mutiny. By section 11, where the mutiny is not 
 accompanied with violence the ringleaders are punishable with death, 
 and those who join in or do not endeavor to suppress such mutiny 
 are punishable with imprisonment. By ss. 12, 13, persons inciting to 
 mutiny or uttering or concealing mutinous words are subjected to
 
 INCITING TO MUTINY. 805 
 
 punishment. Provisiotis arc also made for the punishment of offences 
 in striking superior officers and for insuboj'dination and desertion. 
 
 The annual mutiny acts (see the 44 iSi 45 Vict. cc. 57, 58, continued 
 by 4G Vict. c. 6), make it a misdemeanor for every person who shall, 
 in any part of her iNIajesty's dominions, directly or indirectly, persuade 
 any soldier to desert.
 
 806 LARCENY. 
 
 * 
 
 639] *LAKCENY. 
 
 PAGE 
 
 Interpretation of terms 640 
 
 Distinction between grand and petit larceny abolished . . . 641 
 
 Bailees fraudulently converting property 641 
 
 Punishment for simple larceny 641 
 
 Three larcenies witnin six months may be charged in one indict- 
 ment 641 
 
 Election 641 
 
 Larceny after a previons conviction for felony 642 
 
 a previous conviction for misdemeanor . . , 642 
 
 two summary convictions 642 
 
 by servant 642 
 
 by persons in the Queen's service, or in the police . . 643 
 Conviction for larceny on indictment for embezzlement, and vice 
 
 versa 643 
 
 Venue .,.,... 643 
 
 Larceny of property of partners, etc. ...... 644 
 
 counties, etc. 645 
 
 goods for the use of the poor , . . . . 645 
 
 property of trustees of turnpikes 646 
 
 of commissioners of sewers, etc. 646 
 
 of friendly societies, etc. . . 646 
 
 of loan societies . , , 646 
 
 of building societies , . . 646 
 
 of industrial societies . . , 646 
 
 of trades unions .... 646 
 
 of savings banks .... 647 
 
 of her Majesty's customs • . 647 
 
 Summary jurisdiction 647 
 
 Definition of larceny 647 
 
 Proof of the taking 649 
 
 What manual taking is required .... 649 
 
 Possession obtained by mistake 651 
 
 Possession obtained by fraud at time of taking — 
 
 property not parted witli 653 
 
 Property as well as possession parted with . 655 
 Possession obtained from servant by fraud — prop- 
 erty parted with by servant .... 662 
 
 Possession obtained by threat 664 
 
 Possession obtained by false process of law . . 664 
 
 Possession obtained by bailees 665 
 
 Possession obtained by servants 666 
 
 Proof of the intent to deprive the owner of his property . . 672 
 
 Goods taken under a fair claim of right . . 674 
 
 Larceny of goods found , 675 
 
 by the owner 678 
 
 by part owners 679 
 
 by wife 681 
 
 by husband 684 
 
 *640] "^Distinction between larceny, embezzlement, and obtaining by false 
 
 pretences 684 
 
 Proof of value 684 
 
 Proof of ownership 685 
 
 Where unnecessary 685 
 
 Intermediate tortious taking 685 
 
 Goods in custodia legis , . 685 
 
 Goods of an adjudged felon 686 
 
 Goods in possession of children 686 
 
 in possession of bailees 686 
 
 in possession of carriers 687 
 
 of deceased jjersons 688
 
 LARCENY. 807 
 
 FAGS 
 
 Proof of goods of lodgers , 689 
 
 of married women 689 
 
 of persons unknown 689 
 
 in the possession of servants 690 
 
 of corporations 690 
 
 in a churcli ........ 692 
 
 Venue 692 
 
 Interpretation of terms. By the 24 & 25 Vict. c. 96, s. 1, " in 
 tlie interpretation of this Act the term ' document of title to goods ' 
 shall include any bill of lading, India warrant, dock warrant, ware- 
 house-keeper's certificate, warrant or order for the delivery or transfer 
 of any goods or valuable thing, bought and sold note, or any other 
 documents used in the ordinary course of business as proof of the 
 possession or control of goods, or authorizing or purporting to autho- 
 rize, either by indorsement or by delivery, the possessor of such docu- 
 ments to transfer or receive any goods thereby represented or therein 
 mentioned or referred to. 
 
 " The term ' document of title to lands ' shall include any deed, 
 map, paper, or parchment, written or printed, or partly written and 
 partly printed, being or containing evidence of the title or any part 
 of the title, to any real estate, or to any interest in or out of any real 
 estate. 
 
 " The term ' valuable security ' shall include any order, exchequer 
 acquittance, or other security whatsoever entitling or evidencing the 
 title of any person or body corporate to any share or interest in any 
 public stock or fund, whether of the United Kingdom, or of Great 
 Britain, or of Ireland, or of any foreign state, or in any fund of any 
 body corporate, company, or society, whether within the United King- 
 dom or in any foreign state or country, or to any deposit in any bank, 
 and shall also include any debenture, deed, bond, bill, note, warrant, 
 order, or other security whatsoever for money or for payment of money, 
 whether of the United Kingdom, or of Great Britain, or of Ireland, 
 or of any foreign state, and any document of title to lands or goods 
 as hereinbefore defined. 
 
 " The term ' property ' shall include every description of real and 
 personal property, money, debts, and legacies, and all deeds and in- 
 struments relating to or evidencing the title or right to any property, 
 or giving a right to recover or receive any money or goods, and shall 
 also include not only such property as shall have been originally in 
 the possession or under the control of any party, but also any property 
 *into or for which the same may have been converted or ex- r^nA-, 
 changed, and anything acquired by such conversion or exchange, L 
 whether immediately or otherwise. 
 
 " For the purpose of this Act the night shall be deemed to com- 
 mence at nine of the clock in the evening of each day, and to con- 
 clude at six of the clock in the morning of the next succeeding day." 
 
 Distinction between grand and petit larceny abolished. By s. 2, 
 *' every larceny, whatever be the value of the property stolen, shall be
 
 808 LARCENY. 
 
 deemed to be of the same nature, and shall be subject to the same 
 incidents in all respects as grand larceny was before the twenty -first 
 day of June, one thousand eight hundred and twenty- seven ; and 
 every court whose power as to the trial of larceny was before that 
 time limited to petit larceny shall have power to try every case of lar- 
 ceny, the punishment of which cannot exceed the punishment here- 
 inafter mentioned for simple larceny, and also to try all accessories to 
 such larceny." 
 
 Bailees fraudulently converting property. By s. 3, " whosoever, 
 being a bailee of any chattel, money, or valuable security, shall 
 fraudulently take or convert the same to his own use or the use of 
 any person other than the owner thereof, although he shall not break 
 bulk or otherwise determine the bailment, shall be guilty of larceny, 
 and may be convicted thereof upon an indictment for larceny ; but 
 this section shall not extend to any offence punishable on summary 
 conviction." 
 
 Punishment for simple larceny. By s. 4, " whosoever shall be 
 convicted of simple larceny, or of any felony hereby made punishable 
 like simple larceny, shall (except in the cases hereinafter otherwise 
 provided for) be liable, at the discretion of the court, to be kept in 
 penal servitude for the term of three [now five] years, or to be im- 
 prisoned for any term not exceeding two years, with or without 
 hard labor, and with or without solitary confinement, and if a male, 
 under the age of sixteen years, with or without a whipping." 
 
 Three larcenies within six months may be charged in one in- 
 dictment. By s. 5, " it shall be lawful to insert several counts in the 
 same indictment against the same person for any number of distinct 
 acts of stealing, not exceeding three, which may have been committed 
 by him against the same person within the space of six months from 
 the first to the last of such acts, and to proceed thereon for all or any 
 of them.i' 
 
 Election. By s. 6, " if upon the trial of any indictment for larceny 
 it shall appear that the property alleged in such indictment to have 
 been stolen at one time was taken at different times, the prosecutor 
 shall not by reason thereof be required to elect upon which taking he 
 will proceed, unless it shall appear that there were more than three 
 takings, or that more than the space of six months elapsed between 
 the first and the last of such takings ; and in either of such last- 
 mentioned cases the prosecutor shall be required to elect to pi'oceed 
 for such number of takings, not exceeding three, as appear to have 
 *fi491 *^ken place within tlie period of six months from the first to 
 -' the last of such takings."' 
 
 * Election is not compulsory between a count for larceny and one for receiving 
 stolen goods. Andrews v. People, 117 111. 195. Election is not compulsory between 
 several counts for larceny unless pressed for by the defendant. People v. lieavey, 4 N. 
 y. Crim. Rep. 1.
 
 LARCENY. 809 
 
 Larceny after a previous conviction for felony. By s. 7, " who- 
 soever shall commit the offence of simple larceny after a previous 
 conviction for felony, whether such conviction shall have taken place 
 upon an indictment or under the provisions of the Act passed in the 
 session held in the eighteenth and nineteenth years of Queen Victoria, 
 chapter one hundred and twenty-six, shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not exceed- 
 ing ten years, and not less than three [now five] years, or to be 
 imprisoned for any term not exceeding two years, with or with- 
 out hard labor, and with or without solitary confinement, and, if a 
 male under the age of sixteen years, with or without whipping."^ 
 
 Larceny after a conviction for misdemeanor. By s. 8, " whoso- 
 ever shall commit the offence of simple larceny, or any offence hereby 
 made punishable like simple larceny, after having been previously con- 
 victed of any indictable misdemeanor punishable under this Act, 
 shall be liable, at the discretion of the court, to be kept in penal servi- 
 tude for any term not exceeding seven years and not less than three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 years, with or without iiard labor, and with or without solitary con- 
 finement, and, if a male under the age of sixteen years, with or without 
 whipping." 
 
 Larceny after two summary convictions. By s. 9, " whosoever 
 shall commit the offence of simple larceny, or any offence hereby made 
 punishable like simple larceny, after having been twice summarily 
 convicted of any of the offences punishable upon summary conviction, 
 under the provisions contained in the Act of the session held in the 
 seventh and eighth years of King George the Fourth, chapter twenty- 
 nine, or the Act of the same session, chapter thirty, or the Act of the 
 ninth year of King George the Fourth, chapter fifty-five, or the Act of 
 the same year, chapter fifty-six, or the Act of the sessions held in the 
 tenth and eleventh years of Queen Victoria, chapter eighty-two, or 
 of the Act of the session held in the eleventh and twelfth years of 
 Queen Victoria, chapter fifty-nine, or in sections three, four, five, and 
 six of the Act of the session held in the fourteenth and fifteenth years 
 of Queen Victoria, chapter ninety- two, or in this Act, or the Act of this 
 session, intituled an Act to consolidate and amend the statute law of 
 England and Ireland relating to malicious injuries to property 
 (whether each of the convictions shall have been in respect of an 
 offence of the same description or not, and whether such convictions 
 or either of them shall have been or shall be before or after the passing 
 of this Act), shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal serv- 
 itude for any term not exceeding seven years, and not less than three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 
 1 In such cases the facts necessary to bring tlie case within the statute must be 
 proved. It cannot be objected that such evidence tends to prove bad character. John- 
 son V. People, 55 N. Y. 512.
 
 810 LARCENY. 
 
 years, with or without hard labor, and with or without solitary con- 
 fiiienicnt, and, if a male under the age of sixteen years, with or with- 
 out whipping." 
 
 Larceny by servant. By s. 67, "whosoever, being a clerk or 
 servant, or being employed for the purpose or in the capacity of a 
 *fi4'^1 *cl^'^^^ ^^ servant, shall steal any chattel, money, or valuable se- 
 -l curity belonging to or in the possession or power of his master 
 or employer, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for any term not exceeding fourteen years, and not less than 
 three [now five] years, or to be imprisoned for any term not exceeding 
 two years, with or without hard labor, and with or without solitary 
 confinement, and, if a male under the age of sixteen years, with 
 or without whipping," 
 
 Larceny by persons in the Queen's service or in the police. By 
 
 s. 69, " whosoever, being employed in the public service of her Ma- 
 jesty, or being a constable or other person employed in the police of" 
 any county, city, borough, district, or place whatsoever, shall steal any 
 chattel, money, or valuable security belonging to or in the possession 
 or power of her Majesty, or intrusted to, or received, or taken into 
 possession by him by virtue of his employment, shall be guilty of 
 felony, and being convicted thereof shall be liable, at the discretion of 
 the court, to be kept in penal servitude for any term not exceeding 
 fourteen years, and not less than three [now five] years, or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labor, and with or without solitary confinement." 
 
 Conviction for larceny on indictment for embezzlement, and vice 
 versa. By s. 72, " if upon the trial of any person indicted for em- 
 bezzlement or fraudulent application or disposition as aforesaid, it 
 shall be proved that he took the property in question in any such 
 manner as to amount in law to larceny, he shall not by reason 
 thereof be entitled to be acquitted, but the jury shall be at liberty to 
 return as their verdict that such person is not guilty of embezzlement, 
 or fraudulent application or disposition, but is guilty of simple lar- 
 ceny, or of larceny as a clerk, servant, or person employed for the 
 purpose or in the capacity of a clerk or servant, or as a person em- 
 ployed in the public service, or in the police, as the case may be ; 
 and thereupon such person shall be liable to be punished in the same 
 manner as if he had been convicted upon an indictment for such lar- 
 ceny ; and if upon the trial of any person indicted for larceny it 
 shall be proved that he took the property in question in any such 
 manner as to amount in law to embezzlement, or fraudulent appli- 
 cation or disposition as aforesaid, he shall not by reason thereof be 
 entitled to be acquitted, but the jury shall be at liberty to return as 
 their verdict that such person is not guilty of larceny, but is guilty 
 I pf embezzlement or fraudulent application or disposition, as the case
 
 LARCENY. 811 
 
 may be, and thereupon such person shall be liable to be punished in 
 the same manner as if he had been convicted upon an indictment for 
 such embezzlement, fraudulent application or disposition; and no per- 
 son so tried for embezzlement, fraudulent application or disposition, 
 or larceny as aforesaid, shall be liable to be afterwards prosecuted for 
 larceny, fraudulent application or disposition, or embezzlement, upon 
 the same facts." 
 
 Venue. By s. 114, "if any person shall have in his possession in 
 any one part of the United Kingdom any chattel, money, valuable 
 security, or other property whatsoever which he shall have stolen or 
 ♦otherwise feloniously taken in any other part of the United r^pj^j^ 
 Kingdom, he may be dealt with, indicted, tried, and punished L 
 for larceny or theft in that part of the United Kingdom where he shall 
 so have such property in the same manner as if he had actually stolen 
 or taken it in that part ; and if any person in any one part of the United 
 Kingdom shall receive or have any chattel, money, valuable security, 
 or other property whatsoever which shall have been stolen or otherwise 
 feloniously taken in any other part of the United Kingdom, such per- 
 son knowing such property to have been stolen or otherwise feloniously 
 taken, he may be dealt with, indicted, tried, and punished for such of- 
 fence in that part of the United Kingdom where he shall so receive or 
 have such property, in the same manner as if it had been originally 
 stolen or taken in that part." 
 
 Larceny of property of partners, etc. By the 7 Geo. 4, c. 64, s. 
 _4, (the 9 Geo. 4, c. 54, s. 28, I.), in order to remove the difficulty of 
 stating the names of all the owners of property in the case of partners 
 and other joint owners, it is eilacted that, " in any indictment or 
 information for any felony or misdemeanor, wherein it shall be requi- 
 site to state the ownership 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 common, 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 misde- 
 meanor, 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 aforesaid ; and the pro- 
 vision shall be construed to extend to all joint-stock companies and 
 trustees." 
 
 Under a statute of the same session, the 7 Geo. 4, c. 46, s. 9, in 
 indictments or informations by or on behalf of joint-stock banking 
 co-partnerships, for stealing or embezzling money, goods, eifects, bills, 
 notes, securities, or other property belonging to them, or for any 
 fraud, forgery, crime, or offence committed against or with intent to 
 injure or defraud such co-partnership, the money, etc., may be stated 
 to be the prooerty of, and the intent may be laid to defraud, any one
 
 812 LARCENY. 
 
 of the public officers of such co-partnership, and the name of any one 
 of their public officers may be used in all indictments or informations,' 
 where it otherwise would be necessary to name the persons forming 
 the company. 
 
 The 7 Geo. 4, c. 46, was amended and continued by the 1 & 2 Vict. 
 0. 96, which was made perpetual by the 5 & 6 Yict. c. 85, and under 
 which a shareholder in a joint-stock banking company may be in- 
 dicted for stealing or embezzling the goods or money of tlie company, 
 it being laid as the property of a public officer of the company, duly 
 appointed and registered under the Acts. As to the other offences by 
 members of joint-stock banks, see 3 & 4 Vict. c. Ill, s. 2, which as 
 to the offences of stealing and embezzling merely is repealed by the 
 Statute Law Revision Act, 1874 (2). 
 
 By the 31 & 32 Vict. c. 116, s. 1, "if any person, being a mem- 
 ber of any co-partnership, or being one of two or more beneficial own- 
 ers of any money, goods, or effects, bills, notes, securities, or other prop- 
 erty, shall steal or embezzle any such money, goods, or effects, bills, 
 *fi4.'"1 ^^^o^"^? or security, or other property of or belonging to any 
 -I such co-partnership, or to such joint beneficial owners, every 
 such person shall be liable to be dealt with, tried, convicted, and pun- 
 ished for the same as if such person had not been or was not a mem- 
 ber of such co-partnership, or one of such beneficial owners." 
 
 Larceny of property of counties, etc. By the 7 Geo. 4, c. 64, s. 
 15, " in any indictment or information for any felony or misdemeanor 
 committed in, upon, or with respect to any bridge, court, gaol, house 
 of correction, infirmary, asylum, or other building, erected or main- 
 tained in whole, or in part, at the expense of any county, riding, or 
 division, or on or witli respect to any goods or chattels whatsoever, 
 provided for at the expense of any county, riding, or division, to be 
 used for making, altering, or repairing any bridge, or any highway at 
 the ends thereof, or any court or other such building, as aforesaid, or 
 to be used in or with any such court or other building, it shall be 
 sufficient to state any such pro])erty, real or personal, to belong to the 
 inhabitants of such county, riding, or division ; and it shall not be 
 necessary to specify the names of any such inhabitants." The 9 Geo. 
 4, c. 54, s. 29 (I,), contains a somewhat similar enactment. 
 
 Larceny of goods for the use of the poor. By the 7 Geo, 4, c. 
 64, s. 16, with respect to the property of parishes, townships, and 
 hamlets, it is enacted, that, " in any indictment or, information for any 
 felony or misdemeanor committed in, upon, or with respect to any 
 workhouse, or poorhouse, or on or with respect to any goods or chat- 
 tels whatsoever, provided for the use of the poor of any parish or par- 
 ishes, township or townships, hamlet or hamlets, place or places, or to 
 be used in any workhouse or poorhouse in or belonging to the same, 
 or by the master or mistress of such workhouse or poorhouse, or by 
 any workmen or servants employed therein, it shall be sufficient to 
 state any such property to belong to the overseers of the poor for the
 
 LARCENY. 813 
 
 time being of such parish or parishes, township or townships, hamlet 
 or hamlets, place or places, and it shall not be necessary to specify the 
 names of all or any of such overseers ; and in any indictment or in- 
 formation for any felony or misdemeanor committed on or with respect 
 to any materials, tools, or implements provided for making, altering, 
 or repairing any highway within the parish, township, hamlet, or plac^e, 
 otherwise than by the trustees or commissioners of any turnpike road, 
 it shall be sufficient to aver that any such things are the property of 
 the surveyor or surveyors of the highways for the time being of such 
 parish, township, hamlet, or place, and it shall not be necessaiy to 
 specify the name or names of any such surveyor or surveyors." 
 
 By the 12 & 13 Vict. c. 103, s. 15, it is provided, that, "in respect 
 of any indictment or other criminal proceeding, every collector or 
 assistant overseer appointed under the authority of any order of the 
 poor law commissioners or the poor law board, shall be deemed and 
 taken to be the servant of the inhabitants of the parish whoso money 
 or other property he shall be charged to have embezzled or stolen, and 
 shall be so described ; and it shall be sufficient to state such money or 
 property to belong to the inhabitants of such parish, without the 
 names of any such inhabitants being specified." 
 
 * Larceny of property of trustees of turnpikes. By the 7 r^p^n 
 Geo. 4, c. 64, s. 1 7, with respect to property under turnpike trusts, •- 
 it is enacted, that, "in any indictment or information for any felony or 
 misdemeanor committed .on or with respect to any house, building, gate, 
 macliine, lamp, board, stone, post, fence, or other thing erected or pro- 
 vided in pursuance of any Act of parliament for making any turn- 
 pike road, or any of the conveniences or appurtenances thereunto re- 
 spectively belonging, or any materials, tools, or implements provided 
 for making, altering, or repairing any such road, it shall be sufficient 
 to state any such property 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 commissioners." 
 
 Larceny of property of commissioners of sewers, etc. By the 
 
 7 Geo. 4, c. 64, s. 18, with respect to property under commissioners of 
 sewers, it is enacted, that " in any indictment or information for any 
 felony or misdemeanor committed in or with respect to any sewer or 
 other matter within or under the view, cognizance, or management of 
 any commissioners of sewers, it shall be sufficient to state any such 
 property to belong to the commissioners of sewers within or under 
 whose view, cognizance, or management, any such thing shall be, and 
 it shall not be necessary to specify the names of any of such commis- 
 sioners." 
 
 Larceny of property of friendly societies, etc. By the Friendly 
 Societies Act, 1<S75, 38 & 39 Vict. c. 60, s. 16, subs. -3, property be- 
 longing to friendly societies vests in the trustees for the time being; 
 and by sect. 21, subs. 1, the trustees or officers authorized by the rules
 
 814 LARCENY. 
 
 thereof, may bring or defend, any action, suit, or other legal proceed- 
 ing in any court whatsoever. 
 
 Larceny of property of loan societies. By 3 & 4 Vict. c. 110, 
 s. 8, all moneys and securities for money, and all chattels whatsoever, 
 belonging to any society, are vested in trustees, who may bring or de- 
 fend any suit, criminal as well as civil, at law or in equity, concerning 
 the property or any claim of such society, and sue and be sued, plead 
 and be impleaded in their proper names as trustees of such society, 
 without any other description, etc. 
 
 Larceny of property of building and industrial societies. By 
 
 37 & 38 Vict. c. 42 (the Building Society Act, 1874), s. 9, every 
 society, upon receiving a certificate of incorporation under this Act, 
 becomes a body corporate by its registered name. Repealed 39 & 40 
 Vict. c. 45, sched. And by 39 & 40 Vict. c. 45 (Industrial and 
 Provident Societies Act, 1876), s. 11, the registration of every 
 society under the Act renders it a body corporate by its registered 
 name. 
 
 Larceny, etc., of property of trades unions. By the 32 & 33 
 Vict. c. 61, the property of trades unions was placed under the protec- 
 tion of the Friendly Societies Acts, but this statute has been repealed 
 except as to things done before the passing of the repealing Act, and 
 the aifairs of trades unions are now regulated by the 34 & 35 Vict, 
 c. 31, s. 8, amended by 39 & 40 Vict. c. 22, s. 3, by which the property 
 of a registered trade union is vested in trustees, and may be stated to 
 be their property in any indictment in their proper names as trustees 
 *fi4.71 **^^ ''^^^^^ trade union without further description. Section 9 
 -■ further provides for the carrying on of a prosecution in case of 
 death or removal from office of a trustee. Section 1 2 provides that no 
 person shall be proceeded against by indictment if a conviction 
 shall have been previously obtained for the same offence under that 
 act. 
 
 Larceny of property of savings banks. The 26 & 27 Vict. c. 87, 
 s. 10, vests the effects, securities, etc., of savings banks in the trustees 
 for the time being, and provides that in all criminal proceedings the 
 property may be laid in them in their proper names without further 
 description. 
 
 Larceny of property of Her Majesty's Customs. By the Cus- 
 toms Laws Consolidation Acts, 39 & 40 Vict. c. 36, s. 29, any 
 moneys, cliattels, or other valuable securities which may be received 
 in tlie service of the customs may be laid as the property of Her 
 
 Majesty. 
 
 Summary Jurisdiction. By the 42 & 43 Vict. c. 49, simple lar- 
 ceny, larceny from the person, larceny as a clerk or servant, and aid-
 
 LARCENY. 815 
 
 ing and abetting the commission of those oifences, may, in the case of 
 young persons consenting and adults pleading guilty, be dealt with 
 summarily, and in the case of an adult consenting, if the value of the 
 property does not exceed 40s., the offence may be dealt with in like 
 manner. 
 
 Definition of larceny. The definitions of larceny to be found in 
 the various books are mostly derived from Bracton, lib. iii. c. 32, p. 
 150, "fu7'tum est tractatio rei alienee fraudulenta, animo furandi, invito 
 illo cujus ilia resfuerit." This is evidently derived from the definition 
 of furfuin given by the Roman law, Inst. lib. iv. tit. 1, s. 1 ; ^'furtum 
 est contractatio fraudulosa lucri faciendi causd vel ipsius rei, vel etiam 
 itSMs ejus possessionisve." The latter, however, is not the definition 
 of a crime, but of a civil trespass, giving rise to the actio furti. The 
 words animo furandi in the former, and lucri cau^d in the latter, have 
 a somewhat similar signification. The corresponding phrase of mod- 
 ern law is " with a felonious intent :" thus Mr. East defines larceny 
 to be "the wrongful or fraudulent taking and carrying away by one 
 person of the mere personal goods of another with a felonious intent 
 to convey them to his (the taker's) own use, and make them his own 
 property, without the consent of the owner."^ 2 East, P. C. 553. In 
 R. V. Holloway, 1 Den. C. C. 370, Parke, B., cited this definition with 
 
 * Wheel. C. C. 165, 536 ; 3 Id. 511. To constitute larceny, an intent on the part of 
 the person taking the property to convert it to his own use is not necessary. People 
 V. Juarez, 28 Cal. 380. In larceny the intent to steal must exist at the time of taking 
 the property, it is not enough that the prisoner have such intent at the time of con- 
 verting it to his own use. Wilson v. People, 39 N. Y. 459. See State v. Coombs, 55 
 Me. 477 ; »State v. Brown, 25 la. 561. Falsely personating the owner of property and 
 thereby obtaining possession with felonious intent is larceny. Commonwealth v. Col- 
 lins, 12 Allen, 181. A person who aids and abets a larceny if near by the thieves at 
 the time thereof, is a participant in the taking and guilty of larceny. Hogsett v. 
 State, 40 Miss. 522. S., induced by the manoeuvres of three fellow-passengers on a 
 railroad car, made a wager with one of them and deposited his stake with P., another 
 of them. The opposite stake proved to be only waste paper, but P. after the discov- 
 ery refused to give up S.'s money ; held that the three confederates were guilty of 
 larceny. Stinson v. People, 43 III. 397. Taking must be without color of right or 
 excuse and with intent to deprive the owner not temporarily but permanently of his 
 property. Fields v. State, 6 Cold. 524. Illuminating gas may be the subject of lar- 
 ceny. Commonwealth v. Shaw, 4 Allen, 308. [State v. Wellman, 7 Crim. Law Mag. 
 257.] Intoxicating liquor though purchased and intended to be sold in violation of 
 law is a subject of larceny. Commonwealth v. Shaw, 4 Allen, 308. A nugget of gold 
 separated from the vein by natural causes, savors of the realty and is not a subject of 
 larceny, until after its removal from the pile of rocks by other causes. State v. Burt, 
 64 N. C. 619. Severing and taking away by one act a growing crop is not a criminal 
 offence. Comfort ?'. Fulton, 39 Barb. 56. Box of matches on counter to be used in 
 lighting segars. Mitch eson v. State, 45 Ala. 27. As to beasts /ercE natiirce, see State 
 V. House, 65 N. C. 315. S. 
 
 Turpentine which has run out of the trees into boxes cut into the tree for the pur- 
 pose of receiving the liquid is the subject of larceny. State r. Moore, 11 Ired. (N. C.) 
 70. Ice when put away for domestic us6 becomes individual property, so as to be 
 the subject of larceny. Ward v. People, 3 Hill, (N. Y.) 395. s. c. 6 Hill, (N. Y.) 
 144 ; but while still on the stream, pond, etc., to remove it is trespass and not larceny. 
 State r. Pottmeyer, 33 Ind. 402 ; Mill River Manf. Co. v. Smith, 34 Conn. 462. There 
 can be no larceny of a dead body, 2 East, P. C. 652; Corven's Case, 12 Coke, 106, 
 Eraser's note. See the Am. Law Times, July, 1871, 127. But it is felony to steal a 
 shroud. Haynes' Case, 12 Coke, 113 ; Wonson v. Sayward, 13 Pick. (Mass.) 402.
 
 816 LARCENY. 
 
 approbation, but seemed to think it did not state quite sufficiently that, 
 the takinj^ must be without any claim of right ; but perhaps that is 
 suificiently expressed by the word felonious. It is erroneous in other 
 respects. Eyre, C. B., in the definition given by him, retained the 
 words lucri causd; thus in R. v. Pear, 2 East, P. C. 685, he says, 
 "larceny is the wrongful taking of goods with intent to spoil the 
 owner of them lucri causcV And Blackstone says, "the taking must 
 be felonious, that is, done animo furandi, or, as the civil law ex])resses 
 it, lucri causd;^' 4 Com. 232. The point aimed at by these two ex- 
 pressions, animo furandi and lucri causd, the meaning of which has 
 been much discussed, seems to be this ; that the goods must be taken 
 into the possession of the thief with the intention of depriving the 
 owner of his property in them. 
 
 It may be remarked here, once for all, that everything in larceny, 
 *ft4Sl *^^^^^ t^^^ kindred offences of embezzlement and obtaining by 
 J false pretences, depends on a clear appreciation of the difference 
 between jjossession and property. Whether or no a thing is in our 
 possession is altogether a question of fact ; but it is nevertheless a 
 question, the decision of which is regulated by the law. The rules 
 laid down on this subject by the law are, as in all such cases they 
 necessarily must be, arbitrary to this extent, namely, that there are 
 cases on both sides of the line in which the application of the rule is 
 unsatisfactory. But this inconvenience is balanced by the advantage 
 of having a settled line. 
 
 Possession, in the sense in which it is used in English law, extends 
 not only to those things of which we have manual prehension, but 
 those which are in our house, on our land, or in the possession of those 
 under our control, as our servants, children, etc., see R. v. Wright, and 
 R. 17. Reid, infra, p. 670. 
 
 Property is the right to the possession, coupled with an ability to 
 exercise that right. Bearing this in mind, we may perhaps safely de- 
 fine larceny as follows : — the wrongful taking possession of the goods 
 of another with intent to deprive the owner of his property in them.^ 
 It is not necessary to add to this definition the words "without any 
 claim of right by the taker ;" as that is excluded by the latter branch 
 of the definition relating to the intent. Nor is -it necessary to say that 
 the taking must be "against the will of the owner," because that is in- 
 cluded in the word " wrongful." 
 
 It will be seen that most of the decided cases accord with this view. 
 Thus it has been held that though in taking possession of the article, 
 the intention of the taker is to destroy it, and that he never contem- 
 plated any acquisition of property himself, it is still larceny, because 
 he intends to deprive the owner of his property. As in R. v. Cabbage, 
 Russ. & Ry. 292, where the prisoner was charged with stealing a horse. 
 He went to the stable, took out the horse, led it to a coal pit," and backed 
 it into the shaft, and this was hold to be larceny. Upon this case it is 
 observed in the report of the criminal laAV commissioners (p. 17), that 
 
 ' Where title remains in the owner it is hvrceny ; where the title passes it is obtain- 
 ing property on false pretences. People v, Rae, (36 Cal. 423.
 
 LARCENY. 817 
 
 where the removal is merely nominal, and the motive is that of injury 
 to the owner, the offence is scarcely distinguishable from that of ma- 
 licious mischief This may sometimes be so, but there is at the same 
 time a very clear distinction between depriving a person of his prop- 
 erty, and injuring his property without depriving him of it. A simi- 
 lar case was that of li. v. Jones, 1 Den. C. C. 193, where a servant, 
 after her discharge, applied at the post office and received her master's 
 letters ; she delivered all but one to her master, and that one she de- 
 stroyed, with a view of suppressing inquiries with reference to her 
 character. This was held to be larceny. 
 
 On the other hand, it is clearly laid down that although the party 
 may wrongfully take possession of the goods, yet unless he intend to 
 deprive the owner of his property therein, this is a trespass only and 
 not larceny ; as in the numerous cases where the evidence clearly 
 shows that the prisoner merely intended to borrow the goods for 
 a short time, and then return them. These cases are collected, infra, 
 p. 672. 
 
 An unauthorized gift by a servant of his master's goods is as much 
 a felony as if he had sold or pawned them. Per Erskine, J., R. v. 
 White," 9 C. & P. 344, 38 E. C. L. 
 
 The distinction between grand and petit larceny was abolished by 
 Hhe 7 & 8 Geo. 4, c. 29, s. 2. See 24 & 25 Vict. c. 96, s. 2, p^^^ 
 supra, p. 641.^ ^ 
 
 Proof of the taking. The following in the definition of a felonious 
 taking given by the criminal law commissioners : " The taking and 
 carrying away are felonious, where the goods are taken against the 
 will of the owner, either in his absence, or in a clandestine man- 
 ner, or where possession is obtained either by force or surprise, or 
 by any trick, device, or frauduleut expedient, the owner not vol- 
 untarily parting with his entire interest in the goods ; and where 
 the taker intends in any such case fraudulently to deprive the owner 
 of the entire interest in the property against his will." 1st. Rep. p. 
 16.^ To these ought to be added cases where goods are obtained by 
 menaces, R. v. McGrath, L. R. 1 C. C. R. 205 ; 39 L. J., M. C. 7 ; 
 R. V. Lovell, 8 Q. B. D. 185 ; 50 L. J., M. C. 91, post, p. 664 ; and 
 as to cases where the possession has been obtained in consequence 
 of a mistake on the part of the prosecutor, and the property has not 
 passed, R. v. Middleton, post, p. 652, L. R. 2 C. C. R. 38 ; 42 L. 
 J., M. C. 73. 
 
 Where goods are once taken with a felonious intent, the offence 
 cannot be purged by a restoration of them to the owner. Thus the 
 prisoner, having robbed the prosecutor of a purse, returned it to him 
 again, saying, " If you value the purse take it, and give me the con- 
 
 ^ Larceny from a dwelling is grand larceny witliout reference to amount stolen. 
 State V. Kennedy, 88 Mo. 341. 
 
 " The prosecution must affirmatively prove tliat the taking was without the consent 
 of the owner, either by direct or circumstantial evidence. McMahon v. State, 1 Tex. 
 App. 102. 
 
 52
 
 818 LARCENY. 
 
 tents," but before the prosecutor could do this the prisoner was appre- 
 hended ; the offence was held to be complete by the first taking. E,. v. 
 Peat, 2 East, P. C. 557 ; see also R. v. Wright, 2 Russ. Cri. 128, 5th 
 ed., and 9 C. & P. 554 (n), 38 E. C. L. ; and R. v. Phetheon, 9 C. & 
 P. 552, 38 E. C. L. See R. v. Trebilcock, infra, p. 674. 
 
 Proof of the taking — what manual taking is required. In order 
 to constitute the offence of larceny, there must be an a(!tual taking 
 possession by the thief, and this is what is meant by saying that every 
 larceny includes a trespass, though, as we shall see presently, the tres- 
 pass is sometimes constructive only. Thus, A. owing money to the 
 prosecutor, the prisoner said he could settle the debt on A.'s behalf, 
 and taking a receipt from his pocket put it on the table, and then 
 took out some silver in his hand. The prosecutor wrote a receipt for 
 the sum mentioned on the stamped paper, and the prisoner took it up 
 and went out of the room. On being asked for the money he said, 
 " It is all right ; " but never paid it. It was held, that this was not a 
 larceny, as the prosecutor never had such a possession as would enable 
 him to maintain trespass. R. v. Smith, 2 Den. C C. 449 ; 21 L. J., 
 M. C. 111. So where the prisoner assigned his goods to trustees for 
 the benefit of his creditors, but before the trustees had taken possession 
 he removed the goods intending to deprive his creditors of them, it 
 was held that he was not guilty of larceny. R. v. Pratt, 1 Dears. C 
 C. 360; R. V. Smith, 2 Den. C. C. R. 449; 31 L. J., M. C. 111. 
 The change of possession need not be by the very hand of the party 
 accused. For if he fraudulently procure another, who is himself inno- 
 cent of any felonious intent, to take the goods for him, it will be the 
 same as if he had taken them himself; as if one procure an infant, 
 within the age of discretion, to steal the goods for him. 2 East, P. 
 C. 555 ; 1 Russ. on Cri. 160, 5th ed. See also R. v. Williams, 1 C. 
 & K. 195, 47 E. C. L.^ 
 
 The least removing of the thing taken from the place where it was 
 *fi ^01 *before is sufficient ; indeed the words " take and carry away,'' 
 -I ordinarily used in an indictment for larceny, seem to mean no 
 more than the word " take " alone ; thus a guest, who had taken the 
 sheets from his bed with an intent to steal them, and carried them into 
 the hall, where he was apprehended, was adjudged guilty of larceny.^ 
 Hawk. P. C. b. 1, c. 35, s. 25 ; 3 Inst. 108 ; 2 East, P. C. 555 ; 1 
 Leach, 323 ; see also R. v. Sam ways, 1 Dears. C. C. R. 371. So where 
 a person takes a horse in a close, with intent to steal him, and is appre- 
 hended before he can get him out of the close, 3 Inst. 109 ; see further 
 
 ^ But evidence that cotton was brought to defendant's house, and that he took it to 
 market and sold it, will not support an indictment for larceny, without testimony that 
 he had a share in the first taking. Hill v. State, 78 Ala. 1. 
 
 " Case of Scott et al., 5 Eog. Kec. 169. If the goods are moved and the thief has 
 possession for only an instant it is sufficient. State v. Jackson, 65 N. C. 305. Where 
 pocket is torn and book falls out, there is a sufficient caption and asportation. Com- 
 monwealth V. Luchis, 99 Mass. 431. The mere upsetting of a barrel of turpentine, 
 although done with felonious intent, is not such an asportation as will constitute lar- 
 ceny. State V. Jones, 65 N. C. 395. S. Williams v. State, 63 Miss. 58.
 
 LARCENY. 819 
 
 as to cattle, R. v. Williams, 1 Moo. C. C. 107, and see ante, p. 389. 
 The prisoner got into a wagon, and taking a parcel of goods which lay 
 in the forepart, had removed it to near the tail of the wagon, when he 
 was apprehended. The twelve Judges were unanimously of opinion, 
 that as the prisoner had reuKjved the property from the spot where it 
 was originally placed, with an intent to steal, it was a sufficient taking 
 and carrying awaij to constitute the offence.' R. v. Costlet, 1 
 Leach, 230 ; 2 East, P. C. 556. But where the prisoner had set up a 
 parcel containing linen, which was lying lengthways in a wagon, on 
 one end, for tiie greater convenience of taking the linen out, and cut 
 the wrapper all tlie way down for that purpose, but was apprehended 
 before he had taken anything, all the judges agreed that this was no 
 larceny, although the intention to steal was manifest. For a carrying 
 away, in order to constitute felony, must be a removal of the goods 
 from the place where they were, and the felon must, for the instant 
 at least, have the entire and absolute possession of them. 11. v. 
 Cherry, 2 East, P. C. 556 ; 1 Leach, 236 (n). The following case, 
 though nearly resembling the latter, is distinguished by the circum- 
 stance that every part of the property was removed. The prisoner 
 sitting on a coach-box, took hold of the upper part of a bag which 
 was in the front boot, and lifted it up from the bottom of the boot, 
 on which it rested. He handed the upper part of the bag to a person 
 who stood beside the wheel, and both liolding it endeavored to pull 
 it out, but were prevented by the guard. The prisoner being found 
 guilty, the judges, on a case reserved, were of oi^inion that the con- 
 viction was right, thinking that there was a complete asporiavit of 
 the bag. R. v. Walsh, 1 Moo. C C 14. The prisoner was indicted 
 for robbing the prosecutrix of a diamond ear-ring. It appeared that 
 as she was coming out of the opera-house the prisoner snatched at 
 her ear-ring, and tore it from her ear, which bled, and she was much 
 hurt. The ear-ring fell into her hair, where it was found on her 
 return home. On a case reserved, the judges were of opinion that 
 this was a sufficient taking to constitute robbery ; it being in the 
 possession of the prisoner for a moment, separated from the owner's 
 person, was sufficient, though he could not retain it, but probably 
 lost it again the same instant that it was taken. R. v. Lapier, 2 East, 
 P. C. 557, 708 ; 1 Leach, 320. Where a letter carrier did not deliver 
 a letter sorted to him for delivery, nor return it in the pouch with 
 the other undelivered letters upon his return to the office as it was 
 his duty to do, but kept it in his pocket, the jury found that he had 
 detained the letter with intent to steal it, and it was held that there 
 was a sufficient taking to constitute a larceny. R. v. Poynton, L. & 
 C. 247 ; 32 L. J., M. C. 29. Where a servant animo furandi took 
 his master's hay from his stable, and put it into his master's wagon, 
 it was held to be larceny. R. v. Gruncell, 9 C. & P. 365, 38 E. C. L. 
 
 » State 1'. Wilson, 1 Coxe, 441. S. 
 
 Asportation is a removal simply. The thing taken need not be taken out of the 
 room. State v- Iliggins, 88 Mo. 354. In Texas proof of ast)ortation is not essential 
 to support an indictment for larceny. Doss v. State, 21 Tex. App. 505.
 
 820 LARCENY. 
 
 There must, however, be a possession by the party cliarged, however 
 *fif^n *temporary.^ The j)risoner stopped the proseeutor as he was 
 J carrying a feather-bed on his shoulders, and told him to lay it 
 down, or he would shoot him. The prosecutor laid the bed down ; 
 but before the prisoner could take it up he was ap})rehendcd. The 
 judges were of opinion that the offence was not completed. 11. v. Far- 
 rel," 2 East, P. C. 557. 
 
 There must be a severance of the goods from the possession of the 
 owner. The prisoner took a purse out of the pocket of the owner, 
 but the purse being tied to a bunch of keys, and the keys remaining 
 in his pocket, and the party being apprehended while they remained 
 in his pocket, it was held no larceny, on the ground that the owner 
 still remained in possession of his purse ; and that there was no 
 asportavit R. v. Wilkinson, 1 Hale, P. C. 508. So where goods in 
 a shop were tied to a string, which was fastened to one end of the 
 bottom of the counter, and the prisoner took up the goods and carried 
 them towards the door as far as the string would permit, and was 
 then stopped. Eyre, B., ruled that there was no severance, and con- 
 sequently no felony.^ Anon., cited in R. v. Cherry, 2 East, P. C. 556; 
 1 Leach, 321 (n). 
 
 The prisoner was indicted for stealing five thousand cubic feet of 
 gas. The gas company had contracted to supply him with gas to be 
 paid for by meter. The gas was received from the company's main 
 into an entrance pipe belonging to the prisoner, and passed through 
 the meter which the prisoner had hired of the company into another 
 pipe, the property of the prisoner, called the exit pipe, which fed the 
 burners. The prisoner fraudulently, by fixing a pipe connecting the 
 entrance and exit pipe, made a passage through which the gas rose 
 to the burners without passing through the meter, which conse- 
 quently did not show all the gas consumed. The jury found that the 
 prisoner had not by contract any interest in or control over the gas 
 until it passed the meter. It was held, that the prisoner, by open- 
 ing the stop-cock of the connecting pipe, and letting the gas from 
 out of the entrance-pipe into it, sufficiently secured a jjortion of the 
 gas to constitute an asportavit, and that he Avas guilty of larceny 
 of the gas. R. v. White, 1 Dears, C. C. R. 203 ; 22 L. J., M. C. 
 123. The workmen of a colliery were allowed to take water from 
 the taps of a pipe through which water was supplied on payment of 
 a fixed price ; it was held that the water thus stored could be the 
 subject of larceny at common law, and that any one taking it un- 
 lawfully might be convicted of larceny. Ferens v. O'Brien, 11 Q. B . 
 D. 21 ; 52 L. J., M. C. 70. 
 
 Proof of taking — possession obtained by mistake. The proof 
 that the goods were taken with a felonious intent may be rebutted, by 
 showing that the party charged with the larceny took them by mis- 
 take. Thus if the sheep of A. strayed from his flock into that of B., 
 and the latter by mistake drives them with his own flock, or shears 
 
 1 Kemp V. State, 13 Hump. 39. S. * PhiUips' Case, 4 Kog. Rec. 117 S.
 
 LARCENY. 821 
 
 them, that is not felony ; but if he knows the sheep to be another's, 
 and marks them with his own mark, it is said that would be evidence 
 of a felony. 1 Hale, P. C 507. Sed qu. And where the prisoner 
 by mistake drove away with his flock of sheep one of the prosecutor's 
 lambs, and afterwards finding out that he had the lamb, imme- 
 diately sold it as his own : it was held, that as the original taking 
 was not rightful, but was an act of trespass, the subsequent appro- 
 priation was larceny. R. v. Riley, 1 Dears. C. C. R. 149 ; 22 L. J., 
 *M. C. 48. So if he appears desirous of concealing the prop- ^H.p^•9 
 erty, or of preventing the inspection of it by the owner, or by ^ 
 any other who might make the discovery, or if, being asked, he deny 
 the having them, although the knowledge be proved ; these likewise 
 are circumstances tending to show the felonious intent. 2 East, P. C. 
 661. 
 
 But there is a distinction between things taken by mistake, and 
 things delivered by mistake. In the case of tilings delivered by mktake 
 one important circumstance to be considered is whether at the mo- 
 ment of delivery the prisoner had an animus furandi or not. If he 
 had previously intended to procure the delivery to himself, then the 
 case would fall under the class to be presently considered, where the 
 question is whether the possession only is obtained by the fraud, or 
 whether the property has passed : if the property has passed, whether 
 in consequence of the fraud or not, no subsequent appropriation 
 of the goods will amount to larceny, so long as the lawful possession 
 continues. R. v. Mucklow, 1 Moo. C. C. 1 60 ; R. v. Davis, 25 L. J., 
 M. C. 91. But there is another class of cases, viz., where the pris- 
 oner had not previously intended to procure the delivery, and the 
 prosecutor by some mistake delivers the goods to the prisoner, who, 
 at the moment of delivery, has an animus furandi ; in that case it 
 has been held that the property in goods has not passed to the pris- 
 oner, but still remains in the prosecutor, and the prisoner receiving 
 them animo furandi is guilty of larceny. In R. v. Middleton, L. R. 2 
 C. C. 38 ; 42 L. J., M. C. 73, the prisoner was a depositor in a post- 
 office savings bank to the amount of eleven shillings. He gave notice 
 to withdraw, and a warrant for the amount was duly sent to the 
 prisoner, and a letter of advice to the post-office to pay the amount 
 to the prisoner. When the prisoner delivered his warrant to the 
 clerk at the post-office, the clerk by mistake referred to another 
 letter of advice for 8^. 16.9. 10c/., and ])laced that amount upon the 
 counter. The clerk entered the amount paid in the prisoner's 
 deposit book, and stamped it, and the prisoner took up the money 
 and went away. The jury found that the prisoner had the animus 
 furandi at the moment of taking the money from the counter, and 
 that he knew the money to be the money of the Post- Master General 
 when he took it up. Seven of the judges out of fifteen considered 
 that the test of larceny in this case was whether the property had in 
 fact passed or not, and not whether it was the intention of the pros- 
 ecutor to pass it. If, they said, a man obtains a sale and delivery to 
 himself by fraud, the property passes to him, and he cannot commit
 
 822 LARCENY. 
 
 larceny of it. (The vendor may have a right to rescind the contract 
 when the fraud is discovered, but in the meantime the property has 
 passed.) But if things are delivered by mistake no property passes, 
 and larceny may be committed by the person receiving such property. 
 (If a merchant sells six sacks of beans, and by mistake delivered six 
 sacks of coifee, larceny of the coffee may be committed.) They held 
 that, as a matter of fact, a mistake had been committed, and as a 
 matter of law that no property passed, and the prisoner could com- 
 mit larceny of the proj^erty so delivered to him by mistake. Four 
 of the judges regarded the case from an entirely different view. They 
 thought that larceny was a crime of a peculiarly grave character, and 
 that what gave it that grave character was that the act was done 
 invito domino. By intending the property to pass, and by delivering 
 it with that intention, a prosecutor by his own act places the prisoner 
 *fi'"'^1 *^^ ^ position different from that in which the law supposes 
 J him to be when ho does an act invito domino. If the prisoner 
 by his own fraud has induced the prosecutor to part with the posses- 
 sion of property, that is another matter ; but where the prisoner is 
 acting honestly, and the prosecutor by his own act alone puts the 
 goods in the way of the prisoner, then, Avhatever else he may be guilty 
 of, he is not guilty of the very grave offence of larceny They held 
 that as a matter of fact the prosecutor intended to pass the property 
 to the prisoner, and delivered it to him with that intention, and there- 
 fore as a matter of law he could not commit larceny of it. Tlie fact 
 of the intention of the prosecutor having failed, and the property not 
 having passed in laAV, was immaterial. One learned judge thought 
 as a matter of fact that even the possession had never been parted 
 with, and three learned judges decided the case upon an entirely dis- 
 tinct point. See post, p. 662. The result is that the question is 
 hardly yet decided whether, there being no fraud up to the moment of 
 delivery, larceny can be committed with respect to goods delivered by 
 the prosecutor to the prisoner under a mistake as to the identity of the 
 goods delivered or the identity of the prisoner. 
 
 In the course of the judgment of the majority, it is said : " We 
 admit that the case is undistinguishable from the one supposed in the 
 argument of a person handing to a cabman a sovereign by mistake for a 
 shilling ; but after carefully weighing the opinions to the contrary we 
 are decidedly of opinion tluit the property in the sovereign would not 
 vest in the cabman, and that the question Avhether the cabman Avas 
 guilty of larceny or not would depend upon this, Avhether at the time 
 he took the sovereign he Avas aAA^are of the mistake and had then the 
 guilty intent, the animus furandi." 
 
 In a case of R. v. Jacobs, reported in 12 Cox, C. C. 151, Mr. Ser- 
 jeant Cox seems to have pre\nously ruled the contrary, Avhere a pur- 
 chaser gave by mistake a half-sovereign for a sixpence. 
 
 A somewhat similar case to the abo\^e is that of R. v. Bramley, 
 L. & C. 21, post, p. 659. In that case the prosecutor's clerk, acting 
 Avith full authority, allowed the prisoner to make off AA'ith a cart-load 
 of coal by a mistake, occasioned, no doubt, by the fraud of the prisoner,
 
 LARCENY. 823 
 
 in covering the coal with slack, but such a mistake as prevented the 
 property in the coal from passing, and the prisoner was held rightly 
 convicted of larceny. 
 
 Proof of the taking — possession obtained by fraud at the time 
 of taking — property not parted with. It is clear that if the pos- 
 session of goods be obtained by fraud, this is a taking possession of 
 the goods so as to constitute larceny unless the property be also parted 
 with, in which case there is no larceny. See infra, p. 655. Assuming, 
 therefore, that the prosecutor has no intention to, and does not, in fact, 
 part with, his property, the cases of possession obtained by fraud turn 
 upon the intention of the prisoner at the time that he obtained posses- 
 sion. Formerly, if his intention was originally fraudulent, then it 
 was larceny ; if it was originally innocent, then he was merely bailee, 
 and a subsequent fraudulent appropriation was not necessarily larceny.^ 
 Now, however, inasmuch as every fraudulent appropriation by a 
 bailee is, in consequence of the provisions of the 24 & 25 Vict. c. 
 100, s. 3, supra, p. 641, a larceny, and the prisoner in this case 
 would be, at least, a bailee, the distinction is of less importance ; but 
 it is not desirable to lose sight entirely of the decisions on the point, 
 *fl^41 **'^® principal of which are here given. Thus, where the pris- 
 ^ oner hired a mare for a day to go to L., and said he should re- 
 turn the same evening, and gave a false reference. In the afternoon 
 of the same day he sold the mare in Smithfield ; this was held to be 
 larceny. R. v. Pear, 2 East, P. C. 685; Lea. 212. A postboy 
 applied to the prosecutor, a livery -stable keeper, for a horse, in the 
 name of Mr. Ely, saying that there was a chaise going to Barnet, and 
 that Mr. Ely wanted a horse for his servant to accompany the chaise, 
 and return with it. The horse was delivered by the prosecutor's ser- 
 vant to the prisoner, who mounted him, and on leaving the yard, said 
 he was going no further than Barnet. He only proceeded a short way 
 on the road to Barnet, and on the same day sold the horse in Good- 
 man's fields for a guinea and a half, including saddle and bridle. The 
 court observed that the judges, in R. v. Pear, had determined, that if 
 a person, at the time he obtained another's property, meant to convert 
 
 ^ When a party fraudulently and with intent to steal, obtains possession of a chattel 
 with the consent and by the delivery of the owner, under pretence of borrowing, and 
 converts the chattel to his own use, lie is guilty of larceny. Starker v. Commonwealth, 
 7 Leigh, 752 ; White v. State, 11 Tex. 769. When one obtains possession of goods by 
 false representation, intending to convert them to his own use, and afterwards does 
 convert them, entirely or partially, the owner not having parted with the right of 
 property, it is larceny. State v. Lindenthall, 5 Eich. 237 ; Commonwealth v. Wilde, 
 5 Gray, 83. When a bank bill is delivered to a party to procure change, and he 
 appropriates it, it is larceny ; and it is no defence that the owner of the bill owed 
 liim a certain sum, wliich he intended to pay him out of the proceeds of that particu- 
 lar bill. Farrell v. People, 16 111. 506. The prisoner asked a girl to lend him a 
 small amount of money ; she thereupon handed him a larger amount to count in her 
 presence ; he refused to return her any and Hed with the whole ; such a conversion 
 animo furandi would be larceny. Commonwealth v. O'Malley, 97 Mass. 584. The 
 fact that one who borrows a horse with intent to steal it, afterwards changes his mind 
 and returns it, does not purge the offence of larceny. State ?'. Scott, 64 N. C. 586. S. 
 
 The fraudulent conversion of the proceeds of a loan is not larceny. People v. Cru- 
 ger, 4 N. Y. Crlm. K«p. 452.
 
 824 LARCENY. 
 
 it to his own use, it was felony : that there was a distinction, how- 
 ever, to be observed in this case ; for if they thought that the prisoner, 
 at the time of hiring the horse for the purpose of going to Barnet, 
 really intended to go there, but finding himself in possession of the 
 horse, afterwards determined to convert it to his own use, instead of 
 proceeding to the place, it would not amount to a felonious taking. 
 R. V. Charlwood, 2 East, P. C. 689 ; 1 Leach, 409. Major Semple's 
 case was also decided upon the point of the prisoner's intention. Under 
 the name of Major Harrold, he had been in the habit of hiring car- 
 riages from the prosecutor, a coachmaker, and on the 1st of Sept., 1786, 
 he hired the chaise in question, saying, he should want it for three weeks 
 or a month, as he was going a tour round the north. It was agreed, 
 that he should pay at the rate of 5s. a day during that time, and a 
 price of fifty guineas was talked about, in case he should purchase it 
 on his return to London, which was suggested by the prisoner, but no 
 agreement took place as to the purchase. A few days afterwards the 
 prisoner took the chaise with his own horses from London to Ux- 
 bridge, where he ordered a pair of horses, went to Bulstrode, returned 
 to Uxbridge, and got fresh horse* Where he afterwards went did 
 not appear. He was apprehended a year afterwards on another 
 charge. Being indicted for stealing the chaise, it was argued for him, 
 that he had obtained the chaise under a contract which was not proved 
 to be broken, and that this distinguished it from R. v. Pear, supra, 
 and R. v. Aickles, post ; that the chaise was hired generally and not 
 to go to any particular place ; that he had therefore a legal possession, 
 and that the act was a tortious conversion, and not a felony. It was 
 also argued, that there was no evidence of a tortious conversion ; for 
 non constat, that the prisoner had disposed of the chaise. The court, 
 however, said, that it was now settled, that the question of intention was 
 for the jury, and if they were satisfied that the original taking of the 
 chaise was with a felonious intent, and the hiring a mere pretence to 
 give eifect to that design, without intention to restore or pay for it, 
 it would fall precisely within R. v. Pear, and the other decisions, and 
 the taking would amount to felony. R. v. Semple, 2 East, P. C. 691 ; 
 1 Leach, 420. 
 
 The prisoner, J. H. Aickles, was indicted for stealing a bill of ex- 
 change, the property of S. Edwards. The prosecutor wanting the 
 bill discounted, the prisoner, who was a stranger to him, called at his 
 lodgings and left his address, in consequence of which, Edwards called 
 on him, and the prisoner informed him that he was in the discounting 
 *fi'^1 *line. Three weeks afterwards the prosecutor sent his clerk to 
 -■ the prisoner, to know whether he could discount the bill in 
 question. The prisoner went with the clerk to the acceptor's house, 
 where he agreed with the prosecutor to discount the bill on certain 
 terms. After some conversation the prisoner said that " if Edwards 
 would go with him to Pulteney Street, he should have the cash." 
 Edwards replied, that his clerk should attend him, and pay him the 
 25s. and the discount on receiving the money. On his departure, Ed- 
 wards whispered to his clerk not to leave the prisoner without receiv-
 
 LARCENY. 825 
 
 ing the money, and not to lose sight of him. The clerk went with the 
 prisoner to his lodgings, in Pulteney Street, where the prisoner showed 
 him into a room, and desired him to wait, saying he should be back 
 again in a quarter of an liour. The clerk, however, followed him down 
 Pulteney Street, but, in turning a corner, missed him. The prosecutor 
 and his clerk waited at the prisoner's lodgings three days and nights 
 in vain. Being apprehended at another place, he expressed his sorrow, 
 and promised to return the bill. The bill was seen in the hands of a 
 person who received a subpoena duces tecum, but he did not appear, and 
 it was not produced. It was objected, 1st, that the bill ought to be 
 produced ; and, 2ndly, that the facts, if proved, did not amount to 
 felony. It was left to the jury to consider whether the prisoner had a 
 preconcerted design to get the bill into his possession, with intent to 
 steal it ; and, next, whether the prosecutor intended to part witli the 
 bill to the prisoner, without having the money first paid. As to this 
 point, see infra. Upon the first point the jury found in the affirma- 
 tive, and on the second, in the negative, and they found the prisoner 
 guilty. Upon a reference to the judges, they held the conviction to 
 be proper as against both objections. R. v. Aickles, 2 East, P. C 675; 
 1 Leach, 294. As to the production of a chattel, see R. v. Francis, 
 ante, p. 2. 
 
 The following observations are made by Mr. East on this case : — 
 " From the whole transaction, it appeared that Ed^^'ards never gave 
 credit to the prisoner. It is true that he put the bill into his hands, 
 after they had agreed upon the terms upon wliich it was to be dis- 
 counted, that by showing it to the acceptor he might satisfy him- 
 self that it was a genuine acceptance. But besides, tliat this was 
 an equivocal act of delivery in itself, it seems sufficiently explained 
 by the subsequent acts ; for Edwards, or his clerk, by his direction 
 continued with the prisoner until he ran away, for the very reason, 
 because they would not trust him with the bill." 2 East, P. C. 677. 
 
 Proof of the taking — possession obtained by fraud — property 
 as well as possession parted with. In the preceding lieading the 
 cases where the prosecutor had no intention to and did not in fact part 
 with the property were considered with respect to the intention of the 
 prisoner ; but sometimes, though there is no doubt of the intention of 
 the prisoner to steal, yet the intention of the prosecutor to part with 
 the property, or the fact of his having effectually done so, is the ques- 
 tion of dispute. It must be borne in mind that if the owner of the 
 goods part with the property as well as the possession, the offence is 
 not larceny, but the decisions u])on this point are in some cases scarcely 
 to be reconciled. In some of the earlier cases especially, the distinc- 
 tion between what was the intention of the prisoner and what was 
 the intention of the prosecutor docs not appear to have been clearly 
 maintained. However fraudulent the prisoner's intention may have 
 *been from the first, if the owner deliberately intends to part r^nno 
 with his property, and completely carries out that intention, L 
 there can be no larceny. If he intends to part with the property in
 
 826 LARCENY. 
 
 the goods but it docs not pass in law, his intention to pass it is imma- 
 terial, and the prisoner can commit larceny of tlie property wliich still 
 remains in the prosecutor. R. th Middleton, ante, p. 652. The pris- 
 oner was indicted for stealing two silver cream-ewers from the prose- 
 cutor, a silversmith. He was formerly servant to a gentleman, who 
 dealt with the prosecutor, and, some time after he had left him, he 
 called at the prosecutor's shop, and said that his master (meaning the 
 gentleman whose service he had Icl't) wanted some silver cream-ewers, 
 and desired the prosecutor to give him one, and to put it down to his 
 master's account. The prosecutor gave him two ewers, in order that 
 his master might select the one he liked best. The prisoner took both, 
 sold them, and absconded. At the trial the prosecutor swore that he 
 did not charge the master (his customer) with the cream-ewers, nor did 
 he intend to charge him with either until he had first ascertained which 
 of them he had selected. It was objected for the prisoner, tliat this 
 amounted merely to obtaining goods under false pretences ; but Ba^dey, 
 J., held, that as the prosecutor intended to part with the possession 
 only, and not with the right of property, the offence was larceny, 
 but that if he had sent only one cream-ewer, and had charged the 
 customer with it, the offence would have been otherwise. R. v. 
 Davenport, Newcastle Spring Assizes, 1826. 1 Archbold's Peel's 
 Acts, 5. 
 
 The following cases are those in which the prosecutor has expected 
 to be paid for the goods parted with at the time of delivery, and has 
 therefore not completely parted with his property in them. The pris- 
 oner havino; bargained for some oxen, of which he ao;reed to become 
 the purchaser, went to the place where they were in the care of a boy, 
 took them away, and drove them off. By the custom of the trade, the 
 oxen ought not to have been taken away till the purchase-money was 
 paid. Garrow, B., left it to the jury to say, whether, though the 
 beasts had been delivered to the prisoner under a contract, they 
 thought he originally got possession of them without intending to 
 pay for them, making the bargain the pretext for obtaining tliem for 
 the purpose of stealing them. The jury having found in the affirma- 
 tive, the judges, in a case reserved, were unanimously of opinion that 
 the offence amounted to felony. R. v. Gilbert, Gow,*N. P. C. 225 (w); 
 1 Moody, C. C. 185. In this case it would appear that the prosecutor 
 did not consent to part with the oxen except upon the terms that the 
 money for them should be paid at the time ; and see R. v. Aickles, 
 supra. The prisoner called at the shop of the prosecutor, and selected 
 a quantity of trinkets, desiring they might be sent the next day to the 
 inn where he lodged. An invoice was made out and the prosecutor 
 next day carried the articles to the inn. He was prevailed upon by 
 the prisoner to leave them there, under a promise that he should be 
 paid for them by a friend that evening. The prisoner and the prose- 
 cutor desired they might be taken care of at the inn, and the prose- 
 cutor said he considered the goods to be sold if he got his cash, but not 
 before. Half an hour afterwards the prisoner returned, and took the 
 articles away. There were other circumstances showing a fraudulent
 
 LARCENY. 827 
 
 intent, and the judge directed the jury, that if they were satisfied that 
 the prisoner when he first called on the prosecutor had no intention 
 of buying and paying for the goods, but gave the order for the purpose 
 *of getting them out of his possession, and afterwards clandes- r^nnj 
 tinely removing and converting them to his own use, they should •- 
 find him guilty, which they did ; and the judges, on a case reserved, 
 held tlie direction and conviction right. R. v. Campbell, 1 Moody, C 
 C. 179. This case was soon afterwards followed by another, to the 
 same effect. The prisoner bargained for four casks of butter, to be 
 paid for on delivery, and was told he could not have them on any 
 other terms. The prosecutor's clerk at last consented that the pris- 
 oner should take away the goods, on the express condition that they 
 should be paid for at the door of his house. The prisoner never took 
 the goods to his house, but lodged them elsewhere. The prisoner was 
 indicted for stealing the goods. The jury found that he had no in- 
 tention to buy the goods, but to get them by fraud from the owner. 
 A case being reserved, the judges were unanimously of opinion that 
 the felony was complete, and the conviction good, the jury having 
 found that the prisoner never meant to buy, but to defraud the owner.* 
 R. V. Piatt, 1 Moody, C. C. 250. So where the prisoner, bargaining 
 with the prosecutor for some waistcoats, agreed to pay a certain price 
 for them, but upon their being put into his gig drove off without 
 paying for them ; and the jury found that " the waistcoats were parted 
 with conditionally that the money was to be jjaid at the time, and that 
 the prisoner took them with a felonious intent ; " it was held to be 
 larceny. R. v. Cohen, 2 Den. C. C. R. 249. See also R. v. Morgan, 
 1 Dears. C. C. R. 395 ; R. v. Slowly, 12 Cox, C. C. 269 ; R. v. Bram- 
 ley, L. & C. 21, post, p. 659. 
 
 The prisoner went into a shop, and asked a boy to give him change 
 for half-a-crown ; the boy gave him two shillings and six penny- 
 worth of copper. The prisoner held out half-a-crown, which the boy 
 caught hold of by the edge, but did not get it. The prisoner then 
 ran away. Park, J., held this to be a larceny of the 2s. and the 
 coppers ; but said, if the prisoner had been charged only Avith steal- 
 ing the half-crown, he should have had great doubt. R. v. Williams, 
 6 C. & P. 390, 25 E. C. L. 
 
 On an indictment for stealing a receipt, it appeared that a landlord 
 went to his tenant (who had removed all his goods) to demand his 
 rent, amounting to 12/. 10s., taking with him a receipt, ready written 
 and signed, the tenant gave him 2L, and asked to look at the receipt. 
 On its being handed to him he refused to return it, or to pay the re- 
 mainder of the rent. The landlord, at the time he gave the prisoner 
 the receipt, thought the prisoner was going to pay him the rent, and 
 would not have parted with the receipt unless he had been paid all 
 the rent ; but when he put the receipt into the prisoner's hands, he 
 never expected to have it again, and did not want it again, but wanted 
 his rent paid. Coleridge, J., held that it was a larceny of the receipt, 
 
 ^ Valentine's Case, 4 Rog. Eec. 33 ; Bowen's Case, Id. 46 ; Blunt v. Commonwealth, 
 
 4 Leigh, 689. S.
 
 828 LARCENY. 
 
 and that the fact of the prisoner paying the 21. made no difference. R. 
 V. Rodway, 9 C. & P. 784, 38 E. C. L. 
 
 Where a lady gave a sovereign to the prisoner in order that he might 
 obtain for her a railway ticket, and he ran away with the money, and 
 the jury found that the prisoner had placed himself near the pay place 
 for the purpose of being intrusted with money to get tickets, and of 
 converting the money to his own use, it was held that he was rightly 
 convicted of larceny. R. v. Thompson, L. & C. 225 ; 32 L. J., M. 
 C. 58. 
 
 The prisoner went with another man into a shop and asked for 
 a pennyworth of sweetmeats. He put down a florin which the 
 *r'"'ST *shopkeeper put into the money -drawer. She then placed on 
 -J the counter a shilling, a sixpence, and five pence. The prisoner 
 took up the change. The other man said, " You need not have 
 changed," and put down a penny, Avhich the prisoner took up. The 
 prisoner then put down a sixpence and six pennies, and asked for a 
 shilling. The shopkeeper put a shilling on the counter, wdien the pris- 
 oner said, "You may as well give me the two-shilling piece and take 
 it all." The shopkeeper then put the florin she had received from the 
 prisoner upon the counter, expecting she was to receive two shillings 
 c>f the prisoner's money in exchange for it. The prisoner took the 
 florin, and the shopkeeper took the shilling, the sixpence, and the six 
 pennies, and was in the act of putting them into the money-drawer 
 when she discovered the fraud ; but before she had time to speak the 
 prisoner left the shop. The shopkeeper said that she did not intend 
 parting with the florin without getting full change for it. The prisoner 
 was convicted of larceny, and the Court held, confirming the convic- 
 tion, that the transaction was not complete, and that the property in 
 the florin had not passed to the prisoner. R. v. McKale, 37 L. J., M. 
 C. 97 ; L. R., 1 C. C. R. 125. See also R. v. Twist, 12 Cox, C. C. 
 R. 509 ; R. V. Hollis, 12 Q. B. D. 25. 
 
 In two recent cases the prisoner was charged with stealing nineteen 
 shillings. In both the prosecutor gave the prisoner a sovereign, 
 under the expectation that nineteen shillings change was to be given. 
 In the first case the chairman of Quarter Sessions amended the indict- 
 ment to one for stealing a sovereign, and directed the jury that if they 
 believed that the prisoner at the moment of obtaining the sovereign 
 intended by a trick feloniously to deprive the prosecutor of the sov- 
 ereign they were to find a verdict of guilty, and it was held that the 
 direction was right. R. v. Gumble, 42 L. J., M. C. 7 ; L. R. 2 C. C. 
 R. 1. In the second case the indictment was not amended, and there- 
 fore the prisoner could not be convicted, as she had never taken nine- 
 teen shillings at all, but the majority of the judges thought that she 
 might have been convicted on an indictment for stealing one sovereign 
 if the issue had been properly left to the jury. R. v. Bird, 12 Cox, C. 
 C. 257, C. C. R.; 42 L. J., M. C. 44. 
 
 So also where money has been merely deposited by the prosecutor 
 with the prisoner, the prisoner may commit larceny of it. Thus, ob- 
 taining money or goods by ring-dropping, etc., has been held to be
 
 LARCENY. 829 
 
 larceny. The prisoner, with some accomplices, being in company 
 with the prosecutor, pretended to find a vahiable ring wrapped np in 
 a paper, appearing to be a jewelkn-'s receipt " for a rich brilliant 
 diamond ring." They oifered to share the value of it with the prose- 
 cutor, if he would deposit some money and his watch as a security. 
 The prosecutor, having accordingly laid down his watch and money 
 on a table, was beckoned out of the room by one of the confederates, 
 while the others took away his watch and money. This was held to 
 amount to larceny. R. v. Patch, 1 Leach, 238 ; 2 East, P. C. 678. 
 So where, under similar circumstances, the prisoner procured from 
 the prosecutor twenty guineas, promising to return them the next 
 morning, and leaving the false jewel with him : this was also held to 
 be larceny. P. v. INIoore, 1 Leach, 314 ; 2 East, P. C. 679. To the 
 same effect is P. v. Watson, 2 Leach, 640 ; 2 East, P. C. 680. So 
 where the prosecutor was induced, by a preconcerted scheme, to de- 
 posit his money with one of the defendants, as a deposit upon a pre- 
 tended bet, and the stakeholder afterwards, upon pretence that one of 
 *his confederates had won the wager, handed over the money r^nKQ 
 to him ; and it was left to the jury to say whether, at the time L 
 the money was taken, there was not a plan that it should be kept, 
 under the false color of winning the bet, and the jury found there was : 
 this was held to be larceny. R. v. Robson, Puss. & R. 413. 
 
 Where the prisoner covered some coals in a cart with slack, and 
 gave it to be weighed as slack, and after it was weighed paid for it as 
 slack only, and converted the coal so obtained to his own use, it was 
 held that this was a larceny of the coal, for the prosecutor had not 
 parted and never intended to part with the property in the coal. 
 R. V. Braraley, L. & C. 21. 
 
 In all of the above cases it was held that the prosecutor had not com- 
 pletely parted with his property in the goods. The doctrine is clearly 
 established that, if the owner intends to part with the property in 
 the goods, and, in pursuance of such intention, delivers the goods to 
 the prisoner, who takes them away, and the property becomes his, this 
 is not larceny, even though the prisoner has from the first a fraudu- 
 lent intention.* This is what constitutes the offence of obtaining by 
 false pretences ; and as that is now an offence as easily and as fully 
 punishable as larceny, there is no reason whatever why the acknowl- 
 edged principle should not be strictly applied. 
 
 The following are instances in which the offence has been held not 
 to amount to larceny, on the ground that the property in the goods 
 has passed to the prisoner. One of the defendants, in the presence of 
 the prosecutor, picked up a purse containing a watch, a chain, and 
 two seals, which a confederate represented to be gold, and worth 18^.; 
 upon which the prosecutor purchased the share of the party who 
 picked up the purse for 71.; Coleridge, J., held that this was not 
 
 1 Lewer v. Commonwealth, 15 S. & E. (Pa.) 93 ; Mowrey v. Walsh, 8 Cow. (N. Y.) 
 242. S. 
 
 Under the New York code an indictment for larceny will be supported by evidence 
 of obtaining goods under false pretences. People v. Dumar, 42 Hun, (N. Y.) 80.
 
 830 LAPvCENY. 
 
 larceny. R. v. AVJlson, 8 C. & P. Ill, 34 E. C. L. Compare this 
 case with R. v. Patch, supra, where the prisoner had only deposited his 
 money. The prisoner was indicted for horse stealing, and it appeared 
 in evidence that he met the prosecutor at a fair with a liorse, which the 
 latter had brought th(!re for sale. The prisoner, being known to him, 
 proposed to become the purchaser. On a view of the horse, the prose- 
 cutor told the prisoner he should have it for 8/., and calling his servant, 
 ordered him to deliver it to the prisoner, wlio immediately mounted 
 the hoTse, telling the prosecutor that he woidd return immediately 
 and pay him. The prosecutor replied, " Very well," and the prisoner 
 rode away, and never returned. Gould, J., ordered an acquittal, for 
 here was a complete contract of sale and delivery ; the property as 
 well as possession was entirely parted with. R. v. Harvey, 2 East, 
 P. C. 6G9 ; 1 Leach, 467. In this case, it was observed by the judge, 
 that the prosecutor's only remedy was by action. 1 Leach, 467. Had 
 any false pretences been used, the prisoner might have been indicted 
 under the 30 Geo. 2, c. 24. 
 
 Paikes Avas indicted for stealing a piece of silk, the property of 
 Thomas Wilson. The prisoner called at Wilson's warehouse, and 
 having looked at several pieces of silk, selected the one in question. 
 He said his name was Jolin Williams, that he lived at No. 6, Ara- 
 bella-row, and that if Wilson would send it that evening, he would 
 pay him for it. Wilson accordingly sent his shopman with it, who, 
 as he was taking the goods, met the prisoner. The latter took him 
 into a room at No. 6, Arabella-row, examined the bill of parcels, and 
 gave several bills drawn by Freeth and Co., at Bradford, on 
 Taylor and Co., in London. The bills were for more than the price 
 *flrm *^^ ^^^ goods. The servant could not give the change, but the 
 -^ prisoner said he wanted more goods, and should call the follow- 
 ing day, which he did not do. Taylor and Co. said the notes were good 
 for nothing, and that they had no correspondent at Bradford. Before 
 the goods were sent from AVilson's they were entered in a memoran- 
 dum-book, and the prisoner was made debtor for them, which was 
 the practice where goods were not paid for immediately. It was left 
 to the jury to consider whether there was from the beginning a pre- 
 meditated plan on the part of the prisoner to obtain the goods with- 
 out paying value for them, and whether this was a sale by Wilson, 
 and a delivery of the goods with intent to part with the property, he 
 having received bad bills in payment through the medium of his 
 servant. The jury found that from the beginning it was the pris- 
 oner's intention to defraud Wilson, and that it was not Wilson's 
 intention to give him credit ; and they found him guilty. But the 
 judges were of opinion that the conviction was wrong, the properly, 
 as well as the possession, having been parted with, upon receiving 
 that which was accepted as payment by the prosecutor's servant, 
 though the bills afterwards turned out to be of no value. R. v. 
 Parkes, 2 East, P. C. 671 ; 2 Leach, 614. See R. v. Small, jwst, p. 
 663. 
 
 The prisoner was a servant in the employment of grocers who were
 
 LARCENY. 831 
 
 in the habit of purchasing " kitchen stuff." It was his duty to receive 
 and weigh it, and if the chief clerk was in the counting-house, to give 
 tiie seller a ticket, specifying the weight and price of the article, and 
 the name of the seller, which ticket was signed with the initials of 
 the prisoner. The seller, on taking the ticket to the chief clerk, re- 
 ceived the price of the " kitchen stuff." In the absence of the chief 
 clerk, the prisoner had himself authority to pay the seller, and after- 
 wards, on producing the ticket to the chief clerk, was repaid. The 
 prisoner had, on the day mentioned in the indictment, presented a 
 ticket to the chief clerk, purporting to contain all the usual sj)ccifica- 
 tions, and marked with the prisoner's initials, and demanded the sum 
 of 2s. 3d., which he alleged that he had paid for " kitchen stuff." He 
 received the money, and appropriated it to his own use ; and it was 
 afterwards discovered that no such person as was described in the 
 ticket had ever sold any such article to the prosecutors, but that the 
 ticket was fraudulently made out, and presented by the prisoner. 
 The court held that this was a case of false pretences, and that an in- 
 dictment for larceny could not be sustained, "as the clerk delivered 
 the money to the prisoner with the intent of parting with it wholly 
 to him." R. V. Barnes, 2 Den. C. C. R. 59. 
 
 A case of frequent occurrence is the following. The prisoner being 
 the prosecutor's servant, it was his duty to receive and pay moneys 
 for the prosecutor, and make entries of such receipts and payments 
 in a book which was examined by the prosecutor from time to time. 
 On one occasion the prisoner showed a balance of 21. in his favor, 
 by taking credit for payments falsely, entered in his book as having 
 been made by him, when in fact they had not been so made, and 
 thereupon was paid by his master the 21. as a balance due to him. 
 The prisoner having been convicted of larceny, the Court of Criminal 
 Appeal held the conviction wrong, but several judges expressed an 
 opinion that an indictment for obtaining money by false pretences 
 might have been sustained. R. v. Green, 1 Dears. C. C. 323 ; but see 
 R. V. Cooke, inft'a. 
 
 *It was the duty of the prisoner to ascertain the amount of r*p/^i 
 certain dock dues payable by the prosecutors, and having re- L 
 ceived the money from their cash-keeper, to pay the dues over to those 
 who were entitled to them ; he falsely represented a sum of 3^. 10s. 4d. 
 to be due, whereas in truth a less sum was then due, and having ob- 
 tained the larger sum, converted the difference to his own use; it was 
 held not to be larceny, but an obtaining by false pretences. R. v. 
 Thompson, L. & C. 233 ; 32 L. J., M. C. 57. It is said that the 
 above decision went entirely upon the question whether there was a 
 larceny in the first instance, and not whether the subsequent appro- 
 priation was larceny, as it seems it was. R. v. Cooke, L. R. 1 C. C. 
 R. 295 ; 40 L. J., M. C. 68. See this case, infra, as to possession ob- 
 tained by servants, p. 668. 
 
 Where the goods have been purchased by a third person, and the 
 prisoner obtains possession of them in that person's name, by false 
 pretences, as the owner intends to part with his property, though not
 
 832 LAECENY. 
 
 to the prisoner, it has been held not to amount to felony. The pris- 
 oner was indicted for stealing a hat, in one count laid to be the prop- 
 erty of Robert Beer, in another of John Paul. The prisoner bought 
 a hat of Beer, a hat-maivcr, at Islington ; but was told he could not 
 have it without paying for it. While in the shop, lie saw a hat which 
 had been made for Paul, and saying that he lived next door to him, 
 asked when Paul was to come for his hat. He w^as told in half an 
 hour or an hour. Having left the shop, he met a boy, asked him if he 
 knew Beer, saying, that Paul had sent liim to Beer's for his hat ; but that, 
 as he owed Beer for a hat himself, which he had not the money to pay, 
 he did not like to go. He asked the boy (to whom he promised some- 
 thing for his trouble) to carry the message to Beer's, and bring Paul's 
 hat to him (the prisoner). He also told the boy not to go into Beer's 
 shop, if Paul, whom he described, should be there. The boy went, 
 and delivered the message, and received the hat, w^liich, after carrying 
 part of the way by the prisoner's desire, he delivered to him, the pris- 
 oner saying he would take it himself to Paul. The prisoner was 
 apprehended with the hat in his possession. It was objected for him, 
 that this Avas not larceny, but an obtaining goods under false pretences. 
 The prisoner being found guilty, the question was reserved for the 
 opinion of the judges, who decided that the offence did not amount 
 to a felony, the owner having parted with his property in the hat. 
 R. V. Adams, 2 Russ. Cri. 146, 5th ed. See also R. v. Box, 9 C. & P. 
 126, 38 E. C. L. But see R. v. Kay, infra, tit. " Post-office." And 
 see the remarks on the above case contained in the judgment of seven 
 of the judges in R. v. Middletcyi, ante, p. 652, from which it seems 
 that the property in the hat had never passed to the prisoner, and that 
 the offence amounted to larceny. 
 
 Tlie prisoners, Nicholson, Jones, and Chappel, were indicted for 
 stealing two bank post bills and seven guineas. The prisoner Nich- 
 olson introduced himself to the prosecutor, at the apartments of the 
 latter, in the Charter House, under the pretence of inquiring what 
 the rules of the charity were. Discovering that the prosecutor had 
 some money, he desired to walk with him, and having been joined by 
 the prisoner Chappel, they went to a public-house. The prisoner 
 Jones then came into the room, and said that he had come from the 
 country to receive 1,400/., and produced a quantity of notes. Chappel 
 said to him, " I suppose you think that no one has any money but 
 *rfi9l *you." Jones answered, " I'll lay 10/. that neither of you 
 "-I can show 40/. in two hours." They then all went out, Nich- 
 olson and Chappel said that they should go to the Spotted Horse, and 
 they both asked the prosecutor if he could show 40/. He answered 
 he believed he could. Nicholson accompanied the prosecutor home, 
 when the latter took out of his desk the two bank post bills and five 
 guineas. Nicholson advised him to take a guinea or two more, and 
 he accordingly took two guineas more. They then went to the Spot- 
 ted Horse, where Jones and Chappel were in a back room. Jones put 
 down a 10/. note for each who could show 40/. The prosecutor showed 
 his 40/. by laying down the notes and guineas, but did not recollect
 
 LARCENY. 833 
 
 whether he took up the 10?. given to him. Jones then wrote four 
 letters in chalk upon the table, and going to the end of the room, 
 turned his back, and said, that he would bet them a guinea apiece 
 that he would name another letter that should be made and a basin 
 put over it. Another letter was made and covered with a basin. 
 Jones guessed wrongly, and the others won a guinea each. Chappel 
 and Nicholson then said, " We may as well have some of Jones's 
 money, for he is sure to lose, and we may as well make it more, for 
 we are sure to win." The prosecutor then staked his two notes and 
 the seven guineao. Jones guessed right, and the notes lying on the 
 table, he swept them all off, and went to the other end of the room, 
 the other prisoners sitting still. A constable immediately came and 
 apprehended the prisoners. The prosecutor, on cross-examination, 
 said that he did not know whether the 101. note given to him by 
 Jones on showing 40/. was a real one or not. That having won the 
 first wager, if the matter had ended there, he should have kept the 
 guinea. That he did not object to Jones taking his 40/. when he lost, 
 and would have taken the 40/. if he had won. The officers found on 
 the prisoners many pieces of paper having numbers, such as 100, 50, 
 etc., something in the manner of bank notes, the bodies of the notes 
 being advertisements of different kinds. No good notes were found 
 upon them, but about eight guineas in cash. A lump of paper was 
 put into the prosecutor's hands by Jones, when the officers came in, 
 which was afterwards found to contain the two post bills. On the 
 part of the prisoners it was contended, that this was a mere gaming 
 transaction, or at most only a cheat, and not a felony. A doubt being 
 entertained by the bench, on the latter point, it was left to the jury to 
 consider whether this was a gaming transaction, or a preconcerted 
 scheme by the prisoners, or any of them to get from the prosecutor 
 the post bills and cash. The jury were of opinion that it was a pre- 
 concerted scheme in all of them, for that purpose, and found them 
 guilty ; but the judges held the conviction wrong, for in this case the 
 property as well as possession has been parted with by the prosecutor, 
 under the idea that it had been fairly won. E. v. Nicholson, 2 East, 
 P. C. 669; 2 Leach, 610. 
 
 Proof of the taking — possession obtained from servant by fraud 
 — possession obtained by fraud — property parted with by servant. 
 Sometimes tlie question of whether the prosecutor has parted with his 
 property in the goods or not becomes further complicated by the 
 question whether he has delegated to the servant a general authority 
 or only a limited one, and if the latter whether the servant has 
 pursued such limited authority or not. In the following cases it has 
 been held that the servant having only a limited authority, and not 
 *having pursued it, the property has not passed, and the pris- r*p/^o 
 oner was rightly convicted. If a carman having orders to de- ^ 
 liver goods to a certain person, in mistake deliver them to another per- 
 son, who appropriates them to his own use, such person is guilty of 
 larceny, as the carman has only a special authority and does not part 
 63
 
 834 LARCENY. 
 
 with his master's property in the goods by delivering them to a wrong 
 party. R. v. Longstreeth, 1 Moo. C. C. 137 ; R. v. Little, 10 Cox, 
 C. C. 559. 
 
 In the case of R. v. Middleton, which is stated ante, p. 652, it was 
 thought by three of the judges (Bovill, C. J., Kelly, C. B., and 
 Keating, J.) that the clerk at the post-office only had a special author- 
 ity to hand the proper sum to the proper person ; but by two of the 
 judges (Bramwell, B., and Brett, J.) that he had a general authority to 
 part Avith the money. 
 
 In a case tried before Denman, J., R. v.Dowdeswell, at Derby Spring 
 Assizes, 1873, the prisoner for his own fraudulent purposes had stopped 
 the letter carrier, and by a lie induced him to deliver up certain let- 
 ters directed to other persons, and the learned judge ruled that the 
 letter carrier could not be held to be the agent of the Post-lNIaster 
 General for wrongfully giving up the letters, and that the offence was 
 a larceny. 
 
 The prisoner, by false statements, induced the prosecutor to send 
 him by his servant, to a particular house, goods to the value of 2s. 
 lOd. with change for a crown piece. On the way he met the servant, 
 and induced him to part with the goods and change, giving him a crown 
 piece which proved to be bad. Both the prosecutor and the servant 
 swore that the latter had no authority to part with the goods or change 
 without receiving the crown piece in payment, but the former admitted 
 that he intended to sell the goods, and never expected them back again. 
 Mr. Serjeant Arabin told the jury that if they thought the servant had 
 an uncontrolled authority to part with the goods and the change, they 
 ought to find the prisoner not guilty ; but if they should be of a con- 
 trary opinion, then, in his judgment, it amounted to larceny. He 
 further stated that he had submitted the depositions to Parke, B., and 
 Patteson, J., who had agreed with the opinion he had formed. The 
 learned Serjeant afterwards said to the jury, "If you think it was a 
 preconcerted scheme to get possession of the property, without giving 
 anything for it, and that the servant had the limited authority only, 
 then you will find the prisoner guilty." The prisoner was convicted. 
 R. V. Small, 8 C. & P. 46, 34 E. C. L.; see R. v. Prince (post, p. 664); 
 R. V. Middleton, ante, p. 652. 
 
 A. received goods of B. (who was the servant of C.) under color of a 
 pretended sale. Coltman, J., held that the fact of A. s having received 
 such goods with knowledge that B. had no authority to sell, and that 
 he was in fact defrauding his master, was sufficient evidence to sup- 
 port an indictment for larceny against A. jointly with B. R. v. Hornby, 
 1 C. & K. 305, 47 E. C. L. 
 
 The prisoner was indicted for stealing a quantity of stockings. 
 Meeting the prosecutor's apprentice on Ludgate Hill, he asked him if 
 he was going to Mr. Heath, a hosier in Milk-street. The apprentice 
 had at that time under his arm two parcels, directed to Mr. Heath, 
 containing the articles in question ; and having answered in the 
 affirmative, the prisoner told him that he knew his master, and owed 
 him for the parcels ; and he then gave the lad a parcel, which was
 
 LARCENY. 835 
 
 ♦afterwards found to be of no value, telling him to take it to his r^pp^ 
 master directly, that it mi<!,ht })e forwarded to a Mr. Browne ; L 
 and then with the consent of the apprentice, he took from him the par- 
 cels in question. The boy then left the prisoner, but retmnied and 
 asked him if he was Mr. Heath. The prisoner replied that he was ; 
 on which the boy again left him. The jury found the prisoner guilty ; 
 but the recorder, doubting whether the i'acts amounted to felony, re- 
 ferred the case to the judges, who were of opinion that the conviction 
 was proper. Mr. Justice Gould, in stating the reasons of the judg- 
 ment, laid down the following rules as clearly settled : that the pos- 
 session of personal chattels follows the right of property in them ; 
 that the possession of the servant Avas the possession of the master, 
 which could not be divested by a tortious taking from the servant ; 
 that this rule held in all cases where servants had not the absolute 
 dominion over the property, but were only intrusted with the care or 
 custody of it for a particular purpose. R. v. Wilkins, 2 East, P. C. 
 673 ; 1 Leach, 520. 
 
 In the following case it has been held that the servant had a general 
 authority to part with the goods, and the property in the goods having 
 passed to the prisoner he could not be guilty of a larceny of them. 
 The prisoner, who had previously pawned certain articles at the shop 
 of the prosecutor, brought a packet of diamonds, which he also offered 
 to pawn, receiving back the former articles. The prosecutor's servant, 
 who had authority to act in his business, after looking at the diamonds, 
 delivered them back to the prisoner to seal up, when the prisoner sub- 
 stituted another parcel of false stones. He then received from the 
 prosecutor's servant the articles previously pledged, and carried them 
 away. Being indicted for stealing these articles, Arabin, Serjt., before 
 whom he was tried, thought that, inasmuch as the property was parted 
 with by the pawnbroker's servant absolutely, under the impression that 
 the prisoner had returned the parcel containing the diamonds, the 
 offence did not amount to felony ; and, upon a case reserved, the 
 judges resolved unanimously that the case was not larceny, because the 
 servant, who had a general authority from his master, parted with the 
 property, and not merely with the possession. R. v. Jackson, 1 Moody, 
 C. C. 119. See R. v. Longstreeth, Id. 137. 
 
 So also the cashier of a bank has a general authority to pay money 
 and to judge of the genuineness of cheques, and it is no larceny to ob- 
 tain money from him for a forged cheque. R. v. Prince, L. R. 1 C. C. 
 R. 150 ; 38 L. J., M. C. 8. ^ 
 
 Proof of the taking — possession obtained by threat. The pris- 
 oner, who was an auctioneer, obtained money for some goods by as- 
 serting that a woman had bid for them, and by threatening to detain 
 her if she did not pay, and it was held that he was guilty of a larceny 
 of the money. R. v. McGrath, L. R. 1 C. C. R. 205 ; 39 L. J., M. 
 C 7. R. V. Hazell, 11 Cox, C. C. 597. So where the prisoner obtained 
 by threats a larger sum than was due for knife grinding, he was held 
 guilty of larceny. R. v. Lovell, 8 Q. B. D. 185 ; 50 L. J., M. C. 91.
 
 836 LARCENY. 
 
 Proof of the taking — possession obtained by false process of 
 law. Where the possession of goods is obtained from the owner by 
 means of the fraudulent abuse of legal process, the oifence will amount 
 to larceny. Thus it is laid down by Lord Hale, that if A. has a design 
 jjj -| *to steal the horse of B., and enters a plaint of replevin in the 
 J Sheriff 's Court for the horse, and gets him delivered to him, 
 and rides him away, this is taking and stealing, because done in fraud- 
 em legis. So where A., having a mind privately to get the goods of 
 B. into his possession, brings an action of ejectment, and obtains judg- 
 ment against the casual ejector, and thereby gets possession and takes 
 the goods, if it be done animo furandi, it is larceny. 1 Hale, P. C. 
 507; 2 East, P. C. 650; 2 Russ. Cri. 182, 5th ed. 
 
 Proof of the taking — possession obtained by bailees. It was 
 formerly said that, inasmuch as to constitute larceny there must be 
 such a taking as would either actually or constructively amount to 
 a trespass, if a party obtained the possession of goods lawfully, as 
 upon a bailment for or on account of the owner, he could not after- 
 wards, so long as that bailment continued, be guilty of larceny in 
 appropriating the goods in any way whatsoever, as the wrongful 
 change of possession, a necessary ingredient in larceny, had never 
 taken place.^ 
 
 But now, by the 24 & 25 Vict. c. 96, s. 3, " whosoever, being a bailee 
 of any chattel, money, or valuable security, shall fraudulently take or 
 convert the same to his OAvn use, or the use of any person other than 
 the owner thereof, although he shall not break bulk or otherwise 
 determine the bailment, shall be guilty of larceny, and may be con- 
 victed thereof upon an indictment for larceny, but this section shall 
 not extend to any offence punishable on summary conviction." As 
 to this last proviso, see P. v. Daynes, 12 Cox, C. C. R. 514. 
 
 The object of this section is to provide for the cases where the 
 possession passes from the real owner, though not the property. To 
 
 ^ Commonwealth v. Brown, 4 Mass. 580 ; Commonwealth i\ James, 1 Pick. 375. An 
 indictment, which charges a larceny or embezzlement of the printed sheets of a certain 
 publication, is not supported by evidence that those sheets were delivered to the de- 
 fendant by the owner to be bound, and that the defendant, after he had folded, stitched, 
 bound, and trimmed them, embezzled and fraudulently converted them to his own use. 
 In such case the indictment should charge a larceny or embezzlement of books. Com- 
 monwealth V. Merritield, 4 Mete. 468. Where a letter is given to deliver to another, 
 breaking it open and taking out money is larceny. Cheudle v. Buell, 6 O. 67. See 
 State I'. White, 2 Tvl. 352 ; Welsh v. People, 17 111. 339 ; Ennis v. State, 3 la. 67 ; 
 State V. Watson, 41 "N. H. 533 ; State r. Humph rev, 32 Vt. 569 ; Nicholls v. People, 
 3 Smith, 114; State v. Fairclough, 29 Conn. 47 ; People v. Poggi, 19 Cal. 600. If a 
 Ijailee intends to steal property when he obtains possession, and does so, he is properly 
 indicted for larceny. People v. Smith, 23 Cal. 280. A Ijailee who obtains possession 
 of property by delivering under a pretence of hiring, but with the actual design of 
 depriving the owner of his property, is guilty of the crime. State v. Williams, 35 
 Mo. 229. If a trunk is left in the custody of any one to keep safely, and he opens it, 
 and appropriates part or the whole of its contents to his own use, it is larceny. Mar- 
 cus V. State, 26 Ind. 101. S. 
 
 Where one comes into possession of money lawfully, he cannot, by converting it, be 
 guilty of larceny. In such a case, evidence of other larcenies cannot be introduced, there 
 being no corpus delicti. Shaft" i;. Commonwealth, 82 Ky. 173.
 
 LARCENY. 837 
 
 bring a case within the section it must be shown that there was such 
 a delivery of the goods as to vest the possession of them for the 
 time in the prisoner, and also that at the expiration of that time the 
 goods Avere to be restored to the bailor, or to be delivered to some one 
 else. 
 
 A carrier who receives money to procure goods but fraudulently 
 retains the money is within the section. R. v. Wells, 1 F. & F. 109. 
 So one who takes a watch from the pocket of a tipsy man with 
 his consent is a bailee of the watch. R. v. Reeves, 5 Jur. 716. But 
 one who receives money, with no obligation *o return the identical 
 coins, is not a bailee of such coins within the section. R. v. Hassall, 
 L. & C. 58 ; and see also R. v. Garrett, 2 F. & F. 14, and R. v. Ploare, 
 1 F. & F. 647. Where the prisoner obtained a deed from the pros- 
 ecutor for the purpose of obtaining money upon it, and obtained 
 an advance of 140/., giving the deed as security, and ajijiropriated 
 the 140/. to his own use, it was held that the prisoner was a bailee 
 of the det^d, and that it was immaterial that he was at liberty either 
 to return the deed or the money to the prosecutor. R. v. Tonkinson, 
 14 Cox, C. C. R. 603. See also R. v. Aden, 12 Cox, C. C. 512. Where 
 a traveler receives from his employers silk to sell for them, but 
 which is to remain their property until disposed of to customers, 
 such traveler is rightly convicted of larceny as a bailee, if he 
 fraudulently disposes of them for his own use. R. v. Richmond, 
 12 Cox, C. C. R. 495 ; so where the prisoner was to have two brooches 
 for a week or ten days to sell, but after ten days had elapsed he sold 
 them and arranged for their redemption at the end of two months, 
 he was held guilty of larceny as a bailee, for his duty was to return 
 *the two brooches in ten davs if he could not sell them before, r^npn 
 R. V. Henderson, 11 Cox, C. C. R. 593. L ^^^ 
 
 The prisoner, who received a bill of exchange for the purpose of 
 getting it discounted, and handing back the proceeds, instead of getting 
 it discounted, indorsed it as his own to a creditor in payment of his 
 account, the jury finding he intended to pass the bill absolutely to the 
 creditor. He was held to be a bailee of a valuable security, and guilty 
 of a fraudulent conversion of the same to his own use. R. v. Oxenham, 
 46 L. J., M. C. 125. 
 
 L., one of the trustees of a friendly society duly enrolled, was sert 
 to the bank to pay to the credit of the society 40/. in gold and silver, 
 which was taken from a box in the pisr^ession of C, the treasurer. L. 
 applied the money to his own use. Held, that he was not a bailee of 
 the money of C. R. i\ Luce, Bell, C. C. 259. 
 
 The prisoner received money to pay for some coals, and he was to 
 bring them home in his own cart. He purcliased tlie coals, and loaded 
 them into his own aiH, but he afterwards abstracted a portion of 
 the coals. It was held that he was guilty of larceny as a bailee, 
 some of the judges thinking that the c(jal being purchased with 
 money given by the prosecutor for that purpose, the property vested 
 in the prosecutor, and that thereupon a bailment arose, others thinking 
 that there ought to be evidence of a specific appropriation of the coals
 
 838 LARCENY. 
 
 to the prosecutor, and all the court agreed that there was such 
 evidence. R. v. Bunkhall, 33 L. J., M. C. 75; L. & C. 371. A 
 carter was employed by the owner of a cargo of coals to go and load 
 the coals in his cart from the vessel, and deliver specified quantities 
 to persons whose names were on a list given to the carter. He sold 
 two of the loads of coal fraudulently, and appropriated the moneys 
 to his own use : on a case reserved for the opinion of the Court of 
 Crown Cases, he was held to be rightly convicted of stealing the 
 coals of the awner who employed him. R. v. Da vies, 10 Cox, C. C. R. 
 239. 
 
 The owner of a wrecked ship made a contract to recover the wreck 
 with a person who employed tiie defendant's father to do the work. 
 The defendant was put in charge of the wreck by his father, and 
 while so engaged corresponded with the person employed by the 
 owner of the wreck, although that person still considered the father 
 responsible. The defendant stole some of the wreck, and the jury 
 found that he did so an'imo farandl, but were not asked whether 
 he was bailee. It was held by the majority of the court that he was 
 a bailee and was rightly convicted. R. v. Clegg, 11 Cox, C. C. 212 
 (Irish). 
 
 AYhere all control over the chattel is parted with, the prisoner can- 
 not be convicted although he has obtained possession by fraud. R. v. 
 Hunt, 8 Cox, C. C. 495. 
 
 A married woman can, it seems, be guilty of larceny as a bailee 
 under the above section. R. v. Robson, L. & C. 93. 
 
 Proof of the taking — possession obtained by servants. There has 
 never been the same difficulty made about finding servants guilty of 
 larceny as about bailees ; probably because the necessity of protecting 
 masters from the depredations of their servants was more apparent 
 than that of protecting them from the dishonesty of bailees. Yet 
 so far as possession is concerned, the position of a servant, who is not 
 a slave, cannot be distinguished on principle from that of a bailee. 
 *fir7l *^^^> however this may be. it has been long settled, that if a 
 J servant have possession of his master's goods, and appropriate 
 them to himself, he is guilty of larceny : and this intention to appro- 
 priate may be proved by any unequivocal act or acts indicative of such 
 an intention. This, like larceny from a bailee, comes within the defi- 
 nition of larceny given above (p. 647) ; the wrongful change of pos- 
 session taking place by the servant ceasing to hold the goods for 
 the benefit of his master, and assuming to hold them for him- 
 self.^ 
 
 In consequence of the difference in the law as applied to bailees 
 and servants, it was before the passing of the 20 & 21 Vict. c. 54, s. 4, 
 
 1 United States v. Clew, 4 Wash. C. C. 700 ; State v. Self, 1 Bay, 242 ; Common- 
 wealth V. Brown, 4 Mass. 580; Dame v. Baldwin, 8 Mass. 518; McClure's Case, 3 Rog. 
 Rec. 154 ; Commonwealth v. King, 9 Cush. 284; People r.Wood, 2 Parker, C. R. 22; 
 State V. Schingen, 20 Wis. 74 ; ]\Iarcus v. State, 26 Ind. 101 ; State v. Jarvis, 63 N. C. 
 556; Commonwealth v. O'Malley, 97 Mass. 584; People v. BeMen, 17 Cal. 51 ; State 
 V. Fann, 65 N, C. 317 ; Commonwealth v. Davis, 104 Mass. 548. S.
 
 LARCENY. 839 
 
 now repealed, very important to distinguish between these two classes 
 of persons. Thus it is said by Lord Hale that it is larceny if the 
 butler who has the charge of his master's plate, or the shepherd who 
 has the cliarge of his master's sheep, appropriates them, and so it is of 
 an apprentice that feloniously embezzles his master's goods. 1 Hale, 
 506 ; 2 East, P. C. 554. So where a carter goes away with his 
 master's cart. 11, v. Robinson, 2 East, P. C. 565 ; 11. v. Reid, 1 
 Dears. C. C. R. 257 ; 23 L. J., M. C. 25. The prisoner was a drover, 
 and had been employed by the prosecutor as such, off and on, for 
 nearly five years. Being employed by him to drive a number of 
 sheep to a fair, he sold several of them, and applied the money 
 to his own purposes. He was found guilty of larceny but the jury 
 also found that he did not intend to steal the sheep at the time he 
 took them into his possession. On a case reserved, the judges ^ho 
 met were 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 right. R. v. M'Namee, 1 Moo. C. C. 
 368. Aliter if tiie evidence show that the drover was not the servant 
 of the prosecutor. R. v. Hey, 1 Den. C. C. R. 602. In this case, 
 Parke, B., in delivering the judgment of the court, said, "After the 
 full consideration which this subject has undergone, we doubt whether 
 the case of R. v. M'Namee would be now decided in the same way." 
 The doubt being as to the propriety in that case of considering the 
 prisoner as in the service of the prosecutor. The prisoner was cm- 
 ployed by the prosecutor as his foreman and bookkeeper, but did not 
 live in his house. The prosecutor delivered a bill of exchange to 
 him, with orders to take it to the post, that it might be transmitted to 
 London. The prisoner got cash for the bill, with which he absconded. 
 It was objected that by the delivery the prosecutor had parted with 
 the possession of the bill, and the case was likened to that of a carrier 
 intrusted with goods ; but the judges held it larceny, on the principle 
 that the possession still remained in the master. R. v. Paradice, 2 
 East, P. C. 565, cited 1 Leach, 523, 524. The prisoner was employed 
 as a porter by the prosecutor, who delivered to him a parcel to carry 
 to a customer. While carrying it he met two men, w ho persuaded 
 him to dispose of the goods, which he did, taking them out of the 
 parcel and receiving part of the money. All the judges held this to 
 be larceny, as the possession still remained in the master. R. v. Bass, 
 2 East, P. C. 566 ; 1 Leach, 251, 523. 
 
 So where the prosecutor delivered to his servant a sum of money 
 to carry to a person, who was to give him a bill for it, and the servant 
 appropriated it to his own use, the judges were of opinion that this 
 was not a mere breach of trust, but a felony. R. v. Lavender, 2 
 *East, P. C. 566 ; 2 Russ. Cri. 319, 5th ed. ; see also R. r. p^^gg 
 Heath, 2 Moo. C. C. 33. A. employed B. to take his barge L 
 from one particular place to another, and paid him his wages in ad- 
 vance, and gave him a separate sum of three sovereigns to pay the ton- 
 nage dues. B. took the barge 16 miles, and paid tonnage dues to an 
 amount rather under 2/. and appropriated the remaining sovereign to
 
 840 LARCENY. 
 
 his own use. Patteson, J., held this to be a larceny. R. v. Goode, 
 Carr. & M. 582, 41 E. C. L. See also R. v. Bearaan, Carr. & M. 
 595. Where the servant of the prosecutor went to her master's wife, 
 and told her she was acquainted with a person who could give her ten 
 guineas' worth of silver, and the prosecutor's wife gave her ten 
 guineas for that purpose, which she ran away with, she was found 
 guilty of the larceny. R. v. Atkinson, 1 Leach, 302 (n) ; 2 Russ. Cri. 
 
 319, 5th ed. 
 
 A servant whose duty it was to pay workmen obtained fraudulently 
 a larger sum from the cashier than was necessary, intending at the 
 time to appropriate the balance, and it was held that whether the 
 obtaining was in the first instance larceny or false pretences, yet that 
 the money while in the servant's custody was the property and was in 
 the possession of the master, and therefore the misappropriation of it 
 by the servant was larceny. R. v. Cooke, L. R. 1 C. C. R. 295 ; 40 
 L. J., M. C. 68. See ante, p. 661. 
 
 In order to render the offence larceny, where there is an appropria- 
 tion by a servant, who is already in possession, it must appear that the 
 goods were at the time in the constructive possession of the master. 
 They will be considered in the constructive possession of the master 
 if they have been once in the possession of the master, and have been 
 delivered by the master, or by his orders, to the servant. But if the 
 money or goods have come to the possession of the servant from a 
 third person, and have never been in the hands of the master, they 
 will not be considered to be in the constructive possession of the mas- 
 ter for the purposes of larceny. This is the distinction which gave 
 rise to the passing of the 39 Geo. 3, c. 85 (now repealed), creating the 
 offence of embezzlement. See p. 653, and infra, p. 670. The rule 
 has never been doubted, but not unfrequently judges, while professing 
 to recognize it, have given decisions with Mdiich it is scarcely reconcil- 
 able. The origin of these decisions is to be found in the unsatisfac- 
 tory state of the criminal law, which before the passing of the last- 
 mentioned statute left a large class of offences unprovided for. This 
 remark applies to some of the following cases. 
 
 Where a clerk or servant took a bill of exchange belonging to his 
 master, got it discounted, and converted the proceeds to his own use, 
 this was held to be a larceny of the bill, though the clerk had au- 
 thority to discount bills. It was contended, on behalf of the pris- 
 oner, that the bill having come legally into his possession, like any 
 other bill of the prosecutor's over which he had a disposing power, 
 he had a right to receive, though not to convert the money to his 
 own use, which was, however, only a breach of trust. But Heath, J., 
 was clearly of opinion that it was felony, the bill having been once 
 decidedly in the possession of the prosecutor, by the clerk who got it 
 accepted putting it amongst the other bills in the prosecutor's desk, 
 and the prisoner having feloniously taken it awav out of that posses- 
 sion. R. V. Chipchase, 2 East, P. C. 567 ; 2 Leach, 699 ; 2 Russ. Cri. 
 
 320, 5th ed. 
 
 An insurance company had a drawing account with Glyn & Co.,
 
 LARCENY. 841 
 
 and used to send their pass-book on Tuesday in every week to be 
 *written up, and their messenger went on the following morn- r^.(>nQ 
 ing to bring it back, when it was returned together with the •- 
 cheques, etc., of the preceding week. The prisoner was a salaried 
 clerk in the office of the company ; it was his duty to receive the jmss- 
 book and vouchers from the messenger, and to preserve the vouchers 
 for the use of the company. On the 27th of February, Glyn & Co. 
 delivered the company's pass-book, containing, amongst other things, 
 a certain cashed cheque for 1,400^., to the messenger of the company, 
 who delivered the book and cheque to the prisoner in the usual way, 
 and he thereupon fraudulently destroyed it. It was held that the pris- 
 oner had been rightly convicted of larceny as a servant, inasmuch as the 
 cheque, when delivered into his custody in the usual course of busi- 
 ness, Avas constructively in the possession of the directors, who, under 
 the circumstances, were his masters. R. v. Watts, 2 Den. C. C. R. 
 14; 19 L. J., M. C. 193; R. v. Murray, 1 Moo. C. C. 276; and 
 R. V. Masters, 1 Den. C. C. R. 332, applied and distinguished the one 
 from the other. 
 
 But if the money or goods be deposited in some receptacle which 
 is itself in the actual or constructive possession of the master, then 
 the constructive possession of the master extends to the goods so de- 
 posited, so that a subsequent appropriation of them by the servant will 
 be larceny. Thus the prisoner was ordered by his masters, the prose- 
 cutors, to go with their barge to one Wilson, a corn-meter, for as much 
 corn as the barge would carry, and which was to be brought in loose 
 bulk. The prisoner received 230 quarters in loose bulk, and five 
 other quarters, which he ordered to be put in sacks, and afterwards 
 appropriated. The question reserved for the opinion of the judges 
 w^as, whether this was felony, the corn never having been in the pos- 
 session of the prosecutors, or whether it was not like the case of a 
 servant receiving charge of or buying a thing for his master, but 
 never delivering it ; but they held that this was larceny in the servant, 
 for it was a taking from the actual possession of the owner as much as 
 if the oats had been in his granary. R. v. Spears, 2 East, P. C. 568 ; 
 2 Leach, 826; 2 Russ. on Cri. 312, 5th ed. In a similar case, where 
 the prisoner, a servant of the prosecutors, came alongside a vessel in 
 which there was a quantity of corn which had been purchased by the 
 prosecutors, and procured a portion to be put into sacks, which he car- 
 ried away and sold, never having been employed to sell corn by his 
 masters; on a case reserved the judges held this to be larceny. The 
 property of the prosecutors in the corn, observes Mr. East, was com- 
 plete before the delivery to the prisoner, and after the purchase of it 
 in the vessel, they had a lawful and exclusive possession of it against 
 all the world, but the owner of the vessel. R. v. Abrahat, 2 East, 
 P. C. 569; 2 Leach, 824 ; 2 Russ. on Cri. 314, 5th ed. These author- 
 ities were considered and supported in R. v. Johnson, 2 Den. C. C. R. 
 310; 21 L.J.,M. C. 32. 
 
 When the prisoner was sent with his master's cart for some coals 
 which were delivered to him and deposited in the cart, and the price
 
 842 LARCENY. 
 
 charged to his master's account, and on the road home the prisoner dis- 
 posed fraudulently of a portion of the coals, it was held that this was 
 larceny, and not an embezzlement, the coals being constructively in 
 the possession of the master when deposited in the cart. R, v. lleid, 
 Dears. C. C. 257 ; 23 L. J., M. C. 25. 
 
 And in a more recent case, the prisoner was to bring home the 
 coals in his own cart, and be paid for his services, including the use 
 *«7m *^^ ^^^^ ^"'*'' -^^ appropriated part of the coals. It was held 
 ^ that he was rightly convicted of larceny as a bailee, though there 
 was no larceny at common law. Some of the judges thought that the 
 property in the coals passed to the employer as soon as they were pur- 
 chased with his money, and that no specific appropriation of the coals 
 to the prosecutor was necessary, but all thought that there was evi- 
 dence of such an appropriation. R. v. Bunkall, L. & C. 371 ; 33 
 L. J., M. C. 75. 
 
 A very similar case to that of R. v. Reid was that of R. v. Wright, 
 Dears. & B. C. C. 431. The prisoner was employed by a banking 
 company to conduct a branch bank, and the whole of the duties of 
 that branch were conducted by him alone. His salary not only in- 
 cluded payment for his services, but also for providing an office in his 
 own house, where he carried on another business, for the purposes of 
 the bank. In this office was an iron safe, provided by the bank, into 
 which it was the duty of the prisoner to put at night money which 
 had been received during the day, and which had not been required 
 for the purposes of the bank. The manager of the bank kept a key 
 of this box as well as the prisoner. The prisoner furnished weekly 
 accounts of moneys received and paid by him, showing the balance in 
 his hands, and of what notes, cash, or securities that balance con- 
 sisted. In September, 1855, the prisoner's accounts were audited, and 
 his cash examined and found correct ; but for the two years following, 
 though the weekly accounts were furnished as usual, the cash balance 
 was not examined. In September, 1857, the manager having come to 
 examine the cash balance, the prisoner said he was 3,000/. short, and 
 handed over to the manager 755/. 10s., which he said was all the cash 
 he had left, and which sura he took from a drawer in the counter, and 
 not from the safe. The jury found the prisoner guilty of larceny as 
 a clerk, and the Court of Criminal Appeal held that there was evi- 
 dence that the prisoner, as his duty, was, placed in the safe the money 
 which he had received from the customers; that he thereby deter- 
 mined his own exclusive possession of the money, and that by taking 
 some of such money out of the safe, amnio far andi, he was guilty of 
 larceny. 
 
 A. had agreed to buy straw of B., and sent his servant C. to fetch 
 it. C. did so, and put down the whole quantity of straw at the door 
 of A.'s stable, which was in a courtyard of A., and then went to A. 
 and asked him to send some one with the key of the hayloft, which 
 was over the stable, which A. did, and C. put part of the straw into 
 the hayloft, and carried the rest away to the public-house and sold it. 
 Tindal, C. J., held that this carrying away of the straw by C, if done
 
 LARCENY. 843 
 
 with a felonious intent, was a larceny, and not an embezzlement, as 
 the delivery of straw to A. was complete when it was put down at 
 the stable door. II. v. Hay ward, 1 C. & K. 518, 47 E. C. I.. 
 
 The following are cases in which the master or employer has been 
 held not to have such a possession as is necessary in order that the ser- 
 vant may be guilty of larceny. 
 
 The prisoner, a cashier at the Bank of England, was indicted for 
 stealing certain India bonds, laid as the property of the bank in one 
 count, and in another, of a person unknown. The bonds were paid 
 into the bank by order of the Court of Chancery, and, according to 
 the course of business, ought to have been deposited in a chest in the 
 cellars. The prisoner, who received them from the Court of Chan- 
 cery, put them in his own desk, and afterwards sold them. The 
 *court before which the prisoner was tried was of opinion that r*p7i 
 this was not larceny ; that the possession of the bonds was •- 
 always in the prisoner, and that the bank had no possession which was 
 not his possession until the bonds were deposited in the cellars as usual ; 
 and one of the judges took the distinction between a possession suffi- 
 cient to maintain a civil action, and a possession whereon to found a 
 criminal prosecution. R. v. Waite, 2 East, P. C. 570. Money, in 
 cash and bank-notes, was paid into a bank to a clerk there, whose 
 duty it was to receive and give discharges for money, and to place 
 the bank-notes in a drawer ; he gave an acknowledgment for the sum 
 in question, but kept back a lOOl bank note, and never put it in the 
 drawer. On a case reserved, some doubt was at first entertained 
 amongst the judges, but at last all assembled agreed that this was no 
 felony, inasmuch as the note was never in the possession of the bank- 
 ers, distinct from the possession of the prisoner, though it would have 
 been otherwise if the prisoner had deposited it in the draAver, and had 
 afterwards taken it. They thought that this was not to be distinguished 
 from the cases of R. v. Waite, supra, and R. v. Bull, infra, which 
 turned on this consideration, that the thing was not taken by the pris- 
 oner out of the possession of the owner, and here it was delivered into 
 the possession of the prisoner. They said, that though to many pur- 
 poses the note was in the possession of the masters, yet it Avas also in 
 the actual possession of the servant and that possession not to be im- 
 peached, for it was a lawful one. Eyre, C. J., also observed that the 
 cases ran into one another very much, and Avere hardly to be distin- 
 guished ; and that in R. v. Spears, ante, p. 669, the corn AA'as in the 
 possession of the master, under the care of the servant. R. v. Bazley, 
 2 East, P. C. 571 ; 2 Leach, 835. It Avas in consequence of this case 
 the statute 39 Geo. 3, c. 85 (noAV repealed), against embezzlement by 
 clerks and servants, Avas passed. 2 Russ. Cri. 326, 5th ed. The prose- 
 cutor suspecting that he Avas robbed by the prisoner, his serA^ant, Avho 
 attended the shop, employed a customer to come to his shop on pre- 
 tence of purchasing, and gave him some marked sih'cr of his OAvn, 
 Avith Avhich the customer came to the shop in the absence of the OAvner, 
 and bought goods of the prisoner. Soon after, the master coming in, 
 examined the till, in which the prisoner ought to have deposited the
 
 844 LARCENY. 
 
 money when received, and not finding it tliere, procured him to be 
 arrested, and, on search, tlie marked money was found upon him. On 
 a case reserved, the judges were of opinion that the prisoner was not 
 guilty of felony, but only of a breach of trust, the money never having 
 been put into the till ; and, therefore, not having been in the possession 
 of the master as against the defendant. 11. v. Bull, cited in 11. v. Bazley, 
 2 East, P. C. 572 ; 2 Leach, 841 ; 2 Russ. Cri. 326, 5th ed. So where 
 a servant was sent by Ids master to get change of a 5/. note, which he 
 did, saying it was for his master, but never returned, being convicted 
 of stealing the change, the judges, on a case reserved, held this to be no 
 larceny, because the master never had possession of the change except by 
 the hands of the prisoner. R. v. Sullen, 1 Moody, C. C. 129. So where 
 A. owed the prosecutor 5/. and paid it to the prisoner, who was the pros- 
 ecutor's servant, supposing him authorized to receive it, which he was 
 not, and the prisoner never accounted for the money to his master, 
 Alderson, B,, held that this was neither embezzlement nor larceny. 
 R. V. Hawtin, 7 C. & P. 281 , 32 E. C. L. Where the prisoner was sent 
 by his fellow-workmen to their common employer to get their wages, 
 *fi79l *^"^ ^^^ received the money wrapped up in paper, the names 
 1 and sums due being written inside the paper, it was held that 
 he was the agent of his fellow-workmen, and could not be convicted 
 on an indictment laying the property in the employer. R. v. Barnes, 
 L. R. 1 C. C. R. 45; 35 L. J.,M.C. 204. 
 
 Proof of the intent to deprive the owaer of his property. We 
 
 now come to the other ingredient which is necessary to constitute lar- 
 ceny ; the intent to deprive the owner of his property. This, like every 
 other intent, is to be inferred from the mode in which the party charged 
 deals with the property. It will, however, be a general presumption 
 that where a party takes wrongful possession of the goods of another, 
 that his intention is to steal them, and the onus will lie upon him to 
 prove thecontrary.^ If a man carries away the goods of another openly, 
 though wrongfully, before his face, this carries with it evidence of be- 
 ing a trespass only. 1 Hale, P. C. 509. A servant, taking his mas- 
 ter's horse to ride on his own business is not guilty of larceny. Id. 
 The prisoners were charged with stealing two horses. It appeared 
 that they went in the night to an inn kcjit by the prosecutor, and took 
 a horse and mare from the stable, and rode about thirty-three miles to 
 a place where they left them in the care of the ostler, stating that they 
 should return. They were apprehended on the same day about four- 
 teen miles from the place. The jury found the prisoners guilty, but 
 added that they were of opinion that the prisoners merely meant to 
 ride the horses to the place where they left them, and to leave them 
 there ; and that they had no intention either of returning them or 
 making any further use of them. The judges (Grose, J. diss., and 
 Lord Alvanley not giving any express opinion) held that, upon this 
 
 'On trial for larceny of a horse the accused may show that just before the takin» 
 he had arranged with a tliird person to return tlie horse to its owner, after being 
 driven to a certain town. State v. JShermer, 55 Mo. 83.
 
 LARCENY. 845 
 
 finding, it was a trespass only, and not a larceny. They all agreed 
 that it was a question for the jury, and that, if the jury had found a 
 general verdict of guilty on this evidence, it could not be questioned. 
 K. V. Phillips, 2 East, P. C. 662. So where, upon an indictment for 
 stealing a horse, two saddles, etc., it appeared the prisoner got into the 
 prosecutor's stables and took away the horse and other articles all to- 
 gether; but that, when he had got some distance he turned the horse 
 loose, and proceeded on foot with the saddles ; Garrow, B., left it to 
 the jury to say, M'hether the prisoner had any intention of stealing the 
 horse; for that if he intended to steal the other articles, and only used 
 the horse as a mode of carrying oif the plunder more conveniently, he 
 would not be guilty of larceny of the horse. R. v. Crump, 1 C. & 
 P. 658, 12 E. C. L. Upon the same principle the following case was 
 decided. The prisoner was indicted for stealing a straw bonnet. It 
 appeared that he entered the house where the bonnet was, through a 
 window which had been left open, and took the bonnet which belonged 
 to a young girl whom he had seduced, and carried it to a hay-mow of 
 his own, where he and the girl had been twice before. The jury 
 thought that the prisoner intended to induce the girl to go again to the 
 hay-mow, but that he did not intend to deprive her of the bonnet. 
 Of course this was held not to be larceny. R. v. Dickenson, E,uss. 
 & Ry. 420. 
 
 It is not necessary that the prisoner should intend to appropriate 
 the goods to his own benefit ; it is sufficient if he intends to deprive 
 the owner of his property in them, and in the words of Parke, B., in 
 R. V. Holloway, infra, to assume the entire dominion over them. As 
 where the prisoner took away a horse for the purpose of destroying 
 *it ; R. V. Cabbage, supra, p. 648 ; and where a servant took a r*n7o 
 letter for the same purpose ; R. v. Jones, Id,' L 
 
 In R. V. Morfit, Russ. & Ry. 307, the prisoners were charged with 
 stealing a quantity of beans. They were servants of the prosecutor, 
 and took care of his horses, for which the prosecutor made them an 
 allowance of beans. The prisoners had entered the granary by means 
 of a false key, and carried away a quantity of beans, which they 
 gave to the prosecutor's horses. The case was reserved, and eight 
 judges out of eleven thought it was felony ; but some of the judges 
 gave as a reason for their decision that the men's work was lessened 
 by the additional food given to the horses, and so that there was in 
 some sort a benefit to themselves. This decision was acted on in 
 R. V. Handley, Carr. & M. 547, 41 E. C. L., by Patteson, J., who re- 
 fused to reserve the point. But in R. v. Privett, 1 Den. C. C. 193, the 
 point was again reserved. There the jury found distinctly that the pris- 
 oners " took the oats with the intent of giving them to their master's 
 
 ' To constitute a felonious intent, it is not necessary that the taking should be Iwri 
 cavsd ; taking with intent to destroy is sufficient. Dignowitty v. State, 17 Tex. 521 ; 
 Hamilton v. State, 35 Miss. 214. S. 
 
 To constitute larceny it is not necessary thai the property be taken with intent to 
 convert it to the taker's own use. It is sufficient if it be taken with the felonious 
 intent to convert it to the use of a person other tlian the owner. State v. Wellman, 7 
 Crim. Law Mag. 257.
 
 846 LARCENY. 
 
 horses, and witliout any intent of applying them to their private bene- 
 fit." The greater part of tlie judges present appeared to think that 
 this was larceny, because the prisoners took the oats knowingly, 
 against the will of the owner, and without any color of title or of au- 
 thority, with intent not to take temporary possession merely and then 
 abandon it (which would not be larceny), but to take the entire domin- 
 ion over them, and that it made no difference that the taking was not 
 lucrl causd, or that the object of the prisoners was to apply the things 
 stolen in a way which was against the wish of the owner, but might 
 be beneficial to him. But all agreed, that they were bound by the 
 previous decisions to hold this to be larceny, though several of them 
 expressed a doubt if they should have so decided if the matter were 
 res Ititegra. Erie, J., aud Piatt, B., were of a different opinion ; 
 they thought that the former decision proceeded, in the opinion of 
 some of the judges, on the supposition that the prisoners would gain 
 by the taking, which was rejected in this case ; and they were of opin- 
 ion that the taking was not felonious, because to constitute a larceny 
 it was essential that the prisoner should intend to deprive the owner 
 of the property in the goods, which he could not if he meant to 
 apply it to his use. MS. of Parke, B., as given in Denison. But 
 now by the 2S & 27 Vict. c. 103, s. 1, any servant taking from his 
 master's possession any corn, pulse, roots, or other food, contrary to his 
 master's orders, for the purpose of giving the same to his master's 
 horses or other animals, shall not by reason thereof be deemed guilty 
 of or be proceeded against for felony. 
 
 In another case the prisoner was supplied with a quantity of pig- 
 iron by B. & Co., his employers, which he was to put into a furnace 
 to be melted, and he was paid according to the weight of the metal 
 which ran out of the furnace, and became puddle-bars. A. put the 
 pig-iron into the furnace, and also put in with it an iron axle of B. & 
 Co., which was not pig-iron ; the value of the axle to B. & Co., was 
 7s., but the gain to the prisoner by melting it, and thus increasing the 
 quantity of metal which ran from the furnace was Id. Tindal, C. J., 
 held that if the prisoner put the axle into the furnace vvith an intent 
 to convert it to a purpose for his own j^rofit, it was larcenv. R. v. 
 Richards, 1 C. & K. 532, 47 E. C. L. 
 
 While the prisoner took some skins of leather, not with the intent 
 to sell or dispose of them, but to bring them in and charge them as 
 his own work, and get paid by his master for them ; they having been 
 *fi74l *dressed, not by the prisoner, but by another workman ; it was 
 -■ held not to be a larceny. R. v. Holloway, 1 Den. C C. 381. 
 The distinction between this case and the last seems to be this : that 
 in the former there was such a conversion of the goods to the jirison- 
 er's own purposes as that the master never could have them again in 
 their original condition ; whereas in the latter their condition was 
 never altered. So in R. y. Poole, Dears. & B. C. C. 345, the prisoners 
 were in the prosecutor's employ as glove finishers, and the practice was 
 to take the finished gloves into an upper room on the prosecutor's prem- 
 is&s, and lay them on a table, in order that the workmen might be
 
 LARCENY. 847 
 
 paid according to the number they had finished. The prisoners took 
 a quantity of finished gloves out of a store-room on the same premises, 
 and laid them on the table with intent fraudulently to obtain pay- 
 ment for them as for so many gloves finished by them. It was held 
 that this was not larceny. 
 
 Where a servant took his master's goods, and offered them for sale 
 to the master himself, as the goods of another, he was held to be guilty 
 of larceny, as it was clear that he intended to assume the entire 
 dominion over the goods. R. v. Hall, 1 Den. C. C. 381 ; 18 
 L. J., M. C. 62 ; ace. R. v. Manning, Dears. C. C. 21 : 22 L. J., M. 
 C. 21. 
 
 If the prisoner has once assumed the entire dominion over the 
 goods, a return of the goods will not be sufficient to prevent the of- 
 fence amounting to larceny. Thus, where the prosecutrix had deposi- 
 ted a box of plate with the prisoner for safe custody, which he broke 
 open, and took out the plate and pawned it, the jury found a verdict 
 of guilty, but recommended the prisoner to mercy on the ground 
 that they believed that he intended ultimately to return the property. 
 Some of the judges doubted whether this was in law any other than 
 a general verdict of guilty, but all thought that the conviction was 
 good. R. V. Trebilcock, Dears. & B. C. C. 453. See R. v. Peat, 
 supra, p. 649, 
 
 Proof of the intent to deprive the owner of his property — goods 
 taken under a fair claim of right. Of course if the prisoner believe 
 that he has a right to the goods there can be no larceny, even if the 
 goods be taken by force ; because though the seizure be M^rongful, the 
 intent to steal is wanting.^ 2 East, P. C. 659. Thus where the 
 owner of land takes a horse damage feasant, or a lord seizes it as 
 an estray, though perhaps without title, yet these circumstances 
 explain the Intent, and show that it was not felonious ; but these facts 
 may be rebutted, as by showing that the horse was marked, in order 
 to disguise him. 1 Hale, P. C. 506, 507 ; 2 East, P. C. 659, 
 After a seiziu'e of uncustomed goods, several persons broke, at night, 
 into the house where they were deposited with intent to retake them 
 for the benefit of the former owner ; it was held that this design 
 rebutted the presumption of a felonious intent. R. v. Knight, 2 East, 
 P. C. 510, 659. 
 
 Whether the taking of corn by gleaners is to be considered as a 
 trespass only, or whether it is to be regarded as a felony, must de- 
 pend upon the circumstances of the particular case. In some places 
 a custom, authorizing the practice of gleaning, is said to exist ; in 
 others, it is sanctioned by the permission of the tenant of the land ; 
 
 ^ Where property is taken in a fair color of claim or title, a felonious intent is 
 wanting, and it is therefore no larceny. St .te v. Holmes, 17 Mo. 379. S. Debbs v. 
 State, 43 Tex. 680. 
 
 Where evidence of the defendant's good faith, in appropriating the property, under 
 a fair claim of right, leaves a reasonable doubt of the fraudulent intent, he should be 
 acquitted. Camplin v. State, 1 Tex. App. lOS. It is error for the court to fail to 
 instruct on such evidence. Ray v. State, 13 Tex. App. 51.
 
 848 LARCEXY. 
 
 and even where no right whatever exists, yet if the party carry away 
 the corn under a mistaken idea of right, the act would not amount 
 to larceny, the felonious intent being absent. A conviction is said 
 to have taken place at the Old Bailey, upon an indictment for the 
 ^^r-c-i *exercise of this supposed right; but the circumstances of the 
 ^ J case are not stated. 2 Kuss. Cri. 203, 5th ed. See li. v. Price, 
 4 Burr. 1925; 1 H. Bl. 51. 
 
 Larceny of goods found. A good deal of trouble has been caused 
 by cases of goods obtained by finding. It will be useful .to consider, 
 in reference to these cases, both what is the right of a person who finds 
 goods, and what is necessary to constitute larceny. 
 
 The right of a person who finds goods is to take possession of them, 
 if they have no apparent owner. 
 
 If at the time the property be taken possession of there be no 
 apparent owner, the subsequent discovery of one will not render the 
 original taking unlawful, nor will it render the finder a bailee for the 
 true owner. No conversion of the property, therefore, subsequent 
 to the discovery of the true owner, will render the finder guilty of 
 larceny. 
 
 In order, therefore, to constitute a larceny of lost goods, there must 
 be a felonious intent at the time of the finding, coupled with reason- 
 able means at the same time of knowing the owner. It will be found 
 that this is the result of the following authorities.^ 
 
 The great question, therefore, is to discover when the property can 
 be said to have no apparent owner. That has been the main subject 
 for discussion in the following cases. 
 
 A gentleman left a trunk in a hackney coach, and the coachman, 
 taking it, converted it to his own use, this was held to be a larceny ; 
 for the coachman must have known where he took the gentleman up, 
 
 ^ State V. Weston, 9 Conn. 527 ; People v. McGowen, 17 Wend. 460 ; Contra, People 
 V. Anderson, 14 Johns. 294. See Penna. v. Becomb et al., Addis. 386 ; Tvler v. People, 
 1 Bree. 227 ; Porter v. State, Martin & Yerg. 226 ; State v. Jenkins, 2 Tyl. 379 ; Peonle 
 V. Swan, 1 Parker, C. R. 9 ; State v. McCann, 19 Mo. 249 ; Pritchett v. State, 2 Sneed, 
 285; Hunt v. Commonwealth, 13 Gratt. 757 ; People v. Kantz, 3 Parker, C. R. 129; 
 Pyland v. State, 4 Sneed, 357. The finder of lost goods, who takes possession of tliem 
 not intending to steal them, at the time of the original taking, is not rendered guilty 
 of larceny by any subsequent felonious intention to convert them to his own use. 
 Ransom v. State, 22 Conn. 153; FuUon r. State, 8 Eng. 168; State !'. Conway, 18 Mo. 
 321. A servant picked up a ring in the house of her mistress, knowing it to have 
 been accidentally dropped by tlie latter and to belong to her, and when questioned a 
 few minutes afterwards denied having taking it, and having concealed it, within a few 
 weeks carried it to a distant city and offered it for sale, held larceny. State v. Cum- 
 mings, 33 Conn. 260; Long v. State, 11 Fla. 295. A person having lost a carpet-bag 
 in the street, employed another to find it. The bag was found but concealed by the 
 latter ; held that the act was not larceny, but only a breach of trust. State r. Eng- 
 land, 8 Jones (Law) 399. The finding and conversion of property without the knowl- 
 edge of the owner is not larceny. State v. Taylor, 25 la. 273. Where property (e. g. 
 a pocket-book containing bank-bills) with no mark about it indicating the owner, was 
 lost, and found in the highway, and tliere was no evidence to show that the finder at 
 the time knew who the owner was ; held, that he could not be convicted of larceny, 
 though lie fraudulently, and with intent to convert the projierty to his own use, con- 
 cealed the same immediately afterwards. People v. Cogdell, 1 Hill, 94. See Law- 
 rence V. State, 1 Humph. 228. S.
 
 LARCENY. 849 
 
 and where lie set him down, and onght to have restored his trunk to 
 him. 11. V. Lamb, 2 East, P. C 664. The prosecutor having had 
 his hat knocked off in a quarrel with a third person, the prisoner 
 picked it up, and carried it home. Being indicted for larceny, Parke, 
 J., said, " If a person picks up a thing, and knows that he can imme- 
 diately find the owner, but instead of restoring it to the owner con- 
 verts it to his own use, this is felony." R. v. Pope, 6 C. & P. 346, 25 
 E. C. L. 
 
 In the case of Merry v. Green (which was an action of trespass for 
 false imprisonment) a person purchased at a public auction a bureau, 
 in which he afterwards discovered in a secret drawer, a purse contain- 
 ing several sovereigns. The contents of the bureau were not known 
 to any one. The purchaser having appropriated the money to his own 
 use, it was held that there was a taking which amounted to a tres- 
 pass, and that he was guilty of larceny ; it was held also, that a 
 declaration by the auctioneer, that he sold all that the bureau con- 
 tained with the article itself, would have giv^en the purchaser a color- 
 able right to the contents, in which case the abstraction of the money 
 would not have been felonious. In the course of the argument in this 
 case, one of the counsel asked, " If the original possession is lawful, 
 when is the felony committed ?" Parke, B., interrupting him, said, 
 " Why, suppose a person find a cheque in the street, and in the first 
 instance takes it up merely to see what it is; if afterwards he cashes 
 it, and appropriates the money to his own use, that is felony ; though 
 he is a mere finder till he looks at it." In delivering the 
 judgment of the court, the same learned baron said, "The old rule 
 in Coke's 3rd Inst. 108, 'that if one lose his goods, and another find 
 them, though he convert them, animo furandi, to his own use, is no lar- 
 ceny,^ has undergone in more recent times some limitations ; one is, 
 that if the finder knows who the owner of the lost chattel is, or if 
 *from any mark upon it, or the circumstances under which it i-^^y^ 
 is found, the owner could be reasonably ascertained, then the ■- 
 fraudulent conversion animo furandi constituted a larceny. ... It 
 is said that the oifence 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 by him, meant from the first to appropriate it 
 to his own use, he does not acquire it by a rightful title, and the tru-e 
 owner might maintain trespass ; and it seems also, from R. v. Wynne, 
 1 Leach, 413, that if, under the like circumstances, he acquire posses- 
 sion and mean to act honorably, but afterwards alter his mind, and 
 open the parcel, with intent to embezzle the contents, such unlawful 
 act would render him guilty of larceny." Merry v. Green, 7 M. & W. 
 623. 
 
 The whole law with reference to this subject was considered in the 
 elaborate and learned judgment of Parke, B., in R. v. Thurburn, 1 
 Den. C. C. R. 387 ; 18 L. J., M. C. 140. The prisoner found a bank- 
 note, which had been accidentally dropped on the high road. There 
 was no name or mark on it indicating ^vho was the owner, nor were 
 ^4
 
 850 LARCENY. 
 
 there any cJreumstanees attending the finrling whieh would enable him 
 to discover to whom the note belonged when he picked it up ; nor had 
 he any reason to believe that the owner knew where to find it again. 
 The prisoner meant to appropriate it to his own use when he picked 
 it up. The day after, and before he had disposed of it, he was in- 
 formed that the prosecutor was the owner, and had dropped it acci- 
 dentally ; he then changed it, and appropriated the money taken to his 
 own use. The jury found that he had reason to believe, and did be- 
 lieve, it to be the prosecutor's property before he thus changed the 
 note, and the prisoner was convicted. The court held that the convic- 
 tion was wrong. 
 
 The above case was fully supported in the case of R. v. Glyde, 37 
 L. J., M. C. 107; L. R. 1 C. C. R. 139, where a man found a sove- 
 reign, and had no means of knowing the owner, but intended at the 
 time of finding to keep the sovereign as against the owner, and upon 
 the owner being found refused to give up the sovereign. It was held 
 that this was no larceny. See also R. v. Matthews, 12 Cox, C. C. R. 
 489. 
 
 In R. V. Preston, 2 Den. C. C. R. 353 ; 21 L. J., M. C. 41, a case 
 of a lost bank-note found by a person who appropriated to his own 
 use, it was decided that the jury are not to be directed to consider at 
 what time the prisoner after taking it into his possession resolved to ap- 
 propriate it to his own use, but whether, at the time he took possession 
 of it, he knew, or had the means of knowing, who the owner was, and 
 took possession of the note with intent to steal it ; for if his original 
 possession of it was an innocent one, no subsequent change of his 
 mind or resolution to appropriate to his own use would amount to 
 larceny. 
 
 Where the prisoner was indicted for stealing a watch, which he 
 had found, and the jury returned the following verdict : " We find 
 the prisoner not guilty of stealing the watch, but guilty of keeping it 
 in the hope of reward from the time he first had the watch," this was 
 held to amount to a finding of not guilty. R. v. Yorke, 1 Den. C. C. 
 R. 335; 18 L. J., M. C. 38. So also where a boy found a cheque 
 and the prisoner obtained it from him, knowing to whom it belonged, 
 and kept it in the hope of getting a reward for it. It was held that 
 this was not a larceny. R. v. Gardner, 32 L. J., M. C. 35. Where 
 *fi771 *th^ j^^y found that the notes were lost, that the prisoner did 
 J not know the owner, but that it was probable tliat he could have 
 traced him, it was held that the prisoner was not bound to do that, and 
 that he had been wrongfully convicted of stealing the notes. R. v. 
 Dixon, 25 L. J., M. C. 39. 
 
 As to what is lost property was considered in R. v. West, 1 Dears. 
 C. C. R. 402 ; 24 L. J., M. C. 4. A purse containing money was left 
 by a purchaser on the prisoner's stall. A third person afterwards 
 pointed out the purse to the prisoner, supposing it to be hers. She 
 put it in her pocket, and afterwards concealed it ; and on the return 
 of the owner denied all knowledge of it. The jury found that the 
 prisoner took up the purse knowing that it was not her own, and
 
 LA.ECENY. - 851 
 
 intending at the time to appropriate it to her own use, but that she 
 did not know who was the owner at the time she took it. It was held, 
 under these circumstances, that the purse was not lost property, and 
 that the prisoner was properly convicted of larceny. 
 
 In U. V. Christopher, 1 Bell, C. C. 27 ; 28 L. J., M. C. 35, the court 
 distinctly laid down the principle, that in order to convict the finder 
 of property of larceny, it is essential that there should be evidence of 
 an intention to appropriate the property, at the time of finding. In 
 that case the learned judge had told the jury that a felonious intent 
 was necessary to every larceny, but that the intent might be inferred 
 from acts subsequent to, as well as immediate upon, the finding, and 
 that if the prisoner, when he discovered the owner, did not take 
 measures to make restitution, they might from his behavior infer 
 such an intention. The Court of Criminal Appeal, however, held 
 this direction wrong, as it was calculated to lead the jury to suppose 
 that a felonious intent subsequent to the finding was sufficient, and 
 not merely that they might look at the subsequent circumstances, 
 with a view of seeing what was the intention at the time of finding. 
 
 In R. V. Dcaves, 11 Cox, C. C. R. 227 (Irish), the prisoner's child 
 found six sovereigns and brought them to the prisoner, who told the 
 bystanders she had found one sovereign only, and offered to treat 
 them. The prisoner also found a half sovereign and a bag at the spot 
 where the child had found the money. The same evening the pris- 
 oner gave a half sovereign to a woman who came to inform the pris- 
 oner that the owner was found. Four of the learned judges thought 
 there was no evidence to show that the prisoner knew the property 
 had an owner, while three of them thought the fact of concealing the 
 amount at the time of finding and buying the silence of those who 
 knew of the matter, was evidence that the prisoner believed that the 
 owner could be found. 
 
 In R. V. Moore, L. & C. 1 ; 30 L. J., M. C. 77, the prisoner was 
 indicted for stealing a bank-note. It appeared that a customer 
 having made a payment in the prisoner's shop from a purse in which 
 the bank-note was, dropped the note there. In answer to questions 
 put to them, the jury found : First, that the prisoner found the note 
 in the shop ; secondly, that the prisoner at the time he picked up the 
 note did not know, nor had he the means of knowing who the owner was ; 
 thirdly, that he afterwards acquired a knowledge of who the owner 
 was, and after that he converted the note to his own use ; fourthly, 
 that the prisoner intended when he picked up the note, to take it to 
 his own use, and deprive the owner of it, whoever he might be ; 
 fifthly, that the prisoner believed at the time he picked up the note, 
 that the owner could be found. The Court of Criminal Appeal held 
 *that the prisoner was rightly convicted of larceny, apparently r*/^7D 
 resting their judgment on the fourth finding, and disregard- ^ 
 ing the third finding, which is inconsistent with it. Perhaps all that 
 the jury meant by the third finding was that, having appropriated the 
 note from the first, the prisoner did not, after he discovered the owner, 
 alter his mind and intend to return it. It is also difficult to reconcile
 
 852 LARCENY. 
 
 the fifth finding with the second ; but here again the court probably 
 considered that, taken together, the two findings came to this, that 
 there were no marks apparent on the fiice of the note indicating who 
 was the owner, but that the prisoner might, nevertheless, if he had 
 taken reasonable pains, have ascertained who was the owner. At 
 any rate, there is no indication that the court had any intention of 
 overruling the previous cases. It is perhaps very doubtful, whether 
 t'ae property was, strictly speaking, lost property at all. See R. v. 
 West, supra. 
 
 Cases of cattle taken by mistake, or straying into a field and sub- 
 sequently appropriated, will be found, ante, p. 651. 
 
 Larceny by the owner. It is of course under ordinary circum- 
 stances impossible for a man to commit larceny by taking possession 
 of his own property. But there is a passage in the Year Book, 7 H. 
 6, 45 a, in which it is said, " that if I bail to you certain goods to 
 keep, and then retake them feloniously, that I should be hung for it, 
 and yet the property was in me : and Norton said that this was law." 
 This passage, however, at least requires qualification. It is repeated 
 in all the criminal treatises, with the addition that it is felony if the 
 goods be taken " with a fraudulent design to charge the bailee with 
 the value." ^ 1 Hale, P. C. 513, 514; Foster, 123; 2 East, P. C. 
 558 ; 4 Bl. Com. 331. In P. v. Wilkinson, Puss. & Ry. 470, it 
 appeared that the prosecutors were lightermen, and were employed 
 by one C, a merchant, to pass nux vomica through the custom-house. 
 The prosecutors entered it for a vessel about to sail, then lying in 
 the London Docks, and having done what was necessary, delivered 
 back the cocket-bill and warrants to C, and joined with C. in a bond 
 to government to export these goods. The prosecutors then em- 
 ployed the prisoners to convey the goods to the ship, and lent them 
 one of their lighters for the purpose. The prisoner W. accordingly 
 took the nux vomica on board the lighter, but instead of delivering 
 it on board the ship, he, in company with and assisted by the other 
 prisoner, M., emptied the bags and refilled them with cinders ; the 
 nux vomica was then sent by them to London, and the bags of 
 cinders delivered on board as and for the nux vomica. The prisoners 
 were indicted for stealing nux vomica, the property of the prosecutors^ 
 but it appeared at the trial that it was really the property of the 
 prisoner M., and that C. had only lent his name to facilitate the pass- 
 ing of the goods at the custom-house. It was also j)roved that the 
 object of the transaction was to defniud the government of the 
 duty. The case was considered by eleven judges. Four of them 
 thought that it was no larceny, as there was no intent to cheat the 
 prosecutors, but only the crown. Seven of the judges held it lar- 
 ceny, because the prosecutors had a right to the possession until the 
 goods reached the ship ; and they had' also an interest in that posses- 
 
 * A man may steal his own property, if, by taking it, it is his intent to charge a 
 bailee with it. People r. Stone, 16 Cal. 369'; People v. Thompson, 34 Cal. 671. Contra, 
 Commonwealth v. Tobin, 2 Brewster, 570. &.
 
 LARCENY. 853 
 
 sion, and the intent to depriv^e them of their possession wrongfully 
 and against their will was a felonious intent as against them, beeause 
 it exposed them to a suit upon the bond. In the opinion of part of 
 *the judges this would have been larceny, although there had r^r.jQ 
 been no felonious intent against the prosecutors, but only an L 
 intontiou to defraud the crown. 
 
 It may be doubted whether the law has not been somewhat distorted 
 in this case in order to punish a flagrant fraud. If the prisoner, 
 who was the true owner of the goods, had demanded them, the 
 prosecutors could scarcely have refused to deliver them to him ; so 
 that the decision at least comes to this, that the prisoner obtaining 
 possession of his OAvn goods, to which possession he has an unde- 
 niable right, by a false pretence, Avith intent to defraud, is guilty 
 of larceny. 
 
 There might be a difference in cases where the bailee has a right 
 to retain the property as a pledge or security, as in that case he has 
 more than the bare possession ; he is Mdiat is called a special 
 froperty in the goods ; but it is extremely difficult to reconcile even 
 this case with any accurate view of the offence of larceny ; and, 
 moreover,'the case of R. v. Wilkinson stands almost, if not quite, 
 alone. 
 
 Larceny by part owners. As with owners so with part owners, 
 a larceny cannot in general be committed of the goods which they 
 have in common, for one part owner taking the whole only does that 
 which by law he is permitted to do.^ Hale, P. C. 513. This, upon 
 principle of common law, would not apply to a larceny of the goods 
 of a corporation by a member, because an individual member has no 
 riglit of property or possession in the goods of the corporation ; and 
 it might be doubtful whether it applied where by mutual arrange- 
 ment the part owner had no right to the possession of the goods, 
 or when it was clear that there was an intention by the part owner 
 to deprive his partners entirely of their property ; the passage in 
 Hale means no more than that a part owner, in the absence of any 
 arrangement to the contrary, may assume the entire possession with- 
 out committing a trespass. The state of the law has now, however, 
 been materially altered by the 31 & 32 Vict. c. IIG, s. l,ante, p. 644. 
 It has been held that that enactment d >ns not apply to a receiving of 
 goods stolen bv a partner. R. v. Smith, L. R. 1 C. C. R. 266 ; 39 
 L.J.,M.C. 112. 
 
 In R. V. Bramley, Russ. & Ry. 478, the prisoner was indicted for 
 burglary. It appeared that she was a member of a friendly society, 
 and that the money of the society was kept in a box at the house of 
 T. N. She broke into the house and carried off the box. In the 
 indictment the property was laid in one count as belonging to T. N.; 
 
 * One entitled to receive a sliare of a crop for his services, is not joint-tenant or ten- 
 ant in common with his employer, and commits larceny in stealing a part. State v. 
 Gay, 1 Hill, 364. On an indictment for stealing the goods of A. and B., evidence that 
 some belonged to A. and some to B. will not do. State o. liyau, 4 McC. Ifc). S,
 
 854 LARCENY. 
 
 and in the other as belonging to the three stewardesses of the so- 
 ciety. The question reserved was, whether, considering the situa- 
 tion the prisoner stood in with respect to the property, the convic- 
 tion was proper ; and ten judges were clear that as T. N. was respon- 
 sible/or the loss of the property the conviction was right. In the case 
 of R. V. Webster, 31 L. J., M. C. 17, the same point arose as in that 
 of R. V. Braraley. There H. was the sole manager of the business 
 of a friendly society, and, as such, carried on a shop, in the profit and 
 loss of which all the members shared. H. was responsible for all the 
 moneys of the society coming into his possession. The prisoner 
 was also a member of the society, and assisted H. in the manage- 
 ment of the shop. On one occasion the prisoner had taken some 
 sovereigns from the till and appropriated them. It was held that 
 the prisoner might be convicted on an indictment laying the money 
 ♦Asm *^ *^^^ property of H. alone. See also R. v. Burgess, L. & C. 
 "J 299 ; 32 L. J., M. C. 185. The prisoner was an officer of a 
 friendly society, some of whose rules were in restraint of trade, but it 
 was held that as the rules were not criminal, the society was entitled 
 to the protection of the criminal law, and that the prisoner who had 
 fraudulently appropriated the funds of the society, was guilty of em- 
 bezzlement. R. V. Stainer, L. R., 1 C. C. R. 230. 
 
 With regard to friendly and other societies, the difficulty is met by 
 the diffi^rent statutes mentioned, supra, p. 646. The effect of this 
 seems to be to vest the property in the trustees as against the members 
 of the society. R. v. Cain, 2 Moo. C. C. 204. See also 7 Geo. 4, c. 
 64, s. 14, sitpm, p. 644. 
 
 In cases of partnerships not proved to be incorporated, it is suffi- 
 cient to state that the property is the property of one of the partners 
 by name, and others. See 7 Geo. 4, c. 64, s. 14, and 31 & 32 Viet, 
 c. 116, s. 1, ante, p. 644. As to incorporated companies, see post, p. 
 690. 
 
 A Bible had been given to a society of Wesleyan dissenters, and 
 was bound at the expense of the society. No trust deed was produced. 
 The Bible having been stolen, the indictment charged the property to 
 be in A. and others. A. was a trustee of the chapel and a member of 
 the society. Parke, J., held the indictment right. R. v. Boulton, 5 
 C. & P. 537, 24 E. C. L. It is not requisite that a strict legal part- 
 nership should exist. Where C. and D. carried on business in partner- 
 ship, and the widow of C, upon his death, without taking out admin- 
 istration, acted as partner, and the stock was afterwards divided be- 
 tween her and the surviving partner, but before the division, part of 
 the stock was stolen ; it was held that the goods were properly de- 
 scribed as the joint property of the surviving partner and the widow, 
 upon an objection, that the children of C. ought to have been joined, 
 or the goods described as the property of the surviving partner and the 
 ordinary, no administration having been taken out. R. v. Gabey, 
 Russ. & R. 178. And where a father and son took a farm on tiieir 
 joint account, and kept a stock of sheep, their joint property, and upon 
 the death of the son, the father carried on the business for the joint
 
 LAECENY. 855 
 
 benefit of himself and his son's children, who were infants ; it was 
 held, upon an indictment for stealing sheep bred from the joint stock, 
 some before and some after the death of the son, that the property was 
 well laid in the father and his son's children. R. v. Scott, Russ. & R. 
 13 ; 2 East, P. C. 655. 
 
 By the 1 & 2 Vict. c. 96, s. 1, made perpetual by the 5 & 6 Vict, 
 c. 85 {vide supra, p. 644), in all cases of banking co-partnerships 
 under 7 Geo. 4, c. 46, the members are liable for larceny, embez- 
 zlement, and other criminal appropriation of the goods of the com- 
 pany, in the same way as if they were not members of the company. 
 See Grant, Law of Bankers, p. 601. There does not, however, 
 seem to be any analogous provision with reference to banks formed 
 under subsequent statutes. If, however, they be corporate bodies, 
 there would probably be no difficulty with regard to them for the 
 reason mentioned above. 
 
 In an indictment for larceny from a banking company consisting 
 of more than twenty persons, the property of the goods stolen Avas 
 laid in the public officer. Upon failure of proof of the appointment 
 of the public officer and of the registration of the company, an amend- 
 ment was asked for, and made, stating the property to be in " W. 
 *and others," it being proved that W. was one of the members r^fjpo-i 
 of the company. It was held by the Court of Criminal Ap- L 
 peal that, under the 7 Geo. 4, c. 64, s. 14, the allegation of ownersliip, 
 as amended, was right ; and that the 7 Geo. 4, c, 46, s. 9, did not make 
 it absolutely imperative that the property belonging to a banking com- 
 pany should be laid in their public officer. R. v. Pritchard, 1 L. & 
 C. 34 ; 30 L. J., M. C. 169. 
 
 Larceny by wife. Very akin to the case of larceny by part own- 
 ers was that of larceny by a wife. By the common law if a wife took 
 goods of which the husband was the joint or sole owner, the taking 
 was not larceny, because they were in law but one person, and the 
 wife had a kind of interest in the goods. Hawk. P. C. b. 1, c. 33, s. 19. 
 Therefore, where the wife of a member of a friendly society stole money 
 belonging to the society, lodged in a box in her husband's custody, under 
 the lock of the stewards of the society, it was held by the judges not 
 to be larceny, the property being laid in the husband. R. v. Willis, 1 
 Moody, C. C. 375. But where the prisoner, a married woman, was 
 intrusted with goods and she stole them, the husband being entirely 
 innocent, it was held that she was guilty of either simple larceny or 
 larceny as a bailee. R. v. Robson, L. & C. 93. 
 
 Whether, where a stranger and the wife jointly stole the husband's 
 propertv, it was larceny in the stranger, was the subject of contradic- 
 tory decisions. R. v. Clark, O. B. 1818, 1 Moo. C. C. 376 (n); R. v. 
 Tolfree, 1 Moody, C. C. 243. In R. v. Rosenberg, 1 C. & K. 233, 
 47 E. C. L., in reply to a remark from counsel, that there is a passage 
 in Dalton's Justice as to the delivery of the husband's goods by the 
 wife to the adulterer constituting felony in him, Parke, B., said, " If 
 that question arose, I should reserve it for the opinion of the judges.'*
 
 856 LARCENY. 
 
 The point has been twice reserved for the opinion of the Court of 
 Criminal Appeal. In R. v. Thompson, 1 Den. C. C. R. 549, the pris- 
 oner went away with the prosecutor's wife, and lived with her at Birm- 
 ingham as man and wife ; they took with them from the prosecutor's 
 house several articles belonging to him, which were used in their house 
 at Birmingham. The chairman of quarter sessions directed the jury 
 to find the prisoner guilty, if they came to the conclusion either that 
 the prisoner, going away with the prosecutor's wife for the purpose of 
 an adulterous intercourse, was engaged jointly with her in taking the 
 goods ; or, secondly, that not being a party to the original taking or 
 removal, the prisoner, after arriving at Birmingham, appropriated any 
 part of the goods to his own use. The jury found the prisoner guilty ; 
 adding, that they did so on the ground that there was a joint taking 
 by the prisoner and the prosecutor's wife ; and the court were unani- 
 mously of opinion that the conviction was right.^ In R. v. Feather- 
 stone, 1 Dears. C. C. R. 369, 23 L. J., M. C. 127, the prosecutor's 
 wife had taken from his bedroom thirty-five sovereigns, and on leav- 
 ing the house, called out to the prisoner, who was in a lower room of 
 the house, " George, it is all right, come on." The prisoner left a few 
 minutes afterwards, and he and the prosecutor's wife were traced to a pub- 
 lic-house, where they passed the night together. When taken into cus- 
 tody, the prisoner had twenty -two sovereigns upon him. The jury found 
 the prisoner guilty, stating, that they did so "on the ground that he 
 received the sovereigns from the wife, and that she took them 
 *ftS91 *without the authority of her husband." The court held that 
 -' the conviction was right. "The general rule," said Campbell, 
 C. J., in giving judgment, " is, that a wife cannot be convicted of lar- 
 ceny for stealing the goods of her husband. It is no larceny in her 
 to carry away her husband's goods, as husband and wife are one. But 
 the law has properly qualified that general rule by saying, that if a 
 wife commit adultery, and then steal the goods of her husband with 
 the adulterer, she has determined her quality of wife, and is no longer 
 looked upon as having any property in the goods, and the person who 
 assists her is guilty of larceny. I think the case of the prisoner must 
 be considered in the same light as if he had taken the goods himself. 
 This is not the case of a receiving of the goods from the wife, but the 
 prisoner is supposed actually to have assisted her in taking them." 
 The dictum of Lord Campbell (supra), " that adultery determined the 
 quality of wife," was considered misleading, as tending to show an ex- 
 ception to the general rule that a wife cannot be convicted of stealing 
 the goods of her husband. It seems that the question whether the wife 
 had no authority from the husband to take the goods is one for the 
 jury, and may or may not be inferred from the fact of her having com- 
 mitted adultery. R. v. Kenny, infr'a. "It is said in Russell on 
 Crimes, 148, 5th ed., 'If the wife steal the goods of her husband, and 
 deliver them to B., who, knowing it, carries them away, B. being the 
 adulterer of the wife, this, according to a very good opinion, would be 
 felony in B., for in such case no consent of the husband can be pre- 
 ' People V. Schuyler, 6 Cowerij 572. S.
 
 LARCENY. 857 
 
 sumed.' That is this very case. The prisoner was tlie adulterer of the 
 wife, and knew that the goods were carried away without the consent of 
 the husband. This case is within the express authority of the rule 
 which is first laid down in Dalton, c. 104, p. 268, and to be found in 
 every book on the criminal law." It is the same whether the adultery 
 be actually committed or only intended. R. v, Tollett, C. & Mar. 112; 
 R. V. Thompson, supra. And the fact that the man was in the hus- 
 band's service, and acted under the wife's directions in removing the 
 property, is no answer to a charge of stealing. R. v. Mutters, L. & C. 
 511 ; 34 L. J., M. C. 54. But the male prisoner cannot be convicted 
 of stealing the husband's money unless he be proved to have taken some 
 active part in removing the goods or spending the money. R. v. 
 Taylor, 12 Cox, C. C. 627. If the wife and the adulterer take away 
 only the wife's wearing apparel, it is not larceny. R, v. Fitch, Dears. 
 & B. C. C. 187 ; 26 L. J., M. C. 169. Formerly if there was no evi- 
 dence that an adultery had been committed or intended, then a ques- 
 tion arose \vhether a stranger who took the goods of the husband was 
 exonerated by the wife being privy and consenting thereto. But if the 
 wife were the principal in the transaction, and took the goods herself, a 
 stranger could not be convicted as accessory, this being no felony in the 
 principal. R. v. Avery, 1 Bell, C. C. 150 ; 28 L. J., M. C. 27. But 
 this is not the law, see supra. Where there was no evidence of a tak- 
 ing of the goods by any one other than the wife, it was held, under the 
 old law, that the prisoner could not be convicted of receiving the prop- 
 erty, knowing it to have been stolen, though he was found with the 
 wife in Ireland in manual possession of some of the husband's prop- 
 erty, and it was also held that it was immaterial whether the wife 
 had committed adultery or not. R. v. Kenny, L. R. 2 Q. B. D. 307 ; 
 46 L. J., M. C. 156, where the case is more fully reported. The 
 authorities on this subject are collected and the history of the law 
 *relating to it is traced in a note to R. v. Mutters, L. & C. r*/^Qo 
 517-519. There must be a joint possession within the juris- L 
 diction of the court in order to convict the male prisoner of larceny 
 within that jurisdiction. R. v. Prince, 11 Cox, C. C. 145. 
 
 A change, however, has now taken place in the law upon this sub- 
 ject in certain cases, for the effect of sects. 12 & 16 of the Married 
 Women's Property Act, 1882, infra, seems to be that a husband may 
 prosecute his wife for any offence against his property if she is living 
 apart (say malicious injuries or forgery) ; but if they are living together 
 he can only prosecute her if she wrongfully takes any of his property 
 when leaving or deserting or about to leave or desert him. Even 
 where they are living apart he cannot prosecute her for any act done 
 by her when they were living together, unless such property were 
 wrongfully taken by her when she was leaving or deserting or about 
 to leave or desert him. It should seem that whatever else these sec- 
 tions mean the case so frequently arising of a wife taking her hus- 
 band's goods and running off with them is clearly met, and moreover 
 that if she ran away with an avowterer, as she can be found guilty 
 now of stealing, so the avowterer may be found guilty of receiving,
 
 858 LARCENY. 
 
 or of jointly stealing according to the facts. There is no definition of 
 the words "leaving" and "deserting;" and it is doubtful whether 
 they mean anything different or the same thing. Probably the word 
 "leaving" has the wider meaning, though it must be taken with 
 some limitation. The present editor feels so uncertain as to the pre- 
 cise meaning of sects. 12 & 16 that he can only offer the above as 
 a possible interpretation of the law, and set out the sections in 
 full :— 
 
 By sect. 12, "Every woman, whether married before or after this 
 Act, shall have in her own name against all persons whomsoever, in- 
 cluding her husband, the same civil remedies, and also (subject, as 
 regards her husband, to the proviso hereinafter contained) the same 
 remedies and redress by way of criminal proceedings for the protec- 
 tion and security of her own separate property, as if such property 
 belonged to her as a feme sole, but, except as aforesaid, no husband or 
 wife shall be entitled to sue the other for a tort. In any indictment 
 or other proceeding under this section it shall be sufficient to allege 
 such property to be her property ; and in any proceedings under this 
 section a husband or wife shall be competent to give evidence against 
 each other, any statute or rule of law to the contrary notwithstand- 
 ing. Provided always, that no criminal proceeding shall be taken by 
 any wife against her husband by virtue of this Act while they are 
 living together, as to or concerning any property claimed by her, nor 
 while they are living apart, as to or concerning any act done by the 
 husband while they were living together, concerning property claimed 
 by the wife, unless such property shall have been wrongfully taken 
 by the husband when leaving or deserting or about to leave or desert 
 his wife." 
 
 By sect. 16, "A wife doing any act with respect to any property of 
 her husband, which if done by the husband with respect to the prop- 
 erty of the wife would make the husband liable to criminal proceed- 
 ings by the wife under this Act, shall in like manner be liable to 
 criminal proceedings by her husband." 
 
 It has been held, notwithstanding the above sections, that the hus- 
 band is not a competent witness against the wife upon a charge of 
 stealing the husband's goods. K. v. Brittleton, 12 Q. B. D. 266 ; s. 1 
 of the 47 & 48 Vict. c. 14 (see the section, supra). 
 
 *(iAdl *Larceny by husband. Formerly the wife not having sepa- 
 J rate property, and being with the husband one person in the eye 
 of the law, the husband could not be convicted of stealing the wife's 
 goods. But by sect. 12 of the Married Women's Property Act, 1882, 
 supra, p. 683, the property of the wife is protected from the injurious 
 acts of all persons (including her husband) as if she were a feme sole, 
 provided that the wife cannot take criminal proceedings against the 
 husband unless they are living apart, in which case it would seem she 
 can take any criminal proceedings as to or concerning any of her 
 property except for any act done while living together, and she can 
 prosecute him for " taking " her property, i. e., for larceny (if they are
 
 LARCENY. 859 
 
 living apart) committed when leaving or deserting or about to leave or 
 desert. 
 
 Distinction between larceny, embezzlement, and false pretences. 
 The cases ^vhich cxj)laincd the distinction between larceny and embez- 
 zlement have already been stated, ante, pp. 472 and 668. It must 
 be borne in mind that, though by the 24 & 25 Vict. c. 96, s. 72, 
 supra, p. 643, a i)nsoner, on an indictment for larceny, may be found 
 guilty of embezzlement, and on an indictment for embezzlement may 
 be found guilty of larceny, yet the verdict must l)e found according 
 to the facts, and a prisoner cannot be legally convicted of one of these 
 offences on facts which constitute the other. R. v. Garbutt, ante, p. 
 472. 
 
 If the prisoner be indicted for obtaining money or goods by false 
 pretences, and the offence turn out to be larceny, the prisoner is not 
 entitled to be acquitted of the misdemeanor; so that there is no diffi- 
 culty in this ease analogous to that wliich was the subject of decision 
 in R. V. Garbutt, supra, but, at the same time, on an indictment for 
 false pretences, the false pretences must be proved as laid in the in- 
 dictment, see per Crompton, J., R. v. Bulmer, L. & C. 482. If, 
 however, the prisoner be indicted for larceny, and it appears that 
 the offence was really an obtaining by false pretences, the prisoner 
 must be acquitted. It is necessary, therefore, to distinguish the 
 offences. The cases illustrating this distinction will be found at pp. 
 653, 665.^ 
 
 Proof of value. The rule that evidence of some value must be 
 given, for which it is usual to quote R. v. Phipoe, 2 Leach, 680, has 
 been questioned by Parke, B., in R. v. Morris, 9 C. & P. 349, 38 
 E. C. L. ; at any rate, it is said by that learned judge, that it need not 
 be of the value of any coin known to the law. Three pigs which had 
 been bitten by a mad dog were shot and buried, and were the same 
 evening dug up by the prisoner and sold by him for 9^. 3s. dd., it was 
 argued that the pigs had been abandoned, and were of no value to the 
 owner, but the jury found that the pigs were not abandoned, and the 
 Court upheld the conviction. R. v. Edwards, 13 Cox, C. C. 384. 
 Neither is it necessary that the property should be of value to third 
 persons, if valuable to the owner. Therefore a man may be convicted 
 of stealing bankers' reissuable notes, which have been paid.^ R. v. 
 
 ' But see People v. Dumas, 42 Hun, (N. Y.) 80. 
 
 '•' Payne v. People, 6 Johns. 103. Therefore, in larceny of a bank-note, it must be 
 proved to be genuuie. State r. Tillery, 1 Nott. & McC. 9. S. 
 
 A variance in the description of the property stolen is fatal. People v. Coon, 45 
 Cal. 672. An indictment charged the larceny of chickens, the proof showed tliat hens 
 were stolen, held no variance. State r. Bartlett, 34 La. An. 1108. On an indictment 
 for the larceny of a "cast-iron balance wheel" it is no variance if the evidence is 
 that defendants broke it into pieces, to facilitate its removal and then disposed of it. 
 Gettinger v. State, 13 Neb. 308. Where the value of the total property stolen is 
 sufficient to make the theft a felony, the Slate need not show on the trial of one 
 jointly indicted with others how much in value was taken l)y each. Clay v. State, 
 40 Tex. 67. By Louisiana statute the character of money alleged to be stolen need
 
 860 LARCENY. 
 
 Clarke, 2 Leach, 1037 ; R. v. Ransom, Id. 1090; Russ. & %. 232. In 
 R. V. Walsh, Russ. & Ry. 215, the judges are reported to have held 
 (p. 220) that a cheque in the hands of the drawer is of no value, and 
 could not be the subject of larceny. But where the prisoner, who 
 was employed by the prosecutors as an occasional clerk, received from 
 ^ -. *them a cheque on their bankers, payable to a creditor, for the 
 " ^^J purpose of giving it to such creditor, and the prisoner caused 
 the chcfiue to be presented by a third party, and appropriated the 
 amount to his own use : being found guilty of stealing tlie cheque, the 
 judges affirmed the conviction. R. v. Metcalf, 1 Moo. C. C, 433. See 
 tit. "Written Instruments." 
 
 In certain statutory felonies, as stealing trees, etc., the article stolen 
 must be proved to be of a certain value, infra, tit. " Trees." In such 
 cases of course the value must be proved. As to allegations of value 
 in the indictment, see supra, pp. 86 and 91. 
 
 Proof of ownership — cases where it is unnecessary to allege or 
 prove ownership. In some cases, in consequence of the provisions of 
 certain statutes, it is unnecessary either to allege or prove the owner- 
 ship of the property stolen, as upon an indictment under the 24 & 25 
 Vict. c. 96, s. 31, ante, p. 533, in which many of the judges thought 
 that the right way of laying the case was, to allege the lead to have 
 been fixed to a certain building, etc., without stating the property to be 
 in any one. R. v. Hickman, 2 East, P. C. 593. So by 24 & 25 Vict. 
 c. 96, s. 29, upon an indictment for stealing a will, etc., it shall not 
 be necessary to allege that such will, etc., is the property of any per- 
 son ; and the same with regard to stealing records, etc., s. 30 ; see infra, 
 tit. " Written Instruments." ^ 
 
 not be described in an indictment for larceny. State v. King, 37 La. An. 91. An in- 
 dictment for larceny of three articles is sustained by proof of one only. State v. 
 Evans, 23 S. C. 209. Where a statute makes it larceny to appropriate or convert to 
 one's use a railroad ticket or pass, the value of such ticket or pass is immaterial, and 
 a conviction may be sustained v/ithout averring or proving the value thereof. The 
 crime is complete, when the person steals or embezzles the coupon, railroad ticket or 
 pass. McDaniels v. People, 118 111. 301. 
 
 ^ To sustain an indictment for larceny, proof must be adduced that the goods 
 alleged to be stolen are the absolute or special property of the person named as 
 owner in the indictment, and that a felony has been committed. State v. Furlong, 19 
 Me. 225. If the goods of A. be stolen by B., and afterwards they be stolen from B. 
 by C, an indictment against the latter may allege the title to be in either A. or B., at 
 the election of the pleader. Ward v. People, 3 Hill, 395 ; 6 Hill, 144. See also Sta,te 
 V. Furlong, 19 Me. 225 ; Commonwealth v. Doane, 1 Cush. 5. S. 
 
 Where the proof adduced shows the property to have been in a person different 
 from the one alleged in the indictment, it is a fatal variance. Case v. State, 12 Tex. 
 App. 228. A failure to set forth tlie Cliristian name of the owner in full is not such 
 a variance as to entitle the defendant to an acquittal. Thompson v. State, 48 Ala. 165. 
 Nor does the omission of a word in tlie description of ownership in the indictment 
 render it fatally defective. Abernathy v. State, 78 Ala. 411. But proof that the 
 property stolen belongs to the wife of the person named in the indictment, acquired 
 by gift after marriage, will not sustain a verdict of guilty. Stevens v. State, 44 Ind. 
 469. Where a larceny from the person is clearly proved the person from whom the 
 property was taken need not be produced at the trial. People v. Wiggins, 28 Hun, 
 (N. Y.) 308, s. c. 92 N. Y. 656. Contra, State v. Moon, 41 Wis. 684, where want of 
 consent is to be proved. Where the question of ownership was in issue, the State
 
 LARCENY. 861 
 
 Proof of the ownership — intermediate tortious taking. It is an 
 
 established and well-known rule of law, that the possession of the 
 true owner of goods cannot be divested by a tortious taking ; and, 
 therefore, if a person unlawfully take my goods, and a second person 
 take them again 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. Per Gould, J., delivering 
 the opinion of the judges, R. v. Wilkins, 1 Leach, 522. If A,, says 
 Lord Hale, steal the horse of B., and after C. steal the same horse 
 from A., in this case C. is a felon, both as to A. and B., for, by the 
 theft by A., B. lost not the property, nor in law the possession of his 
 horse, and therefore C. may be indicted for felony in taking the horse 
 of B. 1 Hale, P. C. 507. But if A. steals the horse of B., and after- 
 wards delivers it to C, who was no party to the first stealing, and C. 
 rides away with it, animo fwandi, 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 to A., for he had it 
 by his delivery. Id. The doctrine as to property not being changed 
 by felony, holds also with regard to property taken by fraud, for other- 
 wise a man might derive advantage from his own wrong. Per Gould, 
 J,, 1 Leach, 523 ; Noble v. Adams, 7 Taunt. 39, 2 E. C. L. ; Kelby 
 V. Wilson, Ry. & Moo. N. P. C. 178 ; Irving v. Motley, 7 Bingh. 
 543, 20 E. C. L. 
 
 Proof of ownership — of goods in custodia legis. Goods seized 
 by the sheriff under a fi. fa. remain the property of the defendant until 
 a sale. Lucas v. Nockells, 10 Bingh. 182, 25 E. C. L. A sheriff's offi- 
 cer seized goods under afi.fa. against J. S., and afterwards stole part 
 of them. The indictment against him described the goods as the goods 
 of J. S., upon which it w^as objected that they were no longer the goods 
 of * J. S., and should have been described as the goods of the sher- r*po/^ 
 iff; but upon the point being reserved, the judges held that not- L 
 withstanding the seizure, the general property remained in J. S., and 
 the loss would fall upon him if they did not go to liquidate the debt ; 
 that the seizure left the debt as it was, and that the whole debt con- 
 tinued until the goods were applied to its discharge. R. v. Eastall, 2 
 Russ. on Cri. 250, 5th ed. 
 
 Proof of ownership — goods of an adjudged felon. The goods of 
 an adjudged felon, stolen from his house, in the possession of, and ac- 
 cupation of his wife, may be described in an indictment for larceny as 
 the goods of the Queen ; but the house cannot be so described without 
 office found. R. v. Whitehead, 2 Moo. C. C. 181 ; 9 C. & P. 429, 38 
 E. C. L. 
 
 alleging that the defendant had sold his interest in the property before the larceny, 
 the alleged purchaser should be called as the best evidence of the real ownersliip. 
 Hunter v. State, 13 Tex. App. 16. An unrecorded brand is admissible to aid in proving 
 the identity of a stolen animal, the title being established by other testimony. Poage 
 V. State, 43 Tex. 454
 
 862 LARCENY. 
 
 Forfeiture is now, however, abolished, except as to outlawry. The 
 goods of a " convict," that is, of a person under judgment of penal 
 servitude or death, Avill vest in the administrator of Ills estate appointed 
 under the 33 & 34 Vict. c. 23, s. 10. 
 
 Proof of ownership — goods in possession of children. Clothes and 
 other necessaries, provided for children by their parents, are often 
 laid to be the property of the parents, especially where the children 
 are of tender age ; but it is good either way. 2 East, P. C. 654 ; 
 2 Russ. Cri. 253, 5th ed. In a case at the Old Bailey, in 1701, it was 
 doubted 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. But Tanner, an ancient clerk in 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, whicli had laid them to be the prop- 
 erty of the father, had been ordered to be altered by the judges. 
 2 East, P. C 654. Where a son, nineteen years of age, was appren- 
 ticed to his father, and in pursuance of the indentures of apprentice- 
 ship was furnished with clothes by the father, it was held that the 
 clothes were the property of the son exclusively, and ought not to 
 have been laid in the indictment to be the property of the father. 
 R. V. Forsgate, 1 Leach, 463. Where the prisoner was indicted for 
 stealing a pair of trousers, the property of J. Jones, and it appeared 
 that J. Jones bought the cloth of which the trousers were made, and 
 paid for it, but the trousers 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 apprentice, but a laborer 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." R. v. Hughes, 2 Russ. Cri. 253, 5th 
 ed. ; Carr. & M. 593, 41 E. C. L. In R. v. Green, Dears. & B. C. C. 
 113, it appeared that A. was a boy of fourteen years of age, living 
 with and assisting his father ; that the boots which the prisoner was 
 charged with stealing were the property of the father, but that at the 
 time they were stolen A. had the temporary care of the stall from 
 which they were taken. It was held that the ownership of the goods 
 could not properly be laid in A. 
 
 Proof of ownership — goods in possession of bailees. Any one who 
 has a special property in goods stolen, may lay them to be his in an 
 indictment, as a bailee, pawnee, lessee for years, carrier, or the like ; 
 *fiS7"l ^(^fo^^^ori, they may be laid to be the property of the respect- 
 J ive owners, and the indictment is good either way. But if it 
 appear in evidence that the party, whose goods they arc laid to be, had 
 neither the property nor the possession (and for this purpose the pos- 
 session of a, feme covert or servant is, generally speaking, the possession 
 of the husband or master), the prisoner ought to be acquitted on that
 
 LARCENY. 863 
 
 indictment. 1 Hale, P. C. 413 ; 2 East, P. C. 652. Many cases have 
 been decided on this principle. 
 
 Goods stolen from a washerwoman, who takes in the linen of other 
 persons to wash, may be laid to be her property ; for persons of this 
 description have a possessory property, and are answerable to their 
 employer, and could all maintain an appeal of robbery or larceny, and 
 have restitution. R. v. Packer, 2 East, P. C. 653 ; 1 Leach, 357 (n). 
 So an agister, who only takes in sheep to agist for another, may lay 
 them to be his property ; for he has the possession of tliem, and may 
 maintain trespass against any who takes them away. R. v. Woodward, 
 2 East, P. C. 653 ; 1 Leach, 357 (n). A coach-master in whose coach- 
 house a carriage is placed for safe custody, and who is answerable for 
 it, may lay the property in himself R. v. Taylor, 1 Leach, 356. So 
 where a glass was stolen from a lady's chariot, which had been put up 
 in a coach-yard, at Chelsea, while the owner was at Ranelagh, the 
 property was held to be properly laid in the master of the yard. R. v. 
 Statham, cited 1 Leach, 357. Goods at an inn, used by a guest, when 
 stolen, may be laid to be either the property of the innkeeper or the 
 guest. R. V. Todd, 2 East, P. C. 653. Where the landlord of a pub- 
 lic house had the care of a box belonging to a benefit society, and by 
 the rules he ought to have had a key, but in fact had none, and two 
 of the stewards had each a key ; the box being stolen, upon an indict- 
 ment, laying the property in the landlord, Parke, J., held, that there 
 was sufficient evidence to go to the jury of the property being in the 
 landlord alone. R. v. Wyraer, 4 C. & P. 391, 19 E. C. L. A house 
 was taken by Kyezor, and JVIiers, who lived on his own property, car- 
 ried 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. Miers sometimes 
 bought goods for the shop, and sometimes Kyezor did. Bosanquet, 
 J., held, that Miers was a bailee of the stock, and that the property 
 in a watch stolen out of the house might properly be laid in him. 
 R. V. Bird, 9 C. & P. 44,* 38 E. C. L. 
 
 W^hen property is parted with by a bailee under a mistake, his spe- 
 cial property in it is not divested ; and if a larceny of it be committed, 
 it mav well be laid as the property of such bailee. R. v. Vincent, 2 
 Den. C. C. R. 464. 
 
 Proof of ownership — goods in possession of carriers. Carriers, 
 as bailees of goods, have such a possession as to render an indictment, 
 
 ^ In an indictment for larceny, proof that the person alleged to have been the owner 
 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 that allegation in the indictment. State v. Somerville, 21 Me. 14. AVhere 
 leather has been delivered to a person to be manufactured into shoes, the shoes may 
 be laid as the property of the manufacturer. State v. Ayer, 3 Fost. 301. Where one 
 person has the general and another a special property in a thing stolen, in the indict- 
 ment the property may be alleged to be in either. Langford v. State, 8 Tex. 115; 
 People r. Smith, 1 Parker, C. R. 329 ; Barrus v. People, 18 111. 52. So as to goods in 
 possession of a captain of a vessel. Williams's Case, 1 Eog. Eec. 29. S.
 
 864 LARCENY. 
 
 laying the property in them, good. Supra. And so it has been held 
 with regard to the driver of a stage-coaeh. The prisoner was indicted 
 for stealing goods, the property of one Markhara. The goods had 
 been sent by the coach driven by Markham, and had been stolen 
 from the boot on the road. The question was, whether the goods 
 were properly laid to be the property of Markham, who was not 
 the owner, but only the driver of the coach, there being no con- 
 tract between him and the proprietors that he should be liable for 
 *ft8Ql *anything stolen, and it not appearing that lie had been guilty 
 -I of any laches. Upon a case reserved, the judges were of 
 opinion that the property Avas rightly laid in Markham ; for though 
 as against his employers, he, as driver, had only the bare charge of the 
 property committed to him, and not the legal possession, which re- 
 mained in his masters, yet, as against all the rest of the world, he 
 must be considered to have such a special property therein as would 
 support a count charging them as his goods ; for he had, in fact, the 
 possession of and control over them ; and they were intrusted to his 
 custody and disposal during the journey. They said that the law, 
 upon an indictment against the driver of a stage-coach, on the prose- 
 cution of the proprietors, considers the driver to have the bare charge 
 of the goods belonging to the coach ; but on a charge against any other 
 person lor taking them tortiously and feloniously out of the driver's 
 custody, he must be considered as the possessor. R. v. Deakin, 2 
 Leach, 862, 876 ; 2 East, P. C. 653. 
 
 Proof of ownership — goods of deceased persons. Where a per- 
 son dies intestate, and the goods of the deceased are stolen before ad- 
 ministration granted, the property must be laid in the ordinary ; but 
 if he dies, leaving a will, and making executors, the property may be 
 laid in them, though they have not proved the will ; and it is not 
 necessary that the prosecutor should name himself ordinary or execu- 
 tor, because he proceeds on his own possession.* 1 Hale, P. C. 514 ; 
 2 East, P. C. 652. Where the deceased had appointed executors who 
 would not prove the will, Bolland, B., and Coleridge, J., held, that 
 the property must be laid in the ordinary, and not in a person who, 
 after the commission of the offence, but before the indictment, had 
 taken out letters of administration. R. v. George Smith, 7 C. & P. 
 147, 32 E. C. L.; R. v. Johnson, Dears. <t B. 340 ; 27 L. J., M. C. 
 52. There can be no property in a dead body, and though a high 
 misdemeanor, the stealing of it is no felony. See p. 445. A shroud 
 stolen from the corpse must be laid to be the property of the executors, 
 or of whoever else buried the deceased. So tlie coffin may be laid to 
 be the goods of the executors. But if it do not appear who is the per- 
 sonal representative of the deceased, laying the goods to be the goods 
 of a person unknown is sufficient. 2 East, P. C. 652 ; 2 Russ. Cri. 
 256, 5th cd. A knife was stolen from the pocket of A. as he lay dead 
 on the road in the diocese of W. A.'s last place of abode was at T. 
 
 • Property cannot be laid as belonging to a person deceased. State v, Davis, 2 Car. 
 Law Repos. 291. S.
 
 LAECENY. 865 
 
 in the diocese of G., but A.'s father stated that he believed his son had 
 left T. to come to live with hira, but he did not know whether his son 
 had given up his lodgings at T. Patteson, J., held, that there was 
 sufficient proof to suj)port a count for larceny, laying the property in 
 the Bishop of W. K. V. Tippin, Car. & M. 545, 41 PI C. L. 
 
 In some cases the property of an intestate has been held to be 
 rightly described as being in the party in actual possession, no ad- 
 ministration having been granted. D. and C. were partners ; C 
 died intestate, leaving a widow and children. From the time of his 
 death, the widow acted as partner with D., and attended to the 
 business of the shop. Three weeks after his death part of the goods 
 were stolen, and were described in the indictment as the goods of D. 
 and the widow. It was contended that the names of the children, as 
 next of kin, should have been joined, or that the property should 
 have been laid in D. and the ordinary ; but Chambre, J., held, that 
 actual possession, as owner, was sufficient, and the judges, on a case 
 ♦reserved, were of the same opinion. R. v. Gabey, Russ. & Ry. r:^p(jQ 
 178. So where a father and son carried on business as farm- L 
 ers, and the son died intestate, after which the father carried on the 
 business for the joint benefit of himself and the son's next of kin, 
 some of the sheep being stolen, and being laid as the property of the 
 father and next of kin, the judges, on a case reserved, held the in- 
 dictment right. R. V. Scott, Russ. & Ry. 13. 
 
 The prisoner was charged with stealing a number of articles laid as 
 the property of the Bishop of Peterborough, the county in which the 
 things were stolen being in that diocese. To prove the intestacy of 
 the person to whom the property had belonged, it was shown that an 
 unsuccessful search had been made for a will in the boxes and draw- 
 ers of the deceased, and that no administration had been taken out in 
 the proper court. As to some of the articles mentioned in the indict- 
 ment, it was shown that they were in the possession of the deceased at 
 the time of her death ; but as to the majority there was no evidence 
 of this, but it was shown that on the day of the funeral they were 
 taken hj the prisoner to the house of a witness. The court, at 
 the trial, refused to confine the case to the things shown to hare 
 been in the possession of the deceased at the time of her death, 
 and the jury found the prisoner guilty. It was held that there 
 was sufficient evidence of the intestacy of the deceased, and that 
 the property was in the ordinary ; and that the conviction was 
 right. R. V. Johnson, Dears. & B. C. C. 340 ; 27 L. J., M. C. 52. 
 
 Proof of ownership — goods of lodgers. Where a room, and the 
 furniture in it, are let to a lodger, he has the sole right to the 
 possession, and if the goods are stolen, it has been held, in two 
 cases bv the judges, that the ])roperty must be laid in the lodger. 
 R. V. Belstead, Russ. & Ry. 411 ; R. v. Brunswick, 1 Moo. C. C. 26. 
 
 Proof of ownership — goods of married women. Where goods, 
 in the possession of a married woman, are stolen, they must not in 
 55
 
 866 LARCENY. 
 
 general be described as her property, but as that of her husband ; for 
 her possession is his possession. 2 East, P. C. 652. See K. v. 
 French, Russ. & Ry. 491; R. v. Wilford, Id. 517, stated ante, p. 
 375. But where they are the wife's separate property, under the 45 
 & 46 Vict. c. 75, s. 12, it is sufficient to allege the property to be her 
 property. Where the goods of a feme sole are stolen, and she after- 
 wards marries, she may be described by her maiden name. R. v. 
 Turner, 1 Leach, 536. 
 
 Proof of ownership — goods of persons unknown. Felony may 
 be committed in stealing goods, though the owner is not known, and 
 they may be described in the indictment as the goods of a person to 
 the jurors unknown ; and the king is entitled to them. 1 Hale, P. C. 
 512 ; 2 East, P. C. 651. But if the owner be really known, an in- 
 dictment alleging the goods to be the property of a person unknown, 
 is improper. 2 East, P C. 651. 
 
 In prosecutions for stealing the goods of a person unknown, some 
 proof must be given sufficient to raise a reasonable presumption that 
 the taking was felonious, or invito domino ; it is not enough that the 
 prisoner is unable to give a good account how he came by the goods. 
 2 East, P. C. 651 ; 2 Hale, P. C. 290. An indictment for plundering 
 ♦ftom *^ wreck contained two counts : the first count stated the 
 J property in the ship to be in certain persons named; the 
 second, in persons unknown. The witness for the prosecution could 
 not recollect the Christian names of some of the owners. The coun- 
 sel for the crown then relied on the second count, but Richards, C. B., 
 said, " I think the prisoner must be acquitted. The owners, it appears, 
 are known, but the evidence is defective on the point. How can I 
 say that the owners are unknown ?" R. v. Robinson, Holt's N. P. C 
 596 ; 2 Russ. Cri. 256, 5th ed. 
 
 Proof of ownership — goods in the possession of servants. In 
 general the possession of a servant is the possession of the master, the 
 servant having merely the charge and custody of the goods ; and in 
 such case, the property must be laid in the master, and not in the ser- 
 vant.^ 2 East, P. C. 652 ; 2 Russ. on Cri. 250, 5th ed. Upon an 
 indictment for stealing goods from a dissenting chapel, laying the 
 property in one Evans, it appeared that Evans was the servant of the 
 trustees of the chapel ; that he had a salary of bl. a year, with the 
 care of the chapel and the things in it, to clean and keep in order; 
 that he held the only key of the chapel, but that the minister had a 
 key of the vestry, through which he might enter the chapel. Upon a 
 case reserved, the judges were of opinion, that the property of the 
 goods taken could not be considered as belonging to Evans. R. v. 
 
 'Commonwealth v. Morse, 14 Mass. 217 ; Norton v. People, 8 Cow. 137 ; Poole v. 
 SjTHonds, 1 N. H. 289. Where one has received money for himself and for another 
 for whom he acted as agent, and to whom he had given credit for his share, it is well 
 alleged in the indictment for larceny, that the money was the property of the person 
 receiving it. State v. Grant, 22 Me. 171. S.
 
 LARCEXY. 867 
 
 Hutchinson, Riiss. & Ry. 412. So where the prisoner was convicted 
 of larceny from the iiouse of \V., and at the trial B. proved that he 
 managed the property for W., who resided at Patras; that he received 
 the rent in W.'s absence, and l(>t the; house, it was held, that there was 
 sufficient evidence of W.'s ownership to sup{)ort the conviction. R. v. 
 Brummitt, Ij. & C. 9. But in some (!ases, as against third persons, a 
 party who, as against his employer, has the bare charge of goods, may 
 be considered as having the possession, as in the case of the driver of a 
 stage-coach. R. v. Deakin, ante, p. 688. So it has been said that 
 where the owner of goods steals them from his own servant with 
 intent to charge him with the loss, the goods may be described as the 
 property of the servant. 2 Russ. Cri. 240, 5th ed., note {t) ; 2 East, 
 P. C. c. 16, ss. 7, 90, sed qucere. 
 
 Proof of ownership — goods of corporations. Wliere goods are 
 the property of a company of persons not incorporated, they must be 
 described as the goods of the individuals, or of some one of the indi- 
 viduals, and others. 2 Russ. Cri. 258, 5th ed. But by the 7 Geo. 4, 
 c. 64, s. 20, repealed, 36 & 37 Vict. c. 91, judgment shall not be stayed 
 or reversed on the ground that any person or persons mentioned in an 
 indictment or information, is or are designated by the name of officer, 
 or other descriptive appellation, instead of his, her, or their proper 
 name or names. 
 
 The goods of a corporation must be described as their goods, by 
 their corporate narae.^ Where in an indictment the goods were laid 
 to be the property of A. B., C. D., etc., they the said A. B., C. D., etc., 
 being the churchwardens of the parish church ; and it appeared that 
 the churchwardens were incorporated by the name of " the church- 
 wardens of the parish church of Enfield," the court (at the old Bailey) 
 held the variance fatal. They said that where any description of men 
 are directed by law to act in a corporate capacity, their natural and 
 . *individual capacity, as to all matters respecting the subject of r:^/>Qi 
 their incorporation, is totally extinct. If an action were ^ 
 brought in the private names of the prosecutors, for any matter relat- 
 ing to their public capacity, they must unavoidably be nonsuited, and 
 d fortiori it must be erroneous in a criminal prosecution. R. v. Pat- 
 rick, 1 Leach, 252. But where trustees were appointed by Act of 
 parliament (but not incorporated), for providing a workhouse, the 
 property stolen from them was laid to be the property of " the trustees 
 of the poor of," etc., without naming them, the court (at the old 
 Bailey) held it wrong ; for as the Act had not incorporated the trus- 
 tees, and by that means given them collectively a public name, the 
 property should have been laid as belonging to A. B., etc., by their 
 proper names, and the words " trustees of the poor of," etc., subjoined 
 as a description of the capacity in which they were authorized by the 
 
 ^ In a prosecution for larceny, the property in the goods was alleged to be in a rail- 
 road company ; held that proof of the de/ncto existence of the corporation was suffi- 
 cient. Smith r. State, 28 Ind. 321 ; People v. Schwartz, 32 Cal. IGO. S. People v. 
 Barrie, 49 Cal. 342.
 
 868 LARCEXY. 
 
 legislature to act. R. v. Sherrington, 1 Leacli, 513. On the authority 
 of" this case the following was ch^cided : By the 24 Geo. 3, c. 15, cer- 
 tain inhabitants in seven parishes Avere incorporated by the name of 
 "the guardians of the poor of/' etc. Twelve directors were to be ap- 
 pointed out of the guardians, and the property belonging to the corpo- 
 ration was vested in "the directors for the time being," Ayho Ayere to 
 execute the powers of the act. The prisoner was indicted for embez- 
 zling the moneys of "the directors of the poor," etc. The judges on 
 a case reserved held, that the money should have been laid, either as 
 the money of the guardians of the poor, by their corporate name, or 
 of the directors for the time being, by their individual names. R. v. 
 Beacall, 1 Moo. C. C. 15. See R. v. Jones, 1 Leach, 366 ; 2 East, 
 P. C. 991. 
 
 InR. V. Frankland, L. & C. 276 ; 32 L. J., M. C. 69, it was ob- 
 jected that the indictment laid the property in A. B. and others, 
 whereas there was evidence to go to the jury that the prosecutors were 
 an incorporated company. It seems that if they had been proved to 
 be so, they ought to have been alleged to be so in the indictment, and 
 then the indictment would have been good under s. 81 of the Larceny 
 Act, and the oifence would not have been triable at Quarter Sessions. 
 But the court held that there was not sufficient evidence of the in- 
 corporation of the company ; which might be proved by the certificate 
 of incorporation under the Joint Stock Companies Acts, but could not 
 be presumed from the fact that the parties purported to be a corpo- 
 ration and acted as such, whatever might be the case with respect to a 
 corporation for public purposes or by prescription. 
 
 In R. V. Langton, L. R. 2 Q. B. D. 296 ; 46 L. J., M. C. 136, it 
 was held that it was not necessary to produce the certificate of incor- 
 poration of a company, but that the existence of the company was suf- 
 ficiently proved by evidence that it had carried on business as such. 
 The prisoners were convicted of stealing some brass described in the 
 indictment as the property of II. The evidence was that the brass, 
 was the property of a trading company in course of being wound up, 
 and that H. was the official liquidator, in proof of Ayhich a copy 
 of the London Gazette Avas produced, containing an advertisement of 
 a meeting of the company in which a resolution that the company be 
 Avound up and H. be appointed official liquidator had been passed, 
 but there was no further evidence that the brass was the property of 
 H., or that he had dealt with it as his property. The conviction was 
 quashed on appeal, the court holding that the evidence failed to show 
 *PQ9l *that H. had ever taken possession of the brass, although he 
 "^-l might have had a title to the property. R. v. Bell, 14 Cox, C. 
 C. R. 623. 
 
 By 40 & 41 Vict. c. 26, s. 6, certified copies of incorporation regis- 
 tered under the Companies Acts, 1862 to 1877, are to be received in 
 evidence as if they were the original certificates. 
 
 Proof of ownership — goods in a church. — Money stolen from 
 an ancient poor's box fixed up in a church is properly laid in the
 
 LARCENY. 869 
 
 vicar and churchwardens of the parish. R. v. Wortley, 1 Den. C. 
 C. R. 162. 
 
 Venue. An indictment for larceny must be tried in the countv in 
 wliich the offence was, either actually, or in contemplation of law, 
 committed. But where goods stolen in one county are carried by the 
 offender into another or others, he may be indicted in any of them, 
 for the continuance of the asportation is a new ca])ti(Hi.^ 1 Hale, P. 
 C. 507 ; 4 Bl. Com. 305 ; 1 Moo. C. C. 47 (n). The possession still 
 continuing in the owner, every moment's continuance of the trespass 
 is as much a wrong, and may come under the word ecpit, as much as 
 the first taking. Hawk. P. C. b. 1, c. 19, s. 52. Thougli a consider- 
 able period elapse between the original taking and the carrying of them 
 into another county, the rule still applies : as where property was stolen 
 on the 4th November, 1823, in Yorkshire, and carried into Durham 
 on the 17th March, 1824. R. v. Parkin, 1 :Moo. C. C. 45. This rule 
 does not, however, hold with regard to compound larcenies, in which 
 case the prisoner can otdy be tried for simple larceny in the same 
 county. Thus, where the prisoner robbed the mail of a letter, either 
 in Wiltshire or Berkshire, and brought it into Middlesex, and was in- 
 dicted on the repealed statutes 5 Geo. 2, c. 25, and 7 Geo. 3, c. 40, the 
 judges upon a case reserved held, that he could not be convicted capi- 
 tally out of the county in which the letter was taken from the mail. 
 R. V. Thompson, 2 Russ. Cri. 270, 5th ed. So if A. robs B., in the 
 county of C, and carries the goods into the county of D., A. cannot 
 be convicted of robbery in the latter county, but he may be indicted 
 for larceny there. 2 Hale, P. C. 163. If the thing stolen be altered 
 in its character in the first county, so as to be no longer what it was 
 when it was stolen, an indictment in the second county must describe 
 it according to its altered, and not according to its original, state. 2 
 Russ. Cri. 270, 5th ed.; see R. v. Edward, Russ. & Ry. 497. Thus 
 an indictment in the county of H., for stealing " one brass furnace," 
 is not supported by evidence that the prisoner stole the furnace in the 
 county of R., and there broice it to pieces, and brought the pieces into 
 the county of H. R. v. Halloway, 1 C. & P. 127, 12 E. C. L. A 
 joint original larceny in one county, may become a separate larceny 
 
 ^ Commonwealth v. Cousins, 2 Leigh, 708 ; Commonwealth v. Dewitt, 10 Mass. 154 ; 
 State V. Douglass, 17 Me. li)3. 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 subject of larceny by statute as 
 to property which is the subject of larceny by the common law. Commonwealth i\ 
 Rand, 7 Mete. 475. 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 therefore it was held, that if goods were 
 stolen before the Revised Statutes took effect, and were retained in the possession of 
 the thief until after they came into operation, he might be indicted and punished un- 
 der these statutes. State v. Somerville, 32 Me. 14. In simple larceny, the thief may 
 b« tried in any county in which he may be found possessed of the stolen goods. Tip- 
 pins V. State, 14 Ga. 422 ; Commonwealth v. Uprichard, 3 Gray, 434. Where goods 
 are stolen in one county and carried by the thi^f into another county, the indictment 
 is properly found in the county where the thief with the goods is arrested. Aaron v. 
 State, 39 Ala. 684. S.
 
 870 LARCENY. 
 
 in another. Thus where four prisoners stole goods in the county 
 of Gloucester, and divided them in that county, and then carried 
 their shares into the county of Worcester, in separate bags, it was 
 ruled by Holroyd, J., that the joint indictment against all the 
 prisoners could not be sustained as for a joint larceny in the county 
 of Worcester ; and he put the counsel for the prosecution to his elec- 
 tion, as to which of the prisoners he would proceed against. R. v. 
 Barnett, 2 Euss. Cri. 271, 5th ed. But where a larceny was committed 
 by two, and one of them carried the stolen goods into another county^ 
 the other still accompanying him, without their ever having been 
 separated, they were held both indictable in either county, the pos- 
 session of one being the possession of both in each county, as long 
 ♦PQQT *^s t^i^y continued in company. R. v. M'Donagh, Car. Suppl. 
 *'^'^-l 23, 2nded. 
 
 A man may be indicted for larceny in the county into which the 
 goods are carried, although he did not himself carry them thither. 
 The prisoners. County and Donovan, laid a plan to get some coats 
 from the prosecutrix, under pretence of buying them. The prosecu- 
 trix had them in Surrey, at a public-house; the prisoners got her to 
 leave them with Donovan whilst she went with County, that he might 
 get the money to pay for them. In her absence Donovan carried them 
 into Middlesex, and County afterwards joined him there, and con- 
 curred in securing them. The indictment was against both in Mid- 
 dlesex, and upon a case reserved the judges were unanimous, that as 
 County was present aiding and abetting in Surrey at the original lar- 
 ceny, his concurrence afterwards in Middlesex, though after an inter- 
 val, might be connected with the original taking, and brought down 
 his larceny to the subsequent possession in Middlesex. They there- 
 fore held the conviction right. R. v. County, 2 Russ. Cri. 272, 
 5th ed. 
 
 Where a wife stole her husband's goods within the jurisdiction of 
 the Central Criminal Court, and the goods were found in the posses- 
 sion of the prisoner (an avowterer) in Liverpool, it was held that there 
 was no joint-possession by the wife and the prisoner within the juris- 
 diction of the Court. R. V. Prince, 11 Cox, C. C. 145. 
 
 The prisoner was tried in Kent for stealing two geldings in that 
 county. The horses were stolen in Sussex. The prisoner was appre- 
 hended with them at Croydon, in Surrey. The only evidence to sup- 
 port the charge of stealing in Kent was, that when the prisoner was 
 apprehended at Croydon, he said he had been at Dorking to fetch the 
 horses, and that they belonged to his brother who lived at Bromley. 
 The police-officer offered 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 
 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 effected his escape, and afterwards was 
 again apprehended in Surrey. The prisoner was convicted, but sen- 
 tence was not passed, Gaselee, J., reserving the question whether there
 
 LARCEiry. 871 
 
 was any evidence to support the indictment in Kent. The judges 
 were unanimously of o})inion that there was no evidence to be left to 
 the jury of stealing in Kent, and that no judgment ought to be given 
 upon the conviction, but that the prisoner should be removed to 
 Surrey, R. v. Simmond, 1 Moody, C. C. 408. The prisoner was in- 
 dicted for a larceny at common law, for stealing a quantity of lead 
 in Middlesex. It app(>arod that the lead was stolen from the roof of 
 the church of Iver, in Buckinghamshire. The prisoner being indicted 
 at the Central Criminal Court, which has jurisdiction in Middlesex, 
 and not in Buckinghamshire, the judges (Parke, J., Alderson, B., and 
 Patteson, J.), held, that he could not be convicted there, on the ground 
 that the original taking not being a larceny, but a felony created by 
 statute, the subsequent possession could not be considered a larceny. 
 R. V. Millar, 7 C. & P. 665, 32 E. C. L. 
 
 Now by the 24 & 25 Vict. c. 96, s. 114 (replacing the 7 & 8 Geo. 
 4, c. 29, s. 78), supra, p. 643, the prisoner may be indicted in any 
 county in which he is found in possession of the goods. 
 
 *Four men, named Rogers, Irwin, Johnson, and Byatt, were r^nqA 
 indicted at the Middlesex Sessions for stealing and receiving a •- 
 watch. The watch was stolen at Liverj)ool, and was sent by railway 
 next day and delivered to Byatt in Middlesex. Rogers had by letter 
 advised Byatt of the sending of the watch. Irwin and Johnson were 
 present aiding and abetting the receipt of the watch, but before the 
 box containing it could be opened by the three men they were taken 
 into custody. Byatt pleaded guilty. Irwin and Johnson were found 
 guilty of receiving with a guilty knowledge, and Rogers guilty of 
 stealing, and it was held that Rogers retained control over the watch, 
 and was therefore constructively in possession of it in Middlesex. 
 R. i\ Rogers, L. R. 1 C. C. R. 136; 37 L. J., M. C. 83. 
 
 If the original taking be one of which the common law cannot take 
 cognizance, as where the goods are stolen at sea, the thief cannot be 
 indicted for larceny in any county into which he may carry them.^ 3 
 lust. 113; 2 Russ. Cri, 273, 5th ed. And so where the goods are 
 stolen abroad (as in Jersey), carrying them into an English county 
 will not render the offender indictable there. R. v. Prowess, 1 Moody, 
 C. C. 349; R.^. Debruiel, 11 Cox, C. C. 207. So where the goods 
 are stolen in France. R. v. Madge, 9 C. &. P. 29, 38 E. C. L.^ 
 
 ^ Contra, McCullough's Case, 2 Eog. Kec. S. 
 
 ' Larceny committed in one of the United States is not punishable in another, 
 although tlie thing stolen be brought into the latter State. State v. Brown, 1 Hayw. 
 100; People t'. Gardner, 2 Johns. 477; People ?;. Schenck, Id. 479; Commonwealth 
 V. Simmons, 5 Binn. 617 ; McCullough's Case, 2 Rog. Rec. 45 ; State v. Le Blanche, 
 2 Vr. 82; People r. Loughridge, 1 Nev. 11. Contra, Commonwealth v. Cullen, 1 
 Mass. 115 ; Commonwealth v. Andrews, 2 Id. 14; State v. Ellis, 3 Conn. 185; Rex. v. 
 Peas, 1 Root, 69; People r. Burke, 11 Wend. 120; Hamilton r. State, 11 0.435; 
 State V. Johnson, 2 Or. 115 ; Henry v. State, 7 Cold. 331 ; State v. Cummings, 33 Conn. 
 260 ; State r. Williams, 35 Mo. 229 ; Ferrill ?•. Commonwealth, 1 Duv. 153 ; Common- 
 wealth V. Holden, 9 Grav, 7 ; Morrissev v. People, 11 Mich. 327 ; State v. Underwood, 
 49 Me. 181 ; SUte v. Beiinett, 14 la. 479. S.
 
 872 UBEL. 
 
 ^695] 
 
 *LIBEL. 
 
 PAGE 
 
 Blasphemous libels — at common law 695 
 
 Statutes , , 696 
 
 Indecent libels 697 
 
 Libels on the government 697 
 
 on the administration of justice 698 
 
 upon individuals ...,,,... 698 
 
 Punishment *.,. 700 
 
 Costs . . . • 701 
 
 Proof of introductory averments ....... 701 
 
 Proof of publication — in general 703 
 
 Of libels contained in newspapers 704 
 
 By admission of the defendant .,..., 706 
 
 Constructive publication •,..,.. 707 
 
 Proof of innuendoes , 709 
 
 of malice ....'.. 709 
 
 of intent 710 
 
 Venue . . 710 
 
 Proof for the defendant— 6 & 7 Vict. c. 96 711 
 
 Statute 32 Geo. 3, c. 60 716 
 
 Publishing libel to extort money 716 
 
 Blasphemous libels — at common law. It has been said that all 
 blasphemies against God or the Christian religion, or the Holy 
 Scriptures, are indictable at common law, as also are all impostors in 
 religion, such as falsely pretend extraordinary missions from God, or 
 terrify or abuse the people with false denunciations of judgment. In 
 like manner all malicious revilings, in public derogation and con- 
 tempt of the established religion, are punishable at common law, 
 inasmuch as they tend to a breach of the peace. 1 East, P. C, 3 ; 
 1 Russ. by Greav. 220. So it has been said, that to write against 
 Christianity in general is clearly an offence at common law, but this 
 rule does not include disputes between learned men on particular 
 controverted points, but only refers to tliose cases wliere the very root 
 of Christianity itself is struck at. R. v. Woolston, Fitzgib. 66 ; 2 Str. 
 834; but see now R. v. Foote, 15 Cox, C. C. 231, infra. It is an in- 
 dictable offence at common law to publish a blasphemous libel of and 
 concerning the Old Testament. R. v. Hetherington, 5 Jur. 529. 
 
 With regard to the boundary of the rule regulating the discussion 
 of religious topics, it is observed by Mr. Starkie, that a malicious 
 and mischievous intention, or what is equivalent to such intention, in 
 law as well as morals, a state of ajxithy and indifference to the 
 interests of society, is the broad boundary between right and wrong. 
 If it can be collected from the circumstances of the publication, from 
 a display of offensive levity, from contumelious and abusive ex]>res- 
 sions applied to sacred persons or subjects, timt the design of the 
 author was to occasion that mischief to which the matter M'hich he
 
 LIBEL. 873 
 
 ♦publishes immediately tends, to destroy, or even to weaken r^nqn 
 men's sense of religious or moral obligation, to insult those wlio •- 
 believe, by casting contumelious abuse and ridicule upon their doctrines, 
 or to bring the established religion and form of worship into disgrace 
 and contempt, the offence against society is complete. 2 Starkie on 
 Slander, 147, 2nd ed. This passage from Starkie on Slander was 
 cited with approval by Lord Chief Justice Coleridge in R. v. Foote, 
 infra. Upon an indictment alleging that Jesus Christ was an 
 impostor, a murderer in principle, and a fanatic, a juryman in(piired 
 whether a work denying the divinity of our Saviour was a libel ; 
 Abbott, C. J., stated, that a work speaking of Jesus Christ in the 
 language here used was a libel, and the defendant was found guilty. 
 Upon a motion for a new trial, on the ground that this was a wrong 
 answer to the question put, the Court of King's Bench held the 
 answer correct. R. v. Waddington, 1 B. & C. 26, 8 E. C. L. The 
 question whether writing against Christianity without levity or mali- 
 cious abuse is libellous has been discussed at length in R. v. Bradlaugh, 
 15 Cox, C. C. 217, and in R. v. Foote, 15 Cox, C. C. 231. A corrected 
 report of the Lord Chief Justice Coleridge's judgment in the latter 
 case was published in the form of a pamphlet with his authority 
 (Messrs. Stevens and Sons, 119 Chancery Lane, 1883). Mr. Justice 
 Stephen, however, in a powerful article in the " Fortnightly Review " 
 of March, 1884, has shown good reason for believing that the law 
 always was, and, therefore, is now, that to attack the root of 
 Christianity in writing is to be guilty of a blasphemous libel. The 
 Lord Chief Justice has, however, ruled that the law " is and always 
 has been, that if the decencies of controversy ai'e observed, even the 
 fundamentals of religion may be attacked without a person being 
 guilty of blasphemous libel ;" and it is cei'tain that no case can be 
 found in which a person has been convicted of a blasphemous libel 
 merely for a denial of the truth of Christianity without levity or 
 indecency. 
 
 Blasphemous libels — statutes. By the 1 Ed. 6, c. 1, persons re- 
 viling the sacrament of the Lord's Supper are punishable by impris- 
 onment. By the 1 Eliz. c. 2, s. 3, applied to the present Book of Com- 
 mon Prayer by 14 Car. 2, c. 4, s. 20, ministers and others speaking in 
 derogation of the Book of Common Prayer are punishable as therein 
 mentioned. See also the 12 Eliz. c. 12 ; 3 Jac. 1, c. 21, s. 9. 
 
 By the 9 & 10 Will. 3, c. 32, s. 1, "if any person or persons hav- 
 ing been educated in, or at any time having made profession of, the 
 Christian religion within tliis realm, shall, by writing, printing, 
 teaching, or advised speaking, [cleny any one of the Persons in the 
 Holy Trinity to be God, or shall] assert or maintain there are more 
 gods than one, or shall deny the Christian religion to be true, or the 
 Holy Scriptures of the Old and New Testament to be of divine 
 authority, shall, upon an indictment or information in any of his 
 Majesty's courts at Westminster, or at the assizes, be thereof law- 
 fully convicted by the oath of two or more credible witnesses, such
 
 874 LIBEL. 
 
 person or persons for the first oifence shall be adjudged incapable and 
 disabled in law, to all intents and purposes whatsoever, to have 
 or enjoy any office or offices, employment or employments, ecclesias- 
 tical, civil, or military, or any part in them, or any profit or advantage 
 appertaining to them or any of them. And if any person or persons 
 so convicted as aforesaid shall, at the time of his or their conviction, 
 *PQ7l *^"j*^y ^^ possess any office, place, or employment, such office, 
 -I place, or employment shall be void, and is hereby declared void. 
 And if such person or persons shall be a second time lawfully con- 
 victed as aforesaid, of all or any of the aforesaid crime or crimes, then he 
 or they shall from henceforth be disabled to sue, prosecute, plead, or 
 use any action or information in any court of law or equity, or to be 
 guardian of any child, or executor or administrator of any person, or 
 capable of any legacy of deed or gift, or to bear any office, civil or 
 military, or benefice ecclesiastical for ever within this realm ; and shall 
 also sulier imprisonment for the space of three years, without bail or 
 mainprize, from the time of such conviction." 
 
 By s. 2, information of such words must be given upon oath before 
 a justice, within four days after such words spoken, and the prosecu- 
 tion of such offence be within three months after such information. 
 
 By s. 3, persons convicted shall for the first offence (upon renun- 
 ciation of such offence or erroneous opinions in the court where 
 they were convicted, within four months after such conviction) be 
 discharged from all penalties and disabilities incurred by such con- 
 viction. 
 
 So much of the 1 Will. 3, c. 18, s. 17, and 9 & 10 Will. 3, c.32, as 
 related to persons denying the doctrine of the Trinity, was repealed 
 by tlie 53 Geo. 3, c. 160. The statute of the 9 & 10 Will. 3 has been 
 held not to affect the common law offence, being cumulative only. R. 
 V. Carlisle, 3 B. & Aid. 161, 5 E. C. L.; R. v. Waddington, 1 B. & 
 C. 26, 8 E. C. L. 
 
 It was held by Lord Coleridge, C. J., that sect. 7 of the 6 & 7 Vict, 
 c. 96 (Lord Campbell's Act), j^ost, p. 716, applies to the case of blas- 
 phemous libels. R. V. Bradlaugh, 15 Cox, C. C. 217. 
 
 Indecent libels. Although an opinion formerly prevailed, that the 
 publication of an obscene or indecent writing, not containing reflec- 
 tions upon any individual, was not an indictable offence ; Hawk. P. 
 C. b. 2, c. 73, s. 9 ; yet a different rule has been since established, and 
 it is now clear, tliat an indictment at common law may be maintained 
 for any offence which is against public morals or decency. R. v. Sed- 
 ley, Sid. 168 ; R. v. Wilkes, 4 Burr. 2530 ; Holt on Libel, 73, 2nd 
 ed. Under this head may be comprehended every species of repre- 
 sentation, whether by writing, by printing, or by any manner of sign 
 or substitute which is indecent and contrary to public order. Holt, ubi 
 supra. The principle of the cases also seems to include the repn^scn- 
 tation of obscene plays, an offence which has formed the ground of 
 many prosecutions. 2 Stark, on Slander, 159, 2nd ed. ; Holt, 73 ; 3 
 Eruss. Cri. 197, 5th ed. In an indictment for publishing an obscene
 
 LIBEL. 875 
 
 book, it is not sufficient to describe the book by its title only, but the 
 words alleged to be obscene must be set out. Bradlaugh v. R., 3 Q. B. 
 D. 607 ; 48 L. J., M. C. 5. 
 
 A summary power of seart-hing for obscene books, pictures, and 
 other articles, and punishing persons in whose possession they are 
 found, is given by the 20 & 21 Vict. c. 83. 
 
 Libels on the government. The result of the numerous cases re- 
 specting libels on the government is thus given by Mr. Starkie : " It 
 is the undoubted right of every member of the community to publish 
 his own opinions on all subjects of public and connnon interest, and 
 so long as he exercises this inestimable privilege candidlv, lionestlv^, 
 and sincerely, with a view to benefit society, he is not amenable as a 
 ♦criminal. This is the plain line of demarcation ; where this rt-ona 
 boundary is overstepped, and the limit abused for wanton grati- ^ 
 fication or private malice, in aiming to stab at the private character of 
 a minister under color and pretence of discussing his public conduct, 
 or where either public men or their measures are denounced in terms 
 of obloquy or contumely, under pretence of exposing defects, or cor- 
 recting errors, but in reality for the purpose of impeding or obstruct- 
 ing the administration of public aifairs, or of alienating the affections 
 of the people from the king and his government, and by weakening 
 the ties of allegiance and loyalty, to pave the way for sudden and vio- 
 lent changes, sedition, or even revolution ; in these and similar instances, 
 Avhere public miscliief is the object of the act, and the means used are 
 calculated to effect that object, the publication is noxious and injurious 
 to society, and is therefore criminal." 2 Stark, on Slander, 183, 2nd 
 ed. ; 3 Russ. Cri. 197, 5th ed, ; see also R. v. Lambert, 2 Campb. 398 ; 
 R. y. Tuchin, Holt, R. 424 ; 5 St. Tr. 583 ; Holt on Libel, 88, 89 ; 
 R. V. Collins, 9 C. & P. 465, 38 E. C. L. ; R. v. Lovett, Id. 462 ; R. 
 V. Sullivan, 11 Cox, C. C. 44 (Irish).' 
 
 Libels on the administration of justice. Where a person either by 
 writing, by publication in print, or by any other means calumniates 
 the proceedings of a court of justice, the obvious tendency of such an 
 act is to weaken the administration of justice, and consequently to 
 sap the very foundations of the constitution itself. Per Buller, J., 
 R. V. Watson, 2 T. R. 199. It certainly is lawful, with decency and 
 candor, to discuss the ])ropriety of the verdict of a jury, or the de- 
 cisions of a judge ; but if the writing in question contain no reasoning 
 or discussion, but only declamation and invective, and is written, not 
 with a view to elucidate the truth, but to injure the character of in- 
 dividuals, and to bring into hatred and contempt the administration of 
 justice, such a publication is punishable.^ Per Grose, J., R. v. White, 
 1 Campb. 359. 
 
 1 Eespublica v. Dennie, 4 Y. 267. S. 
 
 * It is libellous to publish of one in his capacity of a juror, that he agreed with 
 another juror to stake the decision of the amount of damatjes to be given in a cause 
 then under consideration, upon a game of draughts. Commonwealth v. Wright, 1 
 Cusli. 46. S.
 
 876 LIBEL. 
 
 Libels upon individuals. A libel upon an individual is defined by- 
 Mr. Serjeant Hawkins to be a malicious defamation, expressed either 
 in printing or writing, and tending either to blacken the memory of 
 one that is dead, see infra, p. 700, or the reputation of one that is 
 alive, and expose him to public hatred, contempt, or ridicule.^ Hawk. 
 P. C. b. 2, c. 73, s. 1. Though the words impute no. punishable crime, 
 yet if they contain that sort of imputation which is calculated to vil- 
 ify a man, and to bring him into hatred, contempt, and ridicule, an 
 indictment lies.^ Per Mansfield, C. J., Thorley v. Lord Kerry, 4 
 Taunt. 364; Digby v. Thompson, 4 B. & Ad. 821, 24 E. C. L. No 
 man has a right to render the person or abilities of another ridiculous, 
 not only in publications, but if the peace and welfare of individuals or 
 of society be interrupted, or even exposed by types or figures, the act 
 by the law of England is a libel. Per Lord Ellenborough, R. v, 
 Cobbett, Holt on Lib. 114, 2nd ed. Thus an information was granted 
 against Dr. Smollett for a libel in the " Critical Review," upon Admiral 
 Knowles, insinuating that he wanted courage and veracity, and tend- 
 ing to cause it to be believed that he was of a conceited, obstinate, 
 and incendiary disposition. R. v. Smollett, Holt on Lib. 224 {n). So 
 an information was granted against the printer of a newspaper for a 
 ludicrous paragraph, giving an account of the Earl of Clanricarde's 
 marriage with an actress at Dublin, and of his appearing with her in 
 *6991 *^^^^ boxes with jewels, etc. R. v. Kinncrsley, 1 W. Bl. 294. 
 -' And for a libel on the Bishop of Durham, contained in a ])ar- 
 agraph which represented him as a "bankrupt." Anon. K. B., Hil. 
 T. 1819; Holt on Lib. 224 (n) 2nd ed. It has been held that the 
 rule to be collected from the modern decisions is that a criminal in- 
 formation for libel can only be granted at the suit of persons who are 
 in some public office or position, and not at the suit of private per- 
 sons. The Queen v. Labouchere, 12 Q. B. D. 320; but see the judg- 
 ment of Denman, J. 
 
 It is extremely difficult to define the boundaries beyond which re- 
 flections upon the character of an individual are commonly cognizable. 
 It is said by INIr, Plolt, that where there is no imputation on the moral 
 character, no words of ridicule or contempt, and nothing which can 
 affiict the party's reception in life, it is no libel ; and he illustrates this 
 position by the following case. The alleged libel was this: ''The 
 Rev. John Robinson and Mr. James Robinson, inhabitants of this 
 town, not being persons that the pro})rietors and annual subscribers 
 think it proper to associate with, are excluded this room." This libel 
 was published in the casino room at Southwold, by posting in on a 
 paper. It was held, that the paper and mode of pronudgating it did 
 not amount to a libel : 1st, because it did not, by any necessary or 
 probable implication, affect the moral fame of the party ; 2ndly, that 
 it was the regulation of a subscription assembly, and the paper might 
 
 ' McCorkle v. Binns, 5 Binn. 349 ; State v. Avery, 7 Conn. 266. S. 
 
 ^ Where a painter, to revenge himself on one whose likeness he had taken, for dis- 
 approving of the execution, painted the ears of an ass to it and exjjosed it to sale at 
 auction, it was held indictable as a libel. Mezzara's Case, 2 Rog. Rec. 113. S.
 
 LIBEL. 877 
 
 import no more than that the party was not a social and agreeable char- 
 acter in the intercourse of common life ; 3r(lly, tiiat the words charged 
 him with nothing definite, threw no blemish on liis reputation, and 
 implied no unfitness for general society. Robinson v. Jermyn, 1 
 Price, 11 ; Holt on Libel, 218, 2nd ed. 
 
 In Gregory v: R. (in error), 15 Q. B. 957, G9 E. C. L., the Court 
 of Exchequer Chamber held the following words sufficient to main- 
 tain an indictment for libel : " Why should T. be surprised at any- 
 thing ]Mrs. W. does ; if she chooses to entertain B. (the prosecutor) 
 she does what very few will do ; and she is of course at liberty to follow 
 the bent of her own inclining, by inviting all infatuatcnl foreigners 
 who crowd our streets to her table if she thinks fit." Where a pla- 
 card M-as posted up to the following effect: " B. Oakley, game and 
 rabbit destroyer, and his wife, the seller of the same in country and 
 town," Quain, J., ruled that this was not prlmd facie libellous ; and, 
 as there was no innuendo showing that it charged an indictable 
 offence, or that it related to the calling of the prosecutor, the learned 
 judge quashed the indictment. R. v. Yates, 12 Cox, C. C. 233. It 
 is a defamatory libel to write of a person who has been convicted of 
 felony that he is " a convicted felon," if he has received a pardon, 
 or suffered his sentence, for he is by law (9 Geo. 4, c. 32, s. 3) no 
 longer a felon. Leyman v. Latimer, 3 Ex. D. 352 ; 47 L. J., Ex. 
 470. 
 
 Wherever an action will lie for a libel without laying special damage, 
 an indictment will also lie. Also, wherever an action will lie for 
 verbal slander without laying special damage, an indictment will lie 
 for t|ie same words if reduced to writing and published. But the 
 converse of this latter proposition will not hold good ; for an ac- 
 tion or indictment may be maintained for Avords written, for which 
 an action could not be maintained if they were merely spoken. 
 Thorley v. Lord Kerry, 4 Taunt. 355. As for instance, if a man 
 * write or print, and publish, of another that he is a scoundrel. r:K7/-Krv 
 J'Anson v. Stuart, 1 T. R. 748 ; or villain. Bell v. Stone, 1 L '^^ 
 B. & P. 331, it is a libel, and punishable as such; although, if this 
 were merely spoken, it would not be actionable without special dam- 
 age. 2 H. Bl. 531. But no indictment will lie for mere words not 
 reduced into Avriting; 2 Salk. 417; R. v Langley, 6 Mod. 125; 
 unless they be seditious, blasphemous, grossly immoral, or uttered to a 
 magistrate in the execution of his office, or uttered as a challenge to 
 fight a duel, or with an intention to provoke the other party to send a 
 challenge. Archb. 613, 10th ed. 
 
 With regard to libels on the memory of persons deceased, it has 
 been held, that a writing, reflecting on the memory of a dead person, 
 not alleged to be published Avith a design to bring scandal or contempt 
 on the family of the deceased, or to induce them to break the peace, 
 is not punishable as a libel.^ R. v. Topham, 4 T. R. 127 ; and see 
 R. V. Taylor, 3 Salk. 198; Holt on Lib. 230, 2nd ed.; and semble 
 that an application for a criminal information for a libel upon a de- 
 ^ Commonwealth v. Taylor, 5 Binney, 281. S.
 
 878 LIBEL. 
 
 ceased person made by his representative will be refused. The 
 Queen v. Labouchere, injra. 
 
 A libel upon a foreigner is indictable. Thus Lord George Gordon 
 was found guilty upon an information for a libel on the Queen of 
 France: 2 Stark, on Slander, 217, 2nd ed. ; and informations have 
 also been granted for libels upon the characters of the Emperor of 
 Russia, and of Napoleon. Id. In the latter case, Lord Ellenbor- 
 ough appears to have considered the situation of the individuals as 
 forming the ground of the decision. " I lay it down as law," he 
 says, "that any publication which tends to disgrace, revile, and de- 
 fame persons of considerable situations of power and dignity in for- 
 eign countries, may be taken to be and treated as a libel, and particu- 
 larly where it has a tendency to interrupt the amity and peace be- 
 tween the two countries." The fact that the applicant for a criminal 
 information for libel does not reside in this country is a strong reason 
 for rejecting the application. The Queen v. Labouchere, 12 Q. B. D. 
 320. 
 
 It is not necessary that the libel should reflect upon the character 
 of any particular individual, provided it immediately tend to produce 
 tumult and disorder; 2 Stark, on Slander, 213,2nd ed. ; although 
 the contrary was formerly held. Hawk. P. C. b. 1, c. 28, s. 9. Thus 
 an information was granted for a libel, containing an account of a 
 murder of a Jewish woman and child, by certain Jews lately arrived 
 from Portugal ; and the affidavits set forth that certain persons re- 
 cently arrived from Portugal had been attacked by the mob, and bar- 
 barously treated in consequence of the libel. R. v. Osborne, Sess. Ca. 
 2G0; Barnard, K. B. 138, 166. 
 
 Informations at the suit of public bodies upon the application of in- 
 dividuals presiding over them, have been frequently granted by the 
 Court of King's Bench. R. v. Campbell, R. v. Bell, Holt on Lib. 
 240, 2nd ed. ; R. v. Williams, 5 B. & A. 595, 7 E. C. L. 
 
 Punishment. The punishment for a libel, at common law, was fine 
 or imprisonment, or both. 
 
 Now by the 6 & 7 Vict. c. 96, s. 4, " If any person shall mali- 
 ciously publish any defamatory libel, knowing the same to be false, 
 every such person, being convicted thereof, shall be liable to be im- 
 prisoned in the common gaol or house of correction, for any term 
 not exceeding two years, and to pay such fine as the court shall 
 award." 
 
 *7nn *^y ^' ^' "^^ ^^y person shall maliciously publish any de- 
 -l famatory libel, every such person, being consMcted thereof, 
 shall be liable to fine or imprisonment, or both, as the court may 
 award, such imprisonment not to exceed the term of one year." 
 
 Costs. By s. 8, in case of any indictment or information by a pri- 
 vate prosecutor for the publication of any defamatory libel, if judgment 
 shall be given for the defendant, he shall be entitled to recover from 
 the prosecutor the costs sustained by the said defendant by reason of
 
 LIBEL. 879 
 
 such Indictment or information ; and upon a special plea of justifi- 
 cation to such indictment or information, if the issue be found for the 
 prosecutor, he shall be entitled to recover from the defendant the costs 
 sustained by the prosecutor by reason of such plea, such costs so to be 
 recovered by the defendant or prosecutor respectively to be taxed by 
 the proper officer of the court before which the said indictment or in- 
 formation is tried. This will include tiie costs of unsuccessfully op- 
 posing the rule nisi R. v. Steele, L. R. 1 Q. B. D. 482 ; 45 L. J., 
 Q. B. 391. Appeal was brought from the decision, but was dismissed, 
 on the ground that under the Judicature Acts, 1873 and 1875, 
 there is no appeal to the Court of Appeal in a criminal case ex- 
 cept for error on the record. See the case reported, 2 Q. B. D. 37 ; 
 46 L. J., M. C. 1. 
 
 Under the 8th sect., if judgment be given for the defendant, he is 
 entitled to recover from the prosecutor the costs sustained by reason of 
 the indictment or information, although the only plea is not guilty, 
 and the judge certifies under sect. 2 of the 4 & 5 W. & M. c, 18, that 
 there was reasonable cause for preferring the same. R. v. Latimer, 15 
 Q. B. 1077,69 E. C. L.; 20 L. J., Q. B. 129. 
 
 Such costs can be recovered by action in one of the superior courts. 
 See Richardson V. Willis, 12 Cox, C. C. 351, L. R. 8 Exch. 69. 
 
 Proof of introductory averments. Where the indictment con- 
 tains introductory averments, inserted for the purpose of explaining 
 and pointing the libel, such averments must be proved as laid.^ It 
 frequently happens that the libel is directed against the prosecutor in 
 a particular character, and an intent to libel him in that character is 
 averred. In such case, it must be made to appear that the prosecutor 
 bore that character. But in general, where the character is a pub- 
 lic one, it will be sufficient if it appear that the prosecutor had acted 
 in it, and it will not be necessary to give strict evidence of his ap- 
 pointment. Thus, if the indictment allege that the prosecutor was, 
 at the time of the supposed injury, a magistrate or a peace-officer, 
 it is sufficient to show that he previously acted as such. Berryman v. 
 Wise, 4 T. R. 366 ; 2 Stark, on Slander, 2, 2nd ed. 
 
 Where the title to the particular situation is not the subject of any 
 express documentary appointment, the acting in the situation is, of 
 course, tlie only evidence which the fact admits of. 2 Stark. Ev. 
 860, 1st ed. 
 
 Whether a person practising as a physician, and libelled in his 
 character as such, was bound to prove, by strict evidence, the intro- 
 ductory averment that he was a physician, was long a matter of 
 doubt. In a case at nisi prius, Buller, J., required such proof to be 
 given ; Pickford v. Gnteh, 1787 ; 2 Stark, on Slander, 3 (n), 2nd ed.; 
 but in a subsequent case, the Court of Common Pleas w-as equally 
 divided upon the point. Smith v. Taylor, 1 N. R. 196. r+yAQ 
 It has, *however, been decided by the Court of King's Bench, L 
 
 * An indictment for libel must aver any extrinsic facts necessary to show that the 
 words complained of are injurious. State v. Atkins, 42 Vt. 252. S.
 
 880 LIBEL. 
 
 in a later case, that to support an averment that the party was a 
 physician, it is necessary to give regular evidence that he possessed 
 lawful authority to practise as such. Collins v. Carnegie, 1 A. & E. 
 695, 29 E. C. L.; 2 Nev. & M. 703. 
 
 In order to prove the prosecutor to be an attorney, an examined 
 copy of the roll of attorneys, signed by the plaintiff is sufficient. So 
 the books from the master's office containing the names of all the at- 
 torneys, produced by the officer in whose custody it is kept, is good 
 evidence, together with proof that the party practised as an attorney 
 at the time of the offence. R. v. Crossley, 2 Esp. 526 ; Lewis v. 
 Walter, 3 B. & C. 138, 10 E. C. L.; Jones v. Stevens, 11 Price, 1251. 
 The stamp-office certificate, countersigned by the master of the Court 
 of King's Bench, is sufficient primd facie evidence of the party be- 
 ing an attorney of that court. Sparling v. Heddon, 9 Bingh. 11, 23 
 E. C. L. 
 
 Where the indictment specifies the particular mode in which the 
 party was invested with the particular character in which he has been 
 injured, it will, as it seems, be necessary to prove such descriptive al- 
 legation with all its circumstances, although a more general allegation 
 would have been sufficient ; for though a totally irrelevant alle- 
 gation may be regarded as surplusage, one which is material and 
 descriptive of the legal injury must be proved as laid. 2 Stark, on 
 Slander, 8, 2nd ed. 
 
 In all cases where the libel itself is an admission of the particular 
 character alleged, further proof of such particular character is unne- 
 cessary. Thus, where in an action for words spoken of the plaintiff 
 as an attorney, it appearing that they contained a threat to have the 
 jilaintiff struck off the roll of attorneys, it was held unnecessary to 
 give any proof of the plaintiff's professional character. Bcrryman v. 
 Wise, 4 T. R. 366. So where the words were, " He is a pettifogging, 
 blood-sucking attorney." Armstrong v. Jordan, cor. Hullock, J., 2 
 Stark, on Slander, 11 (n), 2nd ed. Where the declaration alleged that 
 the plaintiff held a certain office and place of trust and confidence, to 
 wit, the office of overseer of a certain common field, and the alleged 
 libel treated the plaintiff as holding an office of public trust, and 
 charged him with not having given a proper account of the public 
 property, the libel itself was held to be evidence of the introductory 
 averment, though the plaintiff's own witnesses proved that the office 
 was not one of trust and confidence, and that he was not trusted with 
 the receipt of money. Baguall v. Underwood, 11 Price, 621. 
 
 In the same manner, where the libel admits any other of the intro- 
 ductory averments, such averments need not be proved. Where the 
 declaration averred that the plaintiff had been appointed envoy by 
 certain persons exercising the powers of government in the rcpul)lic 
 or state of Chili, in South America, the libel, stating that the plaintiff 
 had colluded to obtain money in the matter of a loan for the republic 
 or state of Chili, was held to be sufficient proof of the existence of 
 such a state. Yrisarri v. Clement, 3 Bingh. 432, HE. C. L. So 
 where a libel alleged that certain acts of outrage had been committed,
 
 LIBEL. 881 
 
 and there was a similar introductory averment, it was held that the 
 latter re(iuired no proof. R. v. Sutton, 4 M. & S. 548. 
 
 If an introductory averment be immaterial, it may be rejected as 
 surphisa^c, and need not be proved ; and in general, where it is not 
 *niatter of description, it is divisible, and part of it only may r:^7r.rj 
 be proved. L ' "'^ 
 
 The averment that the libel was published "of and concerning" 
 tlie prosecutor, or " of and concerning " the particular matters averred, 
 must be proved as laid. 
 
 The declarations of spectators, while viewing a libellous picture, 
 publicly exhibited in an exhibition room, were admitted by Lord 
 Ellenborough as evidence to show that the figures portrayed were 
 meant to represent the parties alleged to have been libelled. Dubost 
 V. Beresford, 2 Campb. 512. 
 
 Proof of publication — in general. All who are concerned in pub- 
 lishing a libel are equally guilty of a misdemeanor ; Bac. Ab. Libel 
 (B.) ; unless the part they had in the transaction was a lawful or an 
 innocent act. 3 Russ. Cri. 211, 5th ed. ; but the writing or compos- 
 ing of a libel, without a publication of it, is not an offence. The 
 mere writing of a defamatory libel, which the party confines to his 
 own closet, and neither circulates nor reads to others, is not punish- 
 able. R. V. Paine, 5 Mod. 165, 167. So the taking a copy of a libel 
 is not an offence, unless the person taking the copy publishes it. Cora. 
 Dig. Libel (B. 2). 
 
 Tlie question of publication is ordinarily one of mere fact, to be 
 decided by the jury ; but this, like all other legal and technical terms, 
 involves law as well as fact, and it is a question for the court in 
 doubtful cases, whether the facts, when proved, constitute a publica- 
 tion in point of law.^ 2 Stark, on Slander, 311, 2nd ed. 
 
 With regard to the acts which constitute a publication, it has been 
 held, that a man who acts as a servant to the printer of the libel, and 
 claps down the press, is punishable, though it do not appear that he 
 clearly knew the import of the libel, or that he was conscious he was 
 doing anything wrong. R. v. Clark, 1 Barnard, 304. To this deci- 
 sion, however, Mr. Serjeant Russell has, with much reason, added a 
 qucere. 3 Russ. Cri., 211, 5th ed. Production of a libel, and proof that 
 it is in the handwriting of the defendant, afford a strong presumption 
 that he published it. R. v. Beare, 1 Lord Raym. 414. So if the 
 manuscript of a libel be proved to be in the handwriting of tlie de- 
 fendant, and it be also proved to have been printed and published, 
 this is evidence to go to a jury that it was published by the de- 
 fendant, although there be no evidence given to show that the 
 printing and publication were by the direction of the defendant. 
 R. V. Lovett, 9 C. & P. 243, 38 E. C. L. But the defendant may 
 
 1 Resp. V. Davies, 3 Yeates, 128 ; Southwick v. Stevens, 10 Johns. 442. S. 
 
 That defendant threatened to publish libellous matter of the plaintiff and that it 
 was afterwards published is some evidence from which a jury may infer that defend- 
 ant was the author of the article. Bent v. Minik, 46 Iowa, 576. 
 
 56
 
 882 LIBEL. 
 
 show that the publication was without his authority or knowledge, 
 see post, p. 707. So printing a libel, unless qualified by circum- 
 stances, will, primd facie, be understood to be a publishing, for it 
 must be delivered to the compositor and the other subordinate work- 
 men. Per cur. Baldwin v. Elphinstone, 2 W. Bl, 1037. A delivery 
 of a newspaper (containing a libel) according to the provisions of the 
 repealed statute 38 Geo. 3, c. 78, to the officer of the stamp-office, has 
 been held a [)ublication, though such delivery was directed by the 
 statute, for the officer had an opportunity of reading the libel. R. v. 
 Amphlitt, 4 B. & C. 25, 10 E. C. L. ; see also Cook v. Ward, 6 Bingh. 409, 
 19 E. C. L. If a letter containing a libel have the post-mark upon it, 
 this is primd facie evidence of its having been published. Warren 
 V. Warreu, 1 C. M. & R. 360; 4 Tyr. 850; Shipley v. Todhunter, 7 
 C. & P. 680, 32 E. C. L. It is said by Mr. Justice Fortesque to 
 ^-^ ,-| have been ruled that the finding of a libel on a ^bookseller's 
 -I shelf is a publication of it by the bookseller. R. v. Dodd, 2 
 Sess. Ca. 33 ; Holt's L. of L. 248, 2nd ed. The reading of a libel 
 in the presence of another, without knowing it to be a libel, with or 
 without malice, does not amount to a publication. 4 Bac. Ab. 458 ; 
 Holt's L. of L. 282, 2nd ed. But if a person who has either read a 
 libel himself, or heard it read by another, afterwards maliciously reads 
 or repeats any part it to another, he is guilty of an unlawful publica- 
 tion of it. Hawk. P. C. b. 2, c. 73, s. 10. 
 
 Although in civil cases, publication of a libel to the party libelled 
 is not sufficient to support an action, yet in criminal cases such publi- 
 cation will maintain an indictment or information.^ Hawk. P. C. b. 
 1, c. 73, s. 1 1 ; 3 Russ. Cri., 213, 5th ed. ; R. v. Wegener, 2 Stark. N. P. 
 C 245, 3 E. C L. But such publication must be alleged to have 
 been sent, with intent to provoke the prosecutor to a breach of the 
 peace, and not with intent to injure him in his profession, etc. R. v. 
 Wegener, supra. 
 
 Where the libel is in a foreign language, and it is set out in the in- 
 dictment, both in the original and in a translation, the translation 
 must be proved to be correct. In a case of this kind, an interpreter 
 being called, read the whole of that which Avas charged to be a libel 
 in the original, and then the translation was read by the clerk at nisi 
 prius. R. V. Peltier, Selw. N. P. 917. 
 
 Where the libel has been printed by the directions of the defendant, 
 and he has taken away some of the impressions, a copy of those left 
 with the printer may be read in evidence. R. v. Watson, 2 Stark. 
 N. P. C. 129, 3 E. C. L.. In order to show that the defendant had 
 caused a libel to be inserted in a newspaper, a reporter to the paper 
 was called, who proved that he had given a written statement to the 
 editor, the contents of which had been communicated by the defend- 
 ant for the purpose of publication ; and that the newspaper produced 
 was exactly the same, with the exception of one or two slight altera- 
 ^ tions not affecting the sense ; it was held that what the report pub- 
 
 ^ Swindle v. State, 2 Yerger, 581 ; State v. Avery, 7 Conn. 266. S.
 
 LIBEL. 883 
 
 lished might be considered as published by the defendant, but that the 
 newspaper could not be read in evidence, without produciing the writ- 
 ten stiitement delivered by the reporter to the editor. Adams v. Kelly, 
 Ry. & Moo. N. P. C. 157 ; and see R. v. Cooper, 8 Q. B. 533, 55 
 E. C. L. ; 15 L. J., Q. B. 206; and Fryer v. Gathercole, 4 Ex. 262 ; 
 18 L. J., Ex. 389. 
 
 AVhere a libel is printetl, the sale of each t^opy is a distinct publica- 
 tion, and a fresh otfence ; and a conviction or acquittal on an indict- 
 meut for publishing one copy, will be no bar to an indictment for 
 publishing another copy. R. v. Carlile, 1 Chitty, 451 ; 2 Stark, on 
 Slander, 320, 2nd ed. 
 
 Proof of publication — of libels contained in newspapers. The 
 
 proof of the publication of libels contained in newspapers was form- 
 erly facilitated by the 38 Geo. 3, c. 78, and subsequently by the 6 & 7 
 Will. 4, c. 76 (U. K.), which in turn has been repealed by the 33 & 34 
 Vict. c. 99. Section 19 of the 6 & 7 Will. 4, c. 76, had however been 
 embodied in 32 & 33 Vict. c. 24, sched. 2, and therefore is still in force, 
 by that section. If any person shall file any bill in any court for the 
 discovery of the name of any person concerned as printer, publisher, 
 or proprietor of any newspaper, or of any matters relative to the 
 printing or publishing of any newspaper, in order the more effectually 
 to bring or carry on any suit or action for damage alleged to have 
 *been sustained by reason of any slanderous or libellous matter r^yrvtr 
 contained in any such newspaper respecting such person, it shall L 
 not be lawful for the defendant to plead or demur to such bill, but 
 such defendant shall be compellable to make the discovery required, 
 provided always that such discovery shall not be made use of as evi- 
 dence or otherwise in any proceeding against the defendant, save only 
 in that proceeding for which the discovery is made. 
 
 The Newspaper and Libel Registration Act, 1881 (44 & 45 Vict. c. 
 60), enacts by s. 1, The word " newspaper " shall mean any paper con- 
 taining public news, intelligence or occurrences, or any remarks or 
 observations therein printed for sale, and published in England or 
 Ireland periodically or in parts or numbers, at intervals not exceeding 
 twenty-six days between the publication of any two such papers, parts, 
 or numbers. Also any paper printed in order to be dispersed and made 
 public, weekly or oftener, or at intervals not exceeding twenty-six 
 days, containing only or principally advertisements. 
 
 The word " proprietor " shall mean and include as well the sole 
 proprietor of any newspaper as also, in the case of a divided proprie- 
 torship, the persons who as partners or, otherwise, represent and are 
 responsible for any share or interest in the newspaper as between them- 
 selves and the persons in like manner representing or responsible for 
 the other shares or interests therein, and no other person. 
 
 By s. 2. Any report published in any newspaper of the proceed- 
 ings of a public meeting shall be privileged if such meeting was 
 lawfully convened for a lawful purpose, and open to the public, and 
 if such report was fair and accurate, and published without malice,
 
 884 LIBEL. 
 
 and if the publication of the matter complained of was for the public 
 benefit, provided always that the protection intended to be afforded 
 by this section shall not be av^ailable as a defence in any proceeding 
 if the plaintiflP or prosecutor can show that the defendant has refused 
 to insert in the newspaper in which the report containino- the matter 
 complained of appeared, a reasonable letter or statement of expla- 
 nation or contradiction by or on behalf of such plaintiff or prose- 
 cutor. 
 
 By s. 3. No criminal prosecution shall be commenced against any 
 proprietor, publisher, editor, or any person responsible for the publi- 
 cation of a newspaper for any libel published therein, without the 
 written fiat or allowance of the director of public prosecutions in 
 England, or Her Majesty's Attorney-General in Ireland, being first 
 had and obtained. 
 
 The Queen v. Yates, 11 Q. B. D. 750, decided that s. 3 of the 44 & 
 45 Vict, c, 60, does not apply to criminal informations for libel filed 
 by the order of the court at the instance of private prosecutors ; 
 neither does it apply to criminal informations filed by the Attorney- 
 General ; but it applies to prosecutions in the ordinary sense of the 
 term, viz., a criminal charge made before a magistrate or a grand jury. 
 This question will, however, shortly be argued before the Court of 
 Appeal. 
 
 The fiat of the director of public prosecutions required by s. 3 of 44 
 & 45 Vict. c. 60, as a preliminary to a prosecution under the Act is 
 entirely discretionary, and the High Court will not interfere. Ex parte 
 Hubert, 15 Cox, C. C. 166. 
 
 " I hereby allow the prosecution of the publisher, proprietor, or 
 editor of the Freethinker, or any other person responsible for the pub- 
 lication therein of blasphemous articles between the dates of INIarch 
 *7nn *^^' ^"^^ ^^^^y ^^^ 1882," was held to be a sufficient fiat within 
 '^^^ the Act. R. V. Bradlaugh, 15 Cox, C. C. 217. 
 By ss. 4 & 5, inquiry may be made by a court of summary juris- 
 diction as to the libel being for the public benefit or being true, and 
 the court, if they think a jury would acquit, may dismiss the case, or 
 if they think the libel was of a trivial character, they may ask the de- 
 fendant if he consents to being dealt with summarily. 
 The Vexatious Indictments Act applies, see ante, p. 192. 
 The 4th section of the Act appears to have been inserted in conse- 
 quence of the decision in R. v. Garden, 5 Q. B. D. 1, 49 L. J., M. C. 
 1, that a magistrate has no jurisdiction to inquire into the truth 
 of a libel. In R. v. Duffey, 2 Cox, C. C. 45, 9 Ir. L. Rep. 329, 
 post, p. 715, it was held that Lord Campbell's Act, 6 & 7 Vict, 
 c, 96, s. 6, 'post, p. 715, has no application to seditious libels, and the 
 same has been held with regard to s. 4 of the present statute, as it is 
 said to be absurd to suppose sedition to be for the benefit of the 
 public. R. V. O'Brien, 15 Cox, C. C. (Irish) 180. It seems to have 
 been assumed and not disputed that the libel comj)lained of was sedi- 
 tious. It is also to be remark(^d that it is said in R. v. Duffey, supra, 
 that Lord Campbell's Act, s. 6, did not apply to blasphemous libels,
 
 LIBEL. 88^ 
 
 and Lord Coleridge, In R. v. Bradlaiigh, 15 Cox, C. C. 217, at p. 226, 
 said that there were some sections as to which a serious argument 
 might be raised whether they had any application to the case of a 
 blasphemous libel. 
 
 By subsequent sections of the Act, provision is made for the regis- 
 tration of the names of newspaper proprietors, and by s. 15, copies 
 of entries in and contracts from the register are made evidence. 
 See ante, " Documentary Evidence," p. 1 74. 
 
 After the passing of the 38 Geo. 3, c. 78, now repealed, the pro- 
 duction of a certified copy of the affidavit and of a newspaper corres- 
 ponding in the title and in the names and descriptions of printer and 
 publisher with the newspaper mentioned in the affidavit, was sufficient 
 evidence of publication. Mayne v. Fletcher, 9 B. & C. 382, 17 E. C. 
 L.; R. V. Hunt, 31 State Trials, 375. But where the affidavit and 
 the newspaper vary in the place of residence of the party, Murray v. 
 Souter, cited 6 Biug. 414, 19 E. C. L., or in the name of the printing 
 place, R. u. Francey, 2 A. & E. 49, 29 E. C. L., it was insufficient. 
 See as to what was sufficient evidence of the identity of the newspaper 
 under the 6 & 7 Will. 4, c. 76, s. 8 ; Baker v. Wilkinson, Carr. & M. 
 399, 41 E. C. L. ; see also R. v. Woolmer, 12 A. & E. 422, 40 E. C. 
 L.; Duke of Brunswick v. Harmer, 3 C. & K. 10 ; 14 Q. B. 110, 68 
 E. C. L.; 19 L. J., Q. B. 10 ; and Gathercole v. Miall, 15 M. & W. 
 319. 
 
 The purchase of a copy of the newspaper at the office many years 
 after the date of the libel was held to be sufficient proof of publica- 
 tion. Duke of Brunswick v. Harmer, supra. 
 
 The statute was held to apply to motions for criminal informations, 
 R. V. Donnison, 4 B. & Ad. 698, 24 E. C L.; R. v. Francey, supra. 
 It seems to have been held that where the printer swore that a printed 
 copy of a newspaper was a copy of an issue published to the world, 
 such copy of the newspaper may be given in evidence, though it is not 
 one of the copies published, and though it be unstamped. R. v. 
 Pearce, 1 Peake, 106. 
 
 Proof of publication — ^by admission of the defendant. On an 
 
 information for a libel, the Avitness who produced it stated, that 
 he showed it to the defendant, who admitted that he was the author 
 *of it, errors of the press and some small variances only ex- r^nr^ij 
 cepted. It was objected that this evidence did not entitle the L 
 prosecutor to read the book, the admission not being absolute ; but 
 Pratt, C. J., allowed it to be read, and said he would put it to the de- 
 fendant to prove material v^ariances. R. ^^ Hall, 1 Str. 416. An ad- 
 mission of the signature to a libel is no admission of its having been 
 published in a particular county. Case of the Seven Bishops, 12 
 How. St. Tr. 183. An admission of being the publisher of a peri- 
 odical work cannot be extended beyond the date of such admission. 
 M'Leod V. Wakley, 3 C. & P. 311, 14 E. C. L. 
 
 Publication — constructive publication. It was well established
 
 886 LIBEL. 
 
 at common law that, in order to render a party guilty of publishing a 
 libel, it was not necessary that he should be the actual publisher of it, 
 or that he should even have a knowledge of the publication ; not only 
 was a person who procured another to publish a libel himself guilty 
 of the oifence. Hawk. P. C. b. 1, c. 73, s. 10, but a bookseller or pub- 
 lisher, whose servant published a libel, was criminally answerable for 
 that act, though it was done without his knowledge. The leading case 
 on this subject is that of 11. v. Almon, 5 Burr. 2686. The defendant, 
 a bookseller, was convicted of publishing a libel in a magazine. The 
 proof of the publication was, that the magazine M^as bought at his 
 shop. A new trial was moved for on the ground that the libel had 
 been sent to the defendant's shop, and sold there by a boy, without 
 his knowledge, privity, or approbation ; but the court were clear and 
 unanimous in their opinion, that this libel, being bought in the shop 
 of a common known bookseller' and publisher, importing, by its title- 
 page, to be printed by him, was a sufficient p7'imd facie evidence of its 
 being published by him, — not indeed conclusive, because he might 
 have contradicted it, if tlie facts would have borne it, by contrary evi- 
 dence. The court regarded the matters urged as grounds for a new 
 trial, merely as an extenuation of the offence. So Lord Kenyon ruled, 
 that the proprietor of a newspaper was answerable, criminally as well 
 as civilly, for the acts of his servants or agents in misconducting the 
 paper ; adding that this was not his opinion only, but that of Lord 
 Hale, Justice Powell, and Justice Foster ; that it Avas the old received 
 law for above a century, and was not to be broken in upon by any 
 new doctrine upon libels. R. v. Walter, 3 Esp. 21. And the same 
 rule was laid down by Lord Ellenborough. R. v. Cuthell, R. v. 
 White ; Holt, Law of Libel, 287 ; 2 Stark, on Slander, 33, 2nd ed.; 
 R. V. Gutch, Moo. & M. 433. 
 
 It did not appear to be well settled whether a publisher, by whose 
 servant a libel had been sold, might exonerate himself from the con- 
 sequences of that act, by showing that he had himself in noway been 
 accessory to the publication. If the libellous work had been sold by 
 the servant in the regular performance of his duty towards his em- 
 ployer, the latter would be answerable, although he should prove 
 that in fact he was absent from the slK)p at the time, and that he was 
 wholly ignorant of the contents of tlie l)Ook, and innocent of any 
 intent to disseminate the libel. R. v. Dodd, 2 Sess. Ca. 33. If, on 
 the contrary, the book was not sold by the servant in the ordinary 
 course of his employment, but clandestinely brought by him to his 
 master's shop,*and vended there; in such case the master would not 
 have been held guilty of the publication. In R. v. Almon, siipray 
 the court appear to have treated the publication by the servant as 
 *7081 *pi'GSumptive evidence only of a publication as against the 
 -■ master, who would be entitled to rebut such presumption ; and 
 in one case it seems to have been decided that if a printer is confined 
 in prison, to which his servants have no access, and they publish a 
 libel without his privity, the publication of it shall not be imputed to 
 him. R. V. Woodfall, Essay on Libels, 18. See R. v. Salmon, B. R.
 
 LIBEL. 887 
 
 H. T. 1777 ; Hawk. P. C. b. 1, c. 73, s. 10 (n), 7th ed. The defend- 
 ant may rebut tlie presumption by evidence that the libel was sold 
 contrary to his orders, or clandestinely, or that some deceit or surprise 
 was practised upon him, or that he was absent under circumstances 
 whicli entirely negatived any presumption, or privity, or connivance.' 
 2 Starkic on Slander, 34, 2nd ed. This being the state of the com- 
 mon law. Lord Campbell's Act (6 & 7 Vict. c. 90) was passed. By 
 sect. 7 of that Act, where a presumptive case of publication against 
 the defendant by the act of another person by his authority was set 
 lip, the defendant might rebut it by showing that the publication was 
 without his authority, consent, or knowledge, and did not arise from 
 M'ant of duo care or caution on his part (see the section, post, p. 716). 
 At the trial of a criminal information against the defendants for a 
 libel published in a newspaper, of which they were proprietors, it was 
 proved that each of them managed a different department of the news- 
 paper, but that the duty of editing what was called the literary de- 
 partment was left by them entirely to an editor whom they had ap- 
 pointed named G. The libel in question was inserted in the paper by 
 G. without the express authority, consent, or knowledge of the defend- 
 ants. It was held by Cockburn, C J., and Lush, J., that it was a 
 question for the jury whether the libel was published without the de- 
 fendants' authority, consent, or knowledge, and whether the publication 
 arose from any want of due care and caution on their part. Cockburn, 
 C. J., said that sect. 7 was intended to meet the anomaly of holding a 
 man criminally responsible for something in which he had taken no 
 part, and, in fact, of which he was not even cognizant. Mellor, J., 
 dissented, holding that the defendants having, for their own benefit, 
 employed an editor to manage a particular department of the news- 
 paper, and given him full discretion as to the articles to be inserted in 
 it, must be taken to have consented to the publication of the libel by 
 him, and that 6 & 7 Vict. c. 96, s. 7, had no application to the facts 
 proved. R. v. Holbrook, 3 Q. B. D. 60 ; 47 L. J., Q. B. 35. The 
 case was sent down for a new trial for the jury to determine the above 
 questions ; on a motion for a second new trial, it was held by the 
 same judges, Mellor, J., dissenting, that the general authority given 
 to G. was not per se evidence that the defendants had authorized 
 or consented to the libel, s. c. 4 Q. B. D. 42 ; 48 L. J. Q. B. 
 113. 
 
 Where the libel is published by an agent of the defendant, the 
 authority of that agent must be strictly proved. In the case of book- 
 sellers and publishers, proof that the party actually vending the libel 
 was a servant in the way of their business, is sufficient ; for in such 
 case an authority to sell will be implied, but it is not so with regard 
 to other persons. Thus, where it appeared that the libel in question 
 was in the handwriting of the defendant's daughter, who was usually 
 employed by him to write his letters of business, but there was no 
 evidence that the defendant had authorized her to write this particular 
 
 1 Commonwealtli v. Buckingham, 2 Wheel. C. C. 198. S.
 
 888 LIBEL. 
 
 document, it was held to be no evidence of publication as against him. 
 Harding v. Greening, 1 B. Moore, 477. 
 
 *7nQl *Proof of innuendoes. Where, in order to bring out the libel- 
 J lous sense of the words, innuendoes are inserted in the indict- 
 ment, they must, if material, be proved by witnesses acquainted with 
 the parties, and with the transaction to be explained. It is sufficient 
 if such witnesses speak in the first instance as to their belief with re- 
 gard to the intended application of the words ; the grounds of such 
 belief may be inquired into on cross-examination.^ 2 Stark, on Slander, 
 51, 2nd ed. If the witness derives his conclusion from the terms of 
 another libel, with the publication of which the defendant is not con- 
 nected, this is not sufficient. Bourke v. Warren, 2 C. & P. 307, 12 
 E. C. L. If a good innuendo, ascribing a particular meaning to cer- 
 tain words, is not supported in evidence, the party will not be per- 
 mitted to ascribe another meaning to those words. Williams v. Stott, 
 1 Crom. & M. 675 ; Archbishop of Tuam v. Robinson, 5 Bingh. 17, 
 15 E. C. L.; but see Harvey v. French, 1 Crom. & M. 11. Thus, 
 where the words in fact imputed either a fraud or a felony, but by the 
 innuendo were confined to the latter. Lord Ellenborough ruled that the 
 plaintiff must prove that they were spoken in the latter sense. Smith 
 V. Carey, 3 Campb. 461. If a libel contains blanks, the jury ought to 
 acquit the defendant, unless they are satisfied that those blanks are 
 filled up in the indictment according to the sense and meaning of the 
 writer. Per Lord Mansfield, R. v. Almon, 5 Burr. 2686. It is said 
 by Tindal, C. J., that where words spoken import in themselves a 
 criminal charge, and the innuendo introduces matter which is merely 
 useless, it may be rejected as surplusage. Day v. Robinson, 1 A. & 
 E. 554, 28 E. C. L.; see also Williams v. Gardiner, Tyr. & G. 578; 
 1 M. & W. 245 J West v. Smith, Tyr. & G. 825. And see Hoare v. 
 Silverlocke, 12 Q. B. 625, 64 E. C. L. 
 
 Proof of malice. Where a man publishes a writing, which upon 
 the face of it is libellous, the law presumes that he does so with that 
 malicious intention which constitutes au offence, and it is unnecessary 
 on the part of the prosecution to give evidence of any circumstances 
 from which malice may be inferred. Thus it was said by Lord Ten- 
 terdcn, that a person who publishes what is calumnious concerning the 
 character of another, must be presumed to have intended to do that 
 which the publication is necessarily and obviously intended to effect, 
 unless he can show the contrary. R. v. Harvey, 2 B. & C. 257, 9 E. 
 C. L. ; R. V. Bardett, 4 B. & Aid. 95, 6 E. C. L. In such case it is 
 incumbent upon the defendant, if he seeks to discharge himself from 
 the consequences of the publication, to show that it was made under 
 circumstances which justify it. 
 
 ' Van Vechten v. Hopkins, 5 Johns. 211 ; Commonwealth v. Keenan, 67 Pa. St. 
 203. S. 
 
 A witness cannot give liis opinion as to the person meant in a libel. People v. 
 Parr, 42 Hun, (N. Y.) 3i;5.
 
 LIBEL. 889 
 
 It is, however, frequently necessary, upon prosecutions for libel, 
 ■where the expressions are ambiguous, or the intentions of the dclond- 
 ant doubtful, to adduce evidence for the purpose of showing the 
 malice Avhich prompted the act of publication. Thus, where tlie occa- 
 sion of the publication would, pn?M/acic', justify the defendant, yet, 
 if the libel be false and malicious, it is an offence ; in such case evi- 
 dence of the malice must be given on the part of the prosecution to 
 rebut the presumed justification. " AVhen; the material question," 
 says Mr. Starkie, " is whether the defendant was justified by the 
 occasion, or acted from express malice, it seems, in principle, that any 
 circumstances are admissible which can elucidate the transaction, and 
 enable the jury correctly to conclude whether the defendant acted 
 fairly and honestly, or maid fide and vindictively, for the purpose of 
 causing evil consequences." 2 Stark, on Slander, 55, 2nd cd. Upon 
 *tliis principle, in an action for libel contained in a weekly paper, p^-., ^ 
 evidence was allowed to be given of the sale of other papers with •- 
 the same title at the same office, for the purpose of showing that the 
 papers were sold deliberately, and in the regular course of circulation, 
 and vended in regular transmission for public perusal. Plunkett v. 
 Cobbctt, 5 Esp. 136. So where, on the trial of an action for libel con- 
 tained in a newspaper, subsequent publications by the defendant in the 
 game paper were tendered in evidence to show quo animo the defend- 
 ant published the libel in question. Lord Ellenborough said, no doubt 
 they would be admissible in the case of an indictment, Stuart v. 
 Lovel, 2 Stark. N. P. C 93. Again, in the trial of an action against 
 the editor of a monthly publication for a libel contained in it, articles 
 published from month to month alluding to the action, and attacking 
 the plaintiff, are admissible to show quo animo the libel was published, 
 and that it was published concerning the plaintiff. Chubb v. Westley, 
 6 C. & P. 436, 25 E. C. L. In Barrett v. Long (in error), 3 H. of 
 L. Cas. 395, other publications of the defendant going back more than 
 six years before the publication complained of, were held to be ad- 
 missible to prove malice. So it was held by Lord Ellenborough, that 
 any words or any act of the defendant are admissible, in order to 
 show quo animo he spoke the words which are the subject of the 
 action. Rustcl v. Macquister, 1 Campb. 49. So either the prosecutor 
 or the defendant is entitled to have extracts read from different parts 
 of the same paper or book which contains the libel, relating to the 
 same subject. R. v. Lambert, 2 Campb. 398. 
 
 When the publication is primd facie excusable on account of the 
 cause of writing it, as in the case of servants' characters, or confiden- 
 tial advice, or communications to persons who ask it or have a right 
 to expect it, malice in fact must be proved.^ Per Bavley, J., Bromage 
 V. Prosser, 4 B. & C. 256, 10 E. C. L. ; and see M'Pherson v. Daniels, 
 10 B. & C. 272, 21 E. C. L. " Where a man has a right to make a 
 
 ' A publication made by a circular issued by a mercantile agency to its subscribers 
 is not privileged ; although it might be otherwise if made only to tliose having deal- 
 ings with H).G person to whom it relates. Commonwealth v. Stacey, 1 Campb. 
 114. S.
 
 890 LIBEL., 
 
 communication, you must either show malice intrinsically from the 
 language of the letter, or prove express malice." Per Parke, B., 
 AVright V. Woodgate, Tyr. & G. 13.^ 
 
 Proof of intent. Where the malicious intent of the defendant is 
 by averment in the indictment, pointed to a particular individual, or 
 to a particular act or offence, the averment must be proved as laid. 
 Thus, where the indictment alleged a publication of a libel with 
 intent to disparage and injure the prosecutor in his j)rofcssion of an 
 attorney, it was held that proof of a publication to the pnjsecutor only 
 did not maintain the indictment, and that the intent ought to have 
 been averred to provoke the prosecutor to a breach of the peace. R. 
 V. Wegener, 1 Stark. N. P. C. 245, 3 E. C. L. The allegation of intent 
 is divisible, ante, p. 87. 
 
 Venue. The libel must be proved to have been published in the 
 county in which the venue is laid. Where the libel is once pub- 
 lished, the party is guilty of a publication in every county in which 
 such libel is afterwards published.^ R. v. Johnson, 7 East, G5 ; B. N. 
 P. 6. So if he sent it to be printed in London, it is his act if the 
 publication is there. Upon an information for a libel, in the county 
 of Leicester, it appeared that it was written in that county, and deliv- 
 ered to a person who delivered it to B. (who was not called) in 
 Middlesex. It was inclosed in an envelope, but there was no trace 
 of a seal. The judge directed the jury, that as B. had it open, they 
 ^-. . -| *might presume that he received it open, and that as the defend- 
 -■ ant wrote it in the county of Leicester, it must be presumed 
 that he received it in that county. The defendant having been found 
 guilty, it was urged on a motion for a new trial, that there was no evi- 
 dence of a publication in Leicestershire ; but the Court of King's 
 Bench {disa. Bayley, J.) held that the direction of the judge was proper, 
 and that if the delivery open could not be presumed, a delivery sealed, 
 with a view to and for the purpose of publication, was a publication ; 
 and they held that there was sufficient to presume some delivery, 
 either open or sealed, in the county of Leicester. R. v. Burdett, 4 
 B. & Aid. 95, 6 E, C. L. In the above case the question was discussed 
 whether it was essential that the whole offence should be proved to 
 have been committed in the county in wiiich the venue was laid. 
 Holroyd, J., expressed an opinion that the composing and writing a 
 libel in the county of L., and afterwards publishing it, though that 
 publication was not in L., was an offence which gave jurisdiction 
 to a jury of the county of L. (R. v. Beer, 2 Salk. 417 ; Carth. 409 ; 
 R. V. Knell, Barnard, K. B. 305), and that the composing and 
 writing Avith intent afterwards to publish was a misdemeanor ; but 
 
 ^ In privileged communications malice must be proved intrinsically. Discussion 
 by the newspapers of a candidate's backers is privileged by the Pennsylvania Consti- 
 tution of 1874. Commonwealth v. McClure, 1 County Ct. Rep. (Pa.) 207. 
 
 ' So in the case of a newspaper printed in one State and circulated, in another. 
 Commonwealth v. Blanding, 3 Pick. 304. S.
 
 LIBEL. 801 
 
 Baylev, J., held that the whole corpus delicti must be proved within 
 one county, and that there was no distinction in this respect between 
 felonies and misdemeanors. Abbott, J., said that as the whole was 
 a misdemeanor compounded of distinct parts, each of which was an aet 
 done in the prosecution of the same criminal intention, the whole 
 might be tried in the county of \j., where one of those acts had been 
 done. 
 
 The post-marks upon letters (proved to be such) are evidence that 
 the letters which bear them were in the offices to which the post- 
 marks belong at the times denoted by the marks. R. v. Plnmer, lluss. 
 & Ry. 204. But the mark of double postage having been paid is not 
 of itself proof that tlie letter contained an indosure. Id. 
 
 Proof of a newspaper under the requisitions of the repealed statute 
 38 Geo. 3, c. 78, ante, p. 704, was held to be proof that the paper 
 was })ublislied in the county where the printing is described to be. 
 R. V. Hart, 10 P:ast, 94. 
 
 A letter containing a libel was proved to be in the handwriting of 
 A., to have been addressed to a party in Scotland, to have been 
 received at the post-office at C. from the post-office at H., and to 
 have been then forwarded to London to be forwarded to Scotland. It 
 was produced at the trial with the proper post-mark, and ^vith the 
 seal broken. This Avas held to be sufficient evidence of the letter 
 having reached the person to whom it was addressed, and of its hav- 
 ing been published to him. AVarren v. Warren, 1 C. M. & R. 250; 
 4 Tyr. 850. 
 
 Proof for the defendant. As the offence of publishing a libel con- 
 sists in the malicious publication of it, which, as already stated, is 
 in general inferred from the words of the alleged libel itself, it is com- 
 petent to the defendant, in all cases, to show the absence of malice on 
 his part. He cannot, it is true, give in evidence matter of justifica- 
 tion — that is to say, he cannot admit the publication to be mali- 
 cious, and then rely for his defence upon circumstances which show 
 that he w^as justified, however malicious the libel may be ; but he is 
 not precluded from giving evidence of those circumstances which 
 tend to prove that the original publication of the libel was Avithout 
 *malice. It may, perhaps, be laid down as a rule, that the mat- r^>^-in 
 ters which might be given in evidence under the general issue ■- 
 in an action in order to disprove malice, are also admissible for the 
 same purpose upon the trial of an indictment or information.^ 
 
 The defendant may, therefore, show that the publication was 
 merely accidental, and without his knowledge, as where he delivers 
 one paper instead of another, or delivers a letter without knowing its 
 contents. R. v. Topham, 4 T. R. 127, 128 ; R. v. Nutt, Fitzg. 47 ; 
 
 ^ Whether the truth can be given in evidence divided the court in People v. Cross- 
 well, 3 Johns. Cases, 337, s. c. 2 Wheel. C. C. 330. That it cannot, however, see 
 State V. Lehr, Id. 282; Commonwealth v. Buckingham, Id. 181 ; State v. Morris, 3 Id. 
 464 ; Commonwealth v. Blanding, 3 Pick. 304 ; Commonwealth v. Clap, 4 Mass. 163. 
 See also, State v. Burnham. 9 N. H. 34. S.
 
 892 LIBEL. 
 
 R. V. Lord Abingdon, 1 Esp. 225. See also Day v. Bream, 2 Moo. & 
 R. 54, where l\itte.son, J., lield that a porter, who in the course of 
 his business delivered parcels containing libellous handbills, was 
 not liable to an action for libel if he were shown to be ignorant 
 of the contents of the parcels. See the 6 & 7 Vict. c. 96, s. 7, post, 
 p. 716, and R. v. Holbrook, 3 Q. B. D. 60 ; 47 L. J,, Q. B. 35, ante, 
 p. 708. 
 
 So the defendant, under the plea of not guilty to the indictment, 
 may show that the libel was published under circumstances which 
 the law recognizes as constituting either an absolute justification or 
 excuse, independently of the question of intention, or a qualified 
 justification, dependent on the actual intention and motive of the 
 defendant. 2 Stark, on Sland. 308, 2nd ed. Thus the defendant 
 may show that the alleged libel was presented bond fide to the king 
 as a petition for the redress of grievances ; Case of the Seven 
 Bishops, 12 St. Tr. 183; or to parliament; Hawk. P. C. b. 2, c. 73, 
 s. 8 ; or that it was contained in articles of the peace exhibited to a 
 magistrate, or in any other proceeding in a regular course of justice. 
 Id. " It seems," says Hawkins, " to have been held by some, that no 
 want of jurisdiction in the court to which such complaint is exhibited 
 will make it a libel, because the mistake of the proper court is not 
 imputable to the party, but to his counsel ; yet if it shall manifestly 
 appear from the whole circumstances of the case, that a prosecution 
 is entirely false, malicious, and groundless, commenced, not with a 
 design to go through with it, but only to expose the defendant's char- 
 acter under the show of legal proceeding, it would form a ground for 
 indictment at the suit of the king, as the malice of the proceeding 
 would be a good foundation for an action on the case of the suit of the 
 party." ' Id. 
 
 Though it is a defence to show that the alleged libel was published 
 by a person in a privileged capacity, as by a member of parliament 
 in his place, or by some person in the course of a judicial proceed- 
 ing, yet if it appear tliat the publication took place by the party 
 when not invested with the privileged capacity, or by a third person 
 who has never been invested with it, this furnishes no defence. Thus 
 a member of parliament Avho, after delivering his speech in parlia- 
 ment, publishes it, is criminally responsible for the libel. R. v. 
 Creevey, 1 M. & S. 273 ; though by Act of parliament the members 
 are protected from all charges against them for anything said in 
 either house. 1 W. & M. st. 2, c. 2, but see infra. So it was held 
 by the Court of Queen's Bench, that it is no defence in law to 
 an action for publishing a libel, that the defamatory matter is 
 part of a document which was, by order of the House of Commons, 
 laid before the house, and thereupon became part of the proceedings 
 of the house, and which was afterwards, by orders of the house, 
 printed and published by the defendants : and that the House of 
 
 ' Bodwell V. Osgood, 3 Pick. 379 ; Gray v. Pentland, 2 S. & K. 23 ; Lewis v. Few, 
 5 .Johns. 1 ; Harris v. Huntingdon etal., 2 Tyl. 129; 1 Id. 164; Tlioru v. Blanchard, 
 5Jolins. 508. S.
 
 LIBEL. 893 
 
 Commons heretofore resolved, declared, and adjudged, "that the 
 *power of publishing such of its reports, votes, and proceedings r^r-, o 
 as it shall deem necessary or condu(;ive to the ]>nl)lic interests, ^ 
 is an essential incident to the constitutional functions of parliament, 
 more especially to the Commons House of Parliament as the repre- 
 sentative portion of it." On the demurrer to a plea suggesting such 
 a defence, it was also lield, that a court of law is competent to deter- 
 mine whether or not the House of Commons has such privileges as 
 will support the plea. Stockdale v. Hansard, 9 A. & E. 1, 36 
 E. C. L. ; but see now 3 & 4 Vict. c. 9, and Stockdale v. Hansard, 11 
 A. & E. 297, 39 E. C. L.; and it has been recently held that the ])ub- 
 lication in a public newspaper of a faithful report of a debate in either 
 house of parliament is privileged, so that the publisher is not respon- 
 sible for defamatory statements made in the course of the debate and 
 reproduced in such faithful report. Nor is he liable for the publica- 
 tion of fair comments upon the debates so reported. Wason v. Walter, 
 L. R. 4 Q. B. 73 ; 38 L. J., Q. B. 34.' 
 
 It will, upon the same principle, be a defence to show that the sup- 
 posed libel was written bond fide, with the view of investigating a 
 fact in which the party is interested, provided the limits necessary for 
 effectuating such inquiry are not exceeded. Delany v. Jones, 4 Esp. 
 190; Finden v. Westlake, Moo. & Malk. 461 ; Brown v. Croome, 2 
 Stark. N. P. C. 297, 3 E. C. L. So where the libel was an advertise- 
 ment for the discovery of the plaintiff, an absconding debtor, pub- 
 lished at the request of the party who had sued out a capias, for the 
 purpose of enabling the sheriif to take him. Lay v. Lawson, 4 A. <& E. 
 795, 31 E. C. L. So the showing of a libel to the person reflected on, 
 with tlie bond fide intention of giving him an opportunity for making 
 an explanation, or with a friendly intention to enable him to exculpate 
 himself, or seek his legal remedy, is no offence. 2 Stark, on Slander, 
 249, 2nd ed. ; B. N. P. C. 8 ; M'Dougall v. Claridge, 1 Campb. 267. 
 And the same with regard to a letter of friendly advice. Id. Thus 
 a letter from a son-in-law to his mother-in-law volunteering advice re- 
 specting her proposed marriage, and containing imputations upon the 
 person whom she was about to marry, is a privileged communication, 
 and not actionable, unless malice be shown. Todd v. Hawkins, 2 
 Moo. & R. 20. But an unnecessary publicity M'ould render such a 
 communication libellous, as if the letter were published in a news- 
 paper. R. V. Knight, Bac. Ab. Libel (A. 2). So a representation 
 made bond fide by the defendant to a public officer respecting the con- 
 duct of a plaintiff, a person acting under him, is not primd facie 
 actionable. Blake v. Pilfold, 1 Moo. & R. 198. So a letter to the 
 postmaster-general, complaining of misconduct in a postmaster, is not 
 libellous if it contains a bond fide complaint. Woodward v. Landor, 
 6 C. & P. 548, 25 E. C. L. See also Hopwood v. Thom, 8 C. B. 293, 
 
 * Comments of a newspaper upon public officers are not privileged communicationa 
 in a libel suit. State v. Bauer Pub. Co., 8 Crim. Law. Mag. 35. But see Common- 
 wealth V. Ward well, 136 Ma^is. 164; Brig.e:8 v. Garrett, 111 Pa. St. 404; Common- 
 wealth V. McClure, 1 County Ct. Eep. (Pa.) 207.
 
 894 LIBEL. 
 
 65 E. C. L, ; Harrison v. Bush, 25 L. J., Q. B. 25 ; Cook v. Wildes, 
 1 Jur. N. S. 610. Upon the same principle the defendant may show 
 that the supposed libel was written hondjide for the purpose of giving 
 the character of a servant. Edmonson v. Stevenson, Bull. N. P. 8 ; 
 Weatherstone :;. Hawkins, 1 T. R. 110; Pattison v. Jones, 8 B. & C. 
 578, 15 E. C. L.; Child v. Affleck, 9 B. & C. 403, 17 E. C. L. ; 
 Somervill v. Hawkins, 10 C. B. 583, 70 E. C. L. ; Taylor v. Haw- 
 kins, 16 Q. B. 308, 71 E. C. L. ; and Harris v. Thompson, 13 C. B. 33, 
 16 E. C. L. AVliere the occasion is privileged, the burden of proof is 
 on the plaintiff to show that the defendant did not honestly believe 
 his statements to be true. If he did honestly believe them to be true, 
 the defendant can claim privilege, although he had no reasonable 
 *71 J.1 *grounds for such belief. Clark v. Molyneux, 3 Q. B. D. 237 ; 
 -■ 47 L. J., Q. B. 230.^ So where the wife of a tradesman, 
 being informed that a female assistant in her husband's employment 
 was dishonest, wrote at his request, and sent a letter accusing her of 
 theft, and strongly reproaching her, it was held that the occasion was 
 privileged, and that therefore in the absence of malice the defendant 
 was not liable. R. v. Perry, 15 Cox, C. C. 169. 
 
 The publication of the proceedings of a court of justice correctly 
 given, containing a libel upon the character of an individual, and 
 published by a third person not connected with the proceedings, is not 
 punishable. Lewis v. Walter, 4 B. & A. 613, 6 E. C. L.; Ryalls v. 
 Leader, L. R. 1 Exch. 296; 35 L. J. Exch. 185. "It is now well 
 established," said Cockburn, C. J., in delivering the judgment of the 
 court in Wason v. Walter, " that faithful and fair reports of the pro- 
 ceedings of courts of justice, though the character of individuals may 
 incidentally suffer, are privileged, and that for the publication of such 
 reports the publishers are neither criminally nor civilly responsible." 
 And the reason of this privilege is, that " the general advantage to the 
 country in having these proceedings made public more than counter- 
 balances the inconvenience to the private persons whose conduct may 
 be the subject of the proceedings." With respect to ex parte proceed- 
 ings the court said that they had been regarded as an exception from 
 this rule, " yet ex parte proceedings before magistrates, and even before 
 this court, as, for instance, on application for criminal informations, 
 are published every day ; but such a thing as an action or indictment 
 founded on a report of such an ex parte proceeding is unheard of, and 
 if any such action or indictment should be brought it would ])robably 
 be held that the true criterion of the privilege is not whether the 
 report was or was not ex parte, but whether it was a fair and honest 
 report of what had taken place, published simply with a view to the 
 information of the public, and innocent of all intention to do injury 
 to the reputation of the partv affected." See also Usill v. Hales, 3 C. 
 P. D. 319; 47 L. J., C. P. 323. 
 
 The publication of a seditious libel will not be privileged on the 
 ground that it was copied from a foreign newspaper. It is a question 
 
 ^ But generally evidence of probable cause is not admissible in a criminal libel suit. 
 State V. Bauer Pub. Co., 8 Crim. Law. Ma;;. 35.
 
 LIBEL. 895 
 
 for the ]xiry whether it was so copied as an item of news or for a sedi- 
 tious purpose, and they may consider the surrounding circumstances 
 in order to arriv^e at the intention of the publisher. E,. v. Sullivan, 
 11 Cox, C. C. 44 (Irish). 
 
 The conduct and management of the clergyman of a parish of a 
 charitable society in a parish, from the benefit of which dissenters are 
 by his sanction excluded, is not lawful subject of public comment so 
 as to excuse a libellous publication respecting it. Gathercole v. Miall, 
 15 M. & W. 319 ; 15 L. J., Ex. 179. So where on showing cause 
 against a rule for a criminal information for publishing a blasphemous 
 and seditious libel, it was urged that it was merely the report of a 
 judicial proceeding ; yet the court held, that if the statement con- 
 tained anything blasphemous, seditious, indecent, or defamatory, the 
 defendant had no right to publish it, though it had actually taken 
 place in a court of justice. R. v. Carlile, 3 B. & Aid. 161, 5 E. C. L. 
 Where a libel stated that there was a riot at C, and that a person iired 
 a pistol at an assemblage of persons, and upon this imputed neglect of 
 duty to the magistrates, Patteson, J., held, that on the trial of a 
 criminal information for this libel on the magistrates, the defendant's 
 counsel, with a view of showing that the libel did not exceed the 
 *bounds of free discussion, could not go into evidence to prove r^-^ p. 
 that there was in fact a riot, and that a pistol was fired at the L 
 people. R. V. Brigstock, 6 C. & P. 184, 25 E. C. L. 
 
 Before the 6 & 7 Vict. c. 96 (E. & I.), the defendant Avas not al- 
 lowed upon an indictment to give evidence of the truth of the libel ; 
 but now by s, 6 of that statute, " on the trial of any indictment or in- 
 formation for a defamatory libel, the defendant having pleaded such 
 plea as hereinafter mentioned, the truth of the matters charged may be 
 inquired into, but shall not amount to a defence, unless it Avas for the 
 public benefit that the said matters charged should be published ; and 
 that to entitle the defendant to give evidence of the truth of such mat- 
 ters charged, as a defence to such indictment or information, it shall be 
 necessary for the defendant, in pleading to the said indictment or in- 
 formation, to allege the truth of the said matters charged, in the man- 
 ner now required in pleading a justification to an action for defamation, 
 and further to allege that it was for the public benefit that the said 
 matters charged should be published, and the particular fact or facts 
 by reason whereof it was for the public benefit that the said matters 
 charged should be published, to which plea the prosecutor shall be at 
 liberty to reply generally, denying the whole thereof; and if, after 
 such ])lea, the defendant shall be convicted on such indictment or in- 
 formation, it shall be competent to the court in pronouncing sentence, 
 to consider whether the guilt of the defendant is aggravated or miti- 
 gated by the said plea, and by the evidence given to prove or to dis- 
 prove the same : provided always, that the truth of the matters charged 
 in the alleged libel complained of, by such indictment or information, 
 shall in no case be inquired iuto without such plea of justification : 
 provided also, that in addition to such plea it shall be competent to the 
 defendant to plead a plea of not guilty : provided also, that nothing
 
 896 LIBEL. 
 
 in this act contained shall take away or prejudice any defence under 
 the plea of not guilty, which it is now competent to the defendant to 
 make under such plea to any action or indictment or information for 
 defamatory words or libel." 
 
 Where a defendant in an information for libel pleads the truth of 
 the charges under this section, evidence is not admissible in support of 
 the plea that the same charges had been previously published within 
 the knowledge of the prosecutor, and that he had not taken legal pro- 
 ceedings against the publisher. R. v. Newman, 1 El. & Bl. 2(38, 72 
 E. C. L.; 22 L. J., Q. B. 156.^ In the same case it was decided, that 
 upon a general replication to such plea the defendant is bound to prove 
 the truth of all the material allegations contained in it (see, however, 
 R. V. Labouchere, 14 Cox, C. C. 419, at p. 432), and if he 
 fail to do so, it is no ground for a new trial that, with respect to some 
 of those upon wliich the jury gave a verdict against him, their find- 
 ing was against the weight of the evidence ; but the court, in pro- 
 nouncing sentence, Avill consider the evidence on both sides, and form 
 their own conclusion, " whether the guilt of the defendant is aggra- 
 vated or mitigated by the plea and by the evidence given to prove or 
 disprove the same." Affidavits, showing the grounds upon which the 
 defendant proceeded in pleading, are receivable in mitigation of pun- 
 ishment. 
 
 This section does not apply to seditious libels. R. v. Duffy, 9 Ir. 
 L. Rep. 329 ; 2 Cox, C. C. 45 ; R. v. O'Brien, 15 Cox, C. C. (Irish), 
 180 ; see a7ite, p. 706. 
 
 *71 fil *Where the plea of justification stated that the prosecutor 
 -I had earned the reputation of a scandalous friar, a witness 
 called on behalf of the defendant in support of the plea, was allowed 
 to be asked on cross-examination as to the prosecutor's moral character. 
 R. V. Newman, 3 C. & K. 252. 
 
 By s. 7, "whensoever, upon the trial of any indictment or infor- 
 mation for the publication of a libel, under the plea of not guilty, 
 evidence shall have been given which shall establish a presumptive 
 case of publication against the defendant by the act of any other per- 
 son by his authority, it shall be competent to such defendant to prove 
 that such publication was made without his authority, consent, or 
 knowledge, and that the said publication did not arise from want of 
 due care or caution on his jjart." 
 
 Statute 32 Geo. 3, c. 60. By Mr. Fox's Act (the 32 Geo. 3, c. 60), 
 reciting that doubts had arisen Avhether, on the trial of an indictment 
 or information for the making or publishing of a libel, where an issue 
 or issues are joined between the king and the defendant or defendants 
 on the plea of not guilty pleaded, it be competent to the jury im]ian- 
 nelled to try the same, to give their verdict upon the whole matter 
 put in issue, it is (by sect. 1) declared and enacted, that on every such 
 trial the jury sworn to try the issue may give a general verdict of not 
 
 ' Nor is evidence of facts which occurred prior to the time alleged in the libel ad- 
 missible. State V. Bauer Pub. Co., 8 Crim. Law Mag. 35.
 
 LIBEL. 897 
 
 guilty upon the whole matter put in issue upon such indictment or 
 information, and shall not be required or directed, by the court or 
 judge before whom such indictment or information shall be tried, to 
 find the defendant or defendants guilty merely on the proof of the 
 publication, by such defendant or defendants, of the paper charged to 
 be a libel, and of the sense ascribed to the same in such indict- 
 ment or information. By sect. 2 it is provided, that on every such 
 trial the court or judge before whom such indictment or information 
 shall be tried, shall, according to their or his discretion, give their 
 or his opinion or direction to the jury on the matter in issue, between 
 the king and the defendant or defendants, in like manner as in other 
 criminal cases. By sect. 3 it is provided, that nothing in the Act 
 contained shall extend, or be construed to extend, to prevent the jury 
 from finding a special verdict in their discretion, as in other criminal 
 cases. And by sect. 4, in case the jury shall find the defendant or 
 defendants guilty, it shall and may be lawful for the defendant or de- 
 fendants to move in arrest of judgment, on such ground and in such 
 manner as by law he or they might have done before the passing of 
 the Act.^ 
 
 Publishing a libel to extort money. See " Threats," post. 
 
 . * See People v. Croswell, 2 Johns. Cases, 337. S. 
 
 The fact of libel is prima facie for the court. State v. Bauer Pub. Co., 8 Crim Law 
 Mag. 35. 
 
 57
 
 898 MACHINERY. 
 
 *717] 
 
 ♦MACHINERY. 
 
 Attempting to blow up machinery. See 24 & 25 Vict. c. 97, ss. 
 
 10, 45, supra, pp. 484, 485. 
 
 Kiotously destroying or damaging machinery. See 24 & 25 Vict, 
 c. 97, ss. 11, 12, infra, tit. "Riot." 
 
 Destroying or damaging machinery. By the 24 & 25 Vict. c. 97, 
 the latter part of s. 14, "whosoever shall unlawfully and maliciously 
 cut, break, or destroy, or damage with intent to destroy or render use- 
 less, any loom, frame, machine, engine, rack, tackle, tool, or implement, 
 whether fixed or movable, prepared for or employed in carding, spin- 
 ning, throwing, weaving, fulling, shearing, or otherwise manufac- 
 turing, or preparing any such goods or articles [see first part 
 of section, tit. " Manufactures," posQ, or shall by force enter into 
 any house, shop, building, or place, with intent to commit any of the 
 oifences in this section mentioned, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any term not less than 
 three [now five] years, — or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labor, and with or without 
 solitary confinement, and, if a male under the age of sixteen years, 
 with or without whipping." 
 
 By s. 15, "whosoever shall unlawfully and maliciously cut, break, 
 or destroy, or damage with intent to destroy, or to render useless, any 
 machine or engine, whether fixed or movable, used or intended to be 
 used for sowing, reaping, mowing, threshing, ploughing, or draining, 
 or for performing any other agricultural operation, or any machine 
 or engine, or any tool or implement, whether fixed or movable, pre- 
 pared for or employed in any manufacture whatsoever (except the 
 manufacture of silk, woollen, linen, cotton, hair, mohair, or alpaca 
 goods, or goods of any one or more of those materials mixed with each 
 other or mixed with any other material, or any framework, knitted 
 piece, stocking, hose, or lace), shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding seven years, and 
 not less than three [now five] years, — or to be imprisoned for any 
 term not exceeding two years, with or without hard labor, and with 
 or without solitary confinement, and, if a male under the age of six- 
 teen years, with or without whipping."
 
 *Persons 
 convicted. 
 
 MACHINERY. 899 
 
 Destroying or damaging machinery used in mines. See 24 & 25 
 Vict. c. 97, s. 29, infra, tit. *' Manufaoturos," post. 
 
 Malice against owner unnecessary. See 24 & 25 Vict. c. 97, s. 
 58, supra, p. 289. 
 
 in possession of injured property liable to be r^y^^ 
 See 24 & 25 Vict. c. 97, s. 59, supra, p. 289. L ^ 
 
 Form of indictment. See 24 & 25 Vict. c. 97, s. 60, supra, p. 
 289. 
 
 Proof of damaging machinery. Where the prisoner was indicted, 
 under the 28 Geo. 3, c. 55, s. 4, a similar statute now repealed, for 
 entering a shop, and maliciously damaging a certain frame used for 
 the making of stockings, and it appeared that he had unscrewed and 
 carried away a part of the frame, called the half-jack, an essential 
 part of the frame, without which it is useless, this was held a damaging 
 of the frame within the statute. R. v. Tacey, Russ. & Ry. 452. And 
 \vhere the prisoner screwed up the working parts of the engine of a 
 thrashing machine, and had reversed the plug of the pump which 
 supplied the boiler, and had also stopped up one of the pipes, so that 
 the machine could not be again set in motion without great difficulty, 
 and if it had been left in the state in which the prisoner left it 
 the boiler would have burst ; it was held to be a damaging within the 
 statute, and that the damage in such cases need not be of a per- 
 manent nature. R. v. Fisher, 35 L. J., M. C. 57 ; 1 L. R., C. C. 
 R. 7. 
 
 Where the machine is imperfect. It has been held in several 
 cases, that it is an offence within the statute, though the machine at 
 the time when it is broken has been taken to pieces, and is in different 
 places, only requiring the carpenter to put those pieces together 
 again. R. v. Mackerell, 4 C. & P. 448, 19 E. C. L. So where the 
 machine was worked by water, and the prosecutor expecting a riot, 
 took it to pieces, and removcnl the pieces to the distance of a quarter 
 of a mile, leaving only the water-wheel and its axis standing, and the 
 wheel was destroyed by the prisoners ; this was held to be an offence 
 within the statute. R. v. Fidler, 4 C. & P. 449, 19 E. C. L. Where 
 certain sideboards were wanting to a machine at the time it was de- 
 stroyed, but did not render it so defective as to prevent it altogether 
 from working, though it would not work so effectually, it was still 
 held to be a thrashing-machine within the statute. R. v. Bartlett, 
 Salisb. Sp. Com. 2 Deac. Dig. C. L. 1517. So also where the owner 
 removed a wooden stage, belonging to the machine, on which the man 
 who fed the machine was accustomed to stand, and had also taken 
 away the legs ; and it appeared that, though the machine could not be 
 conveniently worked without some stage for the man to stand on, yet 
 that a chair or table, or a number of sheaves of corn, would do nearly
 
 900 MACHINERY. 
 
 as well, and that it could also be worked without the legs ; it was 
 held to be within the statute. R. v. Chubb, Salisb. Sp. Com., 2 Deac. 
 Dig. C. L. 1518. But where the owner had not only taken the ma- 
 chine to pieces, but broken the wheel, from fear of its being set on fire ; 
 and it appeared that, without the wheel, the engine could not be 
 worked ; this was held to be a case not within the statute. R. v. 
 West, Salisb. Sp. Com., 2 Dea«. Dig. C. L. 1518.
 
 MAINTENANCE, ETC, 901 
 
 •MAINTENANCE, ETC. [*719 
 
 PAGE 
 
 Maintenance • « * 719 
 
 Nature of the offence ....,,,, 719 
 
 Justifiable — in respect of interest .,,,,. 720 
 
 Master and servant • « • 720 
 
 Affinity , , . 720 
 
 Poverty , . 720 
 
 Counsel and solicitors , 720 
 
 Champerty 720 
 
 Embracery •.., 721 
 
 Maintenance — nature of the offence. Maintenance signifies an 
 unlawful taking in hand or upholding of quarrels or sides, to the dis- 
 turbance or hindrance of common right.^ Hawk. P. C. b. 1, c. 83, s. 
 1, It may be either with regard to matters in suit, or to matters not 
 in legal controversy. Id. s. 2. It is an offence punishable at com- 
 mon law with fine and imprisonment, and is forbidden by various 
 statutes. 1 Ed. 3, st. 2, c. 14; 29 Ed. 3, c. 4 (repealed); 1 Rich. 2, 
 c. 4 ; 32 Hen. 8, c. 9, s. 3. These Acts, however, are only declaratory 
 of the common law, with additional penalties. Pechell v. Watson, 8 
 M. &. W. 691. 
 
 According to the old authorities, whoever assists another with 
 money to carry on his cause, or retains one to be of counsel for him, 
 or otherwise bears him out in the whole or any part of his suit, or by 
 his friendship or interest saves him that expense which he might be 
 otherwise put to, or gives evidence without being called upon to do 
 so, or speaks in another's cause, or retains an attorney for him, or 
 being of great power and interest, says publicly that he will spend 
 money to labor the jury, or stand by the party while his cause is 
 tried, this is maintenance. Hawk. P. C. b. 1, c. 83, ss. 5, 6, 7. It 
 may be doubted, however, whether, at the present day, some of these 
 acts would be held to amount to an indictable offence, unless they 
 were plainly accompanied with a corrupt motive. A bare promise to 
 maintain anotlier is not in itself maintenance, unless it be so in 
 respect of the public manner in which, or the power of the person by 
 whom it is made. Hawk. P. C. b. 1 , c. 83, s. 8. So the mere giving 
 of friendly advice as to what action it will be proper to bring to 
 recover a certain debt, will not amount to maintenance. Id. s. 11, 
 " To bind oneself after the commencement of a suit to pay the expenses 
 of another in that suit, more especially if that other be a person him* 
 self of no means, and the suit be one which he cannot bring, is still, 
 
 1 See Small t. Mott, 22 Wend. 403. S.
 
 902 MAINTENANCE, ETC. 
 
 as it always was, maintenance. . . . This general statement requires 
 two qualifications : first, that the acts of the maiutainer must be 
 [legally] immoral, and that the maintainor must have been actuated 
 by a [legally] bad motive ; next, that if he has, or believes himself 
 to have, a common interest with the plaintitl' in the result of the 
 *7om *s»it, his acts, which would otherwise be maintenance, cease to 
 -■ be so." See per Lord Coleridge, C. J., in Bradlaugh v. New- 
 degate, 11 Q. B. D. 1, at p. 9 ; 52 L. J., Q. B. D. 454. 
 
 Maintenance — justifiable — in respect of interest. Those who have 
 a certain interest, or even bare contingent interest, in the matter in 
 variance, may maintain another in an action concerning such matter ; 
 as in the case of landlord and tenant, trustee and cestui que trust. 
 Hawk. P, C. b. 1, c. 83, ss. 19, 20, 21. So where A. at the request 
 of B, defended an action brought for the recovery of a sum of money 
 in which B. claimed an interest, upon B. undertaking to indemnify 
 him from the consequences of such action, this was held not to be 
 maintenance. Williamson v. Henley, 6 Bingh. 299, 19 E. C. L. So 
 wherever persons claim a common interest in the same thing, as in a 
 way, common, etc., by the same title, they may maintain one another 
 in a suit relating to the same. Hawk. P. C. b. 1, c. 83, s. 24. See 
 also Bradlaugh v. Newdegate, supra. 
 
 Maintenance — justifiable — master and servant. A master may go 
 with his servant to retain counsel, or to the trial and stand by him, but 
 ought not to speak for him ; or if arrested, may assist him with money. 
 Hawk. P. C. b. 1, c. 83, ss. 31, 32. So a servant may go to counsel on 
 behalf of his master, or show his evidences, but cannot lawfully lay 
 out his own money to assist his master. Id. s. 34. 
 
 Maintenance — justifiable — aflQ.nity. AVhoever is in any way of kin 
 
 or affinity to either of the parties, may stand by him at the bar, and 
 counsel or assist him ; but unless he be either father or son, or heir- 
 apparent, or the husband of such an heiress, he cannot justify laying 
 out money in his cause. Hawk. P. C. b. 1, c. 83, s. 26. 
 
 Maintenance — justifiable — poverty. Any one may lawfully give 
 money to a poor man to enable him to carry on his suit.^ Hawk. P. 
 C. b. 1, c. 83, s. 36. 
 
 Maintenance — justifiable — counsel and solicitors. Another excep- 
 tion to the general rule with regard to maintenance is the case of coun- 
 sel and solicitors. But no counsel or solicitor can justify the using of 
 any deceitful practice in the maintenance of a client's cause, and they 
 are liable to be severely punished for anv misdemeanors of this kind. 
 Hawk. P. C. b. 1, c. 83, s. 31. And by stat. West. 1, c. 29, if any 
 Serjeant, pleader, or other, do any manner of deceit or collusion in the 
 king's court, or consent to it, in deceit of the court, or to beguile the 
 
 1 Ferine v. Dunn, 3 Johns. Ch. 508 ; State v. Chitty, 1 Bailey, 401. S.
 
 MAINTENANCE, ETC. 903 
 
 court or the party, he shall be imprisoned for a year and a day. Pro- 
 curing a solicitor to appear for a man, and to confess judgment without 
 a warrant, has been held within this statute. Hawk. P. C. b. 1, c. 
 83, s. 36. So bringing a praecipe against a poor man, knowing he has 
 nothing in the land, on purpose to get the possession from the true 
 tenant. Id. s. 35. 
 
 Champerty. Champerty is a species of maintenance, accompanied 
 by a bargain to divide the matter sued for between the parties, where- 
 upon the champertor is to carry on the suit at his own expense. 4 
 Bl. Com. 135 ; 1 Russ. Cri. 356, 5th ed. Champerty may be in per- 
 sonal as well as in real actions. Hawk. P. C. b. 1, c. 84, s. 5 ; and 
 to maintain a defendant may be champerty. Id. s. 8.^ 
 
 *By 31 Eliz. c. 5, the offence of champerty may be laid in r^^n-, 
 any county at the pleasure of the informer. This statute is L 
 repealed, except as to criminal proceedings, by 42 & 43 Vict, c, 59. 
 
 Various cases have occurred in modern times in which the doctrine 
 of champerty has come in question. Where a bill was filed to set aside 
 an agreement made by a seaman, for the sale of his chance of prize- 
 money, Sir William Grant, M. R., expressed an opinion that the 
 agreement was void from the beginning, as amounting to champerty, 
 viz., the unlawful maintenance of a suit, in consideration of a bargain 
 for a part of a thing, or some profit out of it. Stevens v. Bagwell, 
 15 Ves. 139. So it has been held, that an agreement to communicate 
 such information as should enable a party to recover a sum of money 
 by action, and to exert influence for procuring evidence to substantiate 
 the claim, upon condition of receiving a portion of the sum recovered, 
 was illegal. Stanley v. Jones, 7 Bingh. 369 ; 5 Moore & P. 193; see 
 Potts V, Sparrow, 6 C. & P. 749, 25 E. C. L., and Bradlaugh v. 
 Newdegate, supra, p. 720. 
 
 Embracery. Embracery, likewise, is another species of mainte- 
 nance. Any attempt to corrupt, or influence, or instruct a jury, or to 
 incline them to be more favorable to one side than the other, by money, 
 promises, letters, threats, or persuasions, except only by the strength 
 of the evidence, and the arguments of the counsel in open court at the 
 trial of the cause, is an act of embracery ; whether the jurors gave 
 any verdict or not, and whether the verdict given be true or false.' 
 Hawk. P. C. b. 1, c. 85, s. 1. The giving of money to a juror after 
 the verdict, without any preceding contract is an offence savoring of 
 
 ' The law forbidding champerty and maintenance does not prevail in New Jersey. 
 Schomp V. Schenck, 40 N. J. L. 195, distinguishing 13 C. B. (N. S.) 677, 106 E. C. L. 
 In Alabama a contract by which an attorney-at-law is to receive a portion of the pro- 
 ceeds of a case if successful is champertous and void. Jenkins v. Bradford, 59 Ala. 
 400. An agreement to attend to another's suit, and compensate oneself out of amount 
 recovered is not champertous. Cross v. Bloomer, 6 Baxter, (Tenn.) 74. The court 
 may dismiss an action at any stage on discovering that it is being prosecuted by plain- 
 tifTs attorney in a champertous contract. Greenman v. Cohea, 61 Ind. 201. 
 
 * Gibbs r. Dewey, 5 Cow. 503. Embracery is any attempt or effort to influence a 
 jury, whether it is successful or not. But there is no such crime recognized by law as 
 an attempt to commit embracery. State v. Sales, 2 Nev, 268. S.
 
 904 MAINTENANCE, ETC. 
 
 embracery ; but it is otherwise of the payment of a juror's travelling 
 expenses. Id. s. 3. Embracery is punishable by fine and imprison- 
 ment. Id. 8. 7. 
 
 Analogous to the offence of embracery is that of persuading, or en- 
 deavoring to persuade, a witness from attending to give evidence, an 
 offence punishable with fine and imprisonment. It is not material that 
 the attempt has been unsuccessful. Hawk. P. C. b. 1, c. 21 s, 15 • 
 R. V. Lawley, 2 Str. 904 ; 1 Euss. Cri. 361, 5th ed. '
 
 MALICIOUS INJUKIES. 905 
 
 •MALICIOUS INJURIES. 
 
 [*722 
 
 Most malicious .njuries to persons and property are specially pro- 
 vided for, and the law relating to them will be found under the 
 various species of this kind of offence.* 
 
 By the 24 & 25 Vict. c. 97, s. 51, "whosoever shall unlawfully and 
 maliciously commit any damage, injury, or spoil to or upon any real 
 or personal property whatsoever, either of a public or private nature, 
 for which no punishment is hereinbefore provided, the damage, injury, 
 or spoil being to an amount exceeding five pounds, shall be guilty of 
 a misdemeanor, and being convicted thereof shall be liable, at the dis- 
 cretion of the court, to be imprisoned for any term not exceeding two 
 years, with or without hard labor ; and in case any such offence shall 
 be committed between the hours of nine of the clock in the evening 
 and six of the clock in the next morning shall be liable, at the dis- 
 cretion of the court, to be kept in penal servitude for any term not 
 exceeding five years and not less than three [now five], or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labor." 
 
 There is a similar provision contained in s. 52 (only the words there 
 
 ^ Mosely v. State, 25 Ga. 190. For other cases of malicious mischief, see State v. 
 Newbv, 64 N. C. 23 ; Northcot v. State, 43 Ala. 330 ; Hill v. State, Id. 335 ; Wallace 
 V. State, 30 Tex. 758 ; Hobson v. State, 44 Ala. 380 ; Wright v. State, 30 Ga. 325. A 
 conviction cannot be had when the act complained of was done in the exercise of an 
 avowed legal right, no malicious intent being proved. State v. FljTin, 28 la. 26. S. 
 
 Where the jury found a verdict as follows: ''We find the accused guilty of the 
 wilful and unlawful killing of the hog, but not out of a spirit of mischief, revenge, 
 or wanton cruelty," held, a verdict of acquittal. Duncan v. State, 49 Miss. 331. In 
 cases of malicious mischief owner's title is immaterial. State v. Gurnee, 14 Kan. Ill, 
 Where ownership is alleged in the indictment it must be proved as laid. Smith v. 
 State, 43 Texas, 433. It is not necessary to specify the day on which the offence was 
 committed. State v. Hoover, 31 Ark. 676. The indictment must aver that the act was 
 done maliciously. Allen v. State, 4 Baxter, (Tenn.) 21 ; Thompson v. State, 51 Miss. 
 353. It need not allege that it was done "without authority of law." Murrah v. 
 State, 51 Miss. 675. 
 
 A suit for malicious prosecution is of the nature of a civil suit, and is not the sub- 
 ject of an indictment. The following cases may be noted. The burden of proof is 
 upon the plaintiff to show that defendant did not have probable cause. Palmer r. 
 Richardson, 70 111. 544; Davie r. Wisher, 72 111. 262; Calef t;. Thomas, 81 111. 478. 
 What constitutes probable cause is a pure question of law ; it is error to leave it to the 
 jury. Emerson v. Skaggs, 52 Cal. 246. The defendant may show in defence what in- 
 formation he received upon which he acted in opening the prosecution. Anderson v. 
 Friend, 71 111. 474. He may also testify that he made the complaint without malice, 
 and upon advice of counsel. Turner v. O'Brien, 5 Neb. 542. Although a witness 
 cannot rehearse the testimony given by others at the first trial, he may testify that no 
 evidence in support of the criminal charge was given. John v. Bridgman, 27 Ohio 
 St. 22. Where-the court records only show that no bill has been returned by the 
 grand jury, parol evidence may be introduced to show the reason. Knott i'. Sargeant, 
 125 Mass. 95. On what defence admissible. See Vansickle v. Brown, 68 Mo. 627.
 
 906 MALICIOUS INJURIES. 
 
 are wilfully or maliciously), with respect to convictions before a jus- 
 tice, and a proviso is added that the section shall not extend to cases 
 where "the party acted under a fair and reasonable supposition he 
 had a right to do the act complained of." It has been held that in 
 the case of a private individual this means something more than a 
 mere bond fide belief in the right. White v. Feast, L. R. 7, Q. B. 
 353 ; 41 L. J., M. C. 81 ; otherwise in the case of a person act- 
 ing in a public capacitv, as surveyor of highways. Denny v. 
 Thwaites, L. R. 2 Ex. D.'^21 ; 46 L. J., M. C. 141. An incorporeal 
 right, such as "a right to herbage," is not "real or personal property" 
 within sect. 52. Laws v. Eltringhara, 8 Q. B. D. 283 ; 51 L. J., M. 
 C. 13. 
 
 Under this section the prisoner, who had been fighting with persons 
 in the street and had thrown a stone at them, which struck a window 
 and did damage to an amount exceeding 51., was indicted for " unlaw- 
 fully and maliciously" causing this damage. The jury convicted him, 
 but found that he threw the stone at the people he had been fighting 
 with, intending to strike one or more of them, but not intending to 
 break the window. It was held that what is intended by the statute 
 is a wilful doing of an intentional act which the finding of the jury 
 negatived, and that the conviction must, therefore, be quashed. Had 
 the jury found that the prisoner was reckless of the consequences of 
 his act, and might reasonably have expected that it would result in 
 breaking the window, the conviction might have been supported. R. 
 V. Pembliton, L. R. 2 C. C. 119 ; 43 L. J., M. C. 91 ; see also R. v. 
 Martin, 8 Q. B. D. 54 ; 51 L. J., M. C. 36 ; R. v. Faulkner, 13 Cox, 
 C. C. R. Ir. 550 ; and cases cited ante, p. 24.
 
 MANSLAUGHTER. 907 
 
 ♦MANSLAUGHTER. [*723 
 
 PAGE 
 
 Punishment .......... . 723 
 
 Form of indictment ... 723 
 
 Mansliiugliter abroad , . . 723 
 
 Manslaughter where the death or cause of death happens abroad 723 
 
 Distinction between manslaughter and murder .... 723 
 
 Proof in cases of provocation 724 
 
 mutual combat 724 
 
 resistance to officers of justice, etc. . . . 724 
 killing in the performance of an unlawful or 
 
 negligent act 724 
 
 killing in the course of lawful or unlawful sports 726 
 
 killing in the course of lawful employment . 729 
 
 negligent use of dangerous weapons . . 730 
 
 contributory negligence 731 
 
 killing bv persons practising surgery or medicine 732 
 
 neglect of duty 736 
 
 correction of child by parents or others . . 737 
 
 killing in defence of person or property . 737 
 
 Punishment. By the 24 & 25 Vict. c. 100, s. 5, " whosoever shall 
 be convicted of manslaughter shall be liable, at the discretion of the 
 court,,to be kept in penal servitude for life, or for any term not less 
 than three [now five] years, — or to be imprisoned for any term not 
 exceeding two years, with or without hard labor, and to pay such fine 
 as the court shall award, in addition to or without any such other dis- 
 cretionary punishment as aforesaid." 
 
 Form of indictment. See 24 & 25 Vict. c. 100, s. 6, infra, p. 
 747. 
 
 Manslaughter abroad. See 24 & 25 Vict. c. 100, s. 9, ante, p. 
 258. 
 
 Manslaughter where the death or cause of death happens 
 abroad. See 24 & 25 Vict. c. 100, s. 10 ; ante, p. 257. 
 
 Distinction between manslaughter and murder. Manslaughter 
 is principally distinguishable from murder in this, that though the act 
 which occasions the death is unlawful, or likely to be attended with 
 bodily mischief, yet the malice, either express or implied, which is the 
 very essence of murder, is presumed to be wanting in manslaughter, 
 the act being rather imputed to the infirmity of human nature. 1 
 East, P. C. 218; Foster, 290.^ It has also been said to differ from 
 
 ' State V. Smith, 10 Rich. Law, 341 ; Stokes ?'. State, 18 Ga. 17 ; Atkins v. State, 16 
 Ark. 568 ; Rapp v. Commonwealth, 14 B. Men. 614. It is no defence to an indictment 
 for manslaughter, that the homicide therein alleged appears by the evidence to have 
 been committed with malice aforethought, and was therefore murder; but the defend- 
 ant in such case may, notwithstanding, be properly convicted of the offence of man- 
 slaughter. Commonwealth v. McPike, 3 Cush. 181. S.
 
 908 MANSLAUGHTER. 
 
 murder In this respect, that there cannot be any accessories before the 
 fact to manslaughter, since the act is presumed to be altogether sudden 
 and without premeditation. 1 Hale, P. C. 437. But in the case of 
 R. V. Gaylor, Dears. & B. C C. 288, upon the above passage being 
 *794.1 referred to in the course of the argument, Erie, J., said *that 
 -■ he thought that Lord Hale was there speaking of manslaugh- 
 ter per infortunium or se defendendo only, and that he did not under- 
 stand him to mean that in ordinary cases of manslaughter there could 
 be no accessory. See 1 Russ. Cri. 810, 5th ed. A stakeholder to a 
 fight, but who was not present at the fight. Is not accessory before the 
 fact to the manslaughter of one of the combatants who died from In- 
 juries received during the fight. R. v. Taylor, L. R. 2 C. C. 147 ; 
 44 L. J., M. C. ante, tit. " Accessories." 
 
 It Is clear that there may be accessories after the fact to manslaugh- 
 ter. 
 
 Where A. was Indicted for the wilful murder of B., and C. was in- 
 dicted for receiving, harboring, and assisting A., well knowing that he 
 had committed the felony and murder aforesaid ; TIndal, C. J., held 
 that if the oifence of A. was reduced to manslaughter, C. might not- 
 withstanding, be found guilty as an accessory after the fact. R. v. 
 Greenacre, 8 C. & P. 35, 34 E. C. L. See also R. v. Richards, 2 Q. B. 
 D. 311; 46 L. J., M. C. 200. 
 
 Provocation. Whenever death ensues from sudden transport of 
 passion or heat of blood, if upon reasonable provocation and without 
 malice, or upon sudden combat, it will be manslaughter ; if without 
 such provocation, or if the blood has had reasonable time to cool, or If 
 there be evidence of express malice, it will be murder.^ 2 East. P. C. 
 232 ; Foster, 313. See the cases collected, post, title, "Murder." 
 
 Mutual combat. Death In the course of a mutual combat, though 
 in some cases it amounts to murder, Is generally found to constitute 
 manslaughter only, there being most frequently an absence of that 
 malice requisite to a conviction for murder, and a sufficient degree of 
 
 ^ Young V. State, 11 Humph. 200. As to cases of sudden combat, and what provo- 
 cation will be sufficient to reduce the killing to manslaughter, see People r. Sanchez, 
 24 Cal. 17 ; Hittner v. State, 19 Ind. 48 ; State v. Shipper, 10 Minn. 253 ; Gann v. 
 State, 30 Ga. 67 ; State i'. Decklotts, 19 la. 447 ; Holland v. State, 12 Fla. 117 ; Under- 
 wood V. State, 25 Tex. (Suppl.) 389 ; State v. Lawrv, 4 Nev. 161 ; Flanagan v. State, 
 46 Ala. 703 ; State v. Anderson, 4 Nev. 265 ; Maria v. State, 28 Tex. 689 ; Common- 
 wealth V. Drum, 58 Pa. St. 9 ; State v. Massage, 65 N. C. 480 ; State v. Gut, 13 Minn. 
 341. 
 
 The killing of an unarmed man with a deadly weapon is not justified by the exist- 
 ence of some previous quarrel or feud, if sufficient time has elapsed for the blood to 
 cool. Gladden v. State, 12 Fla. 5G2. 
 
 If one man finds another in the act of adultery with his wife, and kills him on the 
 spot, tlie crime will be manslaughter. But if the adulterer is not slain until suthcient 
 time has elapsed for the passion to cool, the slayer is guilty of murder. State v, 
 Samuel, 3 Jones's Law, 74 ; State v. Neville, 6 Id. 423 ; State ?>. Avery, 64 N. C. 608 ; 
 Commonwealth v. Whitler, 2 Brewst. 388. S. Paulin v. State, 22' Tex. App. 436. 
 That he had permitted prostitutes to board in his house with lier is admissible in de- 
 termining the strength of the provocation. State r. Holme, 54 Mo. 153.
 
 MANSLAUGHTER. 909 
 
 provocation to show such absence. See the cases collected, post, tit. 
 " Murder." ^ 
 
 Resistance to oflacers of justice, etc. The cases of homicide 
 which arise in tlie instances of officers of justice, or others having 
 authority to arrest, where resistance is made to them in the execution 
 of their duty, inchide every species of homicide. If the officer is 
 killed in the lawful execution of his duty, by the party resisting him, 
 it is murder. If he be killed when acting under a void or illegal 
 authority, or out of his jurisdiction, it is manslaughter, or excusable 
 homicide, according to the circumstances of the case. If the party 
 about to be arrested resist, and be killed, or attempt to make his 
 escape, and the officer cannot take him without killing him, it will be 
 manslaughter, or excusable or justifiable homicide, according to cir- 
 cumstances.^ These distinctions will be noticed, and the different 
 authorities and cases collected under the head of " Murder." In what 
 instances peace officers are authorized to arrest individuals, and where 
 they have power to do so without warrant, and in what cases the pro- 
 cess under which they act is regular or irregular, and what is the con- 
 sequence of such irregularity, is fully stated in other parts of this 
 work. Vide post, title, " Murder," and supra, title, " Apprehension." 
 
 Killing in the performance of an unlawful or negligent act. If 
 a person commits an act which he knows may produce serious injury, 
 and he is indifferent and reckless as to the consequences, he commits 
 an unlawful act. R. v. Bradshaw, 14 Cox, C. C. 83. See this case, 
 *post, p. 727. If in doing an unlawful act death ensue in conse- r^^ne 
 quence of the negligence of the party, but without any intent ■- 
 to do bodily harm, it is manslaughter at the least.^ Foster, 261. As 
 to the cases where the question has arisen whether the offence was one 
 of murder or manslaughter, see post, title " Murder," p. 746, et seq. 
 
 Thus if a person in sport throw stones down a coal-pit, whereby a 
 man is killed, this is manslaughter, though the party killed was only 
 a trespasser. R. v. Fenton, 1 Lewin, C C. 179. So where a lad, as a 
 frolic, without any intention to do any harm to any one, took the 
 
 » People V. Tuki, 3 Wheel. C, C. 242. S. 
 •Roberts r. State, 13 Mo. 382. S. 
 
 ' Holly V. State, 10 Humph. 141. Eeckless discharge of a pistol in a street man- 
 slaughter. Sparks v. Commonwealth, 3 Bush, 111. [Killing by wilful striking is not 
 murder but manslaughter. A conviction of killing by wilfully striking under an in- 
 dictment for murder is equivalent to an acquittal. Connor v. Commonwealth, 13 Id. 
 714.] Firing a gun into a melon-patch in which there were boys stealing melons, 
 heedlessly and recklessly, and killing one of the boys, is manslaughter at least. State 
 V. Vance, 17 la. 138. If a man in order to have unlawful sexual connection with a 
 woman, uses artificial means with her consent to make such connection practicable, 
 and by carelessness or negligence in the operation inflicts upon her a wound which 
 causes her death, he is guilty of manslaughter, as is another person who assists him in 
 such operation, knowing the purpose thereof. State i\ Centre, 35 Vt. 378. S. 
 
 Under an indictment for manslaughter by attempting to procure abortion, evidence 
 that the deceased made a prior attempt on herself is immaterial, unless said attempt 
 contributed to her death. State v. Glass, 5 Oreg. 73.
 
 910 MANSLAUGHTER. 
 
 trapstick out of the front part of a cart, in consequence of which it 
 was upset, and the carman, who was in it putting in a sack of pota- 
 toes, was pitched backward on the stones and killed, Gurney, B., and 
 WilHaras, J., held that the lad was guilty of manslaughter. R. v. 
 Sullivan, 7 C. & P. 641, 32 E. C. L. So if an improper quantity of 
 spirituous liquors be giv^en to a child, heedlessly, and for brutal sport, 
 and death ensues, it will be manslaughter. R. v. Martin, 3 C. & P. 
 211, 14 E.G. L. 
 
 Where a mother, being angry with one of her children, took up a 
 small piece of iron, used as a poker, and on his running to the door 
 of the room which was open, threw it afiter him, and hit another child 
 who happened to be entering the room at the moment, in consequence 
 of which the latter died ; Park, J., held this to be manslaughter, 
 although it appeared that the mother had no intention of hitting her 
 child with whom she was angry, but only intended to frighten him. 
 The learned judge said, "if a blow is aimed at an individual unlaw- 
 fully — and this was undoubtedly unlawful, as an improper mode of 
 correction — and strikes another and kills him, it is' manslaughter; 
 and there is no doubt if the child at whom the blow was aimed had 
 been struck and died, it would hav^e been manslaughter, and so it is 
 under the present circumstances." R. v. Gonnor, 7 G. & P. 438, 32 E. 
 C. L. The prisoner was indicted for manslaughter. The deceased had 
 entered the prisoner's house in his absence, and on his return was de- 
 sired to withdraw, but refused to go. Upon this words arose, and the 
 prisoner becoming excited, proceeded to use force, and, by a kick which 
 he gave to the deceased, caused an injury which produced his death. 
 Alderson, B., said, " a kick is not a justifiable mode of turning a man 
 out of your house, though he be a trespasser. If the deceased would 
 not have died but for the injury he received, the prisoner having un- 
 lawfully caused that injury, he is guilty of manslaughter." R. v. 
 Wild, 2 Lew. G. G. 214. A man was in possession, under the sheriif. 
 One of the prisoners, of whose goods he was in possession, assisted by 
 the other prisoner, plied the man with liquor, themselves drinking 
 freely also. When he was very drunk they put him into a cabriolet, 
 and caused him to be driven about the streets ; about two hours afler 
 he had been put into the cabriolet, he was found dead. Lord Denman, 
 G. J., told the jury, that if the prisoner, when the deceased Mas drunk, 
 drove him about in his cabriolet, in order to keep him out of possession, 
 and by so doing accelerated his death, it would be manslaughter. R. v. 
 Packard, Garr. & M. 246, 41 E. G. L. If A. and B. agree together 
 to assault G. with their fists, and G. receives a chance blow of the 
 fists from either of them causing death, both A. and B. are guilty of 
 manslaughter. But should A. of his own impulse, kill G. with a 
 weapon suddenly caught up, B. would not be responsible for the 
 death, he being only liable for acts done in pursuance of the common 
 design of himself and A., per Lush, J. R. r. Gaton, 12 Gox, G. G. 624. 
 *79n *The prisoner having the right to the possession of a gun 
 -I which was in the hands of the deceased, and which he knew to 
 be loaded, attempted to take it away by force. In the struggle which en-
 
 MANSLAUGHTER. 911 
 
 sued the gun went off accidentally and caused the death of the deceased. 
 Lord Campbell directed the jury that, though the prisoner had a right 
 to the possession of the gun, to take it away by force was unlawful ; 
 and that, as the evidence showed that the discharge of the gun, though 
 accidental, was the result of this unlawful act, it was their duty to 
 find the prisoner guilty of manslaughter. R. v. Archer, 1 F. & F. 
 351. 
 
 But the death must be the direct and not the indirect consequence 
 of the unlawful act. The prisoner was a maker of fireworks, and he 
 made and kept them in a manner contrary to the provisions of 
 the 9 & 10 Will. 3, c. 7, s. 1 (repealed), at his own house. During 
 his absence,' by the negligence of one of his servants, the fireworks 
 became ignited, by which a neighboring house was set fire to, and a 
 person therein burned to death. It was held that the prisoner was not 
 indictable for manslaughter, as the death was caused by the negligence 
 of the servant. R. v. Bennett, 1 Bell, C. C. 1 ; 28 L. J., M. C. 27. 
 Where a station-master despatched trains at too short an interval afler 
 each other, and a signal man caused a collision by a mistake with the 
 signals, Erie, C. J., advised the grand jury to throw out the bill 
 against the station-master. R. v. Ledger, 2 F. & F. 858. A. in un- 
 lawfully assaulting B., who at the time had in her arms an infant, so 
 frightened the infant that it died, A. is guilty of manslaughter if the 
 jury think that the assault on B. was the direct cause of death. Per 
 Denman, J. R. v. Towers, 1 2 Cox, C. C. 530. See as to the negli- 
 gent omission of a duty, R. v. Hughes, 1 Dears. & B. C. C. 248 ; 26 
 L. J., M. C. 133. 
 
 As to manslaughter committed by the captain and mate of a 
 vessel on one of the crew, see R. v. Leggett, 8 C. & P. 191, 34 
 E. C. L. 
 
 Killing in the course of lawful or unlawful sports. Where death 
 ensues in the case of sports or recreations, such recreations being 
 innocent and allowable, it falls within the rules of excusable 
 homicide, because bodily harm is not the motive on either side. 
 Foster, 250 ; 1 East, P. C. 268. Therefore persons ])laying at cudgels, 
 Comb. 408, or foils or wrestling, R. v. Lane, 1 East, P. C. 268, are 
 excusable if death ensue. Lord Hale appears to be of a different 
 opinion. He says, " he that voluntarily and knowingly intends hurt 
 to the person of a man, though he intends not death, yet if death 
 ensue, it excuses not from the guilt of murder or manslaughter at 
 least ; as, if A. intends to beat B. but not to kill him, yet if death 
 ensue, this is not per infortunium, but murder or manslaughter, 
 as the circumstances of the case happen ; and, therefore,^' he 
 continues, " I have known it ruled, that if two men are playing 
 at cudgels together, or wrestling, by consent, if one by a blow or 
 fall kills the other, it is manslaughter, and not per infortunium, as 
 Mr. Dalton (cap. 90) seems to doubt it ; and accordingly it was re- 
 solved, P. 2, Car. 2, by all the judges, upon a special verdict, from 
 Newgate, where two friends were playing at foils at a fencing school,
 
 912 MANSLAUGHTER. 
 
 and one casually killed the other; resolved to be manslaughter," 
 1 Hale, P. C. 472. The questions in these cases appear to be twofold, 
 1st, whether the sport was lawful ; and second, whether the parties 
 engaged in it with a friendly mind, or with intent to do each other 
 ^-^--j *some bodily harm. The cases mentioned by Lord Hale seem 
 -I to proceed upon the latter supposition, and on this groimd they 
 are distinguished by Mr. Justice Foster from the case of persons who 
 in perfect friendship engage by mutual consent in recreations for the 
 trial of skill or manhood, or for improvement in the use of arms. 
 Foster, 259, 260 ; 1 East, P. C. 268. But if there be dangerous 
 weapons used in such sports, and there be any negligence in the use of 
 them, and one of the parties be killed, such negligence may render the 
 act manslaughter. Sir John Chichester, fencing with his servant, 
 made a pass at him, which the servant parried off with a bedstaff. In 
 the heat of the exercise, the chape of the scabbard flew off, and the 
 man was killed by the point of the sword. It was held that this was 
 manslaughter, because though the act which occasioned the death in- 
 tended no harm, nor could it have done harm, if the chape had not 
 been struck off by the party killed, and though the parties were in 
 sport, yet the act itself, the thrusting at the servant, was unlawful. 
 Aleyn, 12; 1 Hale, P. C. 472. Mr. Justice Foster puts this decision 
 on another ground, observing that the party did not use the degree of 
 circumspection which common prudence would have suggested ; and 
 therefore the fact so circumstanced might well amount to manslaughter. 
 Foster, 260; 1 East, P. C. 269. 
 
 Death in the course of a friendly contest may also amount to man- 
 slaughter if any undue advantage has been taken. Tims, if two per- 
 sons are engaged to play at cudgels, and one of them makes a blow at 
 the other likely to hurt, before he was upon his guard, and without 
 warning, and death ensues, the want of due and friendly caution would 
 make the act amount to manslaughter. 1 East, P. C. 269. 
 
 If death is caused by an injury received in a friendly sparring- 
 match, which is not a thing likely to cause death, it is not manslaughter, 
 unless the parties fight on until the sport becomes dangerous. R. v. 
 Young, 10 Cox, C. C. 371. Bramwell, B., after consulting Byles, J. 
 But if the parties met intending to fight for money till one gave in 
 from exhaustion or injury received, the contest would be a prize-fight, 
 although only gloves were used. R. v. Orton, 14 Cox, C. C. 226. 
 " Charging " in a game of football, knowing that charging in the man- 
 ner adopted is likely to produce serious injury to another, and being 
 reckless and indifferent as to the consequences, would be an unlawful 
 act, and if death was thereby caused, it would be manslaughter. R. v. 
 Bradshaw, 14 Cox, C. C. 83. 
 
 Though the weapons be of a dangerous nature, yet if they be not 
 directed by the person using them against each other, and so no danger 
 be reasonably apprehended, if death casually ensue, it is only misad- 
 venture. 1 East, P. C. 269. Therefore, if a })erson be shooting at 
 game or butts, or other lawful object, and a bystander be casually 
 killed, it is only misadventure. 1 Hale, P. C. 38, 39, 472 ; 1 East,
 
 MANSLAUGHTER. 913 
 
 P. C. 269. But if the sport or recreation be unlawful, and death en- 
 sues in the course of it, it will be murder or manslaughter, according 
 to the circumstances of the case. Thus, where a man playing at the 
 diversion of cock-throwing at Shrovetide, missed his aim, and a child 
 looking on, received a blow from the staff, of which he died, Mr. 
 Justice Foster (who observes that this is a barbarous, unmanly custom, 
 productive of great disorders, and dangerous to bystanders) ruled it to 
 be manslaughter. Foster, 261. 
 
 Prize-fights, jjublic boxing-matches, and the like, exhibited for 
 the sake of lucre, are not lawful sports, for they serve no valuable 
 *purpose, but, on the contrary, encourage a spirit of idleness r^y^a 
 and debauchery. Foster, 260. In such case the intention of ■- 
 the parties is not innocent in itself, each being careless of what hurt 
 may be given, provided the promised reward be obtained ; and besides, 
 such meetings have in their nature a strong tendency to a breach of 
 the peace. Therefore, in R. v. Ward, the prisoner having been chal- 
 lenged to fight by his adversary, for a public trial of skill in boxing 
 and also urged to engage by taunts ; although the occasion was sudden, 
 yet having killed his opponent, he was held guilty of manslaughter. 
 1 East, P. C 270. So persons present at a prize-fight encouraging it 
 by their presence will, in the case of death, be guilty of manslaughter. 
 Upon an indictment for murder, charging the prisoner with being 
 present aiding and abetting, it appeared that there had been a fight 
 between the deceased and another person, at which a great number of 
 persons were assembled, and that in the course of the fight the ring 
 was broken in several times by the persons assembled, who had sticks, 
 which they used with great violence. The deceased died in conse- 
 quence of the blows he received on this occasion. There was contra- 
 dictory evidence as to the prisoner having acted as second. In sum- 
 ming up, the judge (Mr. Justice Littledale) said, " My attention has 
 been called to the evidence that the prisoner did nothing ; but I am of 
 opinion that persons who are at a fight, in consequence of which death 
 ensues, are all guilty of manslaughter if they encouraged it by their 
 presence ; I mean if they remained present during the fight. If they 
 were not merely casually passing by, but stayed at the place, they en- 
 couraged it by their presence, although they did not say or do any- 
 thing. But if the death ensued by violence unconnected with the 
 fight itself, — that is, by blows not given by the other combatant, but 
 by persons breaking in the ring, and striking with their sticks, those 
 who were merely present are not, by being present, guilty of man- 
 slaughter. The case is at most one of manslaughter only." R. v. 
 Murphy, 6 C. & P. 103, 25 E. C. L. It has been ruled, however, 
 that persons present at a fatal prize-fight are not such accomplices as 
 that their evidence requires confirmation. R. v. Hargrave, 4 C. <fe P. 
 170, 19 E. C. L. The summing up of Littledale, J., in R. v. Mur- 
 phy, as above reported, was considered by the majority of the Court 
 of Crown Cases Reserved to be misleading, because it led to the infer- 
 ence as a matter of law that mere presence at a fight renders persons 
 so present guilty of an assault in aiding and abetting in such fight. 
 58
 
 914 MANSLAUGHTER. 
 
 This proposition was directly overruled by Denman, J., Huddlcston, 
 B., Manisty, Hawkins, Lopes, Stephen, Cave, and North, JJ. On 
 the other hand, Lord Coleridge, C. J., Pollock, B., and Mathew, J., 
 were of opinion that the legal inference to be drawn from mere pres- 
 ence as a voluntary spectator, at a prize-fight is^ in the absence of 
 other evidence to rebut such inference, that the person so present is 
 encouraging, aiding, and abetting. R. v. Coney, 8 Q. B. D. 534 ; 51 
 L. J., M. C. QG. In that case the prisoners were amongst a crowd of 
 people, surrounding two men, who fought in a ring, formed by ropes, 
 supported by posts. It did not appear that the prisoners took any 
 active part in the management of the fight, or that they said or did 
 anything. The ground on which the majority of the court proceeded 
 was thus put by Cave, J., in giving judgment: " Where presence may 
 be entirely accidental, it is not even evidence of aiding or abetting. 
 Where presence is primd facie not accidental, it is evidence, but no 
 more than evidence, for the jury." 
 
 * 
 
 -f)Q-| *Killing in the course of lawful employment. Where death 
 -I casually ensues in the course of a lawful employment, and there 
 is a want of due caution on the part of the person from whom it pro- 
 ceeds, it will not be misadventure, but manslaughter. A. having deer 
 frequenting his corn-field out of the precinct of any forest or chase, 
 set himself in the night-time to watch in a hedge, and B. his servant 
 to watch in another corner of the field with a gun, charging him to 
 shoot when he heard the deer rustle in the corn. The master himself 
 improvidently rushed into the corn, when the servant, supposing it to 
 be the deer, shot and killed his master. This was held to be only 
 chance-medley, for the servant was misguided by the master's own 
 directions. But it seemed to Lord Hale, who tried the prisoner, that 
 if the master had not given such directions, it would have been 
 manslaughter to have shot a man, though mistaking him for a deer, 
 because he did not use due diligence to discover his mark. 1 Hale, 
 P. C. 476. 
 
 An ironfounder being employed by an oilman and dealer in marine 
 stores to make some cannon, to be used on a day of rejoicing, and 
 afterwards to be put into a sailing-boat, after one of them had burst, 
 and had been returned to him in consequence, sent it back in so 
 imperfect a state, that, on being fired, it burst again, and killed the 
 deceased ; on his trial before Bayley, B., Patteson, J., and Gurney, 
 B., he was found guilty of manslaughter. R. v. Carr, 8 C. & P. 163, 
 34 E. C. L. 
 
 Death ensuing in the performance of an act otherwise lawful may 
 amount to manslaughter, by the negligence of the party performing 
 the act ; as in the instance of workmen throwing down stones 
 from the top of a house, where they were working, where there is a 
 small probability of persons passing by. 1 East, P. C. 262 ; Foster, 262. 
 
 The most common cases of this class are those where the death has 
 been occasioned by negligent driving. A. was driving his cart with 
 four horses, in the highway at Whitechapel. He, being in his cart,
 
 MANSLAUGHTER. 915 
 
 and the four horses at a trot, they threw down a woman who was 
 going the same way, with a burden upon her head, and killed lier. 
 Holt, C J., two other judges, and the recorder, held this to be mis- 
 adventure only ; but per Holt, C. J., if it had been in a street where 
 people usually passed, it had been manslaughter. Upon this ease, 
 Mr. East has made the following observation : " It must be tal<en for 
 granted from this note of the ease that the accident ha})pened in a 
 highway u-here people did not iisually pass, for otherwise the cireimi- 
 stance of the driver being in the cart, and going so much faster than is 
 usual for carriages of that construction, savored much of negligence 
 and impropriety ; fur it was extremely diffi(!ult, if not impossil)le, to 
 stop the course of the horses suddenly, in order to avoid any 
 person that could not get out of the way in time. And indeed such 
 conduct in the driver of such heavy carriages, might, under such cir- 
 cumstances, be thought to betoken a want of due care, if any, though 
 few persons, might probably pass by the same road. The greatest 
 possible care is not to be expected, nor is it to be required, but who- 
 ever seeks to excuse himself from having unfortunately occasioned 
 by any act of his own tlie death of another, ought at least to show 
 that he took that care to avoid it which persons in similar situations 
 are accustonied to do." 1 East, P. C. 263. The deceased was walking 
 along the road in a state of intoxication. The prisoner ^jvas driving a 
 *cart drawn by two horses, without reins. The horses were can- r^^on 
 tering, and the prisoner was sitting in front of the cart. On L 
 seeing the deceased, he called to him twice, to get out of the way, but 
 from the state he was in, and the rapid pace of the horses, he could not 
 do so, and was killed. Garrow, B., said, that if a man drive a cart at 
 an unusual rapid pace, whereby a person is killed, though he calls re- 
 peatedly to such person to get out of the way, if from the rapidity of 
 the driving or any other cause the pei'son cannot get out of the way in 
 time enough, but is killed, the driver is guilty of manslaughter. He 
 added, that it is the duty of every man who drives any carriage, to 
 drive it with such care and caution as to prevent, as far as in his own 
 power, any accident or injury that may occur. R. v. Walker, 1 C. & 
 P. 320, 12 E. C. L. What will constitute negligence in the case of 
 driving carriages must depend greatly upon the circumstances of each 
 particular case. It was ruled by Mr. Justice Bayley, that a carter, by 
 being in the cart, instead of at the horse's head, or by its side, was 
 guilty of negligence ; and if death ensued, of manslaughter. R. v. 
 Knight, 1 Lewin, C C. 168. And the same point was ruled by Hul- 
 lock, B. Anon., Id. The prisoner was charged with manslaughtei'. 
 It appeared, that there were two omnibuses, which were running in 
 opposition to each other, galloping along a road, and that the prisoner 
 was driving that on which the deceased sat, and was whipping his 
 horses just before the omnibus upset. In summing up to the jury, 
 Patteson, J., said, " The main questions are, were the two omnibuses 
 racing ? and was the prisoner driving as fast as he could, in order to 
 get past the other omnibus ? and had he urged his horses to so rapid 
 a pace that he could not control them ? If you are of that opin-
 
 916 MANSLAUGHTER. 
 
 ion, you ought to convict him." R. v. Timmins, 7 C & P. 499, 
 32 E. C. L. As to the doctrine of contributory negligence, see 
 post, p. 731. 
 
 To make the captain of a steam- vessel guilty of manslaughter, in 
 causing a person to be drowned by running down a boat, the prosecu- 
 tor must siiow some act done by the captain, and a mere omission on 
 his part in not doing the whole of his duty is not sufficient. But if 
 there were sufficient light, and the captain of the steamer is either at 
 the helm, or in a situation to be giving the command, and does that 
 which causes the injury, he is guilty of manslaughter. Per- Park, J., 
 and Alderson, B., R. v. Green, 7 C. & P. 156, 32 E. C. L. But see 
 infra, p. 736. 
 
 The prisoner was indicted for manslaughter, and it appeared that 
 it was his duty to attend a steam-engine, and that on the occasion in 
 question he had stopped the engine and gone away. During his 
 absence, a person came to the spot, and put it in motion, and being 
 unslvilled, was unable to stop it again ; and, in consequence of the 
 engine being thus put in motion, the deceased was killed. Alderson, 
 B., stopped the case, observing, that the death was the consequence, 
 not of the act of the prisoner, but of the person who set the engine in 
 motion after the prisoner went away, and that it was necessary, in 
 order to a conviction for manslaughter, that the negligent act which 
 caused the death should be that of the party charged. R. v. Hilton, 
 2 Lew. C. C. 214. See also R. v. Lowe, post, p. 736, and R. v. Ben- 
 nett, ante, p. 726. 
 
 Negligent use of dangerous weapons.^ It is sometimes very difficult 
 to trace the boundaries between manslaughter and misadventure, as 
 ^_.,-.-] *in the following case : — A man found a pistol in the street 
 
 '^ -I which he had reason to believe was not loaded, he having tried 
 it with the rammer. He carried it home and showed it to his wife, 
 and she standing before him, he pulled the cock, and touched the trig- 
 ger. The pistol went off and killed the woman, and this was ruled 
 to be manslaughter. Kel. 41. Admitting, says Mr. Justice Foster, 
 that this judgment was strictly legal, it was, to say no better of it, 
 summum jus. But, he continues, I think it was not so ; for the law in 
 these cases does not require the utmost caution that can be used ; it is 
 sufficient that a reasonable precaution, what is usual and ordinary in 
 like cases, should be used. Foster, 264. Mr. Justice Foster men- 
 tions a similar case which occurred before himself: "I once upon a 
 circuit tried a man for the death of his wife by a like accident. Upon 
 a Sunday morning the man and his wife went a mile or two from home 
 with some neighbors, to take a dinner at the house of their common 
 friend. He carried his gun with him, hoping to meet with some diver- 
 sion by the way. But before he went to dinner he discharged it, and 
 set it up in a private place in his friend's house. After dinner he went 
 
 ^ Under an act to prevent the careless use of weapons, the absence of malice is a 
 requisite of the statute to insure conviction. People v. Chappell, 27 Mich. 486.
 
 MANSLAUGHTER. 917 
 
 to churcli, and in the evening returned home with his wife and neigh- 
 bors, bringing his gun witli him, which was carried into the roum 
 where his wife was. He taking it up, touched the trigger, when it 
 went off, and killed his wife, whom he tenderly loved. It came out 
 in evidence, that while the man was at church a person belonging to 
 the family privately took the gun, charged it, and went after some 
 game, but before the service at church was ended, restored it, loaded, 
 to the place whence it was taken, and where the defendant, ignorant of 
 what had passed, found it, to all appearance, as he had left it. 1 did 
 not," says Mr. Justice Foster, " incpiire whether the poor man had ex- 
 amined the gun before he carried it home, but being of oi)inion, upon 
 the whole evidence, that he had reasonable grounds to believe that it 
 was not loaded, I directed the jury that if they were of the same opinion 
 they should acquit him, and they did acquit him accordingly." Foster, 
 265. " If a man takes a gun, not knowing whether it is loaded or 
 unloaded, and using no means to ascertain, and fires it in the direction 
 of any other person, and death ensues, he is guilty of manslaughter." 
 R. V. Campbell, 11 Cox, C. C. 323. This latter direction seems pre- 
 ferable to that of Mr. Justice Foster, for to point a gun in the direc- 
 tion of another, even with most reasonable grounds of a negative char- 
 acter for believing it to be vniloaded, is only an act of folly, and it is 
 not too much to require that a man should take positive means to 
 ascertain that it is not loaded before he points it in the direction 
 of another person. And see the questions asked of the jury by 
 Cockburn, C. J., in R. v. Weston, 14 Cox, C C. 346, post, p. 774. 
 Where three men went out with a rifle and set up a mark in a tree in 
 the proximity of houses, and a bullet from the rifle killed a boy at a 
 distance of 393 yards, it was held that so shooting without taking any 
 precautions w^as such negligence as to constitute manslaughter. R,. v. 
 Salmon, 6 Q,. B. D. 79 ; 50 L. J., M. C. 25. See this case, ante, p. 
 183. 
 
 Contributory negligence. It has been frequently attempted in 
 these cases to set up the civil doctrine of contributory negligence as a 
 defence. The law upon this point does not appear to be settled ; but 
 it is submitted that the rule in criminal cases is that, assuming the 
 negligence of the deceased, if the death was caused also by negligence 
 
 on the part *of the defendant, he is guilty, although under ex- 
 
 [*732 
 
 tenuating circumstances. It has been distinctly ruled in sev- 
 eral cases, that it is no ground of defence that the death was partly 
 caused by the negligence of others. R. v. Ledger, 2 F. & F. 857 ; 
 R. V. Haines, 2 C. & K. 368, 61 E. C. L. ; R. v. Barrett, 2 C. & K. 
 343, 61 E. C. L. ; R. v. Benge, 4 F. & F. 504 ; and it has also been 
 frequently ruled that it is no ground of defence that the death -^-as 
 partly caused by the negligence of the deceased himself; per Pollock, 
 C. B., in R. V. Swindall, 2 C. & K. 230, 61 E. C. L. ; per Garrow, B,, 
 in R. V. Walker, 1 C. & P. 320, 12 E. C. L. ; per Byles, J., in R. v. 
 Kew, 12 Cox, C. C. 355 ; per Lush, J., in R. v. Jones, 11 Cox, C. C. 
 544 ; R. V. Longbottom, 3 Cox, C. C. 439 ; R. v. Hutchinson, 9 Cox,
 
 918 MANSLAUGHTER. 
 
 C. C. 555.^ There is, however, some doubt as to the extent to which 
 this doctrine can be carried. A man turned out a horse, which he 
 knew to be vicious, on the common over which he knew people were 
 in the habit of passing, and over which they had a right to pass by 
 certain paths. A child was killed by the horse, either on or very near 
 one of the paths. It was held that the owner of the horse was rightly 
 convicted of manslaughter, and some of the judges were disposed to 
 think that it would have made no difference if the child had been on 
 any part of the common on to which people were in fact accustomed to 
 go, whether rightfully or not. R. v. Dant, L. & C. 567 ; 34 L. J., M. C. 
 119. See also R. v. Benge, supra. Upon the other hand, in the 
 case of R. v. Birchall, 4 F. & F. 1087, Willes, J., said that where the 
 deceased has contributed to his death by his own negligence, although 
 there may have been negligence on the part of the prisoner, the latter 
 cannot be convicted of manslaughter, and that until he saw a decision 
 to the contrary he should hold that a man was not criminally responsi- 
 ble for negligence for which he would not be responsible in an action. 
 But as to this case. Lush, J., said, in R. v. Jones, supra, that it was 
 quite at variance with what he had always heard laid down, and in 
 R. V. Shaw, Leeds Summer Assizes, 1868, the same learned judge ruled 
 that at all events a child could not be guilty of such contributory 
 negligence as to afford any defence to a defendant, who had negli- 
 gently run over it. In R. v. Kew, supra, Byles, J., said, contribu- 
 tory negligence was no defence either in the case of a child or an 
 adult. In R. v. Gregory, 2 F. & F. 153, the death was due entirely 
 to the negligence of the deceased, and it was not shown that the pris- 
 oner was negligent at all. As stated by Pollock, C. B., in R. v. 
 Swindall, supra, where there is a loss of life " each party is responsible 
 for any blame that may ensue, however large the share may be, and 
 so highly does the law value human life that it admits of no justifi- 
 cation wherever life has been lost and the carelessness and negligence 
 of any one person has contributed to the death of another person." 
 It should always be remembered that a trial for manslaughter is not 
 in the nature of a suit between parties, but is a prosecution on the 
 part of the Crown. 
 
 Where a person, practising medicine or surgery, whether licensed 
 or unlicensed, is guilty of gross negligence, or criminal inattention, in 
 the course of his employment, and in consequence of such negligence 
 or inattention death ensues, it is manslaughter, but if there is no 
 gross negligence it is not manslaughter. 
 
 Killing by persons practising surgery or medicine. Cases of 
 great difficulty and nicety have arisen with regard to the question 
 of malice, where medicines have been carelessly or unskilfully 
 ^_fv„-| *administered by incompetent persons. The law on this subject 
 -' is thus laid down by Lord Hale : "If a physician gives a 
 person a potion without any intent of doing him any bodily hurt, but 
 
 • In an indictment for manslaughter by culpable negligence, contributory negligence 
 is no defence. People v. Buddensieck, 4 N. Y. Crim. Rep. 230.
 
 MANSLAUGHTER. 919 
 
 with intent to cure or prevent a disease, and contrary to the expectation 
 of the physician, it kills him, this is no homicide; and the like of a 
 surgeon. And 1 hold their (){)inion to be erroneous that think, if it 
 be no licensed surgeon or physician that occasions this mischance, then 
 it is a felony, for physic and salves were before licensed physicians and 
 surgeons, and therefore, if they be not licensed according to the stat- 
 utes, they are subject to the penalties in the statutes, but God forbid 
 that any mischance of this kind should make any person not licensed 
 guilty of murder or manslaughter."^ 1 Hale, V. C. 429. Upon the 
 latter point 8ir William Blackstone appears to concur in opinion with 
 Lord Hale. If a physician or surgeon, he says, gives his patient a 
 potion or plaister to cure him, which, contrary to expectation, kills 
 him, this is neither murder nor manslaughter, but misadventure, and 
 he shall not be punished criminally, however liable he might foruKirly 
 have been to a civil action for neglect or ignorance; but it has been 
 held that if he be not a regular physician or surgeon who administers 
 the medicine or performs the operation it is manslaughter at the least. 
 Yet Sir M. Hale very justly questions the law of this determi- 
 nation. 4 Bl. Com. c. 14. The correctness of Sir M. Hale's opinion 
 has been recognized in several late cases. Thus, in R. v. Van Butchell, 
 3 C. & P. 632, 14 E. C. L., Hullock, B., ruled that it made no differ- 
 ence whether the party was a regular or an irregular surgeon ; adding, 
 that in remote parts of the country many persons would be left to die, 
 if irregular surgeons were not allowed to practise. The same opinion 
 was expressed by Park, J., in a subsequent case, in which he observed, 
 that whether the party was licensed or unlicensed, is of no consequence 
 except in this respect, that he may be subject to pecuniary penalties for 
 acting contrary to charters or Acts of parliament. R. v. Long, 4 C. 
 & P. 398, 19 E. C. L. But whether the party be licensed or unli- 
 censed, if he display gross ignorance, or criminal inattention, or cul- 
 pable rashness, in the treatment of his patient, he is criminally re- 
 sponsible. There is no doubt, says Mr. Baron Hullock, that there 
 may be cases where both regular and irregular surgeons may be liable 
 to an indictment, as there may be cases where from the manner of the 
 operation even malice might be inferred. R,. v. Van Butchell, 3 C. & 
 P. 633, 14 E. C. L.; 4 C. & P. 407, 19 E. C. L. Where a person 
 who, though not educated as a surgeon, had been in the habit of acting 
 as a man-midwife, and had unskilfully treated a woman in childbirth, 
 in consequence of which she died, was indicted for the murder, Lord 
 EUenborough said there has not been a particle of evidence adduced 
 that the prisoner was guilty of murder, but it was for the jury to con- 
 sider whether the evidence went so far as to make out a case of man- 
 slaughter. To substantiate that charge the prisoner must have been 
 guilty of criminal misconduct, arising either from the grossest ignorance 
 
 * Ann V. State, 11 Humph. 159 ; Commonwealth v. Thompson, 6 Mass. 134 ; s. c. 2 
 Wheel. C. C. 312. To attempt to produce a miscarriage, except when in proper pro- 
 fessional judgment it is necessary to preserve the life of the woman, is indictable as 
 a misdemeanor. If it results in death, it will be murder in the second degree. 
 State V. Moore, 25 la. 128. S.
 
 920 MANSLAUGHTER. 
 
 or the must criminal inattention. One or other of these was necessary 
 to make him guilty of that criminal negligence and misconduct which 
 are essential to make out a case of manslaughter. R. v. William- 
 son, 3 C. <& P. 635, 14 E. C. L. This ruling was cited with 
 approbation by Parke, J., in R. v. Long, 4 C. & P. 423, 19 
 E. C. L., where he held that, to support the charge of manslaughter, 
 it must appear that there was gross ignorance or inattention to human 
 life. In R. V. Long, 4 C. & P. 423, 19 E. C. L., a case was 
 cited by counsel as having occurred on the northern circuit, where a 
 *7'^4-1 *™^'^ ^"^^^o ^^^ drunk went and delivered a woman, who, by his 
 -I mismanagement, died, and he was sentenced to six months' 
 imprisonment. And where a person grossly ignorant, undertook to 
 deliver a woman and killed the child in the course of the delivery, it 
 was resolved by the judges that he was rightly convicted of man- 
 slaughter. R. V. Senior, 1 Moo. C C. 346. The rule with regard to 
 the degree of misconduct which will render a person practising medi- 
 cine criminally answerable is thus laid down by Mr. Justice Bayley : 
 " It matters not whether a man has received a medical education or 
 not. The thing to look at is, whether, in reference to the remedy he 
 has used, and the conduct he has displayed, he has acted with a due 
 degree of caution, or, on the contrary, has acted with gross and im- 
 proper rashness and want of caution. I have no hesitation in saying, 
 that if a man be guilty of gross negligence in attending to his patient, 
 after he has applied a remedy, or of gross rashness in the application 
 of it, and death ensues in consequence, he will be liable to a conviction 
 for manslaughter." R. v. Long, 4 C. & P. 423, 19 E. C. L. The 
 prisoner was indicted for manslaughter. It appeared that the deceased, 
 a sailor, had been discharged from the Liverpool infirmary as cured, 
 after undergoing salivation, and that he was recommended by another 
 patient to go to the prisoner for an emetic, to get the mercury out of 
 his bones. The prisoner was an old woman, residing in Liverpool, 
 who occasionally dealt in medicines. She gave him a solution of cor- 
 rosive sublimate, one dose of which caused his death. She said she 
 had received the mixture from a person who came from Ireland and 
 had gone back again. Mr. Justice Bayley, in addressing the jury, 
 said, " I take it to be perfectly clear, that if a person, not of medical 
 education, in a case where professional aid ought to be obtained, under- 
 takes to administer medicines which may have a dangerous eifect, and 
 thereby occasions death, such person is guilty of manslaughter. He 
 may have no evil intention, and may have a good one, but he has no 
 right to hazard the consequences in a case where medical assistance may 
 be obtained. If he does so, it is at his own peril. It is immaterial 
 whether the person administering the medicine prepares it, or gets it 
 from another." R. v. Simpson, Wilcock on Laws of Med. Prof. 
 Appendix, 227 ; 4 C. & P. 407 (n), 19 E. C. L; 1 Lewin, C. C. 172. 
 The prisoner was indicted for manslaughter. It appeared that the de- 
 ceased, a child, being afflicted with a scald-head, the prisoner had di- 
 rected a plaister to be applied, from the effects of which the child was 
 supposed to have died. Bolland, B., addressing the jury, said, ^' The
 
 MANSLAUGHTER. 921 
 
 law as I am bound to lay it down, as it has been agreed upon by the 
 judges (for cases of this kind have occurred of late more frequently 
 than in former times), is this — if any i)erson, whetlier he be a I'cgular 
 or licensed medical man or not, professes to deal with the life or health of 
 his Majesty's subjects, he is bound to have competent skill to perform 
 the task that he holds himself out to perform, and he is bound to treat 
 his patients with care, attention, and assiduity." 11, v. Spiller, -5 C. & 
 P. 333, 24 E. C. L. The direction given by Tindal, C. J., in a 
 case of this kind, where the prisoner was charged with neglecting 
 to attend and take dne care of a woman during her delivery, was 
 as follows : " You are to say, whether in the execution of the 
 duty which the prisoner had undertaken to perform he is proved 
 to have shown such a gross want of care, or such a gross and 
 culpable want of skill, as any person undertaking such a charge 
 ought not to be guilty of, and that the death of the person named in 
 *the indictment was caused thereby." R. v. Ferguson, 1 Lewin, r^YOK 
 C C 181. In a case which occurred before Lord Lyndhurst, •- 
 C. B., upon an indictment for manslaughter the law on this subject was 
 thus laid down by his lordship : " I agree that in these cases there is no 
 difference between a licensed physician or surgeon, and a person acting 
 as physician or surgeon without a license. In either case, if a party 
 having a competent degree of skill and knowledge, makes an acci- 
 dental mistake in his treatment of a patient, through which death 
 ensues, he is not thereby guilty of manslaughter ; but if, where proper 
 medical assistance can be had, a person, totally ignorant of the science 
 of medicine, takes upon himself to administer a violent and danger- 
 ous remedy to one laboring under disease, and death ensues in con- 
 sequence of that dangerous remedy having been so administered, 
 then he is guilty of manslaughter. If I had the least doubt of this 
 position, I might fortify it by referring to the opinion of Lord Ellen- 
 borough in R. V. Williamson (ante, p. 733). I shall leave it to the 
 jury to say whether death was occasioned or accelerated by the 
 medicines administered ; and if they say it was, then I shall tell 
 them, secondly, that the prisoner is guilty of manslaughter, if 
 they think that in so administering the medicines, he acted either 
 with a criminal intention, or from any gross ignorance." R. v Webb, 
 1 jNIuo. & ilob. 405; 2 Lew. C. C. 196. See also R. v. Markuss, 
 4 F. & F. 356. The prisoner, who was indicted for manslaughter, 
 had, for nearly thirty years, carried on the business of an apothecary 
 and man-midwife in the county of York, and was qualified by law to 
 carry on that ])rofession. His practice was very considerable, and he 
 had attended the deceased on the birth of all her children. It 
 appeared that on the occasion in question he made use of a metal 
 instrument, known in midwifery by the name of a vectls, or lever, in- 
 flicting thereby such grievous injuries on the person of tiie deceased 
 as to cause her death within three hours. It was proved by the 
 medical witnesses that the instrument was a very dangerous one, and 
 that at that period of the labor it was very improper to use it at all ; 
 and also, that it must have been used in a very improper way, and in
 
 922 MANSLAUGHTER. , 
 
 an entirely wrong direction. Coleridge, J., told the jury that the 
 questions for them to decide were, whether the instrument had caused 
 the death of the deceased, and whether it had been used by the pris- 
 oner with due and proper skill and caution, or with gross want of 
 skill or gross want of attention. No man was justified in making 
 use of an instrument, in itself a dangerous one, unless he did so with 
 a proper degree of skill and caution. If the jury thought that in this 
 instance the prisoner had used the instrument with gross want of 
 skill or gross want of caution, and that the deceased had thereby lost 
 her life, it would be their duty to find the prisoner guilty. The pris- 
 oner was convicted. R, v. Spilling, 2 Moo. & R. 107. A chemist, 
 likewise, who negligently su{)plies a wrong drug, in consequence of 
 which death ensues, is guilty of manslaughter. The apprentice to a 
 chemist by mistake delivered a bottle of laudanum to a customer, 
 who asked for paregoric ; and a portion of the laudanum being ad- 
 ministered to a child caused its death. The apprentice being indicted 
 for manslaughter, Bayley, J., directed the jury, that if they thought 
 him guilty of negligence, they should find him guilty of the man- 
 slaughter. R. V. Tessymond, 1 Lewin, C. C 169. See also R. v. Carr, 
 ante, p. 729. 
 
 *736] 
 
 *Neglect of duty. A person may, by a neglect of duty, ren- 
 der himself liable to be convicted of manslaughter ; as where 
 an engineer, employed to manage a steam-engine, used to draw up 
 miners from a coal-pit, left the engine in charge of a boy who he knew 
 was incapable of managing it, and death ensued in consequence to one 
 of the miners, the engineer was held by Campbell, C. J., to be guilty 
 of manslaughter. R. v. Lowe, 3 C. & K. 123. .See also R. v. Haines, 
 2 C. & K. 368, 47 E. C. L.; R. v. Hughes, Dears. & B. 248, see post, 
 p. 763 ; and R. v. Barrett, 2 C. & K. 343, 47 E. C. L.^ 
 
 Trustees, appointed under a local Act for the purpose of repairing 
 roads in a district, with power to contract for executing such repair, 
 are not chargeable with manslaughter if a person, using one of such 
 roads, is accidentally killed in consequence of the road being out of 
 repair through neglect of the trustees to contract for repairing it. 
 R. V. Pollock, 17 Q. B. 34, 79 E. C. L. 
 
 In R. V. Waters, 1 Den. C. C. R. 356 ; 18 L. J., M. C. 53, the pris- 
 oner was held to be properly convicted of the manslaughter of her 
 infant female child, being of such tender age and feebleness as to be 
 incompetent to take charge of herself, upon an indictment which 
 stated the death to have been caused by exposure, whereby the child 
 became mortally chilled, frozen, and benumbed. 
 
 Where the grandmother of a child chose to undertake the charge 
 of an infant, she was held bound to execute such charge without 
 wicked negligence. Brett, J., said, " There must be negligence so 
 great as to satisfy a jury that the offender had a wicked mind in the 
 
 * Where the duty neglected is a known duty, it is not necessary to allege or prove 
 a criminal intent on the part of the defendant. State v. Smith, 65 Me. 257.
 
 MANSLAUGHTER. 923 
 
 sense of being reckless and careless whether death occurred or not." 
 R. V. Nicholls, 13 Cox, C. C. 75. As to charges of murder by neglect 
 of children, see p. 764, and as to abandonment of children, see p. 
 398. 
 
 But where there is no legal duty to give assistance, wliich might 
 have been given, and would have saved the life of the person in need 
 of it, the withholding of such assistance appears not to be criminal, 
 as where a mother omitted to procure tlie assistance of a midwife for 
 her daughter, a girl of eighteen years of age, who was taken in labor 
 in the mother's house in the absence of the mother's husband. R. v. 
 Shepherd, L. & C. 147. 
 
 On the other hand, a wilful neglect of a duty imposed by statute, 
 will, if death ensues in consequence of such neglect, amount to man- 
 slaughter by the person so neglecting. 
 
 By the 31 & 32 Vict. c. 122, s. 37, when any parent shall wilfully 
 neglect to provide adequate food, clothing, medical aid, or lodging for 
 his child, being in his custody, under the age of fourteen years, 
 whereby the health of such child shall have been, or shall be likely 
 to be, seriously injured, he shall be guilty of an oifence punishable 
 on summary conviction. The prisoner, who belonged to a sect 
 styling themselves " peculiar people/' was indicted for the man- 
 slaughter of his infant child by neglecting to call in medical advice 
 when the child was ill. It was proved that the child, after being ill 
 and wasting for eight or nine months from chronic inflammation of 
 the lungs and pleura, had died. The prisoner, in accordance with 
 the custom of the " peculiar people," did not call in medical aid, 
 but called in the elders of the church to pray over the sick child ; he 
 also consulted the person called in to pray over the child, but neither 
 had such person or the prisoner himself any medical skill. They 
 thought the child was teething, and gave it such diet as they thought 
 *suitable. The prisoner had sufficient means to procure medi- r*7q7 
 cal advice, which was easily obtainable. It was found by the ^ 
 jury, that the prisoner wilfully neglected to provide medical aid, where, 
 it was in fact reasonable so to do, and he had the ability, and that 
 death was caused by such neglect ; and, upon a conviction for man- 
 slaughter under the above facts, the court held that the prisoner was 
 properly convicted, on the ground that the above statute imposed a 
 positive duty to provide medical aid when necessary, and that death 
 had ensued in consequence of that duty having been wilfully neglected 
 bv the prisoner. R. v. Downes, L. R. 1 Q. B. D. 25 ; 45 L. J., M. 
 C. 8. 
 
 In order to justify a verdict of manslaughter there must be positive 
 evidence that the death was caused or accelerated by the neglect of a 
 duty. Where the evidence only went to show that proper medical 
 aid and attendance might have saved or prolonged the child's life and 
 would have increased its chance of recovery, but that it might have 
 been of no avail, the Court of Crown Cases Reserved held tliat, 
 although there was a neglect of duty, yet a conviction for manslaughter 
 could not be sustained, because it was not shown that the neglect
 
 924 MANSLAUGHTER. 
 
 had the effect of shortening life. R. v. Morby, 8 Q. B. D. 571 ; 51 
 L. J., M. C. 85. 
 
 Correction of child by parent or others. Parents, masters, and 
 other persons having authority in foro domedico may give reasonable 
 correction to those under their care, and if death ensue without their 
 fiiult it will be no more than accidental death. 1 Russ. Cri. 773, 5th 
 ed., but if the correction exceed the bounds of due moderation and 
 death ensue, it will be murder or manslaughter according to circum- 
 stances, see the cases pos^, " Murder," p. 7G9. 
 
 And see ante, tit. " Ill-treating Apprentices," and post, tit. " Mur- 
 der." 
 
 Killing in defence of person or property. The rule of law upon 
 this subject is tlms laid down by Mr. East. A man may repel force 
 by force, in defence of his person, habitation, or property, against one 
 who manifestly intends or end eavors by violence or surprise to 
 commit a known felony, such as rape, robbery, arson, burglary, or 
 the like. In these cases he is not obliged to retreat, but may pursue 
 his adversary until he has secured himself from all danger, and 
 if he kill him in so doing it is justifiable self-defence; as on the 
 other hand, the killing by such felons of any person so lawfully 
 defending himself will be murder. But a bare fear of any of these 
 offences, however well grounded, as that another lies in wait to take 
 away the party's life, unaccompanied by any overt act indicative 
 of such an intention, will not warrant him in killing that other 
 by way of precaution, there being no actual danger at the time. 
 1 East, P. C. 271, 272.^ Not only is the party himself, whose person 
 or property is the object of the felonious attack, justified in resisting, 
 in the manner above mentioned, but a servant or any other person 
 may lawfully interpose, in order to prevent the intended mischief. 
 Thus, in the instances of arson and burglary, a lodger may lawfully 
 kill the assailant in the same manner as the owner himself might do, 
 but subject to the same limitations. {8ed vide post, p. 742.) In this 
 case there seems to be no difference between the case of the person 
 assaulted, and those who come in aid against such felons. The legis- 
 lature itself seems to have considered them on the same footing, for 
 in the case of the Marquis de Guiscard, who stabbed Mr. Harley 
 j^«oo-| * while sitting in council, they discharged the party who gave 
 -J the mortal wound from all manner of prosecution on that ac- 
 count, and declared the killing to be a lawful and necessary action. (9 
 
 ' Self-defence can only be introduced as a defence against a felonious assault. The 
 assailed, except in the special cases mentioned in the text, must retreat as far as he 
 can in safety. Nothing excuses homicide except immediate necessity. Brown v. 
 State, 74 Ala. 478 ; Harrison v. State, 78 Id. 5. It is not self-defence where the slayer 
 follows the deceased up. Hughes t). People, 116 111. 330. Self-defence cannot be set 
 up in mutual combat. Lee v. State, 21 Tex. Apo. 241. Nor where the defendant seeks 
 or brings on a difficulty. Thuston v. State, 21 Tex. App. 245 ; Roach v. State, Id. 
 249. It is a good defence in parricide, as well as against any other charge of murder. 
 People V. Walworth, 4 N. Y. Crim. Eep. 355. See infra, p. *S04.
 
 MANSLAUGHTER. 925 
 
 Anne, c. 16, repealed.) 1 East, P. C. 289 ; Foster, 274 ; R. v. Cooper, 
 Cro. Car. 544. 
 
 With regard to the nature of the intended offence, to prevent 
 which it is lawful instantly to use the last violence, and to put the 
 assailant to death, it is only to such crimes as in their nature betoken 
 an urgent necessity, which admits of no delay, that the rule extends. 
 Of this nature are what have been termed known felonies, in contra- 
 distinction as it seems to such secret felonies as may be committed 
 without violence to the person, such as picking the pocket, etc. 
 Foster, 274 ; 1 East, P. C. 273. Where an attempt is made to 
 murder or to rob, or to ravish, or to commit burglary, or to set 
 fire to a dwelling-house, if the attack be made by the assailant with 
 violence and by surprise, the party attacked may lawfully put him to 
 death. Id. 
 
 A statute passed in the 24 Hen. 8, c. 5 (now repealed), upon this 
 subject, in affirmance of the common law, after reciting that it had 
 been doubted whether, if any person should attempt feloniously to rob 
 or murder any persons in or near any common, highway, cartway, or 
 footway, or in their mansions, messuages, or dwelling-places, or 
 attempt to break any dwelling-house in the night-time, and should 
 happen in such felonious intent to be slain by those whom they should 
 attempt so to rob or murder, by any person being in their dwelling- 
 house attempted to be broken open, the person so happening to slay 
 the person so attempting to commit murder or burglary, should forfeit 
 goods and chattels : enacts that if any person or persons be indicted 
 or appealed, or for the death of any such evil-disposed person or per- 
 sons attempting to rob, murder, or burglariously to break mansion- 
 houses, as is above said, the person or persons so indicted or appealed 
 thereof, and of the same by verdict so found and tried, shall not for- 
 feit or lose any lands, tenements, goods, or chattels, for the death of 
 any such evil-disposed person in such manner slain, but shall be 
 thereof, and for the same, fully acquitted and discharged. Though 
 the statute only mentions certain cases, it must not be taken to imply 
 an exclusion of any other instances of justifiable homicide, which stand 
 upon the same footing of reason and justice. Thus the killing of one 
 who attempts the wilful burning of a house is free from forfeiture, 
 without the aid of the statute ; and though it only mentions the break- 
 ing a house in the night-time (which must be intended a breaking ac- 
 companied with a felonious intent), yet a breaking in the day-time 
 witli a like purpose must be governed by the same rule. 1 East, P. 
 C. 272, 273. 
 
 The rule extends to felonies only. Thus, if one comes to beat 
 another, or to take his goods as a trespasser, though the owner may 
 justifv a battery for the purpose of making him desist, yet if he kill 
 him, It will be manslaughter. 1 Hale, P. C. 485, 486 ; 1 East, P. C. 
 272. 
 
 It is not essential that an actual felony should be about to be com- 
 mitted in order to justify the killing. If the circumstances are such 
 as that, after all reasonable caution, the party suspects that the
 
 926 MANSLAUGHTER. 
 
 felony is about to be immediately committed, he will be justified in 
 making the resistance, as in the following case: — Levet being in bed 
 and asleep, his servant who had procured Frances Freeman to help 
 *7Qol *^^^'' ^^^ ^^^'^' work, went to the door about twelve o'clock at 
 -I niti-ht, to let her out, and conceived she heard thieves about to 
 break into the house. Upon this she awakened her master, telling 
 him what she apprehended. He took a drawn sword, and the servant 
 fearing that Freeman should be seen, hid her in the buttery. Mrs. 
 Levet seeing Freeman in the buttery, and not knowing her, conceived 
 her to be the thief, and called to her husband, who entering the but- 
 tery in the dark, and thrusting before him with his sword, struck 
 Freeman under the breast, of whicli wounds she instantly died. This 
 was ruled to be misadventure only. R. v. Levet, Cro. Cas. 538 ; 1 
 Hale, P. C. 42, 474. Possibly, says Mr. Justice Foster, this might 
 have been ruled manslaughter, due circumspection not having been 
 used. Foster, 299. 
 
 Whether a person who is assaulted by another will be justified in 
 using, in the first instance, such violence in his resistance as will pro- 
 duce death, must depend upon the nature of the assault, and the cir- 
 cumstances under which it is committed.^ It may be of such a char- 
 acter that the party assailed may reasonably apprehend death, or great 
 violence to his person, as in the following case : — Ford being in pos- 
 session of a room at a tavern, several persons persisted in having it, 
 and turning him out, but he refused to submit, when they drew their 
 swords upon Ford and liis company, and Ford, drawing his sword, 
 killed one of them, and it was adjudged justifiable homicide. Both 
 in Kelynge and in Foster a qtioere is added in this case. But Mr. 
 East observes that though the assailants waited till Ford had drawn 
 his sword (which by no means appears), yet if more than one attacked 
 him at the same time (and as he was the only one of the party who 
 seems to have resisted, such probably was the case), the determination 
 seems to be maintainable. R. v. Ford, Kel. 82; 1 East, P. C. 243. 
 So in R. V. Mawgridge, great violence was held justifiable in the case 
 of a common assault. Mawgridge, upon words of anger, threw a 
 bottle with great force at the head of Cope, and immediately drew his 
 sword. Cope returned a bottle at the head of Mawgridge, which it was 
 held lawful for him to do in his own defence, and wounded him, for 
 Mawgridge, in throwing the bottle, showed an intention to do some 
 great mischief, and his drawing immediately showed that he intended 
 to follow up the blow. Mawgridge stabbed Cope, and it was ruled to 
 be murder. R. v. Mawgridge, Kel. 121 ; 2 Lord Rayra. 1489 ; Fos- 
 ter, 29G. Upon this case Mr. East has made the following remarks : 
 — The words previously spoken by Cope could form no justification 
 for Mawgridge, and it was reasonable for the former to suppose his 
 life in danger when attacked with so dangerous a weapon, and the as- 
 sault followed up by another act indicating an intention of pursuing 
 
 * To establisli the plea of self-defence in a trial for manslaughter, evidence that the 
 deceased was a large and more powerful man than defendant, Held admissible. Com- 
 monwealth V. Barnacle, 134 Mass. 215.
 
 MANSLAUGHTER. 927 
 
 his life, and this at a time when he was off his guard, and with- 
 out any warning. The latter circumstance furnishes a main dis- 
 tinction between this case and that of death ensuing from a com- 
 bat where both parties engage upon equal terms ; for then, if upon 
 a sudden quarrel, and before any dangerous blow given or aimed 
 at eitlier of the parties, the one who first has recourse to a deadly 
 weapon suspends his arm till he has warned the other, and given 
 him time to put himself upon his guard, and afterAvards they en- 
 gage upon equal terms ; in such case it is plain that the intent of 
 the person making such assault is not so much to destroy his adver- 
 sary, at all events, as to combat with him, and run the hazard of 
 losing his own life at the same time. And that would fall within 
 *the same common principle which governs the case of a sud- r*^^^ 
 den combat upon heat of blood. But if several attack a per- L '"*" 
 son at once with deadly weapons, as may be supposed to have hap- 
 pened in Ford's case (supra), though they wait till he be upon his 
 guard, yet it seems (there being no compact to fight) that he would be 
 justified in killing any of the assailants in his OAvn defence, because so 
 unequal an attack resembles more a desire of assassination than of 
 combat. 1 East, P. C. 276. 
 
 An assault with intent to chastise, although the party making the 
 assault has no legal right to inflict chastisement, will not justify the 
 party assaulted in killing the assailant. The prisoner, who was in- 
 dicted for the murder of his brother, appeared to have come home 
 drunk on the night in question. His father ordered him to go to bed 
 but he refused, upon which a scuffle ensued between them. The de- 
 ceased, a brother of the prisoner, who was in bed, hearing the disturb- 
 ance, got up, threw the prisoner on the ground, and fell upon him 
 and beat him, the prisoner not being able to av^oid his blows, or to 
 make his escape. As they were struggling together, the prisoner gave 
 his brother a mortal wound with a penknife. This was unanimously 
 held by the judges to be manslaughter, as there did not appear to be 
 any inevitable necessity so as to excuse the killing in that manner. 
 The deceased did not appear to have aimed at the prisoner's life, but 
 only to chastise him for his misbehavior to his father. R. v. Nailor 
 1 East, P. C. 277. The circumstances in the following case were very 
 similar : — The prisoner and the brother of the prosecutor were fight- 
 ing, on which the prosecutor laid hold of the prisoner to prevent him 
 from hurting his brother, and held him down, but did not strike him, 
 and the prisoner stabbed him with a knife above the knee. The 
 prisoner being indicted for stabbing, under the repealed 9 Geo. 4, c 31 
 Mr. Justice James Parke said : The prosecutor states that he was 
 merely restraining the prisoner from beating his brother, which was 
 proper on his part. If you are of opinion that he did nothing more 
 than was necessary to prevent the prisoner from beating his brother 
 the crime of the prisoner, if death had ensued, would not have been 
 reduced to manslaughter ; but if you think that the prosecutor did 
 more than was necessary to prevent the prisoner from beating his 
 brother, or that he struck the prisoner any blows, then I think that it
 
 928 MANSLAUGHTER. 
 
 would. You will consider whether anything was done by the prose- 
 cutor more than was necessary, or whctiier he gave any blows before 
 he was struck. R. v. Bourne, 5 C. & P. 120, 24 E. C. L. At the 
 conference of the judges upon R. v. Nailor (supra), Powell, J., by 
 way of illustration, put the following case : — If A. strike B. with- 
 out any weapon, and B. retreat to a wall, and there stab A., it 
 will be manslaughter, which Holt, C. J., said was the same as 
 the principal case, and that was not denied by any of the judges. 
 For it cannot be inferred from the bare act of striking, without some 
 dangerous weapon, that the intent of the aggressor rose so high as the 
 death of the party struck, and unless there be a plain manifestation 
 of a felonious intent, no assault, however violent, will justify killing 
 the assailant under the plea of necessity. 1 East, P. C. 277. But, 
 in order to render the killing in these cases justifiable, it must appear 
 that the act was done from mere necessity, and to avoid the imme- 
 diate commission of the offence. Thus a person who, in the case of 
 a mutual conflict, would excuse himself upon the ground of self- 
 defence, must show that before the mortal stroke given, he had 
 *7J.i1 *c^Gclined any further combat, and retreated as far as he could 
 -' with safety, and that he had killed his adversary through mere 
 necessity, and to avoid immediate death. If he fail in either of these 
 circumstances, he will incur the penalty of manslaughter. Foster, 
 277. 
 
 Again, to render the party inflicting death under the foregoing cir- 
 cumstances justifiable, it must appear that he was wholly without any 
 fault imputable to him by law in bringing the necessity upon himself. 
 Therefore, where A., with many others, had, on pretence of title, 
 forcibly ejected B. from his house, and B. on the third night returned 
 with several persons with intent to re-enter, and one of B.'s friends 
 attempted to fire the house, whereupon one of A.'s party killed one 
 of B.'s with a gun, it was held manslaughter in A., because the enter- 
 ino; and holding with force were illegal. Hawk. P. C. b. 1, c. 28, 
 s. 22. 
 
 It is to be observed, that killing in defence of the person will 
 amount either to justifiable or excusable homicide, or chance-medley as 
 the latter is termed, according to the circumstances of the case. Self- 
 defence, upon chance-medley, implies that the party, Avhen engaged in 
 a sudden affray, quits the combat before a mortal wound is given, and 
 retreating as far as he can with safety, urged by necessity, kills his 
 adversary for the preservation of his own life. Foster, 276. It has 
 been observed, that this case borders very nearly upon manslaughter, 
 that in practice the boundaries are in some instances scarcely percepti- 
 ble. In both cases it is presumed that the passions have been kindled 
 on both sides, and that blows have passed between the parties; but in 
 manslaughter it is either presumed that the combat has continued on 
 both sides till the mortal stroke was given, or that the party giving 
 such stroke was not at that time in imminent danger of death. Foster, 
 276, 277. The true criterion between manslaughter and excusable 
 homicide, or chance-medley, is thus stated by Sir William Blackstone :
 
 MANSLAUGHTER. 929 
 
 When both parties are actually combatting at the time the mortal 
 stroke is given, the slayer is guilty of manslaughter ; but if the slayer 
 has not begun to fight, or (having begun) endeavors to decline any 
 further struggle, and afterwards being closely pressed by his antago- 
 nist, kills him to avoid his own destruction, this is homicide, excus- 
 able by self-defence. 4 Bl. Com. 184. In all cases of excusable homi- 
 cide, in self-defence, it must be taken that the attack was made upon 
 a sudden occasion, and not premeditated, or with malice. For if one 
 attack another with a dangerous weapon, unprepared, with intent to 
 murder him, that would stand upon a different ground ; and in that 
 case, if the party whose life was sought killed the other, it would be 
 in self-defence, properly so called. But if the first assault be open 
 malice.^ and the flight be feigned as a pretence for carrying that malice 
 into execution, it would undoubtedly be murder; for the flight rather 
 aggravates the crime, as it shows more deliberation. 1 East, P. C. 
 282. 
 
 Where a person is set to watch premises in the night, and shoots at 
 and kills another who intrudes upon them, the nature of the offence 
 will depend upon the reasonable ground which the party had to sus- 
 pect the intentions of the trespasser. Any person, said Garrow, B., 
 in a case of this kind, set by his master to watch a garden or yard, 
 is not at all justified in shooting at, or injuring in any way, persons 
 who may come into those premises even in the night ; and if he saw 
 them go into his master's hen-roost, he would still not be justified 
 in *shooting them. He ought first to see if he could not r*^ 49 
 take measures for their apprehension. But here the life of the •- 
 prisoner was threatened ; and if he considered his life in actual dan- 
 ger, he was justified in shooting the deceased as he has done ; but if, 
 not considering his own life in danger, he rashly shot this man, who 
 was only a trespasser, he will be guilty of manslaughter. R. v. Scully, 
 1 a &P. 319, 12E. C.L. 
 
 In the following case, Bayley, J., seems to have been of opinion 
 that a lodger does not enjoy the privilege which, as above stated, is 
 possessed by the owner of a house, of standing to its protection, with- 
 out retreating. Several persons tried to break open the door of a 
 house in which the prisoner lodged. The prisoner opened the door, 
 and he and the parties outside began to fight. The prisoner was taken 
 into the house again by another person, but the parties outside broke 
 open the door in order to get at the prisoner, and a scuffle again ensued, 
 in which the deceased was killed by the prisoner with a pair of iron 
 tongs. There was a back door through which the prisoner might 
 have escaped, but it did not appear that he knew of it, having only 
 come to the house the day before. Bayley, J., said, " If you are of 
 opinion that the prisoner used no more violence than was necessary 
 to defend himself from the attack made upon him, you will acquit 
 him. The law says a man must not make an attack upon others 
 unless he can justify a full conviction in his own mind that, if he does 
 not do so, his own life will be in more danger. If the prisoner had 
 known of the back door, it would have been his duty to go out back- 
 59
 
 930 MANSLAUGHTER. 
 
 wards, in order to avoid the conflict." R. v. Dakin, 1 Lewin, C. C. 
 166. 
 
 Upon an indictment for manslaughter it apj^eared, that the deceased 
 and his servant insisted on placing corn in the prisoner's barn, which 
 she refused to allow ; they exerted force, a scuffle ensued, in which the 
 prisoner received a blow on the breast : whereupon she threw a stone 
 at the deceased, upon which he fell down, and was taken up dead. 
 Holroyd, J., said, " The case fails on two points : it is not proved 
 that the death was caused by the blow, and if it had been, it appears 
 that the deceased received it in an attempt to invade the prisoner's 
 barn against her will. She had a right to defend the barn, and to 
 employ such force as was reasonably necessary for that purpose, and 
 she was not answerable for any unfortunate accident that might happen 
 in so doing." The prisoner was acquitted. R. v. Hinchcliffe, 1 Lewin, 
 C. C. 161. For cases where the offence amounted to murder, see postf 
 tit. " Murder."
 
 MANUFACTURES. 931 
 
 *MANUFACTURES. 
 
 [*743 
 
 Destroying goods in process of manufacture. By the 24 & 25 
 
 Vict. c. 97, s. 14, " whosoever shall unlawfully and maliciously cut, 
 break or destroy, or damage with intent to destroy or to render useless, 
 any goods or articles of silk, woollen, linen, cotton, hair, mohair or 
 alpaca, or of any one or more of those materials mixed with each other 
 or mixed with any other material, or any framework-knitted piece, 
 stocking hose or lace, being in the loom or frame, or on any machine 
 or engine, or on the rack or tenters, or in any stage, process or pro- 
 gress of manufacture, or shall unlawfully and maliciously cut, break 
 or destroy, or damage with intent to destroy or to render useless, any 
 warp or shute of silk, woollen, linen, cotton, hair, mohair or alpaca, 
 or of any one or more of those materials mixed with each other, or 
 mixed with any other material, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any term not less than three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labor, and with or without solitary con- 
 finement, and, if a male under the age of sixteen vears, with or with- 
 out whipping." 
 
 Stealing goods in the process of manufacture. By the 24 & 25 
 
 Vict. c. 96, s. 62, "whosoever shall steal to the value of ten shillings 
 any woollen, linen, hempen or cotton yarn, or any goods or articles of 
 silk, woollen, linen, cotton, alpaca or mohair, or of any one or more 
 of those materials mixed with each other, or mixed with any other 
 material, whilst laid, placed or exposed, during any stage, process 
 or progress of manufacture, in any building, field or other place, 
 shall be guilty of felony, and being convicted thereof shall be liable, 
 at the discretion of the court, to be kept in penal servitude for any 
 term not exceeding fourteen years, and not less than three [now five] 
 years, or to be imprisoned for any term not exceeding two years, with 
 or without hard labor, and with or Avithout solitary confinement." 
 
 Where on an indictment under the (repealed) statute 18 Geo. 2, c. 
 27, for stealing yarn from a bleaching ground, it appeared that the 
 yarn at the time it was stolen was in heaps for the purpose of being 
 carried into the house, and was not spread out for bleaching, Thomp- 
 son, B., held that the case was not Avithin the statute. R. v, Hugill, 
 2 Russ. Cri. 436, 5th ed. So where the indictment was for stealing 
 ca.lico, placed to be printed and dried in a certain building, it was 
 held, that, in order to support the capital charge, it was necessary to 
 prove that the building i'rom which the calico was stolen was used 
 either for drying or printing calico. R. v. Dixon, R. & R. 53. But 
 it is to be observed, that the statute under which this case was
 
 932 MANUFACTURES. 
 
 decided meutioned particularly a building, etc., made use of by 
 any calico printer, etc., for printing, wiiitening, booking, bleaching or 
 dyeing. It has been decided that goods remain in a " stage, process 
 or progress of manufacture," within the meaning of the former statute, 
 the 7 A 8 Geo. 4, c. 30, s. 3 (now repealed), though the texture be 
 complete, if they are not yet brought iuto a condition for sale. K. v. 
 Woodhead, 1 Moo. & R. 549.
 
 MINES. 933 
 
 *MINES. r*744 
 
 Setting fire to a coal mine. See 24 & 25 Vict. c. 97, ss. 26, 27, 
 supra, p. 287. 
 
 Conveying water into a mine, obstructing the shaft, etc. By the 
 24 & 25 Vict. c. 97, s. 28, " whosoever shall unlawfully and mali- 
 ciously cause any water to be conveyed or run into any mine, or into 
 any subterraneous passage communicating therewith, with intent 
 thereby to destroy or damage such mine, or to hinder or delay the 
 working thereof, or shall with the like intent unlawfully and mali- 
 ciously pull down, fill up or obstruct, or damage with intent to 
 destroy, obstruct or render useless, any airway, waterway, drain, pit, 
 level or shaft of or belonging to any mine, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding seven 
 years and not less than three [now five] years, or to be imprisoned for 
 any term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement, and, if a male under the age of 
 sixteen years, with or without whipping : provided that this provision 
 shall not extend to any damage committed underground by any owner 
 of any adjoining mine in working the same, or by any person duly 
 employed in such working," 
 
 Damaging steam-engines, staiths, wagon-ways, etc., for working 
 mines. By s. 29, " whosoever shall unlawfully and maliciously pull 
 down or destroy or damage with intent to destroy or render useless, 
 any steam-engine or other engine, for sinking, draining, ventilating 
 or working, or for in anywise assisting in sinking, draining, venti- 
 lating or working any mine or any appliance or apparatus in con- 
 nection with any such steam or other engine, or any staith, building, 
 or erection used in conducting the business of any mine, or any bridge, 
 wagon-way or trunk for conveying minerals from any mine, whether 
 such engine, staith, building, erection, bridge, wagon-way, or trunk 
 be completed, or in an unfinished state, or shall unlawfully and mali- 
 ciously stop, obstruct or hinder the working of any such steam or 
 other engine, or of any such appliance or apparatus as aforesaid, with 
 intent thereby to destroy or damage any mine, or to hinder, obstruct 
 or delay the working thereof, or shall unlawfully and maliciously 
 wholly or partially cut through, sever, break or unfasten, or damage 
 with intent to destroy or render useless any rope, chain, or tackle, of 
 whatsoever material the same shall be made, used in any mine, or in 
 or upon any inclined plane, railway or other way, or other work what- 
 soever, in anywise belonging or appertaining to or connected with or 
 employed in any mine or the working or business thereof, shall
 
 934 ^ MINES. 
 
 be guilty of felony, and being convicted thereof, shall bo liable, at the 
 discretion of the court, to be kept in penal servitude for any term 
 not exceeding seven years, and not less tlian three [now five] years, or 
 to be imprisoned for any term not exceeding two years, with or 
 ^_,p.-| * without hard labor, and with or without solitary confinement, 
 '^J and if a male under tiie age of sixteen years, with or without 
 whipping." 
 
 As to riotously damaging machinery used in mines, see 24 & 25 
 Vict. c. 97, ss. 11, 12, infra, tit. ''Riot." 
 
 Larceny ffom mines. By the 24 & 25 Vict. c. 9G, s. 38, " Avho- 
 soever shall steal, or sever with intent to steal, the ore of any metal or 
 any lapis calaminaris, manganese or mundick, or any wad, black cawke, 
 or blacklead, or any coal or cannel coal, from any mine, bed or vein 
 thereof respectively, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be imprisoned 
 for any term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement." 
 
 Miners removing ore with intent to defraud. By s. 39, " who- 
 soever, being employed in or about any mine, shall take, remove or 
 conceal any ore of any metal, or any lapis calaminaris, manganese, 
 mundick, or other mineral found or being in such mine, with intent 
 to defraud any proprietor of or any adventurer in such mine, or 
 any workman or miner employed therein, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be imprisoned for any term not exceeding two years, with or 
 without hard labor, and with or without solitary confinement." 
 
 Venue. See, as to offences under the 24 & 25 Vict. c. 96, mpra, 
 pp. 643, 692. 
 
 Malice against owner of property injured unnecessarily. See 
 
 24 & 25 Vict. c. 97, s. 58, mpra, p. 289. 
 
 Persons in possession of property injured liable to be convicted. 
 See 24 & 25 Vict. c. 97, s. 59, supra, p, 289. 
 
 Porm of indictment for injury. See 24 & 25 Vict. c. 97, s. 60, 
 supra, p. 289. In an indictment under this section the mine may be 
 laid as the property of the person in possession and working it, though 
 only an agent for others. R. v. Jones, 2 Moo. C. C. 293. 
 
 Proof of injury to mine. The provisions of 24 & 25 Vict. c. 97, 
 ss. 28, 29, do not render a person criminally liable for acts causing 
 such damage, but done in bond fide exercise of a supposed right, and 
 without a wicked mind. R. v. Matthews, 14 Cox, C. C. 5. AVhere A. 
 and B. were the owners of adjoining collieries, and A., asserting that
 
 MINES. 
 
 935 
 
 a certain airway belonged to him, directed his workmen to stop it up, 
 and they acting 6ondyid6, and believing that A had a right to give 
 such an order,"did so. Lord Abinger, C. B held they^ere no guilty 
 of felony under the above section. R. v. James, 8 C. & ^-/^^^ f^ 
 E C L But if such workmen knew that the stopping up ol the air- 
 way was a malicious act of their master, such workmen would be 
 guilty of felony. Id.
 
 936 MURDER, 
 
 *746] 
 
 MTTEDER, 
 
 PAGB 
 
 Punishment .•*.*. 747 
 
 Sentence for murder • . . 747 
 
 Body to be buried in prison 747 
 
 Conspiring or soliciting to commit murder , . . . . 747 
 
 Form of indictment • . . 747 
 
 Petit treason abolished 747 
 
 Venue in cases of murder, etc., committed abroad .... 747 
 
 Child murder 747 
 
 Punishment of accessory after the fact of murder .... 747 
 
 Proof of a murder having been committed 748 
 
 of the murder — party killed 749 
 
 that the prisoner was the party killing 751 
 
 of the means of killing ....*... 754 
 
 variance in statement 760 
 
 Proof of malice — in general 760 
 
 Death ensuing in the performance of an unlawful or wanton 
 
 act 761 
 
 Wilful neglect of duty 763 
 
 Neglect or ill-treatment of infants, and others . . . 764 
 
 Death caused by negligence 768 
 
 Correction of child by parents and others .... 769 
 
 Dangerous assaults 769 
 
 Provocation in general 770 
 
 By words or gestures only ,..•.* 770 
 
 By assault 772 
 
 Where an instrument is used 774 
 
 By third parties ........ 776 
 
 Must be recent 777 
 
 Drunkenness ....*... 782 
 
 Express malice 783 
 
 Cases of mutual combat 784 
 
 Duelling ... 787 
 
 Peace officers and private persons killed or killing others in appre- 
 hending them 789 
 
 Peace officer killed or killing others in apprehending them • . 789 
 
 When the peace officer is protected 789 
 
 Regularity of process , . 791 
 
 Notice of their authority 795 
 
 Mode of executing their duty 796 
 
 Mode (where an officer has been killed) in which that killing 
 
 has been effi^cted . , 800 
 
 Impressment of seamen , . . . 802 
 
 Killing in defence of property , 804 
 
 Proof in cases of felo de se 806 
 
 Accessories 808 
 
 ^- .^-| *Punishment. By the 24 & 25 Yict. c. 100, s. 1, "whoso- 
 J ever shall be convicted of murder, shall suffer death as a 
 felon." 
 
 Sentence for murder. By s. 2, " upon every conviction for murder 
 the court shall pronounce sentence of death, and the same may be car- 
 ried into execution, and all other proceedings upon such sentence and 
 in respect thereof may be had and taken, in the same manner in all 
 respects as sentence of death might have been pronounced and carried 
 into execution, and all other proceedings thereupon, and in respect
 
 MURDER. 937 
 
 thereof might have been had and taken, before the passing of this 
 Act, upon a conviction for any other felony for which the prisoner 
 might have been sentenced to suffer death as a felon." 
 
 Body to be buried in prison. By s. 3, " the body of every person 
 executed for murder shall be buried within the precincts of the prison 
 in which he shall have been last confined after conviction, and the 
 sentence of the court shall so direct." 
 
 Conspiring or soliciting to commit murder. See 24 & 25 Vict. c. 
 100, s. 4, supra, p. 43G. 
 
 Form of indictment. By the 24 & 25 Vict. c. 100, s. 6, "in any 
 indictment for murder or manslaughter, or for being an accessory to 
 any murder or manslaughter, it shall not be necessary to set forth the 
 manner in which, or the means by which, the death of the deceased 
 was caused, but it shall be sufficient in any indictment for murder to 
 charge that the defendant did feloniously, wilfully, and of his malice 
 aforethought kill and murder the deceased ; and it shall be sufficient 
 in any indictment for manslaughter to charge that the defendant did 
 feloniously kill and slay the deceased ; and it shall be sufficient in any 
 indictment against any accessory to any murder or manslaughter to 
 charge the principal with the murder or manslaughter (as the case may 
 be) in the manner hereinbefore specified, and then to charge the 
 defendant as an accessory in the manner heretofore used and accus- 
 tomed."^ 
 
 Petit treason abolished. By s. 8, "every offence which before the 
 commencement of the Act of the ninth year of King George the 
 Fourth, chapter thirty-one, would have amounted to petit treason, 
 shall be deemed to be murder only, and no greater offence ; and all 
 persons guilty in respect thereof, whether as principals or as accesso- 
 ries, shall be dealt with, indicted, tried, and punished as principals and 
 accessories in murder." 
 
 Venue in case of murder committed abroad. See 24 & 25 Vict. 
 e. 100, s. 9, ante, p. 258. 
 
 Child murder. By s. 60, "if any person tried for the murder of 
 any child shall be acquitted thereof, it shall be lawful for the jury, by 
 whose verdict such person shall be acquitted, to find in case it shall so 
 appear in evidence, that the child had recently been born, and that 
 such person did by some secret disposition of the dead body of such 
 child, endeavor to conceal the birth thereof, and thereupon the court 
 may pass such sentence as if such person had been convicted upon an 
 indictment for concealment of the birth." See p. 400. 
 
 Punishment of accessory after the fact to murder. By s. 67, 
 
 ^ An indictment for murder is defective, which does not allege that the prisoner 
 "killed " the deceased. Pierce v. State, 21 Tex. A pp. 669.
 
 938 MURDEE. 
 
 *7zi«l "every *accessory after the fact to murder shall be liable, at 
 J the discretion of the court, to be kept in penal servitude for 
 life, or for any term not less than three [now five] years, or to be 
 imprisoned for any term not exceeding two years, with or without hard 
 labor." 
 
 Proof of a murder having been committed. The corpus delicti, 
 that a murder had been committed by some one, is essentially neces- 
 sary to be proved ; and Lord Hale advises that in no case should 
 a prisoner be convicted, where the dead body has not been found — 
 where the fact of murder depends upon the fact of disappearance, 
 ante, p. 16.^ 
 
 A girl was indicted for the murder of her child, aged sixteen days. 
 She was proceeding from Bristol to Llandogo, and she was seen 
 near Tintern with the child in her arms, at six o'clock in the even- 
 ing ; she arrived at Llandogo between eight and nine without the 
 child. The body of a child was afterwards found in the Wye, near 
 Tintern, which appeared not to be the child of the prisoner. Lord 
 Abinger, C. B., held that the prisoner must be acquitted, and that 
 she could not by law either be called upon to account for her child, 
 or to say where it was, unless there was evidence to show that her 
 child was actually dead. R. v. Hopkins, 8 C. & P. 591, 34 E. C. L. 
 
 Where the death has been occasioned in secrecy, says Mr. Starkie, 
 a very important preliminary question arises whether it has not re- 
 sulted from accident, or from the act of the party himself. It some- 
 times happens that a person determined on self-destruction, resorts to 
 expedients to conceal his guilt, in order to save his memory from dis- 
 honor, and his property from forfeiture. Instances also have occurred 
 where, in doubtful cases, the surviving relations have used great exer- 
 tions to rescue the character of the deceased from ignominy by sub- 
 stantiating a charge of murder. R. v. Cowper, 13 How. St. Tr. 1106. 
 On the other liand, in frequent instances, attempts have been made by 
 those who have really been guilty of murder, to perpetrate it in such 
 a manner as to induce a belief that the party was felo de se. AVhere 
 the circumstances are natural and real, and have not been counterfeited 
 with a view to evidence, they must necessarily correspond and agree 
 with each other, for they did really so co-exist ; and therefore if any 
 one circumstance, which is essential to the case attempted to be estab- 
 lished, be wholly inconsistent and irreconcilable with such other cir- 
 cumstances as are known or admitted to be true, a plain and certain 
 inference results that fraud and artifice have been resorted to, and that 
 
 » Tyner ii. State, 5 Humph. 383. [People v. Hall, 48 Mich. 482.] It is not essential 
 to a conviction for murder that the body of the deceased be found. Stocking v. State, 
 7 Ind. 326 ; People v. Ruloff, 3 Parker, C. E. 401 ; Kuloff v. People, 4 Smith, 179 ; 
 State V. William, 7 Jones's Law, 446. In murder, the body of the deceased must be 
 identified. Smith v. State, 21 Gratt. 809. S. 
 
 This may be done by proof of occupation, as well as by proof of Christian names. 
 Shepherd v. State, 72 111. 480. As to the identification of a skeleton. Wilson v. 
 State, 43 Tex. 472. The defendant's unsupported confession is not sufficient evi- 
 dence of the corpus ddiclL People v. Lane, 49 Mich. 340. But see State v. Patterson, 
 73 Mo. 695. South v. People, 98 111. 261 ; State v. German, 54 Mo. 526.
 
 MURDER. 939 
 
 the hvpotliesis to which such a circumstance is essential cannot be true. 
 2 Stark. Ev. 521, 2nd ed. 
 
 The question, observes Mr. Starkie, whether a person has died a 
 natural death, as from apoplexy, or a violent one, as from strangu- 
 lation, whether the death of a person found immersed in water, has 
 been occasioned by drowning, or by force and violence previous to the 
 immersion (see R. V. Co wper, 13 How. St. Tr. 1106), whether the 
 drowning was voluntary or the result of force, whether the wounds 
 inflicted on the body were inflicted before or after death, are questions 
 to be decided by medical skill.^ It is scarcely necessary to remark, 
 that where a reasonable doubt arises whether the death resulted, on the 
 one hand, from natural or accidental causes, or, on the other, from 
 the deliberate and wicked act of the prisoner, it would be unsafe to 
 convict him, notwithstanding strong, but merely circumstantial, evi- 
 dence against him. Even medical skill is not in many instances, 
 and without reference to the particular circumstances of the case 
 ♦decisive as to the cause of the death ; and persons of science r^^^q 
 must, in order to form their own conclusion and opinion, rely ■- 
 partly on external circumstances. It is, therefore, in all cases expe- 
 dient that all the accompanying facts should be observed and noted 
 with the greatest accuracy ; such as the position of the body, the state 
 of the dress, marks of blood, or other indications of violence : and in 
 cases of strangulation, the situation of the rope, the position of the 
 knot ; and also the situation of any instrument of violence, or of any 
 object by wliich, considering the position and state of the body, and 
 other circumstances, it is possible that the death may have been acci- 
 dentally occasioned.'^ 2 Stark. Ev. 521, 2nd ed. 
 
 Proof of the murder — as to the party killed. A child in the 
 womb is considered pars viscerum matris, and not possessing an indi- 
 vidual existence, and cannot therefore be the subject of murder. Thus, 
 if a woman, quick or great with child, take a potion to procure abor- 
 tion, or if another give her such potion, or strike her, whereby the 
 child within her is killed, it is neither murder nor manslaughter. 1 
 
 ' The presumption of law that a person fonnd dead has not committed suicide does 
 not apply to the case of an insane person, (ierraain v. Brooklyn Life Ins. Co., 26 
 Hun, (N. Y.) 604. It is error for the court to instruct the jury barely, that a tend- 
 ency to commit suicide does not prove insanity. If properly qualified it may be un- 
 objectionable. People V. Messersmith, 61 Cal. 246. Where on a trial for murder the 
 defence is that the deceased committed suicide, evidence may be given of the melan- 
 choly disposition and threats to commit suicide made by her even six years before. 
 The remoteness of tlie period goes merely to the weight and not to the competency of 
 the testimony. Blackburn v. State, 23 Ohio St. 146. 
 
 ^ When death is caused by a wound received, the person who inflicts it is responsi- 
 ble for its consequences, though the deceased might have recovered by the exercise of 
 more care and prudence. McCallister v. State, 17 Ala. 434. When a surgical opera- 
 tion is performed in a proper manner, and under circumstances which render it neces- 
 sary in the opinion of competent surgeons, upon one who has received a wound appar- 
 ently mortal, and such operation is ineffectual to allord relief and save the life of the 
 patient, or is itself the immediate cause of death, the party inflicting the wound will 
 nevertlieless be responsible for the consequences. Commonwealth v. McPike, 3 Cush. 
 181. S.
 
 940 MURDER. 
 
 Hale, P. C. 433. Whether or not a child was born alive, is a proper 
 question for the opinion of medical men. Where a woman was in- 
 dicted for the wilful murder of her child, and the opinion of the 
 medical men was that it had breathed, but they could not take upon 
 themselves to say whether it was wholly born alive, as breathing may 
 take place before the whole delivery is completed, Littledale, J., said, 
 that, with respect to the birth, the being born must mean that the 
 whole body is brought into the world, and that it is not sufficient that 
 the child respire in the progress of its birth. R. v. Poulton, 5 C. & P. 
 329, 24 E. C. L. The authority of this decision was recognized by 
 Park, J., in R. v. Brain, where he said, "a child must be actually 
 wholly in the world, in a living state, to be the subject of a charge of 
 murder ; but if it has been wholly born, and is alive, it is not essen- 
 tial that it should have breathed at the time it was killed, as many 
 children are born alive and yet do not breathe for some time after 
 their birth. But the jury must be satisfied that the child was wholly 
 born into the world before it was killed, or they cannot find the pris- 
 oner guilty of murder;" and he cited R. v. Poulton (supra); R. v. 
 Brain, 6 C. & P. 349, 25 E. C. L. In another case, Mr. Justice 
 James Parke ruled the same way, saying that a child might breathe 
 before it was born, but that its having breathed was not sufficient to 
 make the killing murder, and that there must have been an indepen- 
 dent circulation in the child, or that it could not be considered as alive 
 for this purpose. R. v. Pulley, 5 C. & P. 539, 24 E. C. L. See also 
 R. V. Wright, 9 C. & P. 754, 38 E. C. L. So Avhere the prisoner was 
 charged with the murder of her new-born child, by cutting off its 
 head, Coltman, J., held that in order to justify a conviction for mur- 
 der, the jury must be satisfied that the entire child was actually born 
 into the world in a living state, and that the fact of its having breathed 
 was not a decisive proof that it was born alive, as it might have 
 breathed and yet died before birth. R. v. Sellis, 7 C. & P. 850, 32 
 E. C L. Where an indictment charged, that the prisoner being big 
 with child, did bring forth the child alive, and afterwards strangled 
 it : Parke, B., held, that in order to convict upon an indictment so 
 framed, the jury must be satisfied that the whole bod}^ of the child 
 had come forth from the body of the mother when the ligature was 
 applied. The learned baron added, that if the jury should be of 
 *7^C\'\ opiuion that *the child was strangled intentionally, while it 
 -• was connected with the umbilical cord to the mother, and after 
 it was wholly produced, he should direct them to convict the prisoner, 
 and reserve the point, his impression being that it would be murder if 
 those were the facts of the case. The prisoner was acquitted. R. v. 
 Crutchley, 7 C. & P. 814, 32 E. C. L. See R. v. Senior, post; also 
 R. V. Reeves, 9 Carr. & P. 25, 38 E. C. L. In R. v. Trilloes, 2 Moo. 
 C. C. 260, it was held that murder may be committed on a child still 
 attached to the mother by the navel string. 
 
 It is said by Lord Hale, that if the child be born alive, and after- 
 wards die in consequence of the blows given to the mother, this is 
 not homicide. 1 Hale, P. C. 433. And see 5 Taunt. 21, 1 E. C. L.
 
 MURDER. 941 
 
 But Lord Coke, on the contrary, says, that if the child be born 
 alive, and die of the potion, battery, or other cause, this is murder. 
 3 Inst. 50. The latter is generally regarded as the better opinion, 
 and has been followed by modern text writers. Hawk. P. C. b. 1, c. 31, 
 s. 16 ; 4 Bl. Com. 198; 1 Buss. Cri. 646, 5th ed. See 5 C. & P. 
 641 (n), 24 E. C. L. And in conformity with the same opinion, the 
 case of R. V. Senior, 1 Moo. C. C. 346, was decided. See ante, p. 
 734. 
 
 A\^here the indictment was for the murder of " a certain female 
 child, whose name was to the jurors unknown," and it appeared that 
 the child was twelve days old, and that the child's mother had said 
 she should like to have it called " Mary Anne," and on two occasions 
 had called it by that name; the prisoner having been convicted, the 
 judges held the conviction right. R. v. Smith, 6 C. & P. 151, 25 
 E. C. L. Where the deceased was described as " George Lakeman 
 Clark," and it was proved, that being a bastard child, he had been bap- 
 tized " George Lakeman " (the name of his reputed father), and there 
 was no evidence that he had obtained, or was called by the mother's 
 name of Clark, the variance was held fatal. R. v. Clark, Russ. & Ry. 
 358. With regard to what is sufficient evidence of a child being 
 known by a certain name, it was said by Burrough, J., " It is proved 
 by one of the witnesses that she should have known him by that 
 name. It cannot be necessary that all the world should know him by 
 that name, because children of so tender an age are hardly known at 
 all, and are generally called by a Christian name only." R. v. Sheen, 
 2 C. & P. 639, 12 E. C. L. The prisoner was charged with the 
 murder of Eliza Waters, and it appeared that the deceased (who was 
 about ten days old) was her illegitimate child, and the only evidence 
 given of the name was by a witness, who stated, " the child was called 
 Eliza. I took it to be baptized, and said it was Eleanor Waters' child." 
 It being objected that there was no evidence of the child's surname of 
 Waters, Lord Denman, C. J., reserved the point, and the prisoner, who 
 had been convicted, was afterwards pardoned. R. v. Waters, 7 C. & P. 
 250, 32 E. C. L. An illegitimate child, six weeks old, was baptized 
 on a Sunday and from that day to the following Tuesday it was called 
 by its name of baptism and its mother's surname. Erskine, J. (after 
 consulting Patteson, J.) held, that the evidence was quite sufficient to 
 warrant the jury in finding that the deceased was properly described 
 by those names in the indictment, which was for murder. R. v. Evans, 
 8 C. & P. 765, 34 E. C. L. Where an indictment against a married 
 woman for the murder of her illegitimate child, stated that she, " in 
 and upon a certain infant male child of tender age, to wit, of the age 
 of six weeks, and not baptized, feloniously and Avilfully," etc., did 
 make an assault, etc. It was objected that the child being born in 
 * wedlock, ought to have been described by the surname of the r^ne:-i 
 father, or, at least, to have been described as a certain child to L 
 the jurors unknown. The point being reserved for the consideration 
 of the judges, they unanimously held, that the deceased was insuf- 
 ficiently described. R. v. Biss, 8 C. & P. 773, 34 E. C. L.; 2 Moo.
 
 942 MURDER. 
 
 C. C. 93. An indictment for the murder of a bastard child, described 
 as Harriet Stroud, is not sustained by proof of a child christened 
 Harriet, and only called by that name, though the mother's name was 
 Stroud. The proper description is Harriet. A child, " whose name 
 is to the jurors unknown," is not "good," because the name of Harriet 
 was known. R. v. Stroud, 2 Moo. C. C. 270 ; I Q. & K. 187, 47 E. 
 C L. See R. v. Hick, 2 JNIoo. & R. 302. But where the prisoners 
 were indicted for the murder "of a certain illegitimate male cliikl, then 
 late before born of the body of the said J. H.," and the fact as proved 
 in evidence was, that the child had been destroyed by tiie prisoners al- 
 most instantly after its birth ; Lord Denman, C. J., held, that the de- 
 scription was sufficient, observing tliat this was not the case of a party 
 whose name was unknown, but of one who had never acquired a name, 
 and the indictment identified the party by showing the name of its 
 parent. R. v. Hogg, 2 Moo. & R. 380. This ruling was confirmed 
 by the case of R. v. Willis, 1 Den. C. C. R. 80. Where a prosecutor 
 has been baptized by one Christian name, and confirmed by a different 
 one, and has not acquired the former by common reputation, a de- 
 scription of him in an indictment by such baptismal name is erroneous. 
 R. V. Smith, 1 Cox, C. C. 248. Where the indictment charged the 
 prisoner with the murder of "a female bastard child," it was held that 
 proof of its being illegitimate lay upon the prosecutor, but that evi- 
 dence of the prisoner having told a person, that she had only told of 
 her being with child to the father of it, who had lately got married, 
 was sufficient evidence to suj)port the allegation. R. v. Poulton, 5 C. 
 & P. 329, 24 E. C. L. 
 
 As to the power of the court to amend for a variance between 
 the indictment and the evidence, see 14 & 15 Vict. c. 100, s. 1, antej 
 p. 192. 
 
 Proof that the prisoner was the party killing. When it has been 
 clearly established, says Mr. Starkie, that the crime of wilful murder 
 has been perpetrated, the important fact, whether the prisoner was the 
 guilty agent, is, of course, for the consideration of the jury, under all 
 the circumstances of the case. Circimistantial evidence in this, as in 
 other criminal cases, relates principally, — 1st, To the probable motive 
 which might have urged the prisoner to commit so heinous a crime :^ 
 
 'Thus the State may show in evidence that there has been a previous altercation 
 between the deceased and the defendant. Thompson r. State, 55 Ga. 47. Threats of 
 defendant against deceased are admissible witliout limit as to time. United States v. 
 Neverson, 1 .Alackey (D. C.) 152; Redd ?\ State, 68 Ala. 492. (But these tlireats must 
 be personal, not merely against a certain class or race. Id.) State r. Edwards, 84 
 La. An. 1012; State v. Adams, 76 Mo. 355; Schoolcraft v. People, 117 111. 271. So 
 also evidence of a feud or old grudge. Coxwell r. State, 66 Ga. 309. Both in chief 
 and in rebuttal. State v. TalboU, 73 Mo. 347 ; State r. Brown, 63 Mo. 439. Con- 
 versations of the defendant proposing to commit a robborv on the deceased are ad- 
 missible. Stafford r. State, 55 Ga. 591. Wliatever tends to sliow defendant's feeling 
 towards the pei-son killed is admissible. People i\ Kern, 61 Cal. 244 ; Marler v. State, 
 67 Ala. 55; Powell 7-. State, 13 Tex. App. 244 ; State v. Gooch, 94 N. C. 987. But 
 there must be something to connect the fact with defendant. Evidence of a criminal 
 intimacy between deceased and defendant's wife not brnuglit to prisoners knowledge 
 before the killing is inadmissible. Polin c. State, 14 Neb. 540 ; Gardner v. State, 11
 
 MUEDER. 943 
 
 for, however strongly other circumstances may weigh against the 
 prisoner, it is but reasonable, in a case of doubt, to expect that some 
 motive, and that a strong one, should be assigned as his induce- 
 ment to commit an act from which our nature is abhorrent, and 
 the consequence of which is usually so fatal to the criminal. 2ndly, 
 The means and opportunity which he possessed for perpetrating the 
 oifence.^ Srdly, His conduct in seeking for opportunities to commit 
 the offence, or in afterwards using means and precautions to avert 
 suspicion and inquiry, and to remove material evidence.^ The case 
 cited by Lord Coke and Lord Hale, and which has already been ad- 
 verted to, is a melancholy instance to show how cautiously proof 
 arising by inference from the conduct of the accused is to be received, 
 where it is not satisfactorily proved by other circumstances, that a 
 *murder has been committed; and even where satisfactory r^^po 
 proof has been given of the death, it is still to be recollected L 
 that a weak, inexperienced, and injudicious person, ignorant of the 
 nature of evidence, and unconscious that the truth and sincerity of in- 
 nocence will be his best and surest protection, and how greatly fraud 
 and artifice, when detected, may operate to his prejudice, will often, in 
 the hope of present relief, have recourse to deceit and misrepresen- 
 tation. 4thly, Circumstances which are peculiar to the nature of the 
 crime, such as the possession of poison, or of an instrument of vio- 
 lence, corresponding with that which has been used to perpetrate the 
 
 Tex. App. 265 ; Commonwealth v. Abbott, 130 Mass. 472. Where the theory of the 
 State is that the murder was committed to enable the prisoner to get his brother's 
 property, evidence of their business and social relations for a reasonable time before 
 IS admissible. Clough t-. State, 7 Neb. 320 ; Murphy v. People, 63 N. Y. 590. Where 
 the State has shown a litigation between the deceased and the accused, the latter can- 
 not enter into the merit of the suit in rebuttal. Commander v. State, 60 Ala. 1. All 
 testimony tending to show motive is material to the issue. Fraser v. State, 55 Ga. 
 325 ; McCue v. Commonwealth, 78 Pa. St. 185. On secret associations and their mo- 
 tives. See Carroll v. Commonwealth, 84 Pa. St. 107 ; Campbell v. Commonwealth, 
 Id. 187 ; Hester v. Commonwealth, 85 Pa. St. 139 ; McManus v. Commonwealth, 91 
 Pa. St. 57 ; Jones v. State, 4 Tex. App. 436. That the murdered wife has applied for 
 a divorce is admissible, but not the allegations supporting the application. Pinck- 
 ford V. State, 13 Texas App. 468. See Billingslea v. State, 68 Ala. 486 ; Binns i'. State, 
 57 Ind. 46. So also that defendant is paramour to a woman whom deceased assaulted 
 in defendant's presence. State v. Lawlor, 28 Min. 216. That there has been an in- 
 dictment found against defendant's brother for theft from deceased. Coward v. State, 
 6 Tex. App. 59. Evidence that defendant knew that there was money on the prem- 
 ises where defendant lived, is admissible when the money has been stolen. Ettinger 
 V. Commonwealth, 98 Pa. St. 338. 
 
 ^ The sayings and admissions of a defendant are admissible whenever they concern 
 a matter material to the issue, e. g., the capacity of the horse he is said to have been 
 riding. Fraser v. State, 55 Ga. 325 ; Clough v. State, 7 Neb. 320 ; Shaw v. State, 60 
 Ga. 246. And where one person is killed in mistake for another, the mistaken identity 
 being established, malice and threats of the defendant towards the person he supposed 
 he was assaulting may be shown, or any quarrel between them, but defendant cannot 
 explain the difficulty. Clark v. State, 78 Ala. 474. 
 
 * State V. Sanders, 76 Mo. 35. Flight or concealment is not conclusive evidence that 
 a homicide is felonious. Waybright v. State, 56 Ind. 122. In connection with other 
 evidence it may sustain a verdict. Williams v. State, 3 Tex. App. 1 23. Evidence is 
 admissible on the trial of a man for the murder of his wife, that he manifested no 
 concern at her death. Greenfield v. State, 85 N. Y. 75. Or that he is criminally in- 
 timate with another woman. St. Louis v. State, 8 Neb. 405.
 
 944 MURDER. 
 
 crime, stains of blood upon tlie dress, or other indications of violence. 
 2 Stark. Ev. 521, 2nd ed.* On a trial for murder, where the case 
 against the prisoner was made up entirely of circumstances, Alderson, 
 B., told the jury, that before they could find the prisoner guilty, they 
 must be satisfied "not only that those circumstances 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 con- 
 clusion than that the prisoner was the guilty party." E.. v. Hodge, 2 
 Lew. C. C. 227.=' 
 
 In order to convict the prisoner of murder it is not necessary to 
 prove that the fatal blow was given by his hand.^ If he was present, 
 aiding and abetting the fact committed, he is a principal in the felony. 
 The presence need not always be an actual immediate standing by, 
 within sight or hearing of the fact. 4 Bl. Com. 34. Thus, if several 
 persons set out together, or in small parties, upon one common design, 
 be it murder or other felony, or for any other purpose unlawful in 
 itself, and each takes the part assigned him, some to commit the fact, 
 others to watch at proper distances and stations to prevent a surprise, 
 or to favor, if need be, the escape of those who are more immediately 
 engaged, they are all, if the fact be committed, in the eye of the law, 
 present at it. Foster, 350. But in order to render a party principal 
 in the felony, he must be aiding or abetting at the fact, or ready to 
 aiford assistance if necessary. Therefore if A. happens to be present 
 
 ^Nichols V. Commonwealth, 11 Bush, (Ky.) 575. The instrument with which it is 
 alleged the crime was committed is always admissible in evidence. Thomas v. State, 
 67 Ga. 460. 
 
 ' It is error for the court to refuse to instruct the jury that "the burden of proof to 
 show the truth of a charge of murder is at all times on the State." Black v. State, 1 
 Tex. App. 368. As to what circumstantial evidence is insufficient to support a ver- 
 dict of guilty. Hogan v. State, 13 Tex. App. 319. What evidence of deliberate in- 
 tent to kill establishes murder in the first degree. Quigley v. Commonwealth, 84 Pa. 
 St. 18; Lanahan r. Commonwealth, Id. 80; Pistorius v. Commonwealth, Id. 158; 
 Linsday v. People, 63 N. Y. 143. What is sufficient evidence of express malice. 
 Kemp V. State, 11 Tex. App. 174 ; Holmes v. State, Id. 223; State v. Clavis, 80 N. C. 353. 
 The possession of stolen property taken at the time the murder was committed is a strong 
 circumstance tending to show guilt. Poe v. State, 10 Lea, (Tenn.) 673. See Bettsr. State, 
 66 Ga. 508. Evidence is admissible that defendant soon after the murder, had much more 
 money in his possession than before. State v. Wintzingerode, 9 Oregon, 153. See 
 Clough V. State, 7 Neb. 320. And that deceased had money in his house. State v. 
 Crowley, 33 La. An. 782. As to the sufficiency of circumstantial evidence to connect 
 the accused with the crime. Brown v. State, 4 Tex. App. 275, 
 
 ' If one throw a bludgeon to another with intent to furnish that other with a deadly 
 weapon to assault, and the assault is made and murder committed, he who threw the 
 bludgeon with such intent is equally guilty with him who struck the blow. Com- 
 monwealth V. Drew et al., 4 Mass. 391. The mere sanction or presence at the com- 
 mission of a homicide, whether passive or constrained, does not render a person guilty 
 of murder. Butler d. Commonwealth, 2 Duv. 435 ; Plumer ?'. Commonwealth, 1 Bush, 
 76. [But where two make an assault, resulting in death, both are principals. People 
 V. Weber, 66 Cal. 391.] If a person fires into a crowd, either for the purpose of kill- 
 ing somebody, or recklessly, it will be murder; if the firing is accidental, it will be 
 only manslaughter. Galliher v. Commonwealth, 2 Duv. 163, The f;ict that the kill- 
 ing was committed by a crowd of persons engaged in a riot, does not distinguish it in 
 kind or degree from other felonious homicides. State v. Jenkins, 14 Kich. Law, 
 215. S.
 
 MURDER. 945 
 
 at a murder, but takes no part in it, nor endeavors to prevent it, nor 
 apprehends the murderer, this, though highly criminal, will not of 
 itself render him either principal or accessory. Foster, 350. But in 
 case of assassination or murder committed in private, the circumstances 
 last stated may be made use of against A., as evidence of consent* or 
 concurrence on his part, and in that light should be left to the jury, 
 if he be put upon his trial. Foster, 350. Where the prisoner is 
 charged M'ith committing the act himself, and it appears to have been 
 committed in his presence by a third person, the indictment is sus- 
 tained.^ Thus, where the indictment charged that the prisoner " with 
 both her hands about the neck of one M. D., suifocated and strangled," 
 etc., and it was doubtful whether the murder was not committed in 
 the prisoner's presence by third persons ; Parke, J., in summing up, 
 said, " If you are satisfied that this child came by her death by suifo- 
 cation or strangulation, it is not necessary that the prisoner should 
 have done it with her own hands ; for if it was done by any other 
 person in her presence, she being privy to it, and so near as to be able 
 to assist, she may be properly convicted on this indictment." R. v. 
 Culkin, 5 C. & P. 121, 24 E. C. L. 
 
 Although where a man goes out with intent to commit a felony, 
 and in the pursuit of that unlawful purpose death ensues, it is 
 murder ; yet, if several go out with a common intent to commit a 
 *felony, and death ensues by the act of one of the party, the rest r^yco 
 will not necessarily be guilty of murder. If three persons, says L 
 Parke, J., go out to commit a felony, and one of them, unknown to the 
 others, puts a pistol in his pocket, and commits a felony of another kind, 
 such as murder, the two who did not concur in this second felony, 
 will not be guilty of it, notwithstanding it happened while they were 
 engaged with him in the felonious act for which they went out. 
 R. V. Duffey, 1 Lewin, C. C. 1 94. Three soldiers Avent together to rob 
 an orchard ; two got upon a pear tree, and the third stood at the gate 
 with a drawn sword in his hand. The owner's son, coming by, col- 
 lared the man at the gate, and asked him what business he had there, 
 whereupon the soldier stabbed him. It was ruled by Holt, C. J., to 
 be murder in him, but that those in the tree were innocent. They 
 came to commit an inconsiderable trespass, and the man was killed 
 on a sudden affray without their knowledge. It would, said Holt, 
 have been otherwise if they had come thither with a general resolu- 
 tion against all opposers. This circumstance, observes Mr. Justice 
 Foster, would have shown that the murder was committed in pros- 
 ecution of their original purpose. But that not appearing to have 
 been the case, those in the tree were to be considered as mere tres- 
 passers. Their offence could not be connected with that of him who 
 committed the murder. Foster, 353. The following is a leading 
 case on the subject. A great number of persons assembled at a 
 house called Sissinghurst, in Kent, and committed a great riot and 
 battery upon the possessors of a wood adjacent. One of their names, 
 viz., A., was known, but the rest were not known, and a warrant was 
 1 Davis V. State, 3 Tex. App. 91. 
 
 60
 
 946 MURDER. 
 
 obtained from a justice of the peace to apprehend the said A. and 
 divers persons unknown, who were all together in Sissinghurst-house. 
 The constable, with sixteen or twenty other persons, his assistants, went 
 with the warrant to the house, demanded entrance, and acquainted 
 some of the persons within that he was a constable, and came with 
 the justices' warrant, demanding A. and the rest of the offenders who 
 were in the house. One of the persons from within coming out, read 
 the warrant, but denied admission to the constable, or to deliver A. 
 or any of the malefactors, but going in, commanded the rest of the 
 company to stand to their staves. The constable and his assistants, 
 fearing mischief, went away, and being about five rods from the door, 
 several persons, about fifteen in number, issued out, and pursued the 
 constable and his assistants. The constable commanded the peace, 
 but they fell on his company, killing one and wounding others, and 
 they then retired into the house to their companions, of whom A. 
 and one G., who read the Avarrant, were two. For this, A. and G. 
 with those who had issued from the house, and others, were indicted 
 for murder, and these points were resolved by the court of K. B. 
 ]. Tliat although the indictment was that B. gave the stroke, and 
 the rest were present aiding and assisting, and though in truth C. 
 gave the stroke, or it did not appear upon the evidence which of 
 them gave it, but only that it was given by one of the rioters, yet 
 that such evidence was sufficient to maintain the indictment, for in 
 law it was the stroke of all the party, according to the resolution in 
 R. V. Mackalley (9 Co. 67 b.) 2. That, in this case all that were present 
 and assisting the rioters were guilty of the death of the party slain, 
 though they did not all actually strike him or any of the constable's 
 company. 3. That those within the house, if they abetted or coun- 
 selled the riot, were in law present, aiding and assisting, and 
 ^__ .-, *principals, as well as those that issued out and actually com- 
 J mitted the assault, for it was but within five rods of the house, 
 and in view of it, and all done as it were at the same instant. 4. That 
 there was sufficient notice that it Avas the constable, before the man was 
 killed ; because he was the constable of the village; and because he 
 notified his business at the door before the assault ; and because, after 
 his retreat, and before the man was slain, he commanded the peace. 
 5. It was resolved that the killing the assistant of the constable was 
 murder, as well as the constable himself. 6. That those who came 
 to the assistance of the constable, though not specially called thereto, 
 were under the same protection as if they had been called to his 
 assistance by name. 7. That though the constable retired with his 
 company upon the non-delivery up of A., yet the killing of the 
 assistant in that retreat was murder ; because the retreat was one 
 continued act in pursuance of his office, being necessary when he 
 could not attain the object of his warrant ; but principally because the 
 constable, in the beginning of the assault, and before the man was 
 struck, commanded the peace. In the conclusion the jury found nine 
 of the prisoners guilty, and acquitted those within, not because they 
 were absent, but because there was no clear evidence that they con-
 
 MURDER. 947 
 
 sented to the assault, as the jury thought. SIssInghurst-house case, 
 1 Hale, P. C. 461. 
 
 Although tlie criminal intent of a single person, who, without the 
 knowledge or assent of his companions, is guilty of homicide, will 
 not involve them in his guilt, yet it is otherwise where all the party 
 proceed with an intention to commit an unlawful act, and with a 
 resolution at the same time to overcome all opposition by force ; for 
 if, in })ursuance of such resolution, one of the party be guilty of 
 homicide, his companions will be liable to the penalty which he has 
 incurred. Foster, 353 ; Hawk. P. C. b. 2, c. 29, s. 8.^ A person of 
 the name of John Thom, Avho called himself Sir William Courtenay, 
 and who Avas insane, collected a number of persons together, having a 
 common purpose of resisting the lawfully constituted authorities, Thom 
 having declared that he would cut down any constables who came 
 against him. Thom, in the presence of the two prisoners, afterwards 
 shot an assistant of a constable who came to apprehend Thom, under 
 a warrant. It was held by Lord Denman, C. J., that the prisoners 
 were guilty of murder as principals in the first degree, and that any 
 apprehension that they had of personal danger to themselves from 
 Thom, was no ground of defence for continuing with him after he had 
 so declared his purpose ; and also that it was no ground of defence, 
 that Thom and his party had no distinct or particular object in view 
 when they assembled together and armed themselves. R. v. Tyler, 8 C. 
 & P. 616, 34 E. C. L. The apprehension of personal danger does not 
 fiirnish any excuse for assisting in doing any act which is illegal. Id, 
 See also R. v. Skeet, 4 F. & F. 931. 
 
 Proof of the means of killing. The killing may be by any of the 
 thousand forms of death by wdiich life may be overcome. 4 Bl. Com. 
 196. But there must be a corporal injury inflicted ; and therefore, if 
 a man, by working upon the fancy of another, or by any unkind usage, 
 puts another into such a passion of grief or fear, as that he either 
 dies suddenly or contracts some disease, in consequence of which he 
 dies, this is no felony, because no external act of violence was oiFered 
 of which the law can take notice. 1 Hale, P. C. 429. Seven modes 
 *of killing are enumerated by Lord Hale. 1. By exposing a r*7rrr 
 sick or weak person to the cold. 2. By laying an impotent L 
 person abroad so that he may be exposed to and receive mortal harm. 
 3. By imprisoning a man so strictly that he dies. 4. By starving or 
 famine. 5. By wounding or blows. 6. By poisoning. 7. By laying 
 
 ^ Therefore where it is shown that two or more persons acted in concert in the com- 
 mission of an alleged murder, the State may show upon the separate trial of one, the 
 motives which actuated the others. Rufer v. State, 25 O. St. 464 ; see Kehoe v. Com- 
 monwealth, 85 Pa. St. 127. But the conspiracy cannot be shown in this way. Eufer 
 V. State, 25 O. St. 464. Until concert is shown such evidence must be excluded. 
 Wright V. State, 43 Tex. 170 ; Preston t'. State, 4 Tex. App. 186. Where two persons 
 have fired simultaneously at deceased, there being no evidence of a conspiracy between 
 them, if the jury are in doubt which shot killed the deceased, the prisoner is entitled 
 to the benefit of that doubt. People v. Woody, 45 Cal. 289.
 
 948 MURDER. 
 
 noxious and noisome filth at a man's door to poison him. 1 Hale, 
 P. C. 431.^ 
 
 Forcinj^ a person to do an act which is likely to produce and does 
 produce death, is murder ; and threats may constitute such force. The 
 indictment charged, first, that the prisoner killed his wife by beating; 
 secondly, by throwing her out of the window, and thirdly and 
 fourthly, that he threatened to throw her out of the window and to 
 murder her, and tliat by such threats and violence she was so terrified 
 that, through fear of putting his threats into execution, she threw her- 
 self out of the window, and of the beating and bruising received by 
 the fall, died. There was strong evidence that the death of the wife 
 was occasioned by the blows she received before her fall, but Heath, 
 J., Gibbs, J., and Bayley, J., were of opinion, that if her death was 
 occasioned partly by blows, and partly by the fall, yet if she was con- 
 strained by her husband's threats of further violence, and from a well- 
 grounded apprehension of his doing such further violence as would 
 endanger her life, he was answerable for the consequences of the fall, 
 as much as if he had thrown her out of the window himself. The 
 prisoner, however, was acquitted, the jury being of opinion that the 
 deceased threw herself out of the window from her own intemperance, 
 and not under the influence of the threats. R. v. Evans, 1 Russ. 
 Cri. 651, 5th ed. ; see also R. v. Pitts, Carr. & M. 284, 41 E. C. L. 
 
 If a man has a beast which is used to do mischief, and he, knowing 
 this, purposely turns it loose, though barely to frighten people, and 
 make what is called sport, and death ensues, it is as much murder as 
 if he had incited a bear or a dog to worry the party ; and if, knowing 
 its propensity, he suifers it to go abroad, and it kills a man, even this 
 is manslaughter in the owner. 4 Bl. Com. 197 ; Palmer, 545; 1 Hale, 
 P. C. 431. 
 
 In proving murder by poison, the evidence of medical men is fre- 
 quently required, and in applying that evidence to the facts of the 
 case, it is not unusual for difficulties to occur. Upon this subject the 
 following observations are well deserving attention. In general it 
 may be taken that where the testimonials of professional men are affirm- 
 ative, they may be safely credited ; but where negative, they do not 
 appear to amount to a disproof of a charge otherwise established by 
 strong, various, and independent evidence. Thus on the view of a 
 body after death, on suspicion of poison, a physician may see cause 
 for not positively pronouncing that the party died by poison; yet, if 
 the party charged be interested in the death, if he appears to have 
 made preparations of poisons without any probable just motive, and 
 this secretly; if it be in evidence that he has in other instances 
 brought the life of the deceased into hazard ; if he has discovered an 
 expectation of the fatal event ; if that event has taken place suddenly 
 and without previous circumstances of ill-health ; if he has endeav- 
 
 * The State may show the cause of deatli without the aid of professional witnesses 
 where the death is not immediate on the wound. Smith v. State, 43 Tex. 643. The 
 condition of the clothing of the deceased is admissible to show the direction of a 
 shot, when that is material. King v. State, 13 Tex. App. 277.
 
 MURDER. 949 
 
 orcd to stifle the inquiry by prematurely burying the body, and after- 
 "wards, on inspection, signs agreeing with poison are observed, though 
 sueh as medical men will not i)<)sitively aflirm could not be owing to 
 any other cause, the accumulative strength *of' circumstantial r*7K/> 
 evidence may be such as to warrant a conviction, since more *- 
 cannot be required than that the charge should be rendered highly 
 credible from a variety of detached points of j)roof, and that suj)pos- 
 ing poison to have been employed, stronger demonstrations could not 
 reasonably have been expected, under all the circumstances, to have been 
 produced. Loift, in 1 Gilb. Ev. 302. With regard to the law of prin- 
 cipal and accessory, there is a distinction between the case of murder 
 by poison and other modes of killing. In general, in order to render 
 a party guilty as principal, it is necessary either that he should with 
 his own hand have committed thg offence, or that he should have been 
 present aiding and abetting ; but in the case of killing by poison it is 
 otherwise. If A., with an intention to destroy B., lays poison in his 
 way, and B. takes it and dies, A., though absent when the poison is 
 taken, is a principal. So if A. had prej^ared the poison and delivered 
 it to D. to be administered to B. as a medicine, and D., in the absence of 
 A., accordingly administered it not knowing that it was poison, and B. 
 had died of it, A. would have been guilty of murder as principal. 
 For D. being innocent, A. must have gone unpunished, unless he could 
 be considered as principal. But if D. had known of the poison as well 
 as A. did, he would have been a })rincipal in the murder, and A. would 
 have been accessory before the fact. Foster, 349 ; Kel. 52. An in- 
 dictment for the murder of A. B. by poison, stating that the prisoner 
 gave and administered a certain deadly poison, is supported by proof 
 that the prisoner gave the poison to C. D. to administer as a medicine 
 to A. B., but C. D. neglecting to do so, it was accidentally given to 
 A. B. by a child ; the prisoner's intention throughout being to murder. 
 K. V. Michael, 2 Moo. C. C. 120 ; 9 C. & P. 356, 38 E. C. L. 
 
 Whether or not the giving false evidence against another upon a 
 capital charge, with intent to take away his life (the party being exe- 
 cuted upon such evidence) will amount to nmrder appears to be a 
 doubtful point. There are not wanting old authorities to prove that 
 such an offence amounts to wilful murder. Mirror, c. 1, s. 9 ; Brit, 
 c. 52 ; Bract. 1. 3, c. 4 ; see also Hawk. P. C. b. 1, c. 31, s. 7. But 
 Lord Coke says, " it is not holden for murder at this day." 3 Inst. 
 43. The point arose in E,. v. McDaniel, where the prisoners were 
 indicted for wilful murder, and a special verdict was found, in order 
 that the point of law might be more fully considered. But the attor- 
 ney-general declining to argue the point of law, the prisoners were 
 discharged. Foster, 131. The opinion of Sir Michael Foster, who 
 has reported the case, is against the holding the offence to be murder, 
 though he admits that there are strong passages in the ancient writers 
 which countenance such a prosecution. The practice of many ages, 
 however, he observes, by no means countenances those opinions, and 
 he alludes to the prosecution against Titus Oates, as showing that at 
 that day the offence could not have been considered as amounting to
 
 950 MURDER. 
 
 murder, otherwise Oates would undoubtedly have been so charged. 
 Foster, 132. Sir W. Blackstone states, on the contrary, that though 
 the attorney-general declined, in R-. v. MoDaniel, to argue the 
 point of law, yet he has good grounds to believe it was not from 
 anv apprehension of his that the point was not maintainable, but 
 from other prudential reasons, and that nothing, therefore, should be 
 concluded from the waiving of that prosecution. 4 Bl. Com. 196 
 ^^.--, (w). And it is asserted by Mr. East that he has *heard 
 '"^'J Lord Mansfield say that the opinions of several of the 
 judi^es at the time, and his own, were strongly in support of the 
 indfctment. 1 East, P. C. 333 (w). Sir W. Blackstone has not given 
 any positive opinion against such an indictment, merely observing that 
 the modern law (to avoid the danger of deterring witnesses from 
 giving evidence upon capital prosecutions, if it must be at the risk of 
 their lives) has not yet punished the oifence as murder. 4 Bl. Com. 197. 
 Doubts occasionally arise in cases of murder whether the death 
 has been occasioned by the wound or by the unskilful and improper 
 treatment of that wound. The law on this point is laid down at 
 some length by Lord Hale. If, he says, a man give another a stroke, 
 which, it may be, is not in itself so mortal but that with good care 
 he might be cured, yet if he dies within the year and day, it is a 
 homicide or murder as the case is, and so it has been always ruled. 
 But if the wound be not mortal, but with ill applications by the 
 party or those about him, of unwholesome salves or medicines, the 
 party dies, if it clearly appears that the medicine and not the wound 
 was the cause of the death, it seems it is not homicide, but then it 
 must clearly and certainly appear to be so. But if a man receive a 
 wound which is not in itself mortal, but for want of helpful applica- 
 tions or neglect, it turn to a gangrene or a fever, and the gangrene or 
 fever be the immediate cause of the death, yet this is murder or 
 manslaughter in him that gave the stroke or wound ; for that wound, 
 thouo-h it was not the immediate cause of the death, yet if it were 
 the mediate cause, and the fever or gangrene the immediate cause, 
 the wound was the cause of the gangrene or fever, and so consequently 
 causa causans} 1 Hale, P. C. 428. Neglect or disorder in the person 
 
 ^ Commonwealth v. Green, 1 Ash. 289 ; State v. Scott, 12 La. An. 274 ; Common- 
 wealth V. Hachett, 2 Allen, 136. When the wound is adequate and calculated to pro- 
 duce death, it is no excuse to show that had proper caution and attention been given 
 a recovery raiglit have ensued. Neglect or maltreatment will not excuse, except in 
 cases where doubt exists as to the character of the wound. State v. Corbett, 1 Jones's 
 Law, 267. [The burden is upon the defendant to show that the wound he gave was 
 not the cause of death. State v. Briscoe, 30 La. An. Pt. 1, 433. Where there is evi- 
 dence of malpractice on the part of the surgeon who attended the deceased, the jury 
 cannot convict unless satisfied that death resulted from the wound and not from the 
 malpractice. Brown ?'. vState, 38 Tex. 482.] If a wound is inflicted not dangerous in 
 itself, and the death which ensues was evidently occasioned by the grossly er rone nus 
 treatment of it, the original author will not be accountable. Parsons v. State, 21 Ala. 
 300. As to death caused by disease but quickened by the blow. Livingston's Case, 
 14 Gratt. 592 ; Commonwealth v. Fox, 7 Gray, 585. S. 
 
 Tlie previous condition of health of the deceased may be shown on behalf of de- 
 fendant. Phillips V. State, 68 Ala. 469. Particular acts of drunkenness not shown to 
 be connected with the death are irrelevant. Commonwealth v. Ryan, 134 Mass, 223.
 
 MURDER. 951 
 
 who receives the wound will not excuse the person who gave it. 
 Thus it Avas resolved that if one give wounds to another who neglects 
 the cure of tiicm, and is disorderly, and does not keep that rule 
 which a wounded person should do, if he die it is murder or man- 
 slaughter, according to the circumstances of the case, because, if the 
 wounds had not been given, the man had not died. R,. v. Rews, Kcl. 
 26. So Maule, J., has held that a party inflicting a wound which 
 ultimately becomes the cause of death, is guilty of murder, though 
 life might have been preserved if the deceased had not refused to 
 submit to a surgical operation. R. v. Holland, 2 Moo. & R. 351. 
 In the above case the deceased had been severely cut with an iron 
 instrument across one of his fingers, and had refused to have it 
 amputated. At the end of a fortnight lockjaw came on, the finger 
 was then amputated, but too late, and the lockjaw ultimately caused 
 death. The surgeon gave it as his opinion that if the finger had been 
 amputated at first the deceased's life would most probably have been 
 preserved.^ 
 
 Whether the infliction of a blow which, had the party upon whom 
 it Avas infiicted been sober, would not have produced death, Avill, 
 when inflicted upon a person intoxicated and producing death, be 
 deemed murder or manslaughter may admit of much question. The 
 point arose in the following case : — Upon an indictment for man- 
 slaughter, it appeared that the prisoner and the deceased had been 
 fighting, and the deceased was killed. A surgeon stated that a blow 
 on the stomach in the state in which the deceased was, arising from 
 passion and intoxication, was calculated to occasion death, but not 
 so if the jmrty had been sober. Hullock, B., directed an acquittal, 
 *observing, that where the death was occasioned partly by a blow r*7 ko 
 and partly by a predisposing circumstance, it was impossible to L 
 apportion the operations of the several causes, and to say with certainty 
 that the death Avas immediately occasioned by any one of them in parti- 
 cular. His lordship cited from his notes the folloAving case, R. v. Brown, 
 April, 1824 : Indictment charged Avith killing by striking. The jury 
 found that the death AA^as occasioned by over-exertion in the fight. 
 The judges held that the prisoner Avas entitled to an acquittal. R. v. 
 Johnson, 1 LcAvin, C. C. 164. It maybe doubted hoAV far the ruling 
 of the learned judge in this case was correct ; for if by the act of 
 the prisoner the death of the party Avas accelerated, it seems that the 
 prisoner Avould be guilty of the felony. See R. v. Martin, 5 C. & P. 
 130, 24 E. C. L., post, p. 760. And although a state of intoxi- 
 cation might render the party more liable to suffer injury from the 
 bloAA^s, yet it is difficult to say that the intoxication was the cause 
 of his death, any more tlian the infirmity of age or sickness, AA^iich 
 could not, it is quite clear, be so esteemed. Very few decisions are 
 to be found in our oAvn books on this subject, and it may therefore 
 be alloAvable to illustrate it by a reference to a fcAV cases in the Scotch 
 laAV, Avhich is in principle the same as our OAvn on this point, and to 
 the text-writers on the criminal laAV of that country. It is clear, 
 1 KeUey v. State, 53 Ind. 311.
 
 952 MURDER. 
 
 says Mr. Alison, that if the death be owing not to the effects of the 
 wound, but to a supervening accident or misfortune, though induced 
 by the first violence, the prisoner cannot be convicted of homicide. 
 Thus, if a person be wounded, no matter how severely, yet if he 
 recover and engage in his ordinary occupation, and bear about with 
 him no apparent seed of his malady, the as.sailant cannot afterwards 
 be involved in the consequences of his death, even though it was 
 connected with the previous violence. So it was found in the case of 
 Patrick Kinninmonth, Nov. 2, 1697, Alison's Princ. Crim. Law of 
 Scot. 146 ; 1 Hume, 181. So, if a person be wounded, but recovers 
 after a long confinement, which induces a consumption which ulti- 
 mately proves fatal, still the death is here so remotely connected 
 with the original violence, that human tribunals cannot consider the 
 one as the cause of the other. Id. Burnett, 550. If, says Mr. Alison, 
 the death be owing not to tiie natural and accustomed consequences 
 of the injury, but to remote and improbable accidents which have 
 since intervened, the prisoner must be acquitted. Alison's Princ. 
 Crim. Law of Scot. 147. The prisoner was gamekeeper to Lord 
 Blautyre, and, in the course of the scuffle with a poacher, the latter 
 discharged his piece, which lodged its contents in his thigh. He was 
 carried to the Glasgow infirmary, where erysipelas at the time was 
 extremely prevalent, and having been unfortunately put into a bed 
 formerly occupied by a patient with that disorder, he took it, and 
 died in consequence. Till this supervened the wound bore no pecu- 
 liarly dangerous symptoms. The public prosecutor strongly con- 
 tended that if the man had not been fired at, he never would have 
 been exposed to the contagion of the erysipelas, and therefore his 
 death was by a circuitous but legitimate consequence, owing to the 
 wound ; but this was deemed too remote a conclusion, and the pris- 
 oner, under the direction of Lords Justices Clerk, Boyle, and Suc- 
 coth, was accpiitted. R. v. Campbell, Id, In like manner where 
 the prisoner had thrown a quantity of sulphuric acid in the face 
 of the deceased, and produced sucli inflammation in the eyes that 
 bleeding was deemed necessary, and the orifice made by the surgeon 
 i^jrqi *inflaraed, and of this the party died, but not of the injury in 
 -■ the face, the court held this second injury, produced by a dif- 
 ferent hand, not so connected with the original violence as to support 
 the charge of murder, and the prisoner was convicted of assault only. 
 R. V. Macmillan, Id. If the death be truly owing to the wound, it 
 signifies not that under more favorable circumstances, and with more 
 skilful treatment, the fatal result might have been averted. 1 Bur- 
 nett, 551 ; Alison, 149. Thus, if an assault be made which opens an 
 artery, it will be no defence to plead that by the assistance of a sur- 
 geon the wound might have been stanched and life preserved. 1 Hume, 
 184 ; Alison, 1 49. The prisoner was one of a party of smugglers who 
 had fired at an officer of excise. The wounded man was carried to the 
 nearest village, where he was attended by a surgeon of the country, 
 who was not deficient in attention, but fever ensuing, the party died at 
 the end of three weeks. It was objected that by skilful treatment the
 
 MURDER. 953 
 
 man might have recovered, but the court said that it was lor the pris- 
 oner to prove, if he could, that deatli ensued ex malo regimine. II, v. 
 Edgar, 1 Alison, 149. The true distinction in all such cases is, that 
 if the death was evidently occasioned by grossly erroneous medical 
 treatment, the original author will not be answerable ; but if it was oc- 
 casioned from want merely of the higher skill which can only be com- 
 manded in great towns, he will, because he has wilfully exposed the 
 deceased to a risk from which practically he had no means of escapiug. 
 Accordingly, where the prisoner was indicted for the culpable homi- 
 cide of a boy in a manufactory by striking him on the shoulder, which 
 dislocated his arm, it appearing that the arm had been worked upon 
 two days after the blow by an ignorant bone-setter, whose operations 
 did more harm than good, and that in consequence of the inflam- 
 mation thus occasioned, acting upon a sickly and scrofulous habit of 
 body, a white swelling ensued, which proved fatal, the jury, under the 
 direction of Lord Meadowbank, acquitted the prisoner. R. v. Mace- 
 wan, Id. Though death do not ensue for weeks or months after the 
 injury was received, yet if the wound be severe, and kept in a regular 
 progression from bad to worse, so that the patient continually lan- 
 guishes and is consumed by it, as by a disease, this in reason and law 
 is the same as if he had died on the spot. 1 Hume, 185 ; Alison's 
 Princ. Cr. Law of Scot. 151. Thus, M'here the deceased, a post-boy, 
 w^as robbed, cut, and left on the ground all night, and death ensued at 
 the end of two months, and it was proved by the medical evidence 
 that the wound, Avith the cold which the deceased got by lying out all 
 night, and the great loss of blood which followed on it, were the cause 
 of his death, the prisoner was convicted of the murder as well as the 
 robbery. R. v. Caldwall, Burnett, 552 (a) ; Alison Princ. 151. 
 However feeble the condition of the deceased may have been, and 
 however short his tenure of life, it is equally murder, as if the person 
 killed had been in the prime of youth and vigor. Accordingly, 
 where it appeared that the deceased, a sick and infirm old man, 
 was violently beaten with a pair of tongs, of which in a few 
 hours he died, and it was urged that his death was rather owing 
 to his previous infirm condition than to the assault, it was held to be 
 murder. R. v. Ramsay, 1 Hume, 183; Alison's Princ. Cr. Law of 
 Scot. 149. The same point lately arose in a case in this coimtry. 
 Upon a trial for manslaughter it appeared that the deceased, at the 
 time of the blow given, was in an infirm state of health, and this cir- 
 cumstance was observed upon on behalf of the prisoner, but Park, J., 
 
 *in addressing the jury, remarked : " It is said that the deceased 
 
 [*760 
 
 was in a bad state of health, but that is perfectly immaterial, 
 as, if the prisoner was so unfortunate as to accelerate her death, he 
 must answer for it." R. v. Martin, 5 C. & P. 130, 24 E. C. L. See 
 also R. V. Murton, 3 F. & F. 492. 
 
 Proof of the means of killing — ^variance in statement. Wliere 
 a man is indicted for one species of killing, as by poison, he cannot be 
 convicted by evidence of a totally difierent species of death, as by
 
 954 MURDER. 
 
 shooting, starving, or strangling. But if the means of death proved 
 a<>"rce in suhstance with those charged, it is sufficient. 1 East, P. C. 
 341 ; 2 Hale, P. C. 185 ; R. v. Kelly, 1 Moo. C. C. R. 113.^ But 
 see the 24 iSi 25 Vict. c. 100, s. 6, which renders it unnecessary to state 
 the means of death in the indictment. Supra, p. 747. 
 
 Proof of malice — in general. The malice necessary to constitute 
 the crime of murder is not confined to an intention to take away the 
 life of the deceased, but includes an intent to do any unlawful act 
 which may probably end in the depriving the party of life.^ The 
 malice prepense, says Blackstone, essential to murder, is not so prop- 
 erly spite or malevolence to the individual in particular, as an evil de- 
 sign in general, the dictate of a wicked, depraved, and malignant 
 heart, and it may be either express or implied in law, — express, as 
 where one, upon a sudden provocation, beats another in a cruel and 
 unusual manner, so that he dies, though he did not intend his death ; 
 as where a park-keeper tied a boy who was stealing wood to a horse's 
 tail, and dragged him along the park ; and a schoolmaster stamped 
 on his scholar's belly, so that each of the sufferers died. These were 
 justly held to be murders, because the correction being excessive, and 
 such as could not proceed but from a bad heart, it was equivalent to 
 a deliberate act of slaughter. 4 Bl. Com. 199. Also, continues the 
 same writer, in many cases where no malice is expressed, the law will 
 imply it, as where a man wilfully poisons another ; in such a delib- 
 erate act the law presumes malice, though no particular enmity can be 
 proved. And if a man kills another without any, or without a con- 
 siderable provocation, the law implies malice ; for no person, unless of 
 an abandoned heart, would be guilty of such an act upon a slight 
 
 ^ Beavers v. State, 58 Ind. 530; Nelson v. State, 1 Tex. App. 41. The wound may 
 be shown to be in a different part of the body than that laid in the indictment. State 
 V. Waller, 88 Mo. 402. 
 
 '^ State V. Schpcnwald, 31 Mo. 147 ; Maher v. People, 10 Mich. 212, Every killing is 
 presumed to be malicious. State v. Johnson, 3 Jones's Law, 266 ; Green v. State, 28 
 Miss 687 ; Atkins v. State, 16 Ark. 568 ; Commonwealth v. Fox, 8 Gray, 585. [Prenit 
 V. People, 5 Neb. 377.] Though malice is not presumed merely from the fact of kill- 
 ing, yet the circumstances attending the homicide may be such that the law deems it 
 malicious. United States v. Armstrong, 2 Curt. C. C. 446 ; United States v. Mingo, 
 Id. 1 ; Commonwealth v. Hawkins, 3 Gray, 463. [The inference is one of fact only 
 and for the jury. It is error for tlie court to instruct the jury that it throws the burden 
 on the prisoner to reduce the offence to a grade below min-der. Perry v. State, 44 
 Tex. 473 ; Murray v. State, 1 Tex. App. 417.] A blow with a dangerous weapon, cal- 
 culated to produce and actually producing death, if struck without such provocation 
 as reduces the crime to manslaughter, is deemed by law malicious, and the killing is 
 murder. United States v. McGlue, 1 Curt. C. C. 1. [Moon v State, 68 Ga. 687.] Any 
 facts may be shown, in a trial for homicide, that tend to show the intent with which it 
 was committed. Austin v. State, 14 Ark. 555. S. Thus evidence of a quarrel be- 
 tween defendant and deceased is admissible, but the details are not admissible. 
 McAnally v. State, 74 Ala. 9 ; Garrett v. State, 76 Ala. 18 ; Stewart v. State, 78 Ala. 
 436. 
 
 Evidence of eccentricities, not tending to prove insanity, but introduced to show 
 want of premeditation, are inadmissible. Sindram v. People, 88 N. Y. 196. Premedi- 
 tation is sufficiently shown by evidence that the prisoner formed a purpose, annoimced 
 his intention to the deceased, and carried it into effect. People t;. Kiernau, 4 N. Y. 
 Crim. Eep. 88.
 
 MURDER. 955 
 
 or no apparent cause. Id. 200. Tlie Sootcli law resembles onr own 
 in this i)articular, and the rule is well laid down by Baron Plume. 
 "Our practice," he says, "does not disthiguish between an absolute 
 purpose to kill and a purpose to do any excessive and grievous 
 injury to the person, so that if the panel assault his neighbor, 
 meaning to hamstring him or cut out his tongue, or break his 
 bones, or beat him severely, or within an inch of his life, and if, 
 in the prosecution of this outrageous purpose, he has actually de- 
 stroyed his victim, he shall equally die for it, as if he had run him 
 through the body Avith a sword. The corrupt disregard of the per- 
 son and life of another is precisely the dole or malice, the depraved 
 and wicked purpose, which the law requires and is content with." 2 
 Hume, 254, 256. 
 
 " Where it appears that one person's death has been occasioned by 
 the hand of another, it behoves that other to show from evidence, or 
 by inference from the circumstances of the case, that the oifence is of 
 a mitigated character, and does not amount to murder." Per Tindal, 
 *C. J., R. i\ Greenacre, 8 C. & P. 35, 34 E. C. L. Threats r^^g. 
 and menaces are ordinary evidence of malice. 1 Phil. Ev. 514. •- ' 
 And see ante, p. 23. 
 
 Proof of malice — death ensuing in the performance of an un- 
 lawful or wanton act. The rule in this case is thus laid down by 
 Sir Michael Foster : If an action, unlawful in itself, be done delib- 
 erately and with intention of mischief, or great bodily harm to par- 
 ticulars, or of mischief indiscriminately, fall it where it may, and 
 death ensue, against or beside the original intention of the party, it 
 will be murder.^ But if such mischievous intention do not appear 
 
 ^ Where a statute distinguishes murder into degrees and makes capital only that 
 which is committed deliberately, or with intent to kill, it matters not how short the 
 deliberation is. Kilpatrick v. Commonwealth, 31 Pa. St. 198; People v. INIoore, 8 
 Cal. yO ; State v. McDonnell, 32 Vt. 491 ; People v. Bealoba, 17 Cal. 389. Homicide, 
 with intent to kill, is murder, thougli the intent be formed but an instant before strik- 
 ing the blow. People v. Clark, 3 Seld. 385; Witchum v. State, 11 Ga. 615; State v. 
 Dunn, 18 Mo. 419 ; State v. Jennings, Id. 435 ; Jordan v. State, 10 Tex. 479 ; Donnelly 
 V. State, 2 Dutch. 403, 601 ; Shoemaker v. State, 12 O. 43. Under the statute there 
 must be a " premeditated design " to kill ; and it is not a premeditated design, if the 
 design be formed at the instant of striking the fatal blow. Sullivan v. People, 1 
 Parker, C. R. 347. For other cases upon the question whether an instantaneous in- 
 tent to kill is sufficient, see Keenan v. Commonwealth, 44 Pa. St. 55 ; Fonts r. State, 
 4 Greene, 500; Falinestock i'. State, 23 Ind. 231 ; Lanergan v. People, 50 Barb. 266; 
 Lewis V. State, 3 Head, 127 ; Herrin ?-. State, 33 Tex. 638 ; McAdams v. State, 25 
 Ark. 405. As to the distinction between murder in the first and second degree gener- 
 ally, see People v. Long, 39 Cal. 694 ; Commonwealth v. Desmarteau, 82 IMass. 1 ; 
 Coiton V. State, 32 Tex. 6i4; State v. Sloan, 47 Mo. 604; Green v. Commonwealth, 12 
 Allen, 155 ; Fitzgerald v. People, 37 N. Y. 413 ; State v. Millain, 3 Nev. 409 ; Lesche v. 
 Territory, 1 Wash. Terr. 23 ; Commonwealth v. Drum, 58 Pa. St. 9 ; State v. Hoyt, 13 
 Minn. 132 ; State r. Newton, 4 Nev. 410 ; Donnellan v. Commonwealth, 7 Bush, 676 ; 
 Hill V. State, 41 Ga. 484 ; Kriel v. Commonwealth, 6 Bush, 362 ; State v. Pike, 49 
 N. H. 399 ; State v. McCormick, 27 la. 402 ; Clem v. State, 31 Ind. 480 ; Murjihy v. 
 State, Id. 511 ; Bradley r. State, Id. 492; Wilt v. State, 6 Cold. 5; Commonwealth i-. 
 Schoeppe, 1 Leg. Gaz.Rep. 433 ; Gladden v. State, 13 Fla. 623 ; Dixon v. State, Id. 636 ; 
 Commonwealth r. Brauham, 8 Bush, 387 ; Hall v. State, 40 Ala. 698 ; Huling v. State, 
 17 O. St. 583; Fitzgerald v. People, 49 Barb. 122 ; People v. Sheehan, Id. 217; State 
 V. Starr, 38 Mo. 270 ; Craft w. State, 3 Kan. 450 ; People v. Foren, 25 Cal. 361 ; Smith
 
 956 MURDER. 
 
 (which is matter of fact to be eoUectod from the circumstances), and 
 the act Avas clone heedlessly and incautiously, it will be manslaughter, 
 not accidental death, because the act which ensued was unlawful. 
 Foster, 201. Thus, where an injury intended to be inflicted upon A. 
 by poison, blows, or other means of death, would, had he sustained it, 
 have been murder ; it will amount to the same offence, if B. by acci- 
 dent happens to lose his life by it.^ But, on the other hand, if the 
 blow intended for A. arose from a sudden transport of fury, which, 
 in case A. had died by it, would have reduced the offence to man- 
 slaughter, the fact will admit of the same alleviation, if B. should 
 happen to fall by the blow. Foster, 262. 1 Hale, P. C. 438. See R. 
 V. Hunt, 1 Moo. C. C. 93, jiost, tit. " Attempt to commit IMurder." 
 
 So where two parties meet to fight a deliberate duel, and a stranger 
 come to part them, and is killed by one of them, it is murder in the 
 latter. 1 Hale, P. C. 441. And where the prisoner intending to 
 poison his wife, gave her a poisoned apple, which she, ignorant of its 
 nature, gave to a child, who took it and died ; this was held murder 
 in the husband, although, being present, he endeavored to dissuade his 
 wife from giving it to the child. R. v. Saunders, Plowd. 474. Such 
 also was the case of the wife who mixed ratsbane in a potion sent by 
 the apothecary to her husband, which did not kill him, but killed the 
 apothecary, who, to vindicate his reputation, tasted it himself, having 
 first stirred it about. 9 Co. 81 ; Hawk. P. C. b. 1, c. 31, s. 46. So, 
 in a recent case, where the prisoner, intending to murder A., shot at 
 and wounded B., supposing him to be A., it was held that he was 
 pro})crly convicted of wounding B. with intent to murder him. R. v. 
 Smith, 25 L. J., M. C. 29 ; Dears. C. C. 559. 
 
 It is said that whenever death is caused, even unintentionally, in 
 the commission of a felony, the crime is murder ; and as Foster says 
 (p. 258), "A. shooteth at the poultry of B. and by accident killeth a 
 man, if his intention was to steal the poultry, which must be collected 
 from circumstances, it will be murder, by reason of the felonious in- 
 tent ; but if it was done wantonly and without that intention, it will 
 be barely manslaughter." In R. i\ Horsey (3 F. & F. 287), a man 
 set fire to a stack, and a person sleeping by it was burnt to death. 
 Bramwell, B., in summing up, adopted tlie rule laid down by Foster; 
 but he suggested to the jury that if the deceased was not shown to be 
 
 V. Commonwealth, 1 Duv. 224 ; People v. Vance, 21 Cal. 400 ; Fonts v. State, 4 Greene, 
 500; People v. Eelencia, 21 Cal. 544; People v. Sanchez, 24 Cal. 17 ; Smith v. State, 
 1 Kan. 3(35. S. State v. White, 30 La. An. 364. 
 
 Where, as under tlie Alabama act, any wilful homicide is declared to be murder in 
 the first degree without regard to the intent, it is not error for the court to refuse an 
 instruction on the degree. Washington v. State, GO Ala. 10. Under the Alabama 
 code, a homicide in attempting lo commit any of the felonies mentioned in the code 
 is murder in the first degree without any jiroof of malice. Kilgore r. State, 74 Ala. 
 1. Malice where proved requires a verdict of murder. Jackson v. State, 74 Ala. 26. 
 Where malice is only implied, it is murder in the second degree. Hart v. State, 21 
 Tex. App. 163. 
 
 ' Clark r. State, 78 Ala. 474. But under the Texan code, where one man is mur- 
 dered by mistake for another, it is only murder in the second degree. Musick v. 
 State, 21 Tex. App. 69.
 
 MURDER. 957 
 
 in the barn at the time when the prisoner set fire to tlie stack they 
 might acquit him, on the ground that the man's death was not the 
 natural and probable consequence of this act. This, however, is virtu- 
 ally to repeal the rule laid down by Foster. It is very doubtful 
 whether Foster's view of the law would be taken to be correct at the 
 present day. See R. v. Pombliton, L. R. 2 C. 0. 119 ; 43 L. J., M. C. 
 91, ante, pp. 24, 722. But as to cases of intent to commit an offence, 
 see *ante, p. 609. The prisoners were indicted for murder, r^^^o 
 The deceased, being in liquor, had gone at night into a glass- ^ 
 house, and laid himself down upon a chest. While there asleep the 
 prisoners covered and surrounded him with straw, and threw a shovel 
 of hot cinders upon his belly, the consequences of which was, that the 
 straw ignited, and he was burnt to death. There was no evidence of 
 express malice on the part of the prisoners. Patteson, J., told the 
 jury that if they believed the prisoners really intended to do any 
 serious injury to the deceased, although not to kill him, it was murder ; 
 but if they believed their intention to have been only to frighten him 
 in sport, it was manslaughter. The prisoners Avere convicted of the 
 latter offence. R. v. Errington, 2 Lew. C. C. 217. As to intending 
 the consequences of an act, see R. v. Faulkner, 13 Cox, C. C. (Irish) 
 550, ante, title " Arson," pp. 24, 296, and R. v. Martin, 8 Q. B. D. 
 54 ; 51 L. J., M. C. 36, ante, p. 722. 
 
 It is not necessary, in order to render the killing murder, that the 
 unlawful act intended would, had it been effected, have been felony. 
 
 Thus, in the case of the person who gave medicine to a woman (1 
 Hale, P. C. 429), and of him who puts skewers into a woman's womb, 
 with a view in both cases to procure abortion, whereby the women 
 were killed ; such acts were clearly held murder, though the original 
 attempt, had it succeeded, would only have been a great misdemeanor ; 
 for the acts were in their nature malicious and deliberate, and neces- 
 sarily attended with great danger to the persons on whom they were 
 practised. 1 East, P. C. 230. So if in case of a riot or quarrel, 
 whether sudden or premeditated, a justice of the peace, constable or 
 watchman, or even a private person, be slain in endeavoring to keep 
 the peace or suppress the affray, he who kills him is guilty of murder ; 
 for notwithstanding it was not his primary intention to commit a 
 felony, yet inasmuch as he persists in a less offence with so much ob- 
 stinacy as to go on in it, to the hazard of the lives of those who only 
 do their duty, he is, in that respect, equally criminal as if his inten- 
 tion had been to commit felony. Hawk. P. C. b. 1, c. 81, s. 54. 
 
 If a person rides a horse known to be used to kick, amongst a mul- 
 titude of people, although he only means to divert himself, and death 
 ensues in consequence, he will, it is said, be guilty of murder.^ Hawk. 
 P. C. b. 1, c. 31, s. 61 ; 1 Lord Raym. 143 ; Foster, 261 ; 1 East, 
 P. C. 231. And if a man, knowing that the people are passing along 
 the street, throw a stone likely to create danger, or shoot over the 
 
 ^ A carriage driver who sees that he is in danger of running over a little child and 
 deliberately drives on, although at a moderate pace, is guilty of murder, if the child 
 is killed in consequence. Lee v. State, 1 Cold. 02. S.
 
 958 MURDER. 
 
 house or wall, with intent to do hurt to people, and some one is con- 
 sequently killed, it is murder, on account of the previous malice, 
 thouo;h not directed against any particular individual ; for it is no ex- 
 cuse that the party was bent on miscliief generally. See per lilack- 
 burn, J., in li. v. Pembliton, L. 11. 2 C. C. 119 ; 43 L. J., M. C. 91. 
 Ante, pj>. 24, 722 ; but if the act were merely done incautiously, it 
 would only be manslaughter. 1 East, P. C. 231 ; 1 Hale, P. C. 475. 
 In all tliese cases the nature of the instrument and the manner of 
 using it, as calculated to produce great bodily harm or not, will 
 vary the offence. 1 East, P. C. 257. If a person fires at another 
 a rifle, knowing it to be loaded, and therefore intending to kill or 
 to do grievous bodily harm, it is murder, but if he did not know, 
 then no such presumption of intent arises. If he negligently used 
 *7fi'^l ^^^ means to ascertain whether it was loaded or not, *and fired 
 ' J the rifle in the direction of any other person and death ensue, 
 he would be guilty of manslaughter. R. v. Campbell, 11 Cox, C. C 
 323. See ante, p. 731. 
 
 The rule above stated must be taken to extend only to such acts 
 as are mala in se ; for if the act be merely malum prohibitum, as (for- 
 merly) shooting at game by a person not qualified to keep a gun for 
 that purj^ose, the case of him so offending will fall under the same 
 rule as tliat of a qualified person. The mere imposing of penalties 
 will not in a case of this kind change the character of the accident. 
 Foster, 259. So if one throw a stone at another's horse, and it hit a 
 person and kill him, it is manslaughter only. 1 East, P. C. 257 ; 1 
 Hale, P. C. 39. 
 
 Death ensuing in consequence of a trespass committed in sport will 
 be manslaughter. The prisoners were indicted for manslaughter, in 
 having caused the death of a man by throwing stones down a coal-pit. 
 Tindal, C. J., in addressing the jury said, if death ensue in conse- 
 quence of a wrongful act which the party who commits it can neither 
 justify nor excuse, it is not accidental death, but manslaughter. If 
 the wrongful act was done under circumstances which show an intent 
 to kill or do any serious injury in the particular case, or any general 
 malice, the offence becomes that of murder. In the present instance 
 the act was one of mere wantonness and sport, but still the act was 
 wrongful, and was a trespass. R. v. Feuton, 1 Lewin, C. C. 179; 
 see further, ante, p. 725. 
 
 The Scotch law does not recognize all the nice distinctions which 
 exist in our own upon this head. The rule in that country is stated 
 to be, that homicide, although not originally intended, will be held 
 to be murder, when it takes place during the commission or in the 
 attempt to commit a capital crime, or one obviously hazardous to life ; 
 but that where it ensues without being intended, during the course 
 of an inferior delinquency, and from which no peril to life could have 
 been reasonably anticipated, it will amount to culpable homicide 
 only. Alison's Princ. Crim. Law of Scotl. 52: Perhaps the rule with 
 regard to implied malice has been carried, in the English practice, to 
 at least the full length which reason and justice warrant.
 
 MURDEE. 959 
 
 Wilful neglect of duty. Death ensuing In consequence of the 
 wilful omission of a duty will be murder ; death ensuing in conse- 
 quence of the negligent omission of a duty will be manslaughter. 
 K V. Hughes, Dears. & B. C. C. 248 ; 2G L. J., M. C. 202. In 
 that case the prisoner was a brakesman at the mouth of a pit- 
 shaft. Building materials were being sent into the pit, and it 
 was the prisoner's duty to place a stage over the mouth of the pit 
 as the loaded trucks came up, from which the materials were 
 lowered into the pit. The prisoner negligently omitted to place 
 the stage over the mouth of the pit as one of the trucks came up, in 
 consequence of which it fell into the pit and killed tiie deceased. 
 Lord Campbell, in delivering the judgment of the court of criminal 
 appeal, said, " If the prisoner, of malice aforethought, and with the 
 premeditated design of causing the death of the deceased, had omitted 
 to place the stage on the mouth of the shaft, and the death of the 
 deceased had thereby been caused, the prisoner would have been guilty 
 of murder. According to the common law form of an indictment for 
 murder by reason of the omission of a duty, it was necessary that the 
 indictment should allege that it was the duty of the prisoner to do 
 *the act, or to state facts from which the law would infer this r^MnA 
 duty. (R. V. Edwards, 8 C. & P. 611, 34 E. C. L.; R. v. God- L ^^^ 
 win, 1 Russ. Cri. 834, 5th ed.) But it has never been doubted that 
 if death is the direct consequence of the malicious omission to perform 
 a duty, as of a mother to nourish her infant child, this is a case of 
 murder. If the omission was not malicious, and arose from negligence 
 only, it is a case of manslaughter. 
 
 Proof of malice — neglect and ill-treatment of infants and others. 
 Amongst the modes of killing mentioned by Lord Hale, are the ex- 
 posing a sick or weak person or infant to the cold, with the intent 
 to destroy him, and laying an impotent person abroad, so that he 
 may be exposed to and receive mortal harm, as laying an infant in 
 an orchard, and covering it with leaves, whereby a kite strikes it and 
 kills it. 1 Hale, P. C. 431, 432. In these cases the offence may 
 amount to wilful murder, under the rule that he who wilfully and 
 deliberately does any act which apparently endangers another's life, 
 and thereby occasions his death, shall, unless he clearly prove the 
 contrary, be adjudged to kill him of malice prepense. 1 East, P. C. 
 225. Such was the case of the man who carried his sick father against 
 his will, in a severe season, from town to town, by reason whereof he 
 died.^ Hawk. P. C. b. 1, c. 31, s. 5 ; 2 East, P. C. 225. See R. v. 
 Stockdale, 2 Lew. C. C. 220. See as to exposing infants, etc., ante, 
 p. 398 ; as to apprentices, servants, and lunatics, ante, p. 635. 
 
 ^ Where a seaman is in a state of debility, and the master knowingly and mali- 
 ciously compels him to go aloft, and he falls into the sea, and is drowned, it is mur- 
 der. If there be no malice, it is manslaughter. United States v. Freeman, 4 Mason, 
 505. Cruelty to a child producing death. State c. Harris, 63 N. C. 1 . S. 
 
 In an indictment for murder evidence is admissible, that the deceased complained 
 to a magistrate, ten months before her death, that her husband, the defendant, neglected 
 to support her, to show malice. People v. Otto, 4 N. Y. Crim. Kep. 149.
 
 960 MUEDER. 
 
 Cases of this kind have arisen, where apprentices or prisoners have 
 died in consequence of the want of sufficient food and nccrcssaries, 
 and where the question has been whetlier the law Avould imply such 
 malt(« in the master or gaoler, as is necessary to make the offence 
 murder. The prisoner, Charles Squire, and his wife were both 
 indicted for the murder of a parish apprentice, bound to the former. 
 ]joth the prisoners had used the deceased in a most cruel and bar- 
 barous manner, and had not provided him with sufficient food and 
 nourishment ; but the surgeon who opened the body deposed that, in 
 his opinion, the boy died from debility and for want of proper food 
 and nourishment, and not from the wounds he had received. Law- 
 rence, J., upon this evidence, was of opinion that the case was defec- 
 tive as to the wife, as it was not her duty to provide the apprentice 
 with food, she being the servant of her husband, and so directed the 
 jury, Avho acquitted her ; but the husband was found guilty and 
 executed. R. v. Squire, 1 Russ. Cri. 653, 5th ed. The not supplying 
 an apprentice with sufficient food is an indictable misdemeanor. R. v. 
 Friend, Russ. & Ry. 20. As to what is sufficient proof of the appren- 
 ticeship, see R. V. Plummer, Carr. & M. 597, 41 E. C. L. 
 
 Where a married woman was charged with the murder of her ille- 
 gitimate child, three years old, by omitting to supply it with proper 
 food, Alderson, B., held that she could not be convicted unless it was 
 shown that her husband supplied her with food to give to the child, 
 and that she wilfully neglected to give it. The learned judge said, 
 " There is no distinction between the case of an apprentice and that 
 of a bastard child, and the wife is only the servant of the husband, 
 and according to the case before Mr. Justice Lawrence (R. v. 
 Squire, supra), can only be made criminally responsible by omit- 
 ting to deliver the food to the child, with which she had been 
 supplied by her husband." R. v. Saunders, 7 C. & P. 277, 32 E. C. 
 L. But in the case of an infant, the mother would be liable if the 
 5^-^ _-, *death arose from her not suckling the child when she was capa- 
 
 ^^^-1 ble of doing so. Per Patteson, J., R. v. Edwards, 8 C. & P. 611, 
 34 E. C. L. In such a case the indictment must state that it was the 
 duty of the prisoner to supply the child with food, otherwise it will 
 be bad. Id. 
 
 The prisoner, an unmarried woman, left Worcester in a stage- 
 wagon, and was in the wagon about ten at night at the Wellington 
 Inn on the Malvern Hills. She must have subsequently left the 
 wagon, as she overtook it at Ledbury. It appeared that she had 
 been delivered of a child at the road-side, between the Wellington 
 Inn and Ledbury, and had carried it about a mile to the place where 
 it was found, which was also at the road-side. The road was much 
 frequented, and two wagon teams and several persons were on it 
 about the time when the child was left. A wagoner, who was 
 passing along the road, heard the child cry, but went on without 
 rendering it any assistance. Having told some other persons, they 
 proceeded to the spot and found the child, which was quite naked, 
 dead from cold and exhaustion. It further appeared, that the
 
 MURDER. 961 
 
 prisoner had arranged with a woman to be confined at her house, 
 and to pay her 3s. Gd. a Aveek for taking care of the child. Coltman, 
 J., in summing up to the Jury, said, " Suppose a person leaves a child 
 at the door of a gentleman, where it is likely to be taken into the 
 house almost immediately, it would be too much to say, that if death 
 ensued it would be murder ; the probability there Avould be so great, 
 almost amounting to a certainty, that the child would be found and 
 taken care of. If, on the other hand, it were left on an unfrequented 
 place, a barren heath, for instance, what inference could be drawn 
 but that the party left it there in order that it might die. This is a 
 sort of intermediate case, because the child is exposed on a j)ublic 
 road where persons not only might pass, but were passing at the time, 
 and you will therefore consider whether the prisoner had reasonable 
 ground for believing that the child would be found and preserved." 
 11. V. Walters, Carr. & M. 164. See also R. v. Waters, 1 Den. C. C. 
 R. 356 ; 18 L. J., M. C. 53, ante, p. 736. The prisoner Avas indicted 
 for the murder, and was also charged on the coroner's inquisition with 
 the manslaughter of Sarah Jane Cheeseman, by beating her, and com- 
 pelling her to work for unreasonable hours and beyond her strength. 
 The prisoner was aunt to the deceased, who was about fifteen, and 
 with her sister, who was two or three years younger, their mother 
 being dead, had been placed under the prisoner's care. The prisoner 
 employed them both in stay-stitching for fourteen and sometimes 
 fifteen hours a day, and when they did not do the required quantity 
 of work, severely punished them with the cane and the rod. The 
 deceased was in ill-health, and did not do so much work as her 
 younger sister, and in consequence was much oftener and more 
 cruelly punished by the prisoner, who accompanied her corrections 
 by the use of very violent and threatening language. The surgeon 
 who examined the deceased stated before the coroner, that, in his 
 opinion, she died from consumption, but that her death was hastened 
 by the treatment she was said to have received. It appeared that the 
 prisoner, when she beat the deceased for not doing her work, always 
 said she was sure that she was acting the hypocrite, and shamming ill- 
 ness, and that she had a very strong constitution. The prisoner hav- 
 ing pleaded guilty to the charge of manslaughter, the counsel for the 
 prosecution declined to offer any evidence upon the charge of murder, 
 thinking there was not proof of malice sufficient to constitute that 
 *offence, in which opinion Vaughan, B., concurred. R. v. Cheese- r:k^nn 
 man, 7 C. & P. 455, 32 E. C. L. L ^'^^ 
 
 Huggins, the warden of the Fleet, appointed Gibbons his deputy, 
 and Gibbons had a servant, Barnes, whose duty it was to take care 
 of the prisoners, and particularly of one Arne. Barnes put him into 
 a newly-built room, over a common sewer, the walls of which were 
 damp and unwholesome, and kept him there forty-four days without 
 fire, chamber-pot, or other convenience. Barnes knew the state of 
 the room, and for fifteen days at least before the death of Arne, 
 Huggins knew its condition, having been once present, seen Arne, 
 and turned away. By reason of the duress of imprisonment, Arne 
 61
 
 962 MURDER. 
 
 sickened and died. During the time Gibbons was deputy, Huggins 
 sometimes acted as warden. These facts appearing on a special 
 verdict, the court were clearly of opinion that Barnes was guilty of 
 murder. They were deliberate acts of cruelty, and enormous viola- 
 tions of the trust reposed by the law in its ministers of justice ; but they 
 thought Huggins not guilty. It could not be inferred from the bare 
 seeing the deceased once during his confinement, that Huggins knew 
 his situation was occasioned by improper treatment, or that he consented 
 to the continuance of it. They said it was material that the species of 
 duress by which the deceased came by his death could not be known 
 by a bare looking in upon him. Huggins could not know the 
 circumstances under which he was placed in the room against his con- 
 sent, or the length of his confinement, or how long he had been without 
 the decent necessaries of life ; and it was likewise material that no 
 application had been made to him, which, perhaps, might have altered 
 the case. Besides the verdict found that Barnes was the servant of 
 Gibbons, and Gibbons had the actual management of the prison, and 
 the judges seemed to think that the accidental presence of the princi- 
 pal would not amount to a revocation of the deputy's authority. 
 R. V. Huggins, 2 Str. 882; Foster, 322; 1 East, P. C. 331. So 
 where a gaoler, knowing that a prisoner, infected with the smallpox, 
 lodged in a certain room in the prison, confined another prisoner, 
 against his will, in the same room, and the latter prisoner, who had 
 not had the distemper (of which the gaoler had notice), caught it, and 
 died of it, it was held to be murder in the gaoler. Castell v. Bam- 
 bridge, 2 Str. 854; Foster, 322 ; 1 East, P. C. 331. 
 
 But where the death ensues from incautious neglect, however 
 culpable, rather than from any actual malice or artful disposition to 
 injure, or obstinate perseverance in doing an act necessarily attended 
 with danger, regardless of its consequences, the severity of the law, 
 says Mr. East, may admit of some relaxation, but the case must be 
 strictly freed from the latter incidents. 1 East, P. C. 226. An ap- 
 prentice returned from Bridewell, whither he had been sent for bad 
 behavior, in a lousy and distempered condition, and his master did 
 not take the care of him which his situation required, and which he 
 might have done. The apprentice was not suffered to lie in a bed, 
 on account of the vermin, but was made to lie on boards without any 
 covering, and no medical aid was procured. The boy dying, the 
 master was indicted for wilful murder, and the medical men who 
 were examined were of opinion that his death was most probably 
 occasioned by his previous ill-treatment in Bridewell, and the want 
 of care when he went home. And they were inclined to think that 
 had he been properly treated when he came home, he might have 
 recovered. There was no evidence of personal violence or want of 
 *7fi7T **'i^fficient sustenance. The recorder left it to the jury to con- 
 -■ sider whether the death was occasioned by ill-treatment of the 
 prisoner, and if so, whether the ill-treatment amounted to evidence of 
 malice, in which case it would be murder. At the same time they 
 were told, with the concurrence of Mr. Justice Gould and Mr. Baron
 
 MUEDER. 963 
 
 Hotham, that if they thought otherwise, yet as it appeared that the 
 prisoner's conduct towards the apprentice was highly blameable and 
 improper, they might, under all these cinnuiistances, find him guilty 
 of manslaughter, which they accordingly did, and the judges after- 
 wards approved of the conviction. 11. v. Self, 1 East, P. C. 226 ; 1 
 Russ. on Cri. 777, 5th ed. 
 
 The deceased, Mrs. AVarner, was about seventy-four years of age, 
 and lived with a sister until the death of the latter, in March, 1837. 
 The prisoner attended the funeral of the sister, and after it was over, 
 stated that the deceased was going to live with him until affairs were 
 settled, and that he would make her happy and comfortable. Other 
 evidence was given to show that the prisoner had interfered in her 
 affairs, and had undertaken to provide her wath food and necessaries 
 as long as she lived. It appeared that, after July, no servant was 
 kept, but the deceased was waited upon by the prisoner and his wife. 
 The kitchen in which the deceased lived had a large window, through 
 which persons in the court could see plainly what was passing within, 
 and could converse with the inmates of it. Several witnesses swore 
 that, after the servant left, the deceased remained locked in the 
 kitchen alone, sometimes by the prisoner and sometimes by his wife, 
 for hours together, and that on several occasions she complained of 
 being confined, and cried to be let out. They also stated, that in cold 
 weather they were not able to discern any fire in the kitchen, and it 
 appeared that for some time before the deceased's death, she was not 
 out of the kitchen at all, but was kept continually locked in there. 
 The prisoner's wufe was the only person who w^as with the deceased 
 about the time of her death, which happened in February, 1838. An 
 undertaker's man, who was called in very soon after, stated, that from 
 the appearance of the body he thought she had died from want and 
 starvation. A medical witness said, that there was great emaciation 
 of the body, and the stomach and bowels were empty and collapsed, 
 but that the immediate cause of death was water on the brain, which 
 he seemed to think might be caused by want of food. In summing 
 up to the jury, Patteson, J., said, " If the prisoner was guilty of wil- 
 ful neglect, so gross and wilful that you are satisfied he must have con- 
 templated the death of Mrs. Warner, then he will be guilty of mur- 
 der. If, however, you think only that he was so careless, that her death 
 was occasioned by his negligence, though he did not contemplate it, he 
 will be guilty of manslaughter. The cases which happen of this de- 
 scription have been generally cases of children and servants, where the 
 duty has been apparent. This is not such a case ; but it will be for 
 you to say whether, from the way in which the prisoner treated her, 
 he had not by way of contract, in some way or other, taken upon him 
 the performance of that duty, which she, from age and infirmity, was 
 incapable of doing." After referring to the statements of some of 
 the witnesses, the learned judge continued : " This is the evidence 
 on which yon are called on to infer that the prisoner undertook to 
 provide the deceased with necessaries ; and though, if he broke that 
 contract, he might not be liable to be indicted during her life, yet
 
 964 MURDER. 
 
 *7r<^1 *^^ ^y '^'^ negligencG her death was occasioned, then he be- 
 J comes criminally responsible." The prisoner was found guilty 
 of manslaughter. R. v. Marriott, 8 C. & P. 425, 34 E. C. L. As 
 to the duty of a husband to supply his wife with shelter, see R. v. 
 Plumraer, 1 C. & K. 600, 47 E. C. L. 
 
 A young woman who was eighteen years of age, and unmarried, 
 and who usually supported herself by her own labor, being pregnant, 
 and about to be confined, returned to the house of her step-father and 
 her mother. The girl was taken in labor in the absence of the step- 
 father, and in the presence of her mother. The mother did not take 
 any steps to procure the assistance of a midwife, although she could 
 have got one had she chosen, and the daughter died in her confine- 
 ment from the want of such assistance. Held, that there was no such 
 breach of duty by the mother as to render her criminally liable for 
 the death of her daughter. R. v. Shepherd, 31 L. J., M. C. 102. 
 
 Proof of malice — death caused by negligence. Where death is 
 occasioned by the hand of a party engaged in the performance of an 
 act otherwise lawful, it may by reason of negligence amount to man- 
 slaughter, or perhaps even to murder, according to the circumstances 
 by which it is accompanied. The most usual illustration of this doc- 
 trine is the instance of workmen throwing stones and rubbish from a 
 house in the ordinary course of their business, by which a person un- 
 derneath happens to be killed. If they deliberately saw the danger, 
 or betrayed any consciousness of it, whence a general malignity of 
 heart might be inferred, and yet gave no warning, it will be murder, 
 on account of the gross impropriety of the act. If they did not look 
 out, or not till it was too late, and there was even a small proba- 
 bility of persons passing by, it will be manslaughter. But if it had 
 been in a retired place, where there was no probability of persons 
 passing by, and none had been seen about the spot before, it seems 
 to be no more than accidental death. For though the act itself might 
 breed danger, yet the degree of caution requisite being only in pro- 
 portion to the apparent necessity of it, and there being no apparent 
 call for it in the instance put, the rule applies de non existentibus et 
 non apparentibus eadem est ratio. So if any person had been before 
 seen on the spot, but due warning were given, it will be only misad- 
 venture. On the other hand, in London and other populous towns, 
 at a time of day when the streets are usually thronged, it would be 
 manslaughter, notwithstanding the ordinary caution used on other 
 occasions of giving warning ; for in the hurry and noise of a crowded 
 street, few persons hear the warning, or sufficiently attend to it, how- 
 ever loud. 1 East, P. C. 262 ; Foster, 262; 1 Hale, P. C. 472 ; 4 
 Bl. Com. 192. 
 
 Cases of negligent driving fall under the same consideration, and if 
 death ensue it will be murder, manslaughter, or misadventure, ac- 
 cording to the caution exercised, and with reference to the place 
 where the injury occurred. It has been already stated that under 
 circumstances indicating a wanton and malicious disregard of human
 
 MUEDER. 965 
 
 life, the offence may amount even to murder. If there be negligence 
 only in the driver it will be manslaughter, and if negligence be ab- 
 sent it will amount to misadventure merely. If A. drives his 
 cart carelessly, and it runs over a child in the street, if A. saw the 
 child, and yet drove upon it, it is murder; if he did not see the 
 ""child, it is manslaughter; if the child ran across the way, and r*7(oq 
 it was impossible to stop the cart before it ran over the child, it '- 
 is homicide per wfortimium. 1 Hale, P. C. 476 ; Foster, 263. So if 
 a boy, riding in a street, puts his horse to full speed and runs over 
 a child and kills him, this is manslaughter, and not per infortunium; 
 and if he rides into a press of people with intent to do hurt, and the 
 horse kills one of them, it is murder in the rider. 1 Hale, P. C. 
 476. 
 
 Correction of child by parents and others. Parents, masters, and 
 other persons having authority in foro domestico, may administer 
 reasonable correction to those under their care, and if death ensue 
 without their fault, it will be no more than accidental death. But 
 if the correction exceed the bounds of moderation, either in the 
 measure or in the instrument made use of for the purpose, it 
 will be either murder or manslaughter, according to the circum- 
 stances of the case. Foster, 262. Thus, where a master struck 
 a child, who was his apprentice, with a great staff, of which he died, 
 it was ruled to be murder. 1 Hale, P. C. 474. And where a father 
 struck a child two years and a half old with a strap one inch wide, 
 and the child died, it was ruled to be manslaughter. R. v. Griffin, 
 11 Cox, C. C. 402. Speaking of homicides of this class, Mr. Justice 
 Foster says, if they be done with a cudgel or other thing not likely 
 to kill, though improper for the purpose of correction, it will be 
 manslaughter ; if with a dangerous weapon likely to kill or maim, it 
 will be murder ; due regard being had to the age and strength of the 
 party. Foster, 262. Thus where a master directed his apprentice to 
 do some work in his absence, and on his return, finding it had been 
 neglected, threatened to send the apprentice to Bridewell, to which 
 he replied, " I may as well work there as with such a master," upon 
 which the master, striking him on the head with a bar of iron, Avhich 
 he had in his hand, killed him, it was held murder ; for if a father, 
 master or schoolmaster, correct his child, servant or scholar, it must 
 be with such things as are fit for correction, and not with such instru- 
 ments as may kill them ; and a bar of iron is not an instrument of 
 correction. R. v. Gray, Kel. 64 ; 1 Russ. Cri. 773, 5th ed. Though 
 the correction exceeds the bounds of moderation, yet the court will 
 pay regard to the nature of the provocation, where the act is mani- 
 festly accompanied with a good intent, and the instrument is not 
 such as will, in all probability, occasion death, though the party be 
 hurried to great excess. A father whose son had been frequently 
 guilty of thefts, of which complaints had been made, had often cor- 
 rected him. At length the son, being charged with another theft, 
 and resolutely denying it, though proved against him, the father in
 
 966 MURDER. 
 
 a passion beat his son, by way of chastisement, with a rope, by reason 
 of wliich he died. The father expressed the utmost horror, and was 
 in the greatest affliction for what he had done, intending only to have 
 punished him with such severity as to have cured him of his wicked- 
 ness. The learned judge who tried the prisoner, after consulting his 
 colleague and the principal counsel on the circuit, ruled this to be 
 manslaughter only. Anon. 1 East, P. C. 261. 
 
 Dangerous assaults. If a man assault another with intent to do 
 him bodily injury, and death ensue, malice sufficient to constitute 
 murder will be presumed, provided the act be of such a nature as 
 ^_-^-, *plainly, and in the ordinary course of events, must put the life 
 -I of the party in danger. 4 Bl. Com. 200. A remarkable case, 
 which may be classed under this head, is mentioned by Mr. Alison. 
 The deceased, a chimney-sweeper's boy, of eleven years of age, stuck 
 fast in a chimney. The prisoner having fastened ropes round the leg 
 of the deceased, drew them with such force, that, notwithstanding his 
 cries, and the remonstrances of those present, the boy died. Being 
 charged with this as murder, the presiding judge. Lord Justice Clerk, 
 with the concurrence of the court, laid it down as clear law, that this 
 was an instance of absolute recklessness, and utter indifference about 
 the life of the sufferer, and that the law knew no difference between 
 the guilt of such a case and that of an intention to destroy. R. v. Rae, 
 Alison's Prin. Cr. Law of Scot. 4. 
 
 Proof of malice — provocation in general. It frequently becomes 
 a most important question in the proof of malice, whether the act 
 was done under the sudden influence of such a degree of provocation 
 as to reduce the crime from murder to manslaughter.^ The indul- 
 
 1 People V. Freeland, 6 Cal. 96 ; State v. Curry, 1 Jones's Law, 280; Eay v. State, 
 15 Ga. 535 ; Hawkins v. State, 25 Id. 207. As to when the character of the deceased 
 mav be given in evidence, see State v. Floyd, 6 Jones's Law, 392 ; Hindi v. State, 25 
 Ga. 699 ; Commonwealth v. Hilliard, 2 Gray, 294 ; Franklin v. State, 29 Ala. 14 ; State 
 V. Jackson, 12 La. An. 679 ; State v. Hicks, "27 Mo. 588 ; Dukes v. State, 11 Ind. 557 ; 
 Pfomer v. People, 4 Parker, C. E. 558 ; State v. Hogue, 6 Jones's Law, 381 ; State v. 
 Smith, 12 Rich. Law, 430; People v. Murray, 10 Cal. 309; Wise r. State, 2 Kan. 419; 
 Ben I'. State, Shep. Sel. Cas. 9 ; s. c. 37 Ala. 103 ; Pound v. State, 43 Ga. 88 ; Chase v. State, 
 46 Miss. 683 ; People v. Anderson, 39 Cal. 703. S. State v. Matthews, 78 N. C. 523 ; 
 State V. Riddle, 20 Kan. 711 ; Eiland v. State, 54 Ala. 322 ; Brunei v. State, 12 Tex. 
 App. 521. 
 
 The character of the deceased cannot be shown by particular facts. Campbell v. 
 State, 38 Ark. 498 ; Thomas v. People, 67 N. Y. 218. The character of the deceased 
 is irrelevant when there is no evidence of any assault on his part. Abbott v. People, 
 86 N. Y. 400 ; People v. Stock, 1 Idaho, 218 ; State v. Clavis, 80 N. C. 353 ; Bowles v. 
 State, 58 Ala. 335. 
 
 As to threats made bv the deceased against the accused and reported to him. Pow- 
 ell r. State, 52 Ala. 1 ; State v. Dodson, 4 Ore. 64 ; State v. Abbott, 8 W. Va. 741 ; 
 Palraore v. State, 29 Ark. 248. Threats of deceased are not admissible until it has 
 been shown that tlie prisoner was advised of them. State v. McCoy, 29 La. An. 593 ; 
 State V. Turpin, 77 N. C. 473 ; State v. Fisher, 33 La. An. 1344; Combs v. State, 75 
 Ind. 215; State ?'. Ryan, 30 La. An. Pt. 1176. As to evidence of threats made by 
 deceased, but not reported to prisoner, tending to show the aninvis of deceased. Rob- 
 erts V. State, 6S Ala. 156; Id. 515; Johnson v. State, 54 Miss. 430; State v. Elliott, 45 
 la. 486 ; State v. Alexander, 66 Mo. 148 ; State v. Lee, Id. 165 ; State v. Turpin, 77 N.
 
 MURDER. 967 
 
 gence shown to the first transport of passion in these cases, says Mr. 
 Justice Foster, is plainly a condescension to the frailty of the human 
 frame, to the furor hrevis, which, while the frenzy lasts, renders the 
 man deaf to the voice of reason. The provocation, therefore, which 
 extenuates in the case of homicide must be something which the man 
 is conscious of, which he feels and resents at the instant the fact 
 which he would extenuate is committed, not wliat time or accident 
 may afterwards bring to light. Foster, 315. AVherever death ensues 
 from sudden transport of passion or heat of blood, if upon a reason- 
 able provocation, and without malice, or if upon sudden combat, 
 it will be manslaughter : if without such provocation, or if the l)lood 
 has had reasonable time or opportunity to cool, or there be evidence 
 of express malice, it will be murder ; for in no instance can the 
 party killing alleviate his case by referring to a previous provoca- 
 tion, if it appear by any means that he acted upon express malice. 
 1 East, P. C 232. Where the provocation is sought by the pris- 
 oner, it cannot furnish any defence against the charge of murder. 
 Thus, where A. and B. have fallen out, A. says he will not strike, 
 but will give B. a pot of ale to touch him, on which B. strikes, and 
 A. kills him, this is murder. 1 East, P. C. 239. A. and B. having 
 a difference, A. bade B. take a pin out of his (A.'s) sleeve, intending 
 thereby to take an occasion to strike or wound B. : B. did so accord- 
 ingly ; on which A. struck him a blow of which he died. It was 
 held that this was wilful mui-der : 1, because it was no provocation, 
 since it was done with the consent of A. ; and 2, because it appeared 
 to be a malicious and deliberate artifice to take occasion to kill B. 
 1 Hale, P. C. 457. 
 
 C. 473 ; West v. State, 2 Tex. App. 460 ; People v. Travis, 56 Cal. 251 ; Wigins v. 
 People, 93 U. vS. 465; State v. Elkins, 63 Mo. 159; Little v. State, 6 Baxter, 
 (Tcnn.) 491 ; Davidson v. People, 4 Col. 145 ; Stokes v. People, 53 N. Y. 164 ; Harri- 
 son i\ State, 78 Ala. 5 ; Green v. State, 69 Ala. 6. Declarations not amounting to 
 threats are irrelevant. Ter. v. Yarberry, 2 N. M. 391. Or the character of the de- 
 ceased for honesty. Plasters v. State, 1 Tex. App. 673. Where there is proof that 
 the prisoner made the first assault, evidence of threats and character of the deceased 
 should be disregarded. State r. McNeely, 34 La. An. 1022 ; Bond v. State, 21 Fla. 
 738. The threats must be accompanied by acts endangering life or limb. People v. 
 Campbell, 59 Cal. 243 ; Turpin v. State, 55 Md. 462 ; Edwards v. State, 47 Miss. 581 ; 
 State V. Jackson, 33 La. An. 1087 ; Thomas v. State, 11 Tex. App. 315 ; State v. Hall, 
 9 Nev. 58 ; State v. Ferguson, Id. 106 ; State v. Stewart, Id. 120. The bill of excep- 
 tions must show how the prisoner's conduct was affected, or a conviction will not be 
 reversed. State v. Burns, 30 La. An. 679. Where a witness has testified that deceased 
 was pursuing the defendant and himself, he should be allowed further to testify that 
 they endeavored to escape. Russell r. State, 11 Tex. App. 288. ITnder a plea of 
 self-defence the accused may show the threats and character of the deceased. Wil- 
 liams V. State, 74 Ala. 18. Whether he does so or not evidence by the State that de- 
 ceased was a peaceable man is inadmissible. Eussell v. State, 11 Tex. Apf>. 288 ; Hud- 
 son V. State, 6 Tex. App. 565 ; Lewallen v. State, Id. 475 ; State r. Bryant, 55 Mo. 75 ; 
 State V. Jesterman, 68 Mo. 408. The defence cannot show the bad character of the 
 deceased. People v. Walworth, 4 N. Y. Crim. Eep. 355. The general character of 
 the deceased as a turbulent, violent man is relevant, but witnesses cannot testify as to 
 particular acts. State v. Elkins, 63 Mo. 159 ; State r. Brown, Id. 439 ; Marts v. State, 
 26 O. St. 162. Nor can the defendant make a statement as to the details of a quarrel 
 between himself and the deceased. Harrison v. State, 78 Ala. 5. The wife of deceased 
 cannot testify that the killing arose out of a quarrel on her account. Costley v. State, 
 48 Md. 175 ; State v. Baker, 30 La. An. 1134.
 
 968 MURDER. 
 
 Proof of malice — provocation by words or gestures only. Words 
 of reproach, how grievous soever, are not a provocation sufficient to 
 free the party killing from the guilt of murder ; neither are indecent 
 or provoking actions or gestures, expressive of contempt or reproach, 
 sufficient, without an assault upon the person. But a distinction is 
 to be observed, where the party killing upon such provocation makes 
 use of a deadly weapon, or otherwise manifests an intention to kill or 
 do some great bodily harm, in which case it will be murder, and the 
 case where he strikes with a stick or other weapon not likely to kill, 
 ^„_,.-| *and unluckily, aud against his intention, does kill, in which 
 -J latter case it will only be manslaughter. Foster, 290, 291. 
 Where the deceased coming past the shop of the prisoner, distorted his 
 mouth and smiled at him, upon which the prisoner killed him, it was 
 held to be murder, for it was no such prov ocation as would abate the pre- 
 sumption of malice in the party killing. R. v. Brain, 1 Hale, P. C. 
 455. If A. be passing along the street, and B. meeting him (there 
 being a convenient distance between A. and the wall) takes the wall 
 of A., and thereupon A. kills him, this is murder ; but if he had 
 jostled A., this jostling had been a provo cation, and would have made 
 it manslaughter : so it would if A. riding on the road, B. had whipped 
 the horse of A. out of the track, and then A. had alighted and killed 
 B., which would have been manslaughter. 1 Hale, P. C. 455, 456. 
 Upon the former case it has been observed that it properly supposes 
 considerable violence and insult in the jost ling. 1 Russ. Cri. 677 (/) 
 5th ed. If there be a chiding between husband and wife, and the 
 husband thereupon strikes his wife with a pestle, and she dies, this 
 is murder, and the chiding will not be a provocation to reduce it to 
 manslaughter. 1 Hale, P. C. 457. In the following case the dis- 
 tinction taken by Mr. Justice Foster, in the passage cited at the com- 
 mencement of the present paragrapli, came in question : — A. drink- 
 ing in an alehouse, B., a woman, called him " a son of a whore," 
 upon which A. taking up a broomstick at a distance, threw it at her, 
 which hitting her upon the head, killed her ; and whether this was 
 murder or manslaughter was the question. Two points were pro- 
 pounded to the judges at Serjeant's Inn : 1, whether bare words, or 
 words of this nature, will amount to such a provocation as will ex- 
 tenuate the olfeuce into manslaughter ; 2, admitting that it would 
 not, in case there had been a striking witli such an instrument as 
 necessarily would have caused death, as stabbing with a sword, or 
 pistoUiug, yet whether this striking, which was so improbable to 
 cause death, will not alter the case. The judges not being unani- 
 mous in their opinions upon the point, a pardon was recommended. 
 1 Hale, P. C. 456. In one case the judges are said to have resolved, 
 that words of menace or bodily harm would come Avithin the reason 
 of such a provocation as would make the offiince manslaughter only. 
 E. V. Lord Morley, 1 Hale, P. C. 456. But in another report of the 
 same case this resolution does not appear. Kel. 55. And it seems 
 that in such case the words should be accompanied by some act 
 denoting an intention of following them up by an actual assault. 1
 
 MURDER. 969 
 
 East, P. C. 233; 1 Huss. on Cri. 678, 5tli ed. Although this is the 
 general rule of law, yet there may under special circumstances be 
 such a provocation by words as to be at least as great as blows, and 
 in such a case a violent blow resulting in death may be justified so far 
 as to reduce the crime to manslaughter. Per Blackburn, J. R. v. 
 Eothwell, 12 Cox, C. C. 145. 
 
 On the subject of blows accompanied by words. Pollock, B., has 
 exm-essed himself as follows : "If there be a provocation by blows, 
 which would not of itself render the killing manslaughter, but it be 
 accompanied by such provocation, by means of Avords or gestures, as 
 would be calculated to produce a degree of exasperation equal to that 
 which would be produced by a violent blow, I am not prepared to say 
 that the law will not regard these circumstances as reducing the crime 
 to that of manslaughter only." R. v. Sherwood, 1 C. & K. 556, 47 
 E. C. L. And see R. v. Smith, 4 F. & F. 1066, where a wife 
 *spat either at or on her husband, with words of great prove- r^^-^-n 
 cation. He immediately stabbed her, and the judge directed '- 
 the jury to consider whether, under all the circumstances, the assault 
 was a serious one. 
 
 Proof of malice — provocation — assault. Although, under circum- 
 stances, an assault by the deceased upon the prisoner may be sufficient 
 to rebut the general presumption of malice arising from the killing, 
 yet it must not be understood that every trivial provocation which in 
 point of law amounts to an assault, or even a blow, will, as a mat- 
 ter of course, reduce the crime to manslaughter. For where the 
 punishment inflicted for a slight transgression of any sort, is out- 
 rageous in its nature, either in the manner or continuance of it, and 
 beyond all proportion to the offence, it is rather to be considered as 
 the eft'ect of a brutal and diabolical malignity than of human frailty, 
 and is one of the symptoms of that Avhich the law denominates 
 malice, and the crime will amount to murder notwithstanding such 
 provocation. Barbarity, says Lord Holt (R. v. Keate, Comb. 408), 
 will often make malice.*^ 1 East, P. C. 334 ; 1 Russ. Cri. 678, 5th ed. 
 
 * One who is without fault himself when attacked by another, may kill his assail- 
 ant, if the circumstances be sucli as to furnish reasonable ground for apprehending a 
 design, to take awity his life or do him some great bodily harm, and there is also rea- 
 sonable ground for believing the danger imminent that such design will be accom- 
 plislied ; although it may afterwards turn out that the appearances were false, and 
 there was in fact no such design, nor any danger that it would be accomplished. But 
 this principle will not justify one in returning blows with a dangerous weapon when 
 he is struck with the naked hand, and there is no reason to apprehend a design to do 
 him great bodily harm. Nor will it justify homicide when tlie combat can be avoided, 
 or when, after it is commenced, the party can withdraw from it in safety before he kills 
 his adversary. Shester t). People, 2 Comst. 193. [State t'.Rheams, 34 Minn. 18. It is not 
 a ground for a new trial, that the judge in charging the jury in relation to the duty 
 of defendant where his opponent retreated, failed to refer to the fact whether such 
 retreat was made in good faith or not. Jarrell v. State, 58 Ind. 293. Provocation is 
 no defence to an indictment for murder, where tlie defendant incited it. Stewart v. 
 State, 78 Ala. 436 Nor is the doctrine that defendant if attacked must retreat "a 
 cowardly doctrine." Harrison v. State, 78 Ala. 5. It is not self-defence wliere the 
 slayer follows the deceased up. Hughes v. People, 116 111. 330.] The necessity that
 
 970 MURDER. 
 
 There being an affray in the streets, the prisoner, a soldier, ran 
 towards the combatants. The deceased, seeing him, exclaimed, " You 
 will not murder the man, will you ?" The prisoner replying, " What 
 is that to you, you bitch ?" the deceased gave him a box on the ear, 
 upon which the prisoner struck her on the breast with the ])ummel of 
 his sword. She fled, and the prisoner pursuing her, stabbed her 
 in the back. Holt, C J., was first of opinion that this was murder, 
 a single box on the ear from a woman not being a sufficient provoca- 
 tion to kill in this manner, after he had given her a blow in return 
 for the blow on the ear. But it afterwards appearing that the de- 
 ceased had struck the prisoner a blow in the face with an iron patten, 
 which drew a great deal of blood, it was held onlv manslaughter. 
 R. V. Stedman, Foster, 292 ; 1 East, P. C. 234. the smart of the 
 wound, adds Mr. Justice Foster, and the eifusion of the blood might 
 possibly keep his indignation boiling till the moment of the fact. 
 Id. A quarrel arising between some soldiers and a number of keel- 
 men at Sandgate, a violent aifray ensued, and one of the soldiers was 
 very much beaten. The prisoner, a soldier, who had before driven 
 part of the mob down the street with his sword in the scabbard, on 
 his return, seeing his comrade thus used, drew his sword, and bid the 
 mob stand clear, saying he would sweep the street ; and on their 
 pressing on him, lie struck at them with the flat side, and as they fled 
 pursued them. The other soldier in the mean time had got away, 
 and when the prisoner returned he asked whether they had murdered 
 his comrade ; but being again several times assaulted by the mob, 
 he brandished his sword, and bid them keep off. At this time the 
 deceased, who from his dress might be mistaken for a keelman, was 
 going along about five yards from the prisoner ; but before he passed 
 the prisoner wont up to him, and struck him on the head with the 
 sword, of which he presently died. This was held manslaughter ; it 
 was not murder, as the jury had found, because there was a previous 
 
 will justify the taking of life need not be actual, but the circumstances must be such 
 as to impress the mind of the slayer with the reasonal)le belief that such necessity is 
 impendinsf. Oliver v. State, 17 Ala. 588. [The defendant may testify as to his belief 
 that his life was in danger. Duncan v. State, 84 Ind. 204. The belief that it is neces- 
 sary to kill tlie assailant must not only be honest but reasonable. Jackson v. State, 
 78 Ala. 471 ; but where there is substantial immediate fear, self-defence is a good de- 
 fence, even tliough it turn out to have been groundless. People v. Walworth, 4 N. Y. 
 Crini. Rep. 355. Evidence of threats made by the deceased are inadmissible unless it be 
 shown that the defendant was in apparent imminent danger. State v. Labazan, 37 La. 
 An. 489. Whetlier such foundation has been laid is for the court. State v. Janvier, Id. 
 644 ; State v. Kervin, Id. 782 ; State v. Jacksc^i, Id. SU(). So also evidence of malice 
 on the part of the deceased against the prisoner is only admissible in cases of self- 
 defence, or where the evidence is wholly circumstantial. State v. Gooch, 94 N. C. 
 987 ; State ■«. Ilensley, Id. 1021.] When upon the trial of an indictment for murder, 
 the prisoner attempts to justify the homicide on tiie ground that it was cojiimitted in 
 self-defence, he must show to the satisfaction of the jury that he was in imminent dan- 
 ger, either of death or of some great bodily harm. It is not sufficient that the accused 
 believed that it was necessary to take the life of his assailant in order to protect him- 
 self from some great personal injury. People i'. Shester, 4 Barb. 460. S. 
 
 On instructions upon such evidence. Slate v. Harrington, 12 Nev. 125. A blow 
 with a slight walking stick given in consequence of opprobrious words, where the 
 battery was not disproportioned to the insult offered, is not such considerable provo- 
 cation as would rebut the presumption of malice. Thompson v. State, 55 Ga. 47.
 
 MUEDER. 971 
 
 provocation, and the blood -svas heated in the contest ; nor was it in 
 self-defence, because there was no inevitable necessity to excuse the 
 killing in that maimer. 11. v. Brown, 1 East, P. C. 245. 
 
 A gentleman named Luttrell, being arrested for a small debt, pre- 
 vailed on one of the officers to go with him to his lodgings, while the 
 *other was sent for the attorney's bill. Words arose at the r*77o 
 lodgings about civility money, and Luttrell went upstairs to ■- 
 fetch money for the payment of debt and costs. He soon retiu'ned 
 with a brace of loaded pistols in his bosom, which on the importunity 
 of his servant, he laid down on the table, saying he did not intend to 
 hurt the officers, but he would not be ill-used. The officer who had 
 been sent for the bill arriving, and some angry words passing, Luttrell 
 struck one of the officers in the face with a walking cane and drew a 
 little blood, whereupon both of them fell upon him, one stabbed him 
 in nine places, he all the while on the ground begging for mercy, and 
 unable to resist them ; and one of them fired one of the pistols at him 
 while on the ground, and gave him his death-wound. This was held 
 manslaughter, by reason of the first assault by the cane. Such is the 
 report of the case given by Sir J. Strange, upon which Mr. Justice 
 Foster has observed what an extraordinary case it is — that all these 
 circumstances of aggravation, two to one, being helpless on the ground, 
 and begging for mercy, stabbed in nine places, and then dispatched 
 with a pistol, — that all these circumstances, plain indications of a deadly 
 revenge or diabolical fury, should not outweigh a slight stroke with a 
 cane. The learned judge proceeds to state that in the printed trial 
 (St. Tr. 195) there are some circumstances which have been entirely 
 dropped, and others very slightly mentioned by the reporter. 1. Mr. 
 Luttrell had a sword by his side which after the affray was over, was 
 found drawn and broken. How tliat happened did not appear in evi- 
 dence. 2. When Luttrell laid the pistols on the table, he declared 
 that he brought them because he would not be forced out of his lodg- 
 ings. 3. He threatened the officers several times. One of the officers 
 appeared to be wounded in the hands with a pistol-shot (both the pis- 
 tols being discharged in the affray), and slightly on the wrist with 
 some sharp-pointed weapon, and the other was slightly wounded in 
 tlie hand with a like weapon. 5. The evidence touching Luttrell's beg- 
 ging for mercy was not that he was on the ground begging for mercy, but 
 that on the ground he held up his hands as if begging for mercy. The 
 chief justice directed the jury, that if they believed Luttrell was en- 
 deavoring to rescue himself (which he seemed to think was the case, 
 and which, adds Mr. Justice Foster, probably was the case), it would 
 be justifiable homicide in the officers. However, as Luttrell gave the 
 first blow accompanied with menaces to the officers, and having regard 
 to the circumstance of producing loaded pistols to prevent their taking 
 him from his lodgings, which it would have been their duty to do if 
 the debt had not been paid or bail given, he declared it could be no 
 more than manslaughter. E,. v. Reason, Foster, 293 ; 1 Str. 499 ; 1 
 East, P. C. 320. 
 
 Two soldiers, having a recruit in a room under their care, who
 
 972 MURDER. 
 
 wislioJ to leave them, one of tliein stationed liimself at tlio door with 
 his sword drawn to prevent ingress or egress, and a person wisliing to 
 enter the room (which Avas a pnblic-house, kept by his father) was re- 
 sisted by the soldier at the door ; wherenpon a strnggle ensning, the 
 other soldier coming out, strnck the party strnggling with his bayonet 
 in the back. Being indicted for stabbing with intent to mnrder, and 
 convicted, the jndges on a reference to them, held the conviction right, 
 the soldiers having no authority to enlist ; and they said that it 
 would have been murder if death had ensued. E.. v. Longden, 
 Russ. & Ry. 228. 
 
 On a trial for murder of a wife by her husband, evidence that the wife 
 *7~_n *li^^^ 01^ other occasions tried to strangle him with his necker- 
 -J chief was allowed to be given in order to show the character 
 of tlie assault he had to apprehend. It appeared from the evidence 
 that the prisoner was very sensitive about the neck from old abscesses, 
 and tb.at the wife on several occasions had twisted his neckerchief 
 round his neck until he became black in the face. R. v. Hopkins, 10 
 Cox, C. C. 229. Where the prisoner levelled a gun at the deceased 
 and it was a question whether the gun went off accidentally or not. 
 Lord Chief Justice Cockburn left the following questions to the 
 jury: — 1. Was the discharge of the gun intentional or accidental ? (a) 
 If intentional, was it from ill-feeling to Drewry, or desire to get rid of 
 him on account of his wife? in which case it would be murder. (6) 
 If it was not so done, was it done by the prisoner in self-defence, and 
 to protect himself from death or serious bodily injury intended 
 towards him by the deceased ; or (c) from the reasonable apprehension 
 of it induced by the words and conduct of the deceased, though the 
 latter may not, in fact, have intended death or serious injury? (d) If 
 not so, was it done after an assault made by the deceased on the pris- 
 oner, tliough short of an assault calculated to kill or cause serious 
 bodily injury? or (e) Was it done under such a degree of alarm and 
 bewilderment of mind, caused by the conduct of the deceased, as to 
 deprive the prisoner for the time of his reason and power of self-con- 
 trol ; or (/) Was the effect of the language and conduct of the deceased 
 such as to provoke the angry passions of the prisoner so as to deprive 
 him of his reason and power of self-control ? 2. If the discharge of 
 the gun was accidental — in which case the prisoner cannot be convicted 
 of murder, but may be of manslaughter — (a) Was the gun levelled 
 by tlie prisoner at the deceased in self-defence against an attack of the 
 deceased, endangering life or limb, or reasonably apprehended by the 
 prisoner as likely to do so, in either of which cases the prisoner would 
 be entitled to acquittal ? or (6) Was the gun levelled by the prisoner 
 at the deceased unnecessarily under the circumstances, but without the 
 intention of discharging it, in which case it would be manslaughter. 
 R. V. Weston, 14 Cox, C. C. 346. 
 
 Under this head may be mentioned the case of peace officers 
 endeavoring to arrest without proper authority, the killing of whom 
 Avill not, unless the party can retreat, amount to murder ; the at- 
 tempt to make an unlawful arrest being considered a sufficient prove-
 
 MURDER. 973 
 
 cation, R. v. Curvan, 1 Moo. C. C. 132 ; and see all the cases stated 
 post} 
 
 Proof of malice — provocation — instrument used. In consider- 
 ing the question of malice where death has ensued after provocation 
 given by the deceased in assaulting the prisoner, or ujjon other provo- 
 cation, especial attention is to be paid to the nature of the weapon with 
 which death was inflicted.^ If it was one likely to produce that re- 
 sult, as used by the prisoner, he will be presumed to have used it with 
 the intention of killing, which will be evidence of malice:^ if, on 
 the contrary, it was a weapon not likely to produce death, or cal- 
 culated to give a severe wound, that presumption will be ^vanting. 
 It must be admitted to be extremely difficult to define the nature of 
 the weapons which are likely to kill (Ld. Raym. 1498); since it is 
 rather in the mode in which the weapon is used than in the nature of 
 the weapon itself, that the danger to life consists. Accordingly, the 
 decisions upon this head are far from being satisfactory, and do 
 not lay down any general rule with regard to the nature of the 
 '^weapons. In one instance, Mr. Justice Foster takes a nice r^^i^R 
 distinction with regard to the size of a cudgel. The observa- L 
 tions arise upon R. v. Rowley, 12 Rep. 17 ; 1 Hale, P. C. 453; which 
 was as follows : — The prisoner's son fights with another boy, and is 
 beaten. He runs home to his father all over blood, and the father 
 takes a staff, runs three-quarters of a mile, and beats the other boy, 
 who dies of the beating. This is said to have been ruled manslauoh- 
 ter, because done in sudden heat and passion. " Surely," says !^Ir. 
 Justice Foster, " the provocation was not very grievous : the boy had 
 fought with one who happened to be an overmatch for him, and was 
 worsted. If, upon this provocation, the father, after running three- 
 quarters of a mile, had set his strength against the child, and de- 
 spatched him with a hedge stake, or any other deadly weapon, or by 
 repeated blows with a cudgel, it would, in my opinion, have been 
 murder ; since any of these circumstances would have been a plain 
 indication of the malitia, the mischievous, vindictive motive before 
 explained." But with regard to these circumstances, with what 
 weapon or to what degree the child is beaten, Coke is totally silent. 
 But Croke (Cro. Jac. 29G) sets the case in a much clearer light. His 
 words are : — " Rowley struck the child with a small cudgel [Godbold, 
 182, calls it a rod], of which stroke he afterwards died." *' I think," 
 continues Foster, "it might be fairly collected by Croke's manner of 
 speaking, that the accident happened by a single stroke with a cudgel 
 
 * Unless express malice can be shown. Raffertyu. People, 69 111. 111. 
 
 2 Kilpatrick v. Comraonwealth, 31 Pa. St. 198 ; State v. Ward, 5 Hairing. 496 ; 
 People V. Butler, 8 Cal. 435 ; State v. West, 6 Jones's Law, 505 ; State v. Gillick, 7 
 Clarke, 287. S. 
 
 ' See Wills v. State, 74 Ala. 21. The presumption of malice from weapon used is 
 rebutted if there is a reasonable doubt shown. Lamar v. State, 63 Miss. 265. The 
 question whether the weapon is deadly is for the jury. Pierce v. State, 21 Tex. App. 
 540.
 
 974 MURDER. 
 
 not likely to destroy, and that doath did not immediately onsne. The 
 stroke was given in heat of blood, and not with any of the circum- 
 stances which import the malilia, the malignity of heart attending the 
 facts already explained, and therefore manslaughter. I observe Lord 
 llaymond lays great stress on the circumstance that the stroke Avas 
 with a cudgel not likely to kill." Lord llaym. 1498 ; Foster, 294. 
 The nature of the instrument used, as being most material on the 
 question of malice, was much commented upon in the following case : 
 It was found upon a special verdict that the prisoner had directed her 
 daugliter-in-law, a child of nine years old, to spin some yarn, and 
 upon her return home, finding it badly done, she threw a four-legged 
 stool at the child, and struck her on the right temple, of M'hich the 
 child soon afterwards died. The jury found that the stool Avas of 
 sufficient size and weight to give a mortal blow, but that the prisoner, 
 when she threw it, did not intend to kill the deceased. She afterwards 
 threw the body into the river, and told her husband that the child was 
 lost. After argument in the King's Bench (where several formal ob- 
 jections were taken to the special verdict), the case, on account of its 
 difficulty, was referred to the consideration of all the judges, but no 
 opinion was ever delivered, as some of the judges thought it a proper 
 case to recommend a pardon. R. v. Hazel, 1 East, P. C. 236 ; 1 Leach, 
 368. Where the prisoner had given a pair of clogs to the deceased, a 
 boy, to clean, and finding them not cleaned, struck him with one of 
 them, of which blow the boy died ; this was held to be only man- 
 slaughter, because the prisoner could not, from the size of the instru- 
 ment made use of, have had any intention to take away the boy's life. 
 R. V. Turner, Ld. Raym. 144, 1499. The prisoner, a butcher, seeing 
 some of his sheep getting through the hurdles of their pen, ran 
 towards the boy who was attending them, and taking up a stake that 
 was on the ground, threw it at him. The stake hit the boy on the 
 head, and fractured his skull, of which he soon afterwards died. 
 5^^^.p-l Nares, J., said to the jury : You will consider whether *the 
 -■ stake, which was lying on the ground, and was the first thing 
 the prisoner saw in the heat of his passion, is or is not, under such 
 circumstances, and in such a situation, an improper instrument for the 
 purposes of correction. For the using a weapon from which death is 
 likely to ensue, imports a mischievous disposition, and the law iniplies 
 that a degree of malice attending the act, which, if death actually 
 happen, will be murder. Therefore, if you would think the stake an 
 improper instrument, you will further consider whether it was used 
 with an intent to kill. If you think it was, you must find the pris- 
 oner guilty of murder. But, on the contrary, if you are persuaded 
 that it was not done with an intent to kill, the crime will then amount 
 at most to manslaughter. R. v. Wigg, 1 Leach, 387 (n). A. finding 
 a trespasser on his land, in the first transport of his passion he beats 
 him, and kills him ; this has been held manslaughter. 1 Hale, P. C. 
 473. But it must be understood, says Mr. Justice Foster, that he 
 beat him not with a mischievous intention, but merely to chastise and 
 deter him. For if he had knocked his brains out with a bill or hedge-
 
 MURDER. 975 
 
 stake, or given him an outrageous beating with an ordinary cudgel, 
 beyond the bounds of a sudden resentment, whereof he had died, it 
 would have been murder. Foster, 291. 
 
 The prisoner was indieted for manslaughter. It appeared that he 
 was in the habit of going to a cooper's shop for chips, and was told 
 by the cooper's apprentice that he must not come again. In the course 
 of the same day he came again, and was stopped by the aj)prentice, 
 upon which he immediately went oiF, and in passing a work-bench 
 took up a ichittle (a sharp-pointed knife with a long handle) and 
 threw it at the apprentice, whose body it entered, and killed him. 
 Hullock, B., said to the jury, if without adequate provocation a per- 
 son strikes another with a weapon likely to occasion death, although 
 he had no previous malice against the party, yet he is to be presumed 
 to have had such malice, from the circumstances, and he is guilty of 
 murder. The jury found the prisoner guilty, and Hullock, B., ob- 
 served, that had he been indicted for murder, the evidence would have 
 sustained the charge. R. v. Laugstaif, 1 Lewis, C. C. 162. 
 
 Provocation in other cases — third parties. There is one peculiar 
 case of provocation which the law recognizes as sufficient to reduce 
 the act of killing to manslaughter ; where a man finds another in the 
 act of adultery with his wife, and kills him in the first transport of 
 his passion. R. v. Manning, Sir T. Raym. 212; 1 Russ. Cri. 687, 
 5th ed. But if the husband kill the adulterer deliberately, and upon 
 revenge, after the fact and sufficient cooling time, the provocation will 
 not avail in alleviation of the guilt. 1 East, P. C. 251 ; R. v. Kelley, 
 2 C. & K. 814, jDcr Rolfe, B., 61 E. C. L.^ 
 
 So if a father see a person in the act of committing an unnatural 
 offence with his son, and instantly kill him, it seems that it will be 
 only manslaughter, and that of the lowest degree ; but if he only 
 hear of it, and go in search of the person, and meeting him strike 
 him with a stick, and afterwards stab him with a knife and kill him, in 
 point of law it will be murder. R. v. Fisher, 8 C. & P. 182, 34 E. C. L. 
 
 In the above case, Parke, J., said, that whether the blood has had 
 time to cool or not is a question for the court, and not for the jury ; 
 but it is for the jury to find Mdiat length of time elapsed between the 
 provocation received and the act done. It is, however, submitted 
 that the whole question is for the jury. 
 
 *It has been held by Rolfe, B., that a blow given to the r*777 
 prisoner's wife would afford the same justification as a blow ■- 
 given to the prisoner himself, so as to reduce the killing to man- 
 slaughter. R. V. Rodgers, MS. York Spr. Ass. 1842 ; and in one ease 
 Cockburn, C. J., is reported to have held that the charge of wilful 
 murder was reducible to manslaughter where the prisoner had killed 
 his son-in-law, who had assaulted the prisoner's daughter in his pres- 
 ence in a violent manner, although not in a manner to endanger life. 
 R. V. Harrington, 10 Cox, C. C. 370. 
 
 ^The knowledge of the wife's adultery must have been learned by the husband very 
 shortly before he kills the adulterer. Sanchez v. People, 22 N. Y. 147.
 
 976 MURDER. 
 
 Proof of malice — provocation must be recent. In order to rcbnt 
 the evidence of malice, it must appear that the provocation was recent; 
 for ill every case of homicide, however great the provocation may be, 
 if there be a sufficient time for passion to subside, and for reason to 
 interpose, such homicide will bo murder.* Foster, 296. "With respect 
 to the interval of time allowed for passion to subside, it has l)een ob- 
 served, that it is much easier to lay down rules for determining what 
 cases arc Avithout the limits than how far exactly those limits extend. 
 It must be remembered, that in these cases the immediate object of in- 
 quiry is, whether the suspension of reason arising from sudden pas- 
 sion continued from the time of the provocation received to the 
 very instant of the mortal stroke given ; for if, from any circum- 
 stance whatever, it appears that the party reflected, deliberated, or 
 cooled, any time before the mortal stroke given, or if, in legal pre- 
 sumption, there was time or opportunity for cooling, the killing will 
 amount to murder, it being attributable to malice and revenge rather 
 than to human frailty. 1 East, P. C. 252; 2 Ld. Eaym. 1496. 
 The following are stated as general circumstances amounting to evi- 
 dence of malice, in disproof of the party's having acted under the in- 
 fluence of passion only. If, between the provocation received and the 
 stroke given, the party giving the stroke fall into other discourse or 
 diversions, and continue so engaged a reasonable time for cooling ; or 
 if he take up or pursue any other business or design not connected 
 with the immediate object of his passion, or subservient thereto, so 
 that it may be reasonably supposed that his intention was once called 
 off" from tiie subject of his provocation ; again, if it appear that he 
 meditated upon his revenge, or used any trick or circumvention to eifect 
 it, for that shows deliberation which is inconsistent with the excuse of 
 sudden passion, and is the strongest evidence of malice ; in these cases 
 the killing will amount to murder.^ It may further be observed, in 
 respect to time, that in proportion to the lapse between the provo- 
 cation and the stroke, less allowance ought to be made for any ex- 
 cess of retaliation, either in the instrument or the manner of it. 
 The length of time intervening between the injury and the retali- 
 ation adds very much to the presumption of malice in law, and is 
 in some cases evidence in itself of deliberation. 1 East, P. C. 252. 
 A leading case on this subject is that of Major Oneby, who was in- 
 
 ^ State V. McCants, 1 Spears, 384. Evidence of a fight which took place hetween the 
 deceased and the defendant six hours before the homicide, is not admissible in favor 
 of the defendant, either as a part of tlie resyestce, or to show a provocation for the 
 murder. People v. Smith, 26 Cal. 665. [Nor evidence of threats made two Avceks 
 previous to the murder, although communicated to the accused, where there is evidence 
 of deliberation on his part. Payne v. State, 00 Ala. 80. Nor details of how the de- 
 ceased whipped the prisonei"'s brother, where prisoner heard of it only several days 
 after it occurred. Johnson v. Commonwealth, 82 Ky. 110.] "When the immediate 
 occasion on which a liomicide occurred Avas the result of preconceived anger and 
 malice, it was held that the killing, if done in malice, though in mutual combat, 
 was deliberate and premeditated murder. State v. Green, 37 Mo. 460. If the de- 
 fendant of malice sought the quarrel, no provocation will reduce the grade. Murphy 
 V. State, 37 Ala. 142. S. 
 
 * Commonwealth v. Green, 1 Ash. 289. S,
 
 MURDER. 977 
 
 dieted for the murder of a Mr. Gower. A special verdict was found, 
 which stated that the prisoner being in company with the deceased 
 and three other persons at a tavern, in a friendly manner, after some 
 time began playing at hazard, when Rich, one of the company, asked 
 if any one would set him three half-crowns, whereupon the deceased, 
 in a jocular manner, laid down three halfpence, telling Rich he had 
 set him three pieces, and the prisoner at the same time set Rich three 
 half-crowns and lost them to him ; immediately after which the 
 *prisoner in an angry manner turned to the deceased and said, rH«77o 
 it was an impertinent thing to set halfpence, and he was an L 
 impertinent puppy for so doing, to which the deceased answered, who- 
 ever called him so was a rascal. Upon this the prisoner took up a 
 bottle, and with great force threw it at the deceased's head, but did 
 not hit him. The deceased immediately tossed a candlestick or bottle 
 at the prisoner, which missed him ; upon which they both rose to fetch 
 their swords, which hung in the room, and the deceased drew his sword, 
 but the prisoner was prevented from drawing his by the company. 
 The deceased then threw away his sword, and the company interposing, 
 they sat down again for the space of an hour. At the expiration of 
 that time the deceased said to the prisoner, "We have had hot Avords, 
 but you were the aggressor ; but I think we may pass it over," and 
 at the same time offered his hand to the prisoner, who replied, " No, 
 damn you, I will have your blood !" The reckoning being paid, all 
 the company, except the prisoner, went out of the room to go home, 
 but he called to the deceased, " Young man, come back, I have some- 
 thing to say to you," on which the deceased came back. The door 
 was immediately closed, and the rest of the company excluded, but 
 they heard a clashing of swords, and the deceased was found to have 
 received a mortal wound. It was also found that at the breaking up 
 of the company the prisoner had his great-coat thrown over his shoul- 
 ders, and that he received three slight wounds in the fight, and the de- 
 ceased being asked on his death-bed whether he received his wound in 
 a manner among swordsmen called fair, answered, " I think I did." 
 It was further found, that from the throwing of the bottle there was 
 no reconciliation between the prisoner and the deceased. Upon these 
 facts all the judges were of opinion that the prisoner was guilty of 
 murder, he having acted upon malice and deliberation, and not from 
 sudden passion. R. v. Oneby, 2 Str. 766 ; 2 Ld. Raym. 1489. It 
 must, I think, says Mr. East, be taken upon the facts found in the 
 verdict, and the argument of the chief justice, that after the door had 
 been shut the parties were upon an equal footing, in point of prepara- 
 tion, before the fight began in which the mortal wound was given. 
 The main point then upon which the judgment turned, and so declared 
 to be, was express malice, after the interposition of the company, and 
 the parties had all sat down again for au hour. Under these circum- 
 stances the court were of opinion that the prisoner had had reasonable 
 time for cooling, after Avhich, upon an offer of reconciliation from the 
 deceased, he had made use of that bitter and deliberate expression, 
 he ivould have his blood ! And again, the prisoner remaining in the 
 62
 
 978 MUKDEE. 
 
 room after the rest of the company liad retired, and calling back the 
 deceased by the contemptuous appellation of young man, on pretence 
 of having something to say to him, altogether showed such strong 
 proof of deliberation and coolness, as jDrccluded the presumption of 
 passion being continued down to the time of the mortal stroke. 
 Though even that would not have availed the prisoner under these 
 circumstances, for it must have been implied, according to li.v. Maw- 
 gridge (Kel. 128), that he acted upon malice, liaving in the iirst 
 instance, before any provocation received, and without warning or 
 giving time for preparation on the part of the deceased, made a deadly 
 assault upon him. 1 East, P. C 254. The following case will illus- 
 trate the doctrine in question. The deceased was requested by his 
 mother to turn the prisoner out of her house, which, after a short 
 struggle, he effected, and in doing so gave him a kick. On the 
 *7'-q"| ^prisoner leaving the house, he said to the deceased, " he would 
 J make him remember it," and instantly went up the street to his 
 own lodging, which was distant from two to three hundred yards, where 
 he was heard to go to his bed-room, and, through an adjoining kitchen, 
 to a jiantry, and thence to return hastily ba(!k again by the same way, 
 to the street. In the pantry the prisoner had a sharp butcher's knife 
 with which he usually ate. He had also three similar knives there, 
 which he used in his trade of a butcher. About five minutes after 
 the prisoner had left the deceased the latter followed him for the pur- 
 pose of giving him his hat, which he had left behind him, and they met 
 about ten yards distant from the prisoner's lodgings. They stopped for 
 a short time, and were heard talking together, but without any words 
 of anger, by two persons who went by them, the deceased desiring 
 the prisoner not to come down to his mother's house that night, and 
 the prisoner insisting that he would. After they had walked on 
 together for about fifteen yards, in the direction of the mother's 
 house, the deceased gave the prisoner his hat, when the latter ex- 
 claimed, with an oath, that he would have his rights, and instantly 
 stabbed the deceased with a knife or some sharp instrument in two 
 places, giving him a sharp wound on the shoulder, and a mortal 
 wound in the belly. As soon as the prisoner had stabbed the de- 
 ceased a second time, he said he had served him right, and instantly 
 ran back to his lodgings, and was heard, as before, to pass hastily 
 through his bed-room and kitchen to the pantry, and thence back to 
 the bed-room, where he went to bed. No knife was found upon him, 
 and the several knives appeared the next morning in their usual 
 places in the pantry. Tindal, C. J., told the jury that the jjrincipal 
 question for their consideration would be, whether the mortal wound 
 was given by the prisoner, while smarting under a provocation so re- 
 cent and so strong, that he might not be considered at the moment 
 the master of his own understanding : in which case, the law, in 
 compassion to human infirmity, would hold the offence to amount to 
 manslaughter only ; or whether there had been time for the blood to 
 cool, and for reason to resume its seat, before the mortal wound was 
 given ; in which case the crime would amount to wilful murder.
 
 MURDER. 979 
 
 That, in determining this question, the most favorable circumstance 
 for the prisoner was the shortness of time which elapsed between the 
 original quarrel and the stabbing of the deceased ; but, on the other 
 side, the jury must recollect that the weapon which inflicted the fatal 
 wound was not at hand when the quarrel took place, but was sought 
 for by the prisoner from a distant place. It would be for them to 
 say, whether the prisoner had sliown thought, contrivance, and de- 
 sign, in the mode of possessing himself of this weapon, and again re- 
 placing it immediately after the blow was struck : for the exercise of 
 contrivance and design denoted rather the presence of judgment and 
 reason than of violent and ungovernable passion. The jury found the 
 prisoner guilty of murder. R. v. Hay ward, 6 C. & P. 157, 25 E. 
 C. L. 
 
 " If a person receives a blow, and immediately avenges it with any 
 instrument that he may happen to have in his hand, then the offence 
 will be only manslaughter, provided the blow is to be attributed to 
 the passion of anger arising from that previous provocation, for anger 
 is a passion to which good and bad men are both subject. But the 
 law requires two things : first, that there should be that provocation ; 
 and secondly, that the fatal blow should be clearly traced to the 
 influence of passion arising from that provocation." Per Parke, B., 
 *R. V. Thomas, 7 C. & P. 817, 32 E. C. L. In the same case p^g^ 
 the learned baron held, tiiat, if from the circumstances it ap- L 
 peared that the party, before any provocation given, intended to use a 
 deadly weapon towards any one who might assault him, this would 
 show that a fatal blow given afterwards to a person who struck hira 
 ought not to be attributed to the provocation, and the crime would 
 therefore be murder. And see next heading. 
 
 The prisoner was charged with the wilful murder of his son, John 
 Kirkham, by stabbing him with a knife. A witness named Chorlton 
 stated, " I was alarmed on the morning of Saturday, the 24th of June, 
 at about four o'clock, and got up. On entering the prisoner's house 
 I saw the prisoner and his son on the floor ; the son was uppermost, 
 and they were wrestling together. I asked the deceased to get up ; 
 he did so, and went to the door. The prisoner then took up a coal-pick 
 (a sort of small pick-axe), which must have been in the room, as he 
 did not leave the room to get it. The prisoner threw the coal-pick 
 at his son, which struck him on the back. The deceased said it hurt 
 him, and the prisoner said he would have his revenge. The coal-pick 
 flew into the street, and the deceased fetched it, and tossed it into the 
 house, but not at the prisoner. The deceased stood at the door Math 
 his hands against it, when the prisoner took a knife off the table, 
 and jobbed the deceased with it on the left side. The deceased said, 
 * Father, you have killed me !' and retreated a few paces into the 
 street, reeling as he went. I told the prisoner he had stabbed his son. 
 He said, ' Joe, I will have my revenge.' The deceased came into the 
 house again, and the prisoner stabbed the deceased again in the left 
 side. The deceased died at seven o'clock the same morning. I think 
 from my first going to the house till the fatal blow was struck was about
 
 980 MURDER. 
 
 twenty minutes." A female, named Wagstaflfe, was also examined, who 
 said, *' I saw the prisoner on the Monday l)ef()re the death of his son. 
 He came to my house drunk, and said he had lost his wife, and that 
 he and his wife had been quarrelling the Saturday before, and if his 
 son John came over the door-sill again he Avould be his butcher. He 
 said his son took his mother's jiart. I introduced the name of the 
 deceased by saying that if he beat his wife his son would take licr j^art, 
 and it was upon that he used the expressions as to the deceased. On 
 the evening before the deceased was killed I saw the prisoner again ; 
 he was rather tipsy ; I Avas talking to his wife, who went away when 
 he came up. He said, if his wife talked to me he would hit her, and 
 he added, ' To-morrow is the day of execution, and that day I shall 
 finish their hash.' I told him if he was sober he would not say so ; 
 ta this he made no reply. I begged him to be quiet, and he went 
 into his own house." In her cross-examination, this witness stated that 
 the threat, " I will be your butcher," is a common threat in that part 
 of the country. Coleridge, J., told the jury, after observing on the 
 declarations of the prisoner spoken to by the last witness, which he 
 did not think entitled to much consideration : " Then I will suppose 
 that all this was purely unpremeditated till Chorlton came, and then 
 the case will stand thus : — the father and son have a quarrel ; the son 
 gets the father down, the son has the best of it, and the father has 
 received considerable provocation ; and if, when he got up, and threw 
 the pick at the deceased, he had at once killed him, I should have 
 said at once that it was manslaughter. Now comes the more im- 
 portant question (the son having given no further provocation), 
 whetlier in truth that which was in the first instance sufficient 
 *78n *provocation, v/as so recent to the actual deadly blow, that it 
 -J excused the act that was done ; and whether the father was act- 
 ing under the recent sting, or had had time to cool, and then took up 
 the deadly weapon. I told you just now he must be excused if the 
 provocation was recent, and he acting under its sting, and the blood 
 remained hot ; but you must consider all the circumstances, the time 
 which elapses, the prisoner's previous conduct, the deadly nature of 
 the weapon, the repetition of the blows, because though the law con- 
 descends to human frailty, it will not indulge human ferocity." The 
 prisoner was found guilty of manslaughter. R. v. Kirkham, 8 C. & P. 
 115, 34 E. C. L. 
 
 The prisoner, who was charged with murder, was a private of the 
 Coldstream Guards, and was discharged on the 11th October, and on 
 the evening of that day went to the Three Horseshoes, at Hampstead, 
 in company with a person named Burkill and his brother, Richard 
 Smith, There were two more soldiers in the public-house, and the 
 deceased, James Chaplain, was sitting with them. A dispute arose 
 about paying the reckoning, and a fight took place between the pris- 
 oner and a man named Burrows. In the scuffle the deceased jumped 
 over the table and struck the jirisoner. The deceased was turned out 
 by the landlord, but admitted again in about ten minutes, and the 
 parties all remained drinking together after that for a quarter of an
 
 MURDER. 981 
 
 hour, when the prisoner and his brother went out. The deceased re- 
 mained about a quarter of an hour after the prisoner, and then left. 
 Tiie prisoner and deceased were both in liquor. The deceased tried 
 to get out directly after the prisoner and his brother left, but was de- 
 tained by persons in the room. As soon as they let him go, he jumped 
 over the table, and went out of the house, saying, as he went, that if 
 he caught them he would serve them out. The deceased was a person 
 who boasted of his po^vers as a fighter. The deceased followed the 
 prisoner and his brother into a mews not far from the public-house 
 where they had been drinking ; and a witness who had lived near 
 stated that he heard a noise, and went to the door of his house, and then 
 heard a bayonet fall on the ground, and on going out into Church-lane, 
 heard a person, named Croft, crying out " Police ! police ! a man is 
 stabbed !" and on going up, found the deceased lying on the ground 
 wounded. Croft stated, that he was in Field-place, near Church-lane, 
 and heard voices, which induced him to run towards a bar there, and 
 when within a yard of the bar he heard a blow like the blow of a fist ; 
 this was followed by other blows. After the blows, he heard a voice 
 say, " Take that," and in half a minute, to the best of his judgment, 
 the same voice said, " He has stabbed me !" The wounded man then 
 ran towards him, and he discovered it to be the deceased. He said 
 "I am stabbed," three times, and soon after fell on the ground; the 
 prisoner was soon after taken into custody, and was then bleeding at 
 the nose. The prisoner had not any side arms ; but his brother, who 
 was with him, had a bayonet. For the defence, the prisoner's brother 
 was called as a witness, and stated, when they had got about twenty 
 yards through the bar mentioned in Croft's evidence, he heard some- 
 body say something, but did not take notice of it, and deceased came 
 up and struck him on the back of the head, which caused him to fall 
 down, and his bayonet fell out of the sheath upon the stones, and the 
 deceased picked it up, and followed the prisoner, who had gone on ; 
 there was a great struggle between them, and very shortly after the 
 deceased cried out " I am stabbed ! I am stabbed !" A surgeon was 
 also called *who proved that there were wounds on the pris- r*7Qo 
 oner's hands such as would be made by stabs of a bayonet, ^ 
 and that his back was one uniform bruise. Bosanquet, J., in sum- 
 ming up, to the jury, said, " Did the prisoner enter into a contest 
 with an unarmed man, intending to ava'l himself of a deadly weapon ? 
 for if he did, it will amount to murder ; but if he did not enter into 
 the contest with the intention of using it, then the question will be, 
 Did he use it in the heat of passion, in consequence of an attack made 
 upon him ? if he did, then it will be manslaughter. But there is an- 
 other question. Did he use the weapon in defence of his life ? Before 
 a person can avail himself of that defence, he must satisfy the jury 
 that that defence was necessary ; that he did all he could to avoid it, 
 and that it was necessary to protect his own life, or to protect him- 
 self from such serious bodily harm as would give reasonable appre- 
 hension that his life was in immediate danger. If he used the weapon, 
 having no other means of resistance, and no means of escape, in such
 
 982 MURDEK. 
 
 case, if he retreated as far as he could, he will be justified." The 
 prisoner was found guilty of manslaughter, but strongly recommended 
 to mercy. K. v. Smith, 8 C: & P. 160, 34 E. C. L. 
 
 Proof of malice — drunkenness. It has been held by Park and 
 Littledale, J J., that R. v. Grindley, 1 Russ. Cri. 114, 5th ed., in 
 which Holroyd, J., ruled that though voluntary drunkenness cannot 
 excuse for the commission of crime, yet where, as upon a charge of 
 murder, the question is whether an act is premeditated or not, or 
 done only from sudden heat or impulse, the fact of the party being 
 intoxicated was a circumstance proper to be taken into consideration, 
 is not law. R. v. Carroll, 7 C. & P._ 145, 32 E. C. L.^ See post, tit. 
 " Insanity — cases caused by intoxication." It would seem that where 
 the very essence of the crime is the intention with which the act is 
 done, it may be left to the jury to say whether the prisoner was so drunk 
 as not to be capable of forming any intention whatever, and if so 
 they may acquit him of the intent. R. v. Cruse, 8 C. & P. 541, 34 
 E. C. L. R. V. Monkhouse, 4 Cox, C. C. 55. Where the prisoner 
 was indicted for stabbing with a fork with intent to murder, and it 
 appeared that he was in liquor, Alderson, B., said, " If a man uses a 
 stick, you would not infer a malicious intent so strongly against him, 
 if drunk, when he made an intemperate use of it, as you would if he 
 had used a diiferent kind of weapon ; but where a dangerous weapon 
 is used, which, if used, must produce grievous bodily harm, drunken- 
 ness can have no effect on the consideration of the malicious intent of 
 the party." R. v. Meakiu, 7 C. & P. 297, 32 E. C. L. In R. v, 
 Thomas, Id. 817, which was also an indictment for maliciously stab- 
 bing, Parke, B., told the jury, that " drunkenness may be taken into 
 consideration in cases where what the law deems sufficient provocation 
 has been given, because the question is in such cases, whether the fatal 
 act is to be attributed to the passion of anger excited by the previous 
 provocation, and that passion is more easily excitable in a person 
 when in a state of intoxication than when he is sober. So where 
 the question is, whether words have been uttered with a deliberate 
 purpose, or are merely low and idle expressions, the drunkenness 
 of the person uttering them is proper to be considered. But 
 if there is really a previous determination to resent a slight 
 affront in a barbarous manner, the state of drunkenness in which 
 *7R'\\ **^^^ prisoner was ought not to be regarded, for it would fur- 
 ■^ nish no excuse." 
 
 ^ Voluntary intoxication is no defence. State v. Sneed, 88 Mo. 138 ; but where the 
 offence is divisible into degrees it is admissible to determine how the act was affected 
 by volition. Colbath v. State, 4 Tex. App. 76 ; Brown v. State, Id. 275 ; ' McCarty v. 
 State, Id. 461 ; Ba>Tie v. State, 5 Tex. App. 35 ; Pocket v. State, Id. 552 ; People v. 
 Odell, 1 Dak. Ter. 197. The fact of intoxication, no matter how complete and over- 
 powering, is not conclusive evidence of the absence of an intent to take life. State 
 V. White, 14 Kan. 538. But see Smith v. State, 4 Neb. 277. The fact of intoxication 
 is admissible to show that no crime has been committed, or to show the degree or 
 grade of crime: thus in a prosecution for shooting with intent to wound, evidence is 
 admissible to prove that defendant was so much intoxicated that he could not form or 
 have such an intent. Cline v. State, 43 Ohio St. 332.
 
 MUEDER. 983 
 
 Proof of malice — provocation — express malice. As evidence of 
 provocation is only an answer to that presumption of malice which 
 the law infers in every case of homicide, if there is proof of express 
 malice at the time of the act committed, the provocation will not 
 reduce the offence from murder to manslaughter.^ In such a case, not 
 even previous blows or struggling will reduce the offence to homicide. 
 1 Russ. on Cri. 643, 5th ed. This rule is illustrated by the following 
 case : Richard Mason was indicted and convicted for the wilful murder 
 of William Mason, his brother ; but execution was respited to take the 
 opinion of the judges, upon a doubt whether, under the circumstances 
 given in evidence, the offence amounted to murder or manslaughter. 
 The prisoner, with the deceased and some neighbors, were drinking 
 in a friendly manner at a public-house, till growing warm in liquor, 
 but not intoxicated, the prisoner and the deceased began in idle sport 
 to push each other about the room. They then wrestled one fall, 
 and soon afterwards played at cudgels by agreement. All this time no 
 tokens of anger appeared on either side, till the prisoner, in the cudgel 
 play, gave the deceased a smart blow on the temple. The deceased 
 thereupon grew angry, and throwing away his cudgel, closed with 
 the prisoner, and they fought a short time in good earnest ; but the 
 company interposing, they were soon parted. The prisoner then 
 quitted^the room in anger ; and when he got into the street was heard 
 to say, "Damnation seize me, if I do not fetch something and stick 
 him;" and being reproved for such expressions, he answered, " I'll 
 be damned to all eternity if I do not fetch something and run him 
 through the body." The deceased and the remainder of the company 
 continued in the room where the affray happened : and in about half 
 an hour the prisoner returned, having in the meantime changed a 
 slight for a thicker coat. The door of the room being open to the 
 street, the prisoner stood leaning against the doorpost, his left hand 
 in his bosom, and a cudgel in hig right ; looking in upon the company, 
 but not speaking a word. The deceased seeing him in that posture 
 invited him into the company ; but the prisoner answered, " I will not 
 come in." " Why will you not ?" said the deceased. The prisoner 
 replied, " Perhaps you may fall on me, and beat me." The deceased 
 assured him he would not, and added, " Besides, you think yourself 
 as good a man as me at cudgels ; perhaps you will play at cudgels 
 with me." The prisoner answered, " I am not afraid to do so, if you 
 
 ^ When a deliberate purpose to kill or do great bodily harm is entertained, and 
 there is a consequent unlawful act of killing, the provocation, whatever it may be, 
 which immedi;itely precedes the act, is to be thrown out of the case and goes for noth- 
 ing, unless it can be shown that this purpose was abnndoned before the act was done. 
 State V. Johnson, 1 Ired. 354; State v. Lane, 4 Id. 113. [But see State v. Barnwell, 
 80 N. C. 4(36.] When there is express malice, no amount of provocation will make 
 the killing manslaughter. Riggs v. State, 30 Miss. 635 ; Ex parte Wray, Id. 673 ; Cot- 
 ton V. State, 31 Id. 504. See Quarles v. State, 1 Sneed. 407. S. 
 
 Express malice may be shown not only by words and declarations, but by circum- 
 stances, the instrument used, the cliaracter of the blow, and the deliberation used in 
 planning it. Singleton v. State, 1 Tex. App. 501 ; State v. Matthews, 80 N. C. 417 ; 
 Fisher v. vState, 77 Ind. 42. Where the State thus shows malice, it may be relmtted 
 by evidence that defendant acted as he did in anticipation of an attack. Long r. State, 
 52 Miss. 23.
 
 98-4 MUEDER. 
 
 will keep off your fists." Upon these words the deceased got up, and 
 went towards the prisoner, who dropped the cudgel as the deceased 
 was coming up to him. The deceased took up the cudgel, ajid with 
 it gave the prisoner two blows on the shoulder. The prisoner im- 
 mediately put his right hand into his bosom, and drew out the blade 
 of a tuck-sword, crying, *' Damn you, stand off, or I'll stab you !" 
 and immediately, without giving the deceased time to stand off, made 
 a pass at him with the sword, but missed him. The deceased there- 
 upon gave back a little, and the prisoner, shortening the sword in his 
 hand, leaped forward towards the deceased, and stabbed him to the 
 heart, and he instantly died. The Judges, at a conference, uuanimously 
 agreed, " that there are in this case so many circumstances of delib- 
 erate malice and deep revenge on the prisoner's part, that his offence 
 *7«zLl *cannot be less than wilful murder." R. v. Mason, Foster, 132; 
 '^^-1 1 East, P. C. 239. 
 
 Proof of malice — cases of mutual combat. The rules with regard 
 to the proof of malice, in case of mutual combat, are not in all 
 respects the same with those which have been already stated with 
 regard to cases of provocation in general, and as the former are of 
 very frequent occurrence it may be convenient to consider them under 
 one head. 
 
 In this class of cases the degree or species of provocation does not 
 enter so deeply into the merits of the question, as in those which 
 have been just noticed, and in the former it has been held that where 
 upon words of reproach, or indeed any other sudden provocation, the 
 parties come to blows, and a combat ensues, no undue advantage 
 being taken, or sought on either side, if death ensue, this amounts to 
 manslaughter only. Nor is it material what the cause be, whether 
 real or imagined, or who draws or strikes first, provided the occasion 
 be sudden, and not urged as a cloak for pre-existing malice. 1 East, 
 P. C, 241.' Many, says Lord Hale, who were of opinion that bare 
 words of slighting, disdain or contumely, would not of themselves 
 make such a provocation as to lessen the crime into manslaughter, 
 were yet of this opinion, that if A. gives indecent language to B., 
 and B. thereupon strikes A., but not mortally, and then A. strikes B. 
 again, and B. kills A., this is manslaughter ; for the second stroke 
 made a new provocation, and so it was but a sudden falling out ; and 
 though B. gave the first stroke, and after a blow received from A., B. 
 gives him a mortal stroke, this is but manslaughter ; according to the 
 proverb, the second bloiv makes the affray ; and this, adds Lord Hale, 
 was the opinion of myself and others. 1 Hale, P. C. 456 ; Foster, 
 295. But if B. had drawn his sword, and made a pass at A., his 
 sword then undrawn, and thereupon A. had drawn, and a combat had 
 ensued, in which A. had been killed, this would have been murder; 
 for B. by making his pass, his adversary^ s sword undraivn, showed that 
 he sought his blood, and A.'s endeavor to defend himself, which he 
 
 1 Burnham i.. Slate, 43 Tex. 322.
 
 MURDER. 985 
 
 had a right to do, will not excuse B. But if B. had first drawn and 
 forborne till his adversary had drawn too, it had been no more than 
 manslaughter. Foster, 295 ; 1 East, P. C. 242. 
 
 With regard to the use of deadly weapons as in case of mutual 
 combat, the rule was laid down by Mr. Justice Bayley, in the follow- 
 ing ease. The prisoner and Levy quarrelled, and went out to fight. 
 After two rounds, which occupied little more than two minutes, 
 Levy was found to be stabbed in a great many places, and of one of 
 those stabs he almost instantly died. It appeared that nobody could 
 have stabbed him but the prisoner, who had a clasp knife before 
 the affray. Bayley, J., told the jury, that if the prisoner used the 
 knife privately from the beginning, or if, before they began to fight, 
 he placed the knife so that he might use it during the aifray, and 
 used it accordingly, it was murder ; but that if he took to the knife 
 after the fight began, and without having placed it to be ready during 
 the affray, it was only manslaughter. The jury found the prisoner 
 guilty of murder. R. v. Anderson, 1 Russ. Cri. 701, 5th ed. Another 
 later case exhibited nearly similar circumstances. The prisoner 
 returning home, was overtaken by the prosecutor. They were both 
 intoxicated, and a quarrel ensuing the prosecutor struck the prisoner 
 a blow. They fought for a few minutes, when the prisoner ran back 
 *a short distance, and the prosecutor pursued and overtook r:(c7oK 
 him. On this the prisoner, who had taken out his knife, gave L 
 the prosecutor a cut across the abdomen. The prisoner being indicted 
 for cutting the prosecutor with intent to murder him, Parke, J., left it 
 to the jury whether the prisoner ran back with a malicious intention 
 of getting out his knife to inflict an injury on the prosecutor, and so 
 gain an advantage in the conflict ; for if he did, notwithstanding the 
 previous fighting between them on equal terms, and the prosecutor 
 having struck the first blow, he was of opinion that if death had en- 
 sued, the crime of the prisoner would have been murder ; or whether 
 the imsoner bond fide ran away from the prosecutor with intent to es- 
 cape from an adversary of superior strength, but finding himself pur- 
 sued, drew his knife to defend himself; and in the latter case, if the 
 prosecutor had been killed, it would have been manslaughter only. 
 E,. V. Kessal, 1 C. & P. 437. In the following case the use of a deadly 
 weapon during a fight was held to be no evidence of malice, the pris- 
 oner happening to have the knife in his hand at the commencement of 
 the affray. William Snow was indicted for the murder of Thomas 
 Palmer. The prisoner, Avho was a shoemaker, lived in the neighbor- 
 hood of the deceased. One evening the prisoner, who was much in 
 liquor, passed accidentally by the house of the deceased's mother, 
 near which the deceased was at work. He had a quarrel with him 
 there, and after high words they were going to fight, but were pre- 
 vented by the mother, who hit the prisoner in the face and threw 
 water over him. The prisoner went into his house, but came out in 
 a few minutes, and set himself down upon a bench before his gate, 
 with a shoemaker's knife in his hand, paring a shoe. The deceased, 
 on finishing his work, returned home by the prisoner's house, and
 
 986 MURDER. 
 
 called out to him as he passed, " Are not you an aggravating rascal ?'' 
 The prisoner replied, " What will you be when you are got from your 
 master's feet?" on which the deceased took the prisoner by the collar, 
 and dragging him off the bench, they both rolled into the cart-way. 
 While they were struggling and fighting, the prisoner underneath the 
 deceased, the latter cried out, "You rogue, what do you do with that 
 knife in your hand ?" and caught at his arm to secure it; but the 
 prisoner kept his hand striking about, and held tiie deceased, so hard 
 with his other hand that he could not get away. The deceased, how- 
 ever, at length made an effort to disengage himself, and during the 
 struggle received the mortal wound in his left breast, having before 
 received two slight wounds. The jury found the prisoner guilty of 
 murder; but judgment was respited to take the ojiinion of the 
 judges, who (in the absence of De Grey, C. J.), were unanimously 
 of opinion that it was only manslaughter. They thought that there 
 was not sufficient evidence that the prisoner lay in wait for the de- 
 ceased with, a malicious design to provoke him, and under that color 
 to revenge his former quarrel by stabbing him, which would have 
 made it murder. On the contrary, he had composed himself to work 
 at his own door, in a summer's evening ; and when the deceased 
 passed by provoked him neither by word nor by gesture. The de- 
 ceased began first by ill language, and afterwards by collaring him 
 and dragging him from his seat, and rolling him in the road. The 
 knife was used openly, before the deceased came by, and not con- 
 cealed from the bystanders ; though the deceased in his passion did 
 not perceive it till they were both down ; and though the prisoner 
 was not justified in using such a weapon on such an occasion, yet it 
 *7«n *being already in his hand, and the attack upon him very vio- 
 -• lent and sudden, they thought it only amounted to manslaugh- 
 ter, and he was recommended for a pardon. R. v. Snow, 1 East, P. 
 C. 244, 245. 
 
 Not only will the premeditated use of deadly weapons, in cases of 
 mutual combat, render the homicide murder, but the combat itself may 
 be of such a nature as to make it murder if death ensue. The pris- 
 oner was indicted for manslaughter, and the evidence was, that he and 
 the deceased were " fighting up and down," a brutal and savage prac- 
 tice in the north of England. Bayley, J., said to the jury, fighting 
 "up antl dowai" is calculated to produce death, and the foot is an in- 
 strument likely to produce death. If death happens in a fight of this 
 description it is murder, and not manslaughter. The prisoner being 
 convicted, Bayley, J., told him that if he had been charged with mur- 
 der, the evidence adduced w^ould liave sustained the indictment. 11. v. 
 Thorpe, 1 Lewin, C. C. 171 ; see R. v. Murphy, 6 C. & P. 103, 25 
 E. C. L. 
 
 In order to bring the case within the rule relating to mutual com- 
 bats, so as to lessen the crime to manslaughter, it must appear that no 
 undue advantage was sought or taken on either side. Foster, 295. 
 To save the party making the first assault upon an insufficient legal 
 provocation from the guilt of murder, the occasion must not only be
 
 MURDER. 987 
 
 sudden, but the party assaulted must be upon an equal footing, in 
 point of defence at least, at the outset ; and this is peculiarly requisite 
 where the attack is made with deadly or dangerous weapons. 1 East, 
 P. C. 242. Where persons fight on fair terms, says Mr. Justice Bay- 
 ley, "and merely with fists, where life is not likely to be at hazard, 
 and the blows passing between them are not likely to occasion death, 
 if death ensues, it is manslaughter ; and if persons meet originally on 
 fair terms, and after an interval, blows having been given, a party 
 draws, in the heat of blood, a deadly instrument, and inflicts a deadly 
 injury, it is manslaughter only. But if a party enters into a contest 
 dangerously armed, and fights under an unfair advantage, though 
 mutual blows pass, it is not manslaughter, but murder." R.. v. 
 Whiteley, 1 Lewin, C. C. 173. 
 
 The lapse of time, also, which has taken place between the origin 
 of the quarrel and the actual contest, is in these cases a subject of 
 great consideration, as in the following instance : — The prisoner was 
 indicted for the wilful murder of William Harrington. It appeared 
 that the prisoner and the deceased, who had been for three or four 
 years upon terms of intimacy, had been drinking together at a public- 
 house, on the night of the 27th of February, till about twelve 
 o'clock ; that about one they were together in the street, when they 
 had some words, and a scuffle ensued, during which the deceased 
 struck the prisoner in the face with his fist, and gave him a black 
 eye. The prisoner called for the police, and on a policeman coming, 
 went away. He, however, returned again, between five and ten 
 minutes afterwards, and stabbed the deceased with a knife on the 
 left side of the abdomen. The prisoner's father proved that the 
 knife, a common bread and cheese knife, was one which the prisoner 
 was in the habit of carrying about with him, and that he was 
 rather weak in his intellect, but not so much so as not to know right 
 from wrong. Lord Tenterden, in summing up, said, " It is not every 
 slight provocation, even by a blow, which will, when the party re- 
 ceiving it strikes with a deadly weapon, reduce the crime from 
 murder to manslaughter. But it depends upon the time elapsing 
 *between the blow and the injury ; and also, whether the in- r^^oy 
 jury was inflicted with an instrument at the moment in the L 
 possession of the party, or ^vhether he went to fetch it from another 
 place. It is uncertain, in this case, how long the prisoner was absent. 
 The witness says from five to ten minutes, according to the best of his 
 kno^vledge. Unless attention is particularly called to it, it seems to 
 me that evidence of time is very uncertain. The prisoner may have 
 been absent less than five minutes. There is no evidence that he 
 went anywhere for the knife. The father says that it was a knife he 
 carried about with him ; it was a common knife, such as a man in 
 the prisoner's situation in life might have ; for aught that appears, he 
 might have gone a little way from the deceased, and then returned 
 still smarting under the blow he had received. You will also take 
 into consideration the previous habits and connection of the deceased 
 and the prisoner in respect to each other. If there had been any ol(l
 
 988 MURDER. 
 
 grudge between them, then the crime which the prisoner committed 
 might be murder. But it seems they had been long in habits of inti- 
 macy, and on the very night in question about an hour beibre the 
 blow, they had been drinking in a friendly way together. If you 
 think that there was not time and interval sufficient for the jiassion 
 of a man, proved to be of no very strong intellect, to cool, and for 
 reason to regain her dominion over his mind, then you will say that 
 the prisoner is guilty only of manslaughter ; but if you tliink that 
 the act was the act of a wicked, malicious, and diabolical mind (which, 
 under the circumstances, I think you hardly would), then you will 
 find him guilty of murder." The jury found the prisoner guilty of 
 manslaughter. R. v. Lynch, 5 C. & P. 324, 24 E. C. L. 
 
 In cases of mutual combat, evidence is frequently given of old 
 quarrels between the parties, for the purpose of showing that the 
 person killing acted from malice towards the deceased, but it is not 
 in every case of an old grudge that the jury will be justified in find- 
 ing malice. Thus, where two persons who had formerly fouglit in 
 malice are after%vards, to all appearance, reconciled, and fight again 
 on a fresh quarrel, it shall not be presumed that they were moved by 
 the old grudge ; Hawk. P. C. b. 1, c. 31, s. 30 ; unless it apj^ear that 
 the reconciliation was pretended only. 1 Hale, P. C. 452. If, says 
 Lord Plale, A. sues B., or threatens to sue him, this alone is not suffi- 
 cient evidence of malice prepense, though possibly they meet and ftill 
 out and fight, and one kills the other, if it happens upon sudden pro- 
 vocation ; but this may, by circumstances, be heightened into malice 
 prepense, as if A., without any other provocation, strikes B. upon 
 account of that difference in law, or lies in wait to kill him, or comes 
 with a resolution to strike or kill him. 1 Hale, P. C. 451. 
 
 If two parties go out to strike one another, and do so, it is an assault 
 in both, and it is quite immaterial which strikes the first blow. P. v. 
 Lewis, 1 C. & K. 419, 47 E. C. L. All struggles in anger, whether 
 by fighting, wrestling, or in any other mode, are unlawful, and death 
 occasioned by them is manslaughter at the least. R. v. Canniffj 9 
 C. & P. 359, 38 E. C.L. 
 
 Proof of malice — eases of mutual combat — duelling.' Deliberate 
 duelling, if death ensues, is in the eye of the law murder ; for duels 
 are generally founded in deep revenge. And though a person should 
 *78Ml *^^ drawn into a duel, not on a motive so criminal, but merely 
 -^ upon the punctilio of what the swordsmen falsely call honor, 
 that will not excuse him. For he that deliberately seeks the blood of 
 another, in a private quarrel, acts in defiance of all laws, human and 
 divine, Avhatever his motive may be. But if upon a sudden quarrel 
 the parties fight upon the spot, or if they presently fetch their Meap- 
 ons, and go into the field and fight, and one of them falls, it will be 
 only manslaughter, because it may be presumed that the blood never 
 
 ' The Wisconsin statvite depriving persons tniilty of duelling of the right to hold 
 office, will support an indictment for violating its provisions, but it is not self exe- 
 cuting. Commonwealth v. Jones, 10 Bush, (Ky.) 725.
 
 MURDER. 989 
 
 cooled. It will, however, be otherwise, if they appoint to fight the 
 next (lay, or even upon the same clay, at such an interval, as that the 
 passion might have subsided, or if from any circumstances attending 
 the case it may be reasonably concluded that their judgment had act- 
 ually controlled the first transport of passion before they engaged. 
 The same rule will hold, if after a quarrel they fall into other dis- 
 course or diversions, and continue so engaged a reasonable time for 
 cooling. Foster, 297. It seems agreed, says Hawkins, that wherever 
 two persons in cool blood meet, and fight on a precedent quarrel, and 
 one of them is killed, the other is guilty of murder, and cannot help 
 himself by alleging that he was first struck by the deceased, and that 
 he had often declined to meet him, but was prevailed upon by his 
 importunity, or that it was his intention only to vindicate his reputa- 
 tion, or that he meant not to kill, but only to disarm his adversary, 
 for since he deliberately engaged in an act highly unlawful, he must, 
 at his peril, abide the consequences. Hawk. P. C. b. 1, c. 31, s. 21. 
 It is said by Lord Hale, that if A. and B. meet deliberately to fight, 
 and A. strikes B., and pursues him so closely, that B. in safeguard of 
 his own life kills A., this is murder in B., because their meeting was 
 a compact, and an act of deliberation, and therefore all that follows 
 thereupon is presumed to be done in pursuance thereof, and thus is 
 Dalton (cap. 92, p. 241) to be understood. 1 Hale, P. C. 452. But 
 yet, qucere, adds Lord Hale, whether if B. had really and bond jide 
 declined to fight, ran away as far as he could (suppose it half a mile), 
 and offered to yield, yet A. refusing to decline it, had attempted his 
 death, and B. afler all this kills A. in self-defence, whether it excuses 
 him from murder ? But if the running away were only a pretence 
 to save his own life, but was really designed to draw out A. to kill 
 him, it is murder. Id. Blackstone has noticed this doubt, but has 
 given no opinion upon the subject; 4 Com. 185; but Mr. East has 
 argued at some length in support of the proposition, that such homi- 
 cide will not amount to murder, on the ground that B., by retreating, 
 expressly renounces the illegal combat, and gives reasonable grounds 
 for inducing a belief that he no longer seeks to hurt his opponent, 
 and that the right of self-defence ought not therefore to be withheld 
 from him. 1 East, 285. But if B. does not retreat voluntai^ily, but is 
 driven to retreat by A., in such case the killing would be murder. 
 Thus it is said by Hawkins, that if a man assault another with malice 
 prepense, and after be driven by him to the "wall, and kill him there 
 in his own defence, he is guiltv of murder in respect of his first intent. 
 Hawk. P. C. b. 1, c. 31, s. 26. 
 
 In cases of deliberate duelling, in which death ensues, not only is 
 the principal who inflicts the wound guilty of murder, but also the 
 second, and it has been doubted whether the second of the party 
 killed is not also guilty of the same offence. For the latter position 
 Lord Hale cites the book of 22 Edw. 3, Coron. 262, but he adds that 
 *he thinks the law too much strained in that case, and that, rH<7QQ 
 though a great misdemeanor, it is not murder. 1 Hale, P. C. '- 
 442. But see R. v. Cuddy, 1 C, & K. 210, 47 E. C. L., where it was
 
 990 MURDER. 
 
 held by "Williams, J. (Rolfc, B,, being present), that where two per- 
 sons go out to fight a deliberate duel, and death ensues, all persons 
 who are present encouraging and promoting that death, will be guilty 
 of murder. And the person who acted as the second of the deceased 
 person in such duel may be convicted of murder, on an indictment 
 charging him with being present, aiding and abetting the person, by 
 whose act the death of his principal was occasioned. 
 
 The prisoners were indictetl for the murder of Charles Flower 
 Mirfin, who was killed in a duel by a Mr. Elliott. Neither of the 
 prisoners acted as a second on the occasion, but there was evidence 
 to show that they and two other persons went to the ground in com- 
 pany with Mr. Elliott, and that they were present when the fatal 
 shot was fired. Vaughan, B., told the jury, " When upon a previous 
 arrangement, and after there had been time for the blood to cool, 
 two persons meet with deadly weapons, and one of them is killed, the 
 party who occasions the death is guilty of murder ; and the seconds 
 also are equally guilty. The question then is, did the prisoners give 
 their aid and assistance by their countenance and encouragement of 
 the principals in this contest?" After observing that neither pris- 
 oner had acted as a second, the learned judge continued : "If, 
 however, either of them sustained the principal by his advice or 
 presence ; or if you think he went down for the purpose of en- 
 couraging and forwarding the unlawful conflict, althougii he did 
 not say or do anything, yet if he was present and was assisting and 
 encouraging at the moment when the pistol was fired, he will be 
 guilty of the oiFence imputed by this indictment." The prisoners 
 were found guilty. R. v. Young, 8 C. & P. 644, 34 E. C. L. 
 
 Peace officers and private persons killed or killing others in ap- 
 prehending them. If, as is frequently the case, the apprehension and 
 detainer of one person by another be lawful, then two consequences 
 follow which are important with reference to the crime of murder. 
 First, if the party apprehended resist with violence, and in so doing 
 kill the party apprehending him, it is murder or manslaughter ; 
 secondly, if the party apprehending in repressing the violence of the 
 party apprehended necessarily kill him, it is excusable. 
 
 The right of private persons and of constables to apprehend without 
 warrant has already been considered. Supra, p. 262, seq. 
 
 If the apprehension be under a warrant, and the warrant be legal 
 and be rightly executed, every person will be bound to obey it, 
 whether or no he be guilty of the charge which gave rise to the issue 
 of the warrant or not. 
 
 Police officer killed or killing others in apprehending them — 
 when the peace officer is protected. A peace officer is to be consid- 
 ered as acting strictly in discharge of his duty, not only while executing 
 the process entrusted to him, but likewise while he is coming to perform, 
 and returning from the performance of his duty. He is under the 
 protection of the law, eundoy moi-ando, et redeundo. And, therefore, if
 
 MURDER. 991 
 
 coming to perform his office he meets with great opposition and 
 retires, and in the retreat is killed, this will amount to murder. 
 Foster, 308 ; 1 Hale, P. C. 4G3. Upon the same principle, if he meets 
 *with opi)Osition by the way, and is killed before he comes to r^Yqn 
 the place (such opposition being intended to prevent his per- L 
 forming his duty, a fact to be collected from the evidence) it will . 
 also amount to murder. Foster, 309. 
 
 The authority of a constable or other peace officer ceases with the 
 limits of his district, and if he attempts to execute process out of the 
 jurisdiction of the court or magistrate by whose orders he acts, and 
 is killed, it is only manslaughter, as in the case of void process. 
 1 Hale, r. C. 458 ; 1 East, P. C. 314. So where a plaintiff attempted 
 to execute a writ without a non omittas clause, within an exclusive 
 liberty. Holroyd, J., held him a trespasser, and the defendant who 
 had wounded him in resisting, and who Avas indicted for maliciously 
 cutting, with intent, etc., was acquitted. R. v. Mead, 2 Stark, N. P. 
 C. 205. 
 
 But if the warrant be directed to a particular constable by name, 
 and it is executed by him within the jurisdiction of the court or 
 magistrate issuing the same, although it be out of the constable's 
 village, that is sufficient. 1 East, P. C. 314 ; Hawk. P. C. b. 2, c. 
 13, s. 27. 
 
 A warrant directed "To the constable of G.," under 11 & 12 Vict. 
 c. 43, s. 23, must be read as directed to the parish constable of G., and 
 its execution by a county policeman was held to be illegal. R. v. 
 Saunders, 36 L. J., M. C. 87; 10 Cox, C. C. R. 445, post, p. 
 792. 
 
 By the 11 & 12 Vict. c. 43, repealing the 5 Geo. 4, c. 18, and by 
 the 11 & 12 Vict. c. 42, s. 10, provision is made for warrants to be 
 directed generally to all constables and peace officers of the county or 
 district in which the justices have jurisdiction, and the warrant may 
 be executed there or within seven miles of the border without beinsr 
 backed. 
 
 When a constable having a warrant to arrest the prisoner gave it 
 
 -to his son, and the latter attempted to apprehend the prisoner, 
 
 the constable then being in sight, but a quarter of a mile off, 
 
 Parke, B., held that the arrest was illegal. R. v. Patience, 7 C. & P. 
 
 775, 32 E. C. L. 
 
 In general, where it becomes necessary to prove that the deceased, 
 or the prosecutor, or other person y;as a constable, it will be sufficient 
 to prove that he acted in that character, which will be prima facie 
 evidence of his regular appointment, without its production. Vide 
 an^e,' pp. 6, 18.' 
 
 For felony a man may be arrested without warrant, but in misde- 
 meanors it is essential that the warrant should be in the possession of 
 the person seeking to arrest, for the man arrested has a right to see 
 the warrant, and may resist unless it is produced, though it is imma- 
 
 * See State v. Green, 66 Mo. 631.
 
 992 MURDER. 
 
 terlal whether he asks for it or not. Codd v. Cabe, 1 Ex. D. 352 ; 45 
 L. J., M. C. 101 ; R. V. Carey, 14 Cox, C. C. 214. 
 
 Whore it becomes necessary to show the warrant or writ upon 
 which a constable or other officer has acted, it is sufficient to produce 
 the warrant or writ itself, without proving the judgment or decree 
 upon which it is founded. Foster, 311, 312 ; 1 East, P. C. 310. But 
 it is not sufficient to prove the sheriff's warrant to the officer without 
 producing the writ of capias, etc., upon which it issued, R. v. Mead, 
 2 Stark. N. P. C. 205 ; 2 Stark. Ev. 518, 2nd ed. Where it is requi- 
 site to prove that the party was acting under an authority derived 
 from the articles of war, a copy of the articles, printed by the king's 
 printer, must be produced. In several instances, prisoners have been 
 ^-^-j -| *acquitted on a charge of murder for want of such evidence. 2 
 '^^-1 Stark. Ev. 519, 2nd ed. 
 
 Peace officers killed or killing others in apprehending them — 
 regularity of process. Where a peace officer, or other person, having 
 the execution of process, cannot justify without a reliance on such pro- 
 cess, it must appear that it is legal.^ But by this it is only to be un- 
 derstood that the process, whether by writ or warrant, be not defective 
 in the frame of it, and issue, in the ordinary course of justice, from a 
 court or magistrate having jurisdiction in the case. Though there may 
 have been error or irregularity in the proceedings previous to the 
 issuing of the process, yet if the sheriff or other minister of justice be 
 killed in the execution of it, it will be murder, for the officer to 
 whom it is directed must, at his peril, pay obedience to it ; and there- 
 fore, if a ca. sa. or other writ of the kind issue, directed to the sheriff, 
 and he or any of his officers be killed in the execution of it, it is suffi- 
 cient, upon an indictment for the murder, to produce the writ or 
 warrant, without showing the judgment or decree. R. v, Rogers, 
 Foster, 312. So in case of a warrant obtained from a magistrate by 
 gross imposition, and false information touching the matters suggested 
 in it. R. V. Curtis, Foster, 135, 311. So though the warrant itself 
 be not in strictness lawful, as if it express not the cause particularly 
 enough, yet if the matter be within the jurisdiction of the party 
 granting the warrant, the killing of the officer in the execution of his 
 duty is murder ; for he cannot dispute the validity of the warrant, if 
 
 * Commonwealth v. Drew el al., 4 Mass. 391. Although a warrant for an arrest be 
 not strictly legal, yet if the matter be within the jurisdiction of the magistrate who 
 issued it, the killing of an officer in its execution is murder. Boyd ?'. State, 17 Ga. 194. 
 [Where the statute authorizes an arrest without warrant on violation of the law, the 
 officer is justified in doing so on information of the fact tliat defendant is violating the 
 law, and resistance to death is murder. Ballard r. State, 43 O. St. 340.] An officer 
 having a warrant to arrest a person for a misdemeanor, is justified in killing him, 
 when he p\its himself in armed resistance to the officer, and the I. tier uses no more 
 violence in his attempt to make the arrest tlian is necessary. State v. Garrett, 1 
 Winst. 144. Where a party of persons were on an island belonging to the United 
 States, engaged in gathering wild bird's eggs, and another party attempted to land for 
 the same purpose, if tlie first resist the landing by force, the second party are justified 
 in using force ; and if one of the party on shore is killed in the encounter, it will be 
 justifiable homicide. People v. Batchelder, 27 Cal. 69. S.
 
 MURDER. 993 
 
 it be under the seal of the justice, etc. 1 Hale, P. C. 460. In all 
 kinds of process, both civil and criminal, the falsity of the charge 
 contained in such process, — that is, the injustice of the demand in 
 one case, or the party's innocence in the other, will aftbrd no matter 
 of alleviation for killing the officer ; for every man is bound to sub- 
 mit himself to the regular course of justice. 1 East, P. C. 310 ; 1 
 Hale, P. C. 457. 
 
 The provisions with regard to the issuing, backing, and service of 
 warrants, and the duties generally of justices out of sessions, with re- 
 spect to persons charged with indictable offences are embodied in the 
 statutes 11 & 12 Vict. c. 42 ; 12 & 13 Vict. c. 69 ; 14 & 15 Vict. c. 
 93 ; 27 & 28 Vict. c. 53 ; 44 & 45 Vict. c. 24. 
 
 If the process be defective in the frame of it, as if there be a mis- 
 take in the name or addition of the party, or if the name of the party 
 or of the officer be inserted without authority, and after the issuing 
 of the process, and the officer in attempting to execute it be killed, this 
 is only manslaughter in the party whose liberty is invaded. Foster, 
 312 ; 1 East, P. C. 310.^ The prisoner, who had been arrested and 
 rescued, declared that if Welsh, the officer, attempted to arrest him 
 again, he Avould shoot him. A writ of rescue was made out and 
 carried to the office of Mr. Deacle, who acted for the under-sheriff 
 of the county, to have the warrants made out. The under-sheriff's 
 custom was to deliver to Deacle sometimes blank warrants, some- 
 times blank pieces of paper, under the seal of the office, to be after- 
 Avards filled up as occasion should require. Deacle made out a 
 warrant against the prisoner on one of these blank pieces of paper 
 and delivered it to Welsh, who inserted therein the names of two 
 other persons on the 12th of July. In executing this warrant one 
 of these persons in getting into the house to assist in the arrest, was 
 shot by the prisoner. Upon a reference to the judges, they certified 
 that the offence in point of law amounted only to manslaughter. 
 *R. V. Stockley, 1 East, P. C. 31 0. So where the name of another r^Yq^ 
 sheriff's officer was inserted in a sheriff's warrant, after it had ■- 
 been signed and sealed, the arrest by the substituted officer was held 
 illegal. R. v. Stevenson, 19 St. Tr. 846. But where the name of 
 an officer is inserted before the warrant is sent out of the sheriff's 
 office, it seems the arrest will not be illegal on the ground that 
 the warrant was sealed before the name of the officer was inserted. 
 1 Russ. Cri. 740, 5th ed. Thus, where the names of two officers were 
 interlined in a writ of possession, after it was sealed, but before it 
 left the sheriff's office, and in executing it one of the officers was 
 wounded, the party wounding having been indicted under 43 Geo. 3, 
 c. 58 (repealed), and convicted, the judges held the conviction right. 
 R. V. Harris, 1 Russ. Cri. 741, 5th ed. Where a magistrate kept a 
 number of blank warrants ready signed, and, on being applied to, 
 filled up one of them, and delivered it to an officer, who in attempt- 
 
 ^ Eafferty v. People, 69 111. Ill ; Simmerman v. State, 14 Neb. 568. An unlawful 
 arrest is no justification for homicide. Creighton v. Commonwealth, 8 Crim. Law 
 Mag. 98. 
 
 63
 
 994 MURDER. 
 
 ing to make the arrest was killed, it was held that this was murder 
 in the party killing. Per Lord Kenyon, R, v. Inhab. of Winwick, 8 
 T. R. 454. But where a blank warrant signed by the magistrate was 
 filled up by a police serjeant in the absence of the magistrate, and 
 delivered by him to an officer, who in attempting to arrest the pris- 
 oner was killed by him, it was held, in the absence of malice, that 
 the offence was manslaughter only, and not murder. Rafferty v. The 
 People, 12 Cox, C. C. 617. (United States case.) "Where a county 
 constable attempted to arrest the defendant under warrant, directed to 
 the constable of Gainsborough, it was held that the attempted appre- 
 hension was illegal, and therefore that a conviction for wounding 
 the constable in the execution of his duty with intent to resist lawful 
 apprehension could not be sustained. R. v, Saunders, 3G L. J., M. 
 C. 87 ; 10 Cox, C. C. R. 445. A warrant to commit for an assault, 
 issued by county justices of Worcester, and served on the prisoner in 
 the borough of Worcester, without being backed by a justice for the 
 borough, Avas held to be defective. R. v. Cumpton, 5 Q. B. D. 341 ; 
 49 L. J., M. C. 41. 
 
 A justice's warrant, commanding a constable to apprehend and 
 bring before him the body of A. to answer all such matters and things 
 as on her Majesty's behalf shall be objected against him, on oath by 
 B., for an assault committed upon B., on, etc., is bad ; as not showing 
 any information on oath upon which the warrant issues. Caudle v. 
 Seymour, 1 Q. B. 889. 
 
 Under this head it may properly be considered how far any defect 
 in the frame of the process, or any other illegality in the arrest, will 
 be a defence to a third person interfering to prevent it, and killing 
 the officer in so doing.' The question is put by Mr. East in this 
 form. How far the mere view of a person under arrest, or about to 
 be arrested, supposing it to be illegal, is of itself such a provocation 
 to a bystander as will extenuate his guilt in killing the officer, in 
 order to set the party free, or prevent the arrest ? In the following 
 case it Avas held by seven of tlie judges against five, that it was such 
 a provocation. One Bray, constable of St. Margaret's, Westminster, 
 came into St. Paul's, Covent Garden, and without warrant took up 
 one Anne Dekins, as a disorderly person, though she was innocent. 
 The prisoners, strangers to Dekins, meeting her in Bray's custody, 
 drew their swords, and assaulted Bray to rescue her ; but on his 
 showing his staff, and declaring he was about the Queen's business, 
 they put up their swords, and he carried her to the round-house in 
 *7Q'^1 *C'ovent Garden. Soon afterwards the prisoners drew their 
 -J swords, and assaulted Bray, in order to get the woman dis- 
 charged. Whereupon Bray called Dent to his assistance, to keep the 
 woman in custody, and to defend himself from the violence of the 
 prisoners, when one of the prisoners, before any stroke received, gave 
 Dent a mortal wound. All the judges, except one, agreed that Bray 
 
 ^ Commonwealth v. Drew et al., 4 Mass. 391. S. 
 
 A mere announcement of an intention to arrest will not justify the killing an unau- 
 thorized person. State v. Underwood, 75 Mo. 230.
 
 MURDER. 995 
 
 acted without any authority ; but that one thought showing his staif 
 was sufficient, and that, with respect to the })risoners, he was to be con- 
 sidered as a constable de facto. But the main point upon which they 
 differed was, whether the illegal imprisonment of a stranger was, under 
 these circumstances, a sufficient provocation to bystanders ; or, in the 
 language of Lord Holt, a provocation to all the subjects of England. 
 Five judges held the case to be murder, and thought that it would 
 have been a sufficient provocation to a relation or a friend, but not to 
 a stranger. The other seven judges, who held it to be manslaughter, 
 thought that there was no ground for making such a distinction, and 
 that it was a provocation to all, whether strangers or others, so as to 
 reduce the offence to manslaughter, it being a sudden action, without 
 any precedent malice or apparent design of doing hurt, but only to 
 prevent the imprisonment of the woman, and to rescue one who was 
 unlawfully restrained of her liberty. R. v. Tooley, 2 Lord llaym. 
 1296 ; 1 East, P. C. 325. The resolution of the seven judges in this 
 case has been commented upon with much force by Mr. Justice Foster. 
 The prisoners, he observes, upon their first meeting, drew their swords 
 upon the constables, who were unarmed, but put them up, appearing, 
 on cool reflection, to be pacified. At the second meeting the constable 
 received his death- wound, before any blow given or offered by him or 
 his party. There was no pretence of a rescue ; for, before the second 
 encounter, the woman had been lodged in the round-house, which the 
 soldiers could not hope to force ; so that the second assault upon the 
 constable seemed rather to be grounded upon resentment, or a principle 
 of revenge for what had passed than upon any hope to rescue the 
 woman. He concludes with expressing an opinion that the doctrine 
 advanced in this case is utterly inconsistent with the known rules of 
 law touching a sudden provocation in a case of homicide, and, which 
 is of more importance, inconsistent with the principles upon which all 
 civil government is founded, and must subsist. Foster, 314, 315 ; 1 
 East, P. C. 326. In a recent case also, upon R. v. Tooley being cited, 
 Alderson, J., observed that it had been overruled. R. v. Warner, 1 
 Moo. C. C. 388. 
 
 The majority of the judges, in the preceding case, appear to have 
 grounded their opinion upon two former decisions. The first of these 
 is thus stated by Kelynge. Berry and two others pressed a man 
 without authority : the man quietly submitted, and went along with 
 them. The prisoner, with three others, seeing them, instantly pursued 
 them, and required to see their warrant ; on which Berry showed 
 them a paper, which the prisoner and his companions said was no 
 warrant, and immediately drawing their swords to rescue the im- 
 pressed man, thrust at Berry. On this, Berry and his tAvo compan- 
 ions drew their swords, and a fight ensued, in which Hugget killed 
 Berry. R. v. Hugget, Kel. 52. Lord Hale's report of this case is 
 more brief. A press-master seized B. for a soldier, and with the 
 assistance of C. laid hold of him ; D. finding fault with the rude- 
 ness of C, there grew a quarrel between them, and D, killed C. By 
 the advice of all the judges, except very few, it was ruled that this
 
 996 MURDER. 
 
 *7Q-n *^^^^ ^"^ manslaughter. 1 Hale, P. C. 405. The judges 
 -I were, however, divided in opinion, four holding that it was 
 murder, eight that it was manslaughter. Foster, 314. Mr. Justiee 
 Foster is inelined to rest the authority of this case upon the ground 
 of its having been a sudden quarrel and affray, causing a combat be- 
 tween the prisoner and the assistant of the press-master ; and he ob- 
 serves that Hale, who, at the conference, concurred in opinion with 
 those who held it to be manslaughter only, says nothing touching the 
 provocation which an act of oppression towards individuals might be 
 supposed to give to the bystanders. He admits, however, that the 
 case, as reported in Kelynge, does indeed turn upon the illegality of 
 the trespass, and the provocation such an act of oppression may be 
 presumed to give to every man, be he stranger or friend, out of mere 
 compassion, to attempt a rescue. Foster, 314. The other case, re- 
 ferred to in R. V. Tooley, was that of Sir Henry Ferrers. Sir Henry 
 Ferrers being arrested for debt upon an illegal warrant, his servant, 
 in attempting to rescue him, as was pretended, killed the officer. But, 
 upon the evidence it appeared that Sir H. Ferrers, upon the arrest, 
 obeyed, and was put into a house before the fighting between the 
 officer and his servant, and the servant was acquitted of the mur- 
 der and manslaughter. R. v. Ferrers, Cro. Car. 371. Upon this case 
 Mr. Justice Foster observes, that from the report it does not ap- 
 pear upon what provocation the quarrel and affray began, and that 
 it is highly probable that no rescue was thought of, or attempted. 
 Foster, 313. 
 
 This doctrine undenvent some discussion in a later case. The 
 prisoner was tried at the Old Bailey for the murder of an assistant to 
 a constable, who had come to arrest a man named Farmello (with 
 whom the prisoner cohabited) as a disorderly person, under 19 Geo. 
 2, c. 10. Farmello, though not an object of the Act, made no resist- 
 ance, but the prisoner immediately, on the constable and his assistant 
 requiring Farmello to go along with them, without any request to de- 
 sist, and without speaking, stabbed the assistant. Hotham, B., said 
 it was a very different case from what it would have been if the blow 
 had been given by Farmello himself. If he, when the constable en- 
 tered the room with an insufficient warrant, had immediately, in his 
 own defence, rather than suffer himself to be arrested, done the deed, 
 the homicide would have been lessened to the crime of manslaughter. 
 The offence also might have been of a different complexion in the eye 
 of the law, if the prisoner had been the lawful Avife of Farmello ; but 
 standing in the light she did, she was to be considered an absolute 
 stranger to him, a mere stander-by, a person who had no right whatever to 
 be in any degree concerned for him. Thus, being a stranger, and having, 
 before any person had been touched, and when the officers had only re- 
 quired Farmello to go with them, and without saying a word to pre- 
 vent the intended arrest, stabbed the assistant, she was guilty of murder. 
 He then adverted to R. v. Hugget and R. v. Tooley {supra), and ob- 
 served, that the circumstances there were extremely different from those 
 of the present case. Mr. Justice Gould and Mr. Justice Ashurst con-
 
 MURDER. 997 
 
 curred in this opinion ; but it was thought fit that the jury should find a 
 special verdict, as the case was one of great importance, A special ver- 
 dict was accordingly found, and the case was subsequently argued before 
 ten of the judges, but no judgment was given, the prisoner either 
 being discharged, or having made her escape from prison, during the 
 *riots in 1780. It is said, that the judges held the case to be r^^-qr 
 manslaughter only. R. v. Adey, 1 Leach, 206; 1 East, P. C. L 
 329 (h); 1 Ru,"^s. 756, 5tli ed. (74), note by Greaves citing R. v. Porter, 
 9 C. & P. 778, 38 E. C. L. 
 
 The above questions have been discussed in certain correspondence 
 which passed between two very learned judges and learned counsel 
 subsequently to the trial of Allen and others, at the Manchester Spe- 
 cial Commission, for the murder of Brett, a police officer, whom they 
 shot in attempting to rescue a Fenian prisoner. The law upon the 
 subject is thus laid down in a letter from Mr. Justice, now Lord 
 Blackburn : — " When a constable, or other person properly authorized, 
 acts in the execution of his duty, the law casts a peculiar protection 
 around him, and consequently, if he is killed in the execution of his 
 duty, it is in general murder, even though there be such circumstances 
 of hot blood and want of premeditation as would in an ordinary case 
 reduce the crime to manslaughter. But where the warrant under 
 which the officer is acting is not sufficient to justify him in arresting 
 or detaining prisoners, or there is no warrant at all, he is not entitled 
 to this peculiar protection, and consequently the crime may be reduced 
 to manslaughter when the offence is committed on the sudden, and is 
 attended by circumstances affording reasonable provocation." 
 
 Although it is intimated by Lord Hale, as well as by Hotham, B., 
 in the preceding case, that a distinction may exist between the case of 
 servants and friends, and that of a mere stranger, yet it must be con- 
 fessed, says Mr. East, that the limits between both are nowhere accu- 
 rately defined. And, after all, the nearer or more remote connection 
 of tlie parties with each other, seems more a matter of observation to 
 the jury, as to the probable force of the provocation, and the motive 
 which induced the interference of a third person, than as furnishing 
 any precise rule of law, grounded on such a distinction. 1 East, 
 P. C. 292 ; 1 Russ. Cri. 706, 5th ed. 
 
 Peace officers killed or killing others in apprehending them — 
 notice of their authority.^ With regard to persons who, in the right 
 of their offices, are conservators of the peace, and in that right alone 
 interfere in the case of riots and affrays, it is necessary, in order to 
 make the offence of killing them amount to murder, that the parties 
 killing them should have some notice with what intent they interpose, 
 otherwise the persons engaged may, in the heat and bustle of the 
 affray, imagine that they came to take a part in it. But, in these cases, 
 a small matter will amount to a due notification. It is sufficient if 
 the peace be commanded, or the officer in any other manner declare 
 
 ^ A mere announcement of an intention to arrest made by an authorized person, will 
 not justify the defendant in killing him. State v. Underwood, 75 Mo. 230.
 
 998 MURDER. 
 
 with what intent he interposes. And if the officer be within his 
 proper district, and known or generally acknowledged to bear the 
 office which he assumes, the law will presume that the party killing 
 had due notice of his intent, especially if it be in the daytime. In 
 the night some further notification is necessary ; and commanding the 
 peace, or using words of the like imj)ort notifying his business, will 
 be sufficient. Foster, 310. 
 
 A bailiff or constable, sworn in at the leet, is presumed to be known 
 to all the inhabitants or residents who are bound to attend at the leet, 
 and are consequently bound to take notice that he is a constable ; 1 
 Hale, P. C. 461 ; and in such case the officer, in making the arrest, is 
 *7Qfi1 "^^ bound to show the warrant. Id. 459. But if the *consta- 
 -l ble be appointed in some other way, from which the notoriety of 
 his character could not be presumed, some other circumstances would 
 be required to found the presumption of knowledge. And in the 
 night-time, some notification would be necessary, in the case of a leet 
 constable. But whether in the day or night-time, it is sufficient if 
 he declares himself to be the constable, or commands the peace in the 
 king's name. 1 Hale, P. C. 461. Where a man, assisting two ser- 
 geants-at-mace in the execution of an escape warrant, had been killed, 
 a point was reserved for the opinion of the judges, whether or not 
 sufficient notice of the character in which the constables came had 
 been given. It appeared that the officers went to the shop where the 
 party against whom they had the warrant, and the prisoner, who was 
 with him, were; and calling out to the former, informed him that 
 they had an escape warrant against him, and required him to surren- 
 der, otherwise they should break open the door. In proceeding to do 
 so, the prisoner killed one of the sergeant's assistants. Nine of the 
 judges were of opinion that no precise form of words Avas required ; 
 that it was sufficient that the party had notice, that the officer came 
 not as a mere trespasser, but claiming to act under a proper authority. 
 The judges who differed thought that the officers ought to have de- 
 clared in an explicit manner what sort of a warrant they had. They 
 said that an escape does not ex vi termini, or, in notion of law, imply 
 any degree of force or breach of the peace, and consequently the pris- 
 oner had not due notice that they came under the authority of a war- 
 rant grounded on a breach of the peace; and they concluded that, for 
 want of this due notice, the officers were not to be considered as act- 
 ing in the discharge of their duty. R. v. Curtis, Foster, 135. 
 
 With regard to a private bailiff or special bailiff, it must either 
 appear that the party resisting was aware of his character, or there 
 must be some notification of it by the bailiff, as by saying I arrest 
 you, which is of itself sufficient notice; and it is at the peril of the 
 party if he kills him after these words, or words to the same effect, and 
 it will be murder. 1 Hale, P. C. 461 ; R. v. Mackalley, 9 Co. 69, 
 b ; 1 Puss. Cri. 747, 5th ed. It is said, also, that a private bailiff 
 ought to show the warmnt upon which he acts, if it is demanded. 1 
 Russ. Cri. 747. 5th ed.; citing 1 Hale, P. C. 583, 588, 589. It seems, 
 however, that this must be understood of a demand made, after sub-
 
 MURDER. 999 
 
 mitting to the arrest. The expression in Hale (459) is, " snch person 
 must show his warrant, or signify the eontents of it;" and it appears, 
 from the authority of the same writer, supra, that even the words, " I 
 arrest you," are a sufficient signification of the officer's authority. 
 
 Peace officers killed or killing others in apprehending them — 
 mode of executing their duty. In cases oi' fetoyiy actually commit- 
 ted, if the offender will not suffer himself to be arrested, but stands 
 upon his own defence, or flies, so that he cannot possibly be appre- 
 hended alive by those who pursue him, whether public officers or 
 private persons, with or without a warrant, he may be lawfully killed by 
 them.^ Hawk. P. C. b. 1, c. 28, s. 11. Where, says Mr. Justice "Foster, 
 a felony is committed, and the felon flies from justice, and a danger- 
 ous wound is given, it is the duty of every man to use his best endeav- 
 ors for preventing an escape ; and if, in the pursuit, the party flying is 
 *killed, where he cannot be otherioise overtaken, it is justifiable rrtj^qy 
 homicide. Foster, 271. L 
 
 In case an innocent person is indicted for felony, and will not suffer 
 himself to be arrested by the officer who has a warrant for that pur- 
 pose, he may be lawfully killed by him, if he cannot otherwise be 
 taken ; for there is a charge against him on record, to which, at his 
 peril, he is bound to answer. Hawk. P. C. b. 1, c. 28, s. 12. It 
 seems, hoM'ever, that a constable, or other peace officer, is bound to 
 arrest a person indicted of felony loithout a warrant, and that, there- 
 fore, if it be not possible otherwise to apprehend him, he will be 
 justified in killing him, although he have no warrant. See 1 East, 
 P. C. 300. 
 
 Whether or not a peace officer who attempts, without a warrant, to 
 apprehend a person on suspicion of felony, will be justified in killing 
 liim, in case he cannot otherwise apprehend him, is a case requiring 
 great consideration. Even in the instance of breaking open the out- 
 ward door of a house, a peace officer is not justified, unless he is acting 
 under a warrant, in proceeding to that extremity ; Foster, 321, and 
 vide post, p. 798 ; still less could he be justified in a matter concerning 
 life. However, according to Lord Hale, the officer would be justified 
 in killing the partv if he fly, and cannot otherwise be apprehended. 
 2 Hale, P. C. 72, 80. 
 
 In cases of misdemeanors, the law does not admit the same severe 
 rule as in that of felonies. The cases of arrests for misdemeanors and 
 in civil proceedings are upon the same footing. Foster, 271. If a 
 man charged with a misdemeanor, or the defendant in a civil suit, flies, 
 and the officer pursues, and in the pursuit kills him, it will be murder. 
 1 Hale, P. C. 481 ; Foster, 451. Or rather, according to Mr. Justice 
 Foster, it will be murder or manslaughter, as circumstances may vary 
 
 ^ A well-grounded belief that a felony is about to be committed, will extenuate a 
 homicide committed in prevention of the lony, but not a homicide committed in 
 pursuit by an individual of his own accord. State v. Rutherford, 1 Hawks, 457. S. 
 
 A citizen lias a riglit to arrest without a warrant one whom he sees committing 
 a felonv, and it is murder if the felon resists and kills him. Kennedy v. State, 
 107 Ind. 144.
 
 1000 MUEDER. 
 
 the casG. For if tlie officer, in the heat of the pursuit, and merely to 
 overtake the defendant, should trip up his heels, or give him a stroke 
 with an ordinary cudgel, or other wea})on not likely to kill, and death 
 should ensue, it seems that this woidd amount to no more than man- 
 slaughter, and in some cases not even to that offence. But if he had 
 made use of a deadly weapon, it would have amounted to murder. 
 Foster, 271 ; and see Codd v. Cabe, 45 L. J., M. C. 101 ; 1 Ex. D. 352, 
 ante, p. 790. 
 
 If jiersons engaged in a riot, or forcible entry, or detainer, stand on 
 their defence, and continue the force in opposition to the command of 
 a justice of the peace, etc., or resist such justice endeavoring to arrest 
 them, the killing of them may be justified ; and so perhaps may the 
 killing of any dangerous rioters by private persons, who cannot other- 
 wise su})press them or defend themselves from them. Hawk. P. C. b. 
 1, c. 28, s. 14. 
 
 It is to be observed, that in all the above cases where the officer is 
 justified by his authority, and exercises that authority in a legal man- 
 ner, if he be resisted, and in the course of that resistance is killed, the 
 offence will amount to murder. 
 
 With regard to the point of time at which a constable or other 
 peace officer is justified, in case of resistance, in resorting to measures 
 of violence, it is laid down, that although, in the case of common 
 persons, it is their duty, when they are assaulted, to fly as far as they 
 may, in order to avoid the violence, yet a constable or other peace 
 officer, if assaulted in the execution of his duty, is not bound to give 
 way, and if he kills his assailant, it is adjudged homicide in 
 *79S1 *s6lf-defeuce. 1 Hale, P. C. 481. This rule holds in the case 
 -' of the execution of civil process, as well as in apprehensions 
 upon a criminal charge. Hawk. P. C. b. 1, c. 28, s. 17. But though 
 it be not necessary that the officer should retreat at all, yet he ought 
 not to come to extremities upon every slight interruption, nor without 
 a reasonable necessity. Therefore, when a collector, having distrained 
 for duty, laid hold of a maid servant who stood at the door to prevent 
 the distress being carried away, and beat her head and back several 
 times against the door-post, of which she died ; although the court 
 held her opposition to them to be a sufficient provocation to extenuate 
 the homicide, yet they were clearly of opinion that the prisoner was 
 guilty of manslaughter, in so far exceeding the necessity of the case. 
 And where no resistance at all is made, and the officer kills, it will 
 be murder. So if the officer kills the party after the resistance is 
 offered, and the necessity has ceased, it is manslaughter at least ; and 
 if the blood had time to cool, it would, it seems, be murder. 1 East, 
 P. C. 297. 
 
 In respect of the time of executing process, it may be done at night 
 as well as by day ; and therefore killing a bailiff, or other officer, 
 under pretence of his coming at an unseasonable hour, would be 
 murder. But since the statute 29 Car. 2, e. 7, s. 6, all process war- 
 rants, etc., served or executed on a Sunday are void, except in cases of 
 treason, felony, or breach of the peace, and tlierefore an arrest on any
 
 MURDER. 1001 
 
 other account, made on that day, is the same as if done without 
 any authority at all. 1 East, P. C. 324. But see now 11 & 12 Vict. 
 c. 42, s. 4. ^ 
 
 In executing their duty, it often becomes a question in what cases 
 constables and other peace officers are justified in breaking open win- 
 dows and doors. In no case whatever is an officer justified in break- 
 ing an outward door or windoAV, unless a previous notification has 
 been given, and a demand of entrance made and refused. Foster, 320 ; 
 Hawk. P. C. b. 2, c. 14, s. 1. 
 
 ^Vhere a felony has been actually committed, or a dangerous wound 
 given, a peace officer may justify breaking an entrance door to appre- 
 hend the olfender without any warrant, but in case of misdemeanors 
 and breach of the peace a warrant is required ; it likewise seems to be 
 the better opinion that mere suspicion of felony will not justify him 
 in proceeding to this extremity unless he be armed with a warrant. 
 Foster, 320, 321 ; Hawk. P. C. b. 2, c, 14, s. 7 ; 1 Russ. Cri. 748, 
 749, 5th ed.; sed vide, 1 Hale, P. C. 583 ; 2 Id. 92. 
 
 In cases of writs, an officer is justified in breaking an outer door 
 upon a capias, grounded on an indictment for any crime whatever, or 
 upon a capias to find sureties for the peace, or the warrant of a justice 
 for that purpose. Hawk. P. C. b. 2, c. 14, s. 3. So upon a capias 
 utlagatiini, or capiat pro fine; Id. 1 Hale, P. C 459 ; or upon an 
 habere facias possessionem ; 1 Hale, P. C. 458 ; or upon the warrant 
 of a justice of the peace for levying a forfeiture in execution of a 
 judgment or conviction ; Hawk. P. C b. 2, c. 14, s. 5. 
 
 If there be an affray in a house, and manslaughter or bloodshed is 
 likely to ensue, a constable having notice of it, and demanding en- 
 trance, and being refused, and the affray continuing, may break open 
 the doors to keep the peace. 2 Hale, P. C. 95 ; Hawk. P. C. b. 
 2, c. 14, s. 8. And if there be disorderlv drinkino; or noise in a 
 
 7 7 ^ C^ 
 
 house at an unseasonable hour of the night, especially in inns, 
 taverns, or alehouses, the constable or his watch demanding entrance, 
 *and being refused, may break open the doors to see and sup- r>(c7QQ 
 press the disorder. 2 Hale, P. C. 95 ; 1 East, P. C. 322. So L ^ 
 if affrayers fly to a house, and he follows them with fresh suit, he may 
 break open the doors to take them. Hawk. P. C. b, 1, c. 63, s. 16. 
 But it has been doubted whether a constable can safely break open 
 doors in suuh a case without a magistrate's warrant, and it is said, that 
 at least there must be some circumstances of extraordinary violence to 
 justify him in so doing. 1 Russ. Cri. 390 {t), 5th ed. 
 
 In civil suits, an officer cannot justify the breaking open an out- 
 ward door or window to execute the process ; if he do break it open, 
 he is a trespasser. In such case, therefore, if the occupier resist the 
 officer, and in the struggle kill him, it is only manslaughter. For 
 every man's house is his castle for safety and repose to himself 
 and his family. It is not murder, because it was unlawful for 
 the officer to break into the house ; but it is manslaughter, 
 because he knew him to be a bailiff. Had he not known him to 
 be a bailiff, it would have been no felony, because done in his
 
 1002 MURDER. 
 
 house. 1 Hale, P. C. 458. This last instance, says Mr. East, which 
 is set in opposition to the second, must be understood to include at least 
 a reasonable ground of suspicion that the party broke into the house 
 with a felonious intent, and that the party did not know, or had no 
 reason to believe, that he was only a trespasser. 1 East, P. C. 321 , 322. 
 
 The privilege is confined to the outer doors and windows only — for 
 if the sheriff or a peace officer enter a house by the outer door, being 
 open, he may break open the inner doors, and the killing in such 
 case would be murder. 1 Hale, P. C. 458. If the party whom the 
 officer is about to arrest, or the goods which he is about to seize, be 
 within the house at the time, he may break open any inner doors or 
 windows to search for them, without demanding admission. Per 
 Gibbs, J., Hutchinson v. Birch, 4 Taunt. 619. But it seems that if 
 the i)arty against whom the process is issued be not within the house 
 at the time, the officer must demand admittance before he will be jus- 
 tified in breaking open an inner door. Ratcliffe v. Burton, 3 Bos. & 
 Pul. 223. So if the house be that of a stranger, the justification of the 
 officer will depend upon the fact of the goods, or the persons against 
 whom he is proceeding, being in the house at the time. Cooke v. Birt, 
 5 Taunt. 765, 1 E. C. L.; Johnson v. Leigh, 6 Taunt. 240, 1 E. C. 
 L.; 1 Russ. on Cri. 751, 5th ed. An officer attempting to attach the 
 goods of the prisoner in his dwelling-house, put his hand over the 
 hatch of the door which was divided into two parts, the lower hatch 
 being closed and the higher open. A struggle ensued between the offi- 
 cer and a friend of the prisoner, in the course of which the officer hav- 
 ing prevailed, the prisoner shot at and killed him, and this was held 
 murder. R. v. Baker, 1 East, P. C. 323. In the above case there 
 was proof of a previous resolution in the prisoner to resist the officer 
 whom he afterwards killed. 1 East, P. C. 323. 
 
 The privilege likewise extends only to those cases where the occu- 
 pier or any of his family, who have their domestic or ordinary resi- 
 dence there, are the objects of the arrest ; and if a stranger, whose 
 ordinary residence is elsewhere, upon pursuit, takes refuge in the 
 house of another, such house is no castle of his, and he cannot claim 
 the benefit of sanctuary in it. Foster, 320, 321 ; 1 East, P. C. 323. 
 But this must be taken subject to the limitation already expressed in 
 regard to breaking open inner doors in such cases, viz., that the 
 *800l *^^^^'' ^v'^1 <^*'^^y ^^6 justified by the fact of the person sought 
 J being found there. Supra; 1 East, P. C. 324: 1 Russ. Cri. 
 751, 5th cd. 
 
 The privilege is also confined to arrests in the first instance; for if 
 a man legally arrested (and laying hands on the prisoner, and pro- 
 nouncing the words of arrest, constitute an actual arrest) escape from 
 the officer, and take shelter in his own house, the officer may, upon 
 fresh pursuit, break open the outer door, in order to retake him, hav- 
 ing first given due notice of his business, and demanded admission, 
 and having been refused. If it be not, however, on fresh pursuit, it 
 seems that the officer should have a warrant from a magistrate. 1 
 Hale, P. C. 459 ; Foster, 320 ; 1 East, P. C. 324.
 
 MURDER. 1003 
 
 Peace officers killed or killing others in apprehending them — 
 mode (where an officer is killed) in which that killing has been ef- 
 fected. It is a matter of very serious consideration, whether in all cases 
 where a peace officer or other person is killed while attempting to en- 
 force an illegal warrant, such killing shall, under circumstances of great 
 cruelty or unnecessary violence, be deemed to amount to man- 
 slaughter only. In R. v. Curtis, Foster, 1.35, ante, p. 796, the pris- 
 oner being in the house of a man named Cowling, who had made his 
 escape, swore that the first person who entered to retake Cowling 
 should be a dead man, and, immediately upon the officers breaking 
 open the door, struck one of them on the head with an axe and killed 
 him. This was held murder, and a few of the judges Avere of opinion 
 that even if the officers could not have justified breaking open the 
 door, yet that it would have been a bare trespass in the house of 
 Cowling, without any attempt on the property or person of the 
 prisoner ; and admitting that a trespass in the house, with an intent 
 to make an unjustifiable arrest of the owner, could be considered as 
 some provocation to a bystander, yet surely knocking a man's brains 
 out, or cleaving him down with an axe, on so slight a provocation, 
 savored rather of brutal rage, or, to speak more properly, of diabolical 
 mischief, than of human frailty, and it ought always to be remem- 
 bered, that in all cases of homicide upon sudden provocation, the law 
 indulges to human frailty, and to that alone. So in R. v. Stockley, 
 ante, p. 792, the fact that the prisoner deliberately resolved upon 
 shooting Welsh, in case he offered to arrest him again, was, it has been 
 argued, sufficient of itself to warrant a conviction for murder, inde- 
 pendently of the legality of the warrant. 1 East, P. C. 311. 
 
 When a bailiff, having a warrant to arrest a man, pressed early 
 into his chamber Avith violence, but not mentioning his business, and 
 the man not knowing him to be a bailiff, nor that he came to make 
 an arrest, snatched down a sword hanging in his chamber, and 
 stabbed the bailiff, whereof he died ; this was held not to be murder, 
 for the prisoner did not know but that the party came to rob or kill 
 him, when he thus violently broke into his chamber without declar- 
 ing his business. 1 Hale, P. C. 470. A bailiff having a warrant to 
 arrest C. upon a ca. sa., went to his house and gave him notice. C. 
 threatened to shoot him if he did not depart, but the bailiff, disre- 
 garding the threats, broke open the windows, upon which C. shot 
 and killed him. It was ruled — 1, that this was not murder, because 
 the bailiff had no right to break the house ; 2, that it was man- 
 slaughter, because C. knew him to be a bailiff; but, 3, had he not 
 known him to be a bailiff, it had been no felony, because done in 
 *defence of his house. R. v. Cook, 1 Hale, P. C. 458 ; Cro. ^^Q/^1 
 Car. 537 ; W. Jones, 429. L «^^A 
 
 These decisions would appear to countenance the position, that 
 where an officer attempts to execute an illegal warrant, and is in the 
 first instance resisted with such violence by the party that death 
 ensues it will amount to manslaughter only. But it should seem 
 that in analogy to all other cases of provocation, this position re-
 
 1004 MURDER. 
 
 quires some qualification. If it be possible for the party resisting to 
 ellet't his object with a less degree of violence than the infliction of 
 death, a great degree of unnecessary violence might, it is conceived, 
 be evidence of such malice as to prevent the crime from being re- 
 duced to manslaughter.^ In R. v. Thompson, 1 INIoo. C C 80, "where 
 the officer was about to make an arrest on an insufficient chai-ge, the 
 judges adverted to the fact that the prisoner was in such a situation 
 that he could not get away. In these cases, it would seem to be the 
 duty of the party whose liberty is endangered to resist the officer 
 with as little violence as possible, and that if he uses great and un- 
 necessary violence, unsuited both to the provocation given and to 
 the accomplishment of a successful resistance, it will be evidence of 
 malice sufficient to support a charge of murder. See also R. v, 
 Curvan, 1 Moo. C. C. 132, ante, p. 774. So also where as in R. v. 
 Stockley (ante, p. 792), and R. v. Curtis (ante, p. 796), the party appears 
 to have acted from motives of express malice, there seems to be no 
 reason for withdrawing such from the operation of the general rule 
 [vide ante, p. 783), that provocation will not justify the party killing, 
 or prevent his oft'ence from amounting to murder, where it is proved 
 that he acted at the time from express malice. And of this opinion 
 appears to be Mr. East, who says, " It may be worthy of consideration 
 whether the illegality of an arrest does not place the officer attempt- 
 ing it exactly on the same footing as any other wrong-doer." 1 East, 
 P. C. 328. 
 
 It may be remarked, that the question is fully decided in the 
 Scotch law, the rule being as follows : — In resisting irregular or 
 defective warrants, or warrants executed in an irregular way, or 
 upon the wrong person, it is murder if death ensue to the officer by 
 the assumption of lethal weapons, where no great personal violence 
 has been sustained. Alison's Princ. Cr. Law of Scotl. 25. If, says 
 Baron Hume, instead of submitting for the time, and looking for 
 redress to the law, he shall take advantage of the mistake to stab 
 or shoot the officer, when no great struggle has yet ensued, and no 
 previous harm of body has been sustained, certainly he cannot be 
 found guilty of any low-er crime than murder. 1 Hume, 250. The 
 distinction appears to be, says Mr. Alison, that the Scotch law re- 
 probates the immediate assumption of lethal weapons in resisting an 
 illegal warrant, and will hold it as murder if death ensue by such 
 immediate use of these, the more especially if the informality or 
 error was not known to the party resisting ; whereas, the English 
 practice makes such allowance for the irritation consequent upon the 
 irregular interference Avith liberty, that it accounts death inflicted 
 under such circumstances as manslaughter only. Alison's Prin. Cr. 
 
 ' Homicide in resisting arrest by a peace officer, is not justifiable, even when the 
 arrest is illegal, unless the prisoner is in danger. State v. Cantiney, 34 jNIinn. 1. To 
 kill a peace officer serving a warrant even on void process, is murder. But that pro- 
 cess was void may reduce the degree ; the question of malice is for the jury. State r. 
 Spaulding, 34 Minn. 861. But where a statute authorizes an arrest witliout warrant 
 tlie ofllicer is justified in making the arrest, and resistance to death is murder. Ballard 
 V. Slate, 43 O. St. 340.
 
 MURDER. 1005 
 
 Law of Scotl. 28 ; see also 1 Russ. Cri. 741, 742 {g), 5th ed., note by 
 Greaves. 
 
 Ill case of death ensuing, where resistance is made to officers in 
 the execution of their duty, it sometimes becomes a question iiow 
 far the acts of third persons, who take a part in such resistance, or 
 *attemptto rescue the prisoner, shall be held to affect the latter, ^*o/^9 
 If the party who is arrested yield himself, aud make no resist- L 
 anee, but others endeavor to rescue him, and he do no act to declare his 
 joining with them, if those who come to rescue him kill any of the 
 bailiffs, it is murder in them, but not in the party arrested ; other- 
 wise, if he do any act to countenance the violence of the rescuers. 
 R. V. Stanley, Kel. 87 ; 1 Russ. Cri. 750, 5th ed. Jackson and four 
 other robbers being pursued by the hue and cry, Jackson turned 
 round upon his pursuers, the rest being in the same field, and re- 
 fusing to yield, killed one of them. By five judges who were present 
 this was held murder, and inasmuch as all the robbers were of a 
 company, and made a common resistance, and one animated the 
 others, all those who were of the company in the same field, though 
 at a distance from Jackson, were all principals, viz., present aiding, 
 and abetting. They also resolved, that one of the malefactors being 
 apprehended a little before the party was hurt, and being in custody 
 when the stroke was given, was not guilty, unless it could be proved 
 that after he was apprehended he had animated Jackson to kill the 
 party. 1 Hale, P. C. 464. Where A. beat B., a constable in the 
 execution of his duty, and they parted, and then C, a friend of A., 
 fell upon the constable, and killed him in the struggle, but A. Mas 
 not engaged in the affair after he parted from B., it was held that 
 this was murder only in C, and A. was acquitted, because it was a 
 sudden quarrel, and it did not appear that A. and C. came upon any 
 design to ill-use the constable. Anon. 1 East, P. C. 296. 
 
 It is matter of fact for the jury in these cases to determine in 
 what character the third party intervened. If he interfered for the 
 purpose of aiding the person in custody to rescue himself, and in so 
 doing killed the bailiff, it would be murder, but if, not knowing the 
 cause of the struggle, he interposed with intent to prevent mischief, 
 it would not amount to murder. 1 East, P. C. 318 ; 1 Russ. Cri. 757, 
 5th ed. See Kel. 86 ; Sid. 159. 
 
 The prisoners were indicted for murder. It appeared that a body 
 of persons had assembled together and were committing a riot. 
 The constables interfering for the purpose of dispersing the crowd 
 and apprehending the offenders, resistance "svas made to them by the 
 mob, and one of the constables was beaten severely, and afterwards 
 died. The prisoners all took part in the violence used, some by 
 beating him with sticks, some by throwing stones, and some by 
 striking him with their fists. Alderson, B., told the jury that in 
 considering the case, they would have to determine whether all the 
 prisoners had the common intent of attacking the constables ; if so, 
 each of them was responsible for all the acts of all the others done 
 for that purpose, aud if all the acts done by each if done by one
 
 1006 MITRDER. 
 
 man, would together show such violence, and so long continued, that 
 from tlicm the jury might infer an intention to kill the constable, it 
 would be murder in them all ; but if they could not infer such au 
 intention, they ought to find them guilty of manslaughter. The 
 prisoners were convicted of the latter offence. R. v. Macklin, 2 Lewin, 
 C. C. 225. 
 
 Impressment of seamen. Wliether persons in her Majesty's navy 
 acting in the impressment of seamen, are to be held to enjoy, in the 
 execution of their duty, the same privilege as a peace officer acting 
 by virtue of a warrant, does not seem to be well settled. It is clear, 
 *8n'"*n *liowever, that in order to justify the act, there must be a war- 
 "^-l rant, and that it must be executed by a proper officer. It is, how- 
 ever, laid down by JNIr. East, that if there be a proper officer, with a legal 
 warrant to impress, and the party endeavored to be taken, being a fit 
 object for that service, refuse to submit, and resist and kill the officer, 
 or any of his assistants, they doing no more than is necessary to impress 
 the mariner, it will be murder. 1 East, P. C. 308. On the other 
 hand, if the party attempted to be pressed be killed in such a strug- 
 gle, it seems justifiable, provided the resistance could not be other- 
 wise overcome ; and the officer need not give way, but may freely 
 repel force by force. Id. The following is one of the few cases to 
 be found on this subject, and it can scarcely be said to recognize any 
 principle with regard to the practice of impressment : — An officer in 
 the impress service put one of his seamen on board a boat belonging 
 to one William Collyer, a fisherman, with intent to bring it under the 
 stern of another vessel, in order to see if there were any fit objects for 
 the impress service on board. The boat steered away in another direc- 
 tion, and the officer pursued in another vessel for three hours, firing 
 several shots at her with a musket loaded with ball, for the purpose of 
 hilting the halyards and bringing the boat to, which was found to be 
 the usual way, one of which shots unfortunately killed Collyer. The 
 Court said it Avas impossible for it to be more than manslaughter. 
 This, it may be presumed, was on the ground that the musket was 
 not levelled at the' deceased, nor any bodily hurt intended to him. 
 But inasmuch as such an act was calculated to breed danger, and was 
 not warranted by law, though no bodily hurt was intended, it was 
 manslaughter, and the defendant was burned in the hand. R. v. 
 Phillip, Cowper, 832 ; 1 East, P. C. 308. The following cases only 
 establish the position, that the impressment of persons without a war- 
 rant is an illegal proceeding, and that the parties concerned do not enjoy 
 the protection afforded to ministers of the law in the execution of 
 their duty. The lieutenant of a pressgang, to whom the execution of 
 a warrant was properly deputed, remained in King Road in the port 
 of Bristol, while his boat's crew went some leagues down the channel 
 by his directions to press seamen. It was held that this impressment 
 was illegal, and one of the pressgang being killed in the furtherance 
 of that service, by a mariner, in a vessel which tliey had boarded with 
 intent to press such persons as they could meet with, it was ruled to
 
 MURDER. 1007 
 
 be only manslaughter, though no personal violence had been offered by 
 the prcssgang. R. v. Broadfoot, Foster, 154. So where the mate of 
 a ship and a party of sailors, without the captain, who had the war- 
 rant, or the lieutenant, who was deputed to execute it, impressed a 
 man, and on his resisting, the prisoner, one of the party, struck him 
 a violent blow with a large stick, of which he died some days after- 
 wards, it was adjudged murder. R. i'. Dixon, 1 East, P. C. 313. In 
 this case the party attempted to be impressed was not a mariner, and 
 the attempt to impress him was therefore illegal on that ground, as 
 well as upon the ground that neither the captain nor lieutenant was 
 present. 1 East, P. C. 313. A press warrant had been directed to 
 Lieutenant Wm, Palmer, enjoining all mayors, etc., to assist him and 
 those employed by him in the execution thereof. Palmer gave verbal 
 orders to the prisoners and several others to impress certain seafaring 
 men, but the delegation was held to be clearly bad, and the execution 
 of the warrant by the prisoners. Palmer not being there, to be illegal, 
 *though it was proved to be the constant custom of the navy r*oA4 
 to delegate the authority in this manner. R. v, Borthwick, 1 *- 
 Dough 207 ; 1 East, P. C. 313. 
 
 A sailor in the royal navy, on duty as a sentinel, has no authority 
 to fire upon persons approaching the ship against orders. The pris- 
 oner was sentinel on board the Achille, when she was paying off. The 
 orders to him from the preceding sentinel were to keep off all boats, 
 unless they had officers with uniforms in them, or unless the officers 
 on deck allowed them to approach, and he received a musket, three 
 blank cartridges, and three balls. Some boats pressing forwards, he 
 called upon them repeatedly to stop ; but one of them persisted, and 
 came close under the ship. He then fired at a man who was in the 
 boat, and killed him. It was put to the jury whether he did not fire 
 under the mistaken impression that it M^as his duty, and they found 
 that he did. On a case reserved, the judges resolved unanimously 
 that it was nevertheless murder. They thought it, however, a proper 
 case for pardon ; and further, they were of opinion that if the act had 
 been necessary for the preservation of the ship, as if the deceased had 
 been stirring vip a mutiny, the sentinel would have been justified. 
 R. V. Thomas, 1 Russ. Cri. 731, 5th ed. 
 
 Killing in defence of property. We have seen, ante, pp. 737, 772, 
 that a man may repel force by force in defence of his person or prop- 
 erty against any one intending to commit a felony, or in some cases an. 
 assault against him, and in such cases the question which arises is, 
 whether the act was manslaughter or justifiable homicide ; but in the 
 following cases the question arose whether the offence amounted to 
 murder or not.^ 
 
 ^ The belief that a person designs to kill me will not prevent my killing him from 
 being murder, unless he is making some attempt to execute his design, or at least is in 
 an apparent situation to do so, and thereby induces me reasonably to think that he 
 intends to do it immediately. State v. Scott, 4 Ired. Law, 409. Whenever there 
 is reasonable ground to believe that there is a design to destroy life, to rob, or to com- 
 mit a felony, a killing to arrest such a design is justifiable; but it is for the jury to
 
 1008 MURDER. 
 
 Where a trespass is committed merely against the property of an- 
 other, and without any felonious intent, the law does not admit the 
 
 judge of the reasonableness of such apprehension. State v. Harris, 1 Jones's Law, 
 190; Dill ('. State, -o Ala. 15; Dyson v. State, 20 Miss. .■:562. A person having rea- 
 sonable appreliension of great personal violence, involving imminent peril to life or 
 limb, may protect hiin.self even at the risk of his assailant's life, if necessary. Plolmea 
 V. State, 23 Ala. 17 ; Carroll v. State, Id. 28 ; see Stewart v. State, 1 (). St. 66; Eeppy 
 v. State, 2 Head, 217 ; Payne v. Commonwealth, 1 Mete. 370; People v. Cole, 4 Parker, 
 C. R. 3') ; Pond V. People, 8 Mich. 150 ; Dupree v. State, 33 Ala. 380 ; Logue v. Com- 
 monwealth, 38 Pa. St. 265; Hinton v. State, 24 Tex. 454; Schiner v. People, 23 111. 
 
 17 ; Maher i>. People, 24 Id. 241 ; State v. O'Connor, 31 Mo. 389; Rapp v. Common- 
 wcidtli, 14 B. Mon. 614; McAuley v. State, 3 Ja. 435; Keener v. State, 18 Ga. 194; 
 Teal V. State, 22 Ga. 75; Staten v. State, 30 Miss. 619; Meredith r. Commonwealth, 
 
 18 B. Mon. 49 ; State v. Swift, 14 La. An. 827. When a man expects to be attacked, 
 the right to defend himself does not arise imtil lie has done everything to avoid that 
 necessity. People v. Sullivan, 3 Seld. 396; Mitcliell v. State, 22 Ga. 211; Lyon y. 
 State, Id. 399 ; McPherson v. State, Id. 478 ; State v. Ingold, 4 Jones's Law, 216 ; 
 Colton V. State, 31 Miss. 504 ; People v. Hurley, 8 Cal. 390 ; State v. Thompson, 9 la. 
 188 ; State v. Baker, 1 Jones's Law, 267 ; United States v. Mingo, 2 Curt. C. C. 1 ; 
 Haynes v. State, 17 Ga. 465. As to threats by deceased, see Keener v. State, 18 Ga. 
 194; Atkins v. State, 16 Ark. 508 ; State v. Hays, 23 Mo. 287 ; Wall v. State, 18 Tex. 
 682 ; Lingo v. State, 29 Ga. 470; Dupree v. State, 33 Ala. 380 ; Newcomb v. State, 37 
 Miss. 383 ; Coker v. State, 20 Ark. 53 ; People v. Lombard, 17 Cal, 316 ; Campbell v. 
 People, 16 111. 17 ; Landes v. State, 12 Tex. 462. When he wlio kills another seeks 
 and provokes an assault on himself, in order to have a pretext for stabbing an adver- 
 sary, and does, on being assaulted, stab and kill him, such killing is not excusable 
 homicide in self-defence. Stewart v. State, 1 O. St. 66. 
 
 For cases of self-defence, see State v. Sloan, 47 Mo. 604 ; Greschea v. People, 53 111. 
 295 ; State v. King, 22 La. An. 454 ; Evans v. State, 33 Ga. 4 ; Galvin v. State, 6 Cold. 
 283 ; People v. Scroggins, 37 Cal. 676 ; People v. Lamb, 54 Barb. 342 ; Commonwealth 
 V. Carey, 2 Brewst. 404 ; Adams v. People, 47 III. 376; State v. Tachanatah, 64 N. C. 
 614 ; Commonwealth v. Drum, 58 Ga. St. 9 ; State v. Collins, 32 la. 36 ; Bohannon v. 
 Commonwealth, 8 Bush, 481 ; Bound v. State, 43 Ga. 88 ; Head v. State, 44 jMiss. 731 ; 
 Evans v. State, Id. 762 ; State v. Bertrand, 3 Or. 61 ; State r. Conally, Id. 69 ; Myers 
 V. State, 33 Tex. 525 ; People v. Harjjer, 1 Edm. 180 ; Floyd v. State, 36 Ga. 91 ; 
 Phillips V. Commonwealth, 2 Duv. 328 ; Patterson v. People, 46 Barb. 625 ; People v. 
 Campbell, 30 Cal. 312; Roach r.'. State, 34 Ga. 78; Stockton r. State, 25 Tex. 772; 
 Johnson v. State, 27 Id. 758 ; State t;. Starr, 38 Mo. 270 ; Murphy v. People, 37 III. 
 447 ; De Forest v. State, 21 Ind. 23; Goodall ?-. State, 1 Or. 333. In a trial for mur- 
 der, an instruction that an assaulted party may in defence inflict a mortal wound with 
 a dangerous weapon, and be acquitted of all oflence, provided he did not intend to 
 cause death, without reference to any circumstances making the giving of such a 
 woun ) necessary, or showing that he had in good faith undertaken to avoid further 
 struggle, is erroneous. People v. Gatewood, 20 Cal. 146. R. and I. quarrelled, and I. 
 drew a knife, R. drew a pi.stol, and while his eyes were fixed on I., who had advanced 
 towards him, the pistol was discharged accidentally and killed a bystander : held ex- 
 cusable homicide. Aaron r. State, .31 Ga. 167. If one points a loaded gun at an- 
 other, under circumstances which would not justify shooting him, and the one aimed 
 at seizes it and struggles for it to save himself from the menaced injury from it, and in 
 the struggle the gun is accidentally discharged, causing the deatli of the person aimed 
 at, the one pointing the gun cannot claim that this homicide was excusable ; other- 
 wise, if the circumstances would justify the shooting. State r. Benham, 23 la. 154. 
 When a person who has assaulted anotlierwith intent to kill, has succeeded in wholly 
 withdrawing from the conflict, and in good faith lias retreated to a place of ajiparent 
 security, his riglit of self-defence is fully restored. StofTer ?•. State, 15 O. St. 47. Retreat 
 is not always a condition which must precede the right of self-defence. Creek v. State, 
 24 Ind. 154, The defendant cannot, in order to sustain a plea of self-defence, set up a 
 necessity which he knowingly and willingly brought on himself. State v. Neely, 20 
 la. 108. Self-defence no plea where the defendant has maliciously provoked an assaidt. 
 Isaacs V. State, 25 Tex. 174. Where on trial of an indictment for murder, the fact 
 of killing witli a deadly weapon was established, a cliarge to tlie jury, that if they 
 believe tliat the defendant sought a quarrel with the deceased, in order to have r.n 
 opportunity to gratify his malice by taking his life, then no provocation, no danger to
 
 MURDER. 1009 
 
 force of the provocation to be sufficient to warrant the owner of prop- 
 erty to make use, in repelling the trespasser, of any deadly or dan- 
 gerous weapon.^ Thus, if upon the sight of a person breaking his 
 hedges, the owner were to take up a hedge-stake and knock him on 
 the head, and kill him, this would be murder; because the violence 
 was much beyond the provocation. Foster, 291 ; 1 East, P. C. 288, 
 vide sv.pra. However provoking the circumstances of the trespass 
 may be, they will not justify the party in the use of deadly weapons. 
 Lieutenant Moir, having been greatly annoyed by persons trespassing 
 upon his farm, repeatedly gave notice that he would shoot any one who 
 did so, and at length discharged a gun at a person who was trespass- 
 ing, and wounded him in the thigh, which led to erysipelas, and the 
 man died. He had gone home for a gun on seeing the trespasser, but 
 no personal contest had ensued. Being indicted for murder, he was 
 found guilty and executed. R. v. Moir, 1828. See this case as 
 stated in R. v. Price, 7 C. & P. 178, 32 E. C. L. But if the owner 
 used only a weapon not likely to cause death, and with intent only to 
 chastise the trespasser, and death ensue, this will be manslaughter 
 only. Foster, 291 ; 1 East, P. C. 288. 
 
 The rules, with regard to the defence of the possession of a house, 
 
 himself thus brought on, would excuse the killing : held correct. Murphy v. State, Shep. 
 Sel. Cas. 48 ; s. c. 37 Ala. 142. It is not error for the court to instruct the jury, that 
 if they believe from the evidence, that the defendant killed tlie deceased, when there was 
 a reasonable apprehension on his part, that the deceased was about to inflict upon him 
 great bodily harm, tliey should acquit the defendant. Fahnestock v. State, 23 Ind. 
 231. A mere assault without weapon, by a violent and quarrelsome man, where there 
 is no reason to fear great bodily harm, will not justify a homicide. State v. Kennedy, 
 20 la. 569. If a party deliberately kills another to prevent a mere trespass to prop- 
 erty, he is guilty of murder. State v. Brandon, 8 Jones (N. C.) Law, 463. The pro- 
 vocation of trespassing on the defendant's land, is not such as tlie law will recognize 
 as sufficient to reduce the olience of killing below murder. State v. Slieppey, 10 
 Minn. 223. In an attempt to recapture property taken by a trespasser, the owner 
 cannot be justified in a resort to an unsual degree of violence, or to means calcu- 
 lated to endanger life. Kunkle v. State, 32 Ind. 220. A man may not place instru- 
 ments of destruction for the protection of liis property where he would not be au- 
 tliorized to take life with his own hand for its protection. State v. Moore, 31 Conn. 
 479. No defence that the deceased belonged to a tribe of Indians with whom war 
 existed, the deceased being a prisoner at the time. State v. Gut, 13 Minn. 341. Upon 
 trial of an indictment for murder, tiie accused may prove that a man then dead, had 
 a short time before the homicide told him that deceased had armed himself to kill 
 him. Carico v. Comnronwealth, 7 Bush, 124. 
 
 If one man deliberately kill another to prevent a mere trespass unon property, 
 whether such trespass could or could not be otherwise prevented, it is murder. Harrison 
 V. State, 24 Ala. 67 ; Noles v. State, 26 Id. 31. If the trespass is forcible, the owner 
 may resist the entry, but may not kiU the assailant, until it be necessary to prevent a 
 felonious destruction of property, or to defend himself against loss of life or great 
 bodily barm. Carroll v. State, 23 Ala. 28 ; State v. McDonald, 4 Jones's Law, 19 ; 
 People I'. Horton, 4 Mich. 67. If one man deliberately kills another to prevent a 
 mere trespass on his property, whether that trespass could or could not be otherwise 
 prevented, it is murder ; and consequently an assault, with intent to kill, cannot be 
 justified on the ground that it was necessary to prevent a trespass on property. State 
 V. Morgan, 3 Iredell's N. C. Law Rep. 186. Defence of property when the attack 
 upon it is only a trespass, is no excuse for taking life. People v. Devine, 1 Edmunds, 
 594. State v. Wells, 1 Coxe, 424. S. 
 
 1 State V. Zellers, 2 Halst. 220 ; Smith's Case, 3 Roger's Rec. 77 ; Commonwealth v. 
 Drew et al., 4 Mass. 391. S. 
 
 64
 
 1010 MURDER. 
 
 are thus laid down : If A., in defence of his house, kill B., a trespasser, 
 who endeavors to make an entry upon it, it is at least common man- 
 slaughter, unless indeed there were danger of his life. But if B. had 
 entered the house, and A. had gently laid his hands upon him to 
 ^ ^_-| *turn him out, and then B. had turned upon him and assaulted 
 ' -• him, and A. had killed him (not being otherwise able to avoid 
 the assault, or retain his lawful possession) it would have been in self- 
 defence. So if B. had entered upon him, and assaulted him first, 
 though his entry were not with intent to murder him, but only as a 
 trespasser, to gain the possession, in such a case, A. being in his own 
 house, need not fly as far as he can, as in other cases of self-defence, 
 for he has the protection of his house to excuse him from flying, as 
 that would be to give up possession of his house to his adversary. 
 But in this case the homicide is excusable rather than justifiable. 1 
 East, P. C. 287 ; 1 Hale, P. C. 445 ; R. v. Cook, Cro. Car. 537 ; Hale, 
 P. C. 458, ante, p. 801. 
 
 Where the owner of a public-house was killed in a struggle between 
 him and those who unlawfully resisted his turning them out of his 
 house, it was held murder. Two soldiers came at eleven o'clock at 
 night to a publican's and demanded beer, which he refused, alleging 
 the unreasonableness of the hour, and advised them to go to their 
 quarters, whereupon they went away, uttering imprecations. In, an 
 hour and a half afterwards, when the door %vas opened to let out some 
 company detained on business, one of the soldiers rushed in, the other 
 remaining without, and renewed his demand for beer, to which the 
 landlord returned the same answer. On his refusing to depart, and 
 persisting on having some beer, and offering to lay hold of the de- 
 ceased, the latter at the same instant collared him, and the one push- 
 ing, the other pulling towards the outer door, the landlord received a 
 violent blow on the head from some sharp instrument from the other 
 soldier, which occasioned his death. Buller, J., held this to be murder 
 in both, notwithstanding the previous struggle between the land- 
 lord and one of them ; for the landlord did no more than he law- 
 fully might, which was no provocation for the cruel revenge taken, 
 more especially as there was reasonable evidence of the prisoners 
 having come a second time, with a deliberate intention to use 
 personal violence, in case their demand was not complied with. 
 R. V. Willoughby, 1 East, P. C. 288. See also R. v. Archer, ante, 
 p. 726. 
 
 The following case illustrates various points which may arise in 
 questions respecting the defence of property. The prisoners were 
 indicted for murder : Me;ide for having shot one Law with a pistol, 
 and Belt as having been present aiding and abetting him. It appeared 
 that Meade had made himself obnoxious to the boatmen at Scarbor- 
 ough, by giving information to the excise of certain smuggling 
 transactions in which some of them had been engaged ; and the boat- 
 men, in revenge, having met with him on the beach, ducked him, and 
 were in the act of throwing him into the sea, when he was rescued 
 by the police. The boatmen, however, as he was going away, called
 
 MURDER. 1011 
 
 to liim, that they would come at night and pull his house down. 
 His house was about a mile from Scarborough. In the middle of the 
 night a great number of persons came about his house, singing songs 
 of menace, and using violent language, indicating that they had come 
 with no friendly or peaceable intention ; and Meade, under an appre- 
 hension, as he alleged, that his life and property were in danger, 
 fired a pistol, by which Law, one of the party, was killed. The only 
 evidence against Belt was, that he was in the house when the pistol 
 was fired, and a voice having been heard to cry out " fire," it was 
 assumed that it was his voice. Per Holroyd, J., to the jury— A civil 
 *trespass will not excuse the firing of a pistol at a trespasser in r>KcAft 
 sudden resentment or anger. If a person takes forcible pos- L 
 session of another man's close, so as to be guilty of a breach of the 
 peace, it is more than a trespass. So if a man with force invades and 
 enters into the dwelling of another. But a man is not authorized to 
 fire a pistol on every intrusion or invasion of his house. He ought, 
 if he has a reasonable opportunity, to endeavor to remove him with- 
 out having recourse to the last extremity. But the making an attack 
 upon a dwelling, and especially at night, the law regards as equivalent 
 to an assault on a man's person ; for a man's house is his castle, and 
 therefore, in the eye of the law, it is equivalent to an assault, but no 
 words or singing are equivalent to an assault, nor will they authorize 
 an assault in return. If you are satisfied that there was nothing but 
 the song, and no appearance of further violence — if you believe that 
 there was no reasonable ground for apprehending further danger, but 
 tliat the pistol was fired for the purpose of killing, then it is murder. 
 There are c^ses where a person in the heat of blood kills another, that 
 the law does not deem it murder, but lowers the offence to man- 
 slaughter ; as where a party coming up by way of making an attack, 
 and, without there being any previous apprehension of danger, the 
 party attacked, instead of having recourse to a more reasonable and 
 less violent mode of averting it, having an opportunity so to do, fires 
 on the impulse of the moment. If, in the present case, you are of 
 opinion that the prisoners were really attacked, and that Law and his 
 party were on the point of breaking in, or likely to do so, and execute 
 the threats of the day before, they were perhaps justified in firing as 
 they did ; if you are of opinion that the prisoners intended to fire 
 over and frighten, then the case is one of manslaughter, and not of 
 self-defence. With regard to Belt, there is no evidence, one way or 
 the other, whether there was or was not any other person in the house 
 with Meade, although there is no doubt that he was there ; you are 
 not, however, to assume in a case where a man's life is at stake, that 
 because a man's voice was heard, it was the vqiee of Belt. R. v. Meade, 
 1 Lewin, C. C. 184. 
 
 Proof in cases of felo de se. It is only necessary in this place to 
 notice the law with respect to self-murder, so far as it aifects third 
 persons. If one person persuade another to kill himself, and the 
 latter do so, the party persuading is guilty of murder ; and if he per-
 
 1012 MURDER. 
 
 snade him to take poison, which he does in the absence of the per- 
 suader, yet the latter is liable as a principal in the murder.^ 1 Hale, 
 P. C. 431 ; 4 Rep. 81, b. The prisoner was indicted for the murder 
 of a woman by drowning her. It appeared that they had cohabited 
 for several months previous to the woman's death, who was with child 
 by the prisoner. Being in a state of extreme distress, and unable to 
 pay for their lodgings, they quitted them on the evening of the day 
 on which the deceased was drowned, and had no place of shelter. 
 They passed the evening together at the theatre, and afterwards went 
 to Westminster bridge to drown themselves in the Thames. They 
 got into a boat, and afterwards went into another boat, the water 
 where the first boat Avas moored not being of sufficient depth to 
 drown them. They talked together for some time in the boat into 
 which they had got, the prisoner standing with his foot on the edge 
 of the boat and the woman leaning upon him. The prisoner then 
 found himself in the water, but whether by actually throwing himself 
 *sn71 *^"' ^^ ^y accident, did not appear. He struggled and got back 
 -I into the boat again, and then found that the woman was gone. 
 He endeavored to save her, but could not get to her, and she was 
 drowned. In his statement before the magistrate he said, he intended 
 to drown himself, but dissuaded the woman from following his 
 example. The judge told the jury, that if they believed the prisoner 
 only intended to drown himself, and not that the woman should die 
 with him, they should acquit the prisoner ; but if they both went to 
 the water for the purpose of drowning themselves, each encouraging 
 the other in the commission of a felonious act, the survivor was guilty 
 of murder. He also told the jury, that though the indictment 
 charged the prisoner with throwing the deceased into the water, yet, 
 if he were present at the time that she threw herself in, and consented 
 to her doing it, the act of throwing was to be considered as the act of 
 both, and so the case was reached by the indictment. The jury 
 stated their opinion to be, that both the prisoner and the deceased 
 went to the water for the purpose of drowning themselves, and the 
 prisoner was convicted. On a reference to the judges, they were 
 clear, that if the deceased threw herself into the water by the en- 
 couragement of the prisoner, and because she thought he had set her 
 the example in pursuance of the previous agreement, he was prin- 
 cipal in the second degree, and guilty of murder ; but as it was 
 doubtful whether the deceased did not fall in by accident, it was not 
 murder in either, and the prisoner was recommended for a pardon. 
 R. V. Dyson, Russ. & Ry. 523. The prisoner was charged with 
 murder by giving and administering laudanum to one Emma Crips, 
 which she swallowed, and by reason thereof died. It appeared from 
 the prisoner's statement, and from the other evidence in the case, 
 that he and the deceased, who had been living together as man and 
 wife, being in great distress, agreed to poison themselves, and 
 that they both took laudanum. The woman was found dead next 
 morning, the prisoner having previously gone out. Patteson, J., 
 » Commonwealth v. Brown, 13 Mass. 356, 3 Wheeler's C. 0. 226. S.
 
 MURDER. 1013 
 
 held, on the anthoritv of R. v. Dyson, supra, and of an older case 
 which he cited, that if two persons mutually agree to commit suicide 
 together, and the means employed to produce death only take effect 
 on one, the survivor will, in point of law, be guilty of the murder of 
 the one who died. The prisoner was convicted. R. v. Alison, 8 C. 
 &R. 418, 34E. C. L. 
 
 If a woman takes poison with intent to procure a miscarriage, and 
 dies of it, she is guilty of self-murder, and a person who furnishes her 
 M'itli poison for that purpose will, if absent when she took it, be an 
 accessory before the fact only, and as he could not have been tried as 
 such before the repealed statute, 7 Geo. 4, c. 64, s. 9, he is not triable 
 for a substantive felony under that act. An accessory before the fact 
 to self-murder was not triable at common law, because the princi- 
 pal could not be tried, nor is he now triable under 7 Geo. 4, c. 
 64, s. 9 (repealed), for that section does not make accessories triable 
 except in cases in which they might have been tried before. R, v. 
 Russell, 1 Moo. C. C. 356 ; R. v. Leddington, 9 Carr. & P. 79, 38 
 E. C. L. 
 
 But where the prisoner procured corrosive sublimate for a woman, 
 at her instigation and under a threat by her of self-destruction, and 
 she took it with intent to produce a miscarriage and died of it, but 
 he neither administered it to her nor caused her to take it, and the 
 facts of the case were consistent with the supposition that he hoped 
 and expected she would change her mind and would not resort to it, 
 *it was held that whether the woman was or was not felo de se, r^gng 
 the man was not an accessory before the fact. R. v. Fretwell, ■- 
 L. & C. 161 ; 31 L. J., M. C. 145. 
 
 Accessories, "Where a person is cliarged as an accessory after the 
 fact to a murder, the question for a jury is, whether such person, 
 knowing the offence had been committed, was either assisting the mur- 
 derer to conceal the death, or in any way enabling him to evade the 
 pursuit of justice. R. t?. Greenacre, 8 C & P. 35, 34 E. C. L. See 
 R. V. Tyler, 8 C. & P. 616, 34 E. C. L., and R. v. Manning, 2 C. & 
 K. 903, 47 E. C. L. A person who is present at the commission of 
 the offence cannot be an accessory. R. v. Brown, 14 Cox, C. C. 144. 
 See generally as to accessories, ante, p. 181.
 
 1014 MUEDER — ATTEMPTS TO COMMIT. 
 
 ^809] 
 
 ♦MURDEE— ATTEMPTS TO COMMIT. 
 
 Injuries to person with intent to murder. Bj the 24 & 25 Vict, 
 c. 100, s. 11, "whosoever shall administer to or cause to be adminis- 
 tered to or to be taken by any person any poison or other destructive 
 thing, or shall by any means whatsoever wound or cause any grievous 
 bodily harm to any person with intent in any of the cases aforesaid to 
 commit murder, shall be guilty of felony, and being convicted thereof 
 shall be liable, at the discretion of the court, to be kept in penal ser- 
 vitude for life, or for any term not less thau three [now five] years, — 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labor, and with or without solitary confinement." 
 
 Blowing up building with intent to murder. See ante, p. 484. 
 
 Setting fire to or casting away a ship with intent to murder. 
 
 By s. 13, "whosoever shall sot fire to any ship or vessel or any part 
 thereof, or any part of the tackle, ajiparel or furniture thereof, or any 
 goods or chattels being therein, or shall cast away or destroy any ship 
 or vessel, with intent in any of such cases to commit murder, shall be 
 guilty of felony." The same punishment as in s. 11. 
 
 Attempt to poison, shoot, etc., with intent to murder. By s. 14, 
 
 " whosoever shall attempt to administer to or shall attempt to can se to 
 be administered to or to be taken by any person any poison or other 
 destructive thing, or shall shoot at any person, or shall, by drawing a 
 trigger or in any other manner, attempt to discharge any kind of 
 loaded arms at any person, or shall attempt to drown, suifocate, or 
 strangle any person, with intent, in any of the cases aforesaid, to com- 
 mit murder, shall, whether any bodily injury be effected or not, be 
 guilty of felony." The same punishment as in s. 11. 
 
 By any other means attempting to commit murder. By s. 15, 
 " whosoever shall by any moans other than those specified in any of 
 the preceding sections of this act, attempt to commit murder, shall be 
 guilty of felony." The same punishment as in s. 11. 
 
 What are loaded arms. See s. 19, ante, p. 301. 
 
 Proof of intent to murder. In order to bring the case Avithin the 
 above sections it must be proved that the prisoner intended by the act 
 charged to cause tlie death of the suffering party. This will a})}>oar 
 either from the nature of the act itself, or from the expressions and
 
 MUEDER — ATTEMPTS TO COMMIT. 1015 
 
 conduct used bv the prisoner. R. v. Cruse, 8 C. & P. 541, 34 E. C. 
 L.; 2 Moo. C' C. 53 ; R. v. Jones, 9 C. & P. 258, 38 E. C. L.^ 
 
 It will be an oifence within these sections if the party shoot at A. 
 with intent to murder B. R. v. Holt, 7 C. & P. 518, 32 E. C. L.* 
 
 AVoundinjij oneself with intent to commit suicide is not an attempt 
 to commit murder within the meaning of this statute, but remains 
 *a misdemeanor triable at quarter sessions. R. v. Burgess, r:j:Qirt 
 L. & C. 258 ; 52 L. J., M. C. 55. L ^^^ 
 
 Proof of the attempt. The prisoner was indicted under ss. 14, 15 
 of 24 & 25 Yict. c. 100. It was proved that he drew a loaded pistol 
 from his pocket for the purpose of murdering S., but that before he 
 had time to do anything further in pursuance of his purpose, the pis- 
 tol was snatched out of his hand. Stephen, J., at the trial, held there 
 was no evidence to go to the jury of any offence under s. 14, consid- 
 ering himself bound by R. v. St. George, 9 C. & P. 483, 38 E. C. L., 
 where it was held that the words "in any other manner," in s. 14, 
 meant in any other manner, like drawing a trigger, e. g., by actually 
 striking a percussion -cap with a hammer, and that therefore an at- 
 tempt to discharge a pistol by merely attempting to pull a trigger and 
 being prevented was not an offence w'ithin the section. On a case 
 being reserved as to whether the present facts constituted an offence 
 within s. 15, the Court of Crown Cases Reserved held that they did 
 not, for that s. 15 pointed to " means" other than those mentioned in 
 the earlier sections. R. v. Brown, 10 Q. B. D. 381 ; 52 L. J., M. C. 
 49.^ The court further intimated that they did not agree with R. v. 
 St. George, 9 C. & P. 483, 38 E. C. L.; and R. v. Lewis, 9 C. & P. 
 523, 38 E. C. L. See these cases, ante, p. 312, and post, tit. ''Shoot- 
 ing." 
 
 As to inciting to commit murder, see R. v. Most, 7 Q. B. D. 244 ; 
 50 L. J., M. C. 113, ante, p. 437. 
 
 Form of indictment. A prisoner was indicted under the repealed 
 statute 7 Will. 4 & 1 Vict. c. 85, s. 2, for inflicting an injury danger- 
 ous to life with intent to commit murder. The indictment stated that 
 the prisoner feloniously, and of his malice aforethought, did assault 
 C. H., and did cause unto C. H. " a certain bodily injury dangerous 
 to the life of her the said C. H., by then and there feloniously with 
 
 ^ Templeton v. People, 27 Mich. 501. In an indictment for assault with intent to 
 commit murder, malice will be presumed where the act is deliberate and dan,i,':erous. 
 Conn. V. People, 116 111. 458. In such cases it is for the jury to judge whether 
 the weapon is deadly or not. State v. Brown, 67 Iowa, 289. 
 
 ^ Or if the party unlawfully intend to kill, although he does not know the person 
 assaulted. Washington v. State, 53 Ala. 29. 
 
 ' March v. State, 3 Tex. App. 107 ; Vincent v. State, Id. 678. Under the Indiana 
 code, where one is charged with an assault and l^attery with intent to commit nuir- 
 der, but on the trial no evidence of battery is shown, a conviction of assault with 
 intent to c:)mmit murder will be sustained if supported by the evidence. Dickinson 
 V. State, 70 Ind. 247 ; Siebert v. State, 95 Ind. 471; State v. Fisher, 103 Ind. 530; 
 Powers V. State, 87 Ind. 144 ; State t;. Keeling, 107 Ind. 563.
 
 1016 MUEDElt — ATTEMPTS TO COMMIT. 
 
 his hands and fists, beating and striking the said C H. in and upon 
 the head and back of her the said C. H., and then and there with the 
 left foot of liim the said T. C. feloniously kicking the said C. H. in 
 and upon the back of her the said C. H., and then and there with his 
 hands feloniously seizing and lifting the said C. H., and then and 
 there feloniously striking the head of the said C. H. against a certain 
 wooden beam of a certain ceiling there, and then and there feloniously 
 with his arms and hands lifting up the said C. H., and with great force 
 and violence casting down, flinging and throwing the said C. H. upon 
 and against a certain brick floor, there with intent, in so doing, her, 
 the said C. H. then and there, and thereby feloniously, wilfully, and 
 of his malice aforethought, to kill and murder." On demurrer to the 
 indictment on the ground that it did not state what bodily injury had 
 been inflicted ; the judges held that the description of the means used 
 in the indictment necessarily involved the nature and situation of the 
 bodily injury, and that the indictment was therefore good, even assum- 
 ing that it was necessary to state the nature and situation of the injury. 
 R. V. Cruse, 8 C. & P. 541, 34 E. C. L.; 2 Moo. C. C. 53. In Arch. 
 Cr. PI. 15th ed., p. 560, a form of indictment is given in which neither 
 the nature or situation of the wound, nor the means of death are 
 stated. That the means used need not be stated has been decided ; 
 E,. V. Briggs, 1 Moo. C C. 318 ; nor is it customary in indictments 
 for wounding with intent to maim, disfigure, etc., to state the nature 
 or situation of the wound.
 
 NAVAL, MILITAKY, AND OTHER STORES. 1017 
 
 ♦OFFENCES CONNECTED WITH NAVAL, MILITARY, AND OTHER [*8 11 
 
 STORES. 
 
 Subject to two exceptions to be mentioned presently, the law re- 
 lating to public stores, whether army, navy, or other Government 
 stores, is now consolidated by the Public Stores Act, 1875, 38 & 39 
 Vict. c. 25, which provides as follows : — 
 
 By sect. 2, the term " secretary of state " means one of Her Majesty's 
 principal secretaries of state : 
 
 The term "the admiralty" means the lord high admiral of the 
 United Kingdom, or the commissioners for executing the office 
 of lord high admiral : 
 
 The term " stores " includes all goods and chattels, and any single 
 store or article. 
 
 The law relating to public stores in England, Ireland, and Scotland 
 (but as to Ireland and Scotland, see also post, p. 814), is now consoli- 
 dated by the 38 & 39 Vict. c. 25. The various statutes which for- 
 merly protected the different public stores have at length been totally 
 repealed, with the single exception of the reservation of certain pow- 
 ers of the Secretary of State for War with respect to prosecutions in 
 England (30 & 31 Vict. c. 128, ss. 1, 2, part of 3 and 20. See 2nd 
 schedule of the present Act). 
 
 By sect. 3, this Act shall apply to all stores under the care, super- 
 intendence, or control of a secretary of state, or the admiralty, or any 
 public department or office, or of any person in the service of her 
 Majesty, and such stores are in this Act referred to as her Majesty's 
 stores. The secretary of state, admiralty, public department, office, 
 or person having the care, superintendence, or control of such stores, 
 are hereinafter in this Act included in the expression, public depart- 
 ment. 
 
 By sect. 4, the marks described in the first schedule to this Act 
 may be applied in or on stores therein described in order to denote her 
 Majesty's pro])erty in stores so marked ; and it shall be lawful for any 
 public department, and the contractors, officers, and workmen of such 
 department, to appl}^ those marks, or any of them, in or on any such 
 stores ; and if any person without lawful authority (proof of which 
 authority shall lie on the party accused) applies any of those marks in 
 or on any such stores he shall be guilty of a misdemeanor, and shall on 
 conviction thereof be liable to be imprisoned for any term not exceed- 
 ing two years, with or without hard labor. 
 
 By sect. 5, if any person with intent to conceal her Majesty's prop- 
 erty in any stores, takes out, destroys or obliterates, wholly or in part, 
 any such mark as aforesaid, or any mark whatsoever denoting the 
 property of her Majesty in any stores, he shall be guilty of felony,
 
 1018 NAVAL, MILITARY, AND OTHER STORES. 
 
 and shall on conviction thereof be liable, in the discretion of the court 
 before which he is convicted, to be kept in penal servitude for any 
 term not exceeding seven years, or to be imprisoned for any term not 
 exceedin«: two years, with or without hard lal)or. 
 *si 91 *^^*y ^^^^' ^' ^ constable of the jNIctropolitan police force may, 
 -I witiiin the limits for which he is constable, and any constable, 
 if deputed by a public department may, within the limits for which he 
 is constable, stop, search, and detain any vessel, boat, or vehicle in or 
 on which tliere is reason to suspect that any of her Majesty's stores, 
 stolen or unlawfully obtained, may be found, or any person reasonably 
 suspected of having or conveying in any manner any of her Majesty's 
 stores stolen or unlawfully obtained. 
 
 A constable shall be deemed to be deputed by a public department 
 within the meaning of this section if he is deputed by any writing 
 signed by the person who is the head of such department, or who is 
 autliorized to sign documents on behalf of such department. 
 
 By sect. 7, any person brought before a court of summary jurisdic- 
 tion charged with conveying or with having in his possession any of 
 her Majesty's stores, reasonably suspected of being stolen, is guilty of 
 a misdemeanor, and liable to a penalty or imprisonment. 
 
 By sect. 8, power is given to search for stores. 
 
 By sect. 9, if stores are found in the possession of a person being 
 in her Majesty's service, or in the service of a public department, or 
 being a dealer in marine stores, or in old metals, or a pawnbroker, he 
 is liable, on summary conviction, to a penalty. 
 
 By sect. 10, for the purposes of this act stores shall be deemed to 
 be in the possession or keeping of any person if he knowingly has 
 them in the actual possession or keeping of any other person, or in 
 any house, building, lodging, apartment, field, or place, open or in- 
 closed, whether occupied by himself or not, and whether the same 
 are so had for his own use or benefit, or for the use or benefit of 
 another. 
 
 By sect. 11, a conviction in England under any provision of this act 
 of a dealer in old metals shall, for the purposes of registration and its 
 consequences under the Old Metal Dealers Act, 1861, be equivalent to 
 a conviction under that act. 
 
 Sect. 12 incorporates sections 98-100, 103, 107-113, 115-121 of the 
 Larceny Act, 1861. ^ 
 
 By sect. 13, the provisions of this act relative to the taking out, 
 destroying, or obliterating of marks, or to the having in possession or 
 keeping of her INIajesty's stores, shall not apply to stores issued as 
 regimental necessaries, or otherwise for any soldier, militiaman, or 
 volunteer ; but nothing herein shall relieve any person from any obli- 
 gation or liability to which he may be subject under any other act in 
 respect of any such stores. 
 
 With respect to summary convictions, see sects. 14, 15, and the in- 
 terpretation clause. 
 
 By sect. 16, nothing in this act shall prevent any person from 
 being indicted under this act or otherwise for any indictable offence
 
 NAVAL, MILITARY, AND OTHER STORES. 1019 
 
 made punishable on summary conviction by this act, or prevent any 
 person from being liable under any other act, or otherwise to any 
 other or higher penalty or punishment than is provided for any 
 offence by this act, so that no person be punished twice for the same 
 offence. 
 
 By sect. 17, section 45 of the Greenwich Hospital Act, 1865, shall 
 be read and have effect as if this act instead of the Naval and Vic- 
 tualling Stores Act, 1864, were referred to in that section. 
 
 By section 18, the repeal of former act and anything in this act is 
 not to apply to any offence committed before the passing of this act, 
 *but this act is to ajjply to stores bearing any such mark or r^icnio 
 part of a mark as in this act mentioned, whether applied be- •- 
 fore or after the passing of this act. 
 
 The schedule of the above act retains section 20 of the 30 & 31 
 Vict. c. 128, and so much of section 3 of that act as is applicable to 
 section 20, viz., the definition of "Secretary of State for AYar," and 
 the definition of "Stores." The above section (s. 20) of the 30 & 31 
 Vict. c. 128, enables the Secretary of State for War to prosecute and 
 defend actions, civil and criminal, relating to her Majesty's stores. 
 
 What amounts to a guilty possession. There is an anonymous 
 case by ISIr. Justice Foster, which was decided on the second section of 
 the 9 & 10 Will. 3, c. 41 [now repealed], in which a widow woman 
 was indicted under that section for having in her possession several 
 pieces of canvas marked in the manner described in the act. The de- 
 fendant did not attempt to show that she was within the exception of 
 the act, as being a person employed to make canvas for the use of the 
 navy ; nor did she offer to produce any certificate from any officer of 
 the crown touching the occasion and reason of such canvas coming 
 into her possession ; but her defence was that it was bought at public 
 auction, and that such sales frequently took place, where similar arti- 
 cles were sold in large and small lots ; and that the canvas in ques- 
 tion had been made up fi)r table-linen and sheeting, and had been in 
 common use in the defendant's family for a considerable time before 
 her husband's death, and upon his death came to the defendant, and 
 had been used in the same public manner by her to the time of the 
 prosecution. This sort of evidence was strongly opposed by the 
 counsel for the crown, who insisted that, as the act allows of but one 
 excuse, the defendant, unless she should avail herself of that, could 
 not resort to any other. But Mr. Justice Foster was of opinion, that 
 though the clause of the statute which directs the sale of these things 
 hath not pointed out any other way for indemnifying the buyer than 
 the certificate ; and though the second section seems to exclude any 
 other excuse for those in whose custody they shall be found, yet still 
 the circumstances attending every case ought to be taken into consid- 
 eration, otherwise a law calculated for wise purposes may be made a 
 handmaid to oppression. Things of this kind were frequently ex- 
 posed to public sale, and though the act points out an expedient for 
 the indemnity of the buyers, yot probably few buyers, especially where 
 small quantities have been purchased, have used the caution suggested
 
 1022 NUISANCE. 
 
 Making great noises in the night, as with a speaking-trumpet, has 
 been held to be an indictable offence, if done to the disturbance of 
 the neighborhood. R. v. Smith, 1 Str. 704. So keeping dogs, which 
 make noises in the night, is said to be indictable. 2 Chitty's Cr. Law, 
 6-17. 
 
 *«l n *^*^ ^^^ ^^^^ keeping of hogs in a town is not only a nuisance 
 -I by statute 2 W. & M. sess. 2, c. 8, s. 20, but also at common 
 law. R. V. Wigg, 2 I.d. Raym. 1163. 
 
 It is now settled tliat the circumstance, that the thing complained 
 of furnishes, upon the whole, a greater convenience to the public than 
 it tiikes away, is no answer to an indictment for a nuisance ; see ante, 
 p. 621.1 
 
 What the legislature declares to be a public nuisance is indictable 
 as such. R. V. Crawshaw, 9 W. R. 38 ; R. v. Gregory, 5 Barn. & 
 Adol. 555, 27 E. C. L. 
 
 Proof of the degree of annoyance which will constitute a public 
 nuisance. It is a matter of some difficulty to define the degree of 
 annoyance which is necessary to constitute a public nuisance. Upon 
 aa indictment for a nuisance, in making great quantities of oifensive 
 liquors near the king's highway, it appeared in evidence that the 
 smell was not only intolerably offensive, but also noxious and hurtful, 
 giving many persons head-aches. It was held, that it was not neces- 
 sary that the smell should be unwholesome, but that it was enough if 
 it rendered the enjoyment of life and property uncomfortable.^ R. v. 
 \yhite, 1 Burr. 333. So it is said that the carrying on of an offensive 
 trade is indictable, where it is destructive of the health of the neigh- 
 borhood, or renders the houses untenantable or uncomfortable. R. v. 
 Davey, 5 Esp. 217. So it was ruled, by Abbott, C. J., in the case of 
 an indictment for carrying on the trade of a varnish maker, that it 
 was not necessary that a public nuisance should be injurious to health ; 
 that if there were smells offensive to the senses, it was enough, as the 
 neighborhood had a right to pure and fresh air.^ R. v. Neil, 2 C. & P. 
 485, 12 E. C. L. 
 
 As will be seen from R. v. Lister, infra, p. 818, though no actual 
 annoyance have taken place, yet if the lives and property of the 
 public are endangered, as by the keeping of large quantities of in- 
 flammable or explosive substances in a crowded neighborhood, an 
 indictment for a nuisance will lie. 
 
 Proof — with regard to situation. A question of considerable diffi- 
 culty frequently presents itself, as to the legality of carrying on an 
 offensive trade in the neighborhood of similar establishments, and as 
 to the length of time legalizing such a nuisan^p. Where the defend- 
 
 ^ Resp. V. Caldwell, 1 Dall. 150; Hart et al. v. Mayor, etc., of Albany, 9 Wend. 
 571, 582. S. 
 
 ^ Prout's Case, 4 Eog. Eec. 87. S. 
 
 ' Case of Lynet et al., 6 Hog. Rec. 61. S.
 
 NUISANCE. 1023 
 
 ant set np the business of a melter of tallow in a neighborhood where 
 other manufactories were established, which emitted disagreeable and 
 noxious smells, itAvas ruled that he was not liable to be indicted for a 
 nuisance, unless the annoyance was much increased by the new manu- 
 factory. E,. V. Nevill, Peake, 91. And it has also been ruled, that a 
 person cannot be indicted for continuing a noxious trade which has 
 been carried on in the same place for nearly fifty years. R. v. Nevill, 
 Peake, 93. But upon this case it has been observed, that it seems 
 hardly reconcilable with the doctrine, that no length of time can 
 legalize a public nuisance, although it may supply an answer to an 
 action by a private individual. 1 Russ, Cri. 442, 5th ed.; vide post, 
 p. 817. It should seem, continues the same writer, that, in judging, 
 whether a thing is a public nuisance or not, the public good it does 
 may, in some cases, where the public health is not concerned, be 
 taken into consideration, to see if it outweighs the public annoyance. 
 
 Upon an indictment for carrying on the business of a horse-boiler, 
 *it appeared that the trade had been carried on for many years r*o-j 7 
 before the defendants came to the premises ; but its extent was L 
 much greater under them. For the defendants, it was shown that the 
 neighborhood was full of horse-boilers and other noxious trades, and 
 evidence was given of the trade being carried on in an improved man- 
 ner. Lord Tcnterden, observing that there was no doubt that this 
 trade was in its nature a nuisance, said, that, considering the manner 
 in which the neighborhood had always been occupied, it would not be 
 a nuisance, unless it occasioned more inconvenience as it was carried 
 on by the defendants than it had done before. He left it, therefore, to 
 the jury to say whether there was any increase of the nuisance ; if, in 
 consequence of the alleged improvements in the mode of conducting 
 the business, there was no increase of annoyance, though the business 
 itself had increased, the defendants were entitled to an acquittal ; if 
 the annoyance had increased, this was an indictable nuisance, and the 
 defendants mugt be convicted. R. v. Watt, Moo. & Mai. N. P. C. 
 281. Where a paper manufacturer had been used to send the wash- 
 ings of rags into the plaintiff's water, but found out a new Avay of 
 making paper and discharged the refuse of a certain fibrous plant into 
 the water, it was held that he could do so, provided he did not increase 
 the pollution. Baxendale v. McMurray, L. R., 2 Ch. 790 ; see also 
 Ball V. Ray, L. R*, 8 Ch. 467. 
 
 If a noxious trade is already established in a place, remote from 
 habitations and public roads, and persons afterwards come and build 
 houses within the reach of its noxious effects ; or if a public road be 
 made so near it, that the carrying on of the trade become a nuisance 
 to the persons using the road ; in those cases, the party is entitled to 
 continue his trade, because it was legal before the erecting of the houses 
 in the one case, and the mailing of the road in the other. Per Abbott, 
 C. J., R. V. Cross, 2 C. & P. 483, 12 E. C. L. 
 
 Proof — with regard to length of time. No length of time will 
 legitimate a nuisance ; and it is immaterial how long the practice has
 
 1024 NUISANCE. 
 
 prevailed/ Though twenty years' user may bind the right of an in- 
 dividual, yet the public have a right to demand the suppression of a 
 nuisance, though of long standing. Weld v. Hornby, 7 East, 199. 
 Thus upon an indictment for continuing a shell fishery across the 
 river at Carlisle, though it appeared that it had been established for a 
 vast number of years, yet Mr. Justice Buller held that it contimicd 
 unlawful, and gave judgment that it should be abated. Anon, cited 
 by Lord Ellenborough, 3 Camp. 227. So it is a public nuisance to 
 place a wood-stack in the street of a town before a house, though it is 
 the ancient usage of the town, and leaves sufficient room for pas- 
 sengers, for it is against law to prescribe for a nuisance. Fowler v, 
 Sanders, Cro. Jac. 446. In one case, however, Lord Ellenborough 
 ruled, that length of time and acquiescence might excuse what might 
 otherwise be a common nuisance. Upon an indictment for obstruct- 
 ing a highway by depositing bags of clothes there, it appeared that 
 the place had been used as a market for the sale of clothes for above 
 twenty years, and that the defendant put the bags there for the pur- 
 pose of sale. Under these circumstances. Lord Ellenborough said, 
 that after twenty years' acquiescence, and it appearing to all the 
 world that there was a market or fair kept at the place, he could 
 not hold a man to be criminal who came there under a belief that- 
 ^it was such a fair or market legally instituted. R. v. Smith, 
 
 *818] 
 
 4Esp. 111. 
 
 Proof of particular nuisances — highways. See supra, tit. " High- 
 ways," 
 
 Proof of particular nuisances — particular trades. Certain trades, 
 producing noxious and offensive smells, have been held to be nuisances, 
 when carried on in a populous neighborhood, as. making candles in a 
 town by boiling stinking stuflp, which annoys the whole neighborhood 
 with stenches. R. v. Tohayle, cited Cro. Car. 510 ; but see 2 Roll. 
 Ab. 139 ; Hawk, P, C, b, 1, e. 75, s, 10. And it seems that a brew- 
 house erected in such an inconvenient place that the business cannot be 
 carried on without greatly incommoding the neighborhood, may be 
 indicted as a common nuisance ; and so in the case of a glasshouse or 
 swineyard. Hawk, P. C. b. 1, c. 75, s. 10 ; R. v. Wigg, 2 Ld. Raym. 
 1163. So a manufactory for making spirit of sulphur, vitriol, and 
 aquafortis, has been held indictable. R. v. White, 1 Burr. 333. So 
 a tannery where skins are steeped in water, by which the neighboring 
 air is corrupted.^ R. v. Pappineau, 2 Str. 686. See St. Helen's Co. v. 
 Tipping, 35 L. J., Q. B., H. of L, 66. 
 
 ^ Mills V. Hall, 9 Wend. 315 ; Commonwealth v. Alburger, 1 Whart. 469. S. 
 
 * Any trade or business carried on in a populous neighborhood or near a public 
 road, which produces noxious or offensive smells, to the annoyance of tlie public, 
 is indictable as a common nuisance, even though the smells shotikl not be injuri- 
 otis to health, but only ofTensive to the senses. >State v. Wetherall, 5 Harring. 437. 
 Carrying on <an offensive trade for twenty years in a place remote from buildings 
 and public roads, does not entitle the owner to continue it in the same place after 
 houses have been built and roads laid out in the neighborhood to the occupants
 
 NUISANCE. 1025 
 
 A very Important question relating to indictable nuisances was fully 
 discussed in R. v. Lister, Dears. & B. C. C. 209 ; 26 L. J., M. C. 196. 
 There the defendants were indicted for a public nuisance in keeping 
 and storing large quantities of wood naphtha and rectified spirits of 
 wine in a warehouse in the city of London. It appeared that the 
 quantities so stored were from 4,000 to 5,000 gallons of naphtha, and 
 from 40,000 to 50,000 gallons of spirits of wine. The operation of 
 mixing the two together was carried on upon the premises. The 
 naphtha was kept in the Avarehouse in carboys, holding twelve gallons 
 each, and carefully stocked till required for the purpose of being 
 mixed. It is very inflammable, more so than spirits, or even than 
 gunpowder itself, passing into vapor at a heat of 140° Fahr.; and, if 
 inflamed, water would not extinguish it, except in enormous propor- 
 tions relatively to the quantity of inflamed naphtha. There was no 
 dispute that a fire arising, and communicating with these premises 
 and the naphtha there kept, could not be quenched, and that the 
 consequences to the neighborhood would be very disastrous ; but it 
 was proved that it was the practice never to allow any light of any 
 kind to be taken into the Avarehouse, and that unless it were ignited, 
 this quantity of naphtha and spirits would produce no danger. The 
 case was twice argued, and ultimately the judges all agreed, that as 
 from the nature and quantity of the substance, a real danger to the 
 lives and property of the public was created, the defendants had com- 
 mitted an indictable offence ; and that the circumstances, as above 
 stated, warranted the jury in finding them guilty. 
 
 In this case several decisions were referred to, in which it had 
 been held that manufacturing or keeping large quantities of gun- 
 powder in towns, or closely-inhabited places, was an indictable 
 offence at common law. See R. v. Williams, 1 Russ. Cri. 421, 5th 
 ed.; R. V. Taylor, 2 Str. 1167 ; Crowder v. Tinkler, 19 Ves. 617 ; and 
 these cases are confirmed by the abov^e decision. The manufacturing 
 and keeping of gunpowder and other explosive substances are now 
 *regulated by the Explosive Substances Act, 1875, 38 & 39 r^qin 
 Vict. c. 17, and the Explosive Substances Act, 1883, 46 Vict. ^ 
 c. 3. 
 
 See further as to explosive substances, ante, tit. " Explosives." 
 
 Proof of particular nuisances — corrupting the waters of public 
 rivers. In R. v. Medley, 6 C. & P. 292, 25 E. C. L., the chairman, 
 deputy-chairman, superintendent, and engineer of the Equitable Gas 
 Company were found guilty upon an indictment for conveying the ref- 
 use of gas into the Thames, whereby the fish were destroyed, and the 
 water was rendered unfit for drink, etc. Lord Denman, C. J., told the 
 
 of and travellers upon which it is a nuisance. Commonwealth v. Upton, 6 Gray, 
 473. S. 
 
 To render a business liable to be abated as a nuisance it must be offensive, unhealth- 
 ful, etc., to persons of ordinary nature and condition ; that it is offensive to delicate 
 and sensitive organizations is not enough. Rufl' v. Phillips, 50 Ga. 130 ; Meigs v. 
 Lister, 25 N. J. Eq. 489. 
 
 65
 
 1026 NUISANCE. 
 
 jury, tliat the quGstion for them was, whether the special acts of the 
 company amounted to a nuisance.^ 
 
 Proof of particular nuisances — railways — steam-engines, etc. 
 Where an Act of parliament gave a company power to make a railway 
 and another Act gave them unqualified power to use locomotive steam- 
 engines on the railway, and the railway was constructed in some parts 
 within five yards of a highway ; upon an indictment for a nuisance, 
 stating that horses passing along the highway were terrified by the 
 engines, it was held that this interference with the rights of the public 
 must be presumed to have been sanctioned by the legislature, and that 
 the benefit derived by the public from the railway showed that there 
 was nothing unreasonable in the Act of parliament giving the powers. 
 E. V. Pease, 4 B. & Ad. 30, 24 E. C. L. See post, title " Railways." 
 But where the defendant, the proprietor of a colliery, without the au- 
 thority of an Act of parliament, made a railway from his colliery to a 
 sea-port town, upon the turnpike-way, which it narrowed in some 
 places, so that there was not room for two carriages to pass, although 
 he gave the public (paying a toll) the use of the railway, yet it was 
 held that the facility thereby aflforded to traffic was not such a conve- 
 nience as justified the obstruction of the highway. R. v. Morris, 1 B. 
 & Ad. 441, 20 E. C. L. 
 
 The proceedings in indictments for nuisances by steam-engines are 
 regulated by the 1 & 2 Geo. 4, c. 41 (U. K.). By s. 1, the court by 
 which judgment ought to be pronounced in case of a conviction upon 
 any such indictment (viz, for a nuisance arising from the improper 
 construction or negligent use of furnaces employed in the working 
 of steam-engines), is authorized to award such costs as shall be 
 deemed proper and reasonable to the prosecutor, such award to be 
 made before or at the time of pronouncing final judgment. And by 
 the second section, if it shall appear to the court by which judgment 
 ought to be pronounced that the grievance may be remedied by 
 altering the construction of the furnace, it shall be lawful, without 
 the consent of the prosecutor, to make such order touching the premises 
 as shall by the court be thought expedient for preventing the nuisance 
 in future, before passing final sentence. By the third section the 
 Act is not to extend to furnaces erected for the purposes of working 
 mines. 
 
 Proof of particular nuisances — acts tending to produce public 
 
 disorder — acts of public indecency. Common stages for rope-dancers, 
 
 and common gaming-houses, are nuisances in the eye of the law, not 
 
 *S9m *^"^^' because they are great temptations to idleness, but because 
 
 ^ they are *apt to draw together great numbers of disorderly 
 
 ' ^Vhere works were erected on the waters of a stream in one county, which cor- 
 mpted the waters of the same stream in another county : held that the indictment 
 couM be prosecuted in the former county. Commonwealth v. Lyons, 1 Clark, 
 497. S.
 
 NUISANCE. 1027 
 
 persons, to the inconvenience of the neighborhood.^ Hawk. P. C. b. 1, 
 c. 75, s, 6. So collecting together a number of persons in a field for 
 the purpose of pigeon-shooting, to the disturbance of the neighbor- 
 hood, is a public nuisance. R. v. Moore, 3 B. & Ad. 184, 23 E. C. L.; 
 see this case more fully, post, p. 825. 
 
 It is upon this same principle that many of the acts after mentioned 
 have been held to be public nuisances. 
 
 What outrages pul)lic decency, and is injurious to public morals, is 
 indictable as a misdemeanor. Hawk. P. C. b. 1, c. 75, s. 4 ; 1 Russ. 
 Cri. 434, 5th ed.^ Thus bathing in the open sea, where the party can 
 be distinctly seen from the neighboring houses, is an indictable offence, 
 although the houses had been recently erected, and, until their erection, 
 it had been usual for men to bathe in great numbers at the place in 
 question : '' for," said M'Donald, C. B., " whatever place becomes 
 the habitation of civilized men, there the laws of decency must be 
 enforced." R. 2^. Crunden, 2 Campb. 89; R. v. Sedly, Sid. 168. 
 Bathing so near a public footway frequented by females that exposure 
 must occur is a nuisance, and it is no defence that there has been an 
 usage to bathe at that place time out of mind. R. v. Reed, 12 Cox, 
 C. C. 1. Per Cockburn, C. J. 
 
 Exposing the dead body of a child in a public highway is a nui- 
 sance. R. V. Clark, 15 Cox, C. C. 171. 
 
 It would seem that cremation, if so conducted as not to shock pub- 
 lic decency, would not be an indictable nuisance at common law. See 
 ante, "Dead Bodies." 
 
 An indecent exposure in a place of public resort, if actually seen 
 only by one person, no other person being in a position to see it, is 
 not a common nuisance. R. v. Webb, 1 Den. C. C. R. 338; s. c. 
 18 L. J., M. C. 39 ; and see R. v. Farrell, 9 Cox, C. C. 446. But 
 this view of the law has since been doubted in the case of R. v. Elli- 
 ott, L. & C. 103. The prisoner was indicted for an indecent exposure 
 
 ^ A ten-pin alley, kept for gain in a populous village and open to public use, is not 
 per se a disorderly house or public nuisance, nor does the fact of its being kept in 
 connection with a drinking saloon make it such. State v. Hall, 3 Vr. 158. A bowling 
 saloon kept for gnin or hire is a public nuisance at common law, though gambling be 
 expressly prohibited. Tanner v. Trustees of Albion, 5 Hill, 121 ; Commonwealth v. 
 Goding, 3 Mete. 130. Whatever act openly outrages decency and is injurious to pub- 
 lic morals, is a misdemeanor at common law, and is indictable as such. State v. Rose, 
 32 Mo. 560. A person who collects together a large crowd in the public highway and 
 streets of a city, by means of " violent and indecent language addressed to persons 
 passing along the highway," thereby obstructing the free passage of the street, is in- 
 dictable for committing a common nuisance. Barker v. Commonwealth, 19 Pa. St. 
 412. Profane swearing in public is indictable as a common nuisance. State ». Gra- 
 ham, 3 Sneed, 134. As to indecent exposure, see Commoriwealth v. Haynes, 2 Gray, 
 72. The public utterance, in a large assembly of males and females, of grossly obscene 
 language, is a misdemeanor, indictable at common law. State v. Appling, 25 Miss. 
 315. See McJunkins v. State, 10 Ind. 140 ; State v. Gardner, 28 Mo. 90 ; Knowles v. 
 State, 3 Day. 103. S. 
 
 Brady t>. State, 48 Ga. 311 ; Moffit v. State, 43 Tex. 346 ; State v. Griffin, Id. 538 ; 
 Ardery v. State, 56 Ind. 328. 
 
 * In some States statutes have been passed punishing intoxication and the sale of 
 liquors to intoxicated persons. In re Pierce, 46 Vt. 374 ; State v. Hoffman, 46 Vt. 
 176.
 
 1028 NUISANCE. 
 
 in an omnibus, several passengers being tlierein. The indictment 
 contained two connts ; one laid tlie oii'enee as having been committed 
 in an omnibns, and the other in the public highway. It was held 
 that an omnibus was sufficiently a public place to sustain the indict- 
 ment. R. V. Hohnes, 1 Dears. C. C. R. 207 ; 22 L. J., M. C. 122 ; 
 and semble that a railway carriage would under similar circumstances 
 be also a public place. Langrish v. Archer, 52 L. J., M. C. 47.^ So 
 also, where a man indecently exposed his person upon the roof of 
 a house, where his act could not be seen by persons passing along 
 the highway, but where it was seen by seven persons from the back 
 windows of another house, it was held that he was rightly convicted 
 of exposing his person in a public place. R. v. Thallman, L. & C. 
 336 ; 33 L. J., M. C. 53. A urinal open to the public, situate in 
 Hyde Park, near to a lodge, the window of which, on a first floor, 
 commands a view of the urinal at a distance of 14 feet, the urinal 
 being approached by a gate opening from a public footpath, is a public 
 place. R. V. Harris, L. R. 1 C. C. R. 282 ; overruling R. v. Orchard, 
 3 Cox, C. C. 248. 
 
 Exhibiting an offensive and disgusting picture, although there be 
 nothing immoral in it, and although the motive of the exhibitor may 
 be innocent and even laudable, is a nuisance. R. v. Grey, 4 F. & F. 
 73. So keeping a booth for the purpose of showing an indecent ex- 
 hibition to which people were invited to enter on payment and 
 *S91 1 *witness an indecent exhibition, renders a person indictable at 
 1 common law for indecency in a public place. R. v, Saunders, 
 1 Q. B. D. 15 ; 45 L. J., M. C. 11. 
 
 As to obscene prints, see 14 & 15 Vict. c. 100, s. 29, and 20 & 21 
 Vict. c. 83 ; and as to obscene books, see R. v. Hickling, 37 L. J., 
 M. C. 89. 
 
 Proof of particular nuisance — disorderly inns. Every one, at 
 common law, is entitled to keep a public inn, but if he sells ale, wine, 
 or spirits, he comes within the licensing statutes ; and may be indicted 
 and fined, as guilty of a public nuisance, if he usually harbor thieves, 
 or suffer frequent disorders in his house, or take exorbitant prices, 
 or refuse to receive a traveller as a guest into his house, or to find him 
 in victuals, upon the tender of a reasonable price. Hawk. P. C. b. 1, 
 c. 78, ss. 1, 2 ; R. v. Iven, 7 C. & P. 213, 32 E. C. L. ; Hawthorn 
 V. Hammond, 1 C. & K. 404, 47 E. C. L. 
 
 Refusing to supply necessary food and lodging to a bond fide trav- 
 eller is an indictable offence (1 Russell on Cri. 5th ed. 426), but a re- 
 freshment bar though attached to the inn is not an inn within the 
 common law rule, and therefore no indictment will lie for refusing to 
 supply refreshments from such place. R. v. Rhymer, L. R. 2 Q. B. 
 D. 136 ; 46 L. J., M. C. 108. 
 
 By the 22 & 23 Vict. c. 17 (Vexatious Indictments Act), supra, p. 
 192, no indictment is to be preferred for keeping a gambling-house, 
 
 ' A public highway was held not to be such a public place as the statute contem- 
 plated, where the statute said, " any public place." Williams v. State, 64 Ind. 553.
 
 NUISANCE. 1029 
 
 or a disorderly-house, Avitliout previous authorization. See also 30 & 
 31 Viet. c. 35, s. 1, in Appendix. 
 
 The quarter sessions for a borough have jurisdiction to try an in- 
 dictment for kee})ing a disorderly house, and the provisions of the 25 
 Geo. 2, c. 86, s. 5, do not confine it to the assizes or the quarter sessions 
 for the county. 11. v. Charles, 10 W. R. 62 ; 31 L. J., M. C. 69. 
 
 Proof of particular nuisances — gaming-houses. In R. v. Dixon, 
 10 Mod. 336, it was held that the keeping of a gaming-house was an 
 offence at common law as a nuisance. The keeping a common gaming- 
 house is an indictable offence, for it not oidy is an encouragement to 
 idleness, cheating, and other corrupt practices, but it tends to produce 
 public disorder by congregating numbers of people. Hawk. P. C. b. 
 1, c. 75, s. 6 ; 1 Russ. Cri. 428, 5th ed. A feme covert may be con- 
 victed of this offence. Hawk. P. C. b. 1, c. 92, s. 30. Keeping a 
 common gaming-house, and for lucre and hire unlawfully causing and 
 procuring divers ill-disposed persons to frequent and come to play 
 together a certain game called rouge et noir, and permitting the said 
 idle and evil-disposed persons to remain, playing at the said game, for 
 divers large and excessive sums of money, is a sufficient statement of 
 an offence indictable at common law ; R. v. Rogier, 1 B. & C. 272, 
 8 E. C L.; and per Holroyd, J., it would have been sufficient merely 
 to have alleged that the defendant kept a common gaming-house. Id. 
 So in R. V. Mason, 1 Leach, 548, Grose, J., seemed to be of opinion 
 that the keeping of a common gaming-house might be described gen- 
 erally. See also R. y.'^Taylor, 3 B. & C. 502, 10 E. C. L. It seems 
 that the keeping of a cockpit is not only an indictable offence at com- 
 mon law, but such places are considered gaming-houses within the 
 statute 33 Hen. 8, c. 9. Hawk. P. C. b. 1, c. 92, s. 92. 
 
 *The 8 & 9 Vict. c. 109, s. 2, enacts that " in default of r*o9o 
 other evidence proving any house or place to be a common L 
 gaming-house it shall be sufficient, in support of the allegation in any 
 indictment or information that any house or place is a common gam- 
 ing-house to prove that such house or place is kept or used for play- 
 ing therein at any unlawful game, and that a bank is kept there by one 
 or more of the players exclusively of the others, or that the chances of 
 any game played therein are not alike favorable to all the players, in- 
 cluding among the players the banker or other person by whom the 
 game is managed, or against whom the other players stake, play, or 
 bet; and every such house or place shall be deemed a common gam- 
 ing-house, such as is contrary to law and forbidden to be kept by the 
 said Act of King Henry the Eighth, and by all other Acts contain- 
 ing any provision against unlawful games in gaming-houses." The 
 Act also contains provisions for searching gaming-houses and for the 
 summary conviction of the owners. By the 16 & 17 Vict. c. 119, 
 no house, room, or place is to be kept for the purpose of betting or 
 receiving money for bets, and such places are made gaming-houses 
 within the 8 & 9 Vict. c. 109; amended by 37 & 38 Vict. c. 15. 
 Bows V. Fenwick, L. R. 9 C. P. 339 ; 43 L. J., M. C. 107 ; East-
 
 1030 NUISANCE. 
 
 wood V. Miller, L. E. 9 Q. B. 440; 43 L. J., M. C. 139 ; Haigh v. 
 Town Council of Sheffield, L. R. 10 Q. B. 102 ; 44 L. J., M. 0. 17, 
 cited ante, p. 608. 
 
 By the 17 & 18 Vict. c. 38, penalties are imposed upon persons ob- 
 structing the entry of constables into suspected houses ; and by sect. 2 
 it is provided, that " where any constable or officer authorized as 
 aforesaid to enter any house, room, or place, is wilfully prevented 
 from or obstructed or delayed in entering the same or any part 
 thereof, or where any external or internal door of or means of access 
 to any such house, room, or place so authorized to be entered shall be 
 found to be fitted or provided with any bolt, bar, chain, or any means 
 or contrivance for the purpose of preventing, delaying, or obstructing 
 the entry into the same or any part thereof of any constable, or offi- 
 cer authorized as aforesaid, or for giving an alarm in case of such 
 entry, or if any such house, room, or place is found fitted or pro- 
 vided with any means or contrivance for concealing, removing, or 
 destroying any instrument of gaming, it shall be evidence until the 
 contrary be made to appear that such room or place is used as a 
 common gaming-house within the meaning of this Act, and of the 
 former Acts relating to gaming, and that the persons found therein 
 were unlawfully playing therein." 
 
 The proceedings against persons keeping gaming-houses, bawdy- 
 houses, or disorderly houses, are facilitated by the statute 25 Geo. 
 2, c. 36, by the eighth section of Avhich it is enacted, that any person 
 who shall appear, act, or behave as the master or mistress, or as the 
 person having the care, government, or management of any bawdy- 
 house, gaming-house, or other disorderly house, shall be deemed and 
 taken to be the keeper thereof, and shall be liable to be prosecuted 
 and punished as such, notwithstanding he or she shall not in fact 
 be the real owner or keeper thereof. By section 10, no indictment 
 shall be removed by certiorari. This clause does not prevent the 
 crown from removing the indictment. R.. v. Davies, 5 T. R. 626. 
 See also ante, p. 607. 
 
 After an indictment has been preferred by a private prosecutor, 
 the court will allow any other person to go on with it, even against 
 the consent of the prosecutor. R. v. Wood, 3 B. & Ad. 657, 23 
 E. C. L. 
 
 *«9'^1 *"^^ indictment for keeping a disorderly house can be re- 
 -• moved by certiorari, whether the indictment be at the prosecu- 
 tion of the constable under 25 Geo. 2, c. 36, or at the instance of a 
 private individual. R. v. Sanders, 9 Q. B. 235, 58 E. C. L.; 15 L. 
 J., M. C. 158. 
 
 By the 10 & 11 Will. 3, c. 17, s. 1, and the 42 Geo. 3, c. 119, s. 1, 
 all lotteries are declared to be a public nuisance. See R. v. Craw- 
 shaw, supra, p. 816. By the 9 & 10 Vict. c. 48, certain associations 
 for the distribution of works of art are legalized. 
 
 By 42 & 43 Vict. c. 18, unlicensed horse races within the metro- 
 politan area are nuisances. 
 
 See generally the 22 & 23 Vict. c. 17, supra, p. 192.
 
 NUISANCE. 1031 
 
 Proof of particular nuisan ces — bawdy-houses. The keeping of a 
 bawdy-house is a common nuisance, both on the ground oi' its cor- 
 rupting public morals, and of its endangering the public peace, by 
 drawing together dissohite persons/ Hawk. P. C. b. 1, c. 74, s. 1 ; 5 
 Bac. Ab. Nuisances (A) ; 1 lluss. Cri. 427, 5th ed. A feme covn-t is 
 punishable for this offence as if she were sole. Id. R. v. Williams, 
 
 1 Salk. 383. And a lodger, who keeps only a single room for the use 
 of bawdry, is indictable for keeping a bawdy-house ; see R. v. Pierson, 
 
 2 Ld. Raym. 1197; but the bare solicitation of chastity is not 
 indictable. Hawk. P. C. b. 1, c. 74, s. 1. Though the charge in the in- 
 dictment is general, yet evidence may be given of particular facts, 
 and of the particular time of these facts, see Clarke v. Periam, 
 2 Atk. 339, it being, in fact, a cumulative offence. It is not neces- 
 sary to prov^e who frequents the house, which in many cases it might 
 be impossible to do, but if unknown persons are proved to have been 
 there, conducting tliemselves in a disorderly manner, it will maintain 
 the indictment. J. Anson v. Stuart, 1 T. R. 754 ; 1 Russ. by Greav. 
 326.^ It is not necessary that the indecency or disorderly conduct 
 should be perceptible from the exterior of the house. R. v. Rice, L. 
 R., 1 C. C. R. 21 ; 35 L. J., M. 0. 93. The proceedings in prose- 
 
 ^ Darling v- Hubbell, 9 Conn. 350. Letting a liouse to a woman of ill-fame, know- 
 ing her to be such, is an indictable offence at common lawl Commonwealth v. Har- 
 rington, 3 Pick. 26 ; see Brooks v. State, 2 Yerg. 482. Every act done in furtlierance 
 of a misdemeanor is not the subject of an indictment ; but to constitute it such, it 
 must tend directly and immediately, if not necessarily, to the conmiission of tlie mis- 
 demeanor. Hence, the renting of a house to a woman of ill-fame, with the intent that 
 it shall be kept for the purpose of public prostitution, is not an offence punishable by 
 indictment, tliough it be so kept afterward. Cowen, J., dissented, holding that the lessor 
 of a house demised and kept for such purposes, might be indicted as the keeper of it. 
 Eockway v. People, 2 Hill, 658 ; see Commonwealth v. Lewis, 1 Mete. 151 ; State v. 
 Avery, 7 Conn. 267. As to disorderly houses, see 1 Wheel. C. C. 290. May be proved 
 by general reputation. Rath bone's Case, 1 Kog. Rec. 27. But see Commonwealth v. 
 Stewart, 1 S. & R. 342. The keeping of a disorderly house must be laid as a common 
 nuisance. Hunter v. Commonwealth, 2 S. & R. 298. A person who lets a house to 
 another knowing that he intends to keep a bawdy-house, is guilty of an indictable 
 offence. Commonwealth c. Jolmson, 4 Clark, 398. One who has the control of a 
 building, and rents it with knowledge that it is to be used as a house of prostitution, 
 cannot screen himself from punishment as keeper of a bawdy-house, by showing that 
 he is not the owner of the premises, but merely collects the rents as agent for the 
 owner. Lowenstein v. People, 54 Barb. 299. It is not necessary that a bawdy-house 
 should be a dwelling. State v. Powers, 36 Conn. 77. S. 
 
 To sustain the indictment it is only necessary to establish that the defendant aided 
 in or contributed to, directly or indirectly, the maintenance of the bawdy-house. 
 Clifton V. State, 53 Ga. 241 ; Mahalovitch v. State, 54 Ga. 217. Proof that "the de- 
 fendant kept a dance-house frequented by dissolute women, and that some of them had 
 solicited men to retire from the building for the purposes of prostitution, warrants a 
 conviction for keeping a disorderly house. Commonwealth r. Cordoze, 119 Mass. 210; 
 Barnesciotta v. People, 10 Hun, (N. Y.) 137. See also O'Brien v. People, 28 Mich. 
 213 ; Morris v. State, 38 Tex. 603 ; People v. Saunders, 29 Mich. 269 ; Sylvester v. 
 State, 42 Tex. 496. The indictment need only aver that the offence was committed 
 in the county where the indictment was found. Handy v. State, 63 Miss. 207. 
 
 ' General reputation is not sufficient evidence. U. S. v. Jourdine, 4 Cranch C. C. 
 338 ; Wooster v. State, 55 Ala. 217 ; Toney v. State, 60 Ala. 97 ; People v. Mauch, 
 24 How. Pr. 276 ; Commonwealth v. Stewart, 1 S. & R. 344 ; Smith v. Commonwealth, 
 6 B. Monroe, 21 ; Hewson v. State, 62 Md. 231 ; s. c. 19 Cent. L. J. 230; Handy v. 
 State, 63 Miss. 207.
 
 1032 NUISANCE. 
 
 cutions against bawdy-houses are facilitated by the statute 25 Geo. 2, 
 c. 3G, sitpra. 
 
 See tlie 22 & 23 Vict. c. 17, ante, p. 192; aud see 30 & 31 Vict, 
 c. 35, s. 1, in Appendix. 
 
 As to what amounts to a keeping. If a house be let to weekly 
 tenants, and be used by them as a bawdy-house with the knowledge 
 of the landlord, who nevertheless does not get any additional rent by 
 reason of the purposes to which the house is ap})lied, the landlord is 
 not guilty of keeping a bawdy-house, or of being accessory thereto. 
 11. V. Barrett, 32 L. J., M. C. 36 ; L. & C. 203 ; 11. v. Stannard, L. 
 & C. 349. 
 
 Proof of particular nuisances — play-houses, etc. Play-houses 
 having been originally instituted with the laudable design of re- 
 commending virtue to the imitation of the people, and exposing 
 vice and folly, are not nuisances in their own nature, but may be- 
 come so by drawing together numbers of people, to the inconvenience 
 of the neighborhood. Hawk. P. C. b. 1, c. 75, s. 7 ; see 2 B. & Ad. 
 189, 22 E. C. L. 
 
 Players, plays, and play-houses are now put under regulations by 
 
 the 6 & 7 Vict. c. 68, pursuant to the 2nd sect, of which, all theatres 
 
 *K241 *^^h'^^i ^^^"6 ^lot authorized by letters patent from the crown, or 
 
 -I by licence from the lord chamberlain, or the justices of the 
 
 peace, are unlawful. 
 
 By the 25 Geo. 2, c. 36, any house, room, garden, or other place 
 kept for public dancing, music, or other public entertainment of the 
 like kind, in the cities of London or Westminster, or within twenty 
 miles thereof, without a licence from the magistrates, shall be deemed 
 a disorderly house, and the keeper is subjected to a penalty of 100^., 
 and is otherwise punishable as the law directs in cases of disorderly 
 houses. A room used for public music or dancing is within the 
 statute, although it is not exclusively used for those purposes, and 
 although no money be taken for admission ; but the mere accidental 
 or occasional use of the room, for either or both of these purposes, 
 will not be Avithin the Act. Per Lord Lyndhurst, C. B., Gregory v. 
 Tuffs, 6 C. & P. 271, 25 E. C. L. Sec also Gregory v. Tavernor, Id. 
 280 ; Marks v. Benjamin, 5 M. & W. 564 ; R. v. Tucker, 2 Q. B. D. 
 417; 46 L. J., M. C. 197; and cases collected in Chitty's Statutes, 
 vol. v., tit. " Public Entertainment," 4th ed. 
 
 Proof of particular nuisances — dangerous animals. Suffering 
 fierce and dangerous animals, as a fierce bull-dog, which is used to 
 bite people, to go at large is an indictable offence. 4 Burn's Justice, 
 578. But where the animal is not of such a description as, in general, 
 from its ferocity, to endanger the persons of those it meets, in order 
 to maintain an indictment, it must be shown that the owner was 
 aware of the ferocity of that particular animal. 2 Ld. Eaym. 1852.
 
 NUISANCE. 1033 
 
 Proof of particular nuisances — contagion, and unwholesome 
 provisions. It is an indiotablc ollbncc to expose a person luivinj^ a 
 coiitagiinis disease, as the siuall-j)ox, in public. R. v. Vantundillo, 
 4 M. tV: S. 73 ; R. v. Burnett, Id. 272. See also the 3 & 4 Viet. c. 29, 
 s. 8 (now repealed by 30 & 31 A^'ict. e. 84, by section 32 of which 
 similar provisions are substituted) which subjects to })unishment, 
 by suuiniary conviction, persons inoculating or otherwise produci;ig 
 small-pox. 
 
 It is a nuisance for a common dealer in j)rovisions to sell unwhole- 
 some food, or to mix noxious ingredients in the provisions Avhich 
 he sells. R. v. Dixon, 3 M. & S. 11. Or to cause to be publicly 
 exposed for sale, as sound and wholesome meat, meat known not 
 to be sound and wholesome ; R. v. Stevenson, 3 F. & F. 100 ; or 
 knowinglv to send such meat to market ; R. v. Jarvis, 3 F. & F. 108 ; 
 R. V. Cro'wley, 3 F. & F. 109. 
 
 As to the inspection and seizure of unwholesome food, see 26 & 27 
 Vict. c. 1 1 7 (repealed, excejot as to Metropolis, by 38 & 39 Vict. c. 55 : 
 see ss. 116-119 of that Act.) By 38 & 39 Vict. c. 63, s. 3, the adul- 
 teration of food in certain cases is made a misdemeanor, punishable by 
 six months hard labor. 
 
 Proof of particular nuisances — eaves-dropping, common scold. 
 Eaves-droppers, or such as listen under walls and windows, or the 
 eaves of houses, to hear discourses, and thereupon frame slanderous 
 and mischievous tales, are common nuisances, and indictable, and 
 may be punished by fine, and finding sureties of their good behavior. 
 4 Bl. Com. 167 ; Burn's Justice, Eaves Droppers ; 1 Russ. Cri. 438, 
 5th ed. 
 
 *So a common scold is indictable as a common nuisance, and r*ooK 
 upon conviction mav be fined or imprisoned, or put into the ^ 
 ducking-stooh Hawk. P. C. b. 1, c. 75, s. 14; 4 Bl. Com. 168. 
 The particulars need not be set forth in the indictment. Hawk. 
 P. C. b. 2, c. 25, s. 59 ; nor is it necessary to prove the particu- 
 lar expressions used ; it is sufficient to give in evidence generally that 
 the defendant is always scolding.^ Fer Buller, J., I' Anson v. Stuart, 
 1 T. R. 754. 
 
 Proof of the liability of the defendant. A man may be guilty 
 of a nuisance by the act of his agent or servant.^ Thus it has been 
 ruled that the directors of a gas company are liable for an act done 
 
 ' State r. Williams, 2 Over. 108. Case of Greenwault et al., 4 Rog. Rec 174; 
 Field's Case, 6 Id. 90; James v. Commonwealth, 12 S. & R. 220. But the punishment 
 by the ducking-stool cannot be inflicted in Pennsylvania. Id. An indictment for 
 being a connnon brawler may be sustained by proof of habitually immoderate and 
 vituperative language, though used only in the liouse of the accused and in the heat 
 of sudden altercation, if so public and frequent as to disturb the public peace. Com- 
 monwealth I'. Foley, 99 Mass. 497. S. 
 
 * In an indictment for the sale of liquor, the intention of the principal is essen- 
 tial, and he is not criminally liable for sales unlawfully made by his clerk. State v. 
 Hayes, 67 Iowa, 27.
 
 1034 NUISANCE. 
 
 by their superintendent and engineer, under a general authority to 
 manage their works, tliongh they are personally ignorant of the par- 
 ticnhir plan adopted, and though such ])lan l)e a departure from the 
 original and understood method, which the directors had no reason to 
 sup[)o.sc discontinued. R. v. Medley, G C. & P. 292, 25 E. C. L.; see 
 this case ante, p. 819. 
 
 The owner of a slate quarry was indicted for a nuisance in obstruct- 
 ing a navigable river. He was unable tlirough age and infirmity to 
 superintend the working of the quarry, and the nuisance Mas caused 
 by neglect of his general orders, but the judge directed the jury that 
 it was his duty to take all proper precautions to prevent the rubbish 
 from falling into the river, and that if a substantial part of the rub- 
 bish went into the river from having been improperly stacked, he was 
 guilty of having caused a nuisance, although the act might have been 
 committed without his knowledge and against his general orders ; and 
 this direction was upheld on a rule for a new trial. R. v. Stephens, 1 
 L. R., Q. B. 702. 
 
 The indictment charged the defendant with keeping certain inclosed 
 lands near the king's highway, for the purpose of persons frequent- 
 ing the same to practise rifle shooting, and to shoot at pigeons with 
 fire-arms ; and that he unlaAvfully and injuriously caused divers 
 persons to meet there for that purpose, and suffered and caused a 
 great number of idle and disorderly persons armed with fire-arras, 
 to meet in the highways, etc., near the said inclosed grounds, dis- 
 charging fire-arms, making a great noise, etc., by which the king's 
 subjects were disturbed and put in peril. At the trial it Mas proved 
 that the defendant had converted his premises, which Avere situate at 
 Bayswater, in the county of Middlesex, near the public highway there, 
 into a shooting-ground, where persons came to shoot with rifles at a 
 target, and also at pigeons ; and that as the pigeons which were fired 
 at frequently escaped, persons collected outside of the ground, and in 
 the neighboring field to shoot at them as they strayed, causing a 
 great noise and disturbance, and doing mischief by the shot. It 
 was held, that the evidence supported the allegation that the de- 
 fendant caused such persons to assemble, discharging fire-arms, etc., 
 inasmuch as their so doing was a probable consequence of his kee])ing 
 ground for shooting pigeons in such a place. R. v. Moore, 3 B. & Ad. 
 184, 23 E. C. L. 
 
 If the owner of land erect a building which is a nuisance, or of 
 which the occupation is likely to produce a nuisance, and let the 
 land, he is liable to an indictment for such nuisance being con- 
 tinued or created during the term. So he is, if he let a building 
 which requires particular care to prevent the occupation from being a 
 nuisance, and the nuisance occur for want of such care on the part 
 *89fi1 *^^ ^^^^ tenant. If a party buy the reversion during a tenancy, 
 -■ and the tenant afterwards, during his term, erect a nuisance, 
 the reversioner is not liable for it : but if such reversioner re-let, or 
 having an opportunity to determine the tenancy, omit to do so, allow- 
 ing the nuisance to continue, he is liable for such continuance. Per
 
 NUISANCE. 1035 
 
 Littledale, J. And such purcliaser is liable to be indicted for the con- 
 tinuance of the nuisance, if the original reversioner would have been 
 liable, though the purchaser has had no opportunity of putting an end 
 to the tenant's interest, or abating the nuisance/ R. v. Pedley, 1 Ad. 
 
 6 E. 822, 28 E. C. L. 
 
 The erection of a small-pox hospital was found by a jury to be a 
 nuisance ; and the court held it was no answer to say that the deiend- 
 ant acted bond fide under the powers of an Act of parliament. Hill 
 V. Met. Asylum Managers, 6 Ap. Cas. 193 ; 50 L. J. (H. L.), 353. 
 
 On an indictment for a nuisance in carrying on an offensive trade, a 
 conviction of the defendant before justices for an offence against the 
 16 & 17 Vict. c. 128, s. 1, committed at the same place, and in the 
 course of the same trade, but anterior to the period comprised in the 
 indictment, is not admissible in evidence, as the offence in the two 
 cases is not necessarily the same. And qucere, per Lord Campbell, C 
 J., and Coleridge, J., whether it would be admissible, even if the 
 offence were the same. Semble, per Wightman, J., that it would. 
 K. V. Faire, 8 E. & B. 486, 92 E. C. L. 
 
 Punishment and abatement of the nuisance. The punishment 
 imposed by law on a person convicted of a nuisance is fine and impris- 
 onment ; but as the removal of the nuisance is of course the object of 
 the indictment, the court will adapt the judgment to the circumstances 
 of the case. If the nuisance, therefore, is alleged in the indictment to 
 be still continuing, the judgment of the court may be, that the de- 
 fendant shall remove it at his own cost. 1 Hawk. c. 75, s. 14. But 
 where the existence of the nuisance is not averred in the indictment, 
 then the judgment of abatement would not be proper ; for it would 
 be absurd to give judgment to abate a thing which does not appear to 
 exist. R. V. Stead, 8 T. R. 142 ; and see R. v. Justices of Yorkshire, 
 
 7 T. R. 468. And where the court are satisfied that the nuisance is 
 effectually removed before judgment is prayed upon the indictment, 
 they will in that case also refuse to give judgment to abate it. R. v. 
 Incledon, 13 East, 127. When judgment of abatement is given, it is 
 only to remove or pull down so much of the thing as actually causes 
 the nuisance; as, if a house be built too high, the judgment is to pull 
 down only so much of it as is too high. And the like where the de- 
 fendant is convicted of a nuisance in carrying on an offensive trade, in 
 which case the judgment is not to pull down the building where the 
 trade is carried on, but only to prevent the defendant from using it 
 again for the purpose of the offensive trade.^ R. v. Pappineau, 1 Str. 
 686 ; see 9 Co. 53 ; Co. Ent. 92 b. 
 
 ^ To maintain an indictment against one for a nuisance, it is not enough merely to 
 show him to be the owner of the land upon which it exists, but it must appear that he 
 either erected or continued it, or in some way sanctioned its erection or continuance. 
 People V. Townsend, 3 Hill, 479. S. 
 
 * When it is the wrongful use of a building that constitutes a nuisance, the remedy 
 is to stop such use, not tear down or demolish the building. Barclay v. Common- 
 wealth, 25 Pa. St. 503. S.
 
 1036 NUISANCE. 
 
 Where a defendant had entered into a recognizance to appear at the 
 assizes and plead to an indictment for nuisance, and at the time of the 
 assizes he was on the continent in ill health ; the nuisance having 
 been abated, and the prosecutor being willing to consent to an acquit- 
 tal ; Patteson, J., after conferring with Erskine, J., under these cir- " 
 cumstanees, allowed a verdict of not guilty to be taken. 11. v. Mac- 
 michael, 8 C. & P. 755, 34 E. C. L. 
 ^g^^l *The 18 & 19 Vict. c. 121, amended by the 23 & 24 Vict. 
 
 *^ -^ c. 77, and 29 & 30 Vict. c. 90, consolidates and amends the 
 Nuisances Removal and Diseases Prevention Acts of 1848 and 1849; 
 sect. 8 defines what shall be deemed nuisances within the provisions of 
 that Act, and sect. 27 gives a summary remedy in cases of nuisances 
 arising from the carrying on of noxious trades and manufactures. 
 These Acts, except so far as they relate to the INIetropolis, are now re- 
 pealed by the Public Health Act, 1875 (38 & 39 Vict. c. 55). 
 
 See further, titles " Bridges," " Highways."
 
 OATHS — UNLAWFUL. 1037 
 
 *OATHS— UNLAWFUL. [*828 
 
 Statutes , . , 828 
 
 Proof of the oath 8^9 
 
 of aiding and assisting ........ 829 
 
 Proof for the prisoner 830 
 
 Disclosure of facts 830 
 
 Unlawful combinations , 830 
 
 Administering, etc., voluntary oaths, etc 831 
 
 Statutes. The offence of taking or administering unlawful oaths is 
 provided against by the 37 Geo. 3, c. 123 (E.), and the 52 Geo. 3, c. 
 104 (E.). 
 
 By the former of these statutes (sect. 1), it is enacted, " that any 
 person or persons who shall, in any manner or form whatsoever, 
 administer, or cause to be administered, or be aiding or assisting at, or 
 present at, and consenting to the administering or taking of any oath 
 or engagement, purporting or intending to bind the person taking 
 the same, to engage in any mutinous or seditious purpose, or to 
 disturb the public peace, or to be of any association, society, or con- 
 federacy, formed for any such purpose ; or to obey the order or com- 
 mands of any committee or body of men not lawfully constituted, or 
 of any leader or commander, or other person not having authority by 
 law for that purpose ; or not to inform or give evidence against any 
 associated confederate or other person ; or not to reveal or dis- 
 cover any unlawful combination or confederaciy ; or not to reveal or 
 discover any illegal act done, or to be done ; or not to reveal or dis- 
 cover any illegal oath or engagement, which may have been adminis- 
 tered or tendered to, or taken by such person or persons, or to or by 
 any other person or persons, or the import of any such oath or en- 
 gagement, shall, on conviction, be adjudged guilty of felony, and be 
 transported for any term not exceeding seven years, and every 
 person who shall take such oath or engagement not being compelled 
 thereto," is subject to the same punishment. See R. v. Mark, 3 East, 
 157. 
 
 By the 52 Geo. 3, c. 104, s. 1, "every person who shall in any 
 manner or form whatsoever administer, or cause to be administered, 
 or be aiding or assisting at the administering of, any oath or en- 
 gagement, purporting or intending to bind the person taking the 
 same to commit any treason, or murder, or any felony punishable 
 by law with death, shall, on conviction, be adjudged guilty of felony 
 [and suffer death as a felon, without benefit of clergy], and every 
 person who shall take any such oath or engagement, not being com- 
 pelled thereto, shall, on conviction, be adjudged guilty of felony, and 
 be transported for life, or for such term of years as the court shall 
 adjudge."
 
 1038 OATHS — UNLAWFUL. 
 
 *«9q1 *N'ow by the 7 Will. 4 and 1 Vict. c. 91, after reciting so 
 J much of* the above section as relates to the administering of the 
 oaths therein mentioned, and also the third section of the same Act, it 
 is enacted, " that if any person shall, alter the commencement of this 
 Act, be convicted of any of the offences hereinbefore mention(»d, 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 discretion of the 
 court, to be transported beyond the seas [now penal servitude] for the 
 term of the natural life of such person, or for any term not less than fif- 
 teen years, or to be imprisoned for any term not exceeding three years." 
 
 By s. 2, in cases of imprisonment, the court may award hard labor 
 and solitary confinement. 
 
 The statutes are not confined to oaths administered with a seditious 
 or mutinous intent. R. v. Ball, 6 0. & P. 563, 25 E. C. L.; R. v. 
 Brodribb, Id. 578. And it is sufficient to aver that the oath was ad- 
 ministered, not to give evidence against a person belonging to an asso- 
 ciation of persons associated to do a " certain illegal act." — R. v. Brod- 
 ribb, supra. 
 
 Proof of the oath. With regard to what is to be considered an 
 oath within these statutes, it is enacted by the 37 Geo. 3, c. 123, s. 5, 
 that any engagement or obligation whatsoever, in the nature of an 
 oath, and by 52 Geo. 3, c. 104, s. 6, that any engagement or obligation 
 whatsoever in the nature of an oath, purporting or intending to bind 
 the person taking the same to commit any treason or murder, or any 
 felony punishable by law with death, shall be deemed an oath within 
 the intent and meaning of those statutes, in whatever form or manner 
 the same shall be administered or taken, and whether the same shall 
 be actually administered by any person or persons to any other person 
 or persons, or taken by any person or persons, without any adminis- 
 tration thereof by any other person or persons. 
 
 It is not necessary in the indictment to set forth the words of the 
 oath or engagement, the purport of some material part thereof is 
 sufficient, 37 Geo. 3, c. 123, s. 4 ; 52 Geo. 3, c. 104, s. 5 ; R. v. Moore, 
 6 East, 419 (n). Parol evidence may be given of the oath, though 
 the party administering it appeared to read it from a paper, to pro- 
 duce which no notice has been given. R. v. Moore, supra. And 
 where the terms of the oath are ambiguous, evidence of the declara- 
 tions of the party administering it, made at the time, is admissible to 
 show the meaning of those terms. Id. 
 
 If the book on which the oath was administered was not the Testa- 
 ment, it is immaterial, if the party taking the oath believes himself 
 to be under a binding engagement. R. v. Brodribb, 6 C. & P. 571, 
 25 E. C. L.; R. V. Loveless, 1 Moo. & Rob. 349 ; 6 C. & P. 596, 25 
 E. C. L. Where the prisoners were indicted under the 37 Geo. 3, c. 
 123, Williams, J., said, that with regard to the oath contemplated by 
 the Act of parliament, it was not required to be of a formal nature, 
 but that it was sufficient if it was intended to operate as an oath, and 
 was so understood by the party taking it. The precise form of the
 
 OATHS — UNLAWFUL. ] 039 
 
 oath was not material, and the Act provided against any evasions of 
 its inteutiuus by declaring (sect. 5), that any engagement or obligation 
 M^hatever, in the nature of an oath, should be deemed an oath within 
 the intent and meaning of the Act, in whatever form or manner the 
 same should be administered or taken. 
 
 Proof of aiding and assisting. Who shall be deemed persons 
 ♦aiding and assisting in the administration of unlawful oatiis is r^oon 
 declared by the third section of the 37 Geo. 3, c. 123, Nvhich ■- 
 enacts, that persons aiding or assisting in, or present and consenting to, 
 the administering or taking of any oath or engagement beibre men- 
 tioned in that Act, and persons causing any such oath or engagement 
 to bo administered or taken, though not present at the administering or 
 taking thereof, shall be deemed principal oifenders, and tried as such, 
 although the person or persons wlio actually administered such oath or 
 engagement, if any such there be, shall not have been tried or convicted. 
 
 Proof for prisoner — disclosure of facts. In order to escape the 
 penalties of these statutes, it is not sufficient for the prisoner merely 
 to prove that he took the oath or engagement by comphlsion, but, in 
 order to establish that defence, he must show that he has complied 
 with the requisitions of the statutes, by the earlier of which (sect. 2), 
 it is enacted, that compulsion shall not justify or excuse any person 
 taking such oath or engagement, unless he or she shall within four 
 days after the taking thereof, if not prevented by actual force or sick- 
 ness, and then within four days after the hindrance produced by 
 such force or sickness shall cease, declare the same, together with the 
 whole of what he or she knows touching the same, and the person or 
 persons to whom and in whose presence, and when and where such 
 oath or engagement was administered or taken, by information on oath 
 before one of his Majesty's justices of the peace, or one of his Majes- 
 ty's principal secretaries of state, or of his Majesty's privy council, or 
 in case the person taking such oath or engagement shall be in actual 
 service in his Majesty's forces by sea or land, then by such information 
 on oath as aforesaid, or by information to his commanding officer. 
 The 52 Geo. 3, c. 104, contains a similar provision (sect. 2), iburteen 
 days being substituted for four days. 
 
 It is also provided by both the above statutes, that any person who 
 shall be tried and acquitted or convicted of any oflPence against the 
 Acts, shall not be liable to be prosecuted again for the same offence or 
 fact as high treason, or misprision of high treason ; and further, that 
 nothing in the Acts contained shall be construed to extend to prevent 
 any person guilty of any offence against the Acts, and who shall not be 
 tried for the same, as an offence against the Acts, from being tried for 
 the same, as liigh treason or misprision of high treason, in such manner 
 as if these Acts had not been made. 
 
 Unlawful combinations. As connected with this head of offence 
 the following statutes relative to unlawful combinations are shortly 
 referred to.
 
 1040 OATHS — UNLAWFUL,. 
 
 By the 39 Geo. 3, c. 79, s. 2 (E.), all societies, the members whereof 
 are required to take unlawful oaths or engagements within the intent 
 of the 37 Geo. 3, c. 123, or any oath not required or authorized by law, 
 are declared unlawful combinations. 
 
 By s. 8, offenders may be summarily convicted, or may be proceeded 
 against by indictment, and in the latter case are liable to transporta- 
 tion lor seven years, or to be imprisoned for two years. 
 
 By the 57 Geo. 3, c. 19, s. 25 (E.), all societies, the members 
 whereof shall be required to take any oath or any engagement which 
 shall be unlawful within the 37 Geo. 3, c. 123, or the 52 Geo. 3, c. 
 104, or to take any oath not required, or authorized by law, etc., are 
 *eQn *^o ^^ deemed guilty of unlawful combinations within the 39 
 ^'^^J Geo. 3 c. 79. 
 
 In R. V. Dixon, 6 C. & P. 601, 25 E. C. L., Bosanquet, J., held that 
 every pei'son engaging in an association, the members of which, in con- 
 sequence of being so, take an oath not required by law, is guilty of an 
 offence within the 57 Geo. 3, c. 19, s. 25. 
 
 Administering, etc., voluntary oaths, etc. By the 5 & 6 Will. 4, 
 c. 62, s. 13, " it shall not be lawful for 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 ; provided always, that nothing herein con- 
 tained shall be construed to extend to any oath, affidavit, or solemn 
 affirmation, before any justice in any matter or thing touching the 
 preservation of the peace, or the prosecution, trial, or punishment of 
 offences, or touching any proceedings before either 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 
 be used in such foreign countries respectively." See R. v. Nott, 4 Q. 
 B. 768, 45 E. C. L.
 
 OFFICES — OFFENCES RELATING TO. 1041 
 
 ♦OFFICES— OFFENCES RELATING TO. [*832 
 
 PAGE 
 
 Proof of malfeasance — illegal acts in general , , , . . 832 
 
 of nonfeasance 833 
 
 of extortion . , . • • 833 
 
 Extortion by public officers in the East Indies .... 834 
 
 Proof on prosecutions for refusing to execute an office . . . 834 
 
 Under this head will be considered the evidence requisite in prose- 
 cutions against officers, — 1, for malfeasance ; 2, for nonfeasance; 3, 
 for extortion ; and 4, for refusing to execute an office. 
 
 Proof of malfeasance — illegal acts in general. It is a general rule 
 that a public officer is indictable for misbehavior in his office. 
 Anon, 6 Mod. 96. And where the act done is clearly illegal, it is 
 not necessary, in order to support an indictment, to show that it was 
 done with corrupt motives. Thus, where a licence having been 
 refused by certain magistrates, another set of magistrates, liaving 
 concurrent jurisdiction, appointed a subsequent day for a meeting, 
 and granted the licence which had been refused before, it was held 
 that this was an illegal act, and punishable by indictment, without 
 the addition of corrupt motives. R. v. Sainsbury, 4 T. E,. 451. Still 
 more is such an offence punishable when it proceeds from malicious 
 or corrupt motives.^ R. v. Williams, 3 Burr. 1317 ; R. v. Holland, 
 1 T. R. 692. A gaoler is punishable for barbarously misusing the 
 prisoners. Hawk. P. C. b. 1, c. 66, s. 2. So overseers of the poor 
 for misusing paupers, as by lodging them in unwholesome apartments. 
 R. V. Wetheril, Cald. 432. Or by exacting labor from such as are 
 unfit to work. R. v. Winship, Cald. 76. Public officers are also in- 
 dictable for frauds committed by them in the course of their employ- 
 ment. As where an overseer receives from the father of a bastard a 
 sum of money as a compensation with the parish, and neglects to give 
 credit for this sum in account, he is punisliable, though the contract is 
 illegal. R. v. Martin, 2 Campb. 26S. See also R. v. Bembridge, 
 cited 6 East, 136. Where an officer neglects a duty incumbent on him, 
 either by common law or statute, he is for his fault indictable. Per 
 Car., R. V. Wyat, 1 Salk. 380. 
 
 Upon an indictment against a public officer for neglect of duty, it 
 is sufficient to state that he was such officer without stating his 
 appointment ; neither is it necessary to aver that the defendant had 
 
 ' While it is true that every culpable neglect of duty, enjoined on a public officer, 
 either by common law or by statute, is an indictable offence, yet the presentment in 
 such case, unless the act of the oflicer is clearly illegal, must shoAV with sufiicicnt ter- 
 tainty that it proceeded from corrupt or culpable motives. State v. Buxton, 2 Swan, 
 67. S. 
 
 6Q
 
 1042 OFFICES OFFENCES RELATING TO. 
 
 notice of all the facts alleged in the indictment, if it was his official 
 duty to have known them. So where a defendant is charged with 
 disobedience of certain orders communicated to him, it need not be 
 alleged that such orders still continue in force, as they will be 
 assumed to continue in force until they are revoked. And an indict- 
 ment for neglect of duty under a particular statute need not state that 
 *soQ-i *the neglect was corrupt, if the statute makes a wilful neglect a 
 ^^"^-l misdemeanor. R. v. Holland, 5 T. R. 607. 
 
 Every malfeasance or culpable nonfeasance of an officer of justice, 
 with relation to his office, is a misdemeanor, and punishable with fine 
 or imprisonment, or both. 
 
 As to the sale of offices, see R. v. Charretie, 13 Q. B. 447, (^Q 
 E. C. L.; and Hopkins v. Prescott, 4 C. B. 578, 56 E. C. L. 
 
 Proof of nonfeasance. Upon a prosecution for not performing 
 the duties of an office, the prosecutor must prove, 1, that the defend- 
 ant holds the office ; 2, that it was his duty, and within his power to 
 perform the particular act ; and 3, that he neglected so to do. 
 
 Where an officer is bound by virtue of his office to perform an act, 
 the neglect to perform that act is an indictable offence. Thus a coro- 
 ner, 2 Chitt. C. L. 255 ; a constable, 1 Russ. Cri. 307, 5th ed.; R. v. 
 Wyat, 1 Salk. 380 ; a sheriff, R. v. Antrobus, 6 C. & P. 784, 25 E. 
 C L.; and an overseer of the poor, R. v. Tawney, 1 Bott. 333, are 
 indictable for not performing their several duties. The majority of 
 the judges were of opinion, that an overseer cannot be indicted for 
 not relieving a pauper, unless there has been an order of justices for 
 such relief, or unless in a case of immediate and urgent necessity. 
 R. v. Meredith, Russ. & Ry. 46. But where the indictment stated 
 that the defendant (an overseer) had under his care a poor woman be- 
 longing to his township, but neglected to provide for her necessary 
 meat, etc., whereby she was reduced to a state of extreme weakness, 
 and afterwards, through want, etc., died, the defendant was convicted, 
 and sentenced to a year's imprisonment. R. v. Booth, Id. 47 (w). 
 And in a case where an overseer was indicted for neglecting, when re- 
 quired, to supply medical assistance to a pauper laboring nnder dan- 
 gerous illness, it was held that the offence was sufficiently charged and 
 proved, though the pauper was not in the parish workhouse, nor had 
 previously to his illness received or stood in need of parish relief. 
 R. V. Warren, Id. 48 (w). 
 
 By the 11 Geo. 1, c. 4, the chief officers of corporations, absenting 
 themselves on the charter day for the election of officers, shall be im- 
 prisoned for six months. Such offence, however, is not indictable 
 within the statute, unless their presence is necessary to constitute a 
 legal corporate assembly. R. v. Corry, 5 East, 372. This statute is 
 repealed as to boroughs within the Municipal Corporations Act, 1882, 
 See 45 & 46 Yict. c. 50, Sched. I, part ii. 
 
 Proof of extortion. One of the most serious offences committed 
 by persons in office is that of extortion, which is defined to be the
 
 OFFICES — OFFENCES RELATING TO. 1043 
 
 takino; of money by an officer by color of his office, either where none 
 at all is due, or not so much is due, or where it is not yet due.^ 
 Hawk. P. C. b. 1, c. 68, s. 1. So the refusal by a public officer to 
 perform the duties of his office, until his fees have been paid, is 
 extortion. 3 Inst. 149 ; R. v. Hescot, 1 Salk. 330; Hutt. 53. So it 
 is extortion for a miller or a ferryman to take more toll than is due 
 by custom. R. v. Burdctt, infra. So where the farmer of a market 
 erected such a number of stalls that the market people had not 
 space to sell their wares, it was held that the taking money from 
 them for the use of the stalls was extortion. R. v. Burdett, 1 Ld. 
 Raym. 148. 
 
 *The prosecutor must be prepared to prove, first, that the r^icoq^ 
 defendant fills the office in question. For this purpose it will ■- 
 be sufficient to show that he has acted as such officer ; and secondly, 
 the fact of the extortion. This must be done by showing what are 
 the usual fees of the office, and proving the extortion of more. 
 Several persons may be indicted jointly, if all are concerned ; for 
 in this offence there are no accessories, but all are principals. R. 
 V. Atkinson, 2 Ld. Raym. 1248; 1 Salk. 382; R. v. Loggen, 1 
 Str. 75. 
 
 The indictment must state the sum which the defendant received, 
 but the exact sum need not be proved, as where he is indicted for ex- 
 torting twenty shillings, it is sufficient to prove that he extorted one 
 shilling. R. v. Burdett, 1 Ld. Raym. 148 ; R. v. Gillham, 6 T. R. 267; 
 R. V. Higgins, 4 C. & P. 247, 19 E. C. L. 
 
 The offence of extortion is punishable as a misdemeanor at common 
 law, by fine and imprisonment, and by removal from office. Hawk. 
 P. C. b. 1, c. 68, s. 5. Penalties are likewise added by the statute of 
 Westm. 1, c. 26. 
 
 It is also an indictable offence to persuade another to extort money 
 from a person, whereby money actually was extorted from him. R. v. 
 Tracey, 3 Salk. 192. 
 
 Extortion by public ofB.cers in the East Indies. The 33 Geo. 3, 
 c. 52, s. 62, enacts, that the demanding or receiving any sum of money, 
 or other valuable thing, as a gift or present, or under color thereof, 
 whether it be for the use of the party receiving the same, or for or 
 pretended to be for the use of the East India Company, or of any other 
 
 ^ It is an indictable offence in public officers to exact and receive anything more for 
 the performance of their duty than the fees allowed by law. Gillmore v. Lewis, 12 
 O. 281. The fees must be wilfully and corruptly demanded. It is not extortion in 
 case of mistake or for extra trouble in conformity with usage. Commonwealth v. 
 Shed, 2 Mass. 227. There must be the receipt of money or some other thing of 
 value. Taking a promissory note is not enough. Commonwealth v. Corry, 2 Mass. 
 524. See People v. Whaley, 6 Cow. 661. It is not necessary in an indictment 
 against a constable for extortion, in corruptly and by color of his office collecting 
 on an execution more than was due, to show what sum he had extorted for his fees. 
 State V. Stotts, 5 Black. 460. An indictment for extortion against a justice of the 
 peace, must show with explicitness that the fees taken by the officer were greater than 
 those allowed by law. Merely to allege that they were so, is not sufficient. State v. 
 Maires, 33 N. J. L. 142. S.
 
 1044 OFFICES OFFENCES RELATING TO. 
 
 person whatsoever, by any Britisli snbjeet holding or exercising any 
 office or employment under his Majesty, or the company in the East 
 Indies, shall be deemed to be extortion and a misdemeanor at law, and 
 punished as such. The offender is also to forfeit to the king the pres- 
 ent received, or its full value ; but the court may order such present to 
 be restored to the party who gave it, or may order it or any part of it, 
 or of any fine which they shall set upon the offender, to be paid to the 
 prosecutor or informer. 
 
 In R. V. Douglas, 13 Q. B. 74, 66 E. C. L.; 17 L. J., M. C. 176, 
 Parke, B., in delivering the judgment of the Exchequer Chamber, 
 confirming that of the Queen's Bench, said, " the object of the legis- 
 lature was to prevent a person receiving any gift, or present, or sum 
 of money, in the East Indies (he being an officer of the government, 
 or of the East India Company), absolutely, whatever the reason of 
 that gift might be ;" and added, "it was thought by the legislature, 
 looking at the balance of convenience and inconvenience, that great 
 advantages were obtained by putting an end to gifts altogether, though 
 it might be at the expense of some occasional mischief to innocent 
 persons." 
 
 Proof on prosecutions for refusing to execute an office. A re- 
 fusal to execute an office to which a party is duly chosen is an indictable 
 offence, as that of constable ; R. v. Lone, 2 Str. 920 ; R. v. Genge, 
 Cowp. 13 ; or overseer ; R. v. Jones, 2 Str. 1145; 7 Mod. 410 ; 1 
 Russ. Cri. 308, 5th ed. 
 
 The prosecutor must prove the election or appointment of the de- 
 fendant, his liability to serve, notice to him of his appointment, and 
 his refusal. It must appear that the persons appointing him had 
 power so to do. Thus on an indictment for not serving the office of 
 *«'^'^1 ^constable on the appointment of a corporation, it must be stated 
 J and proved that the corporation had power by prescription to 
 make such an appointment, for they possess no such power of common 
 right. R. V. Bernard, 2 Salk. 502 ; 1 Ld. Raym. 94. The notice of 
 his appointment must then be proved, R. v. Harper, 5 Mod. 96, and 
 his refusal, or neglect to perform the duties of the office, from Avhich 
 a refusal may be presumed. 
 
 For the defence it may be shown that the defendant is not an in- 
 habitant resiant of the place for which he is chosen. R. v. Adlard, 4 
 B. & C. 772, 10 E. C. L.; Donne v. Martyr, 8 B. & C. 62, 15 E. C. 
 L. ; and see the other grounds of exception enumerated in Archb. Cr. 
 Pr. 669, 10th ed. It is not any defence that the defendant resides in 
 tlie jurisdiction of a leet within a hundred or place for which he is 
 elected ; R. v. Genge, Cowp. 13 ; or that no constable had ever before 
 been appointed for the place. 2 Keb. 557. 
 
 The punishment is fine or imprisonment, or both. See R. v. Bower, 
 1 B. & C. 587, 8 E. C. L. 
 
 As to the offence of bribing officers of justice, see 1 Russ. Cri. 309, 
 5th ed.
 
 PEEJURY. 1045 
 
 ♦PERJURY. [*836 
 
 PAGE 
 
 At common law • 836 
 
 Proof of the authority to administer an oath 836 
 
 of the occasion of administering the oath .... 843 
 
 of the taking of the oath 844 
 
 of the substance of the oatli 845 
 
 of the materiality of the matter sworn . , . . . 849 
 
 of introductory averments 852 
 
 of the falsity of the matter sworn 855 
 
 of the corrupt intention of the defendant . . . 856 
 
 Witnesses, number requisite . , 856 
 
 Statutes relating to perjury 861 
 
 Punishment 8G3 
 
 Postponing trials for perjury . 863 
 
 Subornation of perjury . . ...... 864 
 
 Proof of the incitement . 864 
 
 of the taking of the false oath .... 864 
 
 The proofs required to support an indictment for perjury at com- 
 mon law will be first considered, and the statutes creating the offence 
 of perjury in various cases will be subsequently stated. 
 
 By the 22 &, 23 Vict. c. 17, supra, p. 192, no indictment for perjury 
 is to be preferred without previous authority as there mentioned. See 
 also 30 & 31 Vict. c. 35, s. 1, in Appendix, 
 
 Perjury at common law. Perjury at common law is defined to be 
 a wilful false oath by one who, being lawfully required to depose to 
 the truth in any proceeding in a court of justice, swears absolutely in 
 a matter of some consequence to the point in question, whether he be 
 believed or not.^ Hawk. P. C b. 1, c. 69, s. 1. The proceedings, 
 however, are not confined to courts of justice. Vide post, p. 841 
 et scq. 
 
 The necessity for showing distinctly that the false oath was taken in 
 a judicial proceeding is not dispensed Avith bv the 23 Geo. 2, c. 11, s. 1 
 (now repealed). R. v. Overton, 4 Q. B. 83,* 45 E. C. L. 
 
 To support an indictment for perjury, the prosecutor must prove, 1 , 
 the authority to administer an oath ; 2, the occasion of administering 
 it ; 3, the taking of the oath ; 4, the substance of the oath ; 5, the 
 materiality of the matter sworn ; 6, the introductory averments ; 7, the 
 falsitv of the matter sworn ; and 8, the corrupt intention of the de- 
 fendant. 2 Stark. Ev. 621, 2nd ed. 
 
 Proof of the authority to administer an oath. Where the oath has 
 been administered by a master in chancery, surrogate, or commis- 
 
 ^ The definition of Hawkins has the words " in a course of justice," which is more 
 accurate than the phrase in the text, " in a court of ju tice." Commonwealth v. Pow- 
 ell, 2 Mete. (Ky.) 10; State v. Kennerly, 10 Rich. Law, 152; State v. Lament, 2 Wis. 
 437. Peijury cannot be committed in an official oath. State v. Dayton, 3 Zab. 
 49. S.
 
 1046 PERJURY. 
 
 sioner having a general authority for that jMirpose, it is not necessary 
 to prove his appointment ; it being sufficient to show that he has 
 acted in that character. See the cases cited, ante, pp. 6 and 17. But 
 *«'^71 *^^ ^"^'■'^ evidence is only presumptive, it may be rebutted, and 
 -I the defendant may show that there -was no appointment, or 
 that it was illegal. Thus, af\er proof that the oath had been made 
 before a person who acted as a surrogate, the defendant showed that 
 he had not been appointed according to the canon, and was acquitted. 
 R. V. Verelst, 3 Camp. 432. Where a party administering the oath 
 derives his authority from a special commission, directed to him for 
 that purpose, it is necessary to prove the authority, by the production 
 and proof of the commission wiiieh creates the special authority. 2 
 Stark. Ev. 622, 2nd ed. Thus, upon an indictment for perjury against 
 a bankrupt in passing his last examination. Lord Ellenl)orough ruled 
 that it was necessary to give strict proof of the bankruptcy, which 
 went to the authority of the commissioners to administer an oath, for 
 unless the defendant really was a bankrupt the examination was un- 
 authorized.i 11. v. Punshon, 3 Camp. 96 ; 3 B. & C. 354, 10 E. C, 
 L. See also R. v. Ewington, 2 Moo. C. C. 223. 
 
 Where a cause was referred by a judge's order, and it was directed 
 that the witnesses should be sworn before a judge, "or before a com- 
 missioner dull/ authorized/' and a witness was sworn before a com- 
 missioner for taking affidavits (empowei'ed by the repealed stat. 29 
 Car. 2, c. 5), it was held that he was not indictable for perjury, the 
 commissioner not being "duly authorized " by the statute to admin- 
 ister an oath for a vivd voce examination. R. v. Hanks, 3 C. & P. 
 419, 14 E. C. L. So a conviction for perjury in an affidavit used in 
 the Court of Admiralty, and sworn before a master extraordinary in 
 chancery, not having any authority to administer oaths in matters be- 
 fore the Court of Admiralty, was held to be bad. R. v. Stone, 1 
 Dears. C. C. R. 251 ; 23 L. J., M. C. 14. So in the case of an arbi- 
 trator under the 9& 10 Vict. c. 95, s. 77, not having authority to 
 administer an oath, false evidence given before him is not the 
 subject of perjury. R. v. Hallett, 2 Den. C. C. R. 237 ; 20 L. J., 
 M. C. 197. 
 
 Where perjiiry was charged to have been committed on that which 
 was in effect the affidavit on an interpleader rule ; and the indictment 
 set out the circumstances of the previous trial, the verdict, the judg- 
 ment, the writ of fieri facias, the levy, the notice by the prisoner to the 
 .sheriff not to sell, and the prisoner's affidavit that the goods were his 
 property, but omitted to state that any rule was obtained according to 
 the provisions of the interpleader Act : Coleridge, J., held that the 
 indictment was bad, as the affidavit did not appear to be made on a 
 
 ^ An indictment for perjury must show that the tribunal had jurisdiction. State v. 
 Pluramer, 50 Me. 217 ; Widen v. Lumley, 33 Ind. 486 ; State v. Marshall, 47 Mo. 378. 
 The person must be legally authorized to administer the oath. Morrell v. People, 
 32 111.499. S. _ 
 
 On a trial for perjury, evidence that the oath was administered in open court by 
 one who was acting as deputy clerk, is sufficient proof of his official character. 
 Keator v. People, 32 Mich. 484.
 
 PERJURY. 1047 
 
 judicial proceeding : sinee for anything that appeared it might 
 l)ave been a voluntary oath. R. v. Bishop, Carr. <fe M. 302, 41 
 E. C. U 
 
 In the case of a trial talcing place where the court has no juris- 
 diction, a witness cannot be indicted for ])erjury upon evidence 
 given thereat. R. v. Cohen, 1 Stark, N. P. C. 511, 2 E. C. L.; 
 Buxton I'. Gouch, 3 Salk. 2(39. But a false oath taken before com- 
 missioners, whose commission is at the time in strictness determined 
 by the death of the king, is perjury, if taken before the commis- 
 sioners had notice of the demise. Hawk. P. C. b. 1, c. G9, s. 4 ; 3 
 Russ. Cri. 5, 5th ed. 
 
 By the 78 sect, of 5 & 6 Will. 4, c. 50, if any person rides or 
 drives furiously, and is convicted of any such offence before two jus- 
 tices, he shall forfeit a sum not exceeding five pounds, "in case such 
 driver shall not be the owner of such wagon; and in case the offender 
 be the owner of such wagon, then any sum not exceeding ten pounds; 
 and in either of the said cases, shall, in default of payment, be 
 *committed, etc," The penalty being thus confined exclusively r>(;oqo 
 to driving, it was held on an indictment for perjury committed ^ 
 on an information for furiously riding, that the defendant could not 
 be convicted as the justices had no jurisdiction. R. v. Bacon, 11 
 Cox, C. C. 540, per Kelly, C. B. It is submitted that the justices 
 liad jurisdiction to hear the charge even if the learned judge's 
 view of the statute was correct as to their power to inflict a pen- 
 alty. 
 
 Perjury was committed before the magistrates upon the second ap- 
 plication for a bastardy order, a former ap])lication having been dis- 
 missed on the merits ; but it was held, that the magistrates had juris- 
 diction, and the conviction was good. R. v. Cooke, 2 Den. C. C. R. 
 462; 21 L. J., M. C. 136. 
 
 A summons was granted by a justice under the 7 & 8 Vict. c. 101, 
 and the 8 & 9 Vict. c. 10, on the application of the mother of a bas- 
 tard child against the defendant, as the putative father, more than 
 twelve months after the birth, in which summons it was alleged that 
 he had within the twelve months paid money for the maintenance of 
 the child ; but instead of alleging that the mother had giveii proof 
 that such money had been jiaid, in the form given by the statute, the 
 summons alleged that the mother stated that it had been paid. The 
 defendant appeared in answer to the summons, and took no objection, 
 either to the form of the summons, or to the proceedings on which it 
 was founded, but denied the paternity, and swore that he had never 
 paid any money for maintenance. Perjury was assigned on the latter 
 statement, and was fully proved at the trial ; but it yvas also proved 
 that the statement by the mother that- maintenance had been paid, 
 upon which the summons was issued, was not made on oath. It was 
 held {dissentlenfe Martin, B.), that the proceedings against the father 
 before the magistrate were civil and not criminal ; and that the defect 
 in the proceedings was an irregularity wdiich was capable of being 
 and had been waived by the defendant ; consequently, that the
 
 1048 PERJURY. 
 
 jurisdiction of tlie magistrates was well founded, and the defend- 
 ant rightly convicted of perjury. R. v. Berry, Bell, C. C. 4G ; 28 
 L. J., M. C. 70. 
 
 So where a woman upon oath swore to the father of her child, but 
 no deposition in writing under the 7 & 8 Vict. c. 101, s. 2 (now 
 repealed) was taken, a summons was issued and the defendant ap- 
 peared ; and it was held that by so appearing, the defendant had 
 waived the irregularity. R. v. Fletcher, L. R. 1 C. C. R. 320 ; 40 
 L. J., M. C. 1 23. 
 
 A. was indicted for perjury committed before the justices in petty 
 sessions on the hearing of a summons in bastardy under the 7 & 8 
 Vict. c. 101, s. 2 (now repealed). No evidence had been given before 
 the summoning justices that the defendant had ]5aid any money for 
 the maintenance of the child within twelve months next after its birth, 
 and this had not in fact been done, but no objection was taken by the 
 defendant before the magistrate on that account, though the summons 
 was in the form given by the schedule to the 8 & 9 Vict. c. 
 10, alleging such payment of maintenance. Held, that the justices 
 in petty sessions had jurisdiction to hear the complaint, as the de- 
 fendant had waived the objection, which was one relating to matter 
 of process only, and not of the essence of the jurisdiction ; and that 
 the conviction was therefore good. li. v. Simmons, Bell, C. C 168 ; 
 28 L. J., M. C. 183. 
 
 And where perjury was alleged upon the hearing of an affiliation 
 *ft-iQl *case, and the information laid by the mother was duly proved, 
 -I the putative father having appeared and evidence having been 
 given on both sides, it was held, that he having so appeared, and not 
 having raised any objection to the summons, it was not necessary to 
 give evidence of its existence at the trial for perjury. R. v. Smith, 
 L. R., 1 C. C. R. 110 ; 37 L. J., M. C. 6, and see post, p. 840. 
 
 An affidavit of debt, made under 1 & 2 Vict. c. 101, s. 8, and sworn 
 before a registrar of the court of bankruptcy, is sworn before a com- 
 petent authority, and perjury may be assigned upon it. R. v. Dunn, 
 16 L. J., Q. B. 382. 
 
 So perjury may be assigned on an inquest held before a deputy cor- 
 oner, under 6 & 7 Vict. c. 83, s. 2, though objection be taken that 
 there is no lawful or reasonable cause for the absence of the coroner. 
 R. V. Johnson, L. R. 2 C. C. 15 ; 42 L. J., M. C. 41. 
 
 Perjury was alleged to have been committed on the hearing of an 
 information under the Beerhouse and Licensing Act, and it was held 
 that the beerhouse-keeper's licence mjist be produced, otherwise there 
 was no proof that he was duly licensed so as to give the justices jur- 
 isdiction. R. V. Lewis, 12 Cox, C. C. 163. 
 
 No oath 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 ; or before those "who are authorized 
 to administer some oaths, but not that which happens to be taken 
 before them, or even before those who take upon them to administer 
 justice by virtue of an authority seeming colorable, but in truth
 
 PERJURY. 1049 
 
 void, can never amount to perjury in the eye of the law, for they are 
 of no manner of force/ Hawk. P, C. b. 1, c. 99, s. 4 ; 3 lluss. Cri. 
 5, 5th ctl. 
 
 The antliority by which the party is empowered to administer tlie 
 oath must, if specially described, be proved as laid. Therefore, 
 where the indictment stated the oath to have been administered at 
 the assizes, before justices assi^necZ <o take the said assizes, before A. 
 B., one of the said justices, the said justices having then and there 
 power, etc., and in fact the judge, when the oath was administered, 
 was sitting under the commission of oyer and terminer and gaol deliv- 
 ery, this was held to be a fatal variance. R. v. Lincoln, Kuss. & Ry. 
 421. But an indictment for perjury at the assizes may allege the 
 oath to have been taken before one of the judges in the commission, 
 though the names of both appear. E,. v. Alford, 1 Leach, 150. See 
 R. V. Coppard, post, p. 853. 
 
 Where the justices were described as for the county when in fact 
 they were for the borough, it was held that the judge had power to 
 amend. R. v. Western, L. R. 1 C, C. R. 122. 
 
 The 14 & 15 Vict. c. 100, s. 20, enacts, ''that in every indictment 
 for perjury, etc., it shall be sufficient to set forth the substance of the 
 offence charged upon the defendant, and by what court or before 
 whom the oath, affirmation, declaration, affidavit, deposition, bill, 
 answer, notice, certificate, or other writing was taken, made, signed 
 or, subscribed without setting forth the bill, answer, information, 
 indictment, declaration, or any part of any proceeding, either in law 
 or in equity, and without setting forth the commission or authority 
 of the court or person before whom such offence was committed."^ 
 
 In an indictment for perjury, intended to be charged as having 
 been committed in the course of the trial of an appeal before the com- 
 missioners of assessed taxes, it is necessary to set out Avith particularity 
 *all that is requisite to give the commissioners jurisdiction to r>i:q4f\ 
 
 try the appeal. R. v. , 1 Cox, C C. 50. So, on an indict- '- 
 
 ment for perjury alleged to have been committed on the hearing of an 
 information under the Beer Act, 11 Geo. 4 and 1 Will. 4, c. 64, s. 15 
 (now repealed), before two justices at petty sessions. Park and Patte- 
 son, JJ., held that it was necessary to aver that the justices were acting 
 in and for the division or place in which the house was situate ; but 
 that it was not necessary to allege they were acting in petty session, as 
 every meeting of two justices in one place for business is itself a petty 
 session. R. v. Rawlins, 8 C. & P. 439, 34 E. C. L. An indictment 
 for perjury committed before a magistrate, stated that the defendant 
 
 ] State V. Hayward, 1 N. & McC. 547 ; United States v. Bailey, 9 Pet. 238 ; ShafTer ». 
 Kintzer, 1 Binn. 542 ; see Chapman v. Gillett, 2 Conn. 40. An oath administered by 
 the clerk of a court, not required by law or by order of court, is extra-judicial, and 
 if false lavs no foundation for an indictment for perjury. United States ;■. Babcock, 
 4McL. 113. S. 
 
 Perjury will not lie for a false oath uttered in a void judicial proceeding. Collins 
 V. State, 78 Ala. 433. ^ 
 
 * The falsity of the facts sworn to by the accused must be averred in the indictment, 
 or it is fatally defective. People v, Clements, 42 Ilun (N. Y.) 353.
 
 1050 PERJUKY. 
 
 went before a magistrate and was sworn, and that being so sworn he 
 did falsely, etc., " say, depose, swear, cliarge, and give the said justice 
 to be informed," that he saw, etc.; it was held by the judges that this 
 suffieicntlv showed that the oatli was taken in a judicial proceeding. 
 R. V. Gardiner, 8 C. & P. 737, 34 E. C. L. ; 2 Moo. C. C. 95. In a 
 previous case where the indictment merely stated that the defendant, 
 intending to subject \V. M. to the penalties of felony, went before 
 two magistrates, and " did depose and swear," etc. (setting out a depo- 
 sition, which stated that W. B. had put his hand into the defendant's 
 pocket, and taken out a 5/. note), and assigning perjury upon it, Cole- 
 ridge, J., held that the indictment was bad, as it did not show that 
 any charge of felony had been previously made, or that the de- 
 fendants tiien made any charge of felony, or that any judicial pro- 
 ceeding was pending before the magistrates. R. v. Pearson, 8 C. & P. 
 119, 34 E. C. L. 
 
 On an indictment for perjury before justices of the peace, there 
 must be formal proof of the commencement of the proceedings by 
 production of the summons or charge book. R. v. Hurrell, 3 F. Sz F. 
 271. Where, however, the indictment alleged that the defendant had 
 been duly summoned, but did not aver that the summons was pre- 
 ceded by any information, it was held good. R. v. Shaw, L. & C. 
 579; 34 L. J., M. C. 169. But where a warrant was issued, illegally, 
 because without a written information or oath as required by Jervis's 
 Act, 11 & 12 Vict. c. 43, s. 8, under which S. was arrested and 
 brought before justices, and was, without objection, tried and convicted 
 " of assaulting and obstructing a police-constable in the discharge of 
 his duty," it was held that the police-constable could be convicted of 
 perjury committed by him on the trial of S., on the ground that the 
 justices had jurisdiction to hear the charge against S., although the 
 warrant u])on which he was brought before them was illegal, for the 
 offence charged was one which the magistrates had authority to try, 
 and the defendant being present in court, the illegality of the process 
 by which he was brought was immaterial. R. v. Hughes, 4 Q. B. D, 
 614; 48 L. J., M. C. 151. 
 
 An indictment for perjury alleging that the defendant had filed a 
 petition for protection from process in the county court, and charging 
 perjury against him in the proceedings consequent upon the petition, 
 was held sufficiently to show the jurisdiction of the county court, with- 
 out alleging that the defendant had resided for six months within the 
 jurisdiction. R. v. Walker, 27 L. J., Q. B. 137. 
 
 An information laid under the Game Act, the 1 & 2 Will. 4, c. 32, 
 s. 30, and in pursuance of the same statute, s. 41, and the 6 & 7 
 Will. 4, c. 65, s. 9, if laid by a person not deposing on oath to the 
 matter of charge, must distinctly show that the charge was deposed 
 *«41 1 *^° ^^y ■'^o™^ other credible witness on oath, as the latter statute 
 -• requires that the charge shall be deposed to upon oath. If the 
 information leaves this doubtful, all further proceedings u])on it are 
 without jurisdiction ; and if the defendant is summoned, and appears 
 to answer the charge, a witness giving false evidence on the hearing
 
 PERJURY. 1051 
 
 cannot be convicted of perjurv. R. v. Scotton, 5 Q. B. 493, 48 
 E. C. L. ; see also R. v. Goodfellow, Car. & M. 569, 41 E. C. L. 
 But unless a statute requires it, an information need not be upon oath, 
 and therefore under the 24tli section of the IMalicious Trespass Act, 
 7 & 8 Geo. 4, c. 30 (now repealed), an information upon oath is not 
 requisite in order to ^ive the magistrates jurisdiction. R. v. INIillard, 
 1 Dears. C. C. R. 106; 22 L. J., ]\I. C. 108 ; and see R. v. Hughes, 
 supi-a. If the information is in writing, it must be produced, or evi- 
 dence given of its destruction before secondary evidence of its con- 
 tents can be admitted. R. v. Dillon, 14 Cox, C. C, 4. It is not 
 necessary in the indictment to show the nature of the authority of the 
 party administering the oath. R. v, Callanan, 6 B. & C. 102, 13 
 E. C. L. See also R. v. Berry, supra, p. 838. 
 
 Where a feme sole obtained judgment and then married, and after- 
 wards took out a judgment summons in her name when sole, the 
 judge amended the summons, striking out the name of the plaintiff 
 on the record, and substituting her husband's name and her name as 
 wife. The defendant swore falsely upon the hearing of the sunmions. 
 It was held, that the amendment being without jurisdiction, and there 
 being no cause in the altered name, a conviction for perjury could not 
 be supported. R. v. Pearce, 9 Cox, C. C. 258; 3 B. & S. 531, 113 
 E. C. L. The offence of perjury consists in taking a false oath in a judi- 
 cial proceeding, and whether the oath is taken before a court of common 
 law or before a court acting under a statute it is equally an oath taken 
 in a judicial proceeding and punishable with penal servitude. R. v. 
 Castro, L. R., 9 Q. B. 350; 43 L. J., Q. B. 105 ; 6 Ap. Ca. 229 ; 50 
 L. J. (H. L.) 497. It is not merely before courts of justice, even at 
 common law, that persons taking false oaths are punishable for per- 
 jury. Any false oath is punishable as perjury Avhich tends to mis- 
 lead a court in any of its proceedings relating to a matter judicially 
 before it, though it in no way affects the principal judgment which is 
 to be given in the cause ; as an oath made by a person offering him- 
 self as bail. And not only such oaths as are taken on judicial proceed- 
 ings, but also such as any way tend to abuse the administration of 
 justice are properly perjuries, as an oath before a justice to compel 
 another to find sureties of the peace ; before commissioners appointed 
 by the king to inquire into the forfeiture of his tenants' estates, or 
 commissioners appointed by the king to inquire into defective titles. 
 Hawk. P. C. b. 1, c. 69, s. 3. A false oath in any court, whether of 
 record or not, is indictable for perjury. 5 Mod. 348. And perjury 
 may be assigned upon the oath against simony, taken by clergymen at 
 the time of their institution. R. v. Lewis, 1 Str. 70. A person may 
 be indicted for perjury who gives false evidence before a grand jury 
 when examined as a witness before them upon a bill of indictment. 
 R. V. Hughes, 1 C. & K. 519, 47 E. C. L. 
 
 Where the offence was stated to have been committed upon the 
 trial of "a certain indictment for misdemeanor" at the quarter ses- 
 sions for the county of Salop, but did not state what the misdemeanor 
 was, nor that the justices had jurisdiction, it ^^•as held that although
 
 1052 PERJURY. 
 
 it did not appear what tlie misdemeanor was upon the trial of 
 which the ])erjury was committed, yet that the substance of the 
 *«401 *offcncc upon the trial for perjury sufficiently appeared, and 
 -' further that the indictment need not contain an averment of 
 competent authority to administer the oath, though it seems such 
 authority must be proved at the trial. R. v. Dunning, L. R,. 1 C. C. 
 R. 290. 
 
 A man may be indicted for perjury in an oath taken by him in his 
 o^^^l cause, as in an answer in chancery, or to interrogatories concern- 
 ing a contempt, or in an affidavit, etc., as well as by an oath taken by 
 him as a witness in the cause of another person. Hawk. P. C. b. 1,, 
 c. 69, s. 5. 
 
 Perjury cannot be assigned upon a false verdict, for jurors are not 
 sworn to depose the truth, but only to judge truly of the depositions 
 of others. Id. 
 
 Where the prisoner was indicted for taking a false oath before a 
 surrogate to procure a marriage licence, being convicted, the judges, 
 on a case reserved, were of opinion that perjury could not be charged 
 upon an oath taken before a surrogate* They were also of opinion 
 tliat as the indictment in this case did not charge that the defendant 
 took the oath to procure a licence, or that he did procure one, no pun- 
 ishment could be inflicted. R. v. Foster, Russ. & Ry. 459 ; and see 
 R. V. Alexander, 1 Leach, 63 ; and see also 1 Vent. 370, and the ob- 
 servations, 2 Dcac. Dig. C. L. 1001. But a surrogate has power to 
 administer an oath, and a false oath taken before him for the purpose 
 of obtaining a marriage licence is a misdemeanor. R. v. Chapman, 
 1 Den. C. C. R. 432 ; is L. J., M. C. 152. And so is a false affidavit 
 under the Bill of Sales Act, 1854. R. v. Hodgkiss, L. R., 1 C. C. R, 
 '212, 39 L. J., M. C. 14. 
 
 The object with which the oath was taken need not be carried into 
 'cffisct, for the perjury is complete at the moment when the oath was 
 taken, whatever be the subsequent proceedings. Thus Avhere the de- 
 fendant was indicted for perjury in an affidavit which could not, from 
 certain defects in the jurat, be received in the court for Avhich it 
 was sworn ; Littledale, J., was of opinion that nevertheless perjury 
 might be assigned upon it. R. v. Hailey, Ry. & Moo. N. P. C. 94 ; 
 1 0. & P. 258, 12 E. C. L. So it was ruled by Tenterden, C. J., that 
 a party filing a bill for an injunction, and making an affidavit of mat- 
 ters material to it, is indictable for perjury committed in that affida- 
 vit, though no motion is ever made for an injunction. R. v. White, 
 Moo. & M. 271. 
 
 Perjury cannot be committed in evidence given before commission- 
 ers of bankruptcy, where there was no good petitioning creditor's 
 debt to su]iport the fiat. R. v. Ewington, 2 ^Moo. C. C. 223; s. c. 
 Car. & M. 319, 41 E. C. L. 
 
 The enforced answers of a bankrupt under examination of a bank- 
 ruptcy commissioner to questions relating to matters specified in sect. 
 117 of the Bankrupt Consolidation Act, 1849 (now repealed), may 
 be given in evidence by the prosecution on any criminal proceeding
 
 PEEJUEY. 1053 
 
 against the bankrupt. R. v. Scott, 25 L. J., M. C. 128. And the 
 same has been held nnder the Bankruptcy Act, 18C9. See Bank- 
 ruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 17, and ante, pp. 52, 151, 
 161. 
 
 The Naval Discipline Act, 23 & 24 Vict. c. 123 (now repealed), 
 provided, that if any person should wilfully and corruptly give false 
 evidence upon oath or affirmation, before any court martial held 
 under that Act, he should be liable to the penalties of wilful and 
 corrupt perjury. It has been doubted, whether an indictment framed 
 *upon this Act is an indictment for perjury within the mean- rnco^o 
 ing of the Vexatious Indictments Act, 22 & 23 Vict. c. 17, s. L 
 1. R. V. Heane, 4 B. & S. 947, 116 E. C. L.; 33 L. J., M. C. 115. 
 But see the new statute, infra, p. 863. 
 
 False swearing before a local marine board, under the 17 & 18 
 Vict. c. 104, is perjury, for the board is a tribunal invested with judi- 
 cial powers, and enabled to inquire on oath and pass a sentence alTect- 
 ing the status of the person accused before it. R. v. Tomlinson, L. R., 
 
 1 C. C. R. 49. 
 
 By 4 Geo. 4, c. 34, s. 2 (now repealed), all complaints which shall 
 arise between masters or mistresses and their apprentices, as to wages, 
 etc., may be heard and determined before a justice of the peace. After 
 an apprenticeship was over, the former apprentice summoned his late 
 master under this Act for wages alleged to be unpaid, and on the hear- 
 ing swore falsely. It Avas held, that this was perjury, inasmuch as the 
 magistrate had, at all events, jurisdiction to determine whether the re- 
 lation of apprenticeship continued or not. R. v. Saunders, L. R., 1 
 C. C. R. 75 ; 36 L. J., M. C. 87. 
 
 Proof of the occasion of administering the oath. The occasion 
 of administering the oath must be proved as stated. Thus, if the 
 perjury were committed on the trial of a cause of nisi prius, the 
 record must be produced in order to show that such a trial was had : 
 
 2 Stark. Ev. 622, 2ud ed. ; and for this purpose the nisi prius record 
 was held sufficient.^ R. v. lies. Cases temp. Hardw. 118, see j). 170. 
 Upon the trial of an indictment for perjury alleged to have been com- 
 mitted on the hearing of an action in the Hight Court of Justice, the 
 production by the officer of the Court of the copy of the writ filed 
 under Order V., rule 1, now 34 (although not signed according to the 
 rule), and the copy of the pleadings filed under Order XLI,, rule 1, 
 now 569, is sufficient evidence that the action existed. Reg. v. Scott, 
 2 Q. B. D. 415; 46 L. J., M. C. 259. The occasion, and the parties 
 before whom it came on to be tried, must be correctly stated. Where 
 it was averred that a cause came on to be tried before Lloyd, Lord 
 Kenyon, etc., William Jones being associated, etc., and it appeared that 
 
 ^ Kesp. V. Goss et al., 2 Yeates, 479. At common law when the oath was in a court, 
 the pleadings, proceedings and evidence must be set forth. State v. Stillman, 7 Cold. 
 341. S. 
 
 On an indictment for perjury in making an affidavit, the State and county given 
 therein as the venue, are prima facie evidence that the oath was administered in the 
 county named in the venue. Van Dusen v. People, 78 111. 645.
 
 1054 PERJURY. 
 
 Roger Kenyon was associated, this was ruled a fatal varlanco. R. v. 
 Eden, 1 Esp. 97. See also R. v. Eellowes, 1 C. & K. 115, 47 E. C. L. 
 But where an indictment alleged that the trial of an issue took place be- 
 fore E., sheriff of D., by virtue of a writ directed to the said sheriff; 
 and the ^vritof trial put in evidence was directed to the sheriif, and the 
 return was of a trial before him, but in fact the trial took place before 
 a deputy, not the under-sheriff, it was held no variance. 11. v. Dunn, 
 2 Moo. C. C. 297 ; 1 C. & K. 730, 47 E. C. L. 
 
 Perjury could not be assigned upon an affidavit sworn in the insol- 
 vent debtors' court by an insolvent respecting the state of his prop- 
 erty and his expenditure, for the purpose of obtaining an extended 
 time to petition under the 10th section of iha 7 Geo. 4, c. 57 (now 
 repealed), without proving that the court by its practice required such 
 an affidavit. And such proof is not given by an officer of the court 
 producing printed rules, purporting to be rules of the court, which 
 he has obtained from the clerk of the rules, and is in the habit of de- 
 livering out as rules of the court, but which are not otherwise shown 
 to be the rules of the court, the officer professing to have no knowledge 
 of the practice, except from such printed rules. R. v. Koops, 6 Ad. 
 *«4.41 ^ -^* ^^^y 33 E. C. L. Tenterden, C. J., held that an *indict- 
 -J ment for perjury would not lie under the 71st section of 7 
 Geo. 4, c. 57 (now repealed), against an insolvent debtor for omissions 
 of property in his schedule, such offence being made liable to punish- 
 ment under the 70th section as a substantive misdemeanor. R. v. 
 Mudie, 1 Moo. & R. 128.^ 
 
 Proof of the taking of the oath. It is sufficient in the indictment to 
 state that the defendant duly took the oath.^ R. v. M'Arthur, Peake, 
 N. P. C. 1 55. But where it was averred that he was sicorn on the 
 Gosioeh, and it appeared that he had been sworn according to the 
 custom of his own country without kissing the book, it was held 
 a fatal variance, though the averment was afterwards proved by 
 its appearing that he was previously sworn in the ordinary man- 
 ner. Id. . 
 
 The mode of proving that the defendant was sworn, in an indict- 
 ment for perjury in an answer in chancery, is by producing the origi- 
 nal answer signed by him, and proving his handwriting, and that of 
 
 ^ Eesp. r. Newell, 3 Y. 414. In a trial before a justice of the peace, if the plaintiff 
 offer himself as a witness, is sworn and testifies falsely, perjury may be assigned on 
 the oath thus taken. Montgomery v. State, 10 O. 220. It is perjury to swear falsely 
 in an affidavit for continuance that a witness is out of the vState. State v. Shupe, 16 
 la. 36. So in a naturalization affidavit made out of court. State v. Whittemore, 50 
 N. II. 245. A prosecution for perjury alleged to have been committed in an aflidavit 
 of defence in a civil action, cannot be instituted until after final judgment therein. 
 Commonwealth v. Dickinson, 3 Clark, 265. S. 
 
 '^ Eesp. V. Newell, 3 Y. 414. An indictment for perjury, alleging that the respon- 
 dent was sworn and took her corporal oath to speak the trutli, the whole truth, etc., 
 was holden to be sustained by evidence of the rath taken with uplifted hand. State 
 V. Norris, 9 N. H. 96. In perjury, it is unnecessary to set out the particular mode in 
 which the defendant was sworn. Tuttle i'. People, 36 N. Y. 431 ; Beems v. People, 59 
 Barb. 531. S.
 
 PERJURY. 1055 
 
 the master in cliancery to the jurat, together with proof of the 
 identity of the defendant. R. v. Morris, 1 Leach, 50 ; 2 Burr. 
 1189 ; R. V. Benson, 2 Campb. 507. Tiie making of an affidavit 
 is proved in the same manner by production and proof of tlie hand- 
 writing. The whole affidavit must be produced. R. v. Hudson, 1 F. 
 & F. 56. 
 
 The form of the oath as stated in the indictment was that the 
 prisoner should speak " the truth, the whole truth, and nothing but 
 the truth," and it was proved to have been administered in the 
 form that the prisoner should " true answer make." Watson, B., 
 held, that this was not a material variance. R. v. Southwood, 1 F. & 
 F. 35G. 
 
 Where the affidavit upon which the perjury was assigned was signed 
 only witli the mark of the defendant, and the jurat did not state that 
 the affidavit was read over to the party, Littledale, J., said, " As the 
 defendant is illiterate, it must be shown that she understood the affi- 
 davit. Where the affidavit is made by a person who can write, the 
 supposition is that such person is acquainted with its contents, but in 
 the case of a marksman it is not so. If in such a case a master by 
 the jurat authenticates the fact of its having been read over, Ave give 
 him credit, but if not, he ought to be called upon to prove it. I 
 should have difficulty in allowing the parol evidence of any other 
 person." R. v. Hailey, 1 C. &P. 258, 12 E. C.L.; Ry.& Moo. 94. 
 
 It is incumbent upon the prosecutor to give precise and positive 
 proof that the defendant was the person who took the oath. R. v. 
 Brady, 1 Leach, 327 ; but this rule must not be taken to exclude cir- 
 cumstantial evidence. R. v. Price, 6 East, 323 ; 2 Stark. Ev. 624, 
 2nd ed. 
 
 It must appear that the oath was taken in the county where the 
 venue is laid ; and the recital in the jurat of the place where the 
 oath is administered, is sufficient evidence that it was administered at 
 the place named. R. v. Spencer, Ry. & Moo. N. P. C. 98. But 
 though the jurat state the oath to be taken in one county, the prose- 
 cutor may show that it was in fact taken in another. R. v. Emden, 9 
 East, 437. 
 
 The making of a false affirmation by a Quaker or Moravian must 
 be proved in the same manner as the taking of a false oath. The 
 22 Geo. 2, c. 46, s. 36 (now repealed), 9 Geo. 4, c. 32 (now repealed), 
 *3 & 4 Will. 4, c. 49, 3 & 4 Will. 4, c. 82, and 1 & 2 Vict. c. ^g^^ 
 77, which admit the evidence of Quakers, Moravians, and Sep- *- 
 aratists, in all cases whatsoever, criminal or civil, contain clauses sub- 
 jecting such persons making false affirmations [subject] to the penal- 
 ties of perjury ; and there are various other statutes to a similar 
 effect. 
 
 The 17 & 18 Vict. c. 125, s. 20, enacts, that "if any person 
 called as a witness or required or desiring to make an affidavit or 
 deposition shall refuse or be unwilling from alleged conscientious 
 motives to be sworn, it shall be lawful for the court, or judge or other 
 presiding officer or person qualified to take affidavits or depositions,
 
 1056 PERJURY. 
 
 upon being satisfied of the sincerity of such objections, to permit 
 sucli person instead of being sworn to make his or her solemn affir- 
 mation," etc. 
 
 And by sect. 21, " if any person making such solemn affirmation 
 or declaration, shall wilfully, falsely, and corruptly affirm or declare 
 any matter or thing which, if the same had been sworn in the usual 
 form, would have amounted to wilful and corrupt perjury, every such 
 person so offending shall incur the same penalties as by the laws and 
 statutes of this kingdom are or may be enacted or provided against 
 persons convicted of wilful and corrupt pcrjiuy." This is extended 
 to criminal proceedings by 24 & 25 Vict. c. (36, s. 1, ante, p. 123. 
 
 Although the taking of a false oath required by statute is a misde- 
 meanor, it is not perjury, unless made so by the statute. R. v. Mudie, 
 ante, p, 844, and R. v. Chapman, ante, p. 842 ; and see R. v. De Beau- 
 voir, 7 C. & P. 1 7, 32 E. C. L. ; and see also R. v. Harris, Id. 253 ; 
 and R. v. Dodsworth, 8 C. & P. 218, 34 E.,C. L.; as to giving false 
 answers at an election. 
 
 By the 5 & 6 Will. 4, c. 02, abolishing unnecessary oaths (see ante, 
 p. 490), and substituting declarations in lieu thereof (but which, by 
 s. 9, does not extend to proceedings in courts of justice, or before jus- 
 tices of the peace), persons making false declarations shall (s. 21) be 
 guilty of a misdemeanor. 
 
 Proof of the substance of the oath. In proving the substance of 
 the oath, or the matter sworn to by the defendant, it was long a ques- 
 tion how far it was incumbent on the prosecutor to prove the whole of 
 the defendant's statement relative to the same subject-matter, as where 
 he has been both examined and cross-examined ; or whether it was 
 sufficient for him merely to prove so much of the substance of the 
 oath as was set out on the record, leaving it to the defendant to prove 
 any other part of the evidence given by him, which qualified or ex- 
 plained the part set out. Thus Lord Kenyon ruled, that the whole 
 of the defendant's evidence on the former trial should be proved, for 
 if in one part of his evidence he corrected any mistake he had made 
 in another part, it would not be perjurv. R. v. Jones, Peake, N. P. 
 C. 38; see also R. v. Dowlin, Id. 227"; 2 Chittv, C. L. 312, 2nd 
 ed.; 5 T. R. 311 ; Anon. cor. Lord Gifford, cited Ry. & Moo. N. 
 P. C. 300, but the better opinion seems to the contrary, see infra, 
 p. 848. 
 
 It was formerly thought that an oath did not amount to perjury 
 unless sworn in absolute and direct terms, and that if a man swore 
 according as he thought, remembered, or believed only, he could not be 
 convicted of perjury. 3 Inst. 166. But the modern doctrine is 
 otherwise. It is said by Lord Mansfield to be certainly true, that a 
 man may be indicted for perjury in swearing that he believes a fact to 
 *8461 *^^® *''"^' which he knows to be false; R. v. Pedley, 1 Leach, 
 -' 327. The difficulty, if any, is in the proof of the assignment.^ 
 R. V. Schlesinger, 10 Q. B. 670 ; 17 L. J., M. C. 29. 
 * Commonwealth v, Cornish, 6 Binn. 249. S.
 
 PERJURY. 1057 
 
 So perjury may be committed by swearing to a statement which in 
 one sense is true, but which, in the sense intended to be impressed by 
 the party swearing, is false, as in a case mentioned by Lord Mansfield. 
 The witness swore that he left, the party, whose health was in question, 
 in such a way that were he to go on as he then was, he would not live 
 two hours. It afterwards turned out that the man was very well, but 
 had got a bottle of gin to his mouth, and true it was, in a sense of 
 equivocation, that had he continued to pour the liquor down, he would 
 in much less time than two hours have been a dead man. LofFt's 
 Gilb. Ev. 662. 
 
 No case appears to hav^e occurred in our law of an indictment for 
 perjury for mere matter of opinion. The following observations on 
 this subject are from the pages of an eminent writer on the criminal 
 law of Scotland. 
 
 If the matter sworn to be one of opinion only, as a medical opinion, 
 it cannot in the general case be made the foundation of a prosecution 
 for perjury. But though a medical or scientific opinion cannot in 
 general be challenged as perjury, because the uncertainty and division 
 of opinion in the medical profession is proverbial ; yet, if it assert a 
 fact or draw an inference evidently false, as for example, if a medical 
 attendant swear that a person is unfit to travel who is in perfect 
 health, or an architect shall declare a tenement to be ruined, which 
 is in good condition, certainly the gross falsehood of such an assertion 
 shall in neither case be protected by the plea that it related to a 
 matter of professional investigation. Alison, Prin. Cr. Law of Scotl. 
 468. 
 
 In R. V. Stolady, 1 F. & F. 518, Pollock, C. B., said that it was 
 not a sufficiently precise allegation whereon to found an indictment for 
 perjury, that the prisoner swore that a certain event did not happen 
 between two fixed dates ; his attention not having been called to the 
 particular day on which the transaction did take place. 
 
 A doubt may arise, whether a witness can be convicted of perjury, 
 in answer to a question which he could not legally be. called upon to 
 answer, but which is material to the point in issue. In Scotland 
 it has been held, that a conviction for perjury in such case cannot 
 be maintained. Speaking of the general rule, that, where the matter 
 is pertinent to the issue, the party taking a false oath will be guilty 
 of perjury, Mr. Alison says, " There is one exception, however, to 
 this rule, where the matter on which the perjury was alleged 
 to have been committed was such, as it was not competent to 
 examine the witness upon, however material to the issue ; for 
 law cannot lend the terrors of its punishment to protect a party 
 in pursuing an incompetent and illegal train of investigation. On 
 this ground it was, that the decision went, in the case of Patrick 
 M'Curly, 4th August, 1777, who had been precognosced with a view 
 to a criminal trial, and, afterwards, as often happens, had given a 
 different account of the matter on the trial itself. Towards the close 
 of his deposition, he was asked whether he had ever given a difierent 
 account of the matter, and he swore he had not. Upon this last 
 67
 
 1058 PERJURY. 
 
 falsehood he was indicted for perjury ; and after a debate on tlie 
 relevancy the prosecntor abandoned the cliarge ; nor, in truth, does 
 it seem possible to maintain an indictment for perjury in such a 
 *R4.71 *^'^''^^5 where the question was clearly incompetent, and the wit- 
 -• ness would have been entitled to decline answering; it." Prin, 
 Crim. Law. Scot. 470, but see R. v. Gibbon, post, p. 851. 
 
 Where on an indictment for perjury upon the trial of an action, it 
 appeared that the evidence given on that trial by the defendant con- 
 tained all the matter charged as perjury, but other statements, not 
 varying the sense intervened between the matters set out, Abbott, C. 
 J., held the omission inuuaterial, since the effect of what was stated 
 was not varied. R. v. Solomon, Ry. & Moo. N. P. C. 252. So where 
 perjury was assigned upon several parts of an affidavit, it was held 
 that those parts might be set out in the indictment as if continuous, 
 although they were in fact separated by the introduction of other 
 matter. R. v. Callanan, 6 B. & C. 102, 13 E. C. L. It seems that 
 where the indictment sets forth the substance and effect of the matters 
 sworn, it must be proved, that in substance and eflect the defendant 
 swore the whole of what is thus set forth as his evidence, although the 
 count contains several distinct assignments of perjury. R. v. Leef, 2 
 Camp. 134 ; 4 B. & C. 852, 10 E. C. L. Where the indictment 
 charged that the defendant in substance and effect swore, etc., and it 
 appeared that the deposition was made by him and his wife jointly, he 
 following up the statement of the wife, it was held to be no variance. 
 R. V. Grendall, 2 C. &P. 563, 12 E. C. L. An indictment for per- 
 jury alleged to have been committed in an affidavit sworn before the 
 commissioner of the court of Chancery stated that a commission of 
 bankruptcy issued against the defendant, under which he was duly 
 declared a bankrupt. It then stated, that the defendant preferred his 
 petition to the Lord Chancellor, setting forth various matters, and 
 amongst others, the issuing of the commission, that the petitioner was 
 declared a bankrupt, and that his estate was seized under the com- 
 mission, and tliat, at the second meeting, one A. B. Avas appointed 
 assignee, and an assignment made to him, and that he possessed him- 
 self of the estate and effects of the petitioner. It then stated, that at 
 the several meetings before the commission, the petitioner declared 
 openly, and in the presence and hearing of the said assignee, to a cer- 
 tain effect. At the trial the petition was produced, and it appeared 
 that the allegation was, that at the several meetings before the com- 
 missioners the petitioner declared to that effect. It was held that this 
 was no variance, inasmuch as it was sufficient to set out in the indict- 
 ment the petition in substance and effect, and the word " commission " 
 was one of equivocal meaning, and used to denote either a trust or 
 authority exercised, or the persons by whom the trust or authority 
 was exercised, and that it sufficiently appeared, from the context of 
 the petition set forth in the indictment, that it was used in the latter 
 sense. R. v. Dudman, 4 B. <fe C. 850, 10 E. C. L. Where the 
 indictment professes to set out the substance and effect of the mat- 
 ter sworn to, and in the deposition a word is omitted, which is
 
 PERJURY. 1059 
 
 supplied in the setting fortli of the deposition In the indictment, this 
 is fatal variance ; the proper mode in such cases is, to set forth 
 the deposition as it really is, and to supply the sense by an 
 innuendo. II. v. Taylor, 1 Camp. 404. And where the indictment, 
 in setting out the substance and effect of the bill in equity upon the 
 answer to which the perjury was assigned, stated an agreement 
 between the prosecutor and the defendant respecting houses, and 
 upon the original bill being read, it appeared that the word Avas 
 house (in the singular number), Abbott, C. J., said, "The indictment 
 *professes to describe the substance and effect of this bill ; it r^o^io 
 does not, certainly, profess to set out the tenor, but this I think L 
 is a difference in substance, and consequently a fatal variance." R. v. 
 Spencer, Ry. & Moo. N. P. C. 98. 
 
 The omission of a letter, in setting out the affidavit on which per- 
 jury is assigned will not be material, if the sense is not altered 
 thereby, as under tood for understood. Although it be under an aver- 
 ment " to the tenor and effect following.'' R. v. Beech, 1 Leach, 133; 
 Cowp. 229. 
 
 In a late case, where the witness stated, that he could not undertake 
 to say that he had given the whole of the prisoner's testimony, but to 
 the best of his recollection he had given all that was material to the 
 inquiry, and relating to the transaction in question, Littledale, J., 
 thought that this evidence was prima facie sufficient, and that if there 
 was anything else material sworn by the prisoner on the former trial, he 
 might prove it on his part. No such evidence having been given, the 
 prisoner was convicted, and on a case reserved the judges held that 
 the proof was sufficient for the jury, and that the conviction was right. 
 R. u. Rowley, Ry. & Moo. N. P. C. 299; 1 Moody, C. C. 111.^ 
 Where it has once been proved, says Mr. Starkie, that particular facts 
 positively and deliberately sworn to, by the defendant, in any part of 
 his evidence, were falsely sworn to, it seems in principle to be incum- 
 bent on him to prove, if he can, that in other parts of his testimony 
 he explained or qualified that which he had sworn to. 2 Stark. Ev. 625, 
 2nd ed. 
 
 The defendant, although perjury be assigned on his answer, depo- 
 sition, or affidavit in writing, may prove that an explanation was after- 
 wards given, qualifying or limiting the first answer. 2 Stark. Ev. 
 627, 2nd ed.; 3 Russ. Cri. 83, 5th ed.; R. v. Car, Sid. 418. And if 
 it appear, on the evidence for the prosecution, that a part of the de- 
 fendant's statement, qualifying the rest, is omitted, the judge will not 
 suffer the case to go to the jury. The defendant had paid a bill for a 
 Mr. Shipley, and summoned a party named Watson, to whom he had 
 paid it, before the court of requests for an overcharge. The defendant 
 was asked whether Watson M^as indebted to him in the sum of lis.; 
 he answered, "He is." On the question being repeated, and the wit- 
 
 ' On trial of one accused of perjury it is not necessary to prove the exact words 
 used by the prisoner in giving the false testimony. It is sufficient to prove sub- 
 stantially what he said. Taylor v. State, 48 Ala. 157. Compare Commonwealth v, 
 Butland, 119 Mass. 317.
 
 lOGO PERJURY. 
 
 ncss required to recollect himself, he snbjoincfl, "as agent for Mr. 
 Sliipley." Pie was indicted for perjury upon his first answer only, 
 but it appearing upon the case for the piosecution that he had qualified 
 that answer, Nares, J., refused to permit the case to go to the jury, 
 observing that it was perjury assigned on part only of an oath, the 
 most material part being purposely kept back. R. v. Hurry, 1 Lofft's 
 Gilb. Ev. 57. 
 
 Upon a trial for an indecent assault, the woman having sworn to 
 the assault, admitted upon cross-examination that what Avas done was 
 done with her consent, and thereupon no other witnesses were called, 
 and the court directed an acquittal. The person charged with the 
 assault denied that the transaction had taken place at all wdth or 
 without the woman's consent, and indicted her for perjury. She 
 was allowed in her defence to call as witnesses all those who might 
 have been called upon the former trial. R. v. Harrison, 9 Cox, C. 
 C. 503. 
 
 On the trial of an indictment for perjuiy alleged to have been 
 committed before a magistrate, the written deposition of the de- 
 fendant taken down by the magistrate was put in to prove what he 
 *S4Q1 *^^^^^^ swore, and it was proposed to call the attorney for the 
 -I prosecution to prove some other matters sworn to by the de- 
 fendant, which were not mentioned in the depositions ; Parke, J., 
 held that this could not be done. R. v. Wylde, 6 C. & P. 383, 25 E. 
 C. L. See ante, p. 68.^ 
 
 Proof of the materiality of the matter sworn. It must either ap- 
 pear on the face of the facts set forth in the indictment that the mat- 
 ter sworn to, and upon which the perjury is assigned, was material, or 
 there must be an express averment to that effect.^ R. v. Dowlin, 5 
 T. R. 311 ; Peake, K P. 227 ; R. v. Nicholl, 1 B. & Ad. 21, 20 E. 
 C L. ; R. V. M'Keron, 3 Russ. Cri. 57, 5th ed. An express averment 
 that a question was material lets in evidence to prove that it was so. 
 R. V. Bennett, 2 Den. C. C. R. 240 ; 20 L. J., M. C. 217. Where, 
 upon an indictment for perjury committed in an answer in chancery, 
 
 1 But see People v. Curtis, 50 Cal. 95. 
 
 '' Where three or more persons were alleged to be jointly concerned in an assault, 
 and it was contended to be immaterial, if all participated in it, by which of them 
 certain acts were done, held to be material, and that evidence as to the acts of either, 
 if wilfully and falsely given, constituted peijury. State v. Norris, 9 N. H. 96. Per- 
 jury may be committed by wilfully false swearing in a point which is only circumstan- 
 tially material to the question in dispute. Commonwealth r. Pollard, 12 Mete. 225. 
 Wlien a party is indicted for perjury in giving testimony on the trial of an issue in 
 court, proof that his testimony was admitted on that trial is not sufficient to warrant 
 the jury to infer that it was material. Id. 
 
 An indictment for peijury must show conclusively that the testimony given by the 
 defendant was material to the issue. State ".Thrift, 30 Ind. 211 ; State v. Chandler, 
 42 Vt. 446 ; United States v. McHenry, 6 Blateli. C. C. 503 ; Gibson v. State, 44 Ala. 
 17 ; Pland v. State, Id. 81. [A false answer to an immaterial question is not perjury. 
 Banks r. State, 78 Ala. 14. Nor the denial of the execution of a defective paper. 
 CommonweaUh v. Kupple, 1 County Ct. Eep. ( Pa.) 663.] But see State v. Sleeper, 37 
 
 Commonwealth v. Butland, 119 Maiis, 317 ; Pollard v. People, 69 111. 148.
 
 PERJURY. 1061 
 
 the perjury M'as assigned in the defendant's denial, in the answer, of 
 his having agreed, upon forming an insnranee company, of which he 
 ^vas a director, etc., to advance 10,000/. for three years, to answer any 
 imm.ediate calls, and there was no averment that this was material, nor 
 did It appear for what purpose the bill was fded nor what was prayed; 
 the judgment was arrasted. li. r. Bignold, 3 Russ. Cri. 57, 58, 5th 
 ed. So perjury cannot be assigned on an answer in chancery, denying 
 a promise absolutely void by the statute of frauds. R. v. Benesech, 
 Peako's Add. Cases, 93. 
 
 The materialty of the matter sworn to must depend upon the state 
 of the cause, and the nature of the question in issue. If the oath is 
 altogether foreign from the purpose, not tending to aggravate or exten- 
 uate the damages, nor likely to induce the jury to give a readier credit 
 to the substantial part of the evidence, it cannot amount to perjury. 
 As if upon a trial in which the issue is, whether such a one is compos 
 or not, a witness introduces his evidence by giving an account of a 
 journey which he took to see the party, and swears falsely in relation 
 to some of the circumstances of the journey. So where a witness 
 Avas asked by a jndge, whether he brought a certain number of sheep 
 from one town to another altogether, and answered that he did so, 
 whereas in truth he did not bring them altogether, but part at one 
 time and part at another, yet he was not guilty of perjury, because 
 the substance of the question was, whether he brought them all or 
 not, and the manner of bringing was only circumstance. (2 Rolle, 
 41, 369.) Upon the j^ame grouud it is said to have been adjudged, 
 that where a witness being asked, whether such a sum of money 
 was paid for two things in controversy between the parties, answered, 
 it was, when in truth it was only paid for one of them by agree- 
 ment, such witness ought not to be punished for perjury, because 
 as the case was, it was no ways material whether it was for one 
 or for both. (2 RoUe, 42.) Also it is said to have been resolved, 
 that a witness who swore that one drew his dagger, and beat and 
 wounded J. S., when in truth he beat hiau with a staff, was not guilty 
 of perjury, because the beating only was material. (Hetley, 95.) 
 Hawk. P. C. b. 1, c. 69, s. 8. 
 
 After stating these authorities, Mr. Serjeant Hawkins observes, 
 that perhaps in all these cases it ought to be intended that the ques- 
 tion was put in such a manner, that the witness might reasonably 
 apprehend that the sole design of putting it was to be informed of 
 the substantial part of it, which might induce him, through inad- 
 vertency, to take no notice of the circumstantial part, and give a 
 *general answer to the substantial ; for otherwise, if it appear r^osrv 
 plainly that the scope of the question was to sift him as to his ^ 
 knowledge of the substance, by examining him strictly as to the cir- 
 cumstances, and he gave a particular and distinct account of all the 
 circumstances, which afterwards appears to be false, he cannot but be 
 guilty of perjury, inasmuch as nothing can be more apt to incline a 
 jury to give credit to the substantial jDart of a man's evidence, than 
 his appearing to have an exact and particular knowledge of all the
 
 1062 PERJURY. 
 
 circumstances relating to it. Upon these grounds the opinion of the 
 judges seems to be very reasonable (1 Eolle, 368 ; Palmer, 382), who 
 held a witness to be guilty of perjury, who in an action of trespass 
 for breaking the plaintifi^'s close, and spoiling it with sheep, deposed 
 that he saw 30 or 40 sheep in the close, and that he knew them to be 
 the defendant's because they were marked with a mark which he 
 knew to be the defendant's, Avhereas in truth the defendant never used 
 such a mark ; for the giving of such a specnal reason for his remem- 
 brance, could not but make his testimony the more credible than it 
 would have been without it ; and though it signified nothing to the 
 merits of the cause whether the sheep had auy mark or not, yet inas- 
 much as the assigning such a circumstance, in a thing immaterial had 
 such a direct tendency to corroborate the evidence concerning what 
 was most material, it was consequently equally prejudicial to the 
 party, and equally criminal in its own nature, and equally tending to 
 abuse the administration of justice, as if the matter sworn had been 
 the very point in issue.^ Hawk. P. C. b. 1, c. 69, s. 8 ; 3 Russ. Cri. 
 10, 5th ed. See also R. v. Tyson, L. R. 1 C. C. R. 107 ; 37 L. J., 
 M. C. 7. 
 
 The vendor of goods having obtained a verdict in an action on a 
 contract upon proof of the same by bought and sold notes, the pur- 
 chasers filed a bill in chancery for a discovery of other parol terms, 
 and for equitable relief from the contract. The answer to the bill 
 denied the existence of the alleged parol terms. On an indictment 
 assigning perjury upon the allegation which contained such denial ; it 
 was held by Coleridge, J., that the prayer of the bill being not to en- 
 force the parol terms, but to obtain relief from the contract, the assign- 
 ment of perjury was upon a matter material and relevant to the suit in 
 chancery. R. v. Yates, Carr. & M. 132, 41 E. C. L. 
 
 A question having no general bearing on the matters in issue may be 
 made material by its relation to the witness's credit, and false swearing 
 thereon will be perjury, R. v. Overton, 2 Moo. C. C. 263 ; R. v. 
 Phillpotts, 2 Den. C. C. R. 302 ; 21 L. J., M. C. 1 8. In the latter 
 case, the evidence given in respect to which perjury had been assigned 
 was afterAvards withdrawn and Avas inadmissible, but it was held that 
 this could not purge the false swearing ; and Maule, J., in the course 
 of the argument said : " Here the defendant, by means of a false oath, 
 endeavors to have a document received in evidence; it is therefore a 
 false oath in a judicial proceeding ; it is material to that judicial pro- 
 ceeding, and it is not necessary that it should have been relevant and 
 material to the issue being tried." 
 
 Upon an application for an order of affiliation the Avoman was 
 cross-examined, as to whether she had not had connection with G., 
 in the month of September, the child having been born in the month 
 of March. The question was material to the issue only in so far 
 as it affected her credit. She denied having had connection with G., 
 and he was called and swore to having had connection with her in 
 
 1 State V. Strat, 1 Murph. 124 ; State v. Ilattaway, 2 N. & McC. 118 ; Wilson v. 
 Nations, 5 Yerg. 211. S.
 
 PERJURY. 1063 
 
 *September. Upon this perjury was assigned, and the prisoner r*oKi 
 bein<^ convicted, the conviction was sustained, although the ^ 
 evidence of G. was legally inadmissible and ought not to have been 
 received. This case is thus an authority for two propositions : First, 
 that the evidence which goes only to the credit of a witness is 
 material ; and, Secondly, that perjury may be assigned upon evidence 
 improperlv admitted. R. v. Gibbon, L. & C. 109 ; 31 L. J., M. C. 
 98. See also R. v. Mullany, L. & C. 593 ; 34 L. J., M. C. 111. 
 
 The degree of materiality is not, as it seems, to be measured. Thus 
 it need not appear that the evidence was sufficient for the party to re- 
 cover upon, for evidence may be very material, and yet not full 
 enough to prove directly the issue in question. R. v. Rhodes, 2 Ld. 
 Raym. 887. So if the evidence was circumstantially material, it is 
 sufficient. R. v. Griepe, 1 Ld. Raym. 258 ; 12 Mod. 145. 
 
 A few cases may be mentioned to illustrate the question of materi- 
 ality. If in answer to a bill filed by A. for redemption of lands as- 
 signed to him by B., the defendant swears that he had no notice of 
 the assignment, and insists upon taking another bond debt due from 
 B. to his mortgage, this is a material fact on which perjury may be 
 assigned. R. v. Pepy, Peake, N. P. C. 138. In an answer to a bill 
 filed against the defendant for the specific performance of an agree- 
 ment relating to the purchase of land, the defendant had relied on the 
 statute of frauds (the agreement not being in writing), and had also 
 denied having entered into any such agreement, and upon this denial 
 in his answer he was indicted for perjury ; but Abbott, C. J., held 
 that the denial of an agreement which by the statute was not binding 
 upon the parties, was wholly immaterial, and the defendant was ac- 
 quitted. R. V. Dunston, Ry. & Moo. N. P. C. 109 ; but see Bartlett 
 V. Pickersgill, 4 Burr. 2255 ; 4 East, 577 (71). An indictment for 
 perjury stated that it became a material question, whether on the oc- 
 casion of a certain alleged arred L. touched K., etc. The defendant's 
 evidence as set out was, " L. put his arms round him and embi-aced 
 him " innuendo, that L. had on the occasion to which the said evidence 
 applied touched the person of K. It was held by the Court of King's 
 Bench, that the materiality of this evidence did not sufficientlv appear. 
 R. V. Nicholl, 1 B. & Ad. 21, 20 E. C. L. An indictment" for per- 
 jury stated, that H. L. stood charged by F. W. before T. S., clerk, a 
 justice of the peace, with having committed a trespass, by entering 
 and being in the day-time on certain land in the pursuit of game, on 
 the 12th August, 1843, and that T. S. proceeded to the hearing of 
 the charge, and tliat upon the hearing of the charge the defendant C. 
 B. falsely swore that he did not see H. L. during the whole of the 
 said 12th August, meaning that he the said C. B. did not see the said 
 H. L. at all on the said 12th day of August in the year aforesaid ; 
 and tiiat at the time he the said C. B. swore as aforesaid, it was material 
 and necessary for the said T. S. so being such justice as aforesaid, to 
 inquire of, and be informed by the said C. B., whether he the said C. 
 B. did see the said H. L. at all during the said 12th day of August 
 in the year aforesaid. It was held by Alderson, B., that this aver-
 
 1064 PERJURY. 
 
 ment of materiality was insufficient, because, consistently with the 
 averment, it mi^lit have been material for T. S. in some other matter, 
 and not in tlie matter stated to have been in issue before him, to have 
 put this question, and received this answer. R. v. Bartholomew, 1 
 C. & K. 366, 47 E. C. L. An indictment for perjury on a 
 charge of bestiality stated, that it was material " to know the state 
 *^^91 *^^ ^^^^ ^'^^^ '^' ^''^ dress at the time the said offence was so 
 -I charged to be committed as aforesaid :" this was held by the 
 judges to be a sufficient averment of materiality, to allow the prose- 
 cutor to show tiiat the flap of his trousers was not unbuttoned (as 
 sworn by the defendant), and that his trousers had no flap. R. v. 
 Gardner, 2 Moo. C. C. 95. A witness having sworn at a trial that he 
 did not write certain words in the presence of D., it was held that the 
 presence of D. might be a fact as material as the writing of the words, 
 and therefore that an assignment of perjury, charging that the defend- 
 ant did write the words in question in D.'s presence Mas good. R. v. 
 Schlesinger, 10 Q. B. 670, 59 E. C. L.; 17 L. J., M. C. 29. AVhere a 
 plaintiff in an action for goods sold swore falsely in cross-examination 
 that she had never been tried at the Old Bailey, and had never been in 
 custody at the Thames Police station, Campbell, C J., held, on an in- 
 dictment for perjury, that this evidence was material. R. v. Lavey, 3 
 C. & K. 26. 
 
 In order to show the materiality of the deposition or evidence of 
 the defendant it is essential, where the perjury assigned is in an answer 
 to a bill in equity, to produce and prov^e the bill, or if the peijury 
 assigned is on an affidavit, to produce and prove the previous proceed- 
 ings, such as the rule nisi of the court, in answer to which the affidavit 
 in question has been made. If the assignment be on evidence on the 
 trial of a cause, in addition to the production of the record, the pre- 
 vious evidence and state of the cause should be proved, or at least so 
 much of it as shows that the matter sworn to was material. 2 Stark. 
 Ev. 626, 2nd cd. 
 
 In an indictment for peijury, Patteson, J., held that an averment 
 that " it became and was material to ascertain the truth of the matter 
 hereinafter alleged to have been sworn to, and stated by the said J. G. 
 upon his oath," was not a good averment of materiality. R. v. Good- 
 fellow, Carr. cSr M. 569, 41 E. C. L. 
 
 Proof of the introductory averments. Where, in order to show 
 the materiality of the matter sworn to, introductory averments have 
 been inserted in the indictment, those averments nuist be jiroved. 3 
 Russ. Cri. 37, oth ed. Where upon the trial of an indictment con- 
 taining an assignment of perjin-y in the following form, " whereas in 
 truth and in fact the said defendant at the time of effecting the said 
 policy, that is to say, a certain policy purj)orting to have been written 
 by one Kite, by his agent Meyer, on the 13th August, 1807, etc., (and 
 by other underwriters specified in the indictment,) well knew," etc.; 
 and on production of the policy it appeared to have been underwritten 
 by Meyer for Kite on the 15th ; Lord Ellenborough was of opinion,
 
 PERJURY. 1065 
 
 that as the prosecutor had chosen to allege a fact, material with refer- 
 ence to the knowledge of the defendant, it was necessary to prove it, 
 and held the variance fatal. R. v. Pluck, 1 Stark, N. P. C. 523, 2 
 E. C. L. But see now, as to the power of amendment, 14 & 15 Vict. 
 c. 100, s. 1, ante, p. 209. 
 
 But where the introductory averment is not matter of description, 
 it is sufficient to prove the substance of it, and a variance in other 
 respects will be immaterial. Thus where the indictment averred the 
 perjury to have been committed in the defendant's answer to a bill of 
 discovery in the Exchequer, alleged to have been filed on a day 
 specified, and it appeared that the bill was filed in a preceding term, 
 Lord Ellenborough ruled that the variance was not material ; since 
 *the day was not alleged as part of the record, and that it was r^oco 
 sufficient to prove the bill filed on any other day.^ R. v. Huck, L 
 1 Stark. N. P. C. 521, 2 E. C. L. And where perjury was assigned 
 on an answer to a bill alleged to have been filed in a particular term, 
 and a copy produced was of a bill amended in a subsequent term by 
 order of the court, it was held to be no variance, the amended bill 
 being part of the original bill. R. v. Waller, 2 Stark. Ev. 623. And 
 again in a similar case, where the bill was stated to have been filed by 
 A. against B- (the defendant in the indictment) and another, and in 
 fact 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., Lord 
 Ellenborough held the variance immaterial. R. v. Benson, 2 Campb. 
 507. See also R. v. Baily, 7 C. & P. 264, 32 E. C, L. The defend- 
 ant was tried on an indictment for perjury committed in giving evi- 
 dence, as the prosecutor of an indictment against A. for an assault ; 
 and it appeared that the indictment for the assault charged, that the 
 prosecutor had received an injury, " whereby his life was greatly de- 
 spaired of." In the indictment for perjury, the indictment for the 
 assault was introduced in these words, " which indictment was pre- 
 sented in tlie manner and form following, tliat is to say," and set forth 
 the indictment for the assault at length, and correctly, with the omis- 
 sion of the word " despaired," in the above passage. It was insisted 
 that this was a fatal variance, but the learned judge who tried the case 
 said, that the word tenor has 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 requisite than a sub- 
 stantial recital, and that the variance in the present case was only mat- 
 ter of form, and did not vitiate the indictment. R. v. May, 3 Russ. 
 Cri. 41, 5th ed. Where the indictment stated that an issue came on to 
 be tried, and it appeared that an information containing several counts, 
 upon each of which issue was joined, came on to be tried, the variance 
 was iield immaterial. R. v. Jones, Peake, N. P. C. 37. The defend- 
 ant was indicted for perjury in an answer to a bill in chancery, which 
 had been amended after the answer put in. To prove the amendments 
 
 ^ In an indictment for perjurj', the day on which the offence was committed must 
 be precisely stated. United States v. Bowman, 2 Wash. C. C. 328 ; United States v, 
 MciS^eal, 1 Gallison, 387. S.
 
 1066 PERJURY. 
 
 a witness was called, who stated that the amendments were made by 
 a clerk in the six clerks' office, whose Iiandwi-iting he knew, and that 
 the clerk wrote the word "amendment" against each alteration. Lord 
 Tenterden was of opinion that this was suificient proof of the amend- 
 ments, bnt did not think it material to the case. R. v. Laycock, 4 C. 
 & P. 326, 19 E. C. L. 
 
 Upon an indictment for perjury committed on a trial at the London 
 sittings, the indictment alleged the trial to have taken place before 
 Sir J. Littledalc, one of the justices, etc. On producing the record, 
 it did not appear before whom the trial took place, but the postca 
 stated it to have been before Sir C. Abbott, C. J., etc. In point of 
 fact it took place before Mr. Justice Littledalc. I^ord Tenterden 
 overruled the objection, that this was a variance, saying, " On a trial 
 at the assizes, the postea states the trial to liave taken place before 
 both justices ; it is considered in law as before both, though in fact 
 it is before one only ; and I am not aware that the postea is ever 
 made up here difterently, when a judge of the court sits for the 
 chief justice." R. v. Coppard, Moody & Malk. 118. Where an in- 
 dictment alleged that the defendant committed peijury on the trial 
 of one B., and that B. was convicted, and it appeared by the record 
 when produced that the judgment against B. had been revcr.-ed upon 
 *«^zn *6^^or after the bill of indictment against the defendant had 
 -I been found ; it was held by AVilliams, J., that this \vas no vari- 
 .ance. R. v. Meek, 9 C. & P. 513, 38 E. C. L. Where an indictment 
 alleged that " a certain action came on to be tried in due form of law," 
 and was " duly tried by a jury of the country in that behalf duly 
 sworn," and it appeared by the record of the trial that the jury, hav- 
 ing considered their verdict, returned, but did not give a verdict, the 
 trial ending in a non-suit, it was held that the indictment was good. 
 R. V. Bray, 9 Cox, C. C. 218. An indictment for perjury alleged the 
 trial of an issue before E. S. esq., sheriff of D., by virtue of a writ 
 directed to the sheriff, the Avrit of trial put in evidence was directed to 
 the sheriff, and the return was of a trial before him ; but it was proved 
 that in fact the trial took place before a deputy, not the under-sher- 
 iff. This was held to be no variance. P. v. Dunn, 2 ]\Ioo. C. C. P. 
 297. See also P. v. Schlesinger, 10 Q. B. 670, 59 E. C. L. Where 
 an indictment for perjury assigned on an affidavit made for the pur- 
 pose of setting aside a judgment, since the rule of H. T., 4 Will. 4, 
 alleged that the judgment was entered up, " in or as o/" Trinity term, 
 5 Will. 4, and the record of the judgment, when produced, was dated 
 "June the 26, 5 Will. 4.;" Patteson, J., held this to be a variance, 
 and refused to amend under the 9 Geo. 4, c. 15. R. v. Cooke, 7 C. & 
 P. 559, 32 E. C. L. An allegation that judgment was "entered up" 
 in an action, is proved by the prcxluction of the judgment book from 
 the office in which the incipitur is entered. P. v. Gordon, Carr. & 
 M. 410, 41 E. C. L. On a charge of jjcrjury alleged to have been 
 committed before commissioners to examine witnesses in a chancery 
 suit, the indictment stated that the four commissioners were commanded 
 to examine the witnesses. Their commission was put in, and by it the
 
 PERJUEY. 1067 
 
 commissioners, or any three or two of them, were commanded to ex- 
 amine witnesses ; this was held by Coleridge, J., to be a fatal variance, 
 and he would not allow it to be amended. R. v. Hewins, 9 C. & P. 
 78G, 38 E, C. L. 
 
 An allegation that the defendant made his warrant of attorney, 
 directed to R. W. and F. B. " then and still being attornies " of the 
 Iv. B., is proved by putting in the warrant. Id. Where in an in- 
 dictment for perjury against C. D. it is averred, that a cause was de- 
 pending between A. B. and C. D. ; Lord Denman, C. J., held that a 
 notice of set-off intituled in a cause A. B. against C. D. was not suf- 
 ficient evidence to support the allegation. R. v. Stoveld, 6 C. & P. 
 489, 25 E. C. L. As to what is not a sufficient examined copy of a 
 bill in chancery, see R. v. Christian, Carr. & M. 388, 41 E. C. L. 
 
 An indictment for perjury stated that " in the Whitechapel County 
 Court of ]Middlesex, holden at, etc., in the county of Middlesex, 
 before J. ]\I., then and there being a judge of the court, a certain 
 action of contract pending in the court between A. L. plaintiif and 
 R. H. defendant, came on to be tried ;" upon which trial A. L. was 
 then and there duly sworn, " before J. M., then and there being judge 
 of the court, and then and there having sufficient and competent au- 
 thority to administer the oath to A. L. in that behalf;" it was held 
 that it sufficiently appeared that the court in which the action was 
 tried was held in pursuance of 9 & 10 Vict. c. 95. Lavey v. R., 2 Den. 
 C. C. R. 504; 21 L. J., M. C. 10. In R. v. Rowland, 1 F. & F. 72, 
 Bramwell, B., held, that on an indictment for perjury in order to 
 prove the proceedings of the County Court, it was necessary to produce 
 either the clerk's minutes or a copy thereof bearing the seal of the 
 court; the County Court Act, 9 & 10 Vict. c. 95, s. Ill, directing 
 *that such minutes should be kept and that such minutes should r^nr r 
 be admissible as evidence. L 
 
 An indictment for perjury committed by a bankrupt before the in- 
 solvent court, at an adjournment after his first examination, alleged 
 that he ^vas a trader owing debts less than 300^., and other matters. 
 The petition upon which the prisoner had applied to the insolvent 
 court alleged the very same matters as facts, upon which, with others, 
 he rested his application. It was held by the Court of Criminal Ap- 
 peal, that this was good primd facie evidence of the allegations in 
 the indictment sufficient to throw the onus of proving the contrary 
 on the prisoner. R. v. Westlev, 29 L. J., M. C. 35 ; Bell, C. C. 
 193. 
 
 In the same case the indictment alleged that notice of the petition 
 was inserted in the " Gazette ;" that a day was appointed for the first 
 examination, and the sitting on that day was adjourned. No evidence 
 was given in support of these allegations, but it was proved that 
 the petition of the prisoner was filed in the insolvent court. An 
 objection Avas taken at the trial that without proof of these allegations, 
 the jurisdiction of the insolvent court was not shown. But it was 
 held that, as upon filing the petition the court had jiu'isdiction to 
 institute the examination, and as in a court of record omnia prce-
 
 10G8 PERJURY. 
 
 sumuniur rlt(>. esse acta, and as it was generally alleged in the indict- 
 ment that the court had lavvfid power to administer the oath, the 
 allegations of which no proof was offered might be rejected as im- 
 material. 
 
 The indictment in this case alleged that the prisoner, after the 
 passing and coming into operation of certain statutes, to wit, on the 
 20th May, 1859, presented his petition ; and then went on purporting 
 to set out the titles of the statute in lictc verba. The years of Her 
 Majesty's reign, when two of the Acts were passed were inaccurately 
 stated, and there was another inaccuracy in setting out the title of one 
 of them ; the first two of these inaccuracies was amended at the 
 trial, and the other not. It was held, first, that the judge had power 
 to make the amendment ; secondly, that as the statute was only re- 
 ferred to in order to show that the petition was presented after it had 
 passed, and as that appeared sufficiently from the prior allegation of 
 the date when the petition was filed, the reference to the statute might 
 be rejected altogether as immaterial. In this case, Pollock, C. B., 
 stated his opinion, generally, that where the title of an Act of 
 parliament is set out with sufficient accuracy to enable the court to 
 know with certainty what Act is meant, any minor inaccuracy is im- 
 material. 
 
 Proof of the falsity of the matter sworn. Evidence must be 
 given to prove the falsity of the matter sworn to by the defendant ; 
 but it is not necessary to prove that all the matters assigned are false; 
 for, if one distinct assignment of perjury be })roved the defendant 
 ought to be found guilty.^ R. v. Rhodes, 2 Lord Raym. 88G ; 2 W. 
 Bl. 790 ; 2 Stark. Ev. 627, 2nd ed. And where the defendant's oath 
 is as to his belief only, the averment that he "well knew to the 
 contrary" must be proved. See 2 Chitty, C. L. 312 ; 3 Russ. Cri. 
 65, 5th ed. 
 
 "The first observation on this part of the case is, that the defendant 
 swears to the best of his recollection, and it requires very strong 
 proof, in such a case, to show that the party is wilfully perjured ; I 
 *8fir"i *tlo not mean to say that there may not be cases in which a 
 -J party may not be proved to be guilty of perjury, althougli he 
 only swears to the best of his recollection ; but I should say that it 
 was not enough to show merely that the statement so made was 
 untrue." Per Tindal, C. J., R. v. Parker, Carr. & M. 639, 41 
 E. C. L. 
 
 An assignment of perjury that the prosecutor did not at the time 
 and place sworn to, or at any other time or place, commit bestiality 
 with a donkey (as sworn to), or with any other animal ivhatsoever, is 
 
 ^ An indictment for perjury must expressly contradict the matter falsely sworn to 
 by the accused. Gibson v. State, 44 Ala. 17. S. 
 
 Wliere more tlian one assignment is made, it is not necessary to prove all that is 
 charged. It is sufficient to prove enough to make out the offence. Harris r. People, 
 64 N. Y. 148. The falsity of the facts sworn to by the accused must be averred in the 
 indictment or it is fatally defective. People v. Clements, 42 Hun, (N. Y.) 353 ; Per- 
 due V. Commonwealth, 96 Pa. St. 311.
 
 PERJUKY. 1069 
 
 sufficiently proved by the evidence of two witnesses falsifying the 
 deposition Avhich had been sworn to bv the defendant. R. v. Gardiner, 
 2 Moo. C. C. 95 ; 8 C. & P. 737, 34 E. C. L. 
 
 To convict a person of perjury before a grand jury, it is not suf- 
 ficient to show that the person swore to the contrary before the ex- 
 amining magistrate, as non constat which of the contradictory state- 
 ments was the true one. Per Tindal, C. J., R. v. Hughes, 1 C. & K. 
 519, 47 E. C. L. 
 
 Where the prosecutor gave no evidence upon one of several as-^sio-n- 
 ments of perjury, Lord Denman refused to allow the defendant to 
 show that the matter was not false. R. v. Hemp, 5 C. & P. 468, 24 
 
 E. C. L. 
 
 F. was indicted for perjury, committed by deposing to an affidavit 
 in a cause, wherein F. was the plaintiff and E. defendant, that E. owed 
 
 F. 50/.; it was held that evidence that the cause was after the making 
 of the affidavit referred by consent, and an award made that E. owed 
 nothing to F., was not admissible in proof of the falsity of the matter 
 sworn. R. v. Fontaine Moreau, 11 Q. B. 1028, 63 E.'C. L.; 17 L. 
 J., Q. B. 187. "The decision of the arbitrator," said Denman,. C. J., 
 in delivering the judgment of the court, " is no more than a dec- 
 laration of his opinion, and there is no instance of such a decla- 
 ration of opinion being received as evidence of a fact against the party 
 to be affected by the proof of it in any criminal case." 
 
 Where the perjury is alleged to have been committed on a trial in 
 the county court, it is not necessary that the judge's notes should be 
 produced in order to prove what the prisoner then swore, but tlie evi- 
 dence of any person who was present at the trial, and who took notes 
 of what passed, and is able to swear to their accuracy, is sufficient. 
 R. V. Martin, 6 Cox, C. C. 107. 
 
 Proof of the corrupt intention of the defendant. Evidence is 
 essential, not only to show that the witness swore falsely in fact, but 
 also, as far as circumstances tend to such proof, to show that he did so 
 corruptly, wilfully, and against his better knowledge. 2 Stark. Ev. 
 627, 2nd ed. In this, as in other cases of intent, the jury may infer 
 the motive from the circumstances.^ R. v. Knill, 5 B. & A. 929 (n), 
 7 E. C. L. 
 
 There must be proof that the false oath was taken with some degree 
 
 * False swearing to a fact, to the best of the opinion of the witness, which the wit- 
 ness, though without any reasonable cause, believes to be true, is not perjury. Com- 
 monwealth V. Brady, 5 Gray, 78. It is wrong to instruct a jury that " the want of 
 motive or interest to swear falsely is a circumstance from which they are at liberty to 
 infer that the testimony of the defendant was not wilfully and corruptly falge." 
 Schaller v. State, 14 Mo. 502. An averment in an indictment for peijury, that the de- 
 fendant knew the falsity of the matter testified to Uj him, is not requisite, except 
 where the perjury is assigned upon the statement by the accused of his belief or de- 
 nial of his belief of the alleged false matter. State v. Eaymond, 20 la. 582. One 
 may be convicted of perjury in testifying to an allegation which he believes, if he has 
 not probable ground for his belief. Stater. Knox, 1 Phillips (Law), 312. A witness 
 who does not know whether or not a certain event occurred at a certain time and 
 place, but who swears that it did not occur then and there, is guilty of peijury. State
 
 1070 PERJURY. 
 
 of deliberation ; for if, under all the circumstances of the case, it ap- 
 pears that it was owing to the weakness rather than the perverseness 
 of tiie party, as where it is occasioned by surprise or inadvertence, or 
 by a mistake with regard to the true state of the question, this would 
 not amount to voluntary and corrupt perjury. Hawk. P. C. b. 1, c. 
 69, s. 2 ; 2 Russ. by Greav. 597 ; 4 Bl. Com. 127. See 11. v. Stolady, 
 supra, p. 846.^ 
 
 Witnesses — number requisite. It is a general rule, that the tes- 
 timony of a single witness is insufficient to convict on a charge of 
 perjury. This is an arbitrary and peremptory rule, founded upon the 
 *Qr"-| *general apprehension that it would be unsafe to convict in a 
 -J case where there M'ould be merely the oath of one man to be 
 weighed against that of another. 2 Stark. Ev. 626, 2nd ed. ; 3 Russ. 
 on Cri. 72, 5th ed. ; Hawk. P. C. b. 1, c. 69; 4 Bl. Com. 358. But 
 this rule must not be understood as establishing that two witnesses are 
 necessary to disprove the fact sworn to by the defendant : for, if any 
 other material circumstance be proved by other witnesses, in confir- 
 mation of the witness who gives the direct testimony of perjury, it may 
 turn the scale, and warrant a conviction. R. v. Lee, 3 Russ. Cri. 72, 
 6th ed. So it is said by Mr. Phillips, that it does not appear to have 
 been laid down that two witnesses are necessary to disprove the fact 
 stvorn to by the defendant ; nor does that seem to be absolutely requi- 
 site ; that at least one witness is not sufficient ; and, in addition to his 
 testimony, some other independent evidence ought to be produced. 1 
 Phill. Ev. 141, 6th ed. "There must be something in the corrobo- 
 ration, which makes the fact sworn to not true, if that be true also." ^ 
 l*er Alderson, B., in R. v. Boulter, infra. 
 
 V. Gates, 17 N. H. 373. To constitute perjury, the false swearing must not only be 
 wilful, but corrupt or intentionally false. Cothran v. State, 39 Miss. 541 ; Scott v. 
 Cook, 1 Duv. 314. S. But it is not error that the court fails to so charge. Mor- 
 gan V. State, 63 Miss. 162. 
 
 ^ An honest onth, taken under advice of counsel, is not peijury. State v. McKin- 
 ney, 42 Iowa, 205. It is error for the court to refuse to permit the defendant to show 
 that when he took the oath he was ignorant that it was not true. Flemister v. State, 
 48 Ga. 170. In an indictment for perjury a conviction cannot be had for an honest 
 mistake. People v. Dishler, 4 N. Y. Crim. Rep. 188. 
 
 * State V. Hay ward, 1 N. & McC. 547 ; Coulter v. Stewart, 2 Yerg. 225 ; Merritt's 
 Case, 4 Rog. Rec. 58 ; Case of Francis et al.. Id. 12. The case in which a living wit- 
 ness to the corpus delicti of the defendant, in a prosecution for peijiu'v, may be dis- 
 pensed with, are all such where a person, charged with a perjury by false swearing to 
 a fact directly disproved by documentary or written testimony, springing fiom him- 
 self, with circumstances showing the corrupt intent : in cases v.^here the perjury 
 charged is contradicted by a public record, i)roved to have been well known to the 
 defendant when he took the oath, the oath only proved to have been taken : in cases 
 where the party is charged with taking an oath contrary to what he must necessarily 
 have known to be the truth, and the folse swearing can be proved by his own letters 
 relating to the fact sworn to, or by other written testimony existing or 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. United States ?•. Wood, 14 Pet. 430. On a trial for 
 perjury, the testimony of a single witness is sufficient to prove that the defendant 
 swore as is alleged in the indictment. Commonwealth v. Pollard, 12 Mete. 225. In 
 order to authorize a conviction of perjury, it is necessar}', in addition to the testimony 
 of one witness to the falsity of the statement alleged as the perjury, that strong cor-
 
 PEEJURY. 1071 
 
 A distinction, however, appears to be taken between proving posi- 
 tive allegations in the indictment, and disproving the trnth of the 
 matter sworn to by the defendant ; the latter, it is said, requiring the 
 testimony of two witnesses. Thus, Mr. Serjeant Hawkins says, that 
 it seems to be agreed that two witnesses are required in proof of the 
 crime of perjury ; but the taJdng of the oath and the facts deposed 
 may be proved by one witness only. Hawk. P. C. b. 2, c. 46, s. 10. 
 So it is said by ]\Ir. Starkic (citing the above passage from Hawkins), 
 that it seems the coniradidion must be given by two direct witnesses ; 
 and that the negative, supported by one direct witness and by circum- 
 stantial evidence, would not be sufficient. He adds, that he had been 
 informed that it had been so held by Lord Tenterden. 2 Stark. Ev. 
 627 (?i). 
 
 In R, V. Champney, 2 Lew. C. C. 258, Coleridge, J., said, "One 
 witness in perjury is not sufficient, unless supported by circumstantial 
 evidence of the strongest kind : indeed. Lord Tenterden was of ojiinion, 
 that two witnesses were necessary to a conviction." See R. v. Mudie, 
 1 Moo. & R. 128. The rule, that the testimony of a single witness 
 is not sufficient to sustain an indictment for perjury, is not a mere 
 technical ruk, but a rule founded on substantial justice ; and evidence 
 confirmatory of that one witness, in some slight particulars only, is 
 not sufficient to warrant a conviction. Per Coleridge, J., R, v. Yates, 
 Carr. & M. 132, 41 E. C. L. ; but in R. v. Shaw, L. & C. 590 ; 34 L. J., 
 M. C, 109, Erie, C. J., said, " It is well-ascertained law that, upon 
 an indictment for perjury, it is necessary to have more than the evi- 
 
 roborating circumstances, of such a character as clearly to turn the scale and over- 
 come the oath of the party charged and the legal presumption of his innocence, 
 should be established by independent evidence ; and therefore when the charge in an 
 indictment for perjury was that the defendant had testified that no agreement for the 
 payment by hira of more than the lawful rate of interest had ever been made between 
 him and the person to whom lie was indebted upon certain contracts, it was held that 
 the testimony of the creditor to the existence of such an agreement, corroborated by 
 the letters of the defendant to him, containing a direct promise to pay more than 
 legal interest on a demand thus held, was competent and sufficient evidence of the 
 falsity of the statement alleged as the perjury. Commonwealtli v. Parker, 2 Cush. 
 212. Where a defendant, by a subsequent deposition, expressly contradicts and falsi- 
 fies a former one made by hira, and in such subsequent deposition expressly admits 
 and alleges tliat such former one was intentionally false at the time it was made, or in 
 such subsequent deposition testifies to such other facts and circumstances as to render 
 the corrupt motive apparent, and negative the proljability of mistake in regard to the 
 first, he may be properly convicted upon an indictment charging the first deposition 
 to be false, without any other proof than that of the two depositions. People v. Bur- 
 den, 9 P>arb. 4'J7. Where on a trial for perjury there is the positive testimony of one 
 witness in support of the indictment, the corroborating testimony required by the 
 statute to autliorize a conviction need not be equivalent to the positive testimony of 
 a witness. Hendricks v. State, 26 Ind. 493. [The corroborating testimony must cor- 
 roborate material testimony. It is not sufficient if it merely supjiort some indistinct 
 and immaterial matter. State v. Buie, 43 Tex. 532.] Tlie testimony of one witness, 
 supported by strong corroborative evidence as to the faLsity of the matter, sworn to 
 by the accused, is sufficient to sustain an indictment for perjury. State v. Raymond, 
 20 la. 582. The law does not require two witnesses to establish the giving of the tes- 
 timony, it only requires two witnesses to prove its falsity. State v. Wood, 17 la. 18. S. 
 To convict under an indictment for perjury, tlie falsity of the defendant's statement 
 must be proved by two witnesses, or if there is only one witness there must be strong 
 corroborating circumstances in addition. Peterson v. State, 74 Ala. 34.
 
 1072 PERJURY. 
 
 dence of one witness alone, for that is but the oath of one against one, 
 which leaves the matter even, and entitles the })risoner to an acquittal. 
 The prosecution must do more than that. They must turn the scale 
 by corroborating their witness. The degree of corroboration, how- 
 ever, which is necessary, is not definable, and any attempt to define it 
 will prove illusory. It must be something which, in the opinion of 
 the tribunal before which it is brought, is deserving of the name of 
 corroboration." Where there were three assignments of perjury upon 
 evidence relating to one and the same transaction, at one and the same 
 time and place, it seems to have been considered that the jury 
 ought not to convict on one of the assignments, although there were 
 several witnesses who corroborated the witness who spoke to such 
 assignment, on the facts contained in the other assignments. R. v. 
 *8581 *'^*^^^^e^' 12 Ad. & E. 317, 40 E. C. L. ; 3 Russ. Cri, 74, 
 J 5th ed. And it has since been held, by Tindal, C. J., that the 
 rule which requires two Avitnesses, or one witness and some sufficient 
 corroboration, applies to every assignment of perjury in an indictment. 
 R. V. Parker, Carr. & M. 639, 41 E. C. L. ; 3 Russ. Cri. 80, 5th ed. 
 In R. V. Boulter, 2 Den. C. C. R. 396 ; 21 L. J., M. C. 57, perjury 
 "was assigned on a statement made by the prisoner, upon a trial at 
 Nisi Prius, that in June, ]851, he owed no more than one quarter's 
 rent to his landlord; the prosecutor swore that the prisoner owed five 
 quarters' rent at that date; and to corroborate the prosecutor's evi- 
 dence a witness was called, and proved that in August, 1850, the pris- 
 oner had admitted to him that he then owed his landlord three or four 
 quarters' rent. This was held not to be sufficient corroborative evi- 
 dence to warrant a conviction, for the money might have been paid 
 intermediately. In a case of perjury on a charge of bestiality, the de-^ 
 fendant swore that he saw the prosecutor committing the offence, and 
 saw the flap of his trousers unbuttoned. To disprove this, the pros- 
 ecutor deposed that he did not commit the off'ence, and that his trous- 
 ers had no flap ; and to confirm him, his brother proved that at the 
 time in question the prosecutor Avas not out of his presence more than 
 three minutes, and his trousers had no flap. This Avas held by Pat- 
 teson, J., to be sufficient corroborative evidence to go to the jury, Avho 
 found the defendant guilty. R. v. Gardiner, 2 Moo. C. C. 95. j^., 
 to prove an alibi for B., had SAvorn that B. Avas not out of his sight 
 between the hours of 8 A. Jf. and 9 a. m, on a certain day, and on 
 this perjury Avas assigned; Patteson, J., lield that evidence by one wit- 
 ness that between those hours A. was at one place on foot, and by an- 
 other Avitness that between those hours B. was Avalking at another 
 place six miles off", Avas sufficient proof of the assignment of perjurv. 
 R. V. Roberts, 2 C. & K. 207, 61 E. C. L. 
 
 Where a statement by the prisoner himself is gi\'en in CAndence, 
 contradicting the matter sAvorn to by him, it has been held not to be 
 necessary to call two Avitnesses to prove the falsity ; one witness, Avith 
 proof of the admission, being sufficient. The defendant made infor- 
 mation, upon oath before a justice of the peace, that three women Avere 
 concerned in a riot at his mill (which was dismantled by a mob, on
 
 PEKJURY. 1073 
 
 account of the price of corn) ; and afterwards, at the sessions, when 
 the rioters were indicted, he was examined concerning those women, 
 and having been tampered with in their favor, he then swore that they 
 were not at the riot. There was no other evidence on the trial for 
 perjury to prove that the women were in the riot (which was the per- 
 jury assigned), but the defendant's information, which was read. The 
 judge thought this evidence sufficient, and the defendant was convicted 
 and transported. Anon., cor. Yates, J., and afterwards Lord Mans- 
 field, and Wilmot and Aston, JJ., concurred, 5 B. & A. 939, 940 (n), 
 7 E. C. L. ; 3 Russ. Cri. 76, 5th ed. So in a case where the defend- 
 ant had been convicted of perjury, charged in the indictment, to have 
 been committed in an examination before the House of Lords, and 
 the only evidence was a contradictory examination of the defendant 
 before a committee of the House of Commons, application was 
 made for a new trial, on the ground that in perjury two witnesses 
 were necessary, whereas, in that case, only one witness had been 
 adduced to prove the corpus delicti, viz., the witness who deposed to 
 the contradictory evidence given by the defendant, before the com- 
 mittee of the House of Commons, and further, it was insisted that the 
 *raere proof of a contradictory statement by the defendant on r^ttorq 
 another occasion was not sufficient, without other circumstances L 
 showing a corrupt motive, and negativing the probability of any mis- 
 take. But the court held, that the evidence was sufficient, the contra- 
 diction being by the party himself; and that the jury might infer the 
 motive from the circumstance, and the rule was refused. R. v. Knill, 
 5 B. & A. 929, note (a), 7 E. C. L. So w^here upon an indictment 
 for perjury, in an affidavit made by the defendant, a solicitor, to oppose 
 a motion in the Court of Chancery to refer his bill of costs for taxa- 
 tion, only one Avitness was called, and in lieu of a second witness, it 
 was proposed to put in the defendant's bill of costs, delivered by him 
 to the prosecutor, upon which it was objected that this was not suffi- 
 cient, the bill not having been delivered on oath ; Denman, C. J., 
 M^as clearly of opinion, that the bill delivered by the defendant was 
 sufficient evidence, or that even a letter written by the defendant con- 
 tradicting his statement on oath, would be sufficient to make it un- 
 necessary to have a second witness. R. v. Mayhew, 6 C. & P. 315, 
 25 E. C. L. There appears, however, to be an objection to this evi- 
 dence, which is not easily removed, namely, that there is nothing to 
 show which of the statements made by the defendant is the false one 
 where no other evidence of the falsity is given. Upon this subject 
 the following observations were made by Plolroyd, J. : " Although 
 you may believe that, on the one or the other occasion the prisoner 
 swore what was not true, it is not a necessary consequence that he com- 
 mitted perjury ; for there are cases in which a person might very 
 honestly and conscientiously swear to a particular fact from the best 
 of his recollection and belief, and from other circumstances, at a sub- 
 sequent time, be convinced that he was wrong, and swear to the reverse, 
 without meaning to swear falsely either time. Again, if a person 
 swears one thing at one time, and another at another, you cannot con- 
 68
 
 1074 PEEJURY. 
 
 vict where it is not possible to tell which is the true and which is the 
 false." 11. V. Jackson, 1 Lewin, C. C. 270. See also K. v. Hughes, 
 ante, p. 856. So in R. v. Harris, 5 B. & A. 926, 7 E, C. L., the 
 court of K. B. were of opinion (p. 937), that pei-jury could not be 
 legally assigned by showing contradictory depositions with an aver- 
 ment that each of them was made knowingly and deliberately, but 
 without averring or showing in which of the two depositions the false- 
 hood consisted. So where the defendant was charged with perjury 
 committed on a trial at the sessions, Gurney, B., held that a deposition 
 made by the defendant before the magistrate, entirely different from 
 what he swore at the trial, was not in itself sufficient proof that the 
 evidence he gave at the sessions was false, but that other confirmatory 
 proof must be adduced to satisfy the jury that he swore falsely at the 
 trial. Strong confirmatory evidence having been given of the truth 
 of the deposition, the defendant was found guilty. R. v. Wheatland, 
 8 C. & P. 238, 34 E. C. L. See Mr. Greaves's note on this case, 3 
 Russ. Cri. 77, 5th ed. 
 
 On an indictment for perjury, the prisoner was charged with having 
 falsely sworn that certain invoices, bearing certain dates, were pro- 
 duced by her to one C. C. was called, and sM^ore that she had not 
 produced the invoices which she had deposed to, but that she had pro- 
 duced others : and he produced a memorandum he had made privately 
 at the time of the dates of the invoices produced, which showed that 
 they were not the same as those sworn to by the prisoner. Cockburn, 
 C J., held that the memorandum was a sufficient corroboration. R. 
 V.Webster, 1 F. & F. 515. 
 
 *RC01 *The prisoner, who was a policeman, having laid an infor- 
 ^ mation against a publican for keeping his house open after law- 
 ful hours, swore on the hearing that he knew nothing of the matter, 
 except what he had been told, and that " he did not see any person 
 leave the defendant's house after eleven " on the night in question. It 
 was proved by the magistrate's clerk that the prisoner, when laying 
 the information, said that he had seen four men leave the house after 
 eleven, and that he could swear to one as W. It was also proved, 
 that on two other occasions the prisoner made a similar statement to 
 two other witnesses, and that W. and others did in fact leave the house 
 after eleven o'clock on the night in question. The prisoner moreover 
 admitted at the hearing of the summons that he had received money 
 from the publican to settle the matter. It was held that the evidence 
 was sufficient to prove the perjury assigned, and that the conviction 
 was right. R. v. Hook, Dears. & B. C. C. 606 ; 27 L. J., M. C. 
 222. Benjamin Linton was indicted for that he applied to a surrogate 
 to grant a marriage licence and unlawfully contriving to obtain such 
 licence in fraud of a certain Act, took his oath, etc., before the surro- 
 gate, and then falsely swore amongst other things that he had the con- 
 sent of the father of the girl by which means he unlawfully obtained 
 the licence. Archibald, J., York Spring Assizes, 1874, ruled that two 
 witnesses of the falsity of the allegation of consent were necessary ; for 
 that the indictment disclosed an offence similar to perjury, and that
 
 PERJURY. 1075 
 
 the objection was that there was only oath against oath. It was true 
 the first oath was not made in a court of justice, but if that objection 
 prevailed the father alone could convict the husband of perjury, but 
 the husband could not alone convict the father if he falsely swore in 
 court that he had not consented. 
 
 The folloNving observations on this subject, by an able writer on 
 criminal law, are well deserving of attention. Where de}X)sitions, 
 contrary to each other, have beefi emitted in the same matter by the 
 same person, it may with certainty be concluded that one or the other 
 is false. But it is not relevant to infer perjury in so loose a manner ; 
 the prosecutor must go a step further, and specify distinctly which of 
 the two contains the falsehood, and peril his case upon the means he 
 possesses of proving perjury in that deposition. To admit the 
 opposite course, and allow the prosecutor to libel on both depositions, 
 and make out his charge by comparing them together, without dis- 
 tinguishing which contains the truth and which the falsehood, would 
 be directly contrary to the precision justly required in criminal pro- 
 ceedings. In the older practice this distinction does not seem to have 
 been distinctly recognized ; but it is now justly considered indis- 
 pensable that the perjury should be specified as existing in one, and 
 the other deposition referred to in modum prohatlonis, to make out, 
 along with other circumstances, where the truth really lay. Alison, 
 Princ. Crim. Law of Scot. 475. These remarks are applicable to the 
 cases in our law, in which the evidence of one witness, viz., the party 
 producing the contradictory statement, and the statement itself, have 
 been allowed as sufficient evidence to prove the falsity of the oath. 
 Such statements may be used as strong corroborations of the prose- 
 cutor's case, and as such they are admitted in the Scotch law. A 
 party cannot be convicted (says Mr. Alison) of perjury, upon the evi- 
 dence merely of previous or subsequent declarations emitted by him, 
 inconsistent with what he has sworn ; because in dubio it must be 
 presumed that what was said under the sanction of an oath was the 
 *truth, and the other an error or falsehood, but both such dec- r*o/.-i 
 larations and written evidence under his hand, inconsistent ■- 
 with what he has sworn, form important articles, which, with others, 
 will be sufficient to make the scales of evidence preponderate against 
 him. Principles of Crim. Law of Scot. 481. 
 
 Statutes relating to perjury. The principal statutory enactment 
 respecting perjury is the 5 Eliz. c. 9 (the 28 Eliz. c. 1, L), the opera- 
 tion of which is, howev^er, more confined than that of the common 
 law ; and as it does not (see the 5 Eliz. c. 9, s. 1 3) restrain in any 
 manner the punishment of perjury at common law, it has seldom 
 been the practice to proceed against offenders by indictment under 
 this statute. 
 
 By s. 3, the procuring any witness to commit perjury in any mattei 
 in suit, by writ, etc., concerning any lands, goods, etc., or when sworn 
 in perpetuam rei memoriam. is punishable by the forfeiture of forty 
 pounds.
 
 1076 PERJURY. 
 
 Sect. 5 enacts, that no person or persons, being so convicted or 
 attainted, be from tliencefbrth received as a witness to be deposed and 
 sworn in any court of record (within England, Wales, or the marches 
 of the same), until such time as the judgment given against the said 
 person or persons shall be reversed by attaint or otherwise ; and that 
 upon every such reversal, the parties grieved to recover his or their 
 damages against all and every such person and persons as did 
 procure the said judgment so reversed, to be first given against 
 them, or any of them, by action or actions to be sued upon his or 
 their case or cases, according to the course of the common laws of 
 the realm. 
 
 Sect. 6 enacts, that if any person or persons, either by the subor- 
 nation, unlawful procurement, sinister persuasion, or means of any 
 others, or by their own act, consent, or agreement, wilfully and cor- 
 ruptly commit any manner of wilful perjury, by his or their depo- 
 sition in any of the courts before mentioned, or being examined ad 
 pe7'petuam rei memoriam, that then every person or persons so offend- 
 ing, and being thereof duly convicted or attainted by the laws of 
 this realm, shall for his or their said offence lose and forfeit twenty 
 pounds, and to have imprisonment by the space of six months, with- 
 out bail or mainprize ; and the oath of such person or persons so 
 offending, from thenceforth not to be received in any court of record 
 within this realm of England and Wales, or the marches of the same, 
 until such time as the judgment given against the said person or per- 
 sons shall be reversed by attaint or otherwise ; and that, upon every 
 such reversal, the parties grieved to recover his or their damages 
 against all and every such person and persons as did procure the said 
 judgment so reversed to be given against them, or any of them, by 
 action or actions to be sued upon his or their case or cases, according 
 to the course of the common lawa of this realm. 
 
 It appears that a person cannot be guilty of perjury within the 
 meaning of this statute, in any case wherein he may not be guilty 
 of subornation of perjury within the same statute, and as the subor- 
 nation of perjury there mentioned, extends only to subornation " in 
 matters depending in suit by writ, action, bill, plaint, or information, 
 in anywise concerning lands, tenements, or hereditaments, or goods, 
 chattels, debts, or damages, etc.," no perjury upon an indictment or 
 criminal information can bring a man within the statute. Hawk. 
 
 *8621 *"^'^' ^' ^' ^' ^^' ^' ^^ ' Bac. Ab. Perjury (B). The statute 
 J only extends to perjury by witnesses, and therefore no one comes 
 within the statute by reason of a false oath in an answer to a bill in 
 chancery, or by swearing the peace against another, or in a presentment 
 made by him as homager of a court baron, or for taking a false oath 
 before commissioners appointed by the king. Hawk. P. C b. 1, c. 
 69, s. 20. It seems that a false oath taken before the sheriff, on an 
 inquiry of damages, is within the statute. Id. s. 22. No false oath 
 is within the statute which does not give some person a just cause of 
 complaint ; for otherwise it cannot })e said that any person was 
 grieved, hindered, or molested. In every prosecution on the statute,
 
 PERJURY. 1077 
 
 therefore, it is necessary to set forth the record of the cause wlierein 
 the perjury complained of is supposed to have been committed, and 
 also to prove at the trial of the cause, that there is actually such a 
 record, by producing it, or a true copy of it, which must agree with 
 that set forth in the pleadings, without any material variance ; other- 
 wise it cannot legally appear that there ever was such a suit deperid- 
 ing, wherein the party might be prejudiced in the manner supposed. 
 If the action was by more than one, the false oath must appear to 
 have been prejudicial to all the plaintiffs. Hawk. P. C. b. 1, c. 69, 
 s. 23; Bac. Ab. Perjury (B); 3 Russ. Cri. 33, 5th ed. 
 
 Various provisions for facilitating the punishment of persons guilty 
 of perjury are contained in the 14 & 15 Vict. c. 100, sect. 19, which 
 provides that any court, judge, justice, etc., may direct a person guilty 
 of perjury in any evidence, etc., to be prosecuted. By sect. 20, in- 
 dictments for perjury are simplified. By sect. 21 an indictment for 
 subornation of perjury is simplified. See these sections in the Ap- 
 pendix. 
 
 Sect. 22 enacts that "a certificate containing the substance and 
 effect only (omitting the formal part) of the indictment and trial for 
 any felony or misdemeanor, purporting to be signed by the clerk of 
 the court or other officer having the custody of the records of the 
 court where such indictment was tried, or by the deputy of such clerk 
 or other officer (for which certificate a fee of six shillings and eight- 
 pence and no more shall be demanded or taken), shall, upon the trial 
 of any indictment for perjury or subornation of perjury, be sufficient 
 evidence of the trial of such indictment for felony or misdemeanor, 
 without proof of the signature or official character of the person appear- 
 ing to have signed the same." 
 
 By the 22 & 23 Vict. c. 17, supra, p. 192, no indictment for perjury 
 or subornation of perjury is to be preferred without previous autho- 
 rization. 
 
 But see now 30 & 31 Vict. c. 35, s. 1, in Appendix. 
 
 A person having given evidence at a trial, the judge did not give 
 any direction to prosecute him for perjury. No application was 
 made to the judge for his consent at the time of the alleged perjury, 
 but some days afterwards the prosecutor's attorney went before the 
 judge without summons or affidavit, and laid before him a newspaper 
 containing a report of the trial. The judge wrote upon it, " I consent 
 to the prosecution of this case," and signed his name; this was held 
 to be a sufficient consent within the Act. R. v. Bray, 3 B. & S. 255, 
 113 E. C. L.; 32 L. J., M. C. 11. 
 
 In various statutes clauses have been inserted whereby the giving 
 of false evidence in respect of the matters with which the statute deals 
 is made perjury or is made punishable as perjury. 
 
 *Thus by the 5 & 6 Will. 4, c. 62, ss. 5, 21, and see ante, p. r*o/:>o 
 490, false declarations relating to the revenue and other mat- *- 
 ters are made misdemeanors. So also by the 27 & 28 Vict. c. 19, 
 persons giving false evidence upon courts martial are deemed guilty of 
 perjury (see R. v. Heane, ante, p. 843). So by the Debtors Act (32 &
 
 1078 PERJURY. 
 
 33 Vict. c. 62, s. 14), a creditor making false statements is guilty of 
 a misdemeanor. So under the Marriage Acts persons making false 
 declarations are liable to the penalties of perjury (see 19 & 20 Vict. c. 
 119, ss. 2, 18). False evidence given on oath before a referee appointed 
 under the Agricultural Holdings Act, 1875 (38 & 39 Vict. c. 92) is by 
 s. 26 made the subject of perjury ; also under the Agricultural Hold- 
 ings Act, 1883 (46 & 47 Vict. c. 61, see sect. 13); also l)y parliamen- 
 tary candidate or election agent, under 46 & 47 Vict. c. 51, s. 33 (7). 
 So also before Public Works Loan Commissioners under 38 & 39 Vict, 
 c. 89, s. 44. Also before inquiries held by direction of the Commis- 
 sioners of Customs, 39 & 40 Vict. c. 36, s. 36. (And see also " False 
 Declarations," ante, p. 490.) 
 
 Punishment. Perjury is punishable at common law with fine and 
 imprisonment, at the discretion of the court. 
 
 By the 2 Geo. 2, c. 25, s. 2, "the more effectually to deter persons 
 from committing wilful and corrupt perjury or subornation of per- 
 jury," it is enacted, that " besides the punishment already to be in- 
 flicted by law for so great crimes, it shall and may be lawful for the 
 court or judge before whom any person shall be convicted of wilful 
 and corrupt perjury, or subornation of perjury, according to the laws 
 now in being, to order such person to be sent to some house of cor- 
 rection within the same covinty, for a time not exceeding seven years, 
 there to be kept to hard labor during all the said time, or otherwise to 
 be transported to some of his Majesty's plantations beyond the seas, 
 for a term not exceeding seven years, as the court shall think most 
 proper ; and thereupon judgment shall be given, that the person con- 
 victed shall be committed or transported accordingly, over and beside 
 such punishment as shall be adjudged to be inflicted on such person 
 agreeable to the laws now in being ; and if transportation be directed, 
 the same shall be executed in such manner as is or shall be provided 
 by law for the transportation of felons ; and if any person so com- 
 mitted or transported shall voluntarily escape or break prison, or re- 
 turn from transportation, before the expiration of the time for which 
 he shall be ordered to be transported as aforesaid, such person being 
 thereof lawfully convicted shall suffer death as a felon without benefit 
 of clergy, and shall be tried for such felony in the county wdiere he so 
 escaped, or where he shall l)e apprehended." 
 
 By the 3 Geo. 4, c. 114 (the 7 Geo. 4, c. 9, I.), persons guilty of 
 perjury or subornation of perjury may be sentenced to hard labor. 
 
 By the 7 Will. 4 & 1 Vict. c. 23 (U. K.), the punishment of the 
 pillory is abolished. 
 
 Postponing trials for perjury. It is the practice at the Central 
 Criminal Court not to try an indictment for perjury arising out of a 
 civil suit, while that suit is in any way undetermined, except in cases 
 where the court in which it is pending postpone the decision of it, in 
 order that the criminal charge may be first disposed of. E. v. Ash- 
 burn, 8 C. & P. 50, 34 E. C. L.
 
 PERJURY. 1079 
 
 ♦subornation of perjury. [*864 
 
 Subornation of perjury, at common law, is the procuring a man 
 to take a false oath amounting to perjury, the man actually taking 
 such oath ; but if he do not actually take it, the person by whom he 
 was incited is not guilty of subornation of perjury; yet he may be 
 punished by fine and corporal punishment.' Hawk. P. C. b. 1, c. 
 69, s. 10. 
 
 Upon an indictment for subornation of perjury, the prosecutor must 
 prove, 1, the inciting by the defendant, and that he knew that the evi- 
 dence to be given was false ; and 2, the taking of the false oath by the 
 witness, etc. See now 14 & 15 Vict. c. 100, s. 21, ante, p. 862, and 
 see the Statutes in Appendix. 
 
 Proof of the incitement. The incitement may be proved by 
 calling the party who was suborned. The knowledge of the defend- 
 ant that the evidence about to be given would be false will probably 
 appear from the evidence of the indictment, or it may be collected fi'om 
 other circumstances. 
 
 Proof of the taking of the false oath. In general the proof of 
 the perjury will be the same as upon an indictmentfor perjury, against 
 the witness who perjured himself; and even if the latter has been con- 
 victed, it will not, as it seems, be sufficient against the party who had 
 suborned him, to prove merely the record of the conviction ; but the 
 whole evidence must be gone into as upon the former trial. The de- 
 fendant was indicted for procuring one John Macdaniel to take a false 
 oath. To prove the taking of the oath by Macdaniel, the record of 
 his conviction for perjury was produced. But it was insisted for the 
 defendant, that the record was not of itself sufficient evidence of the 
 fact ; that the jury had a right to be satisfied that such conviction was 
 correct ; that the defendant had a right to controvert the guilt of Mac- 
 daniel, and that the evidence given on the trial of the latter ought to 
 be submitted to the consideration of the present jury. 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. R. v. 
 
 ^ Case of Francis et al., 1 Kog. Eec. 121. Subornation of perjury may be proved 
 by the testimony of one witness. Commonwealth v. Douglass, 5 Mete. 241. Though 
 a party who is charged with subornation of perjury, knew that the testimony of a 
 witness whom he called would be false, yet if he did not know that the witness would 
 wilfully testify to a fact knowing it to be false, he cannot be convicted of tlie crime 
 charged. To constitute subornation of peijury, the party charged must procure the 
 comm ssion of the perjury by inciting, instigating or persuading the witness to com- 
 mit the crime. Commonwealth v. Douglass, 5 Mete. 241. On the trial of A. for 
 suborning B. to commit perjury on a former trial of A. for another ofibnce, a witness 
 testified that B. on that former trial, swore that he came from L. as a witness on that 
 trial in consequence of a letter written to him by A. Held, that, although this was 
 not evidence that A. wrote such letter to B., yet it was evidence that B. so testified in 
 the presence of A., and as A. thereby had an opportunity to prove, but di<l not prove, 
 on the trial for suborning B., in what manner or by whose agency B. came from L., 
 such testimony of B. might be considered by the jury in connection with the other 
 evidence in the case. Id. S.
 
 1080 PERJURY. 
 
 Reilly, 1 Leach, 455. Upon this case Mr. Starkie has made the 
 followiifg observations : — This authority seems at first sight to be 
 inconsistent with that class of cases in which it has been held that 
 as against an accessory before the fact to a felony, the record of the 
 conviction of the principal is evidence of the fact. If the prisoner, 
 instead of being indicted as a principal, in procuring, etc., had been 
 indicted as accessory before the fact, in procuring, etc., the record 
 would clearly have been good primd facie evidence of the guilt of 
 the principal. It is, however, to be recollected that this doctrine rests 
 rather upon technical and artificial grounds than on any clear and 
 satisfactory principle of evidence. 2 Stark. Ev. 627, 2nd ed. It 
 may also be observed that the indictment for subornation of per- 
 jury does not set forth the conviction of the party who took the 
 false oath, but only the preliminary circumstances and the taking of 
 the oath ; forming an allegation of the guilt of the party, and not of 
 his conviction ; and in R. v. Turner, 1 Moo. C. C. 347, ante, pp. 53, 
 56, the judges expressed a doubt whether, if an indictment against a 
 *8fi ^1 *^6cei ver stated, not the conviction, but the guilt of the princi- 
 -l pal felon, the record of the conviction of the principal would 
 be sufficient evidence of the guilt. 
 
 Perjury and subornation of perjury are made extradition crimes by 
 36 & 37 Vict. c. 60, sched. 
 
 PEKSONATION, See False Peesonation, ante, p. 493.
 
 PIGEONS. 1081 
 
 ♦PIGEONS. 
 
 [*866 
 
 It has been seen (ante, pp. 526, 527) (hat larceny may be commit- 
 ted of tame pigeons even although unconfincd ; and by the 24 & 25 
 Vict. c. 96, s. 23, it is provided, that " whosoever shall unlawfully and 
 wilfully kill, wound, or tiike any house dove or pigeon, under such 
 circumstances as shall not amouut to larceny at common law, sliall, on 
 conviction before a justice of the peace, forfeit and pay over and above 
 the vakie of the bird any sum not exceeding two pounds." 
 
 Where A. gave notice to fi. that if B.'s pigeons continued to come 
 on to his laud he would shoot them, and he afterwards did shoot one 
 and left it on the ground, it was held that this was not an unlawful 
 killing Avithin the meaning of the statute, for the section applies only 
 to such acts as would be of the nature of larceny, supposing pigeons 
 could be the subject of larceny. Taylor v. Newman, 4 B. & S. 89, 
 116 E. C. L.; 32 L. J., M. C. 186. (See this case approved of in 
 Hudson V. Macrae, 4 B. & S. 592, 116 E. C. L.)
 
 1082 PIRACY. 
 
 *3g7l *PIEACY. 
 
 PAGE 
 
 OiFence at common law ...•••<•• 867 
 
 Stat. 11 & 12 Will 3, c. 7 * . 867 
 
 8 Geo. 1, c. 24 868 
 
 18 Geo. 2, c. 30 •...,.... 868 
 
 5 Geo. 4, c. 113 — dealing in slaves 868 
 
 Proof of the piracy 869 
 
 with regard to the persons guilty 870 
 
 with regard to accessories 870 
 
 Venue and trial 871 
 
 Punishment under the 7 Will. 4 & 1 Vict. c. 88 . * . . 871 
 
 Offence at common law. The offence of piracy at common law 
 consists in committing those acts of robbery and depredation upon 
 the high seas, which, if committed on land, would have amounted to 
 felony there ; though it was no felony at common law. 2 East, P. C. 
 796 ; 4 Bl. Com. 72 ; Hawk. P. C. c. 37, s. 4.^ Before the 28 Hen. 8, 
 c. 15, the oifence was only punishable by the civil law, and that 
 statute does not render it a felony. By other statutes, however, 
 which will be presently noticed, the offence is made felony, and the 
 nature of the offence which shall constitute piracy is specifically 
 described. 
 
 " Tlie offence of piracy at common law is nothing more than 
 robbery upon the high seas ; but by statutes passed at various times, 
 and still in force, many artificial offences have been created, which 
 are to be deemed to amount to piracy." Report of Comm. of Crim. 
 Law. 
 
 Stat. 11 & 12 Will. 3, c. 7. By the 11 & 12 Will. 3, c. 7 (E.) s. 8, 
 " if any of his Majesty's natural-born subjects or denizens of this 
 kingdom shall commit any piracy or robbery, or any act of hostility 
 against others, his Majesty's subjects upon the sea, under color of 
 any commission from any foreign prince or state, or pretence of 
 authority from any person whatsoever, such offender or offenders 
 shall be deemed, adjudged, and taken to be pirates, felons, and 
 robbers, etc." 
 
 By s. 9, " if any commander, or master of any ship, or any seaman 
 or mariner, shall in any place where the admiral has jurisdiction, 
 betray his trust, and turn pirate, enemy, or rebel, and piratically 
 and feloniously run away with his, or their ship or ships, or any 
 barge, boat, ordnance, ammunition, goods, or merchandise, or yield 
 them up voluntarily to any pirate ; or shall bring any seducing mes- 
 
 * United States r. Chapels et al., 3 Wheel. C. C. 205 ; 1 Kent's Comm., lecture ix, 
 Mr. Duponceau's translation of Bynhershoeck on War, c. 17, p. 128, n; Bass's Case, 
 4 Rog. Rec. 161 • 2 Wheel. C. C. Preface, p. xxvii. S.
 
 PIRACY. 1083 
 
 sage from any pirate, enemy, or rebel ; or consult, combine, or con- 
 federate with, or attempt, or endeavor to corrupt any commander, 
 master, officer, or mariner, to yield up, or run away with any ship 
 *goods, or merchandise, or turn pirates ; or go over to pirates ; r:i:onn 
 or if any person shall lay violent hands on his commander, L 
 whereby to hinder him from iigiiting in defence of his ship and goods 
 committed to his trust, or shall confine his master, or make, or en- 
 deavor to make, a revolt in his ship, he shall be adjudged, deemed, and 
 taken to be a pirate, felon, and robber [and sufiei- death," etc.]. 
 
 Upon the above section (9) of the 11 & 12 Will. 3, c. 7, it has been 
 decided by a court of twelve judges, that the making, or endeavoring 
 to make, a revolt on board a ship, with a view to procure a redress of 
 what the prisoners may think grievances, and without any intent to 
 run away with the ship, or to commit any act of piracy, is an offence 
 within the statute. R. v. Hasting, 1 Moo. C. C. 82. 
 
 Stat. 8 Geo. 1, c. 24. By the 8 Geo. 1, c. 24 (E.), s. 1, " in case any 
 person or persons belonging to any ship or vessel whatsoever, upon 
 meeting any merchant ship or vessel on the high seas, or in any port, 
 haven, or creek whatsoever, shall forcibly board or enter into such 
 ship or vessel, and, though they do not seize or carry off such ship or 
 vessel, shall throw overboard or destroy any part of the goods or 
 merchandise belonging to such ship or vessel, the person or persons 
 guilty thereof shall in all respects be deemed and punished as pirates 
 as aforesaid." 
 
 And by the same section, "if any commander or master of any ship 
 or vessel, or any other person or persons, shall anywise trade with 
 any pirate, by truck, barter, exchange, or in any other manner, or 
 shall furnish any pirate, felon, or robber upon the seas, with any 
 ammunition, provision, or stores of any kind ; or shall fit out any 
 ship or vessel knowingly, and with a design to trade with any pirate, 
 felon, or robber upon the seas : or if any person or persons shall any- 
 ways consult, combine, confederate or correspond with any pirate, 
 felon, or robber on the seas, knowing him to be guilty of such piracy, 
 felony, or robbery, — every such offender shall be deemed and adjudged 
 guilty of piracy, felony, and robbery." 
 
 Stat. 18 Geo, 2, c. 30. By the 18 Geo. 2, c. 30 (E.), all persons 
 being natural-born subjects or denizens of his Majesty, who, during 
 any war, shall commit any hostilities upon the sea, or in any haven, 
 river, creek, or place where the admiral or admirals have power, au- 
 thority, or jurisdiction, against his Majesty's subjects, by virtue or 
 under color of any commission from any of his Majesty's enemies, or 
 shall be any other ways adherent, or giving aid or comfort to his 
 Majesty's enemies upon the sea, or in any haven, river, creek, or place 
 where the admiral or admirals have power, etc., may be tried as pirates, 
 felons, and robbers in the court of admiralty, in the same manner as 
 pirates, etc., are by the said Act (11 & 12 Will. 3) directed to be tried, 
 [and shall suffer death].
 
 1084 PIRACY. 
 
 Under this statute it has been held, that persons adhering to the 
 king's enemies, by cruising in their ships, may be tried as pirates 
 under the usual commission granted by virtue of the statute 28 lien, 
 8. R. V. Evans, 2 East, P. C. 798. 
 
 Stat. 5 Geo. 4, c. 113 — dealing in slaves. By the 5 Geo. 4, c. 11.3 
 (U. K.),s. 9, the carrying away, conveying, or removing of any person 
 upon the high seas for the }>urpose of his being imported or brought 
 into any place as a slave, or being sold or dealt with as such, or the 
 embarking or receiving on board any person for such purpose, is made 
 *8r9l *P^^'^^y> felony, and robbery, punishable with death. By sect. 
 -I 10, the dealing in slaves, and other offences connected therewith, 
 are made felony. 
 
 Now, by the 7 Will. 4 & 1 Vict. c. 91 (U. K.), the punisliracnt of 
 death, imposed by the ninth section of the above statute, is abolished, 
 and transportation for life, etc., substituted. 
 
 The provisions of the statute 5 Geo. 4, c. 113, are not confined to 
 acts done by British subjects in furtherance of the slave trade in 
 England or the British colonies, but apply to acts done by British 
 subjects in furtherance of that trade in places which do not form part 
 of the British dominions. Per Maule and Wightman, JJ., R. v. 
 Zulueta, 1 C. & K. 215, 47 E. C. L. In order to convict a party 
 wdio is charged with having employed a vessel for the purpose of slave 
 trading, it is not necessary to show that the vessel which carried out 
 the goods was intended to be used for bringing back slaves in return ; 
 but it will be sufficient if there was a slave adventure, and the 
 vessel was in any way engaged in the advancement of that adventure. 
 Id. 
 
 On the 26th February, 1845, the Felicidade, a Brazilian schooner, 
 fitted up as a slaver, surrendered to the armed boats of her Majesty's 
 ship Wasp. She had no slaves on board. The captain and all his 
 crew, except Majaval and three others, were taken out of her and put 
 on board the Wasp. On the 27th February, the three others were 
 taken out and put on board the Wasp also. Cerqueira, the captain, 
 was sent back to the Felicidade, which was then manned with sixteen 
 British seamen, and placed under the command of lieutenant Stupart. 
 The lieutenant was directed to steer in pursuit of a vessel seen from 
 the Wasp, which eventually turned out to be the Echo, a Brazilian 
 brigantine, having slaves on board, and commanded by Serva, one of 
 the prisoners. After a chase of two days and nights, the Echo sur- 
 rendered, and was then taken possession of by Mr. Palmer, a mid- 
 shipman, who went on board her, and sent Serva and eleven of the 
 crew of the Echo to the Felicidade. The next morning lieutenant 
 Stupart took command of the Echo, and placed Mr. Palmer and nine 
 British seamen on board the Felicidade in charge of her and the pris- 
 oners. The prisoners shortly after rose on Mr. Palmer and his crew, 
 killed tliem all, and ran away with the vessel. She was recaptured 
 by a British vessel, and the prisoners were brought to this country, 
 and tried at Exeter for murder. The jury found them guilty. The
 
 PIRACY. 1085 
 
 foundation of the conviction pursuant to the summing up of the 
 learned baron (Piatt), who tried the case, was that the Felicidade was 
 in the lawful custody of her Majesty's officers, that all on board that 
 vessel were within her Majesty's admirahy jurisdiction ; and that the 
 jury should find the prisoners guilty of murder, if satisfied by the 
 evidence that they plotted together to slay all the P]nglish on board, 
 and run away with the vessel ; that, in carrying their design into 
 execution, Majaval slew Mr. Palmer, by stabbing him and throwing 
 him overboard, and that the other prisoners were present, aiding and 
 assisting Majaval in the couuuission of the murder. On a case 
 reserved for the opinion of the judges, objections to these points 
 were argued by the counsel for the prisoners, and the conviction 
 was held to be wrong. Reg. v. Serva and others, 1 Den. C. C. E,. 
 104. 
 
 Proof of the piracy. The prosecutor must give evidence of facts, 
 *which, had the transaction occurred within the body of a county, r*v.r-rv 
 would have rendered the oifender guilty of larceny or robbery >- 
 at common law. He must therefore show a taking animo furandi and 
 lucri causd. It is said that if a ship is attacked by a pirate, and the 
 master, for her redemption, gives his oath to pay a certain sum, though 
 there is no taking, yet it is piracy by the law marine, but by the com- 
 mon law there must be an actual taking, though but to the value of a 
 penny, as in robbery. 1 Beawes, Lex Merc. 25, citing 44 Edw. 3, 
 14, 4 Hen. 4. If a ship is riding at anchor, with part of the marines 
 in her boat, and the rest on shore, so that none remain in the ship, if 
 she be attacked and robbed, it is piracy. 1 Beawes, Lex Merc. 253, 
 citing 14 Edw. 3, 115. 
 
 Proof with regard to the persons guilty of piracy. The subject 
 of a foreign power in amity with this country may be punished for 
 piracy committed upon English property. 1 Beawes, Lex Merc. 251. 
 A person having a special trust of goods will not be guilty of piracy 
 by converting them to his own use ; as where the master of a vessel 
 with goods on board, ran the goods on shore in England, and burnt 
 the ship with intent to defraud the owners and insurers, on an indict- 
 ment for piracy and stealing the goods, it Avas held to be only a breach 
 of trust, and no felony, and that it could not be piracy to convert the 
 goods in a fraudulent manner, until the special trust was determined. 
 R. V. Mason, 2 East, P. C. 796 ; Mod. 74. But it is otherwise Avith 
 regard to the mariners. Thus where several seamen on board a ship 
 seized the captain, he not agreeing with them, and after putting him 
 ashore, carried away the ship, and subsequently committed several 
 piracies, it was held that this force upon the captain, and carrying 
 away the ship, was piracy. R. v. May, 2 East, P. 0. 796. The pris- 
 oners Avere con\'icted upon a count charging them Avith feloniously 
 and piratically stealing sixty -five fathoms of cable, etc., upon the high 
 seas, Avithin the jurisdiction of the admiralty. It appeared that they 
 were Deal pilots, avIio, having been applied to by the master to take
 
 1086 PIRACY. 
 
 the vessel into Rarasgate, had, in collusion with him, cut away the 
 cable and part of the anchor, which had before been broken, for the 
 pur])i)se of causing an average loss to the underwriters. It was ob- 
 jected that the oifence of the prisoners was not larceny, having been 
 committed by them jointly witli the master of the vessel, not for the 
 purpose of defrauding the owners, but for the purpose of defrauding 
 the underwriters for the benefit of the owners. A majority of the 
 judges, however, held the conviction right. E,. v. Curling, Russ. & 
 Ryri23. 
 
 Proof with regard to accessories. Accessories to piracy were tri- 
 able only by the civil law, and if their offence was committed on land, 
 they were not punishable at all before the 11 & 12 Will. 3, c. 7, s. 10. 
 And now by the 8 Geo. 1, c. 24, s. 3, all persons whatsoever, who, by 
 the 11 & 12 Will. 3, c. 7, are declared to be accessory or accessories to 
 any piracy or robbery therein mentioned, are declared to be principal 
 pirates, felons, and robbers, and shall be inquired of, heard, deter- 
 mined, and adjudged, in the same manner as persons guilty of piracy 
 and robbery may, according to that statute, and shall sufier death in 
 like manner as pirates, etc. 
 
 The knowingly abetting a pirate within the body of a county, is 
 not triable at common law. Admiralty case, 6 Coke Rep. pt. 13, p. 51. 
 
 * 
 
 ^--l -| * Venue and trial. The decisions with respect to the venue 
 J for oifences committed on the high seas have been stated, anie^ 
 p. 254. 
 
 By the 46 Geo. 3, c. 54, all treasons, piracies, felonies, robberies, 
 murders, cons})iracies, and other offences, of what nature or kind 
 soever, committed upon the sea, or in any haven, river, creek, or place, 
 where the admiral or admirals have power, authority, or jurisdiction, 
 may be inquired of, tried, etc., according to the common course of the 
 laws of this realm ; and for offences committed upon the land within this 
 realm, and not otherwise, in any of his Majesty's islands, plantations, 
 colonies, dominions, forts, or factories, under and by virtue of the 
 king's commission or commissions, under the great seal of Great 
 Britain, to be directed to any such four or more discreet persons as the 
 lord chancellor, etc., shall from time to time think fit to appoint. The 
 commissioners are to have the same powers as commissioners under 
 the 28 Hen. 8. 
 
 Punishment under the 7 Will. 4 & 1 Vict. c. 88. By the 7 Will. 
 4 & 1 Vict. c. 88 (U. K.), so much of the 28 Hen. 8, c. 15 ; the 11 
 & 12 Will. 3, c. 7; the 4 Geo. 1, c. 11, s. 7 ; the 8 Geo, 1, c. 24; 
 and the 18 Geo. 2, c. 30, as relates to the punishment of the crime of 
 piracy, or of any offence, by any of the said Acts, declared to be 
 piracy, or of accessories thereto respectively, are repealed. 
 
 By s. 2, "whosoever with intent to commit, or at the time of or 
 immediately before, or immediately after committing the crime of 
 piracy in respect of any ship or vessel, shall assault, with intent to
 
 PIRACY, 1087 
 
 murder, any person being on board of or belonging to such ship or 
 vessel, or shall stab, cut or wound any such person, or unlawfully do 
 any act by which the life of such person may be endangered, shall be 
 guilty of felony, and being convicted thereof shall suffer death as a 
 felon." 
 
 By s. 3, " whosoever shall be convicted of any offence which by any 
 of the Acts hereinbefore referred to amounts to the crime of piracy, 
 and is thereby made punishable with death, shall be liable, at the dis- 
 cretion of the court, to be transported beyond the seas [now penal 
 servitude] 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 s. 4, " in the case of every felony punishable under this Act, 
 every principal in the second degree, and every accessory before the 
 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 iniprisoned for any term not ex- 
 ceeding two years." 
 
 By s. 5, in cases of imprisonment the court may award hard labor, 
 and solitary confinement not exceeding one month at any one time, 
 and three months in any one year.
 
 1088 POISON. 
 
 *372'| *POisoN. 
 
 PAGE 
 
 Administering poison with intent to murder 872 
 
 Attempting to administer poison with intent to murder . . 872 
 
 Adniiiiisti'riiig drugs with intent to commit an indictable oifence . 872 
 Adniiiiistcriiig poison so as to endanger life or inflict grievous 
 
 bodily harm 872 
 
 Administering poison with intent to injure, aggrieve, or annoy . 872 
 
 Persons charged with felony may be convicted of misdemeanor 873 
 
 Poisoning fish 873 
 
 Administering drugs to procure abortion 873 
 
 Proof of administering 873 
 
 Proof of the intent 873 
 
 Sale of poisoned grain, seed, or flesh 873 
 
 Administering poison with intent to murder. See 24 & 25 
 Vict. c. 100, s. 11, supra, p. 809. 
 
 Attempting to administer poison with intent to murder. See 
 
 24 & 25 Vict. c. 100, s. 14, supra, p. 809. 
 
 Administering drugs with intent to commit an indictable 
 offence. By the 24 & 25 Vict. c. 100, s. 22, "whosoever shall un- 
 lawfully apply or administer to or cause to be taken by, or attempt to 
 apply or administer to, or attempt to cause to be administered to or 
 taken by, any person, any chloroform, laudanum, or other stupefying 
 or overpowering drug, matter, or thing, with intent in any of such 
 cases thereby to enable himself or any other person to commit, or 
 with intent in any of such cases thereby to assist any other person in 
 committing any indictable offence, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any other term not less than 
 three [now five] years, or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labor." 
 
 Administering poison so as to endanger life or inflict grievous 
 bodily harm. By s. 23, " whosoever shall unlawfully and maliciously 
 administer to or cause to be administered to or taken by any other person 
 any poison or other destructive or noxious thing, so as thereby to en- 
 danger the life of such person, or so as thereby to inflict uj)on such 
 person any grievous bodily harm, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding ten years, and not 
 less than three [now five] years, or to be imprisoned for any term not 
 exceeding two years, with or without hard labor." 
 
 Administering poison with intent to injure, aggrieve, or annoy. By
 
 POISON, 1089 
 
 *s. 24, "whosoever shall unlawfully and maliciously admin- r^oyo 
 ister to or cause to be administered to or taken by any otlier •- 
 person any poison or other destructive or noxious thing, with intent to 
 injure, aggrieve, or annoy such person, shall be guilty of a misde- 
 meanor, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for the term of three [now 
 five] years, or to be imprisoned for any term not exceeding two years, 
 with or without hard labor." 
 
 Persons charged with felony of administering poison may be 
 convicted of middemeanor. By s. 25, " if, upon the trial of any 
 person for any felony in the last but one preceding section mentioned, 
 the jury sliall not be satisfied that such person is guilty thereof, but 
 shall be satisfied that he is guilty of any misdemeanor in the last pre- 
 ceding section mentioned, then and in every such case the jury may 
 acquit the accused of such felony, and find him guilty of such mis- 
 demeanor, and thereupon he shall be liable to be punished in the 
 same manner as if convicted upon an indictment for such misde- 
 meanor. 
 
 Poisoning fish. By the 24 & 25 Vict. c. 97, s. 32, "unlawfully 
 and maliciously putting any lime or other noxious material in any 
 pond or water which shall be private property, or in which there shall 
 be any private right of fishery, with intent tliereby to destroy any of 
 the fish that may then be or that may thereafter be put therein, is 
 made a misdemeanor to be punished by penal servitude for any term 
 not exceeding seven years and not less than three [now five] years, or 
 by imprisonment for any term not exceeding two years, with or with- 
 out hard labor, and with or without solitary confinement, and if the 
 prisoner be a male under the age of sixteen years, with or without 
 whipping." 
 
 Administering drugs to procure abortion. See the 24 & 25 Vict. 
 
 100, ss. 58, 59, sujym, p. 274. 
 
 Proof of administering. See tit. "Abortion," supra, p. 274. 
 
 Proof of the intent. Administering cantharides to a woman with 
 intent to excite her sexual passion, in order that the prisoner may 
 have connection with her, was held to be an administering with intent 
 to injure, aggrieve, or annoy within the meaning of the repealed 
 statute of 23 & 24 Vict. c. 8, s. 2. R. v. Wilkins, L. & C. 89 ; 31 
 L. J., M. C. 72. But where cantharides was administered in so small 
 a quantity as to be insufficient to occasion injury or to produce any 
 effect on the human system, it was held by Cockburn, C. J., after con- 
 sulting Hawkins, J., that no offence within 24 & 25 Vict. c. 100, s. 
 24, had been committed although administered with intent to annoy, 
 because it could not, in the form administered, be said to be noxious. 
 R. V. Hennah, 13 Cox, C. C. 547. The question is whether the drug 
 69
 
 1090 
 
 POISON. 
 
 in the form and quantity in which it is administered is a Doxious 
 drug or not. K. v. Cramp, 5 Q. B. D. 307 ; 49 L. J., M. C. 44, 
 antej p. 276. 
 
 Sale of poisoned grain, seed, or flesh. The 26 & 27 Vict. c. 113, 
 amended and extended by 27 & 28 Vict. c. 115, forbids the sale of 
 poisoned grain, seed, or flesh, under penalties which may be enforced 
 on summary conviction.
 
 POST-OFFICE— OFFENCES RELATING TO THE. 1091 
 
 ♦POST-OFFICE— OFFENCES RELATING TO THE. 
 
 [*874 
 
 PAOB 
 
 Statutes 874 
 
 Offences by officers employed in the post-office 874 
 
 Opening or detaining letters , 874 
 
 Stealing, embezzling, secreting, or destroying letters . 875 
 
 Stealing, etc., printed papers ....,, 875 
 
 Offences by other parties ••..,.,.. 875 
 
 Stealing out of letters 875 
 
 Stealing letter-bags or letters from mail or post-ofiice . 875 
 
 Stealing from a post-office packet 876 
 
 Fraudulently retaining letters, etc. ..... 876 
 
 Accessories and procurers ......... 876 
 
 Receivers .•••.....,.. 876 
 
 Venue . . • 877 
 
 Form of indictment . , . . . . . . . ' , 877 
 
 Punishment . 878 
 
 Interpretation clause ' . . 878 
 
 Money orders ........... 881 
 
 What is a post letter 881 
 
 Proof of beiu]^ employed by or under the post-office . . . 882 
 
 stealing, embezzling, recreting, or destroying . . , 883 
 
 What is a post-office 885 
 
 In whose possession letters are on their way through the post . . 885 
 
 Authority of servants to part with the property .... 885 
 
 Statutes. The law with re^rd to the embezzlement of letters by 
 persons employed in the post-office was formerly contained in the 5 
 Geo. 3, c. 25, s. 17 ; 7 Geo. 3, c. 50, s. 1 ; and 42 Geo. 3, c. 81, s. 1. 
 The provisions of those Acts were afterwards consolidated in the 52 
 Geo. 3, c. 143. 
 
 By the 7 Will. 4 & 1 Vict. c. 32 (U. K.), the last-mentioned 
 statute and all other enactments relative to oiFences committed against 
 the post-office (excepting so much of the 5 Geo. 3, c. 25, and the 7 
 Geo. 3, c. 50, as respectively relate to any felony or other oifence 
 committed within the British dominions in America and the West 
 Indies) were repealed, and the law was consolidated and further 
 provisions made, by the 7 Will. 4 & 1 Vict. c. 36 (U. K,), 
 which came into operation on the same day as the 7 Will. 4 & 1 
 Vict. c. 32. 
 
 By the 32 & 33 Vict. c. 73, s. 23, telegraphic messages are 
 post letters within the meaning of the 1 Vict. c. 36. See " Tele- 
 graphs." 
 
 Offences by officers employed in the post-office — opening or de- 
 taining letters. By the 7 Will. 4 & 1 Vict. c. 36 (U. K.), s. 25, 
 "every person employed by or under the post-office who shall contrary 
 to his duty open or procure or suffer to be opened a post letter, or 
 *shall wilfully detain or delay, or procure or suffer to be de- r*o'7c 
 tained or delayed, a post letter, shall in England and Ireland ^
 
 1092 POST-OFFICE — OFFEXCES DELATING TO THE. 
 
 be guilty of a mlsdeinoanor, uikI in Scotland of a crime and offence, 
 and being convicted thereof shall suffer such punishment by fine or 
 imjn-isonment, or by both, as to the court shall seem meet ; provided 
 always, that .nothing herein contained shall extend to the opening 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 
 shall have refused the same, or shall have refused or neglected to 
 pay the jjostage 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." 
 
 Offences by officers employed in the post-office — stealing, em- 
 bezzling, secreting, or destroying letters. By s. 26, " every person 
 employed under the post-office who shall steal, or shall, for any pur- 
 pose whatever, embezzle, secrete, or destroy a post letter, shall in Eng- 
 land and Ireland be guilty of felony, and in Scotland of a high crime 
 and offence, and shall, at the discretion of the court, either be trans- 
 ported beyond the seas [penal servitude] for the term of seven years, 
 or be imprisoned for any term not exceeding three years ; and if any 
 such post letter so stolen or embezzled, secreted or destroyed, shall 
 contain therein any chattel or money whatsoever, or any valuable secu- 
 rity, every such offender shall be transported beyond the seas for 
 life." 
 
 Offences by officers employed in the post-office — stealing or 
 embezzling printed papers. By s. 32, " for the protection of printed 
 votes and proceedings in parliament and printed newspapers," it is 
 enacted, that " every person employed in the post-office who shall 
 steal, or shall for any purpose embezzle, secrete or destroy, or shall 
 wilfully detain or delay in course of conveyance or delivery thereof 
 by post, any printed votes or proceedings in parliament, or any printed 
 newspaper, or any other printed paper whatever sent by the post with- 
 out covers, or in covers open at the sides, shall in England and Ire- 
 land be guilty of a misdemeanor, 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." 
 
 Offences by other parties — stealing out of letters. By s. 27, 
 " every person who shall steal from or out of a post letter any chattel, 
 or money or valuable security shall, in England and Ireland be guilty 
 of felony, and in Scotland of a high crime and offence, and shall be 
 transported beyond the seas for life." 
 
 Offences by other parties — stealing letter-bags or letters from 
 mail or post-office. By s. 28, "every person who shall steal a post 
 letter-bag, or a post letter from a post letter-bag, or shall steal a post letter
 
 POST-OFFICE — OFFENCES RELATING TO THE. 1093 
 
 from a post-office, or from an officer of the post-office, or from a mail, 
 or shall stop a mail with intent to rob or search the same, shall in 
 England and Ireland be gnilty of felony, and in Scotland of a high 
 crime and offence, and shall be transported beyond the seas lor 
 life." 
 
 *Oflences by other parties — stealing from a post-ofiB.ce r^oyp 
 packet. By s. 29, " every person who shall steal or nnlaw- L 
 fully take away a post letter-bag sent by a post-office packet, or who 
 shall steal or unlawfully take a letter out of any such bag, or shall 
 unlawfully open any such bag, shall in England and Ireland be guilty 
 of felony, and in Scotland of a high crime and offence, and shall be 
 transported beyond the seas for any term not exceeding fourteen 
 years." 
 
 Offences by other parties — fraudulently retaining letters, etc. 
 By s. 31, reciting that " post letters are sometimes by mistake deliv- 
 ered to the wrong person, and post letters and post letter bags are lost 
 in the course of conveyance or delivery thereof, and are detained by 
 the finders in expectation of gain or reward ;" it is enacted, " that 
 every person who shall fraudulently retain, or shall wilfully secrete, 
 or keep, or detain, or being rajuired to deliver up by an officer of the 
 post-office, shall neglect or refuse to deliver up a post letter which 
 ought to have been delivered to any other person, or a post letter-bag 
 or post letter which shall have been sent, whether the same shall have 
 been found by the person secreting, keeping, or detaining, or neglect- 
 ing or refusing to deliver up the same, or by any other person, shall 
 in England and Ireland be guilty of a misdemeanor, and in Scotland 
 of a crime and offence, and beini>: convicted thereof shall be liable to 
 be punished by fine and imprisonment." 
 
 Accessories and procurers. By s. 35, it is enacted, '* that in the 
 case of every felony punishable under the post-office Acts every 
 principal in the second degree, and every accessory before the fact, 
 shall be punishable in the same manner as the principal in the first 
 degree is by the post-office Acts punishable ; and every accessory after 
 the fact to any felony punishable under the post-ofiice Acts (except 
 only a receiver of any property or thing stolen, taken, embezzled, or 
 secreted), shall, on conviction, be liable to be imprisoned for any term 
 not exceeding two years ; and every person who shall aid, abet, coun- 
 sel, 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." See also s. 37, infra. 
 
 And by s. 36, " every person who shall solicit and endeavor to pro- 
 cure any other person to commit a felony or misdemeanor punishable 
 by the post-office Acts, shall in England and Ireland be guilty of a 
 misdemeanor, and in Scotland of a crime and offence, and being thereof 
 convicted shall be liable, at the discretion of the court, to be impris- 
 oned for any term not exceeding two years."
 
 1094 POST-OFFICE OFFENCES HELATING TO THE. 
 
 Receivers. By s. 30, " with regard to receivers of property sent 
 by the post and stolen therefrom," it is enacted, " that every person 
 wlio shall receive any post letter, or post letter-bag, or any chattel or 
 money or valnable secnrity, the stealing or taking or embezzling or 
 secreting whereof shall amoinit to a felony under the post-office Acts, 
 knowing the same to have been feloniously stolen, taken, embezzled, 
 or secreted, and to have been sent or to have been intended to be 
 sent by tlie f)ost, shall in England and Ireland be guilty of felony, 
 and in Scotland of a high crime and offence, and may be indicted and 
 convicted either as an accessory after the fact or for a substantive 
 felony, and in the latter case, whether the principal felon shall or shall 
 not have been previously convicted, or shall or shall not be amenable 
 ^„^^-], *to. justice ; and every receiver, howsoever convicted, shall be 
 -' liable to be transported beyond the seas for life." 
 
 "Vemie. By s. 37, " 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 Ire- 
 land, either in the county or place where the offence shall be commit- 
 ted, 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 within which 
 such offender shall be apprehended or be in custody, as if his offence 
 had been actually committed there ; and where an oflFence shall be 
 committed in or upon or in respect of a mail, or upon a person en- 
 gaged in the conveyance or delivery of a post letter-bag or post letter, 
 or in respect of a post letter-bag, or post letter, or a chattel, or money, 
 or valuable 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 committed, as well in any county or place in which the offender 
 shall be apprehended or be in custody, as also in any county or jilace 
 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 de- 
 livery by post, in the same manner as if it had been actually commit- 
 ted 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 the 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 ad- 
 joining to which or by the boundary of any part of which the mail 
 or person shall have ])assed in due course of conveyance 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 after the fact
 
 POST-OFFICE — OFFENCES RELATING TO THE. 1095 
 
 to any such offence, if the same be a felony or a high crime, and 
 every person aiding or abetting or counselling or procuring Ihe 
 commission of any such offence, if the same be a misdemeanor, may 
 be dealt with, indicted, tried, and punished as if he were a princi- 
 pal, and his offence laid and charged to have been committed in any 
 county or place in which the principal offender may be tried." 
 
 By s. 39, "where an offence punishable under the post-office Acts 
 shall be committed within the Jurisdiction of the admiralty, the same 
 shall be dealt with and inquired of and tried and determined in the 
 same manner as any other offence committed within that jurisdiction." 
 
 Form of indictment. By s. 40, " in every case where an offence 
 shall be committed in respect to a post letter-bag or a post letter, or 
 a chattel, money, or a valuable security sent by the post, it shall be 
 lawful to lay in the indictment or criminal letters to be preferred 
 against the offender, the property of the post letter-bag, or of the 
 *post letter, or chattel, or money, or the valuable security sent r^o^o 
 by the post, in the postmaster-general ; and it shall not be L 
 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 indictment or any crimi- 
 nal letters to be preferred against any person employed under the post- 
 office for any offence committed against the 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 
 of such offence, without stating further the nature or particulars of 
 his employment." 
 
 •Punishment. By s. 41, "every person convicted of any offence 
 for which the 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 ; 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 impris- 
 oned for any term not exceeding three years." Penal servitude is 
 now substituted for transportation. 
 
 By s. 42, " where a person shall be convicted of an offence punish- 
 able under the post-office Acts, for which imprisonment may be 
 awarded, the court may sentence the offender to be imprisoned, with 
 or without hard labor, in the common gaol or house of correction, 
 and may also direct that he shall be kept in solitary confinement 
 for the whole or any portion of such imprisonment, as to the court 
 shall seem meet." But as to solitary confinement, see 1 Vict. c. 90, 
 s. 5. 
 
 Interpretation clause. By s. 47, " for the interpretation of the 
 post-office laws," it is enacted, " that the following terms and expres-
 
 1096 POST-OFFICE — OFFENCES RELATING TO THE. 
 
 sions shall have the several interpretations hereinafter respectively set 
 forth, unless such interpretations are repugnant to tlie subject, or in- 
 consistent with the context of the provisions 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 pxdjlished in the 
 United Kingdom liable to the stamp duty and duly stam]X'd ; and the 
 term " British postage" shall mean the duty chargeable on letters 
 transmitted by ])ost from })lace 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 tlie term " colonial newspa- 
 pers" shall mean news})apers printed and published in any of her 
 Majesty's dominions out of the United Kingdom ; and the term "con- 
 vention posts" shall mean posts established by the postmaster-general 
 under agreements with the inhabitants of any places; and the term 
 " double letter " shall mean a letter having one inclosure ; and the 
 term "double post" 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 
 *S7Q1 *^^^clude the Cape of Good Hope ; and the term " express " shall 
 -■ mean every kind of conveyance employed to cai'ry letters on be- 
 half of the post-office other than the usual mail ; and the term " foreign 
 country" shall mean any country, state, or kingdom not included in 
 the dominions of her Majesty ; and the term " foreign letter " shall 
 mean a letter transmitted to or from a foreign country ; and the term 
 " foreign newspapers " shall mean newspapers printed and published in 
 a foreign country in the language of that country ; and the term " for- 
 eign postage " shall mean the duty charged for the conveyance of let- 
 ters within such foreign country ; and the term " franking officer " shall 
 mean the person appointed to frank the official correspondence of 
 offices to which the privilege of franking is granted ; and the term 
 " her Majesty " shall mean her Majesty, her heirs, and successors ; 
 and the term " her Majesty's colonies " shall include every port and 
 place within the territorial acquisitions now vested in the East India 
 Company in trust for her Majesty, the Cape of Good Hope, the 
 Islands of St. Helena, Guernsey, Jersey, and the Isle of Man (unless 
 any such places be expressly excepted), as well as her Majesty's other 
 colonies and possessions beyond seas ; and the term " inland postage " 
 shall mean the duty charged for the transmission of post letters 
 within the limits of the United Kingdom, or within the limits of any 
 colony; and the term " letter" shall include packet, and the term 
 "packet" shall include letter; and the expression " lord lieutenant of 
 Ireland " shall mean the chief governor or governors of Ireland for 
 the time being ; and the expression " lords of the treasury " shall
 
 POST-OFFICE— OFFENCES RELATING TO THE^ 1097 
 
 mean the lord high treasurer of tlie United Kingdom of Great 
 Britain and Ireland, or the lords commissioners of her Majesty's 
 treasury of the United Kingdom of Great Britain and Ireland, or any 
 three or more of them ; and the term " mail " shall include every con- 
 veyauce by which post letters are carried, whether it be a coach, or 
 cart, or horse, or any other conveyance, and also a person employed 
 iu conveying or delivering post letters, and also every vessel which 
 is included in the term packet boat; and the term "mail bag" shall 
 mean a mail of letters, or a box, or a parcel, or any other envelope 
 iu which post letters are conveyed, whetlier it does or does not con- 
 tain post letters ; and the term " master of a vessel " shall include any 
 person in charge of a vessel, whether commander, mate, or other 
 person, aud whether the vessel be a ship of war or other vessel ; and 
 the expression "officer of the post-office" shall include the post- 
 master-general, and every deputy postmaster, agent, officer, clerk, 
 letter-carrier, guard, post-boy, rider, or any other person employed iu 
 any business of the post-office, whether employed by the postmaster- 
 general, or by auy person under him, or on behalf of the post-office ; 
 and the term " packet postage " shall mean the postage chargeable 
 for the transmission of letters by packet boats between Great 
 Britain and Ireland, or between the United Kingdom and any of 
 her Majesty's colonies, or between the United Kingdom and foreign 
 countries ; and the term " packet letter " shall mean a letter trans- 
 mitted by a packet boat ; and the term " penalty " shall include every 
 pecuniary penalty or forfeiture ; and the expression " persons em- 
 ployed by or under the post-office" shall include every person em- 
 ployed in any business of the post-office according to the interpre- 
 tation given to the officer of the post-office ; and the terms " packet 
 boats " and " post-office packets " shall include vessels employed by 
 or under the post-office or the admiralty for the transmission of post 
 *letters, and also ships or vessels (though not regularly employed r^ ^ orv 
 as packet boats) for the conveyance of post letters under con- L 
 traot, and also a ship of war or other vessel in the service of her Ma- 
 jesty, in respect of letters conveyed by it ; and the term " postage " 
 shall mean the duty chargeable for the transmission of post letters ; 
 and the term " post town " shall mean a town where a post-office is 
 established (not being a penny, or two-penny or convention post-office) ; 
 and the term " post letter-bag " shall include a mail bag or box, or 
 packet or parcel, or other envelope or covering in which post letters 
 are conveyed, whether it does or does not contain post letters ; and the 
 term " post-letter " shall mean any letter or packet transmitted 
 by the post under the authority of the postmaster-general, and a 
 letter shall be deemed a post letter, from the time of its being de- 
 livered to a post-office to the tinae of its being delivered to the person 
 to whom it is addressed ; and the delivery to a letter-carrier or other 
 person authorized to receive letters for the post shall be a delivery to 
 the post-office ; and a delivery at the house or office of the person to 
 whom the letter is addressed, or to him, or to his servant or agent, or 
 other person considered to be authorized to receive the letter accord-
 
 1098 POST-OFFICE — OFFENCES RELATING TO THE. 
 
 ing to the usual raauner of deliveriug that person's letter, shall be a 
 delivery to the person addressed ; and the term " post-office " shall 
 mean any house, building, room, or place, where post letters are re- 
 ceived or delivered, or in which they are sorted, made up, or des- 
 patelied ; and the term " postmaster-general " shall mean any person 
 or body of persons executing the office of postmaster-general for the 
 time being, having been duly appointed to the office by her Majesty ; 
 and the terms " post-office Acts " and " post-office laws " shall mean 
 all Acts relating to the management of the post, or to the establish- 
 ment of the post-office, or to postage duties from time to time in 
 force ; and the term *' ships " shall include vessels other than packet 
 boats ; and the term " single postage " shall mean the postage 
 chargeable for a single letter ; and the term " single letter " shall 
 mean a letter consisting of one sheet or piece of paper, and under the 
 weight of an ounce ; and the term " sea postage " shall mean the duty 
 chargeable for the conveyance of letters by sea by vessels not packet 
 boats ; and the term " ship letter " shall mean a letter transmitted 
 inwards or outwards over seas by a vessel not being a packet boat ; 
 and the term " treble letter " shall mean a letter consisting of more 
 than two sheets or pieces of paper, whatever the number, under the 
 weight of an ounce ; and the term " treble postage " shall mean three 
 times the amount of single postage ; and the term " treble duty of 
 postage " shall mean three times the amount of the postage to which 
 the letter to be charged would otherwise have been liable according 
 to the rates of postage chargeable on letters ; and the term " United 
 Kingdom " shall mean the United Kingdom of Great Britain and 
 Ireland ; and the term " valuable security " shall include the whole 
 or any part of any tally, order, or other security whatsoever, entitling 
 or evidencing the title of any person or body corporate to any share 
 or interest in any public stock or fund, whether of this kingdom or 
 of Great Britain or of Ireland, or of any foreign state, or in any fund 
 of any body corporate, company, or society, or to any deposit in any 
 savings-bank, or the whole or any part of any debenture, deed, bond, 
 bill, note, warrant, or order, or other security whatsoever for money, 
 or for payment of money, whether of this kingdom or of any foreign 
 state, or of any warrant or order for the delivery or transfer of any 
 *8811 *Soods or valuable thing; and the term " vessel " shall include 
 -■ any ship or other vessel not a post-office packet ; and when- 
 ever the term " between " is used in reference to the transmission of 
 letters, newspapers, parliamentary proceedings, or other things between 
 one place and another, it shall apply equally to the transmission from 
 either place to the other ; and every officer mentioned shall mean the 
 person for the time being executing the functions of that officer ; and 
 whenever in this Act or the schedules thereto, with reference to any 
 person, or matter, or thing, or to any persons, matters, or things, the 
 singular or plural number or the masculine gender only is expressed, 
 such expression shall be understood to include several persons, or mat- 
 ters, or things, as well as one person, or matter, or thing, and one per- 
 son, matter, or thing, as well as several persons, or matters, or things,
 
 POST-OFFICE — OFFENCES RELATING TO THE. 1099 
 
 females as well as males, bodies politic or corporate as well as individ- 
 uals, unless it be otherwise specially provided, or the subject or con- 
 text be repugnant to such construction. 
 
 By s. 48, " this Act shall extend to and be in force in the Islands of 
 Man, Jersey, Guernse}', Sark, and Alderney, and in all her Majesty's 
 colonies and dominions where any post or post communication is es- 
 tablished by or under the postmaster-general of the United Kingdom 
 of Great Britain and Ireland." 
 
 Post-office money orders. By 11 & 12 Vict. c. 88, s. 4, every 
 officer of the post-office who shall grant or issue any money-order with 
 a fraudulent intent shall be guilty of felony, and shall be liable to 
 seven years' transportation (now penal servitude), or imprisonment for 
 any term not exceeding three years. By s. 5 the property may be laid 
 in the postmaster-general. The above section (4) is extended to " postal 
 orders" by 43 & 44 Vict. c. 33. 
 
 What is a post letter. Under the 7 Will. 4 & 1 Vict. c. 36, s. 26, 
 it has been held, that where an inspector secretly put a letter, prepared 
 for the purpose, containing a sovereign, amongst some letters, which a 
 letter-carrier suspected of dishonesty was about to sort, and the letter- 
 carrier stole the letter and sovereign, that he was not rightly convicted 
 of stealing a post letter, such letter not having been put in the post in 
 the ordinary way, but was rightly convicted of larceny of the 
 sovereign, laid as the property of the postmaster-general. R. v. 
 Rathbone, 2 Moo. C. C 242. To make a man liable under this sec- 
 tion, the letter must have come into his hands in the ordinary course 
 of the post-office. R. v. Shepherd, 25 L. J., M. C. 52. See also R. 
 V. Gardner, 1 C. & K. 628, 47 E. C. L. The president of a depart- 
 ment in the post-office put a half-sovereign into a letter, on which he 
 wrote a fictitious address, and dropped the letter, with the money in 
 it into the letter-box of a post-office receiving house where the prisoner 
 was employed in the service of the post-office. It was held that this 
 was a stealing of a post letter containing money within the statute, and 
 that this Avas not the less a " post letter " within that enactment, be- 
 cause it had a fictitious address. R. v. Young, 1 Den. C. C. R. 194. 
 Where a person took a money letter to the post-office, Avhich was at an 
 inn, and did not put it into the letter-box, but laid the letter and the 
 money to prepay it upon a table in the passage of the inn, in which 
 passage the letter-box was, telling the prisoner, a female servant, who 
 was not authorized to receive letters, who said she would " give it to 
 them," but who, instead of doing so, stole the letter and its contents : 
 *Patteson, J., held that this was not a "post letter" within ptooo 
 the meaning of the statute. R. v. Harley, 1 C. & K. 89. '- 
 See the interpretation clause, supra, p. 880. 
 
 A telegraphic message is a post letter. See 32 & 33 Vict. c. 73, s. 
 23, jiost, tit. " Telegraphs." 
 
 Proof of being employed by or under the post-office. The em-
 
 1100 POST-OFFICE — OFFENCES RELATING TO THE. 
 
 iiloyniont of the oifciidcr " by or under the post-office " must be proved. 
 [t is uot necessary in these cases to produce the actual appointment of the 
 prisoner,'it is sufficient to show that lie acted in the capacity imputed to 
 him. R. V. Borrett, 6 C. & P. 124, 25 E. C. L. ; II. v, Rees, Id. 606. 
 The prisoner was indicted on the repealed statute 7 Geo. 3, c. 50 (which 
 stated the special capacities of the parties employed in the post-office), 
 in the first and third counts, as " a person employed in sorting and 
 chargintr letters in the post-office," in the second and fourth counts as 
 "a person employed in the business relating to the general post-office;" 
 it appeared that he was only a sorter, and not a charger, and he was 
 convicted on the second and fourth counts only. It was objected that 
 as he was acquitted on the counts charging liim as a sorter and charger, 
 and it was not proved that he v/as em})loyed in any other capacity than 
 that of a sorter, he ought not to have been convicted on the second and 
 fourth counts. The judges thought the objection valid, but were in- 
 clined to be of opinion that the prisoner might have been properly con- 
 victed upon the first and third counts by a special finding that he was 
 a sorter only. R. v. Shaw, 2 East, P. C. 580 ; 2 W. Bl. 789 ; 1 Leach, 
 79. In a subsequent case where the prisoner was described as a post- 
 boy and rider, and was proved to be only a post-boy, being convicted, the 
 judges held the conviction right, saying that a post-boy riding on horse- 
 back wasa rider as well as a post-boy. R. v. EUins, Russ. & Ry. 188. A 
 person employed at a receiving-house of the general post-office to clean 
 boots, etc., and w^ho occasionally assisted in tying up the letter-bags, 
 was held not to be a person employed by the post-office within the 52 
 Geo. 3, c. 143, s. 2 (repealed). R.' v. Pearson, 4 C. & P. 572. S. de- 
 livered two 5/. notes to Mrs. D., the wife of the postmaster of C, at 
 which post-office money orders were not granted, and asked her to 
 send them by G., the letter-carrier from C. to AV., in order that he 
 might get two 5^. money orders for them at the W. post-office. Mrs. D. 
 gave these instructions to G., and put the notes by his desire into his 
 bag. G. afterwards took the notes out of the bag, and pretended, 
 when he got to the W. post-office, that he had lost them. It was 
 found by the jury that G. had no intention to steal the notes when 
 they were given to him by ]Mrs. D. It was held that the notes were 
 not in G.'s possession in the course of his duty as a post-office 
 servant. R. v. Glass, 1 Den. C. C. R. 215. The prisoner was em- 
 ployed to carry letters from C. A. to F., such employment being 
 complete upon the delivery of the letters at F. Upon one occasion, 
 at the request of the postmaster at F., the prisoner assisted in sort- 
 ing the letters at that place, and whilst so engaged stole one of the 
 letters containing money. It was held by the Court of Criminal 
 Appeal that the prisoner was a person " emploved under the post- 
 office," within the 7 Will. 4 & 1 Vict. c. 36, s. 26. R. v. Reason, 
 1 Dears. C. C. 236. Coleridge, J., distinguished R. v. Glass, which 
 had been relied on by the prisoner's counsel, observing that in that 
 case, " it was not the business of the postmaster to get money 
 *8831 *oi"^6rs." S. the postmistress of G. received from A. a letter 
 -• unsealed, but addressed to B., and with it 1^. for a post-office
 
 POST-OFFICE — OFFENCES EELATING TO THE. 1101 
 
 order, 3c?. for the poundage on the order, Id. for the postage, and Id. 
 for the person who got the order. S, gave the letter unsealed and the 
 money to the prisoner, who was the letter-carrier from G. to L., tell- 
 ing him to get the order at L., and inclose it in the letter, and post the 
 letter at L. The prisoner destroyed the letter, never procured the 
 order, and kept the money. Cresswell, J., held that he was indictable 
 under s. 26 of the 7 Will. 4 <& 1 Vict. c. 36, he being at the time in 
 the employment of the post-office. R. v. Bickerstaff, 2 C. & K. 761, 
 61 E. C. L. 
 
 Where the prisoner was employed by a postmistress to carry 
 letters from D. to B., at a weekly salary paid him by the post- 
 mistress, which was repaid to her by the post-office, it was held that 
 he was a person employed by the post-office within the 52 Geo. 3, 
 c. 143, s. 2 (repealed). R. v. Salisbury, 5 C. & P. 155. In the above 
 case, Patteson, J., was inclined to think that the words, " whilst em- 
 ployed," in the second section, merely meant that the party should 
 be then in the employ of the post-office, and not that the letter 
 stolen should be in the party's hands in the course of his duty. Id. 
 
 Where a prisoner was a letter-carrier employed by the post-office 
 to deliver letters about Gloucester, and had been in the habit of 
 calling at the lodge of the Gloucester infirmary, and receiving letters 
 there, and a penny upon each to prepay the postage, and his practice 
 was to deliver these letters at the Gloucester post-office ; but he 
 sometimes omitted to call at the lodge, and then the letters were 
 taken by some person and put into the post-office ; and during the 
 time the prisoner had been ill, another person who performed these 
 duties had also called at the lodge, and received the letters and the 
 pennies and delivered them at the post-office in the same way as the 
 prisoner. Evidence was also given to shoAV that the prisoner had 
 embezzled pence received at the lodge to prepay letters. It was ad- 
 mitted that proof that the prisoner acted as a letter-carrier, was 
 sufficient to show that he held that situation, but it was urged that 
 wdiere the charge was of embezzling money received by virtue of his 
 employment, it must be shown that it was the duty of the prisoner to 
 receive the money, and in this case it was his mere voluntary act, and 
 he was neither bound to go to the lodge nor to receive the letters ; 
 but it was held by Coleridge, J., that there was evidence to go to the 
 jurv, that the pence were received by virtue of the prisoner's employ- 
 ment. R. v. Townsend, Carr. & M. 178, 41 E. C. L. 
 
 Proof of stealing, embezzling, secreting, or destroying. To prove 
 a larceny of a letter, or of a letter containing money, etc., as the case 
 may be, the ownership of the property need not be proved, but may 
 be laid in the postmaster-general ; neither need it be shown to be of 
 any value. 
 
 Where the charge is for embezzling, etc., the prosecutor must prove 
 that the prisoner either embezzled, secreted, or destroyed the letter 
 described. Where the prisoner secreted lialf a bank-note on one day, 
 and the other half on another day, it was held to be a secreting of the
 
 1102 POST-OFFICE — OFFENCES RELATING TO THE. 
 
 note within the 7 Geo. 3, c. 50 (repealed). The doubt was, whether 
 secreting in the statute did not mean the original secretiug, as taking 
 does ; but the judges distinguished between taking and secreting, for 
 *««_n *^ftcr the prisoner had got possession of the second letter he 
 ^^^-1 secreted both. R. v. Moore, 2 East, P. C. 682. The stat. 52 
 Geo. 3, mentioned "any part of any bill," etc. The secreting will be 
 proved in general by circumstantial evidence. 
 
 A person employed in the post-office committed a mistake in the 
 sorting of two letters containing money, and he threw the letters un- 
 opened, and the money, down a water-closet in order to avoid a 
 penalty attached to sur'h mistake. It was held that this was a lar- 
 ceny of the letters and money, and also a secreting of the letters within 
 7 Will. 4 & 1 Vict. c. 36, s. 26. R. v. Wynn, 1 Den. C. C. R. 365; 
 18 L. J., M. C. 51. 
 
 Where such is the charge, it must appear that the letter contained 
 some chattel, money, or valuable security. Where the letter em- 
 bezzled was described as containing several notes, it M^as held suffi- 
 cient to prove that it contained any one of them, the allegation not 
 being descriptive of the letter, but of the offi^nce. R. v. Ellins, Russ. 
 & R. 188. It is not necessary to prove the execution of the instru- 
 ments which the letter is proved to contain. Id. Country bank- 
 notes paid in London, and not reissued, were held within the 7 Geo. 
 3, c. 50 (repealed). They were said to be valuable to the possessors 
 of them, and available against the makers of them, and fell within 
 both the words and meaning of the Act. R. v. Ransom, Russ. & Ry. 
 232 ; 2 Leach, 1090 ; ace. R. v. West, Dears. & B. C. C. 109. Upon 
 an indictment under the 7 Geo. 3, c. 50, it was held that a bill of 
 exchange might be described as a warrant for the payment of money, 
 as in cases of forgery. R. v. Willoughby, 2 East, P. C. 581. A post- 
 office order for the payment of money in the ordinary form, is a 
 warrant and order for the payment of money, and may be so described 
 in an indictment for larceny. R. v. Gilchrist, 2 M. C. C. 233 ; C. & 
 M. 224, 41 E. C. L.; R. v. Vanderstein, 10 Cox, C. C. (Irish), 177. 
 Neither the former statutes nor the 52 Geo. 3, c. 143 (now repealed) con- 
 tained the word "coin " or " money." The prisoner was indicted under 
 the former statute for stealing 5s. 3c?. in gold coin, being a sorter in the 
 post-office, and it was objected that as the letters contained money, and 
 not securities for money, the case was not within the Acts, and the court 
 (at the Old Bailey) being of this opinion, the prisoner was acquitted. 
 R. V. Skutt, 2 East, P. C. 582. The security specified in the statute 
 must be valid and available, and therefore a draft purporting to be 
 drawn in London, but drawn in Maidstone, and having no stamp 
 upon it pursuant to the 31 Geo. 3, c. 25 (repealed), was held not to 
 be a draft within the 7 Geo. 3, c. 50. R. v. Pooley, Russ. & Ry. 12 ; 
 2 Leach, 887 ; 3 Bos. &. Pul. 311. 
 
 A servant being sent with a letter, and a penny to pay the postage, 
 and finding the office shut, put the penny inside the letter, and fastened 
 it by means of a pin, and then put the letter into the box. A mes- 
 senger in the general post-office stole this letter with the penny in it.
 
 POST-OFFICE — OFFENCES EELATING TO THE. 1103 
 
 It was held by Lord Denman, C. J., that the prisoner might be con- 
 victed of stealing a post letter containing money, although the money 
 was not put into the letter for the purpose of being conveyed by means 
 of it to the perst)n to whom it was addressed. R. v. Mence, Carr. & 
 M. 234, 41 E. C. L. 
 
 It seems that the contents of the letter secreted, etc., will not be 
 evidence as against the prisoner to prove that the letter contained the 
 valuable security mentioned in it. R. v. Plumar, Russ. & Ry. 264. 
 The letter in question had marked upon it, " paid 2s." which was the 
 *rate of double postage. This was written by the clerk of the t^qok 
 writer of the letter, who had paid the postage, but was not called. L 
 There being no other proof of the double postage, the judges held the 
 conviction wrong. Id. 
 
 The prisoner having been indicted under the repealed statutes 5 
 Geo. 3, c. 25, s. 17, and 7 Geo. 3, c. 50, s. 3, the jury found specially 
 that he was a person employed by the post-office in stamping and 
 facing letters, and that he secreted a letter which came into his hands 
 by virtue of his office, containing a 10^. note, but that he did not open 
 the same, nor know that the bank-note was contained therein, but that 
 he secreted it with intent to defraud the king of the postage, which 
 had been paid. The prisoner, it is said, remained in prison several 
 years, but no judgment appears to have been given. R. v. Sloper, 2 
 East, P. C. 583 ; 1 Leach, 81. 
 
 Where the prisoner, with intent to steal the mail-bags, pretended 
 to be the guard, and procured them to be let down to him from the 
 window by a string, and carried them away ; being indicted on the 7 
 Geo. 3, c. 50 (repealed), and found guilty, all the judges held the con- 
 viction right, on a count for stealing the letters out of the post-office, 
 for his artifice in obtaining the delivery of them in the bag out of the 
 house, was the same as if he had actually taken them out himself. R. 
 V. Pearce, 2 East, P. C 603. See R. v. Kay, infra, ace. Upon the 
 same statute it was held, that a letter-carrier taking letters out of the 
 office, intending to deliver them to the owners, but to embezzle the 
 postage, could not be indicted for stealing such letters. R. v. Howatt, 
 2 East, P. C. 604. 
 
 The above statute made it an offence to steal from the possession 
 (not from the person) of persons employed to convey letters, etc. 
 Therefore, where a mail- rider, after fixing the portmanteau con- 
 taining the letters on his horse, fastened his horse at the post-office, 
 and went to a house about thirty yards distant for his great coat, 
 and in the meantime the prisoner came and stole the letters, it 
 was held by Wood, B., that the case was within the statute, for that 
 the letters had been in the possession of the mail-rider, and that pos- 
 session had never been abandoned. R. v. Robinson, 2 Stark. N. P. C. 
 485, 3 E. C. L. 
 
 "What is a post-office. With regard to what was to be considered 
 a " post-office " within the above statute, it was held that a " receiving 
 house " was not such, but such house was " a place for the receipt of
 
 1104 POST-OFFICE — OFFENCES EELATING TO THE. 
 
 letters " within the Act ; and, if a shop, tlie whole shop vras to be 
 considered as " a phicc for the rcceii)t of letters/' and, therefore, the 
 pntting of a letter on the shop counter, or giving it to a person belong- 
 ing to the shop, was a putting into the post. 11. v. Pearson, 4 C. & 
 P. 572, 19 E. C. L. To eomi)lcte the otfence under the 4th s(;c;tion of 
 the 52 (Jeo. 3, c. 143, of stealing a letter from the place of receipt, it 
 was held, that the letter should be carried wholly out of the shop, and, 
 theref jre, if a person opened a letter in the shop, and there stole the 
 contents, without taking the letter out of the shop, the ease was not 
 within the statute. R. v. Pearson, supra. See R. v. Harley, cmte, p. 
 882, and the interpretation clause, p. 879. 
 
 In whose possession letters are on their way through the post — 
 authority of servants to part with the property. The pers(jn M'ho 
 j^^Qo-| has possession of the letter during its course through the 
 J *post-office has the bare custody of a servant only, and has 
 not the possession of a bailee. R. v. Pearce, 2 East, P. C. G09. The 
 owner of a watch placed it with the seller to be regulated, and the 
 prisoner, pretending that he was the owner, desired the watchmaker to 
 send the watch by post directed in a certain manner, and then by a 
 further fraud obtained the parcel containing the watch from the post- 
 office. He was held to be rightly convicted of larceny. R. v. Kay, 
 Dears. & B. C. C. 231 ; 26 L. J., M. C. 119. The prisoner for his 
 own fraudulent purposes stopped a letter-carrier, and by a lie induced 
 him to deliver up letters directed to other persons, the learned judge 
 mentioning the case of R. v. Middleton, infra, the reasons for the de- 
 cision in which were not then given, ruled that the letter-carrier could 
 not be held to be the agent of the postmaster-general for the purpose 
 of wrongfully giving up the letter. R. v. Dowdeswell, per Denman, 
 J., Derby Spring As'sizes, 1873. In R. v. Middleton, L. R., 2 C. C. 
 38 ; 42 L. J., M. C. (the facts of which are stated, ante, p. 652), it 
 was held by Bovill, C. J., Kelly, C. B., and Keating, J., that the 
 clerk of the post-office had no property in the money or power to 
 part with it to the prisoner, and that the authority of the clerk to 
 hand over the money was a special authority not pursued ; but by 
 Brarawell, B., and Brett, J., that the clerk had authority to part 
 with the property. The rest of the fifteen judges decided the case 
 on other grounds. See R. v. Cryer, infra, tit. "Receiving Stolen 
 Goods."
 
 PRISON BREACH. 1105 
 
 •PRISON BREACH. [*887 
 
 PAGE 
 
 Proof of the nature of the offence for which the prisoner was im- 
 prisoned ; . . . . 887 
 
 of the imprisonment and the nature of the prison . . 888 
 
 of the breaking of the prison 888 
 
 Punishment 889 
 
 Conveying tools, etc., to prisoners to assist in escape . . , 889 
 
 Special enactments 890 
 
 Where a person is in custody on a charge of treason or felony 
 and effects his escape by force, the offence is a felony at common law ; 
 where he is in custody on a minor charge, it is a misdemeanor. 1 
 Russ. Cri. 577, 5th ed. ; see statute 1 Edw. 2, st, 2, infra. 
 
 Upon a prosecution for prison breach the prosecutor must prove, 
 1, the nature of the offence for which the prisoner was imprisoned ; 2, 
 the imprisonment and the nature of the prison ; and 3, the breaking 
 of the prison. 
 
 Proof of the nature of the offence for which the prisoner was im- 
 prisoned. The statute de frangentibus prisonam, 1 Edw. 2, st. 2, 
 enacts, " that none henceforth that breaks prison shall have judgment 
 of life or member for breaking of prison only, except the cause for 
 which he was taken or imprisoned did require such a judgment, if he 
 had been convicted thereupon according to the law and custom of the 
 realm." If the offence, therefore, for which the party is arrested does not 
 require judgment of life or member, it is not be a felony. 1 Russ. Cri. 
 578, 5th ed. And though the offence for which the party is commit- 
 ted is supposed in the mittimus to be of such a nature as requires a 
 capital judgment, yet if in the event it be found of an inferior nature, 
 it seems difficult to maintain that the breaking can be a felony. Id. 
 It seems that the stating the offence in the mittimus to be one of lower 
 degree thail felony, will not prevent the breaking from being a felony, 
 if in truth the original offence was such. Hawk. P. C. b. 2, c. 18, s. 
 15 ; 1 Russ. Cri. 578, 5th ed,, vide. A prisoner, on a charge of high 
 treason, breaking prison, is only guilty of a felony. Hawk. P. C. b. 2, 
 c. 18, s. 15. It is immaterial whether the party breaking prison had 
 been tried or not. Id. s. 16. 
 
 Whenever a party is in lawful custody on a charge of felony, 
 whether he has been taken upon a capias, or committed on a mittimus, 
 he is within the statute, however innocent he may be, or however 
 groundless may be the prosecution against him ; for he is bound to 
 submit to his imprisonment, until he is discharged bv due course of 
 law. 2 Inst. 590 ; 1 Hale, 610 ; 2 Hawk. c. 18^ s. 5.' A party may 
 ""therefore be convicted of the felony for breaking prison be- r^, 
 fore he is convfcted of the felony for which he was impris- ^ 
 70
 
 1106 PEISON BREACH. 
 
 onotl ; tlie procooding in this instance differing from cases of escape 
 and rescue. 2 Inst. 592 ; 1 Hale, 611 ; 2 Hawk. c. 18, s. 18. But 
 although it is immaterial whether or not the prisoner has been con- 
 victed of the oifence which he has been charged Avith, yet if he has 
 been tried and ae(j[uitted, and afrerwaixls breaks prison, he will not be 
 subject to the punishment of prison breach. And even if the indict- 
 ment for the breaking of the prison be before the acquittal, and he is 
 afterwards acquitted of the principal felony, he may plead that acquit- 
 tal in bar of the indictment for felony for breach of jjrison, 1 Hale, 
 P. C. 611, 612. But a dismissal of a charge by magistrates has been 
 said to be not tantamount to an acquittal upon an indictment. R. v. 
 Waters, 12 Cox, C. C. 390, per Martin, B. 
 
 Proof of the imprisonment and the nature of the prison. The 
 
 imprisonment, in order to render the party guilty of prison breaking 
 must be a lawful im])risonment ; actual imprisonment will not be suffi- 
 cient ; it must be primd facie justifiable.^ Therefore where a felony 
 has been committed, and the prisoner is aj)prehended for it without 
 cause of suspicion, and the mittimus is informal, and he breaks prison, 
 this will not be felony, though it would be otherwise if there were 
 such cause of suspicion as would form a justification for his arrest. 
 Hawk. P. C. b. 2, c. 11, ss. 7, 15; 1 Hale, P. C. 610. So if no 
 felony has in fact been committed, and the party is not indicted, no 
 mittimus will make him guilty Mathin the statute, his imprisonment 
 being unjustifiable. Id. But if he be taken upon a capias awarded 
 on an indictment against him, it is immaterial whether he is guilty or 
 innocent, and whether any crime has or has not in fact been commit- 
 ted, for the accusation being on record, makes his imprisonment law- 
 ful, though the prosecution be groundless. Hawk. P. C. b. 2, c. 18, 
 ss. 5, 6. 
 
 The statute extends to a prison in law, as well as to a prison in 
 deed. 2 Inst. 599. An imprisonment in the stocks, or in the house 
 of him who makes the arrest, or in the house of another, in sufficient. 
 1 Hale P. C. 609. So if a party arrested, violently rescues himself 
 from the hands of the party arresting him. Id. The imprisonment 
 intended is nothing more than a restraint of liberty. Hawk. P. C. b. 
 2, c. 18, s. 4. 
 
 It is sufficient if the gaoler has a notification of the offence for 
 which the prisoner is committed, and the prisoner of the offence for 
 which he was arrested, and commonly, says Lord Hale, he knows his 
 own guilt, if he is guilty, without much notification. 1 Hale P. C. 610. 
 
 Proof of the breaking of the prison. An actual breaking of the 
 prison with force, and not merely a constructive breaking, must be 
 
 ' State V. Leach, 7 Conn. 752. Where the sole object of a prisoner illegally con- 
 fined is to liberate himself, he is not liable, though other real criminals, by means of 
 his prison breach, escape. Id. S. 
 
 An acquittal of the crime for which the defendant was arrested is no defence to 
 an indictment for prison breach. State v. Lewis, 19 Kan. 260.
 
 PRISON BREACH. 1107 
 
 proved. If a gaoler sets open the prison doors, and the prisoner 
 escapes, this is no felony in the latter. 1 Hale, P. C. 611. And if 
 the prison is fired, and the prisoner escapes to save his life, this ex- 
 cuses the felony, unless the prisoner himself set fire to the prison. 
 Id. In these cases the breaking amounts to a misdemeanor only. 
 The breaking must be by the prisoner himself, or by his procure- 
 ment, for if other persons without his privity or consent break the 
 prison, and he escape through the breach so made, he cannot be 
 *indicted for the breaking, but only for the escape. 2 Hawk. r*r.QQ 
 c. 18, s. 10. No breach of prison will amount to felony, un- •- 
 less the prisoner actually escape. 2 Hawk. c. 18, s. 12 ; 2 Inst. 590; 
 1 Hale, 611. A prisoner convicted of felony made his escape over the 
 walls of a prison, in accomplishing which he threw down some bricks 
 from the top of the wall, which had been placed there loose, without 
 moitar, in the form of pigeon holes, for the purpose of preventing es- 
 capes. Being convicted of prison breaking, a doubt arose whether 
 there was such force as to constitute that offence, but the judges were 
 unanimously of opinion that the conviction was right. R. v. Haswell, 
 Russ. & Ry. 458. 
 
 Punishment. Although to break prison and escape, when lawfully 
 committed for any treason or felony, still remains felony as at common 
 law, the breaking prison when lawfully confined upon any other in- 
 ferior charge, is punishable only as a high misdemeanor by fine and 
 imprisonment. 4 Bl. Com. 130; 2 Hawk. c. 18, s. 21. 
 
 By the 7 & 8 Geo. 4, c. 28, s. 8, "every person convicted of any 
 felony not punishable with death, shall be punished in the manner pre- 
 scribed by the statute or statutes especially relating to such felony ; 
 and every person convicted of any felony, for which no punishment 
 hath been, or hereafter may be specially provided, shall be deemed to 
 be punishable under this Act, and shall be liable, at the discretion of 
 the court, to be transported beyond the seas [now penal servitude] for 
 the term of seven years, or to be imprisoned for any term not exceed- 
 ing 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 s. 8, in cases of imprisonment, the court may award hard labor 
 and solitary confinement ; but the latter is not to exceed one month at 
 a time, and three months in any one year. 
 
 By the Irish statutes, the 1 & 2 Will. 4, c. 44, s. 4, every person 
 who shall by force or violence break open any gaol, prison, or bride- 
 well, with an intention to rescue and enlarge himself, or any other 
 prisoner therein confined on account of any offence, though the same 
 be not capital, shall be transported for life, or for seven or fourteen 
 years ; or be imprisoned, with or without hard labor, for any term not 
 exceeding three years ; and if a male, be once, twice, or thrice pub- 
 licly or privately whipped, if the court shall think fit, in addition to 
 such imprisonment ; and shall and may be tried before the trial of the 
 person or persons so enlarged.
 
 1108 PRISON BREACH. 
 
 Conveying tools, etc., to prisoners to assist in escape. By the 
 28 & 29 Vict. c. 126, s. 37, " every person wlio aids any prisoner in 
 escaping or attempting to escape from any prison, or who, with intent 
 to iacilitate the escape of any prisoner, conveys or canses to be con- 
 veyed into any prison any such mask, dress, or other disguise, or any 
 letter, or any otlier article or thing, shall be guilty of felony, and on 
 conviction be sentenced to imprisonment with hard labor for a term 
 not exceeding two years." By the interpretation clause, "prison" 
 shall mean gaol, house of correction, bride^\ell, or penitentiary; it 
 shall include the airing grounds or other grounds or buildings oc- 
 cupied by prison officers for the use of the prison, and contiguous 
 thereto. 
 
 The repealed statute 4 Geo. 4, c. 64, contained the words " or any 
 
 instrument or arms," etc., but it has been held that the words " any 
 
 *«Qm *other article or thing " are more general, and will include 
 
 ^^^-1 a crowbar. R. v. Payne, 8 L. R. 1 C. C. 27 ; 35 L. J., M. 
 
 C. 170. 
 
 An indictment under section 43 of the repealed statute need not have 
 set out the means which had been used by the defendant to assist the 
 prisoner to escape. R. v. Holloway, 2 Den. C. C. R. 287. In that 
 case the indictment charged that A., being a prisoner in a gaol, was 
 meditating and endeavoring to effect his escape, and had procured a 
 key to be made with intent to effect his escape, and had made overtures 
 to the defendant, then and there being a turnkey in the said gaol, to 
 induce the defendant to aid and assist him to escape ; that the defend- 
 ant then and there, and whilst A. was such prisoner in the gaol, re- 
 ceived the said key with intent to enable A. to escape from the gaol, 
 and go at large withersoever he would ; and so the defendant then and 
 there feloniously did aid and assist A., then and there being such 
 prisoner, in so attempting to escape from the gaol. It was held that 
 the offence was stated with sufficient particularity, and that the aiding 
 and assisting sufficiently appeared to be an illegal act. It was held, 
 also, that the prosecution need not, under this statute, be instituted 
 within one year after the offence committed, as was required by 16 
 Geo. 2, c. 31, s. 4. 
 
 Special enactments. The offence of prison breach is made the 
 subject of special provisions in various statutes. Thus, by the 
 5 & 6 Vict. c. 29, s. 24, prison breaking from Pentonville 
 prison, and by the 6 & 7 Vict. c. 26, s. 22, prison breaking 
 from the Penitentiary at Millbank, are made punishable by addi- 
 tional imprisonment for three years, and in case of a second 
 offence, by transportation for seven years, or imprisonment not ex- 
 ceeding two years, with or without hard labor, and with or without 
 solitary confinement, and if a male, with once, twice, or thrice 
 whipping, public or private, at the discretion of the court. A similar 
 punishment is enacted by the 1 & 2 Vict. c. 82, s. 12, for prison 
 breach from Parkhurst prison.
 
 PUBLIC COMPANIES — OFFENCES BY OFFICERS OF, 1109 
 
 ♦PUBLIC COMPANIES— OFFENCES BY OFFICERS OF. [*891 
 
 Embezzlement of property. By the 24 & 25 Vict. c. 96, s. 81, 
 " whosoever, being a director, member, or public officer of any body 
 corporate or public company, shall fraudulently take or apply for his 
 own use or benefit, or for any use or purposes other than the use or 
 purposes of such body corporate or public company, an^ of the prop- 
 erty of such body corporate or public company, 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," namely, penal servi- 
 tude not exceeding seven years and not less than three [now five] 
 years, or imprisonment not exceeding two years, with or without 
 hard labor, and with or without solitary confinement. See s. 75, supra, 
 p. 278. 
 
 Keeping fraudulent accounts. By s. 82, " whosoever, being a 
 director, public officer, or manager of any body corporate or public 
 company, shall, as such, receive or possess himself of any of the 
 property of such body corporate or public company, otherwise than 
 in payment of a just debt or demand, and shall, with intent to 
 defraud, omit to make, or to cause or direct to be made, a full and 
 true entry thereof in the books and accounts of such body corporate 
 or public company, shall be guilty of a misdemeanor." The 
 punishment is the same as for the oifence mentioned in the last 
 section. 
 
 Destroying or falsifying books, etc. By s. 83, " whosoever, being 
 a director, manager, public officer, or member of any body corporate 
 or public company, shall, with intent to defraud, destroy, alter, 
 mutilate, or falsify any book, paper, writing, or valuable security 
 belonging to the body corporate or public company, or make or con- 
 cur in the making of any false entry, or omit or concur in omitting 
 any material particular in any book of account or other document, 
 shall be guilty of a misdemeanor." The punishment is the same as 
 before. 
 
 Publishing fraudulent statements. By s. 84, " whosoever, being 
 a director, manager, or public officer of any body corporate or public 
 company, shall make, circulate, or publish, or concur in making, cir- 
 culating, or publishing, any written slatement or account which he 
 shall know to be false in any material particular, with intent to 
 deceive or defraud any member, shareholder, or creditor of such body 
 corporate or public company, or with intent to induce any person to
 
 niO PUBLIC COMPANIES OFFENCES BY OFFICERS OF. 
 
 become a shareholder or partner therein, or to intrust or advance any 
 property to such body corporate or public company, or to enter into 
 any security for the benefit thereof, shall be guilty of a misdemeanor." 
 The same punishment as before. 
 
 * Interpretation. As to the meaning of the term " property," 
 s. 1, ante, p. 640. 
 These offences are not triable at quarter sessions ; see s. 87. 
 
 *8921 
 
 -■ see s. 1, ante, p. 640 
 
 Protection of persons accused. Persons accused under these sec- 
 tions are not protected from answering ; but they cannot be convicted 
 of any offence under these sections if they have previously disclosed 
 the circumstances relied on upon oath and upon compulsion ; see ante, 
 p. 281. 
 
 Falsification of books of joint-stock company. By the 25 & 26 
 
 Vict. c. 89, ss. 166—168, officers, etc., falsifying books in the course of 
 winding up are guilty of a misdemeanor, and liable to two years^ 
 hard labor ; and provision is made for the payment of the expenses of 
 the prosecution. 
 
 As to falsification of accounts by other persons, see 38 Vict. c. 24, 
 ante, p. 462. 
 
 Oflfences with respect to declarations by railway officers, etc. 
 See 29 & 30 Vict. c. 108, ss. 15-17, and 31 & 32 Vict. c. 119, s. 5.
 
 RAILWAYS — OFFENCES RELATING TO. 1111 
 
 ♦RAILWAYS— OFFENCES RELATING TO. [*893 
 
 PAGE 
 
 Signing false statements, etc • . . . 893 
 
 Misconduct of servants of railway companies 893 
 
 Setting fire to railway stations 894 
 
 Doing certain acts with intent to endanger the safety of passengers . 894 
 
 Endangering the safety of passengers 895 
 
 Doing certain acts with intent to obstruct or injure engines or car- 
 riages ,,......•... 895 
 
 Obstructing engines or carriages 895 
 
 Proof of intent 895 
 
 Proof of place being a railway 896 
 
 Proof of obstruction 896 
 
 Distinction between felonies and misdemeanors 896 
 
 Signing false statements, etc. Delivering mortgages, bonds or 
 deeds without a proper declaration, or signing a false declaration, are 
 offences within the 29 & 30 Vict. c. 108, ss. 15—17, and the 31 & 32 
 Vict. c. 119, s. 5 ; and a false statement upon oath to an inspector is 
 an offence under s. 8 of the latter act. 
 
 Misconduct of servants of railway companies. By the 3 & 4 
 Vict. c. 97, s. 13, "it shall be lawful for any officer or agent of any 
 railway company, or for any special constable duly appointed, and all 
 such persons as they may call to their assistance, to seize and detain 
 any engine-driver, guard, porter, or other servant in the employ of 
 such company who shall be found drunk while employed upon the 
 railway, or commit any offence against any of the by-laws, rules, or 
 regulations of such company, or shall wilfully, maliciously, or neg- 
 ligently do or omit to do any act whereby the life or limb of any per- 
 son passing along or being upon the railway belonging to such com- 
 pany or the works thereof respectively, shall be or might be injured 
 or endangered, or whereby the passage of the engines, carriages, or 
 trains, shall be or might be obstructed or impeded, and to convey such 
 engine-driver, guard, porter, or other servant so offending, or any 
 person counselling, aiding, or assisting in such offence, with all con- 
 venient despatch, before some justice of the peace for the place within 
 which such offence shall be committed, without any other warrant or 
 authority than this Act ; and every such person so offending, and 
 every person counselling, aiding, or assisting therein as aforesaid, 
 shall, M'hen convicted before such justice as aforesaid (who is hereby 
 authorized and required, upon complaint to him made, upon oath, 
 without information in writing, to take cognizance thereof, and 
 to act summarily in the premises), in the discretion of such justice, 
 be imprisoned with or without hard labor, for any term not ex- 
 ceeding two calendar months, or in the like discretion of such 
 justice, shall for every such offence forfeit to her Majesty any sum 
 *not exceeding ten pounds, and in default of payment thereof r*oQ4 
 shall be imprisoned, with or without hard labor as aforesaid, for L
 
 1112 RAILWAYS — OFFENCES RELATING TO. 
 
 such period, not exceeding two calendar montlis, as such justice shall 
 appoint ; such commitment to be determined on payment of the 
 amount of the penalty ; and every such penalty shall be returned to 
 the next ensuing court of quarter sessions in the usual manner.'' See 
 the provisions of this section extended by the 5 & 6 Vict. c. 55, s. 1 7 
 (U. K.). 
 
 By the 3 & 4 Vict. c. 97, s. 14 (if upon the hearing of any such 
 complaint he shall think fit), "it shall be lawful for any such justice, 
 instead of deciding upon the matter of complaint summarily, to com- 
 mit the person or persons charged with such offence for trial for the 
 same at the quarter sessions for the county or place wherein such 
 offence shall have been committed, and to order that any such person 
 so committed shall be imprisoned and detained in any of her Majesty's 
 gaols or houses of correction in the said county or place in the mean- 
 time, or to take bail for his appearance, with or without sureties, in 
 his discretion ; and every such person so offending, and convicted be-' 
 fore such court of quarter sessions as aforesaid (which said court, is 
 hereby required to take cognizance of and hear and determine such 
 complaint), shall be liable, in the discretion of such court, to be im- 
 prisoned, with or without hard labor, for any term not exceeding two 
 years." 
 
 Setting fire to railway stations. See 24 & 25 Vict. c. 97, s. 4, 
 supra, p. 285, 
 
 Doing certain acts with intent to endanger the safety of 
 passengers. By the 24 & 25 Vict. c. 100, s. 32, "whosoever shall 
 unlawfully and maliciously put or throw upon or across any railway 
 any wood, stone, or other matter or thing, or shall unlawfully and 
 maliciously take up, remove, or displace any rail, sleeper, or other 
 matter or thing belonging to any railway, or shall unlawfully and 
 maliciously turn, move, or divert any points or other machinery be- 
 longing to any railway, or shall unlawfully and maliciously make or 
 show, hide or remove any signal or light upon or near to any railway, 
 or shall unlawfully and maliciously do or cause to be done any other 
 matter or thing, with intent, in any of the cases aforesaid, to endanger 
 the safety of any person travelling or being upon such railway, shall 
 be guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for life, or for 
 any term not less than three [now five] years, or to be imprisoned for 
 any term not exceeding two years, with or without hard labor, and, if 
 a male under the age of sixteen years, with or without whipping." 
 
 By s. 33, "whosoever shall unlawfully and maliciously throw, or 
 cause to fall or strike at, against, into, or upon any engine, tender, 
 carriage, or truck used upon any railway, any wood, stone, or other 
 matter or thing with intent to injure or endanger the safety of any 
 person being in or upon such engine, tender, carriage, or truck, or in 
 or uj)on any other engine, tender, carriage, or truck of any train of 
 which such first-mentioned engine, tender, carriage, or truck shall 
 form part, shall be guilty of felony, and being convicted thereof shall
 
 RAILWAYS OFFENCES RELATING TO. 1113 
 
 be liable, at the discretion of the court, to be kept in penal servitude 
 for life, or for any term not less than three [now five] years, — or to be 
 *imprisoned for any term not exceeding two years, with or r*oQK 
 without hard labor." ^ 
 
 Endangering the safety of passengers. By s. 34, " whosoever, 
 by any unlawful act, or by any wilful omission or neglect, shall en- 
 danger or cause to be endangered the safety of any person conveyed 
 or being in or upon a railway, or shall aid or assist therein, shall be 
 guilty of a misdemeanor, and being convicted thereof shall be liable, 
 at the discretion of the court, to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labor." 
 
 Doing certain acts with intent to obstruct or injure engines or 
 carriages. By the 24 & 25 Vict. c. 97, s. 35, "whosoever shall un- 
 lawfully and maliciously put, place, cast, or throw upon or across any 
 railway any wood, stone, or other matter or thing, or shall unlawfully 
 and maliciously take up, remove, or displace, any rail, sleeper, or 
 other matter or thing belonging to any railway, or shall unlawfully 
 and maliciously turn, move, or divert any points or other machinery 
 belonging to any railway, or shall unlawfully and maliciously make 
 or show, hide or remove any signal or light upon or near to any rail- 
 way, or shall unlawfully and maliciously do or cause to be done any 
 other matter or thing, with intent, in any of the cases aforesaid, to 
 obstruct, upset, overthrow, injure, or destroy any engine, tender, car- 
 riage, or truck, using such railway, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for life or for any term not less than three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labor, and, if a male under the age of 
 sixteen, with or without whipping." 
 
 Obstructing engines or carriages. By s. 36, " whosoever, by any 
 unlawful act, or by any wilful omission or neglect, shall obstruct or 
 cause to be obstructed any engine or carriage using any railway, or 
 shall aid or assist therein, shall be guilty of a misdemeanor, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labor." 
 
 Proof of intent. A party designedly placing on a railway sub- 
 stances which would be likely to produce an obstruction of the car- 
 riages, though he might not have done the act expressly with that ob- 
 ject, was held to be indictable under the 3 & 4 Vict. c. 97, s. 15, 
 which corresponds to the 24 & 25 Vict. c. 100, s. 33. R. v. Holroyd, 
 2 Moody & R. 339. 
 
 The prisoner was indicted under s. 7 of the 14 & 15 Vict. c. 19, 
 which is similar to the 24 & 25 Vict, c. 100, s. 33, for wilfully and 
 maliciously throwing a stone into a railway carriage, with intent to 
 endanger the safety of a person in it. It appeared that there had been
 
 1114 RAILWAYS — OFFENCES RELATING TO. 
 
 considerable popular excitement against a person who was about to 
 travel by the train, and there was a crowd assembled at the time of 
 his departure, and that the prisoner threw a stone at this person 
 whilst he was in the carriage. Erie, J., after consulting AVilliams, J., 
 said, " looking at the preamble of the sections of this statute relat- 
 ing to this class of offences, which recites that it is 'expedient to 
 *«Qn *make further provision for the punishment of aggravated 
 -^ assaults ;' and looking also to the provision of these clauses as 
 indicated by the terms of the 6th section immediately preceding the 
 section upon which this indictment is framed, I consider that the intent 
 to'endanger the safety of cwy person travelling on the railway, spoken 
 of in both sections, must appear to have been an intent to inflict some 
 grievous bodily harm, and such as would sustain an indictment for 
 assaulting or wounding a person with intent to do some grievous 
 bodily harm." And the learned judge accordingly took the opinion 
 of the jury whether such was the intent of the prisoner. R. v. Kooke, 
 1 F. & F, 107. Where the prisoner, while standing on a bridge, threw 
 a stone over the parapet wall, which fell upon the tender of a passing 
 engine, and there was no one on the tender at the time, it was held 
 that the prisoner could not be convicted under sect. 7 of 14 & 15 Vict. 
 c. 19, as the words of that section were limited to the case of anything 
 thrown upon an engine or carriage containing persons therein. R. v. 
 Court, 6 Cox, C. C. 202. See, however, 1 Russ. on Crimes 995 (n), 
 6th ed., note by Greaves. 
 
 Proof of place being a railway. A railway intended for the con- 
 veyance of passengers, and completely constructed and used for con- 
 veying workmen and materials, but not open to the public, is within 
 the provisions of the 3 & 4 Vict. c. 97, s. 15. R. v. Bradford, 29 
 L. J., M. C. 171. See, as to the interpretation of the word "rail- 
 way," s. 21 of this statute. 
 
 Proof of obstruction. The defendant altered the arms of a signal 
 and the color of two distant lights, and the consequence was that the 
 driver of a train slackened speed and nearly brought the train to a 
 stand-still, causing delay. It was held that this was an obstruction of 
 an engine within section 36, supra. R. v. Hadfield, L. R. 1 C. C. R, 
 253; 39 L. J., M. C. 131. So also where a man caused a train to 
 slacken speed by holding up his hands, it was held to be an obstruc- 
 tion. R. V. Hardy, L. R. 1 C. C. R. 278. 
 
 Distinction between felonies and misdemeanors under the sec- 
 tions. The 24 & 25 Vict. c. 97, s. 35, and the 24 & 25 Vict. c. 100, 
 s. 32, make it a felony to do certain acts with certain intents. Sect. 
 36 of the former and s. 34 of the latter make the same acts done 
 without intent a misdemeanor ; and it has been held that an acquittal 
 for a felony under the first mentioned sections is no bar to a trial 
 under the latter for a misdsmeanor. R. v. Gilmore, 15 Cox, C. C. 85. 
 See the case ante, p. 204.
 
 RAPE AND DEFILEMENT. 1115 
 
 ♦RAPE AND DEFILEMENT. [*897 
 
 PAGE 
 
 Rape 897 
 
 Procuring defilement of a girl under the age of twenty -one years . 897 
 
 Carnally knowing a girl under twelve years of age .... 897 
 
 between the ages of twelve and thirteen 897 
 
 Indecent assault 898 
 
 Abduction 898 
 
 Definition of carnal knowledge 898 
 
 Definition of rape 898 
 
 Proof with regard to person committing the offence of rape , . 898 
 on whom the oflence of rape is com- 
 mitted 899 
 
 Proof of the offence of rape having been completed , . . . 901 
 
 Accessories 902 
 
 Competency and credibility of the witnesses ..... 902 
 
 Defilement of children — proof of age ....*. 903 
 
 Nature of the offence .......... 904 
 
 Assault with intent to ravish. . . i . . . . 904 
 
 Eape. By the 24 & 25 Vict. c. 100, s. 48, " whosoever shall be 
 convicted of the crime of rape shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any term not less than three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labor." 
 
 Procuring the defilement of a girl under the age of twenty-one 
 years. By s. 49, " whosoever shall, by false pretences, false repre- 
 sentations, or other fraudulent means, procure any woman or girl under 
 the age of twenty-one years to have illicit carnal connection with any 
 man shall be guilty of a misdemeanor, and being convicted thereof 
 shall be liable, at the discretion of the court, to be imprisoned for any 
 term not exceeding two years, with or without hard labor." 
 
 Carnally knowing a girl under twelve years of age. By the 24 
 <fe 25 Vict. c. 100,, s. 50, which section is now repealed, carnally 
 knowing a girl under the age of ten years was a felony ; but now, by 
 the 38 & 39 Vict, c. 94, s. 3, "whosoever shall unlawfully and car- 
 nally know and abuse any girl under the age of twelve years shall be 
 guilty of felony, and being convicted thereof, shall be liable, at the 
 discretion of the court, to be kept in penal servitude for life, or for 
 any term not less than fiv^e years, or to be imprisoned for any term 
 not exceeding two years, with or without hard labor." 
 
 Carnally knowing a girl between the ages of twelve and thir- 
 teen. 'By 24 & 25 Vict. c. 100, s. 51, which section is now repealed, 
 carnally *knowing a girl between the ages of ten and twelve r^oqo 
 years was a misdemeanor ; but now by the 38 & 39 Vict. c. L
 
 1116 RAPE AND DEFILEMENT. 
 
 94, s. 4, " whosoever shall unlawfully and carnally know and abuse 
 any girl being above the age of twelve years and under the age of 
 thirteen years, whether with or without her consent, shall be guilty of 
 a misdemeanor, and, being convicted thereof, shall be liable, at the 
 discretion of the court, to be imprisoned for any term not exceeding 
 two years, with or without hard labor." 
 
 This section, besides altering the age of the girl to thirteen instead 
 of twelve, expressly renders her consent innnaterial. Under the old 
 section it had been held that the consent of the girl being under the 
 age of twelve was immaterial, see post, p. 904. 
 
 Indecent assault. See 24 & 25 Vict. c. 100, s. 52, supra, p. 
 303. 
 
 Abduction. See 24 & 25 Vict. c. 100, s. 53—56, supra, pp. 267, 
 268. 
 
 Definition of carnal knowledge. By 24 & 25 Vict. c. 100, s. 63, 
 " whenever, upon the trial of any offence punishable under this Act, 
 it may be necessary to prove carnal knowledge, it shall not be neces- 
 sary to prove the actual emission of seed in order to constitute a carnal 
 knoM'ledge, but the carnal knowledge shall be deemed complete upon 
 proof of penetration only.^ 
 
 Definition of rape. The provision as to rape in the 13 Edw. 1, 
 st. 1, c. 34, is as follows : — " It is provided that if a man from hence- 
 forth do ravish a woman, married, maid, or other, where she did not 
 consent, neither before nor after, he shall have judgment of life and 
 of member."^ This statute is repealed by the now repealed statute 
 9 Geo. 4, c. 31, s. 1, but it is held notwithstanding to contain the 
 right definition of rape, except so far as the subsequent consent is con- 
 cerned R. V. Fletcher, Bell, C. C. 63 ; 28 L. J., M. C. 85. And in 
 accordance with this definition, that case and R. v. Camplin, 1 C. & K. 
 149, 47 E. C. L., and other cases were decided. See these cases stated 
 infra. In the definitions, therefore, given in 1 Hale, P. C 628 ; 3 
 Inst. 60; Hawk. P. C. b. 1, c. 41, s. 2, where rape is said to be the 
 carnal knowledge of a woman against her will, the words " against her 
 will " must be taken to mean no more than " without her consent," 
 if the above-mentioned cases are to be taken as correct law. Some 
 doubt, however, has been thrown upon them by the case of R. v. 
 Fletcher, L. R. 1 C. C. R. 39 (and see the report of this case, 35 L. 
 J., M. C. 172). See this case stated infra, p. 900. 
 
 1 See Commonwealth v. Squires, 97 Mass. 59 ; Noble v. State, 22 O. St. 541 ; Hilta- 
 biddle v. State, 35 O. St. 52 ; State v. Harj^rave, 65 N. C. 466 ; Dawkins v. State, 58 
 Ala. 378; s. c. 29 Am. Rep. 754; R. v. Holland, 16 L. T. N. S. 536; s. c. 11 W. R. 
 757; 10 Cox, Cr. C. 478. 
 
 * Sex need not be averred in the indictment. The injured person is sufficiently 
 indicated by the name " Theresa " and the word " her." Battle v. State, 4 Tex. App. 
 595.
 
 RAPE AND DEFILEMENT. 1117 
 
 It has never been doubted that having connection with a cliild 
 under ten years is a rape, whether she consent or not. See 
 the passages in Hale, Leach, Coke, and Hawkins, ah'eady referred 
 to.' 
 
 Proof with regard to the person committing the oflfenee of rape. 
 An infant under the age of fourteen years is presumed by law unable 
 to commit a rape, but he may be a principal in the second degree, as 
 aiding and assisting, if it appear by the circumstances of the case that 
 he had a mischievous intent.^ 1 Hale, P. C. 630. R. v. Elderhaw, 
 3 C. & P. 396, 14 E. C. L.; R. v. Groombridge, 7 C. & P. 582, 32 
 E. C. L. Where a lad under fourteen was charged with an assault to 
 commit a rape, Patteson, J., said, '*! think that the prisoner could 
 not in point of law be guilty of the offence of assault with intent 
 to commit a rape, *if he was at the time of the offence under r^onq 
 the age of fourteen. And I think also that if he was under ■- 
 that age, no evidence is admissible to show that in point of fact he 
 could commit the offence of rape." R. v. Phillips, 8 C. & P. 736, 
 34 E. C. L. See also R. v. Jordan, 9 C. & P. 118, 38 E. C. L., 
 where Williams, J., held that a boy under fourteen years of age 
 could not be convicted of carnally knowing and abusing a girl 
 under ten years old, although it was proved that he had arrived at 
 puberty. 
 
 Although a husband cannot be guilty of a rape upon his own wife, 
 he may be guilty as a principal in assisting another person to commit 
 a rape upon her. R. v. Lord Audley, 1 St. Tr. 387, /o. ed.; 1 Hale, 
 P. C. 629. The wife in this case is a competent witness against her 
 husband. Id. 
 
 Where a prisoner was convicted of a rape on an indictment, which 
 charged that he " in and upon E. F., etc., violently and feloniously 
 did made " (omitting the words " an assault ") " and her the said 
 E. F., then and there against her will violently and feloniously did 
 ravish and carnally know against the form of the statute, etc. ;" it 
 was held, by ten of the judges, that the omission of these words was 
 no ground for arresting the judgment. R. v. Allen, 9 C. & P. 521, 
 38 E. C. L. 
 
 Proof with regard to the person upon whom the offence is com- 
 mitted. It must appear that the offence was committed without the 
 consent of the woman ; but it is no excuse that she yielded at last to 
 the violence, if her consent was forced from her by fear of death or 
 by duress. Nor is it any excuse, that she consented after the fact, or 
 
 ^ In case of female child less than ten years of age. O'Meara v. State, 17 O. St. 
 515 ; Moore v. State, Id. 521 ; Stephen v. State, 11 Ga. 225. S. That the female is 
 under ten years of age may be shown at the trial, though the indictment contain no 
 such allegation. McMath y. State, 55 Ga. 303. 
 
 * People V. Randolph, 2 Parker's C R. 174; Commonwealth v. Scannel, 11 Cush. 
 547. An infant under the age of fourteen, cannot commit the crime of rape, or be 
 guilty of an assault with intent to commit rape. State v. Sam, 1 Winst. 300. S,
 
 1118 EAPE AND DEFILEMENT. 
 
 that she was a common strumpet;^ for she is still under the pro- 
 tection of the law and may not be forced ; or that slie was first taken 
 with her own consent, if she was afterwards forced against her will ; 
 or that she was a concubine to the ravisher, for a woman may forsake 
 her unlawful course of life, and the law will not presume her inca- 
 pable of amendment.^ All these circumstances, however, are mate- 
 rial, to be left to the jury in favor of the accused, more especially in 
 doubtful cases, and where the woman's testimony is not corrol)orated 
 by other evidence. 1 East, P. C. 444 ; 1 Hale, 628, 631 ; Hawk. 
 P. C. b. 1, c. 41, s. 2 ; li. V. Fletcher, Bell, C. C. 63 ; 28 L. J., 
 M. C. 85. 
 
 The opinion that, where the woman conceived, it could not be rape, 
 because she must have consented, is now completely exploded. 1 East, 
 P. C. 445 ; 1 Russ. Cri. 860, 5th ed.^ 
 
 Whether carnal knowledge of a woman, who, at the time of the 
 commission of the oifence, supposed a man to be her husband, is a 
 rape, came in question in the following case. The prisoner was in- 
 dicted for a burglary, with intent to commit a rape. It appeared 
 that the prisoner got into the woman's bed as if he had been her 
 husband, and was in the act of copulation, when she made the dis- 
 covery ; upon which, and before completion, he desisted. The jury 
 found that he had entered the house with intent to pass for her 
 husband, and to have connection with her, but not with the intention 
 of forcing her, if she made the discovery. The prisoner being con- 
 victed, upon a case reserved, four of the judges thought that the 
 having carnal knowledge of a woman, while she was under the belief 
 of the man being her husband, would be a rape ; but the other eight 
 judges thought that it would not : several of the eight judges inti- 
 mated that if the case should occur again, they would advise the jury 
 *Qnm *^^ ^"^ ^ special verdict. R. v. Jackson, Russ. & Ry. 487, 
 -I The point was again reserved, in R. v. Clarke, 1 Dears. 8 P. C. 
 C. R. 397 ; 24 L. J., M. C. 25, where the Court of Criminal Appeal 
 upheld the decision come to in R. v. Jackson, and decided that under 
 the circumstances the prisoner was not guilty of rape. See also R. v, 
 Stanton, 1 C. & K. 415, 47 E. C. L., and R. v. Barrow, L. R. 1 C. C. 
 R. 156 ; 38 L. J., M. C. 20, where it did not appear that the woman 
 was unconscious or asleep, though there was consent obtained by fraud. 
 
 ' Eichie v. State, 58 Ind. 355. Proof of any consent on the part of the complain- 
 ant, however reluctant, will rebut the presumption of rape. State v. Burgdorf, 53 
 Mo. 65. As to cross-examination of the prosecutrix on her account of the rape made 
 shortly after with a view to show that she consented. Rogers v. People, 34 Mich. 
 845. The resistance of the woman must be to her utmost ability. Mathews v. State, 
 19 Neb. 330. 
 
 * As to the evidence necessary to sustain an indictment for fornication and illicit 
 intercourse: Pollock t;. Pollock, 71 N. Y. 137 ; State v. Waller, 80 N. C. 401. On 
 Indiana statute: State r. Stephens, 63 Ind. 542; Zorger v. Greensburgh, 60 Ind. 1. 
 Definition of offence in Texas: Wolffr. State, 6 Tex. App. 195. In Alabama there 
 can be no marriage between black and white. Hoover v. State, 59 Ala. 57 ; Green v. 
 State, Id. 68. In an indictment for incest, cohabit does not necessarily mean as man 
 and wife. State v. Lawrence, 19 Neb. 307. 
 
 » United States v. Dickinson, Hemp. C. C. (U. S.) 1.
 
 RAPE AND DEFILEMENT. 1119 
 
 But it would be otherwise if the jury found that the woman was asleep ; 
 and where a man intended to have connection with a woman while she 
 was asleep, and attempted to do so, it was ruled that he might be con- 
 victed of the attempt.' Per Lush, J., R. v. Myers, 12 Cox, C. C. 311. 
 The case of R. v. Barrow, supra, was questioned in R. v. Flattery, 2 
 Q,. B, D. 410, 46 L. J., M. C. 130, where the prisoner, under pretence 
 of performing a surgical operation on the prosecutrix, had connection 
 with her, she submitting to his treatment, believing, as she swore, 
 that he was treating her medically. The court on these facts held 
 the prisoner to have been rightly convicted of rape. Speaking of the 
 case of R. v. Barrow, supra, Mellor, J., said, " I am shocked to find 
 the facts of that case were held to show consent," the other judges 
 expressing their concurrence in this expression of opinion. And 
 where in a similar case the woman resisted the moment she discov- 
 ered that the man (the prisoner) having connection with her was 
 not her husband, and the jury in answer to questions left to them by 
 the judge found that she at no time consented, that it was against her 
 will and that her conduct did not lead the prisoner to the belief that 
 she did consent, it was held that he was rightly convicted of rape. 
 R. V. Young, 14 Cox, C. C. R. 114. 
 
 In R. V. Camplin, 1 C. & K. 746, 47 E. C. L.; 1 Den. C. C. 89, it 
 was proved that the prisoner made the prosecutrix quite drunk, and 
 that when she was in a state of insensibility, the prisoner took advan- 
 tage of it, and had connection with her. The jury found the prisoner 
 guilty, but said that the prisoner gave the prosecutrix the liquor for the 
 purpose of exciting her, and not with the intention of rendering her 
 insensible, and then having connection with her. It was held that 
 the prisoner was properly convicted of rape. This decision was ap- 
 proved of in R. V. Fletcher, Bell, Cr. C. 63 ; 28 L. J., M. C. 85. 
 There the prisoner had carnal knowledge of a girl thirteen years of 
 age, who, from defect of understanding, M^as incapable of giving con- 
 sent, or of exercising any judgment in the matter, and the prisoner was 
 held to be guilty of rape. 
 
 The attention of the court was called to this last case in that of R. 
 
 ^ In rape, force need not be such as to create a reasonable apprehension of death. 
 Waller v. State, 40 Ala. 325. Fraud where no force is intended does not make rape. 
 Walter v. People, 50 Barb. 144. Having sexual connection forcibly with a woman 
 intoxicated to the point of insensibility, is not a rape. People v. Quin, 50 Barb. 128 ; 
 [but see] Commonwealth v. Burke, 105 Mass. 376. Sexual intercourse with a woman 
 in a state of dementia, not idiotic, but approaching towards it, no circumstance of 
 force or fraud shown : held not to be rape. People v. Crosswell, 13 Mich. 427. [Bald- 
 win V. State, 15 Tex. App. 275.] It seems that it is as much a rape when effected thus 
 by stratagem as by force. People v. Barton, 1 Wheel. C. C. 378. 381, n. ; [but see] 
 Commonwealth i'. Fields, 4 Leigh, 648 [Cartes v. State, 35 Ga. 263]. If a man 
 accomplishes his purpose by fraud or by surprise, without intending to use force, it is 
 not rape. Pleasant v. State, 8 Eng. 360 ; Wyatt ?•. State, 2 Swan, 394 ; Lewis v. State, 
 80 Ala. 54 ; Pollard v. State, 2 Clarke, 567 [Thompson v. State, 43 Tex. 583]. The 
 inference arising against the truth of a charge of rape from a long silence on the part 
 of the female, is not a presumption amounting to a rule of law, but is a matter of fact 
 to be passed on by the jury. State v. Peter, 8 Jones's (Law), 19. [Declarations ofi 
 the prosecutrix that the accused was not guilty and that the prosecution was an attempt 
 to extort money from him are admissible for the defence. Sherwin v. People, 69 111. 
 55.] As to outcry in rape, see Keynolds v. People, 41 How. Pr. 179. S.
 
 1120 RAPE AND DEFILEMENT. 
 
 V. Charles Fletcher, L. R. 1 C. C. R. 39. In this case the prosecu- 
 trix was an idiot girl with one side and a foot paralyzed. The 
 prisoner admitted the tact of having had connection with her, 
 alleging consent, and tliat he had had connection with her before, 
 also with her consent. The evidence, if it showed anything, Ment 
 ratiier to confirm the prisoner's account. The medical evidence 
 was to the effect that strong animal instinct might exist, notwith- 
 standing the imbecile conditi(m of the girl. It was left to the 
 jury, in the terms used by Willes, J., in R. v. Fletcher, supra, that if 
 they were satisfied that the girl was incapable of expressing con- 
 sent or dissent, and that the prisoner had connection with her with- 
 out her consent, they should find him guilty, but that a consent pro- 
 duced by mere animal instinct would be sufficient to prevent the act from 
 *9011 *<^<^ii'^*i^"ti"g ^ ^^P6. The jury found the prisoner guilty, and 
 -J the court were unanimously of opinion that some evidence that 
 what was done to the girl was against her will or without her consent, 
 ought to have been given, and that in the absence of such evidence 
 there was no case to go to the jury. See also the report of this case, 
 35 L. J., M. C 172. The two cases of R. r. Fletcher, supra, were 
 further considered in the case of R. v. Barrett, L. R. 2 C. C. 
 81 ; 43 L. J., M. C. 7. There the prisoner was found guilty of an 
 attempt at rape on an idiot girl of fourteen and a half years old, who 
 ever since six years old had been blind and wrong in her mind, and, 
 as in the first case of R. v. Fletcher, was inca})able of givirtg consent. 
 The court, in affirming the conviction, stated that the rule laid doAvn 
 in the first case of R. v. Fletcher was right, and that it is sufficient but 
 essential to show that there was an absence of consent, and that it was 
 not intended in the second case of R. v. Fletcher to depart from this 
 rule, but that in the second case there was no sufficient evidence of 
 absence of consent. 
 
 It is submitted that the true rule must be, that where the man is 
 led from the conduct of the woman to believe that he is not com- 
 mitting a crime known to the law, the act of connection cannot under 
 such circumstances amount to a rape. In order to constitute rape 
 there must, it would appear, be an intent to have connection with the 
 woman notwithstanding her resistance. In a case of- R. v. Urry, 
 tried at Lincoln Spring Assizes, 1873, the above passage wrs approved 
 of by Denman, J. And see the remarks of that learned judge and of 
 Field, J., in R. v. Flattery, suptra, and R. v. Young, ^upra. See also 
 R. V. Thurburn, ante, p. 676, where Parke, B., said that the guilt of the 
 accused must depend ujxtn the circumstances as they appear to him. 
 
 See further, as to the difference between consent and submission, 
 and consent obtained by fraud, supra, p. 306. 
 
 Proof of the offence of rape having been completed. Upon the 
 two cases reserved, R. v. Reekspear, 1 Moo. C. C. 342, and R. v. Cox, 
 Id. 337 ; 5 C. & P. 297, 24 E. C. L., it was held by the judges that 
 proof of penetration is sufficient,* notwithstanding emission be nega- 
 
 ' Penetration should be proved beyond a reasonable doubt, and the' jury should be
 
 RAPE AND DEFILEMENT. 1121 
 
 tived ; and in a more recent case, in which it was suggested by the 
 counsel for the defence that R. v. Cox was not argued before the 
 judges by counsel, and that doubts of the propriety of the decision 
 were said to be entertained by the two judges not present ; Pat- 
 teson, J., said, '' It is true that the case was not argued, but still 
 
 1 cannot act against their decision." The learned judge afterwards 
 said, that if it should prove necessary, the case should be further 
 considered. The prisoner, however, was acquitted. R. v. Brook, 
 
 2 Lew. C. C. 267. But see now 24 & 25 Vict. c. 100, s. 63, 
 supra, p. 898. 
 
 It has been made a question, upon trials for this offence, how far 
 the circumstance of the hymen not being injured is proof that there 
 has been no penetration. In one case, where it was proved not to 
 have been broken, Ashurst, J., left it to the jury to say whether 
 penetration was proved ; for that if there were any, however small, 
 the rape was complete in law. The prisoner being convicted, the 
 judges held the conviction right. They said that, in such cases, the 
 least degree of penetration was sufficient, though it might not be 
 attended with the deprivation of the marks of virginity. R. v. Russen, 
 1 East, P. C 438. But in a late case, Gurney, B., said, " I think 
 that if the hymen is not ruptured, there is not a sufficient *pen- p *qr\n 
 etration to constitute the offence. I know that there have been L 
 cases in which a less degree of penetration has been held to be suffi- 
 cient ; but I have alwavs doubted the authority of those cases." R. v. 
 Gammon, 5 C. & P. 321, 24 E. C. L. So in Beck's Medical Juris- 
 prudence, p. 53, it is said that it would be difficult to support an accu- 
 sation of rape where the hymen is found entire.^ In a late case, where 
 the prisoner was indicted for carnally knowing a child under ten years 
 of age, the surgeon stated that her private parts internally were very 
 much inflamed, so much so that he was not able to ascertain whether 
 the hymen had been ruptured or not. Bosanquet, J. (Coleridge 
 and Coltman, JJ., being present), said, " It is not necessary, in 
 order to complete the offence, that the hymen should be ruptured, 
 provided that it Avas clearly proved that there was penetration ; 
 but where that which is so very near to the entrance has not been 
 ruptured, it is very difficult to come to the conclusion that there 
 has been penetration so as to sustain a charge of rape." The pris- 
 oner was found guilty of an assault. R. v. M'Rue, 8 C. & P. 641, 
 34 E. C. L. But in the case of R. v. Hughes, 2 Moo. C. C. 190, 
 it was held, on a case reserved, that penetration, short of rujitur- 
 ing the hymen, is sufficient to constitute the crime of rape. So in 
 the case of R. v. Lines, 1 C. & K. 393, 47 E. C. L., Parke, B., 
 told the jury that if any part of the membrum virile was within 
 
 so instructed. Davis v. State, 43 Tex. 189. The least penetration constitutes the 
 crime of rape. State v. Hargrave, 65 N. C. 466 ; State v. Shields, 45 Conn. 256 ; and 
 see Commonwealth v. Parr, 5 W. & S. (Pa.) 345 ; Comstock v. State, 14 Neb. 205. On 
 what evidence of penetration is sufficient, see People v. Crowley, 4' N. Y. Crim. 
 Rep. 26. 
 
 ^ State V, Le Blanc, 1 Const. Eep. 354 ; Pennsylvania v. Sullivan, Addison, 143, S. 
 
 71
 
 1020 NAVAL, MILITARY, AND OTHER STORES. 
 
 bv tlio act. If the defendant's husband really bought the linen at a 
 public sale, but neglected to take a certificate, or did not preserve it,, 
 it would be contrary to natnral justice after this length of time 
 punish her for his neglect. He therefore thought the evidence giveni 
 by the defendant proper to be left to the jury, and directed them that^ 
 if upon the whole of the evidence they thought the defendant came 
 into tiie possession of them without any fraud or misbehavior on her 
 part, they should acquit her. Anon., Frost. App. 439. The decision 
 was followed by Lord Kenyon in R. v. Banks, 1 Esp. 144, where the 
 prisoner was indicted for having marked naval stores in his posses- 
 sion ; where that learned judge said, that it was clear that in prosecu- 
 tions under this statute it was sufficient for the crown to prove the 
 finding of the stores with the king's mark in the defendant's posses- 
 sion, to call upon him to account for that possession, and the manner 
 of his *coming by them ; so that of course the onus lay upon 
 
 * 
 
 814] 
 
 the defendant. But that it could not bear a question, but that 
 
 the defendant had other means of showing that he had lawfully be- 
 come possessed of them than by the production of the certificate from 
 the navy board. These decisions were referred to and approved by 
 Coltman, J., in R. v. Willmett, 3 Cox, C. C. 281, and by Watson, B., 
 and Hill, J., in R. v. Cohen, 8 Cox, C. C. 41. 
 
 The goods will be construed to be in the custody and possession of 
 the prisoner, though they may never have been in his actual posses- 
 sion, or on his premises, if they have been under his control, and dis- 
 posed of by him ; as where goods were received at a railway station, 
 and while they were there the prisoner made inquiries about them, and 
 directed how and to whom they were to be delivered ; this was held 
 by the court of criminal appeal to be sufficient evidence to support a 
 conviction. R. v. Sunley, 1 Bell, C. C. 145. But see now supra, 
 38 & 39 Vict. c. 25, s. 10. 
 
 Upon an indictment under the 9 & 10 Will. 3, c. 41, s. 2, [now 
 repealed] charging the defendant with having been found in possession 
 of naval stores marked with a broad arrow, it was proved that the 
 defendant was an ironmonger, and delivered to the captain of a vessel 
 a cask of copper bolts, some of which were marked with the broad 
 arrow. Before the vessel sailed the police seized tJie cask and found 
 it to contain 150 copper bolts. The jury, in answer to questions put 
 to them, found that the prisoner was in possession of bolts marked 
 with the broad arrow, but that they (the jury) had not sufficient evi^- 
 dence before them to show that the prisoner knew they were so marked. 
 But they also found that the prisoner had reasonable means of know- 
 ing that the bolts were so marked. The court of criminal appeal held 
 that on these findings the prisoner was entitled to be acquitted. R. v. 
 Sleep, L. & C. C. C. 44 ; 30 L. J., M. C. 170. And see also R. v, 
 O'Brien, 15 L. T., N. S. 419. 
 
 As to embezzlement of stores belonging to Chelsea Hospital, see 7 
 Geo. 4, c. 16 ; as to stores belonging to Greenwich Hospital, see 28 & 
 29 Vict. c. 89. Section 45 of that act is to be read as though section 
 17 of 38 & 39 Vict. c. 25, was referred to in that section, instead of 
 the Naval and Victualling Stores Act, 1864.
 
 NUISAJ^CE. 1021 
 
 *NUISANCE. [*815 
 
 Proof of the public nature of the nuisance 815 
 
 of the degree of annoyance which constitutes a public nuisance 816 
 
 with regard to situation gl6 
 
 with regard to length of time , 817 
 
 Proof of particular nuisances '818 
 
 To liigliways gl8 
 
 Particular trades 818 
 
 Corrupting the waters of public rivers .... 819 
 
 Railways and steam engines 819 
 
 Acts tending to produce public disorders, and acts of public 
 
 indecency 819 
 
 Disorderly inns • , 821 
 
 Gaming-houses .....,,.. 821 
 
 Bawdy-houses • . . . 823 
 
 As to what amounts to a keeping ..... 823 
 
 Play-houses, etc. 823 
 
 Dangerous animals 824 
 
 Contagion and unwholesome provisions .... 824 
 
 Eaves-dropping — common scold 824 
 
 Proof of the liability of the defendant .... 825 
 
 Punishment and abatement of the nuisance .... 826 
 
 A PUBLIC or common nuisance is such an inconvenient or trouble- 
 some offence as annoys the whole community in general, and not 
 merely some particular person ; and therefore this is indictable.^ 4 
 Bl. Com. 167. It may be both indictable and actionable. Rose v. 
 Graves, 5 M. & Gr. 613, 44 E. C. L.; Fritz v. Hobson, 14 Ch. D. 
 542 ; 49 L. J. Ch. 321. 
 
 Proof of the public nature of the nuisance. The existence of the 
 matter as a public nuisance depends upon the number of persons 
 annoyed, and is a fact to be judged of by a jury. R. v. White, 
 1 Burr. 337. Thus where a tinman was indicted for the noise made 
 by him in carrying on his trade, and it appeared that it only affected 
 the inhabitants of three sets of chambers in Clifford's Inn, and that 
 the noise might be partly excluded by shutting the windows ; Lord 
 Ellenborough ruled that the indictment could not be maintained, 
 as the annoyance, if anything, was a private nuisance. R. v. Lloyd, 
 4 Esp. 200. But a nuisance near the highway, whereby the air 
 thereabouts is corrupted, is a public nuisance. R. t>. Pappineau, 2 
 Str. 686. 
 
 ^ The careless or negligent keeping of gunpowder in large quantities near dwelling- 
 houses, or where the lives of persons are tlierebv endangered, is a nuisance at common 
 law. Bradle v. People, 56 Barb. 72. Spring guns, altliough justifiably placed to pro- 
 tect life or property, may constitute a nuisance, if they cause actual danger to passers- 
 by in the street, and if this annoyance to the public is shown to be of a real and sub- 
 stantial nature. State v. Moore, 31 Conn. 479. The ofi'ence of riding or going armed 
 with unusual and dangerous weapons, to the terror of the people, is an ollence at com- 
 mon law. State v. Huntley, 3 Ired. 418. S.
 
 1122 RAPE AND DEFILEMENT. 
 
 the lahia of the pudendum, no matter how little, this was sufficient 
 to constitute a penetration, and the jury ougiit to convict tlie pris- 
 oner. 
 
 If the evidence be insufficient to support the charge of rape, but 
 sufficient to establish the offence of attempting to commit a rape, 
 the prisoner may be found guilty thereof. See 14 & 15 Vict. c. 
 100, s. 9, ari<c, 'p. 312. 
 
 Accessories. An indictment, charging the prisoner both as prin- 
 cipal in the first degree, and as aiding and abetting other men in 
 connnitting a rape, was held, after conviction, to be valid, \\\)ox\ the 
 count charging the prisoner as principal. Upon such an indictment, 
 it was held that evidence might be given of several rapes on the 
 same woman, at the same time, by the prisoner and other men each 
 assisting the other in turn, without putting the prosecutor to elect on 
 which count to proceed. K. v. Folkes, 1 Moo. C. C. 354. So a count 
 charging A. with rape as a principal in the first degree, and B. as 
 principal in the second degree, may be joined with another count 
 charging B. as a principal in the first degree, and A. as principal in the 
 second degree. R. v. Gray, 7 C. & P. 164. 
 
 Competency and credibility of the witnesses. The party ravished, 
 says Lord Hale, may give evidence upon oath, and is in law a com- 
 petent witness ; but the credibility of her testimony, and how far she 
 is to be believed, must be left to the jury, and is more or less credible, 
 according to the circumstances of fact that concur in that testimony.^ 
 For instance, if the witness be of good fame, if she presently discover 
 the offence, and make pursuit after the offender, showed circumstances 
 and signs of the injury (whereof many are of that nature that women 
 only are the most proper examiners and inspectors) ; if the place in 
 which the fact was done was remote from people, inhabitants, or pas- 
 sengers ; if the offender fled for it ; these and the like are concurring 
 evidences to give greater probability to her testimony when proved 
 by others as well as herself. 1 Hale, 633 ; 1 East, P. C. 448. On 
 ♦QrPT *^^^^ other hand, if she concealed the injury for any considera- 
 '^-' ble time after she had an opportunity to complain ; if the place, 
 where the fact was supposed to have been committed, was near to in- 
 habitants, or the common recourse or passage of passengers, and she 
 made no outcry when the fact was supposed to be done, where it was 
 probable she might have been heard by others ; such circumstances 
 
 ^ A defendant indicted for rape may be convicted on the uncorroborated testimony 
 of the prosecutrix, although she is of ill -fame for chastity. Boddie v. State, 52 Ala. 
 395. People v. Mayes, 66 Cal. 597. Contra, Matthews r. State, 19 Neb. 330. It is 
 not a leading question to ask the prosecutrix, was the act done with or without your 
 consent? Coates v. State, 2 Tex. App. 16. Evidence that bruises were found upon the 
 person of the prosecuting witness two or three weeks after the oflence was alleged to 
 have been committed is admissible. It is for the jury to determine if it corroborates 
 the prosecutrix sufficiently to warrant a conviction. State v. McLaughlin, 44 la. 82. 
 Where the story of the prosecutrix is improbable, and uncorroborated, a conviction 
 may be set aside by the appellate court. People v. Ardaga, 51 Cal. 371.
 
 RAPE AND DEFILEMENT. 1123 
 
 carry a strong presumption that her testimony is false.* Id. The fact 
 that the prosecutrix made a complaint soon after the transaction is ad- 
 missible, but the particulars of her complaint cannot be given in evi- 
 dence ; see ante, p. 2(3.^ Siie may be asked whether she named a person 
 as having committed the offence, but not whose name she mentioned. 
 Per Cresswell, J., R. v. Osborne, Car. & M. 622, 41 E. C. L. But 
 though the particulars of what she said cannot be asked in chief 
 of the confirming witness, they may in cross-examination. R. v. 
 Walker, 2 Moo. & R. 212. 
 
 A strict caution is given by Lord Hale, with regard to the evidence 
 for the prosecution in cases of rape : " An accusation easily to be made, 
 and hard to be proved, and harder to be defended by the party accused, 
 though never so innoceut." 1 Hale, 635. 
 
 As a general rule, the only point in which a witness's character can 
 be impeached is his credibility. But until recently it was thought 
 that there is, in cases of rape, an exception to this rule, which permits 
 the character of the woman who brings a charge of rape to be im- 
 peached in respect of her chastity also ; and the same principle was 
 thought to apply to charges of assault with intent to commit a rape. 
 R. V, Clarke, 2 Stark. N. P. 241, 3 E. C. L.; 1 Phill. Ev. 468, 9th 
 ed. But the law has now been settled upon this point. The woman 
 may be cross-examined as to her connection with other men, but such 
 questions only go to her credit, and it would seem need not be 
 answered (but see ante, p. 144). If they are answered in the negative, 
 the answer is conclusive. R. v. Holmes, L. R. 1 C C. R. 334 ; 41 
 L. J., M. C. 12. It appears that evidence to show that the prosecutrix 
 is a common prostitute is still admissible. Per Kelly, C. B., in R. 
 V. Holmes, distinguishing R. v. Barker, 3 C. & P. 589, 14 E. C. L., 
 where evidence was called to show that the prosecutrix had walked 
 with a common prostitute (but see the jadgment of Byles, J., in R. v. 
 Holmes), and also evidence of previous connection with the prisoner, 
 as both these go to the question of consent.^ R. v. Martin, 6 C. & P. 
 562, 25 E. C. L. 
 
 1 See State v. De Wolf, 9 Ck)nn. 93. S. Jenkins v. State, 1 Tex. App. 346 ; Crock- 
 ett V. State, 49 Ga. 185. 
 
 2 State V. Jones, 61 Mo. 232 ; Burt ». State, 23 O. St. 394 ; Scott v. State, 48 Ala. 420. 
 
 ' People V. Benson, 6 Cal. 221 ; State v. Johnson, 28 Vt. 512 ; People v. Jackson, 3 
 Parker, C. R. 391. The prosecutrix may be cross-examined to prove her unchaste. 
 State V. Murray, 63 N. C. 31. [In New York she will be compelled to answer, and 
 if she does so in the negative, she may be contradicted. Brennan v. People, 7 
 Hun, (N. Y.) 171.] She may be asked in cross-examination whether she had not had 
 sexual intercourse with a designated person at a specified time and place. State v. 
 Eeed, 39 Vt. 417. The general bad character of the prosecutrix for chastity may be 
 shown, but not particular instances of unchaste conduct, unless with the accused. 
 State V. Forshner, 43 N. H. 89 ; State v. White, 35 Mo. 500 ; State v. Knapp, 45 N. 
 H. 148 ; Commonwealth v. Regan, 105 Mass. 593. [Dorsey v. State, 1 Tex. App. 33; 
 Rogers v. State, Id. 187 ; Woods v. People, 55 N. Y. 515. But see Sherwin v. People, 
 69 111. 55.] The testimony of witnesses to the general character of the prosecutrix 
 in rape as to chastity, must be confined to their knowledge of it before the offence was 
 committed. They cannot be allowed to testify to any knowledge since acquired. State 
 V. Forshner, 43 N. H. 89. S. 
 
 State V. Wells, 48 la. 671. But see West v. State, 1 Wis. 209, where it was held that
 
 1124 RAPE AND DEFILEMENT. 
 
 The adinissibility of evidence of complaint in cases of rape has been 
 fully considered, supra, p. 2G. 
 
 Defilement of children — proof of age. In prosecutions for the 
 deHlement of children the iij^c <jf the child must he proved. Where 
 the ofFeuce was committed on the 5th of Fel)ruary, 18-32, and the 
 father, being called to prove the age of the child, proved that, on his 
 return home on the 9th of February, 1822, after an absence of a few 
 days, he found the child had been born, and was told by the grand- 
 mother that she had been born the day before, and the register of 
 baptism showed that she had been baptized on the 9th of February, 
 1822 ; this evidence was held insufficient to prove the age. 11. v. 
 Wedge, 5 C. & P. 298, 24 E. C. L. See also p. 272. 
 
 Where the mother stated in examination in chief that her child 
 was ten years old, but upon cross-examination her evidence appeared 
 extremely uncertain ; yet it was left to the jury, who found that the 
 *Qn4.1 *cbild Avas under twelve years of age, and the prisoner 
 -■ having been convicted, the court refused to quash the convic- 
 tion. R. V. Nicholls, 10 Cox, C. C. 476. A certified copy of a reg- 
 ister is now admissible in evidence on its mere production, and coupled 
 with evidence of identity, is proof of age. R. v. Weaver, L. R. 2 C. 
 C. 85 ; 43 L. J., M. C. 13. 
 
 Defilement of children — nature of the offence. The oifence of 
 procuring defilement is dealt with in section 49 of the 24 & 25 Vict. 
 c. 100, supra. The offence of carnally knowing a girl under ten years 
 of age was a felony under section 50 ; and it was no defence under 
 this section that the girl consented, nor was consent any defence upon 
 a charge of attempting to commit this offence. Neither of course would 
 it be any defence under the substituted section, ante, p. 897. R. v. Beale, 
 L. R. 1 C.C. R. 10 ; 35 L. J., M. C. 60. The offenceof carnally know- 
 ing a girl between the ages often and twelve was made a, misdemeanor by 
 section 51, and under this section also consent was no defence. R. v. 
 Neale, 1 Den. C. C. 36 ; 1 C. & K. 591, 47 E. C. L. By the substi- 
 tuted misdemeanor section (sect. 4), ante, p. 898, consent is now ex- 
 pressly made immaterial between the ages of twelve and thirteen. But 
 that section does not operate to prevent the conviction of a person 
 committing a rape upon a girl between those ages. R. v. Dicken, 14 
 Cox, C. C. 8 ; R. V. Radcliffe, 10 Q. B. D. 74 ; 52 L. J., M. C. 40. Upon 
 indictment under these sections the prisoner may be found guilty of the 
 attempt, 14 & 15 Vict. c. 100, s. 9, ante, p. 312. Where the prisoner 
 Avas indicted for the misdemeanor under s. 51, he could not be found 
 guilty if the child turned out to be under ten years of age, for the 14 
 
 on an indictment for seduction, the government must prove the previous chastity 
 of the female, as to presume it is inconsistent with tlie presumption of the pris- 
 oner's innocence. Where the action is for damages for an indecent assault and the 
 bodily injuries received are triflins;, the r/rammev of the charge being the mental 
 and moral outrage, evidence of the want of chastity of the prosecutrix is pertinent 
 and admissible. Mitchell v. Work, ]:'> R. I. (>45. ( Jn evidence as to general immoral 
 character. Brennan v. People, 7 llun, (N. Y.) 171.
 
 RAPE AND DEFILEMENT. 1125 
 
 & 15 Vict. c. 100, s. 12, only says that if the facts amount to a felony 
 the prisoner may still be convicted of the misdemeanor when such 
 misdemeanor is proved, but in this case the indictment alleging the 
 child to be above ten and the proof being that she was below ten, 
 the indictment was not proved ; see K. v. Shott, 3 C. & K. 206, and 
 see R. V. Jiidmer, L. & C. 4<S2, ante, tit. " False Pretences." 
 
 An indictment for a misdemeanor under secstion 51 (but see 38 & 
 39 Vict. c. 94, s. 3, which now makes the same otFence a felony) 
 charged that the defendant " unlawfully did make an assault upon 
 A. 15., and her then did unlawfully and carnally know." The jury 
 found the defendant guilty of a common assault. The court held the 
 conviction right, for that the two misdemeanors charged were divis- 
 ible. R. V. Guthrie, I.. R. 1 C. C. R. 241 ; 39 L. J., M. C. 95. It 
 is observed in the judgment that the question of consent might arise 
 as to the first averment of an assault. And see ante, R. v. Martin, and 
 other cases, p. 306. 
 
 Assault with intent to ravish. It is very common to prefer an in- 
 dictment for an assault with intent to ravish, under the 24 &25 Vict. 
 c. 100, s. 38, supra, p. 302, where it is doubtful whether a rape has 
 actually been committed.^ 
 
 A boy under fourteen cannot be found guilty of an assault with 
 intent to commit a rape. See ante, p. 898. 
 
 On an indictment for an assault with an intent to commit a rape, 
 Patteson, J., held that the evidence of the prisoner having, on a prior 
 occasion, taken liberties with the prosecutrix, was not receivable to 
 show the prisoner's intent. 
 
 In the same case, the learned judge held, that, in order to convict 
 on a charge of assault with intent to commit a rape, the jury must 
 *be satisfied, not only that the prisoner intended to gratify his r^qr^- 
 passions on the person of the prosecutrix, but that he intended L 
 to do so at all events, and notwithstanding any resistance on her part. 
 R. V. Lloyd, 7 C. & P. 318, 32 E. C. L.^ 
 
 If upon an indictment for this offence the prosecutrix prove a rape 
 actually committed, the defendant may nevertheless be convicted. See 
 14 & 15 Vict. c. 100, s. 12. 
 
 By 43 & 44 Vict. c. 45, the consent of a young person under 
 thirteen to an indecent assault is no defence. 
 
 * An indictment for an assault with intent to ravish cannot be sustained by proof of 
 threats. Burney v. State, 21 Tex. App. 565. 
 
 ^ It is the duty o: the judge, whether asked or not, to instruct the jury on the law 
 of aggravated assault, whenever the evidence is open to a construction that violence 
 was not intended. Curry v. State, 4 Tex. App. 574. The indictment following the 
 penal code may use the words intent and attempt interchangeal)lv. Curry t'. State, 4 
 Tex. App. 574. As to pursuit of a woman as evidence of intent to commit rape. 
 State V. Neely, 74 N. C. 425 ; State v. Massey, 86 N. C. 658 ; State v. Donovan, Sup. 
 a. la. 1883, 16 N. W. Kep. 206.
 
 1126 RECEIVING STOLEN GOODS. 
 
 '906] 
 
 ♦RECEIVING STOLEN GOODS. 
 
 Receiving where the principal is guilty of felony .... 906 
 
 Separate receivers, how triable 906 
 
 Persons indicted jointly may be convicted separately . . , 907 
 
 Receiving where the principal is guilty of a misdemeanor . , 907 
 
 Prevention of Crimes Act — guilty knowledge 907 
 
 Venue 907 
 
 Joining counts for stealing and receiving 908 
 
 Summary jurisdiction 908 
 
 Form of indictment . , . . 908 
 
 Proof of guilt of principal 910 
 
 What is stolen property 911 
 
 Presumption arising from the possession of stolen property . . 912 
 
 Proof of receiving 912 
 
 Distinction between receiving and stealing . . 912 
 
 Joint receipt 916 
 
 Proof of guilty knowledge and intention . , . . . 918 
 
 Election 919 
 
 Venue 919 
 
 Receiving where the principal is guilty of felony. By the 24 & 
 
 25 Vict. c. 96, s. 91, " whosoever sliall receive any chattel, money, 
 valuable security, or other property whatsoever, the stealing, taking, 
 extorting, obtaining, embezzling, or otherwise disposing whereof shall 
 amount to a felony, either at common law or by virtue of this Act, 
 knowing the same to have been feloniously stolen, taken, extorted, 
 obtained, embezzled, or disposed of, shall be guilty of felony, and may 
 be indicted and convicted, either as an accessory after the fact, or for 
 a substantive felony ; and in the latter case, whether the principal 
 felon shall or shall not have been previously convicted, or shall or 
 shall not be amenable to justice ; and every such receiver, howsoever 
 convicted, shall be liable at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding fourteen years, and not 
 less than three [now five] years, or to be imprisoned for any term not 
 exceeding two years, with or without hard labor, and with or without 
 solitary confinement, and, if a male under the age of sixteen years, 
 with or without whipping." 
 
 Separate receivers, how triable. By s. 93, " whenever any prop- 
 erty Avhatsoever shall have been stolen, taken, extorted, obtained, em- 
 bezzled, or otherwise disposed of in such a manner as to amount to a 
 felony, either at common law or by virtue of this Act, any number of 
 receivers at different times of such property, or of any part or parts 
 thereof, may be charged Avith substantive felonies in the same indict- 
 ment, and may bo tried together, notwithstanding that the principal 
 *Qn7"l *^"-'^'^'^ shall not be included in the same indictment, or shall 
 -' not be in custody or amenable to justice."
 
 RECEIVIXG STOLEN GOODS. 1127 
 
 Persons indicted jointly may be convicted separately. By s. 
 94, " if upon the trial of any two or more persons indided lor jointly 
 receiving any property it shall be proved that one or more of such 
 persons se|)arately received any part or parts of such property, it shall 
 be lawful for the jury to convict, upon such indictment, such of the 
 said persons as shall be proved to have received any part or parts of 
 such property." 
 
 Receiving where the principal is guilty of a misdemeanor. By 
 
 s. 95, " whosoever shall receive any chattel, money, valuable security, 
 or other property whatsoever, the stealing, taking, obtaining, convert- 
 ing, or disposing whereof is made a misdemeanor by this Act, know- 
 ing the same to have been unlawfully stolen, taken, obtained, converted, 
 or disposed of, shall be guilty of a misdemeanor, and may be indicted 
 and convicted thereof, whether the person guilty of the principal mis- 
 demeanor shall or shall not have been previously convicted thereof, or 
 shall or shall not be amenable to justice ; and every such receiver, 
 being convicted thereof, shall be liable, at the discretion of the court, 
 to be kept in penal servitude for any term not exceeding seven years 
 and not less than three [now five] years, or to be imprisoned for any 
 term not exceeding tsvo years, with or without hard labor, and with 
 or without solitary confinement, and if a male under the age of six- 
 teen years, with or without whipping." 
 
 Prevention of Crimes Act, 1871. — Guilty knowledge. By the 34 
 & 35 Vict. c. 112, s. 19, "where proceedings are taken against any 
 person for having received goods knowing them to be stolen, or for 
 having in his possession stolen property, evidence may be given at 
 any stage of the proceedings that there was found in the possession of 
 such person other property stolen within the preceding period of 
 twelve months, and such evidence may be taken into consideration 
 for the purpose of proving that such person knew the property to be 
 stolen which forms the subject of the proceedings taken against him. 
 AVhere proceedings are taken against any person for having received 
 goods knowing them to be stolen, or for having in his possession 
 stolen property, and evidence has been given that the stolen property 
 has been found in his possession, then if such person has within five 
 years immediately preceding been convicted of any offence involving 
 fraud or dishonesty, evidence of such previous conviction may be 
 given at any stage of the proceedings, and may be taken into consid- 
 eration for the purpose of proving that the accused knew the property 
 which was proved to be in his possession to have been stolen ; pro- 
 vided that not less than seven days notice in writing shall have been 
 given to the j)erson accused, that proof is intended to be given of such 
 previous conviction ; and it shall not be necessary for the purposes of 
 this section to charge in the indictment the previous conviction of the 
 person so accused." 
 
 Venue. By the 24 & 25 Vict. c. 96, s. 96, " whosoever shall re-
 
 1128 RECEIVING STOLEN GOODS. 
 
 ceive any chattel, money, valuable security, or other property whatso- 
 ever, knowing the same to have been feloniously or unlawfully stolen, 
 taken, obtained, converted, or disposed of, may, whether charged as 
 *an8l *^" accessory after the fact to the felony, or with a substantive 
 -J felony, or with a misdemeanor only, be dealt with, indicted, 
 tried and punished in any county or place in which he shall have or 
 shall have had any such property in his possession, or in any county 
 or place in which the party guilty of the principal felony or misde- 
 meanor may by law be tried, in the same manner as such receiver may 
 be dealt with, indicted, tried, and punished in the county or place 
 where he actually received such property." 
 
 Joining counts for stealing and receiving. See s. 92, supra, p. 
 
 206. 
 
 Summary jurisdiction. By the 42 & 43 Vict. c. 49, receiving 
 stolen goods, i. e., committing any of the oiFences in sections 91 or 95 
 of the 24 & 25 Vict. c. 96, ante, pp. 906, 907, may in the cases of 
 young persons consenting and adults pleading guilty be dealt with 
 summarily, and, in the case of an adult consenting, if the value of 
 the property does not exceed 40s., the oifence may be dealt with in 
 like manner. 
 
 Form of indictment. It is not necessary to state in the indictment 
 the name of the principal felon ; and the usual practice in an indict- 
 ment against a receiver for a substantive felony is, merely to state the 
 goods to have been " before then feloniously stolen," etc., without 
 stating by whom.' 
 
 Where it was objected to a count charging the goods to have been 
 stolen by " a certain evil-disposed person," that it ought either to 
 have stated the name of the principal, or else that he was unknown, 
 Tindal, C. J., said, the oifence created by the Act of parliament is not 
 the receiving the stolen goods from any particular person, but receiv- 
 ing them, knowing them to have been stolen. The question, there- 
 fore, is, whether the goods Mere stolen, and whether the prisoner 
 received them, knowing them to have been stolen. R. v. Jarvis, 6 C. 
 & P. 156, 25 E. C. L.; see also R. v. Wheeler, 7 C. & P. 170, 32 E. 
 C. L,, post. 
 
 Where the goods have been stolen by some person unknown, it was 
 formerly the practice to insert an averment to that effect in the in- 
 dictment, and such averment was held good. R. t\ Thomas, 2 East, 
 P. C. 781. But where the principal was known, the name was stated 
 according to the truth. 2 East, P. C 781. Where the goods were 
 averred to have been stolen by persons unknown, a difficulty some- 
 times arose as to the proof, the averment being considered not to be 
 proved, where it appeared that in fact the principals were known. 
 Thus, where upon such an indictment it was proposed to prove the 
 
 * The indictment need not name the thief, but he must be identified on the trial. 
 Foster v. State, 8 Crim. Law Mag. 113.
 
 RECEIVING STOLEN GOODS. 1129 
 
 case by the evidence of the principal himself, who had been a witness 
 before the grand jnry, Le Blanc, J., interposed, and directed an 
 acquittal. He said he considered the indictment wrong in stating 
 that the property had been stolen by a person unknown ; and asked 
 how the person who was the princij)al 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. R. v. Walker, 3 Campb, 
 264. 
 
 It is difficult to reconcile this decision with the resolution of the 
 judges in the following case. The indictment stated that a certain 
 person or persons, to the jurors unknown, stole the goods, and that 
 the prisoner received the same knowing them to have been felo- 
 niously stolen. The grand jury also found a bill, charging one Henry 
 *Moreton with steaUng the same goods, and the prisoner with r^qriq 
 receiving them. It was objected that the allegation, that the ^ 
 goods were stolen by a person unknown was negatived by the other 
 record, and that the prisoner was entitled to an acquittal. The pris- 
 oner being convicted, the point was reserved, and the judges held the 
 conviction right, being of opinion that the finding by the grand jury 
 of the bill, imputing the principal felony to Moreton, was no objection 
 to the second indictment, although it stated the principal felony to 
 have been committed by certain persons to the jurors unknown. R. v. 
 Bush, Russ. & Ry. 372. 
 
 An indictment charging that a certain evil-disposed person felon- 
 iously stole certain goods, and that A. B. feloniously incited the said 
 evil-disposed person to commit the said felony, and that C. W. and E. 
 F. feloniously received the said goods, know^ing them to have been 
 stolen, is bad as against A. B., the statement that an evil-disposed 
 person stole, being too uncertain to support the charge against the ac- 
 cessory before the fact ; but the indictment was held to be good as 
 against the receivers as for a substantive felony. R. v. Caspar, 2 Moo. 
 C. C. 101 ; 9 C. & P. 289, 38 E. C. L. It has been doubted whether, 
 where the indictment alleges that the prisoner received the goods in 
 question from a person named, it must be proved that the receipt was 
 in fact from that person. But where A. B. was indicted for stealing 
 a gelding, and C D. for receiving it, knowing it to have been " so 
 feloniously stolen as aforesaid ; " and A. B. was acquitted, the proof 
 failing as to the horse having been stolen by him ; Patteson, J., held 
 that the other prisoner could not be convicted upon that indictment. 
 R. V. Woolford, 1 Moo. & R. 384. But where a prisoner was indicted 
 in one count for stealing goods, and in another for receiving the said 
 goods, " so as aforesaid feloniously stolen," and the jury acquitted 
 him of the stealing, but found him guilty of the receiving, and the coun- 
 sel for the prisoner moved in arrest of judgment, upon the ground 
 that the jury, having acquitted him of the stealing, could not under 
 the second count, as it M'as recorded, find him guilty of receiving : 
 upon a case reserved for the opinion of the court of criminal appeal, 
 thev held the conviction to be good. R. v. Craddock, 2 Den. C. 0. R. 
 31 • 20 L. J., M. C. 31.
 
 1130 RECEIVING STOLEN GOODS. 
 
 "Where the indictment stated tliat the prisoner received the goods 
 from the person who stole them, and that the person who stole them 
 was a person to the jurors unknown, and it appeared that the person 
 who stole the property handed it to J. S., who delivered it to the pris- 
 oner ; Parke, J., held, that on this indicrtment it was necessary to 
 prove that the prisoner received the property from the person who 
 actually stole it, and would not allow it to go to the jury to say 
 whether the person from whom he was proved to have received it 
 was an innocent agent or not of the thief. R. v. Elsworthy, 1 Lewin, 
 C. C. 117. 
 
 But where three persons were charged with a larceny, and tAVO 
 obliers as accessories, in separately receiving portions of the stolen 
 goods ; and the indictment also contained two other counts, one of 
 them charging each of the receivers separately with a substantive 
 felony, in separately receiving a portion of the stolen goods ; the prin- 
 cipals were acquitted, but the receivers were convicted on the last 
 two counts of the indictment. R. v. Pulham, 9 C. & P. 280, 38 E. 
 C. L. 
 
 The first count of an indictment charged the prisoner with stealing 
 certain goods and chattels, and the second count charged him with 
 *Qi nl *receiving " the goods and chattels aforesaid, of the value afore- 
 ■J said, so as aforesaid feloniously stolen." The prisoner was ac- 
 quitted upon the first count and convicted on the second. It was held 
 that the words " so as aforesaid " might be rejected as immaterial, and 
 the indictment read as alleging simply that the prisoner had received 
 goods feloniously stolen ; and that the conviction was good. R. v. 
 Huntley, Bell, C. C. 236 ; 29 L. J., M. C. 70. 
 
 The two first counts of an indictment charged A. and B. with stealing, 
 on two different occasions, and the third count charged B. Avith re- 
 ceiving. A. was acquitted, no evidence having been offered against 
 him, and he was called as a witness against the other prisoner. Upon 
 his and other evidence, which showed that B. Avas an accessory before 
 the fact to the stealing, the jury found a general verdict of guilty 
 against B. It was held that the conviction on all the counts was 
 good ; for that as the 11 & 12 Vict. c. 46, s. 1 (now repealed), makes 
 the being an accessory before the fact a substantive felony, the convic- 
 tion of the principal is not now a condition precedent to the conviction 
 of the accessory ; and that there was no inconsistency in an accessory 
 before the fact being also a receiver. R. v. Hughes, Bell, C. C. 242 ; 
 29 L. J., M. C. 71. 
 
 Where it was averred that the prisoner, " Francis Morris the goods 
 and chattels, etc., feloniously did receive and have ; he the said 
 Thomas Morris then and there well knowing the said goods and chat- 
 tels to have been feloniously stolen," etc., it Avas moved in arrest 
 of judgment that the indictment Avas bad, for that the fact of re- 
 ceiving, and the knoAvledge of the previous felony, must reside in 
 the same person, Avhereas this indictment charged them in two 
 different persons ; but the judges held that the indictment would 
 be good without the Avords "the said Thomas Morris," Avhich might'
 
 RECEIVING STOLEN GOODS. 1131 
 
 be struck out as sur})liisag:o. R. v. Morris, 1 Leach, 109. But 
 where au indictment alleged that the prisoner received the goods of 
 A. B., " he, the said A. B., then knowing them to have been stolen," 
 it was held to be good ground of motion in arrest of judgment that 
 the scienter was incorrectly stated. 11. v. Larkin, 1 Dears. C. C. R. 
 365 ; 23 L. J., M. C. 125. 
 
 Upon a joint indictment for receiving, there was no evidence of a 
 joint receipt, but it appeared that one prisoner was in the habit of re- 
 ceiving goods from the thief, and selling them to the other prisoner, 
 the court held that sect. 94 extended to cases where the prisoners sep- 
 arately received the whole of the stolen property, and not only a jmrt 
 or })arts. R. v. Reardon and Blore, L. R. 1 C. C. R. 31 ; 35 L. 
 J., M. C. 171.^ 
 
 Proof of guilt of principal. Where the indictment states a pre- 
 vious conviction of the principal, such conviction must be proved by 
 the production of an examined copy of the record of the conviction, 
 and it is no objection to such record that it appears therein that the 
 principal was asked if he was (not is) guilty, that it does not state 
 that issue was joined, or how the jurors were returned, and that the 
 only award against the principal is, that he be in mercy, etc. R. v. 
 Baldwin, Russ. & Ry. 241 ; 3 Campb. 265 ; 2 Leach, 928 (n). But 
 if the indictment state not the conviction but the guilt of the party, 
 it seems doubtful how far the record of conviction would be evidence 
 of that fact. R. v. Turner, 1 Moo. C C 347, ante, p. 53. The opinion 
 of Mr. Justice Foster, however, is in favor of the affirmative. When 
 *the accessory, he says, is brought to trial after the conviction r^^qii 
 of his principal, it is not necessary to enter into a detail of the '- 
 evidence on which the conviction was founded. Nor does the indict- 
 ment aver that the principal was in fact guilty. It is sufficient if it 
 recites with proper certainty the record of the conviction. This is 
 evidence against the accessory, to put him on his defence ; for it is 
 founded on a legal presumption that everything in the former pro- 
 ceeding was rightly and properly transacted. Foster, 365. Where 
 the principal felon has been convicted, it is sufficient in the indictment 
 to state the conviction without stating the judgment. R. v. Hyman, 
 2 Leach, 925 ; 2 East, P. C. 782 ; R. v. Baldwin, 3 Campb. 265. 
 
 The party charged as receiver may controvert the guilt of the prin- 
 cipal felon, even after his conviction, and though that conviction is 
 stated in the indictment. For, as against him, the conviction is only 
 presumptive evidence of the principal's guilt, under the rule that it is 
 to be presumed that in the former proceeding everything was rightly 
 and properly transacted. It being res imter alios acta, it cannot be 
 conclusive as to him. Foster, 365. If, therefore, it should appear, 
 on the trial of the receiver, that the offence of which the principal was 
 
 ^ An indictment for receiving stolen goods cannot be supported without proof of 
 property either general or specific in the person stated to be the owner. Brooks c. 
 State, 5 Baxter, (Tenn.) 607. The goods may be named collectively, but some value 
 must be shown. State v. Gerrish, 78 Me. 20.
 
 1132 RECEIVING STOLEN GOODS. 
 
 convlotod did not amount to felony (if so charged), or to that species 
 of ftilony witli which he is charged, the receiver ought to be acquitted. 
 Id. Thus where tlie principal had been convicted, and on the trial 
 of the receiver the conviction was proved, but it appeared on the 
 cross-examination of the prosecutor, that, in fact, the party convicted 
 had only been guilty of a breach of trust, the prisoner, on the authority 
 of Foster w'as acquitted. 11. v. Smith, 1 Leach, 288 ; li. v. Prosser, 
 Id. 290 (n). 
 
 The principal felon is a competent witness for the crown to prove 
 the whole case against the receiver. R. v. Haslam, 1 Leach, 418 ; R. 
 V. Price, R. v. Patram, Id. 419 (w); 2 East, P. C. 732. As to the 
 confession of the principal felon not being evidence against the receiver, 
 see supra, p. 53. 
 
 What is stolen property. A lad having stolen a brass weight 
 from his masters, it was taken from him by another servant in the 
 presence of one of them, and was then returned to him, in order that 
 he might take it for sale to the prisoner, to whom he had been in the 
 habit of selling similar articles. The lad accoidingly took it and sold 
 it to the prisoner. It was contended that the brass could not be con- 
 sidered as stolen property, having been restored to the possession of 
 one of the owners, and by him given to the lad to sell to the prisoner 
 with a view to his detection, and that such restoration, for however 
 short a time, was sufficient to prevent its being treated afterwards as 
 stolen property, because it was in law in possession of the owners. 
 Coleridge, J., said he should consider the evidence as sufficient in point 
 of law to sustain the indictment, but would take a note of the objec- 
 tion. The jury found the prisoner guilty, and subsequently the learned 
 judge, without reserving the point, passed sentence. R. v. Lyon, Carr. 
 & M. 217, 41 E. C. L. But this case must be considered as now 
 overruled by R. v. Dolan, 1 Dears. & B. C. C. R. 436 ; 24 L. J., M. 
 C. 59, There the goods alleged to have been feloniously received, had 
 been found by the owner in the pockets of the thief; but were subse- 
 quently, a policeman having been called in, returned to him, and 
 he was sent by the owner to sell them where he had sold others. 
 The thief thereupon went to the shop of the prisoner and sold the 
 *Q191 *goods, and gave the money to the owner. It was held that 
 "^-J the conviction was wrong ; Campbell, C. J., in the course of 
 his judgment, saying, " If an article once stolen has been restored to 
 the master of that article, and he having had it fully in his possession, 
 bails it for any particular purpose, how can any person who receives 
 the article from the bailee be said to be guilty of receiving stolen 
 goods within the meaning of the Act of parliament ?" R. v. Dolan 
 was followed in the case of R. v. Schmidt, L. R. 1 C. C. R. 15 ; 35 
 L. J., M. C. 94. There four thieves stole goods from a railway station, 
 and afterwards one of them forwarded the stolen goods by the same 
 railway. Meanwhile the theft was discovered, and a policeman in 
 employ of the company opened the parcel containing the stolen goods, 
 and then gave it to a porter to keep till the next day, when he directed
 
 RECEIVING STOLEN GOODS. 1133 
 
 the porter to take it to its address at the prisoner's house. The indict- 
 ment laid the property in the railway company, and it was held by 
 the majority of the court that a conviction upon tlio indictment could 
 not be sustained, because there was an intentional delivery by the own- 
 ers (the railway company) after the goods had been returned them. 
 See also R. v. Hancock, 14 Cox, C. 0. 11. 119. 
 
 Presumption arising from the possession of stolen property. 
 
 Recent possession of stolen property may, according to circumstances, 
 support either the presumption that the prisoner stole the property or 
 the presumption that he received it, knowing it to be stolen. For a 
 case in which the circurastauces led to the second of these presump- 
 tions, see R. V. Longmead, L. &C. 427, and see supra, p. 19. 
 
 Stolen property having been discovered concealed in an outhouse, 
 the prisoners were detected in the act of carrying it away from thence, 
 and were indicted as receivers. Patteson, J., said, "There is no evi- 
 dence of any other person having stolen the property. If there had 
 been evidence that some one person had been seen near the house from 
 which the property was taken, or if there had been strong suspicions 
 that some one person stole it, those circumstances would have been 
 evidence that the prisoners received it, knowing it to have been stolen. 
 If you are of opinion that some other person stole, and that the pris- 
 oners received it knowing that fact, they may be convicted of receiv- 
 ing. But I confess, it appears to me rather dangerous on this evidence 
 to convict them of receiving. It is evidence on which persons are con- 
 stantly convicted of stealing." The prisoners were acquitted. R. v. 
 Deusley, 6 C. & P. 399, 25 E. C. L. 
 
 Proof of the receiving — distinction between receiving and steal- 
 ing. There must be proof of an actual taking into possession of the 
 goods alleged to have been feloniously received. Thus where the per- 
 sons who stole some fowls, sent them by coach in a hamper to Birm- 
 ingham, with directions that they would be called for, and the prisoner 
 when claiming the hamper as hers at the coach office, was immediately 
 taken into custody ; the court of criminal appeal held the conviction 
 of the prisoner, as receiver, to be wrong, on the ground, that " who- 
 ever had possession of the fowls at the coach office when the 
 prisoner claimed to receive them, never parted with the possession ; 
 the prisoner, by claiming to receive the fowls, which never were 
 actually or potentially in her possession, never in fact or law re- 
 ceived them." R. v. Hill, 1 Den. C. C. R. 453 ; 18 L. J., M. C. 199. 
 R. V. Wiley, 2 Den. C. C. R. 37 ; 20 L. J., M. C. 4, was twice argued. 
 *The facts were these : A., B., and C. were jointly indicted for r^q-. o 
 stealing and receiving five hens and two cocks. It was proved L 
 that about half-past four in the morning A. and B. were seen to go into 
 C's father's house with a loaded sack, carried by A. C. lived with 
 his father in the house, and was a hig-orler. A. and B. remained in 
 the house about ten minutes, and were then seen to come out of the 
 back-door preceded by C. with a candle, A. again carrying the sack on
 
 1134 RECEIVING STOLEN GOODS. 
 
 his shoulders, and to go into a stable belonging to the same house ; the 
 stable-door was shut by one of them, and on the polieemen going in 
 they found the sack on the floor tied at the mouth, and the three men 
 standing round it as if they were bargaining, but no words were heard. 
 The sack had a hole in it, through which poultry feathers were pro- 
 truding. The bag when opened was found to contain inter alia the 
 stolen property. On C being charged with receiving the poultry 
 knowing it to be stolen, he said, " he did not think he would have 
 bought the hens." Upon this evidence eight out of twelve of the 
 judges held that C. could not be convicted of receiving stolen goods, 
 inasmuch as though there was evidence of a criminal intent to receive, 
 and of a knowledge that the goods were stolen, yet the exclusive pos- 
 session of them still remained in the thieves, and therefore C. had no 
 possession, either actual or constructive. But Patteson, J., one of the 
 majority, said, " I don't consider a manual possession or even a touch 
 essential to a receiving ; but it seems to me, there must be a control 
 over the goods by the receiver, which there was not here." In accord- 
 ance with this opinion, in a case wdiere the jury found that the stolen 
 property (a watch) was in A.'s hands or pocket, but in the prisonei-'s 
 absolute control, the court of criminal appeal held that he might be 
 indicted as a receiver of stolen property, although he liad never 
 touched the property, or had manual possession of it. R. v. Smith, 1 
 Dears. C. C. R. 494; 24 L. J., M. C. 135. It frequently happens 
 that a doubt arises whether the acts done by the person amount to a 
 receiving, or to a stealing, as in the following cases : from Mliich it 
 appears that if the prisoner took part in the transaction, while the act 
 of larceny by others was continuing, he will be guilty as a principal 
 in the larceny, and not as a receiver. Dyer and Disting were indicted 
 for stealing a quantity of barilla, the property of Hawker. The goods, 
 consigned to Hawker, were on board ship at Plymouth. Hawker 
 employed Dyer, who was the master of a large boat, to bring the barilla 
 on shore, and Disting was employed as a laborer, in removing the barilla 
 after it was landed in Hawker's warehouse. The jury found that while 
 the barilla was in Dyer's boat, some of his servants, without his con- 
 sent, removed part of the barilla, and concealed it in another part of the 
 boat. They also found that Dyer afterwards assisted the other prisoner 
 and the persons on board, who had separated this part from the rest in 
 removing it from the boat for the purpose of carrying it off. Graham, 
 B. (after consulting Buller, J.), was of opinion, that though, for some 
 purposes, as with respect to those concerned in the actual taking, the 
 offence w^ould be complete as an asportation in point of law, yet, with 
 respect to Dyer, who joined in the scheme before the barilla had been 
 actually taken out of the boat where it was deposited, and wdio assisted 
 in carrying it from thence, it was one continuing transaction, and could 
 not be said to be completed till the removal of the commodity from 
 such place of deposit, and Dyer having assisted in the act of carrying 
 it off was, therefore, guilty as principal. R. v. Dyer, 2 East, P. C 
 
 ^ Evidence that cotton was brought to defendant's house, and that he took it to 
 market and sold it will not support an indictment for larceny, without testimony that 
 he had a share in the first taking. Hill v. State, 78 Ala. 1.
 
 EECEIVING STOLEN GOODS. 1135 
 
 *767. Another case arose out of the same transaction. The rjtcn-i^ 
 rest of the barilla having been lodged in Hawker's warehouse, ^ 
 several persons, employed by him as servants, conspired to steal a 
 portion of it, and accordingly removed part nearer to the door. Soon 
 afterwards the persons who had so removed it, together with Atwell 
 and O'Donncll, who had in the meantime agreed to purchase part, 
 came and assisted the others (who took it out of the warehouse) in 
 carrying it from thence. Being all indicted as principals in larceny, 
 it was objected that two were only receivers, the larceny being com- 
 plete before their participation in the transaction ; but Graham, B., 
 held that it was a continuing transaction as to those w.ho joined in the 
 plot before the goods were actually carried away from the premises ; 
 and all the defendants having concurred in, or been present at, the act 
 of removing the goods from the warehouse where they had been de- 
 posited, they were all principals ; and the prisoners were convicted 
 accordingly. R. v. Atwell, 2 East, P. C. 768. 
 
 In the following case the removal of the goods was held to be so 
 complete, that a person concerned in the further removal was held not 
 to be a party to the original larceny. Hill and Smith, in the absence 
 of the prisoner, broke open the prosecutor's warehouse, and took 
 thence the goods in question, putting them in the street about thirty 
 yards from the warehouse door. They then fetched the prisoner, who 
 was apprised of the robbery, and who assisted in carrying the property 
 to a cart, which was in readiness. The learned judge who tried the 
 case was of opinion that this was a continuing larceny, and that the 
 prisoner, who was present aiding and abetting in a continuation of the 
 felony, was a principal in that portion of the felony, and liable to be 
 found guilty ; but on a case reserved, the judges were of opinion, that 
 as the property was removed from the owner's premises before the 
 prisoner was present, he could not be considered as the principal, and 
 the conviction, as such, was held wrong. R. v. King, Russ. & Ry. 
 332. The same conclusion was come to in the following case. One 
 Heaton having received the articles in question into his cart, left it 
 standing in the street. In the meantime the prisoner M'Makin came 
 up and led away the cart. He then gave it to another man to take it 
 to his (M'Makin's) house, about a quarter of a mile distant. Upon the 
 cart arriving at the house, the prisoner Smith, who wasatAvork in the 
 cellar, having directed a companion to blow out the light, came up and 
 assisted in removing the articles from the cart. For Smith it was argued 
 that the asportavit was complete before he interfered, and R. v. Dyer, 
 ante, was cited, and Lawrence, J., after conferring with Le Blanc, J., 
 was of this opinion, and directed an acquittal. R. v. M'Makin, Russ. 
 & Ry. 333 (n). Upon the authority of R. v. King the following de- 
 cision proceeded. The prisoner was indicted for stealing two horses. 
 It appeared that he and one Whinroe went to steal the horses. Whinroe 
 left the prisoner when they got within half a mile of the place where 
 the horses were, stole the horses, and brought them to the place where 
 the prisoner was Avaiting for him, and he and the prisoner rode away 
 with them. Mr. Justice Bayley at first thought that the prisoner'
 
 1136 EECEIVING STOLEN GOODS. 
 
 joining in riding away with the horses might be considorcd a new 
 larceny ; but, on adverting to R. v. King, he thought this opinion 
 wrong, and, on a case reserved, the judges were of opinion tliat the 
 prisoner was an accessory only, and not a principal, because he was 
 not present at the original taking. R. v. Kelly, Iluss. & Ry. 421. In 
 *Q1 ""1 *^ ^^^^ tried at Monmouthshire Spring Assizes, 1847, M., who 
 ' -■ was employed in loading sacks of oats, by previous concert M'ith 
 K., took oats from two of the sacks and put them in a nosebag in the 
 absence of K., and hid the nosebag. K. returned in a few minutes, 
 and took away the nosebag and its contents, M. then being within 
 four yards of him. The learned judge held that both were principals 
 in the larceny. R. v. Kelly, 2 C. & K. 379, 47 E. C, L. 
 
 The circumstances in the next case were held not to constitute a re- 
 ceiving. The prisoner Avas indicted for receiving goods stolen in a 
 dwelling-house by one Debenham. Debenham, who lodged in the 
 house, broke open a box there, and stole the property. The prisoner 
 was seen walking backwards and forwards before the house, and occa- 
 sionally looking up ; and he and Debenham were seen together at 
 some distance, when he was apprehended, and part of the property 
 found on him. The jury found that Debenham threw the things out 
 of the window, and that the prisoner was in waiting to receive them. 
 Mr. Justice Gaselee thought, that under this finding it was doubtful 
 whether the prisoner was guilty of receiving, and reser\'ed the point 
 for the opinion of the judges, who held that the prisoner was a prin- 
 cipal, and that the conviction of him as receiver was wrong. R. v. 
 Owen, 1 Moody, C. C. 96. And in R. v. Perkins, 2 Den. C. C. R. 
 459, the Court of Criminal Appeal held that a principal in the second 
 degree, particeps criminis, could not at the same time be treated as a 
 receiver. Maule, J., said, " The judge seems to have intended to have 
 asked us whether in a case where a prisoner was in a popular sense 
 guilty of receiving, he might be treated as a receiver, notwithstanding 
 the fact that he was a principal in the theft ; and it is clear that he 
 cannot." ' In that case it was found as a fact that the prisoner was a 
 principal, but in R. v. M'Evin, 1 Bell, C. C. 20, where the prisoner 
 was charged with stealing and receiving, the jury were told that it was 
 open to them to find a verdict of guilty of stealing or receiving, and 
 they found a verdict of guilty of receiving, and it Mas held right ; 
 but where there was not sufficient evidence of receiving, but there 
 was evidence of being a principal in the second degree, it was held 
 not competent to the jury to find a verdict of guilty of receiving, 
 and that being the only charge against the prisoner in the in- 
 dictment he could not be convicted. R. r. Coggins, 12 Cox, C. C. 
 R. 517. 
 
 The two prisoners were indicted for larceny. It appeared that the 
 prisoner A. (being in the service of the prosecutor) Mas sent by him 
 
 * If a stranger pursuant to an arrangement with one whom he knows has stolen 
 goods, invite an interview with the owner, and afterwards receive tlie goods under the 
 mere color of an agency, but really to make a profit out of the larceny, he is within 
 the statute against receiving stolen goods. People v. Wiley, 3 Hill, 194, S.
 
 RECEIVING STOLEN GOODS. 1137 
 
 to deliver some fat to C. He did not deliver all the fat to C, having 
 previously given part of it to the prisoner B. It being objected that 
 B. ought to have been charged as receiver, Gurney, B., said it was a 
 question for the jury whether B. was present at the time of the sepa- 
 ration, or received the fat afterwards. R. v. Butteris, 6 C. & P. 147, 
 25 E. C. L. 
 
 W. stole a watch from A., and while W. and L. were in custody 
 together, W. told L. that he had " planted " the watch under a flag 
 in the soot cellar of L.'s house. After this L. was discharged from 
 custody, and went to the flag and took up the watch, and sent his 
 wife to pawn it. It was held by Pollock, C. B., that if L. took 
 the watch in consequence of W.'s information, W. telling L. in 
 order that he might use the information by taking the watch, L. was 
 indictable for this as a receiver of stolen goods ; but that, if this was 
 an act done by L. in opposition to W., or against his will, it might 
 be a question whether it would be a receiving. R. v. Wade, 1 C. & 
 K. *739, 47 E. C. L. Upon the latter supposition it would be r-^Q^ r, 
 a larceny, see ante, p. 685. L *^ " 
 
 Proof of receiving — -joint receipt. Where two persons are indicted 
 as joint receivers, it is not sufficient to show that one of them received 
 the property in the absence of the other, and afterwards delivered it 
 to him. This point having been reserved for the opinion of the 
 judges, they unanimously held that upon a joint charge, it was neces- 
 sary to prove a joint receipt ; and that as one of the persons was 
 absent when the other received the property, it was a separate receipt 
 by the latter. R. v. Messingham, 1 Moo. C. C. 257. So where D. 
 and G. were charged with jointly receiving stolen goods, and the 
 evidence was that D. first received the goods on the road between B. 
 and S., and that subsequently G. received a portion of them at S., 
 Jervis, C. J., delivering the judgment of the Court of Criminal Appeal, 
 said, " We are of opinion that the first receiver D. was properly con- 
 victed ; and as R. v. Messingham shows that several persons cannot 
 be convicted of distinct felonies which are charged in an indictment as 
 a joint felony, the evidence ought to have been confined to the case of 
 the first receiver, and a verdict of acquittal taken in favor of G." R. 
 V. Gray, 2 Den. 0. C. R. 86. But now, by the 24 & 25 Vict. c. 96, 
 8. 94, supra, p. 83, this difficulty is removed. 
 
 A. and B. were charged with stealing molasses, and C. and D. with 
 receiving them, knowing them to have been stolen. It appeared 
 that A. and B. brought the goods to C.'s warehouse, and left them 
 with D. his servant, who after some hesitation accepted them. 
 C. was absent at the time, but it was clear on the facts that shortly 
 after he came home he was aware of the molasses having been left, 
 and there was strong ground for suspecting that he then knew they 
 had been stolen. It was also clear that D,, soon after the goods 
 were left with him, was aware they had been unlawfully procured, 
 as he was found disguising the barrels in which they were contained. 
 Maule, J., told the jury that if they were satisfied that C. had 
 72
 
 1138 RECEIVING STOLEN GOODS. 
 
 directed the goods to be taken into the warehouse, knowing them to 
 have been stolen, and that D., in pursuance of that direction, had 
 received them into the warehouse (he also knowing them to have 
 been stolen), they might properly convict the prisoners of a joint 
 receiving. The prisoners were convicted. R. v. Parr, 2 Moo. & R. 
 356. 
 
 Husband and wife were indicted jointly as receivers. The goods 
 were found in their house. Graham, B., told the jury, that, generally 
 speaking, the law does not impute to the wife those oifcnces which 
 she may be supposed to have committed by the coercion of her 
 husband, and particularly where his house is made the receptacle of 
 stolen goods ; but if the wife appears to have taken an active and 
 independent part, and to have endeavored to conceal the stolen 
 goods more effectually than her husband could have done, and by 
 her own acts, she would be responsible as for her own uncontrolled 
 offence. The learned judge resolved that as the charge against the 
 husband and wife was joint, and it had not been left to the jury 
 to say whether she received the goods in the absence of her husband, 
 the conviction of the wife could not be supported, though she had 
 been more active than her husband. R. v. Archer, 1 Moo. C. C. 1 43. 
 
 The prisoner, a married woman, was indicted for receiving stolen 
 *Q171 *goods. The evidence showed that the property had been stolen 
 -• by the husband from his employer M'here he worked, and after- 
 wards taken home and given to his wife. The Court of Criminal Ap- 
 peal held that under these circumstances she could not be convicted o 
 the offence. R. v, Brookes, 1 Dears. & B. C. C. R. 184; 22 L. J., 
 M. C. 121. 
 
 A husband may be convicted of feloniously receiving property 
 which his wife has voluntarily stolen, if he receives it knowing 
 that she has stolen it. R. v. M'Athey, L. & C. 250 ; 32 L. J., 
 M. C. 35. 
 
 The two prisoners, husband and wife, were jointly indicted for 
 receiving goods knowing them to have been stolen. The jury found 
 both the prisoners guilty, and that the wife received the goods with- 
 out the control or knowledge of, and apart from her husband, and 
 that he afterwards adopted his wife's receipt. The Court of Criminal 
 Appeal thought that upon this finding the husband could not be con- 
 victed, as it did not show that he had taken any active part in the 
 matter, or did anything more than barely consent to what his wife had 
 done. R. V. Dring, Dears. & B. C. C. 329. 
 
 But where the thief delivered goods to the prisoner's wife who 
 paid him sixpence on account, and afterwards the prisoner met 
 the thief, and with a guilty knowledge agreed with him for the 
 price, and paid the balance ; it was held, distinguishing R. v. Dring, 
 that there was no complete receipt by the wife, but that the prisoner 
 actively approved of and ratified her partial receipt, and was, 
 therefore, rightly convicted. R. v. Woodward, L. & C. 122; 31 
 L. J., M. C. 91. 
 
 Where a husband and wife are indicted for jointly receiving, it is
 
 EECEIVING STOLEN GOODS. 1139 
 
 proper that the jury should be asked, whether the wife received the 
 goods either from, or in presence of, her husband. And where the 
 counsel for the defence suggested that these questions should be put, 
 and they were not put, the court, under the circumstances, quashed 
 the conviction as against the wife. It appeared in that case, that the 
 goods were received in the husband's house ; it was probable, there- 
 fore, that the husband was present, from which it would be presumed 
 that the wife was acting under his control. It does not seem neces- 
 sary that these questions should be put in every case in which the 
 husband and wife are both indicted for receiving, but only where 
 the circumstances of the case do not negative the presence of the 
 husband. R. v. Wardroper, Bell, C. C. 249 ; 29 L. J., M. C. 118. 
 
 An indictment in one count charged A. and B. with a burglary and 
 with stealing, and C. with receiving part of the stolen property, 
 and D. with receiving other part of the stolen property ; another 
 count charged C. and D. with the substantive felony of jointly re- 
 ceiving the whole of the stolen property, and there were two other 
 counts charging C. and D. separately with the substantive felony of 
 each receiving part of the stolen property. It was proved that A. 
 and B. had committed the burglary, and stolen the property, but the 
 evidence as to the receiving showed that C. and D. had received the 
 stolen property on different occasions, and quite unconnectedly with 
 each other. It was objected that the count charging a joint receiving 
 was not proved (see R. v. Messingham, supra), and that as distinct 
 felonies had been committed by C. and D., they ought to have 
 been tried separately. Per Littledale, J., " there is certainly some 
 *inconsistency in this indictment ; but the practice in cases of rj^q-. ^ 
 receivers is to plead in this manner." The prisoners were all ■- 
 convicted. R. v. Hartall, 7 C. & P. 475, 32 E. C. L. 
 
 Where two receivers are charged in the same indictment with sepa- 
 rate and distinct acts of receiving, it is too late after verdict to object 
 that they should have been indicted separately. R. v. Hayes, 2 Moo. 
 & Rob. 156. 
 
 An indictment in the first count charged W. and R. C. with kill- 
 ing a sheep, " with intent to steal one of the hind legs of the said 
 sheep ;" and in another count charged J. C. with receiving nine 
 pounds weight of mutton "of a certain evil-disposed person," he then 
 knowing that the mutton had been stolen. Coleridge, J., said, " This 
 count is for receiving stolen goods, and it is joined not with another 
 count against other persons for stealing anything, but with a count 
 for killing with intent to steal, which appears to me an offence quite 
 distinct in its nature from that imputed to the prisoner (J. C). I 
 shall not stop the case, but I will take care that the prisoner has any 
 advantage that can arise from the objection, if, upon consideration, I 
 should think it well founded." The prisoners were all convicted. 
 R. V. Wheeler, 7 C. & P. 170, 32 E. C. L. 
 
 Proof of guilty knowledge and intention. Evidence must be given 
 of the prisoner's guilty knowledge, that he received the goods in ques-
 
 1140 RECEIVING STOLEN GOODS. 
 
 tion, knowing them to have been stolen.' The usual evidence is, that 
 the goods were bought at an undervalue by the receiver, or that he 
 concealed the goods. So evidence may be given that the prisoner 
 pledged or otherwise disposed of other articles of stolen property (part 
 of the same transaction) besides those in the indictment, in order to 
 show the guilty knowledge, R. v. Dunn, 1 Moo. C. C. 146 ; and of the 
 j)ossession of other stolen articles, and of a previous conviction. See 
 this question discussed, ante, p. 98, and see 34 & 35 Vict. c. 112, 
 s. 19, supra, p. 907, and see R. v. Carter, 12 Q. B. D. 522, where it 
 was held that evidence could not be given of other similar stolen 
 property which the prisoner had disposed of before the date of the 
 stealing charged. 
 
 In the now repealed "Habitual Criminal's Act," 32&33 Vict. c. 
 99, s. 11, the notice to be given to the prisoner of an intention to 
 prove possession by him of other stolen property was to the effect 
 that he would be deemed to have known the goods to be stolen until 
 he had proved the contrary. But it was held that notwithstanding 
 these words the onus of proof of guilty knowledge was still upon the 
 prosecution. R. v. Davis, L. R. 1 C. C. R. 272 ; 39 L. J., M. C. 135. 
 These words are omitted in the Prevention of Crimes Act, 1871, ante, 
 p. 907. 
 
 The intention of the party in receiving the goods is not material, 
 provided he knew them to be stolen. Where it was objected that 
 there was no evidence of a conversion by the receiver, Gurney, B., 
 said, if the receiver takes without any profit or advantage, or whether 
 it be for the purpose of profit or not, or merely to assist the thief, it 
 is precisely the same. R. v. Davis, 6 C. & P. 177, 25 E. C. L. If a 
 receiver of stolen goods receives them for the mere purpose of conceal- 
 ment, without deriving any profit at all, he is just as much a receiver 
 as if he had purchased them.^ Per Taunton, J., R. v. Richardson, 6 
 C. & P. 335, 25 E. C. L. 
 
 ^Q-| q-i Election. A person may be legally charged in different 
 -I counts of the same indictment, both as the principal felon and 
 as the receiver of the same goods. R. v. Galloway, 1 Moo. C. C. 234. 
 But the judges, on a case reserved, were equally divided in opinion 
 whether the prosecutor should in such case be put to his election. 
 They all agreed, however, that directions should be given to the re- 
 spective clerks of assize not to put both charges in the same indictment. 
 Id. Now, however, by the 24 & 25 Vict. c. 96, s. 92, these counts 
 may be joined ; supra, p. 206. There may be as many counts charg- 
 ing a felonious receiving of the same goods as there are counts charg- 
 
 ' On an indictment for receiving stolen poods knowledge of the prisoner that they 
 were stolen must be proved, and some connection witli the thief made out. Foster v. 
 State, 8 Crim. Law Mag. 113. 
 
 ^ Where a person suffered a trunk, containing stolen goods, to be put on board a 
 vessel in which he had taken his passage, as part of his baggage, it was held that this 
 was such a receipt of the goods, as purchaser or bailee, as justified a conviction for re- 
 ceiving stolen goods. State v, Scovel, 1 Const. Eep. 274. S.
 
 RECEIVING STOLEN GOODS. 1141 
 
 ing the stealing of those goods, and the prosecutor cannot be put to 
 his election on what count or counts he will })roceed. R. v. Beeton, 1 
 Den. C. C. R. 414 ; 18 L. J., M. C. 117. So, also, where three acts 
 of larceny are charged there may be three counts for receiving. See 
 R. V. Heywood, L. & C. 451, 33 L. J., M. C. 133, ante, p. 206.^ 
 
 Venue. One half of a note issued by a bank at S. in Wiltshire 
 was stolen in its transit through the post, and the prisoner was proved 
 to have received it with guilty knowledge, but it was not proved to 
 have been in his possession in Wiltshire. He posted it in Somerset- 
 shire in a letter, addressed it to the bank at S., requesting pay- 
 ment, which letter was duly delivered. It was held that, upon an 
 indictment for receiving, where the venue was laid in Wiltshire, the 
 prisoner might be convicted, for the possession of the post-office 
 servants, who were the agents of the prisoner to present the note at 
 the bank at S., might be treated as the possession of the prisoner ; 
 and that, therefore, the prisoner might be tried in Wiltshire under 
 the 7 & 8 Geo. 4, c. 29, s. 56 (now repealed). R. v. Cryer, 26 
 L. J., M. C. 192. See R. v. Kay, supra, p. 885, 886, tit. " Post- 
 office." ^ 
 
 The prisoners were indicted in the county of Dorset, on an indict- 
 ment which charged them in several counts with stealing and receiv- 
 ing. J. M., one of the prisoners, was convicted on a count which 
 charged him with feloniously receiving "at M. in the county of Som- 
 erset." It was held that upon this indictment he could not be con- 
 victed, though by other counts it appeared that the goods were stolen 
 in the county of Dorset. R. v. Martin, 1 Den. C. C. 398 ; 18 L. J., 
 M. C. 137. Where goods are stolen abroad (e. g. in Guernsey) the 
 prisoner cannot be convicted of receiving tliose goods in England. R. 
 V. Debruiel, 11 Cox, C. C. 207. 
 
 See also supra, tit. " Larceny." 
 
 ^ Election is not compulsory between a count for larceny and one for receiving 
 stolen goods. Andrews i'. People, 117 111. 195. 
 
 "^ An indictment for receiving stolen goods lies against one who receives goods in 
 one State, though stolen in another. Commonwealth v. Andrews, 2 Mass. 14. S.
 
 1142 KESCUE. 
 
 *920] *EESCUE. 
 
 PAGE 
 
 Nature of the offence .......... 920 
 
 Proof of the custody of the party rescued 920 
 
 of the rescue 921 
 
 Punishment .•..,..*,.,. 921 
 
 Aiding a prisoner to escape 921 
 
 offence under various statutes 921 
 
 Nature of the oflfence. The oflPence of rescue nearly resembles 
 that of prison-breach, which has already been treated of, ante, p. 
 887. 
 
 Where the party rescued is imprisoned on a charge of felony, the 
 rescuing is felony also. 1 Hale, P. C 606. Where the offence of the 
 former is a misdemeanor, that of the latter will be a misdemeanor also. 
 Hawk. P. C. b. 2, c. 21, s. 6.^ 
 
 If the party rescued was imprisoned for felony, and was rescued be- 
 fore indictment, the indictment for the rescue must surmise a felony 
 done, as well as an imprisonment for felony, or on suspicion of felony, 
 but if the party was indicted and taken upon a capias, and then res- 
 cued, there needs only a recital that he was indicted prout, etc., and 
 taken and rescued. 1 Hale, P. C. 607. 
 
 Though the party rescued may be indicted before the principal be 
 convicted and attainted, yet he shall not be arraigned or tried before 
 the principal is attainted. Id. In such case, however, he may, as it 
 seems, be indicted and tried for a misdemeanor, though not for a fel- 
 ony. 1 Hale, P. C. 399. 
 
 Proof of the custody of the party rescued. To make the offence 
 of rescuing a party felony, it must appear that he was in custody for 
 felony, or suspicion of felony, but it is immaterial whether he was in 
 the custody of a private person, or of an officer, or under a warrant of 
 a justice of the peace, for where the arrest of a felon is lawful, the 
 rescue of him is felony. But it seems necessary that the party res- 
 cuing should have knowledge that the other is under arrest for felony, 
 if he be in the custody of a private person, though if he be in the 
 custody of a constable or sheriff, or in prison, lie is bound to .take 
 notice of it. 1 Hale, P. C. 606. If the imprisonment be so far 
 irregular that the party imprisoned would not be guilty of prison- 
 breach by making his escape^ a person rescuing him will not subject 
 himself to the punishment of rescue. Hawk. P. C. b. 2, c. 21, ss. 1, 
 2 ; 1 Russ. Cri. 582, 5th ed. 
 
 In R. V. Almey, 3 Jur. N. S. 750, Erie, J., is said to have held 
 that the forcible rescue of a person in illegal custody is an indictable 
 offence. 
 
 ' See Commonwealth v. Filburn, 119 Mass. 297.
 
 RESCUE. 1143 
 
 A warrant of a justice to apprehend a party, founded on a certifi- 
 cate of the clerk of the peace, tliat an indictment for a misdemeanor 
 had been found against such a party, is good ; and therefore if upon 
 *such warrant the party be arrested, and afterwards rescued, r:(cQ9-| 
 those who are guilty of the rescue may be convicted of a mis- '- 
 demeanor. R. v. Stokes, 5 C. & P. 148, 24 E. C. L. 
 
 Proof of the rescue. The word rescue, or some word equivalent 
 thereto, must appear in the indictment, and the allegation must be 
 proved by showing that the act was done forcibly, and against the 
 will of the officer who had the party rescued in custody. E,. v. 
 Burridge, 3 P. Wms. 483. In order to render the offence of rescue 
 complete, the prisoner must actually get out of the prison. Hawk. 
 P. C. b. 2, c. 18, s. 12. 
 
 Punishment. Tiie offence of rescuing a person in custody for 
 felony was formerly punishable as a felony without clergy at common 
 law. R. V. Stanley, Russ. & Ry. 432. But now by the 1 & 2 Geo. 4, 
 c. 88 (E. & I.), s. 1, " if any person shall rescue, or aid and assist 
 in rescuing, from the lawful custody of any constable, officer, head- 
 borougli, or other person whomsoever, any person charged with, or 
 suspected of, or committed for any felony, or on suspicion thereof, 
 then, if the person or persons so offending shall be convicted of felony, 
 and entitled to the benefit of clergy, and be liable to be imprisoned 
 for any term not exceeding one year, it shall be lawful for the court 
 by or before whom any such person or persons shall be convicted, to 
 order and direct, in case it shall think fit, that such person or persons, 
 instead of being so fined and imprisoned as aforesaid, shall be trans- 
 ported beyond the seas [now penal servitude] for seven years, or be 
 imprisoned only, or be imprisoned and kept to hard labor in the 
 common gaol, house of correction, or penitentiary house, for any term 
 not less than one and not exceeding three years." 
 
 Aiding a prisoner to escape. Under the head of rescue may be 
 classed the analogous offence of aiding a prisoner to escape. This, 
 as an obstruction of the course of justice, was an offence at common 
 law, being a felony where the prisoner was in custody on a charge of 
 felony, and a misdemeanor in other cases, whether the charge were 
 criminal or not. See R. v. Burridge, 3 P. Wms. 439 ; R. v. Allen, 
 Carr. & M. 295, 41 E. C. L. 
 
 Aiding a prisoner to escape — offence under various statutes. The 
 offence of assisting a prisoner to escape has, by various statutes, been 
 subjected to different degrees of punishment. 
 
 By the 25 Geo. 2, c. 37, s. 9, if any person or persons whatsoever 
 shall by force set at liberty, or rescue, or attempt to rescue or set at 
 liberty, any person out of prison who shall be committed for or 
 found guilty of murder, or rescue, or attempt to rescue any person 
 convicted of murder, going to execution, or during execution, every
 
 1144 RESCUE. 
 
 person so offending shall be deemed, taken, and adjudged to be guilty 
 of felony [and shall suffer death without benefit of clergy]. 
 
 Now by the 7 Will. 4 & 1 Vict. c. 91, the punishment of death is 
 abolished, and parties guilty of the offences mentioned in the above 
 section are liable to be transported [now penal servitude] for life, 
 or for not less than fifteen years, or to be imprisoned for any terra 
 not exceeding three years. As to aiding prisoners to escape, see now 
 28 & 29 Vict. c. 126, s. 37, anie, p. 889. 
 
 Upon the partly repealed statute 16 Geo. 2, c. 31, it has been held 
 *Q99"| *that that Act is confined to cases of prisoners committed for 
 
 *^"'-' felony expressed in the warrant of commitment or detainer, 
 and therefore a commitment on suspicion only is not within the Act. 
 K. V. Walker, 1 Leach, 97 ; R. v. Greenif ', 1 Leach, 363. It was 
 likewise held on the construction of that statute, that it did not extend 
 to a case where the escape had been actually effected, but only to the 
 attempt. R. v. Tilley, 2 Leach, 662. The delivering the instrument 
 is an offence within the Act, though the prisoner has been pardoned 
 for the offence of which he was convicted, on condition of transporta- 
 tion ; and a party may be convicted, though there is no evidence that 
 he knew of the specific offence of which the prisoner he assisted had 
 been convicted. R. v. Shaw, Russ. & Ry. 526. See as to the above 
 statute, 1 Russ. on Crimes, 586 (j) 5th ed. 
 
 Where the record of the conviction of the person aided is set forth 
 and is produced by the proper officer, no evidence is admissible to 
 contradict that record. R. v. Shaw, Russ. & Ry. 526.^ 
 
 By the 52 Geo. 3, c. 156 (U. K.), aiding and assisting prisoners of 
 war to escape is felony, punishable with transportation for life [now 
 penal servitude] or fourteen or seven years. See R. v. Martin, R. & 
 R. 196. 
 
 As to aiding and assisting persons subject to military law to escape, 
 see the 44 & 45 Vict. c. 57, s. 16. 
 
 As to rescuing returned transports, see post, tit. " Transportation, 
 returning from." 
 
 As to obstructing process and rescuing goods, see 1 Russ. Cri. 558, 
 5th ed. 
 
 1 Compare Commonwealth v. Feldman, 131 Mass. 588.
 
 KIOTS, ETC. ' 1145 
 
 ♦RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES. [*923 
 
 PAGE 
 
 Offences under the Riot Act ........ 923 
 
 Riotouslv injuring or demolishing buildings . • . . . 924 
 
 Persons indicted for felony may be convicted of misdemeanor . 924 
 
 Riotously preventing the loading of ships 924 
 
 Riotous behavior at burials .',•.... 925 
 
 Proof of riot .' ... 925 
 
 refusing to aid a constable to quell a riot • . . . 926 
 
 upon prosecutions under the Riot Act 926 
 
 riotously injuring or demolishing buildings . . . 927 
 
 a rout . . . . • 929 
 
 an unlawful assembly ....... 929 
 
 Oflfences under the Riot Act. By the 1 Geo. 1, stat. 2, c. 5, s. 1 
 (commonly called the Riot Act), it is enacted, that if any persons to 
 the number of twelve or more, being unlawfully, riotously, and 
 tumultuously assembled together, to the disturbance of the public 
 peace, and being required or commanded by one or more justice or 
 justices of the peace, or by the sheriff of the county, or by his under- 
 sheriff, or by the mayor, bailiff, or bailiffs, or other head officer or 
 justice of the peace of any city or town corporate where such assembly 
 shall be, by proclamation to be made in the king's name in the form 
 thereinafter directed, to disperse themselves, and peaceably to depart 
 to their habitations or to their lawful business, and shall, to the num- 
 ber of twelve or more (notwithstanding such proclamation made), un- 
 lawfully, riotously, and tumultuously remain or continue together 
 by the space of one hour after such command or request made by 
 proclamation, that then such remaining or continuing together to the 
 number of twelve or more, after such command or request made by 
 proclamation, shall be adjudged felony without benefit of clergy, and 
 the offenders therein shall be adjudged felons [and siiall suffer death, 
 as in the case of felony, without benefit of clergy]. 
 
 By s. 5, opposing and hindering the making of the proclamation 
 shall be adjudged felony, without benefit of clergy, a.nd persons as- 
 sembled to the number of twelve, to whom proclamation should have 
 been made, if the same had not been hindered, not dispersing within 
 an hour after such hindrance, having knowledge thereof, shall be ad- 
 judged felons [and suffer death]. 
 
 By the 7 Will. 4 & 1 Vict. c. 91^ s. 1, after reciting the above 
 statute, it is enacted, " That if any person shall, after the commence- 
 ment of this Act, be convicted of any of the offences hereinbefore men- 
 tioned, 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 [now penal servi- 
 tude] for the term of the natural life of such offender, or for any term
 
 1146 BIOTS, ETC. 
 
 *Q9-n *°^* ^^^^ ^"^^^^ fifteen years, or to be imprisoned for any term 
 -J not exceeding three years." 
 By s. 2, in cases of im})risonment, the court may award hard 
 labor, and also solitary confinement not exceeding one month at 
 any one time, and three months in any one year. And see 3 Geo. 
 4, c. 114. 
 
 Riotously injuring or demolishing buildings. By the 24 & 25 
 Vict. c. 97, s. 11, "if any persons riotously and tumultuously assem- 
 bled together to tiie disturbance of the public peace shall unlawfully 
 and with force demolish, or pull down, or destroy, or begin to demol- 
 ish, pull down, or destroy any church, chapel, meeting-house, or other 
 place of divine worship, or any house, stable, coach-house, out-house, 
 warehouse, office, shop, mill, malthouse, hop-oast, barn, granary, shed, 
 hovel, or fold, or any building or erection used in farming land, or in 
 carrying on any trade or manufacture, or any branch thereof, or any 
 building other than such as are in this section before mentioned, be- 
 longing to the queen, or to any county, riding, division, city, borough, 
 poor-law union, parish, or place, or belonging to any university, or 
 college or hall of any university, or to any inn of court, or devoted 
 or dedicated to public use or ornament, or erected or maintained by 
 public subscription or contribution, or any machinery, whether fixed 
 or movable, prepared for or employed in any manufacture, or in any 
 branch thereof, or any steam-engine or other engine for sinking, work- 
 ing, ventilating, or draining any mine, or any staith, building, or erection 
 used in conducting the business of any mine, or any bridge, wagonway, 
 or trunk for conveying minerals from any mine, every such oflPender shall 
 be guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for life, or for 
 any term not less than three [now five] years, or to be imprisoned for 
 any term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement." 
 
 By s. 12, "if any persons riotously and tumultuously assembled to- 
 gether to the disturbance of the public peace shall unlawfully and with 
 force injure or damage any such church, chapel, meeting-house, place 
 of divine worship, house, stable, coach-house, out-house, warehouse, 
 office, shop, mill, malthouse, hop-oast, barn, granary, shed, hovel, fold, 
 building, erection, machinery, engine, stalls, bridge, wagonway, or 
 trunk, as is in the last preceding section mentioned, every such offender 
 shall be guilty of a misdemeanor, and being convicted thereof shall be 
 liable, at the discretion of the court, to be kept in penal servitude for 
 any term not exceeding seven years and not less than three [now five] 
 years, or to be imprisoned for any term not exceeding two years, with 
 or without hard labor." 
 
 Persons indicted for felony may be convicted of misdemeanor. 
 By the same section it is provided, " that if upon the trial of any 
 person for any felony in the last preceding section mentioned the jury 
 shall not be satisfied that such person is guilty thereof, but shall be
 
 RIOTS, ETC. 1147 
 
 satisfied that he is guilty of any oifencc in this section mentioned, 
 then the jury may find him guilty thereof, and he may be punished 
 accordingly." 
 
 Seamen, etc., riotously preventing the loading, etc., of any ves- 
 sels, etc. *By the 33 Geo. 3, c. 07, s. 1, reciting that seamen, r:i:Q9fi 
 keelmen, etc., had of late assembled themselves in great numbers, L 
 and had committed many acts of violence, and that such practices, if con- 
 tinued, might occasion great loss and damage to individuals, and injure 
 the trade and navigation of the kingdom, enacts, " that if any seamen, 
 keelmen, casters, ship-carpenters, or other persons riotously assembled 
 together, to the number of three or more, shall unlawfully and with 
 force prevent, hinder, or obstruct the loading or unloading, or the sail- 
 ing or navigating, of any ship, keel, or other vessel, or shall unlawfully 
 and with force board any ship, keel, or other vessel, with intent to 
 prevent, hinder, or obstruct, the loading or unloading, or the sailing 
 or navigating, of such ship, keel, or other vessel, every seaman, keel- 
 man, caster, ship-carpenter, and other person (being lawfully con- 
 victed of any of the offences aforesaid, upon any indictment found in 
 any court of oyer and terminer, or general or quarter sessions of the 
 peace for the county, division, district, etc., wherein the oifence was 
 committed), shall be committed either to the common gaol or to the 
 house of correction for the same county, etc., there to continue and 
 to be kept to hard labor for any term not exceeding twelve calendar 
 months, nor less than six calendar racmths." By sec. 4, the Act shall 
 not extend to any act, deed, etc., done in the service, or by the au- 
 thority, of his Majesty. By sec. 7, offences committed on the high 
 seas shall be triable in any session of oyer and terminer, etc., for the 
 trial of offences committed on the high seas within the jurisdiction of 
 the admiralty. And by sec. 8, the prosecution for any of the said 
 offences is to be commenced within twelve calendar months after the 
 offence committed. 
 
 Riotous behavior at burials. Riotous or indecent behavior at 
 burials is made a misdemeanor by 43 & 44 Vict. c. 41, s. 7. 
 
 Proof of riot. A riot is defined by Hawkins to be a tumultuous 
 disturbance of the peace, by three persons or more assembling to- 
 gether of their own authority, with an intent mutually to assist one 
 another, against any one who shall oppose them, in the execution of 
 some enterprise of a private nature, and afterwards actually executing 
 the same, in a violent and turbulent manner, to the terror of the peo- 
 ple, whether the act intended were of itself lawful or unlawful.* 
 Hawk. P. C. b. 1, c. 65, s. 1. See R. «. Langford, p. 927. 
 
 * State V. Brook et al., 1 Hill, 362. In an indictment for a riot, it is necessary to 
 aver, and on tlie trial to prove, a previous unlawftd assembly ; and hence, if the assem- 
 bly were lawful, as upon summons to assist an officer in the execution of lawful pro- 
 cess, the subsequent illegal conduct of the persons so assembled, will not make them 
 rioters. 8tate v. Stalcap, 1 Ired. Law, 30. If persons innocently and lawfully assem- 
 bled, afterwards confederate to do an unlawful act of violence, suddenly proposed and
 
 1148 RIOTS, ETC. 
 
 An unlawful assembling must be proved, and therefore, if a number 
 of persons meet together at a fair, and suddenly quarrel, it is an 
 affray, and not a riot, ante, p. 277 ; but if, being so assembled, on a 
 dispute occurring, they form into parties, with promises of mutual 
 assistance, and then make an affray, it will be a riot ; and in this 
 manner, any lawful assembly may be converted into a riot ; so a 
 person joining rioters is equally guilty as if he had joined them while 
 assembling. Hawk. P. C. b. 1, c. 65, s. 3. 
 
 Evidence must be given of some circumstances of such actual force 
 or violence, or, at least, of such apparent tendency thereto, as are 
 calculated to strike terror into the public ; as a show of arms, 
 threatening speeches, or turbulent gestures. Hawk. P. C. b. 1, c. 65, 
 s. 5. But it is not necessary that personal violence should be 
 done or offered. Thus, if a number of persons come to a theatre, 
 and make a great noise and disturbance, with the predetermined 
 purpose of preventing the performance, it will be a riot, though 
 *92rl *"^ personal violence is done to any individual, and no injury 
 -I done to the house. Clifford v. Brandon, 2 Campb. 358.^ But 
 the unlawfulness of the object of an assembly, even though they actu- 
 ally carry their unlawful object into execution, does not constitute a 
 riot, unless accompanied by circumstances of force or violence ; and in 
 the same manner, three or more persons assembling together peaceably, 
 to do an unlawful act, is not a riot. Hawk. P. C. b. 1, c. 65, s. 5. 
 
 In some cages in which the law authorizes force, the use of such 
 force will not constitute a riot, as where a sheriff or constable, or 
 perhaps even a private person, assembles a competent number of 
 persons, in order with force to suppress rebels, or enemies, or rioters. 
 Hawk. P. C b. 1, c. 65, s. 2. So a private individual may assemble a 
 number of others to suppress a common nuisance, or a nuisance to 
 his own land. Thus where a weir had been erected across a common 
 navigable river, and a number of persons assembled, %vith spades and 
 other necessary instruments, for removing it, and did remove it, it 
 was held to be neither a forcible entry nor a riot. Dalt. c, 137. So 
 an assembly of a man's friends at his own house, for the defence of 
 his person, or the possession of his house, against such as threaten to 
 beat him, or to make an unlawful entry, is excusable. 5 Burn. 278. 
 
 It must appear that the injury or grievance complained of relates 
 to some private quarrel only, as the inclosing of lands in which the 
 inhabitants of a certain town claim a right of common ; for where the 
 
 assented to, and thereupon do an act of violence in pursuance of such purpose, although 
 their whole purpose should not be consummated, it is a riot. State ?'. Snow, 1 8 Me. 
 346, Four persons acting in concert, went at midnight in a frolic to the prosecutor's 
 stable and shaved his horse's tail, and in so doing made sufficient noise to {irouse the 
 prosecutor and alarm his family — held, that they were indictable for a riot. State v, 
 Alexander, 7 Rich. 5. S. 
 
 A charge that three persons unlawfully assembled together and committed a riot is 
 not supported by proof than any two of them assembled with others. State v. Kuhl- 
 man, 5 Mo. App. 587. 
 
 ' So when armed men invade a house, it is not less a riot, because out of policy the 
 owner received them peaceably and entertained them, Sanders v. State, 60 Ga. 126.
 
 RIOTS, ETC. 1149 
 
 intention of the assembly is to redress public grievances, as to pull 
 down all inclosures in general, an attempt with force to execute 
 such intention will amount to high treason. Hawk. P. C. b. 1, c. 65, 
 s. 6. Where the object of an insurrection, says Mr. East, is a matter 
 of a private or local nature, affecting, or supposed to affect, only the 
 parties assembled, or confined to particular persons or districts, it 
 will not amount to high treason, although attended with the circum- 
 stances of military parade usually alleged in the indictments on this 
 branch of treason. As if the rising be only against a particular 
 market, or to destroy particular inclosures (see R. v. Birt, 5 C. & P. 
 154, 24 E. C. L.), to remove a local nuisance, to release a particular 
 prisoner (unless imprisoned for high treason), or even to oppose the 
 execution of an Act of parliament, if it only affect the district of the 
 insurgents, as in the case of a turnpike Act. 1 East, P. C. 75. As 
 to prize fights, see ante, p. 277. 
 
 The act for the purpose of executing which the rioters are as- 
 sembled must be proved, otherwise the defendants must be acquitted. 
 Where persons assemble together for the purpose of doing an act, 
 and the assembly is such as hereinbefore described, if they do not 
 proceed to execute their purpose, it is but an unlawful assembly, not 
 a riot ; if, after so assembling, they proceed to execute the act for 
 which they assembled, but do not execute it, it is termed a rout ; but 
 if they not only so assemble but proceed to execute their design, and 
 actually execute it, it is then a riot. 1 Hawk. c. 65, s. 1 ; Dalt. c. 
 136 ; R. V. Birt, 5 C. & P. 154, 24 E. C. L. 
 
 Proof of refusing to aid constable in quelling a riot. To support 
 an indictment against a person for refusing to aid and assist a con- 
 stable in the execution of his duty in quelling a riot, it is necessary 
 to prove, 1st, that the constable saAV a breach of the peace com- 
 mitted ; 2nd, that there was a reasonable necessity for calling on the 
 defendant for his assistance ; and, 3rd, that when duly called upon to 
 *assist the constable, the defendant, without any physical in- rHcqo? 
 firmity or lawful excuse, refused to do so. R. v. Brown, Car. L 
 & M. 314, 41 E. C. L.; per Alderson, B. It is not a valid ground 
 of defence to such an indictment that from the number of rioters the 
 single aid of the defendant would not have been of any use. Id. 
 
 A person charged to aid a constable, and who does so, is protected 
 eundo, morando, et redeundo. R. v. Phelps, Carr. & M. 180, 41 
 E. C. L.; per Coltman, J. 
 
 Proof upon prosecutions under the Biot Act. The second section 
 of the Riot Act gives the form of the proclamation, concluding with 
 the words, " God save the King." Where, in the reading of the proc- 
 lamation, these words were omitted, it was held that the persons con- 
 tinuing together did not incur the penalties of the statute. R. v. 
 Child, 4 C. & P. 442, 1 9 E. C. L. 
 
 Upon an indictment under the Riot Act, it was not proved that the 
 prisoner was among the mob during the whole of the hour, but he was 
 proved to have been there at various times during the hour ; it was
 
 1150 RIOTS, ETC. 
 
 held by Patteson, J., that it was a question for the jury upon all the 
 cii'cunislanee.s, whether he did substantially continue making pilrt of 
 the assembly for the hour ; for, although he might have occasion to 
 separate himself for a minute or two, yet, if in substance he was there 
 during the hour, he would not be thereby excused. E,. v. James, 1 
 Russ. on Cri, 377, 5th ed. 
 
 The second or subsequent reading of the Act does not do away with 
 the effect of the first reading, and the hour is to be computed from the 
 time of the first reading. Per Patteson, J., R. v. Woolcock, 5 C <fe 
 P. 517, 24 E. C. L. 
 
 If there be such an assembly that there would have been a riot if 
 the parties had carried their purpose into effect, the case is within the 
 Act, and whether there was a cessation or not, is a question for the 
 jury. Id. 
 
 An indictment under the Riot Act for remaining assembled one 
 hour after proclamation made, need not charge the original riot 
 to have been in terrorem popuH ; it is sufficient if it pursue 
 the words of the Act. Per Patteson, J., R. v. James, 5 C. & P. 
 153, 24 E. C. L. 
 
 Proof of riotously demolishing buildings. The true meaning of 
 the words "riotously assemble," as under the 24 & 25 Vict. c. 97, 
 not being explained by the Act, the common law definition of a riot 
 must be resorted to, and in such case, if any one of her Majesty's sub- 
 jects be terrified, this is sufficient terror and alarm to substantiate that 
 part of the charge of riot. Per Patteson, J., R. v. Langford, Carr. & 
 M. 602, 41 E. C. L. 
 
 Although the prisoners are charged only with a beginning to de- 
 molish, pull down, etc., yet in order to secure a conviction under 
 the 24 & 25 Vict. c. 97, s. 11, supra, p. 924, it must appear that 
 such a beginning was with intent to demolish the whole. The be- 
 ginning to pull down, said Park, J., in a case where the prisoners 
 were so charged, means not simply a demolition of a part, but of a 
 part with intent to demolish the whole. If the prisoners meant to 
 stop where they did (i. e., breaking windows and doors), and do no 
 more, they are not guilty ; but if they intended, when they broke 
 the windows, etc., to go further, and destroy the house, they are 
 guilty of a capital offence. If they had the full means of going 
 *Q9i^l *further, and were not interrupted, but left off of their own 
 -' accord, it is evidence that they meant the work of demolition 
 to stop where it did. It was proved that the parties began by break- 
 ing the windows, and having afterwards entered the house, set fire to 
 the furniture ; but no part of the house was burnt. Park, J., said to 
 the jury, "If you think the prisoners originally came there without 
 intent to demolish, and that the setting fire to the furniture was an 
 afterthought, but with tiiat intent, then you must acquit, because no 
 part of the house having been burnt, there was no beginning to de- 
 stroy the house. If they came originally without such intent, but had 
 afterwards set fire to the house, the offence is arson. If you have 
 doubts whether they originally came with an intent to demolish, you
 
 EIOTS, ETC. 1151 
 
 may use the setting fire to the furniture under such circumstances, and 
 in such manner as that the necessary consequence, if not for timely in- 
 terference, would have been the biu'ning of the house, as evidence to 
 show that they had su(!h intent, although they began to demolish in 
 another manner." R. v. A^hton, 1 Lcwin, C. C. 296. The same rule 
 was laid down in the two following cases : — The prisoners about mid- 
 night came to the house of the prosecutor, and having in a riotous 
 manner burst open the door, broke some of the furniture, and all the 
 windows' and did other damage, after which they went away, though 
 there was nothing to prevent them committing further injury, Little- 
 dale, J., told the jury that this was not a "beginning to demolish," 
 unless they should be satisfied that the ultimate object of the rioters 
 was to demolish the house ; and that if they had carried their inten- 
 tions into full effect, they would in fact have demolished it. That 
 such was not the case here, for that they had gone away, having mani- 
 festly completed their purpose, and done all the injury they meant to 
 do. R. V. Thomas, 4 C. & P. 237, 19 E. C. L.; and see 6 C. & P. 
 333, 25 E. C. L. See also R. v. Adams, Carr. & M. 299, where Col- 
 eridge, J., said to the jury, "Before you can find the prisoners guilty, 
 you must be of opinion that they meant to leave the house no house 
 at all in fiict. If they intended to leave it still a house, though in a 
 state however dilapidated, they are not guilty under this highly penal 
 statute." Injuries not intended for the destruction of the whole 
 house are now provided for by the 24 & 25 Vict. c. 97, s. 12, 
 supra, p. 924. 
 
 If in a case of feloniously demolishing a house by rioting, it appears 
 that some of the prisoners set fire to the house itself, and that others 
 carried furniture out of the house, and burnt it in a fire made on a 
 gravel walk on the outside of the house, it will be for the jury to say 
 whether the latter were not encouraging and taking part in a general 
 design of destroying the house and furniture ; and if so, the jury 
 ought to convict them. Per Tindal, C. J., R. v. Harris, Carr. & M. 
 661. If a house be demolished by rioters by means of fire, one of the 
 rioters who is present while the fire is burning may be convicted for 
 the felonious demolition under the statute, although he is not proved 
 to have been present when the house was originally set on fire. R. v, 
 Simpson, Carr. & M. 669, 41 E. C. L. 
 
 When an election mob pursued a person who took refuge in a house, 
 upon which they attacked the house, shouting, " Pull it down !" and 
 broke the door and windows, and destroyed much of the furniture, but, 
 being unable to find the person they were in search of, went away ; Tin- 
 dal, C. J., ruled, that the case was not within the statute, the object of 
 the rioters not being to destroy the house, but to secure the person they 
 were in search of. R. v. Price, 5 C. & P. 510, 24 E. C. L. But 
 *the case may fall within the statute, though the intent to de- r*Qoq 
 molish may be accompanied with another intent, which may •- 
 have influenced the conduct of the rioters. Thus, where a party of 
 coal-whippers having a feeling of ill-will towards a coal-lumper, who 
 paid less than the usual wages, collected a mob, and went to the house 
 where he kept his pay-table, exclaiming that they would murder him,
 
 1152 RIOTS, ETC. 
 
 and began to throw stones, etc., and broke the windows and partitions, 
 and part of a wall, and after his escape continued to throw stones, 
 etc., till stopped by the police ; Gurney, B., ruled that the parties 
 might be convicted under the 7 & 8 Geo. 4, c. 30, s. 8 (repealed), of 
 beginning to demolish, though their principal object might be to injure 
 the limiper, provided it was also their object to demolish the house, 
 on account of its having been used by him. R,. v. Batt, 6 C. & P. 
 329, 25 E. C. L. 
 
 On an indictment for riotously, etc., beginning to demolish and de- 
 molishing a dwelling-house, total demolition is not necessary, though 
 the parties were not interrupted. If the house be destroyed as a 
 dwelling it is enough. Four men, members of and connected with the 
 family of the owner of the cottage, with great violence, and to his 
 terror, drove him from it, and pulled it down all but the chimney : it 
 was held sujfficient to satisfy the statute though no other persons were 
 within reach of the alarm ; they having no bond fide claim of right, 
 but intending to injure the owner. R. v. Phillips, 2 Moo. C. C. 552. 
 If rioters destroy a house by fire, this is a felonious demolition of it 
 within the statute, and the persons guilty of such an offence may be 
 convicted on an indictment, founded on that enactment, and need not 
 be indicted for arson under s. 2 of the same statute. Fer Tindal, C 
 J., R. V. Harris, Carr. & M. 661, 41 E. C. L. 
 
 Proof of a rout. A rout seems to be, according to the general 
 opinion, a disturbance of the peace, by persons assembled together, 
 with an intention to do a thing, which, if executed, would make 
 them rioters, and actually making a motion towards the execution 
 thereof, but not executing it.^ Hawk. P. C. b. 1, c. 65, s. 1 ; 1 Puss. 
 Cri. 372, 5th ed. 
 
 Proof of an unlawful assembly. Any meeting whatsoever of great 
 numbers of people, with such circumstances of terror as cannot but 
 endanger the public peace, and raise fears and jealousies amongst the 
 king's subjects, seems properly to be called an unlawful assembly, al- 
 though the meeting neither actually executes its jnirpose, or makes any 
 motion towards its execution, as where great numbers complaining of a 
 common grievance, meet together armed in a warlike mauHer, in order 
 to consult respecting the most proper means for the recovery of their 
 interests, for no one can foresee what mav be the event of such an 
 assembly. Hawk. P. C. b. 1, c. 65, s. 9 ; R. v. M'Naughtcn, 14 Cox, 
 C. C. Ir. 576. The circumstances which constitute an unlaAvful 
 assembly were much discussed in the case of Redford v. Birley, 3 
 Stark. N. P. C. 76, 3 E. C. L. In that case, Holroyd, J., said, an 
 unlawful assembly is where persons meet together in a manner 
 and under circumstances which the law does not allow, but 
 makes it criminal in those persons meeting together in such 
 a manner, knowingly, and with such purposes as are in point 
 of law criminal. He then proceeded to state what may constitute 
 an unlawful assembly, adopting the language used by Bay ley, J., 
 * State V. Sumner, 2 Spears. 599. S.
 
 RIOTS, ETC. 1153 
 
 *in R. V. Hunt, at York. All persons assembled to sow scdl- r^q.jrj 
 tion, and bringiuj^ into contempt the constitntion, are an nnlaw- L 
 fiil assembly. With regard to meetings for drillings, he said, if the 
 object of the drilling is to secure the attention of the persons drilled to 
 disatfccted speeches, and give confidence by an appearance of strength 
 to those willing to join them, that would be illegal ; or if they 
 were to say, we will have what we want, whether it be agreeable 
 to law or not, a meeting for that purpose, however it may be 
 masked, if it is really for a purpose of that kind, would be illegal. 
 If the meeting, from its general appearance, and all the accompanying 
 circumstances, is calculated to excite terror, alarm, and consternation, 
 it is generally criminal and unlawful. And it has been laid down 
 by Alderson, B., that "any meeting assembled under such circum- 
 stances as, according to the opinion of rational and firm men, are 
 likely to produce danger to the tranquillity and peace of the neigh- 
 borhood, is an unlawful assembly ; and in viewing this question, the 
 jury should take into their consideration the way in which the meet- 
 ings were held, tiie hour at which they met, and the language used 
 by the persons assembled, and by those who addressed them ; and 
 then consider whether firm and rational men, having their families 
 and property there, would have reasonable ground to fear a breach of 
 the peace, as the alarm must not be merely such as would frighten 
 any foolish or timid person, but must be such as would alarm persons 
 of reasonable firmness and courage." R. v. Vincent, 9 C. & P. 91. 
 All persons who join an assembly of this Idnd, disregarding its prob- 
 able effect and the alarm and consternation which are likely to 
 ensue, and all who give countenance and support to it, are criminal 
 parties. Per Littledale, J., R. v. Neale, 9 C. & P. 431, 38 E. C. L. 
 It seems that in order to be unlawful, the circumstances of terror must 
 exist in the assembly itself, either in its object or mode of carrying it 
 out ; for if the assembly is for a lawful purpose, and there is no inten- 
 tion of carrying it out unlawfully, the persons composing it would not 
 be guilty of " an unlawful and tumultuous assembly," although they 
 knew that their assembly would be opposed, and had good reason 
 to suppose that a breach of the peace would be committed by those 
 who opposed it. A religious association, calling themselves " the 
 Salvation Army," assembled to the number of above one hundred 
 persons, and forming a procession, headed by flags and music, 
 marched through the streets of Weston-super-Mare, as they had 
 done on previous occasions. They were met by an organized band 
 of persons, calling themselves " the Skeleton Army," who also 
 were in the habit of parading the streets, and were antagonistic to 
 " the Salvation Army." The two bodies met, and, as on several 
 previous occasions, a free fight, great uproar, blows, tumult, stone- 
 throwing, and disorder ensued. It was held that the Salvation Army 
 having assembled together without any circumstances of terror in 
 the assembly, could not be convicted of " unlawfully and tumultuously 
 assembling." Beatty v. Gilbanks, 9 Q. B. D. 308 ; 51 L. J., M. C. 
 117. 
 
 73
 
 1154 , ROBBERY. 
 
 '931] 
 
 •ROBBERY. 
 
 PAGE 
 
 Robbery or stealing from the person 931 
 
 Conviction for assault with intent to rob, on indictment for robbery 931 
 
 Assault with intent to rob , 932 
 
 Robbery with violence or by more than one person . . . 932 
 
 Robbery at common law . . , 9S2 
 
 Proof of the goods, etc., taken , . 932 
 
 of the taking . . . • 933 
 
 of the felonious intent 934 
 
 of the taking from the person . 934 
 
 of the taking in presence of the owner 935 
 
 of the taking against the will of the owner .... 936 
 
 of the violence 936 
 
 of violence used under pretence of legal or rightful proceedings 938 
 
 of putting in fear 939 
 
 by threatening to accuse of unnatural crimes . , • 943 
 
 must be before the taking 949 
 
 Robbery or stealing from the person. By the 24 & 25 Vict. c. 
 96, s. 40, " whosoever shall rob any person, or shall steal any chattel, 
 money or valuable security from the person of another, shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for any term not 
 exceeding fourteen years, and not less than three [now five] years, or 
 to be imprisoned for any term not exceeding two years, with or without 
 hard labor, and with or without solitary confinement." In addition 
 to the punishment here awarded, the court may order the offender if 
 a male to be once, twice, or thrice privately whipped. See 26 & 27 
 Vict. c. 44. 
 
 Conviction for assault with intent to rob, on indictment for rob- 
 bery. By s. 41, " if upon the trial of any person upon any indict- 
 ment for robbery, it shall appear to the jury upon the evidence that 
 the defendant did not commit the crime of robbery, but that he did 
 commit an assault with intent to rob, the defendant shall not by reason 
 thereof be entitled to be acquitted, but the jury shall be at liberty to 
 return as their verdict that the defendant is guilty of an assault with 
 intent to rob ; and thereupon such defendant shall be liable to be pun- 
 ished in the same manner as if he had been convicted upon an indict- 
 ment for feloniously assaulting with intent to rob ; and no person so 
 tried as is herein lastly mentioned shall be liable to be afterwards 
 prosecuted for an assault with intent to commit the robbery for which 
 he is so tried." 
 
 932] 
 
 *Assault with intent to rob. By s. 42, " whosoever shall 
 assault any person with intent to rob shall be guilty of fel- 
 ony, and being convicted thereof, shall (save and except in the cases 
 where a greater punishment is provided by this Act) be liable, at the
 
 ROBBERY. 1155 
 
 discretion of the court, to be kept in penal servitude for the term of 
 three [now five] years, or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labor, and with or without soli- 
 tary confinement." 
 
 Robbery with violence or by more than one person. By s. 43, 
 
 " whosoever shall, being armed with any otlensive weapon, or instru- 
 ment, rob, or assault with intent to rob, any person, or shall, together 
 with one or more other person or jx;rsons, rob, or assault with intent 
 to rob any person, or shall rob any person, and at the time of or im- 
 mediately before or immediately after such robbery shall wound, beat, 
 strike, or use any other personal violence to any other person, shall be 
 guilty of felony, and being convicted thereof shall be liable, at the dis- 
 cretion of the court, to be kept in penal servitude for life, or for any 
 term not less than three [now five] years, or to be imprisoned for any 
 term not exceeding two years, with or without hard labor, and with 
 or without solitary confinement." In addition to the punishment here 
 awarded the court may order the offender, if a male, to be once, twice, 
 or thrice privately whipped. See the 26 & 27 Vict. c. 44. 
 
 Robbery at common law. Robbery from the person, which Is a 
 felony at common law, is thus defined : — a felonious taking of money 
 or goods of any value from the person of another, or in his presence 
 against his will, by violence or putting him in fear.^ 2 East, P. C. 
 707. 
 
 Proof of the goods, etc., taken. It must be proved that some 
 property was taken, for an assault with intent to rob is an offence of 
 a different and inferior nature. 2 East, P. C. 707. But the value 
 of the property is Immaterial, a penny, as well as a pound, forcibly 
 extorted, constitutes a robbery, the gist of the offence being the force 
 and terror. 3 Inst. 69 ; 1 Hale, P. C. 532 ; 2 East, P. C. 707; 2 Puss. 
 Cri. 82, 5th ed. ; R. v. Morris, 9 C. & P. 349, 38 E. C. L. Thus where 
 a man was knocked down and his pockets rifled, but the robbers found 
 nothing except a slip of paper containing a memorandum, an indict- 
 ment for robbing him of the paper was held to be maintainable. R. v. 
 Bingley, coram Gurney, B., 5 C. & P. 602, 24 E. C. L. In the follow- 
 ing case it was held that there was no property in the prosecutor so as to 
 support an Indictment for robbery. The prisoner was charged with rob- 
 bing the prosecutor of a promissory note. It appeared that the pros- 
 ecutor had been decoyed by the prisoner Into a room for the purpose 
 of extorting money from him. Upon a table covered with black silk 
 were two candlesticks c(?vered also with black, a pair of large horse 
 
 ^ See as to robbery generally, People v. Beck, 21 Cal. 385 ; State v. Wilson, 67 N. 
 C. 456 ; Collins v. People, 39 111. 233 ; Cress v. State, 3 Cold. 350 ; Brennon v. State, 
 25 Ind. 403 ; People v. Shuler, 28 Cal. 490 ; State v. Jenkins, 36 Mo. 372 ; Common- 
 wealth V. Brooks, 1 Duv. 150 ; Commonwealth v. Holland, Id. 182 ; People v. Vice, 21 
 Cal. 344. S. 
 
 Robbery and grand larceny may be joined in one indictment, and a verdict of guilty 
 as charged in the information is sufScient. People v. Gilbert, 60 Cal. 108.
 
 1156 ROBBERY. 
 
 pistols ready cocked, a tumbler glass filled with gunpowder, a saucer 
 ■with leaden balls, two knives, one of them a prodigiously large carving 
 knife, their handles wrapped in black crape, pens, and inkstand, 
 several sheets of paper, and two ropes. The prisoner, Mrs. Phipoe, 
 seized the carving knife, and threatening to take away the prosecutor's 
 life, the latter was compelled to sign a promissory note for 2000^. 
 upon a piece of stamped paper wliich had been provided by the 
 *Q'>o-| *prisoner. It was objected that there was no property in the 
 
 ^^-' prosecutor, and the point being reserved for the opinion of the 
 judges, they held accordingly. They said that it was essential to lar- 
 ceny, that the property stolen should be of some value ; that the note 
 in this case did not on the face of it import either a general or special 
 property in the prosecutor, and that it was so far from being of any 
 the least value to him, that he had not even the property of the paper 
 on wliich it was written ; for it appeared that both the paper and ink 
 were the property of Mrs. Phipoe, and the delivery of it by her to 
 him could not, under the circumstances of the case, be considered as, 
 vesting it in him, but if it had, as it was a property of which he was 
 never, even for an instant, in the peaceable possession, it could not be 
 considered as property taken from his person, and it was well settled 
 that, to constitute the crime of robbery, the property must not only be 
 valuable, but it must also be taken from the person and peaceable 
 possession of the owner. R. v. Phipoe, 2 Leach, 673 ; 2 East, P. C. 
 599. See R. v. Edwards, 6 C. & P. 515, 521, 25 E. C. L., post, tit. 
 " Threats." 
 
 A servant who had received money from his master's customers, 
 was robbed of it on his way home. Upon its being objected that the 
 money could not be laid as the property of the master, Alderson, B., 
 inclined to think the objection valid, and w^ould have reserved the 
 point, but as the grand jury were sitting, the learned baron directed 
 the jury to be discharged, and a new indictment to be preferred, con- 
 taining a count laying the property in the servant. R. v. Rudick, 8 
 C. & P. 237, 34 E. C. L. 
 
 Proof of the taking. In order to constitute a talcing, there must 
 be a possession of the robber. Therefore, if a man, having a purse 
 fastened to his girdle, is assaulted by a thief, who, in order more 
 readily to get the purse, cuts the girdle, whereby the purse falls to the 
 ground, this is no taking of the purse, for the thief never had it in his 
 possession. 1 Hale, P. C. 533. But if the thief had taken up the 
 purse from the ground, and afterwards let it fall in the struggle, with- 
 out taking it up again, it would have been robbery, for it would have 
 been once in his possession. Id. However short a period of posses- 
 sion, it is sufficient. The prisoner taking the prosecutor's purse im- 
 mediately returned it, saying, " If you value your purse you will 
 please to take it back, and give me the contents of it :" the prosecutor 
 took it back, and the prisoner at that moment Avas apprehended. The 
 court (Hotham, B., and Willes, J.,) held, that though the prosecutor 
 did not eventually lose either his purse or his money, yet as the
 
 ROBBERY. 1157 
 
 prisoner had in fact demanded the money, and, under the impulse of 
 that threat and demand, the property had been once taken from the 
 prosecutor by the prisoner, it was in strictness of law a sufficient 
 taking to complete the offence, although tlie prisoner's possession had 
 continued for an instant only. K. v. Peat, 1 Lcacih, 320 ; 2 East, P. 
 C. 557, 708. See R. v. Lapier, 1 Leach, 326, ayiie, p. 050. It has 
 been observed, with regard to cases of this description, that though it 
 was formerly held that a sudden taking or snatching of any property 
 from a ])crson unawares was sufficient to constitute robbery, the con- 
 trary doctrine a{)pears to be now established (see R. v. Gnosil, 1 C. & 
 P. 304) ; and that no taking by violence will at the pres(>nt day be con- 
 sidered as sufficient to constitute robbery, unless some injury be done 
 to the person (as in R, v. Lapier, ante, p. 650), or unless there be some 
 *previous struggle for the possession of the property, or r:t:Qoj^ 
 some force used to obtain it. 1 Russ. Cri. 84, 5th ed.; •- 
 vide, post. 
 
 Proof of the taking — felonious intent. The robbery must be 
 animo farandi, with a felonious intent to appropriate the goods to the 
 offender's own use. And as there must be a felonious intent with re- 
 gard to the goods charged in the indictment, it is not enough that the 
 prisoner had at the same time an intent to steal other goods, A. as- 
 saulted B. on the highway with a felonious intent, and searched his 
 pockets for money, but finding none, pulled off the bridle of B.'s 
 horse, and threw that and some bread which B. had in panniers about 
 the highway, but did not take anything from B. Upon a conference 
 of all the judges, this was resolved to be no robbery. Anon., 2 East, 
 P. C. 662. 
 
 Though the party charged took the goods with violence and menaces, 
 yet if it be under a bond fide claim, it is no robbery. The prisoners 
 had set wires in which game was caught. The gamekeeper, finding 
 them, was carrying them away when the prisoner stopped him, and 
 desired him to give them up. The gamekeeper refused, upon which 
 the prisoner, lifting up a large stick, threatened to beat out the keeper's 
 brains if he did not deliver them. The keeper fearing violence de- 
 livered them. Upon an indictment for robbery, Vaughan, B., said, 
 " I shall leave it to the jury to say, whether the prisoner acted upon 
 an impression that the wires and pheasants were his own property ; 
 for, however he might be liable to penalties for having them in his 
 possession, yet if the jury think that he took them under a bond fide 
 impression that he was only getting back the possession of his own 
 property, there was no animus fjirandi, and the prosecution must 
 fail." The prisoner was acquitted. R. v. Hall, 3 C. & P. 409, 
 14 E. C. L. See also R. v. Boden, 1 C. & K. 395, 47 E. C. L. 
 
 It sometimes happens that the original assault is not made wnth the 
 particular felonious intent of robbing the party of the property sub- 
 sequently taken ; but if the intent arises before the property is taken, 
 it is sufficient ; as where money, offered to a person endeavoring to 
 commit a rape, is taken by him. The prisoner assaulted a woman,
 
 1158 ROBBERY. 
 
 with intent to ravish her, and she, without any demand made by him, 
 offered him money, which he took, and put into his pocket, but con- 
 tinued to treat the woman with violence, in order to effect his original 
 purpose, till he was interru])ted. A majority of the judges held this 
 to be robbery, on the ground that the woman, from the violence and 
 terror occasioned by the prisoner's behavior, and to redeem her 
 chastity, offered the money, which, it was clear, she would not 
 have done voluntarily, and that the prisoner, by taking it, de- 
 rived an advantage to himself from his felonious conduct, though 
 his original attempt was to commit a rape. R. v. Blackham, 2 East, 
 P. C. 711. 
 
 The question of the animus furandi often arises incases where, after 
 a quarrel and assault, part of the property of some of the parties en- 
 gaged in the transaction has been carried away. The question in these 
 cases is, whether the articles were taken in frolic, or from accident, or 
 from malice, but not miimo furandi. If the jury negative the intent 
 the prisoner cannot be convicted of a common assault. E. v. Wood- 
 hall, 12 Cox, C\ C. 240. 
 
 *935] 
 
 Proof of tbe taking — from the person. It is not necessary that the 
 goods should actually be taken from off the person of the 
 prosecutor; if they are in his personal custody, and are taken in 
 his presence, it is sufficient. But it is otherwise where they are in the 
 personal custody of a third person. The two prisoners were indicted 
 for assaulting the prosecutor, and robbing him of a bundle. It ap- 
 peared that the prosecutor had the bundle in his own personal custody, 
 in a beer-shop, and when he came out, gave it to his brother, who was 
 with him, to carry it for him. "While on the road the prisoners as- 
 saulted the prosecutor; upon which, his brother laid down the bundle 
 in the road, and ran to his assistance. One of the prisoners then 
 took up the bundle and made oflF with it. Vaughan, B., intimated an 
 opinion that the indictment was not maintainable, as the bundle was 
 in the possession of another person at the time of the assault com- 
 mitted. Highway robbery was the felonious taking of the property 
 of another, by violence, against his will, either from his person or in 
 his presence. The bundle, in that case, was not in the prosecutor's 
 possession. If the prisoners intended to take the bundle, why did 
 they assault the prosecutor, and not the person who had it ? The 
 prisoners were convicted of simple larceny. R. v. Fallows, 5 C. & P. 
 508, 24 E. C. L. 
 
 The following evidence was held not to be sufficient. The prose- 
 cutor said, " I felt a pressure of two persons, one on each side of me ; 
 I had secured my book in an inside pocket of my coat ; I felt a hand 
 between my coat and waistcoat. I was satisfied the prisoner was 
 attempting to get my book out. The other person had hold of my 
 right arm, and I forced it from him, and thrust it down to my book ; 
 in doing which I brushed the prisoner's hand and arm. The book 
 was just lifted out of my pocket ; it returned into my pocket. It 
 was out, how far I cannot tell ; I saw a slight glance of a man's
 
 ROBBERY. • 1159 
 
 hand down from my breast ; I secured the prisoner after a severe 
 struggle." On cross-examination, tlie prosecutor said, " I am satis- 
 fied the book was drawn from my pocket ; it was an inch above the 
 top of the pocket.'' The prisoner being convicted, on a case resented, 
 six of the judges thought tliat the prisoner was not rightly convicted 
 of stealing from the person, because, from first to last, the book re- 
 mained about the person of the prosecutor. Four of their lordships 
 were of a contrary opinion ; but the judges were unanimously of 
 opinion that the simple larceny was complete. R. v. Thompson, 
 1 Moo. C. C. 78. In R. v. Simpson, 1 Dears. C. C. R. 421 ; 24 L. J., 
 M. C. 7, the prosecutor carried his watch in a waistcoat-pocket, with 
 a chain attached passing through a button-hole of the waistcoat, 
 being there secured by a watch key. The prisoner took the watch 
 out of the pocket, and by force drew the chain out of the button-hole, 
 but the watch key having been caught in a button of the waistcoat, 
 the M'atcli and chain remained suspended. It was held there was 
 a sufficient severance to maintain a conviction for stealing from 
 the person. Jervis, C J., in giving judgment, said, " It is unneces- 
 sary to pronounce any opinion on R. v. Thompson. There seems to 
 be some confusion in the use of the expression, 'about the person '/ 
 here the watch was temporarily and for one moment in the possession 
 of the prisoner." 
 
 Proof of the taking — in presence of the owner. The taking need 
 not be by the immediate delivery of the party to the offender, or im- 
 mediately from the person of the party robbed ; it is sufficient if it be 
 *in his presence.' The instances given by Lord Hale are, where r^qor^ 
 a carrier is driving his pack-horses, and the thief takes his horse ■- 
 or cuts his pack and takes away the goods ; or where a thief comes 
 into the presence of A., and with violence, and putting A. in fear, 
 drives away his horse, cattle, or sheep. 1 Hale, P. C 533. But it 
 must appear in such cases, that the goods were taken in the presence 
 of the prosecutor. Thus where thieves struck money out of the owner's 
 hand, and by menaces drove him away, to prevent his taking it up 
 again, and then took it up themselves ; these facts being stated in a 
 special verdict, the court said that they could not intend that the 
 thieves took up the money in the sight or presence of the owner, and 
 that, as the striking the money out of the hand was without putting 
 the owner in fear, there was no robbery. R. v. Francis, 2 Str. 1015 ; 
 Com. Rep. 478 ; 2 East, P. C. 708. And the same was resolved in 
 another case, with the concurrence of all the judges. R. v. Grey, 2 
 East, P. C. 708. Where robbers, by putting in fear, made a wagoner 
 drive his wagon from the highway in the daytime, but did not take 
 the goods till night ; some held it to be a robbery from the first force, 
 but others considered that the wagoner's possession continued till 
 the goods were actually taken, unless the wagon were driven away 
 
 ■ As if by intimidation he is compelled to open his desk or throw down his purse, 
 and then the money is taken in his presence. United States v. Jones, 3 Wash. C. C. 
 Kep. 209. S.
 
 1 1 60 * ROBBERY. 
 
 by the thieves themselves. 2 East, P. C. 707 ; 1 Russ. on Cri. 88, 
 5th ed. 
 
 Proof of the taking — against the will of the owner. It must ap- 
 pear that the taking was against tiio will of the owner. Several j)er- 
 sons conspired to obtain for themselves the rewards given by statute 
 for apprehending robbers on the highway. The robbery was to be 
 effec^ted upon Salmon, one of the con federates, by Blee, another of the 
 confederates, and two strangers procured by Blee. It was expressly 
 found, that Salmon consented to part with his goods under pretence 
 of a robbery, and that for that purpose, he went to a higliway, at 
 Deptford, where the colorable robbery took place. The judges were 
 of opinion that this did not amount to robbery in any of the prisoners, 
 because Salmon's property was not taken from him against his will. 
 K. V. M'Daniel, Fost. 121, 122. But it is otherwise where the party 
 robbed delivers money to the thief, though, at the same time, with 
 the intent and power of immediately apprehending them. One Nor- 
 den, having been informed of several robberies by a highwayman, 
 resolved to apprehend him. For this purpose he put a little money 
 and a pistol in his pocket, and took a chaise. The robber stopped the 
 chaise, and demanded money. Norden gave him what money he had, 
 jumped out of the chaise with the pistol in his hand, and \vith some 
 assistance apprehended the prisoner. The prisoner w^as convicted of 
 this robbery, and the conviction was approved of by Mr. Justice 
 Foster, who distinguishes it from the former case, on the ground that 
 there was no concert or connection between Norden and the highway- 
 man.^ Anon., Foster, 129. 
 
 Proof of the violence. It must be proved that the goods w ere taken 
 either by violence or that the owner was put in fear ; but either of 
 these facts will be sufficient to render the felonious taking a robbery,^ 
 2 East, P. C. 708 ; 1 Kuss. on Cri. 89, 5th ed. Where violence is used, 
 it is not necessary to prove actual fear. " I am very clear," says Mr. 
 Justice Foster, " that the circumstances of actual fear at the time of 
 the robbery need not be strictly proved. Suppose the man is knocked 
 j^Qoy-i *down, without any previous warning to awaken his fears, 
 J and lies totally insensible, while the thief rifles his pock- 
 ets, is not this a robbery?" Foster, 128. And if fear be a 
 necessary ingredient, the law in odium spoUatoris will presume it, 
 where there appears to be so just a ground for it. Id. 2 East, P. 
 C. 711.3 
 
 1 Kit V. State, 11 Humphrey, 167. S. 
 
 * Commonwealth v. Snelling, 4 Binnev, 379 ; Commonwealth v. Humphries, 7 Mass. 
 242 ; Case of Morris, 6 Rog. Rec. 86. [State i'. Burke, 73 N. C. 83.] If the taking be 
 under such circumstances as would be likely to create an apprehension of danger in 
 the mind of a man of ordinary experience, and induce him to part with his property 
 for tlie safety of his person, it is robbery. Actual fear need not be strictly proven, it 
 will be presumed. Long v. State, 12 Ga. 293 ; see Seymour v. State, 15 Ind. 288. S. 
 
 ^ The offence of robbery is sustained by proof of an assault. State v. Gorham, 55 
 N. H. 152. But where there is no putting in fear the violence must be concomitant
 
 ROBBERY. * llGl 
 
 With regard to the degrees of violence necessary, it has been seen, 
 ante, p. 933, that the siuhkMi taking of a thing unawares from the 
 person, as by snatching anytliing from the hand or head, is not suf- 
 ficient to constitute robbery, unless some injury be done to the person, 
 or unless there be some previous struggling for the possession of the 
 property. In R. i'. Lapier, ante, p. 650, it was held robbery, because 
 an injury was done to the person. 2 East, P. C. 557, 708. A boy 
 was carrying a bundle along the street, when the prisoner ran past 
 him, and snatched it suddenly away, but being pursued, let it fall. 
 Being indicted for robbery, the court (Hotham, B., and Adair, Ser- 
 jeant) said the evidence in this case does not amount to a robbery ; 
 for though he snattihed the bundle, it was not with that degree of 
 force and terror that is necessary to constitute this offence. R. v. 
 Macauley, 1 Leach, 217. And the same has been resolved in several 
 other cases, in wiiich it has appeared that there was no struggle for 
 the property. R. v. Baker, 1 Leach, 290 ; R. v. Robins, Id. (n) ; R. 
 V. Da vies. Id. (n) ; R. v. Horner, Id. 191 (n). In R. v. Hughes, 2 
 C & K. 214, 61 E. C. L., where the prisoner having asked the pros- 
 ecutor to tell him the time, and the prosecutor having taken out his 
 watch in order to answer the prisoner, holding it loosely in both 
 hands, the prisoner caught hold of the ribbon and snatched the watch 
 away, and made off with it ; Patteson, J., held that this was not a 
 robbery, but stealing from the person. 
 
 But where a degree of violence is used sufficient to cause a personal 
 injury, it is robbery ; as where, in snatching a diamond pin fastened 
 in a lady's hair, part of the hair was torn away at the same time. R. 
 V. Moore, 1 Leach, 335, and see R. v. Lapier, Id. 320, ante, p. 650. 
 A case is said to have been mentioned by Holroyd, J., which occurred 
 at Kendal, and in which the evidence was that a person ran up against 
 another, for the purpose of diverting his attention while he picked his 
 pocket ; and the judges held, tiiat the force was sufficient to make it 
 robbery, it having been used with that intent. Anon., 1 Lewin, C. C. 
 300. It aj)peared in evidence that the prisoner and others, in the 
 streets of Manchester, hung around the prosecutor's person, and rifled 
 him of his watch and money. It did not appear that any actual force 
 or menace was used, but they surrounded him so as to render any at- 
 tempt at resistance hazardous, if not in vain. Bayley, J., on the trial 
 of these parties for robbery, said, in order to constitute robbery, there 
 must be either force or menaces. If several persons surround another 
 so as to take away his power of resistance, this is robbery. R. v. 
 Hughes, 1 Lewin, C. C. 301. 
 
 So if there be a struggle between the offender and the owner, for 
 the possession of the property, it will be held to be such a violence as 
 to render the taking robbery. The prisoner was indicted for taking a 
 gentleman's sword from his side, clam et seci'ete; but, it appear- 
 ing that the gentleman perceived the prisoner had laid hold of his 
 sword, and that he himself laid hold of it at the same time and 
 
 with the attempt, in order to make an assault with attempt to rob ; it cannot be sub- 
 sequent. Hanson v. State, 43 Ohio, 376.
 
 1162 ROBBERY. 
 
 struggled for it, this was adjudged a robbery. R. v. Davies, 2 East, 
 P. C. 709. 
 
 The prisoner coming up to the prosecutor in the street, laid violent 
 hold of the seals and chains of his watch, and succeeded in pulling 
 
 ♦Q'^sl *'^ ^''^ ^^' ^^^^ ^"**'^' ^^^'^' watch was fastened with a steel chain, 
 "^ -■ which went round his neck, and which j)revented the prisoner 
 from immediately taking the watch ; but, by pulling, and two or three 
 jerks, he broke the steel chain, and made oif' with the watch. It was 
 objected that this came within the cases as to snatching ; but the 
 judges, on a case reserved, were unanimously of opinion that the 
 conviction was right, for that the prisoner could not obtain the watch 
 at once, but had to overcome the resistance the steel chain made, and 
 actual force was used for that purpose. R. v. Mason, Russ. & Ry. 419. 
 In order to constitute the oifence of robbery, not only force must be 
 employed by the party charged therewith, but it is necessary to show 
 that such force was used with the intent to accomplish the robbery. 
 Where, therefore, it appeared that a wound had been accidentally in- 
 flicted in the hand of the prosecutrix, it was held by Alderson, B., 
 that an indictment for robbing could not be sustained. R. v, Edwards, 
 1 Cox, C. C. 32. 
 
 An indictment for robbery which charges the prisoners with having 
 assaulted G. P. andH. P., and stolen 2s. from G. P., and Is. from H. 
 P., is correct, if the robbery of G. P. and H. P. was all one.act ; and 
 if it were so, the counsel for the prosecution will not be put to elect. 
 R. V. Giddins, Carr. & M. 634, 41 E. C. L. 
 
 Proof of violence — under pretence of legal or rightful pro- 
 ceedings. Violence may be committed as well by actual unlaM'ful 
 force, as under pretence of legal and rightful proceedings. Merriman, 
 carrying his cheeses along the highway in a cart, was stopped by one 
 Hall, who insisted on seizing them for want of a permit (which Avas 
 found by the jury to be a mere pretence for the purpose of defrauding 
 Merriman, no permit being necessary). On an altercation, they agreed 
 to go before a magistrate and determine the matter. In the meantime 
 other persons riotously assembled on account of the dearness of pro- 
 visions, and in confederacy with Hall for the purpose, carried off the 
 goods in Merriman's absence. It was objected that this was no rob- 
 bery, there being no force used : but Hewitt, J., overruled the objec- 
 tion, and left it to the jury, who found it robbery, and brought in a 
 verdict for the plaintiff; and, upon a motion for a new trial in K. B., 
 the court held that the verdict was right. Merriman v. Hundred of 
 Chippenham, 2 East, P. C. 709. 
 
 The prosecutrix was brought before a magistrate by the prisoner, 
 into whose custody she had been delivered by a headborough, on a 
 charge of assault. The magistrate recommended the case to be made 
 up. The prisoner (who was not a peace officer) then took her to a 
 public-house, treated her very ill, and finally handcuifed and forced 
 her into a coach. He then put a handkerchief into her mouth, and 
 forcibly took from her a shilling, which she had previously offered
 
 , ROBBERY. 1163 
 
 him, if he would wait till her husband came. The prisoner then put 
 his liaiul in her pocket, and took out three shilling.s. Having been 
 indicted for tliis as a robbery, Nares, J., said, that, in order to com- 
 mit tiie crime of robbery, it was not necessary the violence used to 
 obtain the property should be by the common modes of putting a 
 pistol to the head, or a dagger to the breast ; that a violence, though 
 used under a colorable and specious pretence of law or of doing 
 justice, was sufficient, if the real intention was to rob; and he left the 
 case to the jury, that if they thought the prisoner had, when he forced 
 the prosecutrix into the coach, a felonious intent of taking her 
 *money, and that he made use of the handcuffs as a means to r^ooq 
 prevent her making a resistance, and took the money with a L 
 felonious intent, they should find him p;uihy. The jury havin<r found 
 accordmgly, the judges, upon a case reserved, were unanimously of 
 opinion that, as it was found by the verdict that the prisoner had an 
 original intention to take the money, and had made use of violence, 
 though under the sanction and pretence of law, for the purpose of ob- 
 taining it, the offence he had committed was clearly a robbery. R. v. 
 Gascoigne, 1 Leach, 280 ; 2 East, P. C. 709. 
 
 Proof of putting in fear. If there has not been such violence used 
 as to raise the offence from that of simple larceny to that of robbery, 
 the prosecutor must show that he A^'as put in fear — a fear of injury 
 either to his person, his property, or his reputation. 
 
 In order to show a putting in fear, it is not necessary to prove that 
 menaces or threats of violence were made use of by the offender. 
 For instance, under pretence of begging, the prisoner may put the 
 prosecutor in fear. The law (says Mr. Justice Willes) will not suffer 
 its object to be evaded by an ambiguity of expression ; for, if a man, 
 animo furandl, says, " Give me your money ;" " lend me your 
 money ;" " make me a present of your money ;" or words of the like 
 import, they are equivalent to the most positive order or demand ; 
 and if anything be obtained in consequence, it will form the first 
 ingredient in the crime of robbery. R. v. Donnally, 1 Leach, 193, 
 ai p. 196. During the riots in London, in 1780, a boy with a cock- 
 ade in his hat knocked violently at the prosecutor's door, and on his 
 opening it said, " God bless your honor, remember the poor mob." 
 The prosecutor told him to go along ; upon which he said he would 
 go and fetch his captain. He went, and soon after the mob came, to 
 the number of 100, armed with sticks, and headed by the prisoner on 
 horseback, his horse led by the boy. The bystanders said, " You 
 must give them money." The boy said, " Now I have brought my 
 captain ;" and some of tiie mob said, " God bless this gentleman, he 
 is always generous." The prosecutor asked the prisoner "how much ;" 
 and he answered, " half-a-crown ;" on which the prosecutor, who had 
 before intended to give only a shilling, gave the prisoner half-a-crown, 
 and, the mob giving three cheers, went to the next house. This was 
 held to be robberv, by Nares, J., and BuUer, J., at the Old Bailey. 
 R. V. Taplin, 2 East, P. C. 712.
 
 1164 ROBBERY. 
 
 There may be a putting in fear where the property is taken 
 under color of regular or legal proceedings, as well as in cases where 
 it is taken by actual violence. See the cases cited ante, p. DoS. 
 
 So there may be a putting in fear where the robbery is effected 
 under color of a purchase. Thus, if a person, by force or threats, 
 compel another to give him goods, and by way of color oblige him to 
 take less than the value, this is robbery. As where the prisoner 
 took a bushel and a half of wheat worth 8s., and forced the owner to 
 take V>jd. for it, tlireatening to kill her if she refused, it was clearly 
 held by all the judges to be a robbery. R. v. Simon, 2 East, P. C. 712. 
 Again, where the prisoner and a great mob came to the prosecutor, 
 who had some corn, and one of them said, if he would not sell, they 
 were going to take it away ; and the prisoner said they would give 
 him 306'. a load, and if he would not accept that they would take the 
 corn away ; upon which the prosecutor sold it for 30s., though it was 
 *Qzim *worth 38s.; this was held to be robbery. E,. v. Spencer, 2 
 •^^^-l East, P. C. 712. 
 
 In these cases the amount of the money may raise a question for 
 the jury, whether or not the taking was felonious; for though there 
 may be a putting in fear, yet if, in fact, the party had not the 
 animus furaridi, it is no felony. A traveller met a fisherman with 
 fish, who refused to sell him any ; and he by force and putting in 
 fear, took away some of the fish, and threw him money much above 
 the value of it. Being convicted of robbery, judgment was respited, 
 because of the doubt whether the intent was felonious. The Fisher- 
 man's Case, 2 East, P. C. GGl. It has been observed that this was 
 properly a question for the jury to say whether, from the circum- 
 stance of the party's offering the full value, his intention was 
 not fraudulent, and consequently not felonious. 2 East, P. C. 662. 
 If the original taking was felonious the payment would make no 
 distinction. 
 
 * It is a question for the jury, whether the circumstances accom- 
 panying the commission of the offence were such as reasonably to 
 create fear in the breast of the party assaulted ; and it can seldom 
 happen that such a presumption may not projjcrly be made. It is 
 not, says Willes, J., necessary that there should be actual danger, for 
 a robbery may be committed without using an offensive weapon, and 
 by using a tinder-box or candle-stick instead of a pistol. A reason- 
 able fear of danger caused by the exercise of a constructive violence 
 is sufficient, and where such a terror is impressed upon the mind, as 
 does not leave the party a free agent, and in order to get rid of that 
 terror he delivers his money, he may clearly be said to part with it 
 against his will. Nor need the degree of constructive violence be 
 such, as in its effects necessarily imports a probable injury; for when 
 a villain comes and demands money, no one knows how far he will 
 go. R. V. Donnaliy, 1 Leach, 193, at pp. 196, 197 ; 2 East, P. C. 715, 
 at p. 727. The rule, as deduced from the last cited case, is thus laid 
 down by Mr. East. On the one hand the fear is not confined to an 
 apprehension of bodily injury, and on the other hand, it must be of
 
 EOBBERY. 1165 
 
 such a nature as in reason and common experience is likely to induce 
 a person to part with his property against his will, and to put him, 
 as it were, under a temporary sus})ension of the power of exercising 
 it through the influence of the terror impressed ; in which case fear 
 supplies, as well in sound reason as in legal construction, the place of 
 force, or an actual taking by violence or assault upon the person. 2 
 East, P. C. 713 ; Id. 727. 
 
 In R, V. Jackson, 1 East, Preface, Add. xxi. it seems to have been 
 considered that the fear must be of that description which will operate 
 in constantem virum. That case, however was one of a peculiar 
 nature, and it certainly cannot be required, in order to constitute a 
 robbery, in every case, that the terror impressed should be that of 
 which a man of constancy and courage would be sensible. See also 
 R. V. Walton, L. & C. 298 ; post. tit. " Threats." 
 
 Proof of such circumstances as may reasonably induce a fear of 
 personal injury will be sufficient to support the charge of robbery. 
 It would not be sufficient to show in answer that there Avas no real 
 danger, as that the supposed pistol was in fact a candlestick ; see 
 supra ; in short, danger to the person may be apprehended from every 
 assault with intent to rob, and a jury would be justified in presuming 
 that the party assaulted was under the influence of fear with regard 
 *to his personal safety. It seems, also, that fear of violence r-}:Q4-i 
 to the person of the child of the party whose property is de- L 
 manded, is regarded in the same light as fear of violence to his own 
 person. Hotham, B., in R. v. Donnally, 2 East, P. C. 718, stated 
 that with regard to the case put in argument of a man walking Avith 
 his child, and delivering his money to another, upon a threat that, 
 unless he did so, he would destroy the child, he had no doubt but 
 that it was sufficient to constitute a robbery. So in R. v. Reane, 2 
 East, P. C. 735, Eyre, C. J., observed, that he saw no sensible dis- 
 tinction between a personal violence to the party himself, and the case 
 put by one of the judges, of a man holding another's child over 
 a river, and threatening to throw it in unless he gave him money. 
 
 It is sufficient to prove that the conduct of the prisoner put the prose- 
 cutor in fear for the safety of his property. During certain riots in 
 Cornwall, the prisoners, with a mob, came to the prosecutor's house, 
 and said they must have from him the same they had had from his 
 neighbors, which was a guinea, else that they would tear down his mow 
 of corn and level his house. The prosecutor gave them 5.s., but they 
 demanded and received 5.s. more, he being terrified. They then opened 
 a cask of cider and drank part of it, ate some bread and cheese, and 
 carried away a piece of meat. The prisoners were indicted and con- 
 victed of robbing the prosecutor of 10s. There was also another 
 count for putting the prosecutor in fear, and taking from him, in his 
 dwelling-house, a quantity of cider, etc., and it was held robbery in 
 the dwelling-house. R. v. Simons, 2 East, P. C. 731. During the 
 Birmingham riots the mob entered the house, and the prisoner, who 
 •was one of them, demanded money, and said, that if the prosecutor 
 did not give his men something handsome for them to drink, his
 
 1166 ROBBERY. 
 
 house must come down. The jury found that the prosecutor did not 
 deliver his money from any apprehension of danger to his Hfe 
 or person, but from an apprehension, that if he refused, his 
 house wouki at some future time be pulled down in the same man- 
 ner as other houses in Birmingham. On a case reserved, a majority 
 of the judges held this to be robbery. R. i\ Astley, 2 East, P. C. 729 ; 
 see also II. v. Brown, 2 East, P. C. 731 ; R. v. Spencer, 2 East, P. 
 C. 712, ante, p. 940. 
 
 The prosecutrix, a servant maid, was inveigled into a mock auction, 
 and tlie door was shut. There were about twenty persons present. 
 Refusing to bid, she was told, " You must bid before you obtain your 
 liberty again." She, however, again refused, and at length, alarmed 
 by their importunities, she attempted to leave the shop. Being 
 prevented, and conceiving that she could not gain her liberty without 
 complying, she did bid, and the lot was knocked down to her. She 
 again attempted to go ; but the prisoner, who acted as master of the 
 place, stopped her, and told her, if she had not the money, she must 
 pay half a guinea in part, and leave a bundle she had with her. The 
 prisoner, finding she would not comply, said, "Then you shall go to 
 Bow Street, and from thence to Newgate, and be there imprisoned 
 until you can raise the money." And he ordered the door to be 
 guarded, and a constable to be sent for. A pretended constable 
 coming in, the prisoner, who had kept his hand on the girl's shoulder, 
 said, " Take her, constable, take her to Bow Street, and thence to 
 Newgate." The pretended constable said, " Unless you give me a 
 shilling, you must go with me." During this conversation, the 
 prisoner again laid one hand on the girl's shoulder, and the other on 
 *Q491 *^^^^ bundle, and while he thus held her, she put her hand into 
 -• her pocket, took out a shilling, and gave it to the pretended 
 constable, who said, " If Knewland (the prisoner) has a mind to re- 
 lease you, it is well ; for I have nothing more to do with you :" and 
 she was then suffered to make her escape. She stated upon oath that 
 she was in bodily fear of going to prison, and that under that fear she 
 parted with the shilling to the constable, as a means of obtaining her 
 liberty ; but that she was not impressed by any fear by the prisoner 
 Knewland laying hold of her shoulder with one hand, and her bundle 
 with the other ; for that she had only parted with her money to avoid 
 being carried to Bow Street, and thence to Newgate, and not out of 
 fear or apprehension of any other personal force or violence. Upon 
 a case reserved, the judges were of opinion, that the circumstances of 
 this case did not amount to robbery. After adverting to the case of 
 threats to accuse persons of unnatural offences, Mr. Justice Ashhurst, 
 delivering the resolution of the judges, thus proceeds : " In the pres- 
 ent case the threat which the prisoners made was to take the prose- 
 cutrix to Bow Street, and from thence to Newgate ; a species of threat 
 which, in the opinion of the judges, is not sufficient to raise such a 
 degree of terror in the mind as to constitute the crime of robbery ; 
 for it was only a threat to put her in the hands of the law, and an 
 innocent person need not in such circumstances be apprehensive of any
 
 ROBBERY. 1167 
 
 danger. She might have known, that having done no wrong, the law, 
 if she had been earned to prison, would liave taken her under its pro- 
 tection, and set her free. The terror arising from such a source can- 
 not, therefore, be considered of a degree sufficient to induce a person 
 to part with his money. It is the case of a simple duress, for which 
 the party injured may have a civil remedy by action, which could not 
 be, if the fact amounted to felony. As to the circumstances affecting 
 the other prisoner (Wood, the pretended constable), it appears that the 
 force wliicli he used against the prosecutrix was merely that of push- 
 ing her into the sale-room, and detaining her until she gave the shil- 
 ling ; but as terror is, no less than force, a component part of the 
 complex idea annexed to the term robbery, the crime cannot be com- 
 plete without it. Tlie judges, therefore, were all of opinion, that 
 however the prisoners might have been guilty of a conspiracy or 
 other misdemeanor, they could not in any way be considered guilty of 
 the crime of robbery." R. v. Knewland, 2 Leach, 721 ; 2 East, P. 
 C. 732. 
 
 Although this decision, so far as the question of putting in fear is 
 concerned, may perhaps be regarded as rightly decided upon the ex- 
 press declaration of tlie prosecutrix herself, that she parted with the 
 money merely to avoid being carried to Bow Street, and thence to 
 Newgate, yet there are some portions of the opinion of the judges 
 which appear to be at variance with the rules of law respecting rob- 
 bery. The statement that terror, no less than force, is a component 
 part of the complex idea annexed to the term robbery, is not in con- 
 formity with the various decisions already cited, from which it 
 appears that either violence or putting in fear is sufficient to con- 
 stitute a robbery. There seems also to be a fallacy in the reasoning 
 of the court with regard to threats of imprisonment held out to the 
 prosecutrix. The impression made by such threats upon any person 
 of common experience and knowledge of the world (and such the 
 prosecutrix must be taken to have been) would be, not that the pris- 
 oner had in fact any intention of carrying the injured party before a 
 magistrate, or of affording any such opportunity of redress, but that 
 *other artifices (as in the instance of the pretended constable) r*q^o 
 would probably be resorted to, in order to extort money. It is L 
 difficult to imagine any case in which a party might with more reason 
 apprehend violence and injury, both to the person and to the property, 
 than that in which the prosecutrix was placed, and it is still more 
 difficult to say, that there was not such violence resorted to, as, 
 independently of the question of putting in fear, rendered the act 
 of the prisoners (supposing it to have been done animo furandi, of 
 which there could be little doubt) an act of robbery. In R. v. Gas- 
 coigne, 1 Leach, 280 ; 2 East, P. C. 709, ante, p. 939, the prisoner 
 not only threatened to carry the prosecutrix to prison, but actually 
 did carry her thither, whence she was in due course discharged, and 
 yet the nature of the threat did not prevent the offence from being 
 considered a robbery. In that case, indeed, some greater degree of 
 personal violence was used, and the money was taken from the
 
 1168 ROBBERY. . 
 
 prosecutrix's pocket by the prisoner himself; but it is clearly im- 
 material whetlier the offender takes the money with his own hand, 
 or whether the party injured delivers it to him, in consequence of his 
 menaces. 
 
 Proof of the putting in fear — by threatening to accuse of un- 
 natural crimes. There is one case about which there is considerable 
 doubt as to whether or no it amounts to robbery. In ordinaiy cases, 
 as has already been seen, obtaining money by threats affecting a party's 
 reputation has not been held to amount to robbery ; but the doubt has 
 been where the threat is to accuse of unnatural practices. The species 
 of terror, says Mr. Justice Ashhurst, which leads a man to apprehend 
 an injury to his character, has never been deemed sufficient, unless, in 
 the particular case of exciting it by means of insinuations against, or 
 threats to destroy, the character of the party pillaged, by accusing him 
 of sodomitical practices. R. v. Knewland, 2 Leach, 730. The rule 
 is laid down in the same case, in rather larger terms, by Mr. Justice 
 Heath, who says, "The cases alluded to (R. v. Donnally, and R,. v. 
 Hickman, inji'd) only go thus far — that to obtain money from a per- 
 son by accusing him of that which, if proved, would carry with it an 
 infamous punishment, is sufficient to support an indictment for robbery ; 
 but it has never been decided that a mere charge of imprisonment and 
 extortion is sufficient." 2 Leach, 729. 
 
 That obtaining money from a man by threatening to accuse him of 
 unnatural practices amounts to a robbery, was decided in R. v. Jones. 
 The prisoner, drinking with the prosecutor at a public-house, asked 
 him what he meant by the liberties he had taken with his person at 
 the play-house. The prosecutor replied that he knew of no liberties 
 having been taken ; upon which the prisoner said, " Damn you, sir, 
 but you did, and there were several reputable merchants in the house 
 who will take their oaths of it." The prosecutor, being alarmed, left 
 the house ; but the prisoner following him, cried out, " Damn you, 
 sir, stop, for if you offer to run, I will raise a mob about you ;" and 
 seizing him by the collar, continued, " Damn you, sir, this is not to 
 be borne; you have offered an indignity to me, and nothing can 
 satisfy it." The prosecutor said, " for God's sake, what would you 
 have ?" To which the prisoner answered, " A present ; you must 
 make me a present." And the prosecutor gave him three guineas 
 and twelve shillings. The prisoner, during the whole conversation, 
 held the prosecutor by the arm. The prosecutor swore, that at the 
 *qj.i1 *time he parted with the money, he understood the threatened 
 -' charge to be an imputation of sodomy ; that he was so alarmed 
 at the idea, that he had neither courage nor strength to call for assist- 
 ance ; and that the violence with which the prisoner had detained him 
 in the street, had put him in fear for the safety of his person. Upon 
 a case reserved, the judges (absent De Grey, C. J., and Ashhurst, J., 
 and one vacancy) were of opinion, that although the money had been 
 obtained in a fraudulent way, and under a false pretence, yet that it 
 was a pretence of a very alarming nature, and that a sufficient degree
 
 ROBBERY. ^ 1169 
 
 of force had been made use of in eiFecting it to constitute the offence 
 of robbery. According to the report of the same case by Mr. East, 
 their lordships said, that to constitute robbery tliere Avas no occasion 
 to use weapons or real violence, but that taking money from a man in 
 such a situation as rendered him not a free man, as if a person so 
 robbed was in fear of a conspiracy against his life or character, was such 
 a putting in fear as would make the taking of his money under that 
 terror, robbery ; and thev referred to R. v. Brown, O. B. 1763 ; R. v. 
 Jones, 1 Leach, 139 ; 2 East, P. C. 714. 
 
 In the above case it does not clearly appear, whether the judo-es 
 held it to be robbery on the ground of the actual violence offered to 
 the prosecutor in detaining him in the street by the arm, or upon 
 the prosecutor being put in fear of an injury to his reputation by the 
 menaces employed. However, in subsequent cases it has been held, 
 that it is no less robbery where no personal violence whatever has 
 been used. 
 
 The prosecutor, passing along the street, was accosted by the pris- 
 oner, who desired he would give him a present. The prosecutor ask- 
 ing, for what ? the prisoner said, " You had better comply, or I will 
 take you before a magistrate, and accuse you of an attempt to commit 
 an unnatural crime." The prosecutor then gave him half a guinea. 
 Two days afterwards, the prisoner obtained a further sum of money 
 from the prosecutor by similar threats. The prosecutor swore that he 
 was exceedingly alarmed upon both occasions, and under that alarm 
 gave the money ; that he was not aware what were the consequences 
 of such a charge ; but apprehended that it might cost him his life. 
 The jury found the prisoner guilty of the robbery, and that the pros- 
 ecutor delivered his money through fear, and under an apprehension 
 that his life was in danger. The case being reserved for the opinion 
 of the judges, they gave their opinions sena^im (see 2 East, P. C. 716), 
 and afterwards the result of their deliberations was delivered by Mr. 
 Justice Willes. They unanimously resolved, that the prisoner was 
 rightly convicted of robbery. This, says Mr. Justice Willes, is a 
 threat of personal violence ; for the prosecutor had every reason to 
 believe that he should be dragged through the streets as a culprit, 
 charged with an unnatural crime. The threat must necessarily and 
 unavoidably create intimidation. It is equivalent to actual violence, 
 for no violence that can be offered could excite a greater terror in the 
 mind, or make a man sooner part with his money. R. v. Donnally, 1 
 Leach, 193; 2 East, P. C. 713. 
 
 It will be observed, that in the foregoing case the jury found that 
 the prosecutor delivered the money under an apprehension that his life 
 was in danger ; but this circumstance was wanting in the following 
 case, where the only fear was that of an injury to the party's reputa- 
 tion : 
 
 The prosecutor was employed in St. James's Palace, and the 
 *prisoner was sentinel on guard there. One night the prosecu- r ♦qj^k 
 tor treated the prisoner with something to eat in his room. ^ 
 About a fortnight afterwards the prisoner followed the prosecu- 
 74
 
 1170 ROBBERY. 
 
 tor up-stairs, and said, " I am come for satisfaction ; you know 
 what passed the other night. You are a sodomite ; and if you do not 
 give me satisfaction, I will go and fetch a sergeant and a file of 
 men, and take you before a justice, for I have been in the black 
 hole ever since I was here last, and I do not value my life." 
 The prosecutor asked him what money he must have, and he said 
 three or four guineas, and the prosecutor gave him two guineas. 
 The prisoner took them, saying, "Mind, I don't demand any- 
 thing of you." The prosecutor swore that he was very much 
 alarmed when he gave the two guineas, and that he did not very 
 well know what he did ; but that he parted with the money 
 under an idea of preserving his character from reproach, and not 
 from the fear of personal violence. The jury found the prisoner 
 guilty of the robbery, and they also found that the prosecutor parted 
 with the money against his will, through a fear that his character 
 might receive an injury from the prisoner's accusation. The case 
 being only the second of the kind (sed vide R. v. Jones, ante, p. 944), 
 and some doubt having prevailed with regard to R. v. Donnally, 
 because he had not been executed, and because this case differed with 
 regard to the nature of the /ear, it was reserved for the opinion of the 
 judges. Their resolution was delivered by Mr. Justice Ashhurst, who 
 said, that the case did not materially differ from that of R. v. Donnally, 
 for that the true definition of robbery is, the stealing or taking from 
 the person, or in the presence of another, property to any amount, 
 with such a degree of force or terror as to induce the party unwill- 
 ingly to part with his property ; and whether the terror arises from 
 real or expected violence to the person, or from a sense of injury to 
 the character, the law makes no kind of difference ; for to most men 
 the idea of losing their fame and reputation is equally (if not more) 
 terrific with the dread of personal injury. The principal ingredient 
 in robbery is the being forced to part with property ; and the judges 
 were unanimously of opinion, that upon the principles of law, and 
 the authority of former decisions, a threat to accuse a man of having 
 committed the greatest of all crimes, was a sufficient force to con- 
 stitute the crime of robbery by putting in fear. R. v. Hickman, 
 1 Leach, 278 ; 2 East, P. C. 728. 
 
 This decision has since been followed. The prisoner came up to 
 the prosecutor, a gentleman's servant, at his master's door, and 
 demanded bl. On being told by the prosecutor that he had not so 
 much money, he demanded 1/., and said, that if the prosecutor did not 
 instantly give it to him, he would go to his master, and accuse him 
 of wanting to take diabolical liberties with him. The prosecutor gave 
 him what money he had, and the prisoner demanded his watch, or 
 some of his master's plate. This the prosecutor refused ; but went 
 and fetched one of his coats, which the prisoner took away. He was 
 indicted for robbing the prosecutor of his coat. The prosecutor 
 swore that he gave the prisoner his property under the idea of his 
 being charged with a detestable crime, and for fear of losing both his
 
 ROBBERY. 1171 
 
 character and his place. He stated that he was not afraid of being 
 taken into custody, nor had he any dread of punishment. He stated, 
 also, that he was absent, fetching the coat for five minutes ; that the 
 servants were in the kitchen, but he did not consult them, on account 
 *of his agitation, and because he had not a minute to spare, ex- r^QAn 
 pecting the company to dinner immediately. On a case re- L 
 served, eleven of the judges thought the case similar to R. v. Hickman 
 (supra), and that they could not, with propriety, depart from that 
 decision ; Graham, B., thought that R. v, Hickman was not rightly 
 decided, but said that he should on this point be influenced in future 
 by what appeared to be the general opinion of the judges. R. v. Eger- 
 ton, Russ. &. Ry. 375. 
 
 Upon a threat of accusing the prosecutor of unnatural practices, 
 he promised to provide a sum of money for the prisoners, which he 
 failed to do, upon which they said they were come from Bow-street, 
 and would take him into custody. They accordingly called a coach, 
 and while on their road to Bow-street, one of the prisoners stopped 
 the coach, and said that if the prosecutor would behave like a gentle- 
 man, and procure the money, they would not prefer the charge. The 
 prosecutor then went to the house of a friend, where he was absent 
 about five minutes, when he returned with 10/., which he gave to the 
 prisoners. He stated that he parted with his money in the fear and 
 dread of being placed in the situation of a criminal of that nature, 
 had they persisted in preferring the charge against him ; that he did 
 not conceive they were Bow-street officers, though ,they held out the 
 threat ; that he was extremely agitated, and thought that they would 
 have taken him to the watch-house, .and under that idea, and the 
 impulse of the moment, he parted with the money. He stated, also, 
 that he could not say that he gave his money under any apprehension 
 of danger to his person. Ten of the judges were of opinion that the 
 calling of the coach, and getting in with the prosecutor, was a forcible 
 constraint upon him, and sufficient to constitute a robbery, though 
 the prosecutor had no apprehension of further injury to his person. 
 Lord Ellenborough, Macdonald, C. B., Lawrence, J., Chambers, J., 
 and Graham, B., thought some degree of force or violence essential, 
 and that the mere apprehension of danger to the character would not 
 be sufficient to constitute this offence. Heath, J., Grose, J., Thomp- 
 son, B., Le Blanc, J., and Wood, B., seemed to think it would. R. 
 1?. Cannon, Russ. & Ry. 146. 
 
 The threat in these cases must, of course, be a threat to accuse the 
 party robbed ; it is not sufficient to constitute a robbery that the 
 threat is to accuse another person, however nearly connected with the 
 party from whom the property is obtained. The prisoner was indicted 
 for robbing the wife of P. Abraham. It appeared that under a threat 
 of accusing Abraham of an indecent assault, the money had been 
 obtained by the prisoner from Abraham's wife. Littledale, J., said, 
 "I think this is not such a personal fear in the wife, as is necessary 
 to constitute the crime of robbery. If I were to hold this a robbery, 
 it would be going beyond any of the decided cases j" and his lord-
 
 1172 ROBBERY. 
 
 ship directed an acquittal. He said tliat the case was new and per- 
 plexing. He thought it was rather a misdemeanor ; and even as a 
 misdemeanor the ease was new. The princij)le was, that the person 
 threatened is thrown off his guard, and has not finnness to resist the 
 extortion ; but he could not aj)ply that principle to the wife of" the 
 party threatened. R. v. Edward, 1 Moo. & R. 257 ; 5 C. & P. 518, 
 24 E. C. L. 
 
 The prisoner Avent twice to the house where the prosecutor lived 
 in service, and called him a sodomite. The prosecutor took him 
 each time before a magistrate, who discharged him. On being 
 discharged, the prisoner followed the prosecutor, repeated the 
 *Q-i7i *cxpressions, and asked him to make him a present, saying he 
 -I would never leave him till he had pulled the house down ; but if 
 he did make him a handsome present, he would trouble him no more. 
 He mentioned four guineas, and the prosecutor being frightened for 
 his reputation, and in fear of losing his situation, gave him the money. 
 He gave the money from the great apprehension and fear he had of 
 losing his situation. The prisoner was convicted ; but a doubt arising 
 in tlie privy council, the opinion of the judges was taken. Most of 
 them thought that this was within R. v. Hickman, and nine were of 
 opinion that that case was law, but the three others thought it not law. 
 Lord Ellenborough thought that the prosecutor's principal inducement 
 to part with his money was the fear of the loss of his place, and he 
 said he should feel no difficulty in recommending a pardon ; and the 
 prisoner did, in the end, receive a pardon. R. v. Elmstead, 2 Russ. 
 Cri. 108, 5th ed. 
 
 In these, as in other cases of robbery, it was always held that it 
 must appear that the property was delivered or the money extorted, 
 while the party was under the influence of the fear arising from the 
 threats or violence of the prisoner. The prosecutor had been several 
 times solicited for money by the prisoner, under threats of accusing 
 him of unnatural practices. At one of those interviews the prisoner 
 said he must have 20/. in cash, and a bond for 50/. a year ; upon 
 w^hich the prosecutor, in pursuance of a plan he had previously con- 
 certed with a friend, told him that he could not give tliem to him 
 then, but that if he would wait a few days he would bring him the 
 money and bond. At their next interview the prosecutor offered the 
 prisoner 20/., but he refused to take it without the bond, upon which 
 the prosecutor fetched it, and gave it with nineteen guineas and a shil- 
 ling to the prisoner, who took them away, saying, he would not give 
 the prosecutor any further trouble. The prosecutor deposed, tli^t 
 when the charge was first made his mind was extremely alarmed, and 
 that he apprehended injury to his person and character, but that his 
 fear soon subsided, and that he sought the several intervicAvs Avith the 
 prisoner with the purpose of parting with his property to him, in 
 order to fix him Avith the crime of robbery, and to substantiate the 
 fact of his having extorted money from him by means of the charge; 
 but that at the time the prisoner demanded from him the money and 
 the boud, he parted Avith them Avithout being under any apprehension,
 
 ROBBERY. 1173 
 
 either of violence to his person or injury to his character, although he 
 could not say that he parted with his property voluntarily. The 
 judi^cs having met to consider this case, were inclined to be of opinion 
 . that it was no robbery, there being no violence nor fear at the time 
 wheti the prosecutor parted with his money. Eyre, C. J., observed, 
 that it would be going a step further than any of the cases, to hold 
 this to be robbery. The principle of robbery was violence ; where 
 the money was delivered through fear, that was constructive violence. 
 That the principle he had acted upon in such cases was to leave the 
 question to the jury whether the defendant had, by certain circum- 
 stances, impressed such a terror on the i)rosecutor as to render him in- 
 capable of resisting the demand. Tlierefore, where the prosecutor 
 swore that he was under no apprehension at the time, but gave his 
 money only to convict the prisoner, he negatived the robbery. That 
 this was ditferent from R. v. Norden, Foster, 129, where there was 
 actual violence ; but here there was neither actual nor constructive 
 violence. At a subsequent meeting of the *judges the conviction r*q4Q 
 was held wrong. R. v. Reane, 2 Leach, 616; 2 East, P. C. •- 
 734. The same point was ruled in R. v. Fuller, Russ. & Ry. 408, 
 where the prosecutor made an appointment to meet the prisoner, and 
 in the meantime procured a constable to attend, who, as soon as the 
 prisoner received the money, apprehended him. The prosecutor 
 stated that he parted with the money in order that he might prosecute 
 the prisoner. 
 
 Under the circumstances of the following case, it appears to have 
 been held that the fear was not continuing at the time of the delivery 
 of the money, and that therefore it was no robbery : In consequence 
 of a charge similar to that in the above cases having been made, the 
 prosecutor procured a sum of money to comply with the demand, and 
 prevailed upon a friend to accompany him when he went to pay it. 
 His friend (Shelton) advised him not to pay it, but he did pay it. 
 He swore that he was scared at the charge, and that was the reason 
 why he parted with his money. It appeared that after the charge was 
 first made, the prosecutor and one of the prisoners continued eating 
 and drinking together. Shelton confirmed the prosecutor's account, 
 and said he appeared quite scared out of his wits. The judges having 
 met to consider this case, a majority of them were of opinion that it 
 ■was not robbery, though the money was taken in the presence of the 
 prosecutor, and the fear of losing his character was upon him at the 
 time. Most of the majority thought that, in order to constitute rob- 
 bery, the money must be parted with from an immediate apprehension 
 of present danger upon the charge being made, and not, as in this case, 
 after the parties had separated, and the prosecutor had time to de- 
 liberate upon it, and apply for assistance, and had applied to a friend, 
 by whom he was advised not to pay it ; and who was actually 
 present at the very time when it was paid ; all which carried the 
 appearance more of a composition of a prosecution than it did of a 
 robbery and seemed more like a calculation whether it were better to 
 lose his money or risk his character. One of the judges, who agreed
 
 1174 ROBBERY. 
 
 that it was not robbery, went npon the ground that there was not a 
 continuing fear, such as could operate in constantem virum, from the 
 time when the money was demanded till it was paid ; for in the inter- 
 val he could have procured assistance, and had taken advice. The 
 minority, who held the case to be robbery, thought the question con- 
 cluded by the finding of the jury that the prosecutor had parted with 
 his money through fear continuing at the time, which fell in with the 
 definition of robbery long ago adopted and acted upon, and they said 
 it would be difficult to draw any other line ; and that this sort of fear 
 so far differed from cases of mere bodily fear, that it was not likely to 
 be dispelled, as in those cases, by having the opportunity of applying 
 to magistrates or others for their assistance, for the money was given 
 to prevent the public disclosure of the charge. R. v. Jackson, 1 East, 
 P. C. Addenda xxi. ; 2 Russ. Cri. 106-108, 5th ed. 
 
 So much doubt was entertained as to the law on this subject, that 
 a statutory provision was made on the subject, which makes it an 
 offence to extort money by such means. The first statute was the 
 7 & 8 Geo. 4, c. 29 ; that now in force is the 24 & 25 Vict. c. 96, ss. 
 46 and 47, infra, tit. " Threats." 
 
 Semble that now, where money is obtained by any of the threats 
 to accuse specified in that section, the indictment must be on the 
 statute. See R. v. Henry, 2 Moo. C. C. R. 118. But Avhere the 
 *94Q1 *^o"^y ^^ obtained by threats to accuse other than those specified 
 -I in the Act, the indictment may be for robbery, if the party was 
 put in fear and parted with his property in consequence. R. v, Nor- 
 ton, 8 C & P. 671, 34 E. C. L. In a note to this case the recorder 
 is stated to have mentioned it to Parke, B., who concurred in the above 
 opinion. 2 Russ. Cri. 114, 5th ed. (n). It was held on a case re- 
 served, that since the repealed statute, 7 Will. 4 & 1 Vict. c. 87, s. 4, 
 which is similar to the 24 & 25 Vict. c. 96, s. 47, infra, tit. " Threats," 
 an indictment in the ordinary form for robbery cannot be supported by 
 proof of extorting money by threats of charging an infamous crime, 
 and that a person present to aid A. B. to extort money by such charges, 
 cannot be convicted of robbery with A. B., effected by him with actual 
 violence, the prisoner being no party to such violence. R. v. Henry, 
 2 Moo. C. C. 118 ; 9 C. & P. 309. But it has since been decided, 
 that assaulting and threatening to charge with an infamous crime (but 
 in terms not within the above section), with intent thereby to extort 
 money, was an assault with intent to rob. R. v. Stringer, 2 Moo. C. 
 C. 361 ; 1 C. & K. 188, 47 E. C. L. In this latter case the judges 
 doubted whether R. v. Henry was rightly decided, on the ground on 
 which it was decided, viz., that it was not robbery to obtain money by 
 threat of a charge of sodomy. 
 
 It is no defence to a charge of robbery by threatening to accuse a 
 man of an unnatural crime, that he has in fact been guilty of such 
 crime. Where the prisoner set up that defence, and stated that the 
 prosecutor had voluntarily given him the money not to prosecute him 
 for it ; Littledale, J., said, that it was equally a robbery to obtain a 
 man's money by a threat to accuse him of an infamous crime, wliether
 
 ROBBERY. 1175 
 
 the prosecutor was really guilty or not ; as if he was guilty, the pris- 
 oner ought to have prosecuted him for it, and not to have extorted 
 money from him ; but if the money was given voluntarily, without 
 any previous tlireat, the indictment could not be supported. Tlie jury 
 acquitted the prisoner. R. v. Gardner, 1 C. & P. 479, 12 E. C. L. 
 See also j>ost, tit. " Threats." 
 
 Proof of the putting in fear — must be before the taking. It 
 must appear that the property was taken while the party was under 
 the influence of the fear ; for if the property be taken first, and the 
 menaces or threats inducing the fear be used afterwards, it is not rob- 
 bery. The prisoner desired the prosecutor to open a gate for him. 
 While he was so doing, the prisoner took his purse. The prosecutor 
 seeing it in the prisoner's hand demanded it, when the prisoner 
 answered, "Villain, if thou speakest of this purse, I will pluck thy 
 house over thy ears," etc., and then went away ; and because he did 
 not take it with violence, or put the prosecutor in fear, it was ruled 
 to be larceny only, and no robbery, for the words of menace were used 
 after the taking of the purse. R. v. Harman, 1 Hale, P. C. 534 ; 1 
 Leach, 198 (n).
 
 1176 SACRILEGE. 
 
 ^950] 
 
 ♦SACRILEGE. 
 
 Breaking and entering place of worship and committing a 
 felony. By the 24 & 25 Vict. c. 96, s. 50, " whosoever shall break 
 and enter any church, chapel, meeting-house, or other place of divine 
 worship, and commit any felony therein, or being in any church, 
 chapel, meeting-house, or other place of divine worship shall commit 
 any felony therein and break out of the same, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for life, or for any term not less 
 than three [now five] years, or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labor, and with or without 
 solitary confinement." 
 
 Breaking and entering a place of worship with intent to com- 
 mit felony. See 24 & 25 Vict. c. 96, s. 57, mpra, p. 453. 
 
 Riotously demolishing or injuring place of worship. See 24 & 
 25 Vict. c. 97, ss. 11 & 12, supra, p. 924. 
 
 Proof that the building is a church or chapel. It must appear 
 that the building in which the oifence was committed was a church or 
 chapel. Where the goods stolen had been deposited in the church- 
 tower, which had a separate roof, but no outer door, the only way of 
 going to it being through the body of the church, from which the tower 
 was not separated by a door or partition of any kind ; Park, J., was 
 of opinion, that this tower was to be taken as a part of the church. 
 R, V. Wheeler, 3 C. & P. 585, 14 E. C. L. 
 
 The vestry of a parish church was broken open and robbed. It 
 was formed out of what before had been the church-porch ; but had a 
 door opening into the churchyard, which could only be unlocked from 
 the inside. It was held by Coleridge, J., that this vestry was part 
 of the fabric of the church, and within the Act. R. v. Evans, Carr. 
 & M. 298, 41 E. C. L. 
 
 Property how laid in the indictment. In P. v. AVortley, 1 Den. 
 C. C. R. 162, the prisoner was indicted for breaking into a church 
 and stealing a box and money. The box was a very ancient box, 
 firmly fixed by two screws at the back to the outside of a pew in the 
 centre aisle of the church, and by a third screw at the bottom, to a 
 supporter beneath, and over the box was an ancient board, with the 
 inscription painted thereon, " Remember the poor." The court 
 " thought that the box might be presumed, in the absence of any 
 contrary evidence, to have been placed in the church pursuant to the
 
 SACRILEGE. 1177 
 
 canon ; Burn's Eccl. Law, 369, tit. 'Church ' ; and that the money 
 ♦therein placed was constructively in the possession of the vicar r*95- 
 and churchwardens." 
 
 Frequently the property is laid in the parishioners ; sometimes in 
 the rector alone, and sometimes in the churchwardens alone. See 1 
 Hale, P. C. 51, 81 ; 2 East, P. C. 681. In a private chapel the prop- 
 erty ought perhaps to be laid in the private owner.
 
 1178 SEA AND RIVER BANKS, PONDS, MILL-DAMS, ETC. 
 
 *952] *SEA AND RIVER BANKS, PONDS, MILL-DAMS, ETC. 
 
 Damaging sea and river banks and works belonging to ports, 
 harbors, etc. By the 24 & 25 Vict. c. 97, s. 30, " wliosoever shall 
 unlawfully and maliciously break down, or cut down, or otherwise 
 damage or destroy any sea bank or sea wall, or the bank, dam, or wall 
 of or belonging to any river, canal, drain, reservoir, pool, or marsh, 
 whereby any land or building shall be, or shall be in danger of being, 
 overflowed or damaged, or shall unlawfully and maliciously throw, 
 break, or cut down, level, undermine, or otherwise destroy any quay, 
 wharf, jetty, lock, sluice, floodgate, weir, tunnel, towing-path, drain, 
 watercourse, or other work belonging to any port, harbor, dock, or 
 reservoir, or on or belonging to any navigable river or canal, shall be 
 guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for life, or for 
 any term not less than three [now five] years, — or to be imprisoned 
 for any term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement ; and if a male under the age of 
 sixteen years, with or without whipping." 
 
 By s. 31, " whosoever shall unlawfully and maliciously cut oif, 
 draw up, or remove any piles, chalk, or other materials fixed in the 
 ground, and used for securing any sea bank or sea wall, or the bank, 
 dam, or wall of any river, canal, drain, aqueduct, marsh, reservoir, 
 pool, port, harbor, dock, quay, wharf, jetty, or lock, or shall unlaw- 
 fully and maliciously open or draw up any floodgate or sluice, or do 
 any other injury or mischief to any navigable river or canal, with 
 intent and so as thereby to obstruct or prevent the carrying on, com- 
 pleting, or maintaining the navigation thereof, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be kept in penal servitude for any term not exceeding seven 
 years, and not less than three [now five] years, — or to be imprisoned 
 for any term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement ; and, if a male under the age of 
 sixteen years, with or without whipping." 
 
 Injuries to fish-ponds, mill-dams, etc. By s. 32, " whosoever shall 
 unlawfully and maliciously cut through, break down, or otherwise 
 destroy the dam, floodgate, or sluice of any fish-pond, or of any water 
 which shall be private property, or in which there shall be any pri- 
 vate 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 that may then be
 
 SEA AND RIVER BANKS, PONDS, MILL-DAMS, ETC. 1179 
 
 or that may thereafter be put therein, or shall unlawfully and ma- 
 liciously cut through, break down, or otherwise destroy the dam 
 or floodgate of any mill-pond, reservoir, or pool, shall be guilty of a 
 misdemeanor, and being convicted thereof shall be lial)le, at the 
 ♦discretion of the court, to be kept in penal servitude for any r^q rq 
 term not exceeding seven years and not less than three [now '- 
 five] years, — or to be imprisoned for any term not exceeding two years, 
 with or without hard labor, and with or without solitary confinement; 
 and, if a male under the age of sixteen years, with or without whip- 
 ping." 
 
 By the Salmon Fishery Act, 36 & 37 Vict. c. 71, s. 13, the pro- 
 visions of the thirty-second section of the " Malicious Injuries to 
 Property Act " (24 & 25 Vict. c. 97), so far as they relate to poison- 
 ing any water with intent to kill or destroy fish, shall be extended, and 
 apply to salmon rivers, as if the words " or in any salmon river " were 
 inserted in the said section in lieu of the words "private rights of 
 fishery " after the words " noxious material in any such pond or 
 water."
 
 1180 SEAMEN, OFFENCES RELATING TO. 
 
 ♦954] «SEAMEN, OFFENCES RELATING TO. 
 
 Forcing seamen on shore. By the 17 &18 Vict. c. 104, s. 206, 
 " if the master or any other person belonging to any British ship 
 wrongfully forces on shore and leaves behind, or otherwise wilfully 
 and wrongfully leaves behind in any place on shore or at sea in or out 
 of her Majesty's dominions, any seaman or apprentice belonging to such 
 ship before the completion of the voyage for which such person 
 was engaged, or the return of the ship to the United Kingdom, he 
 shall for each such offence be deemed guilty of a misdemeanor." 
 
 "Wrongfully discharging or leaving behind seamen. By s. 207, 
 " if the master of any British ship does any of the following things 
 (that is to say) : — 
 
 (1.) Discharges any seaman or apprentice in any place situate in 
 any British possession abroad (except the possession in which 
 he was shipped) without previously obtaining the sanction in 
 writing indorsed on the agreement of some public shipping 
 master or other officer duly appointed by the local government 
 in that behalf, or (in the absence of any such functionary) of 
 the chief officer of customs resident at or near the place where 
 the discharge takes place ; 
 (2.) Discharges any seaman or apprentice at any place out of her 
 Majesty's dominions without previously obtaining the sanction 
 so indorsed as aforesaid of the British consular officer there, 
 or (in his absence) of two respectable merchants resident 
 there ; 
 (3.) Leaves behind any seaman or apprentice at any place situate 
 in any British possession abroad on any groimd whatever 
 without previously obtaining a certificate in writing so in- 
 dorsed as aforesaid from such officer or person as aforesaid, 
 stating the fact and the cause thereof, whether such cause be 
 unfitness or inability to proceed to sea, or desertion, or dis- 
 appearance ; 
 (4.) Leaves behind any seaman or apprentice at any place out of 
 her Majesty's dominions, on shore or at sea, on any ground 
 whatever, without previously obtaining the certificate indorsed 
 in manner and to the effect last aforesaid of the British consu- 
 lar officer there, or (in his absence) of two respectable mer- 
 chants, if there is any such at or near the place where the 
 ship then is : 
 he shall for each such default be deemed guilty of a misdemeanor ; 
 and the said functionaries shall, and the said merchants may, examine 
 into the grounds of such proposed discharge, or into the allegation of
 
 SEAMEN — OFFENCES RELATING TO. 1181 
 
 such unfitness, inability, desertion, or disappearance, as aforesaid, in 
 a summary way, and may for that purpose, if they think fit so to do, 
 administer oaths, and may either grant or refuse such sanction or 
 certificate as appears to them to be just." 
 
 *On whom burden of proof lies. By s. 208, " upon the trial [-*QKr 
 of any information, indictment, or other proceeding against any •- 
 person for discharging or leaving behind any seaman or apprentice, 
 contrary to the provisions of this Act, it shall lie upon such person 
 either to produce the sanction or certificate hereby required, or to prove 
 that he had obtained the same previously to having discharged or left 
 behind such seaman or apprentice, or that it was impracticable for him 
 to obtain such sanction or certificate." 
 
 Punishment. By s. 518, every offence declared by the Act to be 
 a misdemeanor shall be punishable by fine or imprisonment, with or 
 without hard labor. 
 
 By s. 20, every offence is deemed to have been committed either 
 where it actually was committed, or where the offender may be ; and 
 see 18 & 19 Vict. c. 91, s. 21.
 
 1182 SHIPS AND VESSELS. 
 
 *956] *SHIPS AND VESSELS. 
 
 PAGE 
 
 Stealing from ships, docks, wharves, etc 956 
 
 ship in distress or wrecked . , . . • 956 
 
 Setting fire to, casting away, or destroying ship .... 956 
 
 Setting fire to, casting away, or destroying ship with intent to murder. 957 
 
 Setting fire to, etc., ship with intent to prejudice owner or underwriter 957 
 
 Attempting to set fire to, east away, or destroy ship . . . 957 
 
 Blowing up or attempting to blow up ships 957 
 
 Otherwise damaging ships 957 
 
 Exhibiting false signals or otherwise endangering ships • . . 957 
 
 Kemoving or concealing buoys and other sea-marks . . . 957 
 
 Injuries to wrecks and articles belonging thereto .... 957 
 
 Misconduct endangering ship or safety of persons on board . . 958 
 
 Sending to sea an unworthy ship 958 
 
 Neglecting to render assistance in collision 958 
 
 Venue 958 
 
 Other offences relating to vessels and articles belonging thereto . 959 
 
 Stealing from ships, docks, wharves, etc. By the 24 & 25 Vict, 
 c. 96, s. 63, " whosoever shall steal any goods or merchandise in any 
 vessel, barge, or boat, of any description whatsoever in any haven, or 
 in any port of entry or discharge, or upon any navigable river or 
 canal, or in any creek or basin belonging to or communicating with 
 any such haven, port, river, or canal, or shall steal any goods or mer- 
 chandise from any dock, wharf, or quay adjacent to any such haven, 
 port, river, canal, creek or basin, shall be guilty of felony, and 
 being convicted thereof, shall be liable, at the discretion of the court, 
 to be kept in penal servitude for any term not exceeding fourteen years 
 and not less than three [now five] years, — or to be imprisoned for any 
 term not exceeding two years, with or without hard labor, and with 
 or without solitary confinement.'' 
 
 Stealing from ship in distress or wrecked. By s. 64, " whoso- 
 ever shall plunder or steal any part of any ship or vessel which shall 
 be in distress, or wrecked, stranded, or cast on shore, or any goods, 
 merchandise, or articles of any kind belonging to such ship or vessel, 
 shall be guilty of felony, and, being convicted thereof, shall be liable, 
 at the discretion of the court, to be kept in penal servitude for any 
 term not exceeding fourteen years, and not less than three [now five] 
 years, — or to be imprisoned for any term not exceeding two years, 
 with or without hard labor, and with or without solitary confine- 
 ment." 
 
 Setting fire to, casting away, or destroying ship. See 24 & 25 
 
 Vict. c. 97, s. 42, supra, p. 287. 
 
 *9571 *Setting fire to, casting away, or destroying ship with in- 
 -1 tent to murder. See 24 & 25 Vict. c. 100, s. 13, supra, p. 
 809.
 
 SHIPS AND VESSELS. 1183 
 
 Setting fire to or casting away ship with intent to prejudice 
 owner or underwriter. See 24 & 25 Vict. c. 97, s. 43, supra, p. 
 
 288. 
 
 Attempting to set fire to, cast away, or destroy ship. See 24 & 
 
 25 Vict. c. 97, s. 44, supra, p. 289. 
 
 Blowing up or attempting to blow up ships. See 24 & 25 Vict. 
 c. 97, s. 45, and c. 100, s. 30, supra, p. 485. 
 
 Otherwise damaging ships. By the 24 & 25 Vict. c. 97, s. 46, 
 " whosoever shall unlawfully and maliciously damage otherwise than 
 by fire, gunpowder, or other explosive substance, any ship or vessel, 
 whether complete or in an unfinished state, with intent to destroy the 
 same or render the same useless, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for any term not exceeding seven years and 
 not less than three [now five] years — or to be imprisoned for any 
 term not exceeding two years, with or without hard labor, and with 
 or without solitary confinement, and if a male under the age of six- 
 teen years, with or without whipping." 
 
 Exhibiting false signals or otherwise endangering ships. By s. 47, 
 
 ** whosoever shall unlawfully mask, alter, or remove any light or 
 signal, or unlawfully exhibit any false light or signal, with intent 
 to bring any ship, vessel, or boat into danger, or shall unlawfully 
 and maliciously do anything tending to the immediate loss or de- 
 struction of any ship, vessel, or boat, and for which no punishment 
 is hereinbefore provided, shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any terra not less than three 
 [now five] years, — or to be imprisoned for any term not exceeding 
 two years, with or without hard labor, and with or without solitary 
 confinement, and, if a male under the age of sixteen years, with or 
 without whipping." 
 
 Bemoving or concealing buoys and other sea-marks. By s. 48, 
 " whosoever shall unlawfully and maliciously cut away, cast adrift, 
 remove, alter, deface, sink, or destroy, or shall unlawfully and 
 maliciously do any act with intent to cut away, cast adrift, remove, 
 alter, deface, sink, or destroy, or shall in any other manner unlawfully 
 and maliciously injure or conceal any boat, buoy, buoy rope, perch, 
 or mark used or intended for the guidance of seamen or for the 
 purpose of navigation, shall be guilty of felony, and being convicted 
 thereof, shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding seven years and not less 
 than three [now five] years, — or to be imprisoned for any term not 
 exceeding two years, — with or without hard labor, and with or with- 
 out solitary confinement, and if a male under the age of sixteen years, 
 with or without whipping."
 
 1184 SHIPS AND VESSELS. 
 
 Injuries to wrecks and articles belonging thereto. By the 24 & 
 25 Vict. c. 97, s. 49, ** whosoever sliall unlawlully and malieiously 
 i^Q-a-\ *destroy any part of any ship or vessel which shall he in dis- 
 ^ tress, or wrecked, stranded, or cast on shore, or any goods, mer- 
 chandise, or articles of any kind belonging to such ship or vessel, shall 
 be guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the conrt, to be kept in penal servitude for any term not 
 exceeding fourteen and not less than three [now five] years, or to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labor, and with or without solitary confinement." 
 
 Misconduct endangering ship or safety of persons on board. By 
 the 17 & 18 Vict. c. 104, s. 239, " any master of, or any seaman or ap- 
 prentice belonging to any British ship, who by wilful breach of duty, or 
 by neglect of duty, or by reason of drunkenness, does any act tending 
 to the immediate loss, destruction, or serious damage of such ship, 
 or tending immediately to endanger the life or limb of any person 
 belonging to or on board of such ship, or who by wilful bre^ich of 
 duty, or by neglect of duty, or by reason of drunkenness, refuses or 
 omits to do any lawful act proper and requisite to be done by him for 
 preserving such ship from immediate loss, destruction, or serious 
 damage, or for preserving any person belonging to or on board of 
 such ship from immediate danger to life or limb, shall for every such 
 offence be deemed guilty of a misdemeanor." 
 
 By s. 366, the same provision is made with respect to pilots, " when 
 in charge of any ship." 
 
 By s. 518, " every offence by this Act declared to be a misdemeanor 
 shall be punishable by fine or imprisonment, with or without hard 
 labor." 
 
 Sending to sea an unworthy ship. By the 39 & 40 Vict. c. 80, 
 8. 4, every person who sends a ship to sea in such unseaworthy 
 state that the life of any person would be likely to be endangered, 
 is guilty of a misdemeanor, unless he prove that he used all reason- 
 able means to insure her being sent to sea in a seaworthy state, or 
 that her going to sea in such unseaworthy state was, under the cir- 
 cumstances, reasonable and justifiable ; and for the purpose of giving 
 such proof, such person may give evidence in the same manner as any 
 other witness, and every master who knowingly takes such a ship to 
 sea is guilty of a misdemeanor. No prosecution under the section 
 shall be instituted except by or with the consent of the Board of 
 Trade or of the governor of the British Possession in which the prose- 
 cution takes place. No misdemeanor under this section shall be 
 punishable upon summary conviction. 
 
 Neglecting to render assistance in collision. By the 36 & 37 
 Vict. c. 85, s. 16, the neglect of the master of a vessel to render as- 
 sistance in the case of collision, or to give to the other vessel the name, 
 port of registry, etc., of his own vessel, is a misdemeanor.
 
 SHIPS AND VESSELS. 1185 
 
 Venue. By the 24 & 25 Vict. c. 96, s. 64 (supra), in oifences under 
 that section, " the offender may be indicted and tried either in the 
 county or place in which the offence shall have been committed, or in 
 any county or place next adjoining." By the 17 & 18 Vict. c. 104, 
 s. 520, " for the purpose of giving jurisdiction under this Act, every 
 offence shall be deemed to have been committed, and every cause of 
 complaint to have arisen, either in the place in which the same 
 *actually was committed or arose, or in any place in which the r*QKQ 
 offender or person complained against may be." L 
 
 Other oflfences relating to vessels and articles belonging thereto. 
 
 As to destroying, etc., cordage on the Thames, see 2 & 3 Vict. c. 47, 
 ss. 27, 28 ; destroying ships in the port of London, 39 Geo. 3, c. 69, 
 s. 4, ante, p. 288 ; destroying ships of war, 12 Geo. 3, c. 24, ante, p. 
 288 ; as to receiving anchors or goods in the Cinque Ports, 1 & 2 Geo. 
 4. c. 76. 
 
 75
 
 1186 SHOOTING. 
 
 ^960] 
 
 ♦SHOOTING. 
 
 Shooting or attempting to shoot with intent to murder. See 24 
 
 & 25 V^ict. c. 100, s. 14, supra, p. 809. 
 
 Shooting or attempting to shoot with intent to do grievous 
 bodily harm. See 24 & 25 Vict. c. 100, s. 18, sujira, p. 609. 
 
 What shall constitute loaded arms. By the 24 & 25 Vict. c. 
 100, s. 19, "any gun, pistol, or other arms which shall be loaded in 
 the barrel with gunpowder or any other explosive substance, and ball, 
 shot, slug, or other destructive material, shall be deemed to be loaded 
 arms within the meaning of this Act, although the attempt to dis- 
 charge the same may fail from want of proper priming or from any 
 other cause." 
 
 Proof of arms being loaded. It makes no difference what the 
 gun or other arm is loaded with, if it is capable of effecting the intent 
 with which the prisoner is charged. Per Le Blanc, J., R. v. Kitchen, 
 Russ. & Ry. 95. Upon an indictment for priming and levelling a 
 blunderbuss, loaded with gunpowder and leaden shot, and attempting, 
 by drawing the trigger, to discharge the same, with intent to murder, 
 the jury found that the blunderbuss was not primed when the prisoner 
 drew the trigger, but found the prisoner guilty. On a case reserved, 
 a majority of the judges considered the verdict of the jury as equiv- 
 alent to a finding by them, that the blunderbuss was not so loaded as 
 to be capable of doing mischief by having the trigger drawn, and if 
 such were the case, they were of opinion, in point of law, that it was 
 not loaded within the meaning of the statute. R. v. Carr, Russ. & 
 Ry. 377. So upon an indictment under the 9 Geo. 4, c. 31 (repealed), 
 for attempting to discharge a loaded pistol by drawing the trigger, 
 with intent, etc., the defence was, that the touch-hole was plugged ; 
 Patteson, J., said to the jury, " If you think that the pistol had its 
 touch-hole plugged, so that it could not by possibility do mischief, the 
 prisoner ought to be accpiitted, because I do not think that a pistol so 
 circumstanced ought to be considered as loaded arms within the mean- 
 ing of the Act." R. V. Harris, 5 C. & P. 159, 24 E. C. L. A rifle, 
 which is loaded, but which, for Avant of priming, will not go off, is 
 not a loaded arm within the 1 Vict. c. 85, s. 3 ; and the pointing a 
 rifle thus circumstanced at a person, and pulling the trigger of it, 
 whereby the cock and hammer were thrown, and the pan opened, 
 will not Avarrant a conviction, under that section. R. v. James, 1 
 C. & K. 530, 47 E. C. L. But see now 24 & 25 Vict. c. 100, s. 19, 
 supra.
 
 SHOOTING. 1187 
 
 Where the prisoner, by snapping a percussion-cap, discharged a gun- 
 barrel detached from the stock ; Patteson, J., held this to be shooting 
 with " loaded arms," within the 9 Geo. 4, c. 31, and after consulting 
 several of the judges, refused to reserve the point. R. v. Coates, 6 
 C. & P. 394, 25 E. C. L. 
 
 *Proof of shooting. Where the prisoner fired into a room r^sqn-i 
 in which he supposed the prosecutor to be, but in point of fact L 
 he was in another part of the house where he could not by possibility 
 be reached by the shot ; Gurney, B,, held that the indictment could 
 not be supported. R. v. Lovell, 2 Moo. & R. 30. An indictment for 
 maliciously shooting at A. B. is supported, if he be struck by the 
 shot, though the gun be aimed at a different person. R. v. Jarvis, 2 
 Moo. & R. 40, and see ante, p. 611. 
 
 Some act must be done to constitute an attempt to discharge fire- 
 arms. Merely presenting them is not sufficient. R. v. Lewis, 9 C. & 
 P. 523, 38 E, C. L. If a person, intending to shoot another, put his 
 finger on the trigger of a loaded fire-arm, but is prevented from pul- 
 ling the trigger, this it is said is not an attempt to discharge loaded 
 arms within'the statute. R. v. St. George, 9 C. & P. 483, 38 E. C. 
 L. Considerable doubt was however thrown upon these two cases in 
 R. y. Brown, 10 Q. B. D. 381 ; 52 L. J., M. C. 49 ; see this case, 
 ante, pp. 304, 312, 810. 
 
 Sending a tin box, filled with gunpowder and peas, to the prosecu- 
 tor, so contrived that the prosecutor should set fire to the powder by 
 opening the box, was held by the judges not to be an attempt to dis- 
 charge loaded arms within the repealed statute 9 Geo. 4, c. 31, s. 11 ; 
 R. V. Mountford, 1 Moo. C. C. 441.
 
 1188 SHOP 
 
 '9G2] 
 
 *SHOP. 
 
 Breaking in or out of, and committing any felony in a shop, 
 warehouse, or counting-house. Tliis offence is provided for by tlie 
 24 & 25 Vict. c. 96, s. 56, supra, p. 453. The general law on the 
 subject will be found under the heads " Burglary " and " Dwelling- 
 house." 
 
 What buildings are within the section. It was held by Alder- 
 son, B., that a workshop, such as a carpenter's or blacksmith's shop, 
 was not within the 7 & 8 Geo. 4, c. 29, s. 15, a similar Act to that 
 now in force. R. v. Sanders, 9 Carr. & P. 79, 38 E. 0. L. But it 
 was subsequently held by Lord Denman, C. J., in R. v. Carter, 1 C. 
 & K. 173, 47 E. G. L., that a person who breaks into an ordinary 
 blacksmith's shop containing a forge and used as a workshop only, not 
 being inhabited, nor attached to any dwelling-house, and who steals 
 goods therein, may be convicted of breaking into a shop and stealing 
 goods, under the foregoing section. A building formed part of prem- 
 ises employed as chemical works ; it was commonly called " The Ma- 
 chine House," a weighing-machine being there, where all the goods 
 sent out were weighed, and a book being kept there, in which entries 
 of the goods so weighed were made. It appeared that the account of 
 the time of the workmen employed in the works was kept in this 
 place ; that the wages of the men were paid there ; that the books in 
 which the entries of time and the payment of wages were entered, 
 were brought to the building for the purpose of making entries and 
 paying wages, but that at other times they were kept in what is called 
 " the office," where the general books and accounts of the concern 
 were kept. It was held, that this building was a counting-house 
 within the section. R. v. Potter, 2 Den. G. G. R. 235 ; 23 L. J., M. 
 G. 170. A cellar used merely for the deposit of goods intended for 
 removal and sale is a warehouse within this section. Fer Rolfe, B., 
 in R. V. Hill, 2 Moo. & R. 458.
 
 SMUGGLING. 1189 
 
 ♦SMUGGLING. [*963 
 
 AND OTHER OFFENCES CONNECTED WITH THE CUSTOMS. 
 
 PAGE 
 Assembling to assist in smuggling ....... 9(53 
 
 Proof of being assembled together 964 
 
 Proof of being armed with offensive weapons 964 
 
 Making signals to smuggling vessels 964 
 
 Shooting at a vessel belonging to the navy, etc. , . . . 965 
 
 Assaults upon revenue officers 965 
 
 Compensations and rewards 966 
 
 Indictments — how preferred and found .,.,,.. 966 
 Limitation of prosecutions ....,,... 966 
 
 Venue ..966 
 
 Presumptions • • 966 
 
 The statutes against the offence of smuggling were included in the 
 6 Geo. 4, c. 108 ; but other statutes having been subsequently passed, 
 the whole were consolidated in the 3 & 4 Will. 4, c. 53. This latter 
 statute, and the parts of Acts subsequently passed for the amendment 
 of the law, were consolidated in the 8 & 9 Vict. c. 87 (U. K.), and the 
 16 & 17 Vict. c. 107, which are repealed by the 39 & 40 Vict. c. 36. 
 This Act contains various regulations with regard to prosecutions by 
 the customs in general. 
 
 Assembling to assist in smuggling. By the 42 & 43 Vict. c. 21, 
 s. 10, all persons to the number of three or more who shall assemble 
 for the purpose of unshipping, landing, running, carrying, concealing, 
 or having so assembled shall unship, land, run, carry, convey, or con- 
 ceal any spirits, tobacco, or any prohibited, restricted, or uncustomed 
 goods shall each forfeit a penalty not exceeding 500^., nor less than 100/, 
 
 By s. 189 of the 39 & 40 Vict. c. 36, every person who shall by any 
 means procure or hire any person or persons to assemble for the pur- 
 pose of being concerned in the landing, or unshipping, or carrying, 
 conveying, or concealing any goods which are prohibited to be im- 
 ported, or the duties for which have not been paid or secured, shall 
 be imprisoned for any term not exceeding twelve months ; and if any 
 person engaged in the commission of any of the above offences be 
 armed with firearms or other offensive weapons, or whether so armed 
 or not be disguised in any way, or being so armed or disguised shall 
 be found with any goods liable to forfeiture under the Customs Acts 
 within five miles of the sea coast or of any tidal river, shall be im- 
 prisoned, with or without hard labor, for any term not exceeding 
 three years. 
 
 Under the former statute 16 & 17 Vict, c. 107, s. 246, it was made 
 *a felony for persons to the number of three or more to as- r^qcA 
 semble armed in order to aid, or in fact aiding, in smuggling, L 
 etc. ; but it is difficult to say what is meant by the above sections. 
 See note to Stephens' Digest, p. 44. The meaning of the sections, if
 
 1190 SMUGGLING. 
 
 the grammatical construction is adhered to, seems to be that all per- 
 sons assembling to the number of three, whetlier armed or not, shall 
 forfeit a penalty ; every person who shall ])rocure other persons to 
 assemble, whether armed or not, shall be imprisoned for twelve months, 
 and if such persons assembling shall be armed, the person procuring 
 them to assemble shall be imprisoned for three years. But the inten- 
 tion of the sections probably is that persons assembling to the mimber 
 of three are to incur a penalty, and j)ei'sons procuring them to assemble 
 are to be imprisoned for twelve months ; but if persons assemble or 
 procure others to assemble, and are armed, they are to be imprisoned 
 for three years. 
 
 Proof of being assembled together. It was held under the former 
 statute that it must be proved that the prisoners, to the number of 
 three or more, were assembled together, and as it seems, delibeiately, 
 for the purpose of aiding and assisting in tlie commission of the illegal 
 act. Where a number of drunken men came from an alehouse, and 
 hastily set themselves to carry away some Geneva which had been 
 seized, it v/as considered very doubtful whether the case came within 
 the statute 19 Geo. 2, c. 34 (now repealed), the words of which mani- 
 festly allude to the circumstance of great multitudes of people coming 
 down upon the beach of the sea for the purpose of escorting uncustomed 
 goods. E. V. Hutchinson, 1 Leach, 343. 
 
 Reasonable proof must be given from which the jury may infer 
 that the goods were uncustomed. See R. v. Shelley, 1 Leach, 340 (?i). 
 
 Proof of being armed with ofiensive weapons. Although it 
 may be difficult to define what is to be called an ofiensive weapon, yet 
 it would be going too far to say that nothing but guns, pistols, daggers, 
 and instruments of war are to be so considered ; bludgeons, properly so 
 called, and clubs, and anything not in common use for any other pur- 
 pose than a weapon, being clearly offensive weapons within the mean- 
 ing of the Act. E,. V. Cosan, 1 Leach, 342, 343 (n). Large sticks, 
 in one case, were held not to be offensive weapons ; the preamble of 
 the statute showing that they must be what the law calls dangerous. 
 R. V. Ince, 1 Leach, 342 («). But on an indictment with intent to 
 rob, a common walking-stick has been held to be an offensive weapon. 
 R. V. Johnson, Russ. & Ry. 492, and R. v. Fry, 2 Moo. & R. 42, ante, 
 p. 603. See also R. v. Sharwin, 1 East, P. C. 421. A whip was 
 held not to be " an offensive weapon," within the 9 Geo. 2 c. 35 (re- 
 pealed). R. V. Fletcher, 1 Leach, 23 : and, under the 6 Geo. 4, c. 108 
 (repealed) bats, which are poles used by smugglers, to carry tubs, were 
 held not to be offensive weapons. R. v. Noakes, 5 C. & P. 32G, 24 E. C. L. 
 If in a sudden affray a man snatch up a hatchet, this does not come 
 within the statute. R. v. Rose, 1 Leach, 342 (n). See supra, p. 602. 
 
 Making signals to smuggling vessels. By s. 190 of the 39 & 40 
 Vict. c. 36, " no person shall after sunset and before sunrise between the 
 21st day of September and the 1st day of April, or after the hour of
 
 SMUGGLING. 1191 
 
 *eight in the evening and before the hour of six in the morn- r^qne 
 ing- at any other time of the year, malve, aid, or assist in making L 
 any signal in or on board, or from any ship or boat, or on, or from any 
 part of the coast or shore of the United Kingdom, or within six miles 
 of any part of such coast or shore, for the purpose of giving notice to 
 any person on board any smuggling ship or boat, whether any person 
 on board of any such ship or boat be or not within distance to notice 
 any such signal ; and if any person, contrary to the Customs Act, 
 shall make, or cause to be made, or aid or assist in making any such 
 signal, he shall be guilty of a misdemeanor ; and may be stopped, 
 arrested, detained, and conveyed before any justice, who, if he see 
 cause, shall commit the oifender to the next county gaol, there to 
 remain until delivered by due course of law ; and it shall not be 
 necessary to prove on any indictment or information in such case 
 that any ship or boat was ac-tually on the coast ; and the oU'ender, 
 being duly convicted, shall, by order of the court before whom he 
 shall be convicted, either forfeit the penalty of one hundred pounds, 
 or, at the discretion of such court, be committed to a gaol or house of 
 correction, there to be ke})t to hard labor for any term not exceeding 
 one year." By s. 191, " if any person be charged with having made, 
 or for aiding or assisting in making any such signal as aforesaid, the 
 burden of proof that such signal, so charged as having been made 
 with intent and for the purpose of giving such notice as aforesaid, 
 was not made with such intent and for such purpose, shall be upon 
 the defendant against whom such charge is made, or such indictment 
 found." By s. 192, any person may prevent such signals being made, 
 and may enter lands for that purpose. 
 
 Shooting at a vessel belonging to the navy, etc. By s. 193, " if 
 any person shall maliciously shoot at any vessel or boat belonging to 
 her IMajesty's navy, or in the service of the revenue, or shall maliciously 
 shoot at, maim, or wound any officer of the army, navy, or marines 
 being duly employed in the prevention of smuggling and on full pay, 
 or any officer of customs or excise, or any person acting in his aid or 
 assistance, or duly employed for the prevention of smuggling, in the 
 execution of his office or duty (see section 261, post, p. 96G), every 
 person so offianding, and every person aiding, abetting, or assisting 
 therein, shall, upon conviction, be adjudged guilty of felony, and 
 shall be liable, at the discretion of the court, to penal servitude for 
 any term not less than five years, or to be imprisoned for any term 
 not exceeding three years." 
 
 Upon an indictment under the first part of this section, the pros- 
 ecutor must prove — 1, the shooting; 2, the malice; 3, that the 
 vessel shot at was belonging to the navy, or in the service of the 
 revenue. 
 
 Upon the statute 52 Geo. 3, c. 143, s. 11, now repealed, it was held, 
 that if a custom-house vessel chased a smuggler, and fired into her 
 without hoisting such a pendant and ensign as the statute 56 Geo. 3, 
 St. 2, c. 104, s. 8 (repealed), required, the returning of tlie fire by the
 
 1192 SMUGGLING. 
 
 smuggler was not malicious within the Act. E,. v. Reynolds, Russ. & 
 Ry. 465. 
 
 Assaults upon revenue officers. Assaults upon revenue officers in 
 the execution of their duty are iucluded in the general provisions of 
 *Qral *^^^^ ■^^ ^ '^^ Vict. c. 100, s. 38, supra, p. 302 ; and see the 44 
 ^^^-J Vict. c. 12, s. 12. 
 
 Compensations and rewards. See as to compensations and rewards 
 to officers and others employed in preventing smuggling, 39 & 40 
 Vict. c. 36, ss. 210—216. 
 
 Indictments — how preferred and found. By the 39 & 40 Vict, 
 c. 36, s. 255, " all indictments or suits for any offences or the recovery 
 of any penalties or forfeitures under the C'ustoms Acts, shall, except 
 in the cases where summary jurisdiction is given to justices, be pre- 
 ferred or commenced in the name of her Majesty's Attorney-General 
 for England or Ireland, or the Lord Advocate of Scotland, or of some 
 officer of customs or inland revenue." By sect. 256, the Attorney- 
 General or Lord Advocate may enter a oiolle prosequi} 
 
 Limitation of prosecution. By s. 257, "all suits, indictments, or 
 informations brought, or exhibited for any offence against the Cus- 
 toms Acts in any court or before any justice, shall be brought or 
 exhibited within three years next after the date of the offence com- 
 mitted." 
 
 Venue. By s. 258, " Any indictment, prosecution, or information 
 which may be instituted or brought under the direction of the com- 
 missioners of customs for offences against the Customs Acts, shall and 
 may be inquired of, examined, tried, and determined in any county 
 of England, when the offence is committed in England, and in any 
 county of Scotland, when the offence is committed in Scotland, and 
 in any county of Ireland, when the offence is conmiitted in Ireland, 
 in such manner and form as if the offence had been committed in 
 the said county, where the said indictment or information shall be 
 tried." 
 
 Presumptions. By s. 260, " the averment that the commissioners 
 of customs or inland revenues have directed or elected that any infor- 
 mation or proceedings under the Customs Acts shall be instituted, or 
 that any ship or boat is foreign, or belonging wholly or in part to her 
 
 ^ An indictment charging the removal of a certain quantity of distilled spirits on 
 which the tax had not been paid, to a place other than the distillery warelioiise is 
 good. U. S. V. Anthony, 14 Blatch. 92. Where the goods of A. are seized in tlie 
 hands of B. as bailee of A., and there left, pending the decision of the proper court, in 
 u subsequent suit against B. it is a good defence tJiat tiie suit against A. has been dis- 
 missed. Pettigrew r. United States, 97 U. S. 385. It is no defence to an action 
 for the forfeiture of certain distilled spirits, that the defendant has in good faith 
 made advances upon it. Bovd v. United States, 14 Blatch. 317.
 
 SMUGGLING. 1193 
 
 Majesty's subjects, or that any person detained or found on board any 
 ship or boat liable to seizure, is or is not a subject of her Majesty 
 
 or that any person is an officer of customs or excise, 
 
 or that any person was employed for the prevention of smuggling^ or 
 that the offence was committed within the limits of any port, or 
 where the offence is committed in any port of the United Kingdom, 
 the naming of such in any information or proceeding shall be deemed 
 to be sufficient, unless the defendant in any such case shall prove to 
 the contrary." By s. 261, "if upon any trial a question shall arise 
 whether any person is an officer of the army, navy, marines, or coast- 
 guard, duly employed for the prevention of smuggling, and on full 
 pay, or an officer of customs or excise, his own evidence thereof, or 
 other evidence of his having acted as such, shall be deemed sufficient, 
 and such person shall not be required to produce his commission or 
 deputation." By s. 262, " the order, or any letter or instructions 
 referring thereto, shall be sufficient evidence of any order issued by 
 the commissioners of the treasury, or by the commissioners of customs 
 or inland revenue."
 
 1194 SODOMY. 
 
 ^967] 
 
 *SODOMY. 
 
 By the 24 & 25 Vict, c, 100, s. 61, "whosoever shall be convicted 
 of the abominable crime of buggery committed either with mankind 
 or with any animal, shall be liable, at the discretion of the court, to be 
 kept in penal servitude for life, or for any term not less than ten years." 
 
 If the otfence be committed on a boy under fourteen years of age, 
 it is felony in the agent only. 1 Hale, 670 ; 3 Inst. 59. In R. v. 
 Allen, 1 I)cn. C. C. R. 364, the prisoner induced a boy of twelve years 
 of age to have carnal knowledge of his person, the prisoner having 
 been the pathic in the crime ; and the court were unanimously of 
 opinion that the conviction was right. 
 
 In one case a majority of the judges were of opinion that the com- 
 mission of the crime with a woman was indictable. R. v. Wiseman, 
 Fortescue, 91 ; and see R. v. Jellyman, 8 C. & P. 604, 38 E, C, L., 
 where Patteson, J., held that a married woman who consents to her 
 husband committing an unnatural oifence with her, is an accomplice in 
 the felony, and as such that her evidence requires confirmation, though 
 consent or non-consent is not material to the offence. 
 
 The act in a child's mouth does not constitute the offence. R. v. 
 Jacob, Russ. & Ry. 331. 
 
 The offence would be complete on proof of penetration only ; ^ see 
 24 & 25 Vict. c. 100, s. 63, ante, tit. "Rape." 
 
 1 Davis V. State, 3 Har. & Johns. 154. S. 
 
 By Penna. Stat. 11 June, 1879, P. L. 148, mere penetration completes the crime. 
 Evidence that tlie person injured made early complaint is admissible, but not his 
 declarations, unless made in the presence of the accused, or necessary for the pur- 
 poses of corroboration. State v. Gruso, 28 La. An. 952. It Ls not an indictable crime 
 in Iowa : Estes v. Carter, 10 la. 400 ; but is so in Texas by statute : Frazier v. State, 
 39 Tex. 390; Ex parte Bergen, 14 Tex. Ap. 52; and in Louisiana: State t'.Williams, 
 34 La. An. 87 ; also in California ; People v. Williams, 39 Cal. 397.
 
 SPEING-GUNS. 1195 
 
 *SPIIING-GUNS. 
 
 [*968 
 
 By the 24 & 25 Vict. c. 100, s. 31, "whosoever shall set up or place, 
 or cause to be set or placed, auy sprinp;-guu, man-trap, or other engine 
 calculated to destroy human life or inllict grievous bodily harm, Avith 
 the intent that the same or whereby the same may destroy or inllict 
 grievous bodily harm upon a trespasser or other person coming in con- 
 tact theresvith, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept iu 
 penal servitude for the term of three [now five] years, or to be im- 
 prisoned for any term not exceeding two years, with or without hard 
 labor ; and whosoever shall knowingly and wilfully permit any such 
 spriug-gan, man-trap, or other engine which may have been set or 
 placed in any place then being in or afterwards coming into his pos- 
 session or occupation by some other person to continue so set or placed, 
 shall be deemed to have set and placed such gun, trap, or engine with 
 such intent as aforesaid : provided that nothing in this section contained 
 shall extend to make it illegal to set or place auy gin or trap such as 
 may have been or may be usually set or placed with the intent of de- 
 stroying vermin : provided also, that nothing in this section shall be 
 deemed to make it unlawful to set or place, or cause to be set or 
 placed, or to be continued set or placed, from sunset to sunrise, any 
 spring-gun, man-trap, or other engine which shall be set or placed, or 
 caused, or continued to be set or placed, in a dwelling-house, for the 
 protection thereof.'
 
 1196 TELEGRAPHS, INJURIES TO. 
 
 *9(391 »TELEGRAPHS, INJURIES TO. 
 
 By the 24 & 25 Vict. c. 97, s. 37, " whosoever sliall unlawfully 
 and maliciously cut, break, throw down, destroy, injure, or remove 
 any battery, maehinery, wire, cable, j)ost, or other matter or thing 
 whatsoever, being part of or being used or employed in or about any 
 electric or magnetic telegraph, or in the working thereof, or shall 
 unlawfully and maliciously prevent or obstruct in any manner what- 
 soever the sending, conveyance, or delivery of any communication by 
 any such telegra[)h, shall be guilty of a misdemeanor, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labor : provided that if it shall appear to any justice, on the 
 examination of any person charged with any offence against this 
 section, that it is not expedient to the ends of justice that the same 
 should be prosecuted by indictment, the justice may proceed sum- 
 marily to hear and determine the same, and the olfender shall on 
 conviction thereof, at the discretion of the justice, either be com- 
 mitted to the comiuon gaol or house of correction, there to be im- 
 prisoned only, or to be imprisoned and kept to hard labor, for any 
 term not exceeding three months, or else shall forfeit and pay such 
 sum of money not exceeding ten pounds, as to the justices shall seem 
 meet." 
 
 By s. 38 attempts to commit any of the offences mentioned in the 
 above section may be dealt with summarily.
 
 TELEGRAPH MESSAGES. 1197 
 
 *TELEGRAPH MESSAGES. [*970 
 
 By the 31 & 32 Vict. c. 110, s. 20, "any person having official 
 duties connected with the Post Office, or acting on behalf of the Post- 
 master-General, who shall, contrary to his duty, disclose, or in any 
 way make known or intercept the contents or any part of the contents 
 of any telegraph messages, or any message intrusted to the Postmaster- 
 General for the purpose of transmission, shall, in England and Ireland, 
 be guilty of a misdemeanor, and in Scotland of a crime and offi?nce, 
 and shall upon conviction be subject to imprisonment for a term not 
 exceeding twelve calendar months ; and the Postmaster-General shall 
 make regulations to carry out the intentions of this section, and to 
 prevent the improper use, by any person in his employment or acting 
 on his behalf, of any knowledge he may acquire of the contents of 
 any telegraphic message." 
 
 By sect. 21, " In every case where an offisnce shall be committed 
 in respect of a telegraphic message sent by or intrusted to the Post- 
 master-General it shall be lawful and sufficient in the indictment or 
 criminal letters to be preferred against the offender to lay the prop- 
 erty of such telegraphic message in her Majesty's Postmaster- 
 General, without specifying any further or other name, addition, or 
 description whatsoever, and it shall be not necessary in the indict- 
 ment or criminal letters to allege or to prove upon the trial or other- 
 wise that the telegraphic message was of any value, and in any indict- 
 ment or in any criminal letters to be preferred against any person 
 employed under the Post Office for any offi^nce committed under this 
 Act it shall be lawful and sufficient to state and allege that such 
 offijnder was employed under the Post Office at the time of the com- 
 mitting'of such offi^nce, without stating further the nature or partic- 
 ulars of his employment." 
 
 By the 32 & 33 Vict. c. 73, s. 23, " Every written or printed mes- 
 sage or coraniunieation delivered at a post-office for the purpose of 
 being transmitted by a postal telegraph, and every transcript thereof 
 made by any person acting in pursuance of the orders of the Post- 
 master-General, shall be a post-letter within the meaning of an Act 
 passed in the first year of the reign of her present JMajesty, c. 36 ; 
 provided always that nothing in this Act contained shall have the 
 effect of relieving any officer of the Post Office from any liability 
 which would but for the passing of this Act have attached to a tele- 
 graph company, or to any other company or person, to produce in 
 any court of law, when duly required so to do, any such written or 
 printed message or communication." 
 
 By sect. 24, "'The Telegraph Act, 1868' (31 & 32 Vict. c. 110, 
 supra) and this Act shall be ' Post Office Acts,' and the provisions 
 contained therein respectively shall be ' Post Office Laws ' within the 
 meaninc; of the 1 Vict. c. 36." See ante, tit. " Post Office."
 
 1198 TENANTS AND LODGERS. 
 
 ^971] 
 
 ♦TENANTS AND LODGERS, 
 
 Injuries committed by tenants or lodgers. By the 24 & 25 
 
 Vict. c. 97, s. 1 3, " wliosoGver, being possessed of any dwelling-house 
 or other bnilding, or part of any dwelling-honse or other building, 
 held for any term of years or less term, or at will, or held over after 
 the termination of any tenancy, shall unlawfully and maliciously pull 
 down or demolish, or begin to pull down or demolish, the same or 
 part thereof, or shall unlawfully and maliciously pull down or sever 
 from the freehold any fixture being fixed in or to such dwelling-house 
 or building, or part of such dwelling-house or building, shall be guilty 
 of a misdemeanor." 
 
 Larceny by tenant or lodger. By the 24 & 25 Vict. c. 96, s. 74, 
 " whosoever shall steal any chattel or fixture let to be used by him or 
 her in or with any house or lodging, whether the contract shall have 
 been entered into by him or her or by her husband, or by any person 
 on behalf of him or her or her husband, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be imprisoned for any term not exceeding two years, with or with- 
 out hard labor, and with or without solitary confinement, and, if a 
 male under the age of sixteen years, with or without whipping ; and 
 in case the value of such chattel or fixture shall exceed the sum of five 
 pounds, shall be liable, at the discretion of the court, to be kept in 
 penal servitude for any term not exceeding seven years and not less 
 than three years, or to be imjirisoned for any term not exceeding two 
 years, with or without hard labor, and Avith or without solitary con- 
 finement, and, if a male under the age of sixteen years, with or with- 
 out whipping; and in every case of stealing any chattel in this section 
 mentioned it shall be lawful to prefer an indictment in the common 
 form as for larceny ; and in ev^ery case of stealing any fixture in this 
 section mentioned to prefer an indictment in the same form as if the 
 oiFender were not a tenant or lodger ; and in either case to lay the 
 property in the owner or person letting to hire."
 
 THREATS. 1199 
 
 *THREATS. 
 
 [*972 
 
 PAGE 
 
 Sending letters threatening to murder •..««« 972 
 
 demanding property with menaces .... 972 
 
 Demanding property witli menaces with intent to steal . . . 972 
 Sending letters threatening to accuse of crime with intent to extort 
 
 money 973 
 
 Accusing or threatening to accuse with intent to extort . . . 973 
 
 Inducing a person by threats to execute deed, etc 973 
 
 Immaterial from whom menaces proceed ..•.,, 974 
 
 Sentling letters threatening to burn or injure property . . . . 974 
 
 Threatening to publish a libel with intent to extort .... 974 
 
 Proof of sending or delivering the letter or writing .... 974 
 
 Proof of the demand , 975 
 
 Proof of the threat 977 
 
 Demanding with menaces under s. 45 . • . . , , . 978 
 
 Proof of the threat — to accuse of an infamous crime .... 978 
 
 Matter of defence 979 
 
 Sending letters threatening to murder. By the 24 & 25 Vict. c. 
 100, s. 16, "whosoever shall maliciously send, deliver, or utter, or 
 directly or indirectly cause to be received, knowing the contents 
 thereof, any letter or writing threatening to kill or murder any per- 
 son, shall be guilty of felony, and being convicted thereof shall be 
 liable, at the discretion of the court, to be kept in penal servitude for 
 any term not exceeding ten years, and not less than three [now five] 
 years, or to be imprisoned for any terra not exceeding two years, with 
 or without hard labor, and with or without solitary confinement, and, 
 if a male, under the age of sixteen years, with or without whipping." 
 
 Sending letters demanding property with menaces. By the 24 
 
 & 25 Vict. c. 96, s. 44, " whosoever shall send, deliver, or utter, or 
 indirectly cause to be received, knowing the contents thereof, any letter 
 or writing demanding of any person with menaces, and without any 
 reasonable and probable claim, any property, chattel, money, valuable 
 security, or other valuable thing, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, to 
 be kept in penal servitude for life, or for any term not less than three 
 [now five] years, or to be imprisoned for any term not exceeding two 
 years, with or without hard labor, and with dr without solitary con- 
 finement, and, if a male under the age of sixteen years, with or with- 
 out whipping." 
 
 Demanding property with menaces with intent to steal. By s. 
 45, " whosoever shall with menaces or by force demand any property, 
 chattel, money, valuable security, or other valuable thing of any 
 *person, with intent to steal the same, shall be guilty of fcl- r;)cq7q 
 ony, and being convicted thereof shall be liable, at the dis- ^
 
 1200 THREATS. 
 
 cretion of the court, to be kept in penal servitude for the term of 
 three [now five] years, or to be imprisoned for any term not exeeed- 
 ing two years, with or without hard labor, and with or without 
 solitary confinement." 
 
 Sending letters threatening to accuse of crime with intent to 
 extort money. By s. 46, " whosoever shall send, deliver, or utter, 
 or directly or indirectly cause to be received, knowing the contents 
 thereof, any letter or writing accusing, or threatening to accuse, any 
 other person of any crime pimishable by la^v with death or penal ser- 
 vitude for not less than seven years, or of any assault with intent to 
 commit any rape, or of any attempt or endeavor to commit any rape, 
 or of any infamous crime as hereinafter defined, with a view or intent 
 in any of such cases to extort or gain by means of such letter or writ- 
 ing any property, chattel, money, valuable security, or other valuable 
 thing, from any person, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for life, or for any term not less than three [now five] 
 years, or to be imprisoned for any term not exceeding two years, with 
 or without hard labor, and with or without solitaiy confinement, and, 
 if a male under the age of sixteen years, with or without whipping ; 
 and the abominable crime of buggery, committed either with man- 
 kind or with beast, and every assault with intent to commit the 
 said abominable crime, and every attempt or endeavor to com- 
 mit the said abominable crime, and every solicitation, persuasion, 
 promise, or threat offered or made to any person whereby to move 
 or induce such person to commit or permit the said abominable 
 crime, shall be deemed to be an infamous crime within the meaning of 
 this Act." 
 
 Accusing or threatening to accuse with intent to extort. By s. 
 47, " whosoever shall accuse or threaten to accuse, either the person to 
 whom such accusation or threat shall be made or any other person, of 
 any of the infamous or other crimes lastly hereinbefore mentioned, 
 with the view or intent in any of the cases last aforesaid to extort or 
 gain from such person so accused or threatened to be accused, or from 
 any other person, any property, chattel, money, valuable security, or 
 other valuable thing, shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the court, to be kept in 
 penal servitude for life, or for any term not less than three [now five] 
 years, or to be imprisoned for any term not exceeding two years, with 
 or without hard labor, and, if a male under the age of sixteen years, 
 with or without whipping." 
 
 Inducing a person by threats to execute deed, etc. By s. 48, 
 
 " whosoever with intent to defraud or injure any other person, shall 
 by any unlawful violence to, or restraint of, or threat of violence to 
 or restraint of the person of another, or by accusing or threatening to 
 accuse any person of any treason, felony, or infamous crime, as here-
 
 THEEATS. 1201 
 
 inbefore defined, compel or induce any person to execute, make, ac- 
 cept, indorse, alter, or destroy the whole or any part of any valuable 
 security, or to write, impress, or affix his name or the name of any 
 other person or of any company, firm, or co-partnership, or the seal 
 of any body corporate, company, or society, upon or to any paper or 
 *parchment, in order that the same may be afterwards made or r:^QfjA 
 converted into, or used or dealt with as a valuable security, L 
 shall be guilty of felony, and being convicted thereof shall be liable, 
 at the discretion of the court, to be kept in penal servitude for life, or 
 for any term not less than three [now five] years, or to be imprisoned 
 for any term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement." 
 
 Immaterial from whom menaces proceed. By s. 49, " it shall 
 be immaterial whether the menaces or threats hereinbefore mentioned 
 be of violence, injury, or accusation to be caused or made by the offender 
 or by any other person." 
 
 Sending letters threatening to burn or injure property. By the 
 
 24 & 25 Vict. c. 97, s. 50, " whosoever shall send, deliver, or utter, 
 or directly or indirectly cause to be received, knowing the contents 
 thereof, any letter or writing threatening to burn or destroy any house, 
 barn, or other building, or any rick or stack of grain, hay, or straw, 
 or other agricultural produce, or any grain, hay, or straw, or other 
 agricultural produce in or under any building, or any ship or vessel, 
 or to kill, maim, or wound any cattle, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the court, 
 to be kept in penal servitude for any term not exceeding ten years and 
 not less than three [now five] years, or to be imprisoned fi)r any term 
 not exceeding two years, with or without hard labor, and with or with- 
 out solitary confinement, and, if a male under the age of sixteen years, 
 with or without whipping." 
 
 Threatening to publish a libel with intent to extort. By the 
 6 & 7 Vict. c. 96 (Lord Campbell's Act), an Act to amend the law 
 respecting defamatory words and libels, s. 3, " If any person shall 
 publish, or threaten to publish, any libel upon any other person, or 
 shall, directly or indirectly, threaten to print or publish, or shall, 
 directly or indirectly, propose to abstain from printing or publishing, 
 or shall, directly or indirectly, offer to prevent the printing or pub- 
 lishing, of any matter or thing touching any other person, with intent 
 to extort any money, or security for money, or any valuable thing 
 from such or any other person, or with intent to induce any person to 
 confer or procure for any person any appointment or office of profit or 
 trust, every such offender, on being convicted thereof, shall be liable 
 to be imprisoned, with or Avithout hard labor, in the common gaol or 
 house of correction, for any term not exceeding three years : provided 
 always, that nothing herein contained shall iu any manner alter or 
 76
 
 1202 THREATS. 
 
 affect any law now in force, in respect of the sending or delivery of 
 threatening letters or writings." 
 
 Proof of the sending or delivering of the letter or writing. 
 The sending or delivering of the letter need not be imnicdiutely by 
 the prisoner to the prosecntor ; if it be proved to be sent or delivered 
 by his means ami directions it is sufficient. Upon an indictment on 
 the rej)ealed statute 27 Geo. 2, c. 15, for sending a threatening letter 
 to AV^illiam Kirby, it appeared that the threats were, in fact, directed 
 against two persons named llodwell and Brook. Kirby received the 
 letter by the post. The judges held that as Kirby was not threatened, 
 the judgment must be arrested, but they intimated that if Kirby had 
 ^p__-, *delivered the letter to Rodwell or Brook, and a jury should 
 J think that the prisoner intended he should so deliver it, this 
 would be a sending by the prisoner to Rodwell or Brook, and would 
 support a charge to that effect. R, v. Paddle, Russ. & Ry. 484. 
 Where the prisoner dropped the letter upon the steps of the prosecu- 
 tor's house, and ran away, Abbott, C. J., left it to the jury to say, 
 whether they thought the prisoner carried the letter and dropped it, 
 meaning that it should be conveyed to the prosecutor, and that he 
 should be made acquainted with its contents, directing them to find 
 him guilty if they were of opinion in the affirmative. R. v. Wag- 
 staif, Russ. & Ry. 398. So in a case upon the 9 Geo. 1, c. 22 (re- 
 pealed), for sending a letter demanding money. Yates, J., observed, 
 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 
 conveyance by which it might finally come to his hands. The fact 
 was, that the prisoner dropped the letter into a vestry-room, which the 
 prosecutor frequented every Sunday morning before the service began, 
 where the sexton picked it up, and delivered it to him. R. v. Lloyd, 
 2 East, P. 0. 1122. In a note upon this case, Mr. East says qiicere, 
 ' whether, if one intentionally put a letter in the place wdiere 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, this may not be said to be a sending to such party ? The 
 same evidence was given in R. v. Springett (2 East, P. C. 1115), in 
 support of the allegation of sending a threatening letter to the prose- 
 cutor, and no objection was taken on that ground. 2 East, P. C. 
 1123 (w). So where the evidence was that the letter was in the hand- 
 writing of the prisoner, who had sent it to the post-office, whence it 
 was delivered in the usual manner, no objection was made. R. v. 
 Hemmings, 2 East, P. C. 1116. 
 
 An indictment fx)r sending a threatening letter charged G. with 
 sending to R., and threatening to burn houses, the property of B., 
 who was R.'s tenant ; it was proved that G. dropped the letter in a 
 public road near R.'s house, that A. found it, and gave it to H., who 
 opened it, read it, and gave it to E., who showed it both to B. and R. 
 The court held that this was a sending within the statute, and that the 
 conviction was good. R. v. Grimwade, 1 Den. C. C. R._30.
 
 THREATS. 1203 
 
 Affixing a threatening letter on a gate in a public higliway, near 
 wliich tiic prosecutor would be likely to pass from his house, is some 
 evidence to go to the jury of a sending of a letter to him. Per Cress- 
 well, J., R. V. Williams,' 1 Cox, C. C. 16. 
 
 The slightly altered wording of the present statutes might perhaps 
 facilitate the proof in these cases. 
 
 ^Yhere there is no person in existence of tlie precise name which the 
 letter bears as its address, it is a cpiestion for the jury whether the party 
 into whose hands it falls was really the one for whom it was intended. 
 Per Mauie, J., 11. v. Carruthers, 1 Cox, C. C. 138. 
 
 Proof of the demand. On an indictment for demanding money 
 with menaces, there must be evidence that the prisoner demanded 
 some chattel, money, or valuable security ; but it does not appear to 
 be necessary that the demand should be made in words, if the con- 
 duct of the prisoner amount to a demand in fact. Where the pris- 
 oners seized the prosecutor, and one of them said, " Not a word, or I 
 will blow your brains out," and the other repeated the words, and 
 *appeared to be searching for some offensive weapon in his r^q^n. 
 pocket, when, upon the prosecutor seizing him, the other pris- l 
 oner ran away without anything more being said ; on an objection that 
 this was no demand (within the old statute 7 Geo. 2, c. 21, which 
 enacts that if any person shall, by menaces, or by any forcible or vio- 
 lent manner, demand any money, etc., with intent, etc.), the court said 
 that an actual demand was not necessary, and that this was a fact for 
 the jury, under all the circumstances of the case. The case was after- 
 wards disposed of on the form of the indictment. E,. v. Jackson, 1 
 Leach, 267 ; 1 East, P. C. 419 ; see 5 T. R. 169. 
 
 In another case upon the same statute, but upon an indictment for 
 an assault, with an intent to rob, the circumstances were that the pris- 
 oner did not make any demand, or offer to demand the prosecutor's 
 money ; but only held a pistol in his hand towards the prosecutor, 
 who was a coachman on his box ; Willes, C. J., said, " a man who is 
 dumb may make a demand of money, as if he stop a person on the 
 highway, and put his hand or hat into the carriage, or the like ; but 
 in this case the prisoner only held a pistol to the coachman, and said 
 to him nothing but ^ Stop.' That was no such demand of money as 
 the Act requires." R. u. Parfait, 1 East, P. C. 416. Upon this Mr. 
 East justly remarks, that the fact of stopping another on the highway, 
 by presenting a pistol at his breast, is, if unexplained by other cir- 
 cumstances, sufficient evidence of a demand to go to a jury. The 
 unfortunate sufferer understands the language but too well ; and why 
 must courts of justice be supposed ignorant of that which common 
 experience teaches to all men? 1 East, P. C. 417 ; 1 Russ. by Greav. 
 767. 
 
 A mere request, such as asking charity, without imposing any 
 conditions, does not come within the sense or meaning of the word 
 "demand." R. v. Robinson, 2 Leach, 749 ; 2 East, P. C. 1110. 
 
 The prisoner was indicted for sending a letter to the prose-
 
 1204 THREATS. 
 
 cutor, demanding money, with menaces. The letter was as fol- 
 lows : — 
 
 " Sir, as you are a gentleman and highly respected by all who know 
 you, I think it is my duty to inform you of a conspiracy. There is 
 a few young men who have agreed to take from you personally a 
 sum of money, or injure your property. I mean to say your building 
 property. In the maimer they have j)lanncd, this dreadful undertak- 
 ing would be a most serious loss. Tiicy have agreed, etc. Sir, I 
 could give you every particular information how you may preserve 
 your property and your person, and how to detect and secure the of- 
 fenders. Sir, if you will lay me a purse of thirty sovereigns upon 
 the garden hedge, close to Mr. T.'s garden gate, I will leave a letter 
 in the place to inform you when this is to take place. I hope you wont 
 attempt to seize me, when I come t(^ take up the money and leave the 
 note of information. Sir, you will find 1 am doing you a most serious 
 favor, etc., etc." Bolland, B., doubted whether this letter contained 
 either a menace or a demand, and reserved the point for the opinion of 
 the jud(>-es, who held tliat the conviction was wrong. R. v. Pickford, 
 4 C. &"?. 227, 19 E. C. L. 
 
 Where the prisoner threatened to accuse the prosecutor's son of a 
 crime unless the ])rosecutor would buy a mare of him, and there was 
 no evidence that the mare was not worth the price asked, it was held 
 to be a threat with intent to extort within section 47. E. v. Redman, 
 35 L. J., M. C. 89 ; L. R. 1 C. C. R. 12. 
 
 Where the prisoner obtained by threats a larger sum than was due 
 Q-M-, *for knife grinding, he was held guilty of larceny, R. v. Lov- 
 ^' '-J ell, 8 Q, B, D, 185 ; 50 L. J,, M, C, 91. See ante, G64. 
 
 * 
 
 Proof of the threat. Whether or not the letter amounts to a threat 
 to kill or murder, etc., within the words of the statute, is a question 
 for the jury. The prisoner was indicted (under the repealed statute 
 27 Geo. 2, c. 15) for sending a letter to the prosecutor, threatening to 
 kill or murder him. The letter was as follows : — 
 
 <' Sir — I am sorry to find a gentleman like yon would be guilty of 
 taking M'Allester's life away for the sake of two or three guineas, but 
 it will not be forgot by one who is but just come home to revenge his 
 cause. This you may depend upon ; whenever I meet you I will lay 
 my life for him in this cause. I follow the road, though I have been 
 out of London ; but on receiving a letter from M'Allester, before he 
 died, for to seek revenge, I am come to town. — I remain a true friend 
 to M'Allester. J. W." 
 
 Hotham, B., left it to the jury to consider whether this letter con- 
 tained in the terms of it an actual threatening to kill or murder, 
 directing them to acquit the prisoner if they thought the Avoi'ds might 
 import anything less than to kill or murder. The jury having f^und 
 the prisoner guilty, on a case reserved, the jndges were of opinion that 
 the conviction was right. R. v. Gird wood, 1 Leach, 142 ; 2 East, P. 
 C. 1121.
 
 THREATS. 1205 
 
 The prisoners were indicted (under the repealed statute 27 Geo. 2, 
 c. 15), for sendint^ to the prosecutor the following letter : — 
 
 " Sir — I am very sorry to acquaint you, tliat wc are determined to 
 set your mill on fire, and likewise to do all the public injury we are 
 able to do you, in all your farms and seteres [Icttings] whi(;h you are 
 
 in possession of, without you on next day release that Ann 
 
 Wood which you jnit in confinement. Sir, Ave mention in a few 
 lines, and we hope if you have any regard for your wife and family, 
 you will take our mcaniug without anytiiing further ; and if you do 
 not, we will persist as far as we possibly can ; so you may lay your 
 hand at your heart, and strive your uttermost ruin. I shall not men- 
 tion nothing more to you, until such times as you find the few lines 
 a fact with our respect. So no more at this time from me. 
 
 "R. R." 
 
 It was proved that this was in the handwriting of one of the pris- 
 oners, and that it was thrown by the other prisoner into the pros- 
 ecutor's yard, when it was taken by a servant and delivered to the 
 prosccuto]'. The prosecutor swore that he had a share in a mill three 
 years before this letter was written, but had no mill at that time ; 
 that he held a farm when the letter was written and came to his 
 hands, with several buildings upon it. On a case reserved, it was 
 agreed by the judges, that as the prosecutor had no such property 
 at the time, as the mill which Avas threatened to be burnt, that part 
 of the letter must be laid out of the question. As to the rest. Lord 
 Kenyon, C. J., and BuDer, J., were of opinion, that the letter must be 
 understood as also importing a threat to burn the prosecutor's farm- 
 house and buildings, but the other judges, not thinking that a neces- 
 sary construction, the conviction AA'as held Avrong, and a pardon 
 recommended. R. v. Jepson and Springett, 2 East, P. C. 1115. 
 
 *The prisoners Avere diarged in one count Avith sending a let- ^*Q^To 
 ter to the prosecutor, threatening to kill and murder him, and ^ 
 a second count Avith threatening to burn and destroy his house, stacks, 
 etc. The Avriting Avas as follows : — '' Starve Gut Butcher, if you don't 
 go on better great Avill be the consequence ; what do you think you must 
 alter (or) must be set on fire ; this came from London, i say your 
 nose is as long rod gffg sharp as a flint 1835. You ought to pay yoi:r 
 men." The jury negatived the threat to put the prosecutor to death, 
 but found that the letter threatened to fire his houses, etc. Lord 
 Denman, C. J., had some doubt Avhether the question ought to have 
 been left to the jnry, and Avhether the latter could be, in point of law, 
 a threatening letter to the effect found. On the case being considered 
 by the judges, they held the conviction good after verdict. R. v. 
 Tyler, 1 Moo. C. C. 428. 
 
 The rule that a threat is not of a criminal character, unless it be 
 such as may overcome the ordinary free will of a firm man, has 
 reference to the general nature of the evil threatened, and not to the 
 probable effect of the threat on the mind of the particular party ad- 
 dressed. R. V. Smith, 1 Den. C. C. R. 510 ; 19 L. J., M. C. 80.
 
 1206 THREATS. 
 
 Demanding with menaces under s. 45. Witli respect to the of- 
 fence (leiimnding property with menaces with intent to steal (s, 45), it 
 has been held that the tiireat must be of a nature to produce in a 
 reasonable man some degree of alarm or bodily fear. The degree of 
 such alarm may vary in different cases. The essential matter is that it 
 be of a nature and extent to unsettle the mind of the person on whom 
 it operates, and take away from his acts that element of free voluntary 
 action, which alone constitutes consent. The menace, although not 
 in itself of this character, may be made with such gesture and de- 
 meanor, or with such unnecessarily violent acts, or under such circum- 
 stances of intimidation as to have that effect. R. v. Walton, L. & C. 
 298. 
 
 It is no objection that the money was actually obtained, or that it 
 was obtained by a threat to accuse of an offence unknown to the law. 
 R. V. Robertson, L. & C. 483 ; 34 L. J., M. C. 35. 
 
 Proof of the threat — to accuse of infamous crimes. If the party 
 has been already accused, threatening to procure witnesses to support 
 that accusation is not within the statute. " It is one tiling to accuse, 
 and another to procure witnesses to support a charge already made ; 
 this is at most a threat to support it by evidence." Per Bayley, J., 
 R. V. Gill, York Sura. Ass. 1829. Greenwood's Stat. 191 (n), 1 Lewin, 
 C. C. 305. An indictment upon the repealed statute 4 Geo. 4. c. 54, 
 s. 5 (which used the words " threaten to accuse "), charged the pris- 
 oners with " charging and accusing J. N., and with menacing and 
 threatening to prosecute J. N." Upon an objection taken that the 
 indictment had not pursued the statute, Garrow, B. (after consulting 
 Burrough, J.), was of that opinion. If, he said, the indictment had 
 followed the statute, and it had been proved that the prisoners 
 threatened to prosecute J. N., I should have left it to the jury to 
 say whether that was not a threatening to accuse him. R. v. Abgood, 
 2 C. & P. 436, 12 E. C. L. 
 
 It was held, that the threatening to accuse under the 7 & 8 Geo. 4 
 c. 29, s. 7 (now repealed), in which the same words, " accuse or 
 threaten to accuse," were used as in the 8th section, need not have 
 *Q7Q1 *^6en a threat to accuse before a judicial tribunal, a threat to 
 -I charge before any third person being enough. R. v. Robinson, 
 2 Moo. & R. 14. 
 
 It must be shown that the accusation, made or threatened, was of the 
 nature of those specified in the statute. Where the meaning is am- 
 biguous, it is for the jury to say whether it amounts to the accusation 
 or threat imputed. 
 
 Declarations subsequently made by the prisoner are also admissible 
 to explain the meaning of a threatening letter. The ])risoner was 
 indicted for sending a letter threatening to accuse the prosecutor of 
 an infamous crime. The prosecutor, meeting the prisoner, asked him 
 what he meant by sending that letter, and what he meant by 
 " transactions Jive nights following " (a passage in the letter). The 
 prisoner said that the prosecutor knew what he meant. The pros-
 
 THREATS. 1207 
 
 editor denied it, and the prisoner afterwards said, " I mean by 
 taking indecent liberties with my person." Tins evidence having 
 been received, and the point having been reserved for the opinion of 
 the jndges, they unanimously resolved that the evidence had been 
 rightly received. 11. v. Tucker, 1 Moo. C. C. 134. And see as to 
 the necessity of particularizing in the indictment the specific charge 
 to which the accusation or threat refers, and as to the evidence 
 necessary to support such indictment. K. v, Middleditch, 1 Den. C. 
 C. R. 92. 
 
 Matter of defence. It is immaterial whether the accusation is 
 true or not, and evidence of its truth will not be admitted, though the 
 prosecutor's credit may be tested by asking him in cross-examination 
 questions suggesting his guilt. R. v. Crackncll (Willes, J.), 10 Cox, 
 C. C. 408 ; R. V. Menage, 3 F. & F. 310. See also R. v. Richards, 
 11 Cox, C. C. 43 ; but in this last case the facts were that the prisoner 
 went to the prosecutor, whom he accused of having given a disease 
 to his son, his son in fact having such a disease, and having informed 
 the prisoner of it. The prisoner at that time only demanded payment 
 of the doctor's bill, amounting to 25s. ; but some time afterwards the 
 prisoner went again to the prosecutor and threatened to give him into 
 custody unless he would compromise it by payment of 100/. Black- 
 burn, J., left evidence of the truth of the accusation to the jury, say- 
 ing, that it was material in considering with Avhat intent the prisoner 
 made the accusation. If he made the accusation at first without any 
 intent to extort money he would not be guilty, and if afterwards 
 believing in the truth of the accusation he endeavored to compromise 
 the matter by payment of money (sic), that would not render him 
 guilty of the offence charged, though he might be guilty of compound- 
 ing a felony. The report of the above case is very short, and it 
 is submitted that the additional intent of compounding a felony did 
 not prevent the existence of an intent to extort money. The intent to 
 extort money seems to have been amply proved by a threat of giving 
 the prosecutor into custody if he would not pay 100/. It seems (if 
 the report is correct) that the learned judge thought that the demand 
 for the 100/. might be wholly unconnected with the accusation which 
 had preceded it ; but it is difficult to see how that could possibly be 
 the case, as the demand was coupled with a threat to give the 
 prosecutor into custody, which must have been practically a renewal 
 of the accusation.
 
 1208 TRANSPOETATION — RETURNING FROM. 
 
 =980] 
 
 ^TRANSPORTATION— RETURNING FROM. 
 
 PAQB 
 
 Punishment , . , . 981 
 
 Reward to prosecutor , • . . , 982 • 
 
 By the 5 Geo. 4, c. 84, s. 22, " if any offender who shall have been, 
 or shall be so sentenced or ordered to be transported or banished, or 
 who shall have agreed, or shall agree, to transport or banish himself 
 or herself on certain conditions, either for life or any number of years, 
 under the provisions of this or any former Act, shall be afterwards at 
 large within any part of his majesty's dominit)ns, without some lawful 
 cause, before the expiration of the term for which such offender shall 
 have been sentenced or ordered to be transported or banished, or shall 
 have so agreed to transport or banish himself or herself, every such 
 offender, so being at large, being thereof lawfully convicted [shall 
 suffer death as in cases of felony, without the benefit of clergy] ; and 
 such offender may be tried either in the county or place where he or 
 she shall be apprehended, or in that from whence he or she was 
 ordered to be transported or banished ; and if any person shall rescue, 
 or attempt to rescue, or assist in rescuing, or in attempting to rescue, 
 any such offender from the custody of such superintendent or overseer, 
 or of any sheriff, or gaoler, or other person conveying, removing, 
 transporting, or reconveying him or her, or shall convey, or cause to 
 be conveyed, any disguise, instrument for effecting escape, or arms, 
 to such offender, every such offender shall be punishable in the 
 same manner as if such offender had been confined in a gaol or prison 
 in the custody of the sheriff or gaoler, for the crime of which such 
 offender shall have been convicted ; and whoever shall discover and 
 prosecute to conviction any such offender so being at large within this 
 kingdom, shall be entitled to a reward of 20^. for every such offender 
 so convicted." 
 
 By s. 23, in any indictment against any offender for being found 
 at large, contrary to that or any other Act now or thereafter to be 
 made, it shall be sufficient to charge and allege the order made for 
 the transportation or banishment of such offender, without charging or 
 alleging any indictment, trial, conviction, judgment, sentence, or any 
 pardon or intention of mercy, or signification thereof, of or against or 
 in any manner relating to such offender. 
 
 By s. 24, '■*■ the clerk of the court or other officer having the custody 
 of the records of the court where such sentence or order of transporta- 
 tion or banishment shall have been passed or made, shall at the re- 
 quest of any person on his majesty's behalf, make out and give a cer- 
 tificate in writing, signed by him, containing the effect and substance
 
 TRANSPORTATION — RETURNING FROM. 1209 
 
 only (omitting the formal part) of every indictment and conviction 
 *of such offender, and of the sentence or order for his or her r-^.^n-i 
 trans])ortion or banishment (not taking for tlie same? more l 
 tlian i)S. 8c/.), which certificate shall be snllicicnt evidence of the con- 
 viction and sentence, or order for the trans j>ortat ion. or banishment of 
 such offender ; and every such certificate, if made by the clerk or 
 officer of any court in Great Britain, shall be received in evidence, 
 upon proof of the signature and oflicial character of the person sign- 
 ing the same ; and every such certificate, if made by the clerk or offi- 
 cer of any court out of Great Britain, shall be received in evidence, 
 if verified by the seal of the court, or by the signature of the judge, 
 or one of the judges of the court, -without further proof." 
 
 The above })rovisions noAv applv to sentences for penal servitude. 
 See 16 cfe 17 Met. c. 99, s. 6 ; and 20 & 21 Vict. c. 3. 
 
 Upon a prosecution for this offence, the prosecutor must prove, 1, 
 the conviction of the offender, by prciducing a certificate according to 
 the above section of the statute ; 2, the sentence or order of transpor- 
 tation in like manner. The signature and official character of the 
 person signing the certificate must be proved. If the certificate is 
 made by the clerk or officer of a court out of Great Britain, it is ad- 
 missible when verified by the seal of the court or the signature of the 
 judge. The "effect and substance" of the former conviction must 
 be stated in the certificate ; merely stating that the prisoner Mas con- 
 victed "of felony" is not sufficient. R. v. Sutcliffe, Buss. & By. 
 469 (/() ; R. V. Watson, Id. 468. 3, Proof must then be given of the 
 prisoner's identity ; and 4, that he was at large before* the expiration 
 of his term. 
 
 On the trial of an indictment against a person for being at large 
 \vitliout lawful cause before the expiration of his term of transpor- 
 tation, a certificate of his former conviction and sentence was put in : 
 it j)urported to be that of J. G., "deputy clerk of the peace " for the 
 county of L., " and c;lerk of the courts of general quarter sessions of the 
 peace holden in and for the said county, and having the custody of the 
 records of the courts of general quarter sessions of the peace, holden in 
 and for the said county." It was jjrovcd that Mr. H. was clerk of 
 the peace at L., and that he had three deputy partners, of whom J. G., 
 who had signed the certificate, was one, and that each of them acted 
 as clerk of the peace ; and that for forty years they had kept the 
 sessions' records at their office. Under these circumstances, Collman, 
 J., held that the conviction and sentence were sufficiently proved. R. 
 V. Jones, 2 C. & K. 524, 61 E. C. L.; see also R. v. Parsons, L. R., 
 1 C. C. R. 24. In R. V. Finney, 2 C. & K. 774, 61 E. C. L., Alder- 
 son, B., held, that the fact of the former sentence being in force at the 
 time the prisoner was found at large, was sufficiently proved by the 
 certificate of his conviction and sentence, the judgment not having 
 been reversed, although on the face of such certificate it appeared that 
 the sentence, viz., transportation for fourteen years, was one which 
 could not have been inflicted on him, for the offence of Avhich, accord- 
 ing to the certificate, he had been convicted, viz., larceny.
 
 1210 TRANSPORTATION — RETURNING FROM. 
 
 Punishment. By the 4 & 5 Will. 4, c. 67, reciting the 22ncl sec- 
 tion of tho 5 Geo. 4, c. 84, it is enacted, "that every person convicted 
 of any ortence above specified in the said Act of the 5th year of the 
 reign of his late majesty King George 4, or of aiding or abetting, coun- 
 selling, or pi'ocuring the commission thereof, shall be liable to be 
 *QS91 *traiisported beyond the seas for his or her natural life, and 
 "'-' ])rcviously to transportation shall be imprisoned, with or with- 
 out hard labor, in any common gaol or house of correction, prison, or 
 penitentiary, for any term not exceeding four years." 
 
 Reward to prosecutor. The judge before whom a prisoner is tried 
 for returning from transportation has power to order the county treas- 
 urer to pay tho ])rosecutor the reward under the act. E,. v. Emmons. 
 2 Moo. &R. 279.
 
 TREES AXD OTHER VEGETABLE PRODUCTIONS. 1211 
 
 *TREES AND OTHER VEGETABLE PRODUCTIONS. r*983 
 
 PAGE 
 
 Stealing or destroying trees, shrul).s, etc., in a pleasure ground of the 
 
 value of 1/., or elsewhere of the value of 5/ 983 
 
 Stealing or destroying with intent to steal trees, shrubs, etc,, wher- 
 ever growing, t<j the value of li. 983 
 
 Stealing or tlestroying any jilant, root, or vegetable production . 984 
 
 Setting fire to trees and other vegetable produce 984 
 
 Setting tire to stacks of corn, wood, etc 984 
 
 Injuring hopbinds 984 
 
 Injuiing trees, shrubs, etc., in a pleasure ground to the value of 1^. 
 
 and upwards 984 
 
 Injuring trees, shrubs, etc., wheresoever growing, to the value of l*. 985 
 
 Injuriug vegetable productions in a garden 985 
 
 Stealing or destroying with intent to steal trees, shrubs, etc., 
 in a pleasure ground of the value of 1/., or elsewhere of the 
 value of 5^. By the 24 t& 25 Vict. c. 96, s. 32, " wliosoevor shall 
 steal, or shall cut, break, root up, or otherwise destroy or clainage with 
 intent to steal, the whole or any part of any tree, sapling, or shrub, or 
 any underwood, respectively growing in any park, pleasure ground, 
 garden, orchard, or avenue, or in any ground adjoining or belonging 
 to any dwelling-house, shall (in case the value of the article or articles 
 stolen, or the amount of the injury done, shall exceed the sum of one 
 pound), be guilty of felony, and being convicted thereof shall be liable 
 to be punished as in the case of simple larceny ; and whosoever shall 
 steal, or shall cut, break, root up, or otlierwise destroy or damage with 
 intent to steal, the whole or any part of any tree, sapling, or shrub, or 
 any underwood, respectively gro^ving elsewliere than in any of the 
 situations in this section before mentioned, shall (in case the value of 
 the article or articles stolen, or the amount of the injury done, shall 
 exceed the sum of five pounds) be guilty of felony, and being con- 
 victed thereof shall be liable to be punished as in the case of simple 
 larceny." As to the meaning of the words " adjoining " or "belong- 
 ing to," see R. v. Hodges, ante, p. 530. 
 
 Stealing or destroying with intent to steal trees, shrubs, etc., 
 wherever growing, to the value of Is. By s. 33, " whosoever shall 
 steal, or siiall cut, In'cak, root up, or otherwise destroy or damage with 
 intent to steal, the wliole or any jmrt of any tree, sapling, or shrub, 
 or any underwood, wheresoever the same may be respectively growing, 
 the stealing of such article or articles, or the injury done, being to the 
 amount of a shilling at the least, shall, on conviction thereof before a 
 justice of the peace, forfeit and pay, over and above the value of the 
 article or articles stolen, or the amount of the injury done, such sum 
 of money not exceeding five pounds as to the justice shall seem meet; 
 *and whosoever having been convicted of any such offence, t^qq i 
 either against this or any former Actof ])nrliament, shall after- L 
 wards commit any of the said offences in this section belbre mentioned,
 
 1212 TREES AND OTHER VEGETABLE PRODUCTIONS. 
 
 and shall be convicted thereof in like manner, shall for sneli second 
 otlence be committed to the common gaol or house of correction, there 
 to be kept to hard labor for such term not exceeding twelve months as 
 the convicting justice shall think fit; and whosoever, having been 
 twice convicted of any such offence (whether both or either of such 
 convictions shall have taken place before or after the passing of this 
 Act), shall afterwards commit any of the offences in this section before 
 mentioned, shall be guilty of felony, and being convicted thereof 
 shall be liable to be punished in the same manner as iu the case of 
 simple larceny." 
 
 Stealing or destroying any plant, root, or vegetable pro- 
 duction. By s. 36, "whosoever shall steal or shall destroy or damage 
 with intent to steal, any plant, root, fruit, or vegetable production 
 growing in any garden, orchard, pleasure ground, nursery ground, 
 hothouse, greenhouse, or conservatory, shall, on conviction thereof be- 
 fore a justice of the peace, at the discretion of the justice, either be 
 committed to the common gaol or house of correction, there to be im- 
 prisoned only, or to be imprisoned and kept to hard labor for any 
 term not exceeding six months, or else shall forfeit and pay, over 
 and above the value of the article or articles so stolen, or the 
 amount of the injury done, such sum of money not exceeding 201. as 
 to the justice shall seem meet ; and whosoever having been convicted 
 of any such offence, either against this or any former Act of parlia- 
 ment, shall afterwards commit any of the offences in this section be- 
 fore mentioned, 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." 
 
 Setting fire to trees and other vegetable produce. See 24 & 
 25 Vict. c. 97, s. 16, siqa-a, p. 286. 
 
 Setting fire to stacks of corn, wood, etc. See 24 & 25 Vict. 
 c. 97, s. 17, supra, p. 2<S7. 
 
 Injuring hopbinds. By the 24 & 25 Vict. c. 97, s. 19, "whoso- 
 ever shall unlawfully and maliciously cut or otherwise destroy any 
 hopbinds grov/ing on poles in any plantation of hops shall l)e guilty 
 of felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be kept in penal servitude for any term not exceeding 
 fourteen and not less than three [now five] years, or to be imprisoned 
 for any term not exceeding two years, with or without hard labor, and 
 with or without solitary confinement, and, if a male under the age of 
 sixteen years, with or Avithout whipping." 
 
 Injuring trees in a pleasure ground to the value of 1/. and 
 upwards. By s. 20, "whosoever shall unlawfully and maliciously 
 cut, break, bark, root up, or otherwise destroy or damage the whole or 
 any part of any tree, sapling, or shrub, or any underwood, growing in
 
 TEEES AND OTHER VEGETABLE PRODUCTIOXS. 1213 
 
 any park, pleasure ground, garden, orchard, or avenue, or in any ground 
 adjoining or belonging to any dwelling-house (in ease the amount of the 
 injury done shall exceed the sum of one ])ound), shall he guilty of 
 *felony, and being convicted thereof shall be liable, at the dis- r.-(:qor 
 cretion of the court, to be kept in penal servitude for the term L ' ' ' 
 of three [now five] years, or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labor, and with or without 
 solitary confinement, and, if a male under the age of sixteen years, 
 with or without whij)ping." 
 
 By s. 21, " whosoever shall unlawfully and maliciously cut, break, 
 bark, root up, or otherwise destroy or damage the whole or any part 
 of any tree, sapling, or shrub, or any underwood growing elsewhere 
 than in any park, pleasure ground, garden, orchard, or avenue, or in 
 any ground adjoining to or belonging to any dwelling-house (in case 
 the amount of injury done shall exceed the sum of five pounds), shall 
 be guilty of felony, and being convicted thereof shall be liable, at the 
 discretion of the court, to be kept in penal servitude for the term of 
 three years, or to be imprisoned for any term not exceeding two years, 
 with or without hard labor, and with or»without solitary confinement, 
 and, if a male under the age of sixteen years, with or without whip- 
 ping." 
 
 Injuring trees, etc., wheresoever growing, to the amount of Is. 
 By s. 22, " whosoever shall unlawfully and maliciously cut, break, bark, 
 root up, or otherwise destroy or damage the whole or any part of any 
 tree, sapling, or shrub, or any underwood, wheresoever the same may 
 be growing, the injury done being to the amount of one shilling at 
 the least," is for the first and second offence made liable to conviction 
 before a justice of the peace ; "and whosoever liaving been twice con- 
 victed of any such offence (whether both or either of such con- 
 victions shall have taken place before or after the passing of this Act) 
 shall afterwards commit any of the said offences in this section before 
 mentioned shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the court, to be imprisoned 
 for any terra not exceeding two years, with or without hard labor, 
 and with or without solitary confinement, and, if a male under the age 
 of sixteen, with or without whipping." 
 
 Injuring vegetable productions in gardens. By s. 23, "whoso- 
 ever shall unlawfully and maliciously destroy, or damage with intent 
 to destroy, any plant, root, fi'uit, or vegetable production, growing in 
 any garden, orchard, nursery ground, hothouse, greenhouse, or con- 
 servatory, shall, on conviction thereof before a justice of the peace, 
 at the discretion of the justice, either be committed to the common 
 gaol or house of correction, there to be imprisoned only, or to be 
 imprisoned and kept to hard labor, for any term not exceeding six 
 months, or else shall forfeit and pay, over and above the amount of 
 the injury done, such sum of money not exceeding twenty pounds as 
 to the justice shall seem meet ; and whosoever, having been convicted
 
 1214 TREES AXD OTHER VEGETABLE PRODUCTIONS. 
 
 of such offence, either against this or any former Act of parliament, 
 shall afterwards commit any of the said offences in this section before 
 mentioned, shall be guilty of felony, and being convicted thereof shall 
 be liable, at tlie discretion of the court, to be kept in penal servitude 
 for the term of three [now live] years, or to be imprisoned for any 
 term not exceeding two years, with or without hard labor, and with 
 or without solitary coniinement, and, if a male under the age of sixteen 
 years, with or without wliipping." 
 
 Upon the repealed statute 9 Geo. 1, c. 22, s. 1, the words of which 
 
 *Q8r1 *^^^^*® *' shall cut down or otherwise destroy," it was held that 
 
 J the cutting down of fruit trees, though such cutting down did 
 
 not destroy the trees, was within the Act. R. v. Taylor, lluss. & Ry. 
 
 373. 
 
 The actual injury to the trees themselves must exceed the value 
 mentioned in the section. Where, therefore, the prisoner was in- 
 dicted for having done damage to trees in a hedge amounting to 51., 
 and it appeared that the injury to the trees amounted to 1/. only, but 
 that it Avould be necessary to stub up the old hedge, and replace 
 it, the expense of which Avoiild be 41. 14s. more, the conviction was 
 held to be wrong. R. v. Whiteman, Dears. C. C. 353; 23 L. J., 
 M. C. 120. 
 
 It is sufficient to prove that the aggregate value of the trees cut at 
 one time exceeds the value laid in the indictment. E,. v. Shepherd, 
 L. R. 1, C. C. R. 118 ; 37 L. J., M. C. 45.
 
 TKUSTEES. — TUHNPIKE GATES. 1215 
 
 *TRUSTEES— FEAUDS BY. [*987 
 
 Definition of term trustee. By the 24 & 25 Vict. c. 96, s. 1, " the 
 term ' trustee ' shall mean a trustee on some expressed trust, created by 
 some deed, will, or instrument in writing:;, and shall include the heir, 
 or personal representative of any such trustee, and any other person 
 upon or to whom the duty of such trust shall have devolved or come, 
 and also an executor and administrator, and an official manager, 
 assignee, liquidator, or other like officer acting under any present 
 or future Act relating to joint stock companies, bankruptcy, or insol- 
 vency." 
 
 Trustees fraudulently disposing of property. By s. 80, " who- 
 soever, being a trustee of any ])roperty for the use or benefit, either 
 wholly or partially, of some other person, or for any public or chari- 
 table purpose, shall, with intent to defraud, convert or appropriate the 
 same or any part thereof to or for his own use or benefit, or the use 
 or benefit of any person other than such person as aforesaid, or for 
 any purpose other than such public or charitable purpose as aforesaid, 
 or otherwise dispose of or destroy such property, or any part thereof, 
 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." A pro- 
 viso follows, that no prosecution shall be commenced without the 
 sanction of some judge or the Attorney-General. The punishment 
 is, penal servitude not exceeding seven years and not less than three 
 [now. five] years, or imprisonment not exceeding two years, with or 
 without hard labor, and with or without solitary confinement. See s. 
 75, supr-a, p. 278. 
 
 As to the meaning of the word " property," see 24 & 25 Vict. c. 96, 
 s. 1, supra, p. 640. 
 
 As to what persons are within the section, see R. v. Fletcher, 31 L. 
 J., M. C. 206. 
 
 TURNPIKE GATES— INJURIES TO. 
 
 Destroying turnpike gates, toll houses, etc. By the 24 & 25 Vict. 
 
 c. 97, s. 34, "whosoever shall unlawfully and maliciously throw 
 down, level, or otherwise destroy, in whole or in part, any turnpike 
 gate or toll bar, or any wall, chain, rail, post, bar, or other fence 
 belonging to any turnpike gate or toll bar, or set up or erected to 
 prevent passengers passing by without jmying any toll directed to be 
 paid by any Act of parliament relating thereto, or any house, build- 
 ing or ^veighing engine erected for the better collection, ascertain- 
 ment, or security of any such toll, shall be guilty of a misdemeanor.
 
 1216 WOEKS OF AKT. 
 
 *988] nVORKS OF AET. 
 
 Injuring -works of art. By the 24 & 25 Vict. c. 97, s, 39, " who- 
 soever shall unlawfully and maliciously destroy or damage any book, 
 manuscript, picture, print, statue, bust, or vase, or any otiier article 
 or thing kept for the purposes of art, science, or literature, or as an 
 object of curiosity, in any museum, gallery, cabinet, library, or other 
 repository, which museum, gallery, cabinet, library, or other reposi- 
 tory is either at all times or from time to time open for the admission 
 of the public or of any considerable number of persons to view the 
 same, either by the permission of the proprietor thereof, or by the 
 payment of money before entering the same, or any picture, statue, 
 monument, or other memorial of the dead, painted glass, or other 
 monument or work of art, in any church, chapel, meeting-house, or 
 other place of divine worship, or in any building belonging to the 
 Queen, or to any county, riding, division, city, borough, poor-law 
 union, parish or place, or to any university, or college, or hall of any 
 university, or to any inn of court, or in any street, square, church- 
 yard, burial-ground, public garden or ground, or any statue or 
 monument exposed to public view, or any ornament, railing, or fence 
 surrounding such statue or monument, shall be guilty of a misde- 
 meanor, and being convicted thereof shall be liable to be imprisoned 
 for any term not exceeding six months, with or without hard labor, 
 and, if a male under the age of sixteen years, with or without 
 whipping."
 
 WOUNDING. 1217 
 
 *WOUNDING. [*989 
 
 Wounding with intent to murder. See 24 & 25 Vict. c. 100, s. 
 11, sup7'a, tit. " Murder, attempts to commit." 
 
 Wounding with intent to do grievous bodily harm. See 24 & 25 
 Vict. c. 190, s. 18, supra, p. 609. 
 
 Unlawfully wounding. By the 24 & 25 Vict. c. 100, s. 20, " who- 
 soevei' shall unlawfully and maliciously Avound, or inflict any griev- 
 ous bodily harm upon any other person, either with or without any 
 weapon or instrument, shall be guilty of a misdemeanor, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for the term of three [now five] years, or to 
 be imprisoned for any term not exceeding two years, with or without 
 hard labor." 
 
 Power to convict of unlawfully wounding on indictment for fel- 
 ony. By the 14 & 15 Vict. c. 19, s. 5, " if upon the trial of any in- 
 dictment for any felony, except murder or manslaughter, where the in- 
 dictment shall allege that the defendant did cut, stab, or M'ound any 
 person, the jury shall be satisfied that the defendant is guilty of the 
 cutting, stabbing, or wounding, charged in such indictment, but are not 
 satisfied that the defendant is guilty of the felony charged in such in- 
 dictment, then, and in every such case, the jury may acquit the de- 
 fendant of such felony, and find him guilty of unlawfully cutting, 
 stabbing, or wounding, and thereupon such defendant shall be liable 
 to be punished in the same manner as if he had been convicted 
 upon an indictment for the misdemeanor of cutting, stabbing, or 
 wounding." 
 
 Wounding cattle. See 24 & 25 Vict. c. 97, s. 40, supra, p. 389. 
 
 ■ Proof of wounding. Where the prisoner is indicted for woiinding, it 
 must appear that the skin Avas broken ; a mere contusion is not suflicient. 
 Where the prisoner had struck the prosecutor with a bludgeon, and the 
 skin was broken, and the blood flowed ; Patteson, J., said, that it was 
 not material what the instrument used was, and held the case to be 
 within tlie statute. II. v. Payne, 4 C. & P. 558, 19 E. C. L. In a case 
 which occurred before Littledale, J., on the Oxford circuit, he directed 
 the prisoner to be acquitted, it not appearing that the skin was broken 
 or incised. Anon, cifed 1 Moo. C. C. 280. See Moriarty v. Brooks, 
 6 C. & P. 684, 25 E. C. L. But in a case which came soon afterwards 
 before Parke, J., Avhere there was no proof of an incised wound, the 
 77
 
 1218 WOUNDING. 
 
 learned judge told the jury that he was clearly of opinion that it need 
 not be an incised wound, for that he believed the Act of Parliament 
 -, *(9 Geo. 4) liad introduced the word ivound for the purpose of 
 J destroying the distinction, wliich, as the words in the old statute 
 were only stab or cut, it ^vas always necessary to make, between the 
 contused and incised wounds, and that it was not necessary, either that 
 the skin should be broken or incised, or that a cutting instrument 
 should be used, for that otherwise the thing intended to be remedied 
 by the new Act should remain as before. The prisoner being found 
 guilty, the case was reserved for the decision of the judges, amongst 
 whom there was considerable discussion and difference of opinion. Lord 
 Tenterden said he thought the word wound was not introduced to 
 cure the difficulty, whether a cutting or stabbing instrument was 
 used. In this case, from the continuity of the skin not beiug broken, 
 it was thought by all, except Bay ley, B., and Parke, J., that there 
 was no wound within the Act, and that the conviction was wrong. R. 
 V. Wood, 1 Moo. C. C. 278 ; 4 C. & P. 381, 19 E. C. L. So a scratch 
 is not a wound within the statute ; there must at least be a division of 
 the external surfoce of the body. Per Parke, B., R. v. Beckett, 1 Moo. 
 & R. 52(5. So it was held by Bosanquet, Coleridge, and Coltman, JJ., 
 that to constitute a wound it is necessary that there should be a sepa- 
 ration of the whole skin, and a separation of the cuticle is not sufficient. 
 R. V. M'Loughlin, 8 C. & P. 635, 34 E. C. L. But where a blow 
 given with a hammer broke the lower jaw in two places, and the skin 
 was broken internally, but not externally, and there was not much 
 blood ; Lord Denman, C. J., and Parke, J., held this a wounding 
 within the Act. R. v. Smith, 8 C. & P. 173, 34 E. C. L. Where 
 the prisoner was indicted under the 9 Geo. 4, for cutting and wounding 
 the prosecutor with intent, etc., and it appeared that he threw a ham- 
 mer at him, which struck him on the face, and broke the skin for an 
 inch and a half, the prisoner being convicted, a case was reserved for 
 the opinion of the judges, whether the injury could be considered either 
 as a stab, cut, or wound, within the true construction of the statute, 
 and it was unanimously resolved by those who \vere present, that the 
 case amounted to a ivound within the statute, and that the conviction 
 was right. R. v. Withers, 1 Moo. C. C. 294 ; 4 C. & P. 446, 19 E. 
 C. L. Where the prisoner struck the prosecutor on the outside of his 
 hat with an air-gun, and the hard rim of the hat wounded the pros- 
 ecutor, but the gun did not come directly in contact with his head ; the 
 judges held this to be a wounding within the statute. R. v. Sheard, 
 7 C. & P. 846, 32 E. C. L.; 2 Moo. C. C. 13. 
 
 Throwing vitriol in the face of the prosecutor was held not to be a 
 wounding within the repealed statute 9 Geo. 4, c. 31, s. 12. R. v. 
 Murrow, 1 Moo. C. C. 456. 
 
 In R. V. Gray, Dears. & B. C. C. 303 ; 26 L. J., M. C. 203, the 
 court of criminal appeal thought that the exposure of a child in 
 an open field, thereby causing congestion of the lungs and heart, 
 there being no lesion of any part of the child's body, was not a 
 wounding.
 
 WOUNDING. 1219 
 
 "Where the intent is not proved, the defendant may be found guilty 
 of unlawfully wounding under 14 & 15 Vict. c. 19, s. 5, supra, and 
 where the indictment is for unlawfully wounding, he may be found 
 guilty of a common assault, ante, p, 309. Where, however, the in- 
 dictment merely charged a " felonious shooting," it was held by 
 Bo wen, J., that it was not comj^etent to the jury to convict of unlaw- 
 fully wounding, it not being alleged in the indictment that the pris- 
 oner did " cut, stab, or wound." 11. v. Miller, 14 Cox, C. C. 356.^ 
 
 Proof of malice. Although the 14 & 15 Vict. c. 19, s. 5, r*QQ-i 
 cited supra, states in effect that if the jury think the prisoner •- 
 had no felonious intent, they may find him guilty of " unlawful 
 wounding " merely, yet it has been decided that such unlawful 
 wounding must be a malicious wounding within the terms of 24 
 & 25 Vict. c. 100, s. 20, suj^ra. R. v. Ward, L. R. 1 C. C. R. 356 ; 
 41 L. J., M. C. 69. As to what is necessary to constitute malice, see 
 ante, pp. 22, 23. 
 
 As to the form of indictment, see supra, tit., " Murder, attempts 
 to commit." 
 
 1 Ward V. State, 56 Ga. 408.
 
 1220 WKITTEN II>STRUMENTS. 
 
 = 992] 
 
 ♦WRITTEN INSTRUMENTS. 
 
 Larceny or destruction of valuable securities and documents of title 9i)2 
 
 Form of indictment , . • , , 992 
 
 Stealinj,', injuring, or concealing wills , 992 
 
 Eti'ect of disclosure 993 
 
 Stealing records or other legal documents • . . , . 993 
 
 "What instruments are within the statute ...... 993 
 
 Taking with a fraudulent purpose ...,,,, 996 
 
 Larceny or destruction of valuable securities and documents 
 
 of title. By the 24 & 25 Vict. c. 96, s. 27, " whosoever sliall steal, 
 or shall for any fraudulent purpose destroy, cancel, or obliterate the 
 whole or any part of any valuable security, other than a document of 
 title to lands, shall be guilty of felony, of the same nature and in the 
 same degree and punishable in the same manner as if he had stolen 
 any chattel of like value with the share, interest, or deposit to which 
 the security so stolen may relate, or with the money due on the security 
 so stolen, or secured thereby and remaining unsatisfied, or with the 
 value of the goods or other valuable thing represented, mentioned, or 
 referred to in or by the security." 
 
 By s. 28, " whosoever shall steal, or shall for any fraudulent pur- 
 pose destroy, cancel, obliterate, or conceal the whole or any part of 
 any document of title to lands, shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 kept in penal servitude for the term of three [now five] years, or to 
 be imprisoned for any term not exceeding two years, with or without 
 hard labor, and with or without solitary confinement." 
 
 See also as to the fraudulent concealment of documents of title, 
 supra, p. 422, and the suppression of documents or facts with intent 
 to conceal the title of any person, or to substantiate a false claim imder 
 the Land Title and Transfer of Land in England Act (38 & 39 Vict, 
 c. 87). 
 
 Form of indictment. By the same section, " in any indictment 
 for any such offence relating to any document of title to lands, it shall 
 be sufficient to allege such document to be or to contain evidence of the 
 title or of part of the title of the person or of some one of the persons 
 having an interest, whether vested or contingent, legal or equitable, in 
 the real estate to which the same relates, and to mention such real 
 estate or some part thereof." 
 
 Stealing, injuring, or concealing wills. By s. '29, " whosoever 
 shall, either during the life of the testator or after his death, steal, 
 or for any fraudulent purpos" destroy, cancel, obliterate, or conceal 
 the whole or any part of any will, codicil, or other testamentary
 
 WRITTEN INSTRUMENTS. 1221 
 
 *instrument, whether the same shall relate to real or personal r^jcngo 
 estate, or to both, shall be guilty of felony, and being convieted L 
 thereof, shall be liable, at the diseretion of the court, to be kept in 
 penal servitude for life or for any term not less than three [now 
 iivc] years, or to be imprisoned for any term not exceeding two years, 
 with or without hard labor, and with or without solitary confinement ; 
 and it shall not in any indictment for such oiFence be necessary to 
 allege that such will, codicil, or other instrument, is the property of 
 any person." 
 
 Effect of disclosure. By the same section, " no person shall be 
 liable to be convicted of any of the felonies in this and the last pre- 
 ceding section mentioned by any evidence whatever in respect of any 
 act done by him, if he shall at any time previously to his being 
 charged with such offence have first disclosed such act on oath 
 in consequence of any compulsory process of any court of law or 
 equity in any action, suit, or proceeding which shall have been 
 bond fide instituted by any party aggrieved, or if he shall have 
 first disclosed the same in any compulsory examination or deposi- 
 tion before any court upon the hearing of any matter in bankruptcy 
 or insolvency." 
 
 Stealing records or other legal documents. By s. 30, " whoso- 
 ever shall steal, or shall for any fraudulent purpose take from its place 
 of deposit for the time being, or from any person having the lawful 
 custody thereof, or shall unlawfully and maliciously cancel, obliterate, 
 injure, or destroy the whole or any part of any record, writ, return, 
 panel, process, interrogatory, deposition, affidavit, rule, order, or 
 w^arrant of attorney, or of any original document whatsoever of or 
 belonging to any court of record, or relating to any matter, civil or 
 criminal, begun, depending, or terminated in any such court, or of 
 any bill, petition, answer, interrogatory, deposition, affidavit, order, 
 or decree, or of any original document whatsoever of or belonging to 
 any court of equi1:y, or relating to any cause or matter begun, de- 
 pending, or terminated in any such court, or of any original docu- 
 ment in anywise relating to the business of any office or employment 
 under her Majesty, and being or remaining in any office appertaining 
 to any court of justice, or in any of her Majesty's castles, palaces, or 
 houses, or in any government or public office, shall be guilty of felony, 
 and being convicted thereof shall be liable, at tlie discretion of the 
 court, to be kept in penal servitude for the term of three [now five] 
 years, or to be imprisoned for any term not exceeding two years, with 
 or without hard labor, and with or without solitary confinement ; and 
 it shall not in any indictment for such offence be necessary to allege 
 that the article in respect of which the offence is committed is the 
 property of any person." 
 
 What instruments are within the statute. At common law, lar- 
 ceny could not be committed of deeds or other instruments concerning
 
 1222 WRITTEN INSTRUMENTS. 
 
 land. 1 Hale, P. C. 510. Thus it was held, that stealing a com- 
 mission, directed to commissioners to ascertain boundaries, was not 
 a felony, the commission concerning the realty. II. v. Westbeer, 1 
 Leach, 12; 2 East, P. C. 59(3; 2 8tr. 1131. But the parchment 
 upon which the records of a court of justice are inscribed, if it do not 
 relate to the realty, may be the subject of larceny. R. v. \Valker, 
 *QQ4.1 *^ Moo. C. C. 155. Bonds, bills, and notes which concern 
 -• mere choses in action, were also at common law held not to be 
 such goods whereof felony might be committed, being of no intrinsic 
 value, and not importing any property in possession of the party from 
 whom they are taken. 4 Bl. Com. 234 ; 2 East, P. C. 597.' It was 
 even held, that larceny could not be committed of the box in which 
 charters concerning the land were held. 3 Inst. 109 ; 1 Hale, P. C. 
 510. Mortgage deeds being subsisting securities for the payment of 
 money, are " choses in action," and not " goods and chattels." Where, 
 therefore, the prisoner was indicted for a burglary, in breaking into a 
 house at night, with intent to steal the " goods and chattels " therein, 
 and the jury found that he broke into the house with intent to steal 
 mortgage deeds only, the conviction was quashed. " This was ruled," 
 said Jervis, C J., in delivering judgment, "in R. v. Calye, 4 Coke, p. 
 viii. 32 ; 3 Inst. 109 ; and Chanel v. Robotam, Yelv. 68, where it 
 was decided that a bond could not be included under the words bona 
 et Gcitalla, though it was objected that the parchment and box were such, 
 and might pass by that name, yet, forasmuch as the debt included 
 and wrote upon it is the principal, the words of the grant ought to 
 comprehend the name of the principal." R. v. Powell, 2 Den. C. C. 
 R. 403. A policy of insurance is not a chattel, R. v. Tatlock, ante, 
 p. 281. 
 
 It was held that a jjawnbroker's ticket was a " warrant for the 
 delivery of goods " which a prisoner may be convicted of stealing 
 under the 7 & 8 Geo. 4, c. 29, s. 5 (repealed). R. v. Morrison, 1 Bell, 
 C. C. 158. 
 
 AYhether the paid re-issuable notes of a banker can be properly 
 described as valuable securities, does not appear to be well settled ; the 
 safe mode of describing them is to treat them as goods and chattels. 
 The prisoner was indicted in several counts for stealing a number of 
 promissory notes, and in others for stealing so many pieces of paper, 
 stamped with a stamp, etc. It appeared that the notes consisted of 
 country bank notes, which, after being paid in London, were sent 
 down to the country to be re-issued, and ^veve stolen on the road. It 
 was objected that these were no longer promissory notes, the sums of 
 money mentioned in them having been paid and satisfied, and that 
 the privilege of re-issuing them, possessed by the bankers, could not 
 be considered the subject of larceny. The judges, however, held 
 that the conviction on the counts for stealing the paper and stamps 
 was good, the paper and stamps, and particularly the latter, being 
 
 * There is no legal presumption for the purposes of a criminal prosecution that 
 bank notes, checks, bills of exchange and other securities for money are worth the 
 sums which they represent or any sum. People v. Donald, 48 Mich. 491.
 
 WRITTEN INSTRUMENTS. 1223 
 
 valuable to the owners. R. v. Clark, Russ. & Ry. 181 ; 2 Leach, 
 1036 ; 1 Moo. C. C. 222. In a later similar case, where re-issuable 
 bankers' notes (paid in London) had been stolen from one of the 
 partners on a journey, the prisoner having been convicted upon an 
 indictment charging him in different counts with stealing valuable 
 securities called promissory notes, and also with stealing so many 
 pieces of paper stamped with a stamp, etc., the judges held the con- 
 viction right. Some of them doubted whether the notes could prop- 
 erly be called " valuable securities ;" but if not, they all thought they 
 were goods and chattels. R. v. Vyse, 1 Moo. C. C. 218. "In R. v. 
 Vyse," said Jervis, C. J., in passing judgment in R. v. Powell, 2 Den. 
 C. C. R. 403, " the notes had been paid, and though re-issuable, were 
 not at the time of the larceny securities for the payment of money. 
 The paper and stamp on which they were written were, therefore, 
 properly described as goods and chattels." 
 
 *Lord Ellenborough is said to have ruled that it was not a r^qoK 
 felony under 2 Geo. 2, c. 25, to steal bankers' notes which were L 
 completely executed, but which had never been in circulation, because 
 no money was due upon them ; Anon. 4 Bl. Com. by Christian, 234 
 (n) ; but upon this decision it has been observed, that such notes 
 would probably be deemed valuable property and the subject of lar- 
 ceny, at common law. 2 Russ. Cri. 230 (v), 5th ed. See R. v. Clark 
 and R. ?;. Vyse, supra. 
 
 If the halves of promissory notes are stolen, they should be 
 described as goods and chattels. R. v. Mead, 4 C. & P. 535, 19 
 E. C. L. 
 
 An incomplete bill of exchange or promissory note is not as such a 
 valuable security so as to be the subject of larceny. In consequence 
 of seeing an advertisement, A. applied to the prisoner to raise money 
 for him. The latter promised to procure 5,000/., and producing ten 
 blank 10s, stamps, induced A. to write an acceptance across them. 
 The prisoner then took them, without saying anything, and after- 
 wards filled them upas bills of exchange for 500/. each, and put them 
 into circulation. It was held (at the Old Bailey), that these were 
 neither " bills of exchange," " orders for the payment of money," nor 
 " securities for money ;" and that a charge of larceny for stealing the 
 paper and stamps could not be sustained, the stamps and paj)er not 
 being the property of A., or in his possession. R. v. Minter Hart, 
 6 C. & P. 106, 25 E. C. L.; see also R. v. Phipoe, 2 Leach, 673 ; 2 
 East, P. C. 599, aide, p. 933. Where the defendants were indicted 
 for having by threats induced the prosecutor to sign the following 
 document, " I hereby agree to pay you 100/. to prevent any action 
 against me," it was held that, although not negotiable, yet that it was 
 a valuable security, because, if the transaction had been genuine, it 
 would have been a valid agreement upon which the prosecutor might 
 have been sued. R. v. John, 13 Cox, C. C. 100. 
 
 A cheque upon a banker, drawn more than twenty miles from 
 London, and not stamped, has been held not to be a hill or draft, 
 within the repealed statute 7 Geo. 3, c. 50; being of no value, nor in
 
 1224 WRITTEN INSTRUMENTS. 
 
 any way availal)le. R. v. Poolcy, Russ. & Ry. 12. So a cheque on a 
 banker, made payable to A. 15., and not to bearer, not being stamped, 
 has been decided by the judges not to be a valuable security within 
 the meaning of the repealed statute 7 & 8 Geo. 4, c. 29. the banker 
 being subject to a penalty of 50/. by paying it. R. v. Yates, 1 Moo. 
 C. C. 170. But where A. was indicted in one count for stealing a 
 cheque, and in another count fur stealing a piece of paper ; and it 
 was proved that the Great Western Raihvay Company drew in 
 London a cheque on their London bankers, and sent it to one of 
 their officers at Taunton to pay a poor-rate there, who, at Taunton, 
 gave it to the prisoner, a clerk of the company, to take to the overseer, 
 but instead of doing so, he converted it to his own use; it was held 
 that even if the cheque was void under the 13th section of the statute 
 55 Geo. 3, c. 184 (repealed), the prisoner might be properly convicted 
 on the count for stealing a piece of paper. Ji. v. Perry, 1 Den. C. C. 
 69 ; 1 C. & K. 725, 47 E. C. L.; see also the same case reserved for 
 the consideration of the judges, and similarly decided, 1 Cox, C. C. 
 222 ; and the cases of R. v. \\'^alsh, and R. v. Metcalfe, avte, pp. 684, 
 685 ; also R. v. Heath, 2 jSIoo. C. C. 33 ; see cases on '' Forgery," 
 ante, p. 574. 
 
 An indictment under section 27 must particularize the kind of 
 valuable security stolen, and any material variance between such 
 *QQP1 '''description and the evidence, if not amended, will be fatal. R. 
 ^^^-1 V. Lowrie, L. R. 1 C. C. R. 61 ; 36 L. J., M. C. 24. 
 
 See as to the meaning of the term " valuable security," supra, p. 
 640. 
 
 Taking with a fraudulent purpose. Two actions had been brought 
 against the prisoner and warrants of execution had issued, and a levy 
 had been made by the high bailiif, v/ho then handed the warrants to 
 his deputy, who remained in possession. The prisoner forcibly took 
 the warrants out of the deputy bailiff's hands, and kept them. He 
 then forcibly turned the bailiff out. It was held, he was not guilty 
 of larceny, but of taking with a fraudulent purpose. "He had acted 
 as he did in order to take possession of the goods and turn the bailiff 
 out. That would be in fraud of the execution and in fraud of the 
 law, and would constitute a fraudulent purpose within the meaning 
 of the statute." Per Cockburn, C. J., R. v. Bailey, L. R., 1 C. C. 
 R. 347 • 41 L. J., M. C. 61.
 
 INFANCY. 1225 
 
 ♦GENERAL MATTERS OF DEFENCE. 
 
 [*997 
 
 There are certain general matters of defence^ the evidence with re- 
 gard to which it will be convenient to comprise under the three fol- 
 lowing heads : — Infancy, Insanity, and Coercion by Husband. 
 
 INFANCY. 
 
 PAQE 
 
 Infancy , , 997 
 
 In cases of misdemeanors ........ 997 
 
 In cases of felony 997 
 
 An infant is, in certain cases, and under a certain age, privileged 
 from punishment, by reason of a presumed want of criminal design.^ 
 
 In eases of misdemeanors. In certain misdemeanors an infant is 
 privileged under the age of twenty-one, as in cases of nonfeasance only, 
 for laches shall not be imputed to him, 1 Hale, P. C. 20 ; aud for not 
 repairing a bridge or highway, or other similar offences, unless in the 
 case of repair when he may be perhaps bound to do so by reason of 
 his tenure, though even then it seems he '\vould not be liable to fine or 
 imprisonment. R. v. Sutton, 3 A. & E. 597, 30 E. C. L. But he is 
 liable for misdemeanors accompanied with force and violence, as a riot 
 or battery. 1 Hale, P. C. 20. So for perjury. Sid. 253. So he may 
 be convicted of a forcible entry, 4 Bac. Ab. 591 ; or cheating or the 
 like, Bac. Ab. Infancy, H.^ 
 
 In cases of felony. Under the age of seven years, an infant can- 
 not be punished for a capital offence, not having a mind doll caj^ax ; 
 1 Hale, P. C. 19 ; nor for any other felony, for the same reason. Id. 
 27. But on attaining the age of fourteen he is obnoxious to capi- 
 tal (and of course to any minor) punishment, for offences committed 
 by him at any time after that age. 1 Hale, P. C. 25. 
 
 With regard to the responsibility of infants, between the ages of 
 seven and fourteen, a good deal of doubt formerly ])revailed, but it is 
 now qnite clear, that where the circumstances of the case show that 
 the offender was ca])able of distinguishing between right and wrong, 
 and that he acted Avith malice and an evil intention, he may be con- 
 
 nVheeler's C. C. 231. S. 
 
 *See Wood v. Commonvvealtli, 3 Leigh, 743. An infant only a year or two old, 
 upon whose lands a nuisance is erected, cannot be made criminally answerable for it. 
 People V. Townsend et al., 3 Hill, 479. Although a minor, within the age of twenty- 
 one years, cannot be made responsible civ'diler for goods obtained by false pretences, 
 he mnv be proceeded against criminaliter, under the statute. People ?;. Kendall, 
 25 Wend. 399. S.
 
 1226 INFANCY. 
 
 victed even of a capital offence ; ^ and accordingly there are many 
 cases, several of them very early ones, in which infants, under the age 
 of fourteen, have been convicted and executed. Thus in 1(329, an in- 
 fant between eight and nine years of age was convicted of burning two 
 barns in the town of Windsor, and it appearing that he had malice, 
 revenge, craft, and cunning, he was executed. K. v. Dean, 1 Hale, 
 P. C. 25 (n). 
 
 ♦QQ^I * Lord Hale mentions two instances to the same effect, 
 -I one of a girl of thirteen, executed for killing her mistress, and 
 another of a boy of ten for the murder of his companion. 1 Hale, 
 P. C. 26; Fitz. Ab. Corone, 118. In the year 1748 a boy of ten 
 years of age was convicted of murder, and the judges, on a reference 
 to them, were unanimously of opinion that the conviction was right. 
 R. V. York, Foster, 70. 
 
 An infant under the age of fourteen years is presumed by law un- 
 able to commit a rape, and though in other felonies, malltia supplet 
 cetalem, yet, as to this fact, the law presumes the want of ability, as 
 well as the want of discretion. But he may be a principal in the sec- 
 ond degree, as aiding and assisting, though under fourteen years, if it 
 appears that he had a mischievous intention. 1 Hale, P. C. 080 ; R. 
 V. Eldershaw, 3 C. & P. 396, 14 E. C. L.; see further, ante, tit. 
 " Pvape." 
 
 It is necessary, says Lord Hale, speaking of convictions of infants 
 between the years of seven and twelve, that very strong and pregnant 
 evidence should be given to convict one of that age. 1 Hale, P. C 
 27 ; 4 Bl. Com. 23. And he recommends a respiting of judgment 
 till the king's pleasure be known. Id. 
 
 ' Commonwealth v. Keagy, 1 Ashmead, 248 ; State v. Aaron, 1 Southard, 231 ; Com- 
 monwealth V. Krouse, O. & T. Phila., Sept., 1835, before Judge King. S. 
 
 Children under the age of fourteen are presiuned to be not criminally responsible. 
 This presumption is conclusive imder the age of seven. Between seven and fourteen 
 the presumption may be rebutted. In order to show that the child is doli capax evi- 
 dence of similar acts is admissible. State v. McDonald, 14 K. I, 270.
 
 INSANITY. 1227 
 
 •INSANITY. 
 
 [*999 
 
 PAGE 
 
 Cases in which the prisoner has been held not to be insane . . 1000 
 
 in whieli the prisoner has been lieKl to be insane . . 1002 
 
 Opinions of the judges on questions propounded by the house of lords 1004 
 
 Cases of insanity caused by intoxication . . . • , 1009 
 
 The inability of insane persons to plead has been dealt with, ante, 
 p. 199. By the 46 & 47 Vict. c. 38, s. 2, the jury may return a 
 special verdict that " the accused was guilty of the act or omission 
 chars^ed against him, but was insane at the time when he did the act 
 or made the omission." 
 
 The defence of insanity is one involving great difficulties of various 
 kinds, and the rules which have occasionally been laid down by the 
 judges with regard to the nature and degree of aberration of mind 
 which will excuse a person from punishment, are by no means 
 consistent with each other, or, as it should seem, with correct prin- 
 ciple.^ That principle appears to be well laid down in the following 
 passage : — 
 
 ^ Wheel, C. C. 48 ; Jackson v. Van Dusen, 5 Johns. 158 ; Commonwealth v. Rogers, 
 7 Mete. 500. On a trial for murder, a physician liaving stated on examination in 
 chief that the prisoner was insane, he may be asked on cross-examination, whether, 
 in his opinion, the prisoner knew right from wrong, or that it would be wrong for 
 him to commit murder, rape, or arson. Clark r. State, 12 0. St. 483. [See U. S. v. Gui- 
 teau, 1 Mackey, (D. C.) 498. A physician's doubt as to whether a man is sane is not 
 evidence. Sancliey v. People, 22 N. Y. 147.] It is not every kind or degree of insanity 
 which exempts from punishment. If the accused understood the nature of his act, 
 if he knew it was wrong and deserved punislmient, he is responsible. United States v. 
 McGlue, 1 Curt. C. C. 1 ; United States v. Shults, 6 McL. 121 ; State v. Hunting, 21 
 Mo. 464. [In New York, insanity as a defence, depends on a capacity to imderstand. 
 People V. Walworth, 4 N. Y. Crim. Rep. 355.] To sustain the defence of insanity, it 
 must appear that the party accused was laboring under such a defect of reason, from 
 disease of the mind, as not to know the nature and quality of the act he was doing; 
 or if he did understand them, that he did not know he was doing what was wrong. 
 Kelly V. State, 3 Sm. & Marsh. 518 ; State v. Spencer, 1 Zab. 197 ; [I'eople v. JMcDonell, 
 47 Cal. 134.] On questions of sanity, the rule as to reasonable doubt does not apply, 
 but it is for him that alleges insanity to prove it. State v. Starling, 6 Jones's Law, 
 366 ; Newcomb v. State, 37 Miss. 383 ; Loeflher v. State, 10 O. St. 598 ; Fisher r. People, 
 23 111. 283 ; r>onfanti r. State, 2 Minn. 123 ; Graham ('.Commonwealth, 16 B. Mon 587. 
 [State I'. Hanley, 34 Minn. 430 ; State v. Paulk, 18 S. C. 514 ; State v. De Ranee, 34 La, 
 An. 186 ; s. c . 44 Am. Rep. 426 ; People v. Messersmith, 61 Cal. 246. The presumption 
 is tliat every man is sane until he is proved otherwise. O'Connell v. People, 87 N. Y. 
 377 ; State v. Smith, 53 Mo. 267 ; Coyle r. Commonwealth, 100 Pa. St. 573. But wliere 
 there is testimony of insanity, the burden is on the State to prove the prisoner sane. 
 Ballard v. State, 19 Neb. 609.] The prisoner is entitled to the benefit of any doubt upon 
 the question of sanity. People v. McCann, 1 6 N. Y. (Ct. of App.) 58. [Insanity as a de- 
 fence is subject to the usual rules of " reasonable doubt." Dacey v. People, 116 111. 555. 
 Though it is error for the court to charge to the contrary, yet where the defendant has 
 not been prejudiced, a new trial will not be granted. State v. Payne, 86 N. C. 609. 
 Where the court has charged the jury that they might find the prisoner insane at the time 
 of the homicide, it is error to refuse to charge them that if he was insane, statements
 
 1228 INSANITY.- 
 
 To amount to a complete bar of punishment, either at the time of 
 committing; the offence, or of the trial, the insanity must have been 
 of such a kind as entirely to deprive tlie prisoner of the use of reason, 
 as applied to the act in question, and of the knowledge that he was 
 doin*^' wrong in committing it. If, though somewhat deranged, he is 
 yet able to distinguish riglit from wrong, in his own case, and to know 
 that he was doing wrong in the act which he committed, he is liable 
 to the full punishment of his criminal acts. Alison's Princ. Crim. 
 Law of Scotl. G45, 654. 
 
 The onus of proving the defence of insanity, or, in the case of 
 lunacy, of showing that the offence was committed when the prisoner 
 was in a state of lunacy, lies upon the prisoner. See Alison's Princ. 
 Crim. Law of Scotl. G59 ; and for this purpose the opinion of a person 
 possessing medical skill is admissible. R. v. Wright, Iluss. & Ry. 
 456, ante, p. 147. The insanity may also be inferred from the be- 
 havior of the accused and other facts in the evidence. R. v. Dart, 14 
 Cox, C. C. 143.^ 
 
 made by hira sliould be disregarded. People v. Wreden, 59 Cal. 392. Where the 
 defence is insanity, it is error for the court to cliarge that the jury must be satisfied 
 beyond a reasonable doubt that the prisoner was insane. Meyers v. Commonwealth, 
 83 Pa. St. 131.] If the jury entertain a reasonable doubt of the sanity of the prisoner, 
 he shall be acquitted. State v. Marler, 2 Ala. 43. Contra: To excuse crime, tlie 
 jury ouglit to be satistied of the insanity beyond reasonal)le doubt. State v. Spencer, 
 1 Zab. 197. Insanity at the time of the trial may be proved with a view to establish 
 the defence of insanity when the act was committed. Freeman v. People, 4 Denio, 9. 
 The subsequent as well as previous acts and declarations of the prisoner are admissi- 
 ble to sliow his true mental conlition at the moment of the crime. McLean c. State, 
 16 Ala. 672. To enable the defendant to take advantage of insanity as a defence, it 
 must appear that, at the time, he was so deranged as not to know tlie nature of the 
 oftence, or so really deluded as not to know that he was doing wrong. Fonts u. State, 
 4 Green, 500. An oiler of the prisoner's counsel, in a trial for murder, to show that 
 the prisoner was of a very low order of intellect and very ignorant, but disclaiming 
 any purpose of showing him to be non compos mentis, was held to have been rightly 
 rejected. Patterson r. People, 46 Barb. 625. As to moral insanity, see Scott ?\ Com- 
 monwealth, 4 Met. (Ky). 227; Hopps r. People, 31 111.385; State v. Branden, 8 
 Jones's Law, 463 ; Smith v. Commonwealth, 1 Duv. 224 ; INIatter of P"'oreman, 54 Barb. 
 274; United States v. Holmes, 1 Cliff. C. C. 98; State r. (lut, 13 Minn. 341 ; Stevens v. 
 State, 31 Ind. 485. Under an indictment for murder, the defendant may introduce 
 evidence of the insanity of liis parents, if there is evidence in the case tending to 
 prove personal insanity by reason of the want of apparent motive at the time of the 
 murder. People v. Smith, 31 Cal. 466. See as to evidence of insanity in the family, 
 People V. Garbutt, 17 Mich. 9 ; State v. Felter, 25 la. 67 ; Cole's Trial, 7 Abb. Pr. N. 
 S. 321 ; Bradley v. State, 31 Ind. 492; rilagan v. State, 5 Baxter, (Tenn.) 615; State v. 
 Simms, 68 Mo. 305.] See generally Willis v. People, 32 N. Y. 715 ; State v. Eeddick, 
 7 Kan. 143; State v. Ilavs, 22 La. An. 39; People v. Best, 39 Cal. 690; People v. 
 Francis, 38 Cal. 183; State !'. Lawrence, 57 jVIe. 574; Cole's Trial, 7 Abb. Pr. N. S. 
 321 ; State v. Jones, 50 N. IT. 369 ; jMcFarland's Case, 8 Abb. Pr. N. S. 57, 89 ; Brad- 
 ley V. State, 31 Ind. 492; Poople r. Gorbutt, 17 jNIich. 9; State i'. Haywood, 1 Phill. 
 (Law) 376; McKee v. Peoi)le, 36 N. Y. 113; People i\ Kleim, 1 Fdm. 13; People v. 
 Devine, Id. 594; People r. Griffin, Id. 126; O'Brien ?•. People, 48 Barb. 274; State r. 
 Brown, 12 Minn. 538; Choice v. State, 31 Ga. 424; State r. Shapley, 10 Minn. 223; 
 Walter v. People, 32 N. Y. 147; Commonwealth v. Heath, 11 Gray, 303; State v. 
 McCoy, 34 Mo. 531 ; People r. Myers, 20 Cal. 518 ; Polk v. State, 19' Ind. 170 ; State 
 V. Bartlett, 43 N. H. 224 ; Lilly v. Waggoner, 27 111. 395 ; People v. Coffman, 24 Cal. 
 230; Hopps v. People, 31 111. 385. S. Walsh v. People, 88 N. Y. 458. 
 
 ^ Insanity, from time to time, of several years' duration, prior to the crime rliarged 
 ■ may be proved to rebut the general presumption of sanity when the insanity con-
 
 INSANITY. 1229 
 
 If the jury are of opinion that the prisoner did not in fact do all 
 that the law requires to constitute the oifence charged, sup})osing the 
 prisoner had been sane, they must find him not guilty generally, 
 and the court have no power to order his detention, although the 
 jury should find that he was in fact insane. AVhere therefore on 
 an indictment for treason, which stated as an overt act, that the 
 prisoner discharged a pistol loaded with powder and a bullet at her 
 Majesty, the jury found that the prisoner was insane at the time 
 when he discharged the pistol ; but whether the pistol was loaded 
 with ball or not, there was no satisfactory evidence ; the court ex- 
 pressed a strong opinion that the case was not within the statute. 
 *Lord Denman, C, J., Patteson, J., and Alderson, B. E. v. r>K,nnn 
 Oxford, 9 C. & P. 525, 38 E. C. L.; 1 Kuss. by Grcav. L ^^^^ 
 18 {n). 
 
 The above and a similar outrage led to the passing of the 5 & 6 
 Vict. c. 51, an Act for the protection of the Queen's person. 
 
 A man was indicted for shooting at his wife with intent to murder 
 her, etc., and was defended by counsel, who set up for him the defence 
 of insanity. The prisoner, however, objected to such a defence, assert- 
 ing that he was not insane ; and he was allowed by the judge, ]\Ir. 
 Justice Bosanquet, to suggest questions, to be put by the learned judge 
 to the witnesses for the prosecution, to negative the supposition that 
 he was insane ; and the judge also, at the request of the prisoner, 
 allowed additional witnesses to be called on his behalf for the same 
 purpose. They, however, failed in showing that the defence was an 
 incorrect one ; on the contrary, their evidence tended to establish it 
 more clearly ; and the prisoner was acquitted on the ground of insanity. 
 E. V. Pearce, 9 C. & P. 667, 38 E. C. L. 
 
 Cases in which the prisoner has been held not to be insane. la 
 the following cases the defence of insanity was set up, but without 
 effect, and the prisoners were convicted. The prisoner was indicted 
 for shooting at Lord Onslow. It apjieared that he was to a certain 
 extent deranged, and had misconceived the conduct of Lord Onslow, 
 but he had formed a regular design to shoot him, and prepared the 
 means of effecting it. Tracy, J., observed that the defence of insanity 
 must be clearly made out ; that it is not every idle or frantic humor of 
 
 sists of a delusion connected with the fatal ad. It is error to refuse to instruct the 
 jury tliat " insanity of a permanent type proved to have once existed may be proved 
 to have continued." State v. Wilner, 40 Wisconsin, 804. A homicidal mania, if 
 proved, may be a valid defence to a charge of murder. C'oyle v. Common wealtli, 100 
 Pa. St. 573. But there is no presumption, merely from the fact that the defendant 
 was insane a short time before the commission of the act, that he was insane when 
 he committed it. People v. Smith, 57 ('al. 130. But see State v. Johnson, 40 Conn. 
 136. Where evidence is introduced from the liistory of a man's life to show tliat his 
 actions can only be accounted for by insanity, particular acts and conduct may be put 
 in in rebuttal to s'now that his conduct did not require such an explanation. U. S. v. 
 Guiteau, 1 Mackey. (D. C.) 498. Where on a criminal charge tlie defence is insanity, 
 the records of a probate court of a date four years previous to the alleged oflence 
 may be put in evidence to sliow that the defendant liad then been adjudged insane arud 
 confined in an asylum. Wheeler v. State, 34 Ohio, 394,
 
 1230 INSANITY. 
 
 a man, or somothino:: nnaccountablc in liis actions, which will show 
 him to be such a madman as to exempt him from punishment ; bnt 
 that where a man is totally deprived of understanding and memory, 
 and does not know Avliat he is doing any more than an infant, a brute, 
 or a wild beast, he will be properly exempted from punishment, li. v. 
 Arnold, CoUinson on Lunacy, 475; 16 How. St. Tr. 7G4, 7G5. The 
 doctrine of the learned judge in this case may, perhaps, be thought to 
 be carried too far ; for if the prisoner, in committing the act, is de- 
 prived of the power of distinguisliing between right and wrong with 
 relation to that act, it does not appear to be necessary that he should 
 not know what he is doing. Vide post. 
 
 Lord Ferrers was tried before the house of lords for the murder of 
 his steward. It was proved that he was occasionally insane, and 
 fancied his steward to be in the interest of certain su]>posed enemies. 
 The steward being in the parlor with him, he ordered him to go down 
 on his knees, and shot him Avith a pistol, and then directed his servants 
 to put him to bed. He afterwards sent for a surgeon, but declared he 
 was nut sorry ; and that it was a premeditated act ; and he would 
 have dragged the steward out of the bed, had he not confessed him- 
 self a villain. Many witnesses stated that they considered him insane, 
 and it appeared that several of his relations had been confined as luna- 
 tics. It was contended for the prosecution, that the complete posses- 
 sion of reason was not necessary in order to render a man answerable 
 for his acts ; it was sufficient if he could discriminate between good 
 and evil. The peers unanimously found his lordship guilty. R. v. 
 Earl Ferrers, 19 How. St. Tr. 886. 
 
 The prisoner was indicted for shooting at and wounding W. B. 
 and the defence was insanity arising from epilepsy. He had been 
 attacked with a fit on the 9th July, 1811 ; and was brought home 
 apparently lifeless. A great alteration had been produced in his 
 *innn *conduct, and it was necessary to watch him, lest he should 
 -• destroy himself. Mr. Warburton, the keeper of a lunatic 
 asylum, said that in insanity caused by epilepsy, the patient often in- 
 bibed violent antipathies against his dearest friends, for causes wholly 
 imaginary, which no persuasion could remove, though rational on 
 other topics. He had no doubt of the insanity of the prisoner. A 
 commission of lunacy was produced, dated 17th June, 1812, with a 
 finding that the prisoner had been insane from the 30th of March. 
 [The date of the offence committed does not appear in the report.] 
 Le Blanc, J., concluded his summing up by observing that it was for 
 the jury to determine whether the prisoner, when he committed the 
 offence with which he stood charged, was capable of distinguishing 
 between right and wrong, or under the influence of any illusion in re- 
 spect of the prosecutor, which rendered his mind at the moment in- 
 sensible of the nature of the act which he was about to commit, 
 since in that case he would not be legally responsible for his con- 
 duct. On the other hand, provided they should be of opinion that 
 when he committed the offence he was capable of distinguishing right 
 from wrong, and not under the influence of such an illusion as dis-
 
 INSANITY. 1231 
 
 aWccl him from discovering that he was doing a wrong act, he 
 would be answerable to the justice of the country, and guiky in 
 the eye of the law. The jury, after considerable deliberation, pro- 
 nounced the prisoner guilty. II. v. Eowlor, Collinson on Lunacy, 
 673 (u). 
 
 The prisoner Avas indicted for adhering to the king's enemies. 
 His deicnce was insanity. lie had been accounted from a child a 
 person of weak intellect, so that it surprised many that he had been 
 accepted as a soldier. Considerable deliberation and reason, however, 
 were disphiyed by him in entering the French service, and he stated to 
 a comrade that it was much more agreeable to be at liberty, and have 
 plenty of money, than to remain confined in a dungeon. The attorney- 
 general in reply, said, that before the defence could have any weight in 
 rebutting a charge so clearly made out, the jury must be satisfied that 
 at the time the offence \vas committed the prisoner did not really 
 know right from wrong. He was convicted. K.. v. Parker, Collinson 
 on Lunacy, 477. 
 
 The direction of Mansfield, C. J., to the jury in R. v. Bellingham, 
 seems not altogether in accordance with the correct rules on the 
 subject of a prisoner's insanity. He said that, in order to support 
 such a defence, it ought to be proved by the most distinct and un- 
 questionable evidence, that the prisoner was incapable of judging be- 
 tween right and wrong ; that in fact it must be proved beyond all 
 doubt that, at the time he committed the act, he did not consider that 
 murder was a crime against the laws of God and nature, ai\d that there 
 was no other proof of insanity which would excuse murder or any 
 other crime. That in the species of madness called lunacy, where per- 
 sons are subject to temporary paroxysms, in which they are gudty of 
 acts of extravagance, such persons committing crimes when they are 
 not affected by the malady, would be answerable to justice, and that 
 so long as they could distinguish good from evil, they would be answer- 
 able for their conduct ; and that in the species of insanity in which 
 the patient fancies the existence of injury, and seeks an opportunity 
 of gratifying revenge by some hostile act, if such person be capable, 
 in other respects, of distinguishing between right and wrong, there 
 would be no excuse for any act of atrocity which he might commit 
 nnder this description of derangement. The prisoner was found 
 *guilty and executed. R. v. Bellingham, Collinson on r*inn9 
 Lunacy, 636 ; Shelford on Lunacy, 462 ; see Offord's ^ 
 case, 5 C. & P. 168, 24 E. C. L. The above direction does not ap- 
 pear to make a sufficient allowance for the incapacity of judging be- 
 tween right and wrong upon the very matter in question, as in all cases 
 of monomania. The following observations of an eminent writer on 
 the criminal law of Scotland are applicable to the subject. Although 
 a prisoner understands perfectly the distinction between right and 
 wrong, yet if he labors, as is generally the case, under an illusion and 
 deception in his own particular case, and is thereby incapable of ap- 
 plying it correctly to his own conduct, he is in that state of mental 
 aberration which renders him not criminally answerable for his actions.
 
 1232 INSANITY. 
 
 For example : a mad person may bo perfectly aware that murder is a 
 crime, and will admit that, if pressed on the snbject ; still he may 
 conceive that a homicide he has committed was nowise blameable, be- 
 cansc the deceased had engaged in a conspiracy, with others, against his 
 own life, or was his mortal enemy who had wounded him in his dearest 
 interests, or was the devil incarnate, whom it was the duty of every 
 good Christian to meet with weapons of carnal warfare. Alison's 
 Trine. Crim. Law, Scotl. 645, citing 1 Hume, 37, 38. And see 
 the observations on R. v. Bellingham, Alison, 658. R. v. Oxford, 
 post, p. 1004. 
 
 See, too, as to delusions, R. v. Townley, 3 F. & F. 839, and R. v. 
 Burton, 3 F. & F. 772. 
 
 It has been justly observed, that the plea of insanity must be re- 
 ceived with much more diffidence in cases proceeding from the de- 
 gire of gain, as theft, swindling, or forgery, which generally require 
 some art and skill for their completion, and argue a sense of the 
 advantage of acquiring other people's property. On a charge of 
 horse-stealing, it was alleged that the prisoner was insane, but as it 
 appeared that he had stolen the horse in the night, conducted himself 
 prudently in the adventure, and ridden straight by an unfrequented 
 road to a distance, sold it, and taken a bill for the price, the defence 
 was overruled. R. v. Henderson, Alison's Princ. Criminal Law, 
 Scotl. 655, 656. 
 
 Cases in which the prisoner has been held to be insane. James 
 Hadlield was tried in the court of K. B. in the year 1800, on an 
 indictment for high treason, in shooting at the king in Drury Lane 
 Theatre, and the defence made for the prisoner was insanity. It was 
 proved that he had been a private soldier in a dragoon regiment, and 
 in the year 1793 received many severe wounds in battle near Lisle, 
 which had caused partial derangement of mind, and he had been 
 dismissed from the army on account of insanity. Since his return 
 to this country, he had been annually out of his mind from the 
 beginning of spring to the end of the dog-days, and had been under 
 confinement as a lunatic. When affected by his disorder, he imagined 
 himself to hold intercourse with God : sometimes called himself God, 
 or Jesus Christ, and used other expressions of the most irreligious 
 and blasphemous kind, and also committed acts of the greatest ex- 
 traA^agance ; but at other times he appeared to be rational, and dis- 
 covered no symptom of mental incapacity or disorder. On the 14th 
 May preceding the commission of the act in question his mind was 
 very much disordered, and he used many blasphemous expressions. 
 At one or two o'clock on the following morning he suddenly jumped 
 out of bed, and, alluding to his child, a boy of eight months old, of 
 *1 00*^1 *^vlioi''i ^iG was usually remarkably fond, said he was about to 
 ■J dash his brains out against the bed[)ost, and that God had or- 
 dered him to do so ; and, upon his wife screaming and his friends com- 
 ing in, he ran into a cupboard, and declared he would lie there, it 
 should be his bed, and God hrd said so ; and when doing this, having
 
 INSANITY. 1233 
 
 overset some water, he said lie had lost a great deal of blood. On the 
 same and the following day he used many incoherent and blasphem- 
 ous expressions. On the morning of the 15th May he seemed worse, 
 said that he had seen God in the night, that the coach was in waiting, 
 and that he had been to dine with the king. lie spoke very highly of 
 the king, the royal family, and particularly of the Duke of York. He 
 then Avent to his master's workshop, whence he returned to dinner at 
 two, but said that he stood in no need of meat, and could live without 
 it. He asked for tea between three and four o'clock, and talked of 
 being made a member of the Society of Odd Fellows ; and after re- 
 peating his irreligious expressions, went out and repaired to the 
 theatre. On the part of the crown it was proved that he had sat in 
 his place in the theatre nearly three-quarters of an hour before the 
 king entered ; that at the moment when the audience rose on his 
 maicst}''s entering his box, he got up above the rest, and presenting 
 a pistol loaded with slugs, fired it at the king's person, and then let 
 it drop ; that when he fired, his situation appeared favorable for 
 taking aim, for he was standing upon the second seat from the 
 orchestra, in the pit ; and he took a deliberate aim, by looking down 
 the barrel as a man usually does when taking aim. On his appre- 
 hension, amongst other expressions, he said he knew perfectly 
 well his life was forfeited ; that he was tired of life, and regretted 
 notliing but the fate of a woman who was his wife, and would be his 
 wife a few days longer, he supposed. These words he sj^oke calmly, 
 and without any apparent derangement ; and with equal calmness 
 repeated that he was tired of life, and said that his plan was to 
 get rid of it by any means, that he did not intend anything aganist 
 the life of the king, for he knew the attempt only would answer his 
 purpose. The counsel for the prisoner put the case as one of a species 
 of insanity in the nature of a vim-bid delusion of the intellect, and ad- 
 mitted that it was necessary for the jury to be satisfied that the act 
 in question was the immediate unqualified offspring of the disease. 
 Lord Kenyon, C. J., held, that as the prisoner was deranged imme- 
 diately before the offence was committed, it was improbable that 
 he had recovered his senses in the interim ; and although, were 
 they to run into nicety, proof might be demanded of his insanity at 
 the precise moment when the act was committed, yet, there being no 
 reason for believ^ing the prisoner to have been at that period a rational 
 and accountable being, he ought to be acquitted, and was acquittetl 
 accordingly. R. v. Pladfield, Collinson on Lunacy, 480; 1 Russ. Cri. 
 120, 5th ed. 
 
 The prisoner was indicted for setting fire to the cathedral church 
 of York. The defence was that he was insane. It was proved that 
 he was much under the influence of dreams, and in court he gave an 
 incoherent account of a dream that had induced him to commit the 
 act, a voice commanding him to destroy the cathedral on account of 
 the misconduct of the clergy. Several medical witnesses stated their 
 opinions that he was insane, and that, when laboring under his 
 delusion, he could not distinguish right from wrong. One surgeon 
 78
 
 1234 INSANITY. 
 
 said that such persons, though incapable on a particular subject of 
 -. *(listinguishing right from wrong, seek to avoid tlie danger con- 
 -1 sequent upon their actions, and that they frequently run away 
 and display great cunning in escaping punishment. The jury ac- 
 quitted the prisoner on the ground of insanity. R. v. Martin, Shel- 
 ford on Lunacy, 465; Annual Register, vol. 71, pp. 71, 301. 
 
 In R. V. Oxford, Lord Denman, C. J., made tlie following obser- 
 vations to the jury : " Persons must be taken to be of sound mind till 
 the contrary is shown. But a person may commit a criminal act and 
 not be responsible. If some controlling disease was in truth the 
 acting power within him, which he could not resist, then he will not 
 be responsible. It is not more important than difficult to lay down 
 the rule. . . . On the part of the defence it is contended that the pris- 
 oner was non compos mentis, that is (as it has been said), unable to 
 distinguish right from wrong, or in other words, that from the effect 
 of a deceased mind, he did not know at the time that the act he did 
 was wrong. . . . Something has been said about the power to con- 
 tract and to make a will. But I think that those things do not 
 supply any test. The question is, whether the prisoner was laboring 
 under that species of insanity which satisfies you that he was quite 
 unaware of the nature, character, and consequence of the act he was 
 committing, or, in other words, whether he was under the influence 
 of a diseased mind, and was really unconscious at the time he 
 was committing the act, that it was a crime." 9 C. & P. 525, 38 
 E. C. L. 
 
 Opinions of the judges on questions propounded by the house 
 of lords. In consequence of acquittal on the ground of insanity of 
 Daniel M'Naughten for shooting Mr. Drummond, the following ques- 
 tions of law were propounded by the house of lords to the judges. 
 (See 8 Scott's N. R. 595 ; 1 C & K. 130, 12 E. C. L.f 
 
 " 1. What is the law respecting alleged crimes committed by per- 
 sons afflicted with insane delusion in respect of one or more particular 
 subjects or persons ; as, for instance, where, at the time of the commis- 
 sion of the alleged crime, the accused knew he was acting contrary to 
 law, but did the act complained of with a view, under the influence 
 of insane delusion, of redressing or revenging some supposed griev- 
 ance or injury, or of producing some supposed public benefit? 
 
 " 2. What are the proper questions to be submitted to the jury 
 when a person alleged to be afflicted with insane delusions respecting 
 one or more particular subjects or persons is charged with the com- 
 mission of a crime (murder, for example), and insanity is set up as a 
 defence ? 
 
 " 3. In what terms ought the question to be left to the jury 
 as to the prisoner's state of mind at the time when the act was 
 committed ? 
 
 1 Sanches v. People, 4 Parker, C. R. 535 ; Bovard v. State, 30 Miss. 600 ; State v. 
 Windsor, 5 Harrington, 512. S.
 
 INSANITY. 1235 
 
 " 4. If a person under an insane delusion as to existing facts com- 
 mits an offence in consequence thereof, is he hereby excused ? 
 
 " 5. Can a medical man conversant with tlie disease of insanity, 
 who never saw the prisoner previously to the trial, but who was pres- 
 ent during the whole trial, and the examination of all the witnesses, 
 be asked his opinion as to the state of the prisoner's mind at the time 
 of the commission of the alleged crime ; or his opinion whether the 
 prisoner was conscious at the time of doing the act that he was acting 
 contrary to law, or whether he was laboring under any and what de- 
 lusion at the time ?" 
 
 *Maule, J. — I feel great difficulty in answering the questions r^^^ p.^. ^ 
 put by your lordships on this occasion : — First, because they ^ 
 do not appear to arise out of and are not put with reference to a par- 
 ticular case, or for a particular purpose, which might explain or limit 
 the generality of their terms, so that full answers to them ought to be 
 applicable to every possible state of facts not inconsistent with those 
 assumed in the questions ; and this difficulty is the greater, from the 
 practical experience both of the bar and the court being confined to 
 questions arising out of the facts of particular cases ; secondly, because 
 I have heard no argument at your lordships' bar or elsewhere on the 
 subject of these questions, the want of which I feel the more, the 
 greater is the number and extent of questions which might be raised 
 in argument : and, thirdly, from a fear, of which I cannot divest 
 myself, that, as these questions relate to matters of criminal law of 
 great importance and frequent occurrence, the answers to them by the 
 judges may embarrass the administration of justice when they are cited 
 in criminal trials. For these reasons I should have been glad if my 
 learned brethren would have joined me in praying your lordships to 
 excuse us from answering these questions : but, as I do not think they 
 ought to induce me to ask that indulgence for myself individually, I 
 shall proceed to give such answers as I can, after the very short time 
 which I have had to consider the questions, and under the difficulties 
 I have mentioned, fearing that my answers may be as little satisfac- 
 tory to others as they are to myself. 
 
 The first question, as I understand it, is, in effect. What is the law 
 respecting alleged crime, when at the time of the commission of it, 
 the accused knew he was acting contrary to the law, but did the act 
 with a view, under the influence of insane delusion, of redressing or 
 revenging some supposed grievance or injury, or of producing some 
 supposed public benefit ? If I were to understand this question ac- 
 cording to the strict meaning of its terms, it would require, in order 
 to answer it, a solution of all questions of law which could arise on 
 the circumstances stated in the question, either by explicitly stating 
 and answering such questions, or by stating some principles or rules 
 which would suffice for their solution. I am quite unable to do so, 
 and, indeed, doubt whether it be possible to be done ; and therefore 
 request to be permitted to answer the question only so far as it com- 
 prehends the question whether a person, circumstanced as stated in 
 the question, is for that reason only to be found not guilty of a crime
 
 1 236 INSANITY. 
 
 respecting which the question of his gnilt has been duly raised in a 
 criminal proceeding; and I am of opinion that he is not. There is 
 no law that I am aware of that makes persons in the state described 
 in the question not responsible for their criminal acts. To render a 
 person irresponsible for crime on account of unsoundness of mind, 
 the unsoundness should, according to the law as it has long been un- 
 derstood and held, be such as to render him incapable of knowing 
 right from wrong. The terms used in the question cannot be said 
 (with reference only to the usage of language) to be equivalent to a 
 description of this kind and degree of unsoundness of mind. If the 
 state described in the question be one which involves or is necessarily 
 connected with such an unsoundness, this is not a matter of law, but 
 of physiology, and not of that obvious and familiar kind as to be 
 inferred without proof. 
 
 Secondly, the questions necessarily to be submitted to the jury are 
 those questions of fact which are raised on the record. In a criminal 
 *1 CiOPl ^^'^"^^^ *^^^ question commonly is, whether the accused be guilty 
 -• or not guilty ; but, in order to assist the jury in coming to a 
 right conclusion on this necessary and ultimate question, it is usual and 
 proper to submit such subordinate or intermediate questions as the 
 course which the trial has taken may have made it convenient to direct 
 their attention to. What those questions are, and the manner of sub- 
 mitting them, is a matter of discretion for the judge — a discretion to 
 be guided by a consideration of all the circumstances attending the 
 inquiry. In performing this duty, it is sometimes necessary or con- 
 venient to inform the jury as to the law ; and if, on a trial such as is 
 suggested in the question, he should have occasion to state wliat kind 
 and degree of insanity would amount to a defence, it should be stated 
 conformably to what I have mentioned in my answer to the first 
 question, as being, in my opinion, the law on this subject. 
 
 Thirdly, there are no terms which the judge is by law required to 
 use. They should not be inconsistent with the law as above stated, 
 but should be such, as, in the discretion of the judge, are proper to assist 
 the jury in coming to a right conclusion as to the guilt of the accused. 
 
 Fourthly, the answer which I have given to the first question is 
 applicable to this. 
 
 Fifthly, whether a question can be asked, depends, not merely on 
 the questions of fact raised on the record, but on the course of the 
 cause at the time it is proposed to ask it ; and the state of an inquiry 
 as to the guilt of a person charged with a crime, and defended on the 
 ground of insanity, may be such that such a question as either of 
 those suggested is proper to be asked and answered, though the wit- 
 ness has never seen the person before the trial, and though he has 
 been present and heard the witnesses ; these circumstances, of his 
 never having seen the person before, and of his having been present 
 at the trial, not being necessarily sufficient, as it seems to me, to 
 exclude the lawfulness of a question which is otherwise lawful, 
 though I will not say that an inquiry might not be in such a state as 
 that these circumstances should have such an effect.
 
 INSANITY. 1237 
 
 Supposing; there is nothing else in tlie state of the trial to make 
 the questions suggested })roper to be asked and answered, except that 
 the witness liad been present and heard the evidence, it is to be con- 
 sidered whether that is enough to sustain the question. In principle 
 it is open to this objection, that, as the opinion of the witness is 
 founded on those eonc-lusions of fa(!t which he forms from the evi- 
 dence, and as it does not appear what those conclusions are, it may 
 bo that the evidence he gives is on such an assumption of facts as 
 makes it irrelevant to the inquiry. But such questions have been 
 very frequently asked, and the evidence to which they are directed 
 has been given, and has never, that I am aware of, been successfully 
 objected to. Evidence, most clearly open to this objection, and on 
 the admission of which the event of a most important trial probably 
 turned, was received in the case of The Queen v. JM'Naugliten, tried 
 at the Central Criminal Court in March last, before the Lord Chief 
 Justice, Mr. Justice Williams, and Mr. Justice Coleridge, in which 
 counsel of the highest eminence were engaged on both sides ; and I 
 think the course and practice of receiving such evidence, confirmed by 
 the very highest authority of these judges, who not only received it, 
 but lelt it, as I understand, to the jury, without any remark de- 
 rogating from its weight, ought to be held to warrant its reception, 
 *notwithstanding the objection in principle to which it may r^-inny 
 be open. In cases even where the course of practice in crimi- L 
 nal law has been uniavorable to parties accused, and entirely contrary 
 to the most obvious principles of justice and humanity, as wx'll as 
 those of law, it has been held that such practice constituted the law, 
 and could not be altered without the authority of parliament. 
 
 Tindal, C. J. — My lords, her Majesty's judges, with the exception 
 of Mr. Justice Maule, who has stated his opinion to your lordships, 
 in answering the questions proposed to them by your lordships' house, 
 think it right, in the first place, to state that they have forborne 
 entering into any particular discussion upon these questions, from 
 the extreme and almost insuperable difficulty of applying those 
 answers to cases in which the facts are not brought judicially before 
 them. The facts of each particular case must of necessity present 
 themsefves with endless variety, and with every shade of difference 
 in each case ; and, as it is their duty to declare the law upon each 
 particular case, on facts proved before them, and after hearing argu- 
 ments of counsel thereon, they deem it at once impracticable, and 
 at the same time dano-erous to the administration of justice if it 
 were practicable, to attempt to make minute applications oi, the 
 principles involved in the answers given by them to your lordships' 
 questions. 
 
 They have, therefore, confined their answers to the statement of that 
 which they hold to be the law upon the abstract questions proposed by 
 your lordships ; and, as they deem it unnecessary, in this peculiar 
 case, to deliver their opinions seriatim, and as all concur in the same 
 opinion, they desire me to express such their unanimous opinion to 
 your lordships.
 
 1238 INSANITY. 
 
 The first qiiostion proposed by your lordsliips is this : — "What is 
 the law respceting alleged crimes committed by persons afflicted with 
 insane delusion in respect of one or more particular subjects or persons ; 
 as, for instance, where at the time of the commission of the alleged 
 crime, the accused knew he was acting contrary to law, but did the act 
 complained of with a view, under the influence of insane dehision, of 
 redressing or revenging some supposed grievance or injury, or of pro- 
 ducing some supposed public benefit ?" 
 
 In answer to which question, assuming that your lordships' inquiries 
 are confined to those persons who labor under such partial delusions 
 only, and are not in other respects insane, we are of oj*inion, that not- 
 withstanding the party accused did the act complained of with a view, 
 under the influence of insane delusion, of redressing or revenging 
 some supposed grievance or injury, or of producing some jjublic benefit, 
 he is nevertheless punishable according to the nature of the crime com- 
 mitted, if he knew at the time of committing such crime that he was 
 acting contrary to law — by Avhich expression we understand your lord- 
 ships to mean the law of the land. 
 
 Your lordships are pleased to inquire of us, secondly, " What are 
 the proper questions to be submitted to a jury when the person, 
 alleged to be afflicted with insane delusion respecting one or more 
 particular subjects or persons, is charged with a crime (murder, for 
 example), and insanity is set up as a defence ?" And, thirdly, " In 
 what terms ought the question to be left to the jury as to the pris- 
 oner's state of mind at the time when the act was committed ?" And, 
 as these two questions appear to us to be more conveniently answered 
 *innsn *together, we have to submit our ojiinion to be, that the jury 
 J ought to be told in all cases that every man is presumed to 
 be sane, and to possess a sufficient degree of reason to be responsible 
 for his crimes, until the contrary be proved to their satisfaction ; and 
 that, to establish a defence on the ground of insanity, it must be clearly 
 proved, that at the time of the committing of the act, the party ac- 
 cused was laboring under such a defect of reason from disease of the 
 mind, as not to know the nature and quality of the act he was doing, 
 or, if he did know it, that he did not know he was doing what was 
 wrong. The mode of putting the latter part of the question to the 
 jury on these occasions has generally been, whether the accused, at the 
 time of doing the act, knew the difference between right and wrong ; 
 which mode, though rarely, if ever, leading to any mistake with the 
 jury, is not, as Ave conceive, so accurate when put generally and in the 
 abstract, as when put with reference to the party's knowledge of right 
 and wrong in respect to the* very act with which he is charged. If 
 the question were to be put as to the knowledge of the accused, solely 
 and exclusively with reference to the law of the land, it might tend to 
 confound the jury, by inducing them to believe that an actual knowl- 
 edge of the law of the land was essential in order to lead to a con- 
 viction ; whereas the law is administered upon the principle that every 
 one must be taken conclusively to know it, without proof that he does 
 know it. If the accused was conscious that the act was one which he
 
 INSANITY. ' 1239 
 
 ought not to do, and if that aot was at the same time contrary to the 
 law of the land, he is punishable ; and the usual course therefore has 
 been, to leave the question to the jury, whether the party accused had 
 a sufficient degree of reason to know that he was doing an act that 
 was wrong ; and this course we think is correct, accompanied with 
 such observations and explanations as the circumstances of each par- 
 ticular case may require. 
 
 The fourth question which your lordships have proposed to us is 
 this : — '' If a person under an insane delusion as to existing fa(;ts com- 
 mits an oifence in consequence thereof, is he thereby excused ?" To 
 which question the answer must of course depend on the nature of the 
 delusion ; but, making the same assumption as we did before, viz., that 
 he labors under such partial delusion only, and is not in other respects 
 insane, we think he must be considered in the same situation as to re- 
 sponsibility as if the facts with respect to which the delusion exists 
 were real. For example, if under the influence of his delusion, he 
 supposes another man to be in the act of attempting to take away his 
 life, and he kills that man, as he supposes, in self-defence, he would be 
 exempt from punishment. If his delusion was that the deceased had 
 inflicted a serious injury to his character and fortune, and he killed him 
 in revenge for such supposed injury, he would be liable to punishment. 
 
 The question lastly proposed by your lordships is : — " Can a medi- 
 cal man, conversant with the disease of insanity, who never saw the 
 prisoner previously to the trial, but who was present during the whole 
 trial, and the examination of all the witnesses, be asked his opinion as 
 to the state of the prisoner's mind at the time of the commission of 
 the alleged crime ; or his opinion whether the prisoner was conscious 
 at the time of doing the act that he was acting contrary to law, or 
 whether he was laboring under any and what delusion at the time?" 
 In answer thereto, we state to your lordships, that we think the 
 medical man, under the circumstances supposed, cannot in strictness 
 *be asked his opinion in the terms above stated, because each r*-|rirjq 
 of those questions involves the determination of the truth of ^ 
 the facts deposed to, which it is for the jury to decide ; and the ques- 
 tions are not mere questions upon a matter of science, in which case 
 such evidence is admissible. But where the facts are admitted, or not 
 disputed, and the question becomes substantially one of science only, 
 it may be convenient to allow the question to be put in that general 
 form, though the same cannot be insisted on as a matter of right. 
 
 Cases of insanity caused by intoxication. Intoxication is no ex- 
 cuse for the commission of crime. The prisoner, after a paroxysm 
 of drunkenness, rose in the middle of the night, and cut the throats 
 of his father and mother, ravished the servant-maid in her sleep, and 
 afterwards murdered her. Notwithstanding the fact of his drunk- 
 enness, he was tried and executed for these offences. R. v. Dey, 3 
 Paris & Fonbl. M. J. 140 (n). There are many men, it is said 
 in an able work on medical jurisprudence, soldiers who have been 
 severely wounded in the head especially, who well know that excess
 
 1240 . INSANITY. 
 
 makes thorn mad ; but if such persons wilfully deprive themselves of 
 rea.ion, they ought not to be excused one crime by the voluntary 
 perpetration of another. 3 Paris & Fonbl. JNI. J. 140, But if, by 
 the long- practice of intoxication, an habitual or fixed insanity is 
 caused, although this madness was contracted voluntarily, yet the 
 party is in the same situation with regard to crimes, as if it had been 
 contracted involuntarily at first, and is not punishable. 1 Hale, P. C. 
 32. A disease of the mind caused by drunkenness — such as delirium 
 tremens — relieves from criminal responsibility, per Stephen, J. 11. v. 
 Davis, 14 Cox, C. C. 563. 
 
 Though voluntary drunkenness cannot excuse from the commission 
 of crime, yet where, as upon a charge of murder, the question is, 
 whether an act was premeditated, or done only from sudden heat and 
 impulse, the fact of the party being intoxicated has been held to be a 
 circumstance proper to be taken into consideration.^ l*er Holroyd, J., 
 
 » Pennsylvania v. McFall, Add. 257. [State r. Sneed, 88 Mo. 138.] 
 
 Mere intoxication is no excuse for crime. Evidence of it may be admissible to 
 the question of malice. Kelly v. State, 3 Sm. & Mar. 518. 
 
 If a person, wliile sane and responsible, makes himself intoxicated, and while in 
 that condition commits murder by reason of insanity, which was one of the conse- 
 quences of intoxication, and one of the attendants on that state, he is responsible. 
 United States v. McGlue, 1 Curt. C. C. 1 ; People v. Robinson, 2 Parker, C. R. 235 ; 
 People V. Hamill, Id. 223 ; State v. Harlowe, 21 Mo. 446 ; Commonwealth v. Hawkins, 
 3 Gray, 463; Mercer v. State, 17 Ga. 146; Carter v. State, 12 Tex. 500; People v, 
 Willey, 2 Parker, C. R. 19. 
 
 Drunkenness is not an excuse for crime, unless such drunkenness was occai;ioned 
 by tlie fraud, artifice, or contrivance of another. Nor does it make any difference 
 that a man by constitutional infirmity, or by accidental injury to the head or brain, 
 is more liable to be maddened by liquor than another man. Clioice v. State, 31 Ga. 
 424. See generally, Mclntyre v. People, 38 111. 514 ; Kenny v. People, 31 N. Y. 330 ; 
 Shannahan v. Commonwealth, 8 Bush, 464 ; People v. Lewis, 36 Cal. 531 ; People t'. 
 Garbutt, 17 Mich. 9 ; Freery v. People, 54 Barb. 319 ; Roberts v. People, 19 Mich, 
 401 ; Real i-. People, 42 N. Y. 270. 
 
 Evidence that on occasions prior to that of the commission of the larceny charged, 
 the prisoner was bereft of his reason when intoxicated, held inadmissible to disprove 
 the aiiimvii farandi. State v. Hart, 29 la. 268. 
 
 Wliether a person found drunk in the house of another was in a condition to have 
 committed burglary, is for tlie jury. State v. Bell, 29 la. 316. 
 
 If a man is insane when sober, the fact tliat he increased the insanity by the super- 
 added excitement of liquor, does not thereby make him responsible for his acts when 
 in that condition. Choice r. State, 31 (ia. 424. 
 
 Where the defendant's mind is so far destroyed by a long continued habit of drunk- 
 enness, as to render him mentally incompetent, intentionally and knowingly to com- 
 mit a larceny, lie should be acquitted, altliough he w;us intoxicated at the time he 
 took the propertv. Bailey v. State, 26 Ind. 422. And see Bradley v. State, 31 Ind, 
 492; State v. Handley, 46 Mo. 414. 
 
 United States v. Drew, 5 Mason, 28 ; 3 Am. .Tur. 5 ; Burnett v. State, M. & Y. 133 ; 
 Corawell V. State, Id. 147; State v. McCants, 1 Spears, 384. 
 
 Long-continued inebriety, although resulting in occasional insanity, does not 
 require proof of a lucid interval to give validity to the acts of the drimkard, as is 
 required when general insanity is proved. When the indulgence lias produced 
 general derangement of mind, it would be otherwise. Gardiner v. Gardiner, 22 
 Wend. 526. 
 
 In a case of murder, the prisoner's intoxication is not such an excuse as will allow 
 a less than ordinarily aflequate provocation to palliate the offence, unless it was so 
 great as to render him unable to form a wilful, deliberate, and premeditated design to 
 kill, or incapable of judging of his acts and tlieir legitimate consequences. Keenan v. 
 Commonwealth, 44 Pa. St. 55. 
 
 Although drunkenness is not an excuse for crime, the condition of the accused
 
 Insanity. 1241 
 
 R. V. Grindley, 1 Riiss. Cri.115, 5th od.; but see the note (r) apponded 
 to tho ease. And where the prisoner was tried for attempting to 
 commit suicide, and it appeared that at the time of tlie alleged 
 offence she was so drunk that she did not know Avhat she did, Jervis, 
 C. J., held that negatived the attemj)t to commit suicide. R. v. 
 Moore, 3 C. & K. 319, and the case cited, ante, p. 782. 
 
 As to the disposal of persons found to be insane at the time of the 
 offence committed, se(} ante, p. 230. 
 
 The mode of arraignment and trial of such persons has also been 
 stated, ante, p. 199. 
 
 caused by drunkenness, may be taken into consideration by the jury, witli the other 
 facts of the case, to enable them to decide in respect to the question of intent. Peo- 
 ple v. Harris, 29 Cal. 678. 
 
 An instruction " that drunkenness can never be received as a ground to excuse or 
 palliate a crime," is erroneous, as it may depend on its motive, its degree, and its 
 effect on the mind. Golliher v- Commonwealth, 2 Duv. 163; State v. Schingen, 20 
 Wis. 74; State r. Garvey, 11 Minn. 154. 
 
 In the trial of a person indicted for murder, the jury should take into consideration 
 evidence of the intoxication of the defendant at the time he committed the offence, 
 in determining the degree of murder. People r. King, 27 Cal. 507 ; Smith v. Com- 
 monwealtli, 1 Duv. 224. And see Lanergan v. People, 50 Barb. 266 ; Curry v. Com- 
 monwealth, 2 Bush, 67; O'Brien r. People, 48 Barb. 274; Commonwealth v. Hart, 2 
 Brewst. 546 ; Kriel v. Commonwealth, 5 Bush, 362 ; People v. Belencia, 21 Cal. 544 ; 
 State V. Cross, 27 Mo. 332; Golden v. State, 25 Georgia, 527; Jones ?'. State, 29 Id. 
 594 ; Mooney v. State, 33 Ala. 419 ; O'Herrin v. State, 14 Ind. 420 ; Dawson v. State, 
 16 Ind. 428. 
 
 As to the cases of delirium tremens, see State v. Sewall, 3 Jones's Lnw, 245 ; Peo- 
 ple V. McCann, 3 Park. C. K. 272 ; Macconehey v. State, 5 O. St. 77. S.
 
 1242 COERCION BY HUSBAiTD 
 
 ♦1010] *COERCION BY HUSBAND. 
 
 In certain cases a married woman is privileged from punishment, 
 upon the ground of the actual or presumed command and coercion of 
 her husband compelling her to the commission of the olfcnce. But 
 this is only a presumption of law, and if it appears upon the evidence 
 that she did not in fact commit the oli(3nce mider compulsion, but was 
 lierself a principal actor and inciter in it, she must be found guilty. 1 
 Hale, P. C. 516. In one case it appears to have been held by all the 
 judges, upon an indictment against a married woman for falsely 
 swearing herself to be next of kin, and procuring administration, 
 that she was guilty of the offence, though her husband was with her 
 when she took the oath. R. v. Dick, 1 Russ. on Cri. 5th cd., 141. Upon 
 an indictment against a man and his wife for putting off forged notes, 
 where it appeared that they went together to a public house to meet 
 the person to whom the notes were to be put off, and that the woman 
 had some of them in her pocket, she was held entitled to an acquittal. 
 K. V. Atkinson, 1 Russ. Cri. 153, 154, 5th ed. 
 
 Evidence of reputation and cohabitation is in these cases sufficient 
 evidence of marriage. Id. But where the woman is not described 
 in the indictment as the wife of the man, the onus of proving that 
 she is so rests upon her. R. v. Jones, Ivel. 37 ; 1 Russ. Cri. 153, 
 5th ed. 
 
 But where on the trial of a man and woman it appeared by the 
 evidence that they addressed each other as husband and wife, and 
 passed as such, and were so spoken of by the witnesses for the pros- 
 ecution, Patteson, J., held that it was for the jury to say whether 
 they were satisfied that they were in fact husband and wife, even 
 though the woman had pleaded to the indictment, wiiich described 
 her as a " single woman." R. v. Woodward, 8 C. & P. 561, 34 E. 
 C. L. See also R. v. Good, 1 C. & K. 185, 47 E. C. L.; R. v. Tor- 
 pey, 12 Cox, C. C. 45, infra. 
 
 The presumption of coercion on the part of the husband does not 
 arise, unless it appear that he was ]3resent at the time of the offence 
 committed. 1 Hale, P. C. 45. Thus where a wife by her husband's 
 order and procurement, but in his absence, knowingly uttered a forged 
 order and certificate for the payment of prize-money, all the judges 
 held, that the presumption of coercion at the time of uttering did 
 not arise, and that the wife was properly convicted of uttering, and 
 the husband of procuring. R. v. Morris, Russ. & Ry. 270. 
 
 So where the husband delivered a threatening letter ignorantly, as 
 the agent of the wife, she alone was held to be punishable. R. v. 
 Hammond, 1 Leach, 447. 
 
 The prisoner, Martha Hughes, Avas indicted for forging and utter-
 
 COERCION BY HUSBAND. 1243 
 
 ing Bank of EnglniKl notes. The Avitnoss stated tliat he went to the 
 shop of the prisoner's liiisband, where she took him into an inner 
 room and sokl him the notes ; that while he was putting them into 
 his pocket the husband put his liead in and said, "Get on with you." 
 *On returning to the shop lie saw the husband, who, as well r:^,-lf^-^■l 
 as the wife, desired him to be earefid. It was objected, that L 
 the offence was committed under coercion, but Thompson, J>,, thought 
 otherwise. He said, the law, out of tenderness to the wife, if a felony 
 be comaiittcd in the presence of her husband, raises a presumption, 
 primd facie, aud primd facie only, as is clearly laid down by I^ord Hale, 
 that it was done under his coercion ; but it was absolutely necessary 
 in such ca,se that the husband should be actually present, and taking 
 a part in the transaction. Here it is entirely the act of the wife; 
 it is, indeed, in consequence of a previous eomraunication with the 
 husband that the witness applies to the wife ; but she is ready to 
 deal, and has on her person the articles which she delivers to the 
 witness. There Avas a putting oif before the husband came, and it is 
 sufficient if, before that time, she did that Avhich Avas necessary to 
 complete the crime. The coercion must be at the time of the act 
 done ; but when the crime has been completed in his absence, no 
 subsequent act of his (though it might possibly make him an ac- 
 cessory ' to the felony of the wife), can be referred to what Avas done 
 in his absence. R. v. Hughes, 1 Russ. Cri. 147, 5th ed.; 2 LcAvin, 
 C. C. 229. But Avhere on an indictment against a Avoman for uttering 
 counterfeit coin it appeared that the husband accompanied her each 
 time to the door of the shop, but did not go in, Bayley, J., thought 
 it a case of coercion. R. v. Conolly, 2 LcAAan, C. C. 229 ; Anon. 
 Math. Dig. C. L. 262. 
 
 Where husband and Avife Avere convicted on a joint indictment for 
 receiving stolen goods, it \A'as held, that the couA'iction of the Avife 
 AA'as bad, as there Avas nothing to show that the Avife received the 
 goods in the absence of her husband. R. v. Archer, 1 Moo. C. C. 143, 
 ante, p. 916 ; R. v. MatthcAvs, 1 Den. C. C. R. 596. And Avhere stolen 
 goods are found in a man's house, and his Avife in his presence makes 
 a statement exonerating him and criminating herself, it appears that 
 Avith respect to the admissibility of this statement against her the 
 doctrine of presumed coercion may apply, R. v. Laugher, 2 C. & K. 
 225, 61 E. C. L. And see R. v. Brookes, 1 Dears, C. C. R. 184, 
 ante, p. 917; R. v. Wardroper, ante, p. 917. 
 
 There are various crimes, from the punishment of Avhich the wife 
 shall not be priA'ileged on the ground of coercion, such as those Avhich 
 are mala in se, as treason and murder. 1 Hale, P. C. 44, 45 ; R. v. 
 Mannim;, 2 C. & K. 903, 61 E. C. L. " Some of the books also ex- 
 cept robbery." Per Patteson, J., R. v. Cruse, 8 C. & P. 545, 34 E. 
 C. L.; 2 jNIoo. C. C. 54 ; but see R. v. Torpey, infra. The learned 
 judge afterAA'ards said, " It may be, that in cases of felony, committed 
 with A'iolence, the doctrine of coercion does not apply." In the above 
 case, Avhere a husband and Avife Avere indicted under the repealed stat- 
 ute 7 Will. 4 & 1 Vict. c. 85, s. 2, for the capital offence of inflicting
 
 1244 COERCION BY HUSBAND. 
 
 an injury dangerous to life: Patteson, J., seemed of opinion, tliat as 
 the wife took an active })art in the transaction, she might be found 
 guilty of tiie offence with the husband, but said he would reserve the 
 point, if upon further consideration ho thought it necessary. The 
 prisoners, however, were accpiitted of the felony and convicted of an 
 assault. See also R. v. Buncombe, 1 Cox, C. C. 113, where Coleridge, 
 J., expressed his intention, if the prisoner were convicted, of reserving 
 this point for the consideration of the judges. 
 
 And in offences relating to domestic matters and the government 
 of the house, in which the wife may be supposed to have a principal 
 *i ni 01 *'^hare, the rule with regard to coercion docs not exist, as upon 
 J an indictment for keeping a disorderly house, or gaming-house. 
 Hawk. P. C. b. 1, c. 1, s. 12, ante, p. 823. K. v. Dixon, 10 Mod. 
 33G. 
 
 And the prevailing opinion is said to be, that the wife may be 
 found guilty with the husband in all misdemeanors. Arch. C. L. 
 17, 10th ed.; 4 Bl. Com. by Ryland, 29 («) ; R. v. Ingram, 1 
 Salk. 384. 
 
 But where a husband and wife were jointly indicted for a misde- 
 meanor in uttering counterfeit coin, and it appeared that the wife 
 uttered the base money in the presence of her husband ; Mirehouse, 
 C. S. (after consulting Bosanquet, and Coltman, JJ.), held that she 
 was entitled to an acquittal. R. v. Price, 8 C. & P. 19, 34 E. C. L.; 
 and see R. v. Conolly, ante, p. 1011, which Avas also a case of misde- 
 meanor ; see also 8 C. & P. 21 n. {b), 34 E. C. L. 
 
 However, in R. v. Cruse, ante, p. 1011, where the jury convicted a 
 husband and Avife of an assault, under the repealed statute 7 Will. 4 
 & 1 Vict. c. 85, s. 11, the judges, on a case reserved, affirmed the 
 conviction, being unanimously of opinion, that the point with respect 
 to the coercion of the wife did not arise, as the ultimate result of the 
 case was a conviction for misdemeanor. The contrary has, however, 
 been ruled by Russell Gurney, Recorder, after consulting Bramwell, 
 B. R. V. Torpcy, 12 Cox, C. C. 45. 
 
 Where the wife is to be considered as merely the servant of her 
 husband, she will not be answerable for the consequences of his 
 breach of duty, however fatal, though she may be privy to his con- 
 duct. Thus where the husband and wife \vere indicted for the 
 murder of an apprentice of the husband, who had died for want of 
 proper nourishment, Lawrence, J., held that the wife could not be 
 convicted; for, though equally guilty inforo conscieniice., yet, in point 
 of law, she could not be guilty of not providing the apprentice with 
 sufficient food. R. v. Squire, 1 Russ. Cri. 145, 5th ed.; see further, 
 ante, p. 764. 
 
 A woman cannot be indicted as an accessory by rescuing her hus- 
 band. 1 Hale, P. C. 47. Nor could she be guilty of larceny in steal- 
 ing her husband's goods. 1 Hale, P. C. 514, ante, p. 681. But if 
 she and a stranger stole the goods, the stranger Avas liable. R. v. Tol- 
 free, 1 Moo. C. C. 243 ; see further, ante, p. 681. So it has been held 
 that she was not guilty of arson within the 7 & 8 Geo. 4, c. 30, s. 2,
 
 COERCION BY HUSBAND. 1245 
 
 (repealed), by setting her husband's house on fire. E. v. Marsh, 1 
 Moo. C. C. 182, «n^e, p. 298. 
 
 But as has been already seen, a wife can now (sees. Jb ot tlie 
 Married Women's Property Act, 1882 ; 45 & 46 Vict. c. 75) be con- 
 victed of stealing her husband's property ; but it seems that she could 
 not be convietedi of arson, forgery, and other offences with respect to 
 his property.
 
 APPENDIX. 
 
 14 & 15 VICT. c. 100. 
 
 AN ACT FOR FURTHER IMPROVING THE ADMINISTRATION [7th Aug- 
 ust, 1851.1 
 OF CRIMINAL JUSTICE. ' ^ 
 
 Whereas offenders frequently escape conviction on their 
 trials by reason of the technical strictness of criminal pro- 
 ceedings in matters not material to the merits of the case ; 
 and whereas such technical strictness may safely be relaxed 
 in many instances, so as to insure the punishment of the 
 guilty, without depriving the accused of any just means of 
 defence ; and whereas a failure of justice often takes place 
 on the trial of persons charged with felony and misdemeanor, 
 by reason of variances between the statement in the indict- 
 ment on which the trial is had and the proof of names, 
 dates, matters, and circumstances therein mentioned, not 
 material to the merits of the case, and by the misstatement 
 whereof the person on trial cannot have been prejudiced in 
 his defence : Be it therefore enacted by the Queen's most 
 excellent Majesty, by and with the advice and consent of 
 the Lords spiritual and temporal, and Commons, in this 
 present Parliament assembled, and by the authority of the 
 same, as follows : 
 
 I. From and after the coming of this Act into operation. The court 
 whenever on the trial of any indictment for any felony or™^fat™*'"^ 
 misdemeanor there shall appear to be anv variance between variances 
 
 1 • 1 • T 1 "i • 1 no ^ "°^ mater- 
 
 the statement in such indictment and the evidence oitered iai to the 
 in proof thereof, in the name of any county, riding, division, the'^case, 
 city, borough, town corporate, parish, township, or place f^",'^ch^the 
 mentioned or described in anv such indictment, or in the '^'^'^^"'l'^"* 
 
 , . - ' cannot be 
 
 name or description 01 any person or persons, or body prejudiced 
 politic or corporate, therein stated or alleged to be the fence, and 
 owner or owners of any property, real or personal, Avhicli proceljd^^'^ 
 shall form the subject of any offence charged therein, or in ^^l^ ^^^ 
 the name or description of any person or persons, body the tnai to 
 politic or corporate, therein stated or alleged to be injured fore the 
 or damaged, or intended to be injured or damaged, by thean™fher 
 commission of such offence, or in the Christian name orJ'^'y- 
 surname, or both Christian name and surname, or other 
 description whatsoever, of any person or persons whom- 
 soever therein named or described, or in the name or 
 
 1247
 
 1248 APPENDIX. 
 
 * 1 m 4 1 *<lcscription of any matter or thing whatsoever therein 
 -I named or described, or in tlie ownership of any prop- 
 erty named or described therein, it shall and may be lawful 
 for the court before which the trial shall be had, if it shall 
 consider such variance not material to the merits of the case, 
 and that the defendant cannot be prejudiced- thereby in his de- 
 fence on such merits, to order such indictment to be amended 
 according to the proof, by some officer of the court or other 
 person, both in that i)art of the indictment Avhere such vari- 
 ance occurs and in every other part of the indictment vrhich 
 it may become necessary to amend, on such terms as to post- 
 poning the trial to be had before the same or another jury, as 
 such court shall think reasonable : and after any such amend- 
 ment the trial shall proceed, whenever the same shall be pro- 
 ceeded with, in the same manner in all respects, and with the 
 same consequences, both with respect to the liability of wit- 
 nesses to be indicted for perjury and otherwise, as if no such 
 variance had occurred ; and in case such trial shall be had at 
 Nisi Prius the order for the amendment shall be indorsed on 
 the postea, and returned together with the record, and there- 
 upon such papers, rolls, or other records of the court from 
 which such record issued as it may be necessary to amend shall 
 be amended accordingly by the j^roper officer, and in all other 
 cases the order for the amendment shall either be indorsed on 
 the indictment or shall be engrossed on parchment, and filed, 
 together witli the indictment, among the records of the court : 
 Provided that, in all such cases where the trial shall be post- 
 })oned as aforesaid, it shall be lawful for such court to respite 
 the recognizances of the prosecutor and witnesses, and of the 
 defendant, and his surety or sureties, if any, accordingly, in 
 which case the prosecutor and witnesses shall be bound to at- 
 tend to prosecute and give evidence respectively, and the de- 
 fendant shall be bound to attend to be tried, at the time and 
 place to which such trial shall be postponed, without entering 
 into any fresh recognizances for that ])urpose, in such and the 
 same manner as if they were originally bound by their recog- 
 nizances to appear and prosecute or give evidence at the time 
 and ])lace to which such trial shall have been so postponed : 
 Provided also, that where any such trial shall be to be had 
 before another jury, thecrown and the defendant shall respect- 
 ively be entitled to the same challenges as they were respect- 
 ively entitled to before the first jury was sworm. 
 and'^iud^- ^^' Evcry verdict and judgment which shall be given 
 nienis valid after the making of any amendment under the provisions 
 amend- of tliis Act shall be of the same force and effect in all 
 ments. respects as if the indictment had originally been in the 
 same form in which it was after such amendment was 
 made. 
 
 III. If it shall become necessary at any time for any
 
 APPENDIX. 1249 
 
 puqjose whatsoever to draw up a formal record in any case Records to 
 where any amendment shall have been made nnder the up hi**" ° 
 provisions of this Act, such record shall be drawn up in the fom^^^yfdj. 
 form in which the indictment was, after such amendment 9"' "o"c- 
 *was made, without takniy; anv notice oi the fact ot r-kim c *'"'*-'"<i- 
 such amendment liaving been made. l 
 
 IV. Repealed by the 24 c& 25 Vict. c. 95. 
 
 V. In any indictment for [forging, uttering], stealing, Forms of 
 embezzling, destroying, or concealing, or for obtaining by jn'^.'as™ o"* 
 false pretences any instrument, it shall be sufficient to de- [ute^mg*^"** 
 scribe such instrument by any name or desis^-nation by which steniins^' 
 the same may be usually known, or by the purport thereof, ziing or 
 without setting out any copy or fac-simile thereof, or other- by'faise"^ 
 wise describing the same or the value thereof. This section pretences, 
 is repealed as to forging and uttering by the 24 & 25 Vict. c. 
 
 95. 
 
 VI. Repealed by the 24 & 25 Vict. c. 95. 
 
 VII. In all other cases wherever it sliall be necessary to in other 
 make any averment in any indictment as to any instrument, 
 whether the same consists wholly or in part in writing, 
 print, or figures, it shall be sufficient to describe such 
 instrument by any name or designation by which the same 
 
 may be usually known, or by the purport thereof, without 
 setting out any copy or fac-simile of the whole or any part 
 thereof. 
 
 VIII. Repealed by the 24 & 25 Vict. c. 95. 
 
 IX. This section is set out p. 82, ante, and relates to 
 convictions for attempts, upon indictments for felony or 
 misdemeanor. 
 
 X. Section 10 merely repeals the 11th section of 7 Will. 
 4 & 1 Vict. c. 85, and is eliminated in the new edition. See 
 p. 82. 
 
 XI. Repealed by the 24 & 25 Vict. c. 95. 
 
 XII. By this section, which is set out p. 82, persons tried 
 for misdemeanor are not to be accpiitted if the offi^nce turn 
 out to be felonv. 
 
 XIIL, XIV., XV., XVI., XVII., repealed by the 24 & 
 25 Vict. c. 95. 
 
 XVIII. In every indictment in which it shall be neces- coin and 
 
 , 1 , , , ^bank notes 
 
 saiy to make any averment as to any money or any note of may i>e de- 
 the Bank of England, or any other bank, it shall be sufficient gf^pf^'^as 
 to describe such money or bank-note simply as money, ^oney. 
 without specifying any particular coin or bank-note ; and 
 such allegation, so far as regards the description of the 
 property, shall be sustained by proof of any amount of coin 
 or of any bank-note, although the particular species of coin 
 of which sucli amount was composed, or the particular 
 nature of the bank-note, shall not be proved, and in 
 cases of embezzlement and obtaining money or bank- 
 79
 
 1250 APPEXDIX. 
 
 notes by false pretences, by proof that the offender em- 
 bezzled or obtained any piece of coin or any bank-note, 
 or any portion of the valne thereof, althongh snch piece 
 of coin or bank-note may have been delivered to him 
 in order tiiat some part of the value thereof should be 
 returned to the party delivering the same, or to any other 
 person, and such part shall have been returned accord- 
 ingly, 
 certainpro- XIX. Whereas by an Act of Parliament passed in Eng- 
 23G°ea2, land iu the twenty-third year of the reign of his late 
 31 Gec?:'^) *i 01 n *Majesty King George the Second, intituled " An Act 
 ^^^^^ -* to render Prosecutions for Perjury and Subornation 
 
 of Perjury more easy and effectual ;" and by a certain other 
 Act of Parliament made in Ireland in the thirty-first year of 
 the reign of his late Majesty King George the Third, in- 
 tituled " An Act to render Prosecutions for Perjury and 
 Subornation of Perjury more easy and effectual, and for 
 affirming the Jurisdiction of the Quarter Sessions in cases 
 of Perjury," certain provisions were made to prevent per- 
 sons guilty of perjury and subornation of perjury from 
 escaping punishment by reason of the difficulties attending 
 Any court, sucli prosccutions ; and whereas it is expedient to amend 
 ticcfwc^"^ and extend the same : Be it enacted, that it shall and may 
 a^persd^f^^ be lawful for the judges or judge of any of the superior 
 guilty of courts of commou law or equity, or for any of her Majesty's 
 
 perjury m ... . . /•'.'.. V i , 
 
 anyevi- justiccs or Commissioners ot assize, nisi prius, oyer and ter- 
 to be%1w-" miner, or gaol delivery, or for any justices of the peace, 
 ecuted, recorder or deputy-recorder, chairman, or other judge 
 holding any general or quarter sessions of the peace, or for 
 any commissioner of bankruptcy or insolvency, or for any 
 judge or deputy-judge of any county court or any court of 
 record, or for any justices of the peace in special or petty 
 sessions, or for any sheriff or his lawful deputy before whom 
 any writ of inquiry or writ of trial from any of the sujierior 
 courts shall be executed, in case it shall appear to him or 
 them that any person has been guilty of wilful and corrupt 
 perjury in any evidence given, or in any affidavit, depo- 
 sition, examination, answer, or other proceeding made or 
 taken before him or them, to direct such person to be pros- 
 ecuted for such perjury, in case there shall appear to hira 
 or them a reasonable cause for such prosecution, and to 
 and commit commit such person so directed to be prosecuted until the 
 unless he' i^^xt scssioii of oycr and terminer or gaol delivery for the 
 recogni'-^*' couuty or other district within which such perjury was 
 zance to ap- committed, unless such person shall enter into a recog- 
 take his nizauce, with one or more sufficient surety or sureties, con- 
 bind per- ditioned for the appearance of such person at such next 
 ^Menc^^^ session of oyer and terminer or gaol delivery, and that he 
 will then surrender and take his trial, and not depart the
 
 APPENDIX. 1251 
 
 court without leave, and to require any person lie or they 
 may think fit to enter into a recognizance, conditioned to 
 prosecute or give evidence against such person so directed 
 to be prosecuted as aforesaid, and to give to the party so and (jive 
 bound to prosecute a certificate of the same being directed, of prosecu- 
 which certificate shall be given without any fee or charge, ^'j°"J^gjj"^ 
 and 'shall be deemed sufficient proof of such prosecution whichsiiau 
 having been directed as aforesaid; and upon the production dent evi- 
 thereof the costs of such prosecution shall, and are hereby fhe same. 
 required to be allowed by the court before which any person 
 shall be prosecuted or tried in pursuance of such direction 
 as aforesaid, unless such last- mentioned court shall specially 
 otherwise direct ; and when allowed by any such court in 
 Ireland such sum as shall be so allowed, shall be ordered 
 by the said court to be paid to the prosecutor by the treas- 
 urer of the county in which such oifence shall be alleged 
 *to have been committed, and the same shall be pre- r^i^iy 
 sented for, raised, and levied in the same manner as '- 
 the expenses of prosecutions for felonies are now presented for, 
 raised and levied in Ireland : Provided always, that no such 
 direction or certificate shall be given in evidence upon any 
 trial to be had against any person upon a prosecution so di- 
 rected as aforesaid. 
 
 XX. In every indictment for perjury, or for unlawfully, Extending 
 wilfully, falsely, fraudulently, deceitfully, maliciously, or 2, c."n. Ti, 
 corruptly taking, making, signing, or subscribing any oath, offen^ls 
 affirmation, declaration, affidavit, deposition, bill, answer, a"^ simpii- 
 notice, certificate, or other writing, it shall be sufficient todictments 
 set forth the substance of the oifence charged upon the de- aiid^othe7' 
 fendant, and by what court or before whom the oath, affir-^^^^®^'^^'^® 
 mation, declaration, affidavit, deposition, bill, answer, no- 
 tice, certificate, or other writing, was taken, made, signed, 
 
 or subscribed, without setting forth the bill, answer, infor- 
 mation, indictment, declaration, or any part of any proceed- 
 ing either in law or in equity, and without setting forth the 
 commission or authority of the court or person before whom 
 such offiiuce was committed. 
 
 XXI. In every indictment for subornation of perjury. Extending 
 or for corrupt bargaining or contracting with any person to^^l~fi^\ 
 commit wilful aud corrupt perjury, or for inciting, causing, ^^^9 form of 
 or procuring any person unlawfully, wilfully, falsely, fraud- ments for 
 ulently, deceitfully, maliciously, or corruptly, to take, tlon^' 
 make, sign, or subscribe any oath, affirmation, declaration, ofheM^ke^ 
 affidavit, deposition, bill, answer, notice, certificate, or other ofifence. 
 writing, it shall be sufficient, wherever such perjury or 
 
 other offence aforesaid shall have been actually committed 
 to allege the offence of the person who actually committed 
 such perjury or other offence in the manner hereinbefore 
 mentioned, and then to allege that the defendant unlawfully,
 
 1252 
 
 APPENDIX. 
 
 What de- 
 fects shall 
 not vitiate 
 an indict- 
 lueul. 
 
 Repealing 
 part of 
 60 Geo. 3, 
 & 1 Geo. 4, 
 C 4, as to 
 ttie traverse 
 of indict- 
 ments in 
 cases of 
 misde- 
 meanor. 
 
 wilfully, and corruptly did cause and procure the said per- 
 son the said offence, in manner and form aforesaid, to do 
 and commit ; and wherever such perjury or otlier oli'ence 
 aforesaid shall not have been actually committed, it shall be 
 sufficient to set forth the substance of the offence charged 
 upon the defendant, without setting forth or averring any 
 of the matters or things hereinbefore rendered unnecessary to 
 be set forth or averred in the case of wilful and corrupt per- 
 jury. ^ . . . 
 
 XXII. This section, which provides that a certificate 
 of trial shall be evidence of such trial, is set out, ante, p. 
 862. 
 
 XXIII. This section, which is set out, p. 248, provides 
 for the laying of the venue. 
 
 XXIV. No indictment for any offence shall be held in- 
 sufficient for want of the averment of any matter unnecessary 
 to be proved, nor for the omission of the M'ords " as appears 
 by the record," or of the words " with force and arms," or 
 of the Avords "against the peace," nor for the insertion of 
 the words " against the form of the statute," instead of 
 "against the form of the statutes," or vice versd, nor for that 
 any person mentioned in the indictment is designated by a 
 name of office or other descriptive a])pellation, instead of 
 *1018"I *^"^ proper name, nor for omitting to state the time 
 
 -■ at which the offence Avas committed in any case where 
 time is not of the essence of the offence, nor for stating the time 
 imperfectly, nor for stating tlie offence to have been committed 
 on a day subsequent to the finding of the indictment, or on 
 an impossible day, or on a day that never happened, nor 
 for want of a proper or perfect venue, nor for Avant of a 
 proper or formal conclusion, nor for want of or imperfec- 
 tion in the addition of any defendant, nor for want of the 
 statement of the value or price of any matter or thing, or 
 the amount of damage, injury, or spoil, in any case where 
 the value or price, or the amount of damage, injury, or spoil, 
 is not of the essence of the offence. 
 
 XXV. This section, which is set out, p. 208, provides for 
 the taking of objections before the jury are sworn, and the 
 amending of formal defects in indictments. 
 
 XXVI. So much of a certain Act of Parliament passed 
 in the sixtieth year of the reign of his late Majesty King 
 George the Third, intituled " An Act to jjrevent delay in 
 the Administration of Justice in cases of Misdemeanor," 
 as provides that " where any person shall be prosecuted 
 for any nii.sdemeanor by indictment, at any session of the 
 peace, session of oyer and terminer, great session, or ses- 
 sion of gac^ delivery, within that part of Great Britain 
 called England, or in Ireland, having been committed to 
 custody or hold to bail to appear to answer for such offence.
 
 APPENDIX. 1253 
 
 twenty days at the least before the session at whicli such 
 indictment shall be found, he or she shall plead to such in- 
 dictment, and trial shall proceed thereon, at such same 
 session of the peace, session of oyer and terminer, great 
 session, or session of gaol delivery respectively, unless a 
 writ of certiorari ft)r removing such indictment into his 
 Majesty's Court of King's Bench at Westminster or in 
 Dublin shall be delivered at such session before the jury 
 shall be sworn for such trial," shall be and the same is 
 hereby repealed. 
 
 XXVII. This section, which is set out, p. 200, provides 
 for traversing or postponing indictments. 
 
 XXVIII. In any ]ilea of autrefois convict or autrefois Provision 
 acquit it shall be suflicieut for any defendant to state that autrefofs^ ° 
 he has been lawfully convicted or acquitted (as the case may acquiu "'^ 
 be) of the said offence charged in the indictment. 
 
 XXIX. Whenever any person shall be convicted of any Punish- 
 one of the offences following, as an indictable misdemeanor ; certain"'" 
 that is to say, any cheat or fraud punishable at common J^^isde-"^^'^ 
 law ; any conspiracy to cheat or defraiftl, or to extort money meauors. 
 or goods, or falsely to accuse of any crime, or to obstruct, 
 prevent, pervert, or defeat the course of public justice ; any 
 escape or rescue from lawful custody on a criminal charge ; 
 
 any public and indecent exposure of the person ; [any inde- 
 cent assault, or any assault occasioning actual bodily harm ; 
 any attempt to have carnal knowledge of a girl under twelve 
 years of age], any public selling, or exposing for pul)lic 
 sale or to public view, of any obscene book, print, picture, 
 or other indecent exhibition ; it shall be lawful for the court 
 *to sentence the offender to be imprisoned for any r^ijirv-jq 
 term now warranted l)y law, and also to be kept to L 
 hard labor during the whole or any part of such term of im- 
 prisonment. This section is repealed as to the part in brackets, 
 by 24 & 25 'Vict. c. 95. 
 
 XXX. In the construction of this Act the word " indict- interpreta- 
 ment " should be understood to include " information," terms. 
 
 " inquisition," and " presentment," as well as indictment, 
 and also any " plea," " replication," or other pleading, and 
 any Nisi Prius record ; and the terms " finding of the in- 
 dictment " shall be understood to include " the taking of an 
 inquisition," " the exhibiting of an information," and " the 
 making a presentment;" and whenever in this Act, in de- 
 scribing or referring to any person or party, matter or thing, . 
 any word importing the singular number or masculine 
 gender is used, the same shall be understood to include and 
 shall be applied to several ])ersons and parties as well as 
 one person or party, and females as well as males, and bodies 
 corporate as well as individuals, and several matters and 
 things as well as one matter or thing ; and the word " prop-
 
 1254 
 
 APPENDIX. 
 
 Com- 
 meiice- 
 nieiit of 
 Act. 
 
 Not to ex- 
 tend to 
 Scotland. 
 
 erty " shall be understood to include goods, chattels, money, 
 valuable securities, and every other matter or thing, whether 
 real or personal, upon or with respect to which any offence 
 may be committed. 
 
 XXXI. This Act shall come into operation on the first 
 day of September, one thousand eight hundred and fifty- 
 one. 
 
 XXXII. Nothiuff in this Act shall extend to Scotland. 
 
 22 & 23 yiCT. c. 17. 
 
 AN ACT TO PREVENT VEXATIOUS INDICTMENTS FOR 
 CERTAIN MISDEMEANORS. 
 
 No indict-* 
 ment for 
 often ces 
 herein 
 named to 
 be prefer- 
 red without 
 previous 
 authoriza- 
 tion. 
 
 Be it enacted by the Queen's most excellent Majesty, by 
 and with the advice and consent of the Lords spiritual and 
 temporal, and Commons, in this present Parliament assembled, 
 and by the authority of the same, as follows : 
 
 1. After the first day of September, one thousand eight 
 hundred and fifty-nine, no bill of indictment for any of the 
 oifences following ; viz. : 
 
 Perjury, _ 
 
 Subornation of perjury, 
 
 Conspiracy, 
 
 Obtaining money or other property by false pretence, 
 
 Keeping a gambling house. 
 
 Keeping a disorderly house, and 
 
 Any indecent assault, 
 shall be presented to or found "by any grand jury, unless the 
 prosecutor or other person presenting such indictment has been 
 bound by recognizance to prosecute or give evidence against 
 the person accused of such offence, or unless the person ac- 
 cused has been committed to or detained in custody, or has 
 *10201 ^^^" bound by recognizance to appear to *ansM'er to 
 -■ an indictment to be preferred against him for such 
 offence, or unless such indictment for such offence, if charged 
 to have been committed in England, be preferred by the di- 
 rection or with the consent in writino; of a Judg-e of one of 
 the superior courts of law at Westminster, or of her Majesty's 
 Attorney-General or Solicitor- General for England, or unless 
 such indictment for such offence, if charged to have been 
 committed in Ireland, be preferred by the direction or with 
 the consent in writing of a Judge of one of the superior 
 courts of law in Dublin, or of her Majesty's Attorney-Gen- 
 eral or Solicitor-General for Ireland, or (in the case of an in- 
 dictment for perjury) by the direction of any court, judge, or 
 public functionary authorized by an Act of the Session holden
 
 APPENDIX. 1255 
 
 in the fourteenth and fifteenth years of her Majesty, chapter i4&i5Vict. 
 cue huuflred, to direct a prosecution for perjury. 
 
 2. That where any charge or complaint shall be made i" ''ertain 
 
 r>i-tr' >•• />! cases where 
 
 beiorc any one or more oi her Maiesty s lustices oi the peace prosecutor 
 that any person has committed any of the otlcnces aforesaid prefer an 
 •within the jurisdiction of such justice, and such justice shall jysike^tT* 
 refuse to commit or to bail the person charged with such of-^'^^e ws 
 fence to be tried for the same, then in case the prosecutor zan<e to 
 shall desire to prefer an indictment respecting the said oftence, ^^"^ ^ 
 it shall be lawful for the said justice and he is hereby required 
 to take the recognizance of such prosecutor to prosecute the 
 said charge or complaint, and to transmit such recognizance, 
 information, and depositions, if any, to the court in which 
 such indictment ought to be preferred, in the same manner as 
 such justice would have done in case he had committed the 
 person charged to be tried for such offence. 
 
 3. This Act shall not extend to Scotland. Act not to 
 
 extend to 
 Scotland. 
 
 30 & 31 VICT. c. 35. 
 
 AN ACT TO REMOVE SOME DEFECTS IX THE ADMINISTRA- 
 TION OF THE CRIMINAL LAW, 
 
 Whereas it is found that delay and inconvenience are fre- r20th June, 
 quently caused by the provisions contained in the first section ^*'^''^ 
 of the Act 22 & 23 Vict. c. 17, in cases not within the mis- 
 chief for remedy whereof the same act was made and passed, 
 and it is expedient to restrict the operation thereof: be it en- 
 acted by the Queen's most excellent Majesty, by and with the 
 advice and consent of the Lords spiritual and temporal, atid 
 Commons, in this present Parliament assembled, and by the 
 authority of the same : 
 
 1. That the said provisions of the said first section of the Limitation^ 
 said Act shall not extend or be applicable to prevent the vict.'^c.l?.' 
 pi-esentmeut to or finding by a grand jury of any bill of 
 indictment containing a count or counts for any of the 
 offences mentioned in the said Act, if such count or counts 
 be such as may now be lawfully joined with the rest of such 
 *bill of indictment, and if the same count or counts r^-i/^Q-i 
 be founded (in the opinion of the court in or before ^ 
 which the same bill of indictment be preferred) upon the facts 
 or evidence disclosed in any examinations or depositions taken 
 before a justice of the peace, in the presence of the person ac- 
 cused or proposed to be accused by such bill of indictment, 
 and transmitted or delivered to such court in due course of law ; 
 and nothing in the said Act shall extend or be applicable to 
 prevent the presentment to or finding by a grand jury of any
 
 1256 APPENDIX. 
 
 bill of indictment, if such bill be presented to the grand jury 
 with the consent of the court in or before which the same may 
 be preferred. 
 On acquit-^ 2. Whenever any bill of indictment shall be preferred to 
 person i'n- any grand jury, under the provisions of the Act 22 & 23 
 haslior *' Vict. c. 17, against any person who has not been committed 
 inuie(i°or to or detained in custody, or bound by recognizance to 
 held to bail, jji^g^ygj. gudi indictment, and the person accused thereby 
 
 court niiiy , ' ^ "^ 
 
 order prose- shall bc acquitted thereon, it shall be lawful for the court 
 costs^toac- before which such indictment shall be tried, in its discre- 
 thfnk the*^ tiou to direct and order that the prosecutor or other person 
 prosecution j^y q^ ^t whosc iustancc sucli indictment shall have been 
 
 unreason- "^ » i i n i i i . i 
 
 able. preferred shall pay unto the accused person the just and 
 
 reasonable costs, charges, and expenses of such accused 
 person and his witnesses (if any) caused or occasioned by 
 or consequent upon the preferring of such bill of indictment, 
 to be taxed by the proper officer of the court ; and upon non- 
 payment of such costs, charges, or expenses within one cal- 
 endar month after the date of such direction and order, 
 it shall be lawful for any of the superior courts of law 
 at AVestminster or any judge thereof, or for the justices and 
 judges of the Central Criminal Court (if the bill of indict- 
 ment has been preferred in that court), to issue against 
 the person on whom such order is made such and the like 
 writ or writs, process or processes, as may now be lawfully 
 issued by any of the said superior courts for enforcing judg- 
 ment thereof, 
 ^"^"s^rffo '^' ^^^^ whereas complaint is frequently made by per- 
 be asked by sons charged with indictable offences, upon their trial, that 
 (iTsinfto they are unable by reason of poverty to call witnesses on 
 nesses!'" their behalf, and that injustice is thereby occasioned to 
 them ; and it is expedient to remove, as far as practicable, 
 all just ground for such complaint : Therefore, in all cases 
 where any person shall appear or be brought before any 
 justice or justices of the peace charged with any indictable 
 offence, whether committed within this realm or upon the 
 high seas, or upon land beyond the sea, and whether such 
 person appear voluntarily upon smiimons, or has been ap- 
 prehended with or without warrant, or be in custody for the 
 same or any other offence, such justice or justices, before 
 he or they shall commit such accused person for trial or 
 admit him to bail, shall, immediately after obeying the 
 directions of the 18th section of the Act 11 & 12 Vict, 
 c. 42, demand and require of the accused person whether he 
 desires to call any witness ; and if the accused person shall, 
 in answer to such demand, call or desire to call any witness 
 *1 0991 *^^ witnesses, such justice or justices shall, in the pres- 
 *^-' en(!e of such accused person, take the statement on oath 
 or affirmation, both examination and cross-examination, of
 
 APPENDIX. 1257 
 
 those who shall be so called as witnesses by such accused per- 
 son, and who shall know anything relating to the facts and 
 circumstances of the case or anything tending to prove the 
 innocence of such accused person, and shall put the same 
 
 into writinsr ; and such depositions of such witnesses shall '^J^eirdepo- 
 o' -, . I '111 • sitioustobe 
 
 be read over to and signed respectively by the witnesses taken and 
 who shall have been so examined, and shall be signed also court of 
 by the justice or justices taking the same, and transmitted c"^g(j'*.jer'. 
 in due course of law with tlie depositions, and such wit- ^^^^ ^"'^ 
 nesses, not being witnesses merely to the character of the , 
 accused, as shall in the opinion of the justice or justices 
 give evidence in any way material to the case or tending to 
 prove the. innocence of the accused person shall be bound 
 by recognizance to appear and give evidence at the said 
 trial ; and afterwards upon the trial of such accused per- 
 son all the laws now in force relating to the depositions 
 of witnesses for the prosecution shall extend and be appli- 
 cable to the depositions of witnesses hereby directed to be 
 taken. 
 
 4. All the provisions of the said Act 1 1 & 1 2 Vict. c. 42, Provisions 
 relating to the summoning and enforcing the attendance vict. c. 42. 
 and committal of witnesses, and binding them by recogniz- tMs^lct!^ '° 
 ance and committal in default, and for giving the accused 
 persons copies of the examinations, and giving jurisdiction 
 
 to certain persons to act alone, shall be read, and shall have 
 operation as part of this Act. 
 
 5. The court before which any accused person shall be if witnesses 
 prosecuted or tried, or for trial, before which he may beboimd'by ' 
 committed or bailed to appear for any felony or misde- ^aucH^p- 
 meanor, is hereby authorized and empowered, in its discre- P^*^r *^^ ^^^ 
 
 7 J 1 7 triul court 
 
 tion, at the request of any person who shall appear before may'aiiow 
 such court on recognizance to give evidence on behalf Qf ^-''p^"*^^- 
 the person accused, to order payment unto such witness so 
 appearing, such sum of money as to the court shall seem 
 reasonable and sufficient to compensate such witness for 
 the expenses, trouble and loss of time he sliall have in- 
 curred or sustained in attending before the examining 
 magistrate, and at or before such court ; and the amount of 
 such expenses of attending before the examining magistrate, 
 and compensation for trouble and loss of time therein, shall 
 be ascertained by the certificate of such magistrate, granted 
 before the attendance in court ; and the amount of all other 
 expenses and compensation shall be ascertained by the 
 proper officer of the court, who shall, upon receipt of the 
 sum of sixpence for each witness, make out, and deliver to 
 the person entitled thereto an order for such expenses and 
 compensation, together with the said fee of sixpence, upon 
 such and the same treasurers and officers as would now by 
 law be liable to payment of an order for the expenses of
 
 1258 APPENDIX. 
 
 the prosecutor or witnesses against such accused person ; 
 and if tlic accusation be of sucli Icind that the court shall 
 have no power to order the expenses of the prosecutor, then 
 *1 "»9'^1 *^'P^^" ^^^^ treasurer or other officer in the caj)acity of 
 ' J a treasurer of the county, riding, division, city, bor- 
 ough or place where the oil'ence of such accusetl person may 
 be alleged to have been committed, which treasurer or other 
 officicr is hereby required to j)ay the same orders n})on sight 
 thereof, and shall be allowed the same in his accounts : Pro- 
 vided always, that in no case shalLany such allowances or com- 
 pensation exceed the amount now by law permitted to be 
 made to prosecutors and witnesses for the ])rosecution ; 
 and provided always that such allowances and compensa- 
 tion shall be allowed and paid as part of the expenses of 
 the prosecution. - 
 Power to (5. And whereas by the 17th section of the Act 11 & 12 
 
 lake depo- _.., j -> • • • i i • • 
 
 sitionof Vict. c. 42, it IS permitted under certain circumstances to 
 gerouKiy'^"* read in evidence on the trial of an accused person the depo- 
 jj|j'g^"'jQ"*'*sition taken in accordance with the provisions of the said 
 ^«'^'^'"' Act of a witness who is dead, or so ill as to be unable 
 make same to travel ; and whereas it may happen that a person dan- 
 certai?!*'^ ^"^ gerously ill, and unable to travel, may be able to give mate- 
 after'death ^'^^^ ^'^^ important information relating to an indictable 
 of such oftence, or to a person accused thereof, and it may not be 
 practical or permissible to take, in accordance witii tlie pro- 
 visions of the said Act, the examination or deposition of the 
 person so being ill, so as to make the same available as evi- 
 dence in the event of his or her death before the trial of 
 the accused person, and it is desirable in the interests of 
 truth and justice that means should be provided for per- 
 petuating such testimony, and for rendering tiie same avail- 
 able in the event of the death of the person giving the 
 same : Therefore, whenever it shall be made to appear to 
 the satisfaction of any justice of the peace that any person 
 dangerously ill, and in the opinion of some registered 
 medical practitioner not likely to recover from such illness, 
 is able and willino; to give material information relatino- to 
 any indictable offence, or relating to any person accused 
 of any such offence, and it shall not be practicable for any 
 justice or justices of the peace to take an examination or 
 deposition, in accordance with the provisions of the said 
 Act of the person so being ill, it shall be lawful for the said 
 justice to take in writing the statement on oath or affirma- 
 tion of such person so being ill, and such justice shall there- 
 upon subscribe the same, and shall add thereto by way of 
 caption a statement of his reason for taking the same, and 
 of the I day and place when and wlierc the same was taken, 
 and of the names of the persons (if any) present at the 
 taking thereof, and, if the same shall relate to any indictable
 
 APPENDIX. 1259 
 
 offence for which any accused person is already committed 
 or bailed to appear for trial, shall transmit the same with 
 the said addition to the proper officer of the court for trial 
 at which such accused person shall have been so committed 
 or bailed ; and in all other cases he shall transmit the same 
 to the clerk of the peace of the county, division, city, 
 or borough in Avliich he shall have taken the same, who is 
 hereby required to preserve the same, and file it of record; 
 and if afterwards, upon the trial of any offender or offence 
 *to which the same may relate, the person who made r*iA94 
 the same statement shall be proved to be dead, or if it L 
 shall be proved that there is no reasonable probability that 
 guch person will ever be able to travel or to give evidence, 
 it shall be lawful to read such statement in evidence, either 
 for or against the accused, without farther proof thereof, if 
 the same purports to be signed by the justice by or before 
 whom it purports to be taken, and provided it be proved to 
 the satisfaction of the court that reasonable notice of the 
 intention to take such statement has been served upon the 
 person (whether prosecutor or accused) against whom it is 
 proposed to be read in evidence, and that such person, or 
 his counsel or attorney, had or might have had, if he had 
 chosen to be present, full opportunity of cross-examining 
 the deceased person who made the same. 
 
 7. Whenever a prisoner in actual custody shall have Provision 
 served or shall have received notice of an intention to take p^Lmfer 
 such statement as hereinbefore mentioned, the judge or j^'J-^^"^^ pres- 
 iustice of the peace by whom the prisoner was committed taking of 
 or the visiting justices of the prison in which he is con- 
 fined, may, by an order in writing, direct the gaoler having 
 
 the custody of the prisoner to convey him to the place 
 mentioned in the said notice for the purpose of being pres- 
 ent at the taking of the statement ; and such gaoler shall 
 convey the prisoner accordingly, and the expenses of such 
 conveyance shall be paid out of the funds applicable to the 
 other expenses of the prison from which the prisoner shall 
 have been conveyed. 
 
 8. And whereas relief has been given by the statute Provisions 
 24 & 25 Vict. c. 66, to persons refusing, from alleged con- vict c m, 
 scientious motives, to be sworn as witnesses in criminal n|s°es"vvho 
 proceetlings, and it is expedient to extend that relief to ""^Jeft to be 
 
 ■> • 1 • 1 I' ' n sworn 
 
 persons required to serve as lurors : therefore il any person extended 
 
 ^ ] -Ij. • • ••! to jurors. 
 
 summoned or required to serve as a juror in any civil or 
 criminal proceeding shall refuse, or be unwilling from 
 alleged conscientious motives, to be sworn, it shall be lawful 
 for the court or judge, or other presiding officer or person, 
 qualified to administer an oath to a juror, upon being satis- 
 fied of the sincerity of such objection, to permit such
 
 1260 APPENDIX. 
 
 person, instead of being sworn, to make liis or her solemn 
 affirmation or declaration in tiie words following : 
 
 " I, A. B., do solemnly, sincerely, and truly affirm 
 and declare that the taking of any oath is, accord- 
 ing to my religious belief, unlawful ; and I do 
 also solemnly, sincerely, and truly affirm and de- 
 clare," etc. 
 which solemn affirmation and declaration shall be of the 
 same force and effect, and if untrue shall entail all the 
 same consequences as if such person had taken an oath iu 
 the usual furm ; and whenever in any legal proceedings it 
 is necessary or usual to state or allege that jurors have 
 been sworn, it shall not be necessary to specify that any 
 particular juror has made affirmation or declaration instead 
 of oath, but it shall be sufficient to state or allege that the 
 jurors have been '* sworn or affirmed." 
 Money ^iaoc-] *^' Where any prisoner shall be convicted, either 
 pr'isoner'to ^' ^ suuimarily or other^vise, of larceny or other offi?nce, 
 purdm'er° which includcs the stealing of any property, and it shall aj)- 
 of pr. peity ^^.j^^. i^q ^jjg court by the evidence that the prisoner has sold 
 
 not known i •' i i i 
 
 tobestoien, the stolen property to any person, and that such person has 
 tion^of had no knowledge that the same was stolen, and that any 
 properly. j^(^jj(.yg have been taken from the prisoner on his apprehen- 
 sion, it shall be lawful for the court, on the application of 
 such purchaser, and on the restitution of the stolen property 
 to the prosecutor, to order that out of such moneys a sum not 
 exceeding the amount of the proceeds of the said sale be de- 
 livered to the said purchaser. 
 Governorof 10. Where rccoguizances shall have been entered into for 
 ^JhiiImip' the appearance of any person to take his trial for any offence 
 any'perso'ii^t any court of Criminal jurisdiction, and a bill of indictment 
 indicied shall be fouud against him, and such person shall be then in 
 writ of the prison belonging to the jurisdiction of such court, under 
 cortfus^, warrant of commitment, or under sentence for some other 
 of court.'^^^ offence, it shall be lawful for the court, by order in writing, 
 to direct the governor of the said prison to bring up tlie body 
 of such person in order that he may be arraigned u})on such 
 indictment without writ of habeas corpus, and the said gov- 
 ernor shall thereu|)on obey such order. 
 Extent of H. This Act shall not extend to Ireland. 
 coni- 12. This Act shall come into operation on the first day of 
 
 meiirof October, one thousand eight hundred and sixty-seven. 
 
 Act.
 
 INDEX. 
 
 [The references are to the star paging.] 
 
 ABANDONMENT 
 
 of children by parents, 398. See Child. 
 
 ABDUCTION, 
 
 whetlier an offence at common law, 267 
 
 by statute, id. 
 
 of a woman from motives of hicre, id, 
 
 of woman un ler 21 years against the will of her guardian, 268 
 
 offender incapable of taking property, id. 
 
 taking away a woman by force, witli intent, etc., id. 
 
 of girl under sixte<^n, id. 
 
 of children under fourteen, id. 
 
 what consiitutes, 21)9 
 
 meaning of word "taking," id. 
 
 meaning of word "possession," 270 
 
 proof of want of consent of guardian, 271 
 
 of age, 272 
 
 bond fide belief of over age no defence, id, 
 
 of intent, id. 
 
 of the woman being an heiress, id. 
 
 ABETTORS. See Accessoi-y. 
 
 ABOMINABLE CRIME. See Infamous Crime. 
 
 ABORTION. 
 
 procuring, nt common law, 274 
 by statute, id. 
 
 administering poison to procure, id. 
 . proof of administering, id. 
 
 proof of the natm-e of the tiling administered, 275 
 woman need not be quick with chill, 274 
 proof of the intent, 276. See Poison, 
 manslaughter in procuring, 725 
 
 ACCEPTANCE, 
 
 obtaining, by false pretences, 498 
 
 ACCEPTING 
 
 bill of exchange, etc., without authority, 553 
 
 ACCESSORY, 
 
 wliat offences admit of, 181 
 
 aiding and abetting in felony, id, 
 
 before the fact in felony, 183 
 
 bare permission, id. 
 
 countermand, id. 
 
 by the in ervention of a third person, id, 
 
 degree of incitement, id. 
 
 principal varying from orders, 181 
 
 whether there can be in manshuiKhter, 181, 707 
 
 how they are to be indicted, tried, and punished, 83, 185 
 
 1261
 
 1262 INDEX. 
 
 ACCESSORY— co7!/mi/ed 
 
 after tlie fact in felony, 186 
 husband and wife, id. 
 
 how indicted, tried, and punished, 188 
 aiders and abettors in misdemeanor, id. 
 accessories in misdemeanors. 189 
 venue and jurisdiction, id. 
 
 accessories under tiie Explosive Substances Act, id. 
 aiding under tlie Corrupt Practices Act, 345 
 in coining, 412 
 
 proceedings against, for forgery and offences connected therewith, 562 
 who is, in forgery and uttering, oU3 
 after the fact to murder, how punished, 747 
 to murder, 808 
 to piracy, 870 
 
 to offences relating to post-office, 876 
 to rape, 902 
 
 ACCIDENT, 
 
 death caused by, 716. See Manslaughter and Murder, 
 
 ACCOMPLICE 
 
 always admissible as a witness, 130 » 
 
 leave of court must be obtained, 131 
 
 how obtained where he is to be taken before grand jury, id. 
 
 wlien he will be acquitted in order that he may give evidence, id, 
 
 com|5etent witness for prisoner, 132 
 
 not inadmissible because he lias a promise of pardon, id. 
 
 corroboration of, id 
 
 conviction on testimony of, uncorroborated, is legal, id. 
 
 but IK it usual, id. 
 
 anumalous state of the law, id. 
 
 betters not accomplices, 133 
 
 nature of corrobo ration which it is usual to require, 133 
 
 situation of, when called as a witness, 135 
 
 what claim he has to pardon, id. 
 
 evidence given by, may be used against him as a confession, 136 
 
 ACCOUNTANT-GENERAL, 
 
 forgeries of name of, or documents issued by, 564 
 
 ACQUIESCENCE. See Omseni. 
 
 whether it will excuse a nuisance, 817 
 
 ACTS OF PARLIAMENT, 
 
 how proved, 161, 167 
 
 all public except otherwise declared, 167 
 
 ADMINISTERING, 
 
 proof of, 274 ' 
 
 ADMINISTRATION, 
 
 obtaining property by raeajis of false letters of, 558 
 proof of letters of, 172 
 
 ADMINISTRATOR, 
 
 when property may be laid in, 688 
 
 ADMIRALTY, 
 
 jurisdiction of court of, 254 
 
 ADMISSIBILITY OF EVIDENCE. See Evidence, Hearsay, Dying Declaration. 
 question forjudge, 13 
 preliminary questions of fact liow decided, id.
 
 INDEX. 1263 
 
 ADMISSION. See Confessions, Evidence. 
 in criminal oases, 7 
 
 by agents, not generally evidence against principal, 52 
 by prosecutor, not generally evidence for prisoner, 53 
 of publication of libel, 7UG 
 
 ADULTERATION 
 
 of food, 393, 824 
 
 ADULT P:RER, 
 
 larceny of goods of husband by, in conjunction with wife, 681 
 killing of, by husband, 776 
 
 ADULTERY, 327 
 
 ADVANCE, 
 
 unlawfully obtaining, by agent, banker, factor, etc., 280 
 
 ADVERSE WITNESS, 
 
 examination of, in chief, 141 
 contradicting, 142 
 
 AFFIDAVITS, 
 
 proof of, 170 
 
 perjury in, 837, 839, 842, 847 
 
 AFFINITY, 
 
 when it justifies maintenance, 720 
 
 AFFIRMATION 
 
 in lieu of oath, 122 
 
 in lieu of oath, perjury may be assigned on, 123, 845 
 
 AFFRAY. See Riot. 
 what constitutes, 277 
 whether parties present at a prize fight are guilty of, id. 
 
 AGE. See Infancy. 
 proof of, 272, 903 
 
 AGENT, 
 
 admissions by, not generally evidence against principal, 53 
 
 embezzlement by, 278 
 fraudulently selling property, 279 
 
 under power of attorney, id. 
 
 obtaining advances on property, 280 
 
 exception, id. 
 
 definition of terms, id. 
 persons accused not protected from answering, 162, 281 
 when not liable to prosecution, id. 
 nature of disclosure, id. 
 cases uridef statute, 282 
 direction in writing, id. 
 barratry by, 325 
 publi.aVion of libel by, 707 
 liability for nuisance caused by, 825 
 ratification of receipt by agent, 917 
 
 AGGRAVATED ASSAULT. See Assault. 
 
 AGRICULTURAL PRODUCE, 
 
 setting fire to, 286, 287, 294 
 
 AIDING AND ABETTING. See Accessory. 
 
 AIDER, 
 
 by verdict, 234
 
 1264 INDEX, 
 
 ALIBI, 17 
 
 ALIEN, 
 
 trial of, 212 
 
 ALTERATION 
 
 of document is forgery, 564 
 
 ALTERING. See Forgery. 
 
 AMBASSADORS, 
 
 proof of marriage in houses of, 333 
 
 AMENDMENT, 
 
 eflect ol', in enlarging issue, 87 
 
 power of, 209 
 
 atier verdict, 211, 224 
 
 of judgment, 227 
 
 AMICABLE CONTEST, fiee Sports. 
 
 ANATOMY ACT. See Dead Bodies. 
 
 ANCIENT DOCUMENTS, ^qq Documents. 
 
 ANCIENT POSSESSION, 
 
 liearsay evidence to prove, 29 
 
 ANGLING 
 
 in tlie day time, 528 
 
 ANIMALS, 
 
 wliat, included in term cattle, 389 
 
 stealing certain kinds of, id. 
 
 killing with intent to steal, id. 
 
 killing, maiming, or wounding, id. 
 
 cruelty to, 390, 391 
 
 drugging, id. 
 
 ferfe naturre, larceny of, 526 
 
 what are fera? naturse, id. 
 
 larceny may be committed of them when dead, id. 
 
 or when tamed, id. 
 
 not if kept for pleasure 528 
 keeping dangerous animals, 824 
 unnatural offence, 967 
 
 ANIMO FURANDI, 
 meaning of term, 647 
 
 APPEAL. See Error, Bill of Exceptions, Neiv Trial, Court of Criminal Appeal. 
 
 APPOINTMENT OF OFFICERS, 
 
 how proved, 6 
 when presumed, 18 
 
 APPREHENSION OF OFFENDERS, 
 rewards for, 245 
 power of, generally, 262 
 by private persons at common law, id. 
 
 on suspicion of felony, id. 
 
 to prevent breach of the peace, id. 
 
 of night walkers, id. 
 by private persons by statute, 263 
 
 of persons found committing ofTences by night, id. 
 
 by owner of property, id. 
 
 of persons committing oflences against game laws, 598, 603
 
 INDEX. 1265 
 
 APPREHENSION OF OFFENDERS— con^mwe^. 
 by peace oliiccr without warrant, 263 
 
 at coiumou law, id. 
 
 ou suspicion of felony, id. 
 
 dilltireiice between peace officers and private persons, id. 
 
 after breach of the peace, id. 
 
 by statute, 2()5 
 
 under Metropolitan Police Acts, id. 
 
 under Rural Police Act, id. 
 
 under Prevention of Crimes Act, 266 
 assault to prevent, 302 
 
 killing by otlicer and others in course of. See Murder. 
 ticket-of-leave men, 2G6 
 
 APPRENTICES, 
 
 assault on, by master, 307 
 
 ill-treating, 634 
 
 master bound to provide medical attendance for, 635 
 
 APPROVER. See Accomplice. 
 
 ARMS. See Loaded Arms. Shooting. 
 
 what are, in offence of smuggling, 964 
 what are, in ofiences against game acts, 602 
 
 ARMY, 
 
 forgeries relating to the, 564 
 
 ARRAIGNMENT 
 in general, 198 
 
 where the prisoner stands mute, 199 
 where he appears to be insane, id. 
 for previous conviction, 234 
 
 ARRAY. See Challenge of Jurymen. 
 
 ARREST. See Apprehension, Constable. 
 protection of witnesses from, 114 
 
 AJIREST OF JUDGMENT, 225 
 proceedings in, 234 
 
 ARSON, 
 
 evidence to explain motives and intentions, 102 
 
 at common law, 284, 289 
 
 meaning of term "setting fire," id., id. 
 
 churches and chapels, 285 
 
 dwelling-house, id. 
 
 house, out-house, manufactory, farm, etc., id. 
 
 railway-station, ports, docks, etc., id. 
 
 public buildings, 286 
 
 other buildings, id. 
 
 goods in buildings, id. 
 
 attempts to commit, 286, 287 
 
 crops of corn and other vegetable produce, 286 
 
 stacks of corn, wood, and coals, 287 
 
 coal mines, id. 
 
 ships or vessels, 287, 288, 289 
 
 malice against owner unnecessary, 289 
 
 person in possession of property may be convicted of, id. 
 
 intent to defraud particular person need not be stated, id. 
 
 proof of setting fire, id. 
 
 of property set fire to, 290 
 
 80
 
 1266 INDEX. 
 
 ARSON — continued. 
 
 meaning of term " house," 290 
 
 chapel, 291 
 
 outhouse, td. 
 
 shed, 293 
 
 stacks, 294 
 
 wood, id: 
 
 ships and vessels, td. 
 setting tire to goods in a man's own house, id. 
 
 to goods in house of another, 290, 295 
 to house when persons are therein, 296 
 possession how described, id. 
 proof of malice, id. 
 proof of intent, 297 
 proof of attempt to commit, 299 
 what amounts to attempt to commit, id, 
 
 ART, 
 
 injuries to works of, 988 
 
 ASPORTAVIT, 
 
 what is sufficient in larceny, 650 
 
 ASSAULT, 
 
 with intent to rob, conviction for, on indictment for robbery, 84, 931 
 
 to prevent escape from shipwreck, 300 
 
 shooting or wounding, 301 
 
 what constitutes loaded arms, id. 
 
 inflicting bodily injury, id. 
 
 attempting to choke, id. 
 
 on clergymen, id. 
 
 on persons endeavoring to save shipwrecked property, 302. 
 
 with intent to commit felony, id. 
 
 to prevent apprehension, id. 
 
 on peace officer, id., 302, 310 
 
 to prevent sale of grain, 302 
 
 on seamen, 303 
 
 arising from combination. See Conspiracy in restraint of trade, 
 
 bar to further proceedings, 303, 309 
 
 occasioning bodily harm, 303 
 
 punishment for common, id. 
 
 indecent, on females, id. 
 
 indecent, on males, id. 
 
 prosecution for, by guardians and overseers, 304 
 
 costs of prosecution for. See Costs. 
 
 with intent to rob. See Robbery. 
 
 what amounts to, 304. 
 
 pointing loaded arms at a person, id. 
 
 striking at, or threatening to strike at, id. 
 
 exposing a child, 305 
 
 administering poison, id. 
 
 mere omission of duty does not amount to, id. 
 
 words do not amount to, id. 
 
 consent puts an end to, 306 
 
 mere submission does not, id. 
 
 in cases of rape, 306, -904 
 
 reasonable chastisement does not amount to, 307 
 
 in self defence, id. 
 
 in defence of other persons, 308 
 
 to prevent an unlawful act, id. 
 
 to prevent breach of peace, id. 
 
 proof of aggravating circumstances, 309 
 
 assaults with intent, id., 311 
 
 conviction for common assault on indictment for unlawful wounding, etc., 309
 
 INDEX. 1267 
 
 ASSAVLT— continued. 
 
 subsequent proceedings after complaint before justice for, 303, 309 
 
 on peace officer, 310 
 
 indecent assault, id. 
 
 on deer-keepers, 449 
 
 duty to retreat upon, 772 
 
 with intent to commit rape, 904 
 
 with intent to rob, 932 
 
 on revenue officers, 905 
 
 ASSEMBLY, UNLAWFUL. See Unlawful Assembly, Riot. 
 lawful, disturbing, 450 
 
 ATTACHMENT, 
 
 expenses of witness need not be tendered before applying for, 113 
 but sometimes safer to do so, id. 
 
 of witness for not obeying subpoena, how applied for, 111, 112 
 power of quarter sessions to grant, 1 12 
 
 ATTEMPT, 
 
 conviction for, on indictment for principal offence, 84, 312 
 
 to commit arson, 286, 287 
 
 to commit offences, 311 
 
 how punishable at common law, id. 
 
 statutes relating to, id. 
 
 attempting to choke, 301. 
 
 what amounts to, 312 
 
 to shoot, what amounts to, id. 
 
 to commit arson, what amounts to, 299, 312 
 
 to coin, what amounts to, 313 
 
 to steal, what amounts to, 314 
 
 aiding in attempt, id. 
 
 to bribe officers of justice, 348 
 
 ATTEMPTS 
 
 to commit murder, 809 
 
 ATTENDANCE OF WITNESSES. See Witnesses, 
 
 ATTESTING WITNESS, 
 
 when necessary to be called, 176 
 when dispensed with, 178 
 
 ATTORNEY, 
 
 privilege of. not to disclose communications, 153 
 
 to what cases it extends, 153, 156, 157 
 
 privilege belongs to the client, id. 
 
 may be waived by him, 160 
 
 presumed that client insists on it, id. 
 
 embezzlement by, 278, 279, 282 
 
 misappropriation by, id. ^ 
 
 barratry by, 325 
 
 when not liable for maintenance, 720 
 
 ATTORNEY, POWER OF, 
 
 fraudulently selling under, 279. See Agent. 
 
 ATTORNEY-GENERAL, 
 
 right of, to reply, 221 
 
 fiat of, necessary, on writ of error, 234 
 
 AUTHORITY, 
 
 person in, 46 
 
 forgery of, 554 
 
 drawing, indorsing, etc., documents without, id.
 
 1268 INDEX. 
 
 AUTKEFOIS ACQUIT 
 
 plea of 202 
 
 liow tried, id. 
 
 liow proved, 203 
 
 difficulties of proving, id. 
 
 proof of plea of, in burglary, 386' 
 
 AUTREFOIS CONVICT, 
 
 plea of, 202. See Autrefois Acquit. 
 
 AVERMENTS, 
 
 divisible, 83-86. See Indictments. 
 in libel. See Libel. 
 
 AVOWTERER, 
 
 larceny of goods of husband by, in conjunction with wife, 681 
 killing of, by husband, 776 
 
 BAIL, 
 
 false personation of, 493 
 
 BAILEES, 
 
 larceny by, 641, 665 
 
 larceny of goods in possession of, property how described, 686 
 
 BALLOT, 
 
 offences relating to, 456, 495. See Elections. 
 
 BANK OF ENGLAND OR IRELAND, 
 
 forgery of documents issued by officers of, 557 
 
 embezzlement by officers of, 461, 478 
 
 making false entries in books of, 547 
 
 personating owner of stock in, 546, 570 
 
 clerks of, making out false warrants, 532 
 
 forging notes of, 549, 557, 570 
 
 making or having materials for forging notes of, 548, 549, 556 
 
 BANK NOTES, 
 forgery of, 549 
 
 purchasing or receiving forged, id. 
 making or having materials for forging, 550, 551 
 proof of forgery of, 572 
 engraving, id. 
 larceny of, 994 
 
 BANKER, 
 
 books, proof of, 174 
 embezzlement by, 278. See Agent. 
 forgery of securities issued by, 549, 557, 570 
 obliterating name of, in crossed cheque, 554 
 
 BANKING COMPANY, 
 
 larceny by members of, 644, 6S0 
 
 BANKRUPT, 
 
 examination of, may be given in evidence against, 161 
 
 offences by, 3 1 5 
 
 proof of proceedings, 320 
 
 obtaining credit by false pretences, 318 
 
 Vexatious Indiotments Act ap[)lied to, 319 
 
 proof of valid bankruptcy, id. 
 
 obtaining goods on credit, 321 
 
 proof of concealine;it of goods by, 322 
 
 proof of value, 323 
 
 proof of intent to defraud, id. 
 
 venue in indictment against, 324 
 
 arrest of, id:
 
 INDEX. 1269 
 
 BANKRUPTCY, 
 
 false declaration in matters of, 492 
 
 witnesses compelled to answer on examination in, 161, 280 
 
 proof of proceedings in, 320 
 
 BANNERS, 
 
 secondary evidence of inscriptions on, 13 
 
 BANNS, 
 
 proof of publication of, 335 
 
 BAPTISM, 
 
 destroying, uttering, or forging register of, 557, 584 
 
 giving false certilicate of, id. 
 
 transmitting false copy of register of, to registrar, 558 
 
 BARRATRY, 
 
 what evidence admissible in, 93 
 
 nature of oflunce, 325 
 
 particulars must be delivered in, 194, 325 
 
 BASTARD CHILD, 
 
 liow to be described in indictment, 749 
 
 BASTARDY, 
 
 proceedings in, 398 
 
 BATTERY, See Assault. 
 
 BAWDY HOUSE, 
 keeping, 803 
 keeping, what is evidence of, 93, 823 
 
 BELIEF, 
 
 examination of witnesses as to religious, 119, 120 
 as to belief in facts deposed to, 147 
 false swearing lo, is perjury. l47, 825 
 bond fide as to age in abduction, 272 
 as to death in bigamy, 341 
 
 BEST EVIDENCE 
 
 must always be produced, 1. See Evidence. 
 
 BETTERS 
 
 not accomplices, 133 
 
 BIAS OF JURORS, 215, 216 
 
 BIGAMY, 
 
 presumption against, 18 
 presumption of duration of life in, 19 
 
 husband and wife, how far competent witnesses in, 129, 328 
 offence of, 326 
 
 proof of valid marriage, 327 
 second marriage, id. 
 fust mai-riage not presumed, 328 
 prisoner's admission of, id. 
 second wife a competent witness, id. 
 proof that valid ceremony was performed, id. 
 marriages in England, id. 
 
 , by certificate of registrar, id. 
 among-t Jews and Quakers, 330 
 in Wales, id. 
 abroad, id. 
 in colonies, 331 
 in Scotland, id. 
 in Ireland, id. 
 
 between Roman Catholics, 332, 334 
 in houses of ambassadors, 333 
 before a consul, id.
 
 1270 INDEX. 
 
 BIGAMY — continued. 
 
 preliminary ceremonies, 334 
 
 will be presumed, id. 
 what marriages are voidable, id. 
 
 by an idiot, id. 
 by a lunatic, id. 
 what marriages are void, 335 
 by banns, id. 
 by minors, 336 
 by license, 337 
 in an assumed name, id. 
 abroad, id. 
 foreign law how proved, id. 
 marriage confirmation acts, 338 
 proof of identity of persons, 339 
 
 proof that first wife is alive, id. , 
 
 proof after absence of seven years, 340 
 venue, id. 
 
 proof in defence under the exceptions in the statute, id. 
 Englislj, not subject, id. 
 seven years' absence, 341 
 bond fide belief of death id. 
 divorce, 342 
 
 former marriage declared void, id. 
 on whom orms probandi lies, 341 
 
 BILL OF EXCEPTIONS, 
 none in criminal case, 234 
 contra in United States, id. 
 
 BILL OF EXCHANGE, 
 
 inducing persons by false pretences to accept, sign, etc., 498 
 drawing, indorsing, etc., without authority, 654 
 forging a, 549, 553, 559 
 proof of forging, 573 
 larceny of, 992 
 
 BILL OF PARTICULARS, 195 
 
 BIRTH, 
 
 certificate of, proving, 175 
 
 concealing, 400 
 
 false declaration touching, 491 
 
 destroying, altering, or forging register of, 557, 584 
 
 giving false certificate of, id. 
 
 transmitting false copy of register of, to registrar, 558 
 
 BLASPHEMOUS LIBEL. See Libel. 
 
 BODILY FEAR, 
 
 stealing in dwelling house and putting person in, 453 
 
 BODILY HARM. See Grievous Bodily Harm. 
 inflicting, with or without weajjon, 301 
 assault occasioning, 303 
 
 conviction for inflicting, good, though not intended, 309 
 conviction for common assault on indictment for doing, id. 
 
 BONDS, 
 
 forgery of, 553 
 larceny of, 994 
 
 BOUNDARIES 
 
 of counties, offences committed on, 249 
 
 BOUNTY MONEY, 
 
 obtaining by false pretences, 525
 
 INDEX. 1271 
 
 BOXING MATCH. See Prize Fights. 
 
 BOYCOTT, 443 
 
 BRAWLING, 
 
 proceedings for, 450 
 
 BREACH OF PEACE, 
 
 assault to prevent, 308 
 apprehension to prevent, 262 
 apprehension after, id., 264 
 
 BREAKING, 
 
 proof of, in burglary, etc., 360 
 proof of, in prison breach, 888 
 
 constructive, not sufficient, id, 
 
 BREAKING BULK 
 
 not necessary to prove in indictment against bailee, 641 
 
 BREAKING OUT, 
 burglary by, 359 
 of dwelling-house, proof of, 386 
 
 BRIBERY, 
 
 nature of the offence, 343, 344 
 at elections, id. 
 treating, id. 
 undue influence, id. 
 corrupt practice, 344 
 
 when a misdemeanor, 345 
 when a felony, id. 
 legal proceedings in respect of, 346 
 limitation, id. 
 
 conviction for illegal practice, id. 
 accused and husband and wife competent witnesses, id. 
 costs, 347 
 disqualification of candidates and voters, id. 
 indictment, 348 
 in other cases, id. 
 
 BRIDGES, 
 
 indictment for not repairing, 349 
 
 what are public, id. 
 
 highway at each end, 351 
 
 dedication of, 352 
 
 proof of being out of repair, id. 
 
 liability of county to repair, id. 
 
 liability of county to repair new, 353 
 
 liability of public companies to repair, 354 
 
 liability of individuals to repair, 355 
 
 evidence of repair by individuals, id. 
 
 liability to repair, rations tenuroe, id. 
 
 Droof in defence on indictment for not repairing, 356 
 
 by counties, id. 
 
 by individuals, id. 
 
 by corporations, id. 
 venue and trial, id. 
 
 who may be jurors on trial of liability to repair, id. 
 maliciously pulling down, 357 
 new trial on indictment for not repairing, id. 
 
 BROKER, 
 
 embezzlement by, 278, 279, 282. See AgenL
 
 1272 INDEX. 
 
 BUILDING, 
 
 setting lire to, 285, 286 _ 
 
 setting fire to goods in, id. 
 
 attempting to set lire to, 286 
 
 adjoining a dwelling-liouse in burglary, 368 
 
 stealing tixtnres from a, oo3 
 
 riotously demolishing, 1)04 
 
 meaning of term, 29U 
 
 BUILDING SOCIETIES, 
 larceny of property of, 646 
 
 BUOYS, 
 
 injuries to, 957 
 
 BURDEN OF PEOOF, 17. See Onus Probandi. 
 
 BURGLARY, 
 
 oQ'ence of, at common law, 359 
 
 by statute, id. 
 
 by breaking out, id. 
 
 punishment of, id. 
 
 what building to be deemed part of dwelling-house, 359, 360 
 
 entering dwelling-house with intent to commit felony, 359 
 
 being found armed with intent to commit, id. 
 
 after a previous conviction, 300 
 proof of breaking, id. 
 
 when not necessary, id. 
 
 doors, id. 
 
 windows, 302 
 
 chimneys, 363 
 
 fixtures, cupboards, etc., id. 
 
 walls, id. 
 proof of breaking gates, 364 
 
 constructive breaking by fraud, id. 
 
 constructive breaking by conspiracy, id. 
 
 constructive breaking by menaces, 365 
 
 constructive breaking by one of several, id. 
 proof of entry, o60 
 
 introduction of fire-arms or instruments, id, 
 
 by firing arms into the house, 307 
 constructive entry by one of several, id. 
 proof that the premises are a dwelling-house, id, 
 
 buildin-is adjoining a dwelling-house, 368 
 
 before the 7 & 8 Geo. 4, c. 29, s. 1 3, id. 
 
 cases decided on that statute, 309 
 occupation, how to be described, 370 
 
 temporary absence, 371 
 when liouse occupied by several, 372, 373 
 
 lodgers, 373 
 
 wife and family, 375 
 
 clerks, id. 
 
 public companies, id. 
 
 servants, 377 
 
 tenants, 379 
 
 guests, 380 
 
 partners, 381 / 
 
 proof of local description, id, 
 
 proof of oRence having been committed by night, id. 
 proof of intent to commit felony, 382 
 variance in statement of intent, 384 
 proof of breaking out, 380 
 proof upon jilea of autrefois acquit, id. 
 proof of being found by night armed, with intent, 387 
 proof of having possession of implements of housebreaking, id.
 
 INDEX. 1273 
 
 BUHCAjA-HY— continued. 
 
 what are implements of housebreaking, 8SS 
 
 prisoner may be convicted of larceny on indictment for, 83, 385 
 
 BUEIAL, 
 
 obstructing, a misdemeanor, 446 
 
 destroying, altering, or forging register of, 557, 5S4 
 
 giving false certilicate of, ul. 
 
 transmitting false copy of register of, to registrar, 558 
 
 riotous behavior at, 925 
 
 BURN, 
 
 sending letters threatening to, 974 
 
 BY-LAWS, 
 
 proof of, 174 
 forging, 502 
 
 CANALS, 
 
 injuries to, 952 
 
 setting lire to vessels being in, 288 
 
 stealing goods from vessels on, 956 
 
 CAPTION, 72 
 
 CARDS, 
 
 oflence of cheating at, 394, 607 
 
 CARNAL KNOWLEDGE, 
 
 of girl under twelve years, 897, 904 
 of girl between twelve and thirteen, 897 
 definition of, 8U8 
 proof of age, 903 
 
 CARRIERS, 
 
 larceny hy, 605 
 
 larceny of goods in the possession of, property how described, 687 
 
 CATS, 
 
 not subject of larceny, 528 
 
 CATTLE, 
 
 killing Willi intent to steal, 389 
 
 killing, maiming, or wounding, id. 
 
 stealing, id. 
 
 v/liat animals included under the term, id. 
 
 proof of injury to, 390 
 
 administeiing poison to, not a felony, id. 
 
 proof of aialice and intent, 391 
 
 vivisection, id. 
 
 drugging, id. 
 
 straying. See Larceny. 
 
 CAUTION, 
 
 to prisoner on examination, 59, 60. See Examination of Prisoners. 
 to prisoner on ap{<rehension, 57 
 
 CENTRAL CRIMINAL COURT, 
 
 costs in, 241 
 
 jurisdiction of. 259 
 
 removing indictments into, 260 
 
 CERTIFICATE. See also Birth, Marriage, Death. 
 of birlh, marriage, etc, proof of, 174
 
 1274 INDEX. 
 
 CERTIORARI, 
 
 removing indictment by, 196 
 
 costs on removal of indictment by, 198 
 
 CHALLENGE OF JURYMEN, 
 
 different kinds of, 212 
 
 time and mode of taking, id. 
 
 to the array, 213 
 
 to the polls, 214 
 
 grounds of, 216 
 
 etlect of improperly allowing or disallowing, 216 
 
 CHALLENGE TO FIGHT, 
 
 indictment for, 392 
 .what amounts to, id. 
 proof of the intent, id. 
 venue, id, 
 
 CHAMPERTY, 720 
 
 CHANCERY, 
 
 forgery of documents issued by officers of court of, 557 
 
 CHANCERY PROCEEDINGS, 
 
 proof of, 164, 171 
 forgery of, 555, 584 
 
 CHAPEL, 
 
 setting fire to, 285 
 marriages in, ; 29 
 breaking and entering, 453, 950 
 riotously demolishing, 924 
 
 CHARACTER, 
 
 evidence of, of prisoner, 102 
 of witness, 103 
 contradicting, id. 
 
 pai ticulars cannot be proved, 103, 105 
 charge of the court as to, 222, 235 
 
 CHASTISEMENT, 
 
 when lawful, 307, 737, 769 
 excessive, causing death, 737, 769 
 
 CHASTITY, 
 
 in abduction, 268 
 
 impeachment of, in charges of indecent assault, 310 
 
 in rape, 903 
 
 in seduction, id. 
 
 CHATTEL, 
 
 evidence of, 2 
 
 whetlier a policy of insurance is, 281 
 
 deeds are not at common law, 994 
 
 CHEATING. See also False Pretences. 
 offence of, at common law, 393 
 cheats affecting public justice, id. 
 selling unwholesome provisions, id. 
 false accounting, by public officers, 394 
 false weights and measures, id. 
 at cards, dice, etc., 394, 607 
 using false tokens, 395 
 what cheats are not indictable, id.
 
 INDEX. 1275 
 
 CHEQUES, 
 
 obliteration of crossing on, 554 
 giving, without etiects, 500, 507 
 larceny of, C75, 995 
 
 CHILD. See Infant. 
 infant witness, 115 
 chastisement of, 307, 737, 769 
 consent to ansault, 306, 310 
 having carnal knowledge of, 306, 310, 897, 904 
 neglect or abandonment of, by j)arents, 398 
 prosecutions by guardians and overf-eers, 635 
 employment of, in dangerous perforniances, 637 
 abduction of See Abduction, 
 concealing birth of, 400 
 murder, 747 
 
 manslaughter by neglect of, 736 
 murder, by neglect of, 764 
 r:ipe of, 897, 904 
 
 larceny of goods in possession of, property how described, 
 name of, how described, 7£0 
 infancy, defence of. See Iifancy, 
 
 CHILD MURDER, 
 
 cannot be committed of child in the womb, 749 
 
 how child to be described in the indictment, 750 
 
 conviction for concealing birth on indictment lor, 83, 400, 747 
 
 CHILD STEALING, 268 
 
 CHIMNEYS, 
 
 proof of breaking, in burglary, 363 
 
 CHLOROFORM, ^ee Poison. 
 
 odministering, with intent to commit indictable offences, 872 
 
 CHOKE, 
 
 attempt to, 301 
 
 CHURCH, 
 
 setting fire to, 285 
 
 larceny of goods from, property how described, 692 
 
 breaking and entering, 453, 950 
 
 riotously demolishing, 924 
 
 CHURCHYARD, 
 
 larceny of fixtures in, 533 
 
 CIRCUMSTANTIAL EVIDENCE, 
 value of, 17 
 
 CLERGYMAN, 
 
 confessions to, not privileged, 154 
 
 assaults on, 301 
 
 bound to bury dead bodies, 446 
 
 CLERK, 
 
 occupation of dwelling-house by, in burglary, 375 
 
 embezzlement by, 458 
 
 who is a, 462 
 
 assisting in obtaining fraudulent advances, 280 
 
 COACH-HOUSE, 
 
 sett ins; fire to, 286 
 riotously demolishing, 924
 
 1276 INDEX. 
 
 COAL, 
 
 setting fire (o, 287 
 
 COERCION BY HUSBAND, 1010 
 
 COIN, 
 
 evidence of intent in uttering counterfeit, 95 
 
 what amounts to attempt to, ',i]o 
 
 interpretation of terms in offences relating to, 404 
 
 counterfeiting gold or silver, 405 
 
 coloring witii intent, id. 
 
 impairing or diminisliing, 406 
 
 possessing tilings of gold or silver, id. 
 
 buying or selling counterfeit gokl or silver, id, 
 
 importing counterfeit gold or silver, 407 
 
 exporting counterfeit, id. 
 
 uttering counterfeit gold or silver, id. 
 
 uttering, having possession of counterfeit coin, w?. 
 
 uttering twice witliin ten days, 408. 
 
 possessing counte rfeit gold or silver, id. 
 
 uttering or having after a previous conviction, id, 
 
 uttering foreign as current, id. 
 
 counterfeiting copper or bronze coin, id. 
 
 uttering base copper or bronze, 409 
 
 defacing, id. 
 
 coiiuterfeiting foreign gold or silver, id. 
 
 importing foreign counterfeit gold or silver, 410 
 
 uttering foreign counterfeit gold or silver, id. 
 
 counterfeiting foreign, other than gold or silver, id. 
 
 coining to:)ls, 411 
 
 venue in offences relating to, 412 
 
 how proved to be counterfeit, id. 
 
 when counterfeiting, complete, id. 
 
 punishment of {principals in second degree and accessories in offences relating 
 
 to, id. 
 counterfeit medals, id. 
 proof of counterfeiting, 413 
 
 uttering, id. 
 
 possession, 415. 
 proceedings for second and third offences, 415, 416 
 
 COINING TOOLS, 
 
 making, mending, or having, 411, 417 
 conveying out of mint, 411 
 
 COLONIES, 
 
 proof of proclamations, treaties of, 164 
 proof of marriages in, 331. 
 
 COMBAT, 
 
 killing in sudden combat, 724 
 
 COMMON ASSAULT, 
 punisiiment of, 303 
 
 conviction on indictment for actual bodily harm, 309 
 for unlawfully wounding, id. 
 for carnally knowing a child, 904 
 not on indictment for assault with intent to rob, 924 
 
 COMMON DESIGN, 
 generally, 182 
 in murder, 752 
 in forgery, 593 
 
 COMPANIES. See Public Companies, Corporations.
 
 INDEX. 1277 
 
 COMPENSATION, 
 
 to persons aggrieved, in felony, 229 
 
 to widows and fuiuilies of persons killed in endeavoring to apprehend offenders, 
 
 247 
 
 COMPETENCY OF WITNESSES. See Witnesses. 
 
 COMPLAINT, 
 
 eviiience of, in cases of rape, 26 
 in other cases of violence, 27 
 
 COMPOUNDING OFFENCES, 419 
 
 COMPULSORY, 
 
 disclosure, whether admissible as a confession, 52, I'l, 161, 281, 993 
 
 CONCEALING BIllTII, 
 
 offence of, '1 00 
 
 conviction for, on indictment for child murder, 83, 400, 747 
 
 CONCEALMENT OF DEEDS AND INCUMBRANCES, 422 
 
 CONDUCT, 
 
 presumption of guilt from, 19 
 indecent, 820 
 
 CONFESSIONS, 
 
 to magistrate in course of examination of prisoner. See Examination of 
 
 Prisoner. 
 ground of admissibility of, 40 
 nature and ellect of, id. 
 plea of guilty, id. 
 
 extra-judicial, whether sufficient whereon to convict, id. 
 degree of credit to be given to, 41 
 on what grounds excluded, 42 
 threat or inducement, id. 
 
 what amounts to such, 42, 43, 44 
 
 whether it must have reference to the charge, 45 
 
 religious, inducement, id. 
 
 held out with reference to another charge, 46 
 
 must be held out by person in authority, id. 
 
 who is a i)erson in authority, id. 
 
 offer of pardon from the crown, 47 
 
 when held to have ceased, 48 
 
 when held not to have ceased, 49 
 when obtained by artifice or deception, 51 
 when obtained by questioning, id. 
 in the course of legal proceedings, 52 
 
 when tlie disclosure has been compulsory, 52, 151, 161. See Disclosure, 
 Privilege. 
 accompanying delivery of stolen property, 52 
 evidence only against the party making them, 53 
 in conspiracy, ^ee Conspiracy. 
 
 whether names of other prisoners ou?ht to be disclosed, 53 
 of principal not evidence against accessory, id. 
 of thief not evidence against receiver, id. 
 by agents, difference between civil and criminal cases, id. 
 
 when admissible against principal, id. 
 admissions by prosecutor, 54 
 whole must l)e taken together, id. 
 jury may reject a part, 55 
 prisoner may deny truth of, id. 
 admission not conclusive, id. 
 where f;ilse in fact, id. 
 where void in point of law, id. 
 inferred from silence or demeanor, 56
 
 1278 INDEX. 
 
 CONFESSIONS-cow<mMe(f. 
 
 taken down in writing, how proved, 56 
 not necessary to negative inducement, id, 
 necessity of calling constable, 57 
 to legal adviser, 153 
 
 physicians, 154 
 
 surgeons, id. 
 
 clergymen, id. See Privilege. 
 if privilege not claimed, answers of witnesses may be used as, 161 
 but not if privilege improperly refused, id. 
 
 if privilege removed by statute answers admissible, 52, 151, 161, 281 
 wliether they should be opened, 217 
 of marriage in bigamy, 328 
 
 CONFIDENCE, 
 
 privilege on the ground of, 153. See Privilege. 
 
 CONSENT, 
 
 want of, how proved, 6 
 
 when presumed, 17 
 
 depositions, when admissible by, 79 
 
 puts au end to assault, 306 
 
 ditference between, and submission, id. 
 
 obtained by fraud, void, 271, id. 
 
 effect of receiving evidence by, 140 
 
 in misdemeanor, id. 
 
 effect of, in rape, 306, 899 
 
 to a nuisance, 817 
 
 CONSPIRACY, 
 
 evidence in, 91, 428, et seq. 
 particulars in indictments for, 194,436 
 indictment, how to be preferred for, 423 
 nature of the crime of, id. 
 overt act, how far necessary, 426 
 proof of the existence of, 428 
 
 by declarations of others, 431 
 
 by acts of others, id , 432 
 proof of tlie means used, 433 
 cum dative instances, 434 
 proof of the object, 435 
 form of indictment for, 436 
 venue in, id. 
 to murder, id. 
 assault in pursuance of, 443. Post, Conspiracies in Restraint of Trade. 
 
 CONSPIRACIES IN RESTRAINT OF TRADE, 
 
 at common law, 438 
 
 by statute, id., 442 
 
 effect of statute on common law, 441 
 
 husband and wife competent witnesses, 129,444 
 
 accused a competent witness, 130, 444 
 
 CONSTABLE. See Peace Officer, Police. 
 
 threat or inducement by. See Confession. 
 
 need not always be called to negative inducement, 56 
 
 a[>prehension by, 263 
 
 assault on, 302, 310 
 
 embezzlement by, 459 
 
 larceny by, 643 
 
 when liable for escape. See Escape. 
 
 killing, 789. See Murder. 
 
 killing l)y, id. See Murder. 
 
 when justified in breaking doors, 797 
 
 refusing to aid, 926
 
 INDEX 1279 
 
 CONSTRUCTION, 
 
 rules of, applicable to indictm nts, 82. See Indidmenta. 
 
 CONSTRUCTIVE BREAKING, 
 in burglary, proof of, 364 
 
 CONSTRUCTIVE ENTRY, 367 
 
 CONSUL, 
 
 proof of marriage before, 333 
 
 CONTAGIOUS DISEASE, 
 
 spreading, 824 
 
 CONTINUANCE, 200, 202 
 
 CONTRADICTORY WITNESS. See Witness^ 
 
 CONTRIBUTORY NEGLIGENCE, 
 cases of manslaughter, 731, 732 
 
 CONVERSATIONS, 
 
 whether they should be opened, 217 
 
 CONVICTION. See Previous Conviction. 
 date of, how proved, 3 
 when proved is conclusive, 167 
 of principal not conclusive in indictments for receiving, 911 
 
 COPIES, 
 
 when all equally originals, 4 
 
 all equally authentic, 13 
 
 copies of, 14 
 
 certified when admissible in evidence, 164, 169, 173 
 
 of indictment, prisoner not entitled to, 194 
 
 of depositions, prisoners when entitled to, 77, 78 
 
 CORN, 
 
 setting fire to, 286, 287, 294 
 
 assault with intent to obstruct sale of, 302 
 
 CORONER, 
 
 depositions taken before, when admissible, 77. See Depositions, 
 
 CORPORATION BOOKS, 
 proof of, 168, 17 
 
 CORPORATIONS, 
 
 proof of certificate of incorporation, 174 
 
 by-laws, id. 
 misappropriation of funds, 283 
 
 larceny of goods belonging to, property how described, 690 
 property how proved, 691 
 official documents. See Documents. 
 
 CORPUS DELICTI IN MURDER, 748 
 
 CORROBORATION, 
 
 of accomplice, 132. See Accomplice. 
 what sufficient, 133 
 of prosecution in seduction, 273 
 what sufficient in perjury, 856 
 in rape, 902 
 
 CORROSIVE FLUIDS, 
 sending or throwing, 485
 
 1280 INDEX-. 
 
 CORllUPT PRACTICES. See Bribery, Elections. 
 deliiiition, o44 
 wlieii ;i inisticmeunor, 345 
 wlion a icloiiy, id. 
 leg:il pi-ocoedings, 346 
 
 liiiiitalioii, )'(/. 
 husband and wife competent witnesses, 129, 346 
 i»ccn.sed a eonipetont witness, 13U, 346 
 privilege of witnesses, 151 
 " indiciinent" includes "information," id. 
 costs, 241, 347 
 
 indictments triable at the Central Criminal Court, 260, 346 
 ollences at elections, 4-37, 494 
 witlidrawing election petition, id. 
 false declarations at elections, 4'jO. 
 false personation at elections, 41)5. 
 
 COSTS 
 
 on removal of indictment by certiorari, 198. See Highways. 
 ill court of criminal appeal, 239 
 in cases of felony, 240 
 wliat witnesses allowed tlieir costs, id. 
 on postponement of trial, 201, 241 
 in cases of misdemeanor, 242 
 in assault., defendant may be ordered to pay, id. 
 in other cases, id- 
 how found by jury in Pennsylvania, id. 
 in prosecutions removed into central criminal court, 244 
 in offences committed on the higli seas, 240, 244 
 in Trades Union oHences, 244 
 in cases under Debtors Act, id. 
 in ccmspiracy, id. 
 
 under Corrupt Practices Act, id., 347 
 in lil)el. See Lihel. 
 
 in cases within the Vexatious Indictments Acts, costs of the accused, 244 
 of witnesses, etc., for the prisoner, id. 
 mode of payment, 245 
 
 of capital prosecutions in exclusive jurisdictions, id. 
 costs in borough, id. 
 compensation to prosecutor, 229 
 rewards for apprehension, 245 
 allovvaiice to widows and children, 247 
 of indictments relating to highways, 244, 632 
 
 COUNSEL 
 
 statements of prisoner by, 219 
 when not liable for maintenance, 720 
 
 COUNTING-HOUSE, 
 
 breaking and entering, 453 
 
 COUNTY, 
 
 liability of, to repair bridges, 352 
 larceny of property of, 645 
 
 COUNTY COURT, 
 
 proceedings in, how proved, 3, 172 
 forging process of, 555, 684 
 
 COURSE OF BUSINESS, 311. See Hearsay. 
 
 COURT, 
 
 ordering witnesses out of, 138 
 
 of record, forgery of process or proceedings of, 555 
 not of record, forgery of process or proceedings of, id. 
 forgery of documents issued by officers of, 557
 
 INDEX. 1281 
 
 COURT OF CRTISITNAL APPEAL, 
 practice in, 230-210 
 co.sts in, 2-10 
 
 wliat (luestions may be reserved for, 238 
 provisions of Judicature Act with respect to, 239 
 
 COURT ROLLS, 
 forgery of, 556 
 
 COWS, 
 
 stealing, 389 
 
 killing or maiming, 389 
 
 CREDiniLITY 
 
 of witness, 103, 144. See Witness. 
 is for the jury, 103 
 
 CREDIT, 
 
 obtaining by false pretence, 318, 321 
 
 of witness, perjury on answer to questions affecting, 850 
 
 CREMATION, 
 
 wliether legal 447 
 
 CROPS, 
 
 setting fire to, 286 
 
 CROSSED CHEQUES, 
 
 forgery or obliteration of, 554 
 
 CROSS-EXAMINATION, 
 
 how conducted, 142 
 
 prisoner must liave opportunity of, to render depositions admissible, 72 
 
 of witness on his depositions, 144 
 
 of witnesses producing documents only not allowed, 145 
 
 where prisoners separately defended, id. 
 
 as to previous statements in writing, 143 
 
 latitude allowed in, id. 
 
 CROWN, 
 
 challenge of jury by, 213 
 
 CROWN CASES RESERVED. See Court of Criminal Appeal. 
 
 CROWN OFFICE, 
 subpoena from, 112 
 
 CURTILAGE. 
 
 ■what building within, part of dwelling-house, 359, 368, 452 
 
 CUSTOMS. SeeSmugglinrj. 
 
 false declarations relating to, 492 
 forgeries relating to, 564 
 property in, 647. See Larceny. 
 
 CUTTING AND WOUNDING. See Wounding. 
 
 DANGEROUS ANIMALS, 
 
 keeping, 824 
 
 death ca\ised by, 755, 762 
 
 DANGEROUS GOODS, 818 
 
 DANGEROUS PERFORMANCES, 
 employment of children in, 637 
 
 81
 
 1282 INDEX. 
 
 DATE 
 
 of a document presumed to be correct, 17 
 
 DEAD BODIES, 
 
 offences relating to, 445 
 
 larceny cannot be committed of, id., 647, 688 
 
 clergymen bound to bury, id, 
 
 dissection of, 446 
 
 cremation of, 447 
 
 of persons condemned to death not to be dissected, id.] 
 
 DEAF AND DUMB PERSONS, 
 
 compeient witnesses, 117 
 prisoner, how dealt with, 198 
 
 DEATH, 
 
 proving certificate of, 175 
 judgment of, 228 
 recording judgment of, 229 
 
 for setting fire to ships of war, 288 
 
 for setting fire to dockyards, id. 
 
 for murder, 747 
 
 for mutiny, 638 
 
 for piracy, 867 
 false declaration touching, 491 
 destroying, altering, or forging register of, 557, 584 
 giving false certificate of, 558 
 
 transmitting false copy of register to registrar, id. 
 means of, need not be stated in the indictment, 747 
 proof of, 754 
 
 DEBENTURES, 
 
 forgery of, 555 
 
 DEBTORS, FRAUDULENT. See Bankrupt. 
 
 DECEASED PERSONS, 
 
 evidence of statements by. See Hearsay, Dying Declarations. 
 larceny of goods of, property how described, 688 
 
 DECLARATIONS, 
 
 evidence of. See Hearsay, Dying Declarations, False Declarations. 
 
 DEEDS, 
 
 execution of, when presumed, 179 
 concealment, suppression, or falsification of, 422 
 inducing persons by false pretences to execute, 498 
 forgery of, 553, 559, 572 
 forgery of registers of, 556 
 
 DEER, 
 
 stealing or pursuing in an uninclosed place, 448 
 stealing or pursuing in an inclosed place, id. 
 larceny of, 526 
 
 DEER-KEEPERS 
 
 may seize guns, etc., of persons entering land in pursuit of deer, 448 
 assaulting, 419 
 
 DEFENCE, 
 
 how conducted, 218 
 
 Avhere prisoners separately defended, id. 
 
 counsel allowed by statute in felony, 220 
 
 DEFILEMENT. 
 
 procuring of girls under 21 years of age, 897
 
 INDEX. 1283 
 
 DEGRADING QUESTIONS • 
 
 may be put if material, 152 
 
 DEMAND. 
 
 of properly with threats. See Threats. 
 of property upon forged documents, 558 
 
 DEMURRER 
 
 to an indictment for misdemeanor, 205 
 for felony, id. 
 
 DEPOSITIONS, 
 
 when admissible, 66 
 
 proof of, 171 
 
 double purpose for wliich they may be used, 06 
 
 when used to contradict a witness, how proved, 67 
 
 rules made after Prisoners' Counsel Act id. 
 
 cross-examination of witnesses upon, id. 
 
 difference between adding to and varying. 68 
 when used as substantive evidence, how proved, id. 
 
 reason why tlie rule is different, id. 
 
 comparison of tiie two rules, id. 
 in what cases admissible as substantive evidence, 69, 171 
 
 at common law, id. 
 
 by statute, id. 
 
 witness kept out of the way, id. 
 
 witness insane, 70 
 
 witness too ill to travel, id. 
 
 medical attendant, when to be called, 71 
 not admissible at all. unless formally taken, id. 
 must have been taken on oath, 72 
 mode of taking, id. 
 
 caption, id. 
 
 0[)portunity of cross-examination, id. 
 
 in presence of magistrate, 73 
 
 should be fully taken and returned, id. 
 
 signature, 75 
 
 by witness and magistrates, id. 
 
 signatures need not be proved, id. 
 for what purposes available, 76 
 mav be used before grand jury, id. 
 admissible thougli charge not technically the same, id. 
 prisoner entitled to copies of, 77 
 wlieu he is so entitled, id. 
 > whether he is entitled to copy of his own examination, id. 
 semi/e judge may order it to be given, id. 
 taken before a coroner, id. 
 
 generally subject to same rules as depositions before a magistrate, 78 
 
 whether prisoner must be present, id. 
 
 opinions of text-writers, id. 
 
 signature not required but desirable, 79 
 
 prisoner not entitled to copies of, id. 
 
 but judge may direct them to be given, id. 
 
 sent before grand jury, id. 
 taken in India id. 
 in foreign state, 80 
 by consent, in misdemeanor, id. 
 under Merchant Shipping Act, id. 
 cross-examination as to contents of, 67, 143 
 informally taken, refreshing memory by, 64, 146 
 how far conclusive in indictment for perjury, 828 
 
 DETAINER, FORCIBLE, 
 proof of, 536
 
 1284 INDEX. 
 
 DICE. See Cards. 
 
 DIRECTORS OF PUBLIC COMPANIES. See Public Companies. 
 otleuces by, 891 
 
 DIRECTOR OF PUBLIC PROSECUTIONS^ _ 
 
 fiat of, on prosecutions for newspaper libel, 705 
 restitution of stolen property in prosecutions by, 233 
 duties of, under Corrupt Practices Act, 31G, 347 
 
 DISCHARGE OF JURY, 
 when allowed, 222 
 
 DISCPIARGE OF PRISONERS, 230 
 
 DISCLOSURE 
 
 by informers, privileged, 157 
 
 meaning of the term, 281 
 
 compulsory, whether admissible as a confession, 52, 151, 161, 281, 993 
 
 agents, bankers, factors, etc., when not liable to be prosecuted after, 162, 281 
 
 other offences not indictable after, 830, 993 
 
 of stolen wills, 993 
 
 DISORDERLY HOUSES, 821, 823 
 
 DISSECTION OF DEAD BODIES, 
 when lawful, 446 
 
 DISSENTING CHAPEL. See Meeting-House. 
 marriages in. ■ See Bigamy. 
 
 DISTURBING PUBLIC WORSHIP, 450 
 
 DIVIDEND, 
 
 fraudulently receiving, 546 
 
 DIVIDEND WARRANTS, 
 
 making false, 547 
 
 DIVINE WORSHIP, 
 
 disturbing, 450 
 
 place of, breaking and entering, 453, 950 
 place of, riotously demolishing, 924 
 place of, setting tire to, 285, 291 
 
 DIVISIBLE AVERMENTS. See Indictment. 
 
 DOCKS, 
 
 injuries to, 952 
 
 stealing from, 956 
 
 setting tire to buildings belonging to. 285 
 
 DOCTOR. See Surgeon, Medical Wihiess, Physician. 
 evidence of answers to inquiries by, 32 
 inducement to confess by, 47 
 whether he must be called to prove condition of absent witness, 70 
 
 DOCUMENTS 
 
 lost or destroyed, secondary evidence of, 8 
 
 in the hands of adverse party, 9 
 
 notice to produce, 10. See Evidence. 
 
 presumed to be correctly dated, 17. See Presumption. 
 
 inspection of, by prisonerj 110
 
 INDEX. 1285 
 
 DOCUMENTS— corKmwed. 
 
 official, how proved, l(!o, lfi4 
 public, proof of, J 63, 164, 168 
 
 exam illation of prisoner. See Title. 
 
 acts of parliament, 167 
 
 acts of state and records, 168 
 
 judicial proceedings in foreign states, etc., 164 
 
 apothecary's certificate, 165 
 
 in Ireland, id. 
 
 in the colonies, id. 
 
 certificate of conviction or acquittal, 165, 167 
 of trial in cases of perjury, 166 
 
 copies and extracts, 13, 164, 165, 167, 169 
 
 proclamations, etc., 164 
 
 incpiisitions, 169 
 
 verdicts, 170 
 
 affidavits, id. 
 
 proceedings in equity. 171 
 
 depositions at law and in chancery, id. 
 
 bankruptcy proceedings. See Bankruptcy. 
 
 of inferior courts, 172 
 
 of probate, id. 
 
 foreign laws, 173 
 
 public books, id. 
 
 examined copies of, id. 
 
 bankers' books, 174 
 
 registers, id. 
 
 ancient documents, 176 
 
 seals, 163, 176 
 private, attest' ng witness, 176 
 
 when waived, 177 « 
 
 evidence of handwriting, id. 
 
 proof of execution when dispensed with, 179 
 stamps, 180 
 
 subpo?na rfuccs tecum io produce, 109. See Subpcena. 
 which are evidence, forgery of, 546 
 
 made evidence, forgery of seal, stamp, or signature of, 164, 1G6, 563 
 forgery of seal, stamp, or signature of document, 164, 16(), 562, 563 
 issued by officers of courts or banks of England or Ireland, forgery of, 557 
 how to be described in indictments for forging and uttering, 591 
 of no intrinsic value, larceny of, 684 
 of title, concealing, 422 
 of title, stealing or destroying, 992 
 of title to lands, meaning of term in Larceny Act, 640 
 
 DOGS. 
 
 stealing, 451 
 
 having possession of stolen, it?. 
 
 taking money to restoie, id. 
 
 not an indictable offence, obtaining by false pretences, 451, 516 
 
 not subject of larceny, id., 528 
 
 DOORS. 
 
 proof of breaking, 360 
 
 when constable justified in breaking, 798 , 
 
 ' DOUBT, 17 
 
 DRAWING 
 
 bill of exchange, etc., without authority, 554 
 
 DRIVING, 
 
 furious, 596 
 
 death caused by negligent, 732
 
 1286 INDEX. 
 
 DROWN, 
 
 attempts to, with intent to murder, 809 
 
 DRUGS. See Poison, Abortion. 
 
 administering to procure abortion, 274 
 witli intent to commit indictable oflence, 872 
 administering to cattle, 390 
 
 DRUNKENNESS, 
 
 whether an excuse for murder, 782 
 as excuse for crime generally, 1009 
 
 DUCKING STOOL, 825 
 
 DUELLING, 
 
 killingby, 724, 787 
 
 DUMB PERSON, 
 
 competent witness, 117 
 prisoner, how dealt with, 19S 
 
 DWELLING-HOUSE, 
 
 proof of breaking. See Burglary. 
 
 proof of entering. See Burglary. 
 
 setting tire to, 285 
 
 meaning of term " house," in arson, 290 
 
 what constitutes, in burglary, 3U7 
 
 what constitules part of, 359 
 
 what constitutes in housebreaking, 452 
 
 breaking and entering and committing felony thereon, id. 
 
 breaking and entering, with intent to commit felony, 453 
 
 breaking out of, id. 
 
 stealing in, to value of 5L. id. 
 
 stealing in, with menaces, id. 
 
 what amounts to stealing in, id. 
 
 proof of stealing to the amount of 5Z., id., 454 
 
 taking fish in water adjoining, 528 
 
 blowing up or attempting to blow up, 484 
 
 riotously demolishing, 924, 927 
 
 DYING DECLARATIONS, 
 evidence of, 33 
 
 declarant must have been competent, id. 
 but may have been partlceps crimlnis, id. 
 confined to cases of homicide, id. 
 
 only admissible when made under impression of impending dissolution, 34 
 when that impression exists, id. 
 interval of time between declaration and death, 37 
 admissibility of, question forjudge, id. 
 where reduced into writing, 38 
 degree of credit to be given to, id. 
 evidence in answer to, 39 
 
 DYNAMITE. See Explosives. 
 
 EAST INDIES, 
 
 forgeries of securities raised under statutes relating to, 47 
 
 EAVES-DROPPING, 824 
 
 EGGS, 
 
 larceny of, 526
 
 INDEX. ^ 1287 
 
 ELECTION, 205 
 
 in niisdemeanor, 207 
 
 time for ajjplication, id. 
 
 under the Explosive Substances Act, id. 
 
 in eiiibe/.iilenient, 459, SUi 
 
 in ofl'ences against Game Acts, COS 
 
 in larceny, 641 
 
 in indictments for receiving, 918 
 
 ELECTIONS. See Bribenj, Corrupt Practice. 
 bribery at, 843 
 ofiences at, id., 456 
 
 frauds on nomination or ballot papers, 456 
 election poll, carrying arms near, id. 
 corrupt withdrawal of election petition, 457 
 municipal elections, id. 
 false declarations at, 490 
 personation at, 345, 494 
 
 EMBEZZLEMENT, 
 
 evidence to explain motives and intention, 101 
 
 particulars in, 194, 478 
 
 by clerk or servant, 458 
 
 by persons in the Queen's service, 459 
 
 by constables or police, id. 
 
 venue in, id., 473 
 
 form of indictment in, id. 
 
 tiiree acts of, within six months may be charged together, id. 
 
 description of property, 4H0, 478 
 when part of the money is to be returned, 460 
 summary jurisdiction, id. 
 
 by officers of tlie Bank of England or Ireland, 461, 478 
 of property of trade union. See Larceny. 
 
 of partners. See Larceny. 
 of warehoused goods, 461 
 by officers of savings banks, id. 
 of post letters. See Post- Office 
 woollen, (lax, mohair, etc., i<^. 
 falsification of accounts, 462 
 general intent, need only be stated, id, 
 by whom, may be committed, id. 
 
 general cases, id. 
 
 officer not servant, 463 
 
 servant of illegal society, id. 
 
 employment to do one act only, 464 
 
 agent not servant, id. 
 
 part-owners and sharers in profit, 466. 
 
 persons employed by several, 467. 
 
 in whose employment, 468. 
 
 persons in the Queen's service, 470 
 
 officers of Bank of England or Ireland, 478 
 for or on account of his master, 470 
 
 money need not now be received by virtue of employment, id, 
 nature of offence of, 471 
 distinction between, and larceny, 472, 647 
 proof of, 473 
 venue, id., 459. 
 
 at what time offence of, committed, id. 
 where a claim is set up, though unfounded, 475 
 absconding, evidence of, id. 
 
 particularity witli which crime must be alleged, I'c^. 
 particulars of the embezzlement, 478 
 proof of tiie thing embezzled, id. 
 conviction for, on indictment for larceny, 82, 460, 643
 
 1288 INDEX. 
 
 EMBEZZLEMENT— con/mwerZ. 
 
 conviction for lurceny on indictment for, 82, 460, (543 
 
 distinction between larceny, obtaining by false pretences, and, 472, 684 
 
 by oilicers of public companies, 891 
 
 by trustees, 987 
 
 EMBRACERY, 721 
 
 EMPLOYMENT, 
 
 what constitutes, for purposes of embezzlement, 462 et seq. 
 
 ENGINES, 
 
 destroying or damaging, 717 
 used in mines, injuries to, 744 
 worked by steam, nuisances by, 819 
 riotously demolishing. ISee liiot. 
 
 ENGRAVING, 
 
 plate for forging bank securities, 551 
 
 plate for forging foreign bills, 552 
 
 venue in, id. 
 
 description of instruments in indictments for, 560 
 
 bank notes, proof of, 572 
 
 ENTRY, 
 
 proof of, in burglary, 366 
 
 constructive, 367 
 
 forcible, proof of, 536 
 
 proof of, in offences against Game Acts, 600 
 
 ERROR, 
 
 writ of, 233 
 
 court of, may amend proceedings, 227, 236 
 
 defendant in misdemeanor to enter into recognizances, 234 
 
 court of, may pronounce judgment, id. 
 
 ESCAPE. 
 
 by party himself, 480 
 
 party must be in criminal custody, id. 
 
 how criminal custody proved, id. 
 
 suffered by an ofhcer, id. 
 
 proof of arrest, 481 
 
 arrest must be lawful, id. 
 
 voluntary escape, id. 
 
 re -taking, id. 
 
 negligent escape, 482 
 
 re-taking, id. 
 
 from tiie custody of a private person, id, 
 
 punishment of, 483 
 
 EVIDENCE. See also Admmibility of, Admission, Hearsay, Presumptions. 
 general rules as to, the same as in criminal cases, 1 
 best, must always be jiroduced, id. 
 chattel, production of, 2 
 
 written instruments, contents of, must be proved by production, 2 
 in what cases rule as to production of written instruments applies, 2, 3. 
 
 policy of insurance against tire, 3 
 proceedings in county court, id. 
 proceedings in courts not strictly of record, id. 
 
 date of conviction, id. See Previous Conviction. 
 in what cases rule as to production of written instruments does not apply, id. 
 
 agreement not signed, id. 
 
 payment, 4 
 
 notes of conversation, id. 
 
 notes of evidence, id. 
 
 marriage, id.
 
 INDEX. 1289 
 
 EVIDENCE— co?i<»i««/. 
 
 where there arc niiiltipHcate originals, 4 
 all docimients |>riiiteil at same time are equally originals, id. 
 resolulions of [jublic meetings, how proved, id. 
 handwriting, how proved, 5 
 
 comparison of, how far allowed, 6 
 
 negative evidence of consent, id. 
 want of consent by tiiird person to act of prisoner, how proved, /(/. 
 
 appointment of oillcers and persons acting in public capacity, id. 
 
 admissions by party, 7 
 secondary evidence, when admissible, 8 
 
 lost documents, id. 
 
 wiiat search necessary, id. 
 
 answers to inquiries, id. 
 
 documents in tlie hands of adverse party, 9 
 
 after notice to produce documents, id. 
 
 when notice to produce dispensed with, 10 
 
 policy of insuran( e against lire, icZ. 
 
 not necessary when, id. 
 
 when document in court, 11 
 
 form of notice to produce, id. 
 
 no particular form necessary, id. 
 
 on whom to be served, and when, id. 
 
 must not be on Sunday, 12 
 
 consequences of notice to produce, ?(7. 
 
 stamp presumed on document not produced, id. See Presumption. 
 
 privileged communications, id. See Frivilege. 
 
 d(jcuments which it is physically inconvenient to produce, 13 
 
 placaids, banners, etc , id. 
 
 inscriptions on a monument, id. 
 
 public documents, id. See Pvblic Documents. , 
 
 admissiliility of, question forjudge, id. 
 
 copies, id- 
 
 copies of copies, 14 
 what proi)er to tlie issue, 81 
 
 substance of the issue must be proved, 87. See Indictment. 
 must be confined to the issue, 92 
 which discloses other ofiences admissible, tcL 
 what applicable to issue, i'/. 
 
 of other transactions closely connected with that under inquiry, I'tZ. 
 of several transactions all forming one act, 93 
 to explain motives and intention, 94 
 
 for wbat purpose admissible, id. 
 
 conspiracy, id. 
 
 uttering forged instruments or counterfeit coin, 95 
 
 receiving stolen goods, 98 
 
 in other cases, 99 
 
 only admissible where intent equivocal, id. 
 
 in obtaining by false pretences, 100. See False Pretences. 
 embezzlement, 101. See Embezzlement. 
 arson, 102. See Arson. 
 of character, id. 
 
 of prisoner, 102 
 
 of witness, 103 
 
 particular facts cannot be proved, id. 
 used for the purpose of contradiction only, 104 
 
 credibility of witness cannot be impeached by evidence of particular facts, id. 
 except by showing that he is not impartial, id. 
 to contradict party's own witness, 105 
 to confirm party's own witness, id. 
 cannot be taken by consent in felony, 140 
 in misdemeanor it may, id. 
 
 but only by consent of defendant or his counsel, id. 
 rebutting evidence, 220 
 forgery of, 55G, 563
 
 1290 INDEX. 
 
 EXAMINATION OF PKISONER, 
 
 under the 11 i^ 12 Viet., c. 42, s. 18, 59 
 
 object of doable caution, 60 
 
 oath to be administered, id. 
 
 inadmissible ii" taken on oath, id. 
 
 aiiter if tai^en on anotiier inquiry, id. 
 
 before coroner, 61 
 
 how far admissible if not returned, id. 
 
 statements made by tlie prisoner during the examination of witnesses, id. 
 
 wliat ougiit to be taken down, 63 
 
 j)risoner may prove omissions, id. 
 
 mode of taking, id. 
 
 signature, id. 
 
 not absolutely necessary, id. 
 
 ettect of it, 64 
 when informal, refreshing memory by, id. 
 how proved, 65 
 when return conclusive, id. 
 alterations and erasures in, id. 
 not evidence for prisoner, id. 
 statements at trial when defended by cotinsel, 220 
 
 EXAMINED COPIES, 
 
 of public documents, 165, 169 
 admissible, id. 
 officer giving false copy guilty of misdemeanor, 165 
 
 EXCHEQUER, 
 
 imitating paper, etc., used for securities of, 548 
 
 making or possessing materials for forging securities issued by, id. 
 
 forging of securities issued by, id. 
 
 EXCHEQUER BILLS, 
 
 forgery of, 548 
 
 EXCISE. See Smuggling. 
 
 venue of offences relating to, 966 
 forgeries relating to, 564 
 
 EXCOMMUNICATED PERSONS, 
 are competent witnesses, 124 
 
 EXECUTORS, 
 
 when property may be laid in, 688 
 
 EXPENSES OF WITNESSES. See Witnesses, Costs. 
 
 EXPLOSIVES, 
 
 injuries by, 484 
 
 blowing up dwelling-house and other buildings, td. 
 
 blowing up with intent to murder, id. 
 
 placing, near buildings, id. 
 
 placing, near ships, 485 
 
 injuries to persons by, id. 
 
 sending or throwing, id. 
 
 making or having possession of, 486 
 
 proof of malice unnecessary, id. 
 
 persons endangered, id. 
 
 proof of explosive substance, id. 
 
 Explosive Substances Act, 1875, id. 
 
 Explosive Substances Act, 1883, 487 
 
 husband and wife competent witnesses, 130, 488 
 
 accused admitted to give evidence, 130 
 privileges of witnesses, 151
 
 INDEX. 1291 
 
 EXPLOSIVES— fon/m«cd. 
 
 accessories pniiisliiible ns jirincipals, 180, 4S8 
 
 election as to counts in llie indictment, 207 
 
 causing exi)losion likely to endanger life or injure i>roperty, 487 
 
 making or having possession of explosives with intent, id. 
 
 providing materials, 488 
 
 interpretation of terms, id. 
 
 injuries by persons in possession of property, id. 
 
 indictment, id. 
 
 nuisance by kee[)ing, 818 
 
 EXPRESS MALICE, 783 
 
 EXTORTION, 833 
 
 EXTRADITION, 258 
 
 FACTOR, 
 
 embezzlement by, 278. See Agent. 
 definition of terms, 280 
 
 FALSE ACCOUNTING. See Embezzlement. 
 
 FALSE AFFIRMATION, 
 perjury on, 123, 844 
 
 FALSE COPIES OF RULES OF TRADE UNIONS. See Trade Unions. 
 
 FALSE DECLARATIONS. See Perjury. 
 at parliamentary elections, 490 
 at municipal elections, id. 
 before magistrates, id. 
 
 on registration of births, deaths, and marriages, 491 
 on registration of deeds, id. 
 in matters relating to customs, 492 
 in bankruptcy, id. 
 in other cases, id. 
 
 FALSE PERSONATION. See Forgery. 
 at common law, 493 
 by statute, id. 
 of bail, id. 
 
 of soldiers and seamen, id. 
 of voters, 345, 494 
 of owners of real estate, 495 
 of owners of stock, 496, 570. 
 
 FALSE PRETENCES, 
 
 evidence to explain motives and intention, 100 
 obtaining money, etc., by, 497 
 
 prisoner may be convicted of obtaining by, though facts amount to larceny, 83, 
 498, 503, 684 
 
 but not if indicted for larceny, 084 
 
 or though facts amount to forgery, 503 
 difference between obtaining goods by, and laneny. n/. 
 difference between larceny, embezzlement, and obtaining by, GS4 
 form of indictment, 498, 522 
 
 intent to defraud particular person need not be proved, 498, 521 
 causing money to be delivered by, 498, 602 
 inducing persons by, to execute deeds, etc., 498 
 
 to accept bills of exchanj^e, etc.. id. 
 preferring indictments for obtaining by, id.
 
 1292 IXDEX. 
 
 FALSE PRETENCES— con/mwed 
 what is an obtaining, 4*Ji) 
 
 obtaining as a loan, id. 
 
 on obtaining credit by, id., 318, 499. See Bankruptcy, 
 
 of having an interest in hind or money, 500 
 
 goods obtaine(i as a h)an, id. 
 
 obtaining ninst be caused by the false pretence, 501 
 
 constructive obtaining, 502 
 
 obtaining amounting to larceny, 503 
 
 amounting to forgery, id. 
 existing fact, id. 
 
 of some future transaction, id. 
 
 of having power to do an act, 504 
 
 combination of severid false statements, id. 
 
 of being entitled to m;iint:iin an action, id. 
 
 of being an unmarried m;in, id. 
 
 of intention to marry, 505 
 
 proof of one statement sufficient if material, 506 
 acts not words, id. *•• 
 
 by assuming a false character, id. 
 
 by giving a cheque without etiects, 507 
 
 by sending half bank note, 508 
 
 by giving a flash note, id. 
 overcharge, 509 
 of having delivered goods, 510 
 as to quality in course of a contract, 511 
 
 difference between, and simple commendation, 512, 513 
 as to quantity or weight, 513 
 conmion prudence on part ()f prosecutor, 514 
 pretences obviously false, id. 
 nature of the property obtained, 515 
 
 cliattel, money, or valuable security, id. 
 
 thing obtained need not exist at time of pretence, 516 
 no offence to obtain dog by, id. 
 proof of, being made. 517 
 proof of the falsity, 519 
 evidence confined to the issue, 520 
 proof of intent to cheat or defraud, 521 
 intended repayment no defence, id. 
 proof of ownership, 522 
 
 pretence to one, money obtained from another, id. 
 through innocent ngent, 523 
 proof of ail being principals, id. 
 obtaining bounty money by, 525 
 description of property. See Larceny. 
 venue in indictment for oV)taii)iiig by, id. 
 receiving goods obtained by, 907 
 
 FALSE SIGNALS, 
 exhibiting, 957 
 
 FALSE TOKENS, 
 
 offence of using, 395 
 
 FALSIFICATION OF ACCOUNTS, 462 
 
 FALSUM IN UNO, FALSUM IN OMNIBUS, 106 
 
 FARM BUILDINGS, 
 
 setting fire to, 285 
 
 FELO DE SE, 806
 
 INDEX. 1293 
 
 FELONY, 
 
 no acqiiittnl for misdemeanor though facta amount to, 82 
 no conviction for misdemeanor wlien felony negatived, 84 
 apprehension of persons suspected of, 202, 26'1 
 assault witii intent to commit, 3U2 
 Com])Ounding, 41!) 
 misprision of, 420 
 
 entering dwelling-house with intent to commit, 453 
 larceny of goods of persons convicted of, property how described, 086 
 in cases of indictment for, by poisoning, parties may be convicted of misde- 
 meanor, 873. 
 
 FE3rE COVERT, ^qq Husband. 
 
 FERJE NATURJE, 
 
 larceny of animals, 526 
 what are such, id. 
 
 larceny may be committed of them when dead, id., 527 
 or wlien tamed, id. 
 not if kept for pleasure only, id. 
 
 FERRETS, 
 
 not subject of larceny, 528 
 
 FIGHTING, 
 
 death caused by, 727 
 challenging to tight, 392 
 
 FINDING, 
 
 larceny of goods obtained by, 675 
 
 FINES AND SURETIES, 
 
 may be taken in addition to or in lieu of punishment, 230 
 
 FIREARMS. See also Shooting. 
 discharging at any person, 301 
 definition of, id. 
 pointing, an assault, 304 
 introducing into house, an entry, 366 
 discharging into house, an entry, 367 
 negligent use of, 730 
 
 FIREWORKS. See Explosives. 
 negligent use of, 726 
 
 FISH, 
 
 taking or destroying, 528, 529 
 
 larceny may be committed of, if in a tank or stew, id., 526, 529 
 
 oysters, stealing or dredging for, 530 
 
 poisoning, 873 
 
 FISH PONDS, 
 
 injuries to, 952 
 salmon fishery, 953 
 
 FIXTURES, 
 
 proof of breaking, in burglary, 863 
 larceny of, 532 
 
 cutting or severing glass, woodwork, lead, etc., fixed in any building, 533 
 wiiether necessary to lay property in any person in indictment for larceny 
 of, id. 
 
 FLIGHT, 
 
 as evidence of crime, 19, 751
 
 1294 INDEX. 
 
 FLOGGING. See Vndppiag. 
 
 FOOD. See Adulteration. 
 
 FORCIBLE DETAINER, 
 offence of, 535 
 
 FORCIBLE ENTRY, 
 offence of, 535 
 
 FOREIGN BILLS, . , , ^ . ^ . ,.,, -^o 
 
 engraving or having materials for forging foreign bills, obZ 
 
 FOREIGN COIN, 
 
 counterfeiting and importing. See Coin. 
 
 FOREIGN COUNTRY, 
 
 proof of warrants and depositions, 80 
 manslau,a;hter committed in, 258 
 murder in, id. 
 proof of marriage solemnized in, 333, 337 
 
 FOREIGN DOCUMENTS, 
 
 forging, 552 . 
 
 FOREIGN LANGUAGE, 
 libel in, 704 
 
 FOREIGN LAW, 
 
 examination of skilled witnesses as to, 148 
 proof of, 173, 337 
 of marriage, 333, 337 
 
 FOREIGN MARRIAGE, 
 how proved, 330, 337 
 
 FOREIGNER, 
 
 trial of, 212 
 
 conspiracy to murder, 436 ♦ 
 
 libel on, indictable, 700 
 
 when he may be tried for piracy, 870 
 
 FORFEITURE, 
 
 liability to, as a ground of privilege, 149 
 
 FORGED INSTRUMENTS, 
 demanding property on, 558 
 
 FORGERY, 
 
 evidence of intention in uttering, 95 
 
 prisoner not to be acquitted of obtaining by false pretences, because ofTence 
 
 amounts to, 503 
 at common law, 542 
 
 no difference between public and private documents, 543 
 trade-marks, 543, 563 
 her Majesty's seals, 544 
 
 transfers of stock or other public funds, 544, 569 
 transfers of stock in public company, id. 
 powers of attorney relating to stock or funds, 546 
 false entries in books of public funds, 547 
 false dividend warrants, id. 
 East India securities, id.
 
 INDEX. 1295 
 
 TORGEBY—conthiued. 
 
 exchequer bills, bonds, etc., 548 
 
 bank notes and bills, 549, 557, 570 
 
 making or having possession of plates, paper, etc., 548, 549, 550 
 
 engraving plates or paper, etc., 551 
 
 engraving a note, 551, 572 
 
 making a note, 551 
 
 deeds, 553, 572 
 
 bonds, 553 
 
 wills, 553, 573 
 
 bills of exchange and promissory notes, id. 
 
 bills unstamped, 569, 574 
 
 warrant, order, etc, for payment of money, 554, 577 
 
 receipt, 554, 581 
 
 warrant, order, etc., for delivery of goods, 554, 583 
 
 obliterating crossings on cheques, 554 
 
 debentures, 555 
 
 process or proceedings of courts, 555, 584 
 
 documents made evidence, 556 
 
 court rolls, id. 
 
 register of deeds, id. 
 
 orders of justices, recognizances, affidavits, etc., 557 
 
 documents issued by officers of courts, id. 
 
 documents issued by officers of banks of England and Ireland, id. 
 
 marriage license or certificate, id. 
 
 demanding money on forged instruments, 558 
 
 destroying, altering, or forging registers, 557, 584 
 
 transmitting false copies of register to registrar, 558 
 
 giving false certificate of birtlis, etc., id. 
 
 of foreign bill of exchange, and other foreign documents, 559. 
 
 venue in, 560 
 
 description of instruments in indictments for, id. 
 
 proof of intent in, id., 589 
 
 meaning of term "possession" in offences connected with, 561 
 
 punishment of, under statutes not repealed, id. 
 
 principals and accessories in, proceedings against, 562, 593 
 
 seal, stamp, or signature of public documents, 562 
 
 seal, stamp, or signature of documents made evidence, 763 
 
 trade-marks, id. 
 
 Government securities, id. 
 
 in other cases, id. 
 
 stamps, 5G4, 669 
 
 non-parochial registers, 564 
 
 documents relating to army and navy, id. 
 
 documents relating to customs, id. 
 
 contracts relating to land tax, id. 
 
 name of accountant-general in Chancery, id. 
 
 certificate of former C(mviction, id. 
 
 certificate under Birtlis and Deatlis Registration Act, id. 
 
 documents relating to slave trade, id. 
 
 matters relating to the post-office, id. 
 
 matters relating to stage and hackney carriages, id. 
 
 documents under Explosive Substances Act, id. 
 
 certificate under Sale of Food and Drugs Act, id. 
 
 records, 565 
 
 nomination and ballot papers, id. 
 
 seal of municipal corporation, id. 
 
 entry or alteration on registry of land, id, 
 
 under Sea Fisheries Act, 565 
 
 what amounts to, id. 
 
 alteration of document, id. 
 
 by indorsement, id. 
 
 credit need not be gained by, 566 
 
 by using a person's own name. id.
 
 1296 INDEX. 
 
 FO'RGETiY— continued. 
 
 what nniounts to — continued. 
 
 by using a fictitious name, 566. 
 by using an assumed name, id. 
 
 offence of, complete, though document imperfect, 569 
 proof of forging transfer of stock, id. 
 
 personating owner of stock, 570 
 engraving part of a note, 572 
 making a note, id. 
 forging wills, 573 
 
 bills of exchange, id. 
 
 undertakings, etc., for the payment of money, 677 
 receipts, 581 
 
 warrants, etc., for the delivery of goods, 583 
 destroying registers, 584 
 forging county court process, id. 
 uttering, disposing of, or putting off, 585 
 intent to defraud, 587 
 some one to be defrauded, 589 
 falsity of instrument, id. 
 form of indictment, 591 
 who are principals, 593 
 who are accessories, id. 
 proof of guilty knowledge, 594 
 venue, id. 
 
 FOEMAL DEFECTS, 
 
 in indictment, objection how taken, 209 
 
 FOKMER CONVICTION. See Previous Conviction, 
 
 FORNICATION, 899 
 
 FEAUD, 
 
 consent obtained by, 271, 899 
 
 possession or property obtained by, 655, 662 
 
 taking documents witli a fraudulent purpose, 992, 99<j 
 
 FEEEHOLD, 
 
 larceny cannot be committed of that which belongs to tlie, 532 
 unless it be served by a separate act, id. 
 
 FEIENDLY SOCIETIES, 
 
 larceny of property of, 646, 680 
 embezzlement of funds of, id. 
 
 FEUIT TREES, 
 injuries to, 984 
 
 FUNDS, 
 
 making false entries in books of public, 547 
 forgeries relating to public, 544, 5G9 
 personating owner of stock in, 546, 570 
 
 FUEIOUS DRIVING, 
 injuries caused by, 596 
 death caused by, 596, 732 
 
 FUEZE, 
 
 setting fire to, 286 
 
 GAME, 
 
 when subject of larceny, 526 
 
 offences relating to, 597 
 
 taking or killing by night, iV^ 
 
 apprehension of offenders against laws relating to, 598, 60
 
 INDEX. 1297 
 
 GAME — continued. 
 
 limitation of time for prosecutions relating to, 598, 602 
 
 previous convictions, how proved, 599 
 
 three persons entering laud by night armed in pursuit of, id. 
 
 definition of night, id. 
 
 definition of game, id. 
 
 destroying, on public road, id. 
 
 taking or killing, how proved, 600 
 
 entry for purpose of taking, how proved, id. 
 
 proof of situation and occupation land, 601 
 
 proof of being armed in pursuit of, 602 
 
 joinder of olliences, 603 
 
 GAMES, 
 
 death caused in, 726 
 
 GAMING, 
 
 unlawful and fraudulent, 607 
 winning money by fraudulent, id, 
 
 GAMING-HOUSE KEEPING, 607, 821 
 
 GAKDENS, 
 
 malicious injuries to plants in, 983 
 
 GAKOTTING, 301. And see Robbery. 
 
 GAZETTE, 
 
 proof of notice in, 173, 320 
 proof of proclamation in, 166 
 
 GESTATION, 
 
 presumption of period of, 19 
 
 GIEL, 
 
 abduction of, 268. See Abduction. 
 
 indecent assault on, 303, 310 
 
 carnally knowing, under twelve years of age, 897, 904 
 
 carnally knowing, between twelve and thirteen years of age, id. 
 
 procuring defilement of, under twenty one years of age, 897 
 
 proof of age, 272, 903 
 
 GIVING IN CHAEGE OF PRISONEK, 217 
 where there is a previous conviction, 224 
 
 GLEANERS, 
 
 larceny by, 674 
 
 GOODS, 
 
 ■ forgery of warrant, order, etc., for delivery of, 554, 583 
 setting fire to, in a building, 286, 294 
 
 GORSE, 
 
 setting fire to, 286 
 
 GOVERNMENT, 
 
 embezzlement by persons in service of the, 459 
 larceny by servants of, 643 
 libel on, indictable, 697 
 stores. See Naval Stores. 
 
 GOVERNMENT SECURITIES, 
 
 forgery of, 544, 569. See Exchequer Bills. 
 
 GRAIN, 
 
 setting fire to crops of, 284 
 
 assault with intent to obstruct sale of, 302 
 
 82
 
 1298 INDEX. 
 
 GRAND JURY, 
 
 whiit inclictments may be preferred before, 191 
 
 proceedings before, id. 
 
 foreman to swear witnesses, id. 
 
 ■wliat evidence necessary, id. 
 
 bill not to be ignored by, on tbe ground of insanity, 192 
 
 how accomplice in custody taken before, 131 
 
 RIEVOUS BODILY HARM, 
 
 statutes relating to, 609 
 
 proof of doing, id. 
 
 proof of intent, 610 
 
 distinction between motive and intent in, id. 
 
 may be found guilty of unlawfully wounding on indictment for, 612 
 
 causing, with intent to murder, 809 
 
 GUARDIANS AND OVERSEERS, 
 prosecution for assaults by, 635 
 
 GUEST, 
 
 of hotel, when guilty of burglary, 374 
 occupation of house hy, in burglary, 380 
 
 GUILTY, 
 
 plea of, plenary judicial confession, 40 
 
 GUILTY KNOWLEDGE. See also Intent. 
 proof of, in conspiracy, 94 
 
 in forging and uttering, 95, 594: 
 
 in abduction, 272 
 
 in receiving, 98, 907, 918 
 
 in taking lish, unnecessary, 529 
 
 in other cases, 99 
 
 GUNPOWDER. See Explosives, Nuisance. 
 
 HABEAS CORPUS AD TESTIFICANDUM, 
 wrii of, 110 
 
 liow to be applied for, id. 
 how to be executed, 111 
 to bring up a hmatic, id. 
 
 HABITUAL CRIMINALS ACT. See Preventim of Crimes Act. 
 
 HACKNEY CARRIAGES, 
 
 forgeries relating to, 564 
 
 HANDWRITING, 
 
 proof of, 5, 177 
 
 comparison of, how far allowable, 6, 178 
 
 skilled evidence as to, 179 
 
 HARBORS. See Docks. 
 
 HARES, 
 
 taking or destroying. See Game. 
 
 HAY, 
 
 setting fire to, 286. See Arson. 
 
 HEALTH, 
 
 proof of answers to inquiries as to, 31 
 nuisance by injuries to, 816, 818, 824
 
 INDEX. ' 1299 
 
 HEARSAY, 
 ' better called second-hand evidence, 25 
 not generally admissible, id. 
 
 explaining nature of transaction, id. 
 term often im|)r()perl3' a[)plie(l, id. 
 complaint in cases of rape, 2() 
 in other cases of violence, 28 
 exceptions to rule of inadmissibility, 29. 
 
 evidence already given in judicial proceedings, id. See Depositions. 
 
 as to ancient possession, id. 
 
 on questions of pedigree, id. 
 
 as to reputation of public or general right, 30 
 
 statement of deceased persons against interest, id. 
 
 of statements of deceased persons made in the course of business, 31 
 
 statements relating to the health or sufleriugs of the persons who make 
 
 them, id. 
 answers to medical inquiries, id. 
 limits of this exception, 32 
 dying declarations, 33 
 
 grounds of admi>sibility of dying declarations, id. 
 declarant must iiave been a competent witness, 33 
 but may have been particeps criminis, id. 
 contined to cases of homicide, id. 
 
 only admissible when made under impression of impending dissolution, 34 
 instances of that impression, id. 
 interval of time between declaration and death, 37 
 admissibility of dying declarations question for judge, id. 
 where declarations reduced into writing, 38 
 degree of credit to be given to dying declarations, id. 
 evidence in answer to proof of, 39 
 
 HEIR, 
 
 personating, 495. 
 
 HEIRESS, 
 
 abduction of. See Abduction. 
 
 HELPLESS PERSONS, 
 
 ill-treating, 035. See Manslaughter, Murder. 
 
 HIGH SEAS, 
 
 trial of offences committed on, 252, 871 
 offence of piracy on, 867 
 
 HIGHWAYS, 
 
 destroying game on, 599 
 
 delivery of particulars as to obstructions to, 194 
 
 particulars of the highway, 194, 632 
 
 what are, 613. 
 
 navigable rivers, id. 
 
 ways used by a portion of the public, 614 
 what is evidence of dedication of, id. 
 how dedicated nnder 5 & 6 Will. 4, c. 50, 615 
 which are not thoroughfares, id. 
 stopped by justices. 616. 
 set out by inclosure commissioners, 617, 626 
 turning or diverting, 617 
 evidence of reputation as to, id. 
 proof of, as set forth, 618 
 proof of termini, id 
 
 proof of changing, id. > 
 
 proof of nuisance, 619 
 
 what are nuisances to, id. 
 
 placing carriages in, id. 
 
 whole must be kept clear, id.
 
 1300 INDEX, 
 
 HIGHWAYS— confrnwed 
 
 proof of nuisance — cnnfinned. 
 
 I)loiigliiiig up ii fDoipath, fi20 
 
 laying down g;is and watcM- pipes, id. 
 
 obstructing navigation, iil. 
 
 insignificant obstructions, nl. 
 
 obstructions by wiiich public benefited, 621 
 
 wiien autborjy.ed liy acts of parliament, 622 
 
 obstructions by railways, id. 
 
 whether justitiable by necessity, id. 
 
 repair of iiouses, 628 
 
 judgment and sentence, id. 
 abatement of niiisances. See Nuisance. 
 indictment for not repairing, id. 
 parishes prinm facie liable, id. 
 
 what roads are so repairable, 624 
 
 no adoption necessary, 625 
 roads set out by inclosure commissioners, 626 
 inclosure by private person, id. 
 
 under act of parliament, 627. 
 evidence of reputation, 30, 617, 628 
 liability to repair ratione clausurce, 626 
 
 liability of particular districts to repair by custom, 627 
 "" proof of former convictions evidence in indictments relating to, 628, 630 
 
 extra-parochial places, id. 
 
 liability of corporation to repair, 629 
 
 liability of individuals to repair, id, 
 
 liability to repair rai/one tenurce, id. 
 
 individuals only liable for consideration, id. 
 
 not by prescription, id. 
 
 proof of formal acquittal not evidence, 630 
 parish, how discharged from liability, id. 
 district or private person, how discharged, 631 
 particulars, 632 
 costs, id. 
 new trial 633 
 indictment by justices, id. 
 evidence of husband and wife admissible, 129 
 
 HOMICIDE. See Murder. 
 justifiable, 634 
 excusable, id. 
 by misadventure, id. 
 evidence of dying declarations, in, 33 
 
 HOPBINDS, 
 
 injuries to, 984 
 
 HORSE, 
 
 stealing, 3S9 
 
 killing, maining, or wounding, id. 
 
 HOT-HOUSES, 
 
 injuries to plants in, 984 
 
 HOUSE. See Dwelling-house. 
 setting fire to, 285 
 meaning of term, in arson, 290 
 
 in burglary, 367 
 when it may be broken to execute process, 798 
 
 HOUSEBREAKING. See Dwelling -house. 
 possession of implements of, 359, 387, 388
 
 INDEX. 1301 
 
 HUSBAND, 
 
 larceny of goods of, by wife, 681 ' 
 
 killing adulterer, 770 
 
 cannot commit rape on wife, 899 
 
 bnt may be accessory to, id. 
 coercion by, lOlU 
 
 HUSBAND AND WIFE, 
 
 incompetent witnesses against eacli otlier, 125 
 
 rule (inly applies when one or (jtlier is on trial, id. 
 
 only extends to persons lawfully married, 12G 
 
 in cases of treason, 127 
 
 does not apply to c:ises of personal violence to each other, id. 
 
 how far it applies to bigamy, 129, 328 
 
 exceptions l)y statute, id. 
 
 privilege of, as witnesses in questions affecting guilt of each other, 153 
 
 when lialile as accessories, 180 
 
 as joint receivers. 910 
 evidence of being, lOIO 
 order for judicial separation in cases of aggravated assault, 229 
 
 ICE, 
 
 when subject of larceny, 647 
 
 IDE3I SONANS, 
 rule of, 90 
 
 IDENTITY OF PERSONS, 
 proof of, in bigamy, 339 
 
 IDIOTS. See Insane Persons. 
 
 how far competent as witnesses, 118 
 marriage by, 334 
 
 ILLNESS, 
 
 nature of, to admit deposition, 69 
 
 ILL-TREATING, 
 
 servants, 035 
 
 apprentices, id. 
 
 prosecution bv guardians, id. 
 
 children, 398' 
 
 lunatics, 636. See also Murder. 
 
 IMMORALITY, 
 
 presujuption against, 18 
 
 INCITING, 
 
 to mutiny. See Mutiny. 
 
 to commit murder, 430 
 
 to commit other offences, 183, 186. See Accessories. 
 
 INCLOSURE COMMISSIONERS. 
 
 setting out highways by. See Highinuis. 
 
 INCOMPETENCY. See Witnesses. 
 
 difference between and privilege of witnesses, 149 
 
 INCUMBRANCES, 
 
 fraudulent concealment of, 422 
 
 INDECENT ASSAULT, 303, 310 
 
 INDECENT EXHIBITIONS, 820 
 
 INDECENT EXPOSURE, id.
 
 1302 INDEX. 
 
 INDECENT LIBEL, 697 
 
 INDECENT PUBLICATION. See Libel. 
 
 INDIA, 
 
 depositions taken in, 79 
 
 INDICTMENT. See also Larceny. 
 Lord Hales' description of, 81 
 old rules of construction applicable to, id. 
 includes " information" in Corrupt Practices Act, 151 
 form of, under 14 & 15 Vict. c. lUO, 82 
 
 for felony or misdemeanor, prisoner may be convicted of attempt, id. 
 for robbery, prisoner may be convicted of assault with intent to rob, id. 
 for misdemeanor, not to be acquitted if fads amount to felony, id. 
 for felony, no conviction for misdemeanor, 84 
 for embezzlement, prisoner may be convicted of larceny, 83 
 for larceny, prisoner may be convicted of embezzlement, id. 
 for jointly receiving, prisoneis may be convicted separately, id. 
 accessory before fact indicted as principal, id. 
 for child murder and conviction of concealment of birth, id. 
 for false pretences, no acquittal if facts amount to felony, id. 
 for feloniously WDunding, conviction for unlawful wounding, id. 
 divisible averments, 83-86 
 
 of the offence, 83 
 
 for murder, prisoner may be convicted for manslaughter, id. 
 
 for burglary, prisoner may be convicted of larceny, id. 
 
 for compound larceny, prisoner may be convicted of simple larceny, 84 
 
 with regard to the extent of the property, id. 
 
 sufficient if some articles of many be proved, 85 
 
 of intent, id. 
 averments which need not be proved, 86 
 
 of time, id., 90 
 
 of place, id., 90 
 
 of value, id., 91 
 
 need not now be made, id. 
 effect of amendment in, 86 
 amendment of. .See Amendment. 
 substance of issue raised by, must be proved, 87 
 descriptive averments, id. 
 
 of property, ho\f proved, id. 
 
 of property of partners, companies, etc., how laid. See Partner, Corpo- 
 ration. 
 
 of person, how proved, 88 
 
 mistake in name, id. 
 
 person unknown, 89 
 
 rule of idem sonans, 90 
 
 names of dignity, id. 
 
 what evidence of name sufficient, id. 
 of time, id. 
 of place, id. 
 of value, 91 
 
 mod^ of committing offence, 91 
 
 names of children, 7")0 
 evidence must be confined to issue raised by, 92. See Evidence. 
 calling witnesses on back of, 139 
 prosecutor not bound to do so, id. 
 nor to give their addresses, id. 
 judge may order them to be called, id. 
 right to cro'^s examine in such cases, 140 
 how preferred and found, 191 
 
 when not to be preferred unless previously authorized, 192 
 count for previous conviction, 193 
 prisoner not entitled to copy of, in felony, 194 
 but he is so in misdemeanor, id.
 
 INDEX. .1303 
 
 INDICTMENT— con<inwed, 
 particulars, 194 
 jurisdiction, 195 
 removal of, 196 
 special pleas to, 202 
 autrefois acquit, id. 
 autrefois convict, id. 
 pardon, 205 
 general issue, id. 
 pleading over, id. 
 joinder of ofiences in one, id. 
 election, id. 
 quashing, 208 
 
 amendment of, 209. See Amendment. 
 form of, in malicious injuries to property, 289 
 
 in conspiracy, 4o() 
 
 in embezzlement, 459, 475 
 
 in explosives, 488 
 
 for obtaining by false pretences, 498, 522 
 
 in indictments for forgery, 560, 591 
 
 in indictments for engraving, etc., 560 
 
 for oflences relating to mines, 745 
 
 in manslaughter, 747 
 means of death need n8t be stated, id. 
 form of, for murder, id. 
 
 means of death need not be stated, id. 
 bow child to be described, 750 
 wounding, form of, for attempt to commit murder, 810 
 form of, in perjury, 662 
 
 for offences relating to post-ofEce, 877 
 
 for receiving, 908 
 
 for sacrilege, laid in, 930 
 
 for stealing written instruments, 972 
 
 for previous conviction, 193, 233 
 
 INDORSEMENT, 
 
 forgery of, 553, 573 
 
 obtaining by false pretences, 493 
 
 INDORSING, 
 
 bills of exchange, etc., without authority, 554, 581 
 
 INDUCEMENT. 
 
 nature and effect of, to exclude confessions, 42. See Confessions. 
 need not be negatived in order to render confession admissible, 56 
 
 INDUSTRIAL SOCIETIES, 
 proof of documents, 174 
 property of. See Li.rceny. 
 
 INFAMOUS CRIME, 
 
 threats to accuse of, 973, 978 
 definition of, id. 
 
 INFANCY, 
 
 plea of, 997 
 
 general evidence under, id. 
 
 INFANTS. See Child, Infancy. 
 recognizance by, 107 
 competency of, as witnesses, 115 
 degree of credit to be given to, 117 
 under fourteen years of age cannot commit rape, 898 
 nor assault with intent to commit rape, id, /
 
 1304 INDEX. 
 
 INFIDELS, 
 
 incompetency of as witnesses, 119 
 
 INFORMATION, 
 
 included in " indictment " in Corrupt Practices Act, 151 
 compounding, 4iy 
 proving, 841 
 
 INFORMERS, 
 
 disclosures by, privileged, 157 
 
 INNKEEPER. See Nuisance. 
 
 INNOCENCE, 
 
 presumption of, 18 
 
 innocent agent, false pretences made tlirough, 523 
 
 larceny made through, 661 
 
 forgery through, 594 
 
 INOCULATION, 
 
 of small-pox, 824 
 
 INQUISITIONS, 
 
 proof of, 169 ^ 
 
 INSANE PRISONER, 
 
 how dealt with, 199, 999 
 judgment upon, 230 
 
 INSANE WITNESS, 
 
 deposition of, whether admissible, 70 
 incompetency on the ground of, 118 
 
 INSANITY. 
 
 incompetency as witness on the ground of, 118. 
 
 plea of, 999 
 
 what question for jury, 989, et seq. 
 
 what questions can be put to medical witness, id. 
 
 caused by intoxication, 1009. See Itunalic. 
 
 INSCRIPTIONS. 
 
 secondary evidence of, 13 
 inspection by the jury, 224 
 
 INSOLVENCY. See Banh-uptcy. 
 
 INSPECTION OF DOCUMENTS, 110 
 
 INSTIGATING. See Inciting, Accesswies. 
 
 INSURANCE OFFICE, 
 
 intent to defraud in arson, how proved, 298 
 
 INTENT, 
 
 averment as to, divisible, 85 
 proof of, in abduction, 272 
 proof of, in abortion, 276 
 in arson, how proved, 297 
 
 to defraud a particular person need not be stated, 289 
 to commit felony, assault with, 302 
 to defraud, proof of, against bankrupt, 323 
 in burglary, 382 
 
 to break into a particular house, 387 
 proof of, to injure cattle, 391 
 in falsification of accounts, 462 
 
 to defraud in obtaining by false pretences, how proved, 521 
 proof of, in forgery, and offences connected therewith, 587, 589
 
 INDEX. 1305 
 
 ll!iTEWT— continued. 
 
 proof of, in forgery or uttering, id. 
 
 to do grievons bodily harm, proof of, GIO 
 
 proof of, in libel, 710 
 
 l)roof of, common in murder, 7G0 
 
 to commit murder, doing acts with, 809 
 
 how proved, id. 
 proof of, in perjuiy, 856 
 
 proof of, in indictments for administering poison, 809 
 proof of, in otiences relating to I'ailways, 895 
 
 INTENT TO DEFRAUD. See Intent. 
 presumption of, 24 
 
 INTENTION, 
 
 evidence to explain, 94. See Evidence. 
 
 INTEREST, 
 
 statements against, 30. See Hearsay. 
 
 INTOXICATION, 
 
 as an excuse for crime, 782 
 insanity produced by, 1009 
 
 IRELAND, 
 
 proof of marriages in, 331 
 
 ISSUE, 
 
 nature of, in criminal cases, 81 
 substance must be proved as laid, 87 
 evidence confined to, generally, 92 
 evidence confined to, in false pretences, 520 
 
 JEWS, 
 
 oath by, 121 
 
 proof of marriages by, 330 
 
 JOINDER OF OFFENCES, 
 in one indictment, 205 
 
 JOINT-STOCK BANK, 
 
 larceny by shareholder of, 644, 679 
 property of, how described, 690 
 
 JOINT TENANTS, 
 larceny by, 644, 679 
 
 JOINT WRONGDOERS. See Accessories. 
 
 JUDGE, 
 
 duty of, in determining questions as to admissibility of evidence, 13 
 warrant from, to bring up witness in custody, 110 
 whether a competent witness. 130, 157 
 may order witnesses to be called, 139 
 
 or ask questions, 140 
 
 right to cross-examine in such cases, id. 
 of court of law or equity, signature of, to be judicially noticed, 164 
 charge of, 222 
 
 duty of, on trial for libel, 716 
 power of, to commit witness for perjury, 862 
 
 JUDGMENT, 
 
 of other states, 169 
 
 arrest of, 225 
 
 on record in the Queen's Bench, id. 
 
 how entered where several ofiences are charged, 226
 
 1306 INDEX. 
 
 JUDGUE'ST—rondnued. 
 
 may be iunemled by writ of error, 227 
 
 of death, 228 
 
 affidavits in aggravation or mitigation of punishment, id. 
 
 recording jud.uinent of deatli, 229 
 
 on juvenile ofienders, I'c/. 
 
 insane persons, 230 
 
 fines and sureties, id. 
 
 disc'Iiarge of prisoner, id. 
 
 property found on prisoner, id. 
 
 of foreign or colonial court, liow proved, 164 
 
 after previous conviction, 233 
 
 JUKISDTCTION. See Venue. 
 proof of, in perjury, 836 
 of criminal courts, 195 
 quarter sessions, id. 
 objection to, how taken, 196 
 
 JUROR. See Jury. 
 
 a competent witness, 130 
 
 attempt to bribe, 348 
 
 who may serve as, in indictment for non-repair of bridges, 356 
 
 cannot be indicted for perjury for giving a false verdict, 842 
 
 JURY, 
 
 de medietate lingua, 212 
 
 challenge of, id. See Challenge. 
 
 may be a witness. See Witness. 
 
 whether tales can be prayed on defect of, 212 
 
 court may order sheriff to return, id. 
 
 who liable to serve on, 215 
 
 persons exem()t, id. 
 
 unfit persons may be ordered to withdraw from, 216 
 
 miscalling, id. 
 
 giving prisoner in charge to, 217 
 
 discharge of, 222 
 
 in what cases, id. 
 
 delivery of verdict by, 224 
 
 inspection by, id. 
 
 duty of, on trial for libel, 716 
 
 JUSTICE, 
 
 cheats affecting, 393 
 
 libel on administration, 698 
 
 JUSTICES. See Ilagistrates. 
 forgery of order, .557 
 indictment by, in highways, 633 
 
 JUVENILE OFFENDERS, 
 punishment of, 229 
 in arson, 285 et seq. See also Whipping. 
 
 KIDNAPPING, 269 
 
 KNOWLEDGE. See Guilty Knowledge. 
 
 KILLING CATTLE, 389 
 
 LAND TAX, 
 
 proof of books of commissioners of, 173 
 forgeries relating to, 564
 
 INDEX. 1307 
 
 LAECENY, 
 
 prisoner may be convicted for embezzlement on indictment for, 83, 460, 643 
 
 prisoner m:iy be cunvicled of, on indictnienl for embezzlement, id. 
 
 conviction for, on indictment for burglary, s;^, .'hS') 
 
 prisoner may be convicted of simple, on indictment for compound, S4 
 
 prisoner may be convicted for false pretences, tliougb facts amount to, 83, 503, 
 
 598, 684 
 but if indicted for larceny cannot be convicted of obtaining by false ])retences, 
 
 684 
 cannot be committed of dead bodies, 445 
 of cattle. (See Oxttie. 
 in a dwelling-bouse, 452 
 
 interpretation of terms in act relating to, G40 
 distinction between grand and petit, abolished, 641 
 punishment for simple, id. 
 by bailees, 641, 665 
 
 tiiree offences of, within six months, may be charged in one indictment, 641 
 election, id. 
 
 after previous conviction, 642 
 by servant, id. 
 
 by person in the Queen's service, or in the police, 643 
 venue in, 643, 692 
 of property of partners, 644, 679 
 by shareiiolders, id. 
 of property of counties, 645 
 of goods for the use of the poor, id. 
 of property of trustees of turnpikes, 646 
 
 of commissioners of sewers, id, 
 
 of friendly societies, id. 
 
 of loan societies, id. 
 
 of building societies, id. 
 
 of industrial societies, id. 
 
 of trades' unions, id. 
 
 of savings banks, 647 
 
 of Her Majesty's Customs, id. 
 summary jurisdiction, id. 
 definition of, by Eracton, id. 
 derived from tlie civil law, id. 
 other definitions, id. 
 subjects of, what are. id. 
 
 importance of the distinction between 'properly and possession, id. 
 meaning of terms lucri cuusd and animo furandi, 648. 
 what amounts to, generally, id. 
 
 giving master's corn to master's horses, 673 
 proof of taking, 649 
 
 what manual taking is required, id. 
 
 least removal suflicient, id. 
 
 possession obtained by mistake, 651 
 
 cattle straying, id. 
 
 distinction l)etween things taken and things delivered by mistake, 652 
 
 possession obtained by fraud, 653 
 property not jiarted with, id. 
 property parted with 655 
 
 possession obtained from servant by fraud, 662 
 
 possession obtained by threat, 664 
 
 possession obtained by false process of law, id. 
 
 by bailees, 665 
 
 by servants, 666 
 
 difference between, and embezzlement. 668 H .<ieq. 684- 
 difference between, and larceny by bailees, 653, 668 
 
 proof of intent to deprive owner of his property, 672 
 ' goods taken under a claim of right, 674 
 
 of goods founil, 675 
 by the owner, 678
 
 1308 INDEX. 
 
 LAUCE^Y— continued. 
 by luirt owner, 079 
 by wife, (JHI 
 
 by wife ami adulterer, id. 
 by liusband, 084 
 distinction between embezzlement, obtaining by false pretences, and larceny 
 
 (584 
 proof of value, id. 
 
 question whether goods stolen must be of some value, id. 
 of clieque, id. 
 proof of ownership, 685 
 
 when unnecessary, id. 
 
 wlieie the goods liave already been tortiously taken, id. 
 
 goods in custodid leoi", id. 
 
 goods of an adjudged felon, 686 
 
 goods in possession of children, id. 
 
 goods in possession of persons liaving a special property, id. 
 
 goods in possession of b:iilees, id. 
 
 goods in possession of carriers, 687 
 
 goods of deceased person, 688 
 
 goods of lodgeis, 6S9 
 
 goods of married women, id. 
 
 goods of persons unknown, id. 
 
 gooils in possession in servants, 690 
 
 goods of coi-i)Oi-ations. id. 
 
 goods in a cluirch, 692 
 venue, id. 
 
 of goods in ]irocess of manufacture, 743 
 from mine, 744 
 
 distinction between, and receiving, 912 
 from the person, 931 
 by tenants iind lodgers, 971 
 of written instruments, 992. See Written Instruments. 
 
 LEADING QUESTIONS, 
 
 not to be asked. 141 
 
 unless witness adverse, 142 
 
 LETTER OV CREDIT, 
 
 forgery of, 579 
 
 LETTERS. See Thrmteninq Letters. 
 
 stealing or detaining. See Post-office. 
 
 LEX LOCI, 
 
 governs validity of marriage, 330, 337 
 
 LIBEL, 
 
 blasphemous 695, 696 
 
 indecent, 696 
 
 on tlie government, id. 
 
 on the administration of justice, 698 
 
 upon individuals, id. 
 
 indictable if action will lie without special damage, id. 
 
 no indictment for words spoken, 699 
 
 on persons deceased 700 
 
 on foreigners, id. 
 
 on foreign jiowers, id. 
 upon public bodies, id. 
 punishment of, id., 701 
 costs, 701 
 
 proof of introductory averments, id. 
 proof of publication, 703 
 
 printing primdfncie proof, id. 
 
 by delivery at the post-office, id.
 
 INDEX. 1309 
 
 LI B E L — continuech 
 
 proof of publication — continued. 
 
 repeiition, 70-i 
 
 to the party libelled himself, id. 
 
 in foreign language, id. 
 
 in newspapers, 704. See also Newspapers, 
 Newspaper J^ibel Act, 705 
 proof of piiblieatidH, 174, 704 
 within Vexatious Indictments Act, 192 
 j)ro(f of copies of newspaiiei's, 704, 706 
 fiat of public prosecutor, 705 
 
 by adinission of defendant, 70G 
 
 liability of publishers, 707 
 
 by servants or agents, id. 
 
 constructive publication, id. 
 proof of innuendoes, 709 
 proof of malice, id. 
 proof of intent, 710 
 venue, id. 
 
 defendant indictable in every county where published, id. 
 
 unsealed letter sent by post, id. 
 
 post-mark evidence of letter having passed through office, 711 
 proof for the defendant, id. 
 
 of absence of malice, id. 
 
 justification by law, 712 
 
 privileged communication, id. 
 
 documents published by order of House of Commons, 713 
 
 fair comment, id. 
 
 proceedings in courts of justice, 714 
 
 I)ublic comment, id. 
 plea of justification giving truth of libel, 715 
 justification may be specially pleaded, 715, 716 
 evidence imder plea of not guilty, 716 
 
 duty of judge and jury respecting, as defined by statute, 716 
 libels to extort money, 974. See Threats. 
 
 LICENSE, 
 
 to marry, forgery of, 557 
 
 LIEN, 
 
 persons having, may dispose of goods, 279 
 what to be deemed, 280 
 
 LIFE, 
 
 duration of, presumption as to, 19 
 
 LIMITATION, 
 
 of time for proceedings under Corrupt Practices Act, 346 
 of time for prosecuting offences under Game Acts, 598, 602. 
 of time for prosecutions for smuggling, 966 
 
 LOADED ARMS. See Arms, Shooting. 
 what constitutes", 301 
 assault by pointing, 304 
 attempting to discharge, with intent to murder, 809 
 
 LOAN SOCIETIES, 
 
 larceny of property, 646 
 
 LOCKS, 
 
 injuries to, 952 
 
 LODGERS, 
 
 occupation of dwelling-house by, in burglary, 373 * 
 
 larceny of goods of, property how aescnbed, 689 
 injuries to property by, 971 
 larceny by, id.
 
 1310 INDEX. 
 
 LOST DOCUMENTS, 
 seaich for, 8 
 
 answers to inquiries respecting, id. 
 contents of, may be proved by secondary evidence, id. 
 
 LOST PROPERTY, 
 larceny of, 675 
 
 LOTTERIES, 
 keeping, 823 
 
 LUOBI CAUSA, 
 
 meaning of term, 647 
 
 LUNATIC. See also Insane Peisons. 
 marriage by, 334 
 ill-treatment of, 636 
 
 writ of habias corpus to bring up, as witness, IH 
 how far competent witness, 118. See Insanity. 
 arraignment of. See Arraignment. 
 judgment on, 230 
 
 MACHINERY, 
 
 attempting to blow up, 584, 717 
 
 riotously destroying or damaging. See Pdot. 
 
 destroying or damaging, 717 
 
 proof of damaging, 718 
 
 what machinery is within the statute, id. 
 
 MAGISTRATES, 
 
 duty of, on taking examination of prisoner, 59 
 duty of, on taking depositions, 73 
 signing depositions by, 75 
 false declarations before, 490 
 forgery of order of, 557 
 
 MAINTENANCE, 
 
 when justifiable, 719 
 
 in respect of interest. 719, 720 
 
 master and servant, 720 
 
 affinity, id. 
 
 poverty, id. 
 
 counsel and solicitors, id. 
 
 champerty, id. 
 
 embracery, 721 
 
 MALICE, 
 
 presumption of, 23, 760 
 
 definition of, id. 
 
 against owner of property injured need not be proved, 289 
 
 in arson, how proved, 296 
 
 proof of, in injuries to cattle, 391 
 
 in libel, 709 
 
 al)sence of, in libel, 711 
 
 in murder. See Murder, 
 when presumed in murder, 764 
 proof of, in wounding, 991 , 
 
 MALICIOUS INJURIES, 
 
 general provision as to, 722 
 
 See also the following titles: — Araon, Bridges, Cattle, Ounpowder, Machimnj, 
 Manufactures, Mines, Pigeons, Poison, Railways, Plots, Sacrilege, Sea and 
 Biver Banks, Ships, Telegraphs, Tenants and Lodgers, Trees and other Vegetable 
 Productions, Turnpike Gales, Works of Art, Written Instruments.
 
 INDEX. 1311 
 
 MALICIOUS MISCHIEF, 722 
 MALICIOUS PKOSECUTION, 722 
 
 MANSLAUGHTER. See Murder. 
 
 prisoners may be convicted of, on indictment for murder, 83 
 
 abroad, 2oS 
 
 punishment, 723 
 
 form of indictment, id. 
 
 distinction between, and murder, id. 
 
 accessory to, whetlier there can be, 181, 724 
 
 provocation, 724 
 
 mutual combat, id- 
 
 resistance to officers of justice, id. 
 
 killing in the performance of an unlawful act, id. 
 
 in the case of lawful or unlawful sports, 72G 
 
 prize fights, 727 
 in the course of lawful employment, 729 
 
 negligent driving, id. 
 negligent use of dangerous weapons, 730 
 contributory negligence, 731 
 by persons practising medicine or surgery, 732 
 
 neglect of duty, 736 
 
 chastisement, 737 
 in defence of person or property, id, * 
 
 MANUFACTURE, 
 
 embezzlement of goods in process of, 461 
 destroying goods in process of, 743 
 stealing goods in process of, id. 
 
 MARRIAGE. See Bigamy, Presumption, 
 proving certificate of, 174 
 false declaration touching, 491 
 license, forgery of, 657 
 
 destroying, altering, or forging register of, id. 
 giving false certificate of, id. 
 transmitting false copy of register of, to registrar, 558 
 
 MARRIED WOMAN. See Wife, Husband and Wife. 
 recognizance by, 107 
 larceny of goods from, property how described, 689 
 
 MARRIED WOMEN'S PROPERTY ACT, 
 recognizance by married woman, 108 
 
 liusband and wife competent witnesses for and against each other, qucere, 129 
 prosecution by husband or wife against each other, 683 
 
 MASTER, 
 
 inducement to confess by, 46 
 
 assault by, against servant, 307 
 
 assault by, in defence of servant, 308 
 
 ill-treatment of servant or apprentice by, 635 
 
 when not liable for maintenance for assisting servant, 720 
 
 correction administered by, 737 
 
 MATERIALITY, 
 
 proof of, in perjury, 849 
 
 MEASURES. See Weights. 
 
 MEDALS, 
 
 uttering foreign, 408 
 
 counterfeit medals resembling the Queen's current coin, 412
 
 1312 INDEX, 
 
 MEDICAL MEN. See Surgeon, Doctor, Physician. 
 exiuuinatioii us to opinion, 147 
 unskili'ul treatment by, 732 
 no dillereiice between licensed and unlicensed practitioners, 733 
 
 MEDICAL WITNESS, 
 
 what question can be put to, as to sanity, 1004 
 
 MEETING-HOUSE, 
 
 setting fire to, 285, 291 
 breaking and entering, 553, 950 
 riotously demolisliing, 924 
 
 MEMOEY 
 
 of witness, refreshing by memoranda, 146 
 
 MENACES. See Tlireat^. 
 
 stealing in dwelling-houses with, 453 
 
 MENS BEA. See Ouilty Knowledge, Intent. 
 
 MERCHANT. See Agent. 
 embezzlement by, 278 
 fraudulent sale by, 279 
 
 MERCHANT SHIPPING ACT. See Ships. 
 depositions under, 80 
 
 MILL DAMS, 
 
 injuries to, 952 
 
 MILITARY STORES. See Naval Stores. 
 
 MILK, 
 
 stealing from cows, 526 
 
 MINE, 
 
 of coal, setting fire to, 287 
 
 proof of malice in offences relating to, 289 
 
 conveying water into, 744 
 
 damaging machinery or engines belonging to, id. 
 
 larceny from, 745 
 
 removing ore from, id. 
 
 venue of offences relating to, 643, 692 
 
 form of indictment for injuring, 745 
 
 proof of injury to, id. 
 
 MINERS, 
 
 removing ore from mine, 745 
 
 MINORS, 
 
 marriages by, 336 
 
 MISADVENTURE, 
 
 death caused by, 724, 761. See Manslaughter, Murder. 
 
 MISAPPROPRIATION, 
 
 by agent, 278 
 
 MISDEMEANOR. See Felony. 
 
 conviction for, though facts amount to felony, 82 
 
 no accessories in, 188 
 
 election in, 207 
 
 compounding. 419 
 
 parties may be convicted of, in cases of indictment for felony by poisoning, 
 
 873 
 costs in. See Costs.
 
 INDEX. 1313 
 
 MISJOINDER 
 of counts, 208 
 
 MISPRISION 
 of felony, 420 
 
 MISTAKE, 
 
 larceny of goods delivered by, 651 
 
 detaining letters delivered by, 876 ' 
 
 MISTRESS, 
 
 inducement to confess by, 46 
 
 MOHAIR, 
 
 embezzlement of, 461 
 
 MONEY ORDERS. See Post-office. 
 
 MONUMENTS, 
 
 secondary evidence of inscriptions on, 13 
 
 MORALITY, 
 
 presumption in favor of, 18 
 
 MORAVIANS, 
 
 affirmation by, 123, 123 
 
 MOTIVES, 
 
 evidence to explain, 94 et seq. 
 evidence to show, in murder, 751 
 
 MUNICIPAL CORPORATION. See Corporations. 
 false declarations at elections of, 490 
 misappropriation of funds of, 285 
 
 MUNICIPAL ELECTIONS. See Bribery, Elections. 
 ofiences at, 457, 494 
 false declar.ations at, 490 
 false personation at, 494 
 
 MURDER, 
 
 prisoner may be convicted for manslaughter on indictment for, 83 
 
 abroad, where triable, 258 
 
 judgment of death for, 228, 747 
 
 judgment of death recorded in, 229 
 
 conspiracy to commit, 436 
 
 sending letters threatening to, 972 
 
 distinction between, and manslaughter, 723 
 
 punishment for, 747 
 
 sentence for, id. 
 
 body, how to be disposed of, id. 
 
 form of indictment for, id. 
 
 petit treason abolished, id. 
 
 means of death need not be stated, id. 
 
 of children, conviction for concealing birth on trial for, id. 
 
 punishment of accessory after the fact to, id. 
 
 proof of, having been committed, 748 
 
 whether there sliould be conviction where body not found, id. 
 
 of child in tlie womb, 749 
 
 of child shortly after birth, id. 
 
 how child to be described in indictment, 750 
 
 pi*oof that the prisoner was the party killing, 751 
 
 when person accused is principal in, id. 
 
 act done in prosecution of a felonious intent constituted, 752 
 persons acting with common intent, id. 
 
 83
 
 1314 INDEX. 
 
 MURDER — continued. 
 
 proof of means of killing, 754 
 
 must be a corporal injury, id. 
 need not be direct, 755 
 • coaipelling another by threats to kill himself, id. 
 by savage animals, id, 
 by poison, id. 
 
 by giving false evidence, 756 
 by wound not at first mortal, 757 
 need not be stated in the indictment, 747, 760 
 proof of malice, 760 
 
 presumption of, id. 
 
 murder in first and second degree distinguished, 761 
 performance of an unlawful or wanton act, id. 
 
 person killed other tlian was intended, id. See Grevious Bodily Harm, 
 riding a dangerous horse, 762 
 by wilful omission of duty, 763 
 
 neglect of infants and others, 764. See Children, Ill-treating. 
 death caused bj-^ negligence, 768 
 negligent driving, id. 
 misadventure, id. 
 
 correction by masters and parents, 769 
 dangerous assaults, id. 
 provocation in general, 770 
 bad language, id. 
 insulting conduct, id. 
 assault demesne, 772 
 instrument used, 774 
 
 dangerous weapon ought to be avoided if possible, id. 
 third parties, 776 
 
 provocation to justify must be recent, 777 
 drunkenness, 782 
 
 provocation does not justify express malice, 783 
 death caused in mutual combat, 784 
 duelling, 787 
 death ensuing on apprehension, 789. See also Apprehension. 
 when a peace officer is protected, id. 
 who may execute warrant, 790 
 warrant how to be executed, 791 
 apprehension under defective process, id. 
 notice of authority must be given, 795 
 felony actually committed, 796 
 mode of executing, id. 
 suspicion of felony, 797 
 misdemeanor, id. 
 breach of the peace, id. 
 constable not bound to avoid a conflict, id. 
 when a house may be broken, 798 
 resistance of illegal appreiiension, 800 
 impressment of seamen, 802 
 killing in defence of person or property, 804 
 cases oij'elo de se, 806 
 
 persuading another to commit suicide, id, 
 accessories, 808 
 attempts to commit, 809 
 injuries to person, id. 
 blowing up buildings, id. 
 by setting fire to or casting away ship, id. 
 by attempts to injure person, id. 
 by other means, id. 
 proof of intent to commit murder, id. 
 proof of the attempt, 810 
 form of indictment, id.
 
 INDEX. 1315 
 
 MUTE, 
 
 prisoner standing, how dealt with, 199 
 
 MUTINY, 
 
 inciting to, 638 
 mutiny, id, 
 
 MUTUAL COMBAT, 
 
 killing in, "24, 784, 787 
 
 NAME, 
 
 etiect of mistake in, 88 
 
 misspelt, rule oi idem sonans, 90 
 
 what evidence sufficient proof of, id. 
 
 of children, in indictment for child murder, 750 
 
 need not always be stated, id. 
 
 NAVAL AND MILITARY STORES, 
 statute 38 & 39 Vict. c. 25, 811 
 provisions with respect to stores, id. 
 definition of her Majesty's mark, id. 
 marking with her Majesty's mark, id. 
 power of constable to detain vessel, 812 
 having possession of, id. 
 Chelsea and Greenwich stores, id., 814 
 what amounts to guilty possession, 813 
 
 NAVIGABLE RIVER, 
 
 obstructing. See Highways, 
 injuries to, 952 
 
 NAVY. 
 
 forgeries relating to, 564 
 mutiny in the, 638 
 
 NEGLECT, 
 
 of children, 398 
 
 NEGLIGENCE, 
 
 manslaughter by. See Manslaughter. 
 murder by, 764-768. See Murder, 
 contributory, 731 
 
 NEGLIGENT DRIVING, 
 death caused by, 732, 768 
 
 NEWSPAPERS, 
 
 proof of publication of libel in, 174, 704 
 
 NEW TRIAL, 
 
 none in felony, 235 
 
 contra in United States, id, 
 
 in misdemeanor, id. 
 
 grounds for, 235 
 
 on indictment relating to highways, 633 
 
 NIGHT, 
 
 apprehension of offenders by, 260, 261 
 proof of burglary being committed by, 381 
 what constitutes, under Game Act, 599 
 meaning of term in Larceny Act, 382, 641 
 
 NIGHT-WALKERS, 
 
 apprehension of, 262
 
 1316 INDEX. 
 
 NITRO-GLYCEEINE, See Dangerous Goods, Explosives. 
 NOLLE PROSEQUI, 209 
 
 NOT GUILTY, 
 
 plea of, 40 
 
 plea of, when to be entered, 199, 205 
 
 NOTICE TO PRODUCE, 10. See Evidence. 
 
 NOXIOUS TRADES, 818 
 
 NUISANCE, 
 
 particulars in indictments for, 194 
 
 to highwavs. fSee Highways. 
 
 proof of public nature of, 815 
 
 degree of annoyance which constitutes, 816 
 
 no answer it is also a convenience, id. 
 
 in accustomed places, id. 
 
 neglecting iniprovemen^ts, 817 
 
 cannot be prescribed for, id. 
 
 offensive trades, 818 
 
 keeping explosives or inflammable substances, id. See Explosives. 
 
 corrupting streams of water, 819 
 
 railways and steam-engines, id. 
 
 indecent oi- disorderly exhibitions or conduct, id. 
 
 disorderly inns, 821 
 
 gaming-houses, id. See Gaming^ 
 
 lotteries, 823 
 
 unlicensed horse races, id. 
 
 bawdy-houses, id. 
 
 play-houses, id. 
 
 places of public entertainment, 824 
 
 dangerous animals, id. 
 
 spreading contagious diseases, id. 
 
 selling unwholesome provisions, 393, 824 
 
 eavesdropping, etc., 824 
 
 caused by agents or servants, 825 
 
 owner of property liable for permitting property to be so used as to create, id. 
 
 punishment and abatement of, 826 
 
 OATH. See Perjury. 
 
 general power to administer, 166 
 
 depositions must be taken on, 72 
 
 or affirmation by witness necessary in all cases, 119 
 
 king must take, if a witness, id. 
 
 form of, 121 _ 
 
 depends on religious belief of witness, id. 
 
 sufficient for purposes of perjury if declared by witness tu be binding, 122 
 
 affirmation in lieu of, id. 
 
 administering unlawful, 828 
 
 proof of the oath, 829 
 
 aiding in administering an oath, id. 
 
 person not liable if he makes disclosure. 830 
 
 what amounts to a disclosure, id. 
 to join in unlawful combinations, id. 
 administering voluntary, 831 
 
 OBSCENE PU15LTCATI0N. See Libel. 
 obscene prints,. 821 
 
 OCCUPATION, 
 
 proof of, in burglary, 370
 
 INDEX. 1317 
 
 OFf'ENDERS, 
 
 apprehension of. See Apprehension. 
 
 OFFENSIVE AVEAPONS, 
 
 proof of emiig-glers being armed with, 964 
 po;ichers being armed with, 602 
 
 OFFICER, 
 
 of justice. See Policemen, Condalles. Peace Officer, Public Officer. 
 
 apiiointnieiit of, when presumed, G, 17, 18, 83(j 
 
 false accounting by, HOI 
 
 of Bank of England or Ireland, embezzlement by, 4G1, 478 
 
 of savings' bank, embezzlement by, 4G1 
 
 of justice, disclosures by, privileged, 157 
 
 of public companies, offences by, 832, 891 
 
 misconduct of, 832 
 
 extortion by, 833 
 
 refusing to execute oiEce, 834 
 
 OFFICES, 
 
 ofiences relating to, 832 
 malfeasance, id. 
 nonfeasance, 833 
 extortion, id. 
 
 by oliicers in East Indies, 834 
 proof on refusal to execute office, id, 
 
 OFFICIAL COMMUNICATIONS, 
 how far privileged, 159 
 
 OMNIA BITE ESSE ACTA, 
 presumption, 18 
 
 ONUS PROBANDI, 17 
 
 on whom, in bigamy, 340 
 
 in possession of stolen goods, 19 
 
 in importing foreign counterfeit coin, 410 
 
 in making, etc., coining tools, 411 
 
 under the Counterfeit Medal Act, 412 
 
 in conveying coining tools out of the Mint, id. 
 
 under Explosive Substances Act, 487 
 
 in personating bail, 493 
 
 in making, etc., materials for forging bills and notes, 548 et seq. 
 
 in offences against seamen, 955 
 
 in insanity, 999 
 
 OPINION, 
 
 examination of witnesses as to, 147 
 whether subject to perjury, 846 
 
 ORDER, 
 
 for payment of money, forgery of, 5'i4, 557 
 for delivery of goods, forgery of, 554, 583 
 
 ORE, 
 
 removing by miners, 745 
 
 ORIGINALS, 
 
 all equally authentic, 4 
 
 printed copies are all equally so, id. 
 
 OUT-HOUSE, 
 
 setting fire to, 285 
 
 meaning of term, in arson, 291
 
 1318 INDEX. 
 
 OVERSEER, 
 
 prosecution for assault by, 635 
 larceny of goods of, 645 
 
 OVERT ACT, 
 
 how far necessary in conspiracy, 426 
 
 OWNER, 
 
 larceny by, 678 
 
 OWNERSHIP, 
 
 proof of, 685. See Larceny. 
 
 when not necessary to prove any, id. 
 
 OYSTERS, 
 
 stealing or dredging for, 530 
 
 PARDON, 
 
 confessions after offer of, 47 
 
 promise of, does not render accomplice incompetent, 131 
 
 what claim accomplice has to, 135 
 
 removes cLaim to privilege, 151 
 
 plea of, 205 
 
 how proved, id. 
 
 PARENTS, 
 
 neglect or abandonment of children, 398 
 deatli caused by neglect of, 736, 747 
 chastisement by, 3U7, 737, 769 
 
 excessive, causing death, 737, 769 
 
 PARISH, 
 
 liability to repair highways. See Highways. 
 
 PARLIAMENT, 
 
 proceedings in, privileged, 159, 712 
 
 public acts of parliament, how proved, 167 
 
 private acts, icL 
 
 journals of, how proved, 164, 168 
 
 bribery at election of members of, 343 
 
 false declarations at election of members of, 490 
 
 false personation of voters, 494 
 
 PABTICEPS CRIMINIS, 
 
 admissibility of dying declaration by, 33 
 
 PARTICULARS, 
 
 of charge, when prisoner entitled to, 194 
 
 how obtained, 195 
 
 consequences of delivering, id. 
 
 consequences of not delivering, id. 
 
 postponing trial for, id. 
 
 how enforced, id. 
 
 must be delivered in barratry, id., 325 
 
 in conspiracy, 436 
 
 in embezzlement, 478 
 
 delivery of, as to obstruction to highways, 194, 632 
 
 PARTNER, 
 
 occupation of house by, in burglary, 381 
 embezzlement by, 466 
 larceny by, 644, 679 
 property, how proved, 679
 
 INDEX. 1319 
 
 PAKT OWNEE, 
 larceny by, 079 
 
 PARTRIDGES, 
 larceny of, 526 
 
 PAUPER, 
 
 conspiracy to marry, 428 
 
 PAWNBROKER, 
 
 restitution of stolen property, 232 
 
 PEACE, 
 
 prevention of breach of, 262, 264 
 
 PEACE-OFFICER. See Constable, Police. 
 apprehension of offenders, 203 
 difference between, and private persons, 264 
 assault on, 310 
 killing. See Murder. 
 killing by. See Murder. 
 
 PEDIGREE, 
 
 evidence to prove, 29 
 falsifying, 422 
 
 PENALTIES, 
 
 liability to, as a ground of privilege, 150 
 
 PENETRATION, 
 in rape, 901 
 in sodomy, 967 
 
 PER.JURY. See False Declarations, Oath. 
 evidence given, how proved in, 4 
 form of oath imniateiial in, 122 
 
 affirmation has same effect as oath for purposes of, 123 
 nature of offence of, 886 
 
 proof of authority to administer an oath, id. 
 
 not necessary to prove appointment of officer who administers oaths, id. 
 jurisdiction must be well founded, 837 
 form of indictment, 839, 862 
 proof of occasion of administering the oath, 843 
 cannot be assigned against jurors for a false verdict, 842 
 form of jurat, 844 
 
 may be assigned on affirmation in lieu of oath, 844 
 substance of the oath, how proved, 845 
 swearing to belief or opinion, id. 
 whole statement must be taken together, 847 
 answers to questions mateiial, but not legal, 846, 851 
 how far depositions conclusive in, 848 
 proof of materiality, 849 
 
 assigned on answers to questions affecting witness's credit, 850 
 degree of materiality not to be measured, 851 
 materiality how averred, id. 
 proof of introductory averments, 852 
 proof of the falsity of the matter sworn, 855 
 proof of the intent, 856 
 number of witnesses requisite, id. 
 what corroboration sufficient, 857 
 provisions of the 5 Eliz. c. 9, relating to, 861 
 power of judge to commit witness for, id. 
 
 indictment not to be preferred for, without previous authority, 862 
 punishment of, 862, 863
 
 1320 IXDEX. 
 
 TERJUIlY—contivued. 
 
 postponing trials for, 863 
 subornation of, 804 
 
 proof of tlie incitement, id. 
 
 of the taking of the false oatli, id. 
 form of indictment for, id. 
 
 PERSON, 
 
 description of, in indictment, 88 
 
 PERSONATION. See False Personation. 
 
 PETIT TREASON, 
 abolished, 747 
 
 PHEASANTS, 
 
 larceny of, 526 
 
 PHOTOGRAPHS, 178 
 
 PHYSICIANS. See Surgeon, Medical Men, Doctor. 
 confessions to, not privileged, 154 
 
 PIGEONS, 
 
 when subject of larceny, 526 
 unlawfully killing, 8G6 
 
 PIRACY, 
 
 offence of, at common law, 867 
 
 statutes relating to, id. 
 
 dealing in slaves, 868 
 
 what amounts to 869 
 
 who may be guilty of, id., 870 
 
 foreigner may be punished for, id. 
 
 accessories to, id. 
 
 venue in, 871 
 
 punishment of, id. 
 
 PLACARDS, 
 
 secondary evidence of, 13 
 
 PLACE, 
 
 averment as to, when material, when proved, 90 
 
 averments, descriptive of, in burglary, how proved. See Burglary, 
 
 PLANTS, 
 
 malicious injuries to, 984. See Vegetable Productions. 
 
 PLAY-HOUSES, 
 keeping, 823 
 
 PLEA, 
 
 different kinds of, 202 
 
 PLEADING. See Indictment. 
 over, 205 
 
 PLEDGING GOODS, 
 
 unlawfully, by agent, banker, factor, etc., 278, 279, 280
 
 INDEX. 1321 
 
 POACHERS, 
 
 apprehension of, 598, 603 
 
 POACHING. See Game. 
 
 POISON, 
 
 administering, to procure abortion, 274 
 
 pi-oof of administering, id. 
 
 administering, not an assault, 305 
 
 giving to cattle, 390 
 
 killing by, 755 
 
 administering, with intent to murder, 809 
 
 attempting to, with intent to mui'der, id. 
 
 administering, with intent to commit indictable offence, 872 
 
 administering, so as to inlllct grievous bodily harm, id. 
 
 administering, with intent to injure, aggrieve, or annoy, id. 
 
 persons charged with felony may be convicted of misdemeanor, 873 
 
 killing fisli by, id. 
 
 proof of intent, id. 
 
 sale of poisoned grain, seed, or flesh, id. 
 
 POLICE. See Constable, Peace- Officer. 
 
 threat or inducement by. See Confessions, 
 
 metropolitan, apprehension by, 265 
 
 rural, apprehension by, id. 
 
 detention by, under Naval, etc., Stores Act, 812 
 
 embezzlement by, 459 
 
 larceny by, 643 
 
 supervision by, 233 
 
 POLICY OF INSUKANCE, 
 when to be produced, 3, 10 
 
 POLL. See CJiallenge of Jurymen. 
 
 POOR, 
 
 larceny of goods for the use of, 645 
 
 POOR-RATE, 
 
 collector of, in whose service, for purposes of larceny, 645 
 
 PORTS. See Docks. 
 
 POSSESSION. See Ancient Possession. 
 presumptive evidence of property, 17 
 difference between, and property, 647 
 imi)ortarioe of the distinction, 648 
 
 of stolen property, presumption from, 19, 912. See Stolen Property. 
 what constitutes, in abduction, 270 
 
 evidence of intrusting agents, banlcers, factors, etc., 281 
 person in, may be convicted of injuring property, 289 
 in arson, how described, 296 
 of counterfeit coin or coining tools, 415, 417 
 of explosive materials, 487 
 
 of materials for forging securities issued by bankers, 548, 549, 550 
 of materials for forging securities issued by exchequer, 548 
 of materials for forging foreign bills, 552 
 meaning of term in 24 & 25 Vict. c. 98, s. 45, 561 
 of materials for forging stamps, 563 
 of naval and military stores, when punishable, 813 
 of letters on way through post-olfice, 885
 
 1322 INDEX. 
 
 POST-OFFICE, 
 
 publication of libel by delivery at, 703, 711 
 oilences relating to, 874 
 
 by oilifers of the post-ofBce, id. 
 
 opening or detaining letters, id. 
 
 stealing, embezzling, secreting, or destroying letters, 875 
 
 stealing, etc., printed papers, id. 
 
 by private persons, id. 
 
 stealing out of letters, id. 
 
 stealing letters from mail or post-office, id. 
 
 stealing from post-oflice packet, 870 
 
 fraudulently retaining letters, id. 
 
 accessories, id. 
 
 receivers, id. 
 
 venue, 877 
 property, how laid in indictment for ofTences relating to, id. 
 punishment of oflences relating to, 878 
 interpretation clause, id. 
 post-office money-orders, 881 
 what is a post letter, id. 
 proof that person is employed by, 882 
 proof of stealing, embezzling, etc., 883 
 what is a post-office, 885 
 possession of letters on way through, id. 
 authority of servants to part with property, id. 
 forgeries relating to, 564 
 post-office order, forgery of, 578 
 
 POSTPONEMENT OF TRIAL, 
 binding witnesses over on, 107 
 of criminal trial, 199 
 on what grounds, 200 
 in order to instruct infant witness, 116 
 all parties bound over, 200 
 application for, when to be made, 201 
 of trial for perjury, 8G3 
 for delivery of particulars, 195 
 in embezzlement, 478 
 
 POWER OF ATTORNEY, 
 
 fraudulently selling under, 279 
 relating to stock or funds, forging, 544 
 forgery of attestation to, 546 
 
 PRACTICE, 190 
 
 PRESS, 
 
 privilege of, 713 
 
 PRESUMPTION, 
 
 of stamp on document not produced, 12 
 
 general nature of, 15 
 
 of law, 16 
 
 of fact, id. 
 
 difference between, in criminal and civil cases, id. 
 
 general instances of, 17 
 
 of property where there is possession, id. 
 
 of consent, id. 
 
 of custom, id. 
 
 of intention, id. 
 
 the date of instrument is correct, id. 
 
 of innocence and legality, 18
 
 INDEX. 1323 
 
 PRESUMPTION— coTi^mwec?. 
 
 ' against immorality, IS 
 against f)igamy, /(/. 
 omnia rile esse acta, id. 
 of appointment of public officers, id. 
 from the course of nature, 19 
 
 period of gestation, id. 
 
 of continuance of life, id. 
 of guilt from conduct of party, id. 
 
 from jiossession of stolen property, id. See Receiving. 
 
 when it is to be made, 20 
 
 proof of loss, id. 
 
 when loss considered recent, id. 
 
 disproving prisoner's account, 21 
 
 from possession of property in other cases, 22 
 of malice, 23 
 of intent to defraud, 24 
 none, of valid marriage, 328 
 of preliminary ceremonies in bigamy, 334 
 conflicting presumptions, 339 
 of malice, in murder, 760 
 
 in favor of proceedings in smuggling cases being duly taken and officers duly 
 appointed, 966 
 
 PREVENTION OF CRIMES ACT, 
 
 evidence of guilty knowledge, 907, 918 
 
 PREVIOUS CONVICTION, 
 
 evidence of, to rebut good character of prisoner, 103 
 
 of witness, id. 
 
 how proved, 1C5, 1C6 
 
 of witness, how i)roved, 166 
 
 indictment for, 193, 233 
 
 arraignment on, 224 
 
 giving in charge on, 225 
 
 eflfect of, on judgment, 233 
 
 under Game Acts, how proved, 599 
 
 larceny after, 642 
 
 uttering false certificate of, 565 
 
 in cases with respect to false coin, 408, 410, 415 
 
 in cases of receiving, 907, 918 
 
 PRINCIPAL. See Accfssory. 
 
 in the second degree in felony, 181 
 
 in misdemeanors an accessory is a, 189 
 
 who is, in forgery and uttering, 593 
 
 who is, in murder, 752 
 
 guilt of, how proved iu indictments for receiving, 910 
 
 PRINTED COPIES, 
 
 are all equally originals, 4 
 
 PRINTS. See Obscejie Prints. 
 
 PRISON BREACH, 887 
 
 PRISONER, 
 
 examination of. See Examination of Prisoner. 
 
 entitled to copies of depositions before magistrate, 77 
 
 not entitled to copy of his own examination, kL 
 
 judge may order it to be given, id. 
 
 not entitled to copies of depositions taken before a coroner, 78 
 
 inspection of documents by, 110
 
 1324 IXDEX. 
 
 T'RISO'^E'R— continued. 
 
 not entitled to copy of indictment in felony, 194 
 
 Imt judge may direct them to be given, id. 
 
 is entitled in misrdemeanor, id. 
 
 may demand particulars, 194 
 
 entitled to subixrna to produce witnesses, 110 
 
 procuring- attendance of, as witness, id. 
 
 incompetent to give evidence, 130 
 
 exceptions, id. 
 may call accomplice as witness, 132 
 right of challenging jury, 212 
 giving in charge, 217 
 statement when defended, 219 
 discharge of, 230 
 
 property found on, liow to be disposed of, id. 
 when court may order restoration to owner, 231 
 costs of, 244 
 aiding to escape, 889 
 
 PKISONER'S STATEMENT, 59, 210, 220. See Examination of Prisoner. 
 
 PEISONER AS A WITNESS, 130 
 
 PEISONERS' COUNSEL ACT, 
 rules made after, 67 
 
 PEIVILEGE, 
 
 proceedings in parliament, 159 
 of press, 713 
 of witnesses, 149 
 
 difference between, and incompetency, id. 
 conviction not reversed if (irivilege improperly refused, id, 
 on what grounds it may be claimed, id. 
 of forfeiture, id. 
 of ecclesiastical penalties, 150 
 of criminal penalties, id. 
 privilege, whether lemoved by pardon, 151 
 exceptions by statute, id. 
 before election committees, id. 
 right to, how decided, id. 
 
 bare oath of witness not always sufficient, 152 
 degrading questions may be juit, if material, id. 
 proof of jirevious conviction of witness, id., 166 
 of husband and wife, 153 
 of confidential adviser, id. 
 
 only legal adviser privileged, 154 
 not physicians, surgeons, or clergymen, id, 
 on the ground of jniblic policy, 157 
 persons in a judicial capacit}', id. 
 of witnesses, on disclosures by informers, id. 
 to officers of justice, 158 
 official communication, 159 
 
 correspondence between members of goyernment, id. 
 proceedings in parliament, id. 
 state papers, id. 
 objection to answer, how taken, IGO 
 may be waived, id. 
 may be claimed at any time, IGl 
 effect of refusing to answer, id. 
 
 if privilege not claimed, answers may be used against him, id. 
 but not if claimed and improperly refused, id. 
 when removed by statute, id. 
 of bankrupts, 52, 161, 281 
 of agents, bankers, etc., 162, 281
 
 INDEX. 1325 
 
 PRIVILEGED COMMUNICATION, 
 
 seconchirv evidence of, 12 
 defence of, in libel, 710, 712, 713 
 
 PRIZE-FIGHT, 
 
 wliether :in affray, 277 
 death caused by, 72S 
 
 PROBATE, 
 
 proof of, 172 
 
 obtaining property by means of false, 558 
 
 PROCESS 
 
 forgery of, 555 
 using false, id. 
 
 PROCLAMATIONS, 
 
 how proved, IGl 
 
 PROMISSORY NOTE, 
 
 inducing persons by false pretences to accept, sign, etc., 498 
 drawinir, indorsing, etc., without authority, 554 
 proof of forging, 573 
 larceny of, 9^4 
 
 PROOF, 
 
 burden of, 17 
 
 PROPERTY, 
 
 fonid on prisoner, how to be disposed of, 230 
 
 when court may order restoration to owner, 231 
 
 description of, in indictment, 87. See also Larceny. 
 
 presumption from possession of, 19. See Presumption. 
 
 of corporations, ()^^0 
 
 meaning of term, in Larceny Act, 648 
 
 assault in defence of, 309 
 
 killing in defence of, 737, 804 
 
 statement and proof of, in indictment. See Indictment, Larceny. 
 
 of partner, 644 
 
 PROSECUTION, 
 
 expenses of. See Costs, 
 opening case for, 217 
 
 PROSECUTOR. See also Director of Pablic Prosecutions. 
 admissions by, not generally evidence for prisoner, 54 
 
 PROTECTION 
 
 of witnesses from arrest, 114 
 
 PROVISIONS, 
 
 obstructing sale of, 302 
 selling unwholesome, 393, 824 
 
 PROVOCATION. See Murder, Manslaughter. 
 killing on, 724, 770 
 as defence, in murder, 770 
 
 PUBLICATION, 
 
 proof of, in indictment for libel, 703. See Libel. 
 
 PUBLIC BODIES, 
 libel upon, 700
 
 1326 INDEX. 
 
 PUBLIC BUILDINGS. See Buildings. 
 
 PUBLIC COMPANY. See Corporaiions. 
 books of, proof, 174 
 liability of, to repair bridges, 354, 356 
 ofiences by officers of, 8'Jl 
 
 embezzlement of property, id. 
 
 keeping fraiitlulent accounts, id. 
 
 destro^'ing or falsifying books, id. 
 
 publishing frau(fu ent statements, id. 
 
 protection of person accused, 892 
 
 falsification of books of joint-stock company, id. 
 
 declarations by railway officers, id. 
 occupation of house by, in burglary, 375 
 larceny by shareholders of, 644, (379 
 property, how laid, 690 
 how proved, 691 
 forgeries relating to stock of, 529, 530 
 
 See also Railway Companies. 
 
 PUBLIC DOCUMENTS. See Documents. 
 secondary evidence of, 13 
 forging, 562 
 no ditierence between forgery of, and of private, 543 
 
 PUBLIC FUNDS. See Stock. 
 
 PUBLIC HEALTH. 
 
 injuries to, by selling unwholesome provisions, 393, 824 
 
 PUBLIC OFFICERS. See Officers. 
 appointment of, how proved, 6 
 presumed to be flnly appointed, 18 
 false accounting by, 394 
 
 PUBLIC PLACE, 820 
 
 PUBLIC POLICY, 
 
 privilege of witnesses on the ground of, 157 
 
 PUBLIC PKOSECUTOR. See Director of Public Prosecutions. 
 
 PUBLIC ROAD, 
 
 destroying game on, ^99 
 
 PUBLIC USE, 
 
 larceny of things set up in place for, 583 
 
 need not be alleged to be property of any person, 685 
 
 PUBLIC WORSHIP, 
 disturbing, 450 
 
 PUBLISHER, 
 
 liability of, for publication of libel, 703. 
 
 PUNISHMENT. See Judgment. 
 
 affidavits in aggravation or mitigation of, 228 
 
 QUAKERS, 
 
 affirmation by, 122, 123 
 proof of marriage by, 330
 
 INDEX. 1327 
 
 QUARTER SESSIONS, 
 
 jurisdiction of court of, 195 
 
 whether suspended during assizes, 196 
 
 estreating recognizances of witnesses at, 108 
 
 QUASHING INDICTMENTS, 208 
 
 QUEEN'S BENCH, 
 
 removal of proceedings into. See Certiorari. 
 
 RABBITS, 
 
 taking or killing, 526, 527. See Game — Ferce Natures, 
 
 BA.ILWAY COMPANIES, 
 
 liability to repair bridges, 355 
 offences relating to, 893. See Railways. 
 misconduct of servants of, 893 
 
 RAILWAY STATIONS, 
 
 setting fire to, 285 
 
 RAILWAY TICKET, 
 
 obtaining by false pretences, 576 
 forgery of, 582 
 
 RAILWAYS, 
 
 are highways, 613 
 
 obstruction to highway by, 622 
 
 nuisances caused by, 819 
 
 offences relating to, 893 
 
 misconduct of servants of, id. 
 
 endangering safety of passengers on, 894 
 
 obstructing engines or carriages on, 895 
 
 proof of intent, id. 
 
 what are, 896 
 
 proof of obstruction, id. 
 
 RAPE, 
 
 crime of, 897 
 
 procuring the defilement of a girl, id. 
 
 carnally knowing a girl under twelve years, id. 
 
 between twelve and thirteen, id. 
 evidence of complaint in cases of, 2G, 903 
 particulars not admissible, id. 
 definition of, 898 
 
 infant under fourteen years of age incapable of committing, id. 
 husband cannot commit on his own wife, 899 
 may be accessory to, id. 
 effect of consent, id. 
 consent obtained by fraud, id. 
 woman made drunk, 900 
 proof that the offence is completed, 901 
 proof against accessories, 902 
 credibility of witness making charge of, id. 
 woman's character for chastity impeached, 903 
 particular instances of unchastity cannot be proved, id. 
 defilement of children, id. 
 
 proof of age, id. 
 
 nature of the offence, 904 
 assault with intent, id.
 
 1328 INDEX. 
 
 JIA TWNE CLA USURJE, 
 
 liability lo repair highways, G26 
 
 BATIONE TENURM 
 
 liability to repiir bridges, 355 
 liability to repair highways, 629 
 
 EEAL ESTATE, 
 
 personating owners of, 495 
 
 EEASONABLE DOUBT, 17. 
 
 EEBUTTING EVIDENCE, 220 
 
 EECEIPT. See Evidence. 
 forgery of, 554, 581 
 
 EECEIVING, 
 
 stolen goods, evidence of guilty knowledge in, 98, 907. See Presumption. 
 
 forged bank securities, 549 
 
 stolen goods, 906 
 
 where t!ie principal is guilty of felony, id. 
 
 separate receivers, how triable, id. 
 
 persons indicted jointly may be convicted separately, 907 
 
 where the principal is guilty of a misdemeanor, id. 
 
 Prevention of Crimes Act, guilty knowledge, 898, 907 
 
 goods belonging to wrecks or ships in distress, 887 
 
 venue, 899, 907 
 
 election, 899 
 
 form of indictment, 908 
 
 proof of guilt of principal, 910 
 
 conviction not conclusive, 911 
 
 confession of principal not evidence, 53 
 
 what is stolen property, 911 
 
 presumption arising from possession of stolen property, 912 
 
 distinction between receiving and stealing, id. 
 
 what amounts to a joint receipt, 916 
 
 husband and wife when liable as joint receivers, id. 
 
 EECOGNTZANCE, 
 
 compelling attendance of witnesses by, 107 
 witness refusing to enter into, id. 
 of infants and married women, id. 
 estreating, 108 
 forgery of, 557 
 
 EECOED OF CONVICTION, 
 
 how proved, 165, 167 
 
 EECORDS, 
 
 how proved, 168 
 
 of County Courts, 172 
 
 forgery of, 555 
 
 property need not be laid in any person in indictment for stealing, 085, 993 
 
 stealing, 993 
 
 EE-EXAMINATION, 
 
 limits within which confined, 145 
 
 EEFOEMATORIES, 
 
 power to send juvenile offenders to, 229 
 
 EEFRESIIING MEMORY, 
 
 by informal return of examination of prisoner, 6 
 of witness by memoranda, 146
 
 INDEX. 1329 
 
 KEGISTERS, 
 
 proof of, 174 
 
 of newspapers, 175 
 
 making false declaration to be Inserted in, 491 
 
 destroying, altering, or ibrging, !')b7 
 
 giving false certificates of contents of, id. 
 
 transmitting false copy of register of, to registrar, 558 
 
 forgery of non parochial, 584 
 
 proof of destroying, defacing, or injuring, 584 
 
 EEGISTRY, 
 
 of deeds, forgery connected with, 556 
 
 KELIGION, 
 
 incompetency from want of, 119 
 
 questions as to, to ascertain competency, 120 
 
 infant witness, ignorance of, IIG 
 
 EEMUNERATION, 
 
 of witnesses. See Witnesses. 
 
 REPAIR, 
 
 of highways. See Highways. 
 of bridges. See Bridges. 
 
 REPLY, 
 
 right to, 220 
 
 REPUTATION, 
 evidence of, 30 
 
 evidence of, to repair bridge ratione tenures, 355 
 evidence of, as to liability of parish to repair highways, 623, 628 
 general reputation, as to disorderly houses, 823 
 
 REQUEST, 
 
 for payment of money, forgery of, 554, 577 
 for delivery of goods, forgery of, 554, 583 
 
 BES OESTM, 26 
 
 RESCUE, 
 
 nature of tlie offence, 920 
 
 proof of the custody, id. 
 
 aiding prisoner to escape, 889, 921 
 
 RESERVOIRS, 
 
 injuries to, 952 
 
 RESTITUTION, 
 
 award of, on proof of forcible entry, 539 
 
 of stolen priiperty, 230 
 
 by pawnbroker, 232 > 
 
 RETREAT, 
 
 duty of one assaulted to, 772 
 
 REVENUE, 
 
 offences relating to. See Customs. 
 
 REWARDS, 
 
 for apprehension of offenders, 245 
 
 advertising, for return of stolen property, 420 
 
 keeping property in hope of reward, 676 
 
 to prosecutor in prosecution for returning from transportation, 982 
 
 to persons preventing smuggling, 966 
 
 84
 
 1330 IXDEX. 
 
 EIOT. See Affrmj. 
 
 offences under tlie Riot Act, 923 
 
 riotouisly injuring or demolishing buildings, 924, 927 
 
 seamen riotously preventing the unloading of vessels, 924 
 
 riotous behavior at burials, 925 
 
 proof of, 925 
 
 refusing to aid constable to quell, 926 
 
 proof of rout, 929 
 
 of unlawful assembly, id, 
 
 EIVEE, 
 
 corrupting, 819 
 
 obstructing navigable, 620. See Highways. 
 
 RIVER BANKS, 
 
 injuries to, 952 
 
 EOBBERY, 931 
 
 conviction for assault with intent to rob on indictment for, 82, 931 
 
 assault with intent to commit, 932 
 
 with violence, id. 
 
 at common law, id. 
 
 there must be a larceny, id. 
 
 proof of the taking, 933 
 
 proof of the felonious intent, 934 
 
 proof of the taking from the person, id. 
 
 in presence of the owner, 935 
 
 against the will of the owner, 936 
 
 proof of violence, id. 
 
 under pretence of legal proceedings, 938 
 
 proof of putting in fear, 939 
 
 threats to accuse of unnatural offence, 943. See Threat. 
 
 putting in fear must be before taking, 949 
 
 ROMAN CATHOLIC PRIEST, 
 confessions to, not privileged, 154 
 
 ROUT, 
 
 proof of a, 955 
 
 SACETLEGE, 950 
 
 proof that the building is a church, chapel, etc., id. 
 property how laid in indictment, id. 
 
 SAILOE. ^GQ Seamen. 
 
 SALMON, 953. See Fish, Poison, Sea. 
 
 poisoning water with intent to kill, 953 
 
 SAVINGS BANK, 
 
 appointment of clerk to, how proved, 7 
 larceny of goods belonging to, 647 
 embezzlement by officer of, 461 
 
 SCHOOLHOUSE, 
 
 breaking and entering, 453 
 
 SCIENTIFIC WITNESSES,_ 
 
 examination of, as to opinion, 147 
 perjury by, 846 
 
 SCOTLAND, 
 
 proof of marriages in, 331
 
 INDEX. 1331 
 
 SEA BANKS, ETC., 
 injuries to, 95 
 
 SEALS, 
 
 proof of, 176 
 
 wlu'ii dispensed with, 1G3 
 
 her Miijesty's, forging, 541: 
 
 of register oiiice of deeds, forging, 556 
 
 of register oiiice of birtiis, etc., forging, 557 
 
 to public documents, forging, 166, 562 
 
 to documents made evidence, forging, 166, 563 
 
 SEAMEN 
 
 assault on, 303 
 
 false personation of, 493 
 
 forgeries relating to, 564 
 
 riotously preventing the loading, etc., of vessels, 924 
 
 forcing on shore, 954 
 
 discharging or leaving behind, id. 
 
 SEARCH FOR LOST DOCUMENTS, 8 
 
 SECONDARY EVIDENCE. See Evidence. 
 admissibility of, question forjudge, 13 
 
 SECOND-HAND EVIDENCE. See Hearsay. 
 
 SECRETARY OF STATE, 
 
 warrant from, to bring up witness in custody. 111 
 
 SECURITIES. See Valuable Security. 
 
 SEDUCTION, 267 
 
 SELF-DEFENCE, 634 
 
 killing in, 737, 772, 804 
 
 SENTENCE FOR MURDER, 747. See Death, Judgment. 
 
 SEPARATISTS, 
 
 afBrmation by, 123 
 
 SERVANT. See 3faster. 
 
 assault by, in defence of master, 308 
 
 occupation of house by, in burglary, 377 
 
 embezzlement by, 463 
 
 falsification of accoimts by, 462 
 
 who is a, 462, 463, 464 
 
 ill-treating, 635 
 
 larceny of goods from, property how described, 690 
 
 publication of libel by, 707 
 
 correction of, by masters, 737 
 
 when not liable for maintenance for assisting master, 720 
 
 liability of master for nuisance caused by, 825 
 
 SETTING FIRE, 
 how proved, 289 
 
 SEWERS, 
 
 larceny of property of commissioners of, 646
 
 1332 INDEX. 
 
 SHAEFTTOLDEES, 
 lurceny by, G44, 079 
 
 SHAEES. See Stock. 
 
 SHED, 
 
 setting fire to, 285 
 proof of, 293 
 
 SHEEP, 
 
 killing with intent to steal, 389 
 killing, maiming, or wounding, id. 
 stealing, id. 
 
 SHIP. See Wreck. 
 
 SHIPS, 
 
 setting fire to, 287, 288, 289 
 
 meaning of term, in arson, 294 
 
 impeding person endeavoring to escape from, 300 
 
 assaulting persons endeavoring to save goods belonging to, 302 
 
 placing gunpowder near, 485 
 
 setting lire to, or casting away, with intent to murder, 809 
 
 stealing from, 'JoG 
 
 in distress or wrecked, stealing from, id. 
 
 damaging, 957 
 
 by false signals or otherwise endangering, id. 
 
 removing c^' concealing buoys, etc., id. 
 
 injuries to wrecks, id. 
 
 by misconduct endangering safety of, 958 
 
 sending unseaworthy ships to f5en, id. 
 
 neglecting to render assistance in case of collision, id. 
 
 accused a competent witness, 130, 958 
 
 venue in oflences relating to, 958 
 
 sho6t, 
 
 attempting to, 301 
 
 what amounts to attempt to, 312 
 
 attempting to, with intent to murder, 809 
 
 SHOOTING, 
 
 at any person, 301 
 
 into dwelling-house, an entry, 367 
 
 shooting at A. wilh intent to hit B., etc., 611 
 
 attempting to, with intent to murder, 809 
 
 what sliall constitute loaded arms, 960 
 
 proof of arras being loaded, id. 
 
 proof of sliooting, 961 
 
 at vessels belonging to the navy, 965 
 
 SHOP, 
 
 setting fire to, 285 
 riotously injuring, 924 
 breaking and entering, 622 
 what constitutes a, id. 
 
 SHEUBS, 
 
 injuries to, 983 
 
 SIGNALS, 
 
 making false, 957 
 
 making, to vessels engaged in smuggling, 964
 
 INDEX. 1333 
 
 SIGNATURE, 
 
 of prisoner to examination not absolutely necessary, 63 
 
 ellcct of it, 64 
 
 of witness to depositions, 75 
 
 of iiKigistratcs to depositions, id. 
 
 to depositions need not be proved, id. 
 
 not necessary to (lejxisiiioas befoie a eoroner, but desirable, 79 
 
 to puiilic documents, forging, 562 
 
 to documents made evidence, forgery of, 563 
 
 SIGNING, 
 
 bill of excliange, etc., without authority, 554 
 
 SILENCE, 
 
 confession inferred from, 56 
 
 SILK, 
 
 embezzlement of, 461 
 
 SKELETON, 
 
 identiiication of, 748 
 
 SKILLED WITNESSES, 
 examination of, 147 
 perjury by, 846 
 
 SLANDEROUS WORDS, 
 not indictable, 700 
 
 SLAVES, 
 
 olience of dealing in, 868 
 
 SMALL-POX, 
 
 exposing, is an indictable offence, 824 
 
 SMUGGLING, 
 
 ofience of, 963 
 assembling to assist in, id. 
 proof of assembling together, 964 
 proof of being armed with ofTensive weapons, id. 
 making signals to smuggling vessels, id. 
 shooting at vessels belonging to navy, 965 
 assanliing revenue ofheers, id. 
 
 compensations and le wards to persons preventing, 966 
 indictments, how preferred and found, id. 
 limitation of time for prosecution for, id. 
 venue, id. 
 
 presumption in favor of proceedings being duly taken, and officers duly ap- 
 pointed, id. 
 
 SODOMY, 
 
 threats to accuse of, 943, 973, 978 
 offence of, 967 
 
 SOLDIERS, 
 
 inciting to mutiny, 688 
 false personation of, 493 
 
 SOLICITOR, 
 
 embezzlement by. See Attorney. 
 barratry by. See Barratry. 
 
 SOLITARY CONFINEMENT, 878 
 
 SPORTS, 
 
 death caused in lawful or unlawful, 726
 
 1334 INDEX. 
 
 SPEING GUNS, 
 
 when a nuisance, 815 
 setting, 9ti8 
 
 STABBING. See Wounding. 
 
 STABLE, 
 
 setting fire to, 285 
 riotously demolishing, 924 
 
 STACKS, 
 
 setting fire to, 287 
 
 meaning of term, in arson, 294 
 
 STAGE COACHES, 
 
 forgeries relating to, 564 
 larceny from, 25U, 687 
 
 STAMPS, 
 
 presumption of, when document not produced, 12 
 
 proof of, when dispensed witli, 164 
 
 proof of, ill criminal cases, ISO 
 
 on documents made evidence, forgery of, 166, 563 
 
 to public documents, forging, 662 
 
 forgery of, 564, 569 
 
 possessing materials for forging, 564 
 
 forgery of instrument invalid for want of, 574 
 
 STATE, 
 
 matters of, how far privileged, 159 
 
 STATEMENT OF PRISONER, 
 
 by counsel, 219 
 
 STATIONERY OFFICE, 
 
 documents printed at Her Majesty's stationery office, 164 
 proof of, id. 
 forgery of, 563 
 
 STEALING. See Larceny. 
 in a dwelling-house, 453 
 from the person, 931, 934 
 
 STEAM-ENGINES. See Machinery, Engines. 
 used in mines, injuries to, 744 
 nuisances caused by, 819 
 
 STOCK, 
 
 proofs of register, 175 
 
 forgeries relating to, in public funds, 529, 530 
 
 forgeries relating to, in public company, id. 
 
 personating owner of, in public funds or company, 496, 546 
 
 proof of forging tr;insfer of, 569 
 
 proof of personating owner of, 570 
 
 STOLEN PROPERTY, 
 
 receiving. See Receiving Stolen Goods. 
 
 proof of loss, 20 
 
 when loss considered recent, id. 
 
 disproving prisoner's account, 21 
 
 restitution of, to o\vnf>r, 231 
 
 presumption of guilt from possession of, 19, 912 
 
 presumption arising from jjossession of, where owner unknown, 689 
 
 advertising rewards for recovery of, 420 
 
 taking reward for discovery, id.
 
 INDEX. 1335 
 
 STORES, 811. See Naval Stores. 
 
 STRANGLE, 
 
 attempts to, 301 
 
 STREAMS, 
 
 corrupting, 819 
 
 SUBORNATION 
 
 of perjury, 864. See Perjury. 
 
 SUBPCENA, 
 
 compelling attendance of witnesses by, 108 
 
 by wliom issued, id. 
 
 from courts of limited jurisdiction, 109 
 
 duces tecum to produce documents, id. 
 
 four persons may be included in, id. 
 
 must be served personally, id. 
 
 when to be served, /<:/. 
 
 not necessary where witness jiresent, id. 
 
 fur prisoner to witness for defence, 110 
 
 attachment of witness for not obeying, 111 
 
 SUICIDE, 
 
 otrence of committing, 806 
 persuading another to commit, id. 
 
 SUMMARY CONVICTION, 
 
 no prosecution for assault if case disposed of by, 303, 309 
 in embezzlement, 460 
 in larceny, 647 
 in receiving, 908 
 
 SUMMING-UP BY COUNSEL, 218 
 
 SUMMONS, 
 
 forgery of, 555, 557, 584 
 
 SUPERINTENDENT REGISTRAR, 
 marriages before, 330 
 
 SUPPRESSION 
 
 of document or fact in transfer of land, 422 
 
 SURETI ES. See Fines and Sureties. 
 
 whether witness can be compelled to find, 107 
 
 SURGEON. See Medical Man, Doctor, Physician. 
 
 whether he must be called to prove condition of absent witnesses, 70 
 confessions to, not privileged, 154 
 
 SWANS, 
 
 whether subjects of larceny, 526 
 
 TAKING, 
 
 what constitutes, in abduction, 269 
 wiiat constitutes, under Game Acts, 600 
 what constitutes, in larceny, 649 
 
 TALES, 
 
 whether can be prayed, 212
 
 1336 INDEX. 
 
 TELEGEAPH MESSAGES, 970 
 
 TELEGRAPHS, 
 
 injuries to, 969 
 
 TENANTS, 
 
 occupation of house by, in burglary, 379 
 injuries to property by, 971 
 larceny by, id. 
 
 TENANTS IN COMMON, 
 
 larceny by, 644 
 
 TERRIERS, 
 proof of, 176 
 
 THEFT-BOTE, 419 
 
 THREAT. See also Threatening Letters. 
 
 effect of, to exclude confession. See Confessions. 
 
 stealing in dwelling-house with, 453 
 
 is evidence of malice, 761 
 
 demanding property with, with intent to steal, 972, 97 
 
 to accuse of crime with intent to extort, 973 
 
 inducing a person by, to execute deed, etc., id. 
 
 immaterial froui whom they proceed, 974 
 
 to publish a libel witii intent to extort, id. 
 
 proof of the sending the letter, id. 
 
 proof of the demand, 975 
 
 proof of the threat, 977 
 
 to accuse of infamous crimes, 978 
 
 matter of defence, 979 
 
 THREATENI?^G LETTERS, 
 
 sending, 972. See Threat. 
 
 to min-der, id. 
 
 demanding property with menaces, id. 
 
 to accuse of crime with intent to extort, 973 
 
 to burn or injure propei-ty, 974 
 
 proof of sending, id. 
 proof of the nature of, 976 
 question for the jury, id. 
 
 TIME, 
 
 averments as to, whe/i immaterial, 86 
 averment as to, when material, how proved, 91 
 
 TITLE. See Documents of Title. 
 
 TITLE TO LANDS, 
 
 fraudulent dealing with, 422 
 
 concealment, suppression, or falsification, id. 
 
 TOLL-BARS, 
 
 injuries to, 987 
 
 TOLL-HOUSES, 
 injuries to, id. 
 
 TRADE-MARKS, 
 
 cheating by use of false, 395 
 forgery of, 543. 563
 
 INDEX. . 1337 
 
 TRADES, 
 
 nuisance by carrying on offensive, 818 
 
 TRADES' UNIONS, 
 
 larceny. See Friendly Societies. 
 issuing false copies of rules, 489 
 conspiracy in. (See Conspiracy. 
 
 TRANSFER OF STOCK, 
 
 forgeries relating to, 544, 569 
 
 TRANSPORTATION, 
 
 returning from, 9S0 
 
 punislinient, 981 
 
 reward to prosecutor, 982 
 
 TREATIES, 
 
 liow proved, 164 
 
 TREATING, 343 
 
 TREES, 
 
 setting fire to, 286, 294 
 
 stealing or destroying with intent to steal, 532, 963 
 
 injuries to, id., 983 
 
 TRIAL, 
 
 conduct of the trial, 217. See Prosecution, Cross-examination, Summing-up, De- 
 fence, Reply. 
 postponement of, 107,116,200,963 
 new, when granted, 235 
 
 TRUSTEES, 
 
 frautl by, 987 
 
 fraudulently disposing of property, id. 
 
 who are within the act, id, 
 
 TURNPIKE GATES, 
 
 injuries to, 987 
 
 TURNPIKE ROAD, 
 
 larceny of property of trustees of, 646 
 
 TURNPIKE TICKET, 
 forgery of, 582 
 
 UNDERTAKING, 
 
 for payment of money, forgery of, 554, 577 
 
 UNDUE INFLUENCE, 343 
 
 UNLAWFUL ASSEMBLY, 
 
 proof of an, 929 ' 
 
 UNLAWFULLY WOUNDING, 
 
 conviction for, on indictment for felony. See Wounding.
 
 1338 . INDEX. 
 
 UNNATURAL OFFENCE, 
 
 od'eiK-e, 9G7 
 
 robborv by means of threat to accuse of, 9j3 
 seiiiliiig Jelt''''''s threatening to accuse of, 973, 978 
 tlireats to accuse of, id. 
 
 UNSTAMPKD INSTRUMENT, 
 
 forgery of, 574 
 
 UNWHOLESOME PROVISIONS, 
 otiences of selling, 393, 824 
 
 UTTERING, 
 
 evidence of guilty knowledge, 95, 594 
 counterfeit coin, proof of, 413 
 
 meaning of term, 4l4 
 forged instrument, proof of, 585 
 proof of falsity of instrument, 589 
 form of indicunent for, 691 
 w!io are accessories in, 593 
 who are principals in, 413, 494 
 venue, 412, 595 
 
 VALUABLE SECURITY, 
 
 agents, etc., fraudulently pledging, 278, 279, 280 
 
 meaning of term, in Larceny Act, 640 
 
 meanin>,'of term in statutes relating to post-ofEce, 880 
 
 demanding, by means «f threats, 972 
 
 stealing, 992, 994 
 
 VALUE, 
 
 averments as to, 86 
 
 averments as t;), when material how proved, 91 
 proof of, of goods stolen in dwelling house, 454 
 whether goods stolen must be of some, 684 
 
 VEGETABLE PRODUCTIONS, 
 
 setting tire to, 286, 287, 294 
 injuries to, 984 
 
 VENUE. 
 
 in offences by accessories, 189 
 
 statutory regulations as to, 248 
 
 offences committed on boundary of two counties, 249 
 
 offences committed partly in one county and partly in another, id. 
 
 in detached parts of counties, id. 
 
 in coaches or vessels, 250 
 
 in county, or city, or town corporate, 250 
 
 at sea, 2") 2 
 
 jurisdiction of admiralty, 254 
 
 partly at sea and partly on land, 256 
 
 abroad, 257 
 where property ca'-ried through several counties, 258 
 jurisdiction of Central Criminal Court, id. 
 change of, 2()0 
 
 in indictment against bankrupt, 324 
 in bigamy, 340 
 
 in indictment for non-repair of bridges, 356 
 in challenging to fight, 392 
 in offences relating to coin, 412
 
 INDEX. 1339 
 
 YE'SVE—contmuefJ. 
 in conspiracy, 436 
 in embezzlement, 459, 473 
 in obtaining money by false pretences, 525 
 in forgery and ofiences connected therewith, 560, 595 
 in larceny, 643. 692 
 proof of, in libel, 710 
 in piracy, 71 
 
 in ortences relating to post-office, 877 
 in indictment for receiving, 907, 919 
 in ofiences relating to ships, 958 
 in prosecution for smuggling, 966 
 
 VEKDICT, 
 
 })roof of, 170 
 
 for minor oflence, 203 
 
 how to be delivered, 224 
 
 may be amended, id. 
 
 reconsideration of, id. 
 
 discharge of jury without, 222 
 
 aider by, 234 
 
 efitjct of, upon pleadings. See Judgment, Election, Amendment. 
 
 VESSELS. See Ships. 
 
 VEXATIOUS INDICTMENTS ACTS, 192. See Statute in Appendix. 
 applicable in indecent assault, 193 
 bankruptcy, 319 
 conspiracy, 423 
 false pretences, 498 
 libel, 193 
 
 disorderly houses, 821 
 perjury, 836 
 
 VIEW BY THE JURY, 224 
 
 VIVISECTION, 391. See Cattle. 
 
 VOIR DIME, 141 
 
 VOTER=^, 
 
 false declarations by, 490 
 false personation of, 494 
 
 WAGES, _ 
 
 conspiracy to raise, 438 
 
 WALES, 
 
 proof of marriages in, 330 
 
 WAREHOUSE, 
 
 setting fire to, 285 
 breaking and entering, 453 
 embezzlement of goods in, 461 
 
 WARRANT, 
 
 for payment of money, forgery of. 544, 577 
 for delivery of goods, forgery of, 554, 583 
 execution of. See 3Iurder. ■
 
 1340 INDEX. 
 
 WATEK-COITRSE, 
 
 corruptiug, TDU 
 
 WEIGHTS AND MEASURES, 
 oflence of iisiiif;^ fiilse, 3U4 
 false i)reteuce us Lo. See Fcdse Pretences. 
 
 WHIPPING, 
 
 in ciises of arson, 284 
 
 destroying bridges, 357 
 garoitiiig, 9;;i, \)'62 
 exjilnsives, 484 
 larceny, G41 
 damaging inacliinery, 717 
 
 nianiii'actnreS; 743 
 
 mines, 744 • 
 
 subornation of perjury, 864 
 poisoning lish, b76 
 prison breach, 889 
 railway oliences, 894 
 receiving stolen goods, 90G 
 
 damaging sea and river banks, mill-dams, etc., 952 
 damaging ships, 9-37 
 larceny by tenant or lodger, 971 
 threats, 972 
 damaging trees, shrubs, etc., 984 
 
 WIDOWS, 
 
 of persons killed in apprehending offenders, allowance to, 247 
 
 ^VIFE. See Husband and Wife and Married Women, 
 when incfjmpetent as a witness, 125 
 when competent witness, 120 
 in bigamy, 1 29, 328 
 in other cases, 129 
 
 occui>ation of house by, in burglary, 375 
 larceny by, G81 
 
 larcenv of goods, from property of, how described, 689 
 when liable as a receiver, 910 
 wlien criminally liable, 1010 
 evidence of being a wife, id. 
 
 WILL, * 
 
 concealment of, 422 
 
 obtaining property by means of forged, 558 
 forgery of, 553, 559, 572 
 
 property need not be laid in any person in indictment for stealing, 085, 993 
 stealing, injuring, or concealing, 992 
 
 W^INDOWS, 
 
 proof of breaking, in burglary, 362 
 
 WINTER ASSIZE, 244 
 
 WITNESSES, 
 
 unable to travel, 69 
 
 may be proved to be not credible, 103 
 
 or not impartial, 104 
 
 or may be contradicted on material points, id. 
 contradicting party's own, 105 
 confa-ming party's own, id.
 
 INDEX. 1341 
 
 ^YIT:^iESSE^— continued. 
 
 compelling attendance of, 107 
 
 by recognizance, id. 
 on postponement of trial, id. 
 refusing to be bound over, id. 
 whether they may be compelled to find sureties, id. 
 
 infants and married women, id. 
 estreating recognizances, 108 
 com[)elling attendance by subpoena, id. 
 by whom issued, id. 
 from courts of limited jurisdiction, 109 
 snb|)ffina duces tecum to produce documents, id. 
 if producing documents only, not to be cross-examined, id. 
 and need not be sworn, id. 
 
 four persons may be included in one subpoena, id. 
 must be served personally, id. 
 within what time to be served, id, 
 not necessary when witness is present, id. 
 prisoner may subpoena witnesses, 110 
 compelling attendance by writ of habeas corpus ad testificandum, id, 
 
 by warr.mt from the secretary of state. Hi 
 
 by warrant from a judge, id. 
 neglect to obey subpii?nu, id. 
 motion for attachment, id. 
 remuneration of, 112 
 expenses need not be tendered, 113 
 
 except in certain cmscs, id. 
 protection of, from arrest, 114 
 incompetency of, from want of understanding, 115 
 
 infants, id. 
 
 postponing trial in order to instruct, 116. See Postponement. 
 
 degree of credit to be given to infants, 117 
 
 deaf and dumb persons, id. 
 
 idiots and lunatics, 118 
 incompetency of, from want of religion, 119 
 
 oath or affirmation necessary, id. 
 
 no one excepted from taking oatli, id. 
 
 nature of religious belief requisite, id. 
 
 belief how ascertained, 120 
 
 form of oath to be administered to, 121 
 
 depends on the religion of witne-s, id. 
 
 sufficient for purposes of perjury if declared by witness to be binding, 122 
 
 affirmation in lieu of oath, id. 
 
 persons excoramunic ited or under sentence of death, 124. 
 
 or co!ivicted. id. 
 incompetency of. from interest, 125 
 
 husband and wife, id. 
 
 both incompetent at common law, id. 
 
 but only when one or other is on the trial, id. 
 
 rule only extends to persons lawfully married, 126 
 
 where other persons indicted with them, id. 
 
 where they are only implicated, 127 
 
 quaere, whether rule applies to treason, id. 
 
 does not apply to cases of personal violence to each other, id. 
 
 how far it applies to bigamy, 129 
 
 exceptions under Conspiracy Act, id, 
 
 other exceptions, id. 
 incompetency in other cases, 130 
 
 grand jurymen, id. 
 
 judges, id. 
 
 petty jurors, id. 
 
 persons indicted, id. 
 
 exceptions, id. 
 accomplices always admissible, id. See Accomplice.
 
 1342 INDEX. 
 
 WITNESSES— corj^/ziHcc?. 
 
 accjiuplices always iidmissible — continued. 
 
 :ili))liciitioii to admit accuniplicc inust be made to the court, 131 
 
 ]u)\v lio is to be taken before j^iaiid jury, id. 
 
 wlieii prisoner will be discharged ia order that he may give evidence, id. 
 
 vhen competent for prisoner, 1'61 
 
 promise of i)aidon, id. 
 
 corroboration of accomplice, id. 
 ordering out of court, 13S 
 witness who remains not incompetent, id. 
 on back of indictment, usual to call, 139 
 but j)rosecutor not bound to do so, id. 
 nor to give tlitir places of residence, id, 
 in cases of homicide, id. 
 judge may order, to be called, id. 
 recalling and questioning by court, 140 
 right to cross-examine in sncli cases, id. 
 objection to competency of, when to be taken, id. 
 examination of, in chief, 141 
 examination of, on voir dire, id. 
 contradicting your own witness, 105 
 cross-examination of, 142 
 
 when prisoners sei)arately defended, 143 
 
 as to i)revious statements in writing, id. 
 
 on depositions, 144 
 
 as to credibility, id. 
 
 refusal to answer. See Privilege of Witness. 
 proof of ]irevious conviction of, l(i6. See Privileged Witness. 
 latitude allowed in cross-examination, 144 
 producing documents only, not sworn, 145 
 not cross-examined, id. 
 re-exaniin:Uion of, id. 
 limits within which confined, id. 
 I'efreshing memory, of, by memoranda, 146 
 
 wliat memoranda may be used, id. 
 
 informal depositions, id. 
 examination of, as to belief, 147 
 examination of, as to opinion, id. 
 skilled persons, id. 
 medical men, id. 
 foreign lawyers, 148 
 privilege of, 149. See Privilege. 
 
 compelled to answer under Corrupt Practices Act, 151 
 I Explosive Substances Act, 151 
 
 bankruptcy, 62, IGl. See Bankruptcy. 
 act fur punishing frnudident agents, 281 
 not liable to prosecution, id. 
 number requisite in perjury, 856 
 credibility of, m:iking charge of rape, 903 
 character of, for general chastity may be impeached in rape, id. 
 
 in indecent assault, 310 
 
 WOINIEN, ^ 
 
 abduction of. See Abduction. 
 
 WOOD, 
 
 setting fire to, 287, 294 
 
 WOOLLEN GOODS, 
 embezzlement of, 461 
 
 WORKMEN, 
 
 assault bv, in combination, 304 
 
 combinations and conspiracies by, in restraint of trade, 438
 
 INDEX. 1343 
 
 WORKS OF ART, 
 injuring, 968 
 
 WORSHIP, PUBLIC. See Public Worship. 
 
 WOUNDING, 
 
 with intent to do grevious bodily liarm, 301, 009 
 
 unlawfully, 301, 989 
 
 with intent to murder, 809 
 
 conviction for unlawfully, on indictment for felony, 83, 989 
 
 conviction for common assault on indictment for misdemeanor, 309 
 
 cattle, 3^9, 390 
 
 proof of, 989 
 
 proof of malice, 991 
 
 indictment, 810 
 
 WRECK, 
 
 impeding person endeavoring to escape from, 300 
 stealing from, 956 
 injuries to, 957 
 
 WRIT, 
 
 of error, 233 
 forgery of, 555, 584 
 
 WRITTEN DOCUMENTS. See Documents. 
 cross-examination as to contents, 143 
 evidence of contents of. See Evidence. 
 
 cross-examination of witness producing documents only, 145 
 of no value, larceny of, 684 
 larceny or destruction of, 992 
 form of indictment for, id. 
 stealing wills, id. 
 efiect of disclosure, 993 
 
 stealing records or other legal documents, id. 
 no larceny of, at common law, id. 
 what are within the statutes, id. 
 taking with a fraudulent purpose, 996 
 
 THE END.
 
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