T
UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
DIGEST
LAW OF EVIDENCE
CRIMINAL CASES.
BY HENRY ROSCOE, ESQ.
>
OF THE INNER TEMPLE, BARRISTER AT LAW.
LONDON :
SAUNDERS AND BENNING, LAW BOOKSELLERS,
(SUCCESSORS TO j. BUTTERWORTH AND SON,)
43, FLEET STREET.
1835.
CONTENTS.
GENERAL HEADS.
Page
GENERAL RULES OF EVIDENCE.
Primary and secondary evidence .... 1
Presumptions 12
Hearsay 20
Confessions 28
Examinations 43
Depositions ....... 49
Proof of negative averments .... 55
Evidence confined to the issue 5?
Substance of the issue to be proved ... 74
Witnesses 87
Documentary evidence . .153
Aiders, accessories, &c 166
Practice 174
Venue 185
EVIDENCE IN PARTICULAR PROSECUTIONS.
Abortion 190
Abduction 193
Affray 198
Arson 198
Assault 210
Bankrupt, concealing effects, &c. . . . . 220
Barratry 226
Bigamy 227
Bribery 243
Bridges ........ '245
Burglary 252
Cattle 284
Challenge to fight 289
Cheating 290
Child-stealing 294
Child, concealing birth of, . . . . . 294
Coining . . . ..... . . 296
Compounding offences . . . . .311
Conspiracy , .312
Dead bodies 323
Deer 329
A 2
iv Contents.
Page
Dwelling-house ...... 330
Embezzlement 837
Escape 355
False personation 359
False pretences ...... 361
Fish 371
Forestalling, &c 373
Forcible entry and detainer .... 374
Forgery 380
Furious driving 441
Game ........ 441
Gaming ........ 447
Highways 449
Homicide ........ 464
Kidnapping 465
Larceny ........ 466
Libel 523
Maintenance 542
Malicious injuries 545
Manslaughter ...... 566
Murder . 562
Nuisance ........ 658
Oaths, unlawful 666
Offices 669
Perjury 672
Piracy 692
Post-office 697
Prison-breach . 705
Rape 708
Receiving stolen goods . . . . .712
Rescue 723
Riots, routs, and unlawful assemblies . . . 725
Robbery 732
Sacrilege ........ 756
Shop-breaking, and entering a shop, and stealing
therein 757
Smuggling and other offences connected with the
customs . . . . . . 758
Sodomy 763
Spring-guns . . . . . . . 764
Threats 765
Transportation, returning from . . . . 775
GENERAL MATTERS OF DEFENCE.
Infancy ' 777
Insanity 778
Coercion by husband ...... 785
TABLE OF CASES.
Abbott v. Plumbe, 161.
Abgood's case, 774.
Abingdon's case, 539.
Abithol v. Beniditto, 81.
Abraham's case, 177, 420.
Abraham v. Bunn, 688.
Abrahat's case, 483.
Acerro v. Petroni, 126.
Adam v. Ker, 162.
Adams's case, 497, 651.
Adam v. Kelly, 531.
Adams v. Malkin, 222.
Adamthwaite v. Synge, 155.
Adey's case, 625.
Addis'scase, 121, 637.
Admiralty case, 696.
Arckle's case, 10, 389, 492.
Airey's case, 365.
Akehurst's case, 112.
Akenhead's case, 655.
Alexander's case, 675.
Alexander v. Gibson, 136.
Alford's case, 674.
Alison's case, 160,229.
Allanson's case, 461.
Allen's case, 7.
Allen v. Ormond, 450.
Almon's case, 533, 535, 536.
Amier's case, 332.
Amphlitt's case, 530.
Anderson's case, 558, 606.
Anderson v. Hamilton, 148, 149.
Andrews v. Cawthorne, 328.
Angus v. Smith, 141.
Annesley's case, 145.
Annesley v. Earl of Anglesea, 152
Anney v. Long, 88.
Anonymous, 17, 42, 55, 72, 79,
83, 86, 93, 94, 96, 113,
126, 155, 160, 161, 167,
180, 181, 188, 204, 211,
236, 238, 280, 281, 313,
317, 328, 475, 480, 507,
509, 526, 585, 619, 633.
652, 735, 738, 739, 786.
Antrobus's case, 250, 670.
Apoth. Company v. Bentley,
57.
Appleby's case, 15, 38, 40.
Appleton v. Lord Braybrooke,
156.
Archbishop of Tuam v. Robison,
536.
Archer's case, 719, 786.
Aris's case, 208.
Armstrong v. Jordan, 529.
Arnold's case, 779.
Arscott's case, 398.
Ashton's case, 730.
Aslett's case, 351, 508.
Athea's case, 277.
Atkins v. Hatton, 161.
Atkinson's case, 482, 651, 652,
785.
Atwell's case, 716.
Atwood's case, 120.
Alt. Gen. v. Bowman, 72.
v. Bulpit, 124.
v. Davison, 50.
Audley's case, Lord, 708.
Austin's case, 451, 460, 506.
v. Poiner, 132.
Table of Cases.
Avison v. Kinnaird, 21.
Azire's case, 116.
Backler's case, 387.
Badcock's case, 102, 167.
Bagnall v. Underwood, 529.
Bailey's case, 260.
Baker's case, 419, 630, 739.
Bakewell's case, 351.
Baldwin's case, 715, 716.
Ball's case, 67, 201, 636, 667.
Balmore's case, 118.
Banbury Peerage case, 1 4, 56.
Banks's case, 6, 481, 491.
Barham's case, 444.
Barker's case, 340.
Barker v. Dixie, 113.
Barnett's case, 522.
Barnes's case, 222.
Barrett's case, 8.
Barren's case, 400.
Barrow v. Humphreys, 90.
Barstow's case, 40.
Bartlett's case, 555.
v. Pickersgill, 682, 688.
Barton's case, 423.
Bass's case, 482.
Basten v. Carew, 127.
v. Gooch, 673.
Batchelor v. Honey wood, 163.
Bate v. Kinsey, 10.
Bathews v. Galindo, 113.
Bait's case, 730.
Bay ley v. Wylie, 159.
Bazeley's case, 344, 485.
Keacall's case, 402, 519.
Beamon v. Ellice, 124.
Beaumont v. Mountain, 154.
Beaney s case, 75, 78.
Beaven's case, 108, 379.
Bedder's case, 1 19.
Beech's case, 74, 679.
Beechey's case, 340.
Beeching v. Gower, 125.
Beere'scase, 530, 538.
Beeley v. Wingfield, 311.
Bellamy's case, 154.
Bellingham's case, 781, 782.
Belstead's case, 517.
Belton v. Hodges, 221.
Bembridge's case, 291, 670.
Benesech's case, 681.
Bennet's case, 46, 258.
Bennett v. Clough, 14.
Bennett v. Walton, 87.
Benson's case, 158, 675, 684.
Bent v. Baker, 112.
Berkeley Peerage case, 22, 143.
Bernard's case, 671.
Berryman v. Wyse, 7, 8, 14,
528, 529.
Best's case, 314, 319.
Bevan v. Williams, 8.
Bignold's case, 681.
Bingham's case, 188.
v. Dickie, 81.
Bingley's case. 280, 408, 733.
Birch's case, 409.
Birkett's case, 121, 407, 415.
Bin v. Barlow, 160.
Bishops' case (seven), 150, 533,
539.
Bitton's case, 175.
Black's case, 40.
Blackham's case, 735.
Blackman's case, 109.
Blaney's case, 109.
Blaxton v. Pye, 448.
Blick's case, 500, 715.
Blower v. Hollis, 158.
Bloxam v. Elsie, 3.
Bodle's case, 53.
Boehlinck v. Schneider, 138.
Bolland's case, 386.
Bones v. Booth, 449.
Bonner's case, 25, 641.
Bontien's case, 391.
Booth's case, 670.
Bootyman's case, 348.
Borrett's case, 698.
Borthwick's case, 618.
Boston's case, 106, 409.
Botham v. Swingler, 125.
Boulter v. Clarke, 212.
Boulton's case, 520.
Bourke v. Warren, 536.
Bowes's case, 327.
Bowler's case, 781.
Table of Cases.
Bowman's case, 155.
Bowyer's case, 552, 553.
Box's case, 415.
Boyce's case, 653, 655.
Bradley v. Ricardo, 136.
Brady's case, 676.
Brain's case, 557, 566, 595.
Bramley's case, 514.
Bramwellv. Lucas, 151.
Brannan's case, 387.
Brazier's case, 21, 94, 480, 711.
Breemes's case, 200.
Brett v. Beeles, 23, 154.
Bretton v. Cope, 160.
Brewer's case, 397, 398.
Brewet v. Palmer, 2.
Brewster v. Sewell, 12.
Brice's case, 256, 260.
Briggs's case, 653.
Brisac's case, 327.
Broadfoot's case, 618.
Brocas v. Mayor of London,
160.
Brodribb's case, 667, 668.
Brogan's case, 49.
Bromwich's case, 54.
Brooks's case, 510.
Broughton's case, 688.
Brown's case, 116, 157, 195,
208, 255, 263, 266, 273,
360, 384, 400, 574. 597,
703, 744, 745.
Brown v. Croome, 540.
Bruce'scase, 188, 736.
Brunton's case, 122.
Brunswick's case, 517.
Bull's case, 345, 485
Bullock's case, 85, 222.
Burbage's case, 89.
Burden's case, 536, 538, 671.
Burgess's case, 271.
Burke's case, 132, 396.
Burley's case, 30, 35, 122.
Burnett's case, 665.
Burr v. Harper, 163.
Burridge's case, 172, 724.
Burrowes' case, 268, 278.
Burton's case, 343.
Bush's case, 81,518, 714.
Bush v. Railing, 108.
v. Steinman, 455.
Bushell v. Barret, 101 , 314.
Butchell's case, 27, 37.
Butler's case, 233.
Butler v. Carver, 125.
Butteris's case, 718.
Butterworth's case, 282.
Buttery's case, 413.
By am v. Booth, 159.
Bykersdike's case, 317.
Cabbage's case, 468.
Cadman's case, 650.
CaldwalPs case, 576.
Call v. Dunning, 3, 161.
Callaghan's case, 27, 28, 51.
Callanan's case, 678.
Callan's case, 255.
Calthorpe v. Axtell, 197.
Calvert v. Archbishop of Canter-
bury, 23.
Camfield's case, 276.
Campbell's case, 333, 495, 528,
575.
v. Twemlow, 113.
Cannon's case, 743.
Capewell's case, 444.
Case's case, 299, 654.
Cass's case, 30.
Castell v. Bambridge, 593.
Castledine's case, 333.
Carlile's case, 525, 531, 5iO.
v. Eady, 126.
Carvey's case, 417.
Carr's case, 341, 657, 680.
Carroll's case, 270, 333, 655.
Carson's case, 77.
Carter's case, 101, 407.
Cartwrightv. Green, 476.
Carty's case, 45.
Cary v. Pitt, 163, 164.
Gates v. Hardacre, 130.
v. Winter, 10.
Cator's case, 164.
Celier's case, 101.
Chadwick's case, 11, 368.
Chalder v. Robarts, 159.
Chalking's case, 263.
Table oj Cases.
Chalkley's case, 78, 287.
Chamberlain's case, 56, 177.
Chambers v. Bernasconi, 23.
v. Robinson, 158.
Champneys v. Peek, 23.
Channell's case, 292.
Chapman v. Walton, 137.
Chappie's case, 287.
Chard's case, 506.
Charlewood's case, 481, 490.
Cherry's case, 470.
Child's case, 728.
v. Afflick, 540.
v. Grace, 39.
Chipchase's case, 482.
Chisholm's case, 415.
Christie's case, 26.
Christian v. Coombe, 140.
Chubb's case, 555.
v. Westley, 537.
Clancy's case, 100.
Clarke's case, 15, 21, 72, 79,
127, 283, 328, 476, 506,
512. 530, 567.
v. Clark, 146.
v. Periam, 664.
Claridge v. Hoare, 130, 314.
Clay's case, 286.
Clayburn's case, 263.
Clegg v. Levy, 239.
Clendon's case, 189.
Clewe's case, 32. 39, 42.
Clifford v. Brandon, 315, 726.
Clinch's case, 418.
Coalheaver's case, 166.
Coate's case, 789.
Cobbett's case, 526.
Cobden v. Rendrick, 145.
Cochrane's case, 134.
Codrington's case, 366.
Coe's case, 191.
Cohen's case, 673.
Coke's case, 655.
Cole's case, 58, 109, 296.
Coleman's case, 364.
Collet's case, 276.
Collicott's case, 395, 399.
Collier's case, 402.
Collins v. Blantern, 311.
Collins v, Carnegie, 528.
Collison's case, 658.
Comming's case, 291.
Compton's case, 316.
Coogan's case, 392.
Cook's case, 78, 133, 313, 632,
644.
Cooke v. Birt, 630.
v. Maxwell, 102, 148,
155.
v. Ward, 530.
Cooper's case, 33, 638.
v. Gibbons, 11.
Cope's case, 323.
Coppard's case, 685.
Corking v. Jarrard, 125. .
Cornforth's case, 196.
Cornwall's case, 259, 295.
Corry's case, 671.
Corsen v. Dubois, 88.
Cosan's case, 759.
Coslett's case, 470.
Cotton's case, 22.
County's case, 523.
Courteen v. Touse, 126.
Cow's case, 18.
Cowell's case, 719.
Cowper's case, 565.
Cox's case, 219, 655, 656, 710.
Cozen's case, 710.
Cramp's case, 361.
Cranage's case, 86.
Craven's case, 27, 79, 506.
Crawley's case, 15.
Creevey's case, 539.
Crisp's case, 312.
v. Anderson, 11.
Crooke's case, 491.
v. Dowling, 157.
v. Edwards, 222.
Crosby's case, 102.
Cross's case, 454, 661.
Crowther's case, 421.
v.Hopwood, 101,315.
Crump's case, 473.
Crunden's case, 663.
Culkins's case, 568, 578,
Cullen's case, 417.
Cundell v. Pratt, 131, 134, 135
Table
Cundick's case, 328.
Cunliffe v. Sefton, 3, 161, 162.
Curling's case, 696.
Currie v. Child, 161.
Curry v. Walter, 540.
Curtis'scase, 621,626, 631,632.
Curvan's case, 559, 598.
Cuthel's case, 534.
Dade's case, 408.
Dakin's case, 644.
Dalby's case, 688.
Dalison v. Stark, 3.
Dalrymple v. Dalrymple, 237.
Dalton v. Colt, 97.
Dance v. Robson, 156.
Dartmouth lady v. Roberts, 158.
Davenport's case, 494.
Davies s alias Silk's case, 254.
case, 664, 739.
Davis'scase, 101, 120, 167,258,
260, 301, 399, 720, 721.
v. Dale, 128.
v.Williams, 159.
Dawber's case, 121.
Dawson's case, 77, 408, 700.
Deakin's case, 516.
Dean's case, 778.
Deane v. Thomas, 230;
De Benger's case, 126.
De Berenger's case, 315, 326.
Deeley's case, 82.
Deering's case, 177.
Densley's case, 718.
De la Motte's case, 10.
Delany v. Jones, 540. ,
De Londo's case, 552.
Denn v. Fulford, 155.
Denn v. Spray, 22.
Derrington's case, 35.
De SailJy v. Morgan, 140.
Dewhurst's case, 17, 47, 48.
Dewsnaps's case, 184.
Dey's case, 784.
Dickenson v. Shee, 127.
Dickinson's case, 473.
Dicks's case, 785.
Uigby v. Thompson, 526.
of Cases, it
Dingler's case, 51.
Dingley's case, 280.
Dixon's case, 18, 291, 456, 618,
665, 786.
v. Vale, 132.
Dobb's case, 280.
Dobbin v. Cornack, 230.
Dobson's case, 369.
Dodd'scase, 112, 530, 535.
v. Norris, 135.
Doe v. Cartwright, 3.
v. Deakin, 19.
v. Tarver, 163.
v. Jesson, 19.
v. Nepean, 20.
v. Ridgway, 24.
v. Wallinger, 163.
v. Wilson, 14.
. v. Wood, 128.
Doker v. Raster, 113.
Doncaster, Mayor of, v. Day, 158.
Donnally'scase, 741, 743, 745.
746.
Donnison's case, 533.
Donnevan's case, 204.
Doran's case, 2, 207.
Douglas's case, 368, 370.
Dover v. Maestaer, 103.
Dowling's case, 85.
Downes's case, 404.
v. Moreman, 160.
Dowsell's case, 445.
Drake's case, 229.
Drummond's case, 24.
Du Bane v. Lovette, 145.
Dubois v. BeresforJ, 529.
Duce's case, 121.
Dudman's case, 679.
Duffey's case, 569.
Duffin's case, 656.
v. Smith, 152.
Duncan v. Scott, 156.
v. Thwaites, 540.
Dunston's case, 682.
Dunnel's case, 94.
Dunn's case, 33, 70, 338, 720.
Dupee's case, 359.
Durham's case, 120.
A 5
Table of Cases.
Durore's case, 82.
Dyer's case, 716, 717.
Dyson's case, 647, 656.
Earl v. Lewis, 161.
Eastv. Chapman, 132.
Eastall's case, 513.
Eccle's case, 314, 316, 317, 320,
325.
Eden's case, 674.
Edgar's case, 576.
Edmeads's case, 637.
Edmond's v. Howe, 97.
v. Walter, 127.
Edmondson v. Stephenson, 540.
Edsall's case, 406,
Edwards'scase, 31,77, 134, 177,
231, 286, 510, 522, 577,
749, 761, 771.
Egerton's case, 58.
Eggington's case, 262.
Eicke v. Nokes, 150.
Eldershaw's case, 778.
Eldrige's case, 28.
Ellicombe's case, 11.
Ellins's case, 76, 699, 700.
Elliott's case, 394.
Ellis'scase, 44, 59, 106, 118.
Ellison's case, 205.
Ellor's case, 418.
Elmstead's case, 749.
Else's case, 167, 301.
Elsmer v. Inhab. of hundred of
St. Briavells, 204.
Elsworth's case, 397.
Elsworthy's case, 715.
Emden's case, 676.
Emmett v. Lyne, 211.
Enms v. Donnisthorne, 158.
Etherington's case, 336.
Evans's case, 77, 225, 332, 362,
571, 694.
. and Finche's case, 265.
Ewer v. Ambrose, 136, 158.
Eyre v. Palsgrave, 160.
Falkner's case, 28.
Tallow's case, 737.
Farley's case, 333.
Faire's case, 270.
Parrel's case, 471.
Farrington's case, 19, 206.
Fasset v. Brown, 162.
Fauntleroy'scase, 413.
Fawcett's case, 291, 382.
Fearshire's case, 52.
Fellows v. Stewart, 233.
Fenton's case, 560, 582.
Ferguson's case, 317, 561, 591.
Ferrers's case, 624, 780.
Fidler's case, 555.
Filliterv. Minchin, 162.
Finnacane's case, 445.
Finden v. Westlake, 540.
Fisher's case, 45, 540.
v. Heming, 147.
v. Kitchinham, 157.
v. Lane, 155.
Fisherman's case, the, 742.
Fitzgerald's case, 394, 413.
v. Elsee, 162.
Flanning's case, 180.
Flannagan's case, 274.
Fleet's case, 540.
Flemming's case, 52.
Fletcher's case, 39, 119, 479,
760.
Flint's case, 369.
v. Pike, 540.
Folke's case, 710.
v. Chad, 137.
Foot v. Hayne, 145.
Forbes's case, 51, 189.
Ford's case, 100, 103, 3'>6, 614,
640.
Forde v. Skinner, 211.
Forsgate's case, 515.
Forsyth'scase, 86, 223, 225, '242.
Foster's case, 21, 40, 81, 560,
616, 675.
Foster v.Compton, 157.
Fountain v. Young, 145.
Fowle's case, 326.
Fowler's case, 316.
v. Saunders, 661.
Fox's case, 105.
Table of Cases.
Frances's case, 76, 390, 737.
France v. Lucy, 10.
Frank's case, 301.
Fraser's case, 118, 119.
Frederick's case, 114.
Freeman's case, 343.
v. Arkell, 12.
Freeth's case, 366, 367.
French's case, 270, 517.
Friend's case, 133, 142, 592.
Frith's case, 223.
Frond's case, 419.
Frostv Holloway, 135.
Fuller's case, 264, 750.
v. Fotch, 160.
Furley v. Newnham, 90.
Furneaux's case, 345.
Furness v. Cope, 23.
Fullwood's case, 116, 195.
Gaby's case, 517.
Gade's case, 426.
Galloway's case, 173, 721.
Gammon's case, 710.
Gardner's case, 8, 752.
Garland's case, 262.
v. Schoones, 157.
Garrells v. Alexander, 162.
Gascoigne's case, 740, 753.
George's case, 671.
v. Surrey, 162.
Gibbon's case, 260, 275.
Gibbs v. Philipson, 93.
Gibson's case, 164, 207, 268.
Gilbert's case, 494.
Gilchrist's case, 406-
Gilham's case, 35, 97, 145, 671.
Gill's case, 211, 314, 326, 328,
774.
Gillow's case, 219, 653, 656.
Girdwood's case, 769, 770, 772.
Glanfield's case, 200.
Gianvill's case, 293.
Glasburne-bridge case, 248.
Glover's case, 442.
Gnosil's case, 734.
Goate's case, 391.
Goddard v. Smith, 226,
Godefroy v. Jay, 155.
Godfrey v. Nonis, 162.
Goff's case, 186.
Goldsmid v. Bromer, 230.
Goodburn v. Marley, 448.
Good hall's case, 363.
Goodhay v. Hendry, 126.
Goodtitle v. Braham, 164.
Goodtitle v. Welford, 112.
Gordon's case, 7, 9, 15, 21, 64,
90, 154, 168, 196, 243.
Goss v. Watlington, 23.
Gotley's case, 312.
Gough's case, 173.
Gould's case, 334.
Gowan's case, 200.
Graham's case, 81.
Grant's case, 101.
Gray's case, 104, 279.
Gregory v. Wilks, 381.
Green v. Goddard, 214.
Greenif's case, 725.
Greenough v. Gaskell, 145, 146.
151.
Greenwood v. Curtis, 237.
Grey's case, 585, 737.
case, (Lord), 194, 315.
Griepe's case, 682.
Griesley's case, 454.
Grieg's case, 114, 115.
Griffin's case, 30, 38.
Griffiths v. Williams, 163, 164.
Grindall's case, 679.
Grindley's case, 784.
Grosvenor's case, (Lord) 455,
Grout's case, 560.
Gully's ease, 103.
Gully v. Bishop of Exeter, 11.
Gurney v. Langlands, 164.
Gutch's case, 535.
Gyles v. Hill, 155.
Hadfield's case, 383, 784.
Haine's case, 256.
Hall's case, 30, 40, 164, 256.
345, 347, 533, 735.
Hallard's case, 264.
Halloway's case, 280, 522.
Hamilton's case, 334.
Hammon's case, 482.
Table of Cases.
Hammond's case, 317, 322, 450.
Hampden's case, 111.
Hampton's case, 404.
Hancock's case, 263.
v. Sandham, 614,
Hanks's case, 673.
Hannam v. Mockett, 510.
Hanson's case, 66.
Harding's case, 483.
v. Greening, 535.
Hardwick's case, 33.
Hardy's case, 61, 62, 63, 64,
128, 134, 147, 148, 149,
321,322,324.
Hargrave's case, 561, 568.
Harley's case, 650.
Harman's case, 754.
Harpur's case, 671.
Harris's case, 46, 52, 189, 200,
264, 382, 622, 651.
v. Tippett, 140.
Harrison's case, 50,56, 142, 422,
423.
Harrison v. Blades, 162.
v. Hodgson, 215.
Harley's case, 675, 676.
Hartley's case, 341.
Hart's case, 406, 507, 538.
Harvey's case, 425, 495, 536.
v. French, 536.
v. Morgan, 10.
Harwood's case, 75.
Haslam's case, 118,722.
Hasting's case, 693.
Haswell's case, 707.
Hathaway v. Barrow, 107.
Haughton's case, 205, 288.
Hawkeswood's case, 165, 392,
396.
Hawkins's case, 258, 271, 736.
Haydon's case, 254.
Hayman's case, 250, 462.
Haynes's case, 293.
Hay ward's case, 538, 604, 651.
Hay wood's case, 287.
Hazy's case, 7, 56.
Headge's case, 345.
Healey's case, 84, 486.
Hearne's case, 39.
Heath, ex parte, 225.
Hebb's case, 346.
Hedge's case, 304.
Hemp's case, 685.
Hempstead's case, 335.
Henderson's case, 782.
Hennell v. Lyon, 158.
Henry v. Adey, 154.
Herbert's case, 316.
v. Herbert, 237.
Heming's case, 769.
Hescott's case, 671.
Hevey's case, 62, 319, 384, 405.
Heward v. Shipley, 108.
Hicks v. Gore, 196, 197.
Hickman's case, 84, 512, 578,
745,747, 748,749,751,
Higgs v. Dixon, 161.
Higgins's case, 42.
Highfield v. Peake, 156.
Higley's case, 296.
Hilles v. Inhab. of Shrewsbury,
205.
Hill's case, 76, 368, 449, 556.
Hill v. Coombe, 128.
Hinchcliffe's case, 644.
Hindmarsh's case, 13.
Hind's case, 230.
Hinxman's case, 45.
Hobson's case, 49, 347.
Hodge's case, 502, 550.
Hodgson's case, 68, 69, 72.
Hodnett v. Foreman, 161.
Hoggin's case, 341.
Holden's case, 189,400.
Holding's case, 131, 135.
Holland's case, 670.
Hollingberry's case, 314, 319.
Holloway'scase, 473.
Holmes's case, 199.
Honeywood v. Peacock, 162.
Hood's case, 114.
Hoost's case, 393.
Hope's case, 788.
Hopper's case, 156.
Horford v. Morris, 238.
Home Tooke's case, 322.
Home v. .Noel, 230.
Homer's case, 739.
Table of Cases.
Horvell's case, 398.
Hough's case. 69.
Hovill v. Stephenson, 162.
Howard's case, 7, 14, 703.
Howel v. Lock, 124.
Howes's case, 32.
Howorth's case, 36, 45.
Hube's case, 2.
Huck's case, 683, 684.
Huet's case, 45, 70.
Hugget's case, 624, 625.
Huggins's case, 593.
Hughes's case, 6, 260, 288, 339,
651, 739,786.
Hungerford's case, 282.
Hunsdon, Lord, v. Lady Arun-
dell, 159.
Hunter's case, 181, 407, 423.
Hunt's case, 4, 5, 10, 60, 74, 76,
189, 533,614,655,731.
Hurd v. Moring, 150.
v. Martin, 73.
Hurry's case, 680.
Hutchinson's case, 24, 518, 757,
759.
Hutchison v. Birch, 630.
Hyman's case, 716.
liderton v. Ilderton, 237.
He's case, 674.
Imason v. Cope, 215.
Ince's case, 760.
Ingram's case, 786.
v. Bade, 125.
Irving v. Mally, 513.
Isaac's case, 201, 298.
Jackson's case, 130, 363, 488,
499, 687, 709, 742, 743,
751, 766.
Jacob's case, 45, 228, 236, 764.
James, exparte, 115.
's case, 157, 233, 475.
v. Campbell, 212.
J'Anson v. Stuart, 664, 666.
Jarvis's case, 275.
Jeffreys v. Walter, 448.
Jenkins's case, 22, 38, 268.
Jenks'scase, 82, 281.
Jenning's case, 710.
Jepson's case, 773.
Jervis's case, 714.
Jobling's case, 276.
Johns' case, 25, 117.
Johnson's case, 11, 108, 181,
254, 446, 537, 574, 760.
v. Lawson, 22.
v. Leigh, 630.
Johnstone's case, 82, 84.
Joice's case, 304.
Jolliffe's case, 14, 314.
Jones and Bever's case, 283.
's case, 30, 42, 44, 47, 48,
120, 174, 179, 265. 395,
400, 401, 402, 406, 413,
420, 455, 511, 519, 671,
677, 684, 745, 747, 785,
789.
's (Martha) case, 266.
v. Edwards, 10.
v. Mason, 161.
Jordan's case, 242.
Journeymen Tailors'" case, 313,
314.
Judd ; s case, 207.
Keate's case, 596.
Kelbyv. Wilson, 513.
Kelly's case, 167, 578, 717.
Kempton v. Cross, 159.
Kessal's case, 558, 607.
Kimbeity's case, 319.
Kinder's case, 413.
King's case, 160, 167, 289, 387,
717.
Kingston's (Duchess of) case,
30, 144, 243.
Kinnersley's case, 526.
Kirwan's case, 5.
Kirkwood's case, 68, 69, 408.
Kitchen's case, 650.
Knell's case, 538.
Knewland's case, 744, 753.
Knight's case, 473, 540, 560,
584.
Knight and Roffey's case, 280.
Knill's case, 685, 687.
Kroehl's case, 327.
Table of Cases.
Lacie's case, 188.
Lacon v. Higgins, 237, 239.
Lafone's case, 119.
Lambe's case, 28, 46, 47, 53,
474.
Lambert's case, 64, 65,526, 537.
Lane's case, 586.
Lane v. Degberg, 213.
Langhorn's case, 178.
Langstaffe's case, 60J.
Lapier's case, 471, 734, 738,
739.
Lara's case, 292, 363.
Lautour v. 1'eesdale, 238, 241.
Lavender's case, 223, 482.
Lavey's case, 299.
Law's case, 114.
Lawley's case, 116, 544.
Lawrence v. Hedger, 615.
Lawrence's case, 255.
Laycock's case, 685.
Layer's case, 47, 61, 133, 136.
Lee's case, 122, 172, 320, 392,
437, 540, 686.
v. Berrell, 153.
v. Risdon, 499.
Leech's case, 341.
Leefe'scase, 678,683.
Leigh's case, 477.
Le Merchand's case, 9.
Lennard's case, 309.
Level's case, 639.
Levi v. Levi, 317.
Levy's case, 85, 478.
v. Edwards, 215.
v. Pope, 150.
Leward v. Baseley, 214.
Lewis's case, 134, 256, 292,
385, 413, 650, 674.
Lewis v. Clement, 540.
v. Sapio, 163.
v. Walter, 540.
Lincoln's case, 674.
Lindo v. Belisario, 230, 238.
Lindsey's case, 132, 345.
Lingate's case, 31.
Lister v. Priestly, 8.
Lithgo's case, 263.
Little's case, 175.
Lloyd's case, 24, 31, 378,452,
578, 659, 769.
Lloyd v. Passingham, 133.
Locker's case, 114.
Lockett's case, 386, 416, 420.
Lockhart's case, 37.
Lockhart Gordon's case, 195.
Logan v. Burton, 450.
Lolley's case, 243.
Lone's case, 671.
Long's case, 35, 561, 589, 590.
Longden's case, 598.
Longstreeths's case, 488, 499.
Loom's case, 78.
Lovat's (Lord) case, 124, 322.
Love's case, 98.
Loveless's case, 668.
Lowe v. Jolliffe, 136.
Lucas v. Nockells, 513.
v. Novosilieski, 128.
Luckup's case, 108.
Lutterell v. Reynell, 142.
Lynall v. Longbotham, 448.
Lynch's case, 559, 610.
Lynn's case, 328.
Lyon's case, 238, 264, 392.
413, 423.
Mat-alley's case, 75, 83, 570,
627.
M'Arther's case, 675.
Macarty's case, 320.
Macauley's case, 739.
Macbride v. Macbride, 135.
M'Cartney's case, 21.
M'Craw v. Gentry, 162.
M'Donagh's case, 523.
M'Daniel's case, 168, 573, 73fc.
M'Dermot's case, 651.
M'Dougall v. Claridge, 540.
Macewan's case, 576.
M'Guire's case, 6.
M'Kenzie's case, 21 .
Mackerel's case, 555.
M'Keron's case, 680.
M'lntosh's case. 416, 420.
M'Leod v. Wakley, 533,
Table of Cases.
M'Makin's case, 167, 717.
Macmillan's case, 575.
M'Namee's case, 479, 481.
Madden 's case, 173,721.
Maddeson v. Shore, 88.
Maddock's case, 385.
Madox's case, 478.
Major's case, 771.
Malony's case, 46, 130.
Manchester case, 727.
Mann v. Carey, 160.
Manning's case, 558.
March's case, 206, 787.
Margett's case, 272.
Mark's case, 677.
Marsh v. Collnett, 160.
Marston v. Downes, 9.
Martin's case, 95. 265, 291,
361, 509, 574, 577,784.
Mason's case, 605, 695, 739.
Mawgridge's case, 603, 640.
Mawley's case, 313, 314.
Mawson v. Hartsink, 136.
May's case, 684, 695.
Mayhew's case, 687.
Maynard's case, 27 1 . 296.
Mayne v. Fletcher, 533.
Mazagora's case, 401.
Mead's case, 24, 117, 215, 345,
507, 559, 621, 646.
Mead v. Robinson, 160.
Mead v. Young, 383.
Medley's case, 666.
Mee v. Read, 98.
Meeking v. Smith, 93.
Meeres's case, 485.
Melen v. Andrews, 38.
Mellish's case, 339, 340.
Mellor's case, 451.
Melville's case, Lord, 154.
Merceron'scase, 36.
Meredith's case, 670.
Merriman v. Chippenham, Hun-
dred of, 740.
Middlehurst's case, 76.
Middleton v. Janvers, 238.
v. Sauverin, 237.
Middowcroft v. Gregory, 233.
Mildrone's case, 98.
Miles v. Rose, 14.
Mills' case, 30.
Millar v. Kendrick, 138.
Millard's case, 68.
Miller's case, 103, 677.
Miller's case, 186.
Milner v. Maclean, 377.
Minion's case, '25, 202.
Missingham's case, 715, 718.
Mitchell's case, 224, 417, 418.
v. Rabbetts, 161.
Moffatt's case, 396, 415.
Mopig's case, 59, 288.
Moir's case, 643.
Monroe v. Twisleton, 113.
Moore's case, 10, 46, 309, 345,
663, 667, 699, 739, 789.
Morfit's case, 469.
Morgan's case, 98, 164.
Moriarty v. Brooks, 65'2.
Morley's case, Loid, 50, 557,
596.
Morphew's case, 55.
Morris's case, 158, 409, 659,
662, 675, 721, 785.
v. Miller, 4.
Morton's case, 165, 233, 393,
396.
Mosley's case, 26, 27, 37.
Mott's case, 287.
Mucklow's case, 475, 478.
Munday's case, 500.
Murlis's case, 128.
Murphy's case, 561, 588.
Murray's case, 265, 321.
John, 344.
Murray v. Lonter, 533.
Muscot's case, 107.
Mynn v. Jolliffe, 146.
Mytton's case, 654.
Naagen Swendsen's case, 116.
Nailer's case, 641.
Nash's case, 446.
Neil's case, 660.
Nettleton's case, 343-
Neville's B., case, 660.
Table of Cases.
Neville's S., case, 660.
Nibb's case, 78.
Nichol's case, 210, 680, 682.
Nicholls v. Dowding, 126.
v. Parker, 22.
Nicholson's case, 498, 727.
Noake's case, 760.
Noble v. Adams, 513.
Norden's case, 750.
Norreg Thompson's case, 264.
Norris's case, 500.
North's case, 204.
Norton's case, 79.
Nutbrown's case, 266.
Nute's case, 35.
Null's case, 539.
Oakley's case, 377.
Offord'scase, 781.
Ogden's case, 437.
Ogilvie's case, 81.
Omealy v. Newell, 291.
Omichund v. Barker, 96, 97.
Oneby's case, 558, 602.
Oldroyd's case, 53, 137.
OrrelPs case, 177.
Osborne's case, 528.
Ovenden v. Palmer, 463.
Owen's case, 167, 288, 333,
718.
Packer's case, 515.
Pacton v. Douglas, 130.
Paddle's case, 769.
Page's case, 224.
Pain v. Beeston, 141.
Paine's case, 529.
Palmer's case, 232, 399, 401,
402, 446, 486.
Palmerslon's case, Lord, 158.
Pappeneau's case, 659, 662.
Paradice's case, 482.
Param's case, 118.
Parfait's case, 755, 766.
Parkhouse's case, 316.
Parke's case, 384, 400.
v. Strockley, 101.
Parker's case, 142* 500, 781.
Parker v. M'William, 124.
Parkes's case, 496.
Parkin's case, 179, 521.
Parkins v. Hawkshaw, 145, 150.
Parmenter's case, 269, 277.
Parr's case, 427.
Parson's case, 323.
Patch's case, 789.
Paleman's case, 395. 415.
Patram's case, 722.
Palrick's case, 519.
Paltison v. Jones, 540.
Paty's case, 287.
Payne's case, 637, 652.
Pazel's case, 600.
Peace's case, 80.
Peacock's case, 389.
Pear's case, 468, 488, 489.
Pearce's case, 486, 533, 703.
Pearce v. Whale, 8.
Pearson's case, 53, 699, 703.
Pease's case, 659, 662.
Peat's case, 295, 469, 734.
Peck's case, 344.
Pedley's case, 200, 677.
v. Paige, 161.
v. Wellesley, 113.
Peltier's case, 530.
Pengal v. Nicholson, 124.
Pen son's case, 232.
Pepy's case, 682, 689.
Perkins's case, 295.
Perrott's case, 368.
Perry's case, 116.
Petrie's case, 333.
Peyton's case, 271.
Phillips's case, 3, 69, 191, 192,
193, 289, 472, 617.
v. Fowler, 108.
Philps's case, 19, 43, 206, 209.
Phipoe's case, 507, 512, 734.
Pickering v. Rudd, 261.
Pickersgill's case, 107.
Picket's case, 271.
Pickford's case, 771.
v. Gutch, 528.
Picton's case, 239.
Piercy's case, 109.
Table of Cotes.
Pike's case, 26.
Pinkney's case, 292.
Pinney v. Pinney, 159.
Pitt's case, 244.
Pitton v. Walter, 156, 157.
Plaxlon v. Dare, 22.
Plestow's case, 367.
Plumer's case, 538, 700.
Plunkett v. Collett, 149, 152,
537.
Plympton's case, 244.
Pollman's case. 315, 327.
Pooley's case, 165, 507, 700.
Pomeroy v. Baddeley, 123.
Pope's case, 475.
Porter v. Cooper, 155.
Portreis v. Tondear, 230, 240.
Potts's case, 361, 408.^
v. Durant, 161. "
v. Sparrow, 544.
Pouget v. Tomkins, 233.
Poulton's case, 566, 567.
Powell's case, 401, 405, 406.
Pratley's case, 478.
Pratt's case, 495.
Pressley's case, 48.
Preston's (Lord) case, 91.
Price's case, 676, 722, 730.
Priddle's case, 100.
Priestley's case, 49.
Prince v. Blackburn, 161.
Prisoners' in K. B. case, 314.
Probert's case, 201.
Prosser's case, 173, 277, 722.
Prowes's case, 522,
Puckering's case, 510, 720.
Puddifoot's case, 78.
Pulley's case, 566.
Punshon's case, 673.
Purefoy's case, 54.
Py well's case, 320, 323.
Queen's (the) case, 41,98, 128,
141, 322.
Radbourne's case, 52, 54.
Radcliffe v. Burton, 630.
Radford v. M'Intosh, 8.
Rae's case, 592.
Railing's case, 108.
Rambert v. Cohen, 3.
Ramsay's case, 576.
Ramsbottam's case, 159.
Randall's case, 396, 415.
Rands v. Thomas, 101.
Ranger's case, 287.
Ransom's case, 506, 512, 700.
Ratcliffe's case, 197.
Ravenscroft's case, 416.
Rawlins's case, 285, 286.
Rawson's case, 181.
Reader's case, 207.
Reading's case, 130, 406.
Reason's case, 27, 557, 598.
Reave's case, 744, 750.
Redford v. Birley. 728, 731.
Reed's case, 4, 46.
Reculist's case, 165.
Rees's case, 181, 698.
v. Bowen, 157.
v. Margison , 155.
Reeve's case, 407.
Reg. v. Duchess of Buccleugh,
460.
Reilly's case, 691, 692.
Rex v. AHSaints, Worcester, 114.
v. Bear, 405.
v. Billinghurst, 232.
v. Birmingham, 233.
v. Bishop Auckland, 463.
v. Brampton, 238, 241.
v. Broughton, 106.
v. Brown, 461.
v. Buckeridge, 460, 463.
v. Bucknall, 248.
v. Inhab. of Bucks, 245.
v. Burton-upon-Trent,233.
v. Case, 654.
v. Castell Careinion, 101.
v. Choiger, 114.
v. Clifton, 457.
v. Colley, 124.
v. Cooke James
Sutton, 93.
Stamp
Table of Cases.
Rex v. Cumberworth. 457.
v. Derby, 249.
>- v. Devon, 247, 249.
v. Dowlin, 677, 680.
v. Eardisland, 462.
v. Ecclesfield, 247, 459.
v. Edmonton, 451.
v. Eriswell, 49, 54.
v. Farleigh, 12.
v. Flecknow, 458.
v. Great Canfield, 452.
v. Glamorgan, 246, 248.
v. Hammersmith, 107, 452,
458, 462.
v. Hatfield, 459.
v. Hendon, 248, 251.
v. Hepworth, 457.
v. Hornsey, 461, 462,
463.
v. Hunt, 533.
v. Jagger, 116.
v. Kent, 246, 250.
v. Kerrison, 250.
v. Kingsmore, 459.
v. King's Newton, 459.
v. Kirdford, 111.
v. Lancashire, 246.
v. Landulph, 458.
v. Leake, 451, 457.
v. Lyon, 453,
v. Lindsey, 250.
v. Mayor, &c. of Liverpool,
456.
v. Longnor, 164.
v. Machynlleth, 248, 459.
v. Marquis of Buckingham,
247.
v. Middlesex, 246.
v. Montague, 14.
v. N etherthong, 456, 459.
v. Northampton, 246,
251.
v. Norwich, 251.
v. Nunn, 188.
v. Oxfordshire, 246, 247,
248, 456.
v. Paddington Vestry,
457.
Rex v. Felling, 463.
v. Punshon, 221.
v. Ragley, 456.
v. Reilly, 236.
v. Roddam, 89.
v. St. Andrews, 461.
v. St. Benedict, 249, 457.
v. St. Botolph, Ministers,
&c. of, 291.
v. St. George, Hanover
square, 456, 461.
v. St. Giles, Cambridge,
459, 460.
v. St. Mary, Nottingham,
130.
v. St. Pancras, 461.
v. Weonard's, 453.
v. Salop, 247, 450.
v. Severn and Wye Rail-
way Company, 450.
v. Sheffield, 250.
v. Somerset, 456.
v. Stourbridge, 12.
v. Mayor of Stratford-upon-
Avon/251.
v. Tibshelf, 232.
v. Townsend, 462.
v. Treasurer of Exeter,
180.
v. Twyning, 14.
v . Upper Boddington,
145.
v. Upton- on- Severn, 453.
v. Wandsworth, 452, 457,
463.
v. Washbrook, 458.
v. Watkinson, 151.
v. West Riding of York-
shire, 459.
v. West Riding of York-
shire. 47, 249.
v. Wheaton Aston, 111,
463.
v.Wilts, 250, 251.
v. Winwick, 622.
T . Woburn, 129.
v. Wroxton, 232.
v. Yarton, 462.
Reynold's case, 760.
Rhodes' case, 682, 685.
Rice's case, 289.
Richards's case, 32, 181. 396,
450, 788.
Richardson's case, 721, 757.
Rickett's case, 223. 657.
Rickman's case, 18, 58, 199, 200
Reekspear's case, 710,
Ridgelay's case, 309.
Ridley's case, 210, 444.
Ring's case, 88, 90.
Rispal'scase, 314.
Robey's case, 181.
Robert's case, 66, 223, 319,
326.
Robins's case, 739.
Robinson's case, 71, 80, 184,
256, 319, 481, 486, 518,
657, 703, 770.
Robinson v. Jermyn, 527.
Robson v. Kemp, 157.
Rogers's case, 6, 7, 56, 269,
621.
Roper's case, 684.
Rose's case, 760.
Rose v. Blakemore, 143.
Rosinski's case, 211.
Ross's case, 549.
Roubattel's case, 186.
Rough's case, 510.
Row's case, 33.
Rowe v. Brenton, 156, 159.
Rowland's case, 118.
Rowland v. Ashby, 45.
Rowley's case, 599, 680.
Rudd's case, 104, 105, 121.
Ruding v. Smith, 237, 238, 240,
241.
Rugby Charity v. Merry weather,
452.
Rush v. Smith, 128.
Rushworth's case, 369, 419.
Rust's case, 261.
Ruston's case, 95.
Rustell v. Macquister, 537.
Russell's case, 255, 322. 454,
455, 659, 710.
Table of Cases.
Russen's case, 710.
Sainbury's case, 670.
Salisberry's case, 699.
Salmon's case, 535.
Samuel v. Payne, 612.
Saunders's case, 169, 580.
Sayer's case, 150.
v. Kitchin, 11.
Scott's case, 517.
v. Clare, 3.
Scrimshire v. Scnmshire, 237.
Scudder's case, 193.
Sculley's case, 643-
Sear's case, 475.
Seat ing's case, 509, 511.
Sedley's case, 525, 663.
Sefton's case, 266, 267.
Selby v. Harris, 156.
Self's case, 594.
Sells v. Hoare, 98.
Semple's case, 491.
Senior's case, 561, 566, 590.
Serjeant's case, 112, 114.
Seward's case, 316.
Sewel's case, 107.
Sexton's case, 30.
Shadbolt's case, 656.
Shakespeare's case, 81.
Sharp v. Scoging, 136.
Sharwin'scase, 83, 577 , 756, 760.
Shaw's case, 699, 725.
Sheen's case, 567.
Shepheid v. Shorthouse, 159.
Sheppaid's case, 19, 387, 416.
Sheridan's case, 5.
Sherman's case, 119.
Sherrington's case, 402, 519.
Shiles, ex parte, 223.
Shukard's case, 399.
Sidney's case, 63.
Sigel v. Jebb, 448.
Simon's case, 741, 744.
Simpson's case, 27, 257, 332,
561, 590.
v. Hill ; 356.
v. Smith, 128.
Sissinghurst- house case, 570.
xx Table of
Sissons v. Dixon, 14.
Skerrit's case, 303.
Skinner's case, 461.
Skutt's case, 700.
Sloper's case, 702.
Skinney's case, 461.
Smith's case, 6, 18, 27, 45, 52,
57,71, 103,114,153,155,
173, 210, 225, 255, 262,
266, 331, 403, 446, 567,
635, 659, 661, 722, 759.
-.Elizabeth, 340,344,
346.
, John, 278.
, Thomas, 339.
v. Beadnell, 132.
v. Huson, 233.
v. Maxwell, 236.
v. Prager, 107.
v. Rummen's, 107.
v. Sainsbury, 163.
v. Stewart, 93.
v. Taylor, 8, 528.
v. Young, 4, 10.
Smithson's case, 156.
Smollett's case, 526.
Smyth's case, 271, 377, 379.
Snow's case, 558, 608.
Scare's case, 167,301, 399, 408.
Solita v. Yarrow, 163.
Soloman's case, 678.
Southern's case, 296, 446.
Southerton's case, 312.
Spalding's case, 1 99.
Spark v. Middleton, 146.
Sparkes's case, 144.
Spear's case, 483.
Spenceley v. Willott, 128.
Spencer's case, 339, 369, 676,
679, 741,744.
Spiller's case, 561, 591.
Sponsonby's case, 403.
Spragg's case, 10, 314.
Sprigg's case, 331.
Springer's case, 769, 773.
Squires's case, 342, 592, 786.
Stafford's (Lord) case, 322.
Stanley's case, 633, 724.
v. Jones, 544.
Starling's case, 315.
Cases.
Statham's case, 516.
Stayte v. Farquaharson, 233.
Stedman's case, 557, 596.
Stephens v. Myers, 211.
Steptoe's case, 42.
Stevens v. Bagwell, 544.
Stevenson's case, 622.
Stewart's case, 167.
Stiles v. Nokes, 540.
Stock's case, 274, 275, 479, 481.
Stocken v. Carter, 617.
Stokes's case, 178.
Stockley's case, 622, 631, 632.
Stone's case, 61, 62.
v. Blackburne, 124.
Story's case, 366.
v. Story, 237.
Strafford's case, 53, 149.
Stranger v. Searle, 162.
Stratton'scase, 321.
Streek's case, 178.
Stuart v. Lovell, 537.
Studdy v. Sanders, 150.
Sull's case, 79, 81.
Sullen's case, 344, 485.
Sulston v. Norton, 244.
Sutcliffe's case, 776.
Sutton's case, 529.
Swan's case, 75.
Swatkins'scase, 36,47,177.208.
Sweeting v. Fowler, 80.
Swift v. Swift, 130.
Swinnerton v. Marquis of Staf-
ford, 161.
Sykes v. Dunbar, 150, 152.
Tacey's case, 556.
Taft's case, 386.
Talbot v. Hodgson, 162.
Tannet's case, 81, 360.
Taplin's case, 741.
Tarrant's case, 48, 316.
Tattersall's case, 166.
TattershaU's case, 67.
Tavener's case, 70.
Tawney's case, 670.
Taylor s case, 99, 181, 202, 334,
347, 386, 516, 527, 550,
665, 676, 679.
v. Foster, 1 45.
Table of Cases.
Teague'scase, 165, 393, 408.
Teal's case, 101.
Teasdale's case, 108.
Tellicote's case, 47, 48.
Tessymond's case, 59 1 .
Testick's case, 421.
Tharpe v. Gilmore, 163.
Thatcher v. Waller, 54.
Thomas's case, 46, 424, 618,714,
730, 755, 756.
v. Ansley, 2.
v. Newton, 133.
Thompson's case, 268, 334, 423,
521, 578.
Thomson's case, 487, 559, 613,
632.
Thorley's case, 339.
v. Lord Kerry, 526.
Thornton's case, 34, 44, 52.
v. Roy. Ex. Ass. Co.
137.
Thorpe's case, 558, 608.
Tibbs v. Smith, 509.
Tickel v. Read, 214.
Tilly's case, 109, 725.
Timothy v. Simpson, 198, 213,
614.
Tinkler's case, 23.
Tippet's case, 28, 453.
Todd's case, 516.
Tohayle's case, 662.
Tolfree's case, 477. 787.
Tomlinson's case, 579.
Tonge's case, 38, 1 19.
Tooke's case, 61, 65, 155.
Tooker v. Duke of Beaufort, 154.
Tooley's case, 615, 623, 624,
625.
Topham's case, 527, 539.
Towle's case, 658.
Townley's case, 85.
Trapshaw's case, 270.
Treeves's case, 290.
Treharne's case, 85.
Truman's case, 229, 233, 234.
Trusty's case, 755, 756.
Tuchin's case, 526.
Tucker's case, 94, 711, 775.
Tullay v. Read, 214.
Tunnard's case, 491.
Turberville v. Savage, 211.
Turner's case, 40, 56, 80, 282,
284, 316, 320, 334, 517,
600, 692, 715, 722.
v. Pearte, 124.
Twistleton's case, 197.
Tye's case, 579.
Tyers's case, 342, 345.
Tyler's case, 33.
Uncle v. Watson, 23.
Vaillant v. Dodemead, 145.
Van Butchell's case, 561, 589.
Vandercomb's case, 59, 281,
283, 284, 665.
Van Muyen's case, 473.
Varley's case, 298.
Vaughan's case, 244.
Venner's case, 458.
Verelst's case, 7, 14, 673.
Vertue v. Lord Clive, 315.
Ville de Varsovie, case of the,
101.
Villeneuve's case, 365.
Virgil's case, 216.
Voke's case, 71, 654.
Vyse's case, 507.
Waddington's case, 374, 524.
Wade's case, 95, 99, 178.
Wagstaff's case, 769.
Waite's case, 484.
Wakefield's case, 115, 116, 138 ,
195, 315.
Wakeling's case, 369.
Walker's case, 80, 98, 384, 503,
518,560,584, 714,725.
v. Kearney, 101.
v. Wildman, 146.
Walkley's case, 30, 719.
Wall's case, 397.
Waller's case, 684.
Wallis's case', 173, 206.
Walsh's case, 470r
Walter's case, 222, 224, 225,
534.
Wannop's case, 378.
xxii Table of
Ward v.Man, 118.
Wardle's case, 84. 155, 342,
382, 402.
Warickshall's case, 29, 36. 37.
Warner's case, 623.
Warren's case, 670.
Warren v. Warren, 538.
Warwick's, Earl of, case, 103.
Watson's case, 1, 4, 62, 63, 71,
124, 126, 131, 136, 148,
149, 333, 526, 530, 776,
789.
v. Carr, 615.
v. King, 20.
Watts's case, 405, 454, 661.
Waully's case, 233.
Wavell's case, 370.
Weatherstone v. Hawkins, 540.
Weaver v. Bush, 213, 214.
v. Ward, 211.
Webb's case, 45, 123, 383, 384,
501, 579, 591.
Wedge's case, 712.
Weeks v. Sparks, 22.
Wegener's case, 530, 537.
Weld v. Hornby, 661.
Welbourne's case, 26.
Welland's case, 78.
Welling's case, 340.
Wells's case, 112.
Welsh's case, 184, 299.
West's case, 130, 555.
Westbeer's case, 49, 75, 503.
Westwood's case, 263.
Wetherell's case, 179, 670.
Wetton's case, 288.
Wharam v. Routledge, 11.
Wheatley's case, 293, 320.
Wheeler s case, 757.
Wheeling's case, 28.
Whiley's case, 58, 67, 69, 390.
White's case, 28, 30, 97, 335,
353, 526, 534, 657, 659,
660, 662, 675.
Whitehead's case, 66, 325.
Whiteley's case, 608, 651.
Whitelock v. Baker, 22.
v. Musgrave, 161.
Whitfield's case, 652.
Cases.
Whithorne's case, 637.
Whiting's case, 106.
Whitnash v. George, 29.
Whitney's case, 287, 558.
Whittingham's case, 345.
Wicks's case, 394.
Wigg's case, 557, 600, 662.
Wightwick v. Banks, 156.
Wilcock's case, 414.
Wilcox's case, 382, 405.
Wild's case, 118.
Wilder's case, 292.
Wilkin's case, 493, 512.
Wilkinson's case, 471, 514.
Wilks's case, 386, 488, 525.
Williams's case, 105, 106,219,
271, 286, 289, 340, 348,
418, 478, 653, 664, 665,
670.
Williams v. Mundie, 146.
v. Ogle, 81.
v. Stott, 301, 304,
340, 536.
Williamson's case, 561 , 589, 59 1 .
v. Henley, 543.
Willis's case, 476.
v. Bernard, 58.
Willoughby's case, 416, 645,
700.
Wilson's case, 44, 272, 299, 378.
v. Rastall, 144, 145.
v. Stubbs, 80.
Wiltshire v. Prince, 231.
Winkworth's case, 59.
Winship's case, 670.
Winter's case, 205.
Wiseman's case, 764.
Withal's case, 75, 282.
Witchell's case, 364.
Withers's case, 147, 652.
Witt's case, 273.
Wood's case, 223, 288, 293,
652, 673.
Wood v. Drury, 161.
v. Neal, 452.
Woodcock's case, 23, 25, 51,
117, 729.
Woodward's case, 86, 205, 208,
215, 335.
Table of Cases.
Wooldridge's case, 303, 397.
Woodyer v. Hadden, 452.
Worrel's case, 291, 444.
Wright's case, 34, 138, 451,
540, 779.
Wright v. , 137.
v. Littler, 24.
Wyat's case, 670.
Wyattv. Gore, 148.
Wyld's case, 124.
Wymer's case, 516.
Wyndham's case, 187.
Wynne's case, 475.
Yates's case, 370, 507.
Yates v. Lance, 111.
Yewen's case, 140.
Young's case, 315, 329, 362,
363, 365, 370, 384, 736.
Yrisarri v. Clement, 529.
ERRATA.
Page 19, for Phelp's case, read Philps's case.
47, for Swalkin's case, read Swatkin's case.
97, for Omichund v. Baker, read Omichund v. Barker.
137, for Foulk's v. Chad, read Folkes v. Chad.
159, for Rambsbottam's case, read Ramsbottam's case.
26, first paragraph,/or cases, read case.
580, for Saunders's cose, read Saunders's case.
668, for Brodripp's case, read Brodribb's case.
A DIGEST, &c.
THE general rules of evidence are the same in criminal and in
civil proceedings. " There is no difference as to the rules of
evidence," says Abbott, J. " between criminal and civil cases;
what may be received in the one may be received in the
other ; and what is rejected in the one ought to be rejected in
the other." Watson's case, 2 Stark. N. P. C. 155.
PRIMARY AND SECONDARY EVIDENCE.
Primary Evidence
Written instruments . . 2-
Handwriting . . .5
Negative evidence of Consent . . 6
Exceptions . . . .7
Evidence of persons acting in public capacity . 7
Admissions by Party . . .8
Secondary Evidence
When admissible in general . 9
Notice to produce in general . . .9
Form of . . .10
To whom and when . 10
Consequences of . . . .11
Loss of Document . . . .11
IT is the first and most signal rule of evidence, that the best
evidence of which the case is capable shall be given, for if the
best evidence be not produced, it affords a presumption that it
would make against the party neglecting tb produce it. (nib.
Ei. 3. Bull. N.P.293.
2 Primary and Secondary Evidence.
Primary evidence written instruments.] As a general rule,
the contents of a written instrument can only be proved by the
production of the instrument itself, parol evidence of them
being of a secondary or inferior nature. But this rule is not
without many exceptions. In general, whenever an instrument
is entered into in writing, which is intended by the parties (tes-
tified by their signatures) to contain and to be the evidence of
their consent or agreement, or whenever there exists a written
document, which by the policy of the law is considered to con-
tain the evidence of certain facts, that instrument or document
is regarded as the best evidence of the agreement or facts which
it records ; and unless it be in the possession of the opposite
party, and notice has been given to him to produce it, or it be
proved to be lost or destroyed, secondary evidence of its contents
is not admissible. Thus where a man makes a will of lands,
which must necessarily be in writing, both the devisor and the
law intend that that writing shall be the evidence ofthede-
Tisor's intentions, and therefore the will itself must be produced ;
neither an exemplification under the great seal, nor a probate,
or other copy being primary evidence of the devise. jB. IV. P.
246. In the same manner where two parties enter into an
agreement in writing, that writing is intended by them to be the
evidence of their mutual consent, and is the only primary evi-
dence of that consent. Brewer v. Palmer, 3 Esp. 213.
Again, in an indictment for setting fire to a house, in order
to prove that the house was insured, the books of the insurance
office were produced, in which there was an entry to that
effect ; but Lord Kenyon ruled, that as the policy was the best
evidence, the prosecutors could not give any evidence from their
books, it being inferior evidence, unless notice had been given to
produce the policy. Damn's case, 1 Esp. 127.
Upon the same principle, the records and proceedings of
Courts of Justice, existing in writing, are primary evidence of
the facts there recorded. Thus where it was necessary to prove
the day on which a cause came on to be tried, Lord Ellen-
borough said that he could not receive parol evidence of the
day on which the court sat at Nisi Prius, as that was capable of
other proof by matter of record. Thomas v. Ansley, 6 Esp. 80.
Vide post " Documentary Evidence." So on an indictment for
disturbing a protestant congregation, Lord Kenyon ruled that
the taking of the oaths under the Toleration Act being matter
of record, could not be proved by parol evidence. Hube's case,
Peaks, 132. On an indictment on the statute 8 & 9 W. 3. c.
'2ti. 81. for having coining instruments in possession (repealed
and re-enacted by 2 W. 4. c. 34.) it was necessary to show
that the prosecution was commenced within three months
after the offence committed. It was proved, by parol, that the
prisoners were apprehended within three months, but the war-
rant was not produced or proved, nor was the warrant of com-
Primary and Secondary Evidence. 3
mitment or the depositions before the magistrate given in
evidence to shew on what transactions, or for what offence, or
at what time the prisoners were committed. The prisoners
being convicted, a question was reserved for the opinion of the
judges, who held that there was not sufficient evidence that the
prisoners were apprehended upon transactions for high treason
respecting the coin, within three months after the offence com-
mitted. PhUlips's case. Russ & Ry. C. C. R. 369. So where
the transactions of courts which are not, technically speaking,
of record, are to be proved, if such courts preserve written
memorials of their proceedings, those memorials are the only
authentic modes of proof which the law recognizes. 3 Stark.
Ev. 1043. 1st Ed.
Although matters of record and proceedings of courts of
justice, when committed to writing, cannot be proved by parol,
they may be proved by examined copies, a rule founded upon a
principle of general convenience. In the same manner exa-
mined copies of public books are admissible without producing
the originals. Vide post. But no such rule exists with regard to
private documents, there being no inconvenience in requiring
their production.
The admission of the party against whom the evidence is
offered will not preclude the necessity of producing a written
instrument where it is primary evidence. Bloram v. Elsie,
Ry. $ Moo. 187. Call v. Dunning, 4 East, 53. Cunli/e v.
Sefton, 2 East, 187, 188. Thus where to prove a discharge
under the Insolvent Debtor's Act, the defendant proposed to
give in evidence a verbal acknowledgment by the plaintiff
himself, Lord Ellenborough said that this was insufficient, as
the discharge might be irregular and void, and the plaintiff
mistaken ; that to prove a judicial act of this sort, it was neces-
sary to call the clerk of the peace and give in evidence the
order of the court of quarter sessions, by which the discharge
was effected. Scott v. Clare, 3 Campb. 236.
But it is not necessary, in every case where the fact that is to
be proved has been committed to writing, that the writing
should be produced. Thus where a memorandum of agree-
ment was drawn up, and read over to the defendant, and he
assented to, but did not sign it, it was held that the terms
mentioned in it might be proved by parol. Doe v. Cartwright,
3 B. f A. 326. So where a verbal contract is made for the
sale of goods, and is put into writing afterwards by the ven-
dor's agent, for the purpose of assisting his recollection, but is
not signed by the vendor, it may be proved by parol. Dalhoii
v. Stark, 4 Esp. 163. So facts may be proved by parol, though
a narrative of them may exist in writing. Thus a person who
pays money may prove the fact of payment, without producing
the receipt which he took. Rambert v. Cohen, 4 Esp. 213. So
where, in trover, to prove the demand, the witness stated that he
B 2
r
4 Primary and Secondary Evidence.
had verbally required the defendant to deliver up the property,
and at the same time served upon him a notice in writing to
the same effect, Lord Ellenborongh ruled that it was unne-
cessary to produce the writing. Smith . Young, I Campb. 439.
So a person who takes notes of a conversation need not produce
them in proving the conversation. Thus in Layer's case for
high treason, Mr. Staney, an Under Secretary of State, gave
evidence of the prisoner's confession before the council, though
it had been taken down in writing. 12 Vin. Ab. 96. And
although what is said by a prisoner whose examination is regu-
larly taken under 7 G. 4. c. 64. s. 2. (vide post) cannot be proved
by parol, yet it may be so proved where the written examination
is inadmissible on account of an irregularity in the mode
of taking it. Reed's case, Moo. <5f Mai. 403. So the fact of a
marriage may be proved by a person who was present, and it
will not be necessary to produce the parish register as the pri-
mary evidence. Morris v. Miller, 1 W. El. 632.
Where the question was, what were the inscriptions and de-
vices on certain banners carried at a public meeting, on an
indictment for unlawfully assembling, it was held that parol
evidence of the inscriptions was admissible without producing
the banners themselves ; and per Lord Tenterden, " Inscrip-
tions used on such occasions are the public expression of the
sentiments of those who bear and adopt them, and have rather
the character of speeches than of writings." Hunt's case, 3 B.
Sf A. 566.
In the case of printed documents, all the impressions are ori-
ginals, or in the nature of duplicate originals, and any copy
will be primary evidence. Thus where, in a prosecution for high
treason, a copy of a placard was produced, by the person who
had printed it, and offered in evidence against the prisoner, who
it appeared had called at the printer's, and taken away twenty-
five copies, it was objected that the original ought to be pro-
duced, or proved to be destroyed, or in the possession of the
prisoner; but it was held that the evidence was admissible;
that the prisoner had adopted the printing by having fetched
away the twenty-five copies, and that being taken one out of a
common impression, they must be supposed to agree in the con-
tents. " If the placard," said Mr. Justice Bayley, " were
offered in evidence to shew the contents of the original manu-
script, there would be great weight in the objection, but when
they are printed they all become originals ; the manuscript is
discharged, and since it appears that they are from the same
press, they must be all the same." Watson's case, 2 Stark. 130.
The transactions and proceedings of public meetings may be
proved by parol, as in the case of resolutions entered into, al-
though it should appear that the resolutions have been read
from a written or printed paper. Thus where, in a prosecution
against Hunt for an unlawful assembly, in order to prove the
Primary and Secondary Evidence. 5
reading of certain resolutions, a witness produced a copy of the
resolutions which had been delivered to him by Hunt as the
resolutions intended to be proposed, and proved that the resolu-
tions he heard read, corresponded with that copy, this was held
sufficient, though it was objected that the original paper from
which the resolutions were read ought to have been produced, or
that atnotice to produce it ought to have been given. Hunt's
case, 3 B. 8$ A. 568. In a prosecution on the Irish Conven-
tion Act, the indictment averred that divers persons assembled
together, and intending to procure the appointment of a com-
mittee of persons, entered into certain resolutions respecting
such committee, and charged the defendant with certain acts
done for the purpose of assisting in forming that committee,
and carrying the resolutions into effect. To prove the first
averment, a witness was called, who stated, that at a general
meeting (the defendant not being present) the secretary of the
meeting proposed a resolution and read it from a paper. The
proposition was seconded, and the paper was handed to the
chairman and read by him. It was objected that the absence
of the paper should be accounted for, before parol evidence of the
contents of it was received. But the majority of the court
were of opinion that this was not a case to which the distinc-
tion between primary and secondary evidence was strictly ap-
plicable ; that the proposed evidence was intended to shew,
not what the paper contained, but what one person proposed,
and what the meeting adopted ; in short, to prove the transac-
tions and general conduct of the assembly ; and that such evi-
dence could not be rejected because some persons present took
notes of what passed. Sheridan fy Kirwan's case, 31 How.
St. Tr. 672.
Primary evidence handwriting.] In proving handwriting
the evidence of third persons is not inferior to that of the party
himself. " Such evidence," says Mr. Phillipps, " is not in its
nature inferior or secondary, and though it may generally be
true that a writer is best acquainted with his own handwriting,
and therefore his evidence will generally be thought the most
satisfactory, yet his knowledge is acquired precisely by the
same means, as the knowledge of other persons, who have been
in the habit of seeing him write, and differs not so much in
kind as in degree. The testimony of such persons, therefore, is
not of a secondary species, nor does it give reason to suspect, as
in the case where primary evidence is withheld, that the fact to
which they speak is not true." 1 Phitl. Ev. 212, 6th ed.
If the evidence of third persons be admissible to prove hand-
writing, it seems necessarily to follow that it is equally ad-
missible for the purpose of disproving it, the question of genuine
or not genuine being the same in both cases. But see 1 Phill.
Ev. 213, 6th ed. Accordingly, although in an early case, where
6 Primary and Secondary Evidence.
it was requisite to prove that certain alterations in a receipt
were forged, it was held that the party who had written the
receipt ought to be called as the best and most satisfactory
evidence, Smith's case, 0. B. 1768, 2 East, P. C. 1000., yet
in subsequent cases of prosecutions for forgery, it has been held
that the handwriting may be disproved by any person ac-
quainted with the genuine handwriting. Hughes' $ case, 2 East,
P.C. 1002. M'G litre's case, Id.
In certain indictments for the then capital offence of putting
away bank of England notes, knowing them to be forged, &c.
the counsel for the bank thought it proper, over and above the
usual proof given by the bank inspector of the note being
forged, (viz. of its not being bank paper, nor a bank impression,
and that he was acquainted with the handwriting of the clerk
whose name appeared to the note, and that he believed it not to
be his hand writing) to go further, and produce the clerk him-
self to prove that he never signed it. This appeared to be done
upon some intimation that the jury would not be satisfied
without the best proof the nature of the case would admit of,
and that was the signing clerk himself, who was a competent
witness. The following questions were submitted for the
opinion of the judges. Is it necessary that the signing clerk, if
living, should be produced ? And if a jury should require his
testimony, and it is not produced, what direction should the
judge give 1 The judges were of opinion that it was unneces-
sary to produce the signing clerk to show that he never signed
the notes, if established by the evidence of persons acquainted
with his handwriting, that the signature was not in his hand-
writing. Case of Bank prosecutions, 1 Moody, C. C. 380.
Primary evidence negative evidence of consent.] In certain
prosecutions, it is necessary to prove that the act with which the
prisoner is charged was done without the consent, or against the
will, of some third person, and a question has been raised, whether
the evidence of that person himself is not the best evidence for
that purpose. Although at one time, it appears to have been
thought necessary to call the party himself, it is now settled
that his testimony is not the best evidence, but that the want of
consent may be proved in other ways. In a prosecution under
the statute 42 G. 3. c. 107. s. 1 . (repealed by 7 & 8 G. 4. c. 27.)
where it was necessary to prove that the act in question was
done without the consent of the owner of the property, Law-
rence, J. held that it was necessaiy on the part of the prosecu-
tion, to call the owner for the purpose of proving that he had
not given his consent to the prisoner. Rogers' case, 2 Campl.
654. But where on an indictment under 6 G. 3. c. 36. (re-
pealed by 7 & 8 G. 4. c. 27. and re-enacted by c. 30. ) for lopping
and topping an ash timber tree without the consent of the owner,
the land steward was called to prove that he himself never gave
Primary and Secondary Evidence. 7
any consent, and from all he had heard his master say, (who
had died before the trial, having given orders for apprehending
the prisoners on suspicion) he believed that he never did,
Bayley J. left it to the jury to say whether they thought there
was reasonable evidence to show that in fact no consent had
been given. He adverted to the time of night when the offence
was committed, and to the circumstance of the prisoner's run-
ning away when detected, as evidence to show that the consent
required had not in fact been given. The prisoners were found
guilty. Hazv's case, 2 C. <3f P. 458. So on an indictment on
42 G. 3. c. 107. s. 1. for killing fallow deer without consent of
the owner, and on two other indictments, for taking fish out of
a pond without consent, Gaselee, J. was of opinion that the
offence was committed under such circumstances as to warrant
the jury in finding non-consent ; but Rogers's ease (ante*) having
been cited, further evidence was gone into by calling the per-
sons engaged in the management of the different properties, but
not the owners. The judges having considered these cases, held
the convictions right. AUen's case, 1 Moo. C. C. 154.
Primary evidence exceptions persons acting in a public ca-
pacity.] Where persons, acting in a public capacity have
been appointed by instruments in writing, those instruments are
not considered the primary evidence of the appointment, but it
is sufficient to show that they have publicly acted in the
capacity attributed to them. Thus in the case of all peace
officers, justices of the peace, constables, &c. it is sufficient to
prove that they acted in those characters without producing
their appointments,' and this even in the case of murder.
Per Butler, J., Kerry man v. IVise, 4 T. R. 366. Gordon's
case, 1789, cited, Ib. So, where on an indictment for perjury,
in an answer to an allegation in the Ecclesiastical Court, in
order to prove that the person by whom the oath was adminis-
tered, was a surrogate, evidence was given of his having been in
the habit of acting in that capacity, Lord Ellenborough said,
" I think the fact of his having acted as surrogate is sufficient
prima facie evidence that he was duly appointed, and had com-
petent authority to administer the oath. I cannot, for this
purpose, make any distinction between the Ecclesiastical Courts
and other jurisdictions. It is a general presumption of law,
that a person acting in a public capacity is duly authorized so
to do." Verelst's case, 3 Campb. 432. " So where an affidavit
purported to be sworn before a commissioner, proof of his acting
as such was held by Patteson, J. to be sufficient. Howard's
case, 1 Hloo. Sf Rob. 187. In an action on an attorney's bill,
it was proved by the defendant that the plaintiff was admitted
an attorney of the King's Bench in 1792, and had ceased for
more than one year to take out his certificate ; it was contended
that it lay upon him to prove his re-admission, but as he had
8 Primary and Secondary Evidence.
proved that he had acted as an attorney of the Common Pleas
in 1824, it was held that it was to be presumed he had law-
fully acted in that character, in that court, till the contrary was
proved. Pearce v. Whale, 5 B. <5f C. 38.
Primary evidence exceptions admissions by the party.]
Although, as already stated (ante, p. 3.), the contents of a written
instrument cannot be proved against a party by his admission,
yet where he is charged as bearing some particular character,
the fact of his having acted in that character will be sufficient
evidence, as an admission without reference to his appointment
beingin writing. Thusin an action for penalties against a collector
of taxes, under 43 G. 3. c. 99. s. 12. the warrant of appointment
was not produced, but it was held that the act of collecting the
taxes was sufficient to prove him to be collector. Lister v.
Priestly, Wightw. 67. So on an information against an officer
for receiving pay from government for a greater number of men
than had mustered in his corps, Lord Ellenborough held that
the fact of his being commandant might be proved from the
returns, in which he described himself as major commandant of
the corps, without adducing direct evidence of his appointment
by the king. Gardner's case, 2 Campb. 513. So in an action
against a clergyman for non-residence, the acts of the defen-
dant as parson, and his receipt of the emoluments of the church,
will be evidence that he is parson, without formal proof of his
title. Bevan v. Williams, 3 T. R. 635. (a.) Smith v. Taylor,
1 Bos. <Sf Pul. N.-R. "210. Again, upon an indictment for em-
bezzlement under 2 W. 4. c. 4. against a letter carrier, proof
that he acted as such was held to be sufficient, without show-
ing his appointment. Barrett's case, 6 C. ty P. 124.
In the same manner, where the appointment or particular
character of the other party is to be proved, the admis-
sion of the party against whom the evidence is offered,
will not be secondary evidence, although the appointment
be in writing. Thus in an action for penalties on the
Post Horse Act, brought by the farmer of the tax, it was
held not to be necessary for the plaintiff to give in evidence his
appointment by the Lords of the Treasury or the Commissioners
of the stamp duties ; proof that the defendant had accounted
with him as farmer of the duties, being sufficient. Radford v.
M'IntnsJi, 3 T. li. 632. See Smith v. Taylor, 1 Bos. # Pul.
N. JR. 211. So in an action for slandering the plaintiff in his
profession of an attorney, the words being " that the defendant
would have him struck off the roll," &c. it was held that this
was an admission by the defendant, that the plaintiff was an
attorney, and sufficient evidence of that fact. Berryman v.
Wise, 4 T. R. 366. The rule is thus stated by Heath, J.
in Smith v. Taylor, 1 BOS.&; Pul. N. R. 208. " Where a de-
Primary and Secondary Evidence. 9
fendant, in the course of the transaction on which the action is
founded, has admitted the title by virtue of which the plaintiff
sues, it amounts to primd facie evidence that the plaintiff is
entitled to sue."
Secondary evidence when admissible in general.] Secondary-
evidence is admissible, where the primary evidence, being docu-
mentary, is either lost or destroyed, or where it is in the hands of
the opposite party, or of his privy or agent ; or in the hands of
a person privileged from producing it, and who being required
to do so, insists upon his privilege, (see Marston v. Downes,
6 C. f P. 381) ; or where, in certain cases, as in the case of
tablets let into walls, it is impossible to produce the original in
court, without great inconvenience. In these instances, under
certain regulations, and subject to certain preliminary steps,
secondary evidence is admissible.
Secondary evidence notice to produce in general.'] Where
a document is in the hands of the other partv, a notice to pro-
duce it in court must be given to him, before secondary evidence
of its contents can be received. There is no distinction be-
tween civil and criminal cases, with regard to the production of
documents after notice given to produce them, and with regard
to the admissibility of secondary evidence in case of their non-
production. Le Merchand's case, coram Eyre, B. 1 Leach, 300
(n). In Layer's case for high treason, it was proved by a witness,
that the prisoner had shown him a paper partly doubled up,
which contained the treasonable matter, and then immediately
put it in his pocket ; and no objection was made to the wit-
ness giving parol evidence of the paper. 6 State Trials, 229.
(fa. Ed.)
A notice to produce will let in secondary evidence in crimi-
nal as well as civil cases, where the document to be produced
appears to have been in the hands of the agent or servant of
the prisoner, under such circumstances as that it might be
presumed to have come to his own hands. Col. Gordon was in-
dicted for the murder of Lieut. -Col. Thomas in a duel. The
letter from Gordon containing the challenge was carried by
Gordon's servant, and delivered to Thomas's servant, who
brought a letter in answer, and delivered it to Gordon's ser-
vant ; but it did not appear in fact, that the letter was ever de-
livered to Gordon himself. Mr. Baron Eyre permitted an
attested copy of the latter letter to be read against the prisoner,
and left it to the jury as legal evidence, if they were of opi-
nion that the original had ever reached the prisoner's hands.
Hotham, B. concurred, but Gould, J. thought that positive
evidence ought to be given that the original had come to the
prisoner's hands. Gordon's case, 0. B. 1784. 1 Leach,
300. (n.)
B5
10 Primary and Secondary Evidence.
Secondary evidence notice to produce when dispensed
with.] Where from the nature of the prosecution the prisoner
must be aware that he is charged with the possession of the do-
cument in question, a notice to produce it is unnecessary. Thus
upon an indictment for stealing a bill of exchange, parol evi-
dence of its contents may be given, without any proof of a notice
to produce. Arckles's case, 1 Leach, 294. 2 East, P. C. 675.
So upon an indictment for forging a note, which the prisoner
afterwards obtained possession of and swallowed, Buller, J.
permitted parol evidence of the contents of the note to be given
without any notice to produce. Spragge's case, cited 14 East,
276. In the case of De la JMotte, indicted for high treason,
his correspondence was secretly opened, copies of the contents
taken, and the originals sealed again, and forwarded to the
place of destination. The original letters having been proved
to be written by the prisoner, the copies proved to be examined
were admitted in evidence. De la Matte's case, 1 East, P. C.
124. So upon the trial of an indictment for administering an
unlawful oath, it may be proved by parol that the prisoner read
the oath from a paper, although no notice to produce that paper
has been given. Moors' case, 6 East. 419. (a). Hunt's case,
8 B. % A. 568, ante, p. 4.
It is not sufficient to dispense with notice to produce, that the
party in possession of the document has it with him in court.
Bate v. Kinsey, 1 M. fy R. 38.
Secondary evidence notice to produce -form of.'} It is not
necessary that a notice to produce should be in writing, and if
a notice by parol and in writing be given at the same time, it
is sufficient to prove the parol notice alone. Smith v. Young, 1
Campb. 440. 2 Russell, 677. The notice, if a written one,
must be properly entitled. Harvey v. Morgan, 2 Stark. 17.
In order to render it effective the notice should sufficiently
point out the document required to be produced. Where, upon
a notice to produce " all letters, papers, or documents touching
or concerning the bill of exchange mentioned in the declara-
tion," the party served was called upon to produce a particular
letter, Best, C. J. was of opinion that the notice was too vague,
and that it ought to have pointed out the particular letter re-
quired. France v. Lucy, Ry. <Sf Moo. N. P. C. 341. see also
Jones v. Edwards, M'Ct. $ Y. 139.
Secondary evidence notice to produce to whom, and when.]
In criminal as well as in civil cases it is sufficient to serve the
notice to produce, either upon the defendant or prisoner himself,
or upon his attorney. Cates, q. t. v. Winter, 3 T. R. 306.
M'Nally on Ey. 355. 2 T. R. 203. 2 Russell, 678. It must
be served within a reasonable time, but what shall be deemed
a reasonable time must depend upon the circumstances of each
Primary and Secondary Evidence. 11
particular case. The prisoner was indicted for arson. The
commission day was the 15th March, and the trial came on on
the 20th. Notice to produce a policy of insurance was served
on the prisoner in gaol on the 18th March. His residence was
ten miles from the assize town. It being objected that this no-
tice was too late, Littledale, J. after consulting Parke, J. said,
" We are of opinion that the notice was too late. It cannot
be presumed that the prisoner had the policy with him when in
custody, and the trial might have come on at an earlier period
of the assize. We therefore think, that secondary evidence of
the policy cannot be received." Ellicombe's case, 6 C. fy P. 522,
1 Moody <Sf Rob. 260. S. C. The notice should be served be-
fore the commission-day, when the party does not live at the
assize town. 1 Moo. fy Rob. 259.
Secondary evidence consequences of notice to produce.] The
only consequence of giving a notice to produce, is that it entitles
the party giving it, after proof that the document in question is in
the hands of the party to whom it is given, or of his agent, to
go into secondary evidence of its contents, and does not autho-
rise any inference against the party failing to produce it.
Cooper v. Gibbons, 3 Campb. 363. If the party who calls for
the papers inspects them, this will render them evidence for the
opposite party. Wharam v. Routledge, 5 Esp. 235. Though it
is otherwise if he merely calls for them without inspecting
them. Sayer v. Kitchen, 1 Esp. 210.
As against a party who refuses, upon notice, to produce a do-
cument, it will be presumed that it bore the requisite stamp,
but the party refusing is at liberty to prove the contrary. Crisp
v. Anderson, 1 Stark. 35.
Secondary evidence loss of document.] Where the original
of a document is proved to be lost or destroyed, secondary evi-
dence of its contents may be given in criminal as well as in
civil proceedings. Thus upon an indictment for false pre-
tences contained in a letter, upon proof of the loss of the letter,
parol evidence of its contents is admissible. Chadwick's case,
6 C. fy P. 181. Before secondary evidence can be given of
any document, evidence of its loss must be offered, and it must
be shown that due diligence has been exercised in searching for
it. The degree of diligence will necessarily depend on the par-
ticular case. Where, on the prosecution for a libel, the pub-
lisher of a paper in which the libel had been inserted, stated
that he believed the original was either destroyed or lost, having
been thrown aside as useless ; this was held sufficient to let in
secondary evidence. Johnson's case, 7 East, 66.
The degree of diligence to be exercised in searching for a do-
cument, will depend in a great measure on the importance of
the document. Gully v. Bp. of Exeter, 4 Bingh. 298. In the
12 Primary and Secondary Evidence.
case of an useless document, the presumption is that it has been
destroyed. Per Bayley, J. The King v. East Farleigh, 6 D. $ R.
153. And where the loss or destruction of a paper may almost
be presumed, very slight evidence of such loss or destruction is
sufficient. Per Abbott, C. J. Brewster v. Sewell, 3 B. $ A. 296.
Thus where depositions have been delivered to the clerk of the
peace or his deputy, and it appears that the practice is, on a bill
being thrown out, to put away the depositions as useless, slight
evidence of a search for them is sufficient, and the deputy need
not be called, it being His duty to deliver the depositions to his
principal. Freeman v. Arkell, 2 B. <Sf C. 496.
Where it is the duty of the party in possession of a document
to deposit it in a particular place, and it is not found in that
place, the presumption is, that it is lost or destroyed. The King
v. Stourbridge, 8 B. & C.96, 2 M. % R. 43. S. C.
PRESUMPTIONS.
General nature of Presumptive Evidence and when ad-
missible . . . .12
General instances of . . . .13
Of Innocence and Legality . . .14
Of Guilt arising from the conduct of the Party charged 15
Arising from the possession ef stolen Property . 16
Of Malice . . . . . 18
Of Intent to defraud . . . .19
Of the duration of Life . . .19
General nature of presumptive evidence and when admis-
sible.'] When the fact itself cannot be proved, that which
comes nearest to the proof of the fact is the proof of the cir-
rumstances that necessarily and usually attend such fact, and
these are called presumptions and not proofs, for they stand
instead of the proofs of the fact till the contrary be proved.
Gilb. ED. 157. The instance selected by Chief Baron Gilbert
to illustrate the nature of presumptions is, where a man is dis-
covered suddenly dead in a room, and another is found running
out in haste with a bloody sword ; this is a violent presumption
that he is the murderer ; for the blood, the weapon, and the
hasty flight, are all the necessary concomitants of such facts ;
Presumptions. 1 3
and the next proof to the sight of the fact itself is, the proof
of those circumstances that usually attend such fact. Id.
" The principal difference," observes an eminent writer on the
law of evidence, (1 Phill. Ev. 155.) " to be remarked between
civil and-criminal cases, with reference to the modes of proof by
direct or circumstantial evidence, is, that in the former, where
civil rights are ascertained, a less degree of probability may be
safely adopted as a ground of judgment than in the latter case,
which affects life and liberty." The same doctrine is asserted
by Mr. M'Nally, in his Rules of Emlence on Pleas of the
Crown, p. 578. *' Every thing/' he observes, " is a doubt in a
civil case, where the jury weigh the evidence, and having struck
a fair balance, decide according to the weight of the evidence.
This, however, is not the rule in criminal cases, for it is an
established maxim, that the jury are not to weigh the evidence,
but in cases of doubt to acquit the prisoner." The soundness
of this distinction may, perhaps, be doubted. The rules adopted
with regard to the admission of presumptions in civil cases, are
grounded on the principle that they tend to the discovery of the
truth, and the consequences which are to ensue upon 'that
discovery seem to have no bearing upon the application of the
rule. Great caution is, doubtless, necessary in all cases of pre-
sumptive evidence, and, accordingly, Lord Hale has laid down
two rules with regard to the acting upon such evidence in
criminal cases. " I would never," he says, " convict any
person of stealing the goods of a certain person unknown, merely
because he would not give an account how he came by them,
unless there was due proof made that a felony was committed of
these goods." And again, " I would never convict any person
of murder or manslaughter, unless the fact were proved to be
done, or at least, the body found dead." 2 Hale, 290. So it is
said by Sir William Blackstone, 4 Comm. 358, that all pre-
sumptive evidence of felony should be admitted cautiously, for
the law holds that it is better that ten guilty persons escape,
than that one innocent suffer. The following case on this
subject was cited by Garrow, arguendo, in Hindmarsh's case,
2 Leach, 571. The mother and reputed father of a bastard
child, were observed to take it to the margin of the dock in
Liverpool, and after stripping it, to throw it into the dock. The
body of the infant was not afterwards seen, but as the tide of
the sea flowed and reflowed into and out of the dock, the learned
judge who tried the father and mother for the murder of their
child, observed, that it was possible the tide might have carried
out the living infant, and the prisoners were acquitted.
General instances of presumption.] As almost every fact is
capable of being proved by presumptive as well as by positive
evidence, it would be impossible to enumerate the various cases
in which the former evidence has been admitted. It may be
14 Presumptions.
useful, however, to state some particular instances of presumptive
proof which may occur in thd course of criminal proceedings.
Proof of the possession of land, or the receipt of rent, is
prima facie evidence of seisin in fee. Co* Lilt. 15. a. B. A . /'.
103. So possession is presumptive evidence of property. in
chattels. A deed or other writing thirty years old is presumed
to have been duly executed, provided some account be given of
the place where found, &c. B. N. P. 255. The licence of a
lord to enclose waste may be presumed after twelve or fourteen
years' possession, the steward of the lord having been cogni-
zant of it. Doe v. Wilson, 11 East, 56. The flowing of the
tide is presumptive evidence of a public navigable river, the
weight of such evidence depending upon the nature anfl situa-
tion of the channel. Miles v. Rose, 5 Taunt. 705, 1 Marsh.
313. S. C. R. v. Mmitague, 4 B. fy C. 602. The existence of
an immemorial custom may be presumed from an uncontra-
dicted usage of twenty years. JoUijfe's case, 2 B, &; C. 54,
3 D. Sf R. 240. S. C.
The law with regard to the presumption which length of ,
time affords in the case of the possession of property of
various kinds, is now regulated by the statute 2 & 3 Will. 4.
. 71.
Presumption of innocence and legality.] The Jaw presumes
a rrran to be innocent until the contrary is proved, or appears
from some stronger presumption. Where a woman, whose
husband twelve months previously had left the country, married
again, the presumption that she was innocent of bigamy was
held to preponderate over the usual presumption of the duration
of life. R. v. Inhab. of Twyning, 2 B. <5f A. 386. It is a rule
that illegality is never to be presumed, but the presumption is
that a party complies with the law. Siasons v. Dixon, 5 B. fy C.
758. Thus legitimacy is always presumed. Banbury Peerage
case, 2 Selw. N. P. 709. So where a letter is sent with a parcel
of goods, it will be presumed to relate to the goods, so as to
come within the proviso of 43 Cieo. 3. c. 81. Bennet v. Clough,
IB. % A. 461.
Upon the same principle it will be presumed, where persons
act in a public capacity, that they have been regularly ap-
pointed. Thus the fact of a person acting in the character of
a surrogate is prima facie evidence that he was duly appointed,
and had competent authority. Verelst's case, 3 Campb. 432.
ante, p. 7. So where a person acts as a special commis-
sioner, for taking affidavits. Howard's case, 1 Mocdy 6; Rob.
187. Ante, p. 7. So where a person acts as a peace
officer, justice of the peace, &c., it is a general presurrfp-
tion of law that he is duly authorised to do so. Per Butler,
J., Berryman v. Wise, 4 T. R. 366. Ante, p. 8. And on an
indictment for the murder of a constable in the execution of his
Presumptions. 15
duty, it has been held not to be necessary to produce his ap-
pointment, it being sufficient if he was known to act as con-
stable. Gordon's case, 1 Leach, 515., 1 East, P. C. 352. S.C.
ante, p. 7.
Of guilt arising from the conduct of the party charged, at
the time of or after the charge.] In almost every criminal
case a portion of the evidence laid before the jury consists of
the conduct of the party at the time of, or after being charged
with the offence. Thus it is frequently proved that upon being
charged he fled, or endeavoured to make his escape. Upon
this proof it is said by Smith, B. that he had the authority of
the law to say, that though a man charged with an offence
should fly, that it is not conclusive evidence of guilt. The jury
could not forget that one of the oaths they had taken was,
whether the prisoner had fled in consequence of the charge
made on him ; but though it should be established that he fled
in consequence of the charge, yet it did not follow of necessity
that he was guilty of the murder ; though it was a circumstance
materially unfavourable and suspicious. Crawley's case, 40
Geo. 3. M'Nallii on Ev. 577. The introduction of a false-
hood into the defence is also a presumption against a prisoner.
This presumption is heightened if the falsehood is to be sup-
ported, as it almost necessarily must be, by a witness conscious
of it. Clarke's case, Bury Spring assizes, 1789, Gilb. Ev. by
Loft, 898. M'Nallii on Ev. 580. No presumption of guilt arises
from the silence of a prisoner when, on his examination before a
magistrate, he" is charged by another prisoner with having been
joined in the commission of the offence. Applet's case, 3
Stark. 33. Vide post.
In weighing the effect of the presumptive evidence furnished
by the conduct of a person charged with the criminal offence,
great caution should be exercised. An innocent man finding
himself in a situation of difficulty, and perhaps from the cir-
cumstances of the case, of danger, is sometimes induced to
adopt a line of conduct which bears with it a presumption of
guilt. A strong instance of this is to be found in Hale, 2 P. C.
290. (n.) The case was thus; An uncle, who had the bringing
up of his niece, to whom he was heir at law, correcting her
for some offence, she was heard to say, Good uncle, do not kill
me! after which she could not be found. The uncle was com-
mitted on suspicion of having murdered her, and was admo-
nished by the judge of assize, to find out the child by the next
assizes. Being unable to discover his niece, he brought another
child, dressed like his niece, and resembling her in person and
years ; but, on examination, the fraud was detected, and
upon the presumption of guilt which these circumstances
afforded, he was found guilty and executed. The child after-
wards re-appeared, when of age, to claim her land. On being
16 Presumptions.
beaten by her uncle, she had run away, and had been received
by a stranger.
Various other instances of the presumption of guilt arising
from the conduct of the party before the charge, will be found
in the following pages.
Presumption of guilt arising from the possession of stolen,
property, fyc.~\ The most common case of presumptive evi-
dence in criminal proceedings, is the presumption arising from
the possession of stolen property. The rules on this subject
are well'stated by Mr. East. It may be laid down generally,
he says, that whenever the property of one man, which has
been taken from him without his knowledge or consent, is found
upon another, it is incumbent on that other to prove how he
came by it ; otherwise the presumption is, that he obtained it
feloniously. This, like every other presumption, is strength-
ened, weakened, or rebutted by concomitant circumstances, too
numerous in the nature of the thing to be detailed. It will be
sufficient to allude to some of the most prominent ; such as the
length of time which has elapsed between the loss of the pro-
perty, and the finding it again ; either as it may furnish more
or less doubt of the identity of it, or as it may have changed
hands oftener in the meantime, or it may have increased the
difficulty to the prisoner of accounting how he came by it ; in
all which considerations that of the nature of the property
must generally be mingled. So the probability of the prisoner's
having been near the spot, from whence the property is supposed
to have been taken, at the time ; as well as his conduct during
the whole transaction, both before and after the recovery, are
material ingredients in the investigation. But the bare cir-
cumstance of finding in one's possession property of the same
kind which another had lost, unless that other can, from marks
or circumstances, satisfy the court and jury of the identity of it,
is not in general sufficient evidence of the goods having been
feloniously obtained. Though where the fact is very recent, so
as to afford a reasonable presumption that the property could
not have been acquired in any other manner, the court are war-
ranted in concluding it is the same, unless the prisoner can
prove the contrary. Thus, a man being found coming out of
another's barn, and upon search, corn being found upon him of
the same kind with what was in the barn, is pregnant evidence
of guilt. So persons employed in carrying sugar and other
articles from ships, and wharfs, have often been convicted of
larceny at the Old Bailey, upon evidence that they were de-
tected with property of the same kind upon them, recently upon
coming from such places, although the identity of the property,
as belonging to such and such persons, could not otherwise be
proved. But this must be understood of articles like those
above mentioned, the identity of which is not capable of strict
Presumptions. 17
proof from the nature of them. 2 East, P. C. 656. The
fact of concealment (the identity of the property not being /
proved) is not of itself evidence of stealing, though unv
doubtedly very strong corroborative proof of it. Id. 657.
3 lust. 98.
Where stolen property was found in the possession of a per-
son, but sixteen months had elapsed since the larceny, Bayley
J. held that the prisoner could not be called on to account for the
manner in which it came into his possession. Anon. 2 C. fy P.
459. Where seventy sheep were stolen on Thorley common,
on the 18th June, but were not missed till November, and the
prisoner was in possession of four of the sheep, in October, and
of nineteen others on the 23d November, Bayley J. allowed evi-
dence of the possession of both to be given. Dewh urst's case,
2 Stark. Ev. 449. (n.) 2d ed.
Cases frequently arise of the discovery of property recently
after its being stolen, in the house of a particular person, but
the weight of this evidence must depend upon the accompanying
circumstances of the case. It is to be carefully observed, says
Mr. Starkie, that the mere finding of stolen goods in the house
of the prisoner, where there are other inmates capable of steal-
ing the properly, is insufficient evidence to prove a possession by
the prisoner. 2 Stark. Ev. 450, (H.) 2d ed.
In order to render evidence of the possession of stolen pro-
perty admissible, it is not necessary that the discovery should
take place before the apprehension of the prisoner. Iu Watson's
case, 2 Stark. 139, Lord Ellenborough cited a case from recol-
lection, where a butler to a banker had been taken up on
suspicion of having committed a great robbery. The pri-
soner had been seen near the privy, and the circumstance
having excited suspicion in the minds of the counsel, who con-
sidered the case during the York assizes, at their instance, sea.xh
was made, and in the privy all the plate was found. The plate
was produced, and the prisoner was in consequence convicted.
He had been separated from the custody of the plate since he
had been confined in York Castle for some time, but no doubt
was entertained as to the admissibility of the evidence ; and
Abbott, J. observed that an assize had scarcely ever occurred,
where it did not happen that part of the evidence against a pri-
soner consisted of proof that the stolen property was found in his
house after his apprehension.
The possession of stolen property is sometimes used, not as
presumptive evidence of the fact of larceny, but as pi oof of the
commission of another offence. Thus on a charge of arson, the
evidence of the prisoners' having been present and implicated
in the fact was, that a bed and blankets were afterwards found
in their possession, which had been taken out of the house at
the time it was fired, and concealed by them ; Buller, J.
doubted at first whether such evidence of another felony could
1 8 Presumptions.
be admitted in support of this dfarge, but as it seemed to
be all one act, he admitted il^Tiickmun's case, 2 East, P. C.
1035.
Where two prisoners wirfe jointly indicted for stealing two
horses, the property of jHnerent persons, and it appeared that
the original larceny was in Somersetshire, on different days,
and in different places, but the prisoners were found in joint
possession of them in Wilts, where they were indicted ; on an
objection that the prosecutor must elect upon which of the fe-
lonies to proceed, Littledale, J. said, "If you could confine
your evidence entirely to a single felony in this county, you
need not elect ; but this you cannot do, for you must prove
that the horses were originally stolen in another county. The
possession of stolen property, soon after a robbery, is not in
itself a felony, though it raises a presumption that the possessor
is the thief ; it refers to the original taking with all its circum-
stances." Smith's case, Ry. $f Moo. IV. P. C. 295.
In the application of the evidence respecting the possession
of stolen property great caution is necessary. " If a horse be
stolen from A." says Lord Hale, " and the same day B. be
found upon him, it is a strong presumption that B. stole him ;
yet I do remember, before a very learned and wary judge, in
such an instance B. was condemned and executed at Oxford
assizes ; and yet within two assizes after, C. being apprehended
for another robbery, upon his judgment and execution confessed
he was the man that stole the horse, and being closely pur-
sued, desired B., a stranger, to walk his horse for him while he
turned aside upon a necessary occasion, and escaped, and B.
was apprehended with the horse, and died innocently." 2 Hale,
P. C. 289. The following remarks by Mr. East on this sub-
ject are well deserving of attention. " It has been stated be-
fore, that the person in whose possession stolen goods are found
must account how he came by them, otherwise he may be pre-
sumed to be the thief ; and it is a common mode of defence,
to state a delivery by a person unknown, and of whom no evi-
dence is given ; little or no reliance can consequently be had
upon it. Yet cases of that sort have been known to happen,
where persons really innocent have suffered under such a pre-
sumption, and therefore, where this excuse is urged, it is a
matter of no little weight to consider how far the conduct of the
prisoner has tallied with his defence, from the time when the
goods might be presumed to have first come into his possession."
2 East, P. C. 665.
Presumption of malice, <Sfc.] Where a man commits an un-
lawful act, unaccompanied by any circumstances justifying the
commission of it, it is a presumption of law that he has acted
advisedly, and with an intent to produce the consequences which
have ensued. See Dixon's case, 3 M. fy S. 15. Thus a pre-
Presumptions. 19
sumption of malice arises in many cases. In every charge of
murder, says Mr. Justice Foster, the fact of killing being first
proved, all the circumstances of accident, necessity, or infirmity,
are to be satisfactorily proved by the prisoner, unless they arise
out of the evidence produced against him, for the law presumes
the fact to be founded in malice, until the contrary appears.
Foster, 255. 1 Hale, P. C. 455. 1 East, P. C. 340. Where a
man was convicted of setting fire to a mill, with intent to injure
the occupiers thereof, a doubt occurred whether, under the
words of 43 G. 3. c. 58. an intent to injure or defraud some
person was not necessary to be proved ; or at least some fact
from which such intention could be inferred, beyond the mere
act of setting the mill on fire ; but the judges were of opinion
that a person who does an act wilfully, necessarily intends that
which must be the consequence of the act, viz. injury to the
owner of the mill burned. Farrington's case, Russ. fy fii/. 207.
See also Phelp's case, 1 Moody, C. C. 263.
Presumption r>f intent to defraud.] An intent to defraud
may be presumed where the effect of the act committed by the
party is to defraud~an6fher party. Thus where a person was
indicted for disposing of a forged bank note, with intent to de-
fraud the Bank of England, and the jury found that the inten-
tion of the prisoner was to defraud whoever might take the note,
and that the intention of defrauding the bank in particular did
not enter into his contemplation, a question was submitted to
the judges, whether an intention to defraud the bank ought to be
inferred, where that intention was not likely to exist in the pri-
soner's mind, and where the caution ordinarily used would
naturally protect the bank from being defrauded ? Their Lord-
ships were of opinion, that the prisoner, upon the evidence in
this case, must be taken to have intended to defraud the bank,
and consequently that the conviction was right. Mazagora's
case, Russ. & Ru. 291. And even where the prosecutor, on an
indictment for forging a receipt with intent to defraud him,
swore that he believed the prisoner had no such intent, the
judge told the jury that the defrauding being the necessary
effect and consequence of the forgery, it was sufficient evidence
of the intent of the prisoner for them to convict him ; and he
was convicted accordingly. The twelve judges held the con-
viction to be right. Sheppard's case, Russ. and Ru. 169. See
also Phelp's case, I Moody, C. C. 263.
Presumption of the duration of life.'} Tn analogy to the sta-
tute respecting bigamy, (vide post " Bigamy,") at the expiration
of seven years from the period when a person was last heard
of, he will be presumed to be dead, Doe TJ. Jesson, 6 East, 84,
Doe v. Deakin, 4 B. & A. 433 ; and with the addition of other
circumstances, the presumption may arise at an earlier period.
ritians.
20 Presumpti
Thus evidence that a person siriled in a ship bound for the
West Indies, two or three yejrfsago, and that the ship has not
been since heard of, is preiomptive evidence of the death of the
party ; but the time ofiffi death, if material, must depend upon
the particular circumstances of the case. Watson v. King, 1
Stark. 121. The Act of the party being dead or alive at any
particular perioi x within or at the end of the seven years, must
be proved by .the party asserting that fact. Doe t>. Nepean, 5
B, gf Ad. a<5.
Jr
HEARSAY.
General Nature of hearsay Evidence . . 20
Hearsay admissible
As part of the Res Gesta . . .20
On Questions of Pedigree . . .22
On Questions of Public Right . . .22
Of Persons having no interest to misrepresent . 23
Dying Declarations in general . , .23
Admissible only in cases of Homicide . . 24
The party must be aware of his situation . 25
When reduced into writing . . .27
Evidence in Answer to proof of . .27
General nature of hearsay evidence."] Evidence of facts with
which the witness is not acquainted of his own knowledge, but
which he merely states from the relation of others, is inadmis-
sible upon two grounds. 1st, that the party originally stating
the facts does not make the statement under the sanction of an
oath ; and 2dly, that the party against whom the evidence is
offered would lose the opportunity of examining into the means
of knowledge of the party making the statement. Where,
however, the peculiar circumstances of the case are such as to
afford a presumption that the hearsay evidence is true, it is then
admissible, as in the following instances.
Hearsay admissible us part of the res gesta: .] Where the
inquiry is into the nature and character of a certain transaction,
not only what was done, but also what was said, by bnth parties,
during the continuance of the transaction is admissible, for to
exclude this would b.e to exclude the most important and unex-
Hearsay. 21
ceptionable evidence. In this case, it is not the relation of
third persons unconnected with the fact, which is received,
but the declarations of the parties to the fact themselves, or of
others connected with them in the transaction, which are ad-
mitted for the purpose of illustrating its peculiar character and
circumstances. Thus it has been held on a prosecution for
high treason, that the cry of the mob who accompanied the
prisoner, may be received in evidence as part of the transac-
tion. Lord G. Gordon's case, 21 How. St. TV. 535. So in a
prosecution for a rape, the fact of a woman having made a
complaint soon after the assault took place, is evidence ; but it
was ruled by Holroyd, J. that the particulars of her complaint
would not be given in evidence, Clarke's case, '2 Stark. N. P. C.
242. By the laws of Scotland, the particulars of such decla-
rations, when made de recenti, are allowed to be given in evi-
dence. Thus in a case of rape, followed by cutting and
stabbing, the account which the woman gave when she returned
home, all bleeding, the following morning, of the way in which
she had been used by the prisoner, was allowed to be fully
laid before the jury, though she had just before been examined
herself. M'Cartney's case, 1828, Alison, Prac. Crim. Law of
Scotl. 514. And in another case of rape, the account which
the woman gave to several witnesses the next day, was laid
without reserve before the jury. M'Kenzie's case, Id. But this
privilege is extended to those accounts only which are con-
nected more or less directly with the res gestcc of the inquiry,
or which were so recently given after it, as to form in some sort
a sequel to the actual violence. Id. 515. On an indictment
for an assault on a child with intent to ravish, the fact of her
having complained of the injury recently after it was received,
is confirmatory evidence. Brazier's case, 1 East, P. C. 444.
Again, in actions of assault, what a man has said of himself
to his surgeon, is admissible to show what he has suffered by
the assault. Per Lawrence, J. Avisou v. Kinnaird, 6 East,
198. So where a man was killed in consequence of having
been run over by a cabriolet ; on an indictment against the
driver for manslaughter, it was held that what the man said
immediately after receiving the injury, was admissible in evi-
dence, i Foster's case, 0. B., 6 C. P. 325. So inquiries
from medical men, with the answers to them, are evidence of
the state of health of the patients at the time, and the symp-
toms and conduct of the parties themselves at the time, are
always received in evidence upon such injuries, and must be
resorted to from the very nature of the thing. Per Lord
Ellenborongh, Avison v. Kinnaird, 6 East, 195.
The following instances of hearsay, admissible as part of the
res gestte are mentioned by Mr. Phillipps. If it be material to
inquire whether a certain person gave a particular order on a
certain subject, what he has said or written, may be evidence
22 Hearsay.
of the order ; (see Jenkins's case, Lewin, C. C. 114) ; or where
it is material to inquire whether a certain fact, be it true or
false, has come to the knowledge of a third person, what he
has said or written, may as clearly show his knowledge, as
what he has done. Where it is relevant and material to in-
quire into the conduct of rioters, what has been said by any of
the party in the act of rioting, must manifestly be admissible
in evidence, as showing their design and intention. On a
charge of larceny, where the proof against the prisoner is that
the stolen property was found in his possession, it would be
competent to show on behalf of the prisoner, that a third per-
son left the property in his care, saying that he would call for
it again afterwards ; for it is material in such a case, to inquire
under what circumstances the prisoner first had possession of
the property. 1 Phill. Ev. 223.
Hearsay admissible on questions of pedigree.] The written or
verbal declarations of deceased members of a family, are ad-
missible on questions of pedigree. Declarations in a family,
descriptions in a will, inscriptions upon monuments, in Bibles
and registry books, are all admitted upon the principle that
they are the natural effusions of a party, who must know the
truth ; and who speaks upon an occasion when the mind
stands in an even position, without any temptation to exceed or
fall short of the truth. Per Lord Eldon, Whiielocke v. Baker,
13 Ves. 514. The declarations must be from persons connected
by family or marriage with the person to whom they relate, and
therefore what has been said by servants and intimate acquaint-
ances, is not admissible. Johnson v. Lawson, 2 Bingh. 86,
9 B. Moore 183, S. C. If the declarations have been made
after a controversy arisen with regard to the point in question,
they are inadmissible. Berkeley Peerage case, 4 Campb. 415.
Rose. Dig. Ev. N. P. 21.
Hearsay admissible on questions of public right.'] On ques-
tions of public right, as a manorial custom (Denn v. Spray,
1 T. R. 466,) the boundaries between parishes and manors,
(Nicholls v. Parker, 14 East, 331) ; hearsay or public reputa-
tion is admissible. But reputation is not evidence of a parti-
cular fact. Weeks v. Sparke, 1 M. # S. 687. Declarations of
this kind are not evidence post litem motam. Cotton's case,
3 Campb. 444. Declarations of old persons, concerning the
boundaries of parishes, have been received in evidence, though
they were parishioners and claimed rights of common on the
waste, which the declarations had a tendency to enlarge.
Nicholls v. Parker 14 East, 331. Plaxton v. Dare, 10 B. <3f C.
19. Where the question is whether certain lands are in th
parish of A or B., ancient leases in which they are described
as lying in parish B. are evidence of reputation that the lands
hearsay. 23
are in that parish. Plaxton v. Dare, 10 B. 3f C. 17 ; and s.ee
Brett v. Beales, M. % M. 416.
Hearsay admissible of persons having no interest to misrepre-
sent, or speaking against their own interest.] Where a person
having no interest to misrepresent, in the course of his em-
ployment makes a declaration, such declaration has in certain
cases been admitted in evidence ; as where an attorney's clerk
indorsed a memorandum of delivery on his master's bill, ihis
after his death, was held to be evidence of the delivery. Champ-
nens v. Peek, 1 Stark. 404. See also Fitrness v. Cope, 5 Bingh.
114, Chambers v. Bernasconi, 1 C. M. <5f E. 347.
So the declarations of deceased persons made against their
own interest are admissible, as where a man charges himself
with the receipt of money, it is evidence to prove the payment.
Goss v. Watlington, 3 B. ft B. 132. Whitnash v. George,
8 B. $ C. 556. So a statement by a deceased occupier of
land, that he rented it under a certain person, is evidence of
such person's seisin. Uncle v. Watson, 4 Taunt. 16. In all
these cases it must appear that the effect of the declaration is
to charge the party making it. Culvert v. Archbishop of Cant.
2 Esp. 646.
Dying declarations in general."] Analogous to the cases in
which hearsay evidence is admissible, as being part of the res
sesttf, are the cases of dying declarations. Evidence of this
kind, which is peculiar to the case of homicide, has been con-
sidered by some to be admissible from necessity, since it often
happens, that there is no third person present to be an eye
witness to the fact, and the usual witness in other felonies,
viz. the party injured himself, is got rid of. 1 East, P. C. 353.
But it is said by Eyre, C. B. that the general principle upon
which evidence of this kind is admitted, is, that it is of de-
clarations made in extremity, when the party is at the point
of death, and when every hope of this world is gone, when
every motive to falsehood is silenced, and the mind is induced
by the most powerful considerations to speak the truth. A
situation so solemn and so awful, is considered by the law as
creating an obligation equal to that which is imposed by an
oath administered in court. Woodcock's case, 1 Leach, 502.
\Vhere the deceased, whose declarations are offered in evi-
dence as to the cause of death, has been particeps criminis,
(as a woman who has been killed by attempting to procure
abortion), they are, nevertheless, as it seems, admissible against
the other party. In Tinckler's case, 1 East, 354, where such
evidence was received, the judges, on an objection to it, an-
swered, that if two persons be guilty of murder, and one be
indicted and the other not, the party not indicted is a witness
tor the crown ; and though the practice be not to convict on
24 Hearsay.
such proof uncorroborated, yet the evidence is admissible. The
dying declarations of a convicted felon haye been rejected,
on the ground, that as, if alive, his evidence could not have
been received, so after his death his dying declarations are inad-
missible. Drummond's case, 1 Leach, 337, 1 East, P. C. 353.
It should be observed, that the declarations in this case were also
objectionable, as having no relation to a question of homicide,
but being merely a confession that the party had committed a
robbery, for which another person was indicted.
Dying declarations admissible only in cases of homicide, where
the circumstances of the death are the subject of the declaration.]
It is a general rule that dying declarations, though made with
a full consciousness of approaching death, are only admissible
in evidence where the death of the deceased is the subject of
the charge, and the circumstances of the death the subject of the
dying declarations. Per Abbott, C.J. Mead's case, 2 B.$fC. 600.
Therefore, where a prisoner was indicted for administering savin
to a woman pregnant, but not quick with child, with intent to
procure abortion, and evidence of the woman's dying declara-
tions was tendered, Bayley, J. rejected it, observing, that al-
though the declarations might relate to the cause of the death,
still such declarations were admissible in those cases only,
where the death of the party was the subject of inquiry. Hutch-
inson's case, 2 B. ty C. 608. (n.) A man having been con-
victed of perjury, a rule for a new trial was obtained, pending
which, the defendant shot the prosecutor, who died. On show-
ing cause against the rale, an affidavit was tendered of the
dying declarations of the prosecutor, as to the transaction, out
of which, the prosecution for perjury arose ; but the court were
of opinion that this affidavit could not be read. Mead's case,
2 B. fy C. 605, 4 D. $ K. 120. S. C. So evidence of the
dying declarations of the party robbed, has been frequently
rejected on indictments for robbery. Lloyd's case, 4 C. fy P.
233, alsn by Mr. Justice Bay ley, on the Northern Spring Circuit,
1822, and by Mr. Justice Best, on the Midland Spring circuit,
1822. 1 Phill. Ev. 225. (n.)
In one or two civil cases, an exception has been made to this
rule. Thus, Heath, J. admitted the confession of an attesting
witness to a bond, who, in his dying moments, begged pardon
of Heaven for having been concerned in forging the instrument.
Vide 6 East, 195. So in Wright v. Littler, 3 Burr. 1244,
evidence of a dying concession of a witness to a bond was ad-
mitted. See Mead's case, 2 B. <5f C. 608. But it has been
held in an action of ejectment, that the dying declarations of a
person on a question of pedigree (the deceased not being a re-
lation, or in any manner connected with the parties) cannot be
received in evidence. Doe v. Ridgeway, 4 B. <5f A. 53.
i;
Hearsay. 25
Dying declarations admissible t! e party must be aware oflia
situation.'] Dying declarations are only admissible where the
party making them, knows or thinks that he is in a dying state.
Positive evidence of this know ledge is not required ; but it may be
inferred from the general conduct and deportment of the party.
Nor is it necessary to prove expressions of apprehension of
immediate danger, if it be clear that the party does not expect to
survive the injury. Banner's case, 6 C. $ P. 386. Where a
woman who had been dreadfully wounded, and who afterwards
died of the wounds, made a declaration, the question was,
whether it was made under the impression that she was dying.
The surgeon said that she did not appear to be at all sensible of
the danger of her situation, dreadful as it seemed to all around
her, but lay quietly submitting to her fate, without explaining
whether she thought herself likely to live or die. Eyre, C. B.
was of opinion that inasmuch as she was mortally wounded,
and was in a condition which rendered immediate death almost
inevitable, as she was thought by every person about her to be
dying, though it was difficult to get from her particular ex-
ilanations as to what she thought of herself and her situation,
er declarations made under these circumstances were to be
considered by the jury as being made under the impression of
her approaching dissolution ; for, resigned as she appeared to
be, she must have felt the hand of death, and must have con-
sidered herself as a dving woman. Woodcock's case, 1 Leach,
503. Again, in another case it was held by all the judges,
that if a dying person either declares that he knows his danger,
or it is reasonably to be inferred from his wound or state of
illness, that he is sensible of his danger, his declarations are
good evidence. Johns' s case, 1 East, P. C, 357, 1 Leach, 504,
(n.) S. C. The prisoner was tried for the rape and murder of
a young girl of sixteen. The deceased lived only a few days
after the perpetration of the offence, the particulars of which
she communicated to her aunt, but did not intimate that she
considered herself in a dying condition, or that she had any
apprehension of immediate death. It appeared, however, that
previous to making this declaration, she had confessed, had
been absolved, and had received extreme, unction from a
priest, and that these are considered the last rites adminis-
tered in the Catholic Church, and are esteemed sacraments
by its disciples. Lord Kilwarden, C. J. with the concur-
rence of Kelly, J. admitted these declarations in evidence.
Minion's case, 40 Geo. 3. 1 M'Nally, 386. A man named
Welbourne was indicted for poisoning his fellow servant,
Elizabeth Page. She declared to the surgeon who attended
her that she was with child by Welbourne, and by his
persuasion had been taking bitter apple and a white powder,
which was found to be arsenic, for the purpose of procuring
26 Hearsay.
abortion. She had recently been in great pain, and was ex-
tremely ill, apparently dying, and seemed to be sensible of her
situation and danger, though she did not say so, but at the time
she made the declaration she was free from pain, mortification
having, in the opinion of the apothecary, taken place, and from
being so free from pain he believed that she thought she was
getting well. The declaration was received, and the prisoner
was found guilty, but the case was referred to the judges on
the question, that although in the first part of the apothecary's
evidence, he swore that he made the deceased sensible of her
danger before she made the declaration, yet, as he afterwards
said that at the time she made the declaration she believed she
was getting better, from the pain ceasing, the evidence ought
to have been rejected ; and a majority of the judges were of
opinion, that it did not sufficiently appear that the deceased
knew or thought, when she made the declaration, she was in a
dying condition ; on the contrary, she had reason to think that
if she told what was the matter with her she might have relief
and recover. Melbourne's case, \ Leach, 503 (n), 1 East', P. C
358. S. C. The deceased asked his surgeon if the wound was
necessarily mortal, and on being told that a recovery was just
possible, and that there had been an instance where a person
had recovered from such a wound, replied " I am satisfied,"
and after this made a statement; it was held by Abbott, C. J.
and Park, J. to be inadmissible as a declaration in articulo
mortis, since it did not appear that the deceased thought him-
self at the point of death ; for being told that the wound was
not necessarily mortal, he might still have had a hope of reco-
very. Christie's case, 0. B. 1821, Carr. Spp. C. L. 202.
Where, on the day of receiving the injury, the deceased said he
should not'get better, and continued to say so to his nurse till the
day of his death, which occurred eleven days afterwards, it was
held that a declaration made on the day of his receiving the
injury was admissible, although he had never expressed to the
surgeon who attended him any opinion either of hope or appre-
hension, and although the surgeon thought there was a proba-
bility of recovery till the day before his death, which opinion
however was not communicated to the patient. Moslem's case,
1 Moo. C. C. 97. Where the deceased was of so tender an age
as not to be aware of the nature of his situation, his dying de-
clarations are not admissible. Thus on an indictment for the
murder of a girl four years of age, Park, J. refused to re-
ceive evidence of her declarations, observing, that however
precocious her mind might be, it was impossible that she could
have had that idea of a future state that is necessary to make
such a declaration admissible. In this decision Mr. Justice
James Parke concurred. Pike's case, 3 C. $ P. 598. Where
the proof of the deceased's knowledge of his situation was that
Hearsay. 27
he said " he should never recover," Hullock, B. rejected the
declaration, observing, " a man may receive an injury from
which he may think that ultimately he shall never recover,
but that would not be sufficient to dispense with an oath." Van
Butcheil'scase, 3 C. <Sf P. 631. Where the party being con-
fined to bis bed, said to his surgeon, " 1 am afraid, doctor, I
shall never get better," and soon afterwards made a statement
and died, Hullock, B. admitted this as a dying declaration.
Craven's case, Lewin, C. C. 77. The surgeon said to the party,
" You are in great danger," to which he answered, " I fear 1
am," and after this made a statement. Though he afterwards
recovered so far as to think himself out of danger, the statement
was admitted by Bayley, J. Simpson's case, Lewin, C. C. 78.
See also Mosley's case, Id. 79. Smith's case, Id. 81.
Dying declarations where reduced into writing.'] Where the
deceased made three several declarations at three several times
in the course of the same day, as to the cause of the injury he
had sustained ; and the first and third accounts were not re-
duced into writing, but the second was taken down in writing,
in the presence of a magistrate, by the same person to whom
the former account was given ; the account in writing being re-
tained by the magistrate, who was not called, it was held
(Pratt, C. J. diss.) that the accounts given by the deceased
were distinct facts, and that there was no reason to exclude the
evidence as to the first and third declaration, because the prose-
cutor was disabled from giving an account of the second. Rea-
son's case, 1 Str. 500, 16 How. St. Tr. 31. S. C. The pri-
soner was indicted for wilful murder. Depositions of the de-
ceased, taken in writing by a magistrate, in the hospital where
he lay, but not in the presence of the prisoner, were offered in
evidence ; it being objected that these depositions could not be
read, as not having been taken pursuant to the statute 10 Car.
c. 1. (Irish), Downs, J. ordered the magistrate to be sworn,
and he having deposed that the deceased, at the time of making
those depositions, was impressed with the fear of immediate
death, his parol testimony of the facts declared by the deceased
was admitted. Callaghan's case, Cork Ass. 1793, 1 M'Nally,
385.
Dying declarations evidence in answer to proof of.] As the
declarations of a dying man are admitted, on a supposition that
in his awful situation, on the confines of a future world, he had
no motive to misrepresent, but, on the contrary, the strongest
motives to speak without disguise and without malice, it neces-
sarily follows that the party against whom they are produced in
evidence may enter into the particulars of his state of mind,
and of his behaviour in his last moments ; and may be allowed
c2
28 Confessions.
to show that the deceased was not of such a character, as was
likely to be impressed with a religious sense of his approaching
dissolution. 1 Phitl. Ev. 226.
CONFESSIONS.
Effect of, in general . . . .28
Mnst be voluntary . . . .29
Cases in which they have been held inadmissible . 29
Cases in which they have been held admissible . 30
Cases where Witnesses have made statements, and have
afterwards been tried for the same Offence . 36
Evidence of facts, the knowledge of which has been
obtained by improper Confessions, admissible , 36
Only evidence against the party making them . 38
By Agents . . . . .40
The whole of a Confession must be taken together , 41
Confessions of matters void in law, or false in fact . 42
Effect of, in general.'] A voluntary confession made by a
person who has committed an offence, is evidence against him,
upon which he may be convicted, although the confession is
totally uncorroborated by other evidence. Wheeling's case, 1
Leach, 311. (n.) Eldridge's case, Russ.fy Ry. 440. And even
where there is no other proof of the corpus delicti, as where, on
an indictment for robbery, the party robbed did not appear at
the trial, it was held by the twelve judges, that the prisoner
was properly convicted on his own confession. Falkner's
case, Russ. &; Ry. 481. White's case, Id. 508. Tippet's case,
Id. 509.
With regard to the degree of credit, which a jury ought to
attach to a confession, much difference of opinion has existed.
By some, it has been considered as forming the highest and
most satisfactory evidence of guilt Grose, J. delivering opinion
of the judges in Lambe's case, 2 Leach, 554. The voluntary
Confessions. 29
confession of the party in interest, says Chief Baron Gilbert, is
reckoned the best evidence, for, if a man swearing for his in-
terest can give no credit, he must certainly give most credit
when he swears against it. Gilb. Ev. 137. So it is stated by
the court in Warickshall's case, 1 Leach, 263, that a free and
voluntary confession is deserving of the highest credit, because
it is presumed to flow from the highest sense of guilt, and
therefore, it is admitted as proof of the crime to which it refers.
On the other hand, it is said by Mr. Justice Foster, (Discourses,
243.) that hasty confessions made to persons having no autho-
rity to examine, are the weakest and most suspicious of all
evidence. Proof may be too easily procured, words are often
misreported, through ignorance, inattention, or malice, and they
are extremely liable to misconstruction. Moreover, this evi-
dence is not, in the usual course of things, to be disproved by
that sort of negative evidence, by which the proof of plain
facts may be, and often is confronted. This opinion has also
been adopted by Sir VV. Blackstone. 4 Com. 357. It has
been said, that it is not to be conceived that a man would be
induced to make a free and voluntary confession of guilt, 'so
contrary to the feelings and principles of human nature, if the
facts confessed weie not true. 1 Phill. Ev. 103. It cannot
be doubted, however, that instances have occasionally oc-
curred, in which, innocent persons have confessed themselves
guilty of crimes of the gravest nature. Three men were tried
and convicted of the murder of a Mr. Harrison. One of them
confessed himself guilty of the fact, under a promise of pardon ;
the confession, therefore, was not given in evidence against him,
and a few years afterwards, it appeared, that Mr. Harrison was
alive. MS. case, cited 1 Leach, 264. (n.)
Must be voluntary cases in whic.h confessions haie been held
inadmissible afier promises, $fc.] A confession is not admissible
in evidence, unless it was made freely and voluntarily, and not
under the influence of promises or threats. " A confession
forced from the mind by the flattery of hope or the torture of
fear, comes in so questionable a shape, when it is to be con-
sidered the evidence of guilt, that no credit ought to be given
to it, and therefore it is rejected." Per Cm 1 . WarickshalFs case,
1 Leach, 263.
With regard to what is such a promise or threat as will ex-
clude a confession, it is laid down by Mr. East, 2 P. C. 659,
that saying to the prisoner, it will be worse for him if he do not
confess, or that it will be better for him if he do, is sufficient to
exclude the confession according to constant experience. Thus
where a surgeon called in to a prisoner, under a charge of
murder, said to her, " you are under suspicion of this, and you
had better tell all you know ;" and after this, the prisoner made
30 Confessions.
a statement to the surgeon, Mr. Justice James Parke, after con-
ferring with Mr. Justice Littledale, held that evidence of fthis
statement was inadmissible. Kingston's case, 4 C. fy P. 387.
So where a constable said to a prisoner charged with larceny,
" It is of no use for you to deny it ; for there are the man and
boy who will say they saw you do it ;" a confession made
after this, was rejected by Gurney, B. Mills's case, 6 C. fy P.
146. So where the words were, " It would have been better if
you had told at first." WaMey's case, 6 C. fy P. 175. So
where the prosecutor said, " if you will tell me where the pro-
perty is, I will be favourable to you ;" Gould, J. rejected the
evidence, saying, that the slightest hope of mercy held out to
a prisoner to induce him to disclose the fact, was sufficient to
invalidate a confession. Cass's case, 1 Leach, 293. (n.) So
where the prosecutor, on the prisoner, who had stolen his money,
being apprehended, said, " he only wanted his money, and if
the prisoner gave him that, he might go to the devil if he
pleased," upon which, the prisoner pulled some money out of
his pocket, and said it was all he had left of it ; it was held
bya majority of the judges that this evidence was inadmissible.
Jones's case, Russ. fy By. 152. sed vide Griffin's case, Id. 151.
post. Where a prisoner in custody said to the officer in charge
of him, " If you will give me a glass of gin, I will tell you all
about it ;" and two glasses of gin being given to him, he made
a full confession of his guilt,, Best, J. considered it as very
improperly obtained, and inadmissible in evidence. Sexton's
case, Chetw. Burn, Tit. Confession. But the authority of this
case has been doubted by an able text writer. 1 Deacon, Dig.
Cr. Law, 424. (n.) It certainly differs from the former deci-
sions in the circumstance of the offer to confess coming, in the
first instance, from the prisoner. So where a confession is made
with a view, and under the hope of being thereby permitted to
turn king's evidence, it is not admissible. Hall's case, cited, 2
Leach, 559. Though if he is admitted, and refuses to give evi-
dence on the trial of his accomplices, he may be convicted upon
such confession. Burley'scase, Stark. Ev.part iv.p. 23. 1st ed.
If a confession has been obtained from a prisoner by undue
means, any statement afterwards made by him under the influ-
ence of that confession cannot be admitted. White's case, M. T.
1800. 1 Phill. Ev. 104. vide post.
Must be voluntary cases in which confessions have been held
admissible.] It is not every hope of favour held out to a prisoner
that will render a confession afterwards made by him inadmis-
sible, the promise must, have some reference to his escape from the
charge. Thus where a man and his wife were in prison in
separate rooms, on a charge of stealing and receiving, and the
constable said to the man, " If you will tell where the pro-
perty is, you shall see your wife," Patteson, J . held that a con-
Confessions. 31
fession made afterwards was admissible. Lloyd's case, 6 C. if
P. 393.
Although a confession made under the influence of a promise
or a threat is inadmissible, there are yet many cases in which
it has been held, that notwithstanding such threat or promise
may have been made use of, the confession is to be received, if it
lias been made under such circumstances as to create a reason-
able presumption, that the threat or promise had no influence,
or had ceased to have any influence upon the mind of the
party.
Thus if the impression that a confession is likely to benefit
him has been removed from the mind of a prisoner, what he
says will be evidence against him, although he has been
advised to confess. Where the prisoner, on being taken
into custody, had been told by a person who came to assist the
constable, that it would be better for him to confess, but on his
being examined before the committing magistrate on the fol-
lowing day, was frequently cautioned by the magistrate to
say nothing against himself, a confession under these circum-
stances was held by Mr. Justice Bayley, to be clearly admis-
sible. Lingate's case, 1815. 1 Plrili. L'I -. 105. So where it
appeared that a constable told a prisoner he might do himself
some good by confessing, and the prisoner afterwards asked the
magistrate if it would be any benefit to him to confess, on
which the magistrate said, he would not say it would ; the
prisoner having afterwards, on his way to prison, made a con-
fession to another constable, and again in prison, to another
magistrate ; the judges unanimously held that the confessions
were admissible in evidence, on the ground that the magistrate's
answer was sufficient to efface any expectation which the con-
stable might have raised. .Hosier's case, East, T. 1821. 1
Plrill. Ev. 105. So it has been held to be no objection to a
confession made before a magistrate, that the prosecutor, who
was present, first desired the prisoner to speak the truth, and
suggested that he had better speak out ; as the magistrate
or his clerk immediately checked the prosecutor, desiring the
prisoner not to regard him, but say what he thought proper.
Edward's case, East, T. 1802. 1 Phill. Ev. 104. A prisoner
charged with murder, was visited by a magistrate, who told him
that if he was not the man who struck the fatal blow, he would
use all his endeavours and influence to prevent any ill con-
sequences from falling on him, if he would disclose what he
knew of the murder. The magistrate wrote to the secretary
of state, who returned an answer, that mercy could not be ex-
tended to the prisoner ; which answer was communicated to
the prisoner, who afterwards sent for the coroner, and desired
to make a statement to him. The coroner cautioned him, and
added that no hopes or promise of pardon could be held out to
him. Littledale, J. ruled that a confession subsequently made
32 Confessions.
by the prisoner to the coroner was admissible, for that the
caution given by the latter must be taken to have completely
put an end to all the hopes that had been held out. C levies' s case,
4 C. <5f P. 224. See also Howes' s case, 6 C. 8f P. 404. A girl
charged with poisoning, was told by her mistress, that if she did
not tell all about it that night, the constable would be sent for
next morning, to take her to S. (meaning before the magis-
trates there,) upon which the prisoner made a statement. The
next morning a constable was sent for, who took the prisoner
into custody, and on the way to the magistrates, without any
inducement from the constable, she confessed to him. Bosan-
quet, J. said, " I think this statement receivable. The in-
ducement was, that if she confessed that night, the constable
would not be sent for, and she would not be taken before the
magistrates. Now she must have known, when she made this
statement, that the constable was taking her to the magistrates.
The inducement therefore was at an end." Richards s case, 5 C.
$P.318.
It is said by Mr. Justice Buller, that there must be very
strong evidence of an explicit warning by a magistrate, not to
rely on any expected favour, and that it ought most clearly to
appear, that the prisoner thoroughly understood such warning,
before his subsequent confession can be given in evidence.
2 East, P. C. 658. In the following case the warning was not
considered sufficient. A confession having been improperly
obtained, by giving the prisoner two glasses of gin, the officer
to whom it had been made, read it over to the prisoner, before
a magistrate, who told the prisoner that the offence imputed to
him affected his life, and that a confession might do him harm.
The prisoner said, that what had been read to him was the
truth, and signed the papers. Best, J. considered the second
confession, as well as the first, inadmissible ; and said that had
the magistrate known that the officer had given the prisoner
g\r, he could, no doubt, have told the prisoner, that what he
had already said could not be given in evidence against him;
and that it was for him to consider whether he would make a
second confession. If the prisoner had been told this, what he
afterwards said would have been evidence against him ; but
for want of this information he might think that he could not
make his case worse than he had already made it, and under
this impression, might sign the confession before the magistrate.
Sexton's case, Burn, Tit. Confessions. So where the committing
magistrate told the prisoner, that if he would make a confession,
he would do all he could for him ; and no confession was then
made, but after his committal the prisoner made a statement to
the Turnkey, who held out no inducement, and gave no caution,
Parke J. said he thought the evidence ought not to be received,
after what the committing magistrate had said to the prisoner,
Confessions. 33
more especially as the Turnkey had not given any caution.
Cwper's case, 5 C. 8$ P. 535.
Where the promise or threat proceeds from a person who has
no power to enforce it, and who possesses no control over the
prisoner, a confession made under such circumstances is ad-
missible. Thus where some neighbours, who had nothing to
do with the apprehension, prosecution, or examination of a
prisoner, officiously interfered and admonished him to tell the
truth and consider his family, and no answer was made
either by the constable or the prisoner, but the latter, an hour
afterwards, confessed to the constable in prison, the confession
was held by the judges to be admissible, because the advice to
confess was not given or sanctioned by any peison that had any
concern in the business. Row's case, Rust. 6; Ry. 153, 1 Phiti.
Ei. 104. S. C. So where the counsel for a prisoner objected
to the admiisibility of a confession made before the committing
magistrate, and offered to prove that the wife of the constable
had told the prisoner some days before the commitment, that it
would be better for him to confess ; Wood, B. overruled the
objection, and admitted the confession. Hardwicke's case,
Aoff. Lent A^s. 1811. 1 Philt. Ev. 105. And where a witness
stated that he had held out no threat or promise to induce the
piisoner to confess, but that a woman who was present said,
that she had told the prisoner that she had better tell all, upon
which the prisoner made certain confessions to the witness,
Parke J., after consulting with II ul lock B. ruled, that as no
inducement had been held out by the witness, to whom the
confession was made ; and as the only inducement had been
held out by a person having no sort of authority, it must be
presumed that the confession to the witness was free and vo-
luntary. If the promise had been held out by any person
having any office or authority, as the prosecutor, constable, &c.,
the case would be different ; but here a peison having no
authority of any sort, officiously says, " you had better confess ;"
no confession follows, but some time afterwards the prisoner,
without any inducement held out, confesses to another person.
Gibbon's case, 1 C. if P. 97. So where it appeared that the
prisoner was told by a man thai another piisoner had told all,
and that he had better do the same to save his neck ; upon
which he confessed to the constable ; Hullock B. held that as
the promise (if any) was by a person wholly without authority,
the subsequent confession to the constable, who had held out
no inducement, must be considered as voluntary, and was
therefore evidence. Tyier's case, 1 C. if P. 129. In a late
case (Dunn's case, 4 C. <Sf P. 543) Mr. Justice Bosanquet is
reported to have said that ' anu person telling a prisoner that
it will be better for him to confess, will always exclude any
confession made to that person. Whether a prisoner's having
been told by one person, that it will be better for him to con-
c5
34 Confessions.
fess, will exclude a confession subsequently made to another
person, is very often a nice question, but it will always exclude
a statement made to the same person." These positions do not
appear to be supported by prior authorities. If after the pro-
mise has been made, such circumstances should take place, as
to induce a presumption that a subsequent confession has not
been made under the influence of that promise, there appears
to be no reason for rejecting the confession, because the person
to whom it is made, is the same to whom the former confession
was also made.
There is some difficulty in saying what is such a threat as will
influence the validity of a confession. In the following case
the circumstances were held not to opera'e as a threat or pro-
mise. The chief officer of the police at Liverpool, stated that
on the 18th November, the prisoner was apprehended by his
direction without any warrant, between twelve and one o'clock ;
and that he was carried to the police office about one o'clock.
The magistrates were then sitting at a very short distance, and
continued sitting till between two and three, but the prisoner
was not carried before them, because the police officer was en-
gaged elsewhere. The officer ordered the prisoner to Bridewell
of his own authority, between four and five o'clock, and be-
tween five and six o'clock he told the prisoner, that in conse-
quence of the falsehoods he had told, and the prevarications
he had made, there was no doubt but he had set the premises
on fire, and he therefore asked him if any person had been con-
cerned with him, or induced him to do it"! The prisoner said
he had not done it. The officer replied that he would not
have told so many falsehoods as he had, if he had not been
concerned in it, and he again asked him if any body had in-
duced him to do it 1 The prisoner then began to cry and made
a full confession. The prisoner was taken before he had dined,
and had had no food from the time he was apprehended until after
his confession. Mr. Justice Bayley thought it deserved consi-
deration, whether a confession so obtained, when the detention
of the prisoner was perhaps illegal, and where the conduct of
the officer was likely to intimidate, was admissible in evidence ;
and reserved the point for the opinion of the judges, a majority
of whom held the confession rightly received, on the ground
that no threat or promise had been used. Best, C. J. Bayley,
and Holroyd JJ. were of a contrary opinion. Thornton's
case, 1 Moody, C. C. 27. Where, on a prisoner being brought
up for examination, the magistrate told him that his wife had
already confessed the whole, and that there was enough against
him to send a bill before the grand jury, upon which the pri-
soner immediately made a confession ; the reception of the
confession was objected to, on the ground of its having been
made upon a threat, but Parke J. overruled the objection,
saying that he rather considered it as a caution. Wright's case
Confessions. 35
Letcin, C. C. 48. Where a prisoner, charged with arson, was
told "that there was a very serious oath laid against her by
B. B., who had sworn that she had set fire to O.'s rick," a
confession afterwards made by the prisoner, was received in
evidence. Long's case, 6 C. fy P. 179.
The threats or promises must have reference to some temporal
advantage, in order to invalidate a confession. Where a pri-
soner accused of a murder, had repeated interviews with a
clergyman, who urged him to repentance, telling him that
" before God it would be better for him to confess his sins,"
that " his tears respecting his participation in the dreadful
deed were fully confirmed, and that, while he was in that state
of mind, he (the chaplain) could afford him no consolation by
prayer," and subsequently to these exhortations, the prisoner
made a confession ; the judges were unanimously of opinion
that it was properly received in evidence, and the prisoner
was executed. Gilham's case, 1 Moody, C. C. 186, 2 Russ.
648. S. C. The prisoner being charged with setting fire to an
outhouse, her mistress pressed her to confess, telling her
amongst other things, that if she would repent and confess,
God would forgive her, but she concealed from her that she
would not forgive her herself. The prisoner having confessed,
another person, the next day, in her mistress's sight, though
out of her hearing, told her her mistress said she had confessed,
and drew from her a second confession. Lord Eldon, C. J.
admitted the confessions, and the prisoner was convicted.
The jury on having the confessions put to them, thought the
first confession made under a hope of favour here, and the
second under the influence of having made the first. On a
case reserved, the judges were of opinion that these points were
not for the jury ; but that if Lord Eldon agreed with the jury
(which he did), the confessions were not receivable ; but
many of the judges thought the expressions not calculated to
raise hopes of favour here, and if not, the confessions were
evidence. Nate's case, Clietw. Burn, Tit. Confession ; 2 Ritss.
648.
Where a confession has been obtained by artifice, but with-
out the use of promises or threats, it is admissible. Thus it
has been held, that it is no objection that the confession was
made under a mistaken supposition that some of the prisoner's
accomplices were in custody ; and even though some artifice
has been used to draw him into that supposition. Burley's
case, East, 7". 1818. 1 Plnit. Ev. 104. So where a prisoner
asked the Turnkey if he would put a letter into the post, and
on receiving a promise that he would do so, gave him the
letter, which was detained by the Turnkey, and given in evi-
dence as a confession at the trial, Garrow, B. received the
evidence. Derringtou's case, 2 C. fy P. 418.
80 Coirfessions.
Must be voluntary cases where witnesses have made state-
ments, and have ajteru-ards themselves been tried for the offence.}
A question sometimes arises whether a statement wliich has
been made by a party upon his examination as a witness, can
be given in evidence against him, if he should himself be put
upon his trial for the same offence. The general rule is, that
admissions made under compulsory process, are evidence
against the party. Rose, Dig. Ei\ A'. P. 36. So it is said by
Mr. Starkie, that when a witness answers questions upon his
examinations on a trial tending to criminate himself, and to
which he might have demurred, his answers may be used for all
purposes. 2 Stark. Ev. 28. 2<i ed. Thus upon an indictment
against a magistrate for misconduct in his office, evidence was
permitted to be given of what he had said upon his examina-
tion before a committee of the House of Commons, although it
was objected that as that examination was compulsory, his
admission could not be voluntary. Merceron's case, 2 Stark.
366. So where a person was brought up as a witness upon a
charge of aison, but attempting to run awav, was detained by
a constable, a statement made by him to the constable was
received in evidence against him, upon an indictment afterwards
preferred against him for the same offence, and he was con-
victed and executed. Swatkin's case, 4 C. if P. 548. But in
another case, where the prisoner had been examined on oath,
as a witness, touching a charge of poisoning, against another
person, and at the conclusion of the trial was committed for
trial himself on the same charge, upon his deposition being
tendered in evidence as a confession, Gurney B. is reported
to have said, " This being a deposition made by the prisoner at
the same time as all the other depositions, on which he was
committed, and on the very same day on which he was com-
mitted, 1 do not think the examination was perfectly voluntary."
Lewis's rate, 6 C.fy P. 161. It seems that this decision is at
variance with the general rule of law, and with the other cases
on the same subject. See Hcworth' sense, post, p. 45.
The examinations of persons under compulsory process, are
prohibited from being given in evidence against them, upon an
indictment for stealing a will or a writing relating to real es-
tate, under 7 & 8 G. 4. c. 29. ss. 22, 23, 24.
Must be voluntary evidence of facts, the knowledge of
ii'hich has been obtained by improper confessions, admiuibie.]
Although a confession obtained by means of promises or
threats, cannot be received, yet if, in consequence of that con-
fession, certain facts, tending to establish the guilt of the pri-
soner are made known, evidence of those facts may be received.
" A fact," it is said by the court in Warickshull's case, 1 Leach,
264, "if it exists at all, must exist invariably in the same
manner, whether the confession from which it is derived, be, in
Confessions. 37
other respects, true or false. Facts thus obtained, however,
must be fully and satisfactorily proved, without calling in the
aid of any part of the confession, from which they have bee.n
derived." The same doctrine, viz. that no part whatever of
the confession is to be received in evidence, was also laid
down by Lord Eldon, in the case of Richard Harvey, at
Bodmin summer assizes, 1800. His lordship said, that where
the knowledge of any fact was obtained from a prisoner, under
sucli a promise, as excluded the confession itself from being
given in evidence, he should direct an acquittal, unless the
fact itself proved, would have been sufficient to warrant a con-
viction without any confession leading to it. 2 East, P. C. 658.
The rule, however, as above laid down, appears to be too strict,
and accordingly it is said in Butcher's case, 1 Leach, 265, (n.)
that it should seem that so much of the confession as relates
strictly to the fact discovered by it, may be given in evidence ;
for the reason of rejecting extorted confessions is the appre-
hension that the prisoner may have been thereby induced to say
what is false, but the fact discovered shows that so much of the
confession as immediately relates to it is true. But this opinion,
says Mr. East, (citing seveial cases) must be taken with some
grains of allowance ; for even in sucli case, the most that is
proper to be left to the consideration of the jury is the fact of
the witness having been directed by the prisoner where to find
the goods, and his having found them accordingly ; but not the
acknowledgment of the prisoner having stolen or put them
there, which is to be colled ed or not from all the circumstances
of the case ; and this, he adds, is now the more common prac-
tice. 2 East, P. C. 658. Upon this it may be observed, that
such a confession appears to be evidence only of the fact that
the prisoner was acquainted with the other fact which he dis-
closed, and that so far as such knowledge gees, it is evidence
to convict him of the offence. Where a prisoner, indicted as
a receiver of stolen property, in consequence of promises of
favour, made a full confession, and according to that confession,
the property was found at her lodgings, concealed between the
sackings of her bed; it was held that evidence of the finding
was admissible. Win id-. sh all's case, 1 Leach, 263. So the
evidence of a third person, the knowledge of which is got at,
through a confession obtained by favour, is admissible ; as
where the prisoner named the person to whom the property
had been disposed of, it was held that such person might be
called. Lockhurt's case, 1 Leach, 386. See ulso Mcsey's case,
1 Leach, 265. (>i.)
It is said in H'arickshall's case, 1 Leach, 265., that although
confessions improperly obtained cannot be received in evidence,
yet that any acts done afterwards might be given in evidence,
notwithstanding they were done in consequence of such con-
fessions. It seems however that such acts, if they are only tan-
38 Confessions.
tamount to a confession, and are unsupported by facts, are in-
admissible. A prisoner charged with stealing, was induced by
a, promise from the prosecutor to confess, and after confessing,
carried the officer to a particular house where he said he had
disposed of the property, and pointed out the person to whom
he said he had delivered it. That person denied the fact, and
the property was not found. The evidence of the confession
was not received ; but the evidence of his carrying the officer to the
house was. The judges were of opinion that the latter evidence
was not admissible. The confession was excluded, because
being made under the influence of a promise, it could not be
relied upon, and the acts of the prisoner under the same influ-
ence, not being confirmed by the finding of the property, were
open to the same objection. The influence which might pro-
duce a groundless confession might also produce groundless
conduct. Jenkins's case, Ritss. fy Ky. 492.
Declarations, accompanying an act done, that act being cor-
roborated by a fact, have in one case been admitted in evidence.
The prisoner was tried for stealing a guinea and two promissory
notes. The prosecutor was proceeding to state an improper
confession, when Chambre J. stopped him, but permitted him
to prove that the prisoner brought to him a guinea and a 5/.
Reading Bank note, which he gave tip to the prosecutor, as the
guinea and one of the notes flint had been stolen from him. The
learned judge told the jury, that notwithstanding the previous
inducement to confess, they might receive the prisoner's de-
scription of the note, accompanying the act of delivering it up,
as evidence, that it was the stolen note. A majority of the
judges, (7) held the conviction right. Lawrence and Le Blanc
JJ. were of a contrary opinion, and Le Blanc said that the
production of the money by the prisoner was alone admissible,
and not that he said it teas one of the notes stolen. Griffin's case,
Runs. # %. 151.
Only evidence against the party making them.~\ A confession
is only evidence against the party himself who made it, and
cannot be used against others. Tong's case, Ket. 18. Gilh. Ev.
137. Hevey'scase, 1 Leach, 235. So when it was proposed to
be proved on the trial of three prisoners, that on their examina-
tion, one of them, who was charged by the examination of an-
other with having jointly committed the felony in question, did
not deny that what was so said was true, Holroyd J. held that
it was not competent to the prosecutor to go into such evidence,
and said that it had been so ruled by several of the judges in a
similar case, which had been tried at Chester. Appleby's case,
3 Stark. 33. The same principle was acted upon in Melen v.
Andrews, M. <5f M. 336. " The deposition of a witness," says
Mr. Justice James Parke, in that case, " taken in a judicial
proceeding, is not evidence on the ground that the party against
Confessions. 39
whom it is sought to be read was present, and had the opportunity
of cross-examining. It clearly would not be admissible against
a third person, who merely happened to be present, and who being
a stranger to the matter under investigation, had not the right of
interfering, and I think the same rule must apply here. It is
true that the plaintiff might have cross-examined or commented
on the testimony ; but still, in an investigation of this nature
there is a regularity of proceeding adopted, which prevents the
party from interposing when and how he pleases, as he would in
a common conversation. The same inference, therefore, cannot
be drawn from his silence, or his conduct in this case, which
generally may from that of a conversation in his presence."
But it would be otherwise, if what was said drew any answer
from the prisoner; what passed in such a case would be evi-
dence. See Child v. Grace, 3 C. ty P. 193. As to confes-
sions and admissions in Conspiracy, vide post.
Where a confession by one prisoner is given in evidence,
which implicates the other prisoners by name, a doubt arises as
to the propriety of suffering those names to be mentioned to the
jury. On one circuit the practice has been to omit the names ;
Fletcher's case, 4 C. &; P. 250. ; but it has been ruled by Little-
dale J. in several cases, that the names must be given. Where
it was objected on behalf of a prisoner whose name was thus
introduced, that the witness ought to be directed to omit his
name, and merely say another penon, Littledale J. said, "the
witness must mention the name. He is to tell us what the pri-
soner said, and if he left out the name he would not do so. He
did not say " another person," and the witness must give us the
conversation just as it occurred ; but I shall tell the jury that it
is not evidence against the other prisoner." Hearne's case, 4 C.
P. 215. Cleices's case. Id. 225.
It is said by Mr. Phillipps, that a distinction might perhaps
be taken in this respect, in case the confession has been reduced
into writing, if that part which relates to the other prisoners is
capable of being separated, and detached from the rest, and
can be omitted without in any degree affecting the prisoner's
narrative against himself. 1 Phill. L'v. 108. Upon this it maybe
remarked, that the same observation seems equally to apply to
confessions not in writing, where the witness might be cautioned
not to mention the names of the other prisoners, unless from
such omission the confession, as affecting the party making it,
should become unintelligible. The rule as laid down by Mr. Jus-
tice Littledale, has been acted upon by him in the case of writ-
ten confessions also. A letter written by one of several prisoners
was offered in evidence. It immediately implicated one of the
others ; and it was objected that the name of all but the prisoner
in question should be omitted in the reading. But Little-
dale J. ruled the contrary, and said that to make it evidence
the whole must be read. Fletcher's case, Lewin C. C. 107.
40 Confessions.
4 C. # P. 250. S. C. In a later case, before Parke J., in which
Fletcher's case was cited, the learned Judge said, " I know that
is Mr. Justice Littledale's opinion, but I do not like it. I do
not think it the fair way." Barsto-w's case, Lewin, C.C.I 10.
Other Judges however have ruled in the same manner as Mr.
Justice Littledale. Alderson, J., Hall's case, Lewin, C. C. 110.
Denmau, C. J., Foster's case. Id.
Upon the same principle, the confession of the principal is
not admissible, in evidence, to prove his guilt, upon an indict-
ment against the accessory. This was long considered a
doubtful point, and in a very late case, Bosamjuet, J. is stated
to have said that whatever is evidence against the principal, is
primd facie evidence of his guilt, as against the accessory, to
prove the felony. Black's case, 4 C. <Sf P. 377, stated post. The
Jaw was, however, decided to be otherwise, by the judges in the
following case: Turner was indicted for stealing sixty sove-
reigns, &c. by one Sarah Rich, then lately before feloniously
stolen. To establish the larceny by Rich, the counsel for the
prosecution proposed to prove a confession by her, made before
a magistrate in the presence of the prisoner, in which, she stated
various facts, implicating herself and others, as well as the pri-
soner. Appleby's case (supra) was cited on the other side, and
Patteson, J. refused to receive as evidence anything which was
said by Sarah Rich respecting the prisoner, but admitted what
she had said respecting herself, only. The prisoner was con-
victed. Having afterwards learned that a case had occurred
before Mr. Baron Wood, at York, where two persons were
indicted together, one for stealing and the other for receiving,
in which the principal pleaded guilty, and the receiver not
guilty, and that Mr. Baron Wood refused to allow the plea of
guilty, to establish the fact of the stealing by the principal, as
against the receiver, Patteson, J . thought it proper to refer to the
judges the question, " Whether he was right in admitting the
confession of Sarah Rich in the present case ?" All the judges
having met, (except Lord Lyndhurst, C.B. and Taunton, J.)
were unanimously of opinion, that Sarah Rich's conlession was
no evidence against the prisoner, and many of them appeared to
think that had Sarah Rich been convicted, and the indictment
against the prisoner stated, not her conviction, buther guilt, the
conviction would not have been evidence of her guilt, which
must have been proved by other means. The conviction was
held wrong. Turner's case, 1 Moody, C. C. 347.
By agents."] In general a person is not answerable, crimi-
nally, for the acts of his servants or agents, and therefore, the
declarations or confessions of a servant or agent will not be
evidence against him. But it is otherwise, where the declara-
tion relates to a fact in the ordinary course of the agent's em-
ployment, in which case such declarations accompanying an act
Confessions. 4 1
done, will be evidence in a criminal proceeding, as well as in a
civil suit. See Rose. Dig. ED. JY. P. 30. Thus in the impeach-
ment of Lord Melville by the House of Lords, it was decided
that a receipt given in the regular and official form, by Mr.
Douglas, (who was proved to have been appointed by Lord
Melville, to be his attorney to transact the business of his
office as treasurer of the navy, and to receive all necessary sums
of money, and to give receipts for the same) was admissible in
evidence against Lord Melville, to establish the single fact,
that a person appointed by him as his paymaster, did receive
from the exchequer a certain sum of money in the ordinary
course of business. 29 How. St. Tr. 746.
In what cases a prosecutor may be affected by the acts and
declarations of his agents does not appear to be well decided.
In the Queen's case the judges held that it was not competent
to show that the agent of the prosecutor, not called, offered a
bribe to a witness, who was also not called. The question, the
Lord Chief Justice observed, regarded the act of an agent ad-
dressed to a person not examined as a witness in support of the
indictment, the proffered proof not apparently connecting itself
with any particular matter deposed by the witnesses, who had
been examined in support of the indictment, and leaving, there-
fore, those witnesses unaffected by the proposed proof, other-
wise than by way of inference and conclusion. His Lordship
added, that notwithstanding the opinion he had delivered, he
was by no means prepared to say that in no case, and under
no circumstances, appearing at a trial, it might not be fit and
proper for a judge to allow proof of this nature to be submitted
to the consideration of a jury ; and that the inclination of every
judge was to admit, rather than exclude, the offered proof.
2 Brod. <3f Bing. 302.
The whole of a confession must be taken together.] In crimi-
nal, as well as in civil cases, the whole of an admission made
by a party is to be taken together. See Rose. Dig. Ev. N. P. 36.
The rule is thus laid down by Abbott, C. J. in the Queen's
case, 2 Brad. &; Bing. 297. If, on the part of the prosecution,
a confession or admission of the defendant, made in the course
of a conversation with the witness, be brought forward, the de-
fendant has a right to lay before the court the whole of what
was said in that conversation ; not only so much as may
explain or qualify the matter introduced by the previous exa-
mination, hut even matter not properly connected with the mat-
ter introduced on the previous examination, provided only that
it relates to the subject matter of the suit ; because it would not
be just to take part of a conversation as evidence against a party,
without giving to the party at the same time the benefit of the
entire residue of what he said on the same occasion. " There
is no doubt," says Mr. Justice Bosanquet, " that if a prose-
42 Confessions.
cutor uses the declaration of a prisoner, he must take the whole
of it together, and cannot select one part and leave another ;
and if there be either no other evidence in the case, or no other
evidence incompatible with it, the declaration so adduced in evi-
dence must be taken as true. But if, after the whole of the state-
ment of the prisoner is given in evidence, the prosecutor is in a
situation to contradict any part of it, he is at liberty to do so, and
then the statement of the prisoner, and the whole of the other
evidence must be left to the jury, for their consideration, pre-
cisely as in any other case where one part of the evidence is
contradictory to another." Jones's case, 2 C. P. 629. Where a
prisoner was indicted for larceny, and in addition to evi-
dence of the possession of the goods, the counsel for the
prosecution put in the prisoner's statement before the ma-
gistrate, in which he asserted that he had bought the goods,
Garrow, B. is reported to have directed an acquittal, saying, that
if a prosecutor used a prisoner's statement, he must take the
whole of it together. Anon, cited arg. Jones's case, 2 C. $f P.
630. It must not, however, from this, be supuposed that every
part of a confession is entitled to equal credit. A jury may be-
lieve that which charges the prisoner, and reject that which is
in his favour, if they see sufficient grounds for so doing. Thus
in a case similar to that before Mr. Baron Garrow, the prose-
cutor having put in the prisoner's examination, which merely
stated that " the cloth was honestly bought and paid for," Mr.
Justice J. Parke told the jury, " If you believe that the pri-
soner really bought and paid for this cloth, as he says he did,
you ought to acquit him, but if, from his selling it so very soon
after it was lost, at the distance of eight miles, you feel satisfied
that the statement of his buying it is all false, you will find him
guilty." Higgins's case, 3 C. if P. 603. So where a prisoner,
charged with murder, stated in his confession that he was pre-
sent at the murder, which was committed by another person,
and that he took no part in it, Littledale, J. left the confession
to the jury, saying, " It must be taken altogether, and it is
evidence for the prisoner as well as against him ; still the jury-
may, if they think proper, believe one part of it and disbelieve
another." Clewes's case, 4 C. <Sf P. 225. See also Steptoe's case,
4 C. if P. 397. S. P.
Confessions of matters void in point of law or false in fact.]
An admission on the part of a prisoner is not conclusive, and if
it afterwards appear in evidence that the fact was otherwise,
the admission will be of no weight. Thus, upon an indictment
for bigamy, where the prisoner had admitted the first marriage,
and it appeared at the trial that such marriage was void, for
want of consent of the guardian of the woman, the prisoner was
acquitted. 3 Stark. Ev. 1187, 1st ed. So on an indictment
Examinations. 43
for setting fire to a ship, with intent to injure two part
owners, it was held that the prosecutor could not make use of
an admission by the prisoner that these persons were owners, if
it appeared that the requisites of the shipping acts had not been
complied with. Philp'scase, 1 Moody's C. C. 271.
EXAMINATIONS.
Statute 7 Geo. 4. c. 64 . . . 43
Mode of taking Examinations . . .44
Questioning the Prisoner . . .44
Examinations must not be taken on Oath . . 44
When reduced into writing and when not . 45
Signature to Examinations . . .46
Examinations informal used to refresh memory of Wit-
ness . . . .47
Mode of Proof . . . .48
Statute 7 Geo. 4. c. 64.] The foregoing pages relate only to
the confessions and admissions made, by persons charged with
offences, to third persons, and not made to magistrates during
the examinations directed to be taken by statute. Those exa-
minations formerly taken under the 1 & 2 P. & M. c. 13.
and 2 & 3 P. & M. c. 10., are now governed by the 7 Geo. 4.
c. 64.
By that statute, s. 2, it is enacted, "That the two justices
of the peace, before they shall admit to bail, and the justice or
justices before he or they shall commit to prison any person ar-
rested for felony, or on suspicion of felony, shall take the exa-
mination of such person and the information upon oath of those
who shall know the facts and circumstances of the case, and
shall put the same, or as much thereof as shall be material, into
writing, and the two justices shall certify such bailment in
writing ; and every such justice shall have authority to bind by
recognizance all such persons as know or declare any thing
material touching any such felony or suspicion of felony, to
appear at the next court of oyer and terminer, or gaol delivery,
44 Examinations.
or superior criminal court of a county palatine, or great sessions,
or sessions of the peace, at which the trial thereof is intended to
be ; then and there to prosecute or give evidence against the
party accused : and such justices and justice respectively shall
subscribe all such examinations, bailments, and recognizances,
and deliver, or cause the same to be delivered to the proper
officer of the court in which the trial is to be, before or at the
opening of the court."
Before the above statute, the justices had no power to take
the examination of persons charged with misdemeanours ; but
now, by sec. 3, it is enacted " That every justice of the
peace, before whom any person shall be taken, on a charge cf
misdemeanour or suspicion thereof, shall take the examination
of the person charged, and the information, upon oath of those
who shall know the facts and circumstances of the case, and
shall put the same, or as much thereof as shall be material, into
writing, before he shall commit to prison or require bail from
the pei son so charged, and in every case of bailment shall cer-
tify the bailment in writing ; and shall have authority to bind all
persons by recognizance, to appear to prosecute or give evidence
against the party accused, in like manner as in cases of felony,
and shall subscribe all examinations, informations, bailments
and recognizances, deliver or cause the same to be delivered, to
the proper officer of the court in which the trial is to be, before
or at the opening of the court, in like manner as in cases of
felony."
By 7 Geo. 4. c. 38. s. 1. Commissioners for trying offences
committed at sea, or a justice of the peace, may take examina-
tions touching offences committed within the jurisdiction of the
Admiralty, and may commit the parties charged.
Mode of taking examinations questioning the prisoner.]
Where an examination (taken under the statute of P. & M.)
was offered in evidence, and the magistrate who took it stated
that he had examined the prisoner to a considerable extent, in
the same manner as he was accustomed to examine a witness,
Richards, C. B. rejected the examination, saying that it was
irregular in the magistrate to examine a prisoner in this manner.
Wilson's case, Holt, 597. But the contrary was held by Mr.
Justice Holroyd. Stark. Ev. App. part iv. p. 52, 1st ed. And it
was ruled the same way at the Old Bailey, on an indictment
for murder. Jones's case, 2 Russ. (a). In a late case also,
Mr, Justice Littledale held the decision of Holroyd, J. to be
correct, and admitted an examination elicited by questions put
by the magistrate. Etlis's case, Ry. # Moo. JV. P. C. 432. See
also Thornton's case, 1 Moody, C.C. 27, ante, p. 34.
Mode of taking examinations must not be upon oath.] The
examination of a prisoner must not be taken upon oath. Where
Examinations. 45
the examination of a prisoner was produced, commencing
" The examination of A. B., taken on oath before." &c., Le
Blanc, J. rejected it, and would not permit evidence to be
given that no oath had, in fact, been administered, saying, that
he could not allow that which had been sent in under the hand
of a magistrate to be disputed. Smith's case, I Stark. 242.
Where the prisoner, being mistaken for a witness, was sworn,
but the mistake being discovered, the deposition, which had
been commenced, was destroyed, and the prisoner, subsequently,
after a caution from the magistrate, made a statement, Gar-
row, B. received that statement. Webb's case, 4 C. ty P. 564.
And where a prisoner had been examined upon oath, on a charge
against another person, Parke, J. received evidence of that ex-
amination, as a confession, observing, that upon that, as upon
every other occasion, the prisoner might have refused to answer
any questions having a tendency to expose him to a criminal
charge, and not having done so, his examination was evi-
dence against him. Howarth's case, Greenwood's Col. Stat.
138. (n). Vide ante, ?. 36.
Mode of taking when reduced into writing, and when not.]
The statute requires that the examination, or as much thereof
as may be material, shall be reduced into writing, and therefore,
when reduced into writing, such writing is the best evidence,
and parol evidence of the examination cannot be received. In
order to render parol evidence of the examination admissible, it
must be clearly proved that, in fact, such examination was not
reduced into writing. Jacob's case, 1 Leach, 310. If the ex-
amination be not returned, and it is uncertain whether it has
been reduced into writing or not, parol evidence will be rejected.
Hinxman's case, Id. (n.) Fisher's case, Id. p. 311. (n.)
But where it clearly appears that no examination in writing
has been taken, parol evidence of what the prisoner said before
the magistrate is admissible. Thus, where the only evidence
against a prisoner was his examination before the magistrate,
which was not taken in writing, either by the magistrate or by
any other person, but was proved by the viva voce testimony of
two witnesses who were present, all the judges (except Mr.
Justice Gould) were of opinion that this evidence was well re-
ceived. Huet's case, 2 Leach, 821. A written examination before
a magistrate will not exclude parol evidence of a previous con-
fession made to a third person. Carty's case, M'Natly on Ev.
45. See also 16 How. St. TV. 35. And it was said by Best,
C. J. that his opinion was, that upon clear and satisfactory
evidence, it was admissible to prove something said by the pri-
soner beyond what was taken down by the committing magis-
trate. Ron-land- v. Ashby, Ry. 3f Moo. 232. So it has been
ruled by Parke, J. that an incidental observation made by a
prisoner in the course of his examination before a magistrate,
46 Examinations.
but which does not form a part of the judicial inquiry, so as to
make it the duty of the magistrate to take it down in writing,
and which was not so taken down, may be given in evidence
against the prisoner. Moore's cose, Matthew's Dig. Cr. Law,
157. But where it ought to have been taken down in writing,
and it was not, Littledale, J. ruled that it was inadmissible.
Malony's case, Id. However, where on the examination of a
prisoner, on a charge of stealing sheep, what was said as to
the stealing of certain sheep, the property of one person, was
taken down in writing by the magistrate, but not what was
said as to other sheep, the property of another person, on a
question reserved for the opinion of the judges, whether any
confession, as to the latter offence, could be supplied by parol
evidence ; and whether, as the magistrate had taken down in
writing every thing he heard, and intended to take down all
that was said to him, and believed he did so, parol evidence
could be given of any thing else that had been addressed to
him; the judges present were all of opinion that the evidence
was admissible. Harris's case, 1 Moody, C. C. 343. Where a
written examination was inadmissible, on account of the mode
of taking it, Tindal, C. J. permitted parol evidence to be
given of what the prisoner had said at the time of his examin-
ation. Reed's case. Moo. $ Mai. 403.
Mode of taking examinations signature.] The examination
of a prisoner, when reduced into writing, ought to be read over
to him, and it is usually tendered to him for his signature,
though such signature is not required by the statute, and is
only for precaution, and for the facility of future proof. 2 Russ.
657. 1 Phill. Ev. 107. But where the examination of a pri-
soner was taken in writing, and afterwards read over to him,
upon which he observed, " It is all true enough," but upon
the clerk's requesting him to sign it, he said, " No, I would
rather decline that," nor was it signed, either by him or by the
magistrate ; a majority of the judges were of opinion, that the
written examination was rightly received in evidence. Lambe's
case, 2 Leach, 552. So where the solicitor for the prosecution
made minutes, at the request of the magistrate, of what the
prisoner said before the magistrate, and those minutes were read
over to the prisoner, who said, " It is all true," but afterwards,
on the minutes being again read, objected to some parts of them,
and refused to sign them, it was held that they might be read in
evidence against the prisoner. Thomas's case, 2 Leach, 637.
But where the examination of a prisoner, confessing his guilt,
was put into writing, and he was desired to sign it, which he
refused to do, although he admitted his guilt, Wilson, J. re-
fused to receive it, saying, that it was competent to a prisoner
under such circumstances, to retract what he had said, and to
say that it was false. Sennet's case, 2 Leach, 553. (?(.) And
Examinations. 47
where an examination was offered in evidence, and the clerk of
the magistrate stated that he took it down from the mouth of the
prisoner, and that it was afterwards read over to him, and he
was told that he might sign it or not as he pleased, upon which,
he refused to sign it, Wood, B. was of opinion that the docu-
ment could not be read. In Lambe's ease, the prisoner, when
the examination was read over to him, said that it was true,
and here, if the prisoner had said so, the case might have been
different. Tellicote's case, 2 Stark. 484. and see Jones's case,
2 Rnss. 658. post, p. 48. The prisoner having refused to sign
his examination before the magistrate, or to admit its truth,
Bayley, J. allowed parol evidence to be given of the prisoner's
statement, and permitted the magistrate's clerk to read over
the examination to refresh his memory. Deuhurst's case, Lewin,
C. C. 47. It seems difficult to maintain the decision in Telli-
cote's case. Where the examination is offered in evidence as a
document, to which authority is given by statute, there seems
to be no objection to its reception on the ground of the party's
subsequent dissent, which is evidence to go to the jury.
Where a confession is made to another person than a magis-
trate, and afterwards retracted, the whole would, without
doubt, be admissible, and it is difficult to distinguish the two
cases.
If the examination is taken down in writing, by a constable
only, and is not, therefore, under the statute, yet if the prisoner
signs it, the paper itself may be read in evidence. Swalkin's
case, 4 C. <Sf P. 550. This rests upon the general principle of
law, with regard to admissions, under which, letters, &c. are
read in evidence.
Examinations informal used to refresh the memory of witness.]
If the examination of a prisoner has been taken down in
writing, but not in such a manner as that the writing itself is
admissible under the statute, parol evidence of what the pri-
soner said is admissible, vide ante, p. 45 ; and in such case the
writing may be referred to by the witness who took down the
examination, in order to refresh his memory. Thus, where a
person had been examined before the lords of the council, and
a witness took minutes of his examination, which were neither
read over to him after they were taken, nor signed by him ; it
was held that although they could not be admitted in evidence
as a judicial examination, yet the witness might be allowed to
refresh his memory with them, and having looked at them, to
state what he believed was the substance of what the prisoner
confessed in the course of the examination. layer's case, 16
How. St. Tr. 215. So where an examination taken at several
times, was reduced into writing by the magistrate, and onitsbeing
completed, was read over to the prisoner, but he declined to sign
it, acknowledging at the same time that it contained what he
48 Examinations.
had stated, although he afterwards said, that there were many
inaccuracies in it ; it was held that this might be admitted as a
memorandum to refresh the memory of the magistrate, who
gave parol evidence of the prisoner's statement. Jones's case, 2
Russ. 658. (n.) It has been suggested that in Tellicote's case,
supra, p. 47., although the written document was inad-
missible, yet the clerk of the magistrate, who was called as a
witness, ought to have proved what he heard the prisoner say
on his examination, and might have refreshed his memory by
means of the examination, which he had written down at the
time. 2 Runs. 658. See 4 C.Sf P. 550. (n.) And see Dewhurst's
case, ante, p. 47. So where, on a charge of felony, the exa-
mination of the prisoner was reduced into writing, by the
magistrate's clerk, but nothing appeared on the face of the
paper to show that it was an examination taken on a charge of
any felony, or that the magistrates who signed it, were then
acting as magistrates ; Patteson, J. permitted the clerk to the
magistrates to be called, and to refresh his memory from this
paper. Tarrant's case, 6 C. f P. 102, and see Pressley's case,
Id. 183.
The effect of the statutes is properly stated to be, that a
written examination taken in conformity to them is evidence
per se, and the only admissible evidence, of the prisoner having
made a declaration of the things contained therein ; whereas
at common law (unless the prisoner had signed the paper, or on
its being read to him, had allowed it to be true) the confession
must have been proved by some one who heard it and could
recollect it, and the writing could only have been made use
of by the person who wrote it, to refresh his memory with it.
2 Russ. 659. (n.)
Mode of proof.] It is laid down by Lord Hale, that in prov-
ing examinations of prisoners, and informations of witnesses
taken before justices of the peace, oath is to be made in court
by the justice or his clerk, that the examinations or informations
were truly taken. 2 Hale, P. C. 52. 284. In practice, however,
it is said, in a book of authority, to be certainly not unusual to
permit the examination to be read upon proof of the identity
of the instrument, and of the handwriting of the magistrate
if he has signed the examination which now, by statute 7 G. 4.
c. 64. he is in all cases required to do. 2 Russ. 659. (n) It
is obviously desirable that some person, who was present at the
examination, and who can state the mode in which it was
taken, should be called to prove it. Where upon an indictment
for murder, it was proposed to prove the prisoner's examination
before the coroner, by evidence of the handwriting of the
latter, and by calling a person who was present at the
examination, it appearing that there were certain interlinea-
tions in the examination, Lord Lyndhurst said, that he
Depositions, 49
thought the clerk who had taken down the examination, ought
to be called, and the evidence was withdrawn. Brogan't case,
Lane. Sum. Ass. 1834, MS. But where the magistrate who
had signed the examination was present to prove the signature,
Holroyd J. held that it was not necessary to call the clerk who
had written it. Hobson's case, Lewin, C. C. 66. And where
the examination purported to be the examination of the prisoner,
and was signed by him and the magistrate, proof of their hand-
writing was held sufficient, and that it was unnecessary to show
that it was taken from the prisoner's mouth, or that he deposed
to the facts contained in it. Priestley's case, coram Parke, J.
Lewin, C. C. 74.
DEPOSITIONS.
Stat. 1 Geo. 4. c. 64. ... 49
Mode of taking Depositions ... 50
Signature . . . .52
Parol Evidence not admissible to vary Depositions . 52
Depositions admissible on trial of other offences, than
that with u-hich the prisoner is charged . 52
Depositions admissible to contradict Witness . 52
Several Depositions . . . .53
Depositions before the Coroner . . .53
Depositions in India, by consent, 5fc. . .54
Statute! G.4. c. 64.] The clauses of the statute 7 G.4.C.64.
relating to taking the depositions of witnesses in criminal cases,
by which the former statutes of 1 & 2 P. & M. c. 13, 14, and
2 & 3 P. & M. c. 10. are repealed, have already been stated.
Ante, p. 43. Although as in the former statutes, there is no ex-
press enactment in the 7 Geo. 4. that the depositions of the
witnesses taken under that statute, shall .be admissible in case
of their death ; yet it is clear that should the witness be proved at
the trial either to be dead, 1 Hale, P. C. 305, B. N. P. 242, (and
this though the deceased was an accomplice, \\ r estbeer's case,
1 Leach, 12.) or to be insane, R. r. Erisuell, 3 T. R. 710, or (as
it seems) to be unable to travel, 1 Hale, P. C. 305, 1 Phill. Ev.
351 , his depositions taken before the magistrate, will be admissible
in evidence. So it has been said, that if due diligence has
50 Depositions.
been used, and it is made manifest that the witness has been
sought for and cannot be found, or if it be proved that he
was subpoenaed and fell sick by the way, his depositions may
be read, for that in such case he is in the same circumstances
as to the party that is to use him, as if he were dead.
B. N. P. 239. Hawk. P. C. b. 2. c. 46. s. 18. It has however,
been observed by Mr. Starkie, that it seems to be very doubtful,
whether the mere, casual, and temporary inability of the
witness to attend in a criminal case, be a sufficient ground for
admitting his deposition, which affords evidence of a nature
much less satisfactory than the testimony of a witness ex-
amined, viva voce, in court, and which might be procured at
another time, if the trial were to be postponed. 2 Stark. Ev.
266. 2nd ed. It has been held, with regard to a witness ex-
amined before the coroner, that if he is absent, proof that
every endeavour has been made to find him, will not authorise
the reading of his examination. Lord Morley's case, Kel. 55.
This decision appears to have been thought by Serjeant Hawkins,
to have proceeded on the ground that proper search had not been
made ; Hawk. P. C. b. 2. c. 46. s. 17, 18 ; and Gilbert, C. B.
states that the examination may be read, because, as he sup-
poses, it is to be presumed that the witness is dead, when he
cannot be found after the strictest inquiry. Gitb. Ev. 138.
If the witness be kept away by the practices of the prisoner,
upon proof of -this, his depositions may be read. Harrison's
case, 4 St. Tr.} 492. Lord Morley's case, Kel. 55. 6 How. St.
Tr. 776. (examination before the coroner.)
The statute 7 G. 4. c. 64. relates only to depositions taken,
where a party is charged -with felony, suspicion of felony, or
misdemeanor ; and in case of treason, therefore, where the
common law rule remains, the depositions are inadmissible.
Fosttr, 337. 2 RusselL, 663. 1 Hale, 306.
Before the depositions can be read they must be proved,
which is usually done, either by calling the magistrate before
whom they were taken, or his clerk who wrote them ; 2 Hate,
52. 284, see ante, p. 48. and it must appear that they are the
same that were taken before the magistrate, without any altera-
tion whatever. Hawk. P. C. 6. 2. c. 46. s. 15.
Mode of taking depositions.] It is a general principle
of evidence, that to render a deposition of any kind evidence
against a party, it must appear to have been taken on oath, in
a judicial proceeding, and that the party should have an oppor-
tunity to cross-examine the witness. Per Hullock B., Attorney-
General v. Davison, M'Cl. 8c Y. 169. In order therefore to
render a deposition admissible, it must appear, in the first place,
that the requisitions of the statute have been complied with,
otherwise the proceeding would be extra judicial. See 2 Sturk.
211.(.) 2 Kuss. 660.
Depositions. 51
It must also be shown that the deposition was taken in the
presence of the prisoner, and that he had an opportunity of
cross-examination. Thus, where a woman had been mortally
Bounded, and a magistrate, at the request of the overseer of
the parish, attended at the hospital where she lay, and in the
absence of the prisoner, took her examination upon oath, which
he committed to writing and signed, and which was signed
by the woman also, who afterwards died ; it was held that this
examination was a voluntary and extra judicial act on the part of
the magistrate, the prisoner not being before him, and having no
opportunity of contradicting the facts it contained ; but still that
it was admissible as the declaration of the deceased, signed by
herself, and was to be classed with the other confirmatory de-
clarations which she made after she had received the mortal
wounds, and before she died. Woodcock's case, \ Leach, 500.
In several other cases also depositions taken in the absence of
the prisoner, have been rejected. Dingler'scase, 2 Leach, 561.
CaUaghan's case, 33 G. 3. 3J'A'u//y on Ev. 385.
Where the prisoner was not present during the examination,
until a certain part of the deposition marked with a cross, at
which period he was introduced, and heard the remaining part
of the examination, and when it was concluded, the whole was
read over to him, Chambre J. said, that it was the intent of
the statute, that the prisoner should be present whilst the wit-
ness actually delivers his testimony, so that he may know the
precise words he uses, and observe, throughout, the manner and
demeanour with which he gives his testimony. He therefore
refused to admit that part of the depositions previous to the
mark, which had not been heard by the prisoner. Forbes's cane,
Holt, 599. (n.) But a different rule was acted upon in the fol-
lowing case. The prisoner was indicted for murder, and the
deposition of the deceased was offered in evidence. It appeared
that a charge of assault having been preferred against the pri-
soner, the deposition of the deceased had been taken on that
charge. The prisoner was not present when the examination
commenced, but was brought into the room before the three last
lines were taken down. The oath was again administered to
the deceased in the prisoner's presence, and the whole of what
had been written down was read over to him. The deceased
was then asked in the presence of the prisoner, whether what
had been written was true, and he said it was perfectly correct.
The magistrates then, in the presence of the prisoner, proceeded
to examine the deceased further, and the three last lines were
added to the deposition. The pnsoner was asked whether he
chose to put any questions to the deceased, but did not do so.
It was objected, 1st, that the prisoner had not been present,
and 2dly, that the deposition was inadmissible, because the ex-
amination ought to be confined to the offence with which the
52 Depositions.
prisoner is charged at the time, which was an assault, and could
not apply to the piesent charge of murder. The deposition,
however, was admitted, and by a majority of the judges held
rightly admitted. Smith's case, Russ. $ Ry. 339. 2 Stark. 208.
Sm C.
Made of taking depositions signature.] The statute does
not requiie that the deposition should be signed by the party
deposing, and upon the former statutes of Philip & Mary, it was
held that such a signature was unnecessary. Flemming's case,
'2 Leach, 854. But the magistrate is required by the stat. 7 Geo. 4.
c. 64. to subscribe the examinations and informations taken by
him. Vide supra. ,
Mode of taking depositions parol evidence not admissible to vary
duposition.] The statute 7 Geo. 4. c. 64., requires that the de-
positions of the witnesses examined before a magistrate shall be
taken in writing, and tl,e presumption in all such cases is, that
the magistrate has done his duty, and i educed it into writing.
Parol evidence, therefore, of the deposition is inadmissible, un-
less it be clearly proved that it was not taken in writing. Fear-
Mre's case, 1 Leach, 202, ante, p. 44. If taken in writing, parol
evidence is inadmissible to vary it. Thornton's case, 1 1'hill. Ev.
352. But as in the case of the examination of a prisoner, it has
been decided, that where the magistrate did not hear, and con-
sequently did not reduce into writing, a portion of the prisoner's
confession, Harris's r.ase, 1 Moo. C. C. 338, ante p. 46 ; so in
the case of a deposition, parol evidence would, as it seems, under
similar circumstances be admissible. Sed vide 1 PhilL Ev. 352.
2 Russ. 662.
Depositions admissible, on trial of other offence, than that
with which the prisoner was charged.] The deposition of a wit-
ness since deceased, regulaily taken under the statute, is ad-
missible on the trial of an offence different from that with which
the prisoner was charged at the time of the examination taken ;
as in Smith's case, Russ.fy Ry. 339. supra, whcie the deposition
was taken on a charge of assault, and given in evidence on a trial
for murder. Nor is it necessary that the offence should be com-
plete at the time of the deposition ; thus where the examination of
a party wounded is taken, if he afterwards die of his wounds, that
deposition is admissible, on a trial for the murder. Id. llad-
bvurne's case, 1 Leach, 458, 1 East, P. C. 356. S. C.
Depositions admissible to contradict the witness.] One of the
objects of the legislature in requiring that the magistrate should
take the deposition of the witnesses is, that the Couit befo.e
which the prisoner is tried, may see whether those witnesses
are consistent or contradictory in the evidence they give. Vide
Depositions. 53
case, 2 Leach, 558. The deposition therefore may be
used on the pirt of the prisoner to contradict the evidence of the
witness given at the trial ; Stratford's case, 3 St. Tr. 131. fa. ed.
Haick. P. C. ft. 2. c. 46. 22. ; and where the name of the prisoner's
mother was on the indictment, and the counsel for the prosecu-
tion declined to call her, upon which the judge ordered her to
l>e examined, and finding her evidence differing from that she
had given before the magistrate, directed the deposition to be
read, the judges held this correct; and Lord Ellenborough and
Mansfield, C. J., thought the prosecutor had a risht to call for
the depositions. Oldraydft rase, Rnss. & Jit/. 88. Whether
under such circumstances the witness shall be examined, was
ruled by Gaselee J. to be in the discretion of the judge. Bodle't
case, 6 C. & P. 186. The prosecutor will not be allowed to call
other witnesses to contradict him. Ibid.
l\'i:ere there are several deposition*.] Where several deposi-
tions had been taken before the magistrate, but one only was
produced at the trial, Hullock B. refused to receive it, though
it was the only one which was taken in writing. Those not
produced, he said, might be in favour of the prisoner, and it
would be unreasonable to allow the prosecutor to choose which
he would produce. Pearson's case, Lewin, C. C. 97.
Depositions before the coroner.] It is enacted by the stat.
7 Geo. 4. c. 64. $ 4. which repeals (as before stated) the stat.
1 c 2 Ph. & M. c. 13. that every coroner, upon any inquisition
before him taken, whereby any person shall be indicted for man-
slaughter or murder, or as an accessary to murder before the
fact, shall put in writing the evidence given to the jury before
him, or as much thereof as shall be material, and shall have
authority to bind by recognizance all such persons as know or
declare any thing material touching the said manslaughter or
murder, or the said offence of being accessary to murder, to
appear at the next court of oyer and terminer, or gaol delivery,
or superior criminal court of a county palatine, or great sessions,
at which the trial is to be, then and there to prosecute or give
evidence against the party charged ; and every such coroner
shall certify and subscribe the same evidence, and all such re-
cognizances, and also the inquisition before him taken, and shall
deliver the same to the proper officer of the Court in which the
trial is to be, before or at the opening of the Court.
Depositions taken before the coroner, are admissible in the
same manner as depositions taken before a magistrate, where
the witness is dead, or kept out of the way by the means or
contrivance of the prisoner, or, as it is said, where he is unable
to travel, or cannot be found. Gilb. Ev. 138. Hairk. P. C. b. 2.
c. 46. $ 15. 2 Russ. 661. Vide ante, p. 50. In one respect,
54 Depositions.
however, an important distinction has been taken between de-
positions before a magistrate, and those taken before the co-
roner ; the latter, as it is alleged, being admissible, although the
prisoner was not. present when they were taken. This is stated
in a book of reputation, K. N. P. 242, on the authority of
two cases, Bromwich's case, 1 Lev. 180, Thatcher v. Walter,
T. Jones 53.; see also 6 How. St. Tr. 776, 12 Id. 851,
13 Id. 591. ; but it is observed by Mr. Starkie, 2 Evict. 278.
'Zd eA. that in neither of these cases was the question consi-
dered upon plain and broad principles. It was also said by
Mr. Justice Buller, in R. v. Ensue//, 3 T. R. 707., that depo-
sitions taken before the coroner, in the absence of the prisoner,
are admissible. It has been observed, however, that his lordship
did not, as it seems, intend to make a distinction between these
depositions and those taken before a magistrate, but referred to
Radbonrne's case, 1 Leach, 512., as an authority, in which
case the depositions were in fact taken in the presence of the
prisoner. Lord Kenyon also in the same case, although he
coincided in opinion with Buller J., appears to have considered
that depositions before a magistrate and before a coroner, were
on the same footing. 2 StarK. Ev. 278. 2d ed. The reasons
given in support of the distinction are, that the coroner's in-
quest is a transaction of notoriety, to which every one has
access, 2 T. R. 722., and that as the coroner is an officer ap-
pointed on behalf of the public, to make inquiry into matters
within his jurisdiction, the law will presume the depositions
before him, to have been duly and impartially taken. B. K. P.
242. Hotham B. is staled to have received depositions taken
before the coroner, though it was objected, that the defendant
had not he m present. Purefni/'s case, Peake, Er. 68. 4th ed. And
the general practice is said to be, to admit them without
inquiry. Arclih. Cr. Law, 134, 4th ed. So it is said to be the
prevailing opinion, that depositions before a coroner, taken in
Uieabsence of the prisoner, are admissible; 1 Phill. Ev. 354. ;
but a writer of high reputation has stated, that the distinction
between these depositions, and those taken before a magistrate,
is not warranted by the legislature, and that as it is unfounded
in principle, it may, when the question arises, be a matter
of very grave and serious consideration, whether it ought
to be supported. 2 Stark. Ev. 278. 2d ed. And this opinion
has been adopted by another text writer of eminence. 2
Russ. 661,
Depositions in India /></ consent, &c.j By the 13 Geo. 3.
c. 63. for establishing certain regulations for the better manage-
ment of the affairs of the East India Company, in all cases of
indictments or informations in the Kings Bench, for misde-
meanors 01 offences committed in India, that court may award
Proof of Negative Averments. 55
a mandamus to the judges of the supreme court, &c. who are
to hold a court for the examination of witnesses, and receiving
other proofs concerning the matters in such indictment or infor-
mation ; and the examination publicly taken in court shall be
reduced to writing, and shall be returned to the court of King's
Bench in the manner directed by the act, and shall be there
allowed, and read, and deemed as good evidence, as if the wit-
ness had been present. Sec, 40. Depositions with regard to
prosecutions for offences committed abroad by persons em-
ployed in the public service, are regulated by statute 42 G. 3.
c. 85.
Depositions are sometimes taken by consent in criminal cases.
Morphew's case, 2 M. % S. 602. Anon. 2 Chitty, 199. But
these cannot be read if the witness is in this country. 2 Russ.
664.
PROOF OF NEGATIVE AVERMENTS.
General Rules . . .55
Where a fact is peculiarly with in the knowledge of a Party 56
General Rules.~\ It is a general rule of evidence established
for the purpose of shortening and facilitating-investigations, that
the point in issue is to be proved by the party who asserts the
affirmative. 1 Phill. Ev. 184. B. X. P. 298. But as this rule
is not founded on any presumption of law in favour of the party,
but is merely a rule of practice and convenience, it ceases in all
cases where the presumption of law is thrown into the other
scale. " Where the law," says Gilbert, C. B. " supposes the
matter contained in the issue, there the opposite party must be
put into the proof of it by a negative, as in the issue of ne
nnques decouple in loyal matrimonie, the law will suppose the
affirmative without proof, because the law will not easily suppose
any person to be criminal ; and therefore, in this case the de-
fendant must begin with the negative." Gilb. Ev. 145.
In general, therefore, as the law presumes that every person
acts legally, and performs all the matters which he is by law
required to perform, the party who charges another with the
omission to do an act enjoined by law, must prove such omis-
sion, although it involves the proof a negative. Thus in an
information against Lord Halifax for refusing to deliver up the
56 Proof of Negative Averments.
Rolls of the Auditor of the Exchequer, it was held that the
plaintiff was bound to prove the negative, viz. that Lord Hali-
fax did not deliver them, for a person shall be presumed duly to
have executed his office till the contrary appear. B. N. P.
298. So in an action for the recovery of penalties under the
Hawker's and Pedlar's Act, (29 G. 3. c. 26. s. 4.) against a
person charged with having sold goods by auction in a place in
which he was not a householder, some proof of this negative,
viz. of the defendant not being a householder in the place,
would be necessary on the part of the plaintiff. 1 Phitt. Ev.
184.
Upon the same principle on the trial of an indictment under
the 42 Geo. 3. c. 107. s. 1. (repealed,) which makes it felony to
course deer in an inclosed ground, " without the consent of the
owner of the deer ;" it has been held that proof of the consent
not having been given must come on the part of the prosecutor.
Rogers's case, 2 Campb. 654. But in order to prove such
want of consent it is not essential to call the owner himself.
Allen's case, Chamberlain's case, 1 Moo. C. C. 154. Hazy's
case, 2 C. <5f P. 458. Upon the same principle, where the issue
is on the legitimacy of a child born in lawful wedlock, it is
incumbent on the party asserting its illegitimacy to prove it;
Banbury Peerage case, 2 Selw. N. P. 709 ; and where the
issue is on the life of a person who is proved to have been
alive within seven years, the party asserting his death must
prove it. Ante, p. 21.
Where a fact is peculiarly within the knowledge of a party. ]
But where a fact, is peculiarly within the knowledge of one of
the parties, so that he can have uo difficulty in showing it, the
presumption of innocence or of acting according to law, will
not render it incumbent upon the other side to prove the nega-
tive ; but the party who must know the fact is put to the proof
of it. Thus in the case of a conviction under the stat. 5 Ann.
c. 14. s. 2. against a carrier having game in his possession, it
was held sufficient that the qualifications required by the stat.
22 & 23 Car. 2. c. 25. were negatived in the information and
adjudication, without negativing them in evidence. Turner's
case, 5 M. $f S. 206. So where, on a conviction for selling ale
without a licence, the only evidence given was that the party
sold ale, and no proof was offered of his selling it without a
licence ; the party being convicted, it was held that the con-
viction was right, for that the informer was not bound
to sustain in evidence the negative averment. It was said
by Abbott, C. J. that the party thus called on to answer
for an offence against the excise laws, sustains not the slightest
inconvenience from the general rule, for he can immediately
produce his licence ; whereas if the case is taken the other way,
the informer is put to considerable inconvenience. Hurri-
Evidence confined to the Issue. 57
.OH'>' rase, Paley on Convictions, 45. (n.) 2rf edit. See also
.Smith's ease, 3 Burr. 1476. The same rule has been frequently
acted upon iu civil cases. Thus on an action against a person
for practising as an apothecary, without having obtained a cer-
tificate according to the 55 Geo. 3. c. 194., the proof of the
certificate lies upon the defendant, and the plaintiff need not
give any evidence of his practising without it. Apoth. Comp.
v. BmtUy, R. Se M. A T . P. C. 159.
EVIDENCE CONFINED TO THE ISSUE.
General Rule ... 57
Cases where Evidence of other transactions is admissible
as referable to the point in Issue . 58
Acts and Declarations of Conspirators . 60
Admissible for Prisoner as well as for Prosecution 64
Cumulative offences . . 66
Guilty knowledge ... 66
Intent .... 71
Evidence of character of the Prosecutor . 72
Of the Prisoner ... 72
General Rule.] It is a general rule, both in civil and
criminal cases, that the evidence shall be confined to the point
in issue. In criminal proceedings it has been observed, (2
Rnsf. 694. 1 Phill.Ev. 166.) that the necessity is stronger, if
possible, than in civil cases, of strictly enforcing this rule ;
tor where a prisoner is charged with an offence, it is of the
utmost importance to him, that the facts laid before the jury
should consist exclusively of the transaction, which forms the
subject of the indictment, which alone, he can be expected
to come prepared to answer.
Under this rule, therefore, it is not competent for the pro-
secutor to give evidence of facts, tending to prove another dis-
tinct offence, for the purpose of raising an inference that the
prisoner has committed the offence in question. Thus, in
treason, no overt act amounting to a distinct and independent
charge, though falling under the same head of treason, can be
given in evidence, unless it be expressly laid in the indictment /
yet if it amounts to direct proof of any of the overt acts laid, it
58 Evidence confined to the Issue. .
may be given in evidence. Foster, 245, Upon the same ground
it is not competent to the prosecutor to give evidence of the pri-
soner's tendency to commit the offence with which he is
charged. Thus on a prosecution for an infamous crime, an ad-
mission by the prisoner, that he had committed such an offence
at another time, was held by all the judges to have been pro-
perly rejected. Cote's case, 1 Phiil. Ev. 170.
Cases where evidence of other transactions is admissible as
referable to the point in isse.] But where the evidence is re-
ferable to the point in issue, it will not be inadmissible, although
it may incidentally apply to another person, or to another thing
not included in the transaction in question, and with regard to
whom, or to which, it is inadmissible. See Willis v. Bernard,
8 Bingh. 376. I Thus although it is not material in general,
and it is therefore inadmissible, to inquire into any other stealing
of goods than that specified in the indictment, yet for the pur-
pose of ascertaining the identity of the person, it is often im-
portant to show that other goods which have been upon an
adjoining part of the premises, were stolen on the same night,
and afterwards found in the possession of the prisoner. 1 PhM.
Ev. 153. I So on an indictment for arson, evidence lias been
admitted to show that property which had been taken out of
the house at the time of the firing, was afterwards discovered in
the prisoner's possession. Rickman's case, 2 East, P. C. 1035.
A case is cited by Lord Ellenborough, in Whiley's case, where
a man committed three burglaries on one night, and stole a shirt
at one place and left it at another, and they were all so con-
nected, that the court heard the history of the three burglaries.
Whiley's case, 2 Leach, 985, 1 New Rep. 92. S. C. Mr. Justice
Heath, at the same trial, cited a case where several persons were
indicted for a conspiracy to raise wages, and on the trial, evi-
dence was received of circumstances which, taken by them-
selves, amounted to substantive felonies; but as those circum-
stances were material to the point in issue, they were admitted
in evidence. Id. The prisoner was indicted for robbing the
prosecutor, (by threatening to accuse him of an unnatural of-
fence.) For the prosecution, evidence was given of a similar
attempt on the following evening, when the prisoner brought
with him a duplicate pawn ticket, for a coat, which he had
obtained before. This evidence was objected to, as going to
establish a distinct offence, but Holroyd, J. received it, (Wood,
li. coinciding with him as to its admissibility) on the ground
of its being offered as confirmatory of the truth of the prosecutor's
evidence, as to the transactions of the former day, and as to
the nature of those transactions. Egerton's case, Runs, ty Ry.
C. C. 376- Upon the same principle, viz. that the other acts were
explanatory of the transaction in question, similar evidence was
Evidence confined to the Issue. 59
admitted in the following case. The prisoner, who had been in
the employ of the prosecutrix, was indicted for stealing six
shillings. The son of the prosecutrix suspecting the prisoner,
had marked a quantity of money, and put it into the till, and
the prisoner was watched by him. On the first examination
of the till, it contained 11s. 6f. The prosecutrix's son having
received another shilling from a customer, put it into the till ;
and another person having paid a shilling to the prisoner, he
was observed to go to the till, to put in his hand and to with-
draw it clenched. He then left the counter, and was seen to
raise his hand clenched to his waistcoat pocket. The prosecutrix
was proceeding to prove other acts of the prisoner, in going to
the till and taking money, when it was objected that this
would be to prove several felonies. The objection being over-
ruled, the prosecutrix s son proved, that upon each of the
several inspections of the till, after the prisoner had opened it,
he found a smaller sum than ought to have been there. The
prisoner having been convicted, the Court of King's Bench, on
an application for staying the judgment, were of opinion that
it was in the discretion of the judge to confine the prosecutor to
the proof of one felony, or to allow him to give evidence of
other acts which were all part of one entire transaction. Ellis's
case, 6 B. c\~ C. 145. Similar evidence was lately admitted in
a case of robbery. The prisoners came with a mob to the pro-
secutor's house, and one of the mob went up to the prosecutor,
and civilly, and as he believed with a good intention, advised
him to give them something to get rid of them, which he did.
To show that this was not bond fide advice to the prosecutor,
but in reality a mode of robbing him, it was proposed to give
evidence of other demands of money made by the same mob
at other houses, at different periods of the same day, when some
of the prisoners were present. Parke, J. having conferred with
Vaughan, B. and Alderson, J. said, " We are of opinion, that
what was done by the mob, before and after the particular
transaction at the prosecutor's house, but in the course of the
same day, and when any of the prisoners were present, may be
given in evidence." He afterwards stated that the judges (it
was a special commission) had communicated with Lord
Tenterden, who concurred with them in this opinion. Wink-
worth's, case, 4 C. & P. 444. See also Mogg's case, 4 C. & P .
364.
On an indictment for burglary and larceny, it appearing that
the prisoners might have been in the house before dark, and
that nothing had been stolen at that time ; the prosecutor pro-
posed to give evidence of a larceny committed in the house by
the prisoners previously, but the court rejected the evidence,
the latter felony being a distinct transaction. Vandercomb
c<ite, 2 Leach, 708. 2 East, P. C. 519. S. C.
CO Evidence confined, to the Issue.
Cases uhere evidence of other transactions is admissible as
referable to the point in issue acts and declarations of conspira-
tors.] Not only, as in the cases before mentioned, may the
acts and declarations of the prisoner himself on former occa-
sions, be admitted when referable to the point in issue, but also
the acts and declarations of other persons with whom he has
conspired, may, if referable to the issue, be given in evidence
against him.
In piosecutions for conspiracies, it is an established rule, that
where several persons are proved to have combined together
for the same illegal purpose, any act done by one of the party
in pursuance of the original concerted plan, and with reference
to the common object, is in the contemplation of law as well
as in sound reason, the act of the whole party; and therefore
the proof of the act will be evidence against any of the others
who were engaged in the same general conspiracy, without
regard to the question, whether the prisoner is proved to have
been concerned in the particular transaction. 1 Philt. Ev. 88.
Thus on the trial of an indictment against several persons for
a conspiracy, in unlawfully assembling for the purpose of ex-
citing discontent or disaffection, as the material points for the
consideration of the jury are ; the general character and inten-
tion of the assembly, and the particular case of the defendant as
connected with that geneial character, it is relevant to prove,
on the part of the prosecution, that bodies of men came from
different parts of the country to attend the meeting, arranged
and organised in the same manner and acting in concert. It
is relevant also to show, that early on the day of the meeting,
on a spot at some distance from the place of meeting, (fiom
which spot, bodies of men came afterwards to the place of
meeting) a great number of persons, so organized, had as-
sembled, and had there conducted themselves in a riotous,
disorderly, or seditious manner. Hunt's case, 3 B. $t A.
573, 574.
Upon the same piinciple, on the trial of a similar indictment,
it is relevant to produce in evidence, resolutions proposed by one
of the defendants at a large assembly in another part of the
country, for the same professed object and purpose as were
avowed at the meeting in question ; and also, that the de-
fendant acted at both meetings as president or chairman ; for
in a question of intention, it is most clearly relevant to show,
against that individual, that at a similar meeting, held for an
object piofessedly similar, such matters had passed under his
immediate auspices. Hunt's case, 3 B. $ A. 577.
The same rule is acted upon in cases of treason. If several
persons agree to levy war, some in one place and some in
another, and one party do actually appear in arms, this is a
levying of war by all, as well those who were not in arms as
those who were, if it weie done in pursuance of the original
Evidence confined to the Issue. 61
concert ; for those who made the attempt were emboldened by
the confidence inspired by the general concert, and, therefore,
these particular acts are in justice imputable to all the rest. 1
East, P. C. 97. Kel. 19. 3 Inst. 9. " But, suppose," says
Mr. East, " a conspiracy to levy war, and a plan of operations
settled, and those to whom the execution of them is committed
afterwards see occasion to vary in certain particulars from the
original plan, which is accordingly done, unknown to some of
the conspirators ; yet I conceive," he adds, " that if the new
measures were conducive to the same end, and that in substance
the original conspiracy were pursued, they all remain respon-
sible for each other's acts." 1 East, P. C. 98. Vide post,
title Accessories, and Murder.
Letters and writings also of one of several conspirators are
frequently offered in evidence against others. In Stone's case,
(Jor high tieason) evidence having been given to connect the
prisoner with one Jackson, and to show that they were engaged
in a conspiracy to transmit to the French an account of the
disposition of the English, in case of an invasion, the Secretary
of State was called to prove that a letter of Jackson's, con-
taining treasonable information of the state of this country,
had been transmitted to him from abroad. The evidence was
objected to, as the letter was not proved to have come to the
prisoner's hands. But the court admitted it, on the authority
oiTooke's case and Hardy's case, the acts of Jackson done in
pursuance of the conspiracy, being, in contemplation of law, the
acts of the prisoner. Stone's case, 1 East, P. C. 99. 6 T. R.
.327. -25Hou:St. Tr. 1311.S. C.
Papers found in the custody of the prisoner are admissible in
evidence, without any prop/ of the handwriting being his. 1
Eatt, P. C. 119. Layer's case, 6 St. Tr. 279.
The letters or writings must appear to have been written in
furtherance of the conspiracy, and not as a mere relation of a
past transaction. On the trial of Hardy, a letter from Thelwall
to a third person, not connected with the conspiracy, was offered
in evidence, containing seditious songs, which the letter stated
to have been composed and sung at the anniversary meeting of
the London Corresponding Society, of which the prisoner and
the writer were proved to be members. It being objected that
the letter was merely a relation by the writer, the majority of
the court decided against the admissibility of the letter. They
considered the letter not as an act done in prosecution of the
plot, but as a mere narrative of what had passed. " Corres-
pondence," said Eyre, C. J. " very often makes a part of the
transaction, and in that case the correspondence of one who is a
party to the conspiracy would undoubtedly be evidence, that is,
a correspondence in furtherance of the plot ; but a correspon-
dence of a private nature, a mere relation of what has been
62 Evidence confined to the Issue.
done, appears a different thing." Hardy's case, 24 How. St. 7V.
452. 475.
It is not necessary, in order to render the letter of one of
several conspirators evidence, that it should ever have reached
the hands of the person to whom it was addressed. Thus, in
Stone'* case, supra, p. 61, the letter which was read in evidence
had been intercepted ; and in Hardy's case, a letter written by
the chairman of a meeting in London, to a delegate sent by
that meeting into Holland, though never received by that per-
son, was allowed to be read in evidence, on the ground that it
was a letter written by one conspirator to another conspirator,
and having relation to the conspiracy, the tendency and nature
of which it contributed to show. Hardy's case, 24 How. St. Tr.
453. 477.
With regard to the time and place of finding such letters or
writings, it is obvious that they ought to be such as to afford a
presumption that the documents are genuine. Where, after the
prisoners had been apprehended, several letters directed to them
were intercepted at the post office, and were attempted to be
given in evidence against them at the trial, the court said, that
as they had never been in the custody of the prisoners, or any
way adopted by them, they were inadmissible. Heveii's case,
1 Leach, 235. In Hardy's case it was proposed to give in
evidence certain writings found subsequently to the apprehen-
sion of the prisoner, in the possession of Martin and Thelwall,
persons charged with the same conspiracy; but it was held that
as there was no evidence to show the existence of the writings
previous to the prisoner's apprehension, or that he was a party
to them, they could not be read. Hardy's case, 24 How. St. 7V.
452. But if there be a presumption of the previous existence
of the writing, it will then be admissible. On the trial of
Watson for high treason, proof was admitted of papers found in
the lodgings of Watson the younger, who had been engaged in
the conspiracy, after the apprehension of the prisoner, and a
witness stated that similar papers had been shewn to him.
Hardy's case having been cited by the counsel for the prisoner,
the court were clearly of opinion that these writings were ad-
missible, since, in the first place, there was a strong presump-
tion that the papers found in the room were there previously to
the apprehension of the prisoner, a circumstance which very
materially distinguished this case from (hat of Hardy, where
the papers were found in the possession of persons after his
apprehension, which persons might have acquired the posses-
sion after his apprehension ; whereas, in the present case, the
room in which the papers were found had been kept locked up
by one of the conspirators ; and, secondly, because these pa-
pers had all a reference to the design and plan of the conspi-
racy as detailed in evidence. IVaium'scase, 2 Stark. 140.
Evidence confined to the Issue. OS
In the same case evidence was given by Castles, an accom-
plice, that a quantity of pikes, made in furtherance of the con-
spiracy, had been carried to the lodgings of the younger Wat-
son, and that this was communicated to the elder Watson.
The latter was apprehended on the 2d December, and the
pikes were not discovered until the 5th of March. It was ob-
jected that the evidence of the discovery of the pikes being after
the prisoner's apprehension, ought not to be received ; and
Hardy's case was cited. But the court was clearly of opinion
that it was admissible. In the case cited, what was offered to
be produced in evidence did not exist before the apprehension,
but here the thing not only existed, but had been carried to
the house by two of those who had been stated to be parties to
the transaction. Watson's case, 2 Stark. 137.
Where letters and writings are offered in evidence, in these
cases, it must appear that they are connected with the objects
of the conspiracy, and that they are not merely the speculative
opinions of the party by whom they were written. But if they
be so connected, then though they may never have been pub-
lished, they are admissible in evidence. In Sidney's case, 9 How.
St. Tr. 817., writings composed several years before the offence
with which the prisoner was charged, and never published, were
allowed to be read in evidence against him, a course clearly
illegal ; " but I freely admit/' says Mr. Justice Foster, " that
had the papers found in Mr. Sidney's closet, been plainly
relative to the other tieasonable practices charged in the
indictment, they might have been read in evidence against
him, though not published." Foster, 193. 4 Black. Com. 80.
1 East, P. C. 119. In Watson's case, a paper containing
questions and answers, found in the lodgings of the younger
Watson, and tending to corrupt the soldiers, was offered in
evidence ; but the reception of this evidence was objected to,
and Sidney's rase was cited. Lord Ellenborough observed that
where a doubt existed, his inclination was to reject a paper
offered against a defendant in sucli a case. That if there had
been proof of a design to corrupt the soldiers by written papers
circulated amongst them, this would have been evidence of a
paper to effectuate that purpose ; but that the contents of the
paper appeared to be of too abstract a nature, and too little con-
nected with any of the objects of the conspiracy, then in
evidence. Abbott J. distinguished Sidney's case. The paper
there was not only then an unpublished paper, but appeared to
have been composed several years before the crime charged to
have been committed. He entertained considerable doubt upon
the present question, but his opinion was that the paper was too
abstract in its terms to be admissible. Watson's case, '2 Stark.
145.
Not only are the arts, and the written letters and papers, of
one of several persons engaged in the same conspiracy, evidence
64 Evidence confined to the Issue.
against the others, if clone or written in furtherance of the
common purpose, but his verbal declarations are equally ad-
missible under similar restrictions. Any declarations made by
one of the party in pursuance of the common object of the
conspiracy, are evidence against the rest of the party, who are
as much responsible for all that has been said or done by their
associates in carrying into effect the concerted plan, as if it had
been pronounced by their own voice, or executed by their own
hand. These declarations are of the nature of acts ; they ate
in reality, acts done by the party, and generally they are far
more mischievous than acts which consist only in corporal
agency. All consultations therefore carried on by one conspi-
rator, relative to the general design, and all conversations in his
presence, are evidence against another conspirator, though
absent. 1 Phill. Ev. 89. The effect of such evidence must
depend on a variety of circumstances, such as whether the
parly was attending to the conversation, and whether he approved
or disapproved ; still such conversations are admissible in evi-
dence. Per Eyre C. J. Hardy's case, 24 How. St. 7V. 704.
In Lord George Gordon's case the cry of the mob, being part
of the transaction, was held to be admissible against the pri-
soner. 21 How. St. Tr. 535.
Cases where evidence of other transactions is admissible as to the
point in issue admissible 1 or prisoner as well as for prosecution.]
Evidence of other acts and declarations of the prisoner, as it is
admissible for the prosecution, under the restrictions above
stated, so it is also admissible on behalf of the prisoner. On
;i cir.irge of murder, for instance, expressions of good will, and
acts of kindness on the part of the prisoner towards the de-
ceased, are always considered important evidence, as showing
what was his general disposition towards the deceased ; from
which the jury may be led to conclude that his intention could
not have been what the charge imputes. 1 Phill. Ev. 166. Soon
the trial of an information against the proprietor of a news-
paper, for a seditious libel, Lord Ellenborough ruled that the
defendant had a right to have any parts of the same paper,
upon the same topic with the libel, or fairly connected with it,
read, although locally disjoined from the libel. Passages, his
lordship observed, of the same paper, tending to show the in-
tention and mind of the defendant with respect to the specific
paragraph, must be very material for the consideration of the
jury. Lambert's case, 2 Campb. 398.
As, in trials for conspiracies, whatever the prisoner may have
done or said, at any meeting alleged to be held in pursuance
of the conspiracy, is admissible in evidence on the part of the
prosecution against him; so on the other hand, any other part
of his conduct at the same meetings, will be allowed to be
proved on his behalf ; for the intention and design of a party
Evidence confined to the Issue. 65
at a particular time, are best explained by a complete view of
every part of bis conduct at tliat time, and not merely from the
proof of a single and insulated act or declaration. 1 Phill.
Ev. 176. On the trial of an indictment for a conspiracy to
overthrow the government, evidence was given to show that the
conspiracy was brought into overt act, at meetings, in the pre-
sence of the prisoner Walker. His counsel was allowed to
ask, whether at those times he had heard Walker utter any
word inconsistent with the duty of a good subject. He was
also allowed to inquire into the general declarations of the
prisoner at the meetings, and whether the witness had heard
him say any thing that had a tendency to disturb the peace.
I bid. 23 How. St. Tr. 1131. 31 Id. 43.
The acts and declarations of a prisoner, gi"en in evidence in
his favour, ought to be connected both in point of subject
matter, and of time, with the acts or declarations proved
against him. Seel Phill. Ev. 172. In the two following cases,
however, great latitude was allowed on a trial for high treason.
Where the overt act charged was, that the prisoner, to compass
the king's death, conspired with others to call a convention of
the people, &c. ; the prisoner's counsel was allowed to ask the
witness whether, before the time of the convention, he had ever
heard from the prisoner what his objects were, and whether he
had at all mixed himself in the business. Hardy's case,
24 How. St. Tr. 1097. So in Home Tooke's case, 1 East, P. C. 61,
25 How. St. Tr. 545, evidence having been given on the part of
the crown, of several publications containing republican doc-
trines and opinions, which had been distributed by the prisoner
during the period assigned in the indictment, (for high treason)
for the existence of the conspiracy, the prisoner offered to put in
a book, written by him, expressive of his veneration for the king
and constitution ; this was objected to, as being antecedent to
the period of the conspiracy, and not relating to the particular
transaction. After argument, the book was admitted, on the
ground that it had reference to the proof given in support of
the charge, to rebut the idea, that a reform in parliament was a
pretence made by the prisoner, and that his real object was to
overturn the government. The soundness of this decision has
been doubted by Lord Ellenborough, who said, that if the
point should ever occur before him, it would become his duty
seriously to consider whether such evidence should be admitted.
Lambert's case, 2 Campb. 409. In the following cases a more
strict limit was placed to the investigation of the acts and de-
clarations of a prisoner. On the trial of Lord George Gordon,
a witness was asked by his counsel, on cross-examination, as
to a statement made by the prisoner on the night before the
meeting, in St. George's Fields, and with respect to which,
such evidence had been produced. The question was over-
ruled, and Lord Mansfield said, that as the counsel for the.
66 Evidence confined to the Issue.
crown had given evidence of what the prisoner said at the
meeting, on the 29th of May, the counsel for the prisoner
might show the whole connection of what the prisoner said,
besides, at that meeting ; but that they could not go into evi-
dence of what he said on an antecedent day. 21 How. St. TV.
542. So in Hanson's case, on the charge of promoting a riot,
the prisoner's counsel was not allowed to prove what he had
said privately to a friend, previously to his going to the place of
riot, respecting his motives in going thither. 31 How. St. Tr.
1281.
On the trial of an indictment for a conspiracy to defraud,
the written correspondence of the defendant, with another of the
conspirators relating to the transaction in question, was allowed
to be read, in order to show that the defendant was deceived by
his correspondent, and was not a participator in the fraud.
Per Best J. "I think them admissible; for what the parties
say at the time is evidence to show how they acted." White-
head's case, 1 C. # P. 67.
Cases where evidence of other transactions is admissible as
referable to the point in issue cumulative offences.'] Where the
Offence is a cumulative one, consisting, itself, in the commission
f a number of acts, evidence of those various acts so far from
being inadmissible, is essential to the proof of the charge.
Thus on an indictment against the defendant for a conspiracy,
to cause themselves to be believed persons of large property, for
the purpose of defrauding tradesmen ; after proof of a repre-
sentation to one tradesman, evidence was offered of a repre-
sentation to another tradesman at a different time, and admitted
by Lord Ellenborough, who said that cumulative instances
were necessary to prove the offence, and that the same sort of
v evidence was allowed on an indictment for barratry. Roberta's
case, 1 Campb. 399.
Coses where evidence of other transactions is admissible,
las referable to the point in issue guilty knowledge.] In
(various cases it is necessary to prove a guilty knowledge
' in the prisoner, with regard to the transaction in question ;
and for this purpose evidence may be given of circumstances
not connected with the particular offence, in order to raise a
presumption of a guilty knowledge in the prisoner at the time
of the offence committed. On this ground evidence of other
offences of the same kind, committed by the prisoner, though
not charged in the indictment, is admissible against him.
This evidence most commonly occurs in cases of indictments
for uttering forged instruments, knowing them to be forged, and
false coin, knowing it to be counterfeit, in which the guilty
knowledge is the principal ingredient of the offence. The pri-
soner was charged with u'tering a bank of England note,
Evidence confined to the Issue. 67
knowing it to be forged ; evidence was offered for the prosecu-
tion, tbat the prisoner had uttered another forged note in the
same manner, by the same hand, and with the same materials,
three months preceding, and that two ten pound notes and
thirteen one pound notes of the same fabrication, had been
found on the files of the company, on the back of which there
was the prisoner's handwriting, but it did not appear when the
company received them. This evidence was admitted, but the
case was referred to the opinion of the judges, the majority of
whom were of opinion that it was admissible, subject to ob-
servation, as to the weight of it, which would be more or less
considerable, according to the number of the notes, the distance
of time at which they had been put off, and the situation of
life of the prisoner, so as to make it more or less probable,
that so many notes could pass through 'his hands in the course
of business. Ball's case, Rnss. <3f By. 139, 1 Campb. 324. S. C.
The prisoners were indicted for uttering bank notes, knowing
them to be forged. The trial took place in April, and to prove
their guilty knowledge, evidence was given, that in February
they had uttered, on three several occasions, forged bank notes
to three different persons, and that on being asked at each place
for their names and places of abode, they gave false names and
addresses ; and the court was of opinion that this evidence was
admissible. Lord Ellenborough said, that it was competent for
the court to receive evidence of other transactions, though they
amounted to distinct offences, and of the demeanor of the
prisoner on other occasions, from which it might fairly be
inferred that the prisoner was conscious of his guilt, whilst he
was doing the act charged upon him in the indictment. Heath,
J . said, ' ' the charge in this case puts in proof the knowledge of
the person, and as that knowledge cannot be collected from the
circumstances of the transaction itself, it must necessarily be
collected from other facts and circumstances." WhiLey's case,
2 Leach, 983, 1 AW Rep. 92. S. C.
Not only is evidence of the act of passing other forged notes
admissible to prove the prisoner's guilty knowledge, but proof of
his general demeanor on a former occasion will be received for
the same purpose. The prisoner was indicted for forging and
knowingly uttering a bank note, and the question was, whether
the prosecutor, in order to show that the prisoner knew it to be
forged, might give the conduct of the prisoner in evidence, that
is, whether from the conduct of the prisoner on one occasion,
the jury might not infer his knowledge on another, and all
the judges were of opinion that such evidence ought to
be received. Tattershall's case, cited by Lord Ellenbiirough,
2 Leach, 984.
How far it is necessary that the other forged notes should be
of the same description and denomination as the note in ques-
tion, does not appear to be well settled. The prisoner was in-
G8 Evidence confined to the Issue.
dieted for uttering on the 27th November, 1812, a 5/. Bank of
England note, knowing it to be forged. To show the guilty
knowledge, it was proved, that about six weeks previously to
the time in question, the prisoner had tendered a II. Leicester
Bank note, which was supposed to be forged, but was not pro-
duced on the trial ; that on the 4th July, 1812, he passed a
forged 21. Bank of England note, (which was produced) ; that
at the latter end of November 1812, he tendered a 51. Bank
note, supposed to be forged, but not produced at the trial ; and
that again in November, he paid away a 2/. Bank note, (not
produced) but supposed to be forged ; being convicted, the opi-
nion of the judges was taken on this evidence, and they held,
that as evidence had been left to the jury as ot forged notes,
which were not proved to have been forged, the prisoner should
be recommended to mercy. Some of the judges seemed to
think, that if these bills had been clearly pioved to be forged
bills, yet being bills of a different description and denomination
from that on which the prisoner had been indicted, they ought
not to have been given in evidence ; and some of their lordships
seemed to doubt, whether the distance of time was not too
great. At the conclusion of the report of this case, it is said,
qu&re, whether these are not chiefly subjects of observation.
Millard's case, Russ. f Ry. 245. The prisoner was indicted
for uttering a forged 5/. Bank of Ireland note. To show guilty
knowledge, it was proposed to give in evidence the uttering by
the prisoner of two forged notes of the bank of Messrs. Ball &
Co., bankers in Dublin. This evidence being objected to, on the
ground, that the notes were of a different description, Littledale
J. without hesitation overruled the objection, and the prisoner
was convicted. Kirkwood's case, Lewin, C. C. 103, and see
Hodgson's case, Id. 103, post, p. 69.
It appears, that by the Scotch law, evidence of other forged
notes is admissible, though they be not of the same description
as those forged. " The most important circumstance," says an
eminent writer on the criminal law of Scotland, " and which is
generally per se, decisive as to guilty knowledge, is if other
forged notes are found on the prisoner. If four or five forged
notes, and especially forgeries on the same bank with that ut-
tered, are found on the prisoner, it is hardly possible to form
any other conclusion, than that he is a dealer in these dangerous
instruments, caught in the very act of disposing of them. This
will amount to a moral certainty of the other forged concealed
in his possession, as in his hat, in a concealed pocket, sewed
between his coat and the lining, or the like. On the other
hand, the weight of this circumstance, always great, must be
diminished, if the notes found on him were nowise concealed,
and were exhibited by him without any suspicious circumstances
or appearance of conscious guilt." Alison on the Princ. of the
Cr. Law of' Scotland, 420.
Etldence confined to the Issue. 69
Though evidence of the uttering of other forged notes may
be given to show guilty knowledge, yet what was said at an-
other time by the prisoner respecting those utterings, is inad-
missible. Where evidence to this effect was tendered, Baylev
J. stopped it, and said, " ihe prosecutor is at liberty to shew other
cases of the prisoner having uttered forged notes, and likewise
his conduct at the time of uttering them. But what he said or
did at another time, collateral to such other utterings, could not
be given in evidence; as it was impossible that the prisoner
could be prepared to contradict it." Phillipp's case, Lewin, C. C.
105.
Whether, where the other forged note, the issuing or posses-
sion of which is proposed to be given in evidence, in proof of
guilty knowledge, is the subject, at the time, of another indict-
ment, it is admissible in evidence, does not appear to be well
settled ; though upon principle there appears to be no objection
to the reception of such evidence. In one case where such evi-
dence was tendered, Vaughan B. refused to receive it ; Smith's
case, 2 C. f P. 633. : but in another case where the objection
was taken, Littledale J. without hesitation overruled it, and the
prisoner was convicted. Ktrkwood's case, Leicin, C. C. 103.
Where the prisoner was indicted for uttering; forged notes of the
Edinburgh Bank, and it was proposed to give in evidence the
uttering by the prisoner of certain forged notes of the Paisley
bank, (which formed the subject of a separate prosecution) to
show guilty knowledge, Hullock B. said, that he had great
doubts as to the admissibility of the evidence, observing, that if
the prisoner had been indicted for uttering the Edinburgh notes
only, there would have been no doubt. His own opinion was
in favour of receiving the evidence, but many of the judges had
great doubts about it. Hedgtm'tcatt, Lewin, C. C. 103.
The posse-sinn also of other forged notes by the prisoner, is
evidence of his guilty knowledge. The prisoner was indicted
for uttering a bill of exchange upon Sir James Esdaile & Co.,
knowing it to be forged. It was proved, that when he was ap-
prehended, there were found in his pocket-book three other
forged bills, drawn upon the same parties ; on a ca>e reserved,
the judges were all of opinion that these forged bills found upon
the prisoner at his apprehension, were evidence of his guilty
knowledge. Hough's cafe, Russ. <> Ri/. 121. In order how-
ever to render such evidence admissible, it must be proved in
the regular manner, that the other notes were forged. Millard's
case, Rnss. & R;j. 245. ante, p. 68.
On the trial of indictments for uttering or putting off coun-
terfeit coin, knowing it to be counterfeit, it is the piactice, as
in cases of forgery, to receive proof of more than one uttering,
committed by the party about the same time, though only one
uttering be charged in the indictment. 1 Rnss. 85. 2 Russ. 697.
In Whiley's case, (see ante, p. 67.) it was stated by the counsel
70 Evidence confined to the Issue.
for the prisoner, in argument, that upon an indictment for ut-
tering bad money, the proof is always exclusively confined to
the particular uttering charged in the indictment. Upon this
Thompson B. observed, " as to the case put by the prisoner's
counsel of uttering bad money, I by no means agree in their con-
clusion, that the prosecutor cannot give evidence of another
uttering on the same day, to prove the guilty knowledge. Such
other uttering cannot be punished, until it has become the sub-
ject of a distinct and separate charge ; but it affords strong evi-
dence of the knowledge of the prisoner that the money was bad.
If a man utter a bad shilling, and fifty other bad shillings are
found upon him, this would bring him within the description
of a common utterer ; but if the indictment do not contain that
charge, yet these circumstances may be given in evidence on
any other charge of uttering, to show that he uttered the money
with a knowledge of its being bad." 2 Leach, 986.
With regard to the guilty knowledge of a receiver of stolen
goods, it is laid down, that buying the goods at a lower value
than they are worth, is presumptive evidence that the buyer knew
they were stolen. 1 Hale, P. C. 216. 2 East, P. C. 765. Where
upon an indictment for receiving, it appeared that the articles
had been stolen, and had come into the possession of the pri-
soner at several distinct times ; the judge, after compelling the
prosecutor to elect upon which act of receiving he would pro-
ceed, told the jury that they might take into their consideration
the circumstance of the prisoner having the various articles of
stolen property in her possession, and pledging, or otherwise
disposing of them at various times, as an ingredient in coming
to a determination, whether when she received the articles, for
which the prosecutor elected to proceed, she knew them to have
been stolen. Dunn's case, 1 Moody, C. C. 15,).
Where evidence is given of collateral circumstances to show
the prisoner's guilty knowledge, it must appear that those cir-
cumstances occurred previously to the commission of the of-
fence with which he is charged. Thus on an indictment for
forging a bank note, a letter purporting to come from the pri-
soner's brother, and left by the postman, pursuant to the direc-
tion, at the prisoner's lodgings, after he was apprehended, and
during his confinement, but never actually in his custody, can-
not be read in evidence against him. Huet's case, 2 Leach,
820. So on an indictment for uttering a forged bank note, to
show the guilty knowledge, the prosecutors offered to prove the
uttering of another forged note five weeks after the uttering,
which was the subject of the indictment ; but the court (Ellen-
borough, C. J., Thompson, C. B., and Lawrence J.) held that
the evidence was not admissible, unless the latter uttering was
in some way connected with the principal case, or unless it
could be shown that the notes were of the same manufacture. Ta-
verner'scase, Carr.S'up. 195, 1st ed.4C.3f P.413.(w)S.C. How-
Evidence confined to the Issue. 7 1
ever, on an indictment for uttering a bill with a. forged accept-
ance, knowing it to be forged, it being proposed, for the purpose
of proving the guilty knowledge, to give in evidence other forged
bills of exchange precisely similar, with the same drawers' and
acceptors' names, uttered by the prisoner, about a month after
the uttering of the bill mentioned in the indictment, Mr. Jus-
tice Gaselee, after consulting Alexander, C. B. was disposed to
allow the evidence to be received ; but said that he would re-
serve the point for the opinion of the judges ; upon which the
counsel for the prosecution declined to press the evidence. Smith's
case, 4 C.$P. 411.
Cases where evidence of other transactions is admissible when re-
ferable to the point in issue questions of intent.] As evidence of
other facts is admissible when those facts tend to prove the point
in issue, as to show the identity, or to establish the proximity of
the prisoner at the time in question, (vide supra ;) so where the
intent of the prisoner forms part of the matter in issue, evidence
may be given of other acts, not in issue, provided they tend tg/^^- -
establish the intent of the prisoner in committing the act in
question. Thus on an indictment for maliciously shooting,
evidence was given that the prisoner, about a quarter of an hour
before the shooting with which he was charged, intentionally
shot at the prosecutor. It was suggested that this was evidence
of two distinct felonies ; but Mr. Justice Burrough said it was
unavoidable in this case, as it seemed to him to be one con-
tinued transaction in the prosecution of the malicious intent of
the prisoner ; and the judges held that the evidence was rightly
admitted. Voke's case., Russ. <5f Ry. 531.
So on a charge of sending a threatening letter, other letters
written by the prisoner, both before and after that in question,
may be read in evidence as serving to explain the letter upon
which he is indicted. Robinson's case, 2 East, P. C. 1110,
2 Leach, 749. S. C. Upon the same principle in actions for
libels or words, evidence of other libels or words may be given
to show the animus of the defendant, whether the words be
spoken before or after those in question. Charlton v. Barrett,
1'eake, 22. Rustell v. Macquister, 1 Camp. 49 (.)
So the declarations of a prisoner made at a former time are
admissible, where they tend to prove the intent of the party at
the time of the commission of the offence. Thus on an indict-
ment for murder, evidence of former grudges and antecedent
menaces may be given to show the prisoner's malice against the
deceased. 1 Phill. Ev. 169. So in treason, what was said by
the prisoner with respect to what was passing at the time of the
transaction laid as the overt act, may be received in evidence
to explain his conduct, and to show the nature and object of
the transaction. Watson's case, 2 Stark. 134.
72 Evidence confined to the Issue.
Evidence of the character of the prosecutor.] Where the pro-
secutor appears as one of the witnesses, evidence of his charac-
ter, with regard to veracity, will be admitted as in the case of
other witnesses. Vide post. And in some particular cases, Vhere
the character of the prosecutor is mingled with the transaction
in question, it forms a point material to the issue, and may
consequently be inquired into. Thus in the case of an indict-
ment for a rape, evidence that the woman had a bad character
previously to the commission of the offence, is admissible ; and
the same principles apply with regard to an indictment for an
assault with intent to commit a rape. Clarke's case, 2 Stark.
244. 1 Phill. Ev. 165. But in these cases general evidence of
character only is admissible, and not evidence of particular facts.
Id. Thus where on an indictment for a rape the prosecutrix
was asked whether she had not before had connexion with other
persons ; and with a particular person named 1 The judges
held that the witness was not bound to answer these questions,
as they tended to criminate and disgrace herself; and evidence
having been offered to prove that the prosecutrix had had con-
nexion with a man before this charge, the judges also deter-
mined that this evidence was properly rejected. Hodgson's
case, Rtiss, and /?(/. 211. But evidence is admissible that ihe
prosecutrix had formerly been connected with the prisoner. 2
titark. Er. 216. 2<i edit, citing Hodgson's case, supra; and a,
case cor. Wood B., York Summer Assizes, 1812.
Where, on the trial of an indictment for an assault, with
intent to commit a rape, the prosecutrix was asked, on cross-
examination, whether she had not been twice in the House of
Correction many years ago, and she admitted that she had, it
was held by Holroyd, J. that a witness might be examined on
behalf of the prosecution as to her situation and conduct since,
in order to repel the inference which might be drawn from her
former misconduct. Clarke's case, 2 Stark. 241.
Evidence of the character of the prisoner.] In trials for
high treason, for felony, and for misdemeanors, (where the di-
rect object of the prosecution is to punish the offence), the
prisoner is always permitted to call witnesses lo his general cha-
racter; and in every case of doubt, proof of good character
will be entitled to great weight. 1 Phill. Ev. 165. The rule
does not extend to actions or informations for penalties, as to an
information for keeping false weights. Attorney General v.
Boirman, 2 Bos. &; Pul. 532. (n.) To admit such evidence in
that case would be contrary to the true line of distinction,
which is this, that in a direct prosecution for a ciime it is ad-
missible, but where the prosecution is not directly for the crime,
but for the penalty, it is not. If evidence of character were ad-
missible in such a case as this, it would be necessary to try
Evidence confined to the Issue. 73
character in every charge of fraud upon the excise and custom-
house laws. Per Y.yre, C.J. Ibid. The inquiry as to the pri-
soner's general character ought manifestly to bear some ana-
logy and reference to the charge against him. On a charge for
stealing, it would be irrelevant and absurd to inquire into the
prisoner's loyalty or humanity ; on a charge of high treason, it
would be equally absurd to inquire into his honesty and punc-
tuality in private dealings. Such evidence relates to principles
of moral conduct, which, however they might operate on other
occasions, would not be likely to operate on that which alone is
the subject of inquiry ; it would not afford the least presump-
tion that the prisoner might not have been tempted to commit
the crime for which he is tried, and is therefore totally inap-
plicable to the point in question. The inquiry must also be as
to the general character, for it is the general character alone
which can afford any test of general conduct, or raise a pre-
sumption that the peison who had maintained a fair reputation
down to a certain period, would not then begin to act a dis-
honest, unworthy part. 1 Phill. Ei\ 166. It frequently hap-
pens that witnesses, speaking of the general opinion of the
prisoner's character, state their own personal experience and
opinion of his honesty ; but when this statement is admitted,
it is rather from favour to the prisoner than strictly as evidence
of general character. Id.
It has been usual, says a very sensible writer, to treat the
good character of the paity accused as evidence to be taken into
consideration only in doubtful cases. Juries have generally
been told that where the facts proved are such as to satisfy their
minds of the guilt of the prisoner, character, however excel-
lent, is no subject for their consideration ; but that when they
enteitain any doubt of the guilt of the party, they may pro-
perly turn their attention to the good character which he has
received. It is, however, submitted, with deference, that the
good character of the party accused, satisfactorily established
by competent witnesses, is an ingredient which ought always
to be submitted to the consideration of the jury, together with
the other facts and circumstances of the case. The nature
of the charge, and the evidence by which it is supported,
will often render such ingredient of little or no avail ; but
the more correct course seems to be, not in any case to with-
draw it from consideration, but to leave the jury to form their
conclusion upon the whole of the evidence, whether an indi-
vidual, whose character was previously unblemished, has or
has not committed the particular crime for which he has been
called upon to answer. 2 Russ. 703.
The prosecutor cannot enter into evidence of the defendant's
bad character, unless the latter enable him to do so, by calling
witnesses in support of his good character, and even then, the
prosecutor cannot examine as to particular facts. B. A T . P. 296.
Hurd v. Martin, Cowp. 331.
74
SUBSTANCE OF THE ISSUE TO BE PROVED.
General rule . . . .74
Divisible Averments . . . .74
Sufficient to prove what constitutes an offence . 74
Intent . . . . .77
Descriptive Averments . . . .77
The property stolen or injured . . 77
The name of the prosecutor or party injured . 79
Rule of idem sonans . . .81
The name of third persons mentioned in the indictment 82
The mode of committing offences . . .83
Averments not material . . .84
Averments as to time . . . .84
Averments as to place . . . .85
Averments as to value . . . .86
General ru/e.] Under the present head will be considered
the quantity of evidence required in support of particular aver-
ments in indictments, and consequent thereupon, the doctrine
of variances. Upon the latter subject it is said by Lord
Mansfield, that greater strictness is required in criminal prose -
cutions than in civil cases ; and that in the former a defendant
is allowed to take advantage of nicer exceptions. Beech's case,
1 Leach, 134. It may, however, be doubted, whether this
distinction is grounded upon sound principles, and whether
in this respect, as in others, the rules of evidence ought not to
be acted upon in the same manner both in civil and criminal
proceedings.
The greater number of the cases on this subject may be
classed under the two heads of divisible and descriptive
averments.
Divisible averments sufficient to prove what constitutes an
vffence.] It is a distinction which runs through the whole cri-
minal law, that it is enough to prove so much of the indict-
ment as shows that the defendant has committed a substantive
crime therein specified. Per Lord Ellenborough, Hunt's case,
1 Campb. 585. The offence, however, of which he is con-
victed must be of the same class with that with which he is
charged. Thus, upon an indictment for a felony, in stealing
a parchment, it appearing that it concerned the realty, and
Substance of the Issue to be proved. 75
that the prisoner could not, therefore, be convicted of the felony,
it was urged that he might receive judgment as for a trespass,
and for this the Year Book, 2 H. 7. 10 $ 22, Cro. Car. 332,
Kel. 29, Cro. Jac. 497, 1 And. 351, and Dalt. 321, were
cited, but the court, having observed upon these cases, and
shown that they were repugnant to the rules of law and the
principles of justice, directed the prisoner to be discharged.
Westbeer's case, 1 Leach, 14. 2 Str. 1133. S. C.
Upon an indictment for petit treason, if the killing with ma-
lice was proved, but not with such circumstances as to render
the offence petit treason, the prisoner might still have been
found guilty of wilful murder upon that indictment. Swan's
case, Foster, 104. So upon an indictment for murder, the
prisoner may be convicted of manslaughter, for the indictment
contains au allegation of manslaughter. Gitb. Ev. 269.
Macalley's case, 9 Rep. 67. b. Co. Litt. 282. a. And where
a man was indicted on the statute 1 Jac. 1. for stabbing,
contra formum statuti, it was held that the jury might acquit
him upon the statute, and find him guilty of manslaughter at
common law. Hancood's case, Style, 86. 2 Hale, P. C. 302.
Where a man is indicted for burglary and larceny, the jury
may find him guilty of the simple felony, and acquit him of
the burglary. 2 Hale, P. C. 302. So where the indictment was
for a burglary and larceny, and the jury found the prisoner
guilty of stealing to the amount of 40s., in a dwelling house,
(12 Ann. c. 7. repealed by 7 & 8 G. 4. c. 27.) the judges
were of opinion that by this verdict the prisoners were ousted
of their clergy, the indictment containing every charge that
was required by the statute. Withal's case, 1 Leach, 88,
2 East, P. C. 515, stated post. So on an indictment for steal-
ing in a dwelling house, persons therein being put in fear, the
prisoner may be convicted of the simple larceny. Etherington's
case, 2 Leach, 671. 2 East, P. C. 635. stated post.
Again, if a man be indicted for robbery, he may be found
guilty of the larceny, and not guilty of the robbery. 2 Half,
P. C. 302. And in all cases of larceny, where, by statute,
circumstances of aggravation subject the offender to a higher
punishment, on failure in the proof of those circumstances, the
prisoner may be convicted of the simple larceny. Thus on an
indictment for horse stealing, the prisoner may be found guilty
of a simple larceny. Beaney's case, Buss. &; Ry. 416. But
where upon an indictment for robbery from the person, a special
verdict was found, stating facts, which in judgment of law, did
uot amount to a taking from the person, but showed a larceny
of the party's goods ; yet as the only doubt referred to the
court by the jury was, whether the prisoners were or were not
guilty of the felony or robbery charged against them in the
indictment, the judges thought that judgment as for larceny
rould not be given upon that indictment, but remanded the pri-
76 Substance of the Isstie to be proved.
soners to be tried upon another indictment. Frances's ca$r,
2 East, P. C. 784.
In misdemeanors, as well as in felonies, the averments of the
offence are divisible. Thus in an information for a libel, it
was stated that the defendants composed, printed, and pub-
lished the libel, the proof extended only to the publication, but
Lord Ellenborough held this to be sufficient. Hunt's case,
2 Campb. 584.
Where an indictment charges that the defendant did, and
caused io be done a certain act, as forged and caused to be
forged, it is sufficient to prove either one or the other. Per
Lord Mansfield, Middlehurst's case, 1 Burr. 400. Per Lord
Ellenbwough, Hunt's case, 2 Campb. 585.
With regard to the value and extent of the property upon
which the offence has been committed, the averments in the
indictment are divisible. Thus if a man be indicted for steal-
ing goods of the value of ten shillings, the jury may find him
guilty of stealing goods to the value of sixpence, and where
the distinction between grand and petty larceny existed, this
would have rendered the prisoner guilty of trie latter only,
though charged with the former. 2 Hale, P. C. 302. What-
ever quantity of articles may be stated in an indictment for
larceny to have been stolen, the prisoner may be convicted if
any one of those articles be proved to have been feloniously
taken away by him. Where the prisoner was indicted under
the 7 Geo. 3. c. 50. for that he being a post boy and rider,
employed in the business of the post office, feloniously stole
and took from a letter a bank post bill, a bill of exchange for
100/., a bill of exchange for 40/., and a promissory note for
20J., and it was not proved that the letter contained a bill of
exchange for 100/. ; the prisoner beingconvicted.it was held
by the judges that the statement in the indictment not being
descriptive of the letter, but of the offence, the conviction was
right. EUins's case, Uuss. &; Ry- 188. So upon an indictment
for obtaining money under false pretences, it is not necessary
to prove the whole of the pretence charged, proof of part of
the pretence, and that the money was obtained by such part, is
sufficient. Hill's case, Russ. <5f Ry. 190. In the same manner
upon an indictment for extortion, alleging that the defendant
extorted twenty shillings, it is sufficient to prove that he ex-
torted one shilling. Per Halt J. 1 Lord Raym. 149. So upon
an indictment on the 9 Ann. c. 14. s. 5. for winning more than
IO/. at one sitting, Lord Ellenborough held that the defendant
might be convicted of winning a less sum than that stated in
the indictment, though it would have been otherwise if the
prosecutor had averred that the defendant had won bills of
exchange of a specified amount. Hill's case, 1 Stark. 359.
Where in an indictment for embezzling, it was averred that
the prisoner had embezzled divers, to wit, two bank notes for
Substance of the Issue to be prated. 77
one pound each, and one bank note for two pounds, and the evi-
dence was that he had embezzled one pound notes only, this
was held sufficient. Carson's case, Russ. fy Ry. 303.
Divisible averments intent.] Where the intent of the pri-
soner furnishes one of the ingredients in the offence, and several
intents are laid in the indictment, each of which, together with
the act done, constitutes an offence, it is sufficient to prove one
intent only. Thus, on an indictment charging the defendant
with having published a libel of and concerning certain magis-
trates, with intent to defame those magistrates, and also with
a malicious intent to bring the administration of justice into
contempt ; Bayley J. informed the jury, that if they were of
opinion that the defendant had published the libel, with either
of those intentions, they ought to find him guilty. Evans's case
3 Stark. 35. So where the indictment charged the prisoner
with having assaulted a female child, with intent to abuse, and
carnally to know her, and the jury found that the prisoner as-
saulted the child with intent to abuse her, but negatived the
intention carnally to know her ; Holroyd J, held, that the aver-
ment of intention was divisible, and the prisoner received
sentence of imprisonment for twelve months. Dawscm's case,
3 Stark. 62.
Descriptive averments the property stolen or injured.] Where
a person or a thing, necessary to be mentioned in an indict-
ment, is described with circumstances of greater particularity
than is requisite, yet those circumstances must be proved,
otherwise it would not appear that the person or thing is the
same as that described in the indictment.
With regard to the thing upon which the offence is alleged
to have been committed, if a man were to be charged with
stealing a black horse, the allegation of colour, although unne-
cessary, yet being descriptive of that which is material, could
not be rejected. 3 Stark. Ev. 1531. 1st ed. The prisoner was
indicted for stealing four live tame turkeys. It appeared that
he stole them alive in the county of Cambridge, killed them
there, and carried them into Hertfordshire, where he was tried.
The judges held that the word live in the description, could
not be rejected as surplusage, and that as the prisoner had not
the turkeys in a live state in Hertfordshire, the charge as laid
was not proved, and that the conviction was wrong. And
Holroyd J. observed, that an indictment for stealing a dead
animal, should state that it was dead ; for upon a general state-
ment, that a party stole the animal, it is to be intended that he
stole it alive. Edicards's case, Russ. $ Ru. 497.
The following cases have occurred of variances in the de-
scription of animals. On an indictment upon the statute
15 Geo. 2. c. 34., which mentions both cows and heifers, it was
78 Substance of the Issue to be proved.
held, that a beast two years and a half old, which had never
had a calf, was wrongly described as a cow. Cook's case, 2 East,
P. C. 616, 1 Leach 105. On an indictment for stealing two
colts, it appeared that the one was a mare four years old, and
the other a yearling mare or JMy. The witnesses said, that
animals of this description, when as young as those in question
were, according to the usual language of the country called
colts, and some of the jurors said that mares or jillies are ge-
nerally called colts, until they are three or four years old. The
prisoner being convicted of the simple larceny, the judges were
unanimously of opinion, that the conviction for simple larceny
was correct, but as colts were not mentioned eo nomine in the
statute (1 Ed. 6. c. 12., 2 Ed. 6. c. 33.) the judges could not
take notice that they were of the horse species, and conse-
quently clergy was not taken away. Beaney's case, Buss, fy Ry*
416. The prisoner being indicted under the 9 Geo. 1. c. 22.,
for killing " certain cattle, to wit, one mare ;" the evidence
was, that the animal was a colt, but of which sex did not ap-
pear; the prisoner being convicted, the judges on a case re-
served, were of opinion, that the words, " a certain mare,"
though under a videlicet, were not surplusage, and that the ani-
mal proved to have been killed, being a colt, generally without
specifying its sex, was not sufficient to support a charge of kill-
ing a mare. Chalkley's case, Rnss. &; Ry. 258.
Where a statute mentions only the grown animal, the young
is included, and it is no variance to describe the young animal
as if it had been the grown animal. Thus, upon an in-
dictment on the 2 & 3 Ed. 6., which mentions the words
" horses, geldings, and mares,'' it was held that foals and fillies
were included in those words, and that evidence of stealing a
mare filly, supported an indictment for stealing a mare. Wei-
land's case, Ruts. <5f liy. 494. But where the statute (15 Geo.
2. c. 34., and see 7 & 8 Geo. 4. c. 29. 24.) specified lambs as
well as sheep, and the indictment was for stealing sheep, proof
that they were lambs, was held to be a variance. Loom's case,
1 Moody, C. C. 160. Upon the same principle, the judges
have held, that an indictment under the 7 & 8 Geo. 4, c. 29.
25, for stealing a sheep, is not supported by proof of stealing
an ewe, because the statute specifies both ewes and sheep. Pud-
difoot's case, 1 Moody, C. C. 247.
Where the prisoner was indicted for stealing " six handker-
chiefs," and it appeared in evidence, that the handkerchiefs
were all in one piece, not separated one from another, but that
they were described in the trade as so many handkerchiefs, it
was held to be no variance. Nibb's case, 1 Moody, C. C. 25.
Where on an indictment for stealing a bank note, the note
was described as being signed by A. Hooper, for the Governor
and Company of the Bank of England, and no evidence was
given of the signature of Hooper, the judges were of opinion
Substance of the Issue to be proved. 79
*<hat the statement " signed by A. Hooper," required some evi-
dence of the signature being by him. Craven's case, Russ. &
Ry. 14.
Descriptive averments the name of the prosecutor or part i/
injured.] The name, both Christian and surname, of the person
in whom the property is vested, which has been stolen, &c., or
upon whom the offence is charged to have been committed,
is matter of description, and must be proved as laid. But if
the name of the prosecutor be that by which he is usually
called and known, it is sufficient. The prisoner was tried for
stealing the goods of Mary Johnson. The prosecutrix stated,
that her original name was Mary Davis, but that she had been
called and known by the name of Johnson for the last five
years, and that she had not taken the name of Johnson for con-
cealment or fraud ; the judges were clearly of opinion that the
time the prosecutrix had been known by the name of Johnson,
warranted her being so called in the indictment, and that the
conviction was right. Norton's case, Russ. fy Ry. 510. So in
a late case, where the prisoner was indicted for stealing the
goods of Richard Pratt, and it appeared that his name was
Richard Jeremiah Pratt, but he was equally well known by the
name of Richard Pratt, it was ruled that the indictment was
sustained. Anon. 6 C. fy P. 408. Upon an indictment for the.
murder of a bastard child, described in the indictment as
"George Lakeman Clark," it appeared it had been christened
" George Lakeman," being the names of its reputed father; that
it was called George Lakeman, and not by any other name
known to the witnesses, and that the mother called it George
Lakeman. There was no evidence that it had obtained, or was
called by its mother's name of Clark. The judges held, that as
this child had not obtained his mother's name by reputation, he
was improperly called Clark in the indictment, and as there
was nothing but the name to identify him in the indictment,
the conviction could not be supported. Clark's case, Russ. fy Ry.
358 . The prisoner was indicted for stealing the goods of Vic-
tory, Baroness Turkheim. The prosecutrix stated that Baroness
Turkheim was her title only, and no part of her proper name ,
but that she was not only reputed to possess that title, but did
actually possess it in right of an estate inherited from her father,
that she was constantly so called, and had constantly and uni-
formly acted in, and been known by that appellation, and that
her name without her title was Selina Victoite. The Court
said, that as the prosecutrix upon the present occasion had
always acted in, and been known by the appellation Baroness
Turkheim, and could not possibly be mistaken for any other
person, it must be taken to be her name ; and that, therefore,
the indictment had named her with sufficient certainty. Suit's
case, 2 Leach, 861.
80 Substance of the Issue to be proved.
Where an unmarried woman was robbed, and after the
offence committed, but before the bill was presented to the
grand jury, she married, and the indictment described her by her
maiden name, this was held to be sufficient. Turner's case,
1 Leach, 536.
Although where there are father and son of the same name,
and that name is stated without any addition, it shall be primi
facie intended to signify the father, Wilson v. Stubs, Hob. 330,
Sweeting v. Fowler, 1 Stark. 106, yet on an indictment con-
taining the name without addition, it may be proved that either
the father or son was the party intended. Thus on an indict-
ment for an assault upon Elizabeth Edwards, it appeared that
there were two of that name, mother and daughter, and thai in
fact the assault had been made on the daughter, the de-
fendant being convicted, the conviction was held good. Peace's
ease, 3 B. % A. 580.
An indictment is good, stating that the prisoner stole or re-
ceived the goods of a person, to the jurors unknown; but in
case the owner of the goods be really known, an indictment
alleging thts goods to be the property of a person unknown,
would be improper, and the prisoner must be discharged of
that indictment, and tried upon a new one for stealing the
goods of the owner by name. 2 Hale, P. C. 621. Where the
property was laid iu one count as belonging to certain persons
named, and in another, as belonging to persons unknown, and
the prosecutor failed to prove the Christian names of the
persons mentioned in the first count, it was held by Richards,
C. B. that he could not resort to the second count, and the
prisoner was acquitted, liobinson's case, Holt, N. P. C. 595. An
indictment against the prisoner as accessory before the fact to a
larceny, charged that a certain person to the jurors unknown,
feloniously stole, &c. and that the prisoner incited the said
person unknown to commit the said felony. The grand jury
had found the bill upon the evidence of one Charles lies, who
confessed that he had stolen the property, and it was proposed
to call him to establish the guilt of the prisoner, but Le Blanc
J. interposed and directed an acquittal. He said he considered
the indictment wrong, in stating that the property had been
stolen by a person unknown, and asked how the witness, who
was the principal felon, could be alleged to be unknown to
the jurors when they had him before them, and his name was
written on the back of the bill. Walker's case, 3 Campb. 264.
But where an indictment stated that a certain person to the
jurors unknown, burglariously entered the house of H. W., and
stole a silver cream jug, &c. which the prisoner feloniously re-
ceived, and it appeared that amongst the records of indictments
returned by the same grand jury, there was one charging Henry
Moreton, as principal in the burglary, and the prisoner as ac-
cessory in receiving the cream jug; that H. W.'s house had
Substance of the Issue to be proved. 81
been entered only once, and that she had lost only one cream
jug, and that she had preferred two indictments ; it was held
by the judges that the prisoner was properly convicted, the
finding of the grand jury on the bill, imputing the principal
felony to H. M. being no objection to the other indictment.
Bush's case, Russ. <3f Ru. 372.
It is not necessary that there should be any addition to the
name of a prosecutor or prosecutrix in an indictment ; all the
law requires upon this subject is certainty to a common intent.
Per cur. Suit's case, 2 Leach, 862. The prisoner was indicted
(before the 39 & 40 G. 3. c. 77. the Act of Union) for stealing
the goods of James Hamilton, Esq., commonly called Earl of
Clanbrassil, in the kingdom of Ireland, and it appeared that he
was an Irish peer. The judges were of opinion that " James
Hamilton, Esq." was a sufficient description of the person and
degree of the prosecutor, and that the subsequent words, " com-
monly called Earl of Clanbrassil, in the kingdom of Ireland,"
might be rejected as surplusage. But they conceived that the
more correct and perfect mode of describing the person of the
prosecutor would have been, " James Hamilton, Esq., Earl of
Clanbrassil," and as that more perfect description appeared
upon the face of the indictment, by considering the intervening
words, " commonly called," as surplusage, they thought that
the indictment was good. Graham's case, 2 Leach, 547. So
where the prisoner was indicted for stealing the goods of A. W.
Gother, Esq., and it was objected that Mr. Gother was not an
esquire in law, Burrough J. overruled the objection, and held
that the addition of esquire to the name of the person in whom
the property is laid, is mere surplusage and immaterial- Ogilvie's
case, 2 C. fy P. 230. Where a person has a name of dignity,
he ought to be described by that name, and as it forms part of
the name itself, and is not an addition merely, it must be proved
as laid. Archb. C. L. 11, 2 Russ. 708, (n.)
Descriptive averments the name of the prosecutor or party
injured rule of idem smians.] Where a name which it is
material to state, is wrongly spelled, yet if it be idem sonans
with that proved, it is sufficient. Thus where the name in the
indictment was John Whiineard, and it appeared that the real
name was Winyard, but that it was pronounced Winnyard, the
variance was held to be immaterial. Foster's case, Russ. <5f Ry.
412. So Segrave for Seagrave, Williams v. Ogle, 2 Str. 889.
Benedetto for Benuiittn, Abitbol v. Beniditto,'2 Taunt. 401. But
31' Cann for Af'Curn, is a fatal variance. Tannet's case, Russ.
<Jf R\I. 351. So Shakespeare for Shakepear, Shakespeare's case,
10 East, 83. So Tabart for Tarbart, Bingham v. Dickie,
5 7'aioit. 14.
82 Substance of the Issue to be proved.
Descriptive averments the names of third persons men-
tioned in the indictment.] Not only must the names descrip-
tive of the prosecutor or party sustaining the injury be strictly
proved, but where the name of a third person is intro-
duced into the indictment, as descriptive of some person or
thing, that name also must be proved as laid. On an indict-
ment upon the black act, for maliciously shooting A. Sandon,
in the dwelling house of James Brewer and John Sandy, it
appearing in evidence that it was in the dwelling house of
John Brewer and James Sandy, the court said that as the
prosecutor had thought proper to state the names of the
owners of the house where the fact was charged to have been
committed, it was a fatal variance. The statute says, " who
shall maliciously shoot at any person, in any dwelling house or
other place," and the prosecutor having averred that it was in
the house of James Brewer and John Sandy, was bound to prove
it as it was laid. Durore's case, I Leach, 352, 1 East, P. C. 45.
So where the indictment was for breaking, &c. the house
of J. Davis, with intent to steal the goods of J. Wakelin, in
the said house being, and there was no such person in the
house, but J. W. was put by mistake for J. D., the prisoner
was held entitled to an aquittal, and it was ruled that the words
" of J. W." could not be rejected as surplusage, since they
were sensible and material, it being material to lay truly the
property in the goods, without such words the description of
the offence being incomplete. Jenks's case, 2 East, P. C. 514.
Again, where a person was indicted for feloniously marrying
Elizabeth Chant, widow, (his former wife being alive,) and it
appeared that Elizabeth Chant was a single woman, the judges
were unanimously of opinion that the misdescription was fatal,
though it was not necessary to have stated more than the name
of the party. Deeley's case, 1 Moody, C. C. 303.
But where the name of a third person is stated in an aver-
ment, unnecessarily introduced, and which may therefore be
rejected as surplusage, a variance will not be material. Upon
an indictment for robbery, it is not material in what place the
robbery was committed ; and therefore, where the prisoner was
indicted for robbing Robert Fernyhough, in the dwelling-house
<>/' Aaron Wilday ; but the offence was not proved to have
been committed in the house of Wilday, the judges held the
conviction proper. Pye's case, 2 East, P. C. 785, 1 Leach,
352 (.) And where the prisoner was convicted on an
indictment for robbing R. D. in the dwelling-house of Joseph
Johnstone, at Birmingham, and the Christian name of John-
stone could not be proved, the judges also held this conviction
proper. Juhnstone's case, 2 Last, P. C. 786, 1 Leach, 352
(n.) ; and see 1 East, P. C. 415.
Substance of the Issue to be proted. 83
Descriptive averments ihe mode <>f committing offences.] In
general the descriptive averments of the mode in u-hich an offence
has been committed do not require to be strictly proved, if, in
substance, the evidence supports the allegation. Thus, in mur-
der, it is always sufficient, if the mode of death proved agree in
substance with that charged. 1 Russ. 466. 1 East, P. C. 341.
Therefore, though where the death is occasioned by a particular
weapon, the name and description of that weapon must be spe-
cified ; yet, if it appear that the party was killed by a different
weapon, it maintains the indictment ; as if a wound or bruise
be alleged to be given with a sword, and it prove to be with an
axe or staff, this difference is immaterial. And the same if the
death be laid to be by one sort of poisoning, and in truth it be
by another. 1 East, P. C. 341. Where the indictment was
for assaulting a person with a certain offensive weapon, com-
monly called a wooden staff, with a felonious design to rob him,
and it was proved to have been with a stone ; on a conference of
the judges it was held well, for the two weapons produce the
same sort of mischief, viz. by blows and bruises ; and they said
it would be sufficient on an indictment for murder. Sharwin's
case, 1 East, P. C. 341. Though the weapon need not be
proved to be the same, yet it must appear that the species of
killing was the same. Thus if the prisoner be indicted for poi-
soning, it will not be sufficient to prove a death by shooting,
starving, or strangling. Mackally's case, 9 Rep. 67. '2 Inst.
319. 1 Russell, 467.
Where the prisoner was indicted for administering to one
H. M. G. a single woman, divers large quantities of a certain
shrub called savin, with intent to procure the miscarriage of the
said H. M. G. ; and it appeared that the prisoner had prepared
the medicine by pouring boiling xvater over the leaves of a
shrub, a process which the medical witnesses stated was an
infusion, and not a decoction, Lawrence, J. over-ruled an ob-
jection taken on this ground. He said that infusion and decoc-
tion were ejiisdem generis, and that the question was whether
the prisoner administered any matter or thing with intent to
procure abortion. Anon. 3 Campb. 74, and see post, " Mali-
cious injuries," and " Murder."
So also with regard to the person by whom the offence is com-
mitted, it is sufficient to charge him with that which is the legal
effect of the act which he has committed. Therefore where an
indictment charges that A. gave the mortal stroke, and that B.
& C. were present aiding and abetting ; if it appear in evidence
that B. was the person who gave the stroke, and that A.
& C. were present aiding and abetting, they may all be found
guilty of murder or manslaughter, at common law, as circum-
stances may vary the case. The identity of the person sup-
posed to have given the stroke is but a circumstance, and in
this case a very immaterial one, the stroke of one being ia
84 Substance of the Issue to be proved.
consideration of law the stroke of all. The person giving
the stroke is no more than the hand or instrument by which the
others strike. Foster, 351, I Hate, P. C.437. 463, 2 Id., 344,
345.
Descriptive averments what are not material.'] The general
rule with regard to immaterial averments has been thus stated. If
an averment may be entirely omitted without affecting the charge
against the prisoner, and without detriment to the indictment, it
will be considered as surplusage, and may be disregarded in evi-
dence. 1 Phill.Ev. 196. Therefore, where the name of a person
or a place is unnecessarily introduced, it need not be proved*
Thus where the prisoner was indicted for robbing another in a
field near the highway, and the jury found that he was guilty of
robbing, but not near the highway ; the variance was held to
be immaterial. Wardle's case, 2 East, P. C. 785. Vide ante, p.
82. And so where on an indictment for robbery, if the offence
be laid to have been committed in the house of A. B. it is no
variance if it be proved to have been committed in the house of
C. D. Pye's case, 2 East, P. C. 785, Johnstone's case, Id.
786, ante p. 82. The prisoner was indicted and convicted under
the 3 & 4 W. & M. c. 9. s. 5. for stealing goods " of John
Powell, then being in a lodging-room in his dwelling-house,
let by contract by Elizabeth his wife." The statute, in describ-
ing the offence, takes no notice of the person by whom the
goods or lodging may have been let. The judges held the
conviction right. They were inclined to think it was unne-
cessary to state by whom the lodging was let ; and they were
unanimously of opinion that the letting might be stated either
according to the fact, or the legal operation. Healey's case, 1
Moo. C. C. 1. Where the prisoner was indicted on the 4 G. 2.
for stealing lead "belonging to the Rev. C. G., clerk, and then
and there fixed to a certain building called Hendon church ;"
the judges held that laying the property in the vicar was good.
But many of them thought that the better way of laying the
case would be to allege the lead to have been " fixed to a cer-
tain building, being the parish church," &c. without stating the
property to be in any one. Buller, J. thought that charging it
to be property, was absurd and repugnant ; property (in this
respect) being only applicable to personal things, and that it
should be charged to be lead affixed to the church, or to a
house belonging to such a person ; and that the allegation as to
property in this indictment should be rejected as surplusage.
Hickman's case, 2 Last, P. C. 593, 1 Moody, C. C. 2.(n.)
Vide post.
Averments as to time.'] Although an indictmeut, not alleg-
jng any time at which the offence was committed would be bad,
Hawk. P.C. b. 2. c. 25. yet it never was necessary, upon
Substance of the Issue to be prated. 85
any indictment, to prove that the offence was committed upon the
particular day charged. 1 Phill. Ev, 203. Thus even in trea-
son, if the overt acts be laid on one certain day, evidence of them
after that day is admissible. Ton-nleii's case, Foster, 8. So
on an indictment for a misdemeanor, containing several counts,
alleging several misdemeanors of the same kind on the same
day, the prosecutor may give evidence of such misdemeanors
on different days. Levy's case, 2 Stark. 468. And where a
statute makes an offence committed after a given day triable
in the county where the party is apprehended, and authorises
laying it as if committed in that county, but does not vary the
nature or character of the offence, it is no objection that the
day laid in the indictment, is before the day mentioned in the
statute, if the offence was in fact committed after that day.
Trehurne's case, 1 Moody, C. C. 298.
Averments as to placed] In general it is sufficient to prove
that the offence was committed in the county in which it is laid
to have been committed, and a mistake in the particular place
in which an offence is laid, will not be material. Hawk. P. C.
b. 2. c. 25. s. 84. 1 Phill. Ev. 205. 2 Russ. 716. And
although the offence must be proved to have been committed in
the county where the prisoner is tried, yet after sucli proof the
acts of the prisoner in any other county, tending to establish
the charge against him, are admissible in evidence, 1 Phill,
206. In an indictment for robbery the offence was laid in the
parish of St. Thomas, Penford, in the county of Somerset, and
it was objected for the prisoner that there was no proof of there
being such a parish, but Littledale J. overruled the objection:
he said that he once reserved a case from the Oxford circuit on
this ground, and that a great majority of the judges held that
it was not necessary to prove affirmatively for the prosecution,
that such a parish as that laid in the indictment existed within
the county, and that they expressed a doubt how they should
hold, even where it was proved negatively for the prisoner, that
there was no such parish, Dou-ling's case, R. &; M. N. P. C.
433. So where a larceny was charged to have been committed
in a dwelling house, situate in the parish of St. Bototph, Ald-
fate, and it appeared that the proper name of the parish was
t. Botolph-without-Aldgate, the judge directed an acquittal
on the capital part of the charge, but the prisoner was con-
victed of the larceny, and on a case reserved, the judges were
of opinion that the conviction was right, there being no nega-
tive evidence of there not being such a parish as St. Botolph,
Aldgate. Bullock's case, 1 Moody, C. C. 324. (n.) With
regard to the latter point it was formerly laid down that where
it was proved that no such place existed, the indictment was
void by 9 Hen. 3. st. 1. c. 1. (made perpetual by 18 Hen. 6. c.
12.) and on the objection being taken in a case before Mr. Justice
86 Substance of the Issue to be proved.
Lawrence, he reserved the point for the opinion of the judges;
but it was never decided. Anon. 3 Campb. 77. It was there
contended against the objection, that to lay a place was no
longer necessary, as the jury are to come from the body of the
county ; and though this was a mistake, (see 1 Phill. 206. n.)
yet now by 6 G. 4. c. 50. s. 13. the return is from the body of
the county. The point at length appears to have been settled
in the following case. The prisoner was indicted for setting
fire to a stack of beans at Normanton-in-the- Would. It ap-
peared that there was no such parish, but only a hamlet of that
name, nor was there any parish of Normanton. The judges,
on a case reserved, held that the offence had nothing of locality in
it, and that there was no such place in the county, could only
be taken advantage of by plea in abatement. Woodward's case,
1 Moody, C. C. 323.
In some particular cases it is necessary to prove the parish
or place named in the indictment. Thus, as in an indictment
against a parish for not repairing a highway, the situation of
the highway within the parish is a material averment, see 2
Stark. C. P. 693. (n.) it must be proved as laid. So if the
statute upon which the indictment is framed give the penalty to
the poor of the parish in which the offence was committed, the
offence must be proved to have been committed in the parish
stated in the indictment. Archb. C. P. 63. 2 Russ. 717.
Where an injury is partly local and partly transitory, and a
precise local description is given, a variance in proof of the place
is fatal to the whole, for the whole being one entire fact, the local
description becomes descriptive of the transitory injury. 3 Stark.
Ev. 1571, citing Cranage's case, Salk.385. 2 Russ. 717.
Averments as to value."] In general it is not necessary to
prove the value of the property stolen or injured to be the same
as that laid in the indictment, though formerly the distinction
between grand and petty larceny depended upon the value of
the property stolen ; yet as that distinction is now abolished by
the 7 & 8 Geo. 4. c. 28. the value has become immaterial, ex-
cept in those cases where by statute the stealing properly to a
certain value enhances the punishment, as by the 7 & 8 Geo.
4. c. 29. s. 12. stealing in any dwelling house, any chattel,
&c. to the value of five pounds. So the value is material in an
indictment on the stat. 6 Geo. 4. c. 16. s. 112. against a bank-
rupt for removing, concealing, or embezzling any part of his
estate to the value of IOL. or upwards. On an indictment
against a bankrupt under the former statute, it was held that
the value being essential to constitute an offence, and being
ascribed to many articles collectively, the offence must be made
out as to every one of those articles, for the grand jury has
only ascribed that value to all the articles collectively, fonyth'i
case, Russ. fy Ry. 274.
87
WITNESSES.
ATTENDANCE, REMUNERATION, AND PROTECTION
OF WITNESSES.
Mode of compelling the attendance of Witnesses . 87
By recognizance . . . .87
BV subptx.ua . . . .89
By habeas corpus ad testificandum . .89
Remuneration of witnesses . . .91
Whether witness is bound to answer without tender
of expenses .... 92
Protection of witnesses . . .93
Mode of compelling their attendance recognizance.] There
are two modes of compelling the attendance of witnesses ; first
by recognizance, secondly by subpoena.
By the 7 Geo. 4. c. 64. s. 2. in cases of felony and suspicion of
felony, the justice or justices before whom the offender is brought
10 be examined, shall have power to bind by recognizance all
such persons as know or declare any thing material concern-
ing such offence, to appear at the next court of oyer and termi-
ner, or gaol delivery, or superior criminal court of a county
palatine, or of great session, or sessions of the peace, at which
the trial thereof is intended to be, then and there to prosecute
or give evidence against the party accused. By s. 3. the
justice or justices have similar powers to bind by recognizance
where the offender is charged with a misdemeanor, or suspicion
thereof. If a witness, examined before a justice of the peace,
refuses to be bound over, he may be committed. 2 Hale, P. C.
284. But where the witness cannot find sureties, the magis-
trate ought to take his own recognizance, and it would be
illegal to commit the witness. Per Graham B. Bodmin Sum-
mer Assizes, 1827, 2 Stark. Ev. 82, 2d ed.
Where the witness was a married woman, and therefore in-
capable of entering into a recognizance, it was held that the
magistrate was justified in committing her on her refusal to
appear to give evidence, or to find sureties for her appearance
to give evidence. Bennett r. \Vatton, 3 M. fy S. 1.
Formerly, where a person had entered into a recognizance to
prosecute or give evidence, and did not appear, such recog-
83 Witnesses.
nizance was, as a matter of course, estreated ; but now, in such
cases, by statute 7 Geo. 4. c. 64. s. 31. such recognizances are
not to be estreated without the written order of the judge, &c. who
shall have attended the court, who shall make an order touching
the estreating or putting in process of such recognizance.
Where a witness has not been found by recognizance to
appear, he may be compelled to do so by suhp&na. This pro-
cess is issued by the clerk of the peace at sessions, or by the
clerk of assize at the assizes, or it may be issued out of the
Crown Office. The latter is the most prudent course, as it
affords the most facilities for obtaining an attachment in case of
a refusal to attend, and may be served out of the jurisdiction of
an inferior court. 1 Chitty, C. L. 608. 2 Russ. 638. Ring's
case, 8 T. R. 585. By stat. 15 Geo. 3. c. 92. s. 3. the service of
a subpoena in any part of the united kingdom, for his appear-
ance on a criminal prosecution in any other part, shall be as
effectual as if it had been ia that part where he is required to
appear. Vide post,
Where there are writings or documents in the possession of
a witness, which it is desired that he should produce on the
trial, a clause of daces tecum, directing the witness to bring
with him into court the documents in question, is added to the
writ of subpff.na. If the documents are in the possession of
the party or his attorney, a notice to produce must be given.
Where documents are in the possession of the prosecutor, and
the prisoner is desirous of having them produced upon the
trial, the safest mode of proceeding appears to be to serve the
prosecutor with a subpoena duces tecum, and not to rely on a
notice to produce, since it may be a question whether a prose-
cutor is so far a party to the proceeding as to be affected by a
notice to produce. The subpxna duces tecum is compulsory on
the witness, and though it is a question for the decision of the
presiding judge, whether the witness in court should produce the
documents required, yet he ought to be prepared to produce
them, if the judge be of that opinion. Anney v. Long, 9 East,
473. It is no excuse for not producing a document, that it
does not belong to the witness, provided it be in his possession.
Corsen v. Dubois, Holt, N. P. C. 239.
The witness must be personally served by leaving with him
a copy of the sulrpoena, or a ticket which contains the substance
of the writ. 1 Phill. Ev. 3. 2 Russ. 639. 1 Stark. Ev. 77,
2d ed. Madileson v. Shore, 5 Mod. 355. It must be served a
reasonable time before the day of trial. Service upon a witness
at two in the afternoon, in London, requiring him to attend the
sittings at Westminster in the course of the same evening, has
been held to be too short. 2 Tidd, 856, 8th ed.
In order to compel the appearance of a witness in one part of
the united kingdom, upon process served in another part, it is en-
acted by stat 45 Geo. 3. c. 92. s. 3 & 4, that the service of a
Witnesses. 89
writ of subpoena in any one of the parts of the united kingdom,
shall be as effectual to compel the appearance in any other of
the parts of the united kingdom, as if the process had been
served in that part where the person is required to appear. And
if the person required to attend does not appear, the court out
of which the process issued may transmit a certificate of the
default, in the manner specified in the act ; (vide post, p. 90.)
and the court to which the certificate is transmitted may punish
the person for his default, as if he had refused to appear to pro-
cess issuing out of that court, provided it appear that a reasonable
and sufficient sum of money to defray the expenses of coming
and attending to give evidence, and of returning, was tendered
to the person making default, at the time when the subpoena was
served upon him.
Mode of compelling the attendance of witnesses subpoena for
prisoner.] In cases of misdemeanor, the defendant at com-
mon law was entitled to a writ of subpoena, but it was otherwise
in capital cases, in which the party was compelled to obtain a
special order of the court. 4 Black. Com. 359. If the attend-
ance of the witness was procured he was not allowed to be
sworn. But by stat. 7 Will. 3. c. 3. s. 7., all persons in-
dicted for high treason, whereby corruption of blood may
ensue, shall have the like process of the court where they shall
be tried, to compel their witnesses to appear for them, as is
usually granted to compel witnesses to appear against them.
And by stat. 1 Ann. st. 1. c. 9., all witnesses on behalf of a
prisoner, for treason or felony, shall be sworn in the same man-
ner as witnesses for the crown, and be liable to all the penalties
of perjury. A witness who refuses, after having been sub-
poenaed to attend, to give evidence for a prisoner, is liable to an
attachment in the same manner as if subpoenaed for the prose-
cution. 1 Stark. Ev. 85. 2d ed.
Mode of compelling the attendance nf witnesses habeas corpus
ad testificandum.] Where a person required as a witness is in
custody, or under the duress of some third person, so as to prevent
his attendance, the mode of compelling it is to issue a habeas
corpus ad testificandum. For this purpose application must Le
made to the court before which the prisoner is to be tried, or to
a judge, upon an affidavit, stating that the party is a material
witness, and willing to attend. R. v. Roddam, Coicp.6T2, 1
Phill. Ev. 5. But it seems only necessary to state that the
witness is ready to attend where he is not a prisoner. Id. 1
Stark. Ev. 80. 2d ed. The court will then, if they think fit,
make a rule, or the judge will grant hisjiat for a writ of habeas
corpus. Burbage's case, 3 Burr. 1440. 1 Phill. Ev. 8.
By stat. 43 Geo. 3. c. 140. a judge of the King's Bench or
Common Pleas, or a baron of the Exchequer, may, at his dis-
90 Witnesses.
cretion, award a writ of habeas corpus ad testificandum, for
bringing any prisoner detained in any gaol in England before
a court martial, or before commissioners of bankruptcy, com-
missioners for auditing the public accounts, or other commis-
sioners, acting by virtue of any royal commission or warrant.
By stat. 44 Geo. 3. c. 102. the judges of the King's Bench,
or Common Pleas, or barons of the Exchequer in England or
Ireland, or the justices of oyer and terminer, or gaol delivery,
(being such judge or baron) have power to award writs of
habeas corpus, for bringing prisoners, detained in gaol, before
such courts, or any sitting at nisi prius, or before any court of
record in the said parts of the said united kingdom, to be there
examined as a witness, and to testify the truth before such
courts, or before any grand, petit, or other jury, in any cause
or matter, civil or criminal, which shall be depending, or to be
inquired into, or determined, in any of the said courts. The
application under this statute ought to be to a judge out of
court. Gordon's case, 2 M.fy S. 582.
The writ should be left with the sheriff or other officer, who
will then be bound to bring up the body, on being paid his
reasonable expenses. 1 Phiil. Ev. 5. 1 Stark. Ev. 81. 2d ed.
If the witness be a prisoner at war, he cannot be brought up,
without an order from the Secretary of State. Furly v. Newn-
)iam, 2 Doug. 419.
Mode of compelling the attendance of witnesses neglect to
obey subpoena.."] Where a person, who has been duly served with
a subpoena, neglects to appear in obedience to it, he is punish-
able by attachment, and it taken under the attachment, he may
be detained until he has given evidence upon the trial of the pri-
soner, and may then be set at liberty. 1 Chitty, Crim. Law,
614. The party disobeying is subject to an attachment, al-
though the cause was not called on. Barrow v. Humphreys,
3 Barn. &; Aid. 598. Tidd, 858. 8th Ed. If the subpoena 'is-
sued out of the crown office, the Court of King's Bench will,
upon application, grant the attachment. King's case, 8 T. R.
585. When the process is not issued out of the crown office,
and is served in one part of the United Kingdom for the ap-
pearance of the witness in another part, it is enacted by 45 G.
3. c. 92. s. 3, 4., that the court issuing such process may, upon
proof to their satisfaction of the service of the subpoena, transmit
a certificate of the default of the witness under the seal of the
court, or under the hand of one of the justices thereof to the
Court of King's Bench if the service were in England, to the
Court of Justiciary if in Scotland, and to the Court of King's
Bench in Ireland, if in Ireland, which courts are empowered to
punish the witness in the same way, as if he had disobeyed a
subpoena issued out of these courts, provided the expenses have
been tendered. Vide ante, p. 88.
Witnesses. 01
The above enactment appears to extend only to cases where
the process is served in one part of the United Kingdom for the
appearance of the witness in another part of the same. Where,
therefore, that is not the case, and the subpoena has not issued
from the crown office, application must be made to the Court,
out of which the process issued. It is doubtful whether the
justices in sessions have the power of proceeding against a
party by attachment, and in such case the mode of punishing
would, it seems, be by indictment. Arch. Cr. Law, 108. Id. ed.
If a witness refuses to give evidence before a Court of Quarter
Sessions, he may be fined and imprisoned, until the fine be paid.
Lord Preston's case, 1 Salk. 279. A peer of the realm is bound
to obey a subpoena, and is punishable in the same manner as any
other subject for disobedience. Lord Preston's case, ISalk. 278.
Remuneration of witnesses.] At common law there was no
mode provided for reimbursing witnesses for their expenses in
criminal cases ; but by statutes 27 Geo. 2. c. 3.; 18 Geo. 3.
c. 19. and 58 Geo. 3. c. 70. provision was made for this pur-
pose in cases of felony. By the 7 Geo. 4. c. 64. the above sta-
tutes are repealed, and the expenses of witnesses in cases of
misdemeanor as well as felony, are now allowed. By s. 22.
of that statute it is enacted, that with regard to the expenses of
prosecutions in cases of felony, the Court before which any
person shall be prosecuted or tried for any felony, is thereby
authorised and empowered, at the request of the prosecutor, or
of any other person who shall appear on recognizance or sub-
poena, to prosecute or give evidence against any person accused
of any felony, to order payment unto the prosecutor, of the costs
and expenses which such prosecutor shall incur in preferring the
indictment, and also payment to the prosecutor and witnesses
for the prosecution, of such sums of money, as to the Court shall
seem reasonable and sufficient to reimburse such prosecutor and
witnesses for the expenses they shall severally have incurred,
in attending before the examining magistrate, or magistrates,
and the grand jury, and in otherwise carrying on such prosecu-
tion ; and also to compensate them for their trouble and loss of
time therein ; and although no bill of indictment be preferred,
it shall still be lawful for the Court, where any person in the
opinion of the Court, bondjide, have attended the Court in obe-
dience to any such recognizance or subpoena, to order payment
unto such person of such sum of money, as to the Court shall
seem reasonable and sufficient to reimburse such person for the
expense which he or she shall bond Jide have incurred by rea-
son of attending before the examining magistrate or magistrates,
and by reason of such recognizance or subpoena, and also
to compensate such person for trouble and loss of time, and
the amount of expenses of attending before the examining
magistrate or magistrates, and the compensation for trouble and
92 Witnesses.
loss of time therein, shall be ascertained by the certificate of
such magistrate or magistrates granted before the trial or at-
tending in Court, if such magistrate or magistrates shall think
fit to grant the same ; and the amount of all the other expenses
and compensation shall be ascertained by the proper officer of
the Court, subject nevertheless to the regulations to be esta-
blished in the manner thereinafter mentioned.
And with regard to misdemeanors, it is enacted by sec. 23. of
the same statute, that where any prosecutor or other person
shall appear before any Court, on recognizance or subpoena, to
prosecute, or give evidence against any person indicted for any
assault with intent to commit felony, of any attempt to commit
felony, of any riot, of any misdemeanor for receiving stolen
property knowing the same to have been stolen, of any assault
upon a peace officer in the execution of his duty, or upon any
person acting in aid of such officer, of any neglect or breach
of duty as a peace officer, of any assault committed in pursuance
of any conspiracy to raise the rate of wages, of knowingly and
designedly obtaining any property by false pretences, of wilful and
indecent exposure of the person, of wilful and corrupt perjury, or
of subornation of perjury : every such Court is thereby authorised
and empowered to order payment of the costs and expenses of the
prosecution, and witnesses for the prosecution, together with a
compensation for their trouble and loss of time, in the same man-
ner as the Court are thereinbefore authorised and empowered to
order the same in cases of felony ; and although no bill of indict-
ment be preferred, it shall still be lawful for the Court, where any
person shall have, bondjide, attended the Court in obedience to
any such recognizance, to order payment of the expenses of
such person, together with a compensation for his or her trouble
and loss of time, in the same manner as in cases of felony ;
provided, that in cases of misdemeanor, the power of ordering
the payment of expenses and compensation, shall not extend to
the allowance before the examining magistrate. See further as
to the expenses of witnesses, title " Piactice."
Remuneration witness bound to answer without tender of ex-
penses.] The only instance in which it appears to be necessary
to tender expenses to a witness in a criminal case before his ex-
amination, is where a subpoena is served on a person in one part
of the united kingdom for his appearance in another. In such
case, the 45 Geo. 3, c. 92. (ante, p. 90,) enacts, that such sub-
poena shall be effectual, provided that the witness shall not be
punishable for default, unless a sufficient sum of money has been
tendered to him, on the service of the subpoena, for defraying the
expenses of coming, attending, and returning. It has, how-
ever, been doubted, whether in other criminal cases a witness
may not, unless a tender of his expenses has been made, law-
fully refuse to obey a subpoena, and the doubt is founded upon
Witnesses. 93
the provision of the above statute. 1 Chitty, Crim, Lair, 613.
The better opinion, however, seems to be, and it is so laid
down in books of authority, that witnesses making default on
the trial of criminal prosecutions, are not exempted from attach-
ment, on the ground that their expenses were not tendered at
the time of the service of the subpxna, although the Court would
have good reason to excuse them for not obeying the summons, if
in fact they had not the meansof defraying the necessary expenses
of the journey. 1 PhM. En. 11. 2 Russ. 640. " It is," says
Mr. Starkie, " the common practice in criminal cases, for the
Court to direct the witness to give his evidence, notwithstand-
ing his demurrer on the ground that his expenses have not been
paid." 1 Evid. 83. (a) '2nd ed. And accordingly, at the York
Summer Assizes, 1820, Bayley J. ruled, that an unwilling wit-
ness, who required to be paid before he gave evidence, had no
right to demand such payment. His lordship said, " I fear, I
have not the power to order you your expenses," and on asking
the bar if any one recollected an instance in point, Scarlett an-
swered, " it is not done in criminal cases." Anon. 1 Chettc*
Burn, 1001. 2 Russ. 641. fa) So on the trial of an indict-
ment which had been removed into the King's Bench by certio-
rari, a witness for the defendant stated, before he was examined,
that at the time he was served with the subpcena no money was
paid him, and asked the judge to order the defendant to pay his
expenses before he was examined. Park J. having conferred
with Garrow B. said, " We are of opinion that I have no au-
thority in a criminal case, to order a defendant to pay a witness
his expenses, though he has been subpoenaed by such defend-
ant ; nor is the case altered by the indictment being removed
by certiorari, and coming here as a civil cause." R. v. James
Stamp Sutton Cooke, 1 C. % P. 321.
Protection of witnesses from arrest.] A witness attending to
give evidence, whether subpoenaed, or only having consented to
attend, Smith r. Steicnrt, 3 East, 89, is protected from arrest
fundo, mviando, et redeundo. Meeking r. Smith, 1 H. Bl. 636.
A reasonable time is allowed to the witness for going and re-
turning, and in making this allowance the courts are disposed
to be liberal. 1 Phiil. Ev. 4. 1 Stark. Ei. 90, 2d ed. A
witness residing in London is not protected from arrest between
the time of the service of the subpoena, and the day appointed
for his examination ; but a witness coining to town to be ex-
amined, is as it seems, protected during the whole time he
remains in town, bonajide, for the purpose of giving his testi-
mony. Gibbs v. Philipson, 1 Russell $ ATiy/ne, 19. If a wit-
ness is improperly arrested, the court out of which the subpoena
issued, or a judge of the court in which the case has been, or is
to be tried, will order him to be discharged. Archb. Cr. Law,
108, Zded.
94
INCOMPETENCY FROM WANT OF UNDER-
STANDING.
Infants . . . .94
Persons born deaf and dumb . . .95
Idiots, Lunatics, and Madmen . . .95
Infants.] It is said by Gilbert, C. B. that infants under the
age of fourteen are not regularly admissible as witnesses,
though there is no time fixed wherein they are to be excluded
from evidence, but that the reason and sense of their evidence
are to appear from the questions propounded to them, and their
answers. Gilb. Ev. 144, and see Dunnel's case, 1 East, 422.
In practice no particular age is required to render the evidence
of a child admissible. In Brazier's case, 1 East, P. C. 443,
1 Leach, 199. -S. C. Blackstone, Nares, Eyre, and Buller, JJ.
were of opinion that the evidence of a child five years of age
would have been admissible, if she had appeared on examina-
tion to be capable of distinguishing between good and evil.
But others of the judges, particularly Gould and Willes, Js.
held that the presumption of law, of want of discretion under
seven, was conclusive. Subsequently all the judges agreed
that a child of any age, if capable of distinguishing between
good and evil, might be examined upon oath, and that a child
of whatever age could not be examined unless sworn. This
is now the established rule in all cases, civil as well as cri-
minal, and whether the prisoner is tried for a capital offence, or
one of an inferior nature. If a child is, from want of under-
standing, incapable of giving evidence upon oath, proof of its
declaration is inadmissible. Tucker's case, 1808, MS., 1 Phill.
Ev. 19, Anon. Lord Raym. cited 1 Atk. 29. It is said by
Blackstone, that where the evidence of children is admitted, it
is much to be wished, in order to render it credible, that there
should be some concurrent testimony of time, place, and cir-
cumstances, in order to make out the fact, and that the convic-
tion should not be grounded solely on the unsupported testi-
mony of an infant under years of discretion. 4 Com. 214.
It may, however, be observed, that the testimony of children,
unless of a very tender age, is usually, from the quickness of
apprehension possessed in early life, fully as well entitled to
credit, as the evidence of persons of maturer years.
Witnesses. 95
Where a case depends upon the testimony of an infant, it is
usual for the court to examine him as to his competency to take
an oath, previously to his going before the grand jury, and if
found incompetent, for want of proper instruction, the court
will, in its discretion, put off the trial, in order that the party
may, in the meantime, receive such instruction as may qualify
him to take an oath. 1 Stark. Ev. 94, 2d ed., I Phill. Ev. 19.
This was done by Rooke, J. in the case of an indictment for a
rape, and approved of by all the judges. 1 Leach, 430, (n.)
2 Bac. Ab. by Gwill. 577, (n.) The practice, however, is
different with regard to an adult witness. Wade's case, 1 Moo.
C. C. 86, post.
Deaf and dumb.'] A person born deaf and dumb, though
prima facie in contemplation of law an idiot, yet if it appear
that he has the use of his understanding, he is criminally
answerable for his acts. 1 Hale, P. C. 37, vide post, and is
also competent as a witness. Thus where a man deaf and
dumb from birth, was produced as a witness on a trial for
larceny, he was allowed to be examined through the medium
of his sister, who was sworn to interpret to the witness, " the
questions and demands made by the court to the witness, and
the answers made to them." The sister staled, that for a series
of years, she and her brother had been enabled to understand
one another by means of certain arbitrary signs and motions,
which time and necessity had invented between them. She
was certain that her brother had a perfect knowledge of the
tenets of Christianity, and that she could communicate to him
notions of the moral and religious nature of an oath, and of the
temporal dangers of perjury. Ruslon's case, 1 Leach, 408.
So in Scotland, upon a trial for rape, the woman, who was deaf
and dumb, but had been instructed by teachers, by means of
signs, with regard to the nature of an oath, of a trial, and of
the obligation of speaking the truth, was admitted to be ex-
amined. Martin's case, 1823, Alison's Prac. Grim. Law of
Scotl. 486.
Idiots and Lunatics.] Persons not possessing the use of
their understanding, as idiots, madmen, and lunatics, if they
are either continually in that condition, or subject to such a
frequent recurrence of it, as to render it unsafe to trust to their
testimony, are incompetent witnesses.
An idiot is a person who has been non compos mentis from
his birth, and who has never any lucid intervals, Co. Lilt. 247.
Bac. Ab. Idiot, (A. 1,) and cannot be received as a witness.
Com. Dig. Testm. (A. 1.)
A lunatic is a person who enjoys intervals of sound mind,
and may be admitted as a witness, in Incidis intervallis. Com.
Dig. Testm. (A. 1.) He must of course have been in possession
96 Witnesses.
of his intellect at the time of the event, to which he testifies, as
well as at the time of examination, and it has been justly ob-
served, that it ought to appear that no serious fit of insanity has
intervened, so as to cloud his recollection, and cause him to
mistake the illusions of imagination for the events he has wit-
nessed. Alison's I'rac. C.L. of Scot/. 436. With regard to
those persons who are afflicted with monomania, or an aberration
of mind on one particular subject, (not touching the matter in
question) and whose judgment in other respects is correct, the
safest rule appears to be to exclude their testimony, it being im-
possible to calculate with accuracy, the extent and influence of
such a state of mind.
INCOMPETENCY FROM WANT OF RELIGIOUS
PRINCIPLE.
General Rules . . . .96
Form of the Oath . . .97
Questions as to religions belief . . .98
Quakers and Moravians . .. .99
Persons excommunicated . . .99
General rules."] Although it was formerly held that infidels,
(that is to say, persons professing some other than the Christian
faith,) could not be witnesses, on the giound that they were
under none of the obligations of our religion, and therefore
could not be under the influence of the oaths which our courts
administer; Gilb. Ev. 142.; yet a different rule has since
prevailed, and it is now well settled, since the case of Omi-
chund v. Barker, Willes, 549, that those infidels who believe in
a God, and that he will punish them in this world, or (as it
seems,) in the next, if they swear falsely, may be admitted as
witnesses in this country. Id. p. 550.
It was said by Willes, C. J. that he was clearly of opinion
that those infidels, (if any such there be,) who either do not
believe in a God, or if they do, do not think that lie will either
reward or punish them in this world or the next, cannot be
witnesses in any case, nor under any circumstances, for this
plain reason, because an oath cannot possibly be any tie or
obligation upon them. OmicJmnd v. Parker, Willes, 549. A
witness was rejected on this ground by Grose, J. at the Bed-
ford Spring Assizes, 1789, on an indictment for murder. Anon.
Witnesses. 67
1 Leach, 341. (n.) And where a witness on the wire dire
stated that he had heard there was a God, and believed that
persons who tell lies would rome to the gallows : but acknow-
ledged that he had never learned the catechism, that he was
altogether ignorant of the obligation of an oath, a future state
of reward and punishment, the existence of another world, and
what became of wicked people after their death ; he was re-
jected, on the ground that a person who has no idea of the
sanction which this appeal to Heaven creates, ought not to be
sworn as a witness. White's case, I Leach, 430. Upon this
case it may be observed, that it seems to come within the rule
with regard to competency, laid down by Willes, C. J. in
Omichund v. Baker, Willes, 550, the witness believing that
perjury would be punished by God in this world, and that upon
this ground the testimony of the witness was admissible.
It is not yet settled by the Scotch [law, whether a witness,
professing his disbelief in a God, and in a future state of re-
wards and punishments, is admissible. " When the point
shall arrive," says Mr. Alison, " it is well worthy of considera-
tion, whether there is any rational ground for such an excep-
tion ;" " whether the risk of allowing unwilling witnesses to
disqualify themselves, by the simple expedient ot alleging that
they are atheists, is not greater than that of admitting the testi-
mony of such as make this profession." Alison, Prac. Cr. L.
Scot. 438.
Form of the oath.'] The form of oaths, under which God is
invoked as a witness, or as an avenger of perjury, is to be ac-
commodated to the religious persuasion which the swearer en-
tertains of God ; it being vain to compel a man to swear by a
God in whom he does not believe, and whom he therefore does
not reverence. Puffend. b. 4. c. 2. s. 4. A Jew consequently
is sworn upon the Pentateuch. 2 Hale, P. C. 279. Omi-
ehund v. Baker, Willes, 543. But a Jew who stated that he
professed Christianity, but had never been baptized, nor ever
formally renounced the Jewish faith, was allowed to be sworn
on the j\"ew Testament. GHhum's case, 1 Esp. 285. A wit-
ness who stated that he believed both the Old and the New
Testament to be the word of God, yet as the latter prohibited,
and the former countenanced, s\\ earing, he wished to be sworn
on the former, was permitted to be so sworn. Edmonds i>. Kowe,
Rv. & Moo. A". P. C. 77. So where a witness refused to be
sworn in the usual form, by laying his right hand on the book,
and afterwards kissing it, but desired to be sworn by having
the book laid open before him, and holding up his right hand ;
he was sworn accordingly. Dutton v. Colt, 2 Sid. 6. Wiltes,
553. And where on a trial for high treason, one of the
witnesses refused to be sworn in the usual manner, but put
his hand to his buttons ; and in reply to a question, whether
r
98 Witnesses.
he was sworn, stated that he was sworn, and was under oath ; it
was held sufficient. Love's ccse, 5 How. St. Tr. 113. A Scotch
witness has been allowed to be sworn by holding up the
hand without touching the book, or kissing it, and the form of
the oath administered was, " You swear according to the cus-
tom of your country, and of the religion you profess, that the
evidence," &c. &c. Mildrone's case, 1 Leach, 412. Meev. Reid,
Peake, N. P. C. 23. Lord George Gordon, before he turned
Jew, was sworn in the same manner, upon exhibiting articles of
peace in the King's Bench. MS. M'Nally on Ev. 97. In Ire-
land it is the practice to swear Iloman Catholic witnesses upon
a Testament with a crucifix or cross upon it. Id.
The following also is given as the form of a Scotch cove-
nanter's oath : " I, A. B. do swear by God himself, as I shall
answer to him at the great day of judgment, that the evidence
I shall give to the court and jury, touching the matter in ques-
tion, is the truth, the whole truth, and nothing but the truth ;
So help me God." 1 Leach, 412 (n.) Walker's case, O. B.
1788. Ibid. A Mahomedan'is sworn on the Koran. The
form in Morgan's case, 1 Leach, 54, was as follows. The wit-
ness first placed his right hand flat upon the book, put the
other hand to his forehead, and brought the top of his forehead
down to the book, and touched it with his head. He then
looked for some time upon it, and being asked what effect that
ceremony was to produce, he answered that he was bound by it
to speak the truth.
The most correct and proper time for asking a witness whe-
ther the form in which the oath as about to be administered, is
one which will be binding on his conscience, is before the oath
is administered ; but as it may happen that the oath may be
administered in the usual form, by the officer, before the atten-
tion of the court, or party, or counsel, is directed to it, the
party is not to be precluded ; but the witness may, nevertheless,
be afterwards asked whether he considers the oath he has taken
as binding upon his conscience. If he answers in the affirma-
tive, he cannot then be further asked, whether there be any
other mode of swearing more binding upon his conscience.
The Queen's case, 2 Br. 6$ B. 284. So where a person who was.
of the Jewish persuasion, at the time of trial, and an attendant
on the synagogue, was sworn on the Gospels as a Christian,
the court refused a new trial on this ground ; being of opinion
that the oath as taken was binding on the witness, both as a
religious and moral obligation ; and Richardson, J. added, that
if the witness had sworn falsely, he would be subject to the pe-
nalties of perjury. Sells v. Hoare, 3 Br. $ B.232, 7 B. Moore,
36. S. C.
Questions as to religious belief. ] Although an opinion for-
merly prevailed, that if a person tendered as a witness professed
Witnesses. 99
his disbelief in Christianity, see 1 Atk. 39. 50, he could not be
received at a witness ; yet it is now clearly settled, that upon
an examination to try his competency with regard to religious
principles, a question as to his belief in the Christian faith, is
inadmissible. Thus whjere a witness was asked whether he be-
lieved in the Holy Gospels of God, on which he had been
sworn, Buller, J. said, that this was not the proper question,
and asked him whether he believed in God, and the obligation
of an oath, and a. future state of rewards and punishments ; and
on his answering in the affirmative, he was admitted. Tau-
lor's case, Peake, N. P. C. 11. It seems that it would be suf-
ficient to inquire whether he believed in a God who would
punish falsehood either in this world or the next. Wilies, 550
ante, p. 97.
\Yhere it appeared that the prosecutrix, in an indictment for
rape, though an adult, and of sufficient intellect, had no idea of
a future state of rewards and punishments, Bayley, J. discharged
the jury, that the witness might have an opportunity of being in-
structed upon that point before the next assizes ; but referred the
question to the twelve judges, who thought the discharge of the
jury improper, and that the prisoner ought to have been ac-
quitted. Wade's case, 1 Moo. C. C. 86.
Quakers and Moravians,"] Quakers and Moravians, who re-
fused to take an oath, were formerly inadmissible witnesses in
criminal cases ; 2 Russ. 592 ; but now by stat. 9 Geo. 4. c. 32.
s. 1. every Quaker or Moravian who shall be required to give
evidence in any case whatsoever, criminal or civil, shall, in-
stead of taking an oath in the usual form, be permitted to make
his or her solemn affirmation or declaration, in the words fol-
lowing : " 1, A. B., do solemnly, sincerely, and truly declare,
and affirm." Which said affirmation or declaration shall be ot
the same force and effect in all courts of justice and other
places, where by law an oath is required, as if such Quaker or
.Moravian had taken an oath in the usual form ; and if any per-
son making such declaration or affirmation, shall be convicted
of having wilfully falsely and corruptly affirmed, or declared,
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 offender shall be subject to the same pains, penal-
ties, and forfeitures, to which persons convicted of wilful and
corrupt perjury are, or shall be subject.
Persons excommunicated.] It was formerly held that persons
excommunicated could not be witnesses ; but now by stat. 53
G. 3. c. 127. s, 3. persons excommunicated shall incur no civil
disabilities.
F 2
100 Witnesses.
INCOMPETENCY FROM INFAMY.
What crimes disqualify - - - 100
In what manner the conviction must be proved - 101
Competency, how restored - 102
By suffering the punishment - - 102
By pardon - - - 102
By reversal of judgment - - 103
What crimes disqualify.] Where a man has been guilty of
certain offences, the law has declared that his testimony shall
not be received, on the ground of the infamy of character which
the commission of such crimes indicates. It was formerly held,
that where a man had undergone what was considered to be an
infamous punishment, as the pillory, he was thereby rendered in-
competent as a witness ; but this rule has been long abandoned,
and it is now determined that it is not the nature of the punish-
ment, but of the offence which renders his evidence inadmissible.
Gilb. Ev. 140. B. N. P. 291. Priddle's case, 1 Leach, 442.
The crimes that incapacitate the party committing them
from giving evidence, are treason, felony, and every species of
the crimen fulsi, as perjury, forgery, and the like. Gilb. Ev.
139. B. N. P. 291. Barratry, Ford's case, 2 Sulk. 690, sed vide
Com. Dig. Testm. A. 4. contra, 1 Leach, 442. and bribing a
witness, to absent himself from a trial, Clancy's case, Fast.
208, have been held to disqualify a witness. A conviction for
a conspiracy does not appear, in all instances, to have that
effect. In Priddle's case, 1 Leach, 442, where a person who
had been convicted of a conspiracy, was produced as a witness,
Buller J. rejected him, saying, "conspiracy is a crime of
blacker dye than barratry, and the testimony of a person con-
Ticted of barratry has been rejected." The nature of the con-
spiracy is not stated. A man convicted of a conspiracy at the
suit of the king, that is, of a conspiracy to accuse another of a
capital offence, is incompetent, for there the offender is to have
the villanous judgment, and to lose the freedom of the law.
2 Hale, P. C. 277. Where the reception of an affidavit was
opposed on the ground that the party (Lord Cochrane) making
it, had been convicted of a conspiracy to raise the public funds
by false rumours, Sir William Scott, after much considera-
tion, decided against the objection. Case of the Ville de
Witnesses. 101
Varsovie, 2 Dodgson, 174, see 3 Stark. N. P. C.22. So where
a witness, who had been convicted of the same conspiracy, was
produced, Abbott C. J. said, "In a doubtful case, the ordi-
nary practice is to receive the evidence, and it appears to me
that the present case is so far doubtful, that I am bound to
receive the testimony of the witness, but I shall reserve the
point." Crowther v. Hopwood, 3 Stark. 21, 1 Dow. &; Ry.
N. P. C. 5. S. C. But where the paity is convicted of a con-
spiracy to do an act tending to pervert the course of justice, as
in the case of a conspiracy to bribe a person summoned to give
evidence before justices, on a revenue case, the conviction will
render him incompetent. Bushell v. Barrett, Ry. fy Moo.
N. P. C. 434. It seems that a conviction for winning by
fraud or ill practice in certain games, will render the party in-
competent, since the statute of 9 Anne c. 14. s. 5. not only
inflicts a penalty, but also enacts that he shall be deemed infa-
mous, and one of the legal consequences of infamy is incom-
petency to give evidence. 1 Phitl. Ev. 28. But a conviction
tor keeping a public gaming house was held by Abbott C. J.
not to disqualify. Grant's cine, Ry. <5f Meo. N. P. C. 270.
Outlawry in a personal action does not disqualify, but it is
otherwise with regard to outlawry for treason or felony. Com.
Dig. Testm. A. 4. Cetier's case, T. Raym. 369. Hawkins,
P. C. b. 2. c. 48. s. 22.
A person incompetent to give oral evidence in court, on the
ground of infamy, will not be allowed to have his affidavit
read. Walker v. Kearney, 2 Str. 1148. Unless it be to de-
fend himself against a complaint. Id. Davis and Carter's case,
2 Salk. 461. A person who had been convicted of a conspi-
racy, (it is not stated of what nature) was held to be entitled
to make an affidavit to hold to bail. Park v. Strockley, 4
D. %R. 144.
Li what manner the conviction must be proved.] Where it is
said that a witness is disqualified by conviction, a judgment of
a court of competent jurisdiction is meant, and that judgment
must be proved in the ordinary way. Parol evidence cannot
therefore be given of it, and though the witness himself may
admit that he was convicted of felony, this will not render him
incompetent. It. v. Castetl Careinion, 8 East, 78. So where
a witness admits himself to have been guilty of perjury ; this
goes to his credibility merely, and not to his competency ;
Teal's case, 11 East, 309, and he is not inadmissible, though
he admits that he perjured himself upon the point in question.
Id. Rands v. Thomas, 5 AT. & S. 246. It is not sufficient to
give in evidence the indictment, and a verdict of guilty there-
upon, without proving the judgment, for judgment may have
been arrested. Com. DiV. fttm. (A. 4.) Gilb. Ev. 142.
The record of the judgment therefore must be produced in
102 Witnesses.
court ; Hawk. P. C. b. 2. c. 46. s. 104, or an examined copy
of it, as in other cases. 2 Hale, P. C. 278. It must appear
that the party was convicted before a competent tribunal. Thus
where, in order to prove a conviction at Sierra Leone, an indict-
ment and conviction thereupon were given in evidence, Bayley
J. held it insufficient, because it did not show by what au-
thority the indictment was found ; and because it was imperfect
as a record without the caption. Cooke v. Maxwell, 2 Stark.
183.
Competency, how restored by suffering the punishment.]
Where the party convicted has suffered the punishment awarded,
he is again rendered competent. The provisions on this sub-
ject, which were formerly contained in various statutes, are
now consolidated in the 9 Geo. 4. c. 32, by the third section of
which statute it is enacted, that where any offender has been or
shall be convicted of any felony, not punishable with death,
and has endured, or shall endure the punishment to which
such offender has been, or shall be adjudged, for the same, the
punishment so endured has and shall have the like effects and
consequences, as a pardon under the great seal, as to the
felony, whereof the offender was so convicted ; provided always
that nothing therein contained, nor the enduring of such pun-
ishment shall prevent or mitigate any punishment to which the
offender might otherwise be lawfully sentenced, on a subsequent
conviction for any other felony.
The next section (4) provides for the cases of convictions
for misdemeanors, and enacts that wherever any offender has
been, or shall be convicted of such misdemeanor (ceitain
misdemeanors which render the party convicted thereof in-
competent) except perjury or subornation of perjury, and luis;
endured or shall endure the punishment to which such offen-
der has been or shall be adjudged for the same ; such offender
shall not, after the punishment so endured, be deemed to be,
by reason of such misdemeanor, an incompetent witness in any
court or proceeding, civil or criminal.
Where a person, sentenced to transportation for seven years,
was confined in the Hulks during that period, but made his es-
cape, twice, for a few hours each time, (for which 'he was
punished), the judges held that theseescapes, on which he was
immediately brought back and served out the remainder of his
term, did not prevent him regaining his competency. Badcock's
case, Iluss. fy Ry. 248.
Competency, how restored by pardon.] The competency of
a person, whose evidence has been rendered inadmissible by
conviction, is restored by the king's pardon, which has the
effect of discharging all the consequences of the judgment.
Cro$6i/'s ease, 2 6'u//c. 689. But where the disability is not
Witnesses. 1 03
merely a consequence of the judgment, but is a part of the judg-
ment, as in case of judgment for perjury upon the stat. 5 Eli:.,
which provides that the party convicted shall never be admitted
to give evidence till the judgment is reversed, the king cannot
by his pardon restore competency, though it may be restored by
act of parliament. Id. Ford s case, Id. 691. Gilb. Ev. 141. A
man convicted of perjury at common law, is restored to his com-
petency by pardon. Id. Dover v. Maestaer, 5 Esp. 94. See
Mr. Margrave's learned Dissertation " On the effect of the
King's pardon of Perjury." 2 Jurid. Argum. 221.
At common law, it was necessary to produce the pardon un-
der the great seal, and it was not sufficient to show it under the
sign manual, or privy seal, which are only in the nature of war-
rants, and countermandable. Gully's case, 1 Leach, 98. Miller's
rase, 2 W. Bl. 797. Earl of Warwick's case, 5 St. TV. 171. fo.
ed. But now, by stat. 7' & 8 Geo. 4. c. 28. $ 13. it is en-
acted, that where the king's majesty shall be pleased to extend
the royal mercy to any offender convicted of any felouy, punish-
able with death or otherwise, and by warrant under his royal
sign manual, countersigned by one of the principal secretaries
of state, shall grant to such offender, either a free or a condi-
tional pardon, the discharge of such offender out of custody in
the case of a free pardon, and the performance of the condition
in the case of a conditional pardon, shall have the effect of a
pardon under the great seal for such offender, as to the felony
for which such pardon shall be so granted. It will be observed
that this statute does not apply to the case of convictions for
misdemeanors. And, therefore, to restore the competency cf
persons so convicted, the pardon must still be shown under the
great seal.
The king may extend his mercy on whatever terms he pleases
and consequently may annex to his paidon any condition that
he thinks fit, whether precedent or subsequent, and on the per-
formance of that condition, the validity of the pardon will de-
pend. Hawk. P. C. b. 2. c. 37. $ 28. It must, therefore, be
proved, that the condition has been performed.
It has been held in Scotland, and it would probably be so held,
if the point should arise in our own courts, that a person who
has been convicted by a foreign tribunal of an offence incurring
infamy, and pardoned by the sovereign authority in that country,
is admissible as a witness here, if the law of the foreign country
allows the competency of the party to be restored in that man-
ner. Smith's case, 1788, Burnet, 405, Alison, Prac. 451.
Competency hou- restored by reversal of judgment.] If a
conviction and judgment are read on the one side to show the
witness incompetent, they may be answered on the other, by
reading a reversal of the judgment upon writ of error. If the
incapacity arises from an outlawry, under a charge of treason
104 Witnesses.
or felony, it will be removed by proof of the reversal of that out-
lawry. If the objection is, that the witness has been attainted
by an act of parliament, which subjects him to all the penalties
of an attainder, unless he surrenders before a certain day,
(which is a kind of parliamentary outlawry,) it may be shewn
that the witness surrendered conformably with the act. 1 Phili,
Ev. 30.
1NCOMPETENCY FROM INTEREST.
Nature of the interest in general . . 104
Rewards .... 104
Wager . . . .105
Prosecutor, when competent . . .105
Informers, when competent . . .108
Inhabitants, when competent . . .110
Bail incompetent . . . .111
Interest, how removed . . .112
Incompetency from interest Nature of the inteiest in ge-
neral.] Where a person interested in the event of the pro-
ceeding, is called as a witness, he may be rejected on the
ground of a supposed want of integrity. But the interest must
be such as the law recognizes, and the bias, arising from the
witness standing in the same situation as the party by whom he
is tendered, is not sufficient. 1 Phill. Ev. 45. Nor is a man in-
competent, because he is personally interested in a similar ques-
tion to that upon which he is called to give evidence. Thus, a
person is not incompetent because he is possibly liable to be
punished by an information, in the nature of a quo warranto
for a past act, the lawfulness of which he may support by his
testimony in another action to which he is not a partv. G ray's
case, B.R.H. 10 Geo. 2, 2 Selw. N. P. 1087. 4</i ed.
Nature of the interest Rewards.] The expectation of a
benefit, not necessarily and legally flowing fiom the event
of the proceeding, does not render a witness incompetent,
as the promise of a pardon, post, p. 119. So where a woman
gives evidence against a prisoner, under the hope that his
conviction will tend to procure the pardon of her husband,
who has been convicted, it goes to her credit only, and not
to her competency. Rudd'a case, 1 Leach, 127. So in pro-
secutions where there are rewards, although the reward can.
Witnesses. 105
only be the effect of the conviction, the prosecutors are compe-
tent witnesses, yet every man who comes as a witness, under
the idea ot having a reward on the conviction of the prisoner,
may be said to be interested in point of property in the event of
the cause, Per Cur. Ibid. After the riots of 1780, a reward was
offered by government for the apprehension and conviction of
any of the rioters, and a question arose, whether persons thus
interested in the conviction of the criminals, were admissible
witnesses against them. The twelve judges unanimously agreed
that the testimony of the witnesses, who claimed and received
the reward, was admissible. 1 Leach, 314. (n.) It is upon the
principle, that the exclusion of persons entitled to rewards,
would be inconsistent with the spirit of the acts giving the
rewards, and against the grounds of public policy, that their
competence is virtually continued. Per Cur. Williams' case,
9 B. (So C. 556. With regard to rewards offered by private in-
dividuals, the principle upon which persons entitled to them
have been held competent witnesses, is said to be, that the
public have an interest upon public grounds, in the testimony
of any person who knows any thing as to a crime, and that
nothing private individuals can do will take away the right which
the public have. Ibid.
Again, where a statute entitles a party to pardon, provided
another offender be convicted on his testimony, (as was formerly
the case upou the statutes 10 & 11 VV. 3. c. 23. 5., and
5 Ann. c. 31. 4.) the party so entitled is a competent witness.
Where the legislature has held out that as a reward by way of
inducement for criminals to convict and make a discovery, it
would be acting against the rules and principles of law if they
were by giving their testimony, considered as interested in the
event of the prosecution. Per Cur. Rudd's case, 1 Leach, 134,
135.
Nature of the interest Wager.] If the witness lay a wager
that he will convict the prisoner, he is still competent, though it
goes to his credit. Fox's case, 1 Str. 652.
Prosecutor, when competent.] As a general rule, the prose-
cutor or party injured, is a competent witness in criminal prose-
cutions. This rule, which by some has been supposed to be
grounded upon the absence of all legal interest, and by others,
upon the principle that the law will not presume, that in a
public proceeding a man will be actuated by revengeful or im-
proper motives, appears to be grounded on reasons of public
policy, which forbid the exclusion of the person whose evi-
dence must usually be the most material in the case.
Though as a general rule a prosecutor is competent to prove
the case for the prosecution, yet many instances occur, in which
he may be interested in the event of the proceeding, and in
F 5
106 Witnesses.
those cases his testimony cannot be received. But although he
may have an interest in the event, he may yet be competent on
the ground, that the statute which confers the interest, expressly
or impliedly, recognizes his competency. Vide post, Informers.
Upon prosecutions for robbery, the party robbed has always
been considered as a competent witness, although the stat.
21 H. 8. c. 11. gave him a writ of restitution for the recovery
of the stolen goods upon the conviction of the offender. The
reason of this, however, depends upon the words of the statute
itself, which provide, that if the felon who robs be attainted by
reason of evidence given by the party robbed, or owner of the
money, &c. or by any other person by their procurement, the
party robbed shall be restored to his money, &c. Williams case,
9 B. <5f C. 550, 557.
On an indictment at common law for perjury, the prosecutor
is a good witness. R. v. Broughton, 2 Sir. 1229. overruling
Ellis' s case, Id. 1 104., and Whiting's case, 1 Sulk. 283. See
4 Burr. 2255. B. N. P. 289. But a distinction is taken between
this case and that of an indictment for perjury upon the stat.
5 Eliz. c. 9. which gives the party grieved 10/., (half the pe-
nalty) in which case it is said he will not be a competent wit-
ness. - B. A". P. 289. Hawk. P. C. b. 2. c. 46. 118. Gilb. Ev.
124. 2 Stark. Ev. 139. 2d ed. It has, however, been justly
observed, that as in an action to recover this moiety, the party
grieved would be precluded from giving the conviction in evi-
dence, there appears to be no objection to his competency.
2 Russell, 546. It must be observed also, that the statute gives
the moiety to such person that shall be grieved, &c., and will
iuefor the same. See 9 B. 8f C. 558. Although the suit, for per-
jury in the course of which the defendant is indicted, be not at
an end, the prosecutor is still a competent witness. Boston's
case, 4 East, 572.
It was formerly held, that the party whose signature was
forged, was not a competent witness for the prosecution on an
indictment for the forgery ; 2 Russ. 601 ; but now, by stat.
9 Geo. 4. c. 32. 2., it is enacted, " That on any prosecution
by indictment or information, either at common law, or by
virtue of any statute, against any person, for forging any deed,
writing, instrument, or other matter whatsoever, or tor uttering or
disposing of any deed, writing, instrument, or other matter what-
soever, knowing the same to be forged, or for being accessory
before or after the fact to any such offence, if the same be a
felony ; or for aiding, abetting, or counselling the commission of
any such offence, if the same be a misdemeanor, no person
shall be deemed to be an incompetent witness in support of any
such prosecution, by reason of any interest which such person
may have or be supposed to have, in respect of such deed,
writing, instrument, or other matter."
Some of the older cases on the subject of the competency of
Witnesses. 107
witnesses in criminal proceedings, were decided upon the idea
that the conviction might be afterwards evidence for the witness
in another proceeding ; but it is now settled that the record of a
conviction will not be received as evidence, either at law or in
equity, in favour of the party upon whose testimony the con-
viction was procured. Pickersgill's case, 4 East, 577. (n.) Bos-
ton's case, 4 East, 582. So where a conviction before a magis-
trate proceeded on the evidence of A. B., although his name
did not appear in the conviction, Lord Ellenborough refused to
permit the conviction to- be given in evidence for him, in an
action for false imprisonment. Smith v. Rummens, 1 Campb. 9.
And a conviction for a conspiracy proceeding on the evidence of
A. is not evidence for him in an action for the same cause.
Hathaway v. Barrow, 1 Campb. 151. So upon an indictment
for usury, the prosecutor, the borrower of the money, is compe-
tent. Sewel's case, 7 Mod. 118. Smith v. Prager, 7 T. R. 60.
Upon an indictment for not repairing a highway, the prose-
cutor has been admitted as a witness, for though the Court is
authorized (13 Geo. 3. c. 78. 4 64.) to award costs against
him, in case the proceedings shall appear to be vexatious, yet
it would scarcely presume, in the first instance, that his con-
duct had been vexatious, so as to raise an objection to his com-
petency, especially after the finding of a bill by the grand jury.
R. r. Inhab. Hanmerstnith, 1 Stark. 357. and note, Id. 358.
1 Rust. 334.
So upon a removal of an indictment by certlorari, from the
sessions to the Court of King's Bench, in which case the de-
fendant, if convicted, is by stat. 5 & 6 \Vm. <k M. c. 11. liable
to pay costs to the prosecutor, the latter is still a competent
witness upon a principle of public policy, because, if the act of
parliament which was designed to discourage removal of suits
by eertiorari, should take off the evidence of the prosecutor, it
would give the greatest encouragement to them that is possible.
Muscat's case, 10 Mod. 194. 2 Russ. 603.
Upon an indictment for a forcible entry under the stat. '21
Jac. 1. c. 16. or 8 H. 6. c. 9. by which the justices are em-
powered to make restitution of the premises entered upon, the
prosecutor, the tenant of the premises so entered upon, is not a
competent witness, on the ground of his interest in the restitu-
tion. " The public interest," said Mr. Justice Bayley, de-
livering the opinion of the court, " will still have the protection
of a common law indictment, and there is nothing from which
an inference can fairly be drawn, that it was with a view to the
public interest, and not for the private benefit of the party
grieved, that the provision for restitution was introduced into
the statute. Where it is plain that the detection and conviction
of the offender are the objects of the legislature, the case will
be within the exception, and the person benefited by the
conviction will, notwithstanding his interest, be competent.''
108 Witnesses.
Williams' s case, 9 B. Sf C. 549. Beacan's case, Ry. .* Moo.
JV. P. C. 242.
Informers, when competent .] Whether an informer, entitled
by statute to the penalty or part of the penalty, upon the con-
viction of an offender, is a competent witness on the prose-
cution of such person, depends upon the terms of the statute
creating the penalty. It has been already stated, (ante, p. 104,)
that the mere fact of a reward being given to the party dis-
covering an offender, will not incapacitate the party, if the
statute giving the reward contemplates such person being a
witness. And it seems to be now settled, that where a statute
gives a reward, or the whole or part of a penalty to the informer,
and such reward or penalty is not recoverable upon the in-
dictment itself, but a distinct suit is necessary, then, as the
conviction will not be evidence in such suit, the testimony of
the party entitled to the penalty, &c. is admissible. See Wit-
Hams' s case, 9 B. &; C. 557. Thus upon a prosecution upon
the stat. 9 Ann. c. 14. s. 5. for penalties by the loser of money
at cards, he is a competent witness, the penalties being given
to such person or persons as shall sue for the same by action.
JMckup's case, cited Willes, 425, (a.) 9 B. &; C. 557. So on a
prosecution for the penalty of 500/. under stat. 23 Geo. 2.
c. 13. s. 1. for seducing artificers to go out of the kingdom,
although the informer was entitled to a moiety of the penalty,
upon suing for the same. Johnson's case, Witles, 425, (a.)
9 B. % C. 551.
Where the act giving the penalty to the informer or other
person, contemplates his being a witness, he is of course ad-
missible. Such persons are, in the words of Lord Ellen-
borough, " made witnesses by a legislative declaration."
4 East, 183. By stat. 2 G. 2. c. 24. s. 8. any offender within
the act discovering within a certain time any other offender, so
that the person discovered be thereupon convicted, the discoverer
not having been himself before that time convicted, shall be in-
demnified and discharged from all penalties and liabilities in-
curred under the act. This gives a parliamentary capacitation
to the witness, through whom the fact was discovered, and who
might otherwise at common law have been incapacitated, hewurd
ii. Shipley, 4 East, 180. Bush v. Railing, Phillips v. Fowler, cited
Sayer, 291, 9 B. fy C. 557. So where upon an indictment on
the 21 G. 3. c. 37. s. 1. for exporting machines used in the
manufactures of this country, the informer, to whom the penalty
(by s. 1.) is to go, when not otherwise provided for, was held
by Lord Kenyon to be a competent witness, his lordship ob-
serving that the objection had been long since overruled in a
case in Sir J. Burrows's Reports, soon after Lord Mansfield's
coming into the court, in cases of bribeiy. (Railing's case,
Sayer, 289,) Teasdale's case, 3 Esp. 68. It is said by Air.
Witnesses. 109
Justice Bayley, delivering the judgment of the court, in Wil-
liams's case, 9 B. <3f C. 559, that Lord Kenyon seems to have
considered the the term " informer," in the 21 Geo. 3. as equi-
valent to the term " person discovering," in 2 G. 2. c. 24. and
as it had been held that the legislature must have decided that
the person designated as " the person discovering " in the one
case should be a witness, it must be taken to have had the
same intention as to the person designated by the word
" informer" in the other.
But where the penalty is recoverable on the indictment itself,
and the informer is not driven to a suit, and is not rendered
competent by the construction of the statute, his title to the
penalty gives such an interest in the event of the prosecution
as will incapacitate him. Thus a conviction for deer-stealing
was quashed, because the same person was both informer and
witness, and entitled to a part of the penalty. Tilly's cui>e,
1 Str. 316. Piercy's case, Andr. 18. Btaney's case, Id. 240.
S. P. So upon an information on the stat. 17 Geo. 2.c. 46.
for having naval stores in possession, the informer, who was
entitled to a moiety of the penalty given by the act, was re-
jected as incompetent by Lord Kenyon. Black-man's case, 1
Esp. 96. sed vide post. But where the statute gives the court
power either to fine or imprison, a person who would be en-
ntled to a portion of the fine is a competent witness. Thus
upon an indictment on the above mentioned statute, 17 Geo. 2.
which occurred soon after the decision of Blackman's .case,
(supra,) Lord Kenyon said, that since that decision, he had
considered the objection to the informer being a witness on the
ground of interest ; that the statute having given a discretionary
power to the court to inflict a corporal punishment, or to im-
pose a fine, it was only in case a fine was imposed that the
witness could expect to derive any benefit, and that was un-
certain, as depending upon the judgment of the court, but he
was now of opinion that the objection went to the credit, and
not to the competency of the witness. Cole's case, 1 Esp. 169
Peake, 217.
In many cases informers entitled to receive penalties, are,
notwithstanding, made competent witnesses by the express pro-
visions of various statutes. Thus by stat. 6 Geo. 4. c. 108.
s. 105. it is enacted that if upon any trial a question shall arise,
whether any person is an officer of the army, navy, or marines,
being duly authorized and on full pay, or officer of customs or
excise, evidence of his having acted as such shall be deemed
sufficient, and such person shall not be required to produce
his commission or deputation, unless sufficient proof shall be
given to the contrary ; and every such officer and any person
acting in his aid or assistance, shall be deemed a competent
witness upon the trial of any suit or information, on account of
any seizure or penalty as aforesaid, notwithstanding such
110 Witnesses.
officer or other person, may be entitled to the whole or any part
of such seizure or penalty.
So in the statute 32 Geo. 3. c. 66. for preventing counter-
feit certificates of servants' characters, and in 33 Geo 3. c. 75.
s. 17. for regulating hackney coaches, similar provisions
rendering the informer competent are contained. So also by
stat. 27 Geo. 3. c. 29. the inhabitants of every parish, township,
or place, shall be deemed and taken to be competent witnesses
for the purpose of proving the commissiou of any offence within
the limits of such parish, township, or place, notwithstanding
the penalty incurred by such offence, or any part thereof, is or
may be given, or applicable to the poor ot such parish, town-
ship, or place, or otherwise, for the benefit or use, or in aid
or exoneration of such parish, township, or place. Provided
always, that nothing in this act contained, shall extend to
any action or proceeding, in which the penalty or penalties to
be recovered, shall exceed the sum of twenty pounds.
Inhabitants, when competent.] The rule with regard to the
competency of inhabitants, is thus laid down by Chief Baron
Gilbert. " The men of one county, city, hundred, town, cor-
poration, or parish, are evidence in relation to the rights, pri-
vileges, immunities, and affairs, of such town, &c. if they are
not concerned in private interest, in relation thereto, nor ad-
vantaged by such rights and privileges, as they assert by their
attestation. Men of a county are evidence on an indictment
for not repairing a bridge, whether it be in repair or not, for
they are perfectly indifferent, because it is equal to every man
that the bridge, for convenience of passage, should be repaired
where it is necessary, as that they should not be put to unne-
cessary charge ; for every man, for the convenience of his own
passage, is concerned to uphold the bridge, and cannot be
thought to create a useless charge, so that he is perfectly indif-
ferent, being equally interested ; but the men of a county can-
not be sworn in a cause relating to the bounds of the county,
in a suit depending between that and another county, carried on
at the county charge, because every man is in such a case con-
cerned to prevail in point of interest." Gdb. Ev. 126. Some
doubt, however, existing with regard to the admissibility of the
evidence of inhabitants, the stat. 1 Ann. St. 1. c. 18. s. 13. re-
citing, that such witnesses had been rejected, enacts that in all
informations and indictments to be brought and tried in any of
his Majesty's courts of record at Westminster, or at the assizes,
or quarter sessions of the peace, the evidence of the inhabitants,
being credible witnesses, or any of them, of the town, corpora-
tion, county, riding, or division, in which such decayed bridge
or highway lies, shall be taken and admitted in all such cases
in the courts aforesaid, any custom, rule, order, or usage to the
contrary, notwithstanding.
Witnesses. Ill
The inhabitants of the hundred could not, before the stat. 8
G. 2. c. 16. s. 15. have been competent witnesses for the de-
fence in an action on the statute of Winton, Gitb. Ev. 127,
but by the statute of Geo. 2. they are rendered competent.
By the 13 Geo. 3. c. 78. s. 76. any inhabitant of any parish,
township, or place, in which any offence shall be committed,
contrary to that act, shall be deemed a competent witness, not-
withstanding his or her being such inhabitant. And by sect.
68. the surveyor of any parish, township, or place, shall be
deemed in all cases a competent witness in all matters rela-
tive to the execution of the act, notwithstanding his salary
may arise in part from the forfeitures and penalties thereby
inflicted.
The inhabitants of a parish are not, however, competent wit-
nesses for the defence, in an indictment for not repairing a high-
way. Diet, per Lord Ellenborough, 1 B. fy A. 66. 1 Fhill. EC.
119. 1 Rnss. 334. 2 Russ. 602. Upon an indictment against the
inhabitants of a township, for not repairing a highway, the de-
fendants pleaded that one R. was bound ratiane tenure;, to
repair. To prove this, an inhabitant of the township was
called, who was not an occupier of land there, and consequently
not rated to the poor ; but Lord Kenyon rejected him as being
directly interested in the event of the suit, because if there
should be a verdict against the defendants, the witness, as an
inhabitant, would be liable to the payment of the fine ; and
also any inhabitant is liable to the statute duty. R. i\ Inhati.
Wheuton- Aston, Sergt. Williams' MSS. 1 Chet. Burn, 980.
1 Stark. Ev. 144. 2rt ed. But where a penalty is given to the
poor of a parish, as the recovery of the penalties only goes to
relieve such persons as are actually rated to the relief of the
poor, an inhabitant of the parish, though omitted from the
rate, for the very purpose of giving evidence, is a competent
witness. R. v. Inhab. Kirdford, 2 East, 559. So a pa-
rishioner paying rates was held to be a competent witness in an
action defended by an order of vestry, directing the costs to be
defrayed out of the rates, such order being illegal. Yates r .
Lance, 6 Egp. 132.
Bail incompetent.'] In criminal as well as in civil cases,
persons who have become bail are incompetent witnesses for the
defence. Thus on the trial of John Hampden for a misdemeanor.
Sir Henry Hobart was called as a witness for the defendant,
and objected to on the ground of his being bail, and the ob-
jection was allowed ; for the bail is exonerated from his recou-
nizance on the discharge of his principal , but it was said that
the bail might be changed, in order to make him a good vm-
ness. Hampden's case, 3 St. Tr. 842. fo. ed. 1 M'XatU,
e. 59.
112 Witnesses.
Interest, how removed."} Where the incompetency of a wit-
ness depends upon a pecuniary or other interest, with which he
is capable of departing, it may be removed by a release or other
proper mode. Thus before the passing of the 9 G. 4. c. 32.
(which rendered the prosecutor in cases of forgery a competent
witness, vide ante, 106.) a release from the holder of a pro-
missory note, to the supposed drawer, in whose name it was
forged, rendered the latter a competent witness to prove the
forgery. Akehurst's case, 1 Leach, 150. So if the supposed
obligor of a bond had been released by the supposed obligee.
Dodd's case, 2 East, P. C. 1003, 1 Leach, 155.
It may also be shown that the witness, though once interested,
has become competent by payment, or other matter, discharging
the interest. Thus where the party, whose name was forged to
a receipt, had recovered the money from the prisoner, he was
held to be competent. Welts' cane, B. N. P. 289. 12 Vin.
Ab. 23. 1 Stork. Ev. 127. 2d ed.
If the party wishing to call an interested witness, tenders a
release to him, which the witness refuses, he may still be exa-
mined. 1 Phill. Ev. 128. 2 Russell, 378. So if the witness
himself tenders a release. Bent v. Baker, 3 T. R. 35. Good-
title v. Welford, Dougl. 139.
The 26th section of the act for the further amendment of the
law 2 & 3 W. 4. c. 42. relates only to the competency of per-
sons called as witnesses on the trial of actions.
INCOMPETENCY HUSBAND AND WIFE.
General rules . . .112
Lawful husband and wife only, excluded . .113
Nature of the evidence which the husband or wife is ej.-
ctuded from giving . . .113
Cases where the husband or wife has been held incompetent 114
Cases of personal violence . . .115
General rules.'] Husband and wife are in general incompe-
tent witnesses, either for or against each other, on the ground
partly of policy, and partly of identity of interest. The cir-
cumstance of one of the parties being called for or against the
other, makes no distinction in the law. When admissible
against, the testimony is likewise admissible in favour, of the
other. Serjeant's case, Ry. <5f Moo. A T . P. C. 352.
Witnesses. 113
The declarations of husband and wife are subject to the same
rule of exclusion as their viva voce testimony, iee 1 Philt.
Ev. 96.
In a civil case, Lord Hardwicke refused to permit the
plaintiff's wife to be examined, though with the consent of the
defendant ; Barker v. Diiie, Cases temp. Hard. 264 ; but in a
late case, (where the above decision was not cited,) the judge
said he would permit the wife to be examined with the consent
of the other party. Pedleu v. Wellesleu, 3 C. if P. 558.
Where the relation of husband and wife has once subsisted, the
one is inadmissible for or against the other, even after the rela-
tion has ceased, with respect to matters which occurred during
the continuance of the relation. Thus where a woman, di-
vorced by act of parliament, and married again, was called to
prove a contract by her former husband, she was rejected by
Lord Alvanley. If she might be a witness, his Lordship
observed, in a civil proceeding, she might equally be so in a
criminal proceeding ; and it never could be endured, that the
confidence which the law had created, whilst the parties re-
mained in the most intimate of all relations, should be broken,
whenever by the misconduct of one party the relation has been
dissolved. Monroe v. Twisleton, Peake, Ev. A)ip. xci. 5th ed.
Upon the authority of this case, Best, C. J. rejected the testi-
mony of a widow called to prove a conversation between herself
and her late husband. Doker i. Hasler, Ry. $ M. X. P. C.
198 ; sed vide Beveridge v. Minter, 1 C. <3f P. 364.
Lawful husband and wife only eicluded.] It is only where
there has been a valid marriage, that the parties are excluded,
from giving evidence for or against each other. Therefore on
an indictment for bigamy, after -proof of the first marriage, the
second wife is a competent witness against the husband, for the
marriage is void. B. A T . P. 287. Ear.. Ab. Ev. A. 1. 1 East,
P. C. 469.
A woman who has cohabited with a man as his wife, but is
not so in fact, is a competent witness for or against him.
Bathews v. Galiitdo, 4 Singh. 610. Although in a case of for-
gery, Lord Kenyon refused to admit a woman as a witness for
the prosecutor, whom he had in court represented as his wife ;
but on hearing the objection to her competency taken, denied
his marriage with her. Anon, cited by Richards, C. B.
Campbell v. Twemlow, 1 Price, 83. This decision can no
longer be considered as law.
Xature of the evidence which the husband or wife is excluded
from giving."] It is not in every case in which the husband or
wife may be concerned, that the other is precluded from giving
evidence. It was indeed, in one case laid down as a rule,
founded upon a principle of public policy, that a husband and
114 Witnesses.
wife are not permitted to give evidence, which may even tend
to criminate each other. Per Ashurst J. R. v. Cliviger 2 T. R.
268. But in a subsequent case, the Court of King's Bench,
after much argument, held that the rule as above stated, was
too large, and that where the evidence of the wife did not
directly criminate the husband, and never could be used against
him, and where the judgment, founded upon such evidence
could not affect dim, the evidence of the husband was admis-
sible. R. v. All Saints Worcester, 1 Phill. Ev. 74.
Upon the same principle, where the husband or the wife has
been called by one party, the wife or the husband may be called
by the other, to contradict the statement, for no advantage can
be taken against either party of the contradictory testimony
thus given. See 1 Ph'M. Ev. 75.
Cases where husband or wife has been held incompetent.'] On
an indictment for a joint assault against two, it was proposed
to examine the wife of one of the defendants in favour of the
other, but there having been material evidence given against
the husband, and it being a joint trespass, and impossible to
separate the cases of the two defendants, the Cliief Justice
refused to let her be examined. Frederick's case, 2 Str. 1095.
On a joint indictment for burglary against two, the wife of one
of the prisoners has been held incompetent to prove an alibi for
the other. Littledale, J. rejected the evidence, on the ground
that it would go to show that the witness for the prosecution
was mistaken as to one of the prisoners, and would thus weaken
his evidence altogether, and benefit her husband. On a case
reserved, the judges thought the evidence rightly rejected.
Smith's case, 1 Moody, C. C. 289. See also Hood's case,
Id. 281. So upon an indictment for a conspiracy, the wife of
one of the defendants cannot be called as a witness for another
defendant. Locker's case, 5 Esp. 107. Again, upon an in-
dictment for a conspiracy against the wife of W. S. and others,
for procuring W. S. to marry, Abbott, C. J. rejected W. S.
when called as a witness for the prosecution. Serjeant's cafe,
Ry. <5f Moo. N. P. C. 352. But it seems that if the wife has
been connected with the commission of the offence, she may be
brought into court for the purpose of being identified. This
has been decided in the Scotch law, where several prisoners
were put to the bar, charged with stronthrief, it was held in-
competent to adduce the wife of one against any of the others at
the bar, although she was allowed to be brought into court and
identified by the other witnesses, as the person who had passed
one of the stolen notes. Law's cate, Alison, Prac. C. L.
Scot. 533.
It is a settled rule, that in cases of bigamy, the first and
lawful wife is not a competent witness; (muVs case, Sir T.
Raym.l ; although the second wife is, ante, p. 113. The law is the
Witnesses. 115
same in Scotland. Alison, Prac. Cr. L. 463. But the propriety
of this exclusion is doubted by an able text writer. " Having
once, " he says" for just and necessary reasons, admitted an
exception to the general rule, in the case of a wife who has
sustained a personal injury from her husband, is there any
principle on which it can be held not to include that case where
the injury to herself and her family is the greatest, from a de-
sertion of them both by the head of the family? Nor is the
reason of exclusion, founded on the peace of families, here of
the slightest weight, but rather the reverse ; for a husband who
has been guilty of bigamy, has proved himself dead to all sen-
timents of that description, and having already deserted his
first wife for another women, he has given the clearest evi-
dence that no farther family dissensions need be apprehended
from her appearing to give evidence against him." Alison,
Prac. Cr. L. 463.
Whether or not the wife is a competent witness against her
husband on a charge of treason, appears to have been doubted.
In Grigg's case, T. Raym. 1, which was an indictment for
bigamy, it was said, obiter, that the wife could not be a wit-
ness against her husband, except in treustm ; but on the other
hand it has been asserted that a wife is not bound in case of
high treason, to discover her husband's treason ; Brownl. Rep.
47 ; and there are many authorities to the same effect which
appear to settle the point. 1 Hale, P. C. 301, Hawk. P. C.
b. -2. s. 2. c. 46. s. 182, Bac. Ab. Evid. A. 1. See 2 Stark.
Eu. 404, 2</. ed. 2 RMS. 607, 1 Phill. Ev. 79.
Although by stat. 6 G. 4. c. 16. s. 37. commissioners of
bankrupts are authorised to summon before them the wife of
any bankrupt, and to examine her for the discovery and find-
ing out of the estate of the bankrupt concealed by her, yet she
cannot be examined touching the bankruptcy of her husband.
12 rin. Ab. 11. Ex parie James, 1 P. \Vrns. 611. Her evi-
dence being admissible only by statute, before the commission-
ers, she will not be a competent witness for or against her
husband, on an indictment against him for concealing his
' effects.
Cases of personal violence.'] It is quite clear that a wife is a
competent witness against her husband, in respect of any
charge which affects her liberty or person. Per Hullock, B.
ll'akefield's case, p. 157, Murray's ed. Thus in Lord Aud-
leu's case, who was tried as a principal in the second degree,
for a rape upon his own wife ; the judges resolved that though
in a civil case, the wife is not a competent witness, yet that in
a criminal case of this nature, being the party grieved, upon
whom the crime is committed, she is to be admitted as a wit-
against her husband. 3 How. St. Tr. 414. 1 Hale, P. C. 301.
So on an indictment against the husband for an assault upon
116 Witnesses.
the wife. Azire's caste, I Str. 633. B. N. P. 287. So a wife is
always permitted to swear the peace against her husband, and
her affidavit has been permitted to be read, on an application to
the court of King's Bench, for an information against the hus-
band, for an attempt to take her away by force, after articles of
separation. Lady Lawley'scase, B. N. P. 287.
Upon an indictment under the repealed statute 3 Hen. 7. c.2.
for taking away and marrying a woman contrary to her
will, she was a competent witness to prove the case against
her husband de facto. Futtwood's case, Cro. Car. 488.
Brown's casf,, 1 Vent. 243. Naagen Swendsen's case, 14 How.
St. Tr. 559. 575. And she was consequently a witness for him.
Perry's case, coram Gibbs, 1794. Hawk. P. C. b. 2. c.46. s. 79,
cited Ry. &; Moo. N. P. C. 353. But a doubt has been en-
tertained, whether, if the woman afterwards assent to the mar-
riage, she is capable of being a witness. In Brown's case,
(supra-,) it is said by Lord Hale, that most were of opinion
that had she lived with him any considerable time, and assented
to the marriage, by a free cohabitation, she should not have
been admitted as a witness against her husband. 1 Hale, P. C.
302. This opinion appears to be countenanced by the autho-
rity of two eminent writers. 1 Philt. Ev. 78. 2 Stark. Ev.
402, 403. 2d ed. But Mr. Justice Blackstone, in his Com-
mentaries, has expressed a contrary opinion. 4 Com. 209. And
the arguments of Mr. East, on the same side, appear to carry
great weight with them. 1 East, P. C. 454. In a case before
Mr. Baron Hullock, where the defendants were charged, in
one count, with a conspiracy to carry away a young lady, under
the age of sixteen, from the custody appointed by her father,
and to cause her to marry one of the defendants ; and in ano-
ther count, with conspiring to take her away by force, being an
heiress, and to marry her to one of the defendants ; the learned
judge was of opinion that, even assuming the witness to be at
the time of trial the lawful wife of one of the defendants, she
was yet a competent witness for the prosecution, on the ground
of necessity, although there was no evidence to support that
part of the indictment which charged force ; and also on the
ground that the defendant, by his own criminal act, could not
exclude such evidence against himself. Wakejield's case, 257,
Murray's ed. 2 Russ. 605. 2 Stark. Ev.402. (n.) 2d. edit.
Upon an indictment under Lord Ellenboiough's act, against
a man for shooting at his wife, the latter was admitted as a
witness by Mr. Baron Garrow, after consulting Holroyd, J .
upon the ground of the necessity of the case, and Mr. Justice
Holroyd sent Mr. Baron Garrow the case of R. v. Jagger,
(1 East, P. C. 455.) York Assizes, 1797, where the hus-
band attempted to poison his wife with a cake, in which arsenic
was introduced, and the wife was admitted to prove the fact of
the cake having been given her by her husband.'and Mr. Justice
Kooke afterwards delivered the opinion of the twelve judges,
Witnesses. H'7
that the evidence was rightly admitted. Mr. Justice Holroyd,
however, said that he thought the wife could only be admitted to
prove facts which could not be proved by any other witness.
2 Russ. 106.
Upon the same principle that the evidence of the wife, if
living, would be received lo prove a case of personal violence,
her dying declarations are admissible in case of murder by her
husband. Woodcock's case, 1 Leach, 500. John's case, Id.
504. (n.) 2 Russ, 606. And in similar cases of personal vio-
lence, the examinations of the party (husband or wife) mur-
dered, taken before a magistrate, pursuant to the statute, would,
as it seems, be admissible against the husband or wife, where
the evidence of the husband or wife, if living, would have been
admissible. See M'Nally, Ev. 175.
ADMISSIBILITY OF ACCOMPLICES.
Accomplices in general . . .117
Principal felon , , , .118
Accomplice, when evidence for prisoner . .118
Promise of pardon . . . .119
Effect of accomplice's evidence . . .119
Confirmation . . . .120
Situation of an accomplice when called as a witness . 121
Accomplices in general.] The evidence of persons who have
been accomplices in the commission of the crime with which
the prisoner stands charged, iSj in general, admissible against
him. This rule has been stated to be founded on necessity,
since, if accomplices were not admitted, it would frequently be
impossible to find evidence to convict the greatest offenders.
Hawk. P. C. b. 2. c. 46. s. 94. Even where the accomplice has
been joined in the same indictment with the prisoner, he may
still be called as a witness, before he is convicted. Id, s. 95. It
is said that an accomplice indicted witii another is an admissible
evidence, if he be not put upon his trial, 2 Stark. Ev. 11, 2d ed,
2 Russell, 597. In strictness, however, there does not seem to
be any objection to the admitting the witness at any time
before conviction. The party that is the witness, says Lord
Hale, is never indicted, because that much weakens and dis-
parages his testimony, but possibly does not wholly take away hi*
testimony. 1 Hale, P. C. 305. The practice, where the testi-
mony of an accomplice is required to prove the case before the
grand jury, and he is in custody, is for the counsel for the pro-
118 Witnesses.
prosecution to move that he be allowed to go before the grand
jury, pledging his own opinion, after a perusal of the facts of
the case, that the testimony is essential. 2 Stark. Ev. 11, 2d ed.
Where the accomplice has been joined in the indictment, and
before the case comes on, it appears that his evidence will be
required, the usual practice is, before opening the case, to apply
to have the accomplice acquitted. Rowland's case, Rit. if Moo.
N. P. C. 401. Where the case has proceeded against all the pri-
soners, but no evidence appears against one of them, the court
will, in its discretion, upon the application of the prosecutor,
order that one to be acquitted for the purpose of giving evi-
dence against the rest. Eraser's case, 1 Bi.' Nolly, 56. But
the judges will not, in general, admit an accomplice, although
applied to for that purpose by the counsel for the prosecution,
if it appears that he is charged with any other felony than that
on the trial of which he is to be a witness. This was stated by
Mr. Justice Park in several cases, on the Oxford Spring
Circuit, 1826. Carrington's Supplement, 67, 2d ed.
Where a party had been joined in the indictment, and it
was intended to call him as a witness for the prosecution, it
was formerly the practice to enter a iwli prosequi as to him.
Ward v. Man, 2 Atk. 229. Where the defendants were indicted
for a conspiracy, to persuade a witness to absent himself from
the trial of a person charged with uttering base money, the
attorney-general entered a noli prosequi, as to two of the de-
fendants, who were then examined for the crown, and on their
evidence the others were convicted. Elliis case, site, after H. T.
1802, 1 M'Nal. Ev. 55.
Principal felon.'] Upon an indictment against a receiver,
the principal felon, when not convicted, may be admitted as a
witness against the defendant. This was allowed on the
repealed statute, 22 <J. 3. c. 28, Param's case, 2 East, P. C.
182, 1 Leach, 419, (n.) S. C. and in a prosecution on the
statute 4 Geo. I.e. 11. for taking a reward to help to stolen
goods. Wild's case, Id. 783, Haslam's case, Id. 702, 1 Leach,
418.
Accomplice when competent for prisoner.] It is quite clear
that an accomplice, not joined in the indictment, is a competent
witness for the prisoner, in conjunction with whom, he him-
self committed the crime. And even where they are severally
indicted for the same offence, the one may be called for the
other. If A. 15. and C., says Lord Hale, be indicted of
perjury, on three several indictments, concerning the same
matter, and A. pleads not guilty, B. and C. may be examined
as witnesses for A., for as yet they stand unconvicted, although
they are indicted. Balmore's case, 1 Hale, P. C. 305. So it
has been adjudged that such of the defendants in an informa-
tion, against whom no evidence has been given, may be wit-
Witnesses. 119
nesses for the otheis. Bedder's case, 1 Sid. 237, Hawk. P. C. 6.2.
c. 46. s. 98. The practice in this case is to apply to the court
to permit the issue, as to the intended witness, to go immedi-
ately to the jury, and he being found not guilty, is then a com-
petent witness. Eraser's case, 1 M'Nal. Ev. 56. Where two
were indicted for an assault, and one submitted and was fined
Is. and the other pleaded not guilty, upon the trial, the chief
justice allowed him to call the other defendant, the matter
being now at an end as to him. Fletcher's case, 1 Str. 633.
So where, on a joint indictment against two, one of them
pleaded in abatement, and there being no replication, he was
discharged ; he was admitted without objection as a witness
for the other defendant. Sherman's case, Cases temp. Hardw.
303. However, in a case before Lord Ellenborough, in which
the foregoing decisions were not cited, his lordship ruled, on an
indictment for a misdemeanor, that a defendant who had
suffered judgment by default, could not be called by another
defendant. " In the case of a {joint indictment," he ob-
served, " against several for a joint offence, I have never
known this evidence offered, and I think it cannot be ad-
mitted. To allow this evidence, would go to every criminal
case, for if two were indicted, one, by suffering judgment by
default, might protect the other. There is a community of
guilt: they are all engaged in an unlawful proceeding; the
offence is the offence of all, not ihe act of an individual only."
Laione's case, 5 Esp. 154. It may be observed, that the rea-
sons here given would exclude the evidence of an accomplice
in every case, when tendered for the prisoner.
Accomplices promise of pardon.] Although Lord Hale
thought that if a man had a promise of pardon if he gave evi-
dence against one of his confederates, this disabled his testi-
mony, 2 Hale, P. C. 280, yet it is now fully settled that
such a promise, however it may aflect the credibility of the
witness, will not destroy his competency. Tonge's case, Kelynge,
18. 1 Phill. Ev. 38. The rule is thus laid down by Mr. Serjeant
Hawkins. It has been ruled that it is no good exception, that
a witness has the promise of a pardon or other reward, on con-
dition of his giving his evidence, unless such reward be pro-
mised, by way of contract for giving such and such particular
evidence, or full evidence, or any way in the least to bias him
to go beyond the truth, which, not being- easily avoided, in
promises or threats of this kind, it is certain that too great
caution cannot be used in making them. Hawk. b. 2. c. 46.
i. 135. Vide ante, 104, 105.
Accomplice effect of his evidence.] A conviction on the
testimony of an accomplice, uncorroborated, is legal. This
point having been reserved in a case tried before Duller, J.,
the twelve judges were unanimously of opinion that an accom-
120 Witnesses.
plice alone is a competent witness, and that if the jury,
weighing the probability of his testimony, think him worthy of
belief, a conviction supported by such testimony alone, is per-
fectly legal. Atwood's case, 1 Leach, 464. Durham's case, Id.
478. I Hale, P. C. 304, 305. Jones's case, 2 Campb. 132.
This rule, however, is in practice subjected to much limitation,
" Judges," observes Lord Ellenborough, "in their discretion,
will advise a jury not to believe an accomplice unless he is
confirmed, or only in so far as he is confirmed ; but if he is be-
lieved, his testimony is unquestionably sufficient to establish
the facts he deposes to." Jones's case, 2 Campb. 132. So
where, on an indictment for highway robbery, an accomplice
only was called, the court, though it was admitted that such
evidence was legal, thought it too dangerous to permit a con-
viction to take place, and the prisoners were acquitted. Jones's
and Davis's cane, 1 Leach, 479, (rr.) The practice, therefore, is
for the court to direct the jury in' such cases to acquit the
prisoner, unless in some respects the evidence is confirmed.
Accomplice effect of his evidence confirmation.] Although
in practice, in order to give it effect, the evidence of an accom-
plice requires confirmation, it is obvious that it cannot be re-
quired to be confirmed in every particular, for if that were re-
quisite, his testimony would be better omitted altogether. Even
in Scotland, where the evidence of an accomplice unsupported
is insufficient to convict, a confirmation of his testimony on
certain parts of the case is all that is required. "The true
way," says an eminent writer on the criminal law of Scot-
land, " to test the credibility of a socins is, to examine him
minutely as to small matters, which have already been fully
explained by previous, unsuspected witnesses, and on which
there is no likelihood that he could think of framing a story,
nor any probability that such a story, if framed, would be con-
sistent with the facts previously deposed to by unimpeachable
witnesses. If what he says coincides with what has previously
been established, in the seemingly trifling, but really important
matters, the presumption is strong that he has also spoken
truly in those more important points which directly concern
the prisoner ; if it is contradicted by these witnesses, the in-
ference is almost unavoidable, that he has made up a story, and
is unworthy of credit in any particular.'' Alison's Prac. of the
Crim. Law of Scott. 157. Where, on the trial of several pri-
soners, an accomplice who gave evidence was confirmed in
his testimony with regard to some of the prisoners, but not as
to the rest, Bayley, J. informed the jury that if they were
satisfied by the confirmatory evidence, that the accomplice was
a credible witness ; they might act upon his testimony with
respect to others of the defendants, though as far as his evi-
dence affected them, he had received no confirmation ; and all
Witnesses. 121
the defendants were convicted. Duu-ber's case, 3 Scark. N, P.C.
34. Upon the same principle the judges held that an accom-
plice did not require confirmation as to the person he charged,
if he was confirmed as to other particulars of his story. Birkett's
case, P.USS. f Ri;. 251, but see Mr. Starkie's observations, 2 Ev.
12, (n.) In a late case, Patteson, J. is reported to have said,
" The corroboration of an accomplice ought to be as to some
fact or facts, the truth or falsehood of which goes to prove or
disprove the offence charged against the prisoner." Addis's case,
6 C. $ P. 388.
Accomplices situation of an accomplice when called as a
witness.] Where a prisoner, arraigned for treason or felony,
confessed the fact before plea pleaded, and appealed or accused
others his accomplices in the same crime, this practice, which
was termed approvement, and which was only admitted at the.
discretion of the court, entitled him to pardon. But as the
practice of appeal in cases of treason and felony is now
abolished, (69 Geo. 3. c. 46.) this consequence of it has also
ceased.
The practice now adopted is, for the magistrate before whom
the accomplice is examined, or for the court before which the
trial is had, to direct that he shall be examined, upon an under-
standing that if he gives his evidence in an unexceptionable
manner, he shall be recommended for a pardon, riut this
understanding cannot be pleaded by him in bar of an indict-
ment, nor can he avail himself of it at his trial, for it is merely
an equitable claim to the mercy of the crown, from the magis-
trate's express or implied promise of an indemnity upon certain
conditions that have been performed. It can only come before
the court by way of application to put off the trial, in order to
give the party time to apply elsewhere. Rudd's case, Cowp.
331, 1 Leach, 115. S. C. After giving his evidence, but not
in such a way as to entitle him to favour, an accomplice may
still be indicted for the same offence, and though he may have
conducted himself properly, he is liable to be proceeded against
for other offences. Thus, where an accomplice was admitted to
give evidence against a prisoner for receiving stolen goods, and
the latter was convicted ; and the witness was afterwards pro-
secuted in another county for horse stealinsr, and convicted ;
a doubt arising whether this case came within the equitable
claim to mercy, it was referred to the judges, who were unani-
mously of opinion, that the pardon was not to extend to
offences for which the prisoner might be liable to prosecution
out of the county, and the prisoner underwent his sentence.
Duce's case, 1 Bum's Justice, 211. 24f& ed. So where an ac-
complice who had been admitted as a witness against his com-
panions, on a charge of highway robbery, and had conducted
himself properly, was afterwards tried himself for burglary,
122 Witnesses.
Garrow, B. submitted the point to the judges, whether he ought
to have been tried after the promise of pardon ; but the judges-
were all of opinion, that though examined as a witness for the
crown, on the application of the counsel for the prosecution,
there was no legal objection to his being tried for any offence
with which he was charged, and that it rested entirely in the
discretion of the judge, whether to recommend a prisoner in such
a case to mercy. Lee's case, Russ. fy Ry. 364, 1 Burn, 212.
Brunton's case, Id. 454. S. P. With respect to other of-
fences, therefore, the witness is not bound to answer on his
cross-examination. West's case, 1 Phill. 37, (n.) A prisoner
who, after a false representation made to him by a constable in
gaol, that his confederates had been taken into custody, made a
confession, and was admitted as a witness against his asso-
ciates, but on the trial denied all knowledge of the subject,
was afterwards tried and convicted upon his own confession,
and the conviction was approved of by all the judges. Burley's
case, 2 Stark. Ev. 12, (n.) It is not a matter of course, to
admit an accomplice to give evidence on the trial, even though
his testimony has been received by the committing magistrates,
but an application to the court for the purpose must be made.
1 Phill. Ev. 38.
In Scotland, the course pursued with regard to an accom-
plice who has been admitted against his confederates differs
from that adopted by the English law, and seems better calcu-
lated to further the ends of justice. " It has long been an
established principle of our law," says Mr. Alison, " that by
the very act of calling the socius, and putting him in the
box, the prosecutor debars himself from all title to molest him
for the future, with relation to the matter libelled. This is al-
ways explained to the witness by the presiding judge as soon as
he appears in court, and consequently he gives his testimony
under a feeling of absolute security, as to the efrect which it
may have upon himself. If, therefore, on any future occasion,
the witness should be subjected to a prosecution, on account of
any of the matter contained in the libel, on which he was ex-
amined, the proceedings would be at once quashed by the
supreme court. This privilege is absolute, and altogether
independent of the prevarication or unwillingness with which
the witness may give his testimony. Justice, indeed, may
often be defeated, by a witness retracting his previous dis-
closures, or refusing to make any confession after he is put into
the box, but it would be much more put in hazard, if the
witness was sensible that his future safety depended on the
extent to which he spoke out against his associate at the bar.
The only remedy, therefore, in such a case is committal of the
witness for contempt or prevarication, or indicting him for
perjury, if there are sufficient grounds for any of these pro-
.ceedings." Alison, Prac. Cr. Law of Scotl. 453.
Witnesses. 123
EXAMINATION OF WITNESSES.
Ordering witnesses out of Court . . 123
At what time the objection to the competency of witnesses
must be taken .... 124
Voire dire . ., . . .125
Examination in chief , . 126
Cross-examination . . . .127
Re-examination . . . .128
Questions subjecting witness to a civil suit . . 129
to a forfeiture ....
to penalties or punishment whether such question may
be put . . . . 130
consequence of answering . . . 132
consequence of not answering ... 132
objection must be taken by witness himself . 133
Questions tending to degrade . . . 134
Evidence of general character ... 135
When a party may contradict his own witness . 136
Examination as to opinion . . . 137
Ordering witnesses out of court.] In general the court will,
on the application of either of the parties, direct that all the
witnesses but the one under examination shall leave the court.
It is said, that with regrard to a prisoner, this is not a matter of
right, 1 Stark. Ev. 163, 4 St. 7V. 9. Perhaps, in all cases, it
may be regarded as matter of discretion in the court. The
rule has been held not to extend to the attorney in the cause,
who may remain, and still be examined as a witness, his assist-
ance being in most cases necessary to the proper conduct of the
cause. Pomeroy v. Baddetey, Ry. fy Moo. N. P. C. 430.
Though in one case, Best J. ruled the other way. Webb's case,
Sarum Summ. Ass. 1821, 1 Stark. Ev. 63. 2ded. It does not,
however, appear, that in this case, application was made to
allow the witness to remain. Ry. <5f Moo. N. P. C. 431. So as
it seems, a physician, or other professional person who is called
to give an opinion as a matter of skill, upon the circumstances
of the case, may be allowed to remain. By the law of Scot-
land, a medical witness is directed to remain in court during
the trial, till the medical opinion of other witnesses begins. Ali-
son's Prac. Ciim. Law of Scot I. 489.
If a witness remains in court after an order made for the wit-
c 2
124 Witnesses.
nesses on both sides to withdraw, it is an inflexible rule in the
Court of Exchequer, that such a witness shall not, be allowed to
be afterwards examined. Att.-Gen, v. Bulpit, 9 Price, 4. But
that rule does not obtain in the other courts, and it is for the
judge at the trial to say, whether under all the circumstances
of the case, he will relax the order which has been given.
Parker v. M' William, 6 Bingh. 683, R. v. Cdley, MOO.&; Malk.
329. This is said to have been so ruled by Bayley J. in a
criminal case, on the Northern circuit, after consulting with
Holroyd J. Moo. $ M. 329.
Where all the witnesses had been ordered out of court, but
one of them came into court and heard the evidence of another
witness, Taunton J. allowed him to be examined as to such
facts, as were not spoken to by the other witness. Iieitin>in v.
Ellice, 4 C. fy P. 585. But in a very late case, it was said by
Park J., that in a criminal case, he would always reject a wit-
ness remaining in court, after all the witnesses on both sides
had been ordered to leave it. Wytd's case, 6 C. Sf P. 380.
At what time the objection to the competency of a witness must
be taken.] It was formerly considered necessary to take the ob-
jection to the competency of a witness, on the virire dire, and if
once examined in chief, he could not afterwards be objected to
on the ground of interest ; Lord Lovnt's case, 9 St. TV. 639. 646,
704, 1 Phill. Ev. 254 ; but in modern practice the rule has
been much relaxed. The examination of a witness, to discover
whether he be interested or not, is frequently to the same effect
as his examination in chief, so that it saves time, and is more
convenient to let him be sworn in the first instance in chief ;
and in case it should turn out that he is interested, it is then
time enough to take the objection. Per Buller J., Twnerr.
Pearte, 1 T. R. 719. Pengal v. Nicholson, Wightu: 64. So in
Stone v. Blackburne, \ Esp. 37, it was said by Lord Kenyon,
that objections to the competency of witnesses never come too
late, but may be made in any stage of the cause. It should be
observed, however, that where the objection is taken upon the
examination in chief, or cross-examination, the privilege of ex-
amining the party to the contents of a written instrument not
produced, is not allowed, as upon an examination on the voire
dire. Howel v. Lock, 2 Campb. 14.
Although in general the competency of a witness may be ob-
jected to at any stage of a case, yet an objection to the admissi-
bility of a witness in high treason, on the ground that ho is not
properly described in the list of witnesses furnished to the pri-
soner, in pursuance of the statute 7 Ann. c. 21. 14., must he
taken in the first instance, otherwise the party might take the
chance of getting evidence, which he liked, and if he disliked
it, might afterwards get rid of it on the ground of misdescrip-
tion. Watson's case, 2 Stark. 158. Upon this principle an emi-
Witnesses. 125
r,ent writer founds an opinion, that a party who is Cognizant of
the interest of a witness, at the time he is called, is bound to
make his objection in the first instance. Stark. Ev.part. IV. p.
757. After a witness has been examined, and cross-examined,
and has left the box and is recalled, for the purpose of having
a question put to him, it is too late to object to his competency.
Eeeching v. Gower, Holt, X. P. C. 314.
Taiie dire."] The party against whom a witness is called,
may examine him respecting his interest on the voire dire, er
may call other witnesses, or adduce other evidence in support
of the objection ; the modern rule being, thflt if the fact of in-
terest be satisfactorily proved, the witness will be incompetent,
though he may have ventured to deny it on the wire dire.
If the opposite party raise the objection of interest by inde-
pendent evidence, and without putting a question to the wit-
ness, then the party who has called him cannot be allowed to
put a question to him, in order to repel the objection. 1 Phill.
Ei. 123. A person may be examined on the voire dire, as to
the contents of a written instrument without its being produced,
but if he produces the instrument, it must be read. Baiter r.
Carver, 2 Stark. 434.
When the objection to the admissibility of a person tendered
as a witness arises solely on his own examination on the voire
dire, the objection may be removed in the same manner as it
was raised, namely, by the statement of the party himself,
without calling for the instrument by which, in fact, his com-
petency was restored. Thus, where a witness was objected to
as next of kin in an action by an administrator, but on re-exa-
mination stated that he had released all his interest, the objec-
tion wife held by Lord Ellenborough to be removed. Ingram v.
Dade, 1817, 1 PMtl. Ev. 124. But where the objection is at-
tempted to be removed, not by the statement of the party
called, but by other testimony, the case is governed by the usual
rules of evidence. Thus, if another witness is called to prove
that the party supposed to be interested, has in fact been re-
leased, such release must be produced. Corking v. Jarrard,
1 Campii. 37. So where it appears by any other evidence than
that of the party called himself, that he is incompetent, though
the objection is taken at the time of the voire diie, it cannot be
ar.swered by the statement of the witness alone, but the facts in
answer must be proved according to the usual course of evidence.
See Eotltam v. Stringier, 1 Esp. X. P. C. 164. Thus, where in
an action by the assignees of a bankrupt, the bankrupt was
himself called and objected to, but stated that he had obtained
his certificate, which he did not produce, Best, C. J. ruled, that
both his release and certificate must be produced ; that it was
not like the case of an objection raised by secondary evidence
on the voire dire, which might be removed by the same descrip-
126 Witnesses.
lion of evidence. Goodhay v. Hendry, M. fy M. 319. In a si- 1
milar case, Tindal C. J. said, the difficulty is, that the objection
does not arise upon the voire dire, it appearing from the opening
of the case for the plaintiffs, and from the pleadings themselves,
that the witness is a bankrupt, and not merely from questions
put to him when he comes into the box. Anon. M. <Sf M. 321.(i.)
In one case, however, the point was otherwise decided by Mr.
Justice Park, who permitted the bankrupt to give parol evidence
of his certificate and release, without producing them. Carlisle
v. Eady, 1 C. % P. 234.
Examination in chief.'] When a witness has been sworn, he
is examined in chief by the party calling him. Being supposed
to be in the interest of that party, it is a rule, that upon such
examination, leading questions shall not be put to him. Ques-
tions to which the answer, Yes, or No, would not be conclusive
upon the matter in issue, are not in general objectionable. It
is necessary to a certain extent, to lead the mind of the witness
to the subject of the inquiry. Per Ld. Ellenborough, Kicholtl
v. Dowding, 1 Stark. 81. Thus, where the question is whether
A. & B. were partners, a witness may be asked whether A. has
interfered in the business of B. Id. So where a witness being
called to prove a partnership, could not recollect the names of
the component members of the firm, so as to repeat them with-
out suggestion, Lord Ellenborough, alluding to a case tried
before Lord Mansfield, in which the witness had been allowed
to read a written list of names, ruled, that there was no objec-
tion to asking the witness, whether certain specified persons
were members of the firm. Acerro v. Petroni, 1 Stark. 100.
So for the purpose of identification, a particular prisoner may
be pointed out to the witness, who may be asked whether he is
the man. De Benger's case, 1 Stark. Ev. 125. 1st ed. 2 Stark.
N. P. C. 129. (n.) And in Watson's case, 2 Stark. N. P. C. 128,
the court held that the counsel for the prosecution might ask in
the most direct terms, whether any of the prisoners was the
person meant and described by the witness. So where a
question arose as to the contents of a written instrument which
had been lost, and in order to contradict a witness who had been
examined as to the contents, another witness was called, Lord
Ellenborough ruled, that after exhausting the witness's me-
mory as to the contents of the letter, he might be asked if it con-
tained a particular passage recited to him, which had been
sworn to on the other side, otherwise it would be impossible
ever to come to a direct contradiction. Courteen v. Touse,
1 Campb. 43.
Upon the same principle, viz. the difficulty or impossibility
of attaining the object for which the witness is called, unless
leading questions are permitted to be put to him, they have
been allowed where they are necessary, in order to establish a
Witnesses. 127
^contradiction. Thus where counsel, on cross-examination,
asked a witness as to some expressions he had used, for the
purpose of laying a foundation for contradicting -him, and
the witness denying having used them, the counset called a
person to prove that he had, and read to him the particular
words from his brief, Abbott, C. J. held that he was en-
titled to do so. Edmonds v. Walter, 3 Stark. N. P. C. 8.
The propriety of admitting leading questions to this extent,
has been questioned by Mr. Phillipps. " Upon the whole,"
he observes, " the most unexceptionable and proper course
appears to be, to ask the witness who is called to prove a
contradictory statement, made by another witness, what that
other witness said relative to the transaction in question, or
what account he gave ; and not in the first instance to ask in
the leading form, whether he said so and so, or used such
and such expressions." 1 Philt. Ev. 257.
Where a witness, examined in chief, by his conduct in tire
box shows himself decidedly adverse to the party calling him, it
is in the discretion of the judge to allow him to be examined,
as if he were on cross-examination. Bastin v. Carew, R\j. $
Moo. N. P. C. 127. Clarke v. Sa/ery, Id. 126. But if he
stands in a situation which, of necessity, makes him adverse to
the party calling him, it was held by Best, C. J. that the coun-
sel rnay, as a matter of right, cross-examine him. Clarke c.
Saft'ery, Ry. &; Moo. N. P. C. 126. Somewhat similar to this,
is the question whether, where a witness, called for one party, is
afterwards called by the other, the latter party may give his ex-
amination the form of a cross-examination ; and it has been
held that he may ; for, having been originally examined as the
witness of one party, the privilege of the other to cross-examine
remains through every stage of the case. Dickenson v. Shee,
4 Esp. 67. 1 Stark. Ev. 162. 2d edit.
Cross-examination.] The form of a cross-examination de-
pends, in a great degree, like that of an examination in chief, upon
the bias and disposition evinced by the witness under interro-
gation. If fie should display a zeal against the party cross-ex-
amining him, great latitude with regard to leading questions
may with propriety be admitted. Seel Phill. Ev. 261. But
if, on the other hand, he betrays a desire to serve the party who
cross-examines him, although the court will not in general in-
terfere to prevent the counsel from putting leading questions,
yet it has been rightly observed, that evidence obtained in this
manner, is very unsatisfactory and open to much remark. See
1 Stark. Ev. 162. Id edit. The rule with regard to putting
leading questions on cross-examination, was thus laid down by
Mr. Justice Buller. " You may lead a witness upon cross-
examination, to bring him directly to the point, as to the an-
swer ; but you cannot go the length of putting into the wit-.
128 Witnesses.
ness's mouth the very words he is to echo back again." Hardy's
case, 24 How. St. Tr. 755.
Irrelevant questions will not be allowed to be put to a wit-
ness on cross-examination, although they relate to facts opened
by the counsel on the other side, but not proved in evidence.
Lucas v. Novosilie&ki, 1 Esp. 297. Nor will such questions be
allowed to be put for the purpose of discrediting the witness, by
calling other testimony to contradict him. Vide post, p. 139.
Thus on a trial for usury, the defendant's counsel proposed to
cross-examine one of the plaintiff's witnesses, to certain trans-
actions which he had had with third persons, but Lord Ellen-
borough refused to ptrmit the question to be put, and the court
held that he was right, observing, that it had been decided over
and over again, that on cross-examination to try the credit of a
witness, only general questions could be put, and that he could
not be asked as to any collateral and independent fact, merely
with a view to contradict him afterwards by calling another wit-
ness. Spenceley v. Willott, 7 East, 108.
Counsel cdnnot assume that a witness has made a statement
on his examination in chief, which he has not made ; //;'// v.
Coomhe, MS. Mann. Dig. N. P. 337 ; or put a question which
assumes a fact not in proof. Doe v. Wood, Id.
Where a witness is called merely to produce a document,
which can be proved by another, and he is not sworn, he is not
subject to cross-examination. Simpson v. Smith, 1822, cor.
HalroydJ. 1 Phill. Ev. 160. and per Bayley J. 1824. 1 Stark.
Ev. 179. 2d ed. Davis v. Dale, Moo. #" Malk. 514. Thus
where, on an indictment for perjury, a sheriff's officer had been
subpoenaed to produce a warrant of the sheriff, after argument
he was ordered to do so, without having been sworn. Murlis's
case, Moo. <f Malk. 515. And where a person, called to pro-
duce a document, was sworn by mistake, and asked a question
which he did not answer, it was held that the opposite party
was not entitled to cross-examine him. Rush v. Smith, 1 Crom.
M. Sf R. 94.
Re-examination.^ A re-examination, which is allowed only for
the purpose of explaining any facts which may come out on cross-
examination, must of course be confined to the subject matter of
the cross-examination. 1 Stark. Ev. 179. Id edit. The rule with
regard to re-examinations is thus laid down by Abbott C. J. in
the Queen's case, 2 Br. Sf Bingh. 297. " I think the counsel has
a right, on re-examination, to ask all questions which may be
proper to draw out an explanation of the sense and meaning of
the expressions used by the witness on cross-examination, if
they be in themselves doubtful; and also of the motive by which
the witness was induced to use those expressions ; but he has
no right to go further, and introduce matter new in itself, and
not suited to the purpose of explaining either the expressions.
Witnesses. 129
6r the motives of the witness." " I distinguish between a conver-
sation which a witness may have had with a party to a suit,
whether criminal or civil, and a conversation with a third per-
son. The conversations of a party to the suit relative to the
subject matter of the suit, are in themselves evidence against
him, in the suit ; and if a counsel chooses to ask a witness as to
any thing which may have been said by an adverse party, the
counsel for that party has a right to lay before the court all that
was said by his client in the same conversation ; not only so
much as may explain or qualify the matter introduced by the
previous examination, but even matter not properly connected
with the part introduced upon the previous examination, pro-
vided only that it relate to the subject matter of the suit ; be-
cause it would not be just to take part of a conversation as
evidence against the party, without giving the party at the same
time the benefit of the entire residue of what he said on the
same occasion."
Questions subjecting witness to a civil suit.] Whether a wit-
ness was bound to answer questions which might subject him
to a civil action, or charge him with a debt, was formerly much
doubted ; but by statute 46 Geo. 3. c. 37, it is declared and
enacted, that a witness cannot by law refuse to answer any
question relevant to the matter in issue, the answering of which
has no tendency to expose him to a penalty or forfeiture of any
nature whatsoever, by reason only or on the sole ground that
the answering such question may establish or tend to establish
that he owes a tlebt, or is otherwise subject to a civil suit,
either at the instance of His Majesty or any other person. The
statute does not extend to compel parties, who stand in the si-
tuation of parties to the suit (as a rated inhabitant, in case of
an appeal,) to give evidence. R. v. Inhabitants of Woburn,
10 East, 395. (decided before the passing of the 5th Geo. 3.
c. 170.
Questions subjecting witness to a forfeiture,'] A witness is
privileged from answering any question, the answer to which
might subject him to a forfeiture of his estate. The declaratory
statute (46 Geo. 3. c. 37. supra.) implies that a witness may
legally refuse to answer any question which has a tendency
to a forfeiture of any nature whatsoever. 1 Phill. Er. 264. So
it is an established rule in courts of equity, that a party is not
bound to answer, so as to subject himself to any forfeiture of in-
terest. Id. Mitford on Eq. Pi. 157163.
Questions subjecting witness to penalties or punishment, fyc.~\
A witness cannot be compelled to answer any question, which
has a tendency to expose him to a penalty, or to any kind of
punishment, or to a criminal charge. 1 Phill. Ev. 262. Thus
o5
130 Witnesses.
in an action for a libel, in the shape of an extra-judicial affi-
davit sworn before a magistrate, the clerk to the magistrate was
not compelled to answer the question, whether he had written
the affidavit at the desire of the defendant, on the ground that it
tended to criminate himself. Maloney v. Hartley, 3 Campb. 210.
bo on an appeal against an order of bastardy, a person cannot
be compelled to confess himself the father of a bastard child.
R. v. St. Mary, Nutthigham, 13 .East, 58. (w.) Nor can the
prosecutrix, on an indictment for rape, be compelled to answer a
question, whether she has had criminal intercourse with a par-
ticular individual. Hodgson's case, Russ. fy Ry. C. C. 211.
Upon the same principle, an accomplice who is admitted to
give evidence against his associates in guilt, though bound
to make a full and fair confession of the whole truth, respect-
ing the subject matter of the prosecution, is not bound to
answer with respect to his share in other offences, in which he
was not connected with the prisoner, for he is not protected
from a prosecution for such offences. West's case, 0. B. 1821.
1 Phitl. ED. 37. (n.) 263. So a witness cannot be called
upon to answer a question which subjects him to the penalties
of usury. Gates v. Hardacre, 3 Taunt. 424. See Jackson v.
Benson, 1 Y.fyJ. 32.
It is not necessary, in order to render the question objection-
able, that it should directly criminate the witness ; it is sufficient
if it has a tendency to do so. Thus where there was a question
whether there had been usuiy in a bill of exchange, a witness
being asked whether the bill had ever been in his possession
before, objected to the question, and Mansfield, C. J. refused
to compel him to answer the question, observing that it went to
connect the witness with the bill, and might be a link in a
chain. Gates v. Hardacre, 3 Taunt. 424. Lord Eldon also, in
Pacton v. Douglas, 19 Ves. 227. expressed an opinion that a
party should be protected from questions, not only that have
a direct tendency to criminate him, but that form one step to-
wards it. See also Claridge v. Hoare, 14 Ves. 59, Swift r.
Swift, 4 Hogg. Eccl. R. 154.
Questions subjecting a witness to penalties or punishment, <5fc.
whether they may be put.] Whether questions, the answers
to which would expose the witness to punishment, ought not to
be allowed to be put, or whether the witness ought merely to
be protected from answering such questions, does not appear to
be settled. In Reading's case, 7 How. St. Tr. 226. it was de-
cided that a question tending to charge a witness with a cri-
minal offence ought not to be put, although he had been
pardoned. Lord Chief Justice North said, '' If he hath not
his pardon, his life is in danger ; if he hath, neither his life
nor name must suffer, and therefore such questions must not
be asked him." Although this decision has been remarked
Witnesses. 131
upon, and it has been said that it ought not to be considered
binding, from the nature of the trial and the period at which it
took place, (see Moo. % Malk. A r . P. C. 493, n.) yet that
observation must, it seems, be confined to the rejection of the
question after the witness had been pardoned. In Cundell v.
Pratt, Moo. &; M. 108, where the witness was asked whether
she had been guilty of incest with a particular individual,
Best, C. J. prohibited the question. So where on a trial for
high treason, one of the witnesses was asked a question tending
to show that he had been guilty of bigamy, in order to discredit
him, Lord Ellenborough observed, " You may ask the witness
whether he has been guilty of such a crime, this indeed would
be improperly asked, because he is not bound to criminate him-
self; but if he does answer promptly, you must be bound by the
answer which he gives." Watson's case, 2 Stark. N. P. C. 151.
ied vide post.
On the other hand, there are not wanting authorities to show
that even where the question goes to criminate the witness, it
may yet be put, although he cannot be compelled to answer it.
This appears to have been the opinion of Bayley, J. in Wat-
son's case, 2 Stark. N. P. C. 153. And the same learned judge
is said to have ruled that a witness may be asked a question
the answer to which may subject him to punishment, but that
he is not compellable to answer it ; and that all other questions
for the purpose of impeaching a witness's character, may not
only be put, but must be answered. Holding's case, 0. B. 1821,
Archb. C. L. 102. 2d edit. It may, however, be doubted, how
far this decision is correctly reported, especially with regard to
the concluding position. In a text book of great value, it is
said that it seems such questions may be put. 2 Russ. 625, 6.
Id ed. In the same work it is added, that if the imputation
contained in the question be so connected with the inquiry and
the point in issue, that the fact may be proved by other evidence,
and the adverse party intends to call witnesses for that purpose,
the witness proposed to be discredited must be asked whether
he has been guilty of the offence imputed.
Upon principle it would seem that questions tending to ex-
pose the witness to punishment, may be put, as well as ques-
tions tending to degrade his character. The ground of ob-
jection in the first case is not that the question has a tendency
to degrade him, but that advantage may be taken of his answer
in some future proceeding against him, and the rule that no
person is bound to accuse himself is urged. This objection is
however completely removed by permitting the witness not to
answer the question, for his silence would not in any future
proceeding be any admission of guilt. The question may then
be regarded as one simply tending to degrade the witness, and
would come within the rule which appears to be now well
established, that it may be put, though the witness is not com-
132 Witnesses.
pellable to give an answer, or that if he does give an answer,
the party examining him must be satisfied with it.
This point appears to have been settled in the law of Scot-
land, by recent determinations ; and it is now held in that
country, that it is competent to ask a witness whether he has
been engaged in any specific crimes, although they have no
connexion with the crime under investigation ; but it is also
held to be the privilege of the witness to decline answering,
according to the rule Nemo tenetur jurare in suum turpitudinem.
In the case of the Cupar rioters, a witness was asked whether
he had ever been engaged in the lifting of dead bodies. Lind-
say's case, 1829, Alison's Pract. Cr. Law of Scotl. 527. And
in Burke' s case, Si/me, 365, 367, Alison, 527, the court al-
lowed Hare, the witness, to be asked whether he had ever been
engaged in any other murder, expressly warning him that he
was at liberty to decline answering, which he accordingly did.
Questions subjecting a witness to penalties, punishment, $c.
consequence f>f answering.] Answers given to questions to
which the witness might have demurred, may be given in evi-
dence against him. Smith v. Beadnell, 1 Campb. 30. If the
witness answers questions on the examination in chief, tending
to criminate himself, he is bound to answer on the cross-exami-
nation, though the answer may implicate him in a transaction
affecting his life. Per Dumpier J. Winchester Sum. Ass. 1816,
Mann. ~Dig. pi. 222, Witness, p. 336. Id ed. So, if the wit-
ness begins to answer, he must proceed. On a trial for libel,
a witness was asked whether he had not furnished the editor of
a newspaper with the report. He answered one or two ques-
tions on the subject, when, being further pressed, he appealed
to the court for protection, but Abbott, C. J. said, " You might
have refused to answer at all, but having partially answered,
you are now bound to give the whole truth." East v. Chap-
man, M. 5f M. 47, 2 C. $ P. 571. S. C. So Best, C. J. laid
it down, that if a witness, being cautioned that he is not com-
pellable to answer a question which may tend to criminate him,
chooses to answer it, he is bound to answer all questions rela-
tive to that transaction. Dixon v. Vale, 1 C. Sf P. 279. See also
Austin v. Poiner, 1 Simons, 348.
Questions subjecting a witness to penalties or punishme>tt,
fyc. consequence of not answering.] Where a witness is en-
titled to decline answering a question, and does decline, the rule
is said by Holroyd J. to be, that his not answering can have
no effect with the jury. Watson's case, 2 Stark. 157. So where
a witness demurred to answer a question, on the ground that
he had been threatened with a prosecution respecting the matter,
and the counsel in his address to the jury remarked upon the
refusal, Abbott C. J. interposed and said, that no inference
Witnesses. 133
was to be drawn from such refusal. Rose v. Blakemore, Ry. fy
Moo. N. P. C. 384. A similar opinion was expressed by Lord
EUon. Lloiid v. Passiiigham, 16 I'es. 64. See the note Ry. Sf
Moo. N. P.O. 385. However, it is said by Bayley J. in Wat-
ton's case, 2 Stark. 153, " If the witness refuse to answer, it is
not without its effect with the jury. If you ask a witness, whe-
ther he has committed a particufar crime, it would perhaps be
going too far to say, that you may discredit him if he refuse to
answer ; it is for the jury to draw what inferences they may."
Questions subjecting witness to penalties or punishment, <3fc.
objection must be taken by the witness himself.'] The privilege
of objecting to a question, tending to subject the witness to pe-
nalties or punishment, belongs to the witness only, and ought
not to be taken by counsel, who will not be allowed to argue
it. Thomas v. Newton, M. $ M. 43.
Whether a witness is bound to answer questions tending to de-
grade /urn.] The point has frequently been raised and argued,
whether a witness, whose credit is sought to be impeached on
cross-examination, is bound to give an answer to the questions
put to him with that view. The doubt only exists where the
questions put are not relevant to the matter in issue, but are
merely propounded for the purpose of throwing light on the
witness's character ; for if the transactions to which the witness
is interrogated form any part of the issue, he will be obliged to
give evidence, however strongly it may reflect upon his cha-
racter. 1 PhiU. Ev. 265.
The first point to be considered on this subject is, whether
questions not relevant to the matter in issue, and tending to de-
grade the character of the witness, are allowed to be put. There
does not appear to be any authority in the earliest cases for the
position, that the questions themselves are inadmissible upon
cross-examination. In Cook's case, 13 How. St. Tr. 334,
Treby C. J. appears to admit the legality of the practice, add-
ing, that the witnesses have not been obliged to answer. In Sir
John Friejid's case, 11 IJoir. St. Tr. 1331, the court held that
a witness could not be asked whether he was a Roman Ca-
tholic, because he might by his answer subject himself to severe
penalties. In Layer's case, 16 How. St. Tr. 121, a question
tending to degrade the witness was proposed to be asked on the
voire dire, and Pratt C. J. said, " It is an objection to his
credit, and if it goes to his credit, must he not be sworn, and his
credit go to the jury ?" These therefore are only authorities,
to show that a witness will not be compelled to answer such
questions. Many later decisions show that such questions are
admissible, though the witness cannot be called upon to answer
them. Thus, on an application to bail a prisoner, the court
allowed the counsel for the prosecution to ask one of the bail,
154 Witnesses.
whether he had not stood in the pillory for perjury. The Couit
said there was no objection to the question, as the answer could
not subject the bail to any punishment. Edwards' case, 4 T. R.
440. On Watson's case for high treason, such questions were
frequently asked, " and it may be inferred," says Mr. Phillipps,
" from the opinion of the judges on an argument in that case,
that such questions are regular." Gurney's report of Watson's
trial, 288291. 1 Phill. Ev. 269. (n.) See also Lord Coch-
rane's trial, 419, by Giirney. Hardy's case, 24 How. St. Tr.
726. 11 East, 311. So it 'is stated by Mr. Phillipps, that
Lord Ellenborough continually permitted such questions to be
asked without the slightest disapprobation. In the following
case, Best C. J. laid down the same rule in these words : " The
rule I shall always act upon is, to protect witnesses from ques-
tions, the answers to which would expose them to punishment ;
if they are protected beyond this, from questions which tend to
degrade them, many an innocent man may suffer." Cundell v.
Pratt, M. <8f M. 108.
There are, however, one or two decisions, countenancing the
opinion that questions tending to degrade the character of a
witness, shall not be allowed to be put. Upon an indictment
for an assault, a common informer and man of suspicious cha-
racter having been called, was asked on cross-examination,
whether he had not been in the house of correction. Upon
this Lord Ellenborough interposed, and said that the question
should not be asked. That it had been formerly settled by the
judges, among whom were chief Justice Treby and Mr. Justice
Powell, both very great lawyers, that a witness was not bound
to answer any question, the object of which was to degrade, or
render him infamous. He added, that he thought the rule
ought to be adhered to, as it would be an injury to the adminis-
tration of justice, if persons who came to do their duty to the
public might be subjected to improper investigation. Lewis's
case, 4 Esp. 225. Upon this case it may be observed, that the
authorities referred to by Lord Ellenborough do not go the
length of excluding the question, but merely decide that the
witness is not bound to answer. As already stated also, Lord
Ellenborough was in the frequent habit of allowing such ques-
tions to be put, supra, and on these grounds Mr. Phillipps
is disposed to think that the question had already been put
and answered, and being repeated, his lordship thought it ne-
cessary to interpose for the protection of the witness. 1 Phill.
Ev. 269 (.) In another case, where a witness was asked on
cross-examination, whether she lived in a state of concubinage
with the plaintiff, Lord Alvanley interposed, and gave the fol-
lowing opinion on the subject of such questions : " He thought
questions as to general conduct might be asked, but not such
as went immediately to degrade the witness; he would there-
fore allow it to be asked, whether she was married, as she
Witnesses. 135
might be married to the plaintiff. But having said she was not,
he would not allow it to be asked, had she slept with him V
He added, " I do not go so far as others may. i do not say that
a witness may not be asked to what may tend to disparage him,
that would prevent an investigation into the character of the
witness, which may often be of importance to ascertain. 1
think those questions only should not be put which have a di-
rect or immediate effect to disgrace or disparage the witness."
Mucbride v. Macbride, 4 Esp. 242. Upon an indictment for a
rape, the prosecutrix on cross-examination was asked, " Whe-
ther she had not before had connexion with other persons, and
whether not with a particular person (named)." This ques-
tion was objected to, and the point was reserved for the opinion
of the judges, who held the objection good. Hodgson's case,
Russ. fy Ry. C. C. 211. It does not appear in the latter case,
whether the question itself was objected to, or only that the
witness was not bound to answer it, but both in this and the
preceding case of Macbride v. Macbride, it seems that the ques-
tions were improper to be put, as they imputed to the witness
an offence punishable by the ecclesiastical law. Upon the
same ground, Best C. J. interposed to prevent a witness being
asked whether she lived in a state of incestuous concubinage
with a particular person. Cundell v. Pratt, M. fy M. 108.
Where, in an action for seduction, the party seduced was asked
whether she had not been criminal with other men, Lord Ellen -
borough said, this was a question she ought not to answer, and
that the same point having been referred to the judges, they
were all of the same opinion. Dodd v. Norris, 3 Campb. 519.
With regard to compelling a witness to answer questions
tending to degrade him, (such questions not being relevant to
the matter in issue, ) there appear to be only two authorities
that a witness is so bound. In Holdi?ig's case, 0. B. 1821,
Arch. Cr. PI. 102. 2d ed., Bayley J. is reported to have ruled,
that though a witness may refuse to answer a question exposing
him to punishment, yet all other questions, for the purpose of
impeaching his character, may not only be put, but must be an-
swered. So where in a civil cause, a witness being asked on
cross-examination, whether he had not been tried for theft, re-
fusing to answer, and appealing to Lord Ellenborough, whether
he was bound to answer, his lordship said ; " If you do not an-
swer the question I will commit you," adding, "you shall not
be compelled to say whether you were guilty or not." Frost v.
Holloway, 1818, 1 Phill. Ev. 269 (n.)
Evidence of general character.'] Where a witness is called to
impeach the general character for veracity of another witness,
he cannot be examined as to particular facts. The proper
question is, " From your knowledge of his general character,
would you believe him on his oath V If the witness state that
136 Witnesses.
he has seen him before a magistrate, and from what passed
there he would not believe him on his oath, it is not evidence.
Mawson v. Hart sink, 4 Esp. 102. " The rule is," says Mr.
Justice Bayley, " that a party against whom a witness is called,
may examine witnesses as to his general character, but he is not
allowed to prove particular facts in order to discredit him."
Watson's case, 2 Stark. N. P. C. 152. "The reason," says
Pratt C. J., " why particular facts are not to be given in evi-
dence, to impeach the character of a witness is, that if it were
permitted, it would be impossible for a witness having no no-
tice of what will be sworn against him, to come prepared to
give an answer to it ; and thus the character of witnesses might
be vilified, without their having any opportunity of being vindi-
cated." Layer's case, 14 How. St. TV. 285. But no such in-
justice attends an inquiry into the general character of a wit-
ness. " General character," says Chief Justice Gibbs, " is the
result of general conduct, and every witness who presents him-
self in a court of justice undertakes for that." Sharp v. Scoring,
Holt's N. P. C. 541. In answer to general evidence of bad
character for veracity, the witnesses called to prove it may be
examined as to their means of knowledge. Mawson v. Hart sink,
4 Esp. 103.
ll'hen a party may contradict his own witness.] Where a wit-
ness is called, and makes statements contrary to those which
are expected from him, the party calling him may prove the
facts in question by other witnesses. Alexander v. Gibson,
2 Campb. 555. Lowe v. Joliffe, 1 W. El. 365. Ewer v. Am-
brose, 3 B. Sf C. 748. And where a witness is contradicted by
the party calling him, as to certain facts, it is not necessary that
the remainder of his evidence should be repudiated. Eradley v.
Ricardo, 8 Bingh. 57. It is clear that the party calling a wit-
ness, will not be allowed to give general evidence that he is not
to be believed on his oath. Ewer v. Ambrose, 3 B. &; C. 748.
Bull. N. P. 297.
Whether the party calling a witness, who gives evidence
contrary to what is expected from him, may prove contradictory
statements previously made by the witness, does not appear to
be well settled. Where a witness made such a statement, and
the party calling him proved a contradictory statement made
by the witness in an answer to a bill in chancery, the Court of
King's Bench held, that the judge had improperly left it to the
jury to say whether they believed the witness's statement at the
trial, or that in his answer ; the latter, at all events, not being
evidence of the facts stated in it. Eicer v. Ambrose, 3 B. fy C'.
746. In this case Holroyd J. observed, " The answer might,
perhaps, be admissible, if the effect of it only were to show that
as to the particular fact sworn to at the trial, the witness was
mistaken. But if its effect were to show that the witness was
Witnesses. 1ST
not worthy of credit, then it *vas not admissible." Id. 750.
\\ here the prisoner's mother, whose name was on the back ot
the indictment, was, by the direction of the judge, called as a
witness for the prosecution, and her evidence was in favour of
' the prisoner, and materially differing from her deposition be-
fore the coroner, the judge thought it proper to have that depo-
sition read, and stated to the jury that her testimony was not to
be relied upon. The point being reserved for the opinion of
the judges, they were all of opinion, that under the circum-
stances of the case, it was competent to the judge to order the
depositions to be read, to impeach the credit of the witness.
Lord Ellenborough and Lord Chief Justice Mansfield thought
that the prosecutor had the same right. Oldroyd's case, Rtiss. fy
Rii. C. C. 88. And in a late case, where, in an action of tres-
pass, one of the witnesses for the plaintiff swore contrary to the
statement which he had made before the trial to the plaintiff's
attorney, Denman, C. J. permitted the latter to prove the con-
tradictory statement. W right v. , Lane. Stt-ni. Ass. 1833.
An opinion, adverse to the right of a party calling a witness
to contradict him, by his own previous statement, is expressed by
a writer of great authority. 1 Phiil. Ev. 294. And this opinion
appears to have been followed by other text writers. 2 Russ.
636.
Eiaminatian as to opinion.] Although, in general, a witness
cannot be asked what his opinion upon a particular question is,
since he is called for the purpose of speaking as to fads only,
yet where matter of skill and judgment is involved, a person
competent to give an opinion may be asked what that opinion
is. Thus, an engineer may be called to say what, in his
opinion, was the cause of an harbour being blocked up. Folkes
i. Chad, 3 Dougl. 157, 1 Phill. Ei. 276, 4 T. R. 498, S. C.
i-iffrf. In a variety of other cases also, such evidence has
been admitted. " Many nice questions," observes Lord Mans-
field, " may arise as to forgery, and as to the impression of
seals, whether the impression was made from the seal itself, or
from an impression in wax. In such cases I cannot say that
the opinion of seal-makers is not to be taken." Foulkes r. Chad,
3 Dougl. 159. So the opinion of a ship-builder, on a question
of sea-worthiness. Thornton r. Roy. Exch. Ass. Co. Peake,
N. P. C. 25. Chapman v. Walton, 10 Bingh. 57.
It is the constant practice to examine medical men as to their
judgment with regard to the cause of a person's death, who has
suffered violence ; and where, on a trial for murder, the defence
was insanity, the judges to whom the point was referred, were
all of opinion that in such a case a witness of medical skill
might be asked whether, in his judgment, such and such ap-
pearances were symptoms of insanity, and whether a long fast,
followed by a draught of strong liquor, was likely to produce a
138 Witnesses.
paroxysm of that disorder in a person subject to it ? Several
of the judges doubted whether the witness could be asked his
opinion on the very point which the jury were to decide, viz.
whether from the other testimony given in the case, the act
with which the prisoner was charged was, in his opinion, an
act of insanity. Wright's case, Russ. fy Ry. 456.
A question may arise in these cases, whether, where a wit-
ness, a medical man, called to give his opinion as matter of
skill, has made a report of the appearances or state of facts at
the time, he may be allowed to read it as part of his evidence.
The practice in Scotland on this point is as follows. The sci-
entific witness is always directed to read his report, as afford-
ing the best evidence of the appearances he was called on to
examine, yet he may be, and generally is, subjected to a fur-
ther examination by the prosecutor, or to a cross-examination on
the prisoner's part ; and if he is called on to state any facts in
the case, unconnected with his scientific report, as conversa-
tions with the deceased, confessions made to him by the
prisoner, or the like, utitur jure communi, he stands in the
situation of an ordinary witness, and can only refer to the
memoranda to refresh his memory. Alison, Prac. Cr. Law of
Scotland, 541.
In proving the laws of foreign countries also, the opinions
of competent witnesses are admissible. The unwritten law of
a foreign state may be proved by the parol evidence of wit-
nesses possessing professional skill ; but where the laws are
in writing, a copy, properly authenticated, must be produced.
Per Gibbs, C. J., Millar v. Kendrick, 4 Camp. 155. But see
Boehtlinck v. Schneider, 3 Esp. 58. Thus on the trial of the
Wakefields, for abduction, a gentleman of the Scotch bar was
examined, as to whether the marriage, as proved by the wit-
nesses, would be a valid marriage according to the law of
Scotland. Wakejield's case, Murray's ed. p. 238. So it is laid
down by a foreign writer of eminence, that foreign unwritten
laws, customs, and usages, may be proved, and, indeed, must
ordinarily be proved by parol evidence. The usual course is to
make such proof by the testimony of competent witnesses, in-
structed in the law, under oath. Story's Com. on the Conflict
of Laws, 530.
Witnesses. 139
CREDIT OF WITNESSES HOW IMPEACHED AND
SUPPORTED.
General rules, fyc. .... 139
Credit impeached by irrelevant questions on cross-exami-
nation .... 139
by relevant questions, contradiction by other wit-
nesses . . .140
Proof of former declarations in support of credit of wit-
ness . 142
Credit of witnesses, how impeached General rules.] The
credit of a witness may be impeached, either simply by questions
put to him on cross-examination, or by calling other witnesses
to impeach his credit.
Questions with regard to particular facts tending to degrade
the witness, and affect his character and credit, may be put
to him on cross-examination, even though irrelevant to the
matter in issue ; but the party putting them must be satisfied
with the answers given by the witness, and cannot call wit-
nesses to prove those answers false.
Questions with regard to such particular facts may be put to
a witness on cross-examination, and if relevant to the matter in
issue, and denied by the witness, other witnesses may be called
by the cross-examining party to contradict him.
Where the witness himself is not cross-examined to impeach
his credit, but other witnesses are called for that purpose, they
cannot be examined as to particular facts, but only as to the
witness's general character for veracity.
The party calling a witness will not, on his giving evidence
against him, be allowed to call witnesses to impeach his credit.
The cases decided upon these general rules will now be
stated.
Credit impeached by irrelevant questions on cross-eiamina-
tion.] Although it is not allowable on cross-examination
to put questions to a witness, not relating to the matter
in issue, for the purpose, if he answers them against the
cross-examining party, of contradicting him by other wit-
nesses, yet it is a well established rule, that questions not rele-
vant may be put to a witness for the purpose of trying his cre-
dibility ; but in such case the party ooss-examining must be
satisfied with his answer. Thus, where on a trial for sheep-
140 Witnesses.
stealing, the principal witness being the prisoner's apprentice,
Lawrence J. permitted him on cross-examination to be asked,
whether he had not been charged with robbing Ms master, arid
whether he had not said he would be revenged of him, and
would soon fix him in gaol. The witness answering both ques-
tions in the negative, the prisoner's counsel then proposed to
prove, that he had been charged with robbing his master, and
had spoken the words imputed to him ; but La wrence J. said, that
his answer must be taken as to the former, but that as the words
were material to the guilt or innocence of the prisoner, evidence
might be adduced that they were spoken by the witness. Yewin's
ease, 2 Campb. 638. (n.) A witness was asked, whether he
had not attempted to persuade a person called by the other
side from attending to give his evidence, which he denied. It
was proposed to call a witness to contradict him, but Lawrence
J. said, " Had this been a matter in issue, I would have allowed
you to call witnesses to contradict, but it is entirely collateral,
and you must take his answer. I will permit questions to be
put to a witness, as to any improper conduct of which he may
nave been guilty, for the purpose of trying his credit ; but when
these questions are irrelevant to the issue on the record, you
cannot call witnesses to contradict the answers. No witness
can be prepared to support his character as to particular facts,
and such inquiries would lead to endless confusion." ILtn-is < .
Tippett, 2 Campb. 637.
Credit impeached by relevant questions mid contradiction by
other witnesses.] Where a question tending to impeach the
credit of the witness is not irrelevant to the issue, he may not
only be compelled to answer it, but the other side may call
witnesses for the express purpose of contradicting him, vide ante,
p. 133. So what has been said or written by a witness at a pre-
vious time, may be given in evidence to contradict what he
has said at the trial, if it relate to the matter in issue. De Sailty
v. Morgan, 2 Esp, 691. Thus, in a policy case, the captain's
protest has been admitted in evidence to contradict what he
has stated at the trial. Christian v. Cnombe, 2 Esp. 489.
But in order to let in this evidence in contradiction, a ground
must be laid for it, in the cross-examination of the witness who
is to be contradicted. When a witness has been examined as
to particular transactions, if the other side were permitted to
give in evidence declarations made by him respecting those
transactions at variance with his testimony, without first calling
the attention of the witness to those declarations, and refreshing
his memory with regard to them, it would, as it has been ob-
served, have an unfair effect upon his credit. Accordingly, it
is the practice of the courts to ask a witness, whether he has
held such a conversation, or made sucli a declaration, and such
Witnesses. 141
previous question is considered a necessary foundation for the
contradictory evidence of the declaration or conversation to be
adduced on the other side, and if the party has neglected to lay
this foundation, the court will in its discretion recall the witness
for that purpose. The Queen's case, 2 Br. 6; Bingk. 301.
The rule is thus laid down by Tindal C. J. "I understand
the rule to be, that before you can contradict a witness by show-
ing that he has, at some other time, said something inconsistent
with his present evidence, you must ask him as to the time,
place, and person involved in the supposed contradiction. It
is not enough to ask him the general question, whether he has
ever said so and so, because it may frequently happen, that
upon the general question he may not remember having so said,
whereas when his attention is challenged to particular circum-
stances and occasions, he may recollect and explain what he
has formerly said." Angus v. Smith. MM. & Mai. 474. Where
the witness merely says, that he does not recollect making the
statements, evidence to prove that lie did in fact make the state-
ments is inadmissible ; there must be an express denial. Paw
v. Beeston, 1 MHO. $ Rob. 20.
With regard to contradicting a witness by the production of
a letter or other document written by himself at a previous
lime, the rule is thus laid down in The Queen's case, 2 Br. &
Bingli. 287. Upon cross-examination, counsel cannot be al-
lowed to represent, in the statement of a question, the contents
of a letter, and to ask a witness whether he wrote a letter to
any person with such contents, or contents to the like effect,
unless the letter is first shown to the witness, and he is asked
whether he ever wrote such a letter, and he admits that he did
write it. But a witness may be asked on cross-examination,
upon showing him only a part, or one or more lines of such
a letter, whether he wrote such part, or such one or more
lines ; but if he should not admit that he wrote such part or
such lines he cannot be examined to the effect of the contents
of the letter, unless it be shown to him, and he admits the
contents. In the regular course of proceeding, the letter ought
to be read after the cross-examining counsel has opened his
case, but if it is stated to be necessary for the purpose of pro-
pounding further questions in the course of the cross-examina-
tion, the court will permit the letter to be read at once, subject
to all the consequences of having such letter considered as part
of his evidence. The Queen's case, 2 Br. & Singh. 290.
With regard to the examination of a witness, who, upon
cross-exaruination, has been examined touching declarations
formerly made by him, respecting the matters upon which he
has given evidence, it cannot be carried further than those
declarations so inquired into, and the whole of the conversation
which took place cannot be entered into. The rule is thus
laid down by Abbott, C. J. in The Queen's case, 2 Br. <Sf Bingh.
142 Witnesses.
298. " The conversation of a third person with the witness is
not in itself evidence in the suit against any party to the suit.
It becomes evidence only as it may affect the character and
credit of the witness, which may be affected by his antecedent
declarations, and by the motive under which he made them ;
but when once all that had constituted the motive and induce-
ment, and all that may show the meaning of the words and
declarations, has been laid before the court, the court becomes
possessed of all that can affect the character or credit of the
witness, and all beyond this is irrelevant and incompetent."
Proof of former declarations in support of credit of witness.]
Whether it is competent to the party whose witness has been
attached, on cross-examination, to give in evidence former de-
clarations of the witness, to the same effect as his testimony,
for the purpose of corroborating the latter, has been much
controverted. In several cases such evidence was admitted
upon the examination of the witness in chief. Lutterell v.
Reynell, 1 Mod. 282. Sir John Friend's case, 13 How. St. Tr.
32. See also Harrison's case, 12 How. St. Tr. 861. So it is
laid down by Gilbert, C.B. that though hearsay be not allowed
as direct evidence, yet it may be in corroboration of a witness's
testimony, to show that he affirmed the same thing on other
occasions, and that he is still consistent with himself; for such
evidence is only in support of the witness who gives in his
testimony upon oath. Gilb. Ev. 150. 4th ed. And Flawkins
states the rule to be, that what a witness has been heard to say
at another time, may be given in evidence in order either to
confirm or invalidate the testimony which he gives in court.
Hawk. P. C. b. 2. c. 46, s. 48. These writers were followed
by Mr. Justice Buller, in his treatise on the law of nisi prius,
citing the case of Lutterell v. Reynell, B. N. P. 294. ; but he
appears afterwatds to have changed his opinion.
The first case in which this evidence appears to have been
rejected is Parker's case, 3 Dougl. 242, which was a prosecu-
tion for perjury, tried before Eyre, B. For the prosecution, the
depositions of a deceased person were given in evidence, and
upon the cross-examination of one of the prosecutor's witnesses,
certain declarations of the deceased person, not on oath, were
proved for the purpose of corroborating some facts in the de-
position material to the prisoner ; Eyre, B. rejected the evidence
of those declarations, and the Court of King's Bench, on a
motion for a new trial, held the rejection proper. Buller, J.
said that the evidence was clearly inadmissible, not being upon
oath ; that it was now settled, that what a witness said, not
upon oath, could not be admitted to confirm, what he said
upon oath, and that the case of Lutterell v. Reynell, and the
passage cited from Hawkins were not now law. Parker's case,
Witnesses. 143
3 jDougJ.244. This case was referred to by Lord Redesdale
in the Berkeley Peerage case, where his lordship gave his
opinion in conformity with that decision. Lord Eldon also
expressed his decided opinion that this was the true rule to be
observed by the counsel in the cause, but thought that the
question might be asked by the house. 1 Phill. Ev. 292, (n.)
In conformity with these later decisions, the rule is laid down
by Mr. Phillipps with this exception, that where the counsel
on the other side impute a design to misrepresent from some
motive of interest or friendship, it may in order to repel such
an imputation, be proper to show that the witness made a
similar statement at a time when the supposed motive did not
exist, or when motives of interest would have prompted him to
make a different statement of the facts. 1 Phill. Ev. 293. So
it is said by Sir W. D. Evans, " If a witness speaks to facts
negativing the existence of a contract, and insinuations are
thrown out that he has a near connexion with the party, on
whose behalf he appears, that a change of market, or any other
alteration of circumstances has excited an inducement to recede
from a deliberate engagement, the proof by unsuspicious testi-
mony, that a similar account was given when the contract
alleged had every prospect of advantage, removes the imputa-
tion resulting from the opposite circumstance, and the testi-
mony is placed upon the same level which it would have had,
if the motives for receding from a previous intention never had
existed. Upon accusations for rape, where the forbearing to
mention the circumstance for a considerable time, is itself a
reason for imputing fabrication, unless repelled by other con-
siderations, the disclosure made of the fact upon the first
proper opportunity after its commission, and the apparent state
of mind of the party who has suffered the injury, are always
regarded as very material, and the evidence of them is con-
stantly admitted without objection." Notes to Pothier on Oblig.
vol. ii. p. 251.
144 Witnesses.
PRIVILEGED COMMUNICATIONS.
General rule
What persons are privileged
Form of Oath by Witnesses claiming tlte privilege
What matters are privileged - - .
Production of deeds
Disclosures by informers, $c. -
To whom -
Maiters of State
Matters before Grand Jury
Matters of' fact
Matters to which attorney is partu
Where party has taken uutli of office not to divulge
General rule.] Although a witness is sworn to speak the
truth, the whole truth, and nothing but the truth, yet there are
certain matters which he is not only not bound to disclose, but
which it is his duty, even under the obligation of an oath, not
to disclose. Where a communication takes place between a
counsel or an attorney, and his client, or between government
and some of its agents, such communication is privileged, on
the ground that should it be suffered to be disclosed the due
administration of justice and government could not proceed ;
such administration requiring the observance of inviolable se-
crecy. But the rule does not extend beyond the two classes of
persons above mentioned, whatever obligation of concealment
the party may have incurred.
What persons are privileged.] Except in the case of matters
of state, the privilege of not disclosing confidential communica-
tions is confined to counsel, solicitors, attornies, and their
agents and clerks. Wilson v. Rastall, 4 T. R. 758, 759.
Duchess of Kingston's case, 11 St. Tr. 243. fo. ed., 20 How.
St. Tr. 575. Other professional persons, whether physicians,
surgeons, or clergymen, have no such privilege. Ibid. Thus,
where the prisoner, being a Roman Catholic, made a confes-
sion, before a Protestant clergyman, of the crime for which he
was indicted, that confession was permitted to be given in evi-
dence at the trial, and he was convicted and executed. Sparkes's
case, cited Peake, N. P. C. 78. Upon this case being cited,
Lord Kenyon observed that he should have paused before he
admitted the evidence ; but there appears to be no ground for
Witnesses. 145
this doubt. In Gilham's case, Ry. % 31. C. C. R. 198., it was
admitted by the counsel for the prisoner that a clergyman is
bound to disclose what has been revealed to him as matter of
religious confession ; and the prisoner in that case was con-
victed and executed.
A person who acts as interpreter between a client and his
attorney will not be permitted to divulge what passed ; for what
passed through the medium of an interpreter is equally in con-
fidence as if said directly to the attorney ; but it is otherwise
with regard to conversations between the interpreter and the
client in the absence of the attorney. Du Barre v. Livette,
Peahe, A". P.C. 77, 4 T. R. 756. 20 How. St. Tr. 575 (n.),
So the agent of the attorney stands in the same situation as the
attorney himself. Parkins v. Hawkshaw, 2 Stark. N. P. C. 239.
So a clerk to the attorney. Taylor . Former, 2 C. # P. 195.
R. v. Inhabitants of Upper Boddington, 8 D. $ R. 732. So a
barrister's clerk. Foote v. Hayite, Ry. ty Moo. 165.
Where a person, not being an attorney, is consulted by
another, under a false impression that he is such, he will not be
privileged from disclosing what passes. Fountain v. Young, 6
Esp. 113.
The privilege is that of the client, and not of the attorney,
and the courts will prevent the latter, although willing, from
making the disclosure. Bull. N. P. 284. W ilson v. Rastall,
4 T. R. 759. See the arguments in Annesley's case, 17 How.
St. Tr. 1224, 1225. But if the attorney of one of the parties
is called by his client and examined as to a matter of confiden-
tial communication, he may be cross-examined as to that
matter, though not as to others. Vaillant v. Dodemead, 2
Aik. 524.
An attorney is not privileged from disclosing matters com-
municated to him before his retainer, or after it has ceased, for
then he stands clearly in the same situation as any other per-
son. Bull. .V. P. 284. Where an attorney was employed to
put in suit a note, and after the suit was settled the client told
him that he knew it was a lottery transaction, the attorney, in an
action to recover the money, was allowed to give evidence of
this conversation. The court said that the purpose in view (in
employing the attorney) had been already obtained, and what
was said by the client was in exultation to his attorney, on
having before deceived him, as well as his adversary. Cobden
v. Kevdrick, 4 T. R. 431. " This communication," observes
Lord Brougham, in commenting on the case, " was not made
professionally, but by way of idle and useless conversation ;
had the matter been confided with a view to some future pro-
ceedings, or, without any regard to a suit, had it been com-
municated for a purpose of business, it would certainly have
been protected." Greenough v. Gaskell, \ Mylne fy K. 109.
146 Witnesses.
Form of oath by witnesses claiming to be privileged.] In ge
neral a witness who is privileged from disclosing facts which
have come to him in his professional capacity, is sworn in the
usual manner, to speak the truth, the whole truth, and nothing
but the truth ; but where a person who had been counsel for
one of the parties, declined to take the usual oath, the court
permitted him to take an oath to declare such things as he knew
before he was counsel, or as had come to his knowledge since, by
any other person ; and the particulars to which he was to be
sworn were specially stated. Spark v. Sir H. Middleton, 1 Keb.
505 ; 12 Vin. Ab. 38. It has been observed that a precaution
like this seems to arise out of an excessive tenderness of con-
science ; for that the general obligation of an oath, to declare
the whole truth, must, with reference to the subject matter and
occasion of the oath, be necessarily understood to mean the
truth so far as it ought legally to be made known. 2 Stark.
Ev. 232, citing Paley's Moral Philosophy.
What matters are privileged.] Although some doubt has
been entertained, as to the extent to which matters communi-
cated to a barrister or an attorney in his professional character are
privileged, where they do not relate to a suit or controversy either
pending or contemplated, and although the rule was attempted
to be restricted by Lord Tenterden to the latter cases only ; see
Clark v. Clark, 1 Moody &; Rob. 4, Williamsv. Mundie, Ry. $f
Moo. 34 ; yet it seems to be at length settled, that all such com-
munications are privileged, whether made with reference to a
pending or contemplated suit or not. See all the cases commented
upon by the L. C. in Greenough v. Gaskell, 1 Myl. $ K. 100.
See also Walker v. Wildman, 6 Madd. 47. Mynn v. Joliffe,
1 Moo. &; Ry. 326.
With regard to the nature of the communications touching
the matters which are privileged, the following description of
them by Mr. Alison, in his Practice of the Criminal Law
of Scotland, p. 469, appears to be comprehensive and correct,
and to correspond entirely with the rule of the English
law. "Facts which have come to the witness's knowledge
professionally, in relation to the matter charged, fall within the
protection, though not obtained from the prisoner himself, as
for example, directions made by his relations or friends pre-
vious to the trial ; memorials laid before counsel ; notes fur-
nished to agents or the like, if done with that view. Under
that head must be included facts, gathered by the agent him-
self, in precognoscing the witnesses, or by his clerk in copying
or reading that precognition, or attending the examination of
the witnesses under it. Farther the privilege extends, under a
limitation to be immediately noticed, to all professional com-
munications in relation to the matter libelled, though long an-
terior to the date of the crime, if in regard to matters which
Witnesses. 147
are now charged as forming part of, or adduced in evidence re-
garding it."
An attorney is not at liberty to disclose what is communi-
cated to him confidentially by his client, although the latter be
not in any shape before the court. Wither'* case, 2 Campb, 578.
If hat matters are privileged production of deeds, &C.J A
communication in writing is privileged, as well as a communi-
cation by parol ; and deeds and other writings deposited with an
attorney in his professional capacity, will not be allowed to be
produced by him. To prove the contents of a deed, the de-
fendant's counsel offered a copy, which had been procured from
the attorney of a party under whom the plaintiff claimed, but
Bayley J. refused to admit it. He said, " the attorney could
not have given evidence of the contents of the deed which had
been entrusted to him ; so neither could he furnish a copy. He
ought not to have communicated to others what was deposited
with him in confidence, whether it was a written or verbal com-
munication. It is the privilege of his client, and continues
from first to last." Fisher v. Hemming, 1809. 1 Philt. Ev.
132.
What matters are privileged disclosures by informers, $c.]
Another class of privileged communications, are those dis-
closures which are made by informers, or persons employed for
the purpose, to the government, the magistracy, or the police,
for the purpose of detecting and punishing offenders. The
general rule on this subject is thus laid down by Eyre C. J.
" It is perfectly right that all opportunities should be given to
discuss the truth of the evidence given against a prisoner ; but
there is a rule, which has universally obtained, on account of
its importance to the public for the detection of crimes, that
those persons who are the channel by means of which that de-
tection is made, should not be unnecessarily disclosed ; if it
can be made to appear that it is necessary to the investigation
of the truth of the case, that the name of the person should be
disclosed, I should be very unwilling to stop it ; but it does not
appear to me that it is within the ordinary course to do it, or
that there is any necessity for it in the present case." Hardy's
COM, 24 How. St. Tr. 808.
What matters are privileged disclosures bij informers, $fc.
to wliom.] It is not of course every communication made by an
informer, to any person to whom he thinks fit to make it, that
is privileged from being inquired into, but those only which are
made to persons standing in a certain situation, and for the
purposes of legal investigation or state inquiry. Communications
made to government respecting treasonable matters are privileged ,
H2
148 Witnesses.
and a communication to a member of government, is to be con-
sidered as a communication to government itself; and that person
cannot be asked whether he has conveyed the information to go-
vernment. Watson's case, 2 Stark. N. P. C. 136. So a person
employed by an officer of the executive government, to collect
information at a meeting, supposed to be held for treasonable
purposes, was not allowed to disclose the name of his employer,
or the nature of the connection between them. Hardy's case,
24 How. St. Tr. 753. Watsons case, Gurney's Rep. 159,
32 How. St. Tr. 100.
The protection extends to all communications made to offi-
cers of justice, or to persons who form links in the chain by
which the information is conveyed to officers of justice. A wit-
ness, who had given information, admitted on a trial for high
treason, that he had communicated what he knew to a friend,
who had advised him to make a disclosure to another person.
Pie was asked whether that friend was a magistrate, and on his
answering in the negative, he was asked who was the friend 1
It was objected, that the person by whose advice the informa-
tion was given to one standing in the situation of magistrate,
was in fact the informer, and that his name could not be dis-
closed. The judges differed. Eyre C.J., Hotham B. and Grose
J. thought the question objectionable, Macdonald C. B. and Bul-
ler J. were of opinion it should be admitted. Eyre C. J. said,
" Those questions which tend to the discovery of the channels
by which the disclosure was made to the officers of justice, are
not permitted to be asked. Such matters cannot be disclosed,
upon the general principle of the convenience of public justice.
It is no more competent to ask who the person was that advised
the witness to make a disclosure, than it is to ask to whom he
made the disclosure in consequence of that advice ; or than it is
to ask any other question respecting the channel of information,
or what was done under it." Hotham B. said, that the dis-
closure was made under a persuasion, that through the friend
it would be conveyed to a magistrate, and that there was no
distinction between a disclosure to the magistrate himself, and
to a friend to communicate it to him. Macdonald C. B. said,
that if he were satisfied that the friend was a link in the chain
of communication, he should agree that the rule applied, but
that not being connected either with the magistracy or the
executive government, the case did not appear to him to fall
within the rule; and the opinion of Buller J. was founded on
the same reason. Hardy's case, 24 How. St. Tr. 811.
Upon the same principle it has been held, that communica-
tions between the governor and law officers of a colony, Wyatt
v. Gore, Holt, N. P. C. 299, between the governor of a colony
and one of the secretaries of state, Anderson v. Hamilton, 2 B.
<5f Bingh. 156, between a governor of a colony and a military
officer, Cooke v. Maxwell, 2 Stark. 183, are privileged. In the
Witnesses. 149
latter case the communication was in writing, and Bayley J.
said, " it' the document cannot on principles of public policy be
read in evidence, the effect will be the same as if it was not
in existence, and you may prove, not the contents of the in-
strument, but that what was done, was done by the orders of
the defendant."
But where the information has been given, not to the govern-
ment, or to any person connected with the administration of
justice, nor to any other, for the purpose of being conveyed to
such person, a disclosure of the circumstances attending it may
be required. See the opinion of Macdonald C. B., and Butler J.
in Hardy's case, ante, p. 148.
What matters are privileged matters of state.'] Matters
communicated confidentially, in furtherance of the administra-
tion of justice, are, as it has been stated, privileged from dis-
closure, and upon the same grounds matters of state, as official
communications between different members or officers of go-
vernment receive a like protection. Some cases of this kind
have been already mentioned, ante, p. 148. So where, on a
trial for high treason, Lord Grenville was called upon to pro-
duce a letter, intercepted at the post-office, and which was
supposed to have come to his hands, it was ruled that he could
not be required to produce it, for that secrets of state were not
to be taken out of the hands of his majesty's confidential sub-
jects. Case cited by Lord Ellenborough, Anderson v. Hamilton,
2 Br. fy Bingh. 157, (?i.) What passes in parliament, is in the
same manner privileged. Thus, on a trial for a libel upon
Mr. Plunkett, a member of the Irish parliament, the speaker
of the Irish house of commons being called and asked, whether
he had heard Mr. Plunkett deliver his sentiments in parlia-
ment on matters of a public nature, Lord Ellenborough said
that the speaker was warranted in refusing to disclose what had
taken place in a debate in the house of commons. He might
disclose what passed there, and if he thought fit to do so, he
should receive it as evidence. As to the fact of Mr. Plunkett
having spoken in parliament, or taken any part in the debate,
he was bound to answer. That was a fact containing no im-
proper disclosure of any matter. Plunkett v. Cobbett, 5 Esp. 1 36,
29 How. St. Tr. 71, 72, S. C. On the same ground, viz. that
the interests of the state are concerned, an officer of the Tower
of London was not allowed to prove that a plan of the Tower,
produced on behalf of the prisoner, was accurate. Watson's
case, 2 Stark. N. P. C. 148.
The two following cases, however, are at variance with the
rule above stated. Upon the trial of Lord Strafford, the
confidential advice given by that nobleman to the king, at the
council table, was allowed to be disclosed, and given in
evidence against him. Stafford's case, I St. Tr. 723, fo. ed.
150 Witnesses.
And in the case of the Seven Bishops, 4 St. TV. 346. fo. ed.
the clerk of the privy council was compelled to state what
passed at the council-board, and even what the king himself
said, although the counsel for the crown objected to it. How-
ever, in Sayers case, 6 St. Tr. 288, fo. ed. it seems to have
been considered, that minutes taken before the privy counc-1
were not to be divulged, and it cannot be doubted that at the
present day the practice adopted in the case of Lord Strafford
and of the Seven Bishops would be overruled, as contrary
to the principles of the law of evidence, and injurious to the
public interests.
What matters are privileged matters before grand jury.']
Matters which take place before a grand jury are privileged
from disclosure ; and a clerk attending before them shall not be
compelled to reveal what was given in evidence. Trials per
pais, 220. 12 Vin. Ab. 38. Evidence, (B. a. 5.) Though the
grand jury are bound, upon oath, not to disclose the matters
which pass before them, yet a grand juryman may be called to
prove who was the prosecutor of an indictment, for it is a
question of fact, the disclosure of which does not infringe upon
his oath. Sykes v. Dunbar, 2 Selw. N. P. 1004.
What communications are not privileged matters of fact.]
Where the subject inquired into is a mere matter of fact, which
the party setting up the privilege might have obtained a know-
ledge of in his individual capacity, as properly as in his cha-
racter of professional adviser, he will be compelled to disclose
it. Thus, an attorney, who has witnessed a deed produced in a
cause, may be examined as to the true time of execution ; or if
a question arise as to a razure in a deed or bond, he may be
asked whether he ever saw the instrument in any other state,
that being a fact within his own knowledge, but he ought not
to be permitted to discover any confession which his client may
have made to him on that head. B. N. P. 284. So the clerk
of an attorney may be called to identify a party, though he has
only become acquainted with him in his professional capacity,
for it is a fact cognizable both bv the witness and by others, with
out any confidence being reposed in him ; Studilii v. Sanders, 2
Dow. <$f Ry. 347 ; though the contrary was, upon one occasion , ruled
by Mr. Justice Holroyd. Parkins v. Hawkshaw, 2 Stark. N. P. C.
240. So an attorney's clerk may be called to prove the receipt of
a particular paper from the other party, for it is a mere fact.
Eicke v. Nokes, Moo. fy M. 304. So an attorney conducting a
cause, may be called and asked who employed him, in order
to let in the declarations of that person as the real party. Levy
v. Pope, Moo. $ M. 410. So to prove his client's handwriting,
though his knowledge was obtained from witnessing the execu-
tion of the bail-bond in the action. Kurd v. Moring, 1 C.fy P.
Witnesses. 151
372. Robson v. Kemp, 5 Esp. 52. So where an attorney is
present when his client is sworn to an answer in Chancery,
on an indictment for perjury, he will, it is said, be a good
witness to prove the fact of the taking of the oath, for it
is not a matter of secrecy committed to him by his client. Bull.
N. P. 284. But in the case of R. v. Watkinson, 2 Str.
1122, where the solicitor on a similar indictment was called to
speak to the identity of the defendant's person, the Chief
Justice would not compel him to be sworn. " Qiuere tamen'f"
says the reporter, " for it was a fact within his own know-
ledge." And Lord Brougham, in commenting upon this case,
in Greenough v. Gaskell, 1 Myl. &; K. 108, observes, that the
putting in the answer, so far from being a secret, was in its
very nature a matter of publicity, and that the case cannot be
considered as law at the present day.
Where a communication is made to an attorney, not for the
purpose of obtaining his legal opinion and advice, but in order
to procure information upon a point, which might be as well
obtained from an unprofessional person, the rule as to privilege
does not apply. Thus where a trader asked his attorney whe-
ther he could safely attend a meeting of his creditors, and the
attorney advised him to remain at his office, it was held that
this communication was not privileged, for that it was made by
the attorney upon a matter of fact, in the character merely of
agent or friend. Bramwell. v. Lucas, 2 H. <5f C. 745. The
exception in question is well illustrated in the following case :
In ejectment by Mr. Annesley against the Earl of Anglesea,
one Giffard, who had been twenty years professionally em-
ployed by the Earl of Anglesea, was called to prove a conver-
sation which he had had with that nobleman, respecting a pro-
secution against Mr. Annesley for murder, from which it would
appear that the Earl privately took an active part in the prose-
cution, in order that Mr. A. might be hanged, and himself
freed from his claims to the estate. The court admitted the
evidence ; and Bowes, C. B.. after stating the general rule,
said, " Does it follow from thence that every thing said by a
client to his attorney falls under the same reason 1 I own 1
think not ; because there is not the same necessity upon the
client to trust him in one case as in the other, and of this the
court may judge, from the particulars of the conversation. Nor
do I see any impropriety in supposing the same person to be
interested in one case as an attorney and agent, and in another
as a common acquaintance. In the first case the court will not
permit him, though willing, to disclose what came to his know-
ledge, as an attorney, because it would be a breach of that
trust, which the law supposes to be necessary between him and
his employer ; but where the client talks to him at large, as a
friend, and not in the way of his profession, the court is not
under the same obligation to guard such secrets, though in the
152 Witnesses.
breast of an attorney." Annesley v. Earl of Anglesea, Trial at
the bar of the Court of Exchequer in Ireland, 17 How. St, Tr.
1217, 1239; M'Nally Ev. 241.
So where, in the Duchess of Kingston's case, 20 Hou: St. Tr.
613, the attorney of Lord Bristol was called, and asked what
passed between himself and a witness, whom he had called on,
to procure him to attend and prove the marriage ; upon his
demurring to the question, Lord Mansfield said this was no
secret of his client, but a collateral fact, viz. what the witness
had told him on the application, and he was directed to
answer the question. See also Plunkett v. Cobbett, 5 Esp.
136, ante, p. 149, and Sykes v. Dunbar, 2 Selw. N. P. 1004,
ante, p. 150.
What matters are not privileged attorney parti/ to transac-
tion.'] Another exception to the rule of privileged communi-
cations is, where the attorney is so far himself a party to the
transaction, that the communications may be supposed to be
made to him in that character, and not in the character of
professional adviser. Thus where, on a question whether there
had been usury in giving a bond, the defendant called the plain-
tiff's attorney to prove that the consideration of the bond was
usurious ; on this being objected to, Lord Kenyon said, that the
privilege did not extend to this case, for that where the attorney
is as it were a party to the original transaction, that does not
come to his knowledge in the character of attorney, and that
he is liable to be examined the same as any other person.
Duffin v. Smith, Peake, N. P. C. 108. So it seems that every
one, whether counsel, attorney, or other person, is bound to
divulge matters communicated with a view to the perpetration
of a crime. It has, therefore, been held in Scotland, that an
agent who would otherwise be privileged, may be compelled to
swear to his client's having declared his purpose to commit the
crime to him ; or that he undertook a criminal employment by
his desire, as in the case of forgery, by falsifying a deed, the
copy of which was sent to him by his employer. Alison, Prac.
Cr. L. S. 473. The facts of the following case appear almost to
bring it within the above rule, but the decision was the other
way. In a prosecution for the forgery of a promissory note,
the attorney who had the note in his possession refused to pro-
duce it. He stated that he had been consulted by the pri-
soner on the note in question, and that by his directions he had
commenced an action against the person in whose name it was
forged. The attorney was not employed for the prosecution,
and a demand of the note had been made upon him by the
prisoner's attorney. Mr. Justice Holroyd refused to make an
order upon the attorney to produce the note, or to give a copy
of it to the clerk of arraigns, and a true bill having been found,
he likewise held that the attorney was not bound to produce
Documentary Evidence. 153
it at the trial. Smith's case, Derby Sum. Ass. 1822, 1 Phill.
Ev. 132.
What matters are privileged where oath of office has been
taken not to divulge.] Where, for revenue or other purposes, an
oath of office has been taken not to divulge matters which have
come to the knowledge of a party in his official capacity, he
will not be allowed, where the interests of justice are concerned,
to withhold his testimony. Thus where the clerk to the com-
missioners of the property tax being called to produce the
books containing the appointment of a party as collector, ob-
jected on the ground that he had been sworn not to disclose
any thing he should learn in his capacity of clerk, Lord
Ellenborough clearly thought that the oath contained an im-
plied exception of the evidence to be given in a court of justice,
in obedience to a writ of subpoena. He added that the witness
must produce the books, and answer all questions respecting
the collection of the tax, as if no such oath had been admi-
nistered to him. Lee q. t. v. Birrell, 3 Campb. 337.
DOCUMENTARY EVIDENCE.
Officers,
Proof of Acts of Parliament .
Records . .
Office Copies and Copies by authorised
Inquisitions .
Verdicts . . .
Affidavits made in Causes
Proceedings in Equity , .
Depositions . .
Judgments and proceedings of inferior Courts
Probate and Letters of Administration ,
Public Books and Documents .
Ancient Documents, Terriers, fyc.
. Private Documents . .
Attesting Witness . .
When waived . .
Handwriting . .
Stamps . . . .
1.53
154
155
156
156
157
158
158
159
159
159
160
161
161
J61
162
164
Proof of acts of parliament, 3fc.] The courts will take
notice of public acts of parliament without their being specially
proved, but private acts of parliament must be proved by a
H 5
154 Documentary Evidence.
copy examined with the parliament roll, B. IV. P. 225, unless
the mode of proof be provided for by the act. Where there is a
clause in the act, declaring that it shall be taken to be a public
act, and shall be taken notice of as such by all judges, &c.
without being specially pleaded, it is not necessary to prove a
copy examined with the roll, or a copy printed by the king's
printer, but it stands upon the same footing as a public act.
Beaumont v. Mountain, 10 Bingh. 404. For other purposes,
however, as with regard to the recital of facts contained in it,
this clause does not give the statute the effect of a public
act. Brett v. Beales, Moo. &; M. 421. By statute 41 G. 3.
c. 90. s. 9. the statutes of England and (since the union with
Scotland) of Great Britain, printed by the king's printer, shall
be received as conclusive evidence of the statutes enacted
prior to the union of Great Britain and Ireland, in any court of
civil or criminal jurisdiction in Ireland, and in like manner the
copy of the statutes of the kingdom of Ireland, made in the
parliament of the same, printed by the king's printer, shall be
received as conclusive evidence of the statutes enacted by the
parliament of Ireland, prior to the union of Great Britain and
Ireland, in any court of civil or criminal jurisdiction in Great
Britain. The journals of the lords and commons must be
proved by examined copies. Lord Melville's case, 24 How. St.
Tr. 683. Lord G. Gordon's case, 2 Dongl. 593.
Proof of records.] Where there is a plea of nul tiel record,
the record is proved by its production, if it be a record of the
same court, Tidd, Pr. 80 1 ; if of an inferior court by the tenor
of the record, certified under a writ of certiorari, issued by the
superior court ; if of a concurrent superior court, by the tenor
certified under a writ of certiorari issued out of chancery, and
transmitted thence by mittimus. Id.
Where nul tiel record is not pleaded, a judgment is proved
either by an exemplification under the seal of the court, or by
an examined copy. Such exemplifications under the seal of a
public court in this country, are evidence without proof of the
genuineness of the seal. Tooker v. Duke of Beaufort, Sayer, 297.
But the genuineness of the seal of a foreign court must be proved.
Henry v. Adey, 3 East, 221.
A record is not complete until delivered into court in parch-
ment. Thus the minutes made by the clerk of the peace at
sessions, in his minute book, are neither records nor in the
nature of records. Bellamy's case, Ry. <Sf Moo. 172. And
where, to prove an indictment for felony found by the grand
jury, the indictment itself, (which was in another court) in-
dorsed " a true bill, " was produced by the clerk of the peace,
together with the minute book of the proceedings of the sessions,
at which the indictment was found, the Court of King's Bench
held that in order to prove the indictment, it was necessary to
Documentary Evidence. 155
have the record regularly drawn up, and that it should be
proved by an examined copy. Smith's case, 8 B. fy C. 341.
Cooke v. Maxwell, 2 Stark. 183. So an allegation that the
grand jury at sessions found a true bill, is not proved by
the production of the bill itself with an indorsement upon it,
but a record regularly made up must be produced. Porter v.
Cooper, 6 C. &; P. 354. So it has been ruled, on an indictment
for perjury, that in order to prove that an appeal came on to be
heard at sessions, it must be shown that a record was regularly
made up on parchment. TJ T ard's case, 6 C. &; P. 366. A plea of
autrefnis convict, in like manner, must be proved by the record
regularly made up, and the indictment with the finding of the
jury, indorsed upon it by the proper officer is not sufficient.
Bowman's case, 6 C. f P. 101. But in Tooke's case, 25 How.
St. Tr. 446, the minutes of the court were received to prove
the acquittal of Hardy. This case is distinguished by Lord
Tenterden from the foregoing, on the ground that the matter
proved by the minutes occurred before the same court, sitting
under the same commission. 8 B. <3f C. 343. So a judgment
: n paper signed by the master is not evidence, for it has not yet
oecome permanent. B. A T . P. 228. Godefroy v. Jay, 1 M. $ P.
236, 3 C. <3f P. 192, S. C. In one case "the minutes of the
Lord Mayor's Court of London were allowed to be read as
evidence of the proceedings there, the court assigning as a
reason for not insisting rigidly upon the record being made up,
that it was an inferior jurisdiction. Fisher v. Lane, 2 W. Bl.
834. 8 B. &; C. 342.
The mode of examination usually adopted, is for the person
who is afterwards to prove it, to examine the copy while
another person reads the original, and this has been held
sufficient. Rees v. Margison, 1 Campb. 469. Gyles v. Hill, Id.
471. (n.) It must appear that the original came from the
proper place of deposit, or out of the hands of the officer, in
whose custody the records are kept. Adamthwaite v. .Si/nge,
1 Stark. 183, 4 Campb. 572. S. C.
Where a record is lost, an old copy has been allowed to be
given in evidence, without proof of its being a true copy. Anon.
1 Ventr. 256. B. N. P. 228.
Proof by office copies, and copies by authorised officers, <Sfe.]
An office copy is not evidence of the original, if the latter be in
another court. Thus office copies of depositions in chancery
are evidence in chancery, but not at common law, without
examination with the roll. B. A r . P. 229. 5 M. # S. 38. In a
court of common law, an office copy has been held sufficient in
the same court and in the same cause. Denn v. Fulford,
2 Burr. 1179. And so it seems that an issue out of chancery
may be considered as a proceeding in that court, and an ortice
copy would probably be held evidence there. See Highjield v.
156 Documentary Evidence.
Peake, Moo, fy Mai. 111. There appears to be no reason for
distinguishing between the effect of office copies in different
causes in the same court, the principle of the admissibility being,
that the court will give credit to the acts of its own officers, and
accordingly, it was held in one case, that an office copy made
in another cause in the same court was admissible. Wightwick
v. Banks, Forrest, 154.
Where there is a known officer, whose duty it is to deliver
out copies which form part of the title of the parties receiving
them, and whose duty is not performed till the copy is de-
livered, as in the case of the chirograph of a fine, and the in-
rolment of a deed, such copies are evidence, without proof of
examination with the originals. See Appleton v. Lord Bray-
brouke, 6 M. 8r S. 37. The certificate of the inrolment of a
deed pursuant to the statute is a record, and cannot be averred
against. Hopper's case, 3 Price, 495. A copy of a judgment
purporting to be examined by the clerk of the treasury, (who is
not intrusted to make copies) is not admissible without proof
of examination with the original. B. N. P. 229.
Office copies of rules of court, being made out by officers of
the court in the execution of their duty, are sufficient evidence
without being proved to have been examined. Selby v. Harris,
1 Ld. Raym. 745. Duncan v. Scott, 1 Campb. 102. And printed
copies of the rules of a court for the direction of its officers,
printed by the direction of the court, are evidence without exa-
mination with the original. Dance v. Robson, Moo. &; M. 294.
Proof of Inquisitions.'] Inquisitions postmortem, and other
private offices cannot be read in evidence, without proof of the
commission upon which they are founded ; but in cases of
more general concern, as the ministers' return to the com-
mission in Henry the Eighth's time, to inquire into the value of
livings, the commission is a thing of such public notoriety that
it requires no proof. Per Hardw. C. in Sir H. Smithson's case,
B. N. P. 228. An ancient extent of crown lands, found in
the proper office, and purporting to have been taken by a
steward of the king's lands, and following the directions of the
statute 4 Ed. 1. will be presumed to have been taken under a
competent authority, though the commission cannot be found.
Rowe v. Brenton, 8 B. $ C. 747.
Proof of verdict.'] The mode of proving a verdict depends
upon the purpose for which it is produced. Where it is offered
in evidence, merely to prove that such a cause came on for
trial, the postea with the verdict indorsed is sufficient. Pitton v.
Walter, 1 Sir. 162. So it is sufficient to introduce an account
of what a witness, who is since dead, swore at the trial. Per
Pratt, C. J, Id. So upon an indictment for perjury, committed
by a witness in a cause, the postea, with a minute by the officer,
Documentary Evidence. 157
of the verdict having been given, is sufficient to prove that the
cause came on for trial. Browne's case, Moo. <Sf .If. 314. But
without such minute, the nisi prius record is no evidence of the
case having come on for trial. Per Lord Tenterden, Id. In
London and Westminster, it is not the practice for the officer
to indorse the poslea itself as in the country, but the minute is
indorsed on the jury pannel, Id.
But where it is necessary to prove not merely that a trial
was had, but that a verdict was given, it must be shown that
the verdict has been entered upon the record, and that judg-
ment thereupon has also been entered on record, for otherwise
it would not appear that the verdict had not been set aside or
judgment arrested. Fisher v. Kitchenham, Willes, 368. Pitton
v. Walter, 1 Str. 162. B.N.P. 243. In one case, indeed,
Abbott, J. admitted the postea as evidence of the amount re-
covered by the verdict ; Foster v. Compton, 2 Stark. 364 ; and
Lord Kenyon also ruled that it was sufficient proof to support
a. plea of set oft', to the extent of the verdict ; Garland v.
Schoones, 2 Esp. 648 ; but Ihese decisions appear to be
questionable.
Where a writ is only inducement to the action, the taking
out the writ may be proved without any copy of it, because,
possibly it might not be returned, and then it is no record ;
but where the writ itself is the gist of the action, a copy of the
writ on record must be proved in the same manner as any other
record. B. N. P. 234.
Proof of affidavits made in causes."] In what manner an
affidavit filed in the course of a cause is to be proved, does not
appear to be well settled. In an action for a malicious prose-
cution, an examined copy has been admitted. Crook v. Dowling,
3 Dougl. 72, but see Eees v. Bowen, M'Cl. Sf Y. 383. A dis-
tinction has been taken between cases where the copy is re-
quired to be proved in a civil suit, and where it forms the
foundation of a criminal proceeding, as upon an indictment for
perjury. In James's case, 1 Show. 327, Carth. 220, 5. C., the
defendant was convicted of perjury upon proof of a copy of an
affidavit ; it was urged that it was only a copy, and that there
was no proof that it had been made by the defendant ; but it
appearing that it had been made use of by the defendant in the
course of the cause, the court held it sufficient. This case was
however doubted in Crook v. Dowling, 3 Dougl. 77, where
Lord Mansfield said that on indictments for perjury, he thought
the original should be produced. Buller, J. also observed that
wherever identity is in question, the original must be produced.
Id. 77. The same rule is laid down with regard to the proof
of answers in chancery upon indictments for perjury. Vide
post, p. 158. It may be doubted how far the distinction in
question has any foundation in principle, the rules of evidence
158 Documentary Evidence.
with regard to the proof of documents being the same in civil
and in criminal cases ; and the consequences of the evidence not
being a correct test of the nature of the evidence.
Proof of proceedings in equity.] A bill or answer in chancery,
when produced in evidence for the purpose of showing that
such proceedings have taken place, or for the purpose of proving
the admissions made by the defendant in his answer, may be
proved either by production of the original bill or answer, or
by an examined copy, with evidence of the identity of the
parties. Hennell v. Lyon, 1 B. <5f A. 182. Ewer v. Ambrose,
4 B. <3f C. 25. But a distinction is taken where the answer is
offered in evidence in a criminal proceeding, as upon an in-
dictment for perjury, in which case it has been said to be
necessary, that the answer itself should be produced, and
positive proof given by a witness acquainted with him, that the
defendant was sworn to it. Chambers v. Robinson, B. N. P. 239.
Lady Dartmouth v. Roberts, 16 East, 340. In order to prove
that the answer was sworn by the defendant, it is sufficient to
prove his signature to it, and that of the master in chancery,
before whom it purports to be sworn. Benson's case, 2 Campb.
508. Morris's case, B. N. P. 239, 2 Burr. 1 189, S. C.
A decree in chancery may be proved by an exemplification,
or by an examined copy, or by a decretal order in paper, with
proof or' the bill and answer, or without such proof, if the bill
and answer be recited in the decretal order. B. N. P. 244. Com.
Dig. Testm. (C. 1.) With regard to the proof of the previous
proceedings, the correct rule appears to be, that where a party
intends to avail himself of the contents of a decree, and not
merely to prove an extrinsic collateral fact, (as that a decree
was made by the court), he ought regularly to give in evidence
the proceedings on which the decree is founded. 1 Pkill. Ev.
373. See Blower v.Hollis, 1 Crom.Sf M.393, 3 Tyr. 351, &.C.
Proof of depositions.] The depositions of witnesses, who are
since dead, may, when admissible, be proved by the judge's
notes, or by notes taken by any other person who can swear to
their accuracy, or the former evidence may be proved by any
person who will swear from his memory to its having been given.
Per Mansfeld, C.J. Mayor of Dor.caster v. Day, 3 Taunt. 262.
Where a witness called to give such evidence cannot prove the
words, but only the effect of them, he is inadmissible. Lord
Palmerston's case, cited 4 T. R. 290. Ennis v. Donnisthorne ,
1 Phill. Eo. 219. 6t/i ed.
Where depositions in chancery are offered in evidence,
merely for the purpose of proving a fact admitted in them, or of
contradicting a witness, it is not necessary to give evidence of
the bill and answer. 1 Phill. Ev. 375. 6th ed. But where it is
necessary to show that they were made in the course of a
Documentary Evidence. 159
judicial proceeding, as upon an indictment for perjury in the
deponent, proof of the bill and answer will be required. Where
the suit is so ancient that no bill or answer can be found, the
depositions may be read without proof of them. Depositions
taken by the command of Queen Elizabeth upon petition without
bill and answer, were upon a solemn hearing in chancery
allowed to be read. Lord Hunsdon v. Lady Arundell, Hob. 112,
B. N. P. 240. So depositions taken in 1686, were allowed to
be read without such proof; Byam v. Booth, 2 Price, 234 ; and
answers to old linterrogatories, (exhibited 1 Eliz.) have been
read upon proof that the interrogatories were searched for and
not found. Rowe v. Brenton, 8 B. $ C. 765. But in general,
depositions taken upon interrogatories under a commission,
cannot be read without proof of the commission. Bay ley v.
Wylie, 6 Esp. 85.
Proof of judgments and proceedings of inferior courts.] The
judgments and proceedings of inferior courts, not of record,
may be proved by the minute book in which the proceedings
are entered, as in the case of a judgment in the county court.
Chandler v, Roberta, Peake Ev. 80. 5th ed. So an examined
copy of the minutes will be sufficient. Per Holt, C. J. Comb.
337. 12 Vin. Ab. Evid. A. pi. 26.
Proof of probate and letters of administration.] The pro-
bate of a will is proved by the production of the instrument
itself; and proof of the seal of the court is not necessary. Tn
order to prove the title of the executor to personal property,
the probate must be given in evidence ; it is not sufficient to
produce the will itself. Pinney v. Pinney, 8 B. fy C. 335.
When the probate is lost it is not the practice of the Ecclesi-
astical Court to grant a second probate, but only an exemplifi-
cation, which will be evidence of the proving of the will.
Shepherd v. Shorthouse, 1 Str. 412. To prove the probate re-
voked, an entry of the revocation in the book of the Preroga-
tive Court is good evidence. Rambsbotham's case, 1 Leach, 30.
(n.) 3ded.
Administration is proved by the production of the letters of
administration granted by the Ecclesiastical Court. Kempton v.
Cross, Rep. Temp. Hardw. 108. B. N. P. 246. So the original
book of acts of that court directing the granting the letters is
evidence. B. N. P. 246. And an examined copy of such act
book is also evidence. Davis v. Williams, 13 East, 232.
Proof of public books and documents.] Wherever the con-
tents of a public book or document are admissible in evidence,
as such, examined copies are likewise evidence, as in the case
of registers of marriages, deaths, &c. Vide post. Thus an
examined copy of an order in council is sufficient, without
160 Documentary Evidence.
the production of the council books themselves. Eyre v. Pals-
grave, 2 Campb. 605. So copies of the transfer books of the
East India Company. Anon. 2 Dougt. 593. (n.) and of the
Bank of England; Marshv. Colnett, 1 L'sp. 665; Bretton v. Cope,
Peake, N. P. C. 30 ; of a bank note filed at the bank, Mann
v.Cary, 3 Salk. 155 ; so the books of commissioners of land-tax,
King's case, 2 T. R. 234 ; or of excise ; Fuller v. Fetch,
Carth. 346 ; or of a poll-book at elections. Mead v. Robinson,
Willes, 424. In one case the copy of an agreement contained
in one of the books in the Bodleian Library, (which cannot be
removed) was allowed to be read in evidence. Downes v.
Mcn-eman, 2 Gwill. 659.
Corporation books may be given in evidence, as public
books, when they have been kept as such, the entries having
been made by the proper officer, or by a third person, in his
sickness or absence. Mothersell's case, 1 Str. 93. But a book
containing minutes of corporation proceedings, kept by a person
not a member of the corporation, and not kept as a public
book, is inadmissible. Id. An examined copy of a corporate
book is evidence. Brocas v. Mayor of London, 1 Str. 308.
Gwyn's case, 1 Str. 401.
Public registers, as of births, marriages, or deaths, are proved
either by the production of the register itself, or of an examined
copy. B. N. P. 247. Parol evidence of the contents of a re-
gister has been admitted ; yet the propriety of such evidence,
says Buller, may well be doubted, because it is not the best
evidence the nature of the case is capable of. B. N. P. 247.
A copy of a record or of a public book is not, in fact, secondary
evidence ; and therefore the opinion of Mr. Justice Buller ap-
pears to be correct. A register is only one mode of proof of
the fact which it records, and the fact may be proved without
producing the register, by the evidence of persons who were
present. Thus, upon an indictment for bigamy, it was held
sufficient to prove the marriage, by the evidence of a per-
son who was present at it, without proving the registration,
licence, or banns. Allison's case, Russ. fy Ry. C. C. 109.
In proving a register, some evidence of the identity of the
parties must be given, as by proof of the handwriting, for which
purpose it is not necessary to call the subscribing witnesses.
Per Lord Mansfield, Birt v. Barlow, 1 Dougl. 174. The iden-
tity is usually established by calling the minister, clerk, or some
other person who was present at the ceremony.
Proof of ancient documents, terriers, fe.] In many cases
ancient documents are admitted in evidence, to establish
facts which, had they been recently made, they would not
have been allowed to prove. These documents prove them-
selves, provided it appear that they are produced out of the
proper custody. The proper repository of ecclesiastical terriers
Documentary Evidence. 161
or maps is the registry of the bishop or archdeacon of the
diocese. Atkins v. Hatton, 2 Anstr. 387. Potts v. Dnrant, 3
Anstr. 795. On an issue to try the boundaries of two parishes,
an old terrier or map of their limits, drawn in an inartificial
manner, brought from a box of old papers relating to the parish,
in the possession of the representatives of the rector, was re-
jected, not being signed by any person bearing a public cha-
racter or office in the parish. Earl v- Lewis, 4 Esp. 3.
So also with regard to private ancient documents, it must
appear that they came fiom the custody of some person con-
nected with the property. Thus, where upon an issue to try
a right of common, an old grant to a priory, brought from the
Cottonian MSS. in the British Museum, was offered in evi-
dence, it was rejected by Lawrence J., the possession of it not
being sufficiently accounted for, nor connected with any one
who had an interest in the land. Sicinnerton v. Marquis of
Stafford, 3 Taunt. 91 . So a grant to the abbey of Glastonbury,
contained in an ancient MS., deposited in the Bodleian Li-
brary, entitled Secretum Abbatis, was rejected, as not coming
from the proper repository. Mitchell v. Rabbets, cited, Id.
Proof of private documents attesting witness.] The exe-
cution of a private document, which has been attested by a
witness subscribing it, must be proved by calling that witness,
although the document may not be such as by law is required to
have the attestation of a witness. Thus if a warrant of distress
has been attested, the attesting witness must be produced.
Higgs v. Dixon, 2 Stark. 180. And even where the defendant
himself was proved to have admitted the execution, in an answer
to a bill in chancery, this was held insufficient, without calling
the attesting witness. Cull v. Dunning, 4 East, 53. See also
Abbott v. Plumbe, 1 Dougl. 217.
Proof of private documents attesting witness when proof
waived,] Where the attesting witness is dead ; Anon. 12 Mod.
607. ; or blind ; Wood v. Drury, 1 Lord Raym. 734 ; Pedley
v. Paige, 1 Moo. $ Rob. 258 ; or insane ; turtle v. Child, 3
Campb. 283 ; or infamous ; Jones v. Mason, 2 Str. 833 ; or ab-
sent in a foreign country, or not amenable to the process of the
superior courts ; Prince v. Blackburn, 2 East, 252 ; as in Ire-
land ; Hoduett v. Foreman, 1 Stark. 90 ; or where he cannot be
found, after diligent inquiry ; Cunlijf'e v. Sefton, 2 East, 183 ;
in all these cases evidence of the attesting witness's hand-
writing is admissible. As to the nature of the inquiry, see Rose.
Dig. Ev. A T . P. 67. 3d ed. Some evidence must be given in these
cases of the identity of the executing party : and although there
are cases to the contrary, it is now held that mere identity of
name is not sufficient proof of the identity of the party. White-
kcke v. Musgrave, 1 Crom. S$ Mee. 511, 3 Tyr. 541. S. C.
162 Documentary Evidence.
The illness of the attesting witness, although he lies without
hope of recovery, is not a sufficient ground for letting in evidence
of his handwiiting. Harrison v. Blades, 3 Campb. 457.
Where a witness is interested at the time of his attesting an
instrument, it is the same as if it were unattested, and the exe-
cution must be proved by evidence of the handwriting of the
party executing. Swire v. Bell, 5 T. R. 371. But a party who,
with a knowledge of the interest, has requested the witness to
attest, cannot afterwards object to him on the ground of in-
terest. Honeywood v. Peacock, 3 Campb. 196. Where a wit-
ness becomes interested after the attestation, in general, proof of
his handwriting is admissible, as where he becomes adminis-
trator. Godfrey v. Norris, 1 Sir. 34. 2 East, 183. But in
some cases, as of a witness becoming partner, it has been held
otherwise. Hovitl v. Stephenson, 5 Bingh. 493. Where the
name of a witness is inserted, Fasset v. Brown, Peake, 23, or
where the attesting witness denies all knowledge of the execu-
tion ; Talbot v. Hodgson, 7 Taunt. 251 ; Fitzgerald v. Elsee, 2
Campb. 635 ; evidence of the handwriting of the party is suf-
ficient proof of its execution. So where an attesting witness
subscribes his name without the knowledge or consent of the
parties. M'Craw v. Gentry, 3 Campb. 232.
Where there are two attesting witnesses, and one of them
cannot be produced, being dead, &c. it is not sufficient to prove
his handwriting, but the other witness must be called. Cun-
liffe v.SeJton, 2 East, 183. M'Craw, v. Gentry, 3 Campb. 232.
But if neither can be produced, proof of the handwriting of one
only is sufficient. Adam v. Kerr, 1 B. $ P. 360.
Proof of private documents evidence of handwriting.]
Where a party cannot sign his name, but makes his mark, that
mark may be proved by a person who has seen him make the
mark, and is acquainted with it. George v. Surrey, Moo. $ M.
516. Where a witness had seen the party execute a bail-bond,
but had never seen him write his name on any other occasion,
and stated that the signature to the bond produced, was like the
handwriting which he saw subscribed, but that he had no belief
on the subject, this was held to be evidence of the handwriting to
go to the jury. Garrelts v. Alexander, 4 Esp. 37. But it is other-
wise, where the witness has only seen the party write his name
once, and then for the purpose of making the witness competent
to give evidence in the suit. Stranger i>. Searle, 1 Esp. 14.
Where the witness stated that he had only seen the party upon
one occasion sign his name to an instrument, to which he was
attesting witness, and that he was unable to form an opinion as
to the handwriting, without inspecting that other instrument,
his evidence was held inadmissible. FUliter v. Minchin, Mann.
Index, 131. In another case, under similar circumstances,
Dallas, J . allowed a witness to refresh his memory, by referring
Documentary Evidence. 163
to the original document, which he had formerly seen signed.
J3rr t-. Harper, Holt, N.P.C. 420. It is sufficient, if the
witness has seen the party write his surname only. Lewis r.
Sapio, Moo. &; Mai. 39 ; overruling Powell v. Ford, 2 Stark.
164.
It is not essential to the proof of handwriting, that the w.t-
ness should have seen the party write. There are various
other modes in which he may become acquainted with the
handwriting. Thus, where a witness for the defendant stated
that he had never seen the person in question write, but that
his name was subscribed to an affidavit, which had been used
by the plaintiff, and that he had examined that signature, so as
to form an opinion which enabled him to say he believed the
handwriting in question was genuine, this was held by Park,
J. to he sufficient. Smith v. Sainsbury, 5 C. &; P. 196. So
where letters are sent, directed to a particular person, and on
particular business, and an answer is received in due course, a
fair inference arises that the answer was sent by the person
whose handwriting it purports to be. Per Lord Kenyan, Cary
v.Pitt, Peake Ev.App.86. And in general, if a witness has
received letters from the party in question, and has acted upon
them, it is a sufficient ground for stating his belief as to the
handwriting. Thorpe v. Giburne, 2 C. <Sf P. 21. And the re-
ceipt of letters, although the witness has never done any act
upon them, has been held sufficient. Doe v. Wallinger, Mann.
Index, 131.
In general a document cannot be proved by comparing the
handwriting with other handwriting of the same party, ad-
mitted to be genuine ; and the reason is, that specimens might
be unfairly selected, and calculated to serve the purposes of the
party producing them, and therefore not exhibiting a just speci-
men of the general character of the handwriting. See Burr v.
Harper, Holt, 421. Thus an inspector of franks at the post-
office, who has never seen the party write, though perfectly ac-
quainted with his handwriting on franks, has been rejected as a
witness. Batchelor v. Honeywood, 2 Esp. 714. In the case of
ancient documents, where it is impossible that the usual proof
of handwriting can be given, the rule as to comparison of
hands does not apply. B. A T . P. 236. Thus authentic ancient
writings may be put into the hands of a witness, and he may
be asked whether, upon a comparison of those, with the docu-
ment in question, he believes the latter to be genuine. Doe v.
Tarver, Ry. % Moo. N. P.C. 142. 7 East, 282.
The rule as to comparison of handwriting does not apply to
the court or the Jury, who may compare the two documents
together, when they are properly in evidence, and from that
comparison form a judgment upon the genuineness of the
handwriting, Griffiths v. Williams, 1 Crom. Jerv, 47. So-
lita v. Yarrow, 1 Moo. $ Rob. 133. But the document with
164 Documentary Evidence.
which the comparison is made must be one already in evidence
in the case, and not produced merely for the purposes of the
comparison. Thus, where upon an indictment for sending a
threatening letter, in order to prove the handwriting to it, it was
proposed to put in a document undoubtedly written by the pri-
soner, but unconnected with the charge, in order that the jury
might compare the writing with that of the letter, Holland, B.,
after considering Griffiths v. Williams, rejected the evidence,
observing, that to say that a party might select and put in evi-
dence particular letters, bearing a certain degree of resemblance
or dissimilarity to the writing in question, was a different thing
from allowing a jury to form a conclusion from inspecting a
document put in for another purpose, and therefore free from
the suspicion of having been so selected. Morgan's case, 1
Moo. # Rob. 134. (n).
Where a party to a deed directs another person to write his
name for him, and he does so, that is a good execution by the
party himself. R. v. Languor, 4 B. &; Ad. 447. In such
case the subscription of the name by the agent, and his autho-
rity to subscribe it, must be proved.
Whether the evidence of persons skilled in detecting for-
geries is admissible, in order to prove that a particular hand-
writing is not genuine, is a point not well settled. Such evidence
was admitted in one case. Goodtitle v. Braham, 4 T. R.*497.
But in a subsequent case, Lord Kenyon, who had presided in
the case of Goodtitle v. Braham, rejected similar evidence.
Gary v. Pitt, Pealte Ev. App. Ixxxv. It was admitted again
by Hotham, B. (Gator's case, 4 Esp. 117.) ; and again rejected
in Gurney v. Langlands, 5 B. fy A. 330. Upon the point
coming before the Court of K. B., in the last cited case, they
refused to disturb the verdict, on the ground of the evidence
having been rejected.
Stamps.] In general, in criminal as well as in civil cases, a
document, which is by law required to be stamped, cannot be
given in evidence without a stamp, unless, as in the cases
after mentioned, the instrument itself is the subject matter of
the offence. Thus, where upon an indictment for embezzle-
ment, in order to prove the receipt of the money, evidence was
tendered of an unstamped receipt for it, given by the prisoner,
it was rejected by Bayley, J. Hall's case, 3 Stark. N. P. C.
67. Upon an indictment for setting fire to a house, with intent
to defraud an insurance company, in order to prove the insur-
ance, a policy, not properly stamped, was given in evidence,
and the prisoner was convicted ; on a case reserved, the con-
viction was held wrong, by six judges against five. Gibson's
case, Russ. $ Ry. C. C. 138, 2 Leach, 1007, 1 Taunt. 98.
S. C.
But where the unstamped instrument is offered in evidence,
Documentary Evidence. 16^
not for the purpose of proving that, which, had it been ge-
nuine, it would have proved, but merely as evidence against
the prisoner, of the commission of the offence with which he is
charged, it is then admissible without a stamp. The prisoner
was indicted for forging a bill of exchange, and it was ob-
jected for him, that there was no stamp upon it, and that it
could not be received in evidence ; but Buller, J . said, that
the stamp act was merely a revenue law, and did not purport in
any way to alter the law of forgery, and that the false instru-
ment had the semblance of a bill of exchange, and had been
negociated by the prisoner as such, and overruled the objection.
Upon a case reserved, the judges were of opinion that the pri-
soner was properly convicted. Hawkeswood's case, 2 East, P. C.
955, 1 Leach, 257., stated pest. A similar objection having
been taken in another case, most of the judges maintained the
principle in Hawkeswood's case to be well founded. Morton's
case, 2 East, P. C. 955, staled post. See also lieculist's case, 2
East, P. C. 956, 2 Leach, 703. S. C. Teague's case, 2 East,
P. C. 979. If the matter be duly considered, says Mr. East,
the words of the stamp acts can only be applicable to true in-
struments, for a forged instrument, when discovered to be such,
can never be made available, though stamped. The acts,
therefore, can only be understood as requiring stamps on such
instruments as were available without a stamp before those acts
passed, and which would be available afterwards, with a stamp.
2 East, P. C. 956.
Where the unstamped document is produced in evidence,
not as forming the subject matter of the offence, but for a col-
lateral purpose (not being its proper object), it is admissible.
Of this rule there are many instances in civil actions. See Rose.
Dig. Ev. A". P. 121. 3d ed. And upon an indictment under
7 Geo. 3. c. 50. s. 2., for stealing a letter out of the post-office,
a check contained in the letter, though drawn on unstamped
paper, was received in evidence, for the purpose of proving the
tact of the letter having been stolen. Pooler's case, 2 Leach,
900, 1 East, P. C. Add. xvii, 3 Bos. <5f Put. 315. S. C.
166
AIDERS, ACCESSORIES, &c.
Proof with regard to Aiders and Abettors . . 166
What presence is sufficient to make a party principal
in the second degree . . .166
Punishment . . . .167
Proof with regard to Accessories before the fact . 167
By the interposition of a third person . 1 68
Degree of incitement . . .168
Principal varying from orders given to him . 168
What Offences admit of Accessories . .170
Trial and punishment . . .170
Proof with regard to Accessories after the fact . 171
Under this head will be considered the evidence against
aiders, or principals in the second degree, against accessories
before the fact, and accessories after the fact.
Proof with regard to aiders and abettors.] Although the law
on this subject was formerly not well settled, it is now clear
that all those who are present, aiding and abetting, where a
felony is committed, are principals in the second degree.
1 Russell, 21. Coalheaver's case, 1 Leach, 66. Foster, 428.
With regard to the nature of the felony, it has been held
that the rules with regard to principals in the second degree,
apply equally to felonies created by statute, as to those offences
which are felonies at common law. Tattersall's case, 1
Russell, 22.
Proof with regard to aiders and abettors what presence is
sufficient to make a party a principal in the second degree.]
With regard to what will constitute such a presence as to
render a man a principal in the second degree, it is said by
Mr. Justice Foster, that if several persons set out together, or
?n 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 to prevent a surprise, or to
favour, if need be, the escape of those who are more immediately
engaged, they are all, provided the fact be committed, in the
eye of the law present at it. Foster, 350. Thus where A.
waits under a window, while B. steals articles in the house,
Aiders, Accessories, Jrc. 167
which he throws through the window to A., the latter is a
principal in the offence. Owen's case, 1 Moody, C. C. 96,
stated post.
Where several persons are in company together, engaged in
one common purpose, lawful or unlawful, and one of them,
without the knowledge or consent of the others, commits an
offence, the others will not be involved in his guilt, unless the
act done was in some manner in furtherance of the common
intention. Several soldiers employed by the messenger of the
secretary of state, to assist in the apprehension of a person,
unlawfully broke open the door of a house where the person
was supposed to be. Having done so, some of the soldiers
began to plunder, and stole some goods. The question was,
whether this was felony in all. Holt, C. J. observing upon
this case, says, that they were all engaged in an unlawful act
is plain ; for they could not justify breaking a man's house
without first making a demand. Yet all those who were not
guilty of stealing were acquitted, notwithstanding their being
engaged in an unlawful act of breaking the door; for this
reason, because they knew not of any such intent, but it was a
chance opportunity of stealing, whereupon some of them did
lay hands. Anon. 1 Leach, 7. (n.) 1 Russell, 24.
Either an actual presence, or such a presence as may be
sufficient to afford aid and assistance to the principal in the
first degree, is necessary, in order to render a party guilty as a
principal in the second degree. See Scare's case, Russ. &; Ry.
25. Davis's case, Id. 113. Else's case, Id. 142. Badcock's case,
Id. 249. King's case, Id. 332. M'Makin's case, Id. 333, (n.)
Kelly's case, Id. 421. Stewart's case. Id. 363, all stated post.
Aiders and abettors punishment.] Considerable doubts
formerly existed with regard to the punishment of aiders and
abettors, but now by 7 & 8 Geo. 4. c. 29. s. 61. in case of
every felony punishable under that 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 that act punishable. And
by 7 & 8 Geo. 4. c. 30. s. 26. in the case of every felony
punishable under that act, every principal in the second degree
shall be punishable with death, or otherwise, in the same man-
ner as a principal in the first degree is by that act punishable.
What circumstances will render a party liable as a princip?!
in particular offences, will be found stated in the subsequent
part of this work.
Proof with regard to accessories before the fact.] An acces-
sory before the fact, is defined by Lord |Hale to be one who,
being absent at the time of the offence committed, does yet
procure, counsel, command or abet another to commit a felony.
168 Aiders, Accessories, ifc.
I Hate, P. C. 615. But words amounting to a bare permission
will not render a man an accessory, as if A. says he will kill
J.S., and B. says " you may do your pleasure for me."
Hawk. P.O. b. 2. c. 29. s. 16. If the party was present when
the offence was committed, he is not an accessory, and if in-
dicted as such, he must be acquitted, but he may be subse-
quently indicted as an accessory. Gordon's case, 1 Leach, 515.
1 East, P. C. 352.
Proof with respect to accessories before the fact, by the in-
terven4ion of a third person.] A person may render him-
self an accessory by the intervention of a third person,
without any direct communication between himself and the
principal. Thus if A. bid his servant hire somebody to murder
B., and furnish him with money for that purpose, and the
servant hires C., a person whom A. never saw or heard of,
who commits the murder, A. is an accessory before the fact.
Macdaniel's case, Foster, 125. Hawk. P. C. b. 2. c. 29. ss. 1 . 11.
1 Russell, 31.
Proof with regard to accessories before the fact degree of
incitement.] Upon the subject of the degree of incitement and
the force of persuasion used, no rule is laid down. That it was
sufficient to effectuate the evil purpose is proved by the result. On
principle, it seems that any degree of direct incitement, with the
actual intent to procure the consummation of the illegal object,
is sufficient to constitute the guilt of the accessory ; and there-
fore that it is unnecessary to show that the crime was effected
in consequence of such incitement, and that it would be no
defence to show that the offence would have been committed,
although the incitement had never taken place. 2 Stark. Ev.
8. "Zd ed.
Proof with regard to accessories before the fact principal
varying from orders given to him.'] With regard to those cases
where the principal varies, in committing the offence, from the
command or advice of the accessory, the following rules are
laid down by Sir Michael Foster. If the principal totally and
substantially varies ; if, being solicited to commit a felony of
of one kind, he wilfully and knowingly commits a felony of
another, he will stand single in that offence, and the person
soliciting will not be involved in his guilt. But if the principal
in substance complies with the command, varying only in the
circumstances of time, or place, or manner of execution, in these
cases the person soliciting to the offence, will, if absent, be
an accessory before the fact, or if present, a principal. A. com-
mands B. to murder C. by poison ; B. does it by a sword or
other weapon, or by some other means ; A. is accessory to this
murder, for the murder of C. was the principal object, and
Aiders, Accessories, 8fc. 169
that object is effected. So where the principal goes beyond the
terms of the solicitation, if in the event the felony committed
was a probable consequence of what was ordered or advised, the
person giving such order or advice, will be an accessory to that
felony. A. upon some affront given by B., orders his servant
to waylay him and beat him- The servant does so, and B. dies
of the beating ; A. is accessory to this murder. A. solicits B.
to burn the house of C. ; he does so, and the flames catching
the house of D., that also is burnt. A. is an accessory to this
felony. The principle in all these cases is, that though the
event might be beyond the original intention of the accessory,
yet as in the ordinary course of things, that event was the
probable consequence of what was done under his influence,
and at his instigation, he is in law answerable for the offence.
Foster, 369, 370, see also 1 Hale, P. C. 617. Hawk. P. C. b. 2.
<?. 29. s. 18.
Where the principal wilfully commits a different crime
from that which he is commanded or advised to commit, the
party counselling him, will not, as above stated, be guilty as
accessory. But whether, where the principal by mistake, com-
mits a different crime, the party commanding or advising him
shall stand excused, has been the subject of much discussion.
It is said by Lord Hale, that if A. command B. to kill C., and
B. by mistake kills D., or else in striking at C. kills D., but
misses C. ; A. is not accessory to the murder of D., because
it differs in the person. 1 Hale, P. C. 617, citing 3 Inst. 51,
Saitnders's case, Plan-. Com. 475. The circumstances of Saun-
ders's case, cited by Lord Hale, were these : Saunders, with the
intention of destroying his wife, by the advice of one Archer,
mixed poison in a roasted apple, and gave it to her to eat, and
the wife having eaten a small part of it, and given the remainder
to their child, Saunders, making only a faint attempt to save the
child, whom he loved and would not have destroyed, stood by
and saw it eat the poison, of which it soon afterwards died.
It was held that though Saunders was clearly guilty of the
murder of the child, yet Archer was not accessory to the
murder.
Upon the law as laid down by Lord Hale, and upon Saun-
ders's case, Mr. Justice Foster has made the following ob-
servations, and has suggested this case : B. is an utter stranger
to the person of C., and A. therefore takes upon himself to
describe him by his stature, dress, &c., and acquaints B. when
and where he may probably be met with. B. is punctual at
the time and place, and D., a person in the opinion of B.
answering the description, unhappily coming by, is murdered
under a strong belief on the part of B., that he is the man
marked out for destruction. Who is answerable ? Undoubtedly
A.; the malice on his part egreditur personam. The pit,
which he, with a murderous intention, dug for C., D. fell into
170 Aiders, Accessories, $c.
and perished. Through his guilt, B. not knowing the person
of C., had no other guide to lead him to his prey than the de-
scription of A., and in following this guide ha fell into a mis-
take, which it is great odds any man in his circumstances
might have fallen into. " I, therefore," continues the learned
writer, " as at present advised, conceive that A. was answer-
able for the consequences of the flagitious orders he gave,
since that consequence appears in the ordinary course of tilings
to have been highly probable." Fosier, 370.
With regard to Archer's cate, the same learned author ob-
serves, that the judges did not think it advisable to deliver him
in the ordinary course of justice by judgment of acquittal, but
for example's sake, kept him in prison by frequent reprieves from
session to session, till he had procured a pardon from the crown.
Ibid. 371.
Mr. Justice Foster then proposes the following criteria, as
explaining the grounds upon which the several cases falling
under this head will be found to rest. Did the principal com-
mit the felony he stands charged with, under the flagitious
advice, and was the event in the ordinary course of things', a
probable consequence of that felony 1 Or did he, following the
suggestions of his own wicked heait, wilfully and knowingly
commit a felony of another kind or upon a different subject "?
Foster, 372, see also Hawk. P. C. b. 2. c. 29. s. 22.
If, before the commission of the offence by the principal, the
accessory countermands him, and yet the principal proceeds to
the commission of the offence, he who commanded him will not
be guilty as accessory. 1 Hate, P. C. 618.
Proof with regard to accessories before the fttct what offences
admit of accessories.] With regard to the particular offences
which admit of access.-iies, it. is held that in high treason there
can be no accessories, but all are principals, every act of in-
citement, aid or protection, which in felony would render a
man an accessory before or after the fact, in the case of high
treason, (whether by common law or by statute) making
him a principal. Foster, 341, 4 Bl. Com. 35. So in all
offences below felony there can be no accessories. 1 Hale, P. C.
613, 4 BL. Com. 36. It is said in the older books, that in
forgery all are principals, (see 2 East, P. C. 973.) but this, it
appears, must be understood of forgery at common law, which
is a misdemeanor. Id. Where a statute creates a new felony,
without mentioning accessories, yet the law respecting acces-
sories is applicable to the new offence. 1 Hale, P. C. 613, 614.
2 East, P. C. 973. 1 Rnsselt, 32.
Accessories before the fact trial and punishment.'] Before
the statute 7 Geo. 4. c. 64, accessories could not be punished
until the guilt of the principal offender was established. It was
Aiders, Accessories, fyc. 171
necessary, therefore, either to try them after the principal had
been convicted, or upon the same indictment with him, and
the latter was the usual course. 1 Russell, 36. But now
by the 9th section of the above statute, it is enacted, that if any
person shall-counsel, procure, or command any other person to
commit any felony, whether the same shall be a felony at
common law, or by virtue of any statute or statutes made or
to be made, the person so counselling, procuring, or com-
manding, shall be deemed guilty of felony, and may be indicted
and convicted, either as an accessory before the fact to the
principal felony, together with the principal felon, or after the
conviction of the principal felon, or may be indicted and con-
victed of a substantive felony, whether the principal felon shall
or shall not have been previously convicted, or shall or shall not
be amenable to justice, and may be punished in the same
manner as an accessory before the fact to the same felony, if
convicted as an accessory, may be punished ; and the offence of
the person so counselling, procuring, or commanding, howso-
ever indicted, may be inquired of, tried, determined, and
punished by any court which shall have jurisdiction to try the
principal felon, in the same manner as if such offence had
been committed at the same place as the principal felony, al-
though such offence may have been committed either on the
high seas, oral any place on land, whether within his Majesty's
dominions or without.
And that in case the principal felony shall have been com-
mitted within the body of any county, and the offence of coun-
selling, procuring, or commanding, shall have been committed
within the body of any other county, the last mentioned offence
may be inquired of, tried, determined, and punished in either
of such counties : provided always, that no person, who shall
be once duly tried for any such offence, whether as an accessory
before the fact or as for a substantive felony, shall be liable to
be again indicted or tried for the same offence.
By stat. 7 & 8 G. 4. c. 29. s. 61, every accessory before the
fact, in case of any felony under that act, shall be punishable
with death or otherwise, in the same manner as a principal in
the first degree ; and there is a similar provision in 7 & 8 G . 4.
c. 30. s. 26. with regard to offences under that act.
Proof with regard to accessories after the fact.] An acces-
sory after the fact, says Lord Hale, is where a person knowing
the felony to be committed by another, receives, relieves, com-
forts, or assists the felon. 1 Hale, P. C. 618. But a feme
covert does not become an accessory by receiving her husband.
This, however, is the only relationship which will excuse such
an act, the husband being liable for receiving the wife. 1 Hale,
P. C. 621. So if a master receives his servant, or a servant
his master, or a brother his brother, they are accessories, in the
i 2
172 Aiders, Accessaries, Sfc.
same manner as a stranger would be. Hawk. P. C. b. 2. c. 29.
. 34. If husband and wife knowingly receive a felon, it shall be
deemed to be the act of the husband only. 1 Hale, P. C. 621.
With regard to the acts which will render a man guilty as
an accessory after the fact, it is laid down, that generally, any
assistance whatever, given to a person known to be a felon, in
order to hinder his being apprehended or tried, or suffering the
punishment to which he is condemned, is a sufficient receipt for
this purpose ; as where a person assists him with a horse to
ride away with, or with money or victuals to support him in his
escape; or where any one harbours and conceals in his house
a felon under pursuit, in consequence of which, his pursuers
cannot find him ; much more, where the party harbours a lelon,
and tlie pursuers dare not take him. Hawk. P. C. h. 2. c. 29. s. 26.
See Lee's case, 6 C. 5f P. 536. So it appears to be settled that,
whoever rescues a felon imprisoned for the felony, or voluntarily
suffers him to escape, is guilty as accessory. Id. s. 27. In the
same manner conveying instruments to a felon, to enable him to
break gaol, or to bribe the gaolor to let him escape, makes the
party an accessory. But to relieve a felon in gaol with clothes
or other necessaries is no offence, for the crime imputable to this
species of accessory is the hindrance of public justice, by assist-
ing the felon to escape the vengeance of the law. 4 Bl. Com. 38.
The felony must be complete at the time of the assistance
given, else it makes not the assistant an accessory. As if one
wounded another mortally, and after the wound given, but
before death ensued, a person assisted or removed the delin-
quent, this did not, at common law, make him accessory to the
homicide, for till death ensued, there was no felony committed.
Hawk. P. C. fr.2. c.29.5. 35. 4 BL Com. 38.
In order to render a man guilty as accessory, he must have
notice either express or implied, of the principal having com-
mitted a felony. Hawk. P. C. b. 2. c. 29. s. 32. It was
formerly considered, that the attainder of a felon, was a notice
to all persons in the same county of the felony committed, but
the justice of this rule has been denied. Hawk. P. C. b. 2.
c. 29. s. 83. It was observed by Lord Hardwicke. that though
this may be some evidence to a jury of notice to an acces-
sory in the same county, yet it cannot, with any reason or
justice, create an absolute presumption of notice. Bttrridge's
case, 3 P. Wms. 495.
With regard to the trial of accessories after the fact, (vide
ante, p. 170, as to the former law,) it is enacted by the 7 G. 4.
c. 64. s. 10. " That if any person shall become an accessory
after the fact, to any felony, whether the same be a felony at
common law, or by virtue of any statute or statutes made or to
be made, the offence of such person may be inquired of, tried,
determined and punished by any court which shall have juris-
diction to try the principal felon, in the same manner as if the
Aiders, Accessories, ifc. 173
act by reason whereof such person shall have become an acces-
sory, had been committed at the same place as the principal
felony, although such act may have been committed either on
the high seas, or at any place on land, whether within his
majesty's dominions or without. And that in case the principal
felony shall have been committed within the body of any county,
and the act by reason whereof any person shall have become
accessory, shall have been committed within the body of any
other county, the offance of such accessory may be inquired of,
tried, determined, and punished in either of such counties.
Provided always, that no person who shall be once duly tried
for any offence of being an accessory, shall be liable to be again
indicted or tried for the same offence."
Since the above statute an accessory after the fact may be
tried, either at the same time with the principal felon, or after
his conviction. If the principal has been formerly convicted,
and that conviction is alleged in the indictment, it must be
proved in the ordinary way by an examined copy. The
conviction appears to be evidence, not only of the fact of the
principal having been convicted, but also to be prima facie evi-
dence, that he was guilty of the offence of which he was so
convicted. Foster, 365, 2 Stark. Ev. 7. Id ed. and vide post,
title " Receiving stolen goods."
If A. be indicted as accessory to B. and C., he may be con-
victed on evidence that he was accessory to C. only. Wallis's
case, 1 Salk. 334.
An accessory may avail himself of every matter, both of law
and fact, to controvert the guilt of his principal, and the record
of the conviction of the principal is not conclusive against him.
Foster , 365, Smith's case, 1 Leach, 288, Prosser's case, Id. 290,
(H.) 1 Russell, 39, Cook v. Field, 3 Esp. 134. and see post,
title " Receiving stolen goods."
Wherever a variance is material as to the principal, it is
material and available as to the accessory ; and rice versa,
where a variance is immaterial to the principal it is immaterial
to the accessory. 2 Stark. Ev. 9. 2d ed. Hawk. P. C. b. 2. c.26.
s. 178, 9.
The prisoner ought not to be charged in the same indict-
ment, both as principal and receiver ; and if he be so charged,
the court will put the prosecutor to his election. Galloway's
case, 1 Moody, C. C. 234. Madden' s case, Id. 277. Cough's
case, I Moo. If R. 71.
174
PRACTICE.
Arraigimetit .... 174
Plea imparlance traverse . . . 175
Quashing indictment . . . 177
Opening the case .... 177
Discharge of Jury .... 177
Former conviction . . . .178
Trial . . . . .179
Verdict . . . . .179
Judgment .... 179
Costs, expenses, and rewards . . .180
Arraignment in general.'] A person indicted for felony must
in all cases appear in person and be arraigned, but this does
not apply to misdemeanors. 1 Chitt. C. L. 414. 4 Bl. C.
375.
If the prisoner upon his arraignment refuse to answer, it
becomes a question whether it is of malice, or whether he is
mute by the visitation of God. The court will in such case
direct a jury to be impanelled, who are immediately returned,
Jones's case, 1 Leach, 102, from amongst the by-standers,
1 Chitty, C. L. 424 ; and where a verdict of mute by the visita-
tion of God is returned, the court will order the trial to proceed,
if the prisoner is of competent intellect, and can be made to
understand the nature of the proceedings against him. Thus
where it appeared that a prisoner who was found mute, had been
in the habit of communicating by means of signs, and a witness
was called who slated that he was capable of understanding
her by means of signs, he was arraigned, put upon his trial,
convicted of simple larceny, and received sentence of trans-
portation. Jones's case, 1 Leach, 102. 1 Russ. 7.
If the prisoner stands mute of malice, or will not answer
directly to the indictment, or information, (for Ireason,
felony, piracy, or misdemeanor,) it is enacted by the 7 & 8
G. 4. c. 28. s. 2. that in every such case it shall be lawful for the
court, if it shall so think fit, to order the proper officer to enter
a plea of " not guilty," on behalf of such person, and the plea
so entered, shall have the same effect as if such person had
actually pleaded the same. Where the prisoner refused to plead
on the ground lhat he had already pleaded to an indictment for
Practice. 175
the same offence, (which had been tried before a court not
having jurisdi tion,) it was held that the court might order a
plea of " not guilty," to be entered for him under the above
statute. Bitton's case, 6 C. <Sf P. 92.
In cases of insanity, it is enacted by the 39 & 40 G. 3.
c. 94. s. 2. that if a person indicted for any offence appears
insane, the court may, on his arraignment, order a jury to be
impanelled to try the sanity, and if they find him insane, may
order the finding to be recorded, and the insane person to be
kept in custody till his majesty's pleasure be known. And by
the same statute, s. 1, if upon the trial for treason, murder, or
felony, insanity at the time of committing the offence is given,
in evidence, and the jury acquit, they must be required to find
specially whether insane at the time of the commission of the
offence, and whether he was acquitted on that account ; and if
they find in the affirmative, the court must order him to be kept
in custody till his majesty's pleasure be known.
The above enactment applies to misdemeanors as well as to
felonies. Little's case, Russ. S; Ry. 430.
By the stat. 7 & 8 G. 4. c. 28. s. 1. it is enacted,
" That if any person not having privilege of peerage, being
arraigned upon any indictment for treason, felony, or piracy,
shall plead thereto a plea of not guilty, he shall by such
plea, without any further form, be deemed to have put himself
upon the country for trial, and the court shall in the usual
manner order a jury for the trial of such person accordingly."
Plea imparlance traverse.] As to imparlance, it is
enacted by the stat. 60 G. 3. and 1 G. 4. c. 4. " That,
where any person shall be prosecuted in his majesty's courts
of King's Bench (at Westminster or Dublin,) for any
misdemeanor, either by information or by indictment there
found, or removed into that court, and shall appear in term
time in either of the said courts respectively, in person, to
answer to such indictment or information, such defendant,
upon being charged therewith, shall not be permitted to im-
parle to a following term ; but shall be required to plead or
demur thereto, within four days from the time of his or her
appearance ; and in default of his or her pleading or demurring
within four days as aforesaid, judgment may be entered against
the defendant for want of a plea ; and in case such defendant
shall appear to such indictment or information by his or her
clerk or attorney in court, it shall not be lawful for such de-
fendant to imparle to a following term, but a rule requiring
such (J 'endant to plead may forthwith be given ; and a ple<w
or demurrer to such indictment or information enforced, or
judgment by default entered thereupon, in the same manner as
might have been done before the passing of this act, in cases
176 Practice.
where the defendant had appeared to such indictment or in-
formation by his or her clerk in court, or attorney, in a previous
term."
But by sect. 2. the court, or a judge, may, on sufficient
cause shown, allow further time for the defendant to plead 01
demur.
By sect. 3. it is enacted, " That where any person shall
be prosecuted for any misdemeanor, by indictment, at any
session of the peace, session of oyer and terminer, great session,
or session of gaol delivery, within that part of Great Britain
called England, or in Ireland, having been committed to
custody, or held to bail to appear to answer for such offence,
twenty days at the least before the sessions at which such indict-
ment shall be found, he or she shall plead to such indictment,
and trial shall proceed thereupon 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 for re-
moving such indictment into his Majesty's Courts of King's
Bench at Westminster or in Dublin, respectively, shall be de-
livered at such session before the jury shall be sworn for such
trial." And by sect. 4. it is enacted, that the writ of certiorari
may issue as well before indictment found as after.
And by sect. 5. it is enacted, " That where any person shall
be prosecuted for any misdemeanor, by indictment, at any session
of the peace, session of oyer and terminer, great session, or
session of gaol delivery, within the part of Great Britain called
England, or in Ireland, not having been committed to custody ,
or held to bail to appear to answer such offence, twenty days
before the session at which such indictment shall be found, but
who shall have been committed to custody, or held to appear
to answer such offence at some subsequent session, or shall
have received notice of such indictment having been found,
twenty days before such subsequent session, he or she shall
plead to such indictment, at such subsequent session, and trial
shall proceed thereupon 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 for removing
such indictment into his Majesty's Courts of King's Bench at
Westminster or in Dublin, respectively, shall be delivered at
such last mentioned sesiion, before the jury shall be sworn for
such trial."
And by sect. 7. it is also provided, "That the court at any ses-
sion of the peace, session of oyer and terminer, great session, or
session of gaol delivery respectively, upon sufficient cause shown,
may allow further time for pleading to the indictment or for
the trial." .
Where a person pleads a plea of autrefois convict, the court
will not reject it on the ground of informality, but will assign
Practice. 177
counsel to put it into a formal shape, and will postpone the
trial. Chamberlain's case, 6 C. 6f P. 93.
Quashing indictments.] Where an indictment is so defective
that in case of conviction no judgment could be given, the
court will in general quash it. The application to quash must
be made in the court in which the bill is fouod, except in
cases of indictments at sessions, and in other inferior courts, in
which cases the application is made to the Court of King's
Bench, the record being previously removed there by certiorari.
Archb. C. L. 68. 4t/i ed. If the application is made on behalf
of the defendant, the court will not grant it unless the defect
is very clear and obvious, but will leave him to demur, i Chitty,
C. L. 299.
Where the indictment comes on for trial as a nLi prius
record, and it is found to be so framed that no judgment can
be given upon it, the judge, it is said, will order it to be struck
out of the paper, and if the jury have been sworn, will direct
them to be discharged. Carr. Suppl. C. L. 82. '2d ed. But
counsel will not be allowed to argue at length, at nisi prius,
the invalidity of an indictment, for the purpose of inducing the
court not to try it, though it may be convenient to permit them
to suggest the point. Abraham'* case, 1 Moody Rob. 7.
Opening the case.] In opening the case in prosecutions for
felony, it is usual to make the statement in general terms.
Where the counsel for the prosecution was proceeding to state
the details of a conversation which one of the witnesses had
had with the prisoner, upon an objection being taken, the
court said that in strictness he had a right to pursue that
course, Deering's case, 5 C. <Sf P. 165, and the same rule was
laid down in Swatkins's case, 4 C. $ P. 548, but the judges in
that case stated, that the correct practice was only to state the
general effect of the conversation. 5 C. <Sf P. 166, (.) In a
later case however, Parke B. after consulting AldersonB. ruled
that with regard to conversations, the fair course to the prisoner
was to state what it was intended to prove. Orrell's cane M. 6.
Lane. Sp. Ass. 1835.
Jury, discharge of.] If a juryman be taken ill so as to be,
incapable of attending through the trial, the jury may be dis-
charged and the prisoner tried de novo, or another juryman may
be added to the eleven ; but in that case the piisoner should
be offered his challenges over again, as to the eleven, and the
eleven should be sworn de iiovo. Edward's case, Russ. <?)' .Kt/.
224, 4 Taunt. 309, 2 Leach, 621, (n.) So if during the
trial the prisoner be taken so ill that he is incapable of remain-
ing at the bar, the judge may discharge the jury, and on the
i 5
178 Practice.
prisoner's recovery another jury may be returned; and the pro-
ceedings commenced de novo. The court, on a trial for a mis-
demeanor, doubted whether in such a case the consent of coun-
sel was sufficient to justify thfcrproceeding with the trial in the
absence of the defendant. Streek's case, coram Park, J . 2
C. 6f P. 413.
When the evidence on bo^h sides is closed, or after any
evidence has been given, the jury cannot be discharged unless
in case of evident necessity, (as in the cases above mentioned,)
till they have given in their verdict, but are to consider of it
and deliver it in open court. But the judges may adjourn
while the jury are withdrawn to confer, and may return to
receive the verdict in open court. 4 Bl. Com. 360. And when
a criminal trial runs to such length that it cannot be con-
cluded in one day, the court by its own authority may ad-
journ till next morning. But the jury must be kept together
(at least in a capital case) that they may have no com-
munication but with each other. 6 T. E. 527. Stephen's Sum-
mary, 313. It is a general rule that upon a criminal trial
there can be no separation of the jury after the evidence is
entered upon, and before a verdict is given. Langhorns cuse,
7 How. St. 7V. 497. Hardy's case, 24 Id. 414. In the latter
case, on the first night of the trial, beds were provided for the
jury, at the Old Bailey, and the court adjourned till the next
morning. On the second night, with the consent of the counsel
on both sides, the court permitted the jury to pass the night at a
tavern, whither they were conducted by the under-sheriffs and
four officers sworn to keep the jury. Id. 572.
It is not a sufficient ground for discharging a jury, that a
material witness for the crown is not acquainted with the
nature of an oath, though this is discovered before any evidence
given. Wade's case, I Moody, C. C. 86.
If it should appear in the course of a trial that the prisoner
is insane, the judge may order the jury to be discharged, that
he may be tried after the recovery of his understanding. 1 Hate,
P. C.34, 18 Sf. Tr. 411, RUM. Sf Ru. 431, (n.)
On a trial for manslaughter, when it was discovered, after
the swearing of the jury, that the surgeon who had examined
the body was absent, the prisoner praying that the jury might
be discharged ; they were discharged accordingly, and the pri-
soner was tried the next day. Stokes's case, 6 C. fy P. 151.
Former conviction.'] By stat. 7 & 8 Geo. 4. c. 28. s. 11.
after reciting that it is expedient to provide for the more ex-
emplary punishment of offenders who commit felony after a
previous conviction for felony, whether such conviction shall
have taken place before or after the commencement of this act ;
it is enacted, " That if any person shall be convicted of any
felony, not punishable with death, committed after a previous
Practice. . 179
conviction for felony, such person shall, on such subsequent con-
viction, be liable, at the discretion of the court, to be transported
beyond the seas for life, or for any term not less than seven
years, or to be imprisoned for any term not exceeding four
years, and, if a male, to be once, twice, or thrice publicly or
privately whipped (if the court shall so think fit), in addition to
such imprisonment ; and in an indictment for any such felony
committed after a previous conviction for felony, it shall be suffi-
cient to state that the offender was at a certain time and place
convicted of felony, without otherwise describing the previous
felony ; and a certificate containing the substance and eflect only
(omitting the formal part) of the indictment and conviction for
the previous felony, purporting to be signed by the clerk of the
court, or other officer having the custody of the records of the
court where the offender was first convicted, or by the deputy of
such clerk or officer (for which certificate a fee of six shillings
and eight pence, and no more shall be demanded or taken),
shall, upon proof of the identity of the person of the offender,
be sufficient evidence of the first conviction, without proof of
the signature or official character of the person appearing to
have signed the same."
After some discussion and difference of opinion amongst the
judges, it has been settled that the allegation of a previous con-
viction is to be considered as a part of the indictment ; that the
prisoner when called upon to plead, must plead to it as such,
and that the jury must be charged at the outset of the inquiry
with the whole matter, which they have to try. Lewin, C. C.
148.
With regard to the time of proving a previous conviction,
it has been held by the judges that it must be proved before
the prisoner is called upon for his defence. Jones's case, 6 C.
4 P. 391.
Trial.] The judges of assize have authority, and ought to
try indictments found at the quarter sessions, and transmitted
to thtui for trial by the justices. Wetherell's case, Russ. 6f Ry.
381. Lewin, C. C. 208. The judge may postpone a trial for
felony as well as for a misdemeanor. Meade's case, Lewin,
C. C. 315.
Verdict.'] If by mistake the jury deliver a wrong verdict,
(as where it is delivered without the concurrence of all) and it
is recorded, and a few minutes elapse before they correct the
mistake, the record of the verdict may also be corrected.
Parkin's rase, 1 Moody, C.C. 46.
The jury have a right to find either a general or a special
verdict. 4 Bl. Com. 361. 1 CJntty, C. L. 637. 642.
Judgment.] By stat. 11 Geo. 4. and 1 Will. 4. c. 70. s. 9.
180 Practice.
it is enacted, " that upon all trials for feloniesor misdemeanors,
upon any record in the Court of King's Bench, judgment may
be pronounced during the sittings or assizes by the judge before
whom the verdict shall be taken, as well upon the person who
shall have suffered judgment bj default or confession upon the
same record, as upon those who shall be tried and convicted,
whether such persons be present or not in court, excepting only
where the prosecution shall be by information filed by leave of
the Court of King's Bench, or such cases of informations filed
by his majesty's attorney-general, wherein the attorney-general
shall pray that the judgment may be postponed ; and the judg-
ment may be postponed ; and the judgment so pronounced
shall be indorsed upon the record of nisi prius, and afterwards
entered upon the record in court, and shall be of the same force
and effect as a judgment of the court, unless the court shall,
within six days after the commencement of the ensuing term,
grant a rule to show cause why a new trial should not be had,
or the judgment amended ; and.it shall be lawful for the judge
before whom the trial shall be had, either to issue an immediate
order or warrant for committing the defendant in execution, or
to respite the execution of the judgment, upon such terms as he
shall think fit, until the sixth day of the ensuing term ; and in
case imprisonment shall be part of the sentence, to order the
period of imprisonment to commence on the day on which the
party shall be actually taken to, and confined in prison."
An offender, upon whom sentence of death has been passed,
ought not, while under that sentence, to be brought up to re-
ceive judgment for another felony, although he was under that
sentence when he was tried for the other felony, and did not
plead his prior attainder. Anon. Russ. fy lly. 268.
Costs, Expenses, and Eeu.-ardt.'] As to costs, expenses, and re-
wards in cases of felony, see stat. 7 G. 4. c.64. s. 22. ante, p. 91.
Where a prisoner did not reach the assize town until after
the grand jury were discharged, Hullock, B. after referring to
the above statute, ordered the witnesses their expenses. Anon.
Lewin, C. C. 128. Where in consequence of the absence of
the prosecutor, the trial was put off, and the prisoner applied
for costs, Liltledale, J. refused the application, saying, that
costs were never allowed to a prisoner charged with felony.
Cow's case, Levin, C. C. 131. 4 C. $ P. 251. S. C, Where
the prisoner in a case of felony was at large and did not appear,
the expenses of the prosecutor and witness, who had been bound
over to appear by the coroner, were allowed. Planning' s case,
Lewin, C. C. 133. Anon. Id. 134. Upon an indictment for felony,
removed by certiorari into the King's Bench, and tried at nisi
prius, no costs can be allowed by this statute eilher there or by
the King's Bench. 11. v. Treasurer of Exeter, 5 M. <3f R. 167.
The usual expenses of prosecution may be allowed by the
Practice. 181
proper officers of the court, but the fees attendant on the exa-
mination, and the allowance to the prosecutor and his witnesses,
on attending before the magistrate, can only be allowed on the
production of the ceitificate mentioned in the act ; and the
court ha.s no power to allow the expenses of witnesses attending
before the coroner previous to the indictment. Rees' case,
5 C. $ P. 302, Taylor's case, 5 C. ty P. 301. No costs will
be allowed before the trial has actually taken place, as when
it is postponed. Hunter's case, 3 C. $f P. 591.
The prosecutor and his witnesses being bound over, attended
at the assizes and preferred an indictment, which was found.
The prisoner, who had been discharged by mistake, had ab-
sconded. Mr. Justice Taunton said, that under the authority
of the word " prosecute" by the statute, he thought he might
order the expenses, but that if no bill had bsen preferred, he
thought he should have had no authority. Robey's case, 5 C.
$ P. 552.
As to the expenses in cases of misdemeanor, see slat. 7 G. 4.
c. 64. s. 23. ante, p. 92.
Where an indictment was removed from the sessions by
certwrari, at the instance of the prosecutor, and tried at nisi
prius, and the prosecutor, who was not under recognizance,
caused himself and his witnesses to be subpoenaed and paid
their expenses, it was held that neither the court at nisi prius
nor the King's Bench could give costs under the above statute.
Johnson's case, Moo., C. C. 173, Richard's case, 8 B. Sf C. 420.
In the case of misdemeanors, not within the act, if the de-
fendant submits to a verdict on an understanding that he shall
not be brought up for judgment, the prosecutor is not, without
a special agreement, entitled to costs. Ruuson's case, 2 B. $ C.
598, 1 D. $#. 124. S.C.
An indictment for endeavouring to conceal the birth of a
child is not within the above clause, and no expenses can be
allowed ; Anon. Lewin, C. C. 45 ; which has led to a practice
reprobated as highly cruel and improper, of indicting the party
in the first instance for murder. Ibid.
Mode of payment by the treasurer of the county, (Sfc.] By the
stat. 7 G. 4. c. 64. s. 24. it is enacted, " That every order for
payment to any prosecutor, or other person as aforesaid, shall
be forthwith made out and delivered by the proper officer of
the court, unto sucli prosecutor, or other person, upon being
paid for the same the sum of one shilling for the prosecutor,
and sixpence for each other person, and no more, and except
in the cases therein after provided for, shall be made upon the
treasurer of the county, riding, or division in which the offence
shall have been committed, or shall be supposed to have been
committed, who is thereby authorised and required, upon sight
of every such order, forthwith to pay to the person named
182 Practice.
therein, or to any one duly authorised to receive the same on
his or her behalf, the money in such order mentioned, and shall
be allowed the same in his accounts."
With respect to places that do not contribute to any county
rate.] The stat. 7 G. 4. c. 64. s. 25. after reciting that "whereas
felonies, and such misdemeanors as are thereinbefore enume-
rated, may be committed in liberties, franchises, cities, towns
and places, which do not contribute to the payment of any
county rate, some of which raise a rate in the nature of a
county rate, and others have neither any such rate, nor any
fund applicable to similar purposes, and it is just that such
liberties, franchises, cities, towns and places, should be
charged with all costs, expenses, and compensations, ordered
by virtue of this act, in respect of felonies and such misde-
meanors, committed therein respectively," enacts "That all
sums directed to be paid by virtue of this act, in respect of
felonies, and of such misdemeanors as aforesaid, committed or
supposed to have been committed in such liberties, franchises,
cities, towns and places, shall be paid out of the rate in
the nature of a county rate, or out of any fund applicable to
similar purposes, where there is such a rate or fund, by the
treasurer or other officer having the collection or disbursement
of such rate or fund ; and where there is no such rate or fund
in such liberties, franchises, cities, towns and places, shall be
paid out of the rate or fund for the relief of the poor of the
parish, township, district, or precinct therein, where the offence
was committed or supposed to have been committed, by the
overseers or other officers having the collection or disbursement
of such last mentioned rate or fund, and the order of court shall
in eveiy such case be directed to such treasurer, overseers, or
other officers respectively, instead of the treasurer of the county,
riding, or division, as the case may require."
Expenses of prosecution for capital offences in exclusive juris-
(Hctians.'] By stat. 60 G. 3. c. 14. s. 3. it is provided, " That
in all cases of any commitment to the county gaol, under the
authority of this act, all the expenses to which the county may
be put by reason of such commitment, together with all such
expenses of the prosecution and witnesses as the judge shall
be pleased to allow, by virtue of any law now in force, shall
be borne and paid by the said town, liberty, soke or place,
within which such offence shall have been committed, in like
manner, and to be raised by the same means whereby such
expenses would have been raised and paid, if the offender had
been prosecuted and tried within the limits of such exclusive
jurisdiction, and that the judge or court of oyer and terminer,
and general gaol delivery, shall have full power and authority to
make such order touching such costs and expenses as such
judge or court shall deem proper, and also to direct by whom
Practice. 188
and in what manner such expenses shall in the first instance be
paid and borne, and in what manner the same shall be repaid
and raised within the limits of such exclusive jurisdiction, in
case there be no treasurer or other officer within the same, who,
by the custom and usage of such place ought to pay the same
in the first instance."
Peicardsfor the apprehension of offenders.] By stat. 7 G. 4.
c. 64. s. 28. it is enacted, " That where any person shall appear
to any court of oyer and terminer, gaol delivery, superior cri-
minal court of a county palatine, or court of great sessions, to
have been active in or towards the apprehension of any person
charged with murder, or with feloniously and maliciously
shooting at, or attempting to discharge any kind of loaded fire-
arms at any other person, or with stabbing, cutting, or poison-
ing, or with administering any thing to procure the miscarriage
of any woman, or with rape, or with burglary, or felonious
house-breaking, or with robbery on the person, or with arson,
or with horse stealing, bullock stealing, or sheep stealing, or
with being accessory before the fact to any of the offences
aforesaid, or with receiving any stolen property, knowing the
same to have been stolen, every such court is hereby authorised
and empowered, in any of the cases aforesaid, to order the
sheriff of the county in which the offence shall have been
committed, to pay to the person or persons who shall appear
to the court to have been active in or towards the apprehension
of any person charged with any of the said offences, such sum
or sums of money as to the court shall seem reasonable and suffi-
cient, to compensate such person or persons for his, her, or
their expenses, exertions, and loss of time, in or towards such
apprehension ; and where any person shall appear to any court
of sessions of the peace, to have been active in or towards the
apprehension of any party charged with receiving stolen pro-
perty, knowing the same to have been stolen, such court shall
have power to order compensation to such person, in the same
manner as the other courts herein before mentioned : provided
always, that nothing herein contained shall prevent any of the
said courts from also allowing to any such persons, if prose-
cutors or witnesses, such costs, expenses, and compensation, as
courts are by this act empowered to allow to prosecutors and
witnesses respectively."
And by the stat. 7 G. 4. c. 64. s. 29. it is enacted, " That
every order for payment to any person, in respect to such ap-
prehension as aforesaid, shall be forthwith made out and de-
livered by the proper officer of the court unto such person, upon
being paid for the same the sum of five shillings, and no more ;
and the sheriff of the county for the time being is hereby au-
thorised and required, upon sight of such order, forthwith to
pay to such person, or to any one duly authorised on his or her
184 Practice.
behalf, the money in such order mentioned ; and every such
sheriff may immediately apply for repayment of the same
to the commissioners of his majesty's treasury, who, upon
inspecting such order, together with the acquittance of the
person entitled to receive .the money thereon, shall forthwith
order repayment to the sheriff of the money so by him paid,
without any fee or reward whatsoever."
With regard to the offences to which the above section ex-
tends, it was held by Hullock that the case of sacrilege was
not included, not coming within the words burglary or house-
breaking. Robinson's case, Lewin, C. C. 129. And on the
authority of this case, Holland, B. refused a similar application,
though both he and Parke, J. would otherwise have been dis-
posed to put a different construction upon Ihe statute. Ib.
Allowance to the widows and families ef persons killed in
endeavouring to apprehend offenders.'] By the stat. 7 G. 4.
c. 64. s. 30. it is enacted, " That if any man shall happen to be
killed in endeavouring to apprehend any person who shall be
charged with any of the offences herein before last mentioned,
[in sect. 28.] it shall be lawful for the court before whom such
person shall be tried, to order the sheriff of the county to pay to
the widow of the man so killed, in case he shall have been
married, or to his child or children in case his wife shall be
dead, or to his father or mother, in case he shall have left
neither wife nor child, such sum of money as to the court in its
discretion shall seem meet ; and the order for payment of such
money shall be made out and delivered by the proper officer of
the court unto the party entitled to receive the same, or unto
some one on his or her behalf, to be named in such order by
the direction of the court, and every such order shall be paid by
and repaid to the sheriff in the manner herein before mentioned,"
[in the 29th section.]
The costs with regard to indictments for nuisances removed
by certiorari, are regulated by stat. 3 W. & M. c. 11. s. 3.
which enacts that if a defendant prosecuting a writ of certiorari,
(as mentioned in the act) be convicted, the Court of King's
Bench shall give reasonable costs to the prosecutor, if he be a
party grieved, or be a justice, &c. or other civil officer, who
shall prosecute for any fact that concerned them as officers to
prosecute or present. Persons dwelling near a steam engine,
which is a nuisance, have been held to be parties grieved
within this act. Dewsnap's case, 16 East, 194. The costs in
cases of nuisances arising from the furnaces of steam engines,
are governed by the statute 1 & 2 G. 4. c. 41.
185
VENUE.
Under this head will be stated the various statutory provisions
which have been lately made, with regard to the venue in dif-
ferent cases, and the decisions which have occurred upon the
construction of those provisions. Some few general rules also
relating to venue generally will be given. The law respect-
ing venue in particular indictments will be found stated under
the proper heads.
Offences committed on the boundary of counties, or partly in
one county and partly in another."] By stat. 7 G. 4. c. 64.
s. 12. (repealing 59 G. 3. c. 96,) it is enacted, that, where
any felony or misdemeanor shall be committed on the boundary
or boundaries of two or more counties, or within the distance
of five hundred yards of any such boundary or boundaries, or
shall be begun in one county and completed in another, every
such felony or misdemeanor may be dealt with, inquired of,
tried, determined, and punished, in any of the said counties, in
the same manner as if it had been actually and wholly com-
mitted therein.
It has been held that this section does not extend to trials in
limited jurisdictions, but only to county trials. Welsh's case,
1 Moody, C. C. 175.
Offences committed on persons or property in coaches employed
on journeys, or in vessels employed in inland navigation.] By
the stat. 7 CJ. 4. c. 64. s. 13. for the more effectual prosecution
of offences committed during journeys from place to place,
it is enacted, that where any felony or misdemeanor shall be
committed on any person, or on or in respect of any property
in or upon any coach, wagon, cart or other carriage whatever,
employed in any journey, or shall be committed on any person,
or on or in respect of any property on board any vessel what-
ever, employed in any voyage or journey upon any navigable
river, canal or inland navigation, such felony or misdemeanor
may be dealt with, inquired of, tried, determined and punished
in any county through any part whereof such coach, wagon,
cart, carriage, or vessel shall have passed in the course of the
journey or voyage, during which such felony or misdemeanor
shall have been committed, in the same manner as if it had
been actually committed in such county ; and in all cases where
the side, centre, or other part of any highway, or the side, bank,
centre, or other part of any such river, canal, or navigation
shall constitute the boundary of any two counties, such felony
186 Venue.
or misdemeanor maybe dealt with, inquired of, tried, deter-
mined, and punished in either of the said counties through or
adjoining to, or by the boundary of any part whereof such
coach, wagon, cart, carriage, or vessel, shall have passed in
the course of the journey or voyage, during which such felony
or misdemeanor shall have been committed, in the same man-
ner as if it had been actually committed in such county.
Offences committed in the county of a city or town corporate.]
By stat. 38 G. 3. c. 52. it shall be lawful for any prosecutor to
prefer his bill of indictment for any offence committed or
charged to be committed within the county of any city or town
corporate, to the jury of the county next adjoining to the county
of such city or town corporate, sworn and charged to inquire
for the king for the body of such adjoining county, at any
session of oyer and terminer, or general gaol delivery, and every
bill of indictment found to be a true bill by such jury, shall be
valid and effectual in law, as if the same had been found to
be a true bill by any jury, sworn and charged to inquire for the
king for the body of the county of such city or town corporate.
Notwithstanding this statute, if the offence was in fact com-
mitted in the county of a city or town corporate, it must be so
stated in the indictment, though the bill is found in the ad-
joining county. Mellor's case, Russ. If Ry. 144. It need not
be averred in the indictment, that the county where the bill is
found is the next adjoining county. When the record is re-
gularly drawn up, it may appear in the memorandum of caption.
Goff's case, Russ. % Ry. 179.
If the bill has been found by a jury of the county of a city,
&c. any court of oyer and terminer, or gaol delivery, may order
it to be tried by a jury of the next adjoining county. 38 G. 3.
c. 52. s. 2. The court before which the offender is tried and
convicted, may order the judgment to be executed either in the
same county or in the county of a city in which the offence
was committed. 51 G. 3. c. 100. s. 1. As to the expenses in
these cases, see 38 G. 3. c. 52. s. 8., 51 G. 3. c. 100. s. 2.,
60 G. 3. c. 14. s. 3., 7 G. 4. c. 64. s. 25.
Where an application was made under the above statute, to
have an indictment for a misdemeanor, found by a grand jury of
the county of the city of York, tried in the county of York,
Parke, J.was of opinion that it would be necessary for the
bail to surrender the defendant to the custody of the city gaolor,
and that a habeas corpus should then issue to bring up the
body, and that the judge should then commit him to the county
gaol. The clerk of arraigns produced the indictment and
recognizances, and the judge (pursuant to the terms of the act)
made an order to have them filed amongst those of the county.
Roubattel's case, Lewin, C, C. 278.
Venue. 187
Offences committed in Wales.'] In case of offences com-
mitted in Wales, the venue might formerly have been laid in
the next adjoining English county, by the stat. 26 H. 8. c. 6.
s. 6. which was held to extend to felonies created after its en-
actment. Wyndham's case, Russ. &; Ry. 197. But that statute
is impliedly repealed by the 11 G. 4. & 1 W. 4. c. 70. s. 14.
and now, in indictments for offences committed in Wales, the
venue must, as in England, be laid in the county in which the
offence is committed, unless otherwise provided for by statute*
Archb. C.L. 20, 4th. ed.
Offences committed at sea, orwithin the admiral's jurisdiction.]
By 28 H. 8. c. 15. all treasons, felonies, robberies, murders,
and confederacies thereafter to be committed in or upon the sea,
or in any other haven, river, creek, or place where the admiral
or admirals have or pretend to have power, authority, or juris-
diction, shall be inquired, tried, heard, determined, andjudged,
in such shires and places in the realm, as shall be limited by
the king's commission or commissions to be directed for the
same in the like form and condition, as if such offence or offences
had been committed or done in or upon the land.
This statute being thought not to extend to felonies created
subsequently by statute, the following act was passed to provide
for these cases.
By stat. 39 G. 3. c. 37. s. 1. all and every offence and
offences, which, after the passing of that act shall be committed
upon the high seas, outof thebodyof anycounty of this realmshall
be, and they are declared to be of the same nature respectively,
and to be liable to the same punishment respectively, as if they
had been committed upon the shore, and shall be inquired of,
heard, tried, and determined, and adjudged in the same manner
as treasons, felonies, murders, and confederacies are directed
to be tried by the 26 H. 8.
By the larceny act, 7 & 8 G. 4. c. 29. s. 77. where any
felony or misdemeanor, punishable under that act shall be
committed within the jurisdiction of the admiralty of England,
the same shall be dealt with, inquired of, tried, and determined
in the same manner as any other felony or misdemeanor com-
mitted within that jurisdiction. Similar provisions are con-
tained in the malicious injuries act, 7 & 8 G. 4. c. 30. s. 43 j
the act providing for offences against the person, 9 G. 4. c. 31.
s. 32, and in other statutes.
It is often a question of some difficulty whether an offence
was committed within the jurisdiction of the admiralty. With
regard to the sea shore, it is clear that the common law and
the admiraltv have alternate jurisdiction between high and low
water mark.' 3 Inst. 113, 2 Hale, P. C. 17. Therefore if a
man be wounded on the sea, or a creek of the sea at high-
water, and on the reflux of the tide, dies on the spot which the
188 Venue.
water had covered, the admiralty has no jurisdiction of this
felony. Lade's case, 2 Hale, P. C. J9, Kingham's case, 2 Co.
93. a.
The following authorities collected by Mr. East, are referred
to by Mr. Serjeant Russell, as containing the general rules
upon the subject of the admiralty jurisdiction. In general, it
is said that such parts of the rivers, arms and creeks are
deemed to be within the bodies of counties, where persons can
see from one side to the other. Lord Hale, in his Treatise De
Jure Marts, says that the arm or branch of the sea, which lies
within the fauces terra;, where a man mat/ reasonably discern
bettveen shore and shore, is or at least may be within the body
of a county. Hawkins, however, considers the line more ac-
curately confined, by other authorities, to such parts of the sea,
where a man standing on the one side of the land may see
what is done on the other, and the reason assigned by Lord
Coke in the Admiralty case, (13 Co. 52.) in support of the
county coroner's jurisdiction, when a man is killed in such
places, because the county may well know it, seems rather to
support the more limited construction. But at least, when
there is any doubt, the jurisdiction of the common law ought to
be preferred. 2 East, P. C. 804. 1 Russell, 108.
In the following case the common law and the admiralty
were held to have concurrent jurisdiction in ahaven. A murder
was committed in Milford Haven, seven or eight miles from
the river's mouth, and sixteen miles below any bridge across
the river ; the passage where the murder was committed was
about three miles across, and the place itself about twenty-three
feet deep, and never known fo be dry but at very low tides.
Sloops and cutters of 100 tons were able to navigate where the
body was found, and nearly opposite the place men of war were
able to ride at anchor. The deputy vice-admiral of Pembroke-
shire had of late employed his bailiff to execute process in that
part of the haven. The judges were unanimously of opinion
that the trial was rightly had at the admiralty sessions, though
the place was within the body of the county of Pembroke, and
the courts of common law had concurrent jurisdiction. During
the discussion, the construction of the statute 28 H. 8. c. 15.
by Lord Hale was much preferred to the doctrine of Lord Coke
in his Institutes, (3 lust. Ill, 4 hist. 134,) and most if not
all the judges seemed to think that the common law had a
concurrent jurisdiction in this haven, and in other havens,
creeks, and rivers of this realm. Brace's case, 2 Leach, 1093,
Riiss. &; Ry. 243, Anon. Lewin, C. C. 242.
For offences against the customs, committed on the high seas,
the venue may be laid in the county into which the offender is
taken, and if he be taken to a city, borough, &c., then in the
county in which such city or borough is situate. 3 <Sf 4 W. 4. c. 53.
s. 77. See R. v. Nunn, 8 B. $ C. 644, 3 M. <Sf R. 75.
Venue. 189
Offences against eicise, customs, stamps, Jfc.J In indictments
for resisting or assaulting officers of the excise, 7 & 8 G. 4. c. 53.
s. 43. or for offences against the revenue of the customs, 3 & 4
W. 4. c. 53. s. 122. the venue may be laid in any county.
As to offences against the customs committed on the high
seas, Vide 3 & 4 W. 4. c. 53. s. 77, 188. In indictments
for offences against the stamp duties, the venue may be laid
either in the county where the offence was committed, or in the
county in which the parties accused or any of them shall have
been apprehended. 53 G. 3. c. 108. s.21.
Want nf a proper venue, when cured.] By stat. 7 G. 4.
c. 64. s. 20. no judgment upon any indictment or information
for any felony or misdemeanor, whether after verdict or out-
lawry, or by confession, default, or otherwise, shall be stayed
or reversed for want of a proper or perfect venue, where the
court shall appear by the indictment or information to have had
jurisdiction over the offence.
Change of.'] Where a fair a::d impartial trial cannot be had
in the county where the venue is laid, the Court of King's
Bench (the indictment being removed thither by certiorari)
will, upon an affidavit stating that fact, permit a suggestion to be
entered on the record, so that the trial may be had in an ad-
jacent county. Good ground must be stated in the affidavit,
for the belief that a fair trial cannot be had. Clendon's case,
2 Str. 911. Harris's case, 3 Burr. 1330, 1 W. Bt. 378.
Archh. C. L. 26, 4t/i. ed. The suggestion need not state the
facts from which the inference is drawn, that a fair trial cannot
be had. Hunt's case, 3 B. <5f4.444. This suggestion when
entered, is not traversable. 1 Chitty, dim. Law, 201. And
the venue in the indictment remains the same, the place of
trial alone being changed. Ibid.
It is only, however, in cases of misdemeanor, that the Court
of King's Bench will, in general, award a venire to try in a
foreign county, though cases may occur in which the court
would change the venue in felony. Holden'srase,5 B. & Ad. 347,
2 Kev. ^ M. 167. And even in cases of misdemeanor, the
court has not exercised its discretionary power, unless there has
been some peculiar reason, which made the case almost one of
necessity. Per Cur. Ib.
Upon an indictment for a misdemeanor, the application to
change the venue ought not to be made before issue joined.
Forbes's case, 2 Dow I. P. C. 440.
190
EVIDENCE IN PARTICULAR PROSECUTIONS.
ABORTION.
Offence at Common Law . . .190
Procuring Abortion where the Woman is quick with Child.
9 Geo. 4. c. 31. . . . 190
Proof of the intent . . . .190
Proof of the administering . . . 191
Proof of the nature of the thing administered . 191
Procuring abortion where the Woman is not quick with
Child .... 192
Offence at common law.] A child en ventre sa mere, cannot
be the subject of murder, vide post, " Murder." At common
law an attempt to destroy such a child appears to have been
held to be a misdemeanor. 3 Chitt. Cr. Law, 798, 1 Russ.
553, 2d, ed. The offence is now provided for by the 9 G. 4.
c. 31. s. 13.
Procuring abortion, where the woman is quick with child.]
By 9 G. 4. c. 31. s. 13. if any person with intent to procure
the miscarriage of any woman, then being quick with child,
unlawfully and maliciously shall administer to her, or cause to
be taken by her any poison or other noxious thing, or shall use
any instrument or other means whatever, with the like intent,
every such offender, and every person counselling, aiding, or
abetting such offender, shall be guilty of felony, and being
convicted thereof, shall suffer death as a felon.
Upon an indictment under this section, the prosecutor must
prove, 1. The intent to procure miscarriage; 2. That the
woman was quick with child ; 3. The administering or causing
to be taken ; 4. Some poison or other noxious thing, or the
use of some instrument, or other means with like intent.
Proof of the intent.] The intent will probably appear from
the other circumstances of the case. That the child was likely
to be born a bastard, and to be chargeable to the reputed father,
the prisoner, would be evidence to that effect. Proof of the
clandestine manner in which the drugs were procured or admi-
nistered would tend the same way.
Abortion. 191
Proof of being quick with child.] It must appear that the
woman was quick with child. The prosecutrix swore that she
was in the fourth month of her pregnancy, but that she had
not felt the child move within her before taking the medicine,
and that she was not then quick with child. The medical men,
in their examinations, differed as to the time when the fxtus
may be stated to be quick, and to have a distinct existence, but
they all agreed that in common understanding, a woman is not
considered to be quick with child, till she has herself felt the
child alive and quick within her, which happens with different
women in different stages of pregnancy, although more usually
about the fifteenth or sixteenth week after conception. Law-
rence, J. said, that this was the interpretation which must be
put upon the words quick with child in the statute, and as the
woman had not felt the child alive within her before the medi-
cine was taken, he directed an acquittal. Phillip's case,
3 Campb. 77.
Proof of the administering.] The prosecutor must then
prove the administering, or the causing to be taken of the poison
or other noxious thing.
Proof of the nature of the thing administered, ,] The nature
of the poison or other noxious thing must be proved, Upon an
indictment on the 43 G. 3. c. 58. s. 2. for administering savin
to a woman not quick with child, with intent, &c. the charge
was that the prisoner administered "six ounces of ihe decoction of
a certain shrub called savin, then and there being a noxious
and destructive thing." It appeared that the prisoner had pre-
pared the medicine by pouring boiling water on the leaves of
the shrub, and the medical men examined stated that such
preparation is called an infusion and not a decoction. It was
objected that the medicine was misdescribed, but Lawrence, J.
overruled the objection. He said infusion and decoction are
ejusdem generis, and the variance is immaterial. The question is,
whether the prisoner administered any matter or thing to the
woman with intent to procure abortion. Phillip's case, 3 Campb.
78. The authority of this decision appears to have been fol-
lowed by Vaughan, B. in a very late case. The prisoner was
indicted under the 9 G. 4. c. 31. s. 13. for administering
saffron to the prosecutrix, with intent to procure abortion. The
counsel for the prisoner cross-examining as to the innocuous na-
ture of the article administered, Vaughan, B. said, "Does that
signify ? It is with the intention that the jury have to do :
and if the prisoner administered a bit of bread merely with the
intent to procure abortion, it is sufficient to constitute the offence
contemplated by the act of parliament." Coe's case, 6 C. fy P.
403. It should be observed that the words of the statute are,
" shall administer any poison or other noxious thing," " or
192 Abortion.
shall use any instrument or other means whatever." The above
case does not appear to be included within the former words
of the statute, and it may be very questionable whether the
words " other means whatever," are not to be confined to
means ejnsdem generis with instruments.
If the attempt to procure abortion has been by means of in-
struments, the fact must be laid and proved accordingly. The
statute also contains the words " other means," and upon
these it has been doubted, whether the administering (not of
poison or other noxious thing,) but of some other, and innocent
substance, with the guilty intent, is within the statute. Archb.
L'.L. 336, 4th ed. 1 Chitt. Bum. 11. Matth. Dig.ti. It
seems, however, from the situation in which these words are
found in the statute, that they must be intended to include
means, ejusdem generis as instruments, and not as drugs.
Procuring abortion when tie woman is not quick with child.']
By 9 G. 4. c. 31. s. 13. if any person with intent to procure
the miscarriage of any woman not being, or not being proved
to be then quick with child, unlawfully and maliciously shall
administer to her or cause to be taken by her any medicine
or other thing, or shall use any instrument or other means
whatever with the like intent, every such offender and every
person counselling, aiding, or abetting such offender, shall be
guilty of felony, and being convicted thereof, shall be liable at
the discretion of the court, to be transported for any term not
exceeding fourteen years, or to be imprisoned, with or without
hard labour, for any term not exceeding three years, and if a
male, to be once, twice, or thrice publicly or privately whipped,
(if the court shall so think fit,) in addition to such im-
prisonment.
The evidence upon an indictment under this part of the
section, differs in several respects from that above stated.
1. The intent must be proved as before mentioned.
2. It is not necessary to prove that the woman was quick
uith child, and should it appear that she was so, the prisoner
ought to be acquitted upon this indictment. How far it is
necessary, in the first instance, for the prosecutor to show that
the woman was not with child does not appear to be well settled.
Upon an indictment on the similar branch of the repealed
statute, 43 G. 3. c. 58. s. 2. where the words are, " if any
person, &c. shall administer, &c. to any woman, any medicine,
&c. with intent to procure the miscarriage of any woman not
being, or not being proved to be quick with child, &c." it was
ruled by Lawrence, J. to be immaterial whether the woman
was actually with child or not. Phillips's case, 3 Campb. 76.
In a later case however, where it appeared upon the cross-ex-
amination of the woman, that she had never been with child at
all, Phillipi's case being cited, G arrow, B. expressed his doubts
Abduction. 193
as to its authority, but after conferring with Lord Tenterden,
left the case to the jury, who found the prisoner guilty. On
a case reserved, the judges were of opinion that the conviction
was wrong, on the ground that the statute did not apply, when
it appeared negatively that the woman was not with child.
Scudder's case, 3 C.tf P. 605, Moody's C.C. 216. It should
be observed that the words of the 9 G. 4. differ from those of
the 43 G. 3. the former not mentioning " any woman " gene-
rally as the latter does, but " any woman not being, or not
being proved to be quick with child."
3. The administering or causing to be taken must be proved
as already stated.
4. With regard to the nature of the drug, the words used in
the two parts of the section differ. In the former part it is
" any poison or other noxious thing," in the latter, " any
medicine, or other thing." Whatever substance, therefore,
is administered, if it be with the criminal intent, is within
the latter words, and it need not appear that it is either cal-
culated to procure abortion, or is noxious or unwholesome.
This was the construction put upon the similar clause in the
43 G. 3. where the words were " any medicine, drug, or
other substance or thing whatsoever," upon which Lawrence, J.
ruled that it was immaterial whether the drug administered was
or was not capable of procuring abortion. Phillip's case, 3
Campb. 76.
ABDUCTION.
At common law .... 193
By statute ..... 194
Proof of the taking away or detaining against the will . 194
Proof of the Woman's interest . . . 195
Proof of the motive of lucre . . . 195
Proof of the intent to marry or defile . . 195
Venue ..... 196
Abduction of Girls under sixteen . . . 196
Proof of the taking of the Girl out of the possession of the
Father, (Sfc. .... 196
Proof of the leant of consent of the Father, 8$c. . 197
At common law.] It is stated to be the better opinion, that
if a man marry a woman under age, without the consent of
her father or guardian, that act is not indictable at common
194 Abduction.
law ; but if children be taken from their parents or guardians,
or others intrusted with the care of them, by any sinister means,
either by violence, deceit, conspiracy, or any corrupt or im-
proper practices, (as by intoxication) for the purpose of marry-
ing them, though the parties themselves may be consenting to
the marriage, such criminal means will render the act an
offence at common law. 1 East, P. C. 458, 459. 1 Russell,
569. So, seduction may take place under such circumstances
of combination and conspiracy, as to render it an indictable
offence. Lord Grey's case, 3 St. Tr. 519, 1 East, P. C. 460.
1 Russ. 570.
By statute.'] The offence of abduction was provided against
by statutes 3 H. 7. c. 2., 39 Eliz. c. 9., 4 & 5 P. & M. c. 8, and
I G. 4. c. 115. ; but these statutes are now repealed, and
their provisions consolidated in the 9 G. 4. c. 31.
By the 19th section of that statute, it is enacted, that where
any woman shall have any interest, whether legal or equitable,
present or future, absolute, conditional, or contingent, in any
real or personal estate ; or shall be an heiress presumptive, or
next of kin to any one having such interest, if any person shall
from motives of lucre, take away or detain such woman against
her will, with intent to marry or defile her, or to cause her to be
married or defiled by any other person ; every such offender,
and every person counselling, aiding, or abetting such offender,
shall be guilty of felony, and being convicted thereof, shall be
liable to be transported beyond the seas for life, or for any term
not less than seven years, or to be imprisoned with or without
hard labour, in the common gaol or house of correction, for any
term not exceeding four years.
Upon an indictment under this statute, the prosecutor must
prove 1, the taking away or detaining of the woman against
her will 2, that the woman had such an interest as is specified
in the statute 3, that the taking away or detaining, was from
motives of lucre 4, the intent to marry or defile, &c.
Proof of the taking aicay or detaining; against the will, fc.}
The statute 3 H. 7. c. 2., like the statute 9 G. 4., uses the
words, " take against her will," and upon those words, it has
been held, that getting a woman inveigled out by confederates,
and detaining her, and taking her away, is a taking within the
statute of H. 7. Thus, where ;i confederate of the prisoner in-
veigled a girl of fourteen, having a portion of 5000/. to go with
her and a maid-seivant in a coach into the Park, where the
prisoner got into the coach, and the two women got out, and the
prisoner detained the girl while the coach took them to his lodg-
ings in the Strand ; where, the next morning, he prevailed upon
her, by threatening to carry her beyond seas in case she re-
fused, to marry him, (though there was no evidence that she was
Abduction. 195
deflowered) the prisoner was convicted, and executed. Brown s
case, I Ventr. 243. 1 Russell, 571. So it is said, that it is no
manner of excuse that the woman at first was taken away with
her own consent, because, if she afterwards refuses to continue
with the offender, and be forced against her will, she may, from
that time, as properly be said to be taken against her will, as
if she had never given any consent at all ; for till the force was
put upon her, she was in her own power. Hawk. P. C. b. 1.
c. 41. s. 7. 1 East, P. C. 454. This would probably be now
considered as a " detaining" within the statute 9 G. 4. c. 31.
See also Wakejield's case, Murray's Ed.
Proof of the woman's interest.'] The prosecutor must prove
that the woman was interested in real or personal estate, accord-
ing to the allegation in the indictment, or that she was the
heiress or next of kin to some one having such interest. Evi-
dence of this fact must be given in the usual way, and posses-
sion either of real or personal estate will be prima facie evidence
of interest. To prove that the party is heiress, or next of kin,
one of the family, or some one acquainted with the family may
be called.
Proof that the offence was committed from motives of lucre.]
That the party was guilty of the offence from motives of lucre,
will in general be gathered from the whole circumstances
of the case. Proof that there was little or no previous
iatercourse between the parties, will tend to establish this part
of the case. So, that the offender was in needy circum-
stances, or that he has made declarations tending to show the
object with which he committed the crime. Thus, in Lockart
Gordons case, 1 Russell, 575, it was proved that the prisoner
was pressed for money, and backward in his payments ; and
that he had admitted to one of the witnesses that he was in dis-
tressed circumstances.
Proof of the intent to marry or defile.'] Under the statute
3 H. 7, it was necessary that there should be a marriage or de-
filement, the taking alone not being sufficient ; And. 115. Cro.
Car. 486. 1 Russell, 57 1 ; and it was not necessary to aver an
intent to marry or defile ; Fulwood's case, Cro. Car. 482 ; nor
was it material whether the woman was at last married or de-
filed with or without her consent, if she were under force at the
time of the taking, for such construction was equally within the
words and the meaning of the statute, (3 Hen. 7,) which was
to protect the weaker sex from both force and fraud. Upon an
indictment under the 9 G. 4. c. 31. however, it is not necessary
to prove either a marriage or defiling, but only an intent to
marry or defile, which, like the averment of " motives of lucre,"
K 2
106 Abduction.
will in general appear, from the whole circumstances of the
case.
Venue."] Under the statute of 3 Hen. 7. it was held, that
where a woman was taken away forcibly in one county, and
afterwards went voluntarily into another county, and was there
married or defiled with her own consent, the offender was not
indictable in either county, on the ground that the offence was
not complete in either. Gordon'* case, 1 Riiss. 572. This point
cannot, however, aiise upon the statute 9 G. 4. c. 31. the
offence under that statute being complete, by the taking or de-
taining, with intent, &c. And, moreover, by 7 G. 4. c. 64.
s. 12. an offence begun in one county, and completed in ano-
ther, may be tried in either county.
Abduction of girls under sixteen.'] The offence of taking
away a maid or woman child unmarried, under the age of six-
teen, from the custody of her father, &c., was formerly provided
for by statute 4 & 5 P. & M. c. 8. s. 2 & 3. (now repealed)
and was likewise, as it seems, an offence at common law.
Hawk. P. C. b. 1. c. 41. s. 8. And by statute 9 G. 4. c. 31.
s. 20. it is enacted, that if any person shall unlawfully take, or
cause to be taken any unmarried girl, being under the age of
sixteen years, out of the possession, and against the will of her
father and mother, or of any other person having the lawful care
or charge of her, every such offender shall be guilty of a mis-
demeanor, and being convicted thereof, shall be liable to suffer
such punishment by fine or imprisonment, or by both, asthe Court
shall award.
Upon an indictment for this offence, the prosecutor must
prove 1 , the taking of the girl (and that she is under sixteen)
out of the possession of the father, &c. ; 2, that it was against
the will of the father, &c. It will be observed, that neither
motives of lucre, nor an intent to marry or defile, are made con-
stituent parts of this offence, as in the preceding section of
the act.
Proof of the taking of the girl out of the possession of the
father, <Sfc.] It has been held that an illegitimate child is within
the protection of the statute 4 & 5 P. & M. Cornforth's case,
2 Str. 1162. Hawk. P. C. b. 1. o. 41. s. 14. And the same
would be held under the new statute. The taking away may
be effected either by force or fraud, or by obtaining the consent
of the girl herself to leave her father, &c. Thus it is said by
Herbert C. J., that the statute (of P. & M.) was made to pre-
vent children from being seduced from their parents or guar-
dians by flattering or enticing words, promises or gifts, and
married in a secret way to their disparagement. Hicks v.
Abduction. 197
Gore, 3 Mod. 84. So it is no excuse that the defendant being
related to the girl's father, and frequently invited to the house,
made use of no other seduction than the common blandishments
of a lover, to induce the girl secretly to elope and marry him,
if it appear that it was against the consent of the father. Twi-
sleton's case, 1 Lev. 257, 1 Sid. 387, 2 Keb. 432. Hawk. P. C.
6. I.e. 41. s. 10. 1 Russell, 579.
Proof of the want of consent of the father, <Sfc.] The prose-
cutor must prove the want of consent of the father or mother, or
other person having the lawful care or charge of the girl.
Upon the death of the father, the mother retains her lawful
authority over the child, notwithstanding a second marriage,
and the consent of the second husband is immaterial. Rat-
cliffe's case, 3 Hep. 39. Whether where a girl under sixteen is
placed by the father and mother under the temporary care of
another, by whose collusion, and with whose consent she is
taken away and married, it will be an offence within the statute,
does not appear to be well decided. The following case arose
upon the statute of Philip and Mary. A widow fearing that
her daughter, a rich heiress, might be seduced into an impru-
dent marriage, placed her under the care of a female friend,
(Lady Gore) who sent for her son from abroad, and married
him openly in the church, and during canonical hours, to the
heiress, before she had attained the age of sixteen, and without
the consent of her mother, who was her guardian. It was held
by Herbert C. J., that in order to bring the offence within the
statute, it must appear that some artifice was used ; that the
elopement was secret, and the marriage to the disparagement of
the family. Hicks v. Gore, 3 Mod. 84. Hawk. P. C. b. 1. c. 41 .
s. 11. In this case it is to be noted, says Mr. East, that the
mother had placed the child under the care of Lady Gore, by
whose procurance the marriage was effected ; but nothing is
stated in the report to show that the chief justice laid any stress
on that circumstance. And in truth, it deserves good consider-
ation before it is decided that an offender acting in collusion
with one who has the temporary custody of another's child for
a special purpose, and knowing that the parent or proper guar-
dian did not consent, is yet not within the statute - } for then
every schoolmistress might dispose of the children committed
to her care, though such delegation of a child for a particular
purpose be no delegation of the power of disposing of her in
marriage ; but the governance of the child in that respect, may
still be said to remain in the parent. 1 East, P. C. 457.
There must be a continuous want of consent on the part of the
parent, for if the consent be once given, it cannot, it is said, be
revoked. Caltliorpe v. Axteli, 3 Mod. 169. Haitfe, P. C. ft. 1.
r. 41. f. 13.
198
AFFRAY.
An affray is the fighting of two or more persons in some pub-
lic place, to the terror of the king's subjects ; for if the fighting
be in private, it is not an affray, but an assault. 4 Bl. Cam.
145. See Timothy v. Simpson, 1 C. M. &; R. 757. It differs
from a riot, in not being premeditated. Thus if a number of
Srsons meet together at a fair, or market, or upon any other
wful or innocent occasion, and happen on a sudden quarrel
to engage in fighting, they are not guilty of a riot, but of an
affray only (of which none are guilty but those who actually
engage in it) ; because the design of their meeting was innocent
and lawful, and the breach of the peace happened without any
previous intention. Hawk. P. C. b. 1. c. 65. s. 3. Two persons
may be guilty of an affray, but it requires three or more to con-
stitute a riot. Vide post. Mere quarrelsome words will not
make an affray. 4 BL Com. 146. 1 Russell, 271.
To support a prosecution for an affray, the prosecutor must
prove 1, the affray, or fighting, &c. ; 2, that it was in a public
place ; 3, that it was to the terror of the king's subjects ; 4, that
two or more persons were engaged in it.
ARSON.
Offence at common law . . .198
Proof of the burning . . .199
Proof that the house burnt is the house of another 199
Proof of malice and wilfulness . .201
Offence by statute . . . .201
Proof of the setting fire, fyc. . . 202
Proof of the property set fire to . . 203
Proof of the intent to injure or defraud . 206
Setting fire to stacks . . . 207
to ships . . 208
Negligent burning .... 209
At common /aw.] The offence of arson, which is a felony
at common law, is defined by Lord Coke to be the malicious
Arson. 199
and voluntary burning the house of another, by night or by
day. 3 Inst. 66. 1 Hale, P. C. 566,
Upon an indictment for this offence, the prosecutor must
prove 1, the burning; 2, of the house of another; 3, that
the offence was committed voluntarily and maliciously.
Proof of the burning.'] To constitute arson at common
law, it must be proved that there was an actual burning of the
house, or of some part of it, though it is not necessary that
any part should be wholly consumed, or that the fire should
have any continuance, but be put out, or go out .of itself. 2
East, P. C. 1020. 1 Hale, P. C. 569.
The setting fire to the house of another, maliciously to burn
it, is not a felony, if either by accident or timely prevention,
the fire does not take place. 1 Hale, P. C. 568.
Where a house has been robbed and burnt, proof that part of
the stolen property was found in the possession of the prisoner
is evidence to show that he committed the arson, Rickman's
case, 2 East, P. C. 1035. ante, p. 58.
Proof that the house, $c. burnt, is the houss of another.] It
must be the house of another. The burning of a man's own
house is no felony at common law. 1 Hale, P. C. 568. 2
East, P. C. 1027. But if a man set fire to his own house, ma-
liciously intending thereby to burn the adjoining house, belong-
ing to another, if the latter house is burned, it is felony; if
not, it is a great misdemeanor. 1 Hale, P. C. 568. 2 East,
P. C. 1027.
The offence may be committed, not only with regard to a
dwelling-house, but also with regard to all outhouses which
are parcel of it, though not contiguous, or under the same roof,
as in the case of burglary at common law. 1 Hale, P. C. 567.
And at common law, to burn a barn or outhouse, though not
parcel of a dwelling-house, was felony, if it had hay or corn in
it. Id. The various descriptions of buildings and farming stock
are, however, now expressly protected by statute, vide infra ;
and it will not therefore be necessary to examine how far they
come within the protection of the common law.
With regard to what constitutes a man's own house, it has
been held that a tenant for years of a house cannot at common
law be guilty of a felony by burning it. Holmes' 's case, Cru.
Car. 376. 1 Hale, P. C. 568. 2 East, P. C. 1023. So a
copyholder, although he has surrendered the house by way of
mortgage. Spalding's case, 1 East, P. C. 1025, 1 Leach, 218.
So a person who is in possession, under an agreement for
a lease for three years. The Judges in this case said, that
the principle upon which Holmes's case (supra) was decided
was right, and it was the protection of the person in the actual
200 Arson.
and immediate possession of the house. Breeme's case, 1 Leach,
220, 2 East, P. C. 1026. See also Pedley's case, 1 Leach,
242.
Upon the same principle, a landlord may be guilty of felony
at common law, by burning the house of his tenant. Foster,
215. 4 B/. Com. 221. So a woman entitled to dower out of a
house in mortgage, the house having been let by her, and the
tenant in possession, no dower having been assigned, was held
to be guilty of felony in burning the house. Harris's case, Fos-
ter, 113. 2 East, P. C. 1023. So a pauper put into a house
rented from year to year by the overseers, and suffered to live
there without paying rent, has no interest, but is merely a ser-
vant, and is guilty of felony if he sets fire to the house. The
overseers have possession of the house by means of his occupa-
tion. Gou-an's case, 1 Leach, 246, (n.) 2 East, P. C. 1027.
Hickman's case, 2 East, P. C. 1034.
It requires great nicety, observes Mr. East, (P. C. 1034.)
to distinguish the person who may be said to occupy suojure,
and against whom the offence must be laid to have been com-
mitted. In Glandjield'scase, 2 East, P. C. 1034, it appeared
that .the outhouses burned were the property of Blanch Silk,
widow, but were only made use of by John Silk, her son, who
lived with her after his father's death in the dwelling-house
adjoining the outhouses, and took upon him the sole manage-
ment of the farm with which these outhouses were used, to the
loss and profit of which he stood alone, though without any
particular agreement between him and his mother. He paid
all the servants and purchased all the stock, but the legal pro-
perty, both in the dwelling-house and in the farm, was in the
mother, and she alone repaired the dwelling-house and the
outhouses. Heath, J. held, that as to the stable, pound, and
hog-sties, which the son alone used, the indictment must lay
them in his occupation ; that with regard to the brewhouse,
(the mother and son both occasionally paying for ingredients,
and the beer being used in the family, the mother contributing
to the expense,) the same should be laid to be in their joint
occupation. The prisoner was indicted accordingly, convicted,
and executed.
The house was described in the indictment, 1, as that of
Fearne ; 2, as that of Davies ; 3, as that of the prisoner. It
appeared that Fearne occupied part of the house, and let out
the rest in lodgings. The room set fire to was let to the pri-
soner. Two months after the fire he was discharged as an
insolvent debtor, and had before executed an assignment, in-
cluding the house, to Davies. Davies never took possession.
Upon a case reserved on the point, w.hether the possession of
the house was rightly described, the Judges held it was so, for
the whole house was properly in the possession of Fearne, the
possession by his tenants being his possession, and if not, the
Arson. 201
prisoner's own room might be described as his house. Ball's
case, M. 1824. Bayley's MSS. 1 Moo. C. C. 30.
Proof of malice and wilfulness.] It must be proved that the
act of burning was both wilful and malicious, otherwise it is
only a trespass and no felony. 1 Hale, P. C. 569. Therefore
if A. shoot unlawfully at the poultry or cattle of B., whereby
he sets the house of another on fire, it is not felony ; for though
the act he was doing was unlawful, he had no intention to burn
the house. Ibid. In this case, observes Mr. East, it should
seem to be understood, that he did not intend to steal the
poultry, but merely to commit a trespass ; for otherwise, the
first attempt being felonious, the party must abide all the con-
sequences. 2 East, P. C. 1019. If A. has a malicious intent
to burn the house of B., and in setting fire to it, burns the house
of B. and C., or the house of B. escapes by accident, and that
of C. only is burnt, though A. did not intend to burn the
house of C., yet in law this is a malicious and wilful burning of
the house of C.. and A. may be indicted accordingly. 1 Hale,
P. C. 569. 2 East, P. C. 1019. So if A. command B. to
burn the house of J. S., and he do so, and the fire burns also
another house, the person so commanding is accessory to the
burning of the latter house. Plou-d. 475. 2 East, P. C. 1019.
So where the primary intention of the offender is only to burn
his own house (which is no felony), yet if in fact other houses
are thereby burned, being adjoining, and in such a situation
as that the fire must in all probability reach them, the intent
being unlawful, and the consequence immediately and neces-
sarily flowing from the original act done, it is felony. 2 East.
P. C. 1031. In a case of this kind, where the prisoner was
indicted for a misdemeanor, Buller J. directed an acquittal, on
the ground, that as the houses of others had been burned, the
offence amounted to felony. Isaac's case, 2 East, P. C. 1031.
See also Probert's case, Id. 1030.
By statute.] The various offences of burning houses and
other property are now for the most part provided against by
various statutes ; the evidence upon indictments under which
varies in several respects from the evidence under an indictment
at common law.
Setting fire to houses, <3fc.] By stat. 7 & 8 G. 4, c. 30. s. 2.
it is enacted, " that if any person shall unlawfully and malici-
ously set fire to any church or chapel, or to any chapel for the
religious worship of persons dissenting from the united church
of England and Ireland duly registered or recorded ; or shall
unlawfully and maliciously set fire to any house, stable, coach-
house, outhouse, warehouse, office, shop, mill, malthouse, hop-
oast, barn, or granary, or to any building or erection used in
202 Arson.
carrying on any trade or manufacture, or any branch thereof,
whether the same or any of them respectively shall then be in
the possession of the offender or in the possession of any other
person, with intent thereby to injure or defraud any person, every
such offender shall be guilty of felony, and being convicted
thereof, shall suffer death as a felon."
Upon an indictment on this statute, the prosecutor must
prove, 1, The act of setting fire, 2, to the house or other build-
ing specified, and, 3, the intent to injure or defraud the party
mentioned in the indictment.
Proof of the setting fire, #c.] The act of "setting fire"
to the property must be proved. The words " set fire" were
used in the stat. 9 G. 1. c. 22., and Mr. East observes, that he
is not aware of any decision which has put a larger construction
on those words than prevails by the rule of the common law.
2 East, P. C. 1020. And he afterwards remarks, that the ac-
tual burning, at common law, and the " setting fire," under the
statute, in effect mean the same thing. Id. 1033, ante, p. 199. The
prisoner was indicted (under 9 G. 1.) for setting fire to an out-
house, commonly called a paper-mill. It appeared that she had
set fire to a large quantity of paper, drying in a loft annexed to
the mill, but no part of the mill itself was consumed. The judges
held that this was not a setting jire to the mill within the sta-
tute. Taylor's case, 2 East, P. C. 1020, 1 Leach, 49.
With regard to the question, how far it is necessary to prove
that the prisoner himself set fire to the property with his own
hand, Tindal, C. J., in his charge to the grand jury, at Bristol,
makes the following remarks : " You will inquire, first, whe-
ther the prisoner set fire to the premises himself; in such case
no doubt of his guilt can exist ; and if the proof falls short of
this, you will then consider whether he was jointly engaged in
the prosecution of the same object with those who committed
the offence. If by his words and gestures he incited others to
commit the felony, or if he was so near the spot at the time,
that he, by his presence, wilfully aided and assisted them in the
perpetration of the crime, in either oi these cases the felony is
complete, without any actual manual share in its commission."
5 Car. # P. 266, (n.)
If the indictment alleges that the offence was committed in
the night-time, and it appears to have been committed in the
day-time, it is no variance. Minton's case, 2 East, P. C. 1021.
The difficulties which arise in the proof of this offence, are
thus noticed by a writer on the criminal law of Scotland :
" There is perhaps no crime in which evidence is so difficult as
in this, both on account of the secrecy and privacy with which
it is usually committed, and the devouring nature of the ele-
ment raised, which destroys all the usual traces and indicia by
which in other instances guilt is detected," " nevertheless it is
Arson. 203
not to be imagined that, on account of this difficulty, the prose-
cutor is to be considered as relieved from any part of the obliga-
tion to make out his case ; but only that, in default of direct
testimony, which is very seldom to be obtained, a conviction
may be legally and safely obtained on circumstantial evidence,
if it be only sufficiently weighty. To require direct evidence of
the wilful completion of the crime, would be in most, and ge-
nerally the worst cases, to secure absolute impunity to the
criminal.
" Unlike other crimes, the proof of the corpus delicti in wilful
fire-raising is generally mixed up with that which goes to fix
guilt upon the prisoner ; nor indeed, in cases where direct evi-
dence cannot be obtained, can it well be otherwise, as the first
effect of the flames is to consume the combustibles which raised
them. The indicia:, which go to substantiate at once the corpus
delicti and the guilt of the prisoner, are chiefly that the fire broke
out suddenly in an uninhabited house, or in different parts of
the same building ; that combustibles have been found strewed
about or dropped at intervals, or placed in convenient situations
to excite combustion ; as under beds, under thatch, under a
stack, &c. ; that the prisoner had a cause of ill-will at the suf-
ferer, or had been heard to threaten him, or had been seen
purchasing combustibles, or carrying them in the direction of
the premises, or lounging about them at suspicious hours. To
this is to be added, where the fire was raised to defraud insurers,
the important facts of the premises or its furniture having been
insured at a high value, or in different offices at the same time,
and of a claim having been made or attempted to be made at
both offices." Alisoji's Principles of' Cr. Law of Scotl. 444.
Proof of the property set. jire to.] The prosecutor must
prove that the property set fire to comes within the meaning of
the statute, and the description given in the indictment. The
word house includes, as it seems, all such buildings as would
come within that description, upon an indictment for arson at
common law. Vide ante, p. 199. That includes such build-
ings as burglary may be committed in at common law ; but
whether the word would now be held to include all such build-
ings as burglary may be committed in under the 7 & 8 G. 4.
c. 29. s. 13. seems to be doubtful. See Greenwood's Statutes,
232, (n). A building intended for and constructed as a dwell-
ing-house, but which had not been completed or inhabited, and
in which the owner had deposited straw and agricultural imple-
ments, was held not to be a house, outhouse, or barn, within the
9 G. 1. c. 22. It was said that it was not a house in respect of
which burglary or arson could be committed ; that it was a
house intended for residence, but not inhabited, and therefore
not a dwelling-house, though intended to Le one. That it was
not an outhouse, because not parcel of a dwelling-house ; and
204 Arson.
that it was not a barn, within the meaning of that word as used
in the statute. Elunore v. luhab. hundred of St. Briaiells, 8 B.
fy C. 461. Upon the construction of the same statute, (9 G. 1.
c. 22.) it has been held that a common gaol comes within the
meaning of the word house. The entrance to the prison was
through the dwelling-house of the gaoler, (separated from the
prison by a wall,) and the prisoners were sometimes allowed to
lie in it. All the judges held that the dwelling-house was to
be considered as part of the prison, and the whole prison was
the house of the corporation to whom it belonged. One of the
counts laid it as the house of the corporation, another, of the
gaoler, and a third, of the person, whom the gaoler suffered to
live in the house. Donnevan's case, 2 East, P. C. 1020, 2 W.
Bl. 682, 1 Leach, 69. But where a constable hired a cel-
lar (as a lock-up house) under a cottage, and the cellar was
independent of the cottage in all respects, it was held that the
cellar was not properly described, in an indictment for arson,
either as the dwelling-house of the constable, or as an outhouse
of the cottage. Anon. cor. Hullock B. Lewin, Crown Ca. 8.
A cotton mill was held to be within the meaning of the word
mill iti the statute 9 G. 1. c. 22. Anon. 2 Stark. Cr. PI.
442, (.)
Upon the meaning of the word " outhouse," in the 9 G. 1.
the following case was decided. It appeared that the prisoner
(who was indicted for setting fire to an outhouse,) had set fire
to and burnt part of a building of the prosecutor, situated in the
yard at the back of his dwelling-house. The building was four
or five feet distant from the house, but not joined to it. The
yard was inclosed on all sides, in one part by the dwelling-house,
in another by a wall, and in a third by a railing, which separated
it from a field, and in the remaining part by a hedge. The pro-
secutor kept a public-house, and was also a flax-dresser. The
buildings in question consisted of a stable, and chamber over it,
used as a shop for the keeping and dressing flax. It was ob-
jected that this was part of the dwelling-house, and not an out-
house ; but the prisoner having been convicted, the judges were
of opinion that the verdict was right. It was observed that
though, for some purposes, this might be part of the dwelling-
house, yet that in fact it was an outhouse* North's case, 2 East,
P. C. 1022.
The following case was decided upon the words of the same
statute. The prisoner was indicted in some counts for setting
fire to an outhouse, in others to a house. The premises burned
consisted of a school-room, which was situated very near to the
house in which the prosecutor lived, being separated from it only
by a narrow passage about a yard wide. The roof of the house,
which was of tile, reached over part of the roof of the school,
which was thatched with straw ; and the school, with a garden
and other premises, together with a court which surrounded the
Arson. 205
whole, were rented of the parish by the prosecutor at a yearly
rent. There was a continued fence round the premises, and
nobody but the prosecutor or his family had a right to come
within it. It was objected for the prisoner, that the building
was neither a house nor an outhouse within the 9 G. 1. c. 22. ;
but the judges were of opinion that it was correctly described
either as an outhouse, or part of a dwelling-house within the
meaning of the statute. Winter's case, Runs, fy Ry. C. C. 295.
2 Russell, 493.
The following case upon the construction of the same word
arose upon an indictment under the 7 & 8 G. 4. The place in
question stood in an inclosed field, a furlong from the dwelling-
house, and not in sight. It had been originally divided into stalls,
capable of holding eight beasts, partly open and partly thatched.
Of late years it was boarded all round, the stalls taken away,
and an opening left for cattle to come in of their own accord.
There was neither window nor door, and the opening was sixteen
feet wide, so that a waggon might be drawn through it, under
cover. The back part of the roof was supported by posts, to
which the side boards were nailed. Part of it internally was
boarded and locked up. There was no distinction in the roof
between the inclosed and the uninclosed part, and the inhabit-
ants and owners usually called it the cow-stalls. Park, J. did
not consider this an outhouse within the statute, but reserved
the point for the opinion of the judges : six of the judges were
of opinion that this was an outhouse within the statute, but
seven of their lordships being of a contrary opinion, a pardon
was recommended. Ellison's ca>e, 1 Moody, C.C. 336. See
also Hilles i>. Inhub. of Shrewsbury, 3 East, 457. Woodward's
case, 1 Moody, C. C. 325.
The construction of the word " outhouse" also came into
question in the following case. The place burned had been .an
oven to bake bricks, and stood at a distance from any house,
but a door had been put to it with boards and turf over the
vent-hole at the top, and a sort of loft-floor had been constructed
within. A cow was kept in it ; and adjoining, but not under
the same roof, was a lean-to, in which a horse was kept, but the
latter building was not injured. Upon an indictment for burn-
ing this building, describing it as " an outhouse," and secondly,
as " a stable," Taunton, J. was of opinion that it was not
within the act ; that it had been settled from ancient times, that
an outhouse must be that which belongs to a dwelling-house, and
is in some respect parcel of such dwelling-house. "This build-
ing," he said, "is not parcel of any dwelling-house, and does not
appear to be connected in any way with the premises of the prose-
cutor. There is no such word as cowhouse in the statute. The
prisoner must be acquitted." Haughtvn's case, 5 C. if P. 555.
The house burned should be described as being in the pos-
session of the person who is in the actual occupation, even
206 Arson.
though the possession be wrongful. Thus where a labourer
in husbandry was permitted to occupy a house as part of his
wages, and af'tr being discharged from his master's service,
and told to quit the house in a month, remained in it after that
period, it was held by the judges, upon an indictment for setting
fire to the house, that it was rightly described as being in the
possession of the labourer. Wullis's case, 1 Moody, C. C. 344.
Proof of the intent to injure or defraud.] The pro-
secutor must prove the intent to injure or defraud the party
mentioned in the indictment. Upon the proof of the intent of
the prisoner, Tindal, C. J. made the following observations in
his charge to the grand jury at Bristol. " Where the statute
directs, that to complete the offence it must have been done
with intent to injure or defraud some person, there is no occa-
sion that either malice or ill will should subsist against the per-
son whose property is so destroyed. It is a malicious act in
contemplation of law, when a man wilfully does that which is
illegal, and its necessary consequence must injure his neigh-
bour (vide ante, p. 18.), and it is unnecessary to observe that the
setting fire to another's house, whether the owner be a stranger
to the prisoner, or a person against whom he had a former
grudge, must be equally injurious to him ; nor will it be neces-
sary to prove that the house which forms the subject of the
indictment in any particular case, was that which was actually
set on fire by the prisoner. It will be sufficient to constitute
the offence, if he is shown to have feloniously set on fire an-
other house, from which the flames communicated to the rest.
(vide ante, p. 201.) No man can shelter himself from punish-
ment on the ground that the mischief he committed was wider
in its consequences than he originally intended." 5 Car. $ P.
266, (M.) Thus where a man was indicted for setting fire to
a mill, (43 G. 2. c. 58. s. 1, repealed) with intent to injure the
occupier thereof, and it appeared from the prosecutor's evi-
dence that the prisoner was an inoffensive man, and never had
any quarrel witli the occupier, and that there was no known
motive for committing the act, and he was convicted ; the
judges held the conviction right, for that a parly who does an
act wilfully, necessarily intends that which must be the conse-
quence of his act. Farrington's case, Russ. fy Ry. C. C. 207.
Philp's case, 1 Moody, C. C. 273. ante, p. 19.
A wife cannot be guilty, under the statute, of setting fire to
her husband's house, with intent to injure or defraud him.
The judges held such a conviction wrong, thinking that to con-
stitute the offence, there should be an intent to injure or defraud
some third person, not one identified with herself. March's
ca*e, 1 Mondy, C. C. 182.
Where the intent laid is to defraud insurers, the insurance
must be proved. To prove this the policy must be produced ;
Arson. 207
evidence of the books of an insurance company not being admis-
sible, unless the want of the policy is accounted for. Daran't
case, I Esp. 127. The policy must be properly stamped. Gib-
son's case, Russ. $ Ry. C. C. 138, 2 Leach, 1007, 1 Taunt. 95.
ante, p. 164.
Setting fire to stacks, $c.] By statute 7 & 8 G. 4. c. 30.
s. 17, it is enacted that if any person shall unlawfully and
maliciously set fire to any stack of corn, grain, pulse, straw,
hay, or wood, every such offender shall be guilty of felony, and
being convicted thereof, shall suffer death as a felon ;. and if any
person shall unlawfully and maliciously set fire to any crop of
corn, grain, or pulse, whether standing or cut down, or to any
part of a wood, coppice, or plantation of trees, or to any heath,
gorze, furze, or fern, wheresoever the same may be growing ;
every such offender shall be guilty of felony, and being con-
victed thereof shall be liable at the discretion of the court to be
transported beyond the seas for the term of seven years, or to be
imprisoned for any term not exceeding two years, and if a male
to be once, twice, or thrice publicly or privately whipped
(if the court shall so think fit) in addition to such imprison-
ment.
The evidence upon an indictment under the above section of
the statute will in all material respects resemble that upon aa
indictment for setting fire to a house, &c. under section 2,
ante, p. 202. \Vhere a man was indicted under statute 9 G. 1.
c. 22, which makes it felony to set fire to any cock, mow, or
stack of corn, and charged with being accessory to setting fire
to " an unthrashed parcel of wheat, " this was held not to be
an offence within the statute. Judd's case, 1 Leach, 484,
2 East, P. C. 1018, 2 T. R. 255.
Upon the construction of the word " straw," the following
case has occurred. The prisoner was indicted for setting fire to
" a stack of straw." It appeared in evidence that the stack in
question was made partly of straw, there being two or three
loads at the bottom, and the residue of haulm, that is, the after-
math or stubble of rye or wheat, about eighteen inches long :
according to one witness the straw and haulm were mixed.
Amongst other objections to the indictment it was urged that
this was not a stack of strait 1 within the statute, and upon a
case reserved for the opinion of the judges, they held all the ob-
jections good. The prisoner was afterwards indicted for setting
fire to " a stack of straw called haulm;" but Vaughan, B. in-
timated his opinion that it was unsafe to convict on such a
count. Reader's case, 4 C. $ P. 245, 1 Moody, C. C. 239.
It should be observed that in the above case, there was an-
other and fatal objection to the indictment, viz. that it omitted
the word " unlawfully," which is used in the statutory descrip-
tion of the offence, and it was therefore unnecessary to decide
208 Arson.
the objection as to the description of the stack, though in the
report (4 C. P. 245.) it is stated that the judges held the
indictment bad upon all the objections. In a case which
occurred the following year (Reading Spring Assizes, 1831,)
the prisoner was charged with setting fire to a stack of straw.
It appeared that the wheat had been cut and carried, and that
the stubble had been mown and made into the rick in question,
and this was called by the witnesses a haulm rick. It was
objected that this was not a stack of straw within the statute.
Patteson, J. said he would not stop the case, as it might be
argued that every part of the stalk of the corn when cut was
straw, but that if the prisoner was convicted he would reserve
the point, as he considered it of great importance that it should
be decided whether stacks of this kind were within the act of
parliament or not. Brown's case, 4 C.# P. 553, (?i.) It is not
stated what became of the case.
Where the prisoner was indicted for setting fire to " one
stack of barley, of the value of 100/., of II. P. Williams," it
was objected that the word " barley" was not mentioned in the
statute, and that there was no sufficient averment of the pro-
perty being in R. P. Williams ; but Patteson J . thought that
charging the offence as setting fire to a stack of barley was suf-
ficient, and also that the averment of the property was sufficient.
His lordship stated that if he thought there was any weight in
the objection as to the use of the word " barley," he would re-
serve the point for the opinion of the judges ; but the prisoner
was afterwards executed. Swatkins' ca*e, 4 C. fy P. 548. So
an indictment charging the prisoner with setting fire " to a
certain stack of beans" is good, for the judges are bound to
consider beans as a species of pulse. Woodward's case, 1
Moody, C.C. 323.
The prisoner was indicted for setting fire to a stack of wood.
It appeared that between the house of the prosecutor and the
next house there was an archway, over which a sort of loft was
made, by means of a temporary floor, and that in this place there
was an armful of straw and a score of faggots piled on one an-
other. The prisoner set fire to the straw, which was burnt, as
well as some of the faggots. Park, J. was clearly of opinion
that this was not a stack of wood within the meaning of the act
of parliament. Aris's case, 6 C. fy P. 348.
Upon an indictment for setting fire to a stack, a mistake as
to the name of the place where the offence was committed is
immaterial, the charge being transitory. Woodward's case, 1
Moody, C. C. 323.
Setting f>re to ships.] By statute 7 & 8' G. 4. c. 30. s. 9. it
is enacted that if any person shall unlawfully and maliciously
set fire to, or in anywise destroy any ship or vessel, whether the
same be complete or in an unfinished state, or shall unlawfully and
Arson. 209
maliciously set fire to, cast away, or in anywise destroy any ship
or vessel, with intent thereby to prejudice any owner or part
owner of such ship or vessel, or of any goods on board the same,
or any person that hath underwritten or shall underwrite any
policy of insurance upon such ship or vessel, or on the freight
thereof, or upon any goods on board the same, every such of-
fender shall be guilty of felony, and being convicted thereof
shall suffer death as a felon.
By stat. 12 G. 3. c. 24. s. 1. if any person shall, either within
the realm, or in any of the colonies, wilfully and maliciously
set on fire or burn, or otherwise destroy, or cause to be fired or
destroyed, or aid or assist in firing or destroying any of his Ma-
jesty's ships or vessels of war, whether afloat or building in any
of the King's dock -yards, or building or repairing by contract
in any private yard, or any of the King's arsenals, magazines,
dock-yards, rope-yards, victualling-offices, or any of the build-
ings erected therein, or belonging thereto, or any timber or ma-
terials placed there for building, repairing, or fitting out of any
ships or vessels, or any of the King's military, naval, or victual-
ling stores, or other ammunition of war, or any place where the
same or other ammunition of war is, are, or shall be kept,
placed, or deposited, every such offender shall be guilty of a
capital felony. By sec. 2. persons committing such offences
out of the country may be indicted and tried in any county
within the realm.
The evidence upon an indictment under 7 & 8 G. 4. c. 30.
for setting fire to a ship, will be in all material respects the
same as that before detailed, upon an indictment for setting fire
to a house, ante, p. 202.
It has been held that the part owner of a ship may be con-
victed of setting fire to it with intent to injure the other part
owners, although he has insured the whole ship and promised
that the other part-owners shall have the benefit of the insur-
ance. Philps's case, 1 Moody, C. C. 263.
Negligent burning.] By statutes 6 Anne, c. 31. and 14 G. 3.
c. 78. s. 84. if any menial or other servant, through negligence
or carelessness, shall fire or cause to be fired any dwelling-house
or otherwise, and be convicted thereof, by oath of one witness
before two justices, he shall forfeit 100/. to the churchwardens,
to be distributed amongst the sufferers by such fire ; and if he
shall not pay the same immediately on demand of the church-
wardens, he shall be committed by the justices to some work-
house, or common gaol, or house of correction, for eighteen
months, there to be kept to hard labour.
210
ASSAULT.
What amounts to an assault . . .210
What does not amount to an assault . .211
Accident . . . .211
Amicable contest , , .212
Lawful chastisement . . . 212
Self-defence . . . .213
Interference to prevent breach of the peace . 213
Defence of possession . . .214
Execution of process by officers, fyc. . . 215
Summary conviction . . .215
What amounts to an assault.] An assault is any attempt or
offer with force or violence to do a corporal hurt to another,
whether from malice or wantonness, as by striking at him or
even holding up the fist at him in a threatening or insulting
manner, or with such other circumstances as denote at the time
an intention, coupled witli a present ability, of actual violence
against his person, as by pointing a weapon at him when he is
within the reach of it. When the injury is actually inflicted it
amounts to a battery, which includes an assault, and this, how-
ever small it may be, as by spitting in a man's face or in any
way touching him in anger without lawful provocation. 1 East,
P.C. 406. B. N. P. 15. Hawk. P. C. 6. 1. c. 62. s, 12.
1 Russell, 604. So there may be an assault by exposing a
child of tender years, or a person under the control and domi-
nion of the party, to the inclemency of the weather. Ridley's
case, 2 Campb. 650. 1 Russell, 605. But a mere omission to
do an act cannot be construed into an assault. Thus where a
man kept an idiot brother who was bed-ridden, in a dark room
in his house, without sufficient warmth or clothing, Burrough, J.
ruled that these facts would not support an indictment for
assault and false imprisonment ; for although there had been
negligence, yet mere omission, without a duty, would not create
an indictable offence. Smith's case, 2 C. &; P. 449.
If a master take indecent liberties with a female scholar,
without her consent, though she do not resist, he will be guilty
of a common assault. Nichol's case, Russ, fy Ry. 130. And
where a person professing medicine, desired a young girl who
came to him as a patient, to strip naked, and himself took off
Assault. 211
her clothes and rubbed her with something from a bottle, he
was indicted as for a common assault, and the judge left it to
the jury to say whether the prisoner really believed that the
stripping her could assist him in curing her ; the jury having
found that he had no such belief, and that it was wholly unne*
cessary, he was convicted; and on a case reserved, the judges
held that the conviction for a common assault was right.
Rosinski's case, 1 Moody, C. C. 19.
If parish officers cut off the hair of a panper in the work-
house, with force and against his consent, it is an assault.
Forde v. Skinner, 4 C.Sf P. 239.
Although to constitute an assault there must be a present
ability to inflict an injury, yet if a man is advancing in a
threatening attitude to strike another, so that the blow would
almost immediately reach him if he were not stopped, and he is
stopped, this is an assault. Stephens v. Myers, 4 C. <5f P. 349.
It has been frequently said that every imprisonment includes
a battery. B. N. P. 22. 1 Selw. N. P. Imprisonment, I. But
this doctrine has been denied. Emmett v. Li/ne, 1 N. R.
255.
In cases of assault, as in all other offences, if several act in
concert, encouraging one another and co-operating, they are all
equally guilty, though only one commit the actual assault.
Per Bayley, J. Anon. Levin, C. C. 17.
What does not amount to an assault. ~] Although it was for-
merly doubted, it is now clear that no words, whatever nature
they may be of, will constitute an assault. Hawk. P, C. b. 1.
c. 62. s. 1. 1 Bac. Ab. Assault 8; Battery (A). 1 Russell, 604.
But words may qualify what would otherwise be an assault, by
showing that the party intends no present corporal injury, as
where a person meeting another laid his hand upon his sword
saying, " If it were not assize time I would not take such
language from you ;" for it shows that he had not a design to
do the party any corporal hurt. Turberville v. Savage, 1 Mod.
3, 2Keb. 545.
What does not amount to an assault Accident.] Where an
injury is purely accidental and the party wholly without fault,
it will not amount to a battery. Weaver v. Ward, Hob. 134.
2 Roll. Ab. 548. Thus where the defendant was indicted for
throwing down skins in a yard, being a public place, by which
a man's eye was beaten out, it appearing that the wind blew
the skin out of the way, and that the injury was caused by this
circumstance, the defendant was acquitted. Gill's case, 1 Str.
190.
But if in the course of an unlawful act a blow is struck, as
where two persons are engaged in righting, and one of them
accidentally and unintentionally strikes a third person, this is
212 Assault.
not such an accident as will prevent the blow from being a
battery. James v. Campbell, 5 C. # P. 372.
There is a distinction in cases of accident, with regard to the
liability of the party, in civil and in criminal proceedings. Thus,
it is said by Hawkins, that it seems that a man shall not forfeit
a recognizance of the peace by a hurt done to another merely
through negligence or mischance, as where one soldier hurts
another by discharging a gun in exercise without sufficient cau-
tion, for notwithstanding such person must in a civil action give
the other satisfaction for the damage occasioned by his want of
care, yet he seems not to have offended against the purport of
such a recognizance, unless he be guilty of some wilful breach
of the peace. Hawk. P. C. b. 1. c. 60. s.27. It is said that
it may be deemed a general rule in criminal cases, that the
same facts which make killing homicide by misadventure (ride
post) will be a good defence upon an indictment for a battery.
Archb. Cr. Law, 347. 5th ed.
What shall not amount to an assault Amicable contest.]
An injury received in playing at any lawful sport, as cudgels,
by consent, will not amount to a battery in law, for the intent
of the parties is not unlawful but rather commendable, and
tending mutually to promote activity and courage ; yet it seems
it would be otherwise, if the fighting were with naked swords,
because no consent can make so dangerous a diversion lawful.
Hawk. P. C.b.l. c. 60. *. 26. Com. Dig. Pleader (3 Af. 18.)
Bid. N. P. 15. In an action for assault and battery, where
it was insisted as a defence that the plaintiff and defendant
fought by consent, Parker, C. B. said that fighting being un-
lawful, the consent of the plaintiff would be no bar to the ac-
tion ; and he cited a case where Reynolds, C. B. in an action
to recover five guineas on a boxing-match, held the considera-
tion illegal. Boulter v. Clarke, B. N. P. 16. These deci-
sions appear only to apply to unlawful games, amongst which
boxing and boxing-matches are to be considered. See post, as
to what shall be deemed lawful sports, title " Murder."
What does not amount to an assault Lauful chastisement.]
If a parent in a reasonable manner chastise his child, or a mas-
ter his servant, being actually his servant at the time, or a
schoolmaster his scholar, or a gaoler his prisoner, or a husband
his wife, or if one confine a friend who is mad, and bind and
beat him, &c. in such circumstances it is no assault. Hawk.
P. C. b. 1. c. 30. s. 23. Com. Dig. Pleader (3 M.13.) A defen-
dant may justify even a mayhem, if done by him as an officer of
the army for disobedience of orders, and he may give in evi-
dence the sentence of a council of war, upon a petition against
him by the plaintiff ; and if by the sentence the petition is dis-
missed, it will be conclusive evidence in favour of the defendant.
Assault. 213
Lane i: Degberg, B.K. P. 19. In all cases of chastisement it
must, in order to be justifiable, appear to have been reasonable.
1 East, P. C. 406 ; and see post, title " Murder."
What does not amount to an assault self-defence.] A blow
or other violence necessary for the defence of a man's person
against the violence of another will not constitute a battery.
Thus if A lift up his stick and offer to strike B, it is a sufficient
assault to justify B in striking A, for he need not stay till A has
actually struck him. B. A T . P. 18. But every assault will not jus-
tify every battery, and it is matter of evidence whether the assault
was proportionable to the battery ; an assault may indeed be of
such a nature as to justify a mayhem ; but where it appeared
that A had lifted the form upon which B sat, whereby the latter
fell, it was held no justification for B's biting off A's finger.
B. X. P. 18. In cases of assault, as in other cases of trespass,
the party ought not in the first instance to beat the assailant,
unless the attack is made with such violence as to render the
battery necessary. Weaver v. Bush, 8 T. R. 78, 1 Russell,
609. The rule on this point is well laid down by a writer on
Scotch Law, "Though fully justified in retaliating, the party
must not carry his resentment such a length as to become the
assailant in his turn, as by continuing to beat the aggressor
after he has been disabled, or has submitted, or by using a
lethal or ponderous weapon, as a knife, poker, hatchet, or ham-
mer, against a fist, or cane, or in general pushing his advan-
tage, in point of strength, or weapons, to the uttermost. In
such cases the defence degenerates into aggression, and the
original assailant is entitled to demand punishment for the new
assault committed on him after his original attack had been duly
chastised." Alison, Princ. Cr. Laic of Scut. 177. 1 Hume, 335.
What does not amount to an assault Interference to prevent
breach of the peace, $fc.] A man may justify an assault and
battery, in preventing the commission of a felony or breach of
the peace, or in the suppression of a riot, &c., as if he force a
sword from one who offers to kill another therewith, or gently
lay his hands upon another, and thereby stay him from inciting
a dog against a third person. Hawk. P. C. b. 1. c. 60. s. 23.
1 Russell, 608. Com. Dig. Pleader, (3 M. 16.) See Timothy
v. Simpson, 1 C. 31. $ R. 757.
Although where there is an actual assault, any one may in-
terfere between the parties to prevent a further breach of the
peace, and may justify an assault in so doing, yet a further pri-
vilege is given to persons standing in a particular relation.
Thus in the case of husband and wife, where the latter is
charged with a battery, it is a justification for her that A. B.,
the person struck, was going to wound her husband, and that
she committed the assault to defend him, and prevent A. B.
214 Assault.
from beating him. JB. IV. P. 18. 1 Lord Raym. 62. So the hus-
band may justify a battery in defence of his wife. In like
manner, a child may justify an assault in defence of his parent.
B. N. P. 18. Hawk. P. C. b. 1. c. 60. s. 23.
Though a servant may justify an assault in defence of his
master, yet it has been said that a master cannot justify an as-
sault in defence of his servant, because he may have an action
per quod servitium amisit ; but the servant can have no action
for an assault upon his master. Leward v. Baseley, 1 Lord
Raym. 62, 1 Salk. 407. B. N. P. 18. The reason appears
to be an insufficient one, since it would be equally applicable
to the case of a husband committing an assault in defence of
his wife, for an injury to whom an action per quod consortium
amisit will lie. Hawkins, though he states that there are
opinions to the contrary, lays down the rule as including the
case of a master committing an assault in defence of his ser-
vant. Hawk. P. C.b.l. c. 60. s. 23, 24. And this also was
the opinion of Lord Mansfield, " 1 cannot say,* he observes,
" that a master interposing when his servant is assaulted, is
not justifiable under the circumstances, as well as a servant in-
terposing for his master. It rests on the relation between
master and servant." Tickel v. Read, Lojft, 215. 1 Riissell,
608. A servant cannot, as it seems, justify an assault in de-
fence of his master's son. Hawk. P. C. b. 1. c. 60. s. 24.
1 Russell, 609. Nor a tenant in defence of his landlord. Le-
ward v. Baseley, 1 Lord Raym. 62.
What does not amount to an assault Defence of possession.]
A man may justify an assault and battery in defence of his
lands or goods, or of the goods of another delivered to him to be
kept. Hawk. P. C. b. I. c. 60. s. 23. In these cases, unless
the trespass is accompanied with violence, the owner of the
land will not be justified in assaulting the trespasser in the first
instance ; but should request him to depart or desist, and if
he refuses, should gently lay hands on him for the purpose of
removing him, and if he resist with force, then force may be
used in return by the owner, sufficient to effect his expulsion.
Weaver v. Bush, 8 T. R. 78, 2 Roll. Ab. 548, 1 East, P. C.
406. B. N. P. 19. But it is otherwise, if the trespasser enter
the close with violence, in which case the owner may, without a
previous request to depart, use violence in return, in the first in-
stance. Greenv. Goddard, Salk. 641. Tullay v. Read, I C. fy
P. 6, B. N. P. 19. But by this must be understood a force
proportioned to the violence of the trespasser, and only for the
purpose of subduing his violence. See 1 Russell, 609. (.)
" A civil trespass," says Holroyd J., "will not justify the firing
a pistol at the trespasser, in sudden resentment or anger. If a
person takes forcible possession of another'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
Assault. 215
another. But a man is not authorised to fire a pistol on every
invasion or intrusion into his house. He ought, if he has a rea-
sonable opportunity, to endeavour to remove the trespasser
without having recourse to the last extremity." Meades case,
Leu-in, C. C. 185. stated post. It seems that in all cases of
resistance to trespassers, the party resisting will be guilty in
law of an assault and battery, if he resists with such violence
that it would, if death had ensued, have been manslaughter.
Vide, post title, " Manslaughter" and " Murder."
What does not amount to an assault execution of process bii
officers, <5fc.] A peace officer, or sheriff's officer may justify
laying hands upon a party to arrest him. 2 Roll. Ab. 546.
But a sheriff ' s officer, in order to justify this, must have a writ
or warrant. Harrison v. Hodgson, 10 B. $ C. 445. A peace
officer, like others, must only use the degree of force necessary
for the occasion, and will be answerable for the excess ; as
where a constable had apprehended a boy fighting, and a by-
stander said, " you ought not to handcuff the boy," upon
which the constable gave him a blow with a stick, and took him
to the watchhouse ; in an action by the party struck, against
the constable, it appeared that the plaintiff had placed himself
before the defendant for the purpose of preventing him from
taking the boy to the watchhouse. Burrough J., said, " there
can be no doubt that the constables were right in stopping the
fight, and would be justified in apprehending any one who
aided or abetted those who fought, but it did not appear that
the defendant did either. If they thought that as the defend-
ant was apprehending the boy, the plaintiff placed himself be-
fore the defendant to hinder him from doing so, that would jus-
tify the defendant in detaining the plaintiff at the watchhouse,
but not in beating him ; but if the plaintiff only said, " you
have no right to handcuff the boy," the defendant was clearly
a wrongdoer as to the whole." Levy v. Edwards, 1 C. fy P. 40.
So, where one of the marshals of the City of London, whose
duty it was on the days of public meetings in the Guildhall, to
see that a passage was kept for members of the corporation,
directed a person in front of the crowd to stand back, and on
being told by him that he could not, for those behind him,
struck him immediately on the face, saying that he would make
him, it was ruled that in so doing, he exceeded his authority ;
that he should have confined himself to the use of pressure, and
that he should have waited a short time, to afford an opportunity
for removing the party in a more peaceable way. Imason t.
Cope, 5 C. if P. 193.
Summary conviction bar to an indictment for assault."] A
summary conviction under the stat. 9 G. 4. c. 31. s. 27. is a
bar to an indictment for the same assault. By sec. 28, it is
enacted, " that if any person against whom any such complaint
216 Assaults Aggravated.
shall have been preferred for any common assault or battery,
shall have obtained such certificate as aforesaid, (a certificate
that the justices deem the offence not to be proved, or to have
been justified, or so trifling as not to merit any punishment, and
accordingly dismiss the complaint) or having been convicted,
shall have paid the whole amount adjudged to be paid, or have
suffered the punishment awarded for non-payment ; ia every
such case, he shall be released from all further or other proceed-
ings, civil or criminal for the same cause." By sec. 29, it is pro-
vided, "that in case the justices shall find the assault or battery
complained of to have been accompanied by any attempt to
commit felony, or shall be of opinion that the same is from any
other circumstance a fit subject for a prosecution by indictment,
they shall abstain from any adjudication thereon, and shall deal
with the case in all respects in the same manner as they would
have done before the passing of the act; provided also, that
nothing therein contained shall authorise any justice of the
peace to hear and determine any case of assault or battery in
which any question shall arise, as to the title to any lands, tene-
ments, or hereditaments, or any interest therein, or accruing
therefrom, or as to any bankruptcy, insolvency, or any execution
under the process of any court of justice."
It seems that where the assault is with intent to commit a
felony, it is optional with the justices whether they will convict
the offender of a common assault, or direct him to be indicted.
Where the charge was of such an assault, and the magistrates
proceeded to convict, on an application for a certiorari to
quash the conviction, Lord Tenterden said that the conviction
was for a common assault, and that the act gave the justices a
discretionary power to judge whether the charge amounted in
substance to more than a common assault. Parke J., observed,
that at all events a certiorari could hardly be granted, for if the
magistrates had no jurisdiction, the conviction was a nullity.
Virgil's case, Lewin, C. C. 16, (n.)
ASSAULTS AGGRAVATED.
Assaults with intent to commit felony . . 217
On officers endeavouring to save shipwrecked property 217
On officers employed to prevent smuggling . 217
With intent to spoil clothes . . 218
By workmen . . .219
Under this head are comprised certain assaults, to which,
being of an aggravated character, the legislature has attached
Assaults Aggravated. 217
additional punishments. Various other enactments of the same
nature will be found stated in a subsequent part of this work
in connexion with the offence, with intent to commit which,
the assault is charged to have been made.
In prosecuting for the offence of an aggravated assault, the
statute points out the particular evidence necessary to be given
in addition to the common proof of assault.
Assaults with intent to commit felony,, fc/j By statute 9
Geo. 4. c. 31. s. 25. it is enacted, that where any person shall
be charged with and convicted of any of the following offences
as misdemeanors, that is to say, of any assault with intent to
commit felony, of any assault upon any peace officer, or reve-
nue officer, in the due execution of his duty, or upon any per-
son acting in aid of such officer ; of any assault upon any
person, with intent to resist or prevent the lawful apprehension
or detainer of the party so assaulting, or of any other person,
for any offence for which he or they may be liable by law to be
apprehended or detained ; or of any assault committed in pur-
suance of any conspiracy to raise the rate of wages ; in any
such case, the court may sentence the offender to be imprisoned
with or without hard labour in the common gaol or house of
correction, for any term not exceeding two years, and may also
(if it shall so think fit) fine the offender, and require him to
find sureties for keeping the peace.
Assaults on officers endeavouring to save shipwrecked property,
$c.~\ By statute 9 Geo. 4. c. 31. s. 24. it is enacted, that if
any person shall assault and strike, or wound any magistrate,
officer, or other person whatsoever, lawfully authorised, on
account of the exercise of his duty in or concerning the preser-
vation of any vessel in distress, or of any vessel, goods, or
effects wrecked, stranded, or cast on shore, or lying under
water; every such offender, being convicted thereof, shall be
liable to be transported beyond the seas for the term of seven
years, or to be imprisoned, with or without hard labour, in the
common gaol or house of correction, for such term as the court
shall award.
Assaults on officers employed to present smuggling.] By
stat. 3 & 4 W. 4. c. 53. s. 61. it is enacted, that if any person
shall by force or violence assault, resist, oppose, molest, hinder,
or obstruct, any officer of the army, navy, or marines, being
duly employed for the prevention of smuggling, andon full pay,
or any officer of customs or excise, or other person acting in his
or their aid or assistance, or duly employed for the prevention
of smuggling, in the due execution of his or their office or duty,
such person being thereof convicted, shall be transported for
seven years, or sentenced to be imprisoned in any house of cor-
218 Assaults Aggravated.
rection or common gaol, and kept to hard labour, for any
term not exceeding three years, at the discretion of the court
before whom the offender shall be tried and convicted as afore-
said.
Assault with intent to spoil clothes.'] By the 6 Geo. 1. c. 23.
s. 11. if any person or persons shall wilfully and maliciously
assault any person or persons in the public streets or highways,
with an intent to tear, spoil, cut, burn, or deface, and shall
tear, spoil, cut, burn, or deface, the garments or clothes of such
person or persons, then all and every person and persons so
offending, and being thereof lawfully convicted, shall be, and
be adjudged to be, guilty of felony; and every such felon and
felons shall be subject and liable to the like pains and penal-
ties as in case of felony, '['his statute is now repealed, but it
is mentioned here for the purpose of introducing the following
case in which much discussion took place with regard to the
proof of intention, a question of great importance in cases of
this nature.
The prisoner had frequently accosted Miss A. Porter and her
sister Miss Sarah Porter, using very indecent language. Meeting
them in St. James's-street, he came behind Miss Sarah Porter,
muttered some gross language, and upon her making an exclama-
tion of alarm, struck her a blow on the head. The Miss Porters
then ran towards the door of their own house, and while Miss
S. Porter was ringing the bell, the prisoner, who had followed
them, stooped down, and struck Miss A. Porter with great vio-
lence on the hip. The blow was given with some sharp instru-
ment, which tore and cut quite through her clothes, and gave a
very severe wound. Buller, J. told the jury, that in order to
constitute an offence within the statute, it was necessary, first,
that the assault should be made in a public street or highway ;
2dly, that it should be made wilfully and maliciously ; 3dly,
that it should be made with an intent to tear, spoil, cut, &c.
the garments or clothes of some person ; and 4thly, that the
garments or clothes of such person should be actually torn,
spoiled, cut, &c. Upon the third point he stated, that if the
intent of the prisoner was to cut both the clothes and the per-
son, and in carrying such intent into execution, the clothes
alone were cut, it would clearly be within the meaning of the
act ; or if the intention were to injure the person only, and
not to cut the clothes, yet, if in carrying such intention into
execution, the assault was made with such an instrument, or
under such circumstances, as plainly showed that the execu-
tion of the intention to injure the person must unavoidably tear,
spoil, cut, &c. the clothes, they might consider whether a per-
son who intends the end, does not also intend the means by
which it is to be attained. The jury found the prisoner guilty,
but upon a case reserved, a majority of the judges were of
Assaults Aggravated. 219
opinion that the conviction was wrong. They thought that in
order to bring a case within the statute, the primary intention
ought to be the tearing, spoiling, cutting, &c. of the clothes ;
whereas in this case, the primary intention of the prisoner ap-
peared to have been the wounding of the person of the prosecu-
trix. Williams'* case, I Leach, 533. 1 East, P. C. 424. It
may be doubted whether the opinion of Buller, J. in this case
was not better founded than that of the judges. It appears to
be supported by Coi's case, Russ. <^ Ry. 362. and Gillow's case,
1 JVJoodv, C. C. 85. stated post. The decision of the judges,
indeed, in Williams'* case, proceeded principally upon another
point.
Assault bit workmen.] By stat. 6 Geo. 4. c. 129. s. 3. if
any person shall, by violence to the person or property, or by
threats or intimidation, or by molesting or iq any way obstruct-
ing another, force, or endeavour to force, any journeyman,
manufacturer, workman, or other person, hired or employed in
any manufacture, trade, or business, to depart from his hiring,
employment, or work, or to return his work before the same
shall be finished, or prevent, or endeavour to prevent, any
journeyman, manufacturer, workman, or other person, not being
hired or employed, from hiring himself to, or accepting work
or employment from, any person or persons ; or if any person
or persons shall use or employ violence to the person or pro-
perty of another, or threats or intimidation, or shall molest or
in any way obstruct another, for the purpose of forcing or in-
ducing such person to belong to any club or association, or to
contribute to any common fund, or to pay any fine or penalty
on account of not belonging to any club or association, or not
having contributed, or refused to contribute, to any common
fund, or to pay any fine or penalty ; or on account of not hav-
ing complied, or refused to comply, with any rules, orders, or
regulations, made to obtain an advance or reduce the rate of
wages, or to lessen or alter the hours of working, or to decrease
or alter the quantity of work, or regulate the mode of carrying
on any manufacture, trade, or business, or the management
thereof; or if any person shall, by violence to the person or
property of another, or by threats or intimidation, or by molest-
ing or in any way obstructing another, force, or endeavour to
force, any manufacturer or person carrying on trade or business,
to make any alteration in his mode of carrying on or conducting
such manufacture, trade, or business, or to limit the number of
his apprentices, or the number or description of his journeymen,
workmen, or servants ; every one so offending, or aiding, abet-
ting, or assisting therein, shall be imprisoned only, or impri-
soned and kept to hard labour, for any period not exceeding
three calendar months.
L2
220
BANKRUPT.
CONCEALING EFFECTS, &C.
Stat. 6 Ceo. 4. c. 16. s. 112. . . .220
Prof/ of the trading . . .221
of the petitioning creditor's debt . .221
of the act of bankruptcy . . . 222
of the commission, or fiat ... 222
of commissioners' oath . . . 223
of adjudication .... 223
of notice to Bankrupt . . . 223
of the Gazette .... 223
of the Bankrupt's examination . . 224
of the concealment, &c. . . . 224
of the value of the effects . . . 225
of the intent to defraud . . 226
By the 5 Geo. 3. c. 30. the concealing or embezzling of his
effects, to the value of 20L by a bankrupt, was made a capital
felony ; but the punishment was changed to transportation for
life by the 1 Geo. 4. c.115. s. 1. By the 6Geo.4. c. 16.
the sum is reduced to 10/.
By the 112th section of that statute it is enacted, that if any
person against whom any commission has been issued, or shall
hereafter be issued, whereupon such person hath been or shall
be declared bankrupt, shall not, before three of the clock upon
the forty-second day, after notice thereof in writing, to be left
at the usual place of abode of such person, or personal notice,
in case such person be then in prison, and notice given in the
London Gazette of the issuing of the commission and of the
meetings of the commissioners, surrender himself to them, and
sign or subscribe such surrender, and submit to be examined
before them from time to time upon oath, or being a Quaker,
upon solemn affirmation ; or if any such bankrupt, upon such
examination, shall not discover all his real or personal estate,
and how and to whom, upon what consideration and when, he
disposed of, assigned, or transferred any of such estate, and all
books, papers, and writings relating thereunto, (except such part
as shall have been really and bona fide before sold or disposed of
in the way of his trade, or laid out in the ordinary expense of
his family) ; or if any such bankrupt shall not, upon such
examination, deliver up to the commissioners all such part of
Bankrupt concealing Effects, tfc. 221
such estate, and all books, papers, and writings relating there-
unto, as be in his possession, custody, or power, (except the
necessary wearing apparel of himself, his wife and children,)
or if any such bankrupt shall remove, conceal, or embezzle any
part of such estate, to the value of 10L or upwards, or any
books of account, papers, or writings relating thereto, with in-
tent to defraud his creditors, every such bankrupt shall be
deemed guilty of felony, and be liable to be transported for
life, or for such term, not less than seven years, as the court
before which he shall be convicted shall adjudge ; or shall be
liable to be imprisoned only, or imprisoned and kept to hard
labour, in any common gaol, penitentiary house, or house of
correction, for any term not exceeding seven years.
There are four different offences created by this statute :
1. the not surrendering and submitting to be examined ; 2. the
not discovering all his real and personal estate ; 3. the not deli-
vering up to the commissioners all such part of such estate, and
all books, &c. as be in his possession, &c. ; 4. the removing,
concealing, or embezzling part of such estate, to the value of
101. and upwards. All these acts must be " with intent to
defraud his creditors."
To support a prosecution against a bankrupt under this sta-
tute, for concealment of his effects, the prosecutor must prove
1. the trading ; 2. the petitioning creditor's debt ; 3. the act
of bankruptcy ; 4. the commission, or fiat ; 5. the oath of the
commissioners ; 6. the adjudication ; 7. the notice to the bank-
rupt ; 8. the notice in the Gazette ; 9. the bankrupt's examina-
tion ; 10. the not disclosing and discovering; 11. the value of
the property concealed ; and lastly, the intent of the bankrupt
to defraud his creditors.
Proof of the trading.'] The prosecutor must give strict evi-
dence of all the requisites of bankruptcy. While the commis-
sion subsists, its validity may be assumed for certain civil pur-
poses ; but where a criminal case occurs, unless the party was
a bankrupt, all falls to the ground. Per Lord Ellenborough,
R. v. Punshon, 3 Campb. 97. The trading must therefore be
proved in the same manner as in a civil action, by the assig-
nees, where strict evidence of their title is required. See Rose.
Dig. Ev. X. P. 457. 3d ed.
The prisoner may prove that the trading, in respect of which
he has been declared a bankrupt, was a trading by him under
age ; which will be an answer to the indictment, as no com-
mission can be sustained upon such a trading. Belton r.
Hodges, 9 Bingh. 365.
Proof of the petitioning creditor's debt.'] The petitioning
creditor's debt must be proved in the same manner as where
strict evidence of it is given in a civil action. It will be suffi-
222 Bankrupt concealing Effects, fyc.
cient, however, to prove an admission of the debt by the pri-
soner himself. But where in an indictment under the former
statute, 5 Geo. 2. c. 30. s. 1. for concealment, the debt was
alleged to be due to A. B. and C., surviving executors of the
last will and testament of D. ; after proof that A. B. and C.
were the executors, and were directed by the will to carry on
the business, it was proposed to give in evidence an admission
by the prisoner, that he was indebted " to the executors," Le
Blanc rejected the evidence, it not appearing that C. had as-
sented to the carrying on of the business as trustee under the
will. He said that the prisoner might mean that he was in-
debted to two of the executors only, and that it was going too
far to infer that he meant all the three. Barnes's case, 1 Stark.
243.
Whether a creditor of the bankrupt is a competent witness
to prove the petitioning creditor's debt, is a question which
does not appear to be well settled. Vide infra. Where for
this purpose the petitioning creditor was called, Park, J. sug-
gested a doubt as to his competency ; but having conferred
with Patteson, J. he said he would receive the evidence, sub-
ject to further consideration. The debt was, however, proved
by other witnesses. Walters's case, 5 C. fy P. 140.
Proof of the act of bankruptcy.] The act of bankruptcy also
must be strictly proved, in the same manner as in an action by
the assignees.
It was held in one case, that on a prosecution under the
5 Geo. 2. a creditor who had not proved his debt might be called
to establish the act of bankruptcy. Bullock's case, 2 Leach,
996, 1 Taunt. 71. But in several civil cases, it has been
ruled that a creditor, whether he has proved or not, is not
competent to support the commission by proving the act of
bankruptcy. Adams v. Malkin, 3 Campb. 543. Crooke v. Ed-
wards, 2 Stark. 302. I Deac. Dig. C. L. 124. Deac. Bank-
rupt L. c. 19. s. 7. The bankrupt's wife is an incompetent
witness for the prosecution. Hawk. P. C.b. 1. c. 59. s. 4.
1 Deac. B. L. 796. ante, p. 115.
Proof of the commission, or fiat.] The commission, or fiat,
is proved by its production, entered of record according to the
provisions of the 6 Geo. 4. c. 16. s. 96. the 1 & 2 W. 4. c. 56.
and the 2 & 3 W. 4. c. 114. s. 1. By those statutes, the cer-
tificate upon the commission, or fiat, purporting to be signed
by the person appointed to enter the same of record, or his
deputy, is, without any proof of signature, evidence of the
instrument having been entered of record.
By the 2 & 3 W. 4. c. 114. s. 8. no fiat issued, or to be
issued, in lieu of a commission, whether prosecuted in the court
of bankruptcy or elsewhere, nor any adjudication of bankruptcy,
Bankrupt concealing Effects, fyc. 223
or appointment of assignees, or certificate of conformity under
such fiat, shall be received in evidence in any court of law or
equity, unless the same shall have been first entered of record in
the said court of bankruptcy.
In some cases of peculiar hardship, the chancellor has en-
larged the time for the bankrupt's making his surrender. Ex-
parte Wood, 1 Atk. 221. Ex parte Lavender, 1 Rose, 55. But
this will not be done where the omission of the bankrupt to
surrender has been wilful. Ex parte Roberts, 2 Rose, 378.
Though the order will not protect a bankrupt from prosecution,
yet it will be considered as a declaration of the chancellor's
opinion that the bankrupt had no fraudulent intent in omitting
to surrender. Ex parte Shil.es, 2 Rose, 381. 1 Deac. Dig. Cr.
Law, 122.
But the chancellor may, by superseding the commission
altogether, bar the prosecution ; and Lord Macclesfield is said
to have superseded a commission in more instances than one,
where the bankrupt had not surrendered himself, and there did
not appear to be any intention of defrauding the creditors. Ex
parte Ricketts, 6 Ves. 445. 1 Atk. 222. However, it should
seem that the same facts which would be sufficient to induce
the chancellor to impede the ordinary course of justice, would
also be a good defence to an indictment. Co. B. L. 485. 8th ed.
Proof of oath of commissioners.] The oath of the commis-
sioners may be proved by the solicitor to the commission, or by
any other person present at the time, and by production of the
memorial.
Proof of adjudication.] The adjudication must be proved
by the production of it, enrolled, and with the certificate of en-
rolment, in the manner prescribed by the 2 & 3 W. 4. c. 114.
s. 8. ante, p. 222.
Proof of the notice to the bankrupt.'] The statute requires the
notice to be left at " the usual place of abode" of the bankrupt,
or in case he be in prison, personal notice must be given.
Where the notice was to surrender to all the five commis-
sioners (omitting the words, or the major part of them, ) it was
held by the judges, upon a prosecution under the 5 Geo. 2.
that the indictment was bad. Frith' s case, 1 Leach, 11.
Proof of the Gazette.] The Gazette is proved by production,
without evidence of its having been bought at the Gazette
printers or elsewhere. Forsyth's case, Russ. $f Ry. 277. Le
Blanc, J . doubted whether an averment of notice in the Ga-
zette was not unnecessary, where the bankrupt had appeared
to his commission, and had been examined. Ibid.
224 Bankrupt concealing Effects, Sfc.
Proof of the bankrupt's examination.'] The bankrupt's exa-
mination is proved by its production, and by the evidence of
the solicitor to the commission, or other person who was pre-
sent at the time, and can speak to its having been regularly
taken. Parol evidence cannot be given of what the bankrupt
said. Thus where, on a prosecution for concealment, the pro-
ceedings were put in, and the paper purporting to be the final
examination did not contain any questions or answers, but
merely stated that the commissioners, not being satisfied with
the answers of the bankrupt, adjourned the examination sine
die ; on its being proposed to give parol evidence of what had
been said before the commissioners by the bankrupt, Park, J.
ruled that he could receive no evidence of the examination but
the writing ; that the examination was required by the act
(6 Geo. 4. c. 16. s. 36.) to be in writing, and that the part of
the act which related to the examining by parol, applied only
to questions, which might be put either by parol or by written
interrogatories. Walters'* case, 5 C. fy P. 141.
Proof of the concealment, ;c.] ID order to bring the pri-
soner within the statute, it must appear that there was a crimi-
nal intent in his refusing to disclose his property. Thus where
the prisoner was indicted under the 5 Geo. 2. c. 30. for not
submitting to be examined, and truly disclosing, &c. and the
evidence was, that on the last day of examination he appeared
before the commissioners, and was sworn and examined, but as
to certain parts of his property refused to give any answer,
stating that this was not done to defraud his creditors, but
under legal advice to dispute the validity of his commission,
and the prisoner was convicted, the judges, on a case reserved,
held the conviction wrong. Page's case, Russ. fy Ry. 392 ;
1 Brod. &; B. 308.
Where a bankrupt was indicted under the 6 Geo. 4. for not
surrendering, and it appeared in evidence that he was in cus-
tody under a detainer collusively lodged, it was urged for the
prosecution, that though in custody, he was bound to give no-
tice of his situation to the commissioners, in order that they
might issue their warrant to bring him before them, or that he
ought to have applied for a habeas corpus, to enable him to ap-
pear before them, or that, at all events, he ought to have applied
to the chancellor to enlarge the time for surrender. But Little-
dale, J. said, that the act was to be construed favourably to-
wards the prisoner, who was not bound to make the application
contended for ; and that as the commissioners had power to
issue their warrant, and by diligent search might discover where
he was, the bankrupt was not bound to give them notice. He
was also of opinion, that the prisoner was not guilty of felony,
though the detainer under which he was in custody was collu-
sive. Mitchell's case, Lewin, C. C. 20 ; 4 C.$ P. 251.
Bankrupt concealing Effects, fyc. 225
It is observed by Mr. Cooke (B. L. 435. 8th ed.), that should
the bankrupt be abroad at the time ot' the commission taken out,
and not hear of it till the last day for his surrender is expired,
it is impossible to imagine that the act should extend to such a
case; and indeed, Lord Hardwicke expresses his opinion (1
Ves. 222.) that particular circumstances might amount to a de-
fence upon a criminal prosecution.
The bankrupt is not guilty of a concealment until he has
passed his last examination. Until that time he has a locus
penitently, and although he may previously have concealed the
property, he may yet deliver it up before the conclusion of his
examination. Walters'* case, 5 C. $ P. 138.
If on his examination the bankrupt refer to a document, as
containing a full and true discovery of his estate and effects, it
is incumbent on the prosecutor to produce that book or to
account for its non -production ; for otherwise it cannot be
known whether the effects have been concealed or not. Evani's
case, 1 Moody, C. C. 70.
It is not necessary that the concealment should have been ef-
fected by the hands of the prisoner himself, or that he should be
shown to have been in the actual possession of the goods con-
cealed, after the issuing of the commission ; it is sufficient if
another person, having the possession of the effects as the agent
of the prisoner, and holding them subject to his control, is the
instrument of the concealment. See Evani's case, 1 Moodv,
C. C. 74.
The evidence of the concealment, and of the guilty intent
with which the act is done, ought to be very satisfactorily made
out, but in general it is so clear as to leave little doubt on the
point. Concealment of goods in the houses of neighbours or of
associates, or in secret places in the bankrupt's own house, or
sending them away in the night, endeavouring to escape abroad
with part of his effects, &c., constitute the usual proofs in cases
of this description. See Alison, Principles Cr. Law of Scotland,
571.
It has been held by the court of review, (Sir J. Cross, diss.)
that a bankrupt who has passed his last examination may be
called upon to answer questions touching the concealment of
his effects. In re Smith, Mont. # B. 203 ; 2 Deac. &; Chit. 230.
and see Ez parte Heath, M. Sf B. 184 ; 2 Deac. &; Chit. 214.
Proof of the value of the effects.'] Where the prosecution is
on the ground of concealing effects, it must be proved that
those effects were of the value of 10L, and where the value is
attached to all the articles collectively, as " one table, six
chairs, and one carpet, of the value of 1 0/. and upvvaids," it is
necessary to make out the offence as to every one of the articles,
for the grand jury have only ascribed the value to all the arti-
cles collectively. Forsyth's case, Russ.fy Ry. 274. 2 Kuss. 251.
L5
226 Barratry.
Proof of intent to defraud.] Lastly, the prosecutor must
prove the intent of the bankrupt to defraud his creditors. This
will in general appear from the whole circumstances of the case.
Evidence of it may likewise be gathered from the declarations
of the prisoner. Vide ante, p. 224.
BARRATRY.
A barrator is defined to be a common mover, exciter or
maintainer of suits or quarrels either in courts or in the country,
and it is said not to be material, whether the courts be of record
or not, or whether such quarrels relate to a disputed title or pos-
session, or not; but that all kinds of disturbances of the peace,
and the spreading of false rumours and calumnies, whereby
discord and disquiet may grow amongst neighbours, are as
proper instances of barratry as the taking or keeping possession
of lands in controversy. But a man is not a barrator in respect
of any number of false actions brought by him in his own right,
unless, as it seems, such actions should be entirely groundless
and vexatious, without any manner of colour. Nor is an attor-
ney a barrator, in respect of his maintaining his client in a
groundless action, to the commencement of which he was in no
way privy. Hawk. P. C. b. 1. c. 81. *. 1, 2, 3, 4. 1 Russell,
185.
Barratry is a cumulative offence, and the party must be
charged as a common barrator. It is therefore insufficient to
prove the commission of one act only. Hawk. P. C.b. 1. c. 81.
s. 5. For this reason the prosecutor is bound, before the trial,
to give the defendant a note of the particular acts of barratry in-
tended to be insisted on, without which the trial will not be
permitted to proceed. Ibid. s. 13. The prosecution will be
confined by these particulars. Goddard v. Smith, 6 Mod. 262.
The punishment of this offence is fine and imprisonment.
Hawk. P. C.b. I.e. 81. j. 14.
227
BIGAMY.
Former law and stat. 9 Geo. 4. c. 31.
Proof of the marriages . ,
In general .
Marriages in England .
By banns . .
By licence minors
Marriages in Scotland .
Marriages in Ireland .
Marriages abroad
Venue
In British factories
In British colonies .
In houses of ambassadors
227
228
228
229
230
233
233
236
236
239
240
241
242
Proof for the prisoner under the exceptions in the Marriage
Act . . . . . .242
Former law, and stat. 9 G. 4. c. 31.] The offence of bigamy
was originally only of ecclesiastical cognizance, but was made
a felony by the stat. 1 Jac. 1. c. 11. By the 2d section of
that statute, it was provided that the act should not extend to
any person or persons whose husband or wife should be conti-
nually remaining beyond the seas, by the space of seven years
together, or whose husband or wife should absent him or her-
self, the one from the other, by the space of seven years toge-
ther, in any parts within his Majesty's dominions ; the one
of them not knowing the other of them to be living within that
time. By section 3, it was provided that the act should not ex-
tend to any person or persons that are, or shall be at the time
of such marriage divorced by any sentence in the Ecclesiastical
Court, or to any person or persons where the former marriage
shall be by sentence in the Ecclesiastical Court declared to be
void, and of no effect, nor to any person or persons in or by
reason of any former marriage, had or made within age of con-
sent.
By the statute 35 G. 3. c. 67. persons guilty of bigamy were
made liable to the same punishment as persons convicted of
fraud or petit larceny.
By the statute 9 G. 4. c. 31. both the above statutes were
repealed, and other provisions substituted in their place.
By that statute, s. 22, it is enacted, that if any person being
married, shall marry any other person during the life of the
228 Bigamy.
former husband or wife, whether the second marriage shall have
taken place in England or elsewhere ; every such offender,
and every person counselling, aiding, or abetting such offender,
shall be guilty of felony, and being convicted thereof, shall be
liable to be transported beyond the seas for the term of seven
years, or to be imprisoned with or without hard labour, in the
common gaol or house of correction, for any term not exceeding
two years ; and any such offence may be dealt with, inquired
of, tried, determined, and punished in the county where the
offender shall be apprehended, or be in custody, as if the offence
had been actually committed in that county. Provided always,
that nothing herein contained shall extend to any second mar-
riage contracted out of England by any other than a subject of
his Majesty ; or to any person marrying a second time whose
husband or wife shall have been continually absent from such
person for the space of seven years then last past ; and shall
not have been known by such person to be living within that
time, or shall extend to any person who at the time of such
marriage shall have been divorced from the bond of such first
marriage, or to any person whose former marriage shall have
been declared void by the sentence of any court of competent
jurisdiction.
Upon an indictment for bigamy, the prosecutor must prove
1. the prisoner's first marriage ; 2. the prisoner's second mar-
riage ; 3. that his first wife was alive at the time of the second
marriage ; and 4. that the second marriage took place either in
the county in which he is tried, or in that in which he was ap-
prehended, or is in custody.
Proof ff the marriages in general.] The prosecutor must
prove the two marriages, and it is sufficient if he prove a voidable
marriage. Jacob's case, I Moody, C. C. 140. stated post, 236.
But if either of the marriages, or at all events, the first mar-
riage (vide post, p. 231.) be void, an indictment tor bigamy
cannot be sustained. Thus, if a woman marry A., and in the
lifetime of A. marry B., and after the death of A., and whilst
B. is alive, marry C., she cannot be indicted for bigamy in her
marriage with C., because her marriage with B. was a mere
nullity. 1 Hale, P. C. 693. Although it was formerly held
that the marriage of an idiot was valid, yet, according to modern
determinations, the marriage of a lunatic, not in a lucid interval,
is void. 1 El. Com. 438, 439. 1 Russell, 206. And by stat.
15 G. 2. c. 30. if persons found lunatics under a commission,
or committed to the care of trustees by any act of parliament,
marry before they are declared of sound mind by the Lord Chan-
cellor, or the majority of such trustees, the marriage shall be
totally void.
It was held under the former law, that where the second
marriage was contracted in Ireland, or abroad, it was not
bigamy, on the ground that that marriage which alone consti-
Bigamy. 229
tuted the offence was a fact done in another jurisdiction, and
though inquirable here for some purposes, like all transitory
acts, was not as a crime cognizable bv the rules of the common
law. 1 Hale, P. C. 692. 1 East, P. C. 465. 1 Russell, 188.
But now by the statute 9 G. 4. c. 31. s. 22. the offence is the
same, whether the second marriage shall take place in England
or elsewhere.
The identity of the parties named in the indictment must be
proved. Upon an indictment for bigamy, it was proved by a
person who was present at the prisoner's second marriage, that
the woman was married to him by the name of Hannah Wil-
kinson, the name laid in the indictment, but there was no other
proof that the woman in question was Hannah Wilkinson.
Parke J. held the proof to be insufficient, and directed an ac-
quittal. He subsequently expressed a decided opinion that he
was right, and added, that to make the evidence sufficient, there
should have been proof that the prisoner " was then and there
married to a certain woman fry the name of, and who called her-
self Hannah Wilkinson," because the indictment undertakes
that a Hannah Wilkinson was the person, whereas, in fact,
there was no proof that she had ever before gone by that name,
and if the banns had been published in a name which was not
her own, and which she had never gone by, the marriage would
be invalid. Drake's case, Leicin, C. C. 25.
After proof of the first marriage, the second wife is a compe-
tent witness, for then it appears that the second marriage was
void. B. A T . P. 287. 1 Last, P. C. 469. ante, p. 114.
The form and validity of marriages will now be considered
under the following heads : marriages in England marriages
in Scotland marriages in Ireland marriages abroad mar-
riages abroad in British factories marriages abroad in British
colonies marriages abroad in houses of ambassadors.
Proof of the marriages marriage in England.] Where the
marriage has taken place in England, it may be proved by a
person who was present at the ceremony, and who can speak to
the identity of the parties, and it is not necessary to give evi-
dence either of the registration of the marriage, or of any licence,
or of any publication of banns. Alison's case, Russ. Ry. 109.
The usual evidence is a copy of the register, with proof of the
identity of the parties.
Whether an acknowledgment of his marriage by the prisoner
will be sufficient evidence against him in a case of bigamy,
does not appear to have been solemnly determined. Some of
the judges in Truman's case, (1 East, P. C. 471. post, p. 233.)
thought that such an acknowledgment alone was sufficient,
and strong reasons were given by them in suppoit of that opi-
nion. " With respect to such evidence," says Mr. East, " it may
be difficult to say, that it is not evidence to go to the jury like the
230 Bigamy.
acknowledgment of any other matter in pais, where it is made
by a party to his own prejudice. But it must be admitted, that
it may under circumstances be entitled to little or no weight,
for such acknowledgments made without consideration of the
consequences, and palpably for other purposes at the time, are
scarcely deserving of that name in the sense in which acknow-
ledgments are received as evidence, more especially, if made
before the second marriage, or upon occasions where in truth
they cannot be said to be to the party's own prejudice, nor so
conceived by him at the time." 1 East, P. C. 471. These ob-
servations have been adopted by Mr. Serjt. Russell. 1 Russell,
207, (n.)
The marriages of Jews and Quakers are excepted out of the
marriage act. Where it was proposed to prove a Jewish mar-
riage by calling witnesses who were present at the ceremony in
the synagogue, it was objected that such ceremony was only the
ratification of a previous contract in writing, and the contract
was accordingly produced and proved. Hornev. Noel, 1 Campb.
61 ; and see Lindo v. Belisario, 1 Hagg. 225, 247, Appx. p. 9.
Goldsmid v. Bromer, Id. 324. The marriages of Quakers must
be proved to have taken place according to the customs of that
sect. 1 Haggard, Appx. p. 9. (w.) Deanev. Thomas, M.fyM.
361. There is no exception in the marriage act, with regard
to the marriage of other Dissenters.
The cases in which the validity of marriages in England has
been questioned, on the ground of a noncompliance with the
requisitions of the marriage act respecting the publication of
banns and licences, will be considered under separate heads.
Proof that the parties were not resident according to the pro-
visions of the act, will not invalidate the marriage, whether it
be by banns or licence, for by the 26th sect, of the 4 G. 4. c. 76.
it is enacted, that after the solemnization of any marriage,
whether by banns or licence, it shall not be necessary in sup-
port of such marriage, to give any proof of the actual dwelling
of the parties in the parish where the marriage is solemnized ;
nor shall any evidence in either of such cases be received to
prove the contrary. See Hind's case, Russ. fy Ry. 253. Dobbin
v. Cornack, 2 Phill. 104. Free v. Quin, Id. 14.
Proof of the marriages marriage in England, by banns.'] In
what cases a marriage shall be void, is declared by the 22d sect, of
the marriage act, 4 G. 4. c. 75. which enacts, that if any per-
sons shall knowingly and wilfully intermarry in any other place
than a church or such public chapel, wherein banns may be
lawfully published, unless by special licence, or shall knowingly
and wilfully intermarry without a publication of banns, or
licence from a person or persons having authority to grant the
same, first had and obtained, or shall knowingly and wilfully
consent to, or acquiesce in the solemnization of such mar-
Bigamy. 231
riage by any person not being in holy orders, the marriage of
such persons shall be null and void.
With regard to the chapels in which banns may be lawfully
published, it is enacted by the 6 G. 4. c. 92. s. 2. that it shall
be lawful for marriages to be in future solemnized in all churches
and chapels erected since the 26 G. 2. c. 33. and consecrated,
in which churches and chapels it has been customary and usual
before the passing of that act (6 G. 4.) to solemnize marriages,
and the registers of such marriages, or copies thereof, are de-
clared to be evidence. By sec. 3. of the last marriage act,
4 G. 4. c. 76. the bishop of the diocese, with the consent of the
patron and incumbent of the church of the parish in which any
public chapel having a chapelry thereunto annexed may be
situated, or of any chapel situated in an extra -parochial place,
signified to him under their hands and seals respectively, may
authorise by writing under his hand and seal the publication of
banns, and the solemnization of marriages in such chapels for
persons residing in such chapelry or extra-parochial place, and
such consent, together with such written authority, shall be re-
gistered in the registry of the diocese.
To render a marriage without due publication of banns void,
it must appear that it was contracted with a knowledge by both
parties that no due publication had taken place. R. i. Wrorton,
4 JB. $f Ad. 640. And, therefore, where the intended husband
procured the banns to he published in a Christian and surname
which the woman had never borne, but she did not know that
fact until after the solemnization of the marriage, it was held to
be a valid marriage. Id. and see Wiltshire v. Prince, 3 Hag".
Ecc. R. 332.
If the prisoner has been instrumental in procuring the banns
of the second marriage to be published in a wrong name, he
will not be allowed to take advantage of that objection to inva-
lidate it on an indictment for bigamy. The prisoner was in-
dicted for marrying Anna Timson, his former wife being alive.
The second marriage was by banns, and it appeared that the
prisoner wrote the note for the publication of the banns, in
which the wife was called Anna, and that she was married by
that name, but that her real name was Susannah. On a case
reserved, the judges held unanimously, that the second marriage
was sufficient to constitute the offence, and that afier having
called the woman Anna in the note, it did not lie in his
mouth to say that she was not as well known by the name
of Anna as by that of Susannah, or that she was not rightly
called by the name of Anna in the indictment. Edu-ards's
case, Russ. <Sf Hit. 283. 1 Russell, 201.
This principle was carried still further in a late case before
Mr. Baron Gurney. The second wife, who gave evidence on
the trial, stated that she was married to the prisoner by the
name of Eliza Thick, but that her real name was Eliza Browne,
232 Bigamy.
that she had never gone by the name of Thick, but had assumed
it when the banns were published, in order that her neighbours
might not know that she was the person intended. It being
objected on behalf of the prisoner that this was not a valid
marriage, Gurney, B. said, " that applies only to the first mar-
riage, and I am of opinion that the parties cannot be allowed
to evade the punishment for the offence by contracting an
invalid marriage." Pensnn's case, 5 C. & P. 412. In another
case where the prisoner contracted the second marriage in the
maiden name of his mother, and the woman he married had
also made use of her mother's maiden name, it was unanimously
resolved, on a reference to the judges, that the prisoner had
been lightly convicted on this evidence. Palmer's case, coratn
Bayley, Durham, 1827, 1 Deacon's Dig. C. L. 147.
The following rules laid down by Lord Tenterden in a case
upon the construction of the former marriage act, 26 Geo. 2.
with regard to the validity of marriages celebrated by banns
must be taken subject to the limitation established in R. >.
Wroxton, 4B.fyAd. 640, a?i<ep.231. If there be a total varia-
tion in a name or names, that is, if the banns are published in
a name or names totally different from those which the parties
or one of them ever used, or by which they were ever known, a
marriage in pursuance of that publication is invalid, and it is
immaterial uhether the misdescription has arisen from accident
irr design, or whether such design be fraudulent or not. (Hut
now see R.v. Wroxton, supra.) But secondly, if there be a
partial variation of name only, as the alteration of a letter or
letters, or the addition or suppression of one Christian name, or
the names have been such as ihe parties have used and been known
by, at one time and not at another, in such cases the publica-
tions may or may not be void ; the supposed misdescription
may be explained, and it becomes a most impoitant part of the
inquiry, whether it was consistent with honesty of purpose, or
arose from a fraudulent intention. It is in this class of cases
only that it is material to inquire into the motives of parties.
R. v. Tibshelf, 1 B. fy Adol. 195. A person whose name was
Abraham Lungley was married by banns by the name of George
Smith ; he had been known in the parish where he resided, and
was married, by the latter name only, and the Court of King's
Bench held that this was a valid marriage under the 26 Geo. 2.
R. v. Billingshurst, 3 M. <Sf S. 250. The distinction between a
name assumed for other purposes, and a name assumed for the
purpose of practising a fraud upon the marriage laws was clearly
pointed out in the following case. A man who had deserted from
the army, for the purpose of concealment assumed another name.
After a residence of sixteen weeks in the parish he was married by
licence in his assumed name, by which only he was known in the
place where he resided. Lord Ellenborouh said, " If this name
had been assumed for the purpose of fraud, in order to enable
Bigamy. 233
the party to contract marriage, and to conceal himself from the
party to whom he was about to be married, that would have
been a fraud on the marriage act, and the rights of marriage
and the court would not have given effect to any such corrupt
purpose. But where a name has been previously assumed, so
as to become the name which the party has acquired by reputa-
tion, that is, within the meaning of the act, the party's real
name." The marriage was accordingly held valid within the
26 Geo. 2. R. v. Burton-upon-Trent, 3 M. $ S. 537.
But where the marriage is celebrated in a wrong name for the
purpose of carrying into effect a fraud upon the marriage laws, it
is void ; though, as it has been shown, it would not be so con-
sidered with regard to the second marriage upon a prosecution
for bigamy, as against the party guilty of the fraud. Ante
p. 231. Where the banns were published in the name of
William, the real name being William Peter, and the
party being known by the name of Peter, and the suppres-
sion was for the purpose of effecting a clandestine marriage
with a minor, without consent, the marriage was declared null
and void. Poiiget v. Tomkins, 1 Philllmore, 449. See also
Fellowes v. Stewart, 2 Philtimore, 257, Middowcrofft v. Gre-
gory, Id. 365. So where the wife at the time of her marriage
personated another woman, in whose name banns had been pre-
viously published for an intended marriage with the husband.
Siayte v. Farquharson, 2 Add. 282.
Proof of the marriages marriages in England by licence
minors.] Under the former marriage act, 26 G. 2., it was
held, that if the marriage was by licence, and the prisoner
proved that he was a minor at the time, it lay on the prosecutor
to show that the consent required by the llth section of the
above act had been obtained, or that otherwise the marriage
was void. Butler's case, Rnss. fy Ry. 61. Morton's case, Id.
19, (?i.) James's case, Id. 17. Smith v. Huson, 1 Phillimore,
287. The law on this point has been altered by the new mar-
riage act, 4 G. 4. c. 76. s. 14, which merely requires consent,
and has no words making marriages solemnized without such
consent void. The statute therefore is regarded as directory only,
and a marriage by a minor without the consent of his father,
then living, has been held valid. R. v. Birmingham, 8 B. &; C.
29, 2 Man. &; Ry. 230. So in the interval between the time
of the 3 G. 4. c. 75, (by which the 26 G. 2. was repealed)
receiving the royal assent, and the time when it began to
operate, a marriage by licence having been solemnized without
consent, was held valid. Waulty's case, 1 Moody, C. C. 163.
Proof of the marriages marriage in Scotland.] A marriage
in Scotland, irregular by the laws of that country, subjecting
the parties to censures there, is yet regarded as a valid mar-
riage, according to the laws of England. In Truman's cote,
254 Bigamy .
the following was held to be sufficient evidence of a Scotch
marriage. A witness proved that he knew the prisoner, that
Mary Russell, his first wile, was still alive ; that the prisoner
acknowledged he had been married to her in Scotland, and once
showed the witness a paper which he said was a certificate of
marriage. The prisoner not producing this paper according to
notice, a copy of it was proved, with the prisoner's acknow-
ledgment of his own hand-writing to the original. The writ-
ing in question purported to be a proceeding before a court in
Scotland, reciting an act of Car. 2. parl. 1. sess. 1. c. 34, re-
specting marrying in a clandestine and disorderly manner, and
continued thus, " Nevertheless, true it is, I. T. and M. R.
were married within three months last past, by some person
not authorised by the kirk, and without proclamation of banns,
and therefore should be fined in the terms of the act to deter
others from committing the like." It then stated a personal
warning against the defendants, and was signed " Jno. Tru-
man and Mary Russell," and indorsed by two witnesses.
There was then an adjudication of the fine. Upon this evi-
dence, together with due proof of the second marriage, the
prisoner was convicted, and a question was reserved for the
.opinion of the judges, whether the first marriage was legally
proved 1 All the judges present were of opinion, that it was
legally proved. It was observed by two of their lordships that
the case did not rest upon cohabitation and bare acknowledg-
ment, for the defendant had backed his assertion by the pro-
duction of a copy of a proceeding against him for having im-
properly contracted the first marriage. But some thought that
the acknowledgment alone would have been sufficient, and
that the paper produced in evidence was only a confirmation of
such acknowledgment, and one of them, referring to the case of
Morris v. Miller, (4 Burr. 2059,) observed that there was a dis-
tinction between an action for criminal conversation and an in-
dictment for this offence ; that in the former the acknowledgment
and cohabitation of the plaintiff could not prove his marriage
as against the defendant ; and the acknowledgment of the de-
fendant in such an action of the plaintiff's marriage might be
of a fact not within his own knowledge, as it must be if a de-
fendant in bigamy admitted his own marriage. Truman's case,
1 East, P. C. 470.
In a very recent publication on the Criminal Law of Scot-
land, the following observations are made on the subject, whe-
ther a marriage irregular, but not void, by the Scotch law, is
sufficient to support an indictment for bigamy. " The most
important question in the law of bigamy is, whether both mar-
riages must be by formal celebration, or whether the charge
lies, though one of them, or both have been contracted in that
loose and unceremonious manner which is sustained by the law
of Scotland. In thoses cases where both the matrimonial con-
Bigamy. 235
nexions were of this ambiguous character, there seems to be no
doubt that no prosecution for bigamy can lie, and that a second
wife who marries either by promise and copula, courtship and
acknowledgment, or habile and repute, takes her chance of a
previous matrimonial connexion having been contracted in the
same irregular manner. Where the first marriage has been
regular, but the second clandestine, the offending party seems
entitled to plead that he truly never did intend to marry at
all, but was bent upon a connexion of a different nature, and
that the partner of his crime has herself to blame, for not hav-
ing taken those precautions by proclamation of banns, and
otherwise, which the law has provided for that very case. But
in the case of George Story, Dumfries, April 1824, Lord Justice
Clerk Boyle sustained as relevant a charge of bigamy where
the second marriage was a clandestine one, solemnized at
Annan after the fashion of that place. In regard to the most
unfavourable case for a defendant, that of a regular marriage
following a clandestine matrimonial connexion, it deserves con-
sideration, that possibly the man did not intend to marry in the
first instance, and was entirely ignorant that he had involved
himself in its bonds ; a situation by no means unlikely to occur
when it is recollected how many men under the present law of
Scotland do not know whether they are married or not ; and
how long an investigation is frequently required to enable
others to determine the point. So that, as the law cannot sus-
tain a criminal prosecution where the criminal intent is not
apparent, it rather appears, though there is no decided case
expressly in point, that there are not the requisite materials for
a prosecution for bigamy, unless both marriages were formal.
In the case of John Roger, Aberdeen, September, 1813, it ap-
peared that the defendant had had a connexion with Mary Innes,
with whom he had cohabited many years, and had a family.
The woman having been brought before the Kirk session, and
rebuked for fornication, the defendant, in presence of the
minister, admitted that she had yielded in consequence of a
promise of marriage on his part, upon which the minister, some-
what rashly, declared them married persons, much against
the prisoner's will. They afterwards cohabited as man and
wife, as there was a promise and copula and marriage by habite
and repute, but as the case was of an ambiguous character, the
jury under the direction of Lord Gillies, found the defendant
not guilty, a verdict evidently implying that a charge of bigamy
could not be supported where the first marriage was of this
irregular and disputed description. If, however, the first mar-
riage, though clandestine, has gradually assumed the character,
and consistence of a regular connexion, and the parties have
lived together in that way for a length of time, there seems
to be little doubt that a second regular marriage, following
such a permanent and acknowledged status with another
236 Bigamy.
woman, will expose to the pains of bigamy." Alison's Print.
Cr. Law of Scot. 536.
Proof of the marriages marriage in Ireland.] It seems not
to be essential to the validity of a marriage in Ireland that the
ceremony should take place in a church. Where it had been
performed by a dissenting minister in a private room, the re-
corder was clearly of opinion that it was valid, on the ground
that as before the marriage act a marriage might have been ce-
lebrated in England in a house, and it was only necessary by
positive law to celebrate it in a church, some law should be
shown requiring dissenters to be married in a church ; whereas
one of the Irish statutes, 21 & 22 G. 3. c. 25. enacts, that all
marriages between Protestant dissenters, celebrated by a Pro-
testant dissenting teacher, shall be good, without saying at what
place they shall be celebrated. Anon. 0. B. coram Sir J. Sil-
vester, 1 Russell, 205. So where a marriage was celebrated at
a private house in Ireland by a clergyman of the church of
England, the curate of the parish, Best, C. J. held it to be
valid. He said, " When I find that this marriage was perform-
ed by a gentleman who had officiated as curate of the parish for
18 years, I must presume it to have been correctly performed
according to the laws of that country, and I shall not put the
defendant [it was an action in which coverture was pleaded] to
the production of a licence or to any further proof. It is true
that in a case for bigamy, tried before Mr. Justice Bayley, on
the northern circuit, an acquittal was directed because the first
marriage, which took place in Ireland, was performed in a pri-
vate house ; but I have reason to know that that learned judge
altered his opinion afterwards, and was satisfied of the validity
of the first marriage." Smith v. Maxwell, Rv. <3f Moo. IV. P. C.
80. The case referred to by Best, C. J. appears to be that
of R. v. Reilly, 3 Chetw. Burn, 726, in which there was no
direct evidence that the law of Ireland permitted a marriage to
be celebrated at a private house.
Where the first marriage was in Ireland, and it appeared
that one of the parties was under age, and no consent of parents
was proved, the judges, after referring to the Irish marriage act,
9 G. 2. c. 11. were of opinion that though that act has words
to make such a marriage void, yet other parts of the statute
show that it is voidable only ; and any proceedings to avoid it
must be taken within a year, and they therefore held the first
marriage binding. Jacobs' case, 1 Moody, C. C. 140.
Proof of the marriages marriage abroad. ~\ The general
principle with regard to marriages contracted in a foreign coun-
try is, that between persons sid juris, marriage is to be decided
by the law of the place where it is celebrated. If valid there,
it is valid everywhere. It has a legal ubiquity of obligation.
Bigamy. 237
If invalid there, it is equally invalid everywhere. Story on the
Conflict of Laws, 104. citing .Story v. Story, 2 Phill. Ecc. Rep,
332 Herbert v. Herbert, 3 Phill. Ecc. Rep. 58. Dalrumple v.
Dulrymple, 2 Hugo. Cons. Eep. 54. Ruding v. Smith, 2 Hagg.
Cons. Rep. 390, 391. Scnmshire v. Scrimshire, 2 Hagg. Cons.
Rep. 395. llderton v. Ilderton, 2 H. El. 145. Middleton v.
Sauverin, 2 Hagg. 437. Lacon v. Higgins, 3 Sfarfc. JV. P. C.
178. 2 font Com. Lect. 26. p. 91 (2<i ed.) 2 bairns on Eg.
6. 3. c. 8. s. 1. The most prominent, if not the only exceptions
to this rule, are those relating to polygamy and incest : those
positively prohibited by the public law of a country from motives
of policy, and those celebrated in foreign countries by subjects
entitling themselves by special circumstances to the benefit of
the laws of theii own country. Story on the Conflict of Laws,
104.
The first exception to the general rule mentioned by Mr. Jus-
tice Story is that relating to polygamy and incest. These Chris-
tianity is understood to prohibit, and no Christian country,
therefore, would recognise polygamy, or an incestuous mar-
riage. But with regard to the latter, he takes a distinction
between marriages incestuous by the law of nature, and such as
are incestuous by the positive code of a state ; and upon this
point, he cites a judgment of one of the American courts:
" If," say the court, " a foreign state allows of marriages in-
cestuous by the law of nature, as between parent and child,
such marriage would not be allowed to have any validity here ;
but marriages not naturally unlawful, but prohibited by the
law of one state and not of another, if celebrated where they
are not prohibited, would be held valid in a state where they
are not allowed." Greenwood v. Curtis, 6 Mass. Rep. 378.
" Indeed," continues Mr. Justice Story, " in the diversity of reli-
gious opinions in Christian countries, a large space must be
allowed for interpretation as to religious duties, rights, and so-
lemnities. In the Catholic countries of continental Europe,
there are many prohibitions of marriage which are connected
with religious establishments and canons, and in most countries
there are positive or customary prohibitions which involve pecu-
liarities of religious opinion or conscientious doubt. It would
be most inconvenient to hold all marriages celebrated elsewhere
void, where not in scrupulous accordance with local institutions."
Stnrv on the Conflict of Laws, 107.
In England, however, incestuous marriages are not void, but
only voidable, during the lives of the parties ; and if not so
avoided, are to all intents valid. 1 Bl. Com. 434.
With regard to the second exception, the prohibitions depend-
ing upon positive law, they apply only in strictness to the sub-
jects of a country. Story, 108. An illustration of this may be
found in the Civil Code of France, which annuls (art. 174.)
238 Bigamy.
marriages by Frenchmen in foreign countries, who are under
incapacity by the laws of France. Ibid.
The third exception arises in cases of moral necessity, and
has been applied to persons residing in factories, in conquered
places, and in desert or barbarous countries, or in countries of
an opposite religion, who are permitted to contract marriage
there according to the laws of their own country. In short,
wherever there is a local necessity, from the absence of laws,
or the presence of prohibitions or obstructions not binding upon
other countries, or from peculiarities of religious opinion and
conscientious scruple, or from circumstances of exemption from
local jurisdiction, marriages will be allowed to be valid ac-
cording to the law of the native domicil. Ibid, citing lluding
v. Smith, 2 Hagg. Cons. K. 371. 384, 385, 386. Lautour v.
Teesdale, 8 Taunt. 830, 2 Marsh. 243. R. v. Inhabitants of
Brampton, 10 East, 282.
Although it is an established rule that a foreign marriage,
valid according to the law of the place where celebrated, is good
everywhere eUe, yet it has not been e converso established that
marriages of British subjects, not good according to the law of
the place where celebrated, are universally and under all possi-
ble circumstances to be regarded as invalid in England. It is
certainly the safest course to be married according to the law of
the country, for then no question can be raised ; but if this can-
not be done on account of legal or religious difficulties, the law
of this country does not say that its subjects shall not marry
abroad. Per Lord Stowetl, Rudiiig v. Smith, 2 Hagg. Cons.
Rep. 371.
In proving a marriage abroad, it must appear that the cere-
mony performed was the marriage ceremony according to the
foreign law. Thus where, on an indictment for bigamy, before
the 26 Geo.2. it appeared that the first marriage, which was with
a Roman Catholic woman in England, was performed by a Ca-
tholic priest, not according to the ritual of the church of Eng-
land, and the ceremony was performed in Latin, which the wit-
nesses not understanding, could not swear even that the cere-
mony according to the church of Home was read, the defendant
was directed to be acquitted. Lyon's case, 0. B. 1 East, P. C.
469.
In proving a marriage which has taken place abroad, evi-
dence must be given of the law of the foreign state, in order to
show its validity. For this purpose, a person skilled in the laws
of the country should be called. Lindo v. Belisario, 2 Hagg.
248. Middlelon v. Janvers, 2 Hagg. 441 . But ?ee Horford v.
Morris, 2 Hagg. 431. Where evidence of the law of Scotland
was required, the testimony of a witness who was a tobacconist
was rejected. Anon, cited 10 East, 287.
Some obscurity appears to exist with re gard to the mode of
Bigamy. 239
proving foreign laws in English courts. The rule, as at present
understood, appears to be, that the written law of a foreign
state must be proved by a copy duly authenticated. Clegg v.
Levy, 3 Campb. 166. With regard to the mode of authentica-
ting it, the following case has occurred. In order to prove the
law of France respecting marriage, the French vice-consul was
called, who produced a copy of the Cinq Codes, which, he stated,
contained the customary and written laws of France, and was
printed under the authority of the French government. Sir
Thomas Picton's case, 30 How. St. Tr. 514. was referred to as
an authority in favour of admitting this evidence, but it appears
that there the evidence was received by consent. 30 St. Tr. 494.
Abbott, J. said that the general rule certainly was, that the
written law of a foreign country must be proved by an examined
copy, before it could be acted on in an English court, but ac-
cording to his recollection, printed books on the subject of the
law of Spain were referred to and acted on in argument in Sir
T. Picton's case, as evidence of the law of that country, and
therefore he should act on that authority, and receive the evi-
dence. Lacon v. Higgins, Doid. $ Ry. N. P. C. 38, 3 Stark.
178.
The practice with regard to the proof of foreign laws in the
United States is as follows : The usual modes of authentica-
ting foreign laws there, are by an exemplification under the
great seal of a state ; or by a copy proved to be a true copy ;
or by the certificate of an officer authorised by law, which cer-
tificate itself must be duly authenticated. But foreign unwrit-
ten laws, customs, and usages, may be proved, and indeed
must ordinarily be proved, bv parol evidence. The usual course
is to make such proof by the testimony of competent witnesses,
instructed in the law, under oath ; sometimes, however, certifi-
cates of persons in high authority have been allowed as evi-
dence. Story on the Conflict of Laws, 530.
Proof of the marriages marriage abroad in British facto-
ries.] On Ihe subject of the mode of performing marriages in
British factories abroad, Lord Stowell has made the following
observations. " What is the law of marriage in all foreign
establishments, settled in countries professing a religion essen-
tially different 1 In the English factories at Lisbon, Leghorn,
Oporto, Cadiz, and in the factories in the East, Smyrna, Alep-
po, and others, in all of which (some of these establishments
existing under authority, by treaties, and others under indul-
gence and toleration,) marriages are regulated by the law of
the original country to which they are still considered to be-
long. An English resident at St. Petersburgh does not look to
the ritual of the Greek church, but to the rubric of the church
of England, when he contracts a marriage with an English
woman. Nobody can suppose that, whilst the Mogul empire
240 Bigamy,
existed, an Englishman was bound to consult the Koran for the
celebration of his marriage. Even where no foreign connexion
can be ascribed, a respect is shown to the opinions and practice
of a distinct people. The validity of a Greek marriage in the
extensive dominions of Turkey, is left to depend, I presume,
upon their own canons, without any reference to Mahomedan
ceremonies. There is a jus gentium upon this matter, an amity,
which treats with tenderness, or at least with toleration, the
opinions and usages of a distinct people in their transactions of
marriage. It may be difficult to say, a priori, how far the
general law should circumscribe its own authority in this mat-
ter ; but practice has established the principle in several in-
stances, and where the practice is admitted, it is entitled to
acceptance and respect. It has sanctioned the marriages of
foreign subjects in the houses of the ambassadors of the foreign
country to which they belong. (See Portreis v. Tondeur, I
Hagg. Cons. R. 136., and now, stat. 4 G. 4. c. 91. s. 2.) I
am not aware of any judicial determination on this point, but
the reputation which the validity of such marriages has ac-
quired, makes such a recognition by no means improbable, if
such a question were brought to judgment." Rttding v. Smith,
2 Hagg. Cons. R. 371.
The validity of marriages celebrated in the chapel of any
British factory abroad, or in the house of any British subject
residing at such factory, is recognized by the statute 4 Geo. 4.
c. 91. s. 2. (stated post, p. 241.)
Proof of the marriages marriage in British co/ony.] What
form of celebration will confer validity on a marriage in a Bri-
tish colony, must depend upon the peculiar circumstances of
the case. This question came before Lord Stowell in a case in
which the validity of a marriage, celebrated at the Cape of
Good Hope, between English subjects, by a chaplain of the
British forces, then occupying that settlement under a capitu-
lation recently made, was brought before him for his decision.
After some observations (which have already been cited, ante,
p. 239,) he held the marriage valid, on the ground of the dis-
tinct British character of. the parties, on their independence of
the Dutch law, on their own British transactions, on the insu-
perable obstacles of obtaining any marriage conformable to the
Dutch law, on the countenance given by British authority and
British administration to this transaction, and on the whole
country being under British dominion. Ruding v. Smith, 2
Hagg. Cons. Rep. 371., Story, Conflict of Laws, 111.
A similar question arose in a case before the court of King's
Bench, respecting the legitimacy of a pauper. A soldier on
service with the British army in St. Domingo, being desiious of
marrying the widow of another soldier, who had died there,
the parties went to a chapel in the town, and the ceremony
Bigamy. 241
was there performed by a person appearing and officiating as a
priest, the service being in French, but interpreted into English
by a person who officiated as clerk, and understood at the time
by the pauper to be the marriage service of the church of Eng-
land. After eleven years' cohabitation, this was held to be
sufficient evidence that the marriage was properly celebrated,
although the pauper (the wife) stated that she did not know
that the party officiating was a priest. Lord Ellenborough con-
sidered the case, first, as a marriage celebrated in a place
where the law of England prevailed, (supposing, in the ab-
sence of any evidence to the contrary, that the law of England,
ecclesiastical and civil, was recognized by subjects of England
in a place occupied by the king's troops, who would impliedly
carry that law with them,) and held that it would be a good
marriage by that law ; for it would have been a good marriage
in this country before the marriage act, and consequently would
be so now in a foreign colony to which that act does not ex-
tend. In the second place, he considered it upon the suppo-
sition that the law of England had not been carried to St.
Domingo by the king's forces, nor was obligatory upon them in
this particular, and held that the facts stated would be evi-
dence of a good marriage according to the law of the country,
whatever it might be, and that upon such facts every presump-
tion was to be made in favour of the validity of the marriage.
R. v. Brampton, 10 East, 282.
So a marriage between two British subjects at Madras, cele-
brated by a Catholic priest, not conformably to the laws of the
natives of India, nor with the licence of the governor, which
it had been the uniform custom to obtain, was held valid. Lau-
tourv. Teesdale, 8 Taunt. 833, 2 Marsh. 243.
Proof of marriages abroad in houses of ambassadors, <Sfc.]
It appears that before the passing of the statute 4Geo. 4. c.91.
a marriage celebrated in the house of an English ambassador
abroad, was held valid. R. v. Brampton, 10 East, 286. Ru-
ding v. Smith, 2 Hugg. Cons. Rep. 371. And now, by the 2d
section of that statute, reciting that it is expedient to relieve
the minds of all his majesty's subjects from any doubt of the
validity of marriages, solemnized by a minister of the church of
England in the chapel or house of any British ambassador, or
minister residing within the country, to the court of which he
is accredited, or in the chapel belonging to any British factory
abroad, or in the house of any British subject residing at such
factory, as well as from any possibility of doubt concerning the
validity of marriages solemnized within the British lines, by any
chaplain, or officer, or other person officiating under the orders
of the commanding officer of a British army serving abroad ;
it is enacted that all such marriages shall be deemed and held to be
242 Bigamy.
as valid in law, as if the same had been solemnized within his
majesty's dominions, with a due observance of all forms re-
quired by law. And it is provided that the act shall not con-
firm, or impair, or affect the validity of any marriage solem-
nized beyond the seas, save and except such as are solemnized
as therein specified and recited.
Marriages in Newfoundland are regulated by the statute
5 Geo. 4. c. 68. repealing the 57 Geo. 3. c. 51.
Venue.'] The stat. 9 Geo. 4., like that of 1 Jac. 1., enacts
that the prisoner may be tried in the county in which he is ap-
prehended. Upon the latter statute, it was held that the pri-
soner, having been apprehended for larceny in the county of
W., and a true bill having been found against him while in
custody under that charge, for bigamy, he might be tried for
the latter offence in the county of W. Jordan's case, Russ. fy
Ry. 48. The second marriage was at Manchester, and a war-
rant was issued by a magistrate there to apprehend the pri-
soner. He, having removed to London, surrendered to one of
the police magistrates there, who admitted him to bail. On
his trial at the Old Bailey, the court, on an objection taken by
his counsel, were of opinion, that as the warrant had not been
produced, and as it had not been proved that the prisoner was
apprehended in the county of Middlesex, the court had no ju-
risdiction to try him. Forsyth's case, 2 Leach, 826.. But now,
by stat. 9 Geo. 4. the prisoner may be tried in the county in
which he is in custody.
Proof for the prisoner under the exceptions.'] The prisoner
may prove under the first exception in the statute 9 Geo. 4.
that he is not a subject of his majesty, and that the second
marriage was contracted out of England.
Secondly, he may prove that his wife has been continually
absent from home for the space of seven years last past, and
was not known by him to be living within that time. There
is no exception as in the Uac. 1. with regard to persons ' con-
tinually remaining beyond the seas for the space of seven
years together." That statute, like the 9 Geo. 4. contained
an exception, exempting persons absent, without knowledge by
the other party of their being alive. The question whether a
prisoner setting up this defence ought to show that he has used
reasonable diligence to inform himself of the fact, and whether,
if he neglects the palpable means of availing himself of such
information, he will stand excused, does not appear to be de-
cided. 1 East, P. C. 467, 1 Russell, 189.
The third exception is where the party, at the time of the
second marriage, has been divorced from the bond of the first
marriage. The words of the Uac. 1. were, "divorced by
Bribery. 243
the sentence of any ecclesiastical court," and were held to
extend to a divorce d mensa et tkoro. 1 Hale, P. C. 694. 4 Bl.
Com. 164. 1 East, P, C. 467. But now a divorce d vinculo
matrimonii must be proved. It is not sufficient to prove a
divorce out of England, where the first marriage was in this
country. The prisoner was indicted for bigamy under the
I Jac. 1. It appeared that he had been married in England,
and that he went to Scotland, and procured there a divorce d
tinculo matrimonii, on the ground of adultery, before his se-
cond marriage. This, it was insisted for the prisoner, was a
good defence under the third exception in the statute 1 Jac. 1. ;
but on a case reserved, the judges were unanimously of opinion
that no sentence or act of any foreign country could dissolve an
English marriage d vinculo matrimonii, for ground on which it
was not liable to be dissolved d tinculo matrimonii in England,
and that no divorce of an ecclesiastical court was within the
exception in s. 3. of 1 Jac. 1. unless it was the divorce of a
court within the limits to which the 1 Jac. 1. extended. Lolley's
case, Russ.fyRy. 237.
The fourth exception is where the former marriage has been
declared void by the sentence of any court of competent juris-
diction. The words in the statute of 1 Jac. 1. were, "by sen-
tence in the ecclesiastical court ;" and under these, it was held
that a sentence of the spiritual court against a marriage, in a
suit of jactitation of marriage, was not conclusive evidence, so
as to stop the counsel for the crown from proving the marriage,
the sentence having decided on the validity of the marriage
only collaterally, and not directly. Duchess of Kingston's case,
II St. Tr. Z6-2.fo.ed. 20 How. St. Tr. 355, 1 Leach, 146.
The 9 Geo. 4., unlike the 1 Jac. 1., contains no exception
with regard to cases where the first marriage was within the
legal age of consent, that is, fourteen in a male, and twelve in
a female. 1 Bl. Com. 436. Gordon's case, Russ. <5f Ry. 48. It
has been observed, that notwithstanding this omission, no
judge, probably, would direct a jury to find a party guilty of
bigamy, where the first marriage was within that age, and not
followed up by any subsequent agreement or cohabitation, after
the parties had attained that age. 1 Deac. Dig. C. L. 143.
BRIBERY.
Nature of the offence.] Bribery is a misdemeanor punishable
at common law. Bribery in strict sense, says Hawkins, is
taken for a great misprision of one in a judicial place, taking any
9
244 Bribery.
valuable thing except meat and drink of small value of any
man who has to do before him in any way, for doing his office, or
by colour of his office. In a large sense, it is taken for the re-
ceiving or offering of any undue reward by or to any person
whomsoever, whose ordinary profession or business relates to the
administration of justice, in order to incline him to do a thing
against the known rules of honesty and integrity. Also bribery
sometimes signifies the taking or giving a reward for offices of a
public nature. Hawk. P. C. b. 1. c. 67. s. 1, 2, 3.
An attempt to bribe is a misdemeanor, as much as the act of
successful bribery, as where a bribe is offered to a judge, and
refused by him. 3 Inst. 147. So it has been held, that an at-
tempt to bribe a cabinet minister for the purpose of procuring
an office, is a misdemeanor. Vatighan's case, 4 Burr. 2494.
So an attempt to bribe, in the case of an election to a corporate
office, is punishable. Plympton's case, 2 Ld. Raym. 1377.
Bribery at elections for members of parliament.] Bribery at
elections for members of parliament, is an offence at common
law, punishable by indictment or information, and the statute
2 G. 2. c. 24. which imposes a penalty upon such offence, does
not affect that mode of proceeding. Pitt's case, 3 Burr. 1339,
1 W. Bl. 380. Where money is given it is bribery, although
the party giving it take a note from the voter, giving a counter
note, to deliver up the first note when the elector has voted.
Sul&tmi v. Norton, 3 Burr. 1235, 1 W. Bl. 317. So also a
wager with a voter, that he will not vote for a particular person.
Loft, 552. Hawk. P. C.b.l. c. 67. s. 10. (n.)
245
BRIDGES.
Indictment for not repairing .... 245
Preof of bridge being a public bridge . . 245
Highway at each end . . . 247
Proof of the bridge being out of repair . 247
Proof of the liability of the defendants at common
law . . . , .247
New bridges . . . 248
Public companies .... 249
Individuals ratione tenuras ... 250
Proof in defence by counties . . . 250
By minor districts or individuals . . 251
By corporation .... 251
Venue and trial .... 251
Competency of witnesses .... 251
Indictment for maliciously pulling down bridges . 251
Indictment for not repairing.] Upon an indictment for a
nuisance to a public bridge, whether by obstructing or neglect-
ing to repair it, the prosecutor must prove, first, that the bridge
in question is a public bridge ; and secondly, that it has been
obstructed or permitted to be out of repair, and in the latter
case, the liability of the defendants to repair.
Proof of the bridge being a public bridge.] A public bridge
may be denned to be such a bridge as all his Majesty's subjects
have used freely, and without interruption, as of right, for a
period of time competent to protect themselves, and all who
should thereafter use them, from being considered as wrong
doers in respect of such use, in any mode of proceeding, civil
or criminal, in which the legality of such use mav be questioned.
Per Lord Ellenborough, R. v. Inhab. of Bucks, 12 East, 204.
With regard to bridges newly erected, the general rule is, that
if a man builds a bridge, and it becomes useful to the county in
general, it shall be deemed a public bridge, and the county shall
repair it. But where a man builds abridge for his own private be-
nefit, although the public may occasionally participate with him
in the use of it, yet it does not become a public bridge. R. v.
Inhab. of Bucks, 12 East, 203, 204. Though it is otherwise, if
the public have constantly used the bridge, and treated it as a
246 Bridges.
public bridge. R. v. Inhab. of Glamorgan, 2 East, 356. (w.)
Where a miller, on deepening a ford, through which there was
a public highway, built a bridge over it, which the public used,
it was held that the county was bound to repair. R. v. Inhab.
of Kent, 2 M. If S. 513.
A question has sometimes arisen whether arches adjacent to
a bridge, and under which there is a passage for water in times
of flood, are to be considered either as forming part of the
bridge, or as being themselves independent bridges. Where
arches of this kind existed, more than 300 feet from a bridge,
on an indictment against the county for non-repair of them, and
a case reserved, the Court of King's Bench held that the county
was not liable. R. v. Inhab. of Oxfordshire, 1 Barn. 3f Ad.
297, (n.) Second indictment, Id. 289. The rule laid down by
Lord Tenterden C. J. in the latter case was, that the inhabitants
of a county are bound, by common law, to repair bridges erected
over such water only as answers the description of flumen vel
cursus aqua, that is, water flowing in a channel between banks
more or less defined, although such channel may be occasionally
dry.
In the following case, a question arose whether a bridge for
foot-passengers which had been built adjoining to an old bridge
for carriages, was parcel of the latter. The carriage-bridge had
been built before 1119, and certain abbey lands were charged
with the repairs. The proprietors of those lands had always re-
paired the bridge so built. In 1765, the trustees of a turnpike-
load, with the consent of a certain number of the proprietors of
the abbey lands, constructed a wooden foot-bridge along the out-
side of the parapet of the carriage-bridge, partly connected with
it by brick work and iron pins, and partly resting on the stone-
work of the bridge. It was held that the foot-bridge was not
parcel of the old carriage-bridge, but a distinct structure, and
that the county was bound to repair it. R. v. Inhab. of Mid-
dlesex, 3 B.&: Ad. 201.
Where the trustees under a turnpike act build a bridge across
a stream, where a culvert would be sufficient ; yet, if the
bridge become upon the whole more convenient to the public, the
county cannot refuse to repair it. R. v. Inhab. of Lancashire,
2 B. &; Ad. 813.
The public may enjoy a limited right only of passing over a
bridge, as where a bridge was used at all times by the public,
on foot, and with horses, but only occasionally with carriages,
viz., when the ford below was unsafe to pass, and the bridge
was sometimes barred against carriages by means of posts and
a chain, it was held that this was a public bridge, with a right
of passage limited in extent, yet absolute in right. R. v. In-
hab. of Northampton, 2 M. fy S. 262. A bar across a public
bridge locked, except in times of flood, has been ruled to be
conclusive evidence that the public have only a limited right to
Bridges. 24T
use the bridge at such times, and it is a variance to state, that
they have a right to use it " at their free will and pleasure."
R. v* Marquis of Buckingham, 4 Campb. 189. But where
a bridge passed over a ford, and was only used by the
public in times of floods, which rendered the ford impassable,
yet, as it was at all times open to the public, Abbott C. J., ruled
that the county was bound to repair. R. v. Inhab. of Devon,
Ry. % Moo. N. P. C. 144.
Proof of the bridge being a public bridge highway at each
end.'] At common law the county is bound prima facie to re-
pair the highway at each end of a public bridge, and by the sta-
tute 22 Hen. 8. c. 5. the length of the highway to be thus re-
paired is fixed at 300 feet. If indicted for the non-repair of
such portion of the highway, they can only excuse themselves
by pleading specially, as in the case of the bridge itself, that
some other person is bound to repair by prescription, or by te-
nure. R. v. Inhab. of West Riding of Yorkshire, 7 East, 588,
5 Taunt. 284. S. C. in House of Lords.
The inhabitants of Devon erected a new bridge within 300
feet next adjoining to an old bridge in the county of Dorset ;
which 300 feet the county of Dorset was bound to repair. It
was held, nevertheless, that Devon was bound to repair the new
bridge, which was a distinct bridge, and not to be considered as
an appendage to the old bridge. R. v. Inhab. of Devon,
14 East, 477.
Proof of the bridge being out of repair.'] The county is only
chargeable with repairs, and cannot be indicted for not widening
or enlarging a public bridge, which has become from its narrow-
ness inconvenient to the public. Not being bound to make a
new bridge, the county is not bound to enlarge an old one
which is, pro tanto, the erection of a new bridge. R. v. Inhab,
of Devon, 4 B. % C. 670.
Those who are bound to repair bridges must make them of
such height and strength, as may be answerable to the course
of the water, whether it continue m the old channel or make a
new one. Hawk. P. C. b. 1. c. 77. s. 1.
Proof of the liability of the defendants by the common law.']
All public bridges are primd facie repairable, at common law, by
the inhabitants of the county, and it lies upon them if the fact
be so, to show that others are bound to repair. R. v. Inhab. of
Salop, 13 East, 95. 2Inst.700, 701. R.v. Inhab. of Oxfordshire,
4 B. if C. 196. But a parish or township, or other known por-
tion of a county may, by usage and custom, be chargeable to the
repair of a bridge erected in it. Per Cur. R. v. Ecclesfield,
1 B. df A. 359. So where it is within a franchise. Hawk. P.
C. b. 1. c. 77. s. 1. The charge may be cast upon a corpora-
248 Bridges.
tion aggregate, either in respect of the tenure of certain lands,
or of a special prescription, and in the same manner, it may be
cast upon an -individual, ratione tenure. Id. Where an in-
dividual is so liable, his tenant for years in possession is under
the same obligation. Reg. v. Bucknall, 2 Ld. Raym. 792.
Any particular inhabitant of a county, or any of several tenants
of lands charged with such repairs, may be indicted singly for
not repairing, and shall have contribution from the others.
Hawk. P. C. b. 1. c. 77. s. 3. 2 Lord Raym. 792. The inha-
bitants of a district cannot be charged ratione tenurte, because
they cannot, as such, hold lands. R. v. Machynlleth, 2 B. <Sf C.
166. But a parish, as a district, may, at common law, be liable
to repair a bridge, and may therefore be indicted for the not re-
pairing, without stating any other ground of liability than imme-
morial usage. K. v. Inhab. of Hendon, 4 B. fy Ad. 628.
The liability of a county to the repairs of a bridge, is not
affected by an act of parliament imposing tolls, and directing
the trustees to lay them out in repairing the bridge. This point
arose, but was not directly decided in the case of R. u. Inhab. of
Oxfordshire, 4 B. fy C. 194, the plea in that case not averring
that the trustees had funds ; but Bayley J., observed, that even
then a valid defence would not have been made out, for the pub-
lic had a right to call upon the inhabitants of the county to re-
pair, and they might look to the trustees under the act. With
regard to highways, it has been decided that tolls are in such
cases only an auxiliary fund, and that the parish is primarily
liable. (See post, Highways.) And as the liability of a county
resembles that of a parish, these decisions may be considered as
authorities with regard to the former.
Proof of the liability of the defendants by the common law
new bridges.'] Although a private individual cannot by erecting
a bridge, the use of which is not beneficial to the public, throw
upon the county the onus of repairing it, yet if it become useful
to the county in general, the county is bound to repair it.
Glasburne Bridge case, 5 Burr. 2594. Thus, where, to an in-
dictment for not repairing a public bridge, the defendants
pleaded that H. M. being seized of certain tin works, for his pri-
vate benefit and utility, and for making a commodious way to
his tin works, erected the bridge, and that he and his tenants
enjoyed a way over the bridge for their private benefit and ad-
vantage, and that, therefore, he ought to repair ; and on the trial
the statements in the plea were proved, but it also appeared
that the public had constantly used the bridge from the time of
its being built; Lord Kenyon directed the jury to find a verdict
for the crown, which was not disturbed. R. v. Inhab. of Gla-
morgan, 2 East, 356. (n.)
Where a new bridge is built, the acquiescence of the public
will be evidence that it is of public utility. As, to charge the
Bridges. 249
county, the bridge must be made on a highway, and as, while
the bridge is making, there must be an obstruction of the high-
way, the forbearing to prosecute the parties for such obstruction,
is an acquiescence by the county in the building of the bridge.
See R.v. Inhab. of St. Benedict, 4 B. fy A. 450. The evidence of
user of a bridge by the public, differs from the evidence of user
of a highway, for as a bridge is built on a highway, the public
using the latter must necessarily use the former, and the proof
of adoption can hardly be said to arise, but the user is evidence
of acquiescence, as snowing that the public have not found or
treated the bridge as a nuisance. See K. v. Inhab. of' West
Riding of Yorkshire, 2 Eaat, 342. Where a bridge is elected
under the authority of an act of parliament, it cannot be sup-
posed to be erected for other purposes than the public utility.
Per Lawrence J ., R. v. Inhab. of West Riding of Yorkshire,
2 East, 352. If a bridge be built in a slight or incommodious
manner, it cannot be imposed as as burthen on the county, but
may be treated altogether as a nuisance, and indicted as such.
Per Lord Ellenborough, Ibid.
And by statute 43 G. 3. c. 59. s. 5. no bridge to be there-
after erected or built in any county, by or at the expense of any
individual or private person or persons, body politic or corporate,
shall be deemed or taken to be a county bridge, or a bridge
which the inhabitants of any county shall be compellable or
liable to maintain or repair, unless such bridge shall be erected
in a substantial and commodious manner, under the direction,
or to the satisfaction of the county surveyor, or person appointed
by the justices of the peace, at their general quarter sessions as-
sembled, or by the justices of the peace of the county of Lan-
caster, at their annual general sessions.
The words of this act comprehend every kind of person by
whom, or at whose expense a bridge shall be built. Trustees
appointed under a local turnpike act are " individuals" or
" private persons" within the statute, and therefore a bridge
erected by such trustees after the passing of the act, and not
under the direction of the county surveyor, is not a bridge which
the county is bound to repair. R. v. Inhab. of Derbn, 3 B. <5f
Ad. 147.
Where the wood-work of a bridge was washed away, leaving
the stone abutments, and the parish repaired the bridge, partly
with the old wood and partly with new, this was held not to be
a bridge " erected or built" within the above statute, but an
old bridge repaired, and the county was held liable. R, v.
Inhab. of Devon, 5 B. <5f Ad. 383.
Proof of the liability of the defendants public companies.]
In some cases where public companies have been authorised by
the legislature to erect or alter bridges, a condition has been
implied that they shall keep such bridges in repair. The pro-
M 5
250 Bridges.
prietors of the navigation of the river Medway were by their act
empowered to alter or amend such bridges and highways as
might hinder the navigation ; leaving them, or others as conve-
nient, in their room. Having deepened a ford in the Medway,
the company built a bridge in its place, which being washed
away, they were held bound to rebuild. Lord Ellenborough
said that the condition to repair was a continuing condition,
and that the company having taken away the ford, were bound
to give another passage over the bridge, and to keep it in re-
pair. R. v. Inhab. of Kent, 13 East, 220. The same point
was ruled in the case of the King v. the Inhabitants of the parts
of Lindsey, (14 East, 317.) in which the company had made a
cut through a highway, and built a bridge over it. An act of
parliament empowered the commissioners for making navigable
the river Waveney, to cut, &c., but was silent as to making
bridges. The commissioners having cut through a highway,
and rendered it impassable, a bridge was built over the cut,
along which the public passed, and the bridge was repaired by
the proprietors. Being out of repair, the proprietor of the na-
vigation was held liable to the repairs. The court said that
the cut was made not for public purposes, but for private bene-
fit ; and the county could not be called upon to repair, for it
was of no advantage to them to have a bridge instead of solid
ground. R. v. Kerrison, 3 M. fy S. 326. See also R. n.
Inhab. of Somerset, 16 East, 305.
Proof of liability defendants, individuals.] Ratione tenure
implies immemoriality. 2 Saund. 158. d. (n.) And, there-
fore, upon an indictment against an individual for not repairing,
by reason of the tenure of a mill, if it appear that the mill was
built within the time of legal memory, the defendant must be
acquitted. Hayman's case, Moo. &; M. 401.
Any act of repairing on the part of an individual, is primu
facie evidence of his liability. Thus, it is said, that if a bishop
has once or twice, of alms, repaired a bridge, this binds not,
yet it is evidence against him that he ought to repair, unless he
proves the contrary. 2 Inst. 700.
Reputation is not evidence on an indictment against an in-
dividual for not repairing a bridge, ratione tenurce. Per Pat-
tison J. Antrobus's case, 6 C. fy P. 790.
Proof in defence by counties.] Where a county is indicted,
and the defence is that a parish or other district, or a corpora-
tion, or individual, is liable to the repairs, this defence must be
specially pleaded, and cannot be given in evidence under the
general issue of not guilty. R. v. Inhab. of Wilts, 1 Salk. 359,
2 Lord Raym. 1174. 1 Russell, 356. 2 Stark. Ev. 191. 2rf. ed.
Upon that plea the defendants can only give evidence in de-
nial of the points which must be established on the part of the
Bridges. 251
prosecution, viz. 1, that the bridge is a public one ; 2, that it is
within the county ; and, 3, that it is out of repair. 2 Stark. Ev.
191. 2d ed. With a view to the first point, the inhabitants of
a county may show under not guilty, that a district or individual
is bound to repair, as a medium of proof that the bridge is not a
public bridge. Id. R. v. Inhab. of Northampton, 2 Maule fy S.
262. For repairs done by an individual are to be ascribed rather
to motives of interest in his own property, than to be presumed
to be done for the public benefit. Per Ld. Ellenbtrrough, ibid.
Upon a special plea by a county, that some smaller district
or some individual is liable to repair, the evidence on the part
of the county to prove the obligation, seems to be the same as
upon an indictment against the smaller district or individual.
2 Stark. Ev. 192. 2d ed.
Proof in defence 61; minor districts, or individuals.] Where
a parish, or other district, or a corporation, or individual, not
chargeable of common right with the repairs of a bridge, is
indicted, they may discharge themselves under the general
issue. R. v. Inhab. of Noncich, 1 Str. 177. For as it lies on
the prosecutor specially to state the grounds on which such par-
ties are liable, they may negative those parts of the charge
under the general issue. 1 Russell, 356. Sed vide R. v. Hen-
don, 4 B. If Ad. 628. ante, p. 248.
Proof in defence by corporation.'] A corporation may be
bound by prescription to repair a bridge, though one of their
charters within time of legal memory use words of incor-
poration, and though the bridge may have been repaired out of
the funds of a guild ; for such repairs will be taken to have been
made in ease of the corporation. R. v. Mayor, c. of Stratford-
upon-Avoti, 14 East, 348.
Venue and trial.] By statute 1 Ann. st. 1. c. 18. s. 5. " all
matters concerning the repairing and amending of bridges and
the highways thereunto adjoining shall be determined in the
county where they lie, and not elsewhere." It seems that no
inhabitant of a county ought to be a juror on a trial of an
issue whether the county is bound to repair. Hawk. P. C. b.l.
c. 77. s. 6. In such cases, upon a suggestion, the venire will
be awarded into a neighbouring county. R. v. Inhab. of Wilts,
6 Mod. 307. 1 Russell, 358.
Competency of witnesses.] By stat. I Ann. stat. 1. c. 18.
s. 13. reciting " that many private persons, or bodies politic or
corporate, were of right obliged to repair decayed bridges and
the highways thereto adjoining," the evidence of the inhabitants
of the county, &c. is made admissible. Vide ante, p. 110.
252 Burglary.
Maliciously pulling down, <5fc.] By statute 7 & 8 G. 4. c. 30.
s. 13. it is enacted, " That if any person shall unlawfully and
maliciously pull down, or in anywise destroy any public bridge,
or do any injury with intent, and so as thereby, to render such
bridge or any part thereof dangerous or impassable, every such
offender shall be guilty of felony, and being convicted thereof,
shall be liable, at the discretion of the court, to be transported
beyond the seas for life, or for any term not less than seven
years; or to be imprisoned for any term not exceeding four
years, and if a male to be once, twice, or thrice publicly or pri-
vately whipped, (if the court shall so think fit,) in addition to
such imprisonment."
BURGLARY.
Offence at common law ..... 253
Statute 7 # 8 G. 4. c. 29. ... 253
Proof of the breaking ..... 253
General instances .... 254
Boors . . . . . . 254
Windows . . . . .255
Chimnies ..... 256
Fixtures, clipboards, fyc. . . 257
Walls 257
Gates . . . . . .258
Constructive breaking .... 258
Fraud . . . . .258
Conspiracy .... 258
Menaces .... 259
By one of several . . . 259
Proof of the entry ..... 259
Introduction of fire-arms or instruments . . 260
By firing a gun into the house . . .261
Constructive entry by one of several . . 261
P roof of the premises being a mansion-house . . 261
Occupation ..... 264
Temporary or permanent . . . 265
House divided without internal communica-
tion, and occupied by several , . 266
occupied by same person . . 267
Where there is an internal communication,
but the parts are occupied by several, un-
der distinct titles . . 268
Burglary. 253
By lodgers .... 269
By wife or family . . . 270
-Bu clerks or agents of public companies, <5fc. 271
By servants occupying as such . . 273
Occupying as tenants . . 275
By guests, $c. .... 276
By partners .... 277
Outbuildings and curtilage . . . 277
Proof of the offence having been committed in the night-
time ...... 278
Proof of the intent to commit felony -felony at common
law or by statute . . . . 279
Variance in statement of . . .281
Minor offence, larceny, fyc. .... 281
Proof of the breaking out of a dwelling-house, c. . 283
Proof, upon plea of autrefois acquit . . . 283
Offence at common law.~] Burglary is a felony at common
law, and a burglar is defined by Lord Coke as " he that in the
night-time breaketh and entereth into a mansion-house of ano-
ther, of intent to kill some reasonable creature, or to commit
some other felony within the same, whether his felonious intent
be executed or not." 3 Insf. 63. And this definition is adopted
by Lord Hale. 1 Hale, P. C. 549. Hawk. P. C. b.l. c. 38, s. 1.
Statute 7 $8 Geo. 4. c. 29.] By statute 7 & 8 G. 4. c. 29.
s. 11. it is enacted, " That every person convicted of burglary
shall suffer death as a felon ;" and it is thereby declared, " that
if any person shall enter the dwelling-house of another, with in-
tent to commit felony; or being in such dwelling-house shall
commit any felony, and shall in either case break out of the said
dwelling-house in the night-time, such person shall be deemed
guilty of burglary."
Upon the trial of an indictment for the offence of burglary,
the prosecutor must prove, 1, the breaking; 2, the entering;
3, that the house broken and entered was a mansion-house ;
4, that the breaking and entry were in the night-time ; 5, that
the breaking and entering were with intent to commit a felony.
The offence of breaking out of a mansion-house in the night-
time will be separately treated.
Proof of the breaking.] What shall constitute a breaking is
thus described by Hawkins : "It seems agreed, that such a
breaking as is implied by law in every unlawful entry on the
possession of another, whether it be open or be inclosed, and
will maintain a common indictment, or action of trespass quart
clauiumjregit, will not satisfy the words felon ice et biirglariter,
254 Burglary.
except in some special cases, in which it is accompanied with
such circumstances as make it as heinous as an actual breaking.
And from hence it follows, that if one enter into a house by a
door which he finds open, or through a hole which was made
there before, and steal goods, &c., or draw any thing out of a
house through a door or window which was open before, or enter
into the house through a door open in the day-time, and lie
there till night, and then rob and go away without breaking any
part of the house, he is not guilty of burglary." Hawk. P. C.
b. I.e. 38. s. 4, 5.
Proof of breaking general instances.] Proof of breaking a
window, taking a pane of glass out by breaking or bending the
nails or other fastenings, the drawing a latch, when a door is not
otherwise fastened, picking open a lock with a false key, putting
back the lock of a door or the fastening of a window, with an in-
strument, turning the key where the door is locked on the inside,
or unloosing any other fastening which the owner has provided :
these are all proofs of a breaking. 2 East, P. C. 487. 2 Russ.3.
Proof the breaking doors.~\ Entering the house through an
open door is not, as already stated, such a breaking as to consti-
tute a burglary. Yet if the offender enters a house in the night-
time, through an open door or window, and when within the
house turns the key of, or unlatches, a chamber door, with intent
to commit felony, it is a burglary. 1 Hale, P. C. 553. So
where the prisoner entered the house by a back-door which
had been left open by the family, and afterwards broke
open an inner door and stole goods out of the room, and
then unbolted the street-door on the inside and went out; this
was held by the judges to be burglary. Johnson's case, 2 East,
P. C. 488. So where the master lay in one part of the house,
and the servants in another, and the stair-foot door of the mas-
ter's chamber was latched, and the servant in the night un-
latched that door, and went into his master's chamber with
intent to murder him, it was held burglary. Hat/don's case,
Hutt. 20, Kel. 67, 1 Hale, P. C. 554, 2 East, P. C. 488.
Whether the pushing open the flap or flaps of a trap-door, or
door in a floor, which closes by its own weight, is a sufficient
breaking, was for some time a matter of doubt. In the follow-
ing case it was held to be a breaking. Through a mill (within
a curtilage,) was an open entrance or gateway, capable of ad-
mitting waggons, intended for the purpose of loading them with
flour, through a large aperture communicating with the floor
above. This aperture was closed by folding doors with hinges,
which fell over it and remained closed with their own weight,
but without any interior fastenings, so that persons without,
under the gateway, could push them open at pleasure. In this
manner the prisoner entered with intent to steal; and Buller J.
Burglary. 265
held that this was a sufficient breaking to constitute the offence
of burglary. Brown's case, 2 East, P, C. 487. In another case,
upon nearly similar facts, the judges were equally divided in
opinion. The prisoner broke out of a cellar by lifting up a
heavy flap, whereby the cellar was closed on the outside next
the street. The flap had bolts, but it was not bolted. The pri-
soner being convicted of burglary, upon a case reserved, six of
the judges, including Lord Ellenborough, C. J. and Mansfield,
C. J., thought that this was a sufficient breaking ; because the
weight was intended as a security, this not being a common en-
trance ; but the other six judges thought the conviction wrong,
Callan's case, Russ. fy Ry 157. It has been observed, that
the only difference between this and Brown's case (supra,)
seems to be, that in the latter there were no internal fastenings,
which in Callan's case there were ; but that in neither case were
any in fact used, but that the compression or fastening, such as
it was, was produced by the mere operation of natural weight in
both cases. Russ. &; RJJ. 158. (n.) The authority of Brown'$
case has been since followed, and that decision may now
be considered to be law. Upon an indictment for burglary, the
question was whether there had been a sufficient breaking.
There was a cellar under the house, which communicated with
the other parts of it by an inner staircase. The entrance to the
cellar from the outside was by means of a flap which let down ;
the flap was made of two-inch stuff, but reduced in thick-
ness by the wood being worked up. The prisoner got into
the cellar by raisiug the flap-door. It had been from time to
time fastened with nails, when the cellar was not wanted. The
jury found that it was not nailed down on the night in question.
The prisoner being convicted, on a case reserved, the judges
were of opinion that the conviction was right. Russell's case,
1 Moody, C. C. 377. See Lawrence's case, 4 C. 8; P. 231.
Proof of the breaking windows.'] Where a window is open,
and the offender enters the house, this is no breaking, as
already stated, ante, p. 254. And where the prisoner was in-
dicted for breaking and entering a dwelling-house and stealing
therein, and it appeared that he had effected an entrance by
pushing up or raising the lower sash of the parlour- window,
which was proved to have been, about twelve o'clock on the
same day, in an open state, or raised about a couple of inches,
so as not to afford room for a person to enter the house through
that opening, it was said by all the judges that there was no
decision under which this could be held to be a breaking*
Smith's case, 1 Moody, C. C. 178. A square of glass in the
kitchen-window (through which the prisoners entered) had
been previously broken by accident, and half of it was out when
the offence was committed. The aperture formed by the half
square was sufficient to admit a hand, but not to enable a per-
son to put his arm in, so as to undo the fastening of the casement.
256 Burglary.
One of the prisoners thrust his arm through the aperture, there-
by breaking out the residue of the square, and having so done
he removed the fastening of the casement ; the window being
thus opened the two prisoners entered the house. The doubt
which the learned judges (Alderson, J., consulting Patteson, J.)
entertained, arose from the difficulty they had to distinguish sa-
tisfactorily the case of enlarging a hole already existing (it not
being like a chimney, an aperture necessarily lefi in the original
construction of the house), from enlarging an aperture by lifting
up further the sash of the window, as in Smith's case, supra ; but
the learned judges thought it was worth considering whether in
both cases the facts did not constitute, in point of law, a suffi-
cient breaking. Upon a case reserved, all the judges who met
were of opinion that there was a sufficient breaking, not by
breaking the residue of the pane, but by unfastening and open-
ing the window. Robinson's case, 1 Moody, C. C. 327.
Where a house was entered through a window upon hinges,
which was fastened by two nails which acted as wedges, but
notwithstanding these nails the window would open by pushing,
and the prisoner pushed it open, the judges held that the forcing
the window in this manner was a sufficient breaking to consti-
tute burglary. Hall's case, RIISS.&; Ri/. 355. So pulling down
the upper sash of a window which has no fastening, but which
is kept in its place by the pulley-weight only, is a breaking,
although there is an outer shutter which is not fastened.
Haine's case, Russ. fy Ry. 451.
Where a cellar-window, which was boarded up, had in it an
aperture of considerable size to admit light into the cellar, and
through this aperture one of the prisoners thrust his head, and
by the assistance of the others thus entered the house, Vaughan,
JB. ruled that this resembled the case of a man having a hole in
the wall of his house large enough for a man to enter, and that
it was not burglary. Lewis's case, 2 C. &; P. 628.
Proof of the breaking chimnies.] It was one time considered
doubtful whether getting into the chimney of a house in the
night-time, with intent to commit felony, was a sufficient
breaking to constitute burglary. 1 Hale, P. C. 552. But it is
now settled that this is a breaking ; for though actually open,
it is as much inclosed as the nature of the place will allow.
Hawk. P. C. b.l. c. 38. s. 6. 2 East, P. C. 485. And ac-
cordingly it was so held, in a late case, by ten of the judges,
(contrary to theopinion of Holroyd, J. and Burrough, J.) Their
lordships were of opinion that the chimney was part of the
dwelling-house, that the getting in at the top was a breaking
of the dwelling-house, and that the prisoner by lowering himself
in the chimney, made an entry into the dwelling-house. Bricc'i
cute, Russ. dif Ry. 450.
Burglary. 25T
Proof of the breaking fixtures, cupboards, fyc.~\ The break-
ing open of a moveable chest or box in a dwelling-house, in the
night-time, is not such a breaking as will make the offence bur-
glary, for the chest or box is no part of the mansion-house.
Foster, 108. 2 East, P. C. 488. Whether breaking open the
door of a cupboard let into the wall of a house, be burglary or
not, does not appear ever to have been solemnly decided. In
1690, a case in which the point arose, was reserved for the opi-
nion of the judges, and they were equally divided upon it.
Foster, 108. Lord Hale says that such a breaking will not
make a burglary at common law. 1 Hale, P. C. 527. Though,
on the authority of Simpson's case, Kel. 31, 2 Hale, P. C. 358,
he considers it a sufficient breaking within the stat. 39 Eliz.
c. 15. In the opinion of Mr. Justice Foster, however, Simp-
son's case does not warrant the latter position. Foster, 103.
2 East, P. C. 489. And see 2 Hale, P. C. 358 (n). Mr.
Justice Foster concludes that such fixtures as merely supply the
place of chests and other ordinary utensils of household, should
for this purpose be considered in no other light than as mere
moveables. Foster, 109. 2 East, P. C. 489.
Proof of the breaking u>a//s.] Whether breaking a wall,
part of the curtilage is a sufficient breaking to constitute bur-
glary, has not been decided. Lord Hale, after citing 22 Assiz.
95. which defines burglary to be, " to break houses, churches,
walls, courts, or gates, in time of peace," says " by that book
it should seem that if a man hath a wall about his house for its
safeguard, and a thief in the night breaks the wall or the gate
thereof, and finding the doors of the gate open enters into the
house, this is burglary ; but otherwise it had been, if he had
come over the wall of the court and found the door of the house
open, then it had been no burglary." 1 Hale, P. C. 559.
Upon this passage an annotator of the Pleas of the Crown ob-
serves, " This was anciently understood only of the walls or
gates of the city (videSpelman, in verbo Burgtaria). If so, it
will not support our author's conclusion, wherein he applies it
to the wall of a private house." Id. (n.) ed. 1778. It has been
likewise observed upon this passage, that the distinction between
breaking, and coming over the wall or gate, is very refined, for if
it be part of the mansion, for the purpose of burglary, and be
inclosed as much as the nature of the thing will admit of, it
seems to be immaterial whether it be broken or overleaped, and
more properly to fall under the same consideration as the case of
a chimney ; and if it be not part of the mansion -house for this
purpose, then whether it be broken or not is equally immaterial ;
in neither case will it amount to burglary. 2 East, P. C. 488.
In these observations another writer of eminence concurs.
2 Russell, 5.
258 Burglary.
Proof of the breaking gates.] Where a gate forms part of
the outer fence of a dwelling- house only, and does not open into
the house, or into some building parcel of the house, the break-
ing of it will not constitute burglary. Thus where large gates
opened into a yard in which was situated the dwelling-house
and warehouse of the prosecutors, the warehouse extending over
the gateway, so that when the gates were shut the premises
were completely enclosed, the judges were unanimous that theout-
ward fence of the curtilage not opening into any of the buildings
was no part of the dwelling-house. Bennett's case, Russ. 6f Rii.
289. So where the prisoner opened the area gate of a house in
London with a skeleton-key, and entered the house by a door
in the area, which did not appear to have been shut, the judges
were all of opinion that breaking the area gate was not
a breaking of the dwelling-house, as there was no free passage
in time of sleep from the area into the dwelling-house. Davis's
case, Russ. $ Ry. 322.
Proof of breaking constructive breaking fraud.] In order
to constitute such a breaking as will render the party subject to
the penalties of burglary, it is not essential that force should
be employed. There may be a constructive breaking by fraud,
conspiracy, or threats, which will render the person who is a
party to it equally guilty as if he had been guilty of breaking
with force. Where, by means of fraud, an entrance is effected
into a dwelling-house in the night-time, with a felonious intent,
it is burglary. Thieves came with a pretended hue and cry,
and requiring the constable to go with them to search for fe-
lons, entered the house, bound the constable and occupier, and
robbed the latter. So where thieves entered a house, pretending
that the owner had committed treason ; in both these cases,
though the owner himself opened the door to the thieves, it was
held burglary. 1 Hale, P. C. 552, 553. The prisoner know-
ing the family to be in the countiy, and meeting the boy who
kept the key of the house, desired him to go with her to the
house, promising him a pot of ale. The boy accordingly let
her in, when she sent him for the ale, robbed the house and
went off. This being in the night-time, was held by Holt, C.J.,
Tracy, and Bury, to be burglary. Hawkin's case, 2 East, P. C.
485. By the same reasoning, getting possession of a dwelling-
house by a judgment against the casual ejector, obtained by
false affidavits, without any colour of title, and then rifling the
house, was ruled to be within the statute against breaking the
house and stealing goods therein. 2 East, P. C. 485. So
where persons designing to rob a house, took lodgings injt, and
then fell on the landlord and robbed him. Kel. 52, 53. Hawk.
P.O. b. 1. c. 38. s. 9.
Proof of the breaking constructive breaking conspiracy.]
A breaking may be effected by conspiring with persons within
the house, by whose means those who are without effect an en-
Burglary. 259
trance. Thus if A., the servant of B., conspire with C. to let
him in to rob B., and accordingly A. in the night-time opens
the door and lets him in, this, according to Dalton (cap. 99), is
burglary in C. and larceny in A. But according to Lord Hale,
it is burglary in both ; for if it be burglary in C. it must neces-
sarily be so in A., since he is present and assisting C. in the
committing of the burglary. 1 Hale, P. C. 553. John Corn-
wall was indicted with another person for burglary, and it ap-
peared that he was a servant in the house, and in the night-
time opened the street-door and let in the other prisoner, who
robbed the house, after which Cornwall opened the door and let
the other out, but did not go out with him. It was doubted on
the trial whether this was a burglary in the servant, he not going
out with the other ; but afterwards, at a meeting of all the
judges, they were unanimously of opinion that it was a burglary
in both, and Cornwall was executed. Cornwall's case, 2 6'fr.
881. 4 Bl.Com. 227. 2 East, P.O. 486.
Proof of breaking constructive breaking menaces.] There
may also be a breaking in law, where, in consequence of vio-
lence commenced or threatened, in order to obtain entrance,
the owner, either from apprehension of force, or with a view
more effectually to repel it, opens the door, through which the
robbers enter. 2 East, P. C. 480. But if the owner only throw
the money out of the house to the thieves who assault it, this
will not be burglary. Id. Hawk. P. C. h. 1. c. 38. s. 3.
Though if the money were taken up in the owner's presence,
it would be robbery. But in all other cases where no fraud or
conspiracy is made use of, or violence commenced or threatened
in order to obtain an entrance, there must be an actual breach
of some part or other of the house, though it need not be accom-
panied with any violence as to the manner of executing it. 2
East, P. C. 486. Hale, Sum. 80.
Proof of breaking constructive breaking by one of several.]
Where several come to commit a burglary, and some stand to
watch in adjacent places, and others enter and rob, in such
cases the act of one is, in judgment of law, the act of all, and
all are equally guilty of the burglary. 1 Hale, P.C. 439, 534.
3 Inst. 63. 2 East, P. C. 486.
Proof of the entry.] It is not sufficient to show a breaking
only ; the prosecutor must also prove an entry as well as a
breaking, and both must be in the night and with intent to
commit a felony, otherwise it is no burglary. 1 Hale, P. C.
555. If any part of the body be within the house, hand or foot,
this is sufficient. Foster, 108. 2 East, P. C. 490. Thus where
the prisoner cut a hole through the window-shutters of the pro-
secutor's shop, and putting his hand through the hole, took out
watches, &c., but no other entry was proved, this was held to
260 Burglary.
, be burglary. Gibbon's case, Foster, 108. So where the prisoner
broke a pane of glass in the upper sash of a window (which was
fastened in the usual way by a latch) and introduced his hand
within, for the purpose of unfastening the latch, but while he
was cutting a hole in the shutter with a centre-bit, and before
he could unfasten the latch, he was seized, the judges held this
to be a sufficient entry to constitute a burglary. Bailey's case,
Tims, fy Ry. 341. The prosecutor standing near the window
of his shop, observed the prisoner with his finger against part
of the glass. The glass fell inside by the force of his finger.
The prosecutor added, that standing as he did in the street, he
saw the fore-part of the prisoner's finger on the shop-side of
the glass. The judges ruled this a sufficient entry. Davis's
ease, Russ. fy Ry. 499.
The getting in at the top of a chimney, as already stated, ante,
p. 256, has been held to be a breaking, and the prisoner's lower-
ing himself down the chimney, though he never enters the room,
has been held to be an entry. Brice's case, Russ.fy Ry. 451.
Proof of entry introduction of Jire-arms or instruments.]
Where no part of the offender's body enters the house, but he
introduces an instrument, whether that introduction will be
such an entry as to constitute a burglary, depends, as it seems,
upon the object with which the instrument is employed. Thus if
the instrumentbeemployed, not merely for the purpose of making
the entry, but for the purpose of committing the contemplated
felony, it will amount to an entry, as where a man puts a hook
or other instrument to steal, or a pistol to kill, through a win-
dow, though his hand be not in, this is an entry. 1 Hale,
P.O. 555. Hawk. P.C. b. \. c. 38. s. 11. 2 East, P. C. 490.
But where the instrument is used, not for the purpose of com-
mitting the contemplated felony, but only for the purpose of effect-
ing the entry, the introduction of the instrument will not be
such an entry as to constitute burglary. Thus where thieves
had bored a hole through the door with a centre-bit, and part
of the chips were found inside the house, by which it was ap-
parent that the end of the centre-bit had penetrated into the
house ; yet as the instrument had not been introduced for the
purpose of taking the property, or committing any other felony,
the entry was ruled to be incomplete. Hughes's case, 2 East,
P. C. 491, 1 Leach, 406, Hawk. P. C. b. 1. c. 38. s. 12.
A glass sash-window was left closed down, but was thrown up
by the prisoners ; the inside shutters were fastened, and there
was a space of about three inches between the sash and the
shutters, and the latter were about an inch thick. It appeared
that after the sash had been thrown up, a crow-bar had been
introduced to force the shutters, and had been not only within
the sash, but had reached to the inside of the shutters, as the
mark of it was found there. On a case reserved, the judges
were of opinion that this was not burglary, there being no
Burglary. 261
proof that any part of the prisoner's hand was within the win-
dow. Rust's case, 1 Moody, ('. C. 183.
Proof of entry by firing a gun into the house.] It has
been already stated, that it a man breaks a house and puts a
pistol in at the window with intent to kill, this amounts to
burglary. 1 Hale, P. C. 555, ante p. 260. " But," says
Lord Hale, " if he shoots without the window, and the bullet
comes" in, this seems to be no entry to make burglary (jiiare."
Hawkins, however states, that the discharging a loaded gun
into a house is such an entry as will constitute burglary ; Hawk.
P. C. b. 1. c. 38. s. 11 ; and this opinion has been followed
by Mr. East and Mr. Serjt. Russell. " It seems difficult," says
the former, " to make a distinction between this kind of implied
entry, and that, by means of an instrument introduced between
the window or threshold for the purpose of committing a felony,
unless it be that the one instrument by which the entry is
effected is held in the hand, and the other is discharged from it.
No such distinction, however, is any where laid down in terms,
nothing further appearing than that the entry must be for the
purpose of committing a felony." 2 East, P. C.490, 2 Russ 11.
It was ruled by Lord Ellenborcugh, that a man who from the
outside of a field discharged a gun into it, so that the shot must
have struck the soil, was guilty of breaking and entering it.
Pickering v. Rudd, 4 Campb. 220, 1 Stark. 58.
Proof of entry constructive entry by one of several.] It is not
necessary in all cases to show an actual entry by all the prisoners ;
there may be a constructive en try as well as a constructive breaking.
A. B. and C. come in the night by consent to break and enter the
house of D. to commit a felony ; A . only actually breaks and enters
the house, B. stands near the door, but does not actually enter,
C. stands at the lane's end, or orchard-gate, or field-gate, or the
like, to watch that no help come to aid the owner, or to give
notice to the others if help comes ; this is burglary in all, and
all are principals. 1 Hale, P. C. 555. So where a man puts a
child of tender years in at the window of the house, and the
child takes goods and delivers them to A., who carries them
away, this is burglary in A., though the child that made the
entry be not guilty on account of its infancy. Id. And so if
the wife, in the presence of the husband, by his threats or coer-
cion break and enter a house in the night, this is burglary in the
husband, though the wife, the immediate actor, is excused by
the coercion of her husband. Id. 556.
Proof of the premises being a mansion-house.] It must be
proved that the premises broken and entered were either a
mansion-house or parcel of the mansion-house. Every house
for the dwelling, and habitation of man is taken to be a mansion-
262 Burglary.
house, wherein burglary may be committed. 3 Inst. 64-5,
2 East, P. C.491.
A mere tent or booth erected in a market or fair is not a
dwelling-house for the purpose of burglary. 1 Hale, P. C. 557.
4 BL Com. 225. But where the building was a permanent
one of mud and brick on the down at Weyhill, erected only as
a booth for the purposes of a fair for a few days in the year,
having wooden doors and windows bolted inside, it was held
that as the prosecutor and his wife slept there every night of the
fair, (during one of which it was broken and entered) this was
a dwelling-house. Smith's case, coram Park, J., 1 Moody <Sf
Robinson, 256.
The mere fact of a building in the neighbourhood of a dwelling-
house being occupied together with the dwelling-house, by the
same tenant, (not taking into consideration the question of the
building being within the same curtilage, as to which vide post
p. 263,) will not render the former building a dwelling-house in
point of law. The prisoner broke and entered an out-house in
the possession of G. S., and occupied by him with his dwelling-
house, but not connected therewith by any fence inclosing both.
The judges held that the prisoner was improperly convicted of
burglary. The out-house being separated from the dwelling-
house, and not within the same curtilage, was not protected by
the bare fact of its being occupied with it at the same time.
Garland's case, 2 East, P. C. 403. So where a manufactory
was carried on in the centre building of a great pile, in the
wings of which several persons dwelt, but which had no in-
ternal communication with these wings, though the roofs of all
the buildings were connected, and the entrance to all was out
of the same common inclosure ; upon the centre building being
broken and entered, the judges held that it could not be con-
sidered as part of any dwelling-house, but a place for carrying
on a variety of trades, and no parcel of the houses adjoining,
with none of which it had any internal communication, nor was
it to be considered as under the same roof, though the roof had
a connection with the roofs of the houses. Eggington-'s case,
2 East, P. C. 494. The house of the prosecutor was in High-
street, Epsom. There were two or three houses there, insulated
like Middle-row, Holborn. At the back of the houses was a
public passage nine feet wide. Across this passage, opposite
to his house, were several rooms, used by the prosecutor for
the purposes of his house, viz. a kitchen, a coach-house, a
larder, and a brew-house. Over the brew-house a servant
boy always slept, but no one else ; and in this room the offence
was committed. There was no communication between the
dwelling-house and these buildings, except a canopy or awn-
ing over the common passage, to prevent the rain from falling
on the victuals carried across. Upon a case reserved, the
judges were of opinion that the room in question was not parcel
Burglary. 263
of the dwelling-house in which the prosecutor dwelt, because it
did not adjoin it, was not under the same roof, and had no com-
mon fence. Graham B. dissented, being of opinion that it was
parcel of the house. But all the judges present thought that it
was a distinct dwelling-house of the prosecutor. Westwood't
case, Russ. ft. Ry. 495.
In the following case, however, the building, though not
within the curtilage, and having no internal communication,
was held to constitute part of the dwelling-house. The pro-
secutor, a farmer, had a dwelling-house in which he lived,
a stable, a cottage, a cow-house, and barn, all in one range of
buildings, in the order mentioned, and under one roof, but
they were not inclosed by any yard or wall, and had no in-
ternal communication. The offence was committed in the
barn, and the judges held this to be burglary, for the barn
which was under the same roof, was parcel of, and enjoyed
with the dwelling-house. G. Brown's case, 2 East, P. C. 493.
So in the following case, the premises broken and entered
were not within the same external fence, as the dwelling-house,
nor had they any internal communication with it, yet they
were held to be part of it. The prosecutor's dwelling-house
was situate at the corner of two streets. A range of workshops
adjoining the house at one side, and standing in a line with
the end of the house, faced one of the streets. The roof of this
range was higher than the roof of the house. At the end of
this range, and adjoining to it, was another workshop project-
ing further into the street, and adjoining to that a stable and
coach-house used with the dwelling-house. There was no
internal communication between the workshops and the dwell-
ing-house, nor were they surrounded by any external fence.
Upon a case reserved, the judges were unanimously of opinion
that the workshops were parcel of the dwelling-house. Chalk-
ing's case, Russ. & Ry. 334, see also Lithgo's case, Id. 357.
In the case about to be mentioned, the premises broken and
entered were within the curtilage, but without any internal
communication with the dwelling-house. It does not appear
whether the decision proceeded upon the same ground as the
last case, or whether on the ground that the building in ques-
tion was within the curtilage. The prosecutor had a factory
adjoining to his dwelling-house. There was no internal com-
munication, the only way from the one to the other, (within
the common inclosure,) being through an open passage into
the factory passage, which communicated witli a lumber-room
in the factory, from which there was a staircase which led
into the yarn-room, where the felony was committed. On a
case reserved, all the judges held that the room in question was
properly described as the dwelling-house of the prosecutor.
Hancock's case, Russ. $ Ry. 171. See also Ciayburn't case, Id.
360.
264 Burglary.
Proof of the premises being a mansion-house occupation.]
It must appear that the premises in question were, at the time
of the offence, occupied as a dwelling-house. Therefore where
a house was under repair, and the tenant had not entered into
possession, but had deposited some of his goods there, but no
one slept in it, it was held not to be a mansion-house, so as to
make the breaking and entering a burglary. Lyons case,
] Leach, 185, 2 East, P. C. 497. Nor will the cir-
cumstance of the prosecutor having procured a person to
sleep in the house, (not being one of his own family) for its
protection, make any difference. Thus where a house was
newly built and finished in every respect, except the painting,
glazing, and flooring of one garret, and a workman who was
constantly employed by the prosecutor slept in it for the pur-
pose of protecting it, but no part of the prosecutor's domestic
family had taken possession, it was held at the Old Bailey, on
the authority of Lyon's case, (supra,) that it was not the dwell-
ing-house of the prosecutor. Fuller's case, 1 Leach, 186, (n.)
So where the prosecutor took a house, and deposited some of his
goods in it, and not having slept there himself procured two
persons (not his own servants) to sleep there for the purpose of
protecting the goods, it was held at the Old Bailey, that as the
prosecutor had only in fact taken possession of the house so far
as to deposit certain articles of his trade therein, but had nei-
ther slept in it himself, nor had any of his servants, it could
not in contemplation of law be called his dwelling-house.
Harris's case, 2 Leach, 701, 2 East, P. C. 498. See
also Hallard's case, coram Buller J. 2 Leach, 701, ()
Norreg Thompson's case, 2 Leach, 771. The following case,
decided upon the construction of the statute 12 Anne, c. 7, is
also an authority on the subject of burglary. The prosecutor,
a publican, had shut up his house, which in the day time was
totally uninhabited, but at night a servant of his slept in it to
protect the property left there, which was intended to be sold to
the incoming tenant, the prosecutor having no intention of
again residing in the house himself. On a case reserved, the
judges were of opinion, that as it clearly appeared by the evi-
dence of the prosecutor, that he had no intention whatever to
reside in the house, either by himself or his servants, it could
not in contemplation of law be considered as his dwelling-
house, and that it was not such a dwelling-house wherein
burglary could be committed. Davies's, alias Silk's case,
2 Leach, 876, 2 East, P. C. 499.
Where no person sleeps in the house, it cannot be considered
a dwelling-house. The premises where the offence was com-
mitted consisted of a shop and parlour, with a stair-case to a
room over. The prosecutor took it two years before the offence
committed, intending to live in it, but remained with his
mother who lived next door. Every morning he went to his
Burglary. 265
shop, transacted his business, dined, and staid the whole day
there, considering it as his home. When he first bought the
house he had a tenant, who quitted it soon afterwards, and
from that time no person had slept in it. On a case reserved,
all the judges held that this was not a dwelling-house. Mar-
tin's case, Russ. &; Ry. 108.
It seems to be sufficient if any part of the owner's family, as
his domestic servants, sleep in the house. A. died in his house.
B. his executor put servants into it, who lodged in it, and were
at board wages, but B. never lodged there himself. Upon an
indictment for burglary, the question was whether this might
be called the mansion-house of B.? The court inclined to
think that it might, because the servants lived there ; but upon
the evidence there appeared no breach of the house. Jones's
case, 2 East, P. C. 499.
Proof of the premises being a dwelling-house occupation
temporary or permanent.] A house is no less a dwelling-house,
because at certain periods the occupier quits it, or quits it for a
temporary purpose. If A., says Lord Hale, has a dwelling-
house, and he and all his family are absent a night or more,
and in their absence, in the night, a thief breaks and enters the
house to commit felony, this is burglary. 1 Hale, P. C. 556.
3 Inst. 64. So if A. have two mansion-houses, and is some-
times with his family in one, and sometimes in the other,
the breach of one of them, in the absence of his family, is bur-
glary. Id. 4 Rep. 40. a. Again if A. have a chamber in a
college or inn of court, where he usually lodges in term time,
and in his absence in vacation his chamber or study is broken
open, this is burglary. Evans <5f Finche's case, Cro. Car. 473.
1 Hale, P. C. 556. The prosecutor being possessed of a house
in Westminster in which he dwelt, took a journey into Corn-
wall, with intent to return, and move his wife and family out of
town, leaving the key with a friend to look after the house.
After he had been absent a month, no person being in the
house, it was broken open, and robbed. He returned a month
after with his family, and inhabited there. This was adjudged
burglary, by Holt, C. J., Treby, J., and four other judges.
Murry f s case, 2 East, P. C. 496, Foster, 77.
In these cases the owner must have quitted his house animo
revertendi, in order to have it still considered as his mansion,
if neither he nor any part of his family were in it at the
time of the breaking and entering. 2 Easf, P. C. 496. The
prosecutor had a house at Hackney, which he made use of in
the summer, his chief residence being in London. About the
latter end of the summer he removed to his town house, bring-
ing away a considerable part of his goods. The following
November his house at Hackney was broken open, upon which
he removed the remainder of his furniture, except a few articles
266 Burglary.
of little value. Being asked whether at this time he had any
intention of returning to reside, he said he had not come to any
settled resolution, whether to return or not, but was rather
inclined totally to quit the house and let it. The burglary
happened in the January following, but the court (at the Old
Bailey) were of opinion that the prosecutor having left his
house and disfurnished it, without any settled resolution to
return, but rather inclining to the contrary, it could not be
deemed his dwelling-house. Nutbrown's case, Foster, 77 , 2 East,
P. C. 496.
It seems that the mere casual use of a tenement, as a lodg-
ing, or only upon some particular occasion, will not constitute
a dwelling house. 2 East, P. C. 497. Where some corn had
been missed out of a barn, the prosecutor's servant and an-
other person put a bed in the barn, and slept there, and upon
the fourth night the prisoner broke and entered the barn ; upon
a reference, it was agreed by all the judges that this sleeping
in the barn made no difference. Brown's case, 2 East, P. C.
501. So a porter lying in a warehouse, to watch goods, which is
only for a particular purpose, does not make it a dwelling-house.
Smith's case, 2 East, P. C.497. ante, p. 264.
Proof of the premises being a dwelling-house occupation
house divided, without internal communication, and occupied by
several.'] Where there is an actual severance in fact of the
house, by a partition or the like, all internal communication
being cut off, and each part being inhabited by several occu-
pants, the part so separately occupied is the dwelling-house of
the person living in it, provided he dwell there. If A. lets a
shop, parcel of his dwelling-house, to B. for a year, and B. holds
it, and works or trades in it, but lodges in his own house at
night, and the shop is broken open, it cannot be laid to be the
dwelling-house of A., for it was severed by the lease during the
term ; but if B. or his servant sometimes lodge in the shop, it
is the mansion house of B., and burglary may be committed in
it. 1 Hale, P. C. 557. Vide Sefton's case, post, p. 267.
The prosecutors, Thomas Smith and John Knowles, were in
partnership, and lived next door to each other. The two houses
had formerly been one, but had been divided, for the purpose
of accommodating the families of both partners, and were now
perfectly distinct, there being no communication from one to
the other, without going into the street. The housekeeping,
servants' wages, &c. were paid by each partner respectively,
but the rent and taxes of both the houses were paid jointly out
of the partnership fund. The offence was committed in the
house of the prosecutor Smith. On the trial, before Eyre,
C. B. and Gould, J. at the Old Bailey, it was objected that th
burglary ought to have been laid to be in the dwelling-house of
the prosecutor Smith only ; and of this opinion was the court.
Martha Jones's case, 1 Leach, 537, 2 East, P. C. 504. But it
Burglary. 267
is otherwise where there is an internal communication. Thus
where a man let part of his house, including his shop, to his
son, and there was a distinct entrance into the part so let, but
a passage from the son's part led to the father's cellars, and
they were open to the father's part of the house, and the son
never slept in the part so let to him, the prisoner being con-
victed of a burglary in the shop, laid as the dwelling-house of
the father, the conviction was held by the judges to be right, it
being under the same roof, part of the same house, and com-
municating internally. But it was thought to be a case of
much nicety. Sefton's case, 2 Russell, 14, Russ. fy Ry. 203.
Chambers in the inns of court are to all purposes considered
as distinct dwelling houses, and therefore whether the owner
happens to enter at the same outer door or not, will make no
manner of difference. The sets are often held under distinct
titles, and are, in their nature and manner of occupation, as
unconnected with each other, as if they were under separate
roofs. 2 East, P. C. 505, 1 Hale, P. C. 556.
Proof of the premises being a dwelling-house occupation
house divided, without internal communication, but all occupied
by the same person.] We have seen, that where a house is
divided, and there is no internal communication between the
two parts, which are occupied by separate tenants, each part is
to be considered as the dwelling-house of the tenant living in
it. Ante, p. 266. But where a house is thus severed, and the
owner dwells in one part of it only, and the other part is broken
and entered in the night ; whether this shall be deemed a bur-
glary seems a question of much nicety. According to the au-
thorities, before the late statute 7 & 8 Geo. 4. c. 29. s. 13. it
was held to be burglary. In the following case, the severed
part of the premises had been let to another person, but that
circumstance was held to make no difference, and the tenant of
the other part was held to be the tenant of the whole, there
being the same outer door.
The prosecutor was the owner of a house, in which he resided,
and to which house there was a shop adjoining, built close to
the house. There was no internal communication between the :
house and the shop, the only door of the latter bein^ in the
cojirt-^ard before the house, which yard, was inclosed by a bnck
wall, incTu
including the house andsnojK The prosecutor let the
shop, together with some apartments in the house, to one Hill,
from year to year! There was only one common door to the
house, which communicated "as well to the prosecutor's as to
Hill's apartments. The burglary was committed in the shop.
On a case reserved, the judges were all of opinion that the
shop was rightly laid to be the dwellinghouse of the prosecutor,
who inhabited in one part, there being but one outer door, espe-
cially as it was within one curtilage, or fence ; and that the
' iT2 ~~
268 Burglary.
shop, being let with a part of the house inhabited by Hill, still
continued to be a part of the dwelling-house of the prosecutor,
though there was no internal communication between them.
But it was admitted, that if the shop had been let by itself, Hill
not dwelling therein, burglary could not have been committed
in it, for then it would have been severed from the house. Gib-
son's case, 2 East, P. C.508. This decision was acted upon
by Holroyd, J. in the following case. The prisoner entered a
loft, beneath which were four apartments, inhabited as a dwell-
ing-house, but which did not communicate with the loft in any
manner. On the side of the house was a shop, which was not
used as a dwelling-house, and which did not communicate with
the four chambers. Between this shop and the loft there was a
communication, by means of a ladder. The dwelling-house
and the shop both opened into the same fold. Holroyd, J.
on the authority of Gibson's case, supra, held the loft to be a
dwelling-house. Thompson's case, Lewin, C. C. 32.
It does not clearly appear in Gibson's case, whether the shop
was considered to be part of the dwelling-house, strictly speak-
ing, (in the same manner as if it had been any of the other
apartments,) or whether it was only taken to be part of the
dwelling-house as being within the same curtilage or fence, the
judges using the expression, " especially as it was within one
curtilage or fence." If it was decided upon the latter ground,
it would now, since the 7 & 8 Geo. 4. c. 29. s. 13., be a
question how far the shop would be considered a part of the
dwelling-house, there being no communication between the
two. According to the case of Burrowes, 1 Moody, C. C. 274,
post, p. 278, in which the judges were divided, seven to five, the
shop would still be considered as part of the dwelling-house.
Proof of the premises being a dwelling-house occupation
where there is an internal communication, but the parts are occu-
pied by several under different titles.] Although in the case of
lodgers and inmates, who hold under one general occupier, the
whole of the house continues to be his dwelling-'house, if there
be an internal communication, and the parties have a common
entrance, vide post, p. 269, yet it is otherwise where several
parts of a building are let under distinct leases. The owner of
a dwelling-house and warehouse under the same roof, and com-
municating internally, let the house to A. (who lived there),
and the warehouse to A. and B., who were partners. The
communication between the house and warehouse was con-
stantly used by A. The offence was committed in the ware-
house, which was laid to be the dwelling-house of A. On a
case reserved, the judges were of opinion that this was wrong,
A. holding the house in which he lived under a demise to him-
self alone, and the warehouse under a distinct demise to himself
and B. Jenkins's case, Runs, fy Ry. 244.
Burglary. 269
Proof of the premises being a dwelling-house occupation by
lodgers.] Where separate apartments were let in a dwelling
house to lodgers, it seems formerly to have been doubted whe-
ther they might not in all cases be described as the mansion
house of the lodgers. 2 East, P. C. 505, Hawk. P. C. b. 1.
c. 38. s. 13, 14. But the rule is now taken to be, according to
the opinion of Kelynge (p. 84.), that if the owner, who lets
out apartments in his house to other persons, sleeps under the
same roof, and has but one outer door, common to himself
and his lodgers, such lodgers are only inmates, and all their
apartments are parcel of the dwelling-house of the owner. But.
if_lh_owner do not lodge in the same house, or if he and his
lodgerTenter by different outer doors, the apartments so let are
the mansion, for the time being, of each lodger respectively.
And accordingly it was so ruled by Holt, C. J. at the Old Bai-
ley, in 1701, although in that case the rooms were let for a
year, under a rent, and Tanner, an ancient clerk in court, said
that this was the constant course' and practice. 2 East, P. C.
505, 1 Leach, 90. (n.)
Where one of two partners is the jessee of a shop and
house, and the other partner occupies a room in the house, he is
only regarded as a lodger. Morland and Gutteridge were
partners ; Morland was the lessee of the whole premises, and
paid all the rent and ta'xes for the same. Gutteridge had an
apartment in the house, and allowed Morland a certain sum .
for board and lodging, and also a certain proportion of the rent/-
and taxes for the shop and warehouses. The burglary was
committed in the shop, which was laid to be the dwelling-house
of Morland, and the judges held the description right. Par-
menter's case, 1 Leach, 537. (n.)
In the following cases, the apartments of the lodger were
held to be his dwelling-house. The owner let the whole of a
house to different lodgers. The prosecutor rented a room on
the first floor, a shop and parlour on the ground floor, and a
cellar underneath the shop," at 12/. 10s. a-year. The owner
took back the cellar, to keep lumber in, for which he allowed
the prosecutor a rebate of 40s. a-year. The entrance was intoj.
passage, by a door from the street, and on the side of the pas-
safSone door opened ^nto the shop," and another into the parlour,
and beyond the parlour was the stair-case which led to the
upper apartments. The shop and parlour, doors were broken
open, and the judges determined that these rooms were properly
laid to be the dwelling-house of the lodger, for it could not be
called the mansion of the owner, as he did not inhabit any
part of it, but only rented the cellar for the purpose before
mentioned. Eogers's case^l Leach, 89, 428, 2 East, P. C.
506, 507, Hawk. P. C. b. 1. c. 38. s. 29.
The house in which the offence was committed belonged to
one Nash, who did not live in any part of it himself, but let the
270 Burglary.
whole of it out in separate lodgings from week to week. John
Jordan, the prosecutor, had two rooms, viz., a sleeping-room,
and a workshop in the garret, which he rented by the week as
tenant at will to Nash. The workshop was broken and entered
by the prisoner. Ten judges, on a case reserved, were unani-
mously of opinion, that as Nash, the owner of the house, did
not inhabit any part of it, the indictment properly charged it to
be the dwelling-house of Jordan. Carrell's case, 1 Leach, 237,
429, 2 East, P. C. 506. The prisoner was indicted under the
statute 3 & 4 W. & M. c. 9. s. 1. for breaking and entering
a dwelling-house, and stealing therein. The house was let out
to three families, who occupied the whole. There was only one
outer door, common to all the inmates. J . L. (whose dwelling-
house it was laid to be) rented a parlour on the ground-floor,
and a single room up one pair of stairs, where he slept. The
judges were of opinion that the indictment lightly charged the
room to be the dwelling-house of J. L. Trapshaw's case, 1 Leach,
427, 2 East, P. C. 506. 780.
It follows, from the principle of the above cases, that if a man
lets out part of his house to lodgers, and continues to inhabit
the rest himself, if he breaks open the apartment of a lodger,
and steals his goods, it is felony only, and not a burglary, for it
cannot be burglary to break open his own house. 2 East, P. C.
506. Kel. 84.
Proof of the premises being a dwelling-house occupation by
wife or family.] The actual occupation of the premises by any
part of the prosecutor's domestic family, will be evidence of its
being his dwelling-house. The wife of the prosecutor had for
many years lived separate from her husband. When she was
about to take the house, in which the offence was afterwards
committed, the lease was prepared in her husband's name, but
he refused to execute it, saying he would have nothing to do
with it, in consequence of which, she agreed with the landlord
herself, and constantly paid the rent herself. Upon an indict-
ment for breaking open the house, it was held to be well laid
to be the dwelling-house of the husband. Farre's case, Kel. 43,
44, 45. In a similar case, where there was the additional fact,
that the wife had a separate property vested in trustees, the
judges were clear that the house was properly laid to be the
dwelling-house of the husband. It was the dwelling-house of
some one. It was not the wife's ; because, at law, she could
have no property ; it was not the trustees', because they had
nothing to do with it; it could then only be the husband's.
French's case, Russ. fy Ry. 491. So where the owner of a
house, who had never lived in it, permitted his wife, on their
separation, to reside there, and the wife lived there in adultery
with another man, who paid the expenses of housekeeping, but
neither rent nor taxes, this was held by the judges to be pro-
Burglary. 271
perly described as the dwelling-house of the husband. Wil-
ford's case, Russ. <3f Ry. 517. And see Smyth's case, 5 C. fy P.
203.
Proof of the premises being a dwelling-house occupation by
clerks and agents in public offices, companies, <Sfc.] An agent or
clerk employed in a public office, or by persons in trade, is in
law the servant of those parties, and if he be suffered to reside
upon the premises, which belong to the government, or to the
individuals employing him, the premises cannot be described as
his dwelling-house. Three persons were indicted for breaking
the lodgings of Sir Henry Hungate, at Whitehall ; and the
judges were of opinion, that it should have been laid to be the
King's mansion-house at Whitehall. Williams's case, 1 Hale,
P. C. 522. 527. The prisoner was indicted for breaking into a
chamber in Somerset-house, and the apartment was laid to be
the mansion-houge of the person who lodged there ; but it was
held bad, because the whole house belonged to the Queen-
mother. Burgess's case, Kel. 27, The prisoner was indicted
under the 12 Anne, c. 7. for stealing a gold watch in the dwel-
ling-house of W. H. Bunbury, Esq. The house was the in-
valid office, at Chelsea ; an office under government. The
ground-floor was used by the paymaster-general, for the pur-
pose of conducting the business relating to the office. Mr.
Bunbury occupied the whole of the upper part of it ; but the
rent and taxes of the whole were paid by government. The
court (at the Old Bailey) held that it was not the dwelling-
house of Mr. Bunbury. Peyton's case, 1 Leach, 324, 2 East,
P. C. 501. The prisoner was indicted for burglary in
the mansion-house of Samuel Story. It appeared that the
house belonged to the African Company, and that Story was an
officer of the company, and had separate apartments, and lodged
and inhabited there. But Holt C. J., Tracy J., and Bury B.,
held this to be the mansion-house of the company, for though
an aggregate corporation cannot be said to inhabit any where,
yet they may have a mansion-house for the habitation of their
servants. Hawkins's case, 2 East, P. C. 501, Poster, 38. So
it was held with regard to the dwelling-house of the East India
Company, inhabited by their servants. Picket's case, 2 East,
P. C. 501. The prisoner was indicted for breaking and enter-
ing the house of the master, fellows, and scholars of Bennet
College, Cambridge. The fact was, he broke into the buttery
of the college, and there stole some money, and it was agreed
by all the judges to be burglary. Maynard's case, 2 East,
P. C. 501. The governor of the Birmingham workhouse was
appointed under contract for seven years, and had the chief
part of the house for his own occupation ; but the guardians
and overseers who appointed him, reserved to themselves the
use of one room for an office, and of three others for store rooms.
272 Burglary.
The governor was assessed for the house, with the exception of
these rooms. The office being broken open, it was laid to be
the dwelling-house of the governor ; but upon a case reserved,
the judges held the description wrong. Wilson's case, Russ. 6f
Ry. 115.
The following case appears to be at variance with previous
authorities, and it may be doubted whether it is to be considered
as law. The prosecutor, Sylvester, kept a blanket warehouse
in Goswell-street, and resided with his family in the house over
the warehouse, which was on the ground-floor, and consisted of
four rooms ; the second of which was the room broken open.
There was an internal door between the warehouse and the
dwelling-house. The blankets were the property of a company
of blanket manufacturers at Witney, in Oxfordshire, none of
whom ever slept in the house. The whole rent, both of the
dwelling-house and warehouse, was paid by the company, to
whom Sylvester acted as servant or agent, and received a con-
sideration for his services from them, part of which consideration
he said was his being permitted to live in the house rent free.
The lease of the premises was in the company. The court
(Graham B., and Grose J.,) were clearly of opinion that it
was rightly charged to be the dwelling-house of Sylvester ; for
though the lease of the house was held, and the whole rent re-
served paid by the company in the country, yet, as they had
never used it in any way as their habitation, it would be doing
an equal violence to language and to common sense to consider
it as their dwelling-house, especially, as it was evident that the
only purpose in holding it was to furnish a dwelling to their
agent, and ware-rooms for the commodities therein deposited.
It was the means by which they in part remunerated Sylvester
for his agency, and was precisely the same thing as if they had
Eaid him as much more as the rent would amount to, and he
ad paid the rent. The bargain, however, the court observed,
took another shape. The company preferred paying the rent of
the whole premises, and giving their agent and his family a
dwelling therein towards the salary which he was to receive
from them. It was, therefore, essentially and truly, the dwel-
ling of the person who occupied it. The punishment of burglary
was intended to protect the actual occupant from the terror of
disturbance during the hours of darkness and repose ; but it
would be absurd to suppose that that terror which is of the es-
sence of this crime, could, from the breaking and entering in this
case, have produced an effect at Witney. Margettis case,
2 Leach, 930.
It has been observed, that the accuracy of the reason given in
the above judgment with regard to protecting the actual occu-
pant, may, perhaps, be questionable. The punishment of bur-
glary will attach equally, and the actual occupant will not be
less protected, though the offence should be laid in the indict-
Burglary. 273
ment as committed in the dwelling-house of the real owner.
And with respect to the terror in this case, not having affected
the company at Witney, the same might have been said of the
terror to the East India Company or the African Company, in
the cases of burglary in their houses. (Vide supra.) In the
course of this case, Mr. Justice Grose inquired if there had not
been a prosecution at the Old Bailey for a burglary in some of
the halls of the city of London, in which it was clear that no
part of the corporation resided ; but in which the clerks of the
company generally lived ; and Mr. Knapp informed the court
that his father was clerk to the Haberdashers' Company, and re-
sided in the hall which was broken open, and in that case the
court held it to be his father's house. 2 Leach, 931. (n.)
Margetts's case, however, appears to be supported by a very
late decision. The prosecutor was secretary to the Norwich
Union Insurance Company, and lived with his family in the
house used as the office of the company, who paid the rent and
taxes. The burglary was in breaking into a room used for the
business of the company. The recorder, on the authority of
Margetts's case, and the case of the clerk of the Haberdashers'
Company there mentioned, thought the indictment correct, but
reserved the point for the judges, who were of opinion that the
house was rightly described as the prosecutor's, since he, his
family, and servants were the only persons who dwelt there ;
and they only were liable to be disturbed by a burglary.
Though their lordships would not say that it might not have
been described as the company's house, they thought it might,
with equal propriety, be described as the prosecutor's. Witt's
case, 1 Moody, C. C. 248.
Proof of the premises being a dwelling-house occupation by
servants occupying as such.] Where a servant occupies a
dwelling-house, or apartments therein, as a servant, his occu-
pation is that of his master, and the house is the dwelling-house
of the latter. But it is otherwise, where the servant occupies
suojure as tenant. Thus., apartments in the king's palaces, or
in the houses of noblemen, for their stewards and chief servants,
can only be described as the dwelling-house of the king or no-
bleman. Kel. 27. 1 Hale, P. C. 522, 527. Graydon, a farmer,
had a dwelling-house and cottage under the same roof, but they
were not inclosed by any wall or court-yard, and had no internal
communication. Trumball, a servant of Graydon, and his
family, resided in the cottage by agreement with Graydon,
when he entered his service. He paid no rent, but an abate-
ment was made in his wages on account of the cottage. The
judges (Butler dub.) held that this was no more than a licence
to Trumball to lodge in the cottage, and did not make it his
dwelling-house. Brown's case, 2 East, P. C. 501.
The prosecutors were partners as bankers, and also a*
w 5
274 Burglary.
brewers, and were the owners of the house in question, used
in both concerns. There were three rooms with only one en-
trance by a door from the street. No one slept in these rooms.
The upper rooms of the house were inhabited by one John Ste-
venson, the cooper employed in the brewing concern. He was
paid half a guinea a-week, and permitted to have these rooms
for the use of himself and family. There was a separate en-
trance from the street to these rooms. There was no commu-
nication between the upper and lower floor, except by a trap-
door (the key of which was left with Stevenson) and ladder,
not locked or fastened, and not used. Stevenson was assessed
to the window-tax for his part of the premises, but the tax was
paid by his masters. It being objected that the place where the
burglary was committed was not the dwelling-house of the
prosecutors, the point was reserved, when eight of the judges
thought that Stevenson was not a tenant, but inhabited only in
the course of his service. Four of the judges were of a contrary
opinion. Lord Ellenborough, C. J., said " Stevenson cer-
tainly could not have maintained trespass against his employers
if they had entered these rooms without his consent. Does a
gentleman who assigns to his coachman the rooms over his
stables, thereby make him a tenant ? The act of the assessors,
whether right or wrong in assessing Stevenson for the windows
of the upper rooms, can make no difference, nor is it material
in which of the two trades the prosecutors carried on, Stevenson
was servant, for the property in both partnerships belonged to
the same persons. As to the severance, the key of the trap-door
was left with Stevenson, and the door was never fastened, and
it can make no difference whether the communication between
the upper and lower rooms was through a trap-door or by a
common staircase." Stock's case, 2 Leach, 1015, 2 Taunt.
339, 1 Russ. &i Ry. 185. See Flannagan's case, Rass. <5f Ry.
187. infra.
In order to render the occupation of a servant the occupation
of the master, it must appear that the servant is, properly
speaking, such, and not merely a person put into the house for
the purpose of protecting it. The prosecutor left the dwelling-
house, keeping it only as a warehouse and workshop, without
any intention of again residing in it. In consequence of his
thinking it not prudent to leave the house without some one in
it, two women, employed by him as workwomen in his business,
and not as domestic servants, slept there to take care of the
house, but did not take their meals there or use the house for
any other purpose than that of sleeping there. Upon an in-
dictment for stealing goods to the amount of more than 40s. in
the dwelling-house of the prosecutor, the judges held that this
could not be considered his dwelling-house. Flannagan's case,
Russ. fy Ry. 187. It is difficult to distinguish this case from
Burglary. 275
that of R. v. Stock, 2 Leach, 1015. supra, which received an
opposite decision.
Still, though the object of the owner of the house in putting
in his servants be to protect his property only, yet if they live
there, their occupation will be deemed his occupation, and the
house may be described as his dwelling-house. The shop
broken open was part of a dwelling-house which the prosecutor
had inhabited. He had left the dwelling-house and never
meant to live in it again, but retained the shop and let the other
rooms to lodgers ; after some time he put a servant and his fa-
mily into two of the rooms, lest the place should be robbed, and
they lived there. Upon a case reserved, the judges thought
that putting in a servant and his family to live, very different
from putting them in merely to sleep, and that this was still to
be deemed the prosecutor's house. Gibbon's case, 2 Russ. 19.
Proof of the premises being a dwelling-house occupation by
ten-ants as tenants.] Where a servant occupies part of the
premises belonging to his master, not as in the cases above
mentioned, ante, p. 273, in the capacity of servant, but in the
character of tenant, the premises must be described as his
dwelling-house. Greaves and Co. had a house and building,
where they carried on their trade. Mottran, their warehouse-
man, lived with his family in the house and paid III. per an-
num for rent and coals (the house alone being worth 20L per
annum). Greaves and Co. paid the rent and taxes. The
judges were of opinion that this could not be laid to be the
dwelling-house of Greaves and Co. They thought that as
Mottran stood in the character of a tenant (for Greaves and
Co. might have distrained upon him for his rent, and could not
arbitrarily have removed him), Mottran's occupation could not
be deemed their occupation. Jarvis's case, 1 Moody, C. C. 7.
Nor is it necessary, in order to invest the servant with the
character of tenant, that he should pay a rent, if, from the other
circumstances of the case, it appears that he holds as tenant.
The prosecutor (Gent), a collier, resided in a cottage built by
the owner of the colliery for whom he worked. He received 15*.
a- week as wages besides the cottage, which was free of rent and
taxes. The prisoner being indicted for burglary in the dwelling-
house of the prosecutor, Holroyd, J. was of opinion that though
the occupation and enjoyment of the cottage were obtained by
reason of Gent being the servant of the owner, and co-extensive
only with the hiring, yet that his inhabiting the cottage was not
as in the cases referred to (2 East, P. C. 500), correctly speak-
ing, merely as the servant of the owner, nor was it either as to
the whole or any part of the cottage as his (the owner's) occu-
pation, or for his use or business or that of the colliery, but
wholly for the use and benefit of Gent himself and his family,
276 Burglary.
in like manner as if he had been paid the rent and taxes ; and
though the servant's occupation might in law, at the master's
election, be considered as tlie occupation of the master and not
of the servant, yet with regard to third persons it might be con-
sidered either as the occupation of the master or servant. The
point was, however, reserved for the opinion of the judges, who
held that the cottage might be described as the dwelling-house
of Gent. Jobting's case, Kuss. &; Ry. 525. A toll-house was
occupied by a person employed by the lessee of the tolls at
weekly wages as collector, and as such he had the privilege of
living in the toll-house. The judges were unanimously of
opinion that the toll-house was rightly described as his dwell-
ing-house, for he had the exclusive possession of it, and it was
unconnected with any premises of the lessee, who did not ap-
pear to have any interest in it. Camjuid'i case, 1 Moody, C.C.
43.
So where a person who has been servant, remains, on the
tenant's quitting, upon the premises, not in the capacity of ser-
vant, they may he described as his dwelling-house. Lord Spen-
cer let a house to Mr. Stephens, who underlet it. The sub-
lessee failed and quitted, and no one remained in the house but
Ann Pemberton, who had been servant to the sub-lessee.
Stephens paid her 15s. a week till he died, when she received
no payment, but continued in the house. At Michaelmas it
was given up to Lord Spencer, but Ann Pemberton was per-
mitted by the steward to remain in it. Bayley, J. thought
Ann Pemberton might be considered tenant at will, but re-
served the point for the opinion of the judges, who held that
the house was rightly laid in the indictment as the dwelling-
house of Anu Pemberton, as she was there not as a servant but
as a tenant at will. Collet's case, Russ. fy Ry. 498.
Proof of the premises being a dwelling-house occupation
by guests, <3fc.J If several persons dwell in one house, as guests
or otherwise, having no fixed or certain interest in any part of
the house, and a burglary be committed in any of their apart-
ments, it seems clear that the indictment ought to lay the offence
in the mansion-house of the proprietor. Hawk. P. C. b. 1. c.
38. s. 26. Therefore, where the chamber of a guest at an inn
is broken open, it shall be laid to be the mansion-house of the
innkeeper, because the guest has only the use of it, and not any
certain interest. 1 Hale, P. C. 557. It has been said that if
the host of an inn break the chamber of his guest in the night
to rob, this is burglary. Dalton, c. 151. s. 4. But it has been
observed that this may be justly questioned ; for that there seems
no distinction between that case and the case of an owner re-
siding in the same house, breaking the chamber of an inmate
having the same outer door as himself, which, Kelyng says,.
cannot be burglary. Kel. 84. 2 East, P. C. 582.
Burglary. 277
It is said by Lord Hale, that if A. be a lodger in an inn,
and in the night opens his chamber-door, steals goods in the
house, and goes away, it may be a question whether this be
burglary ; and, he continues, it seems not, because he had a
kind of special interest in his chamber, and so the opening of
his own door was no breaking of the innkeeper's house ; but if
he had opened the chamber of B., a lodger in the inn, to steal
his goods, it had been burglary. 1 Hale, P. C. 554. It has
been observed that the reasoning in the following case is op-
posed to the distinction taken by Lord Hale, and that the case
of a guest at an inn breaking his own door to steal goods in the
uight, falls under the same consideration as a servant under
the like circumstances. 2 East, P. C. 503. The prosecutor, a
Jew pedlar, came to the house of one Lewis, a publican, to stay
all night, and fastened the door of his chamber. The pri-
soner pretended to Lewis that the prosecutor had stolen his
goods, and under this pretence, with the assistance of Lewis and
others, forced the chamber-door open, and stole the prosecutor's
goods. Adams, B. doubted whether the chamber could be
properly called the dwelling-house of the prosecutor, being
really a part of the dwelling-house of the innkeeper. Upon a
case reserved, the judges all thought, that though the prosecutor
had for that night a special interest in the bedchamber, yet it
was merely for a particular purpose, viz. to sleep there that night
as a travelling guest, and not as a regular lodger ; that he had
no certain and permanent interest in the room itself, but both
the property and possession of the room remained in the land-
lord, who would be answerable civiliter for any goods of his
guest that were stolen in the room, even for the goods now in
question, which he could not be unless that room were deemed
to be in his possession ; and that the landlord might go into the
room when he pleased, and would not be a trespasser to his
guest. Prosser's case, 2 East, P. C. 502.
Proof of the premises being a dwelling-house occupation
partners.] Whe r e one of several partners is the lessee of the
premises where the business is carried on, and another partner
occupies an apartment there and pays for his board and lodg-
ing, the latter, as already stated, will be considered as a lodger
only. Paiminter's case', 1 Leach, 537. (.) ante, p. 269. But
where the house is the joint property of the firm, and one of the
partners, and the persons' employed in the trade, live there, it is
properly described as the 'dwelling-house of the firm. Athea's
case, 1 Moody, C. C. 329. '
Proof of the premises being a dwelling-house out -buildings,
and curtilage.] It has been already stated, that the dwelling-
house at common law not only included the premises actually
used as such, but also such out-buildings, &c. as were within
278 Burglary.
the curtilage or court-yard surrounding the house, and were
consequently considered to be under the same protection. Ante,
p. 261. Great difficulty being frequently experienced in decid-
ing what buildings came within this protection, and very nice
distinctions having been taken on the subject, (see the cases col-
lected, 2 East, P. C. 492, 2 Russell, 13.) to remedy this
evil, it was enacted by the 7 & 8 G. 4. c. 29. s. 13. that " no
building, although within the same curtilage with the dwelling-
house, and occupied therewith, shall be deemed to be part of
such dwelling-house for the purpose of burglary, (or for any of
the purposes aforesaid,) unless there shall be a communication
between such building and dwelling-house either immediate or
by means of a covered and inclosed passage leading from the
one to the other."
The following case has been decided on this clause. The
prosecutor's house consisted of two long rooms, another room
used as a cellar, and washhouse on the ground-floor, and three
bed-rooms up stairs. There was no internal communication
between the washhouse and any of the other rooms of the house,
the door of the washhouse opening into the back-yard. All
the buildings were under the same roof. The prisoner broke
into the washhouse, and the question reserved for the opinion of
the judges was, whether this was burglary. Seven of their lord-
ships thought that the washhouse was part of the dwelling-
house, the remaining five thought it was not. Burrowes's case,
1 Moody, C. C. 274.
Proof of the offence having been committed in the night time.]
The prosecutor must prove that both the breaking and entering
took place in the night time, but is not necessary that both
should have taken place on the same night. It is said by Lord
Hale, that if thieves break a hole in the house one night, to the
intent to enter another night, and commit a felony, through the
hole they so made the night before, this seems to be burglary ;
for the breaking and entering were both noctanter, though not
the same night, and it shall be supposed they broke and entered
the night they entered, for the breaking makes not the burglary
till the entry. 1 Hale, P. C. 551. This point was lately de-
cided in the following case : In the night of Friday, the side-
door of the prosecutor's house, which opened into a public
passage, had all the glass taken out by the prisoner, with intent
to enter, and on the Sunday night the prisoner entered through
the hole thus made. On a case reserved, the judges were of
opinion that the offence amounted to burglary, the breaking and
entering being both by night. And although a day elapsed be-
tween the breaking and entering, yet the breaking was originally
with intent to enter. John Smith's case, Russ. &; Ry. 417.
With regard to what shall be esteemed night, it is said by
Lord Hale to have been anciently held that, after sun-set,
Burglary. 279
though daylight be not quite gone, or before sun-rising, is noc-
tanter, to make a burglary, (DaJt. c. 99. Cromp. 32. b.) ; but he
adds, that the better opinion has been, that if the sun be set, yet
if the countenance of a party can be reasonably discerned by the
light of the sun, or crepusculum, it is not night. 1 Hale, P. C.
550. 3 Inst. 63. This rule, however, does not apply to moon-
light, otherwise many burglaries might pass unpunished. 1 Hale,
551. 4 Bl. Com. 224.
" If the breaking of the house," says Lord Hale, " were done
in the day-time, and the entering in the night, or the breaking
in the night and the entering in the day, that will not be bur-
glary ; for both make the offence, and both must be noctanter."
1 Hale, P. C. 551. citing Cromp. 33. a. ex. 8. Ed. 2 . Upon this,
the annotator of Lord Hale observes, that " the case cited does
not fully prove the point it is brought for, the resolution being
only, that if thieves enter in the night at a hole in the wall which
was there before, it is no burglary ; but it does nnt appear who
made the hole." 1 Hale, P. C. 551. (n.) It is observed by Mr.
Serjeant Russell, that it is elsewhere given as a reason by Lord
Hale, why the breaking and entering, if both in the night, need
not be both in the same night, that it shall be supposed that the
thieves broke and entered in the night when they entered ; for
that the breaking makes not the burglary till the entry ; and the
learned writer adds, that " this reasoning, if applied to a break-
ing in the day-time and an entering in the night, would seem to
refer the whole transaction to the entry, and make such break-
ing and entering a burglary." 2 Russell, 32., and see 2 East,
P. C. 509. It would seem, however, to be carrying the pre-
sumption much farther than in the case put by Lord Hale ; and
it may well be doubted, whether, in such a case, the offence
would be held to amount to burglary.
Proof of intent to commit felony -felony at common law, or
by statute.] The prosecutor must prove that the dwelling-house
was broken and entered with intent to commit a felony therein.
Evidence that a felony was actually committed, is evidence that
the house was broken and entered with intent to commit that
offence. 1 Hale, P. C. 560. 2 East, P. C. 514.
It was at one time doubted, whether it was not essential that
the felony intended to be committed should be a felony at com-
mon law. 1 Hale, P. C. 562. Crompton, 32. Dalt. c. 151. s. 5.
But it appears to be now settled, according to the modern autho-
rities, that it makes no difference whether the offence intended
be felony at common law, or by statute ; and the reason given
is, that whenever a statute makes an offence felony, it inci-
dentally gives it all the properties of a felony at common law.
Hawk. P. C. b. 1. c. 38. s. 38. Gray's case, Str. 481. 4 Bl.
Com. 228. 2 East, P.C.511. 2 Russ. 35.
280 Burglary.
If it appear that the intent of the party, in breaking and en-
tering, was merely to commit a trespass, it is no burglary ; as
where the prisoner enters with intent to beat some person in the
house, even though killing or murder may be the consequence,
yet, if the primary intention was not to kill, it is still not bur-
glary. 1 Hale, P. C. 561. 2 East, P. C. 509. Where a servant
embezzled money intrusted to his care, ten guineas of which he
deposited in his trunk, and quitted his master's service, but
afterwards returned, broke and entered the house in the night,
and took away the ten guineas, this was adjudged no burglary,
for he did not enter to commit a felony, but a trespass only.
Although it. was the master's money in right, it was the servant's
in possession, and the original act was no felony. Bingtey's case,
Hawk. P. C. b. 1. c. 38. s.37. cited 2 Leach, 840, as Dingl-ey's
case, 2 East, P. C. 510, S. C. as Anon. Where goods had
been seized as contraband by an excise-officer, and his house
was entered in the night, and the goods taken away, upon an
indictment for entering his house with intent to steal his goods,
the jury found that the prisoners broke and entered the house
with intent to take the goods on behalf of the person who had
smuggled them ; and upon a case reserved, all the judges were
of opinion that the indictment was not supported, there being no
intent to steal, however outrageous the conduct of the prisoners
was in thus endeavouring to get back the goods. Knight fy RoJ'-
fey's case, 2 East, P. C. 510. If the indictment had been
for breaking and entering the house, with intent feloniously to
rescue goods seized, that being made felony by statute 19 G. 2.
c. 34., the chief baron and some of the other judges held
it would have been burglary. But even in that case, some
evidence must be given on the part of the prosecutor, to show
that the goods were uncustomed, in order to throw the proof
upon the prisoners that the duty was paid ; but their being
found in oil-cases, or in great quantities in an unentered place
would have been sufficient for this purpose. 2 East, P. C. 510.
The prisoner was indicted for breaking, &c. with intent to kill
and destroy a gelding there being. It appeared that the pri-
soner, in order to prevent the horse from running a race, cut
the sinews of his fore-legs, from which he died. Pratt C. J.
directed an acquittal, the intent being not to commit felony by
killing and destroying the horse, but a trespass only to prevent
its running, and therefore it was no burglary. But the pri-
soner was afterwards indicted for killing the horse, and capi-
tally convicted. Dobb'scase, 2 East, P. C. 513. Two poachers
went to the house of a game-keeper, who had taken a dog from
them, and believing him to be out of the way, broke the door
and entered; being indicted for this as a burglary, it appearing
that their intention was to rescue the dog, and not to commit
a felony, Vaughan B. directed an acquittal. Anon. Matth.
Dig. C. L. 48. See Hollowuy's case, 5 C. <5f P. 524.
Burglary. 281
Proof of the intent variance in the statement of '.] The in-
tent must be proved as laid. Thus, if it be laid with intent to
commit one sort of felony, and it be proved that it was with
intent to commit another, it is a fatal variance. 2 East, P. C.
514. Where the prisoner was indicted for burglary and steal-
ing goods, and it appeared that there were no goods stolen,
but only an intent to steal, it was held by Holt, C. J. that this
ought to have been so laid, and he directed an.acquittal. Vander-
comb's case, 2 East, P. C. 514. The property in the goods,
which it is alleged were intended to be stolen, must be correctly
laid, and a variance will be fatal. Jenk's case, 2 East, P. C.
514. It seems sufficient in all cases where a felony has been
actually committed, to allege the commission without any intent ;
1 Hale, P. C. 560. 2 Easf, P. C. 514 ; and in such case
no evidence except that of the committing of the offence will
be required to show the intention. It is a general rule that a
man who commits one sort of felony, iu attempting to commit
another, cannot excuse himself on the ground that he did not
intend the commission of that particular offence. Yet this it
seems must be confined to cases where the offence intended is
in itself a felony. 2 East, P. C. 514, 515.
The intent of the parties will be gathered from all the cir-
cumstances of the case. Three persons attacked a house.
They broke a window in front and at the back. They put a
crow-bar and knife through a window, but the owner resist-
ing them, they went away. Being indicted for burglary with
intent to commit a larceny, it was contended that there was no
evidence of the intent ; but Park, J. said, that it was for the
jury to say, whether the prisoners went with the intent alleged
or not ; that persons do not in general go to houses to commit
trespasses in the middle of the night ; that it was matter of
observation that they had the opportunity, but did not commit
the larceny, and he left it to the jury to say, whether from all
the circumstances they could infer that or any other intent.
Anon. Lewin, C. C, 37.
Minor offence larceny, $fc.] If the prosecutor fail in his
attempt to prove the breaking and entry of the dwelling-house,
but the indictment charges the prisoner with a larceny com-
mitted there, he may be convicted of the larceny, simple or
compound, according to the circumstances of the case. Thus
where the prisoner was charged with breaking and entering the
house of the prosecutor, and stealing 60/. therein, and the jury
found that he was not guilty of breaking and entering the house
in the night, but that he was guilty of stealing the money in the
dwelling-house ; upon a case reserved, it was resolved by the
judges after some doubt, that by this finding the prisoner was
ousted of his clergy, for the indictment contained every charge ne-
cessary upon the 12 Ann, c. 7, viz. astealingin a dwelling-house to
282 Burglary.
the amount of 40s., andthejury had found him guilty of that charge.
Withal' s case, 2 East, P. C. 517, 1 Leach, 88. In a similar
case the verdict given by the jury was " not guilty of burglary,
but guilty of stealing above the value of 40s. in the dwelling-
house," and the entry made by the officer was in the same
words. On a case reserved, the judges held the finding suffi-
cient to warrant a capital judgment. They agreed, that if the
officer were to draw up the verdict in form, he must do so accord-
ing to the plain sense and meaning of the jury, which admitted
of no doubt; and that the minute was only for the future direction
of the officer, and to show that the jury found the prisoner
guilty of the larceny only. But many of the judges said, that
when it occurred to them they should direct the verdict to be
entered, " not guilty of the breaking and entering in the night,
but guilty of the stealing," &c., as that was more distinct and
correct. It appeared, upon inquiry, to be the constant course on
every circuit in England, upon an indictment for murder, where
the party was only convicted of manslaughter, to enter the ver-
dict " not guilty of murder, but guilty of manslaughter," or
" not guilty of murder, but guilty of feloniously killing and
slaying," and yet murder includes the killing. The judges added
that the whole verdict must be taken together, and that the jury
must not be made to say, that the prisoner is not guilty gene-
rally, where they find him expressly guilty of part of the charge,
or to appear to speak contradictorily by means of the officer's
using a technical term, when the verdict is sensible and intel-
ligible in itself. Hungerford's case, 2 East, P. C. 518.
It was formerly thought that if several were jointly indicted
for burglary and larceny, and no breaking and entering were
proved against one, he could not be convicted of larceny and
the others of burglary. Turner's case, 1 Sid. 171, 2 East, P. C.
519. But in a late case, where one prisoner pleaded guilty,
and the other two were found guilty of the larceny only, the
judges on a case reserved differed in opinion. Seven of
them resolved, that judgment should be entered against all
the three prisoners, against him who had pleaded guilty for the
burglary and capital larceny, and against the other two for
the capital larceny. Burrough, J. and Hullock, B. were of a
different opinion, but Hullock thought that if a nolle prosequi
were entered as to the burglary, judgment might be given
against all the three for the capital larceny. The seven judges
thought that there might be cases in which, upon a joint lar-
ceny by several, the offence of one might be aggravated by
burglary in him alone, because he might have broken the house
in the night, in the absence and without the knowledge of the
others, in order to come afterwards and effect the larceny,
and the others might have joined in the larceny without know-
ing of the previous breaking. Butterworttiscase, Russ. $ Ry.
520.
Burglary. 283
Although a prisoner may be convicted of the larceny only,
yet if the larceny was committed on a previous day, and not on
the day of the supposed burglary, he cannot be convicted of
such larceny. This point having been reserved for the opinion
of the judges, they said " the indictment charges the prisoners
with burglariously breaking and entering the house and stealing
the goods, and most unquestionably that charge may be modi-
fied by showing that they stole the goods without breaking open
the house ; but the charge now proposed to be introduced, goes
to connect the prisoners with an antecedent felony committed
before three o'clock, at which time it is clear, they had not en-
tered the house. Having tried without effect to convict them
of breaking and entering the house, and stealing the goods,
you must admit that they neither broke the house nor stole the
goods on the day mentioned in the indictment ; but to introduce
the proposed charge, it is said, that they stole the goods on a
former day, and that their being found in the house is evidence
of it. But this is surely a distinct transaction ; and it might
as well be proposed to prove any felony which these prisoners
committed in this house seven years ago, as the present." Van-
dercomb's case, 2 Leach, 708.
Proof of breaking out of a dwelling-house.] It was formerly
doubted whether, where a man entered a dwelling-house in the
night (without breaking) with intent to commit felony, and
afterwards broke out of the same, or being there in the night
committed a felony, and broke out, this amounted to burglary
or not. 1 Hale, P. C. 554, Clarke's rase, 2 East, P. C. 490.
Lord Bac. Elem. 65. 2 Russ. 1. It was, however, declared to
be such by 12 Anne, c. 7, and that act being now repealed, it
is declared by 7 & 8 Geo. 4. c. 29. s. 11, that if any person
shall enter the dwelling-house of another with intent to commit
a felony, or being in such dwelling-house shall commit any
felony, and shall in either case break out of the said dwelling-
house in the night time, such person shall be deemed guilty of
burglary.
Proof upon plea of autrefois acquit*] In considering the
evidence upon the plea of autrefois acquit in burglary, some
difficulty occurs from the complex nature of that offence, and
from some contrariety in the decisions. The correct rule ap-
pears to be, that an acquittal upon an indictment for burglary
in breaking and entering and stealing goods, cannot be pleaded
in bar to an indictment for burglary in the same dwelling-
house, and on the same night with intent to steal, on the ground
that the several offences described in the two indictments can-
not be said to be the same. This rule was established in Van-
dercomb's case, where Buller J. delivered the resolution of the
judges, and concluded in these words : " These cases establish
284 Cattle.
the principle, that unless the first indictment were such as the
prisoner might have been convicted upon by proof of the facts
contained in the second indictment, an acquittal on the first
indictment can be no bar to the second. Now to apply these
principles to the present case. The first indictment was for
burglariously breaking and entering the house of Miss Neville,
and stealing the goods mentioned ; but it appeared that the
prisoners broke and entered the house with intent to steal, for in
fact no larceny was committed, and therefore they could not be
convicted on that indictment. But they have not been tried for
burglariously breaking and entering the house of Miss Neville
with intent to steal, which is the charge in the present indict-
ment, and therefore they have never been in jeopardy for this
offence. For this reason the judges are all of opinion that the
plea is bad, and that the prisoners must take their trials upon
the present indictment." Vandercomb's case, 2 Leach, 716,
2 East, P. C. 519, overruling Turner's case, Kel. 30, and Jones
c5f Bever's case, Id. 52.
CATTLE.
OFFENCES WITH REGARD TO CATTLE.
Stealing horses, cows, sheep, Sfe. . . . 284
Killing cattle with intent to steal . . 286
Maiming cattle .... 286
Proof of the animal, being within the stat. . 287
Proof of the injury . . . 287
Prcof of the malice and intent . . 288
Offences with regard to cattle stealing horses, cows, sheep, $fe.]
The stealing of domestic animals, as horses, cows, sheep, &c.
was larceny at common law, and the punishment of persons so
offending was likewise provided for by various statutes now
repealed, the 7 & 8 Geo. 4. c. 29, being substituted in their
place.
By the 25th section of that statute it is enacted, that if any
person shall steal any horse, mare, gelding, colt, or filly, or any
bull, cow, ox, heifer, or calf, or any ram, ewe, sheep, or lamb,
or shall wilfully kill any of such cattle, with intent to steal the
carcase, or skin, or any part of the cattle so killed, every such
Cattle. 285
offender shall be guilty of felony, and being convicted thereof,
shall suffer death as a felon. But by the 2 & 3 Wm.'4. c. 62,
s. 1, the above act, so far as regards the punishment of the
offender, is repealed, and it is enacted that every person con-
victed of such felonies, or of counselling, aiding, or abetting the
commission thereof, shall be transported beyond the seas for
life. And by 3 & 4 Wm. 4. c. 64, s. 3, such offender may,
previous to his being transported, be imprisoned with or with-
out hard labour in the common gaol or house of correction, or
be confined in the penitentiary for any term not exceeding four
years, nor less than one year. '
To support a prosecution under this statute for stealing a
horse, &c., the prosecutor must give the same evidence, in
general, as would be required to maintain an indictment for
larceny at common law.
From the peculiar nature of the property, a doubt sometimes
arises with regard to the animus furandi in cases of horse-
stealing ; it being uncertain whether the horse was taken with
an intent to steal, or merely to facilitate the escape of the party
with other stolen property.
The least removal in this, as in other cases of larceny, will
be sufficient, though part only of the animal be taken. The
prisoner was indicted for stealing six lambs, and the evidence
was that the carcases of the lambs without their skins, were
found on the premises where they had been kept, and that the
prisoner had sold the skins the morning after the offence was
committed. The jury having found the prisoner guilty, a doubt
arose whether, as the statute 14 G- 2. c. 6. (now repealed) spe-
cifies feloniously driving away, and feloniously killing, with
intent to steal , the whole or any part of the carcase, as well as
feloniously stealing in general, although there must in such
cases be some removal of the thing, it did not intend to make
these different offences ; but the judges held the conviction
right, for any removal of the thing feloniously taken constitutes
larceny. Eawlins's case, 2 East, P. C. 617. The authority of
this case, however, so far as the circumstances were held to
apply to the rule with regard to the removal of the property,
was much shaken in the following : The prisoner was tried
upon an indictment (under 14 G.2.) charging him in one count
with stealing, and in another with killing, three sheep, with
intent to steal the whole of the carcases. The sheep were in
the field of the prosecutor on the evening of the 4th May, and
the next morning were found killed and cut open, the inside
and entrails taken out, and the tallow and inside fat taken
away ; the fat cut off the back of two of them was taken away,
but the fat on the back of the third was left. The carcases of
the sheep were found lying in the gripe of the hedge, in the
same field where the live sheep had been ; the entrails were also
left, and found in an adjoining field. With regard to the count
286 Cattle.
for stealing, Littledale, J. observed, that in all cases, in which
a slight removal of the article had been held to amount to
larceny, there had always been an intent to steal the article
itself, but the thief had been prevented from getting the com-
plete possession and dominion over it ; and if it was not held
larceny, there would be a failure of public justice. But here
there was no intention, in the removal, to drive away or steal the
living sheep ; but the intent of the removal was to commit
another offence, of which he might be capitally convicted. In
all the cases where a slight removal had been held larceny,
there was evidence given of an actual removal, and how it was
done ; but here there was no evidence of the removal of the
sheep in a live state, and the removal after their death would
not support a count for stealing sheep, which must be intended
to be live sheep. (Edwards's case, Russ.fy Ry. 497.) The doc-
trine in llawlins's case, supra, not being satisfactory to the
mind of the learned judge, he reserved the case for the opinion
of the judges, who were of opinion that the second count was
supported, and not the first, a removal whilst alive being essen-
tial to constitute larceny ; and nine of the judges held that the
offence of intending to steal a part, was part of the offence of
intending to steal the whole, and that the statute meant to
make it immaterial whether the intent applied to the whole or
only to part. Williams' s case, i Moody, C. C. 107.
With regard to the description of the animal stolen, &c., the
cases have already been stated. See ante.
Killing cattle, with intent to steal.~\ Upon an indict-
ment under the 7 & 8 G. 4. c. 29. s. 25, for killing cattle with
intent to steal the carcase or skin, or any part of the cattle so
killed, the prosecutor must prove the killing and the intent.
Upon an indictment for killing a sheep with intent to steal
the whole carcase, it is sufficient to prove a killing with intent
to steal a part only. Williams's cane, 1 Moody, C. C. 107,
supra. Where the prisoner was indicted for killing a lamb,
with intent to steal part of the carcase, and it appeared
that the prisoner cut off the leg of the animal while living, and
carried it away before it died, the judge thought that as the
death-wound was given before the theft, the offence was made
out, and the prisoner being convicted, on a case reserved,
the judges were unanimously of opinion that the conviction
was right. Clay's case, Russ. f Ry. 387.
Maiming, c. of cattle.~\ At common law, the maiming of
cattle was not an indictable offence. The prisoner was charged
for that he, on &c., with force and arms, one gelding, of the
value, &c., then and there unlawfully did maim, to the damage
of the prosecutor ; but, upon a reference to the judges after
conviction, they all held that the indictment contained no
Cattle. 287
indictable offence ; for, if the case were not within the Black
Act, the fact in itself was only a trespass ; for the words
vi et armis did not imply force sufficient to support the indict-
ment. Ranger's case, 2 East, P. C. 1074.
This class of offences was provided against by the Black Act,
9 Geo. 1. c. 22 ; but that statute was repealed, and in sub-
stance re-enacted, by the 4 Geo. 4. c. 54 ; and now, the latter
statute being also repealed, by the 7 & 8 Geo. 4. c. 27, the law
on this subject is contained in the 7 and 8 Geo. 4. c. 30.
By the 16th sect, of that statute, it is enacted, that if any
person shall unlawfully and maliciously kill, maim, or wound
any cattle, every such offender shall be guilty of felony, and
being convicted thereof, shall be liable at the discretion of the
court to be transported beyond the seas for life, or for any term
not less than seven years, or to be imprisoned for any term not
exceeding four years, and if a male to be once, twice, or thrice
publicly or privately whipped (if the court shall think fit) in
addition to such imprisonment.
The evidence upon a prosecution under this statute will be
1, that the animal killed or maimed comes within the descrip-
tion of cattle specified in the statute ; and 2, the act of killing
or maiming by the prisoner.
Proof of the animal being within the statute.] Upon the
repealed statute of 9 Geo. 1. c. 22, which only contained the
general word "cattle," it was held, that an indictment for
killing "a mare" was good. Paty's case, 1 Leach, 72, 2
W. Bl. 721, 2 East, P. C. 1074. And so an indictment for
wounding " a gelding." Mott's case, 1 Leach, 73, (n.) Pigs
have been held to be within the stat. 9 Geo. 1. c. 22. Chap-
pie's case, Russ. fy Ry. 77. So also asses. Whitney's case, 1
Moody, C. C. 3. It is not sufficient in the indictment to charge
the prisoner with maiming, &c. " cattle" generally, without
specifying the description, and such description must be
proved ; and where the sex is stated, the animal must be
proved to be of that sex. Chalkley's case, Russ. <?f Ry. 258.
Proof of the injury.'] Upon an indictment for maliciously
wounding, it need not appear either that the animal was killed,
or that the wound inflicted a permanent injury. Upon an
indictment for this offence, it was proved that the prisoner had
maliciously driven a nail into a horse's foot. The horse was
thereby rendered useless to the owner, and continued so to the
time of trial ;. but the prosecutor stated that it was likely to be
perfectly sound again in a short time. The prisoner being con-
victed, the judges, on a case reserved, held the conviction right,
being of opinion that the word "wounding" did not imply a
permanent injury. Haywood's case, Russ. Ry. 16, 2 East,
288 Cattle.
P. C. 1076. But by maiming, is to be understood a permanent
injury. Id. 2 East, P. C. 1077.
Where the prisoner was indicted on the 4 Geo. 4. c. 54, for
wounding a sheep, and it appeared that he had set a dog at the
animal, and that the dog, by biting it, inflicted several severe
wounds, Park, J., is stated to ha^ve said, "This is not an
offence at common law, and is only made so by a statute, and
I am of opinion that injuring a sheep, by setting a dog to worry
it, is not a maiming or wounding within the meaning of that
statute." Hughes's case, 2 C. if P. 420. As to the construction
of the word " wound," see Wood's case, 1 Moody, C. C. 278,
Wetton's case, Id. 294. Where the prisoner poured a quantity
of nitrous acid into the ear of a mare, some of which, getting
into the eye, produced immediate blindness, being convicted of
maliciously maiming the mare, the conviction was held by the
judges to be right. Owen's case, 1 Moody, C. C. 205.
The administering poison to cattle, however malicious the act
may be, is not a felony within the statute, unless the animal die ;
but the party may be indicted as for a misdemeanor. Where
a man was thus indicted, for administering sulphuric acid to
eight horses, with intent feloniously to kill them, and it appeared
that he had mixed sulphuric acid with the corn, and having
done so gave each horse his feed ; Park, J., held that this evi-
dence supported the allegation in the indictment, of a jojnt
administering to all the horses. Mogg'scase, 4 C. if P. 364.
Where the prisoner set fire to a cowhouse, and a cow in it
was burnt to death, Taunton, J., ruled that this was a killing
of the cow, within the 7 & 8 Geo. 4. c. 30. s. 16. Haughton's
case, 5 C. if P. 559.
Proof of malice and intent.] Under the repealed statute of
9 G. 1. c. 22, it was necessary to show that the act was done
out of malice to the owner ; but the 7 & 8 Geo. 4. c. 30, renders
it an offence, whether the act be done from malice conceived
against the owner or otherwise. Although it is thus rendered
unnecessary to give evidence of malice against any particular
person, yet an evil intent in the prisoner must appear. Thus,
in Mogg's case, supra, Park, J. left it to the jury to say
whether the prisoner had administered the sulphuric acid (there
being some evidence of a practice of that kind by grooms) with
the intent imputed in the indictment, or whether he had done it
under the impression that it would improve the appearance of
his horses ; and that in the latter case they ought to acquit him.
289
CHALLENGING TO FIGHT.
What amounts to ..... 289
Proof of intent ..... 289
Venue . . 289
What amounts to.'] It is a very high offence to challenge
another, either by word or letter, to fight a duel, or to be the
messenger of such a challenge, or even barely to provoke ano-
ther to send such a challenge, or to right, as by dispersing let-
ters to that purpose, containing reflections, and insinuating a de-
sire to fight. Hawk. P. C.b.l. c. 63. s. 3. Thus, a letter
containing these words, " You have behaved to me like a black-
guard. 1 shall expect to bear from you on this subject, and
will punctually attend to any appointment you may think proper
to make," was held indictable. Phillips's case, 6 East, 464.
Rice's case, 3 East, 581.
On an indictment for challenging, or provoking to challenge,
the prosecutor must prove 1st, the letter or words conveying
the challenge ; and 2d, where it does not appear from the writing
or words themselves, he must prove the intent of the party to
challenge, or to provoke to a challenge.
Proof of the intent.'] In general the intent of the party will
appear from the writing or words themselves ; but where that
is not the case, as where the words are ambiguous, the pro-
secutor must show the circumstances under which they were ut-
tered, for the purpose of proving the unlawful intent of the
speaker. Thus, words of provocation, as " liar,'' or "knave,"
though a mediate provocation to a breach of the peace, do not
tend to it immediately, like a challenge to fight, or a threat-
ening to beat another. King's case, 4 Inst. 181. Yet these,
or any other words, would be indictable if proved to have been
spoken with an intent to urge the party to send a challenge.
1 Russell, 276.
Venue.'] Where a letter challenging to fight is put into the
post-office in one county, and delivered to the party in another,
the venue may be laid in the former county. If the letter is
never delivered, the defendant's offence is the same. Williams' 's
case, 2 Campb. 506.
o
290
CHEATING.
Proof of the nature of the cheating or fraud affecting the
public . .... 290
What cheats are not indictable . . . 292
Under this head, the evidence required to support an indict-
ment for a cheat or fraud at common law will be considered.
The proofs regarding prosecutions for false pretences, are treated
of in a subsequent part of this work.
In order to support an indictment at common law for cheat-
ing, the prosecutor must prove 1st, that the cheat was of a
public nature ; 2d, the mode in which the cheating was effected ;
thus if it was by a false token, the nature of such false token
must be stated in the indictment, and proved in evidence ;
3d, that the object of the defendant in defrauding the prosecutor
was successful.
The punishment of this offence is, as in cases of other misde-
meanors at common law, fine and imprisonment.
Proof of the nature of the cheating or fraud affecting th
public.] Frauds affecting the crown, and the public at large,
are indictable, though they may arise in the course of particular
transactions with private individuals. 2 Russell, 285. The
selling unwholesome provisions, 4 EL Com. 162, or the giving
any person unwholesome victuals, not fit for man to eat, lucri
causa, 2 East, P. C. 822, is an indictable offence. Where the
defendant was indicted for deceitfully providing certain French
prisoners with unwholesome bread, to the injury of their health,
it was objected in arrest of judgment that the indictment could
not be sustained, for that it did not appear that what was done
was in breach of any contract with the public, or of any civil or
moral duty ; but the judges, on a reference to them, held the
conviction right. 'J'reeve's case, 2 East, P. C. 821. The de-
fendant was indicted for supplying the Royal Military Asylum
at Chelsea, with loaves not fit for the food of man, which he
well knew, &c. It appeared that many of the loaves were
strongly impregnated with alum, (prohibited to be used by
37 G. 3. c. 98. s. 21.) and pieces as large as horse-beans
were found ; the defence was, that it was merely used to assist
the operation of the yeast, and had been carefully employed.
But Lord Ellenborough said, " Whoever introduces a sub-
stance into bread, which may be injurious to the health of those
who consume it, is indictable, if the substance be found in the
Cheating. 291
bread in that injurious form, although if equally spread over the
mass, it would have done no harm." Diion's case, 4 Campb. 12,
3 M.<5rS. 11.
There is also another head of public cheats indictable at com-
mon law, which are directed against the public justice of the
kingdom ; such as the doing judicial acts without authority, iu
the name of another. 2 East, P. C. 821. There is the prece-
dent of an indictment against a married woman for pretending
to be a widow, and as such, executing a bail-bond to the
sheriff. This probably was considered a fraud upon a public
officer in the course of justice. Ibid. Trem. P. C. 101. Cr.
dr. Com. 78. So it was said by Lord Ellenborough, that he
had not the least doubt that a person making use of a false in-
strument for the purpose of perverting the course of justice, was
guilty of an offence punishable by indictment. Omealy v.
Newell, 8 East, 364. So it was held, that a person who, being
committed under an attachment for a contempt in a civil cause,
counterfeited a pretended discharge as from his creditor to the
sheriff and gaoler, under which he obtained his discharge from
gaol, was guilty of a cheat and misdemeanor at common law,
although the attachment not being for non-payment of money,
the discharge was a nullity. Fawcett's case, 2 East, P. C. 862.
Doubts were entertained by some of the judges whether this
was not a forgery at common law. Vide post, title " Forgery."
Fraudulent malversations or cheats in public officers, are also
the subject of an indictment at common law, as against over-
seers of the poor for refusing to account ; Commings' case, 5 Mod.
179, 1 Bott, 332, 1 Russell, 288 ; or for rendering false ac-
counts. Martin's case, 2 Campb. 269, 3 Chitty, C. L. 701,
2 Russell, 288. Upon an application to the Court of King's
Bench, against the minister and churchwardens of a parish, for
misapplying monies collected by a brief, and returning a smaller
sum only as collected, the Court, refusing the information, re-
ferred the prosecutors to the ordinary remedy by indictment.
R. v. Ministers, %c. of St. Bototph, 1 W. Bl. 443. Vide post,
title " Offices."
Again, where two persons were indicted for enabling persons
to pass their accounts with the pay-office, in such a way as to de-
fraud the government, and it was objected that it was only a
private matter of account, and not indictable, the Court decided
otherwise, as it related to the public revenue. Bembridge 's case ,
cited 6 East, 136.
Another class of frauds affecting the public, is cheating by
false weights and measures, which carry with them the sem-
blance of public authenticity. Thus, the counterfeiting the ge-
neral seal or mark of a trade upon cloth of a certain descrip-
tion and quality, is indictable. Worrel's case, Trem. P. C.
106, 2 East, P. C. 820. So where the defendant has mea-
sured corn in a bushel, and put something in the bushel to fill it
o 2
292 Cheating.
up, or has measured it in a bushel short of the stated measure.
Per Cur. Pinkney's case, 2 East, P. C. 820.
What cheats are not indictable.] It is not, however, every spe-
cies of fraud and dishonesty in transactions between individuals
which is the subject matter of a criminal charge at common
law ; but in order to constitute it such, it must be an act affect-
ing the public, such as is public in its nature, calculated to de-
fraud numbers, and to deceive the people in general. 2 East,
P. C. 816.
Where an imposition unon an individual is effected by a false
affirmative or bare lie, in a matter not affecting the public, an
indictment is not sustainable. Thus where an indictment
charged the defendants with selling to a person eight hun-
dred weight of gum, at the price of seven pounds per hundred
weight, falsely affirming that the gum was gum seneca, and
that it was worth seven pounds per hundred weight, whereas
it was not gum seneca, and was not worth more than 3/. &c.,
the indictment was quashed. Lewis's case, Sayer, 205.
So where the party accompanies his assertion with an appa-
rent token of no more value than his own assertion. Thus,
where an indictment at common law charged that Lara, deceit-
fully intending, by crafty means and devices, to obtain posses-
sion of divers lottery tickets, the property of A., pretended that
he wanted to purchase them for a valuable consideration, and
delivered to A. a fictitious order for payment of money subscribed
by him (Lara) &c., purporting to be a draft upon his banker
for the amount, which he knew he had no authority to do, and
that it would not be paid ; but which he falsely pretended to be
a good order, and that he had money in the banker's hands,
and that it would be paid, by virtue of which he obtained the
tickets, and defrauded the prosecutor of the value ; judgment
was arrested, on the ground that the defendant was not charged
with having used any false token to accomplish the deceit, for
the banker's check drawn by himself entitled him to no more
credit than his bare assertion that the money would be paid.
Lara's case, 2 East, P. C. 819, 6 T. R. 565, 2 Leach, 652.
But such an offence is punishable as a false pretence under
the statute. Vide post, title " False Pretences." So where
the defendant, a brewer, was indicted for sending to a
publican so many vessels of ale, marked as containing such a
measure, and writing a letter assuring him that they did con-
tain such a measure, when, in fact, they did not contain such
measure, but so much less, &c., the indictment was quashed
on motion, as containing no criminal charge. Wilders's case,
cited 2 Burr. 1128, 2 Est, P. C. 819. Upon the same prin-
ciple, where a miller was indicted for detaining corn sent to him
to be ground, the indictment was quashed, it being merely a
private injury, for which an action would lie. Channell's case,
Cheating. 293
2 Str. 793, 1 Sess. Ca. 366, 2 East, P. C. 818. So, selling
sixteen gallons of ale as eighteen Lord Mansfield said, " it
amounts only to an unfair dealing, and an imposition on this
particular man, from which he could not have suffered but for
his own carelessness in not measuring the liquor when he re-
ceived it ; whereas fraud, to be the object of a criminal prosecu-
tion, must be of that kind, which in its nature is calculated to
defraud numbers, as false weights and measures, false tokens,
or where there is a conspiracy." Wheatly's case, 2 Burr. 1125,
1 W. EL 273, 2 East, P. C. 818. Where a miller was charged
with receiving good barley, and delivering meal in return diffe-
rent from the produce of the barley, and musty, &c., this was
held not to be an indictable offence. Lord Ellenborough said,
that if the case had been, that the miller had been owner of a soke
mill, to which the inhabitants of the vicinage were bound to re-
sort, in order to get their corn ground, and that he, abusing the
confidence of his situation, had made it a colour for practising a
fraud, this might have presented a different aspect ; but as it
then stood, it seemed to be no more than the case of a common
tradesman, who was guilty of a fraud in a matter of trade or
dealing, such as was adverted to in Wheatly's case, (supra)
and the other cases, as not being indictable. Haynes's case,
4 M. % S. 214. Vide Wood's case, 1 Sess. Ca. 217, 2 Russell,
296.
The indictment stated that the defendant came to M. in the
name of J., to borrow 51., on which M. lent her the 51., ubi
revera she never had any authority from J. to borrow the money.
The defendant being convicted, on motion in arrest of judgment,
the whole Court thought this not an indictable offence. Holt C. J.
put the following case : A young man seemingly of age, came
to a tradesman to buy some commodities, who asked him if he
was of age, and he told him he was, upon which he let him
have the goods, and upon an action, he pleaded infra tetatem,
and was found to be under age half a year ; and afterwards the
tradesman brought an action upon the case against him for a
cheat ; but after a verdict for the plaintiff, judgment was
arrested. Powell J., said, if a woman pretending herself to be
with child, does with others conspire to get money, and for that
purpose goes to several young men, and says to each that she is
with child by him, and that if he will not give her so much
money, she will lay the bastard to him, and by these means gets
money of them, this is indictable. Holt C. J. added, " I
agree it is so when she goes to several, but not to one particular
person." Glanvill's case, Holt, 354. From the last observa-
tion of Holt C. J., it appears that Powell J. was speaking of
an indictment for cheating, and not, as might be supposed, from
using the words, " does with others conspire," of an indictment
for conspiracy.
CHILD STEALING.
The offence of child-stealing is now provided against by
the statute 9 G. 4. c. 31. s. 21. by which it is enacted, That
if any person shall maliciously, either by force or fraud,
lead or take away, or decoy or entice away, or detain any
child under the age of 10 years, with intent to deprive the
parent or parents, or any other person having the lawful care
or charge of such child, of the possession of such child, or with
intent to steal any article upon or about the person of such
child, to whomsoever such article may belong ; or if any person
shall, with any such intent as aforesaid, receive or harbour any
such child, knowing the same to have been, by force or fraud,
led, taken, decoyed, enticed away, or detained as hereinbefore
mentioned, every such offender, and every person counselling,
aiding, or abetting such offender, shall be guilty of felony, and
being convicted thereof, shall be liable to be transported beyond
the seas for the term of seven jears, or to be imprisoned with
or without hard labour in the common gaol or House of Cor-
rection, for any term not exceeding two years; and if a male,
to be once, twice, or thrice publicly or privately whipped (if the
Court shall so think fit) in addition to such imprisonment.
Provided always, that no person, who shall have claimed to be
the father of an illegitimate child, or to have any right to the
possession of such child, shall be liable to be prosecuted by
virtue hereof, on account of his getting possession of such child,
or taking such child out of the possession of the mother, or any
other person having the lawful charge thereof.
To support an indictment under this statute, the prosecutor
must prove 1 , The leading or taking away, decoying or enticing
away of the child, either by force or fraud, as alleged in the
indictment. Where the child is not produced as a witness, or
is of such tender years as to be unable to give evidence, the
taking or decoying, &c. must be proved by the other circum-
stances of the case. 2. The age of the child. It must be
proved that the child is not more than ten years of age ; but
the precise age mentioned in the indictment is not material.
3. The intent must be proved as laid, and will in general be
gathered from all the circumstances of the case. An intent to
deprive the parents, &c. of the lawful care or charge of the child
may be inferred, from the secret manner in which it was taken
away. As to the " persons having the lawful care or charge
of the child," vide ante, title " Abduction," p. 197.
CONCEALING BIRTH OF CHILD.
The offence of concealing the birth of a child was first pro-
vided against by statute 21 Jac. 1. c. 27, which was repealed
Child concealing birth o/. 295
by the 43 G. 3. c. 58. The latter statute was also repealed by
the 9 G. 4. c. 31, which contains the following clause, (s. 14.)
That if any woman shall be delivered of a child, and shall,
by secret burying or otherwise disposing of the dead body of
the said child, endeavour to conceal the birth thereof, every
such offender shall be guilty of a misdemeanor, and being
convicted thereof, shall be liable to be imprisoned, with or
without hard labour, in the common gaol or house of correction,
for any term not exceeding two years ; and it shall not be
necessary to prove whether the child died before, at, or after its
birth ; provided always, that if any woman tried for the murder
of her child shall be acquitted thereof, it shall be lawful for the
jury, by whose verdict she shall be acquitted, to find, in case
it shall so appear in evidence, that she was delivered, and that
she did, by secret burying or otherwise disposing of the dead
body of such child, endeavour to conceal the birth thereof;
and thereupon the Court may pass such sentence, as if she had
been convicted upon an indictment for the concealment of
the birth.
Upon a prosecution on this statute, the prosecutor must
prove, 1, the birth of the child; 2, the secret burying, or
other disposal of the dead body ; and 3, the endeavour to con-
ceal the birth. In general, the evidence to prove the first
points will also tend to establish the last.
In defence, the prisoner may prove any circumstances nega-
tiving the endeavour to conceal, as that she called for help or
confessed herself with child ; and upon the same principle evi-
dence was allowed (under the repealed statute 21 Jac. 1. c. 27.)
of the mother's having made provision for the birth, as a cir-
cumstance to show that she did not intend to conceal it. 1 East,
P. C. 228. A disclosure to an accessory has been held to take
the case out of the stat. 21 Jac. 1. Jane Peat was indicted for
the murder of her bastard child, and Margaret Peat, her
mother, for being present, aiding and abetting. It appeared
that Jane Peat was heard by persons in an adjoining room to
call her mother. Healh, J. ruled, that if any person was
present, though privy to the guilt, the case was not within the
statute. Peat's case, 1 East, P. C. 229. The prisoner was
indicted for the murder of her bastard child, and it was proved
that she had thrown the child down the privy. The learned
judge told the jury, that the act of throwing the child down the
privy was evidence of an endeavour to conceal the birth, within
the 43 G. 3. c. 58. s. 3. (now repealed), and the prisoner being
convicted of the endeavour to conceal, the judges held that the
conviction was right. Cornwall's case, Russ. &; Ry. 336.
Where the dead body of a new born child was found amongst
the feathers of a bed, and there was no evidence showing by
whom it was put there, and it appeared that the mother had
sent for a surgeon, and prepared clothes, the judge, on an
296 Coining.
indictment against the mother for endeavouring to conceal the
birth, directed an acquittal. Hizlev's case, 4 C. <3f P. 366.
An indictment for endeavouring to conceal the birth of a
child must show that the child was dead, but whether it died
before or after the birth need not be proved. Perkins's case,
Leicin, C. C. 44. So it was said by Bayley, J., that he
should rule that the statute 43 Geo. 3. c. 58. extended to all
cases, whether it was proved that the child was still born,
or left the matter in doubt. Southern's case, 1 Burn, 335,
Uth Ed.
Upon an indictment for the murder of the child, the prisoner,
on failure of the proof as to the murder, may be convicted by
the statute of endeavouring to conceal the birth. Where the
bill for murder was not found by the grand jury, and the
prisoner was tried for murder on the coroner's inquisition, it
was held that she might be found guilty of the concealment, the
words of the stat. 43 Geo. 3. being that " it shall be lawful for
the jury, by whose verdict any person charged with such
murder shall be acquitted, to find," and the judges holding
that the coroner's inquisition was a charge, so as to justify
the finding of the concealment. Maynard's case, Russ. $f Ry.
240. Cole's case, 2 Leach, 1095, 3'Campb. 371. It may be
observed, that the word charge does not occur in the statute
9 G.4. c. 31.
COINING.
Proof of counterfeiting the gold and silver coin . 29?
Proof of the counterfeiting . . 297
Proof that the coin is counterfeit . . 298
Proof of colouring counterfeit coin or metal and filing ,
and altering legal coin . . 299
Proof of impairing or diminishing the coin . . 300
Proof of uttering counterfeit gold or silver coin . 300
Proof of the simple uttering . . 301
Proof (if the compound offence of uttering, having
other counterfeit coin in possession . 301
Proof of buying or selling counterfeit coin for less value
than its denomination importing coun-
terfeit coin . . . 303
Proof of having counterfeit coin in possession . 304
Proof of counterfeiting, <5fc. the copper coin , 304
Coining. 297
Proof cf counterfeiting foreign coin , , 305
Proof of uttering foreign counterfeit coin . . 306
Proof of having in possession Jive or more pieces of foreign
counterfeit coin ... 307
Proof of offences with regard to coining tools . 308
Venue ..... 310
Traversing . . . .310
Accessories . . . 310
Interpretation clause .... 310
The laws against coining, so far as they relate to the current
coin of the realm, were consolidated by the 2 W. 4. c. 34. by
which the former statutes were repealed, and new provisions
substituted.
Proof of counterfeiting the gold or silver coin.] By the
2 W. 4. c. 34. s. 3. it is enacted, that if any person shall
falsely make or counterfeit any coin, resembling or apparently
intended to resemble or pass for any of the king's current gold
or silver coin, every such offender shall, in England and Ire-
land, be guilty of felony, and in Scotland, of a high crime and
offence, and, being convicted thereof, shall be liable, at the
discretion of the Court, to be transported beyond the seas for
life, or for any term not less than seven years, or to be impri-
soned for any term not exceeding four years ; and every such
offence shall be deemed to be complete, although the coin so
made or counterfeited shall not be in a fit state to be uttered, or
the counterfeiting thereof shall not be finished or perfected.
In order to establish the charge of counterfeiting, the pro-
secutor must prove 1st, the act of counterfeiting and 2d, that
the coin counterfeited resembled, or was apparently intended to
resemble or pass for the king's current gold or silver coin.
Counterfeiting the gold or silver coin proof of the counter-
feiting.] In order to prove that the prisoner was guilty of coun-
terfeiting, it is not necessary to show that he was detected in
the act, but presumptive evidence, as in other cases, will be
sufficient, viz. that false coin was found in his possession, and
that there were coining tools discovered in his house, &c. But
the evidence must be such as to lead to a plain implication of
guilt. Two women were indicted for colouring a shilling and a
six-pence, and the third prisoner, a man, for counselling them,
&c. It appeared that he had visited them once or twice a
week ; that the rattling of copper money had been heard whilst
he was with them, that on one occasion he was seen counting
something after he came out ; that he resisted being stopped,
06
298 Coining.
and jumped over a wall to escape ; and that there were found
upon him a bad three shilling piece, five bad shillings, and five
bad sixpences. Upon a case reserved, the judges thought this
evidence too slight to support a conviction. Isaac's case, 1 Rus-
sell, 62.
Counterfeiting the gold or silver coin proof that the coin if
counterfeited.'] It must be proved both that the coin in ques-
tion is counterfeit, and that it resembles, or is apparently in-
tended to resemble the king's current gold or silver coin. The
tact that the coin counterfeited or resembled, is the king's cur-
rent gold or silver, may be proved by evidence of common usage
or reputation. 1 Hale, P. C. 213. The proof that the coin in
question is in fact false, is provided for by the 17th sect, of the
2 W. 4. c. 34. which enacts, That v^here, upon the trial of
any person charged with any offence against the act, it shall be
necessary to prove that any coin produced in evidence against
such person is false or counterfeit, it shall not be necessary
to prove the same to be false and counterfeit by the evidence of
any moneyer, or other officer of his majesty's mint, but it shall
be sufficient to prove the same to be false or counterfeit by the
evidence of any other credible witness.
In proving the coin to be counterfeit, two questions may
arise ; ; first, whether it is in such a state of completion as to be
properly described as false and counterfeit coin; and secondly,
whether it does resemble or is apparently intended to resemble
or pass for the king's current gold or silver coin.
With regard to the first question, it is enacted by the 2 W. 4.
c. 34. s. 3. that the offence of counterfeiting shall be deemed
to be complete, although the coin so made or counterfeited
shall not be in fit state to be uttered, or the counterfeiting
thereof shall not be finished or perfected. Notwithstanding
this provision, there must still, it is apprehended, be a sub-
stantial making or counterfeiting proved, and that it will not
be sufficient merely to show that steps have been taken towards
a counterfeiting. The clause appears to have been intended to
provide against such cases as that of Harris, where the metal
requiring a process of beating, filing, and immersing in aqua
fortis, to render the coin passable, the judges held that the
prisoner couid not be convicted of counterfeiting. Harris's case,
1 Leach, 135. See also Varley's case, 1 Leach, 76, 2 Win. Black.
682, 1 East, P. C. 164.
The question whether the coin alleged to be counterfeit does
in fact resemble or is apparently intended to resemble or pass
for the king's current gold or silver coin, is one of fact for the
jury, in deciding which they must be governed by the state of
the coinage at the time. Thus where the genuine coin is worn
smooth, a counterfeit bearing no impression is within the law,
tor it may deceive the more readily for bearing no impression,
Coining. 299
and in the deception the offence consists. Welsh's case, 1 East,
P. C. 164, 1 Leach, 293. Wilson's case, 1 Leach, 285. Nor
will a variation not sufficient to prevent the deception render
the coin less a counterfeit. Thus it is said by Lord Hale, that
counterfeiting the lawful coin of the kingdom, yet with some
small variation in the inscription, effigies, or arms, is a counter-
feiting of the king's money. 1 Hale, P. C. 215.
Proof of colouring counterfeit coin or metal and filing,
and altering legal com.] By section 4. of 2 W. 4. c. 34,
it is enacted, that if any person shall gild or silver,
or shall, with any wash or materials capable of producing the
colour of gold or of silver, wash, colour or case over any coin
whatsoever, resembling or apparently intended to resemble or
pass for any of the king's current gold or silver coin, or if any
person shall gild or silver, or shall, with any wash or materials
capable of producing the colour of gold or of silver, wash,
colour or case over any piece of silver or copper, or of coarse
gold or coarse silver, or of any metal or mixture of metals
respectively, being of a fit size and figure to be coined, and
with intent that the same shall be coined into false and coun-
terfeit coin resembling or apparently intended to resemble or
pass for any of the king's current gold or silver coin ; or if any
person shall gild, or shall, with any wash or materials capable
of producing the colour of gold, wash, colour, or case over any
of the king's current silver coin, or file, or in any manner alter
such coin, with intent to make the same resemble or pass for
any of the king's current gold coin ; or if any person shall gild
or silver, or shall, with any wash or materials capable of pro-
ducing the colour of gold or silver, wash, colour, or case over
any of the king's current copper coin, or file, or in any manner
alter such coin, with intent to make the same resemble or pass
for any of the king's current gold or silver coin ; every such
offender shall, in England and Ireland, be guilty of felony, and
in Scotland of a high crime and offence, and, being convicted
thereof, shall be liable, at the discretion of the Court, to be
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.
The act of gilding, or silvering, or colouring, or washing,
must be proved ; and in the latter case, it must appear that the
wash or materials were capable of producing the colour of gold
or silver. The words of the former statute were, " with any
wash or materials producing the colour, 6cc." Doubts arose
upon the effect of these words, where the colour of gold or silver
had not been actually produced, but the coin wanted some fur-
ther operation to fit it to be passed. Case's case, 1 East, P. C.
165, 1 Leach, 154. (u.) Lavey's case, 1 Leach, 153, 1 East,
P. C. 166. The doubts, however, cannot exist upon an indict-
300 Coming,
ment under the 2 W. 4. which makes it immaterial whether the
colour has been in fact produced. The act of colouring may be
proved by evidence that coin so coloured was found in the pri-
soner's house, or had been procured there, and that the wash or
materials required for the purpose were discovered in his pos-
Proof of impairing or diminishing the coin.] By 2 W. 4.
c. 34. s. 5. if any person shall impair, diminish, or lighten,
any of the king's current gold or silver coin, with intent to
make the same so diminished, impaired, or lightened, pass for
the king's current gold or silver coin, every such offender shall
be guilty of felony, and being convicted thereof shall be liable,
at the discretion of the court, to be transported beyond the seas
for any term not exceeding fourteen years< nor less than seven
years, or to be imprisoned for any term not exceeding three
years.
The act of diminishing or impairing, if not shown by direct
evidence, may be proved by circumstances, as showing that the
prisoner had diminished coin in his possession, and also filings,
&c. The intent to pass such coin must then be proved, and if
found upon his person, it would be a question for the jury to say
whether he did not intend to pass it.
Proof of uttering counterfeit gold or silver coin.] The vari-
ous offences, with regard to the uttering false gold or silver coin,
are comprised within the 7th section of the 2 W.4. c. 34, by
which it is enacted, that if any person shall tender, utter, or
put off any false or counterfeit coin, resembling, or apparently
intended to resemble or pass for, any of the king's current gold
or silver coin, knowing the same to be false or counterfeit, every
such offender shall, in England and Ireland, be guilty of a mis-
demeanor, and in Scotland, of a crime and offence, and, being
convicted thereof, shall be imprisoned for any term not exceed-
ing one year; and if any person shall tender, utter, or put off
any false or counterfeit coin, resembling, or apparently intended
to resemble or pass for any of the king's current gold or silver
coin, knowing the same to be false or counterfeit, and such per-
son shall, at the time of such tendering, uttering, or putting off,
have in his possession, besides the false or counterfeit coin so
tendered, uttered, or put off, one or more piece or pieces of false
or counterfeit coin, resembling or apparently intended to resem-
ble or pass for any of the king's current gold or silver coin, or
shall, either on the day of such tendering, uttering, or putting
off, or within the space of ten days then next ensuing, tender,
utter, or put off any more or other false or counterfeit coin, re-
sembling or apparently intended to resemble or pass for any of
the king's current gold or silver coin, knowing the same to be
false or counterfeit, every such offender shall, in England and
Coining. 301
Ireland, be guilty of a misdemeanor, and in Scotland, of a crime
and offence, and, being convicted thereof, shall be imprisoned
for any term not exceeding two years ; and if any person who
shall have been convicted of any of the misdemeanors, or crimes
and offences hereinbefore mentioned, shall afterwards commit
any of the said misdemeanors, or crimes and offences, such per-
son shall, in England and Ireland, be deemed guilty of felony,
and in Scotland, of a high crime and offence, and, being con-
victed thereof, shall be liable, at the discretion of the court, to
be transported beyond the seas for life, or for any term not less
than seven years, or be imprisoned for any term not exceeding
four years.
Proof of uttering counterfeit gold or silver coin evidence of
the simple uttering.] Upon an indictment for the simple offence
of uttering, the prosecutor must prove the act of uttering, &c. as
charged, that the money was counterfeit, and that the prisoner
knew it to be such. The practice of " ringing the changes"
was held to be an offence under the repealed statute, 15 Geo. 2.
c. 28 ; Frank's case, 2 Leach, 644.; and it is so likewise under
the present act. The coin must be proved to be counterfeit in
the usual way. The mode of proving guilty knowledge has been
already considered at length. Ante, p. 66.
Where several persons are charged with an uttering, it must
appear either that they were all present, or so near to the party
actually uttering, as to be able to afford him aid and assistance.
Where three persons were indicted for uttering a forged note,
and it appeared that one of them uttered the note in Gosport
while the other two were waiting at Portsmouth, till his return,
it having been previously concerted that the prisoner who uttered
the note should go over the water for the purpose of passing the
note, and should rejoin the other two ; all the prisoners having
been convicted, it was held that the two prisoners who had re-
mained in Portsmouth not being present at the time of uttering,
or so near, as to be able to afford any aid or assistance to the ac-
complice who actually uttered the note, were not principals in
the felony. Soares's case, Euss. $ Ry. 25, 2 East, P. C. 974.
The two prisoners were charged with uttering a forged note.
It appeared that they came together to Nottingham, and
left the inn there together, and that on the same day, between
two and three hours from their leaving the inn, one of the pri-
soners passed the note ; both the prisoners being convicted, the
judges held the conviction wrong as to the prisoner who was not
present, not considering him as present aiding and abetting*
Davis' s case, Kuss. <5f Hy. 113.
Proof of uttering counterfeit gold or silver coin evidence of
the compound offence of uttering, having other counterfeit coin in
possession.'] Where the charge is for the compound offence, the
302 Coining.
prosecutor must prove, in addition to the evidence required to
support the charge of simply uttering, that the prisoner had, at
the time of the tendering, other counterfeit coin in his posses-
sion. The statute does not require that an intent to pass the
latter coin should be proved. The nature of the possession is
explained by the interpretation clause of the new statute. Vide
post, p. 310. The following cases arose, with regard to this point,
upon the repealed statute, 15 G. 2. c. 28. s. 3. A man and a
woman were jointly indicted for uttering a counterfeit shilling,
having about them, &c. another counterfeit shilling, knowing,
&c. It appeared that they came together to a public-house,
and the woman, in the absence of the man, paid away the coun-
terfeit shilling ; that on the same day the man went to another
public-house and offered to sell a large quantity of counterfeit
shillings; and that on the following day the prisoners were ap-
prehended while in bed. Near the bed was found a quantity of
bad halfpence, some silver (four shillings and sixpence) in the
man's pocket, which was good, and one shilling and sixpence
bad ; and concealed under his arm was found a paper parcel of
bad shillings, which, if good, would have been worth 141. ; in
the woman's pocket were found a good half-crown, seven good
shillings, and six counterfeit shillings, like the counterfeits found
in the paper under the man's arm. Upon this evidence it was
insisted for the prisoners that there was no ground to convict the
man, he not having uttered the shilling, nor being present at the
time the woman uttered it. With respect to the woman, she could
only be convicted of the simple offence of uttering the shilling, it
not appearing that, at the time of uttering it, she had any other
counterfeit money about her. Both the prisoners being con-
victed, the judges held the conviction of the woman for the
single offence good, but not good for uttering and having about
her at the time other money ; and as to the conviction of the
man, they held it could not be supported. Else's case, Russ. fy
Ry. 142. In the following case, two persons were convicted of
a joint uttering, having another counterfeit shilling in their pos-
session, although the latter coin was found upon the person of
one of them only. It appeared that one of the prisoners went
into a shop and there purchased a loaf, for which she tendered a
counterfeit shilling in payment. She was secured, but no more
counterfeit money was found upon her. The other prisoner who
had come with her, and was waiting at the shop-door, then ran
away, but was immediately secured, and fourteen bad shillings
were found on her, wrapped in gauze paper. It was objected
that the complete offence stated in the indictment was not
proved against either of the prisoners, and the above case of R.
v. Else was cited. Garrow, 13., was of opinion that the two
prisoners coming together to the shop, and the one staying out-
side, they must both be taken to be jointly guilty of the uttering,
and that it was for the jury to say, whether the possession of the
Coining. 303
remaining pieces of bad money was not joint. The jury found
both the prisoners guilty. Skerrit's case, 2 C. $ P. 427.
By 2 W. 4. c. 34. s. 9. where any person [who] shall have
been convicted of any offence against this act, shall afterwards
be indicted for any offence against this act, committed subsequent
to such conviction, a copy of the previous indictment and con-
viction, purporting to be signed and certified as a true copy by
the clerk of the court or other officer having the custody of the
records of the court where the offender was first convicted, or by
the deputy of such clerk or officer, shall, upon proof of the iden-
tity of the person of the offender, be sufficient evidence of the
previous indictment and conviction, without proof of the signa-
ture or official character of the person appearing to have signed
and certified the same.
Proof nj buying or selling counterfeit coin for less value than
its denomination importing counterfeit coin. 1 ] By the 2 W. 4.
c. 34. s. 6. it is enacted, that if any person shall buy, sell, re-
ceive, pay, or put off, or offer to buy, sell, receive, pay, or put
off, any false or counterfeit coin resembling, or apparently in-
tended to resemble or pass for, any of the king's current gold or
silver coin, at or for a lower rate or value than the same by its
denomination imports or was coined or counterfeited for ; or if
any person shall import into the United Kingdom from beyond
the seas any false or counterfeit coin, resembling, or apparently
intended to resemble or pass for, any of the king's current gold
or silver coin, knowing the same to be false or counterfeit ; every
such offender shall be guilty of felony, and, being convicted
thereof, shall be liable, at the discretion of the court, to be trans-
ported 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.
The words of this clause are intended to include all the acts of
persons who deal, in false coin. Under the former statute (8 & 9
W. 3. c. 26. s. 6.) it was held, that a mere offer to put off false
money was not indictable ; Wooldridge's case, 1 Lench, 307,
1 East, P. C. 179. ; but such an offence is provided for by the
new act.
The prosecutor must prove that the money put off, &c. was
counterfeit, and must show that it was put off, &c. as stated in
the indictment. The averment, with regard to the mode of put-
ting off, &c. is considered as the allegation of a contract, and
must be proved as laid. Therefore the names of the persons to
whom the putting off, &c. took place, must be proved ; and if it
was to persons unknown, the same rule applies as in the case of
stealing the goods of a person unknown. 1 East, P. C. 180. So
the price alleged to be given for the false coin must be proved.
Where the indictment stated, that five counterfeit shillings were
put off at two shillings, and the proof was that they were put off
304 Coining.
at half-a-crown, it was held a variance, and the prisoner was ac-
quitted. Joice'scase, 3 C. 3f P. 411. (n.) Carr. Supp. 184, 1st
ed. But where the prisoner was charged with putting off a
counterfeit sovereign and three counterfeit shillings for the sum
of five shillings, and the evidence was that the prisoner said the
purchaser should have a sovereign at four shillings, and three
shillings at one shilling, and the purchaser paid in two good
half-crowns, it was held all one transaction, and no variance.
Hedge's case, 3 C. 4- P. 410.
Proof of having possession of counterfeit com.] By the 2 W . 4.
c. 34. s. 8. it is enacted, that if any person shall have in his
custody or possession three or more pieces of false or counterfeit
coin, resembling, or apparently intended to resemble or pass for
any of the king's current gold or silver coin, knowing the same
to be false or counterfeit, and with intent to utter or put off the
same, every such offender shall, in England and Ireland, be
guilty of a misdemeanor, and in Scotland of a crime and of-
fence, and, being convicted thereof, shall be liable, at the discre-
tion of the court, to be imprisoned for any term not exceeding
three years ; and if any person so convicted shall afterwards
commit the like misdemeanor or crime and offence, such person
shall be deemed guilty of felony, and being convicted thereof,
shall be liable, at the discretion of the court, to be transported
beyond the seas for life or for any term not less than seven years,
or to be imprisoned for any term not exceeding three years.
The prosecutor must prove, 1, the possession of the false coin,
2, the guilty knowledge, and, 3, the intent to utter or put off the
same.
The nature of the possession required to constitute the offence
is explained by the interpretation clause (s. 21.) of the 2 W. 4.
c. 34. Post, p. 310.
The guilty knowledge will be proved in the same manner as
under an indictment for uttering false coin. Ante, p. 301.
The intent to utter must be proved from circumstances ;
amongst the most cogent of which will be, the fact that upon
other occasions the prisoner has uttered false coin.
Where the prisoner is indicted as for a felony, for having in
his custody or possession three or more pieces of counterfeit coin,
after a previous conviction for the misdemeanor, in addition to
the above proofs, evidence must be given of the previous convic-
tion, and of the identity of the parties, according to the 9th sec-
tion of the statute. Ante, p. 303.
Proof of counterfeiting, $c. the copper coin.~\ By the 12th
section of the 2 W. 4. c. 34, the various offences relating to
the copper coin are consolidated into one clause, and it is
enacted, that if any person shall falsely make or counterfeit
any coin resembling or apparently intended to resemble or pass
Coming. 305
for any of the king's current copper coin, or if any person shall
knowingly, and without lawful authority, (the proof of which
authority shall lie on the party accused), make or mend, or
begin or proceed to make or mend, or buy or sell, or shall,
knowingly, and without lawful excuse, (the proof of which
excuse shall lie on the party accused,) have in his custody or
possession any instrument, tool, or engine adapted and intended
for the counterfeiting any of the king's current copper coin ; or if
any person shall buy, sell, receive, pay, or put off, or offer to
buy, sell, receive, pay, or put off', any false or counterfeit coin re-
sembling, or apparently intended to resemble or pass for, any
of the king s current copper coin, at or for a lower rate or value
than the same by its denomination imports or was coined or
counterfeited for ; eveiy such offender shall, in England and
Ireland, be guilty of felony, and in Scotland of a high crime
and offence, and, being convicted thereof, shall be liable, at the
discretion of the Court, to be transported beyond the seas for
any term not exceeding seven years, or to be imprisoned for any
term not exceeding two years ; and if any person shall tender,
utter, or put off any false or counterfeit coin resembling, or ap-
parently intended to resemble or pass for any of the king's cur-
rent copper coin, knowing the same to be false or counterfeit, or
shall have in his custody or possession three or more pieces of
false or counterfeit coin resembling, or apparently intended to
resemble or pass for, any of the king's current copper coin,
knowing the same to be false or counterfeit, and with intent to
utter or put off the same, every such offender shall, in England
and Ireland, be guilty of a misdemeanor, and in Scotland of a
crime and offence, and, being convicted thereof, shall be liable
to be imprisoned for any term not exceeding one year.
The evidence upon indictments for offences in counterfeiting
or uttering the copper coin, is in general the same as upon in-
dictments for similar offences against the gold or silver coin.
It must appear, however, where the charge is for counterfeiting
the copper coin, that it was in a fit state to be uttered, the third
section of the 2 W. 4. c. 34, as to the coining not being com-
plete, not applying to the copper coin.
Proof of counterfeiting foreign coin.'] There is no statutory
provision against the counterfeiting of foreign coin current in
this country by proclamation, thestatute 4 Hen. 7. c. 18, being
repealed by the 2 W. 4. c. 34. The counterfeiting of foreign coin
not so current, is provided for by the stat. 37 G. 3. c. 126. s. 2,
which reciting, that the practice of counterfeiting foreign gold
and silver coin, and the bringing into this realm, and uttering
within thesame.falseandcounterfeitforeign gold and silver coin,
and paiticularly pieces of gold coin commonly called iouis d'urs,
and pieces of silver coin commonly called dollars, has of late
greatly increased ; and it is expedient that provision be made
306 Coining-.
more effectually to prevent the same, enacts, that if any
person or persons shall, from and after the passing of this act,
make, coin, or counterfeit any kind of coin, not the proper coin
of this realm, nor permitted to be current within the same, but
resembling, or made with intent to resemble or look like any
gold or silver coin of any foreign prince, state, or country, or to
pass as such foreign coin, such person or persons offending
therein shall be deemed and adjudged to be guilty of felony,
and may be transported for any term of years not exceeding
seven years.
Upon an indictment under this statute, it must be proved
that the coin was counterfeit, in the same manner as in cases of
counterfeiting the coin of the realm, ante, p. 298, except that there
is no provision in the 37 G. 3, as to the coin not being per-
fected. Evidence must be given, that the coin counterfeited is
that of the foreign country mentioned in the indictment. By
the words in the statute, " not permitted to be current within
the realm," must be understood, not permitted to be current by
proclamation under the great seal. 1 East, P. C. 161.
By section 7 of the above statute, a power is given to a jus-
tice of the peace, to grant a warrant upon oath, to search the
dwelling-house, &c. of persons suspected of counterfeiting
foreign coin.
Proof of importing foreign counterfeit com.] By the third
section of the 37 G. 3. c. 126, it is enacted, that if any
person or persons shall, from and after the passing of this act,
bring into this realm any such false or counterfeit coin as afore-
said, resembling, or made with intent to resemble or look like,
any gold or silver coin of any foreign prince, state or country,
or to pass as such foreign coin, knowing the same to be false
or counterfeit, to the intent to utter the same within this realm,
or within any dominions of the same, all and every such person
or persons shall be deemed and adjudged to be guilty of felony,
and may be transported for any term of years, not exceeding
seven years.
The collecting the counterfeit monies of foreign countries
from the venders of it in this country, is not a bringing of
it into the realm, within the above section. 1 East, P. C.
177.
To support the indictment there must be proved, the fact of
the coin being counterfeit, the bringing it into the realm, the
guilty knowledge of the prisoner, and his intent to utter it within
the realm or the dominions of the same.
Proof of uttering foreign counterfeit roin.] By the 4th
section of the 37 G. 3. c. 126, it is enacted, that if any per-
son or persons shall, from and after the passing of this act,
utter or tender in payment, or give in exchange, or pay or put
Coining. 307
off to any person or persons, any such false or counterfeit coin
as aforesaid, resembling, or made with intent to resemble or
look like, any gold or silver coin of any foreign prince, state, or
country, or to pass as such foreign coin, knowing the same to
be false or counterfeit, and shall be thereof convicted, every
person so offending shall suffer six months' imprisonment, and
find sureties for his or her good behaviour for six months more,
to be computed from the end of the said first six months ; and
if the same person shall afterwards be convicted a second time
for the like offence of uttering, or tendering in payment, or giv-
ing in exchange, or paying or putting off, any such false or
counterfeit coin as aforesaid, knowing the same to be false or
counterfeit, such person shall, for such second offence, suffer
two years' imprisonment, and find sureties for his or her good
behaviour for two years more, to be computed from the end of
the said first two years ; and if the same person shall afterwards
offend a third time, in uttering or tendering in payment, or
giving in exchange, or paying or putting off, any such false or
counterfeit coin aforesaid, knowing the same to be false or
counterfeit, and shall be convicted of such third offence, he or
she shall be adjudged to be guilty of felony, without benefit of
clergy.
The evidence on an indictment under the above statute, will
be substantially the same as for a similar offence against the
king's current gold or silver coin. Where a person is indicted
for a second uttering, after a previous conviction, a certificate of
such former conviction from the clerk of assize or clerk of
the peace, is made evidence by 5th section of the 37 Geo. 3.
c. 126.
Proof of having possession of Jive or more pieces of foreign
counterfeit coin.] By the sixth section of the 37 Geo. 3.
c. 126, it is enacted, that if any person or persons shall
have in his, her, or their custody, without lawful excuse, any
greater number of pieces than five pieces of false or counterfeit
coin, of any kind or kinds, resembling, or made with intent to
resemble or look like any gold or silver coin or coins of any
foreign prince, state, or country, or to pass as such foreign
coin, every such person, being thereof convicted, upon the oath
of one or more credible witness or witnesses, before one of his
majesty's justices of the peace, shall forfeit and lose all such
false and counterfeit coin, which shall be cut in pieces and de-
stroyed by order of such justice, and shall, for every such
offence, forfeit and pay any sum of money not exceeding
five pounds, nor less than forty shillings, for every such
piece of false or counterfeit coin which shall be found in the
custody of such person ; one moiety to the informer or informers,
and the other moiety to the poor of the parish where such
offence shall be committed ; and in case any such penalty shall
308 Coining.
not be forthwith paid, it shall be lawful for such justice to
commit the person who shall be adjudged to pay the same to
the common gaol, or house of correction, there to be kept
to hard labour, for the space of three calendar months, or until
such penalty shall be paid.
Proof of offences with regard to coining- tools.] By 2 W. 4.
c. 34. s. 10, it is enacted, that if any person shall know-
ingly, and without lawful authority (the proof of which autho-
rity shall lie on the party accused), make or mend, or begin or
proceed to make or mend, or buy or sell, or shall knowingly
and without lawful excuse (the proof of which excuse shall lie
on the party accused), have in his custody or possession any
puncheon, counter-puncheon, matrix, stamp, die, pattern, or
mould, in or upon which there shall be made or impressed, or
which will make or impress, or which shall be intended to make
or impress the figure, stamp, or apparent resemblance of both
or either of the sides of any of the king's current gold or silver
coin, or any part or parts of both or either of such sides ; or if
any person shall, without lawful authority (the proof whereof
shall lie on the party accused;, make or mend, or begin or
proceed to make or mend, or buy or sell, or shall without law-
ful excuse (the proof whereof shall lie on the party accused),
have in his custody or possession any edger, edging-tool, collar,
instrument, or engine adapted and intended for the marking of coin
round the edges, with letters, grainings, or other marks or figures
apparently resembling those on the edges of any of the king's
current gold or silver coin, such person knowing the same to be
so adapted and intended as aforesaid ; or if any person shall,
without lawful authority, to be proved as aforesaid, make or
mend, or begin or proceed to make or mend, or buy or sell, or
shall, without lawful excuse, to be proved as aforesaid, have in
his custody or possession, any press for coinage, or any cutting
engine for cutting by force of a screw, or of any other con-
trivance, round blanks out of gold, silver, or other metal, such
person knowing such press to be a press for coinage, or know-
ing such engine to have been used or to be intended to be used
for, or in order to the counterfeiting of any of the king's current
gold or silver coin ; every such offender shall, in England and
Ireland, be guilty of felony, and in Scotland, of a high crime
and offence, and, being convicted thereof, shall be liable at the
discretion of the Court to be transported beyond the seas for
life, or for any term not less than seven years, or be imprisoned
for any term not exceeding four years.
The prosecutor must prove, first, the commission of the act as
stated in the indictment, viz. the making or mending, or be-
ginning to make or mend, or the buying or selling, or the
knowingly and without excuse having in custody or possession,
the particular coining- tool specified.
Coining. 309
The particular tool specified must then be proved. With
regard to all the tools mentioned in the new statute, it should
be observed that they are described to be such as will impress
" any part or parts of both or either of the sides" of any of the
king's current gold or silver coin, a description of tool not
included in the former acts. The new statute, like the former,
divides the coining instruments into those upon which there shall
be "made or impressed," and those "which will make or
impress" the figure, &c. of both or either of the sides of the
lawful coin. The following case therefore is still applicable.
The prisoner was indicted for having in his custody a mould,
upon which there was made and impressed, &c. the figure of a
shilling. The mould bore the resemblance of a shilling in-
verted, viz. the convex parts being concave in the mould ; and
it was objected that it should have been described as an instru-
ment which would make or impress, &c., and not as one on
which was made and impressed, &c. ; but a great majority of the
judges were of opinion that the evidence maintained the indict-
ment, because the stamp of the current coin was impressed
upon the mould. They agreed, however, that it would have
been more accurate had the instrument been described as one
" which would make or impress." Lennard's case, 1 Leach, 92.
1 East, P. C. 170.
Upon the repealed statute of 8 & 9 W. 3. c. 26, it was held,
that it was not confined to such instruments as, used by the
hand, unconnected with any other power, will produce the
effect. A collar marking the edge, by having the coin forced
through it by machinery, is an instrument within the act ;
though this mode of marking the edges is of modern invention.
Moore's case, 1 Moody, C. C. 122.
The words " figure, stamp, or apparent resemblance," do
not mean an exact resemblance ; but if the instrument will im-
press a resemblance in point of fact, such as will impose upon
the world, it is sufficient. Ridgelay's case, 1 East, P. C. 171.
1 Leach, 189.
VV ith regard to the guilty knowledge of the prisoner there is
a distinction to be observed, with respect to the different offences
mentioned in sec. 10. Where the indictment is for the making
or mending, &c. of the coining tools first described, it is not
necessary to prove that the prisoner knew the puncheon, &c.
to be used, or intended to be used in the making of counterfeit
coin ; the fact of the instrument bearing the resemblance of the
current coin, being necessarily evidence of such knowledge.
But it is otherwise upon a charge of making, &c. any edger or
edging tool, in which case it must be proved that the prisoner
committed the act, knowing that the instrument was adapted
and intended for the marking of coin round the edges. The
reason is, that the latter instruments are used in certain trades ;
310 Coining.
and so, with regard to making any press for coinage, &c.,
it must be shown that the prisoner knew it to be a press for
Venue.'] By 2 W. 4. c. 34. s. 15. it is enacted, that
where two or more persons, acting in concert in different
counties or jurisdictions, shall commit any offence against this
act, all or any of the said offenders may be dealt with, indicted,
tried, and punished, and their offence laid and charged to have
been committed in any one of the said counties or jurisdictions,
in the same manner as it' the offence had been actually and
wholly committed within such one county or jurisdiction.
Traversing.'] By 2 W. 4. c. 34. s. 16. it is enacted, that
no person against whom any bill of indictment shall be found
at any assizes or sessions of the peace, for any misdemeanor
against this act, shall be entitled to traverse the same to any
subsequent assizes or sessions, but the Court before which the
bill of indictment shall be returned as found shall forthwith
proceed to try the person against whom the same is found,
unless such person or the prosecutor shall show good cause, to
be allowed by the Court, for the postponement of the trial :
Provided always, that the rights and liabilities of persons
indicted under this act in Scotland, so far as relates to the
postponement or time of trial, shall remain and be dealt with
in the same manner as in the cases of all other persons indicted
for crime in that country.
Accessories.'} By 2 W. 4. c. 34. s. 18. it is enacted, that,
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 felony punishable under this act shall,
on conviction, be liable to be imprisoned for any term not
exceeding two years.
Interpretation clause."] By 2 W. 4. c. 34. s. 21 . it is declared
and enacted, that, where the King's current gold or silver
coin, or the King's current copper coin, shall be mentioned in
any part of this act, the same shall be deemed to include and
denote any gold or silver coin or any copper coin respectively
coined in any of his Majesty's mints, and lawfully current in
any part of his Majesty's dominions, whether within the United
Kingdom or otherwise ; and that any of the King's current
coin which shall have been gilt, silvered, washed, coloured, or
cased over, or in any manner altered, so as to resemble, or be
apparently intended to resemble or pass for, any of the King's
C impounding offences, fyc. 311
current coin of a higher denomination, shall be deemed and
taken to be counterfeit coin within the intent and meaning of
those parts of this act wherein mention is made of false or coun-
terfeit coin resembling, or apparently intended to resemble or
pass for, any of the King's current gold or silver coin ; and that,
where the having any matter in the custody or possession of any
person is in this act expressed to be an offence, if any person
shall have any such matter in his personal custody or pos-
session, or shall knowingly and wilfully have any such matter
in any dwelling-house or other building, lodging, apartment,
field, or other place, open or inclosed, whether belonging to or
occupied by himself or not, and whether such matter shall be so
had for his own use or benefit, or for that 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.
COMPOUNDING OFFENCES, &c.
Compounding felonies and misdemeanors . .311
Informations on penal statutes . . .311
Misprision of felony . . . . .312
Taking rewards for helping to stolen goods, fyc. . . 312
Compounding felonies and misdemeanors.] Though the bare
taking again of a man's own goods which have been stolen,
(without favour shown to the thief) is no offence, Hawk. P. C.
b. I.e. 59. s. 7, yet where he either ,takes back the goods, or
receives other amends, on condition of not prosecuting, this is a
misdemeanor punishable by fine and imprisonment. Id. s. 5.
So an agreement to put an end to an indictment for a misde-
meanor is unlawful, Collins v. Bluntern, 2 Wils. 341, unless it
be with the consent of the Court. 4 El. Com. 363. Beetey v.
Wingfield, 11 East, 46.
Compounding informations on penal statutes.] Compounding
informations on penal statutes is an offence at common law.
And by stat. 18 Eliz. c. 5. s. 4. if any informer, by colour or
pretence of process, or without process, upon colour or pretence
of any manner of offence against any penal law, make any com-
312 Conspiracy.
position, or take any money, reward, or promise of reward,
without the order or consent of the Court, he shall stand two
hours in the pillory, be for ever disabled to sue on any popular
or penal statute, and shall forfeit ten pounds. This statute does
not extend to penalties only recoverable by information before
justices. Crisp's case, I B. &; Aid. 282. But it is not necessary
to bring the case within the statute, that there should be an
action or other proceeding pending. Gotley's case, Ritss fy Ry.
84. A mere threat to prosecute for the recovery of penalties,
not amounting to an indictable offence at common law, is yet, it
seems, within the above statute. Southerton's case, 6 East, 126.
Misprisinn of felony.] Somewhat analogous to the offence of
compounding felony, is that of misprision of felony. Misprision
of felony is the concealment, or procuring the concealment of
felony, whether such felony be at common law or by statute.
Hawk. P.* C. b. 1. c. 59. s. 2. Silently to observe the commis-
sion of a felony without using any endeavour to apprehend the
offender, is a misprision. Ibid. n. 1 Hale, P. C. 431, 448, 533.
If to the knowledge there be added assent, the party will be-
come an accessory. 4 Bl. Com. 121. The punishment for this
offence is fine and imprisonment, and provisions against the
commission of it by sheriffs, coroners, and other officers, are
contained in the statute 3 Edw. 1. c. 9.
Taking rewards for helping to stolen goods advertising re-
wards, $fp.] Similar to the offence of compounding a felony, is
that of taking a reward for the return of stolen property, and
advertising a reward for the same purpose. These offences are
provided against by the statute 7 & 8 G. 4. c. 29. ss. 58, 59.
CONSPIRACY.
Proof of nature of conspiracy in general . . 313
To charge party with offence . 314
To pervert the course of justice . 314
Relating to the public funds, fyc. . 315
To create riot, fyc. . . 315
Against morality and decency . . 315
To marry paupers ... 315
Conspiracy. 31S
Affecting trade to defraud the public . . 316
By workmen to raise wages . . . 317
To extort money from individuals . . 319
To defraud individuals . . 319
To injure individuals in their trade . 320
To commit a civil trespass ... 320
Legal associations . . . 321
Proof of the existence of a conspiracy . . 321
Declarations of other conspirators . . 324
Proof of acts, c\c., done by other conspirators 325
Proof of the means used . . . 325
Cumulative instances . . . 326
Proof of the object of the conspiracy . . 326
Cross-examination oi' witnesses . . . 327
Venue . . 327
The various cases in which a combination between two or
more individuals to do certain acts, will amount in law to a con-
spiracy, and be punishable as such, will be shortly stated, and the
evidence to support an indictment in such cases, will be then
considered.
Proof of nature of conspiracy in general.] With regard to
conspiracies in general, it is to be observed, that the nature of
the offence requires that more than one person should be con-
cerned in its commission. But where two persons are indicted
for a conspiracy, one of them may be convicted, though the
other who has pleaded, and is alive, has not been tried, and
though it is possible he may afterwards be acquitted. Cooke's
case, 5 B. # C. 538, 7 D. $ R. 673. A prosecution for a con-
spiracy cannot be maintained against the husband and wife
only, for they are one person in law. Hawk. P. C. b. 1. c. 72.
s. 8. An agreement by several to do a certain thing may be the
subject of an indictment for conspiracy, though the same thing
done separately by the several individuals, without any agree-
ment between themselves, would not be illegal, as in the case
of journeymen conspiring to raise their wages ; lor each may in-
sist on his own wages being raised ; but if several meet for the
same purpose, it is illegal, and the parties may be indicted for a
conspiracy. Maubey's case, 6 T. R. 636. Case of the Journey-
men Tailors of Cambridge, 8 Mod. 11. So where several per-
sons conspired to hiss at a theatre, Lord Mansfield held it in-
dictable, though each might have hissed separately. Anon,
cited in Mawbey's case, 6 T. R. 619. If several persons concur in
the act, it appears that they will be all guilty of a conspiracy,
notwithstanding they were not previously acquainted with each
314 Conspiracy.
other. Per Lord Mansfield, Case of prisoners in K. B. Hauk.
P. C. 6. I.e. 72. s.2. (n.)
The offence of conspiracy consists in the unlawful agreement,
although nothing be done in pursuance of it, for it is the con-
spiring which is the gist of the offence. Best's case, 2 Ld.
Raym. 1167. Spragg's case, 2 Burr- 993. Rispal's case, 3 Burr.
1321, 2 Russell, 553. Gill's case, 2 B. <Sf Aid. 204.
Conspiring to do a lawful act, if for an unlawful end, is in-
dictable. Edwards's case, 8 Mod. 320, 2 Russell, 553. (n.)
And so with regard to a conspiracy to effect a legal purpose by
unlawful means, and although the purpose be not effected.
Journeymen Tailors of Cambridge, 8 Mod. 11. Best's case,
2 Ld. Raym. 1167, 6 Mod. 85, 2 Russell, 553. Eccles' case.
Hawk. P. C. b. 1. c. 72. s. 3. (n.)
Proof of nature of conspiracy to charge party with offence.]
A conspiracy to charge an innocent person with an offence,
whether temporal or spiritual, is an indictable offence. Best's
case, 2 Lord Raym. 1167, 1 Salk. 174, 2 Russell, 555. And
it is no justification of such a conspiracy that the indictment
was defective, or that the Court had no jurisdiction, or that the
parties only intended to give their testimony in a due course of
law, for the criminal intention was the same. Hawk. P. C. b. 1.
c. 72. s. 3, 4. Where the charge was for conspiring falsely to
indict a person, for the purpose of extorting money, and the
jury found the defendants guilty of conspiring to prefer an in-
dictment for the purpose of extorting money, (without saying
falsely,) it was held sufficient, it being a misdemeanor, whether
the charge was true or not. Hollingberry's case, 4 B. <Sf C. 329.
Although several persons may not combine together to prose-
cute an innocent person, yet they may meet together and con-
sult to prosecute a guilty person, or one against whom there is
probable ground of suspicion. Hawk. P. C. b. 1. c. 72. s. 7.
2 Russell, 556. And no one is liable to any prosecution in re-
spect of any verdict given by him in a criminal matter, either
upon a grand or petit jury. Hawk. P. C. b. 1. c. 72. s. 5.
Proof of nature of conspiracy to pervert the course of justice.]
Any combination to obstruct, pervert, or defeat the course of
public justice, is punishable as a conspiracy. Thus, a conspi-
racy to dissuade witnesses from giving evidence, is punishable ;
Hawk. P. C.b.l. c. 21. s. 15. See Bushetlv. Barret, Ry.fyM.
N. P. C. 434 } or to tamper with jurors. 1 Sound. 300.
Joliff'e's case, 4 T. R. 285. So a conspiracy to pervert the
course of justice by producing a false certificate of a high road
being in repair, is punishable. Mawbey's case, 6 T. R. 619.
A conspiracy to prevent a prosecution for felony, is as much an
offence as a conspiracy to institute a false prosecution. Per
Ld. Eldon, Claridge v. Hoare, 14 Ves. 65.
Conspiracy. 315
Proof of nature of conspiracy conspiracies relating to the
public funds, <Sfc.] The conspiring by false rumours to raise
the price of the public funds on a particular day, with intent to
injure purchasers, has been held to be an indictable oflence, and
also that the indictment is good, without specifying the parti-
cular persons who purchased, or the persons intended to be in-
jured. It was also held, that the public government funds of
this kingdom might mean either British or Irish funds. De
Berenger's case, 3 M. Sf S. 67. Bayley J., said, that to con-
stitute this an offence, it was not necessary that it should be pre-
judicial to the public in its aggregate capacity, or to all the
king's subjects ; but that it was sufficient if it were prejudicial
to a class of the subjects. Id. 75. See Crowther v. Hopwood,
3 Stark. N. P. C. 21. 2 Dod. Ad. Rep. 174. So a conspiracy
to impoverish the farmers of the excise was held indictable ; for
it tended to prejudice the revenue of the crown. Starling's case,
1 Sid. 174. 2 Russell, 559. So a conspiracy to obtain money,
by procuring from the lords of the treasury the appointment of a
person to an office in the customs, was ruled by Lord Ellen-
borough to be a misdemeanor. Pollman's case, 2 Campb. 229.
Proof of nature of conspiracy to create a riot cause mutiny,
<5fc.] A conspiracy to commit a riot is indictable. 2 Russell,
560, 2 Chitty, C. L. 506. (n.) So if a body of persons
go to a theatre with the settled intention of hissing an actor
or damning a piece, such a deliberate and preconcerted scheme
would amount to a conspiracy. Per Lord Ellenborongh, Clif-
ford v. Brandon, 2 Campb. 369. 6 T. R. 628. A combination
amongst officers of the East India Company to resign their com-
missions, with a view to force the company to make them an
additional allowance, is indictable, as tending to excite insur-
tection, and a resignation made under such circumstances is not
a determination of the service. Vertue v. Lurd Clive, 4 Burr.
2472.
Proof of nature of conspiracy against morality and public
decency.] A combination to do any act contrary to morality or
public decency is a punishable misdemeanor, as a conspiracy to
seduce a young woman. Lord Grev'zcnse, 3 St. Tr. 519, 1 East,
P. C. 460. So a conspiracy to take away a young woman, an
heiress, from the custody of her friends, for the purpose of mar-
rying her to one of the conspirators. Wakejield's case, (Murray's
ed.) 2 Deac. Ab. C. L. 4. A conspiracy to prevent the burial
of a corpse, though for the purposes of dissection, has been held
to be an indictable offence. Young's case, cited 2 T. R. 734,
2 Chit. C. L. 36. Vide post, title " Dead Bodies."
Proof of nature of conspiracy to marry paupers.] The con-
spiracy by sinister means to marry a pauper of one parish to a
p2
316 Conspiracy.
settled inhabitant of another, is an indictable offence. Tarrant's
case, 4 Burr. 2106. Herbert's case, 1 East, P. C. 461. Compton'i
case, Cald. 246. Where the marriage is by consent of the par-
ties, although money has been given to one of them by the over-
seers to procure it, it is not an indictable offence. In such a
case, Buller J. directed an acquittal, holding it necessary, in
support of such an indictment, to show that the defendant had
made use of some violence, threat, or contrivance, or used some
sinister means to procure the marriage, without the voluntary
consent or inclination of the parties themselves ; that the act of
marriage, being in itself lawful, a conspiracy to procure it could
only amount to a crime by the practice of some undue means ;
and this he said had been several times ruled by different
judges ; Fowler's case, 1 East, P. C. 461 ; and the same has
been determined in a very late case. Seward's case, 1 Ad. fy Ell.
462, 3 Nev.fy M. 557. Where it is stated to have been by
threats and menaces, it is not necessary to aver that the marriage
was had against the consent of the parties, though that fact
must be proved. Parkhouse's case, 1 East, P. C. 462.
A conspiracy to exonerate a parish from the prospective bur-
then of maintaining a pauper not at the time actually charge-
able, and to throw th burthen upon another parish, by means
not in themselves unlawful, is not an indictable offence. Se-
ward's case, 3 Nev. % M. 557, 1 Ad. % Ell. 462.
Proof of nature of conspiracy affecting trade to defraud
the public, fyc.] A conspiracy to impoverish A. B., a tailor,
and to prevent him by indirect means from carrying on his
trade, has been held to be indictable. Eccles's case, 1 Leach,
274, 3 Dougl. 337. This offence was considered by Lord El-
lenborough to be a conspiracy in restraint of trade, and so far
a conspiracy to do an unlawful act affecting the public. Tur-
ner's case, 13 East, 228. Though persons, in possession of
articles of trade, may sell them at such prices as they individu-
ally may please, yet if they confederate, and agree not to sell
them under certain prices, it is a conspiracy. Per Lurd Mans-
Jield, Eccles's case, 1 Leach, 276. Where, in an action for
libel, it appeared that certain brokers were in the habit of agree-
ing together to attend sales by auction, and that one of them
only should bid for any particular article, and that after the sale
there should be a meeting, consisting of themselves only, at ano-
ther place, to put up to sale among themselves, at a fair price,
the goods that each had bought at the auction, and that the dif-
ference, between the price at which the goods were bought at
the auction and the fair price at this private resale, should be
shared amongst them, Gurney B. said, " Owners of goods have
a right to expect at an auction that there will be an open compe-
tition from the public ; and if a knot of men go to an auction,
upon an agreement amongst themselves of the kind that has
Conspiracy. 317
been described, they are guilty of an indictable offence, and
may be tried for a conspiracy." Levi v. Levi, 6 C. &; P. 240.
A conspiracy to raise money by means of a bill importing to
be a country "bank bill, where there is no such bank, and none
of the parties are of ability to pav the bill, is indictable. Anon.
Pasch. 1782, Bayley's MSS. Vide post, 319.
Proof of nature of conspiracies of workmen to raise wages,
fc.] Though every man may work at what price he pleases,
yet a combination not to work under certain prices is an indict-
able offence. Per Lord Mansfield, Eccles's case, 1 Leach, 276.
So a combination by workmen, to prevent the workmen employed
by certain persons from continuing to work in their employ, and
to compel the masters to discharge those workmen, is a conspi-
racy, and punishable as such. Bykersdike's case, 1 Moody fy
Rob. 179. So a conspiracy by workmen to prevent their masters
from taking any apprentices ; and it is no variance upon such an
indictment, if it appears that the conspiracy was to prevent the
masters from taking more than a certain number they then had.
Ferguson's case, 2 Stark. N. P. C. 489. If the masters of work-
men combine together to lower the rate of wages, they also are
liable to be punished for a conspiracy. See Hammond's case,
2 Esp. N. P. C. 720.
Formerly various statutes existed for repressing the practice of
combination amongst workmen ; but these were repealed by the
5 G. 4. c. 95. and other provisions substituted. The latter
statute, however, being found ineffectual for the purposes in-
tended, it was repealed by the 6 G. 4. c. 129. s. 1. which
continues the repeal of the former statutes, and enacts the fol-
lowing provisions with regard to the combination of workmen.
The third section enacts, that from and after the passing of
this act, if any person shall, by violence to the person or pro-
perty, or by threats or intimidation, or by molesting, or in any
way obstructing another, force, or endeavour to force, any jour-
neyman, manufacturer, workman, or other person hired, or em-
ployed in any manufacture, trade, or business, to depart from
his hiring, employment, or work, or to return his work before the
same shall be finished ; or prevent, or endeavour to prevent, any
journeyman, manufacturer, workman, or other person not being
hired or employed, from hiring himself to, or from accepting
work or employment from any person or persons ; or if any per-
son shall use or employ violence to the person or property of
another, or threats, or intimidation, or shall molest or in any
way obstruct another, for the purpose of forcing or inducing
such person to belong to any club or association, or to contribute
to any common fund, or to pay any fine or penalty, or on ac-
count of his not belonging to any particular club or association,
or not having contributed, or having refused to contribute to any
common fund, or to pay any fine or penalty, or on account of his
31 8 Conspiracy.
not having complied, or of his refusing to comply, with any
rules, orders, resolutions, or regulations, made to obtain an
advance or to reduce the rate of wages, or to lessen or
alter the hours of working, or to decrease or alter the quantity
of work, or to regulate the mode of carrying on any manufac-
ture, trade, or business, or the management thereof; or if any
person shall, by violence to the person or property of another,
or by threats or intimidation, or by molesting, or in any way ob-
structing another, force, or endeavour to force, any manufac-
turer or person carrying on any trade or business, to make any
alteration in his mode of regulating, managing, conducting, or
carrying on such manufacture, trade, or business, or to limit the
number of his apprentices, or the number or description of his
journeymen, workmen, or servants ; every person so offending,
or aiding, abetting, or assisting therein, being convicted thereof
in manner hereinafter mentioned, shall be imprisoned only, or
shall and may be imprisoned and kept to hard labour, for any time
not exceeding three calendar months.
The fourth section enacts, That this act shall not extend to
subject any persons to punishment, who shall meet together for
the sole purpose of consulting upon and determining the rate of
wages or prices, which the persons present at such meeting, or
any of them, shall require or demand for his or their work, ov
the hours or time for which he or they shall woik in any manu-
facture, trade, or business, or who shall enter into any agree-
ment, verbal or written, among themselves, for the purpose of
fixing the rate of wages or prices which the parties entering into
such agreement, or any of them, shall require or demand for his
or their work, or the hours of time for which he or they will
work, in any manufacture, trade, or business ; and that persons
so meeting for the purposes aforesaid, or entering into such agree-
ment as aforesaid, shall not be liable to any prosecution, &c.
The fifth section provides and enacts, That this act shall
not extend to subject any persons to punishment, who shall
meet together for the sole purpose of consulting upon and deter-
mining the rate of wages or prices which the persons present at
such meeting, or any of them, shall pay to his or their journey-
men, workmen, or servants, for their work, or the hours of the
time of working in any manufacture, trade, or business ; or who
shall enter into any agreement, verbal or wiitten, among them-
selves, for the purpose of fixing the rate of wages or prices,
which the parties entering into such agreement, or any of them,
shall pay to his or their journeymen, workmen, or servants, for
their work, or the hours or time of working, in any manufacture,
trade, or business ; and that persons so meeting for the purposes
aforesaid, or entering into any such agreement as aforesaid, shall
not be liable to any prosecution, &c.
The statute also provides, that offenders shall be obliged to
give evidence, and shall be indemnified.
Conspiracy. 31'J
Proof of nature of conspiracy to extort money from indi-
viduals.] A conspiracy to extort money from an individual is
punishable, as conspiring to charge him with being the father
of a bastard child. Kimberty's case, 1 Lev. 62, vide ante,
p. 293. And it is an indictable offence, even without an in-
tent to extort money, for at all events it is a conspiracy to
charge a man with fornication. Best's case, '2 Lord Raym.
1167. See also Hollingberry's case, 4 B. $ C. 329, ante,
p. 314.
Proof of nature of conspiracy to defraud individuals.]
Frauds practised by swindlers upon individuals, may some-
times be indictable as conspiracies. 2 Russell, 561. As where
three persons conspired, that one should write his acceptance
on a pretended bill of exchange, in order that the second might
by means of this acceptance, and of the indorsement of the
third, negotiate it as a good bill, and thereby procure goods
from the prosecutor. Hevey's case, 2 East, P. C. 858. (n.)
So an indictment may be maintained for a conspiracy by the
defendants, to cause themselves to be believed persons of con-
siderable property, for the purpose of defrauding a tradesman.
Robert's case, 1 Campb. 399. If a man and a woman marry,
the man in the name of another, for the purpose of raising a
spurious title to the estate of the person whose name is
assumed, it is indictable as a conspiracy, and in such case it
was held not to be necessary to show an immediate injury, but
that it was for the jury to say, whether the parties did not
intend a future injury. Robinson's case, 1 Leach, 37, 2 East,
P. C. 1010. The following case has generally been regarded as
that of a conspiracy to defraud an individual. The indict-
ment charged, that the defendants, M. and F., falsely intending
to defraud T. C. of divers goods, together deceitfully bargained
with him to barter, sell, and exchange a certain quantity of
pretended wine as good and true new Portugal wine of him
the said F. for a certain quantity of hats of him, the said T. C.
and upon such bartering, &c. the said F. &c. pretended to be a
merchant of London, and to trade as such in Portugal wines,
when, in fact, he was no such merchant, nor traded as such in
wines, and the said M. on such bartering, &c. pretended to be
a broker of London, when, in fact, he was not ; and that T. C.
giving credit to the said fictitious assumption, personating and
deceits, did barter, sell, and exchange to F. and did deliver to
M. as the broker between T. C. and F. a certain quantity of
hats, of such a value, for so many hogsheads of the pretended
new Portugal wine, and that M. and F. on such bartering, &c.
affirmed, that it was true new Lisbon wine of Portugal, and
was the wine of F. when, in fact, it was not Portugal wine, nor
was it drinkable or wholesome, nor did it belong to F. ; to the
great deceit and damage of the said T. C. and against the
320 Conspiracy.
peace, &c. The indictment, which was for a cheat at common
law, did not charge that the defendants conspired, eo nomine,
yet charged that they together, &c. did the acts imputed to
them, which might be considered to be tantamount ; but it was
regarded as a case of doubt and difficulty. It does not clearly
appear from the reports how the case was decided, but on
referring to the roll, it was found that judgment had been
entered for the crown. The true ground of that judgment is
thought by Mr. East, to be given by Mr. Justice Dennison
in Wheatley's case, (M.S. Dunning, vide 2 Burr. 1129,
6 Mod. 302,) viz. that it was a conspiracy. Macarty's case,
2 Lord Rttym. 1179, 3 Id. 487, 2 East, P. C. 823, 2 Russell,
562.
Proof of nature of conspiracy to injure an individual in hi
trade or profession.] A combination to injure any particular
individual in his trade or profession, is indictable as a con-
spiracy, as in Ecclei's case, 1 Leach, 274, already cited, ante,
p. 316, and in Lee's case, 2 M'Nalty on Ev. 634, post, p. 323.
Proof of nature of conspiracy to commit a civil trespass, $c.}
A conspiracy to commit an act, which amounts merely to a civil
trespass, has been held not to be indictable, as where several
persons combined to go into a preserve to snare hares, though
it was alleged that they went in the night time, and that they
were armed with offensive weapons, for the purpose of opposing
resistance to any endeavours to apprehend them. Turner's case,
13 East, 228. See Deacon on the Game Laws, 175.
In the following case, the acts charged as a conspiracy were
ruled to amount merely to a breach of contract. The defendants
were indicted for conspiring to defraud Gen. Maclean, by selling
him an unsound horse. The defendant Pywell advertised the
sale, undertaking to warrant. Budgery, another defendant,
stated to Gen. Maclean, that he had lived with the owner of
the horse, and knew him to be perfectly sound. Gen. Maclean
purchased the horse with a warranty, and soon after found that
the animal was nearly worthless. The prosecutor was proceed-
ing to give evidence of the steps taken to return the horse, when
Lord Ellenborough intimated, that the case did not assume the
shape of a conspiracy ; and that the evidence did not warrant
any proceeding beyond an action on the warranty for the breach
of a civil contract. He said, that if this were to be considered
an indictable offence, then instead of all the actions which had
been brought on warranties, the defendants ought to have been
indicted as cheats ; and that no indictment in a case like this
could be maintained without evidence of concert between the
parties, to effectuate a fraud. Pywell's case. 1 Stark. N. P. C.
402. It is not to be concluded from this case, that an indict-
ment for a conspiracy may not be sustained against parties
Conspiracy. 321
who combine together to defraud another, by selling as a sound
horse one that is unsound ; but merely that under the cir-
cumstances above stated, there was no evidence of a con-
spiracy.
An indictment cannot be supported for a conspiracy to
deprive a man of the office of secretary to an illegal unincor-
porated trading company, with transferable shares. Lord
Ellenborough said, that as the society was illegal, to deprive
an individual of an office in it, could not be considered a crime.
Stratton's case, 1 Campb. 549. (n.)
Proof of nature of conspiracy legal associations.] Asso-
ciations to prosecute felons, and even to put the laws iu force
against political offenders, are lawful. Murray's case, coram
Abbott C. J., Matthews, Dig. C. L. 90.
Proof of the existence of a conspiracy in general.] It is a
question of some difficulty, how far it is competent for the
prosecutor to show, in the first instance, the existence of a con-
spiracy, amongst other persons than the defendants, without
showing, at the same time, the knowledge or concurrence of the
defendants, but leaving that part of the case to be subsequently
proved. The rule laid down by Mr. East is as follows : " The
conspiracy or agreement amongst several, to act in concert for a
particular end, must be established by proof, before any evi-
dence can be given of the acts of any person not in the presence
of the prisoner ; and this must, generally speaking, be done
by evidence of the party's own act, and cannot be collected
from the acts of others, independent of his own, as by express
evidence of the fact of a previous conspiracy together, or of a
concurrent knowledge and approbation of each other's acts."
1 East, P. C. 96. But it is observed by Mr. Starkie, that in
some peculiar instances in which it would be difficult to estab-
lish the defendant's privity, without first proving the existence
of a conspiracy, a deviation has been made from the general
rule, and evidence of the acts and conduct of others has been
admitted to prove the existence of a conspiracy previous to the
proof of the defendant's privity. 2 Stark. Ev. 234, Id ed. So
it seems to have been considered by Mr. Justice Buller, that
evidence might be, in the first instance, given of a conspiracy,
without proof of the defendant's participation in it. " In indict-
ments of this kind,'' he says, " there are two things to be con-
sidered ; first, whether any conspiracy exists, and next, what
share the prisoner took in the conspiracy." He afterwards
proceeds, " Before the evidence (of the conspiracy) can affect
the prisoner materially, it is necessary to make out another
point, viz. that he consented to the extent that the others did."
Hardy's case, Carney's ed. vol. i. p. 360, 369, 2 Stark. Ev.
234, 2d ed. So in the course of the same trial, it was said by
p 5
322 Conspiracy.
Eyre C. J., that in the case of a conspiracy, general evidence
of the thing conspired is received, and then the party before
the Court is to be affected for his share of it. Id. Upon
a prosecution for a conspiracy to raise the rate of wages,
proof was given of an association of persons for that purpose, of
meetings, of rules being printed, and of mutual subscriptions,
&c. It was objected that evidence could not be given of
these facts, without first bringing them home to the defendants,
and making them parties to the combination ; but Lord Kenyon
permitted a person who was a member of the society to prove
the printed icgulations and rules, and that he and others acted
under them, in execution of the conspiracy charged upon the
defendants, as evidence introductory to the proof that they were
members of this society, and equally concerned, but added,
that it would not be evidence to affect the defendants until they
were made paities to the same conspiracy. Hammond's case,
2 Esp. N. P. C. 720. So in many important cases evidence
has been given of a general conspiracy, before any proof of the
particular part which the accused parties have taken. 2 Russell,
572, citing Lvrd Stafford's case, 7 St. Tr. 1218, Lord W.
Russell's case, 9 St. Tr. 578, Lord Lovat's case, 18 St. Tr. 530,
Hardy's case, 24 St. TV. 199, Home Tuoke'scase, 25 St. Tr. 1.
The point may be considered as settled ultimately in The
Queen's case, 2 Brod. $f Bingh. 310, where the following rules
were laid down by the judges, " We are of opinion, that on
the prosecution of a crime to be proved by conspiracy, general
evidence of an existing conspiracy may, in the first instance, be
received, as a preliminary step to that more particular evidence,
by which it is to be shown, that the individual defendants were
guilty participators in such conspiracy. This is often necessary
to render the particular evidence intelligible, and to show the
true meaning and character of the acts of the individual de-
fendants, and, on that account, we presume it is peimitted.
But it is to be observed, that, in such cases, the general nature
of the whole evidence intended to be adduced is previously
opened to the Court, whereby the judge is enabled to form
an opinion as to the probability of affecting the individual
defendants by particular proof applicable to them, and con-
necting them with the general evidence of the alleged con-
spiracy ; and if upon such opening, it should appear manifest,
that no particular proof sufficient to affect the defendants is
intended to be adduced, it would become the duty of the judge
to stop the case in limhte, and not to allow the general
evidence to be received, which, even if attended with no
other bad effect, such as exciting an unreasonable prejudice,
would certainly be an useless waste of time."
The rule, says Mr. Starkie, that one man is not to be affected
by the acts and declarations of a sti anger, rests on the princi-
ples of the purest justice ; and although the Courts, in cases of
Conspiracy. 323
conspiracy, have, out of convenience, and on account of the
difficulty in otherwise proving the guilt of the parties, admitted
the acts and declarations of strangers to be given in evidence,
in order to establish the fact of a conspiracy, it is to be remem-
bered that this is an inversion of the usual order, for the sake of
convenience, and that such evidence is, in the result, material
so far only as the assent of the accused to what has been done
by others is proved. 2 Stark. Ev. 235, Id ed.
Upon an indictment for a conspiracy the evidence is either
direct, of a meeting and consultation for the illegal purpose
charged, or more usually, from the very nature of the case, cir-
cumstantial. 2 Stark. Ev. 232, Zd ed. Cope's case, 1 .Sir.
144. Thus upon a trial of an information for a conspiracy to
take away a man's character, by means of a pretended com-
munication with a ghost in Cock-lane, Lord Mansfield directed
the jury that it was not necessary to prove the actual fact of
conspiracy, but that it might be collected from collateral cir-
cumstances. Parsons' case, 1 W. Bl. 392. Upon an informa-
tion for a conspiracy to ruin Macklin, the actor, in his pro-
fession, it was objected for the defendants that, in support of
the prosecution, evidence should be given of a previous meeting
of the parties accused, for the purpose of confederating to carry
their object into execution. But Lord Mansfield overruled the
objection. He said, that, if a number of persons met together
for different purposes, and afterwards joined to execute one
common purpose, to the injury of the person, property, pro-
fession, or character of a third party, it was a conspiracy, and
it was not necessary to prove any previous consult or plan
among the defendants, against the person intended to be
injured. Lee's case, 2 M'Nally on Evid. 634. A husband,
his wife, and their servants were indicted for a conspiracy to
ruin a card-maker, and it appeared that each had given money
to the apprentices of the prosecutor to put grease into the paste,
which spoiled the cards, but no evidence was given of more
than one of the defendants being present at the same time ; it
was objected that this was not a conspiracy, there being no
evidence of communication ; but Pratt, C. J., ruled that the
defendants, being all of one family, and concerned in making
cards, this was evidence of a conspiracy to go to a jury. Cope's
case, 1 Sir. 144, 2 Russell, 571, 2 Stark. Ev. 233. 2</ ed.
The existence of the conspiracy may be established either as
above stated, by evidence of the acts of third persons, or by
evidence of the acts of the prisoner, and of any other with whom
he is attempted to be connected, concurring together at the same
time and for the same object. And here, says Mr. East, the
evidence of a conspiracy is more or less strong, according to the
publicity or privacy of the object of such concurrence, and the
greater or less degree of similarity in the means employed to effect
324 Conspiracy.
it. The more secret theone andthe greater coincidence in theother,
the stronger is the evidence of conspiracy. 1 East, P. C. 97.
Proof of the existence of conspiracy Declarations of other
conspirators.] Supposing that the existence of a conspiracy may
in the first instance be proved, without showing the participa-
tion or knowledge of the defendants, it is still a question whether
the declarations of some of the persons engaged in the con-
spiracy may be given in evidence against others, in order to
prove its existence ; and upon principle such evidence appears
to be inadmissible. The opinions of the judges upon this
question have been at variance. In Hardy's case, which was
an indictment for high treason, in conspiring the death of the
King, it was proposed to read a letter written by Martin, in
London, and addressed, but not sent, to Margaret, in Edin-
burgh, (both being members of the Corresponding Society,) on
political subjects, calculated to inflame the minds of the people
in the north ; Eyre, C. J. was of opinion that this letter was
not admissible in evidence against any but the party con-
fessing ; two of the judges agreed that a bare relation of facts
by a conspirator to a stranger, was merely an admission which
might affect himself, but which could not affect a co-conspirator,
since it was not an act done in the prosecution of that con-
spiracy ; but that in the present instance the writing of a letter
by one conspirator, having a relation to the subject of the con-
spiracy, was admissible, as an act to show the nature and
tendency of the conspiracy alleged, and which therefore might
be proved as the foundation for affecting the prisoner with a
share of the conspiracy. Buller, J. was of opinion, that evidence
of conversations and declarations by parties to a conspiracy, was
in general, and of necessity, evidence to prove the existence of
the combination. Grose, J.was of the same opinion; but added,
that he considered the writing as an act which showed the extent
of the plan. Hardy's case, 25 St. Tr. 1. Mr. Starkie remarks
that, upon the last point it is observable that of the five learned
judges who gave their opinions, three of them considered the
writing of the letter to be an act done ; and that three of them
declared their opinion that a mere declaration or confession,
unconnected with any act, would not have been admissible.
'2 Stark. Et>. 236. 2d ed.
In the same case it was proposed to read a letter written by
Thelwall, another conspirator, to a private friend. Three of
the judges were of opinion that the evidence was inadmissible,
since it was nothing more than a declaration, or mere recital
of a fact, and did not amount to any transaction done in the
course of the plot for its furtherance ; it was a sort of con-
fession by Thelwall, and not like an act done by him, as
in carrying papers and delivering them to a printer, which
would be a part of the transaction. Two of the judges were of
opinion that the evidence was admissible, on the ground that
Conspiracy. 325
every thing said, and a fortiori every thing done by the conspi-
rators, was evidence to show what the design was.
The law on this subject is thus stated by Mr. Starkie. It
seems that mere detached declarations and confessions of persons
not defendants, not made in the prosecution of the object of the
conspiracy, are not evidence even to prove the existence of a
conspiracy ; though consultations for that purpose, and letters
written in prosecution of the design, even if not sent, are
admissible. The existence of a conspiracy is a fact, and the
declaration of a stranger is but hearsay, unsanctioned by either
of the two great tests of truth. The mere assertion of a stranger
that a conspiracy existed amongst others, to which he was not
a party, would clearly be inadmissible ; and although the
person "making the assertion confessed that he was a party to it,
this, on principles fully established, would not make the assertion
evidence of the fact against strangers. 2 Stark. Ev. 235. And
this doctrine has been recognized by Mr. Serjeant Russell,
2 Russell, 572.
Proof of acts, fyc. done by another conspirator.] The cases
in which, after the existence of a conspiracy is established, and
the particular defendants have been proved to have been parties
to it, the acts or declarations of other conspirators may be given
in evidence against them, have already been considered (vide
ante, p. 60. to p. 64.) It seems to make no difference as to
the admissibility of this evidence, whether the other conspirators
be indicted or not, or tried or not ; for the making them co-
defendants would give no additional strength to their declara-
tions as against others. The principle upon which they are
admissible at all is, that the acts and declarations are those of
persons united in one common design, a principle wholly
unaffected by the consideration of their being jointly indicted.
Neither does it appear to be material what the nature of the
conspiracy is, provided the offence involve a conspiracy.
Thus upon an indictment for murder, if it appear that others,
together with the prisoner, conspired to commit the crime, the
act of one, done in pursuance of that intention, will be evidence
against the rest. 2 Stark. Ev. 237. 2d ed. See 6 T. R. 528.
11 East, 584.
The letters of one of the defendants to another have been,
under certain circumstances, admitted as evidence for the
former, with the view of showing that he was the dupe of
the latter, and not a participator in the fraud. Whitehead's
case, 1 Dow. If Ry. N. P. 61.
Proof of the means used.] Where the act itself, which is the
object of the conspiracy, is illegal, it is not necessary to state or
prove the means agreed upon or pursued to effect it. 2 Russell,
568. Eccles's case, \ Leach, 274. But, where the indictment
charged the defendants with conspiring " to cheat and defraud
326 Conspiracy.
the lawful creditors of W. F.," Lord Tenterden thought it
too general, in not stating what was intended to be done, or
the persons to be defrauded. Fowle's case, 4 C. 5f P. 592.
But see De Berenger's case, 3 M. <f S. 67. Where the indict-
ment charged the defendants with conspiring, by divers false
pretences and subtle means and devices, to obtain from A.
divers large sums of money, and to cheat and defraud him
thereof, it was held, that the gist of the offence being the con-
spiracy, it was quite sufficient only to state that fact and its
object, and that it was not necessary to set out the specific
pretences. Bayley, J. said, that when parties had once agreed
to cheat a particular person of his monies, although they might
not then have fixed on any means for the purpose, the offence of
conspirac}' was complete. Gilt's case, 2 Barn, fy Aid. 204.
But when the act only becomes illegal from the means used to
effect it, the illegality must be explained by proper statements,
and established by proof, as in the cases already referred to of
conspiracies to marry paupers. 2 Russell, 569. ante, p. 316.
The defendants A. and B. were indicted for conspiring to ex-
tort money from the prosecutor, by charging him with forging a
certain check for 178/.; the indictment set forth a letter from
one of the conspirators to the prosecutor, referring to the check,
and conversations were proved, relating to it. Such a docu-
ment was, in fact, in existence, but it was not produced by the
prosecutor on the trial, and such production was held to "be un-
necessary ; for it might have been that the existence of such a
check was altogether a fabrication. Ford's case, 1 Nev. <5r M.
777.
Proof of the means used cumulative instances.] Upon an
indictment charging the defendants with conspiring to cause
themselves to be believed persons of considerable property, for
the purpose of defrauding tradesmen, evidence was given of
their having hired a house in a fashionable street, and repre-
sented themselves to the tradesmen employed to furnish it, as
persons of large fortune. A witness was then called to prove,
that at a different time they had made a similar representation
to another tradesman. This evidence was objected to, on the
ground that the prosecutor could not prove various acts of this
kind, but was bound to select and confine himself to one. Lord
Ellenborough, however, said, " This is an indictment for a con-
spiracy to carry on the business of common cheats, and cumu-
lative instances are necessary to prove the offence." Roberts's
case, 1 Campb. 399.
Proof of the object of the conspiracy.] The object of the
conspiracy must be proved as laid in the indictment. An in-
dictment against A. B. C. and D. charged that they conspired
together to obtain " viz.: to the use of them the said A. B, and
Conspiracy. 327
C. and certain other persons to the jurors unknown," a sum of
money for procuring an appointment under government. It ap-
peared that D., although the money was lodged in his hands to be
paid to A. and B. when the appointment was procured, did not
know that C. was to have any part of it, or was at all implicated
in the transaction. Lord Ellenborough said, " The question is,
whether the conspiracy, as actually laid, be proved by the evi-
dence. I think it is not as to D. He is charged with conspiring
to procure the appointment through the medium of C., of whose
existence, for aught that appears, he was utterly ignorant. Where
a conspiracy is charged, it must be charged truly." Pollnan's
case, 2 Campb. 233.
Cross-examination of witnesses."] Where, on an indictment
for a conspiracy against A. B. and C., C. only called a witness,
and examined him as to a conversation between himself and A.,
it was objected that the counsel for the prosecution had not a
right to cross-examine him as to other conversations between C.
and A. ; but Abbott J. said that he could not prevent him from
going into all the conversations which might affect C., though
it might be a matter for future consideration, whether A. 's coun-
sel would, after such evidence, have a right to address the jury
upon it. The witness was accordingly examined as to several
conversations between A. and C., which principally affected the
former. Kroehl's case, 2 Stark. N. P. C. 343.
Venue.'] The gist of the offence in conspiracy, being the act
of conspiring together, and not the act done in pursuance of
such combination, the venue in principle ought to be laid in the
county in which the conspiring took place, and not where, in the
result, the conspiracy was put into execution. Best's case, 1 Salk.
174, 2 Russell, 569. But it has been said, by the Court of
King's Bench, that there seems to be no reason why the crime
of conspiracy, amounting only to a misdemeanor, ought not to
be tried wherever one distinct overt act of conspiracy was in fact
committed, as well as the crime of high treason, in compassing
and imagining the death of the king, or in conspiring to levy
war. Brisac's case, 4 East, 171. So where the conspiracy, as
against all the defendants, having been proved, by showing a
community of criminal purpose, and by the joint co-operation of
the defendants in forwarding the objects of it in different coun-
ties and places, the locality required for the purpose of trial was
held to be satisfied by overt acts done by some of the defendants
in the county where the trial was had in prosecution of the con-
spiracy. Bowes's case, cited in Brisac's case, supra.
328 Dead Bodies.
DEAD BODIES ;
OFFENCES RELATING TO.
Although larceny cannot be committed of a dead body, no
one having a property therein, (vide post, title "Larceny,") yet
it is an offence against decency to take a dead body with intent
to sell or dispose of it for profit ; and such offence is punishable
with fine and imprisonment as a misdemeanor. An indictment
charged (inter alia) that the prisoner a certain dead body of a
person unknown, lately before deceased, wilfully, unlawfully,
and indecently did take and carry away, with intent to sell and
dispose of the same for gain and profit. It being evident that
the prisoner had taken the body from some burial-ground, though
from what particular place was uncertain, he was found guilty
upon this count ; and it was considered that this was so clearly
an indictable offence, that no case was reserved. Gilles's case,
1 Russell, 415, ttuss. $ R\], 366. (n.) So to take up a dead
body even for the purposes of dissection, is an indictable offence.
Where, upon an indictment for that offence, it was moved in ar-
rest of judgment, that the act was only one of ecclesiastical cog-
nizance, and that the silence of the older writers on crown law
showed that there was no such offence cognizable in the crimi-
nal courts, the court said that common decency required that the
practice should be put a stop to ; that the offence was cognizable
in a criminal court as being highly indecent, and contra bonns
mores ; that the purpose of taking up the body for dissection did
not make it less an indictable offence, and that as it had been
the regular practice at the Old Bailey, in modern times, to try
charges of this nature, the circumstance of no writ of error having
been brought to reverse any of those judgments, was a proof of
the universal opinion of the profession upon this subject. Lynn's
case, 2 T. R. 733, 1 Leach, 497 ; see also Cundick's case, Uowl.
Sf Ry. N. P. C. 13.
The burial of the dead is the duty of every parochial priest
and minister, and if he neglect or refuse to perform the office, he
may, by the express words of canon 86, be suspended by the or-
dinary for three months ; and if any temporal inconvenience
arise, as a nuisance, from the neglect of the interment of the
dead corpse, he is punishable also by the temporal courts by in-
dictment or information. Per Abney J., Andrews v. Cawthorne,
Willes, 537. (n.)
To bury the dead body of a person who has died a violent
death, before the coroner has sat upon it, is punishable as a mis-
demeanor, and the coroner ought to be sent for, since he is not
bound ex officio to take the inquest without being sent for.
Clerk's case, 1 Salk. 377. Anon. 7 Mod. 10. And if a dead
body in a prison or other place, upon which an inquest ought to
Deer. 329
be taken, is interred, or is suffered to lie so long that it putrifies
before the coroner has viewed it, the gaoler or township shall be
amerced. Hawk. P. C. b. 2. c.9. s. 23.
The preventing a dead body from being interred has likewise
been considered an indictable offence. Thus the master of a
workhouse, a servant, and another person, were indicted for a
conspiracy to prevent the burial of a person who died in a work-
house. Young's case, cited 2 T. R. 734.
Provision is made for the interment of dead bodies which
may happen to be cast on shore, by slat. 48 G. 3. c. 75.
DEER;
OFFENCES RELATING TO.
Stealing deer . 329
Power of deer-keepers, &'c. to seize guns . . 329
Assaulting deer-keepers or their assistants . , 330
Stealing deer.'] The former statutes with regard to the
offence of stealing deer, are repealed by the act of 7 & 8 G. 4.
c. 27, and the law upon the subject is now contained in the
7 & 8 G. 4. c. 29. By the 26th section of that statute, it is
enacted, that if any person shall unlawfully and wilfully course,
hunt, snare, or carry away, or kill or wound, or attempt to kill
or wound, any deer kept or being in the inclosed part of any
forest, chace. or purlieu, or in any inclosed land wherein deer
shall be usually kept, every such offender 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 ;
and if any person shall unlawfully and wilfully course, hunt,
snare, or carry away, or kill or wound, or attempt to kill or
wound, any deer kept or being in the uninclosed part of any
forest, chace, or purlieu, he shall for every such offence, on con-
viction thereof before a justice of the peace, forfeit and pay
such sum, not exceeding fifty pounds, as to the justice shall
seem meet ; and if any person, who shall have been previously
convicted of any offence relating to deer for which a pecuniary
penalty is by this act imposed, shall offend a second time, by
committing any of the offences herein-before last enumerated,
such second offence, whether it be of the same description as the
first offence or not, shall be deemed felony, and such offender,
being convicted thereof, shall be liable to be punished in the
same manner as in the case of simple larceny.
By section 27 of the same statute, suspected persons found in
possession of venison, &c., and not satisfactorily accounting for
the same, are rendered liable to a penalty not exceeding 20/.
330 Dwelling-house offences relating to.
Power of deer-keepers, &c., to seize guns, 3fc.] By section
29 of the above statute, it is enacted, that if any person shall
enter into any forest, chace, or purlieu, whether inclosed or not,
or into any inclosed land where deer shall be usually kept, with
intent unlawfully to hunt, course, wound, kill, snare, or carry
away any deer, it shall be lawful for every person intrusted
with the care of such deer, and for any of his assistants, whe-
ther in his presence or not, to demand from every such offender
any gun, fire arms, snare, or engine in his possession, and any
dog there brought for hunting, coursing, or killing deer ; and
in case such offender shall not immediately deliver up the same,
to seize and take the same from him in any of those respective
places, or, upon pursuit made, in any other place to which he
may have escaped therefrom, for the use of the owner of the
deer.
Assaulting deer-keepers or their assistants.] By the same sec-
tion of the 7 & 8 G. 4. c. 29, it is enacted, that if any such
offender (vide supra) shall unlawfully beat or wound any per-
son intrusted with the care of the deer, or any of his assistants,
in the execution of any of the powers given by this act, every
such offender shall be guilty of felony, and being convicted
thereof, shall be liable to be punished in the same manner as in
the case of simple larceny.
DWELLING HOUSE;
OFFENCES RELATING TO.
Housebreaking ..... 331
Statute 7 # 8 G. 4. c. 29 . . . 331
Proof of the breaking and entering . . 331
Proof of the premises being a dwelling-house . 331
Proof of the larceny . . . .332
Stealing in a dwelling-house to the amount of 51. . 332
Statute 1 &; 8 G. 4. c. 29 . . .332
Proof of the stealing of the goods what goods . 333
Proof of the value of the goods stolen . . 333
Proof of the stealing being in a dwelling-house . 334
Consequences of verdict against one of several, as to
part of the offence .... 335
Indictment for burglary .... 335
Stealing in a dwelling-house, any person being put in
fear . . . . .335
Statute 1 $ 8 G. 4. c. 29 . . . 335
Proof that some person was put in fear . . 336
Breaking and entering a building within the curtilage . 336
Dwelling-house offences relating to. 331
HOUSE-BREAKING.
Statute 7 <3f 8 G. 4. c. 29.] The offence of house-breaking
or stealing in a dwelling-house, was provided against by several
statutes, now repealed by the 7 & 8 G. 4. c. 27. The present
law is contained in the 7 & 8 G. 4. c. 29.
By the 12th section of that statute, it is enacted, that if any
person shall break and enter any dwelling-house, and steal
therein any chattel, money, or valuable security, to any value
whatever, every such offender shall suffer death as a felon.
But by statute 3 & 4 W. 4. c. 44, the punishment of death
is repealed, and the offender may be transported for life, or for
any term not less than seven years, and previously to such
transportation, shall be liable to be imprisoned with or without
hard labour in the common gaol or house of correction, or to
be confined in the penitentiary, for any term not exceeding four
years, or shall be liable to be imprisoned with or without hard
labour in the common gaol or house of correction, for any term
not exceeding four years, nor less than one year.
The section of the same act, (s. 13.) with regard to what shall
be considered part of the dwelling-house in burglary, and which
has been already given, ante, p. 278, applies likewise to this
offence.
The offence of house-breaking differs from that of burglary,
in requiring that an actual larceny should be committed in the
house, a mere intent to commit felony not being sufficient, and
also in not requiring that the offence should be committed in
the night.
The prosecution to support an indictment for house-breaking
must prove, 1, the breaking and entering; 2, that it is a
dwelling-house; 3, the larceny.
Proof of the breaking and entering.] It is sufficient to prove
such a breaking and entering, as, if done in the night, would
have constituted burglary. 1 Hale, 522, 526, 548. Foster, 108,
2 East, P. C. 638. 2 Russell, 47. Where the sash of a win-
dow was partly open, but not so much so, as to admit the body
of a person, and the prisoner raised it so as to admit a person,
upon an indictment for house-breaking, this was held not to
amount to a breaking. Henri/ Smith's case, 1 Moody, C. C.
178, ante, p. 255. See also Robinson's case, Id. 327, ante,
p. 256. Where the entry was effected through a hole, which
had been left in the roof, for the purpose of light, Bosanquet J.
held, that it was not sufficient to constitute a breaking of the
house. Sprigg's case, 1 Moody fy Rob. N. P. C. 357.
Proof of the premises being a dwelling-house.] Whatever
building is, in contemplation of law, a dwelling-house, in which
332 Dwelling-house offences relating to.
burglary may be committed, is a dwelling-house also, so far as
respects the offence of house-breaking. 2 Russell, 48. A
chamber in an inn of court, was held to be a dwelling-house
within the repealed statute 39 Eliz. c. 15. Evans's case, Cro.
Car. 473.
With regard to out-buildings, the repealed statute above-
mentioned contained the words " dwelling-house or houses, or
any part thereof, or any out-house or out-houses belonging and
used to and with any dwelling-house." The auxiliary statute
3 & 4 W. & M. c. 9, varies the words, using " dwelling-
house, shop, or warehouse thereunto belonging, or therewith
used." Both these statutes are now repealed, and the new act
only uses the term "dwelling-house." Such buildings, there-
fore, as, at common law, were considered part of the dwelling-
house, (as to which, vide ante, p. 277,) come within the pro-
tection of the statute, and -buildings situated within the curti-
lage, must appear to be within the provisions of 7 & 8. G. 4.
c. 29. s. 13. ante, p. 278.
Proof of the larceny.~\ The larceny must be proved, as in
other cases, with this addition, that it must be shown to have
taken place in the house. The least removal of the goods from
the place where the offender found them, though they be not
carried off out of the house, is within the act, as in other lar-
cenies, for the statute does not create a new felony, but only
alters the punishment of a particular species of larceny. Simp-
son's case, 1 Hale, P. C. 527, Kel. 31, 2 East, P. C. 639. See
Amier's case, 6 C. # P. 344.
STEALING IN A DWELLING-HOUSE TO THE
AMOUNT OF FIVE .POUNDS.
t
Statute 7 # 8 G. 4. c. 29.] This offence, so far as it ex-
tended to the sum of 40s., was provided against by the statute
12 Anne, c. 7. (now repealed). The sum being extended to
51., the offence was made a capital felony by 7 & 8 G. 4. c. 29.
By the 12th section of that statute, it is enacted, that if any
person shall steal in any dwelling-house any chattel, money, or
valuable security, to the value in the whole of 5i., or more, every
such offender being convicted thereof, shall suffer death as a
felon. By the 2 & 3 W. 4. c. 62. the capital punishment is
repealed, and transportation for life substituted ; and by the
3 & 4 W. 4. c. 44. s. 3. the offender may be kept to hard
labour, or imprisoned in the Penitentiary before transportation.
Vide ante, p. 331.
To support an indictment for this offence, the prosecutor
Dwelling-house ojfences relating to. 333
must prove 1, the stealing ; 2, that the goods, &c., stolen,
were of the value of 51. or more ; and 3, that they were stolen
in a dwelling-house.
Proof of the stealing of the goads what goods.] It is not all
goods of the value of 5/. or more, which may happen to be
within the house, the stealing of which will come within the
statute. A distinction is taken between goods which are, as it
has been termed, under the protection of the house, and those
which are not. Therefore, where goods are feloniously ob-
tained from the person, they are not considered to be goods
within the protection of the house, as where the occupier of the
house gave a bank note to the prisoner to get changed, who
thereupon stole it, the judges upon a case reserved were of opi-
nion, that this was not a capital offence within the 12 Anne,
c. 7. Campbell's case, 2 Leach, 564, 2 East, P. C. 644. So
where the prisoner obtained a sum of money from the prosecutor,
in the dwelling-house of the latter, by ring-dropping, this also
was held not to be within the statute. The judges were of opi-
nion, that to bring a case within the statute, the property must
be under the protection of the house, deposited there for safe
custody, as the furniture, money, plate, &c. kept in the house,
and not things immediately under the eye or personal care of
some one who happens to be in the house. Owen's case, 2 East,
P. C. 645, 2 Leach, 572. The same point was ruled in sub-
sequent cases. Castledine's case, Wut son's case, Id. 674. But where
goods were left by mistake at a house at which the prisoner
lodged, and were placed in his room, and cairied away by him,
they were held to be within the protection of the house. Carroll's
case, 1 Moody, C. C. 89.
Prcof of the value of the gonds stolen."] It must appear not
only that the goods stolen were of the value of 51., but likewise
that goods to that value were stolen upon one occasion, for
a number of distinct larcenies cannot be added together to con-
stitute a compound statutable larceny. Where it appeared that
the prisoner had purloined his master's property to a very con-
siderable amount, but it was not shown that he had ever taken
to the amount of 40s. at any one particular time, upon an
indictment under the 12 Anne, c. 7, the Court held that the
property stolen must not only be in the whole of such a value as
the law requires to constitute a capital offence, but that it must
be stolen to that amount at one and the same time ; that a num-
ber of distinct petty larcenies could not be combined so as to
constitute grand larceny, nor could any distinct number of
grand larcenies be added together, so as to constitute a capital
offence. Petrie's case, 1 Leuch, 295. And the same was ruled
by Ashurst J. in a subsequent case. Farley's case, 2 East,
P. C. 740. But it may vary the consideration, if the property
334 Dwelling-house offences relating to.
of several persons lying together in one bundle or chest, or even
in one house, be stolen together atone time ; for there the value
of all may be put together, so as to make it grand larceny, or to
bring it within a statute which aggravates the punishment, for it
is one entire felony. 2 East, P. C. 740. And where the pro-
perty was stolen at one time to the value of 40s., and a part of it
only, not amounting to 40s. was found upon the prisoner, the
Court left it to the jury to say, whether the prisoner had not
stolen the remainder of the property, which the jury accordingly
found. Hamilton's case, 1 Leach, 348, 2 Russell, 53.
Proof of the stealing being in a dwelling-house.] The same
evidence which is adduced in indictments for burglary, or house-
breaking, or stealing in a dwelling-house, some person therein
being put in fear, vide supra, will be sufficient proof of the pre-
mises being a dwelling-house upon this indictment, and the
13th section of the 7 & 8 Geo. 4. c. 29. extends to this as well
as to the above mentioned offences. Vide ante, p. 27 '8. See
Turner's case, 6 C. $ P. 407.
Several cases have been decided upon the repealed statute,
12 Anne, c. 7. (the words of which are in substance the same
as those used in the 7 & 8 Geo. 4. c. 29.) with regard to the
occupation of the house in which the offence has been com-
mitted. Thus it has been held that the words do not include
a stealing in a man's own house, on the ground that the statute
was not intended to protect property, which might happen to be
in a dwelling-house from the owner of the house, but from the
depredation of others. Thompson's case, 1 Leach, 338, 2 East,
P. C. 644. So where a wife was indicted for this offence, and
it appeared that the house was the house of her husband, the
judges were unanimously of opinion, that the prisoner could
not be convicted of the capital part of the charge, inasmuch as
the dwelling-house of her husband must be construed to be her
dwelling-house, and the statute evidently means the house of
another. Gould's case, 1 Leach, 339, (n.) 2 East, P. C.
644.
But the house in which a person lodges merely is not his
dwelling-house, so as to prevent the commission of this offence
in it by him. Therefore, where a lodger invited a man to his
room, and then stole his goods to the value of 40s., when not
about his person, he was held to be liable under the 12 Anne, c. 7,
to the punishment of stealing in a dwelling-house. John Taylor's
case, Rust. &\ liy. 418.
As in burglary, the ownership of the dwelling-house must be
correctly described, and a variance will be fatal. Where a
prisoner was indicted for burglary in the dwelling-house of John
Snoxall, and stealing goods therein, and it appeared that it was
not the dwelling-house of John Snoxall, it was held by Buller J.
and Grose J. at the Old Bailey, that he could not be found
Dwelling-house offences relating to. 335
guilty, either of the burglary or of stealing to the amount of 40s.
in the dwelling-house, for it was essential in both cases to state
in the indictment the name of the person in whose house the
offence was committed. White's case, 1 Leach, 251. So where
the house was laid to be the house of Sarah Lunns, and it ap-
peared in evidence that her name was Sarah London, the
variance was held fatal. Woodward's cane, 1 Leach, 253, (.)
Consequences of verdict against one of several, as to part of
the offence.] Although a verdict may be found against one
only, upon a joint indictment, yet if all the prisoners are
found guilty, they must be found guilty of the compound lar
ceny. Thus where A. and B. were indicted under the statute
12 Anne, c. 7, for stealing goods to the value of 6/. 10s. in a
dwelling-house, and the jury found A. guilty of such stealing to
the value of 6/., and B. to the value of 10s. ; upon a case re-
served, the judges were of opinion, that judgment could not be
given against both the prisoners, but that on a pardon being
granted, or a nolle prosequi entered as to B., judgment might
be given against A. Hempstead's case, Buss, fy Ry. 344.
Indictment for burglary.] Upon an indictment for burglary
on a failure to prove a breaking and entering in the night time,
the prisoner may be convicted of stealing in a dwelling-house
to the value of 5L, ante, p. 281.
STEALING IN A DWELLING-HOUSE, ANY PERSON
THEREIN BEING PUT IN FEAR.
Statute 7 <3f 8 Geo. 4. c. 29.] This offence was provided
against by the statute 3 W. & M. c. 9. s. 1. (repealed by
7 & 8 Geo. 4. c. 27.) and the provisions of the former statute
are re-enacted in the 7 & 8 Geo. 4. c. 29.
By the 12th section of that statute it is enacted, that if any
person shall break or enter any dwelling-house, and steal therein
any chattel, money, or valuable security, to any value what-
ever, or shall steal any such property to any value whatever in
any dwelling-house, any person therein being put in fear, every
such offender being convicted thereof, shall suffer death as a
felon.
The 13th section, vide ante, p. 278, describing the buildings
which are to be considered parcel of the dwelling-house, is ap-
plicable to this offence.
Upon an indictment for this offence, the prosecutor must
prove 1st, the stealing ; 2d, that it took place in a dwelling-
house; and 3d, that some person therein was put in fear. It
will only be necessary in this place to state the evidence with
regard to the latter head.
336 Dwelling-house offences relating to.
Proof that some person was put in fear.] Some doubt existed
with regard to the interpretation of the words " being put in
fear," under the repealed statutes, (and the words of the new
act are similar,) but the correct opinion appears to be, that
though it is necessary that some person in the house should be
put in fear by the offenders, yet it is not essential that the
larceny should be committed in the presence of that person.
2 East, P. C. 633. 2 Riissetl, 49. Whether or not it be neces-
sary to prove the actual sensation of fear felt by any person in
the house, or whether if any person in the house be conscious
of the fact at the time of the robbery, the fact itself raises the
implication of fear from the reasonable grounds existing for it,
does not, says Mr. East, appear to be any where settled.
He adds, that the practice is to require proof of the actual
fear excited by the fact, when committed out of the presence of
the party, so as not to amount to a robbery at common law.
But certainly if the person in whose presence the thing was
taken, was not conscious of the fact at the time, the case would
not fall within the act. 2 East, P. C. 634, 635.
Upon an indictment for stealing in a dwelling-house, some
person therein being put in fear, the prisoner may be convicted
of the simple larceny. Etherington's case, 2 Leach, 673.
BREAKING AND ENTERING A BUILDING WITHIN
THE CURTILAGE.
A distinction having been created by the 13th section of the
7 & 8 Geo. 4. c. 29, (ante, p. 278,) between such buildings
within the curtilage, as have a communication between them-
selves and the dwelling-house, either immediate or by means of
a covered and inclosed passage, and such buildings as have not ;
the latter species of buildings are protected by a separate enact-
ment.
By 7 & 8 Geo. 4. c. 29. s. 14, it is enacted, that if any
person shall break and enter any building, and steal therein any
chattel, money, or valuable security, such building being within
the curtilage of a dwelling-house, and occupied therewith, but
not being part thereof, according to the piovision hereinbefore
mentioned, (s. 13, vide ante, p, 278,) every such offender being
convicted thereof, either upon an indictment for the same offence,
or upon an indictment for burglary, house-breaking, or stealing
to the value of 5/. in a dwelling-house, containing a separate
count for such offence, shall be liable, at the discretion of the
Court, to be transported beyond the seas for life, or for any term
not less than seven years, or to be imprisoned for any term not
Embezzlement. 337
exceeding three years, and if a male, to be once, twice, or thrice
publicly or privately whipped, (if the court shall so think fit,)
in addition to such imprisonment.
Upon this enactment it has been observed, that, specifying as
it does, in express terms, a building within the curtilage of a
dwelling-house, it appears not to apply to many of those build,
ings and out-houses, which although not within any common
inclosure or curtilage, were deemed by the old law of burglary
parcel of the dwelling-house, from their adjoining such dwell-
ing-house, and being in the same occupation. 2 Russell, 55.
To this it may be added, that the enactment likewise does not
seem to extend to those buildings, which being within the curti-
lage, yet not communicating with the dwelling-house internally,
are still held to be parcel of the dwelling-house, as in several of
the cases already mentioned. Vide ante, p. 263.
Upon an indictment framed upon this enactment, the prose-
cutor must prove 1st, a breaking and entering, as in burglary.;
2d, a stealing within the building ; 3d, that the building comes
within the statute, viz. that it is a building, within the curtilage
of a dwelling-house, occupied therewith, and not being part of
such dwelling-house, according to the 13th section of the same
statute (ante, p. 278,) and, as above suggested, it should also
appear that the building is not part of the dwelling-house, ac-
cording to the rules of the common law.
EMBEZZLEMENT.
Statute 7 $8 G. 4. c.29. . . . .338
Proof of being a servant .... 339
What servants are within the statute . . 339
Wages or payment of servant . . 341
Proof of being a clerk within the statute . . 341
Proof of being a person employed for the purpose or
in the capacity of a clerk or servant within the
statute ..... 342
Proof of the chattels, money, c. embezzled . . 344
Proof of the embezzlement .... 346
Particulars of the embezzlement . . . 348
Embezzlement by persons employed in the public service 348
Embezzlement by persons employed by the Bank of
England ~ . . . . . 350
Embezzlement by bankers, agents, and factors 351
Embezzlement by other persons . 354
Q
338 Embezzlement.
Statute 7 ^ 8 Geo. 4. e. 29.] The offence of embezzlement
by clerks and servants was provided for by the statute
39 Geo. 3. c. 85 ; but that statute is now repealed, and the
substance of it re-enacted by 7 & 8 Geo. 4. c. 29.
By the 47th section of the latter statute it is enacted, for the
punishment of embezzlements committed by clerks and servants,
that if any clerk or servant, or any person employed for the
purpose or in the capacity of a clerk or servant, shall, by virtue
of such employment, receive or take into his possession any
chattel, money, or valuable security for, or in the name, or
on the account of, his master, and shall fraudulently em-
bezzle the same, or any part thereof, every such offender shall be
deemed to have feloniously stolen the same from his master,
although such chattel, money, or security was not received into
the possession of such master, otherwise than by the actual
possession of his clerk, servant, or other person so employed,
and every such offender being convicted thereof, shall be liable,
at the discretion of the court, to any of the punishments which
the court may award as thereinbefore last mentioned. (Sec.
46. vide post.)
And (by sec. 48.) for preventing the difficulties that have
been experienced, in the prosecution of the last-mentioned
offenders, it is enacted, that it shall be lawful to charge in
the indictment and proceed against the offender for any number
of distinct acts of embezzlement, not exceeding three, which
may have been committed by him, against the same master,
within the space of six calendar months from the first to the
last of such acts ; and in every such indictment, except where
the offence shall relate to any chattel, it shall be sufficient to
allege the embezzlement to be of money, without specifying any
particular coin or valuable security ; and such allegation, so
far as regards the description of the property, shall be sustained,
if the offender shall be proved to have embezzled any amount,
although the particular species of coin or valuable security of
which such amount was composed shall not be proved ; or if
he shall be proved to have embezzled any piece of coin or
valuable security, or any portion of the value thereof, although
such piece of coin or valuable security may have been delivered
to him, in order that some part of the value thereof should be
returned to the party delivering the same, and such part shall
have been returned accordingly.
Upon a prosecution under this statute, the prosecutor must
prove, 1st, that the prisoner was a clerk or servant, or a person
employed for the purpose or in the capacity of a clerk or
servant, and that by virtue of such employment he received
the money, &c. ; 2d, that he received or took into his posses-
sion some chattel, money, or valuable security for or on account
of his master; and 3d, that he fraudulently embezzled the
same, or some part thereof.
Embezzlement. 339
Proof of being a servant What servants are within the act.]
It is not every person who is employed as a servant, that comes
within the provisions of the statute as to embezzlement ; it must
be in the course of the servant's employment to receive money,
in order to render him liable. Thus the servant of a carrier
employed to look after the goods, but not intrusted with the
receipt of money, is not within the statute. Thor ley's case,
1 Moody, C. C. 343. The prisoner was an apprentice to a
butcher, and his duty was to carry out the meat, but he had
never been employed to receive money. Having delivered a
bill for meat to one of his master's customers, he embezzled
the amount. Being convicted of the embezzlement, the judges,
on a case reserved, held the conviction wrong, on the ground
that it did not appear by the evidence that the prisoner was
employed to receive money for his master, or received the money
in question by virtue of his employment. It seemed to be the
opinion of the judges that an apprentice was a servant, within
the meaning of the act. Mellish's case, Russ. fy Ry. 80. But
it is sufficient if he was employed only upon the one occasion in
question to receive money, if acting at that time in the capacity
of a servant so employed. Thus a person employed by a carrier
was directed by his employer to receive a sum of 21., which he did
receive and embezzled ; and on a case reserved, the judges were
of opinion that he was rightly convicted of embezzlement.
Spencer's case, Russ. 3f Ry. 299. So where a drover, keeping
cattle for a farmer at Smiihneld, was ordered to drive the cattle
to a purchaser and receive the money, which he did, and
embezzled it, the judges were unanimously of opinion that the
prisoner was a servant within the meaning of the act, and that
the conviction was right. Hughes 's case, 1 Moody, C.C. 370.
It is not necessary that the servant should have, been acting
in the ordinary course of his employment when he received the
money, provided that he was employed by his master to receive
the money on that particular occasion. The prisoner was
employed to collect the tolls at a particular gate, which was all
that he was hired to do ; but on one occasion his master ordered
him to receive the tolls of another gate, which the prisoner did,
and embezzled them. Being indicted (under stat. 39 G. 3.
c. 85.) for this embezzlement, a doubt arose whether it was by
virtue of his employment, and thecase was reserved for the opinion
of the judges. Abbott, C. J., Holroyd, J., and Garrow, B.,
thought that the prisoner did not receive the money by virtue
of his employment, because it was out of the course of his
employment to receive it. But Park, J., Burrough, J.,
Best, J., Hullock, B., and Bayley, J., thought otherwise;
because, although out of the ord'inary course of the prisoner's
employment, yet as, in the character of servant, he had sub-
mitted to be employed to receive the money, the case was
within the statute. Thomas Smith's case, Russ. fy Ry. 516.
w 2
340 Embezzlement.
So although it may not have been part of the33: 'ant's duty
to receive money, in the capacity in which he was originally
hired, yet, if he has been in the habit of receiving money for
his master, he is within the statute. Thus where a man was
hired as a journeyman miller, and not as a clerk or accountant,
or to collect money, but was in the habit of selling small
quantities of meal on his master's account, and of receiving
money for them ; Richards, C. B., held him to be a servant
within the 39 G. 3. c. 85, saying that he had no doubt
the statute was intended to comprehend masters and servants
of all kinds, whether originally connected in any particular
character and capacity or not. Barker's case, Dow. if Ry.
IV. P. C. 19.
If the servant be intrusted with the receipt of money from
particular persons, in the ordinary course of his employment,
and receives money from other persons and embezzles it, the
case seems to be within the act. The prisoner was employed
by the prosecutors in the capacity of clerk, as evening collector,
in which character it was his duty to receive every evening,
from the porters employed in the business, such money as they
had received from the customers in the course of the day ; and
it was the prisoner's duty to pay over these sums to another
clerk the following morning. He was not expected in the
course of his employment to receive money from the customers
themselves. Having called on a customer for payment of a bill,
he received a check and embezzled it. Being convicted of this
offence, the judges, on a case reserved, were of opinion, that as
the prisoner was intrusted to receive from the porters such
monies as they had collected from the customers in the course
of the day, the receiving immediately from the customers,
instead of receiving through the medium of the porters, was
such a receipt of money " by virtue of his employment" as the
act meant to protect. Beecliey's case. Russ. if Ry. 319. So
where the prisoner received a sum of money from one of his
master's regular customers, and it appeared that it was not
part of his duty to receive monies from those persons, it was
ruled by Arabin, 8., after consulting Gaselee, J., Alderson, B.,
and Gurney, B., that this was within the statute. Williams' s
case, 6 C. 8$ P. 626.
A female servant is within the statute. Elizabeth Smith's case,
Russ. if Rij. 267. So likewise is an apprentice. Mellish'scase,
Russ. if R y. 80, ante, p. 339. So a clerk or servant to a corpo-
ration, although not appointed under the common seal, for he
is, notwithstanding, a person employed as a clerk or servant
within the statute. Well-ing's case, 1 C. if P. 457. And in
Williams v. Stott, 1 Crom. if M. 689, it is said by Vaughan B.
that there can be no doubt that the statute would be held to
embrace persons employed in the capacity of clerks or servants
to corporations.
Embezzlement. 341
A person who is the servant of two persons in partnership is
the servant of each within the act. The prisoner was in the
employ of Bridson and Ridgway as their book-keeper. While
in this situation, he received into his possession the notes in
question, being the private property of Bridson, to be deposited
in the safe where the money of the firm was usually kept. Being
indicted for embezzling these notes, it was objected that he was
the servant of the partners, and not of the individuals ; but
Bayley J. held that he was the servant of both [each,] and said
that it had been decided by the judges, that where a traveller
is employed by several houses to receive money, he is the indi-
vidual servant of each. (Carr's case, Russ. <$f Ry. 198, post,
p. 342.) Leech's case, 3 Stark. 70.
Proof of being a servant within the statute wages or payment
of servant.] Several cases have occurred in which doubts have
arisen whether the party offending could be considered a servant
within the meaning of the statute, on account of the manner in
which he was remunerated for his services. The allowance of
part of the profit on the goods sold will not prevent the character
of servant from arising. The prisoner was employed to take
coals from a colliery and sell them, and bring the money to his
employer. The mode of paying him was by allowing him two-
third parts of the price for which he sold the coal, above the price
charged at the colliery. It was objected that the money was
the joint property of himself and his employer ; and the point
was reserved for the judges, who held that the prisoner was a
servant within the act. They said that the mode of paying him
for his labour did not vary the nature of his employment, nor
make him less a servant than if he had been paid a certain price
per chaldron or per day ; and as to the price at which the coals
were charged at the colliery in this instance, that sum he re-
ceived solely on his master's account as his servant, and by
embezzling it became guilty of larceny within the statute. Hart-
ley's cage, Russ. f Ry. 139. The prisoner was employed by
the prosecutors, who were turners, and was paid according to
what he did. It was part of his duty to receive orders for jobs,
and to take the* necessary materials from his master's stock to
work them up, to deliver out the articles, and to receive the
money for them ; and then his business was to deliver the whole
of the money to his masters, and to receive back, at the week's
end, a proportion of it for working up the articles. Having exe-
cuted an order, the prisoner received three shillings for which he
did not account. Being convicted of embezzling the three shil-
lings, a doubt arose whether this was not a fraudulent conceal-
ment of the order, and an embezzlement of the materials ; but the
judges held the conviction right. Hoggins' s case, RUSS.&; Ry.145.
Proof of being a clerk, within the statute.'] A person who
acts as a traveller for various mercantile houses, takes orders,
342 Embezzlement.
and receives monies for them, and is paid by a commission, is
a clerk within the statute. The prisoner was indicted for em-
bezzling the property of his employers, Stanley and Co. He was
employed by them and other houses as a traveller, to take orders
for goods and collect money for them from their customers. He
did not Jive in the house with them. He was paid by a com-
mission of 5 per cent, on all goods sold, whether he received the
price or not, provided they proved good debts. He had also a
commission upon all orders that came by letter, whether from
him or not. He was not employed as a clerk in the counting-
house, nor in any other way than as above stated. Stanley and
Co. did not allow him any thing for the expenses of his jour-
neys. Having been convicted of embezzling money, the pro-
perty of Stanley and Co., the judges, on a case reserved, held
the conviction right. Carr's case, Russ. f Ry. 198.
A person employed by overseers of the poor, under the name
of their accountant and treasurer, is a clerk within the statute.
The prisoner acted for several years for the overseers of the
parish of Leeds, at a yearly salary, under the name of their ac-
countant and treasurer, and as such received and paid all the
money receivable or payable on their account, rendering to
them a weekly statement purporting to be an account of monies
so received and paid. Having retained a portion of the monies
for his own use, he was indicted and convicted of embezzle-
ment ; and on a case reserved, the judges were of opinion that
he was a clerk and servant within the 39 G. 3. c. 85. Squires's
case, Russ. <Sf Ry. 349, 2 Stark. 349. So where a person,
who acted as clerk to parish officers, at a yearly salary voted by
the vestry, was charged with embezzlement, as clerk to such of-
ficers, no objection was taken. Tyers's case, Russ. &; Ry. 402.
And an extra collector of poor-rates, paid out of the parish
funds by a per centage, was held by Richardson J. to be the
clerk of the churchwardens and overseers, so as to support an
indictment for embezzlement. Ward's case, Gow, 168.
Proof of being a person employed for the purpose or in the
capacity of a clerk or servant within the statute.] It is suf-
ficient, if it be shown that the prisoner was a person em-
ployed, for the purpose or in the capacity of a clerk or servant.
The casually procuring a person to receive a sum of money
will not render that person " a person employed for the purpose
or in the capacity of a clerk or servant." The prisoner was
schoolmaster of a charity-school. His appointment was by a
committee, of which the prosecutor was treasurer. There was a
regular collector to receive the subscriptions to the school. The
duty of the prisoner was only to teach the scholars. The pro-
secutor had been accustomed himself to receive a voluntary con-
tribution to the school, but, being confined to his bed, he left a
Embezzlement. 343
written direction for the prisoner to receive it. This was not by
order of the committee. The prisoner received, and did not
account for the money. Being convicted of embezzlement, the
judges, on a case reserved, were unanimously of opinion that the
conviction was wrong, inasmuch as the prisoner did not stand
in such a relation to the prosecutor, or the committee, as to bring
him within the act? & 8 G. 4.c. 29. Nettleton's case, 1 Moody,
C. C. 259. So where the prisoner had sometimes been employed
by the prosecutor as a regular labourer, and sometimes as a
rounds-man, for a day at a time, and had been several times sent
by him to the bank for money ; but, upon the day in question,
was not working for the prosecutor, and was sent to the bank for
money, receiving sixpence for his trouble ; having applied the
money to his own use, and being indicted for embezzling it, it
was held by Parke J. (after conferring with Taunton J.) that
the prisoner was not a servant of the prosecutor within the mean-
ing of the act of parliament, and that it was no embezzlement.
Freeman's case, 5 C. fy P. 534. The clerk of a chapelry, who
receives the sacrament money, is not the servant either of the
curate or of the chapelwardens, or of the poor of the township,
so as to render a retaining of part of the money collected by him
embezzlement. Burton's case, 1 Moody, C. C. 237. A person
was chosen and sworn in, at a court-leet held by a corporation,
as chamberlain of certain commonable lands. The duties of
the chamberlain (who received no remuneration,) were to col-
lect monies from the commoners and other persons using the
commonable lands ; to employ the monies so received, in keep-
ing the lands in order; to account, at the end of the year, to two
aldermen of the corporation ; and to pay over any balance in his
hands to his successor in office. In an action for accusing this
person of felonious embezzlement, it was held by the Court of
Exchequer that the plaintiff was not a clerk or servant within
the 7 & 8 G. 4. c. 29. s. 47. Mr. Baron Bayley said, " It ap-
pears to me that the statutory provision was intended to embrace
persons of a very different description from the plaintiff. From
the whole of that provision, it seems to me to have been intended
to apply to persons in the ordinary situation of clerks or ser-
vants, and having masters to whom they are accountable for the
discharge of the duties of their situation. Now, in the present
case, is the plaintiff in that situation 1 and who are his masters ?
From the evidence, it appears that he was not nominated by the
corporation or the commoners, but was appointed to the post of
chamberlain at a court-leet. And how can it be said that the
corporation or the commoners are his masters, when he does
not derive his authority from them ?" He then distinguished
this case from those of Squires, and Tyers, (ante, p. 342,)
and thus proceeded: "In the present case, I think that
the plaintiff does not come within the fair meaning of the
statute ; he is not the servant of another ; he fills an office of
344 Embezzlement.
his own ; he does not receive money in the course of his employ-
ment as the mere agent of another ; but appears to be entitled,
by virtue of his office, to keep the money in his own hands, until
the end of the year for which he is appointed." Williams v.
Stott, 1 Crom. if Mee. 675.
Proof of the chattel, money, fyc. embezzled.] The chattel, money,
or valuable security embezzled by the prisoner must be such as
has not come to the possession of his master ; if it has come
to his possession, the offence is larceny, and not embezzlement.
The prisoner received a sum of money from her master to pay
his taxes and poor-rates, but did not pay the same ; being in-
dicted and convicted of having embezzled the money, on a case
reserved, the judges held the conviction wrong. Elizabeth Smith's
case, Russ. fy Ry. 267, 2 Russell, 213. In a later case the
indictment charged the prisoner with having received and taken
into his possession one shilling on account of his master, and
embezzled the same ; and upon the evidence, it appeared, that
having 2s. 6d. of his master's money, to pay an account of his
master, he only paid one shilling and sixpence, and converted
the other shilling to his own use ; upon which Park J. directed
the jury to acquit the prisoner. Peck's case, 2 Russell, 213.
The prisoner, a clerk in the employment of A. received from
another clerk 3/. of A.'s money, that he might (amongst other
things,) pay for inserting an adveitisement in the Gazette.
The prisoner paid 10s. for the inserlion, and charged 20s. for
the same, fraudulently keeping back the difference. The pri-
soner having been convicted of embezzlement, on a case re-
served, the judges thought the offence not within the statute,
because A. had had possession of the money, by the hands of his
other clerk, and they thereupon held the conviction wrong.
John Murray's case, 1 Moody, C. C. 276, 5 C. Sf P. 145.
As to property coming to the possession of the master,
see also Bazeley's case, 2 Leach, 835, 2 East, P. C. 571.
Where a servant, who was sent by his master to get change for a
5/. note, appropriated the change to his own use, it was held by
the judges, that as the master never had possession of the
change, but by the hands of the prisoner, this was embezzlement
and not larceny. Sullen's case, 1 Moody, C. C. 129.
In the following case, although the money had been in the
possession of ihe master, and was at the time, in construction of
law, still in his possession, the offence was, notwithstanding,
held to be embezzlement. The prosecutors suspecting that the
prisoner, their servant, had embezzled their money, desired a
neighbour to go to their shop and purchase some articles, and
they supplied him with three shillings of their own money,
which they had marked for the purpose. The neighbour went
to the shop, bought the articles, and paid the prisoner for them
with the three shillings, which he embezzled. It was contended
Embezzlement. 345
for the prisoner, that the money was already iu the master's
possession, and that the offence, therefore, was not embezzle-
ment. The prisoner being convicted, on a case reserved, the
judges held the conviction right, on the authority of Bull s case,
(2 Leach, 841, 2.) in which the judges, upon similar
facts, held that a common law indictment could not be
supported, and it seemed to be the opinion of the judges that
the statute did not apply to cases which are larceny at common
law. Headge's case, Russ. & Ry. 160, 2 Leach, 1033. See also
W'hittingham's case, 2 Leach, 912.
Some difficulty formerly arose upon indictments under the
39 Geo. 3. with regard to the money which should be deemed
to be embezzled, where the prisoner had received several sums
on the same day, and had not accounted for some. The pri-
soner received on account of his masters 18/. in one pound
notes ; he immediately entered in the books of his employers
l'2l. only as received, and accounted to them only for that sum.
In the course of the same day he received 104/. on their account,
which he paid over to them that evening with the 12^. It was
urged for the prisoner that this money might have included all
the 18/. one pound notes, and if so, he could not be said to have
embezzled any of them. The prisoner being convicted, on a
case reserved, nine of the judges held the conviction right,
being of opinion, that from the time of making the false entry,
it was an embezzlement. Wood B. doubted whether it could
be considered an embezzlement, and Abbott C. J. thought that
the point should have been'.left to the jury, and that the conviction
was wrong. Halt's case, RUSS.&; Ry. 463, 3 Stark. 67.
The halves of country bank notes may be described as " chat-
tels," within the statute. Mead's case, 4 C. <5f P. 535. But
upon a charge of embezzling so many pounds, it is not sufficient
to prove an embezzlement of the same number of bank notes to
the same amount. Lindsey's case, 3 Chetw. Burn. 189. A bank
post bill cannot be described as a bill of exchange. Moor's cane,
Lewin, C. C. 90.
It was held upon the statute 39 Geo. 8, that the indictment
ought to set out specially some article of the property em-
bezzled, and that the evidence should support that statement.
Therefore, where the indictment charged that the prisoner em-
bezzled the sum of (me pound eleven shillings, and it did not ap-
pear whether the sum was paid by a one pound note and eleven
shillings in silver, or by two notes of one pound each, or by a
two pound note and change given to the prisoner ; on a case re-
served, the judges were of opinion that the indictment ought to
set out specifically, at least, some article of the property embez-
zled, and that the evidence should support the statement, and
they held the conviction wrong. Furneaux's case, Russ. &; Ru.
335. Iyer's case, Id. 402. But now by the 7 & 8 Geo. 4.
c. 29. s. 48, it is sufficient to allege the embezzlement to be of
5
346 Embezzlement.
money, without specifying any particular coin, or valuable
security, and such allegation, so far as it regards the description
of property shall be sustained, if the offender shall be proved to
have embezzled any amount, although the particular species of
coin, or valuable security, of which such amount was composed,
shall not be proved, vide ante, p. 338.
Proof of the embezzlement.'] The fact of embezzlement by
the prisoner must be proved as charged. It is not sufficient to
show a bare non-payment. Thus, where a master gave his
servant money to pay taxes, and the only evidence of embezzle-
ment was, that the collector had never received the money, the
prisoner being convicted of embezzlement, the judges held the
conviction wrong, upon the ground that there was not suffi-
cient evidence of the prisoner having embezzled the money ;
the fact of not having paid the money over to the collector not
being evidence of actual embezzlement, but only negativing the
application of the money in the manner directed. Eliz. Smith's
case, Ritss. $ Ry. 267. The prisoner was clerk to the pro-
prietors of a mail coach, and it was his duty to receive money
for passengers and parcels, to enter the sums in a book, and
to remit the amount weekly to his employers. He was in-
dicted for embezzling some of the monies thus received ; but. it
appeared that he had entered all the sums in the book, and
had made no false entry, but it was imputed to him that he
had not forwarded the sums in question to his employers accord-
ing to his duty ; Vaughan B. said, this is no embezzlement,
it is only a default of payment. If the prisoner regularly
admits the receipt of the money, the mere fact of not paying it
over is not a felony, it is only matter of account. Hodgson's case,
3 C. fy P. 423. So where it appeared by the books of a clerk,
that he had received much more than he had paid away, and
from this the prosecutors wished it to be inferred, that he must
have embezzled some particular note or piece of money ;
Garrow, B. held that this was not enough, and that it was
necessary to prove that some distinct act of embezzlement
had been committed. Hebb's case, 2 Russell, 1242, 1st ed.
In general the act of embezzlement cannot be said to take
place until the party who has received the money refuses to ac-
count, or falsely accounts for it. Where the prisoner received
the money in Shropshire, and told his master in Staffordshire
that he had not received it, the question was, whether he was
properly convicted for the embezzlement in the former county. On
a case reserved, the conviction was held right. Lawrence J.
thought that embezzlement being the offence, there was no evi-
dence of any offence in Shropshire, and that the prisoner was
improperly indicted in that county. But the other judges were
of opinion, that the indictment might be in Shropshire, where
the prisoner received the money, as well as in Staffordshire,
Embezzlement. 347
where he embezzled it, by not accounting for it to his master ;
that the statute having made receiving money and embezzling it
a larceny, made the offence a felony where the property was
first taken, and that the offender might therefore be indicted in
that or in any other county into which he carried the property.
Hobson's case, 1 East, P. C. Add. xxiv. Russ. ty Ry. 56. The
doctrine, that the not accounting is the evidence of the embez-
zlement, was also laid down in the following case. The pri-
soner was indicted for embezzling money in Middlesex. It
appeared that he received the money in Surrey, and returning
into Middlesex, denied, to his master, the receipt of the money.
It was objected that he ought to have been indicted in Surrey,
and the point was reserved. Lord Alvanley delivering the
opinion of the judges, after referring to the last case, said,
" The receipt of the money was perfectly legal, and there was
no evidence that he ever came to the determination of appropri-
ating the money until he had returned into the county of Mid-
dlesex. In cases of this sort, the nature of the thing embezzled
ought not to be laid out of the question. The receipt of money
is not like the receipt of an individual thing, where the receipt
may be attended with circumstances which plainly indicate an
intention to steal, by showing an intention in the receiver to ap-
propriate the thing to his own use. But with respect to money,
it is not necessary that the servant should deliver over to his
master the identical pieces of money which he receives, if he
should have lawful occasion to pass them away. In such a
case as this, therefore, even if there had been evidence of the
prisoner having spent the money on the other side of Black-
friars-bridge, it would not necessarily confine the trial of the
offence to the county of Surrey. But here there is no evidence
of any act to bring the prisoner within the statute, until he is
called upnn 6y the master to account. When so called upon, he
denied that he had ever received it. That was the first act
from which the jury could with certainty say, that the prisoner
intended to embezzle the money. There was no evidence of the
prisoner having done any act to embezzle in the county of
Surrey, nor could the offence be complete, nor the prisoner be
guilty within the statute, until he refused to account to his mas-
ter." William Taylor's case, 3 Bos. & Pul. 596, 2 Leach, 974,
Rnss. fy Ry. 63. So in Hall's case, Russ. $ Ry. 463, ante, p.
345, the judges were of opinion, that from the time of making
the false rntru, it was an embezzlement.
Before the latestatute, evidence of one act of embezzlement only
could be given upon one indictment, and thus the full case upon
which the master had determined to prosecute, was frequently
prevented from being brought forward. See 2 Russell, 208.
To remedy this inconvenience, the new statute enacts, that the
prosecutor may include in the indictment any number of dis-
tinct acts of embezzlement, not exceeding three, committed
348 Embezzlement.
against himself, within the space of six months from the first to
the last of such acts.
Where the indictment only contains one count for one act
of embezzlement, and it appears in evidence that the prisoner
received money in different sums on different days, the prose-
cutor must elect one sum and one day upon which to proceed.
Williams' case, 6 C. $ P. 626.
Particulars of the embezzlement.] Where a party is charged
with embezzlement, the judge before whom the indictment is
found, will order the prosecutor to furnish the prisoner with a
particular of the charges, upon the prisoner making an affidavit
that he is unacquainted with the charges, and that he has ap-
plied to the prosecutor for a particular, which has been refused.
Bootyman's case, 5 C. 3f P. 300. Where three acts of em-
bezzlement were stated in the indictment, the prisoner moved,
upon affidavit, for an order directing the prosecutor to furnish a
particular of the charges. Notice of the motion had been
given. Vaughan B., to whom the application was made, said,
" I think you ought to apply to the other side to furnish you
with a particular, and if they refuse, I will grant an order.
The clause of the 7 & 8 G. 4. c. 29, respecting the framing of
indictments fo'r embezzlement, causes gieat hardship to pri-
soners. What information does the indictment convey to such
a man as this? As a clerk in a coach-office, he must have re-
ceived money from many hundred persons. I should, therefore,
recommend the prisoner's attorney to apply to the prosecutor
for a particular ; and I think that the prosecutor ought at least
to give the names of the persons from whom the sums of money
are alleged to have been received, and if the necessary informa-
tion be refused, I will, on an affidavit of that fact, grant an
order, and put off the trial." Hodgson's case, 3 C. fy P. 422.
See also 1 Chitty Rep. 698.
BY PERSONS EMPLOYED IN THE PUBLIC SERVICE.
By 2 W. 4. c. 4. s. 1 . (repealing so much of the 50 G. 3. c. 59,
as relates to embezzlement by persons to whom any money or se-
curities for money shall be issued for the public service) it is enact-
ed, that if any person employed in thepublic service of his Majesty,
and intrusted by virtue of such employment with the receipt, cus-
tody, management, or control of any chattel, money, or valuable
security, shall embezzle the same, or any part thereof, or in any
manner fraudulently apply or dispose of the same, or any part
thereof to his own use or benefit, or for any purpose whatsoever,
except for the public service, every such offender shall be deemed
Embezzlement. 349
to have stolen the same, and shall in England and Ireland be
deemed guilty of felony, and in Scotland of a high crime and
offence, and on being thereof convicted in due form of law, shall
be liable, at the discretion of the court, to be transported be-
yond the seas for any term not exceeding fourteen years, nor
less than seven years, or to be imprisoned, with or without hard
labour, as to the court shall seem meet, for any term not ex-
ceeding three years.
By s. 2. it is enacted, that every tally, order, or other secu-
rity 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 to any share or interest in
any fund of any body corporate, company, or society, or to any
deposit in any savings-bank ; and every debenture, deed, bond,
bill, note, warrant, order, or other security whatsoever, for
money or for payment of money, whether of this kingdom or of
any foreign state ; and every warrant or order for the delivery or
transfer of any goods or valuable thing, shall, throughout this
act, be deemed, for every purpose, to be included under and de-
noted by the words ' valuable security ;' and that if any person so
employed and intrusted as aforesaid shall embezzle, or fraudu-
lently apply, or dispose of any such valuable security as afore-
said, he shall be deemed to have stolen the same, within the in-
tent and meaning of this act, and shall be punishable thereby in
the same manner as if he had stolen any chattel of like value
with the share, interest, or deposit, to which such security may
relate, or with the money due on such security, or secured there-
by and remaining unsatisfied, or with the value of the goods or
other valuable thing mentioned in such security.
By s. 3. it is enacted, that it shall be lawful to charge in
the indictment to be preferred against any offender under this
act, and to proceed against him for any number of distinct acts
of embezzlement, or of fraudulent application or disposition, as
aforesaid, not exceeding three, which may have been committed
by him within the space of six calendar months from the first
to the last of such acts ; and in every such indictment, where
the offence shall relate to any money or any valuable security,
it shall be sufficient to allege the embezzlement, or fraudulent
application or disposition to be of money, without specifying
any particular coin or valuable security ; and such allegation,
so far as it regards the description of the property, shall be sus-
tained, if the offender shall be proved to have embezzled any
amount, although the particular species of coin or valuable secu-
rity, of which such amount wascomposed, shall not be proved,
or if he shall be proved to have embezzled any piece of coin or
any valuable security, cr any portion of the value thereof, al-
though such piece of coin or valuable security may have been
350 Embezzlement.
delivered to him, in order that some part of the value thereof
should be returned to the party delivering the same, and although
such part shall have been returned accordingly.
By s. 4. it is enacted, that in every such case of embezzle-
ment, or fraudulent application or disposition, as aforesaid, of
any chattel, money, or valuable security, it shall be lawful, in
the order of committal by the justice of the peace, before whom
.the offender shall be charged, and in the indictment to be pre-
ferred against such offender, to lay the property of any such
chattel, money, or valuable security, as aforesaid, in the king's
majesty.
BY OFFICERS AND SERVANTS OF THE BANK OF ENGLAND.
By 15 Geo. 2. c. 13. s. 12, it is enacted, that if any officer or
servant of the said company, being intrusted with any note, bill,
dividend warrant, bond, deed, or any security, money, or other
effects belonging to the said company, or having any bill, divi-
dend warrant, bond, deed, or any security or effects of any other
person or persons, lodged or deposited with the said company, or
with him as an officer or servant of the said company, shall se-
crete, embezzle, or run away with, any such note, bill, dividend
warrant, bond, deed, security, money, or effects, or any part of
them, every officer or servant so offending, and being thereof con-
victed in due form of law, shall be deemed guilty of felony, and
shall suffer death as a felon, without benefit of clergy.
Provisions similar to the above are contained in the 35 G. 3.
c. 66. s. 6. and 37 G. 3. c. 46. s. 4. The 24 G. 2. c. 11. also
contains a clause (s. 3.) to the same effect, with respect to of-
ficers and servants of the South Sea Company.
Upon a prosecution under the 15 G. 2. c. 13. the prosecutor
must prove, 1st, that the prisoner was an officer or servant of the
Bank of England, intrusted with a note, &c. belonging to the
Bank, or having a bill, &c. deposited with the Bank, or with
him, and 2d, that he embezzled, or ran away with the same.
Proof of being an officer, &c. intrusted, $fc.] It is not suffi-
cient, in order to bring a party within the statute, that he should
be an officer of the Bank, and as such have access to the docu-
ment in question. It must appear also that he was intrusted
with it. A Bank clerk, employed to post into the ledger, and
read from the cash-book, bank-notes in value from 100/. to
1000/., and who, in the course of that occupation, had, with
other clerks, access to a file upon which paid notes of every de-
scription were filed, took from the file a paid bank-note for 50/.
Being indicted for this, under the stat. 15 G. 2. c. 13. s. 12, it
was contended that he was not intrusted with this note, within
Embezzlement. 351
the statute, the only notes with which he could be said to be in-
trusted being those between 100/. and 1000/. Having been
found guilty, the judges held the conviction wrong, on the
ground that it did not appear that he was intrusted with the can-
celled note, though he had access to it. Bakewell's case, Russ. f
Ry. 35.
Proof of the bills, #c.] Where the prisoner was charged
with embezzling " certain bills, commonly called Exchequer-
bills," and it appeared that the bills had been signed by a per-
son not legally authorised to sign them, it was held that the
prisoner could not be convicted. Aslett's (first) case, 2 Leach,
954. The prisoner was again indicted under the same statute,
for embezzling " certain effects" of the Bank, and being con-
victed, the judges, on a case reserved, were of opinion that these
bills or papers were effects within the statute ; for they were
issued under the authority of government as valid bills, and the
holder had a claim on the justice of government for payment.
Aslett's (second) case, Russ. # %. 67, 2 Leach, 958, 1 A T . R. 1.
In this case, the judges likewise held that the stat. 39 G. 3.
c. 85, had not repealed any part of the 15 G. 2. c. 13.
BY BANKERS, AGENTS, OR FACTORS.
The offence of embezzlement by bankers and other persons,
intrusted with money, was provided against by the statute 52
G. 3. c. 63 ; but that statute is now repealed by the 7 & 8 G.
4. c. 27 ; and its provisions are in substance re-enacted by the
7 & 8 G. 4. c. 29. s. 49, which enacts, that if any money, or
security for the payment of money, shall be intrusted to any
banker, merchant, broker, attorney, or other agent, with any
direction in writing to apply such money, or any part thereof, or
the proceeds, or any part of the proceeds of such security, for
any purpose specified in such direction, and he shall, in viola-
tion of good faith, and contrary to the purpose so. specified, in
any wise convert to his own use or benefit, such money, secu-
rity, or proceeds, or any part thereof respectively, every such
offender shall be guilty of a misdemeanor, and being convicted
thereof, shall be liable, at the discretion of the court, to be trans-
ported beyond the seas for any term not exceeding fourteen
years, nor less than seven years, or to suffer such other punish-
ment by fine or imprisonment, or by both, as the court shall
award ; and if any chattel or valuable security, or any power
of attorney for the sale or transfer of 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, shall be intrusted to
S52 Embezzlement.
any banker, merchant, broker, attorney, or other agent, for safe
custody, or for any special purpose, without any authority to
sell, negotiate, transfer, or pledge, and he shall, in violation of
good faith, and contrary to the object or purpose for which such
chattel, security, or power of attorney shall have been intrusted
to him, sell, negotiate, transfer, pledge, or in any manner con-
vert to his own use or benefit such chattel or security, or the
proceeds of the same or any part thereof, or the share or interest
in the stock or fund to which such power of attorney shall
relate, or any part thereof, every such offender shall be guilty
of a misdemeanor, and being convicted thereof, shall be liable,
at the discretion of the court, to any of the punishments which
the court may award, as therein-before last mentioned, [trans-
portation for not more than seven years, or imprisonment for not
more than three years.]
The above section does not touch the case of trustees and
mortgagees, who are expressly excluded from its operation by
the succeeding section (50) ; by which it is provided and en-
acted, that nothing herein-before contained relating to agents
shall affect any trustee, in or under any instrument whatever, or
any mortgagee of any property, real or personal, in respect of
any act done by such trustee or mortgagee, in relation to the
property comprised in or affected by any such trust or mortgage,
nor shall lestrain any banker, merchant, broker, attorney, or
other agent, from receiving any money which shall be or be-
come actually due and payable upon or by virtue of any valu-
able security, according to the tenor and effect thereof, in such
manner as he might have done if this act had not been passed,
nor from selling, transferring, or otherwise disposing of any se-
curities or effects in his possession, upon which he shall have
any lien, claim, or demand, entitling him by law so to do,
unless such sale, transfer, or other disposal, shall extend to a
greater number or part of such securities or effects than shall be
requisite for satisfying such lien, claim, or demand.
The 51st section of the same statute relates to embezzlements
by factors or agents intrusted for the purpose of sale with any
goods, &c. It enacts, that if any factor or agent intrusted,
for the purpose of sale, with any goods or merchandise, or in-
trusted with any bill of lading, warehouse- keeper's or wharf-
inger's certificate, or warrant or order for delivery of goods or
merchandize, shall, for his own benefit and in violation of good
faith, deposit or pledge any such goods or merchandize, or any
of the said documents, as a security for any money or negotiable
instiument borrowed or received by such factor or agent, at or
before the time of making such deposit or pledge, or intended to
be thereafter borrowed or received, every such offender shall 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 any term not exceeding fourteen years, nor less than
Embezzlement. 353
seven years, or to suffer such other punishment by fine or im-
prisonment, or by both, as the court shall award ; but no such
factor or agent shall be liable to any prosecution for depositing
or pledging any such goods or merchandize, or any of the said
documents, in case the same shall not be made a security for or
subject to the payment of any greater sum of money than the
amount which, at the time of such deposit or pledge, was justly
due and owing to such factor or agent from his principal, toge-
ther with the amount of any bill or bills of exchange drawn by
or on account of such principal, and accepted by such factor or
agent.
The above provisions are not to extend to deprive parties of
any remedies which they possessed before their enactment,
according to the 52d section of the same statute, by which it is
provided and enacted, that nothing in this act contained, nor
any proceeding, conviction, or judgment to be had or taken
thereupon, against any banker, merchant, broker, factor,
attorney, or other agent as aforesaid, shall prevent, lessen, or
impeach any remedy at law or in equity which any party
aggrieved by any such offence might or would have had if this
act had not been passed ; but nevertheless the conviction of any
such offender shall not be received in evidence in any action at
law or suit in equity against him ; and no banker, merchant,
broker, factor, attorney, or other agent as aforesaid, shall be
liable to be convicted by any evidence whatever as an offender
against this act, in respect of any act done by him, if he shall
at any time previously to his being indicted for such offence
have disclosed such act, on oath, in consequence of any com-
pulsory process of any court of law or equity in any action,
suit, or proceeding which shall have been bondjide instituted
by any party aggrieved, or if he shall have disclosed the same
in any examination or deposition before any commissioners of
bankrupt.
Upon a prosecution against a banker or agent under this
statute, the prosecutor must prove 1, the defendant's cha-
racter of banker or agent; 2, the intrusting him with the
money, or security for money ; 3, the directions in writing
for the application of the same ; and 4, the conversion of the
same, in violation of good faith, and contrary to the purpose
specified.
The purpose specified is matter of description, and must
therefore be proved as laid. Thus an allegation that the pro-
secutor directed the defendant to invest the proceeds of certain
valuable securities in the funds, is not proved by evidence of a
direction to invest them in the funds, in the event of an unex-
pected accident occurring. \Vh ite's case, 4 C. fy P. 46.
364 Embezzlement,
EMBEZZLEMENTS OF MINOR IMPORTANCE.
Statutory provisions are made in cases of various embezzle-
ments, a few of which it will be sufficient to notice briefly
in this place.
Embezzling naval or military stores.] By stat. 4 Geo. 4.
c. 53. every person who shall be lawfully convicted of stealing
or embezzling his Majesty's ammunition, sails, cordage, or
naval or military stores, or of procuring, counselling, aiding,
or abetting any such offender, shall be liable, at the discretion
of the Court, to be transported beyond the seas for life, or for
any term not less than seven years, or to be imprisoned and
kept to hard labour, in the common gaol or House of Cor-
rection, for any term not exceeding seven years. By the
55 G. 3. c. 127. persons employed in the care of military
stores embezzling the same, may be tried by a court-martial and
transported.
Embezzling warehoused goods.] By stat. 6 Geo 4. c. 112.
it is enacted, that if it shall at any time happen that any
embezzlement, waste, spoil, or destruction shall be made, of or
in any goods or merchandize, which shall be warehoused in
warehouses under the authority of that act, by or through any
wilful misconduct of any officer or officers of customs or excise,
such officer or officers shall be guilty of a misdemeanor, and
shall, upon conviction, suffer such punishment as may be
inflicted by law in cases of misdemeanor.
Embezzlement by pensioners, 5fc. in Greenwich hospital.]
The embezzlement by any pensioner or nurse of Greenwich
hospital, of any clothes, &c. belonging to the hospital, is made
punishable, by the 54 Geo. 3. c. 110. s. 1, by six months'
imprisonment in the gaol of the town, &c. in which such pen-
sioner, &c. shall be apprehended.
S55
ESCAPE.
Proof of escape by the party himself
Proof of the criminal custody
Proof of escape suffered by an officer
Proof of arrest
Must be justifiable
Proof of voluntary escape
Retaking
Proof of negligent escape
Retaking
Proof of escape from the custody of a private person
355
355
356
356
356
357
357
357
358
358
An escape by a person in custody on a criminal charge may
be either with or without force, or with or without the consent
of the officer or other person who has him in custody.
Proof of escape by the party himself.'] All persons are bound
to submit themselves to the judgment of law, and therefore, if
any one, being in custody, frees himself from it by any artifice,
he is guilty of a high contempt, punishable by fine and impri-
sonment. 2 Hawk. P. C. c. 17. s. 5. And if by the consent
or negligence of the gaoler, the prison doors are opened, and
the prisoner escapes, without making use of any force or
violence, he is guilty of a misdemeanor. Id. c. 18. s. 9.
1 Hale, P. C. 611. 1 Russell, 367.
Proof of escape party himself proof of the criminal custody
venue.] It must be proved that the party was in custody
upon a criminal charge, otherwise the escape is not a criminal
offence. Before the passing of the 4 G. 4. c. 64. it was decided
that a certificate of the prisoner having been convicted, granted
by the officer of the court, was not evidence. R. v. Smith,
1 Russell, 368. But now, by the 44th sect, of the above
statute, it is enacted, that any offender escaping, breaking
prison, or being rescued therefrom, may be tried either in the
'urisdiction where the offence was committed, or in that where
16 or she shall be apprehended and retaken ; and in case of
any prosecution for any such escape, attempt to escape, breach
of prison, or rescue, either against the offender escaping or
i;
356 Escape.
attempting to escape, or having broken prison, or having been
rescued, or against any other person or persons concerned
therein, or aiding, abetting, or assisting the same, a certificate
given by the clerk of assize, or other clerk of the court in which
such offender shall have been convicted, shall, together with
due proof of the identity of the person, be sufficient evidence to
the court and jury of the nature and fact of the conviction,
and of the species and period of confinement to which such
person was sentenced.
Proof of escape suffered by an officer. ~\ In order to render a
person suffering an escape liable, as an officer, it must appear
that he was a known officer of the law. Thus where the con-
stable of the Tower committed a prisoner to the house of a
warder of the Tower, the latter was held not to be such an
officer as the law took notice of, and that he could not there-
fore be guilty of a negligent escape. 1 Chetw. Burn, Escape,
930. But whoever de facto occupies the office of gaoler, is
liable to answer for such an escape, and it is no way material
whether his title to such an office be legal or not. Hawk.
P. C. ft. 2. c. 19. s.28.
It is said by Hawkins to be the better opinion that the
sheiiff is as much liable to answer for an escape suffered by his
bailiff, as if he had actually suffered it himself; and that either
the sheriff or the bailiff may be charged for that escape. Hawk.
P. C. &.2. c. 19. s. 28. 1 Hale, P. C. 597. 1 Russell, 372. But
this is opposed to the authority of Lord Holt, who says, that
the sheriff is not answerable criminally for the acts of his bailiff.
Fell's case, 1 Salk. 272, 1 Lord Raym. 424.
Proof of escape suffered by an qfficei proof of arrest.] In
case of a prosecution against an officer, either for a voluntary
or negligent escape of a prisoner in custody for a criminal
offence, it must appear that there was an actual arrest of the
offender. Therefore where an officer having a warrant to
arrest a man, sees him in a house and challenges him to
be his prisoner, but never actually has him in his custody,
and the party gets free, the officer cannot be charged with
the escape. 2 Hawk. P. C. c. 19. s. 1. See Simpson v. Hill,
1 Esp. 431.
Proof of arrest must be justifiable.'] The arrest must be
justifiable in order to render the escape criminal ; and it is laid
down as a good rule, that whenever an imprisonment is so far
irregular as that it is no offence in the prisoner to break from it
by force, it will be no offence in the officer to suffer him to
escape. 2 Hawk. P. C. c. 29. s. 2. A lawful imprisonment
must also be continuing at the time of the escape ; and there-
fore, if an officer suffers a criminal who was acquitted, and
Escape. 357
detained for his fees, to escape, it was not punishable. Id.
s. 3, 4. Yet, if a person convicted of a crime be condemned
to imprisonment for a certain time, and also till he pay his
fees, and he escape after such time is elapsed, without paying
them, perhaps such escape may be criminal, because it
was part of the punishment that the imprisonment should
continue till the fees were paid. But it seems that this is to
be intended where the fees are due to others as well as to
the gaoler. Id. s. 4.
Proof of voluntary escape.] It is not every act of releasing
a prisoner that will render an officer subject to the penalties of
voluntarily permitting an escape. The better opinion appears
to be that the act must be done malo animo, with an intent to
defeat the progress of justice. Thus it is said by Hawkins,
that it seems agreed that a person who has power to bail is
guilty only of a negligent escape, by bailing one who is not
bailable ; neither, he adds, is there any authority to support
the opinion that the bailing of one who is not bailable, by a
person who has no power to bail, must necessarily be esteemed
a voluntary escape. And there are cases in which the officer
has knowingly given his prisoner more liberty than he ought,
as to go out of prison on promise to return ; and yet this seems
to have been adjudged to be only a negligent escape. The
judgment to be made, adds Hawkins, of all offences of this
kind must depend on the circumstances of the case ; as the
heinousness of the crime with which the prisoner is charged,
the notoriety of his guilt, the improbability of his returning,
and the intention and motives of the officer. Hawk. P. C. b. 2.
c. 19. s. 10. 1 Russell, 370.
Proof of voluntary escape retaking.'] It is laid down in
some books, that after a voluntary escape the officer cannot
retake the prisoner, by force of his former warrant, for it was by
the officer's consent. But if the prisoner return, and put him-
self again under the custody of the officer, the latter may
lawfully detain him, and bring him before a justice in pur-
suance of the warrant. 1 Burn, 930. title "Escape," citing
Dalt. c. 169. 2 Hawk. c. 13. s. 9. 1 Russell, 372. But
Hawkins observes, that the purport of the authorities seems to
be no more than this, that a gaoler who has been fined for
such an escape shall not avoid the judgment by retaking the
prisoner ; and he adds, " I do not see how it can be col-
lected from hence that he cannot justify the retaking him."
Hawk. P. C. 6.2. c. 19. s. 12.
Proof of negligent escape.] A negligent escape is where the
party arrested or imprisoned escapes against the will of him
that arrested or imprisoned him, and is not freshly pursued and
358 Escape.
taken before he is lost sight of. Dalt. c. 159. 1 Chetw.
Burn, 930, " Escape." Thus, if a thief suddenly, and
without the assent of the constable, hang or drown himself,
this is a negligent escape. Id. It is said by Lord Hale, that if a
prisoner for felony breaks the gaol, this seems to be a negligent
escape, because there wanted either that due strength in the gaol
that should have secured him, or that due vigilance in the gaoler
or his officers that should have prevented it. 1 Hate, 600. But
upon this passage it has been remarked, that it may be sub-
mitted that it would be competent to a person charged with a
negligent escape, under such circumstances, to show that all
due vigilance was used, and that the gaol w.as so constructed
as to have been considered by persons of competent judgment
a place of perfect security. 1 Russell, 371.
Proof of negligent escape retaking.] Where a prisoner
escapes through the negligence of the gaoler, but the latter
makes such fresh pursuit as not to lose sight of him until he is
retaken, this is said not to be an escape in law ; but if he loses
sight of him, and afterwards retakes him, the gaoler is liable
to be punished criminally. It is scarcely necessary to add,
that the sheriff or gaoler, though he had no other means of
retaking his prisoner, would not be justified in killing him
in such a pursuit. Hawk. P. C. b. 2. c. 19. s. 12, 13.
1 Hale, P. C. 602.
Proof of escape from the custody of a private person.] The
evidence upon an indictment against a private person, for the
escape of a prisoner from his custody, will in general be the
same as on an indictment against an officer. A private person
may be guilty either of a voluntary or of a negligent escape,
where he has another lawfully in his custody. Even where he
arrests merely on suspicion of felony, (in which case the arrest
is only justifiable if a felony be proved,) yet he is punishable
if he suffer the prisoner to escape. Hawk. P. C. b. 2.
c. 20. s. 2. And if, in such case, he deliver over the prisoner
to another private person, who permits the escape, both, it is
said, are answerable. Ibid. But if he deliver over his prisoner
to the proper officer, as the sheriff or his bailiff, or a constable,
from whose custody there is an escape, he is not liable. Id. s. 3.
1 Russell, 377.
359
FALSE PERSONATION.
Offence at common law . . . 359
Offence by statute .... 359
Personating bail, acknowledging recovery, fyc. . . 359
False personation of soldiers and seamen . . 360
Offence at common law.'] The offence of falsely personating
another for the purpose of fraud, is a misdemeanor at common
law, and punishable as such. 2 East, P. C. 1010. 2 Russell,
479. 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 personation. In one case, where the
indictment merely charged that the prisoner 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 defendant to demur. Dupee's case, 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 endeavour to commit a fraud by means of falsely
personating another, for that it was an attempt to pollute
public justice. Ibid.
Offence by statute.] In a variety of statutes against forgery,
provisions are likewise contained against false personation,
which in general is made felony. Thus personating the owner
of stock, &c. is made felony, by 1 W. 4. c. 66. s. 7. Vide
post, title " Forgery."
Personating bail acknowledging recovery, 8fc.~] By statute
1 W. 4. c. 66. s. 11. if any person shall, before any court,
judge, or other person lawfully authorised to take any recog-
nizance or bail, acknowledge any recognizance or bail in the
name of any other person not privy or consenting to the same,
whether such recognizance or bail in either case be or be not
filed ; or if any person shall, in the name of any other person
not privy or consenting to the same, acknowledge any fine,
recovery, cognovit actionem, or judgment, or any deed to be
360 False Personation.
enrolled, every such offender shall be guilty of felony, and
being convicted thereof, shall be liable, at the discretion of the
court, to be transported beyond the seas for life, or for any
term not less than seven years, or to be imprisoned for any
term not exceeding four years nor less than two years.
False personation of sr.tdiers and seamen.] The false per-
sonation of soldiers and seamen was made felony by several
statutes, the provisions of which are now re-enacted in the
5 Geo. 4. c. 107. by the fifth section of which statute, reciting
that, whereas it is expedient that the crime of personating
and falsely assuming the name and character of any person
entitled to prize money or pension, for the purpose of fraudu-
lently receiving the same, should no longer be punished with
death, it is enacted, that, from and after the passing of that
act, whosoever shall willingly and knowingly personate or
falsely assume the name, or character of any officer, soldier,
seaman, marine, or other person entitled, or supposed to be
entitled to any wages, pay, pension, prize money, or other
allowance of money for service done in h\s Majesty's army or
navy, or shall personate or falsely assume the name or character
of the executor or administrator, wife, relation, or creditor of
any such officer or soldier, seaman, marine, or other person,
in order fraudulently to receive any wages, pay, pension, prize
money, or other allowances of money due, or supposed to be
due, for or on account of the services of any such officer or
soldier, seaman or marine, or other person, every such person,
being thereof convicted, shall be liable, at the discretion of the
court, to be transported beyond seas for life, or for any term of
years not less than seven, or to be imprisoned only, or imprisoned
and kept to hard labour in the common gaol or house of correction ,
for any term not exceeding seven years. (See also 10G.4.C. 26.)
The statute 5 Geo. 4. as well as the former statutes makes
use of the words "some officer, &c. entitled, or supposed to be
entitled," &c. Upon a prosecution, therefore, for such false
personation, there must be some evidence to show that there
was some person of the name and character assumed, who was
either entitled, or might, primd facie, at least, be supposed to
be entitled to the wages attempted to be acquired. Brown's
ease, 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. Tannet's case, Russ. fy Ry. 351.
False Pretences. 361
It has been held that the offence is the same, though the
seaman personated was dead at the time of the offence committed.
Martin's case, Russ.fy Ky. 324. Cramp's case, Id. 327.
Under the statute 57 Geo. 3. c. 127. it has been held,
that all persons present, aiding and abetting a person in
personating a seaman, are principals in the offence. Potts'*
case, Russ. <5f Ry. 353.
FALSE PRETENCES.
Statutory provision . . . 361
What shall amount to a false pretence '. . 362
A'ot necessary that words should be used . 366
Goods obtained upon an instrument void in law , 366
Proof of the false pretences .... 367
Proof of the falsity of the pretence . , . 368
Proof of the intent to cheat or defraud . . 369
Proof of the obtaining some chattel, money, or valuable
security ...... 369
Proof of the ownership of the property . . . 370
Proof of alt being principals . . .371
Defendant not to be acquitted, where the offence appears to
be larceny .... 371
Restitution of the property obtained . , . 371
Statutory provision.] By the 7 & 8 G. 4. c. 29. s. 53, recit-
ing, that a failure of justice frequently arises from the subtle
distinction between larceny and fraud, for remedy thereof it is
enacted, that if any person shall, by any false pretence, obtain
from any other person any chattel, money, or valuable security,
with intent to cheat or defraud any person of the same, every
such offender shall be guilty of a misdemeanor, and being con-
victed thereof, shall be liable, at the discretion of the court, to
be transported beyond the seas for the term of seven years, or to
suffer such other punishment by fine or imprisonment, or by
both, as the court shall award. Provided always, that if, upon
the trial of any person indicted for such misdemeanor, it shall
be pioved that he obtained the property in question in any such
manner as to amount in law to larceny, he shall not, by reason
362 False Pretences.
thereof, be entitled to be acquitted of such misdemeanor, and no
such indictment shall be removable by certioran ; and no person
tried for such misdemeanor shall be liable to be afterwards pro-
secuted for larceny upon the same facts.
As many of the, cases hereafter cited, were determined upon
the repealed statute 30 G.2. c. 24, it will be useful to give the
words of that act, which, after reciting that evil-disposed persons
had, by various subtle stratagems, &c., fraudulently obtained
various sums of money, goods, &c. to the great injury of indus-
trious families, and to the manifest injury of trade and credit,
enacted, that all persons who knowingly and designedly, by
false pretence or pretences, should obtain from any person or
persons money, goods, wares, or merchandizes, wilh intent to
cheat or defraud any person or persons of the same, should be
deemed offenders against law and the public peace, and should
be punished, &c.
The ingredients of the offence are the obtaining money, &c.
by false pretences, and with an intent to defraud. Barely ask-
ing another for a sum of money is not sufficient, and the intent
is necessary to constitute the crime. If the intent be made out,
and the false pretence used to effect it, it brings the case within
the statute. Per Butler J. Young's case, 3 T. R. 98.
Where goods are obtained under a false representation, but
that representation is in writing-, and amounts to a warrant or
order for the delivery of goods, within the stat. 1 W. 4. c. 66. s.
10, it is a forgery, and the offender must be indicted for it as
such, and cannot be convicted of obtaining the goods under false
pretences. Thus where, upon an indictment for obtaining goods
by false pretences, it appeared that the prisoner had procured
them under the following forged order :
" Mr. B. Please to let the bearer have, for J. R., four yards
of Irish linen. J. R."
Taunton J. directed the prisoner to be acquitted, saying that
the offence was a felony, and not a misdemeanor. Evans's case,
5 C. fy P. 553. Sed qnere as to this being a forgery. Vide
post, title " Forgery," p. 417.
The cases illustrating the distinction between false pretences
and larceny, will be found under the latter head.
What shall amount to a false pretence.] " The term 'false
pretences/ says Mr. East, (2 P. C. 828.) is of great latitude,
and was used, as Ashurst J. remarked, in Young's case, (supra,)
to protect the weaker part of mankind, because all were not
equally prudent ; it seems difficult, therefore, to restrain the in-
terpretation of it to such false pretences only, against which
ordinary prudence cannot be supposed sufficient to guard. But
still it may be a question, whether the statute extends to every
false pretence, either absurd or irrational on the face of it, or
such as the party has, at the very time, the means of detecting
False Pretences. 363
at hand ; or whether the words, which are general, shall be
considered co-extensively with the cheat actually effected by
the false pretences used. These may, perhaps, be matters pro-
per for the consideration of the jury , with the advice of the court."
In the following case, however, the judges appear to have been
of opinion, that the want of common prudence and caution on
the part of the prosecutor was an answer to the indictment.
The prisoner was indicted for obtaining meat from the prosecu-
tor, who was a butcher, under pretence that he would pay for
the same on delivery, and would send the money back by the
servant of the prosecutor. The jury found a verdict of guilty,
and that, at the time the prisoner applied for the meat, and pro-
mised to send back the money, he did not intend to return the
money, but by that means to obtain the meat and cheat the
prosecutor. On a case reserved for the opinion of the judges,
they held the conviction wrong, and that it was not a pretence
within the meaning of the statute. It was merely a promise for \\\
future conduct, and common prudence and caution would have
prevented any injury arising from the breach of it. Goodhall's
case, Kuss. 5f Ky. 461. But it is no objection that the false pre-
tences merely relate to a future event. Thus where the lour
prisoners came to the prosecutor, representing that they had
betted that a person named Lewis should walk a certain distance
within a certain time, a.nd that they should probably win, and
thus obtained money from the prosecutor towards the bet, it was
objected lhat, although the representation of a thing past or pre-
sent, against which caution cannot guard, may be within the
statute (30 G. 3. c. 24.) 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 re-
medy ; the Court of King's Bench, however, were of opinion that
false pretences, referring to future transactions, were equally
within the statute. Young's case, 3 T. R. 98.
Where a person, with intent to' defraud, gives a check upon
a banker with whom he keeps no account, this has been held a
false pretence within the statute 30 G. 2. The prisoner, for the
purpose of defrauding the prosecutor, gave him, in payment for
goods, a check upon a banker with whom he kept no cash and
had no account. He was indicted upon the statute 30 Geo. 2.
and Lara's case (ante, p. 292,) was cited. Per Bayley J. " 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 check upon a banker with whom
the party keeps no cash, and which he knows will not be paid."
Jackson's case, 3 Campb. 370. Henry Jackson's case, York Sum.
Ass. 1830, coram Bayley, J. Matthews' Dig. C. L. 167.
The prisoner was indicted for a felony. It appeared that she
went to a tradesman's house, and said that she came from Mrs.
Cook, a neighbour, who would be much obliged if he would let
B 2
364 False Pretences.
her have half-a-guinea's worth of silver, and that she would
send the half- guinea presently. The prisoner obtained the
silver, and never returned, and this was held no felony. It was
said to be, in truth, a loan of the silver upon the faith that the
amount would be repaid at another time. It might be money
obtained under a false pretence. The same determination has
been made in similar cases at the Old Bailey. Coleman's case,
2 East, P. C. 672.
Although there may have been a previous confidence between
the parties, yet if the particular money or goods in question
were obtained under false pretences, it is an indictable offence
within the statute. The prisoner was indicted under the 30 G.
2, for obtaining money under false pretences. The prosecutors
were clothiers, and the prisoner, a shearman in their service,
and employed as superintendent to keep an account of the per-
sons 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 ad-
vanced 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 authorised to draw money generally on
account, but merely for the sums actually earned by the shear-
men ; and the clerk was not authorised to pay any sums, except
such as he carried in, in his note or account. The prisoner
delivered to the prosecutors' clerk, a note in writing, in this
form, "9 Sept. 1796, 44/. 11s. Oc/.," which was the common
form in which he made out the note. In a book in his hand-
writing, which it was his business to keep, were the names of
several men who had not been employed, who were entered as
having earned different sums of money, and also false accounts
of the work done by those who were employed, so as to make
out the sum of 44/. lls. (W. The prisoner being found guilty,
on a case reserved 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 opi-
nion, but finally, they all agreed, that if the false pretence
created the credit, the case was within the statute. They con-
sidered that the defendant would not have obtained the credit,
but for the false account he had delivered in ; and, theTefore,
that he was properly convicted. The defendant, as was ob-
served 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.
Witchell's case, 2 East, P. C. 830.
The indictment charged, that one Barrow, at K., &c., de-
livered to the prisoner, a common carrier, certain goods to be
carried by him from K. to one Leach, at L., there to be de-
livered, &c. ; that the defendant received the goods under pre-
tence of carrying them, and delivering them, and undertook so
to do, but that intending to cheat Barrow of his money, he
False Pretences. 365
afterwards unlawfully, &c. pretended to Barrow, that he had
carried the goods from K. to L., for the purpose of delivering
them to Leach, and had delivered them to Leach at L., and
that Leach had given him, the defendant, a receipt expressing
the delivery of the goods to him, but that he had lost, or mis-
laid the same, or had left it at home, and that the defendant
thereupon demanded of Barrow 16s. for the carriage of the said
goods, by means of which false pretences he obtained the
money, &c. On a writ of error after conviction, the judgment
was affirmed. Airey's case, 2 East, P. C. 831, 2 East, R. 30.
The defendant, Count Villeneuve, applied to Sir T. Brough-
ton, telling him that he was employed by the Duke de Lauzun,
to take some horses from Ireland to London, and that he had
been detained so long by contrary winds, that all his money
was spent ; by which representations Sir T. Broughton was
induced to advance some money to him, after which it turned
out that the defendant never had been employed by the Duke,
and that the whole story was a fiction. The defendant was
convicted. Villeneuie's case, coram Moreton C. J., at Chester,
cited by Buller J. in Young's case, 3 T. R. 101, 103.
It is said by a writer of authority, that a man cannot be
guilty of a forgery, merely by passing himself off as the person
whose real signature appears, though for the purposes of fraud,
and in concert with such real person, for there is no false mak-
ing. But this appears to be a false pretence within the statute
30 Geo. 2. c. 24. 2 East, P. C. 856.
The mere breach of a warranty, or a false assertion at the
time of a bargain, cannot, as it seems, be construed into an
obtaining money under false pretences. The indictment stated,
that the defendant, by falsely pretending to a person named
Varlow, that he was entitled to a reversionary interest in one-
seventh share of a sum of money left by his grandfather, ob-
tained the sum of 29/. 3s. Od., whereas he was not entitled to
any interest in any share, &c. (negativing the pretences.) To
prove the pretences, a deed assigning the defendant's interest in
one-seventh share of the interest to Varlow was put in, and in
this deed was contained the usual covenant for title ; Little-
dale J. observed, that a covenant in a deed could not be taken
to be a false pretence. The prosecutor stated, that the de-
fendant asked him to purchase a seventh part of some money
which he would be entitled to under his grandfather's will, on
the death of one of his relatives, and that he agreed to purchase
it, and got a deed of assignment executed to him, and thereupon
paid the defendant the purchase money. To prove the falsity
of the pretences, a previous assignment by the defendant to a
person named Peck, was put in. After argument, Littledale J.
said, " The doctrine contended for on the part of the prosecutor
would make every breach of warranty, or false assertion, at the time
of a bargain, a transportable offence. Here the party bought the
S66 False Pretences.
property, and took as his security a covenant, that the vendor
had a good title. If he now finds that the vendor had not a good
title, he must resort to the covenant. This is only a ground for
a civil action." Codrington's case, 1 C. ^ P. 661.
What skull amount to not necessary that words should be
used.] The statute 33 Henry 8. c. 1. (now repealed) related
to false pretences, by means of a false seal or token, and under
the general words " false pretence," in the statute 30 Geo. 3.
c. 24, it was held that the offence might be effected by other
means than by words. The prisoner was indicted for unlaw-
fully producing to A. B., &c. at the Nottingham post-office, a
money order for the payment of one pound to one John Storer,
and that he unlawfully pretended to the said A. B. that he was
the person named in such order, with intent, &c., whereas, &c.
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,
was delivered to him. He remained a sufficient time to read
the letter, and then presented the order to A. 13., 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 2dly, that by pre-
senting the order for payment, and signing it at the post-office,
he was guilty of obtaining money by a false pretence within
the statute. Story's case, Ritss. <Sf Ry. 81. See Freeth's case,
Id. 127, 6'. P. stated post.
What shall amount to goods obtained upon an instrument
void in law.] Although the instrument by means of which the
prisoner carries his intent to defraud into effect, may be on the
face of it illegal, and of no value, yet if the prisoner fraudulently
obtains the goods, &c., he may be convicted. The prisoner
was indicted in one count upon the statute 30 Geo. 2. c. 24,
and in another as for an offence at common law. It appeared
in evidence, that the prisoner came to the prosecutor s shop,
and asked for a loaf, which he served to him for five pence, that
the prisoner then asked him for some tobacco, and the prose-
cutor served him with an ounce for three pence. The pri-
soner then threw down a note for ten shillings and sixpence,
upon which the prosecutor said, he had no change, but in cop-
False Pretences. 367
per. The prisoner said copper would do. The prosecutor
then gave him nine shillings and ten pence in copper, which
the prisoner took with the loaf and tobacco, and went away.
The note was forged. The same evening, and the following
morning, the prisoner put off several similar forged notes. The
notes purported to be made by Sparrow, who was a person of
good credit, and whose notes under 20s. were generally cir-
culated in the neighbourhood. It was contended for the pri-
soner, that this was not within the statute, which was confined
to cases of false suggestions, but it appeared to the learned judge,
that the uttering the note as a genuine note was tantamount to
a representation, that it was so. It was also objected that a note
of this sort being void, and prohibited by law, it was no offence
to forge such a note, or to obtain money upon it, when forged,
as the party taking it ought to be upon his guard. The learned
judge, however, left the case to the jury, who found the pri-
soner guilty on both counts, and the case was reserved for the
opinion of the judges. All being present (except Rooke J.)
the majority of them thought that the conviction was right, and
that it was a false pretence, notwithstanding the note, upon the
face of it, would have been good for nothing in point of law, if
it had not been false. Lawrence j. was of a different opinion,
and thought that the shopkeeper was not cheated if he parted
with his goods for a piece of paper, which he must be presumed
in law to know was worth nothing, if true. Freeth's case, Russ.
<5f Ry. 127.
Proof of the false pretences.'] The pretences, which must be
distinctly set out in the indictment, 2 Russ. 309, must be
proved as laid. Where, in the averment of the pretence, it was
stated, " that the defendant pretended that he had paid a cer-
tain 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 ob-
taining money by false pretences, the pretences must be dis-
tinctly set out, and at the trial they must be proved as laid.
An assertion, that money had been paid into the bank, is very
different from an assertion, that it had been paid into the bank
by a particular individual. The defendant must be acquitted."
Plestow's case, 1 Campb. 494. But where the indictment
charged, that the defendant having in his custody a certain
parcel to be delivered, &c. for which he was to charge 6s.,
delivered a ticket for the sum of 9s. IQd. by means, 6cc.,
and it appeared in evidence that the parcel mentioned in
the indictment was a basket of fish, it was objected that this
was a variance, but Lord Ellenborough overruled the objec-
tion, saying, that a basket answered the general descrip-
tion 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,
368 False Pretences.
or other person employed in the porterage, or delivery of boxes,
baskets, packages, parcels, trusses, game, or other things, shall
take any greater sum, &c.) it would have been a fatal variance.
Douglas's case, 1 Campb. 212.
The rule that the false pretences averred in the indictment
roust be proved as laid, is subject to the qualifications that all
the pretences need not be proved, but that a single false pre-
tence, proved as laid, though joined with others, is sufficient to
support the indictment. The defendant was indicted under
the 30 Geo. 2, for obtaining money under pretence of assisting
two seamen to procure a pension, and it was alleged that he
pretended that " two guineas must be sent up to the under
cleiks as fees, which they always expected, and that nothing cmild
be done without it.'' The part of the pretences printed in italics
was not proved, and it was objected that this was a fatal vari-
ance, but the defendant being convicted, the judges held the
conviction right. Hill's case, Russ. <Sf Ky. 190. See also Per-
rott's case, 2 A? . <5f S. 379. Where the false pretences are con-
tained in a letter, and such letter has been lost, the prisoner,
after proof of the loss, may be convicted on parol evidence of
its contents. Chadwick's case, 6 C. if P. 181.
Proof of the falsity of the pretence.] The falsity of the pre-
tence must clearly appear on the prosecutor's evidence, and
must not be left to inference. The prisoner bought from the
prosecutor at Rugeley fair a horse for 12/., and tendered him
in payment notes to that amount on the Oundle bank. On the
prosecutor objecting to receive these notes, the prisoner assured
him they were good notes, and upon this assurance the prose-
cutor parted with the horse. The prisoner was indicted for
obtaining the horse by false pretences, viz . by delivering to the
prosecutor certain papers purporting to be promissory notes, well
knowing them to be of no value, &c. It appeared in evidence,
that these notes had never been presented by the prosecutor
at Oundle, or at Sir J. Esdaile's in London, where they were
made payable. A witness stated, that he recollected 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 bankrupt against
the Oundle bank. The words importing the memorandum of
exhibit had been attempted to be obliterated, but the names of
the commissioners remained on each of them. The jury found
the prisoner guilty, and said, they were 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 pro-
secutor. 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
False Pretences. 369
this would have been an indictable fraud, if the evidence had
been sufficient. Flint's case, Russ. Z?i/. 460. The defendants
were indicted for obtaining money under the false pretence of
their being collectors of the property tax. It appeared in evi-
dence, that they had in fact been appointed collectors by the
commissioners, but that their appointment was informal. This
was held not be a false pretence within the statute, 30 Geo. 2.
c. 24. Dobson's case, 1 East, 218. The defendant was in-
dicted 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. & M.,
whereas it was not a good and available note. The de-
fendant 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
acquitted, because, as it appeared, that the note might ulti-
mately be paid, it could not be said that the defendant was
guilty of a fraud in passing it away. Spencer's case, 3 C. <5f P.
420.
Proof of intent to cheat or defraud.] It must appear that
the defendant obtained the money, &c., with intent to cheat or
defraud some person of the same. Thus, where in an indict-
ment for obtaining money under false pretences, the allegation
of the obtaining the money did not slate that it was with in-
tent, &c., the judges, on the point being reserved for their con-
sideration, were of opinion that the indictment was bad.
Riiihwoith's case, Russ. % Ry. 317, 1 Stark. 396. The
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 to 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 G. 3. c. 24.) the statement made
by the prisoner being rather a false excuse for not working,
than a false pretence to obtain goods. Wakeli7ig's case, Uuss. <k
Ry. 504.
Proof of the obtaining some chattel, money, or valuable secu-
rity.] In order to render it an offence within the statute, the
E 5
370 False Pretences.
property obtained must come within the description of " chattel,
money, or valuable security." An unstamped order for trre
payment of money, which ought to be stamped under 55 G. 3.
c. 184, is not a valuable security within the statute. Yuteis
case, 1 Moody, C. C. 170.
Obtaining credit with a banker by false pretences, and thus
procuring him to pay drafts to third persons, is not an obtaining
money, chattel, or valuable security within the 7 & 8 G. 4.
c. 29. The defendant was indicted for obtaining money under
false pretences. The first count stated the false pretences by
which the defendant procured the prosecutors to cash a check
in favour of one Jacob, and concluded thus, " and obtained
from them the amount of the check to be paid to the said Jacob,
and further advances to him to answer other checks drawn by
him on the prosecutors, viz. &c., with intent," &c. In the se-
cond count it was alleged, that the defendant by means, &c.,
obtained a large sum of money, to wit, &c., from the prosecu-
tors, and also the check mentioned to be paid to the said Jacob,
with intent, &c. It appeared in evidence, that in order to in-
duce the prosecutors, who were the defendant's bankers, to give
him credit, and honour his checks, 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 check to Jacob. The defendant was con-
victed, and on a case reserved for the opinion of the judges, they
were of opinion that the prisoner could not be said to have ob-
tained any specific sum on the bill ; all that was obtained was
credit on account, and they therefore held the conviction wrong.
Wavell's case, 1 Moody, C. C. 224.
Proof of the ownership of the property.] The properly ob-
tained by means of the false pretences, must be proved to be the
property of the party mentioned in the indictment. The pri-
soner was indicted for obtaining the sum of 3s. 4d. of the monies
of the Countess of Ilchester. It appeared in evidence, that the
prisoner brought a basket of fish whicli he delivered to the ser-
vant of the countess, with a false ticket, charging 3s. 4d. too
much for the 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 Ellen-
borough said, that her subsequent allowance did not make the
money paid to the defendant her money at the time. She was
not chargeable for more than was actually due for the carriage,
and it depended upon her whether she should pay the overplus.
The servant, however, afterwards swore that at the time of this
transaction he had in his hands upwards of 9s. lOrf., (the
whole sum charged) the property of his mistress, which Lord
Ellenborough considered sufficient to sustain the averment.
Douglas's case, 1 Cumpb. 212.
Fish. 371
Proof of all being principals.] \\ here several persons were
indicted for obtaining money under false pretences, it was ob-
jected, that although they were all present when the representa-
tion 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 ; butthateach was answerable for himself only,
the pretence conveyed by words being like the crime of perjury, a
separate act ia the person using them ; the Court of King's
Bench, however, held, that as the defendants were all present,
acting a different part in the same transaction, they were guilty
of the imposition jointly. Young's case, 3 7". K. 98.
Defendant not to be acquitted where the offence appears to b
a larceny.] By the 7 & 8 G. 4. c. 29. s. 53, (vide post,)
if it appears on the trial that the defendant obtained the pro-
perty in question, in any such manner as to amount in law to
larceny, he shall not be entitled to be acquitted by reason,
thereof. In all cases, therefore, where it is doubtful whether in
point of law the offence is a 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, Sac., under false pretences, the
prisoner must be acquitted.
Restitution of the property obtained.] The Court had not the
power, formerly, of ordering the restitution of property obtained
by false pretences, the statute 21 Hen. 8. c. 11. extending only
to stolen property. But now by statute 7 & 8 G. 4. c. 28. s. 57,
it is enacted, that in cases of misdemeanors the Court may have
power to award the restilution of the property. See this section,
stated post.
FISH;
TAKING OR DESTROYING FISH.
It will be seen (post, title " Larceny,") that larceny might be
committed at common law of fish in a trunk or net, or as it
seems in any inclosed place, where the owner might take them
at his will. 2 F.ast, 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. Pro-
perty of this kind was protected by various statutes, (4 & 5
W. 3. c. 23. s. 5. 22 & 23 Car. 2. c. 25. s. 7. 9 Geo. 1.
372 Fish.
c. 22. 5 Geo. 3. c. 14,) but those statutes are now repealed by
the 7 & 8 Geo. 4. c. 27, and the substance of them is re-
enacted in the 7 & 8 Geo. 4. c. 29. By s. 34, it is enacted,
that if any person shall unlawfully and wilfully take or destroy
any fish in any water which shall run through, or 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, every such offender shall be guilty of a misdemeanor,
and, being convicted thereof, shall be punished accordingly ;
and if any person shall unlawlully and wilfully take or destroy,
or attempt to take or destroy, any fish in any water not being
such as aforesaid, but which shall be private property, or in
which there shall be any private right of fishery, every such
offender, being convicted thereof before a justice of the peace,
shall forfeit and pay, over and ahove 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 always,
that nothing herein-before contained shall extend to any person
angling in the day-time , but if any person shall by angling in
the day-time unlawfully and wilfully take or destroy, or attempt
to take or destroy 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 herein-before mentioned, it shall be sufficient
to prove that the offence was committed either in the parish,
township, or vill named in the indictment or information, or in
any parish, township, or vill adjoining thereto.
Atiti by section 35, it is enacted, that 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, liis servants, or any per-
son authorised 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
always, that any person angling in the day-tjme, against the
provisions of this act, from whom any implements 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 section 36, it is enacted, that if any person shall
steal any oysters or oyster brood from any oyster bed, laying, or
fishery, being the property of any other person, and sufficiently
Forestalling, Ifc. 373
marked out or known as such, every such offender shall be
deemed euilty of larceny, and, being convicted thereof, shall be
punished accordingly ; and if any person shall unlawfully and
wilfully use any dredge, or any net, instrument, or engine what-
soever, within the limits of any such oyster fishery, for the pur-
pose of taking oysters or oyster brood, although none shall be
actually taken, or shall with any net, instrument, or engine,
drag upon the ground or soil of any such fishery, every such
person shall be guilty of a misdemeanor, &c., and it shall be
sufficient in any indictment or information 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 : pro-
vided always, that nothing therein 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.
FORESTALLING, &c.
The offence of forestalling, with which may likewise be con-
sidered those of engrossing and regrating, is defined to be every
practice or device, by act, conspiracy, words, or news, to enhance
the price of victuals, or other merchandize. 3 Inst. 196, 3 Bac.
Ab. 261, 1 Riiss. 169. All endeavours whatever to enhance
the common price of any merchandize, and all kinds of practice
which have an apparent tendency thereto, whether by spreading
false rumours, or by buying things in a market before the accus-
tomed hour, are offences at common law, and come under the
general notion of forestalling, which includes all kind of offences
of this nature. Hawk. P. C. fc. 1. c. 80. s. 1. These offences
were rendered punishable by several old statutes, but those acts
were repealed by the 12 Geo. 3. c. 71.
In modern times prosecutions have seldom been instituted for
any of these offences ; but in the following case an information
for enhancing the price of hops was sustained. The defendant
was charged in the first count with spreading false rumours,
with intent to enhance the price of hops, in the hearing of hop-
planters, dealers, and others, that the stock of hops was nearly
exhausted, and that there would be a scarcity of hops, &c., with
intent to induce them not to bring their hops to market for sale,
and thereby greatly to enhance the price. It appeared that the
defendant having a stock of hops on hand, declared to the
sellers that they were too cheap, and to the planters that they
had not a fair price for their hops, and contracted for one-fifth
374 Forcible Entry and Detainer.
of the produce of Worcestershire and Herefordshire, where lie
had a stock in hand, and admitted that he did not want to pur-
chase. The defendant being convicted, moved in arrest of
judgment, but the Court refused the motion. Waddington'scase,
I East, 143.
Upon a prosecution for an offence of this nature, the pro-
secutor must prove, 1st, the act of forestalling, regrating, &c. ;
and 2dly, the object with which that act was done. It must
appear that he has made his purchases, not in the fair course of
dealing, with a view of afterwards dispersing the goods in propor-
tion to the wants and conveniences of the public, but with a view
to enhance the price of the commodity, and to deprive the people
of their ordinary subsistence, or compel them to purchase it at
an exorbitant price. Per Lord Kenyan, Waddington's case,
1 East, 143.
FORCIBLE ENTRY AND DETAINER.
Offence at common law .... 374
Offence by statute .... 374
Proof of the entry .... 376
Proof of the force and violence . . . 376
Proof that the detainer was forcible . . 377
Proof of the possession upon which the entry was made . 378
Proof that the offence was committed by the defendant . 378
Award of restitution .... 379
Offence 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. K. 357, 1 Russell, "283. But against this offence
provision has been made by various statutes.
Offence by statute.] The first enactment against forcible
entries is that of 5 Rich. 2. c. 8, which merely forbids them.
By the 15 Rich. 2. c. 2, it is accorded and assented, that
the ordinances and statutes, made and not repealed, of them that
make entries with strong hand into lands and tenements, or
forcible Entry and Detainer. 375
other possessions whatsoever, and them hold with force, and
also of those that make insurrections, or great ridings, riots,
routs, or assemblies, in disturbance of the peace, or of the com-
mon 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 jus-
tices 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 1 5 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 justices or justice, as before, nor any
pain ordained, if the sheriff do not obey the commandments
and precepts of the said justices, for to execute the said ordi-
nances, many wrongful and forcible entries be daily made in
lands and tenements, by such as have no right, and also divers
gifts, feoffments, and discontinuances, sometimes made to lords,
and other puissant persons, and extortioners, within the said
counties where they be conversant, to have maintainance, and
sometimes to such persons as be unkno\vn to them so put out,
to the intent to delay and defraud such rightful possessors of
their right and recovery for ever, to the final disherison of divers
of the king's faithful liegi 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 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 costs
of the party so grieved.
By section 10 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 pro-
vided, that they who keep their possession with force, in any
lands and tenements whereof they or their ancestors, or they
whose estate they have continued their possession in the same,
tor three years or more, be not endamaged by the statute.
This proviso is en forced by the 31 Eliz. c. 11. 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
376 Forcible Entry and Detainer.
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 justice of the peace, as,
by reason of any act or acts of parliament now in force are
authorised and enabled, upon inquiry, to give restitution of
possession unto tenants of any estate of freehold, of their lands
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 hence-
forth, (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 elegit,
statute-merchant, and staple, of lands or tenements 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.] A forcible entry or detainer is com-
mitted by violently taking or keeping possession of lands or
tenements, by menaces, force, and arms, and without the
authority of law. 4 BL. Com. 148. It must be accompanied
with some circumstances of actual violence or terror, and there-
fore 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. a. 25. The entry may be violent, not only
in respect to violence actually done to the person of a man, as
by beating him, if he refuse 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 not, especially if it be a dwelling-house, and perhaps
by acts of outrage after the entry, as by carrying away the
party's goods. Ibid. s. 26. See 3 Burr. 1702, (.) post, 377.
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 purposes, 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.l. c. 64.
*. 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. Ab. Forcible Entry, (B). 1 Russell, 288.
Proof of the force and violence.] Where the party, either
Forcible Entry and Detainer, 377
by his behaviour 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 intimate a design
to back his pretensions by force, or by actually threatening 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 ante, p. 376.
It is not necessary that there should be any one assaulted
to constitute a forcible entry ; for, if persons take or keep pos-
session 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. See also Smyth's case, 5 C. if P. 201.
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 number of people, or unusual weapons, 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. Fflrc. Det. (B. 1.)
The statute 15 Ric. 2. only gave a remedy in cases of forcible
detainer, where there had been a previous forcible entry ; but
the statute 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. Oakley's case, 4 jB. # Ad. 307. 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 con-
tinuance in possession afterwards may amount, in judgment of
law, to a new entry. Per Parke, J. Id. p. 312, citing
Hawk. P. C. 6. I.e. 64. i.34.
378 Forcible Entry and Detainer.
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
incorporeal hereditaments, for which 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. 6. 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. Ibid.
It is said by Hawkins, that it seems clear that no one can
come within the intention of the statutes, by any force whatso-
ever done by him, on entering into a tenement whereof he him-
self 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 entering into the land of his own tenant at
will. The learned writer has added a " sed qutere" to this
passage, and Lord Kenyon has observed, that perhaps some
doubt may hereafter arise respecting what Mr. Serjeant Haw-
kins says, that at common law the party may enter with force
into that to which he has a legal title. Wilson's case, 8 T. R.
361.
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 pu-
nished 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 upon a freehold ; and if founded on
the 21 Jac. 1, that it was upon a leasehold, &c., according to
that statute. Wannop's case, 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 h\s freehold. Lloyd's
case, Cald. 415. Proof that the party holds colourably, 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 Vavghan
B., Williams's case, 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
Forcible Entry and Detainer. 379
him, whether they actually come upon the land or not. Id. s. 22.
So also will those who, having an estate in land by a defeasible
title, continue by force in possession, 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 otheis. 3 Bac. Ab. Forcible Entry, (B.) And a person
who barely agrees to a forcible entry made to his use, without
his knowledge or privity, is not within 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. Smyth'*
case, 5 C. $ P. 201.
Award of restitution.'] The Court in which the indictment is
found, or the Court of King's Bench upon the removal thither
of the indictment 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. l>. 1. c. 64.
s. 49, 50, 51. Though by the provisos in the statutes of
Hen. 6, and James 1, the defendants may set up a possession
for 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 re-resti-
tution may be awarded by the King's Bench. Id. s. 66.
Witnesses.] The tenant of the premises is not a competent
witness. 11 iliiams's case, 9 B. ty C. 549. Beavan's case, Ry. &
Moo. 242, ante, p. 107.
380
FORGERY.
Forgery at common law . , .381
Proof of the false making . . . 383
In the name of the party assuming the name of a
person in existence . , . 383
Party forging having the same name . 383
Fictitious name . . . 385
Assumed and borne by the party forging . 387
Proof of the false making with regard to the apparent
validity of the matter forged . . 391
Substantial resemblance to true instrument . 393
Cases of non-resemblance . . 395
Proof of the act of forging . . . 397
Proof of the uttering .... 397
Proof of the disposing or putting off .- . 398
Proof of the intent to defraud . . . 400
With regard to the party intended to be de-
frauded . . . .401
Proof of identity of the party whose name is forged . 403
Proof of the forged instrument , . . 405
Proof with regard to principals and accessories . 408
Proof of guilty knowledge . . . 409
Witnesses ~. 409
Venue ..... 409
Forgery of instruments not made, or purporting to be
not made in England . . .410
Interpretation clause . . . .411
Punishment . . . .411
Forgery of particular instruments . . . 412
Forging wills . . . .413
Forging deeds .... 413
Proof of forging of bills of exchange promissory
notes and warrants, or orders for payment
of money or delivery of goods . . 414
Proof of forging bills of exchange, 3fc. . 414
Proof of forging warrants, <$fc. . .415
Forging receipts . . , .421
Forgery. 381
Forgeries relating to the public funds . . 425
False entries in books of bank and transfer in
false name . . 425
Proof of forging transfer of stock, and power of
attorney to transfer . . 425
Proof of personating owner, and endeavouring
to transfer stock . . 426
Proof of forging attestation to power of attorney
or transfer of stock . . . 427
Proof of clerks in the Bank making out false divi-
dend warrants . . 427
Proof of forging exchequer bills, East India
bonds, <Sfc. . . .428
Forgery and similar offences trith regard to bank notes . 428
Proof of purchasing, receiving, fyc*, forged
Bank notes . . . 428
Proof of making or having moulds, Sfc. , 428
Proviso as to paper for bill of exchange . 429
Proof of engraving any Bank note, fyc. . 430
Proof of 'engraving any word, fyc. . . 430
Proof of making, Sfc., mould for manufacturing
paper . . . .431
Proof of engraving bill of exchange, <5fc. . 431
Forgery if entries in public registers . . 432
Forgery of stamps .... 434
Forgery of other public documents . . 437
Under the present head will first be stated, the law of forgery,
as it regards all forged instruments, with the general proofs ne-
cessary to establish the act of forging, uttering, &c. The evi-
dence required to prove the forgery of particular documents,
both private and public, will then be given.
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 alteration of a
writing to the prejudice of another man's right;" 4 Com. 247 ;
and by Mr. 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.
With regard to the nature of the instruments or writings, the
forging of which is punishable at common law, it has been
held that the falsification of records and other matters of a
public nature is a misdemeanor, as a privy seal ; 1 Roll. Ab.
68 ; a licence from the Barons of the Exchequer to compound
debts; Id. 65 ; Gregory v. Wilks, 2 Bulst. 137 ; a parish regis-
ter ; Hawk. P. C. b. 1. c. 70; or a certificate of holy orders, or
382 Forgery.
any matter of record. Hawk. P. C. b. 1. c. 70. s. 9, 10. So
a forged letter, in the name of a magistrate, the governor of a
goal, directing the discharge of a prisoner, has been held to be
a forgery. Harris's case, 6 C. <Sf P. 129. And see Fawcett's
case, 2 East, P. C. 862, infra.
So with regard to private writings, it is an offence at com-
mon law to forge a deed or will. Hawk. P. C. b. 1 . c. 70. s. 10.
And though doubts were formerly entertained on the subject,
it is now clear that forging any private document, with a frau-
dulent intent, and whereby 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. Ward's case, 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.
Fawcett's case, 2 East, P. C. 862. Ward's case 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.
Upon an indictment for forgery at common law, it must ap-
pear in the indictment what the instrument is, in icspect of
which the prisoner is charged. The prisoner was indicted for
forging a certain paper instrument in the words and figures
following :
" Fol. 44. 4. Sarum public weighing engine, July 27, 1802.
One load of coals from Mr. Wilcox to Mr. Webb.
Ton. Cwt. Qrs. Ib.
Gross 1 11 3
Tare 600
1 530
Witness, W. WORT, book-keeper."
With intent to defraud John Webb. It appeared that the
prisoner had altered this instrument, so as to render the prose-
cutor liable to pay more than it originally expressed. The pri-
soner being convicted, the judges, on a case reserved, were of
opinion that the indictment was bad, as it did not state what
the instrument was, in respect of which the forgery was alleged
to have been committed, nor how the party signing it had au-
thority to sign it. Wilcox's case, Runs. <5f Ry. 50.
It is not necessary to the sustaining an indictment for forgery
at common law, that any prejudice should in fact have hap-
pened by reason of the fraud. Ward's case, Str. 747, 2 Ld.
Raym. 1461. Nor is it necessary that there should be any
publication of the forged instrument. 2 East, P. C. 855, 951,
1 Russell, 318.
Forgery. 383
Proof of the false making in the name of the party assuming
the name of a person in existence.] The most usual kind of
forgery is, where the party assumes the name and character of
a person actually in existence, and by means of the credit
attached thereto, carries his fraud into effect; as in the follow-
ing' case. The prisoner, whose name was Hadfield, appeared
in the neighbourhood of the lakes of Cumberland, calling him-
self the Hon. Alexander Augustus Hope, brother of the Earl of
Hopetown, and in that name imposed upon several persons in
the neighbourhood. During his residence near the lakes, he
drew a bill upon a gentleman in the neighbourhood, which
would have been paid, had not the prisoner been detected.
For this forgery he was indicted, convicted, and executed.
Hadfield's case, 6 Ev. Stat. 580, 2 Resell, 327. The adoption
of a false description and addition, where a false name is
not assumed, and there is no person answering the descrip-
tion, has been held not to be forgery. Webb's case, Russ, fy
Ry. 405.
Of the false making in the name of the party party forging
having the same uume.] A man may be guilty of forgery by
the fraudulent making of an instrument, though in his own
name ; as if he makes a feoffment of lands to J. S., and
afterwards a deed of feoffment of the same lands to J. D., of a
date prior to that of the feoffment to J. S. Hawk. P. C. b. 1.
r. 70. s. 2. And the offence, it is said, would have been the
same, if he had passed only an equitable interest for a good con-
sideration, and had afterwards by such a subsequently antedated
conveyance endeavoured to avoid it. Id. So if a bill of ex-
change, payable to A. B. or order, come to the hands of a per-
son named A. B. (not the payee) who fraudulently indorses it
for the purpose of obtaining the money, this is a forgery.
Mead v. Young, 4 T. I{. 28. The prisoner, whose name was
Thomas Browne, was charged together with Matthias Parkes
with forging a promissory note, purporting to be made by
Thomas Browne. It appeared that tlie prisoner Browne had
passed the note in question to a tradesman, representing it to
him as the note of his brother. The note was dated at Rough-
ton, Salop, and was made payable at Thornton and Co., bankers,
London. It was proved that there was no person of that name
and description residing at Roughton, and that no such person
kept an account at Thornton and Co.'s. It was objected for
the prisoner Browne, that the note being made in his own
name, could not be a forgery ; but the judges on a case re-
served, held that he had been properly convicted. Grose J.,
in delivering their" opinion, said, " The prisoner, at the time he
uttered the note, did not utter it as his own note, but as the
note of his brother, of the same name ; but there is no brother
of the prisoner of the name of Thomas Browne existing, and.
384 Forgery.
therefore, this is the false making of a note in the name of a
non-existing person, for it is equally a forgery, whether the non-
existing person be described as bearing the name of the persoi
uttering the note, or another name. The prisoner, therefore,
although his name is Thomas Browne, having uttered the note,
describing the signature as the name of another person, is as
guilty ot' having uttered a forged note, as if he had uttered a
note on which any other name whatever had been forged."
Parke's and Brown's case, 2 Leach, 775, 2 East, P. C. 963.
The authority of this case has been doubted by Mr. Evans,
who has observed, that it appears to rest on very questionable
principles, and in opposition to it, he cites the following case.
A bill of exchange was made by the prisoner, D. Walker, (a
pauper at Manchester). It was dated Liverpool, signed D.
Walker and Co., and drawn on Devayne's and Co., London.
Similar bills had been before drawn in the same manner, and
regularly paid, though the drawer was unknown to that house.
Parkes' 5f Brown's, case (supra.) was cited ; but the learned
judge ruled, that there was not evidence sufficient to go to the
jury. Walker's case, coram Chambre J. Lane. 6 Evans's Stat.
580. In support of his opinion, Mr. Evans refers to Hevey's
case, 1 Leach, 229, (vide post, p. 405,) where a prisoner, who
had assumed to be the real indorser of the bill, was held not to
be guilty of forgery, there being no false making; but upon
this, it may be observed, that the fact of there being no false
making in the latter case, seems to distinguish it entirely from
Brown's case, and to prevent its being considered an authority
against that decision. An eminent writer has made the follow-
ing comments upon Brown's case. " In the abstract it amounts
to this, that a man who signs his own name to a note, dated at
a place where he does not reside, and payable at a banker's where
he has no money, is guilty of forgery. It is remarkable that the
jury did not expressly find an intention on the part of the pri-
soner, at the time of the making, to utter it as the note of a
third person. If the note contained a mere promise to pay,
(without place of date or payment) signed by the prisoner,
and was afterwards uttered by him as the note of another, the
case would be more doubtful. See also R. v. Webb, 3 B. $ B.
228." 2 Stark. Ev.333 (n.) 2d ed. A point similar to that
upon which Browne's case turned, occurred in the following case,
but was not decided. The prisoner, George Maddocks, was
charged with forging the following indorsement upon a bill :
" Per pro. for Rob. Falcon, George Maddocks."
It appeared that he was clerk to an attorney, and had autho-
rity to open letters, receive money, and to do what was neces-
sary in case a writ was wanted ; but he had no authority to
indorse a bill. The bill in question was sent in a letter to the
prosecutor's chambers, where the letter was opened by the pri-
soner, who after writing upon the bill the indorsement men-
Forgery. 385
tioned above, took it to the bank, and received payment. He
gave a receipt, " Received for R. F. (his master's real name,)
G. M." On the following day he wrote to his master, stating
he had taken the bill for acceptance, though at that time he had
received the money. He then absconded. On his trial he
said, he received the money for his master's use, and did not
intend to apply it otherwise. The judge left it to the jury to
say, whether the prisoner meant only to receive the money for
his master's use, and acted under a supposition, in the situation
of trust in which he was placed, that be had a right to describe
himself as acting by procuration, or whether he made the in-
dorsement and received the money, for the purpose of defrauding
the prosecutor or the bank. The jury were of opinion that it
was for the purpose of fraud, and referred to the letter in which
the prisoner spoke of having taken the bill for acceptance ; and
found him guilty. As it did not appear that the prisoner had
offered to make use of the indorsement to transfer the bill to
any other person, or to enable himself to receive the contents as
bearer or holder, having on the contrary given the receipt in
his own name for the use of his master, a doubt arose, whether
the indorsement was such an " indorsement" as was meant by
the statute. The question, whether, under the special circum-
stances of his conduct, the prisoner ought to have been acquitted,
or whether a false assertion in an indorsement that the prisoner
has a procuration, without any other circumstance of falsehood
or misrepresentation, constitutes a forgery, was referred to the
judges, Gut no opinion was given, the prisoner dying in prison.
Maddock's case, 2 Russell, 458.
Proof of the false making in the name of the party -^fictitious
name.] Making an instrument in a fictitious name, or the name
of a non-existing person, is equally forgery, as making it in the
name of an existing person. 2 East, P. C. 957, 2 Russell, 328.
The prisoner was indicted under stat. 2 Geo. 2. c. 25, for utter-
ing a forged deed, purporting to be a power of attorney from
Elizabeth Tingle, administratrix of Richard Tingle, late a
marine, empowering a person to receive prize money due to
her. There was no such person as Elizabeth Tingle. The
prisoner being convicted, a doubt was entertained, whether,
as there was no such person in existence as the party in whose
name the deed was executed, it amounted to forgery, and the case
was referred to the judges, when eleven of them were of opi-
nion, that the case was within the meaning and the letter of the
act. Lewis's case, Foster, 116. In a case which occurred a
few years after the preceding, where a prisoner had been con-
victed of indorsing a bill of exchange in a fictitious name, the
judges, on a reference to them, held unanimously, that a bill of
exchange, drawn in fictitious names, where there are no such
persons existing as the bill imports, is a forged bill within
386 Forgery.
the stat. 2 Geo. 2. Wilks's case, 2 East, P. C. 957. The same
point was decided by the judges in Bolland's case, 1 Leach, 83,
2 East, P. C. 958. And again where the prisoner had forged
a check upon a banker in the name of a fictitious person, the
judges observed, that it would be a very forced construction of
the statute to say, that the forgery of a fictitious name, with
intent to defraud, was not within it. Lockett'scase, 1 Leach, 94,
2 East, P. C. 940.
It is not necessary, in order to render the act forgery, that
the party should gain any additional credit by the fictitious
name.
The prisoner was indicted for forging an indorsement of a
bill of exchange in the name of John Williams. It appeared
that the prisoner having paid away the bill, the holder applied
to a banker to discount it, which he refused to do, unless the
holder would put his name upon it. This the holder declined
lo do, but said, he would procure the person from whom he
received it, to indorse it. He accordingly applied to the prisoner,
who immediately indorsed it, " John Williams," which was
a fictitious name, and the bill was discounted. On a case
reserved, the judges were unanimously of opinion, that this was
forgery within the statute ; for although the fictitious name was
not necessary for the prisoner's obtaining the money, and his
object in it, probably, was only to conceal the hands through
which the bill had passed, yet it was a fraud both upon the
holder and discounter, as the one lost the chance of tracing the
bill, and the other the benefit of a real indorser. Tuft's case,
1 Leach, 172, 2 East, P. C. 959. So where the prisoner, hav-
ing got possession of a bill indorsed in blank, gave a receipt for
the amount in a fictitious name, being indicted for this forgery,
it was objected, that he gained no additional credit by the name
he assumed. Being convicted, the case was reserved for the
opinion of the judges, who (with the exception of Buller J., who
doubted,) unanimously held that the conviction was right.
They said, that though the prisoner did not gain any additional
credit by signing the name he put to the receipt, as the bill
was not payable to the person whose name was used, but in-
dorsed in blank, it was still a forgery, for it was done with
intent to defraud the true owner of the bill, and to prevent the
possibility of tracing the person by whom the money was re-
ceived. Taylor's case, 2 East, P. C. 960, 1 Leach, 214.
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 in-
quiries, 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 these towns. It was objected for the prisoner, that this
Forgery. 387
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 two-penny postman and police officer of the dis-
trict were called. The judges at the Old Bailey (Park and
Parke Js. and Holland 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 jury to say whether it was sufficient. The jury found
the prisoner not guilty. King's case, 5 C. Sf P. 123.
Upon an indictment for uttering a forged check upon Jones,
Loyd & Co. bankers, purporting to be drawn by G. Andrewes,
it was held sufficient primd 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 checks on their house. Buckler's case, 5 C. fy P.
1 19. Brannun's case, 6 C. <5f P. 326.
Proof of the false making in the name of the party -fictitious
itame assumed and bvrne by the party forging.] The circum-
stance that the party making the forged instrument has assumed,
and been known by the fictitious name in which it is executed,
for some time before the making, will not prevent its being
a forgery ; there being no distinction whether the credit was
given to the person of the prisoner, or to the name assumed by
him. On a prosecution for forging an order for the payment of
money, it appeared that the prisoner had made the order in a
fictitious name, and the prosecutor stated, that he looked upon
it to be the prisoner's draft. The prisoner being convicted, a
doubt arose upon the point, whether the prosecutor had given
credit to the prisoner, or to the draft ; but the judges held the
conviction right, observing, that it was a false instrument, and
not drawn by any such person as it purported to be. Sheppard's
case, 2 East, P. C. 967, 1 Leach, 226.
The prisoner, Elizabeth Dunn, was indicted for forging a
promissory note as the maker. The note was subscribed,
her
MaryX Wallace,
mark.
It was payable to the prosecutor, a prize agent, to whom the
prisoner applied in the character of executrix of John Wallace,
a deceased seaman. The prosecutor having advanced her the
sum mentioned in the note, wrote the body of it, and desired
her to sign it, asking what name he must write over her mark.
She replied, Mary Wallace, and the prosecutor's clerk put his
name as a witness. The prisoner being found guilty, a case
was reserved, when nine of the judges held the conviction right.
Mr. Justice Aston doubted, upon a principle not now main-
tainable, that to constitute forgery the instrument itself must be
s2
388 Forgery.
false, and that the merely assuming a fictitious name to it, will
not make it a forgery. Dunn's case, 1 Leach, 57, 2 East,
P. C. 962.
The circumstances in the following case were somewhat
different, and the judges were divided in opinion ; though it
is observed by Mr. East, (2 P. C. 968,) that it is difficult to
distinguish it from the foregoing case. The prisoner, John
Henry Aickles, was indicted for forging a promissory note,
which purported to be made by John Mason. The note,
which was dated 18th of December, 1786, was offered in
payment by the payee, Byron, on the 9th of January, 1787.
Byron being asked where the maker lived, replied at No. 4,
Argyle-street. On a reference there it appeared that the
prisoner had taken the house in the name of John Mason, and
was known by that name. His name was in fact Aickles, by
which he had been known up to 1780. Grose, J. told thejury
that, if they believed that the name taken by the prisoner was
in consequence of a concerted scheme between him and Byron,
to defraud the prosecutor, they would be justified in finding him
guilty ; and he directed them to find whether the prisoner had
ever gone by the name of John Mason before, and whether he
had assumed it for the purpose of this fraud. Thejury found
that the prisoner intended to defraud the prosecutor, and that
he assumed the name of Mason for the purposes of the fraud ;
that he had never gone by that name before, and that they
disbelieved a witness, who stated that two years before he was
inquired for, and known by that name at the British Coffee-
house. The prisoner was found guilty by consent, subject to
the opinion of the judges. Grose, J., and other judges, thought
the case amounted to forgery. There was an apparent design
to defraud in general, and thejury had found that the fictitious
name was assumed with a design to defraud. Whether there
was a person of that name was immaterial, the felony consisting
in the intent to defraud. A person might assume a feigned
name and make a draft in it, and yet innocently, as if lie con-
cealed himself to avoid arrest, and had appointed his friend, on
whom he drew, to pay his bill, or giving notes, took care to
pay them when due. But the prisoner, on the contrary,
intended to defraud the party by the feigned name, by making
the note under a disguise by which, after he left the place of
concealment, he could not be traced. There was nothing to
distinguish this from the common case of a note made in the
name of a man who does not exist. The judges who thought it
not a forgery, proceeded on the doubt whether, to constitute a
forgery, it was not necessary that the instrument should be
made as the act of another, according to the definition of
Lord Coke, whether that other existed or not ; whereas here
the note was made as the prisoner's own, and avowed by him
to be so ; the credit was given to the person, and not to the
Forgery. 389
name, and the person and not the name was the material thing
to be considered. Upon some favourable circumstances ap-
pearing in the case of the prisoner, he was acquitted, and the
judges never came to any final resolution upon the case.
Aickles's case, 2 East, P. C. 968, 1 Leach, 438. The opinion
of the judges who held the conviction of the prisoner right, has
been defended by several writers of great eminence. 2 East,
P. C. 972. 6 Evans, Coll. Stat. 580. 2 Russ. 335. The point
again arose, and was decided in the following case. The
prisoner was indicted for forging a bill of exchange, dated
3d of April, 1812, in the name of Thomas White, as drawer.
It appeared that the prisoner came to Newnham, on the 21st of
March, 1813, where he introduced 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
Apnl he passed away the bill in question. Dallas, J. told the
jury that if they thought the prisoner went to Newnham in the
fictitious character of a clergyman, 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 an intent, they should convict
him. The jury 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 occasions, 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 forgery, drawing, accept-
ing, or indorsing in such assumed name, is forgery. Peacock's
case, 1 Ri,si. # Hi/. 278.
The prisoner, Samuel Whiley, was indicted for forging a bill
of exchange, drawn in the name of Samuel Milward. On the
27th of December, 1804, the prisoner came to the shop of the
prosecutor, at Bath, and ordered some goods, for which, a few
days afterwards, he 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 mar-
ried by the name of Whiley, had gone by that name in
Bath in the July preceding this transaction, and at Bristol the
following October, and at Bath again on the 4th of December.
About the 20th of that month he had taken a house in Worces-
tershire, under the same name ; but, on the 28th of December,
390 Forgery.
tbe day after his first application 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
clay. 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 suspect 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 Miltcard, and that he had omitted the name of Whiley
for fear of arrests. The judge left it to the jury to say, whether
the prisoner had assumed the name of " Milward" in the pur-
chase of the goods, and given the draft with intent to defraud
the prosecutor. The jury found the prisoner guilty, and the
judges, upon a reference to them, were of opinion, that the
question of fraud being so left to the jury, and found by
them, the conviction was right. Whiley's case, 2 RHSS. 335,
Russ. fy Ry. 90.
The prisoner, John Francis, was indicted for forging an
order for payment of money upon the bankers, Messrs.
Praed and Co., in favour of Mrs. Ward. On the 15th of
August, the prisoner had taken lodgings at Mrs. W.'s house,
under the name of Cooke, and continued there till the 9th of
September, when he gave her the order in question, for money
lent him by her. The order, which was signed " James Cooke,"
being refused by the bankers, he said he had omitted tbe word
"junior," which he added ; but the draft was again refused,
and the prisoner in the mean time 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 with 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 was
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 different if the party had habitually
used and become known by another name than his own.
Francis's case, Russ. &; Ry. 209. 2 Russ. 336.
To bring tbe case within the rule laid down in the above
decision, it must appear both that the name was assumed, and
that it was assumed for the purposes of fraud in the particular
transaction. 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 furniture 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
Forgery. 391
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 of 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
nick name of Bone or Buntien at times. He proved that he had
transacted business 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 prisoner being convicted, a
majority of the judges, upon a case reserved, (Mr. Justice
Heath appearing of a contrary opinion) thought that it did not
sufficiently appear, upon the evidence, that the prisoner had
not gone by the name of Scott before the time of accepting
the bill, or that he had assumed the name for that purpose,
and they thought the conviction wrong. Bontien's case,
Russ. <8f Ry. 260.
Proof of the false making with regard to the apparent validity
of the matter forged*] It is said to be in no way material whether
a forged instrument be made in such a way as, were it true, it
would be of validity, or not. Hawk. P. C. b. 1. c. 70. s. 7. But
this, it is observed by Mr. East, must be understood where the
false instrument carries on the face of it the semblance of that
which is counterfeited, and is not illegal in its very frame.
2 East, P. C. 948. Thus, in Crooke's case, who was indicted
upon the statute 5 Eliz. c. 14, where the conveyance described
the estate intended to be affected by a wrong name, and was
therefore ineffectual at law, if genuine, to pass the property in-
tended, (though some of the judges thought that equity would
have decreed a proper conveyance ;) yet the forgery was held in-
dictable, it not being necessary that there should be a charge, or
possibility of charge, if done with intent to defraud. Crooke's
case, 2 Str. 901, 2 East, P. C. 948. So where a man was
indicted at common law for forging a surrender 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. Goate's case,
1 Lord Raym. 737.
Upon the same principle it has been held in several cases, that
the false making of a will is forgery, although the supposed tes-
tator be alive. Where the prisoner had been convicted of forging
the will of J. G., a living person, on a case reserved, it was ob-
jected for the prisoner, that the instrument, being ambulatory,
could not properly be described as the last will and testament of
J. G., and that there could not be a forgeYy of a thing which
did not and could not exist at the time of the forgery. But the
judges held the conviction proper : they said that it was suffici-
392 Forgery.
ent if it purported on the face of it to be a will, and that the
objection was only applicable to the effect which a will has in
law, and not to the fact of making it ; that the instrument
existed in his lifetime, though not to take effect till his death, and
if the act of making it were not a forgery at the time, the sub-
sequent publication of it would not make it so. Coogun's case,
2 East, P. C. 948, 1 Leach, 449.
So the making of a false instrument is forgery, though it may
be directed by statute that such instruments 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
question arose upon a prosecution for forging a power of attor-
ney for the receipt of prize-money, which, by stat. 26 G. 3. c. 63,
was required to have certain forms. The power had not, in one
particular, followed the directions of the act. The prisoner
being convicted, 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 release. Graham 15.
and Bayley J. thought that it was a void instrument, that no
person, without a breach of duly, could make the payment of
prize-money under it, and consequently that no person could be
guilty of a capital crime by forging it. Leon's case, Russ. fy
Ry. 255.
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 un-
stamped, and the 23 G. 3. c. 58. s. 11, 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. The prisoner
was convicted, and the judges determined 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 the debt ; and, besides, the
holder of a bill was authorised to get it stamped after it was
made. Ilawkeswond'scase, 17, each, 257. Soon after this deci-
sion, the point arose again, and on the authority of Hawheswflod's
case the prisoner was convicted and executed. Lee's case, Id.
258. (n.) The question, a few years afterwards, again under-
went considerable discussion, and was decided the same way,
though, in the mean time, the law, with regard to the procuring
bills and notes to be subsequently stamped, upon which, in
Hawkeswood's case, the judges appear in some degree to have re-
Forgery. 393
lied, had been repealed. The prisoner was indicted for know-
ingly 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 G. 3. c. 25. s. 19, which prohibits the
stamp from being afterwards affixed, distinguished the case from
Hau'keswood's. 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 G. 3. made
no difference in the question. Most of them maintained the
principle of Hawketwoetfi case 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. Morton's case, 2 East, P. C. 955,
1 Leach, 258. (n.) The doctrine was again confirmed in
Teague's case, 2 East, P. C. 979, when the judges said, that it
had been decided that the stamp acts had no relation to the
question of forgery, but that, supposing the instrument forged to
be such, on the face of it, as would be valid, provided it had a
proper stamp, the offence was complete.
Proof of the false making with regard to the apparent validity
of the matter forged substantial resemblance to true instrument^]
It is not essential that the forged instrument should in all
respects bear an exact resemblance to the real instrument
which it purports to be ; it is sufficient if it bear a substantial
resemblance. 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 observa-
tion 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 counterfeiting was ill exe-
cuted, Le Blacc J. held that this was a forgery. Hoost's rase,
2 East, P. C. 950. The prisoner was indicted for forging a
Bank of England note. The instrument, though it much re-
s 5
394 Forgery.
sembled a real bank-note, was not made upon paper bearing
the water-mark of the Bank ; the number also was not filled up,
and the word " pounds" was omitted after the word " fifty ;"
but in the margin were the figures 50/. It was contended that,
on account of these defects, tliis 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 prima facie filled to pass for a
true one ; secondly, the majority inclined to think that the
omission of " pounds" in the body of the 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 margin removed all doubt. Elliott's case, 2 East, P. C. 951.
1 Leach, 175, 2 New Rep, 93. (n.)
The same point has arisen in several cases upon indictments
for forging bills of exchange. The prisoner was indicted for
forging, and also for uttering a forged bill of exchange. He
discounted the bill and indorsed a 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 any thing purporting to be
such an indorsement, the instrument could not pass as a bill of
exchange, and could not, therefore, effect a fraud. The
prisoner was convicted, and all the judges who were present,
on the argument of 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 J3ayley was not present at the meeting, but thought
the conviction 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. Wicks's case,
RussfyRy. 149.
A mistake in the Christian name of the party, in making the
false signature to the instrument, will not prevent its being a
forgery. The prisoner was indicted for forging the will of
Peter Perry. The will began " I, Peter Perry," and was signed
his
John x Perry.
mark.
It was objected that this was not a forgery of the will of Peter
Perry, as laid in the indictment; but the prisoner was con-
victed, and afterwards executed. Fitzgerald's case, 2 Last,
P. C. 953.
So upon an indictment for vending counterfeit stamps,
(contrary to 44 G. 3. c. 98.) it appeared that the stamp in
Forgery. 395
all respects resembled a genuine stamp, excepting only the
centre part which specifies the duty, which in the forged stamp
had been cut out, and the words " Jones, Bristol," on a paper,
pasted in the place. The fabrication was likely to deceive the
eye of a common observer. The judges on a case reserved
held, that the prisoner was rightly convicted of forgery, ob-
serving, that an exact resemblance, or fac simile, was not
necessary to constitute the crime of forgery ; for, if there be a
sufficient resemblance to show that a false making was intended,
and that the false stamp is so made as to have an aptitude to
deceive, that is sufficient. Collicott's case, 2 Leach, 1048,
4 Taunt. 300, Russ. &; Ry. 212.
Proifqf the false making with regard to the apparent falidity
of the matter forged substantial resemblance to true instru-
ments cases of non-resemblanceJ] Though a similarity to a
common intent be sufficient, yet it is necessary that the forged
instrument should in all essential parts bear upon the face of it
the similitude of a true one, so that it be not radically defective
and illegal in the very frame of it. 2 East, P. C. 952. This
principle is illustrated by many cases which have occurred
upon indictments for forging bills of exchange and promissory
notes. The prisoner was indicted for uttering a forged pro-
missory note. 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. Pateman's case, Russ. 8$ Ry. 455.
The prisoner was indicted for having in his custody a certain
forged paper writing, 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. Jones's case, 1 Leach, 204,
2 East, P. C. 883. See 4 Taunt. 303.
396 Forgery.
The prisoner was indicted for putting off a forged promissory
note. The instrument 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 Cunliffe, Brooks, and Co.
R. Cunliffe.
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 only promised to take it in payment ;
and that the requisitions of the statute 17 Geo. 3. c. 30. were
not complied with. Burke' s case, Russ. $ Ry. 496. So
where the prisoner was indicted for forging the acceptance of
a bill of exchange for 3/. 3s., and it appeared that the requi-
sitions of the statutes 15 G. 3. c. 5. and 17 Geo. 3. c. 30. had
not been complied 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 instru-
ment, if real, would not have been valid or negotiable, and
that therefore the conviction was wrong. Moffutt's case,
1 Leach, 431, 2 East, P. C. 954. This case was distinguished,
on the conference of the judges, from Hawheswood's case,
ante, p. 392, where the holder of the bill had a right to get it
stamped (see .Morton's cose, ante, p. 393.) ; and the stamp
act only says it shall not be used in evidence till stamped.
2 East, P. C. 954.
The prisoner was indicted for forging an order for the pay-
ment 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., c/iss.)
held that it was not an order for the payment of money, because
of the want of a payee, and that the conviction was wrong.
Pichards's case, Russ. fy Ri/. 193. In a case which 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 blank. Randall's case, Russ. fy Ry. 195.
Forgery. 397
Upon the same ground, viz. that the instrument, if genuine,
would have been of no validity, the following case was decided.
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 evidence 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 statute of fiauds, for want of attesta-
tion by three witnesses. The judges, on a conference, held the
conviction wrong ; for, as it was not shown to be a chattel
interest, it was to be presumed to be freehold. Wall's case,
2 East, P. C. 953.
Proof of the act of forgery. ~] It is seldom that direct evi-
dence can be given of the act of forgery. In the case of nego-
tiable securities, the evidence is usually applied to the uttering
rather than to the forging, although both are usually charged.
Where the instrument is not of a negotiable nature, as in
the case of a bond or will, after proof that it has been
forged by some one, a strong presumption necessarily arises
against the party in whose favour the forgery is made, or who
has the possession of it, and seeks to derive benefit from it. Evi-
dence that the forged instrument is in the hand-writing of the
prisoner, must, if unexplained, be necessarily strong evidence of
his guilt. 2 Stark. Ei. 331, Id ed.
In the description of the act of forging, it will not in general
be a material variance, if words are added, which are not in
ttie statute. Thus, an indictment on the statute 2 Geo. 2. c. 25,
which charged the defendant with feloniously altering, and
causing to be altered, a certain bill of exchange, by falsely
making, forging, and adding a cypher to the letter and figure
8, &c. was held good through the words of the statute, are, " if
any person shall make, forge, or counterfeit," and the word
alter is not used. Elsworth's case, 2 East, P. C. 986, 988.
So where an indictment, since the passing of the statute 1 1 G.
4. & 1 W. 4. c. 66, which uses only the word forge, stated
that the prisoner " forged and counterfeited" a certain instru-
ment, it was held not to be bad, and that the word " coun-
terfeit" might be rejected. Brewer's case, 6 C. if P. 363.
Proof of the uttering.'] The various statutes relating to the
offence of uttering forged instruments, employ various words to
designate the act. In the statute 1 W. 4. c. 66, the terms
used to describe the offence, are " offer, utter, dispose of, or put
off." The word offer was probably inserted to meet the case
of an incomplete uttering, or putting off, as in Wooldridge's case,
I Leach, 307, 1 East, P. C. 179.
The averment of uttering will in general be proved by the
398 Forgery.
same description of evidence as is necessary to maintain an in-
dictment for uttering counterfeit coin, the cases respecting
which have been already detailed, ante, p. 301.
Proof of uttering a forged acceptance will not support an in-
dictment charging the prisoner with uttering a forged bill.
Horvetl's case, 6 C. # I'. 148.
The addition of words not used by the statute 1 W. 4. c. 66,
in describing the offence of uttering, as where the indictment
stated that the prisoner uttered and " published as true," &c.,
will not vitiate the indictment. Brewer's case, 6 C. <Sf P. 363.
Where the prisoner presented a bill for payment, with a
forged indorsement upon 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, altered the indorsement into a receipt fry himself
for the drawer, it was ruled that the presenting of the bill be-
fore the objection, was a sufficient uttering of the forged in-
dorsement. Arscott's case, 6 C. fy P. 408.
As to uttering by several. Vide, ante, p. 301.
Proof of the disposing or putting off.'] Upon the words of the
repealed statute of 15 G. 2. c. 13. s. 11, which were, " dispose
of or put away," the following case was decided. The pri-
soners 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
employed the other prisoner, Hudson, in putting them off.
The latter having offered a forged note in payment, in the even-
ing of the same day, Palmer went with her to the person who
had stopped it, and said, " This woman has been here to-day,
and offered a two-pound note, which you have stopped, and 1
must either have the note or the change." It was contended
for the prisoners, that the evidence was of two distinct and se-
parate offences, and not of a joint offence. The jury having
found Palmer guilty of the offence of disposing and putting
away the note, a case was reserved for the opinion of the
judges, which was delivered by Mr. Justice Grose. He said
that a difference of opinion had existed among the judges, some
holding that until Hudson uttered the note, it was to be consi-
dered 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 judges were of opinion that the conviction was
right. It clearly appeared that Palmer knowingly delivered
the forged note into the hands of Hudson, for the fraudulent
purpose of uttering it for his own use. He could not have reco-
vered it back by any action at law. It was out of his legal
power, and when it was actually uttered by her, the note
Forgery. 399
was disposed of, and put away by him through her means. As
delivering an instrument to another, was a step towards uttering
it, it seemed most consonant to the intentions of the legislature
to hold that the delivery to another for a fraudulent purpose,
was an offence within the words " dispose of," or " put away."
Palmer's case, 2 Leach, 978, 1 Bos. <3f P. X. R. 96, Russ. %
Rii. 72.
The same point arose, and was decided the same way in
Giles's case. The jury in that case found that 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.
1 Moody, C. C. 166. Had the prisoner been charged with
uttering instead of disposing of the note, it seems that, accord-
ing to the view of the case taken by the judges, Burr being
cognizant of the forgery, the prisoner could not have been con-
victed on that indictment, as in that case his offence would
have been that of accessory before the fact. See Scares' s case,
Russ. # R>I. 25, 2 East, P. C. 974, Data's cose, Russ. #
Ry. 113, ante, p. 301.
It seems that the mere showing of a false instrument with
intent thereby to gain credit, is not an offence within the sta-
tutes against forgery. The prisoner was indicted (under the
13 G. 3. c. 79,) for uttering and publishing a promissory note
containing the words, \c. It appeared, that in order to per-
suade 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
inn-keeper to take charge of them, which he did. On opening
the pocket-bcok 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. Shukard's case, Russ. <S' Ry. 200.
The prisoner was indicted in London under the 44 G. 3. c.98,
for uttering forged medicine stamps. Having an order to sup-
ply 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 waggon. It was objected that
this was not an uttering by the prisoner in the city of London,
and upon the argument of the case before the judges, there was
a difference of opinion upon the subject, although the majority
held the offence complete in London. Collicolt's case, 2 Leach,
1048, fiuis. $ Ry. 212, 4 Taunt. 300, S. C.
400 , Forgery.
It is not essential that the indictment should state the persons
to whom the forged instrument is uttered, where the statute upon
which the indictment is grounded, makes the uttering gene-
rally (without specifying to wham) an offence ; and if the utter-
ing be to a person employed to detect the offender, and who is
not therefore deceived, ihe offence is complete. Both these
points arose in flolden's case. Upon the first, the judges said
the statute makes it felony to put away or dispose of generally,
without saying " to any person" or " to any of the king's sub-
jects," and this form has been used in indictments for putting
off, as well as in indictments for uttering, for a long course of
years. As to the second objection, the offence was the same,
though the party for the purpose of detection caused the appli-
cation to be made to the prisoners to sell the notes, if the pri-
soners put them off with the intent to defraud; the intent is the
essence of the crime, which exists in the mind, though from cir-
cumstances which he is not apprised of, the prosecutor cannot
be defrauded by the act of the prisoner. Halden's case, Rnss. &;
Ry. 154, 2 Leach, 1019, 2 Taunt. 334.
Proof of the intent to defraud.'] An intent to defraud is an
essential ingredient to constitute 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
withintent to defraud." Parke's <5f Brown's case, 2 Leach, 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
design to defraud." Jones's case, 1 Leach, 367, 2 East, P. C.
853. The word deceive has been used by Buller J., instead of
the word defraud ; but it has been observed, that the meaning
of this word must doubtless be included in that of the word de-
fraud. 2 East, P. C. 853.
Proof of the intent to dtfraud mode of proof '.] The intent
to defraud must be stated in the indictment, and the proof must
tally with the averment, otherwise the prisoner will be entitled
to an acquittal. 2 East, P. C. 988. The intent is mostly
evidenced by the act itself, which, from its nature, leaves in ge-
neral no room for doubt upon the point. The inference is fre-
quently confirmed by the conduct and behaviour of the guilty
party in the artifices and falsehoods which he employs for the
purpose of effecting his object, or of avoiding detection. The
subsequent uttering or publication of the forged instrument is
admissible, and strong evidence to prove the original design of
forging the instrument, and whether the making or uttering of a
forged instrument be done with an intent to injure a particular
person as alleged, is matter of evidence for a jury. 2 Stark.
Ev. 336, 2d ed. Borrows case, 2 East, P. C. 989.
Forgery, 401
Proof of the intent to dejraud with regard to the party in-
tended to lie defrauded.] The averment of the intent to defraud
must be pointed at the particular person or persons against
whom it is meditated, and the proof must agree with such aver-
ment. 2 East, P. C. 988. It is sufficient to aver a general
intent to defraud a certain person. Powell's case, 1 Leach, 77.
In order to find the intent to defraud a particular person, it is not
necessary that there should be evidence to show that the prisoner
had that particular person in contemplation at the time of the
forgery, it is sufficient if the forgery would have the effect of de-
frauding him, for the prisoner, in presumption of law, intends
that which is the natural consequence of his acts. The prisoner
was indicted for disposing of a forged Bank-note, with intent to
defraud the governor and company of the Bank of England.
Bayley J., desired the jury to say what their opinion was with
regard to the prisoner's intention to defraud the Bank. They
stated that they thought the prisoner had the intention to de-
fraud whoever might take the note ; but that the intention of
defrauding the Bank in particular, did not enter into his con-
templation. The prisoner was found guilty, but a case was re-
served for the opinion of the judges, who unanimously held that
the prisoner, upon the evidence, must be taken to have intended
to defraud the Bank, and consequently that the conviction was
right. Mazagora's case, Russ. & lift. 291. So where the pro-
secutor swore that he did not believe that the prisoner had
forged the instrument with intent to defraud him, (as charged)
yet the prisoner being convicted, the judges were of opinion
that the conviction was right, the immediate effect of the act
being the defrauding of the prosecutor. Sheppard's case, Russ. &;
Ry. 169.
Where the intent is laid to be to defraud a corporation, it
must be proved that it was to defraud them in their corporate
capacity ; if it is stated as an intent to defraud them in their
individual capacities, and it should appear in evidence that it
was to defraud them in their corporate capacity, the variance
would, as it seems, be fatal. 2 Stark. Ei\ 337, '2d ed. Jones <5f
Palmer's case, 1 Leach, 366, 2 East, P. C. 991. Where the
prisoner was indicted for forging a deed, with intent to defraud
A. B. C. D. &c., the stewards of the Feasts of the Sons of the
Clergy, and it appeared that the individuals' named were the
trustees (not incorporated) of a charitable institution, and it
was objected that properly of this description was not intended
to be protected by the statutes against forgery, the court over-
ruled the objection. They said that the stewards were the
absolute owners of the money ; it was their property ; it was put
into their hands upon trust ; and as between them and the sub-
scribers, if they were to convert the money to their own use, they
would be personally liable, That there was no difference between
402 Forgery.
this case and that of a corporation, excepting that the money is
the property of the whole corporation, and must be so alleged,
but where the parties are not incorporated, it is the property of
the several individuals. Jones # Palmer's case, 1 Leach, 366,
2 East, P. C. 991. See also Sherrington's case, 1 Leach, 513,
BeacaU's case, 1 Moody, C. C. 15, past, title " Larceny."
Where the act consists in the alteration of an instrument made
by or to the party himself, it will not constitute forgery, unless
it should appear that some third person may be defrauded.
Therefore, where a person razed the word libris out of a bond
made to himself, and inserted the word marcis, he was adjudged
not to be guilty of forgery, because there was no appearance of
A fraudulent design to cheat another, and the alteration is pre-
judicial to none but to him who makes it, yet it is said, that it
would be forgery, if by the circumstances of the case it should
any way appear to have been done with a view of gaining an
advantage to the party himself, or of prejudicing a third person.
Hawk. P. C.b.l. c. 70. s. 4, 2 East, P. C. 854.
Where legal process was forged, and under it, debt and costs
actually due were paid, upon an indictment for forging the
document, with intent to defraud the party who had paid the
debt and costs, Patteson J. ruled that there was no evidence
of an intent to defraud that person, since he would have had
the same sum to pay, if the process had been sued out in the
regular manner. Collier's case, 5 C. fy P. 160.
It is immaterial whether the party whose name is stated as
the person intended to be defrauded has been actually preju-
diced or not, it is sufficient if he might have been prejudiced.
2 East, P. C. 852. Ward's case, 2 Str. 747, 2 Lord Raym.
1461.
By the statute 11 Geo. 4. & 1 Wm. 4. c. 66. s. 28, it is en-
acted, that where the committing of any offence, with intent to
defraud any person whatsoever, is made punishable by that act,
in every such case, the word " person'' shall throughout the
act be deemed to include his majesty, or any foreign prince or
state, or any body corporate, or any company, or society of per-
sons not incorporated, or any person, or number of persons
whatsoever, who may be intended to be defrauded by such
offence, whether such body corporate, company, society, per-
son, or number of persons, shall reside or carry on business in
England or elsewhere, in any place or country, whether under
the dominion of his majesty or not, and that it shall be suffi-
cient in any indictment to name one person only of such com-
pany, society, or number of persons, and to allege the offence
to have been committed with intent to defraud the person so
named, and another, or others, as the case may be.
Proof of the identity of the party -whose name is forged.]
It is essential to prove the falsity of the instrument, either
Forgery. 403
by showing that the writing is not that of the person by
whom it purports to have been made, or by showing that
no such person exists; 2 Stark. Ev. 334, 2d d.; or where
the instrument is in the name of the party himself, by
showing that he put it off fraudulently, as being the act of
another person. Where the name forged is that of an existing-
person, it is necessary to disprove the making of the instrument
in question by him.
It was supposed at one time, that the best evidence of the
party not having made the instrument, was the party himself,
and Gould and Yates Js. in one case directed an acquittal on
that ground. Smith's case, 1 Leach, 333. (n.)
In the following case, in order to identify the person whose
name was forged as the indorser of a bill, it was thought necessary
to call the drawer, for the purpose of showing that the individual
in question was the party really connected with the bill. The
bill had been sent to Pearce, the payee and indorser, an intimate
friend of Davis, the drawer ; but it never came to his hands,
and it was proved to have been 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 hand-writing, yet it might be
the hand-writing 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 hand-writing of the William Pearce, to whom the
bill was made payable. The prisoner was accordingly ac-
quitted. Sponsonbii'scase, 1 Leach, 332, 2 East, P. C. 996. It
has been observed upon this case, that it may be doubted whe-
ther the fact of this William Peaice being an intimate acquaint-
ance and correspondent of the drawer, and no evidence being
givn of the existence of any other William, Pearce, to whom it
might be supposed that the bill was made payable, was not
sufficient evidence of the identity of the payee. 2 East, P. C.
997. The decision in Sponsonby's case may be considered as
much shaken by the following authority. The prisoner was
indicted for forging a promissory note, purporting to be made
by one William Holland, payable to the prisoner, or order. It
appeared that the prisoner had offered the note in payment to
the prosecutor, who at first refused to take it, upon which the
prisoner said, he need not be afraid, for it was drawn by Wil-
liam Holland, who kept the Bull's Head, at Tipton. William
Holland was called, and proved that it was not his hand-
writing. He stated that there was no other publican of his
name at Tipton, but there was a gentleman of the name of
William Holland, living there on his means, who, for distinc-
tion, was called Gentleman Holland. The latter William Hol-
land not being called, it was contended for the prisoner that
there was not sufficient evidence of the note having been forged.
404 Forgery.
The prisoner being convicted, on a case reserved, the judges held,
that as the prisoner had stated, that William Holland of the Bull's
Head was the maker, (and from being payee of the note he must
have known the particulars,) it was sufficient for the prosecutor
to show 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. Hampton's
case, 1 Moody, C. C. 255.
The identity of 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 pri-
soner, after his apprehension, to A. Helme, who was the pri-
soner'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 m question with
the indorsement upon it, informing him that A. Helme was a
gentleman of credit at Liverpool, and the indorser a cheese-
monger there, who had received the bill in payment for cheeses.
Sowerby, the father, was then called, who swore that the in-
dorsement was not his hand-writing ; that he knew of no other
person of the same name at Liverpool; that his son had been
a cheesemonger there, but had left that town four months before,
and was gone to Jamaica, and that the indorsement was not in
his hand-writing. It was objected, that Helme, the drawer, was
not called to prove what Sowerby, the payee, was ; but the pri-
soner was convicted. The judges on a case reserved held the con-
viction right. They said, the objection supposed that there was a
genuine drawer, who ought to have been called, but to this
there were two answers, 1st, that the drawer's name was forged,
which the prisoner himself had acknowledged ; and 2dly , that the
prisoner himself had ascertained who was intended by the John
Sowerby, whose indorsement was forged, for he represented him
as a cheesemonger at Liverpool, and that he meant young
Sowerby, appeared from his mentioning his mother ; and it ap-
pearing not to be young Sowerby's hand-writing, the proof of
the forgery was complete. Dowries' s case, 2 East, P. C. 997.
In the following case also, the falsity of the instrument was
proved by the admission of the prisoner. Beatty and others
were indicted for a conspiracy to defraud by means of a fraudu-
lent acceptance of a bill of exchange. The indictment averred
that Beatty fraudulently wrote the acceptance. The only evi-
Forgery. 405
dence to support this averment was that of a witness who
proved that the bill, with the acceptance upon it, was shown to
Beatty, who being asked whether it was a good one, answered,
very good. The prisoners being convicted, the judges, on a case
reserved, were of opinion that the confession was properly left
to the jury, as evidence from which they might find the fact of
his having written the acceptance, and that the conviction was
right. Heveu'scase, I Leach, 232, 2 Leach, P. C. 856. (n.)
But where it appears that there are persons in existence
residing at the place which the forged instrument refers to, the
proof must be given that those persons are not in fact the real
persons referred to, although in some respects they may be mis-
described. The prisoner was charged with both forging and
uttering a forged acceptance. The bill was addressed thus :
To Messrs. Williams & Co.
Bankers, Birchin Lane,
3, London.
It was uncertain on the evidence when the figure 3 was
written. The prisoner, when he paid away the bill, was asked
whether the acceptors were Williams, Birch & Co., and his
answers imported that they were. Williams. Birch & Co.
lived at No. 20, Birchin Lane, and the acceptance was proved
not to be theirs. Theirs was the only firm of Williams & Co.,
Bankers, in London. At No. 3, Birchin Lane, the name of
Williams & Co. was on the door, and some bills addressed to
Messrs. Williams & Co. Bankers, Swansea, had been accepted,
payable at No. 3, and paid there. There was no evidence as
to who lived at No. 3, but another bill of the same tenor as
that in question, drawn by the prisoner, had been accepted
there. 'Ihe prisoner was convicted, but the judges, on a case
reserved, were of opinion that the facts proved against the pri-
soner did not amount to forgery. Watt's case, RUSS.&; Ry. 436,
3 Brod.% Bingh. 197.
Proof of the forged instrument.] The nature of the forged
instrument must be stated in the indictment ; Wilcoi's case,
Russ. Bi/ 50, ante, p. 382 ; and the proof must cor-
respond with such statement. Formerly it was necessary
that the instrument should have been set forth in words
and figures, and any deviation in proof was a fatal vari-
ance. Powell's case, 2 East, P. C. 976. But a mere literal
variance does not vitiate, as " value receivd," for " valite
received." The judges, on a case reserved, said, that according to
JK. v. Bear, Carth. 408, where an instrument is laid in the in-
dictment with the tenor, the very words laid, and not the sub-
stance and effect of them must be proved. The question then
was as to the u'ord, and not as to the letter, unless by addition,
omission, or alteration, it becomes another word, and they re-
406 Forgery.
ferred to Holt, 350, where Powys J. says, that the variance of
a letter happening in spelling or abbreviation, possibly might
not hurt. Hart's case, 2 East, P. C. 977. But where the
forged instrument is set forth according to its tenor, great accu-
racy is required in the statement. " The tenor'' has the same
signification as the words, " in the words and figures follow-
ing," or as " as follows." Powell's case, 2 East, P. C. 976,
1 Leach, 77. Therefore, in setting out an instrument which
contains figures, the figures should be stated in the indict-
ment, Id. See 2 & 3 W. 4. c. 123, post, p. 407.
The forged instrument may also be described by its purport,
as a paper writing purporting to be the particular instrument in
question, and it has been observed, that in strictness of lan-
guage there may be more propriety in so laying it, since the
purpose of the indictment is to disaffirm the reality of the in-
strument. 2 East, P. C. 980. In all cases the word purport
imports what appears on the face of the instrument, Id. 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 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. Jones's case, 2 East, P. C. 883, 981. Where
the indictment charged, that the prisoner having in possession a
bill of exchange, purporting to be signed by one J. W., and to be
directed to one John King, by the name and description of John
Ring, Berkeley St., &c., forged an acceptance purporting to be the
acceptance of the said John King, the indictment was held bad on
the ground, that it was impossible that the word Ring should pur-
port to be the word King. Reading's case, 2 Leach, 590, 2 East, P. C.
981. And an indictment "for forging a check upon Messrs. Ran-
som, Moreland & Hammersley," stating it as purporting to be
drawn on " George Lord Kinnaird, Wm. Moreland, & Thos.
Hammersley, by the name and description of Messrs. Hansom,
Moreland & Hammersley," was held bad on the same ground.
Gilchrist's case, 2 Leach, 657, 2 East, P. C. 982. In the fol-
lowing case also, the variance was held fatal. The indictment
charged the prisoner with forging a paper writing, purporting to
be an inland bill of exchange, and to be directed to Richard
Down, Henry Thornton, John Freer, and John Cornwall the
younger, Bankers, London, by the name and description of
Messrs. Down, Thornton & Co., Bankers, London, requiring
them, &c., and then setting forth the tenor, from which it ap-
peared that the direction was " Messrs. Down, Thornton & Co.,
Bankers, London," and this was held bad. Edsall's case,
2 Leach, 662. Cn.) 2 East, P. C. 984. Where a receipt was
signed " C. Oilier," and the indictment stated it as purporting
to be signed by Christopher Oliver, the court (consisting of
Forgery. 407
Heath and Lawrence Js. and Thompson B.) were inclined to
think that this differed from the foregoing case, as there was no
absolute repugnance in the statement, and they reserved the case
for the judges, but no opinion was ever given, lieeves's case,
2 Leach, 808, 814, 2 East, P. C. 984. fn.)
Where a fictitious signature is stated, it must be described as
purporting to be the signature of the real party, for if it be
described as his signature, and should appear in fact to be a
forgery, the variance will be fatal. Thus, where the instru-
ment was described as " a certain bill of exchange, requiring
certain persons by the name and description of Messrs. Down,
&c., to pay to the order of R. Thomson, the sum, &c., and
signed by Henry Hutchinson, for T. G. T. and H. Hut-
chinson, &c., which bill is as follows, &c.", 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 substantial allegation, was
disproved, and so the judges held, on a reference to them after
conviction. Carter's case, 2 East, P. C. 985.
Where the particular nature of the instrument is misdescribed,
the variance is of course fatal. The indictment charged the
prisoner with forging " a promissory note for payment of money,
which is as follows." The instrument appears to be in the fol-
lowing form.
" Two months after date, pay to Mr. B. H. or order, the
sum of 28. 15s. value received.
At Messrs. Spooner & Co. JOHN JONES.
Bankers, London."
The prisoner being convicted, the judges, on a case reserved
held, that this instrument was a bill of exchange, and not a
promissory note, and that the conviction was wrong. Hunter's
case, Riiss. $f Ry. 511.
A bank post bill must not be described as a bill of exchange,
but it is sufficiently described by the designation of a bank bill
of exchange. Birkett's case, Russ. fy Ry. 251.
Hut now by 2 & 3 W. 4. c. 123. s." 3, it is enacted, that in
all informations or indictments for forging, or in any manner
uttering any instrument or writing, it shall not be necessary to
set forth any copy or j'ac simile thereof, but it shall be sufficient
to describe the same, in such manner as would sustain an in-
dictment for stealing the same, any law or custom to the con-
trary notwithstanding.
Where the prisoner was indicted for uttering a forged banker's
promissory note, which had been altered by changing the word
une into ten, and it appeared in the indictment that the word
pound had not been altered into pounds, it was objected that the
408 Forgery.
prisoner cou'l'd not be convicted, as that which he had done was
not altering or adding to, or forging a promissory note for
money, it^eing, when altered, not a promissory note to pay ten
pounds, but ten pound, in the singular number, which was un-
gramm'atical, uncertain, and nonsensical. The judges, how-
ever, held the conviction right. Puts's case, Russ. fy Ry.
101.
It will be no variance if it appear, that the instrument which
is described in the indictment as a forged instrument, was
originally a genuine one, but that it has been fraudulently
altered by the prisoner ; for every alteration of a true instru-
ment for a fraudulent purpose, makes it, when altered, a for-
gery of the whole instrument. Teague's case, 2 East, P. C. 979.
Thus, where the prisoner altered a figure of 2 in a bank note
into 5, the judges agreed that this was forging and counterfeit-
ing 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
ihe whole deed or writing is forged. Dawson's case, 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 Russell, 370.
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 princi-
pal 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 conviction was right ; that as each of the of-
fenders acted in completing some part of the forgery, and in
pursuance of the common plan, each was a principal in the for-
gery, and that, though the prisoner was not present when the
note was completed by the signature, he was equally guilty
with the others. Bingleii's case, Russ. <f 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 that he knows that it is to be effected by some body.
Kirkwood's case, 1 Moody, C. C. 304. Dade's case. Id. 307.
But with regard to the offence of uttering forged instruments,
it is necessary, in order to render a party guilty as principal,
that he should have been present. Soares's case, 2 East, P. C.
974, ante, p. 301. Where a wife, with her husband's know-
ledge, and by his procurement, but in his absence, uttered a
forged order and certificate for the payment of prize-money, it
Forgery. 409
was held by the judges, that the presumption of coercion on the
part of the husband did not arise ; that she might be indicted as
principal, and her husband as accessory before the fact. Morris's
case, 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 misdemeanor, as
in other cases of misdemeanor, those who, in felony, would be
accessories, are principals. 2 East, P. C. 973.
By the 1 W. 4. c. 66. s. 25, it is enacted, that in the case
of every felony punishable under that a<-t, 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 that act,
shall, on conviction, be liable to be imprisoned for any term
not exceeding two years.
Proof of guilty knowledge.] Where the prisoner is charged
with uttering or putting off a forged instrument, knowing it to
be forged, evidence of lhat 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.
The cases upon this subject have been already stated. Ante,
p. 66 to 71. In an indictment against several, it is sufficient
to state, that the prisoners well knowing, &c., without adding,
" and each of them." Birch's case, 1 Leach, 79, 2 East,
P. C. 980.
Witnesses.] Great inconvenience and much injustice were
formerly occasioned by the rule of law which prevailed upon
the subject of the admissibility of witnesses in cases of for-
gery, by which the party by whom the instrument purported
to be made, was not admitted to prove the forgery, if, in
case it had been genuine, he would either have been liable
to be sued upon it, or to be deprived by it of a legal claim upon
another. By some persons this rule was considered as an
anomaly in the law of evidence ; Boston's case, 4 East, 582,
2 Russell, 374 ; but the principle of it lias been defended with
much ingenuity by Mr. East, 2 East, P. C. 993. All difficul-
ties on the subject are, however, now removed by the statute
9 G. 4. c. 32. (ante, p. 106.) The mode in which the evi-
dence of interested witnesses was formerly rendered admissible,
has been already noticed, ante, p. 112.
Venue.] It was formerly necessary to lay the venue in the
county where the forgery was committed ; and as it was fre-
quently difficult to procure direct proof of the act of forgery,
much inconvenience was occasioned. See 2 Russell, 371. Bat
410 Forgery.
now, by statu,te 1 W. 4. c. 66. s. 24, it is enacted, that if an)
person shall'Commit any offence against that act, or shall com-
mit any ofrence 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 statute or statutes made or to be made, the
offence of every such offender may be dealt with, indicted, tried,
and punished, and laid and charged to have been committed,
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 every accessory before or after the
fact to any such offence, if the same be a felony, and every per-
son aiding, abetting, or counselling the commission of any such
offence, if the same be a misdemeanor, may be dealt with, in-
dicted, tried, and punished, and his offence laid and charged to
have been committed in any county or place in which the prin-
cipal offender may be tried.
Venue. Forgery rf documents not made or purporting to
be not made in England.] The offence of uttering in England
documents forged abroad, is provided against by the 30th
section of the 1 W. 4. c. 66, by which it is declared and
enacted, that where the forging or altering any writing or
matter whatever, or the offering, uttering, disposing of, or put-
ting off, any writing or matter whatsoever, knowing the same
to be forged or altered, is in that act expressed to be an
offence, if any person shall, in that part of the United King-
dom called England, 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 Eng-
land, whether under the dominion of his majesty or not, such
writing or matter may purport to be made or may have been
made, and in whatever language or languages 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 that act, and
shall be punishable thereby in the same manner as if the writ-
ing or matter had purpoited to be made or had been made in
England ; and if any person shall in England 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 promissory note for the payment of money,
or any acceptance of any bill of exchange, or any undertaking,
warrant, or order for the payment of money, or any deed, bond,
or writing obligatory for the payment of money, (whether such
deed, bond, or writing obligatory shall be made only for the pay-
ment of money, or for the payment of money together with
Forgery. 411
some other purpose,) in whatever place or country out of Eng-
land, whether under the dominion of his majesty or not, the
money payable or secured by such bill, note, undertaking, war-
rant, order, deed, bond, or writing obligatory may be or may
purport to be payable, and in whatever language or languages
the same respectively or any part thereof may be expressed, and
whether such bill, note, undertaking, warrant, or order be or be
not under seal, every such person, and every person aiding,
abetting, or 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.
Interpretation of the statute I W. 4. c. 66.] The statute
1 \V. 4. c. 66, contains the following clause (sec. 28.) with re-
gard to the interpretation of various words used in the act. And
be it declared and enacted, that where the having any matter in
the custody or possession of any person is in this act expressed
to be an offence, if any person shall have any such matter in his
personal custody or possession, or shall knowingly and wilfully
have any such matter in any dwelling-house or other building,
lodging, apartment, field, or other place, open or enclosed, whe-
ther 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 be-
nefit 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 ; and where the committing any offence
with intent to defraud any person whatsoever is made punish-
able by this act, in every such case the word " person" shall
throughout this act be deemed to include his majesty or any fo-
reign prince, or state, or any body corporate, or any company or
society of persons not incorporated, or any person or number of
persons whatsoever, who may be intended to be defrauded by
such offence," whether such body corporate, company, society,
person, or number of persons, shall reside or carry on business
in England or elsewhere in any place or country whether under
the dominion of his majesty or not ; and it shall be sufficient in
any indictment to name one person only of such company, so-
ciety, or number of persons, and to allege the offence to have
been committed with intent to defraud the person so named and
another, or others, as the case may be.
Punishment.'] By statute 2 & 3 W.4. c. 123. s. 1 . (reciting
1 W. 4. c. 66,) it is provided, that where any person shall, after
the passing of that act, be convicted of any offence whatsoever,
for which the said act enjoins or authorises the infliction of the
punishment of death, or where any person shall, after the pass-
ing of that act, be convicted in Scotland or Ireland of any offence
T 2
412 Forgery.
now punishable with death, which offence shall consist wholly
or in part of forging or altering any writing, instrument, matter,
or thing whatsoever, knowing the same to be forged or altered,
or of falsely personating another, then, and in each of the cases
aforesaid, the person so convicted of any such offence as afore-
said, or of procuring, or aiding, or assisting in the commission
thereof, shall not suffer death, or have sentence of death
awarded against him, but shall be transported beyond the seas
for the term of such offender's life.
By sect, 2, it is enacted, that notwithstanding any thing
herein-before contained, this act shall not be construed to affect
or alter the said recited act, or any other act or law now in
force, so far as the same may authorise the punishment of death,
to be inflicted upon any persons convicted, either in England,
Scotland, or Ireland, of forging or altering, or of offering, utter-
ing, or disposing of, knowing the same to be forged or altered,
any will, testament, codicil, or testamentary writing, with in-
tent to defraud any body corporate, or person whatsoever, or of
forging or altering, or of uttering, knowing the same to be
forged or altered, any power of attorney or other authority, to
transfer any share or interest of, or in any stock, annuity, or
other public fund, which now is, or hereafter may be trans-
ferable at the Bank of England or South Sea House, or at the
Bank of Ireland, or to receive any dividend payable in respect
of any such share or interest, with intent to defraud any body
corporate, or person whatsoever, or of procuring, aiding, or as-
sisting in the commission of any of the said offences, but thai
the punishment for each and every of the said offences, and for
procuring, aiding, or assisting in the commission thereof, shall
continue to be the same, as if this act had not been passed.
FORGING OF PARTICULAR INSTRUMENTS.
FORGING WILLS.
By the 3d section of the 1 W. 4. c. 66, the forging or utter-
ing, &c., of " any will, testament, codicil, or testamentary
writing," is rendered a capital punishment, and remains so by
the express saving of the statute 2 & 3 W. 4. c. 123, supra.
It is no less a forging of a will, that the party whose name is
forged is living. Coogan's case, 1 Leach, 449, 2 East, P. C.
948. If it appear that the will is a will of land, and attested
by two witnesses only, there can be no forgery, Wall's case,
Id. 953, ante, p. 397. Where the prisoners were indicted for
Forgery. 413
forging the will of Peter Perry, and it appeared that the will
began, " .1, Peter Perry," and ended
his
John x Perry,
mark.
It was objected that this was not the will of Peter Pern- ; but
the prisoners being convicted, the judges held the conviction
right. Fitzgerald's case, 2 East, P. C. 953. A probate un-
revoked, is not conclusive proof of the validity of the will, and
its repeal need not be proved. Buttery's case, Russ. $ Ry. 342.
FORGING DEEDS.
The forging of " any deed, bond, or writing obligatory, or
any court roll, or copy of court roll," is made subject to trans-
portation for life, by the 10th section of the 1 W. 4. c. 66.
The forging a power of attorney to receive a seaman's
wages, was held to be the forgery of a deed within the repealed
statute 2 G. 2. c. 25. Lewis's case, 2 East, P. C. 957. So
a power of attorney for the purpose of receiving prize-money.
Lyon's case, Russ. &; Ry. 255, ante, p. 392. In the same
manner, a power of attorney to transfer government stock,
Fanntleroy's case, 1 Moody, C. C. 56, 2 Bingh. 413, and an
indenture of apprenticeship. Jones's case, 2 East, P. C. 991,
1 Leach, 366. Where a forged deed is altered, the party may
be convicted for forging and uttering it in the state in which it
was so altered. Kinder's case, 2 East, P. C. 855.
Though the instrument in question may not comply with the
directory provisions of a statute, it may still be described as a
deed. Lyons case, Russ. 8f Ry. 255, ante, p. 392.
FORGING BILLS Of EXCHANGE, PROMISSORY NOTES,
AND WARRANTS AND ORDERS FOR PAYMENT OF
MONEY AND DELIVERY OF GOODS.
By 1 W. 4. c. 66. s. 3, it is enacted, (inter alia) that if
any person 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 promissory note for the payment ot money,
or any indorsement on, or assignment of any bill of exchange or
promissory note for the payment of money, or anjr acceptance of
414 Forgery.
any bill of exchange, or any undertaking, warrant, or order for
the payment of money, with intent, in any of the cases afore-
said, to defraud any person whatsoever, every such offender
shall be guilty of felony.
By the following section, if any instrument, however desig-
nated, is in law a bill of exchange, or promissory note, for the
payment of money, or an acceptance, &c., or an undertaking,
&c., within the intent and meaning of the act, the person
forging, &c., may be indicted as an offender against that act,
and punished accordingly.
By the 10th section of the same slat. 1 W. 4. c. 66, if any
person shall forge, or alter, or shall offer, utter, dispose of, or
put off, knowing the same to be forged, or altered, any warrant,
order, or request, for the delivery or transfer of goods, or for the
delivery of any note, bill, or other security for payment of
money, with intent to defraud any person whatsoever, every
such person shall be guilty of felony, &c., the punishment
being transportation for life, or not less than seven years, or im-
prisonment for four, and not less than two years.
Forging an indorsement upon a warrant or order for the pay-
ment of money, is not within the above section. Arscott's case,
6 C. % P. 408.
Proof of forging bills and notes.] In order to bring the case
within the statute, the instrument 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. Therefore, where it was in the
following form : " I promise to pay the bearer, one guinea on
demand, here in cash, or Bank of England note ;" the judges were
of opinion, that this was not a note for the payment of money
within the stat. 2 G. 2. c. 25, the guinea being to be paid in
cash or a Bank of England note, at the option of the payer.
Wilcock's case, 2 Russell,, 457.
But it is not necessary, in order to constitute a promissory
note for the payment of money within the statute, that it should
be negotiable. The prisoner was convicted of forging a pro-
missory note, in the following form :
" On demand, we promise to pay to Messdames S. W. and
S. D., stewardesses, 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. and Co.,
J. F."
It was moved in arrest of judgment, that this was no promis-
sory note ; but the judges were of a different opinion, saying,
that it was not necessary that it should be negotiable, and that
it was immaterial whether the payees were legally stewardesses,
Forgery. 415
and that their successors could not take the note. Box's case,
2 Russell, 460, Russ. # %. 300, 6 Taunt. 325.
So the offence will amount to forgery, where the bill of ex-
change is not in a negotiable state, from being drawn by the
prisoner in his own favour, and not indorsed by him. The
prisoner was charged with forging a bill, purporting to be
drawn by Atherton and Co., of Preston, on Denison and Co., of
London, payable to himself. The intent charged was, in one
count, to defraud Atherton and Co., and in another count, to
defraud one M. Yates. It appeared that the prisoner had
placed the bill in the hands of Mrs. Yates, an innkeeper, as a
security for his account, without indorsing it. The judge (Mr.
Baron Graham) told the jury that the use made by the prisoner
of the instrument, was conclusive evidence of his fraudulent in-
tent, and the jury found a verdict of guilty. The judge after-
wards respited the sentence, doubting whether he ought not to
have left the question of fraudulent intention more open to the
jury, in which case they might have found that the prisoner did
not mean to defraud any person, but by paying his reckoning,
and taking his bill, to make no further use of it. On a re-
ference to the judges, however, they were of opinion that the
facts amounted to forgery, and with a fraudulent intent, the bill
having been given to the landlady to obtain credit, though as a
pledge only. Birkett's case, Russ. $ Ry- 86.
Even before the late statute, (1 W. 4. c. 66. s. 4,) 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 professes also to be drawn in pursuance of some parti-
cular statute, with the requisitions of which it fails 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 instru-
ment as was warranted by the stat. 35 G. 3. c. 94. Chis-
halm's case, Russ. $ Ry. 297.
It has been already stated, that where the instrument alleged
to be a promissory note is not signed, it cannot be treated as
such. Pateman's case, Russ. fy Ry. 455, ante, p. 395. So
where the name of the payee is in blank. Randall's case, Russ.
$[ Ky. 195, ante, p. 396. So an instrument for the payment of
money under 51., but unattested. Mojfat's case, 1 Leach, 431,
ante, p. 396.
As to the forging of foreign bills, &c. vide ante, p. 410.
Proof of forging an order or warrant for the payment of
money or delivery of goods.] In an indictment under the 5th
section of the 1 W. 4, for forging an order for the payment of
money, it must appear, either upon the face of the instrument
itself, or by proper averments in the indictment, that the instru-
ment bears the character of an order. The prisoner was charged
with forging " a certain order for payment of money, as follows :"
416 Forgery.
" 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 nt Messrs. Masterman & Co.,
White Hart Court,
Wm. Me Inerheney."
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. Ravenscrnft's case, Russ. 6r Ry. 161.
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. Where the order was,
" Pay to Mr. H. Y. or order, all my proportion of prize money
due to me formy services on board His Majesty's ship Leander,"
it was objected that this 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.
M'Intosh's case, 2 East, P. C. 942.
In the construction of the words " warrant" and " order" for
the payment of money, it has been held that instruments which
in the commercial world have peculiar denominations are within
the meaning of those words, if they be in law orders or war-
rants. 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,
though not vice versa. Eockett's case, 2 East, P. C. 940, 943,
lLeac7i,94..S7iepp<m/'sea.se,2East, P.C.944, 1 Leacft,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.
Wil.lmthl>v's case, 2 East, P. C. 944.
The instrument, as set forth in the indictment, must appear
to be a request, &c., and if, in words, it does not so purport, it
must be explained by proper innuendos. Thus, where the pri-
soner was indicted for disposing of and putting off" a certain
forged request, as follows :
" Per Bearer,
2y Counterpain,
T. Davies,
88, Aldgate. E. Twell."
And it was proved by Davies, whose name was forged, that
they generally wrote their orders, " Send per bearer," or " per
bearer," and that such orders were common in their business,
and it was objected that this did not purport to be a request
Forgery. 417
within the 1 W. 4. c. 66, and that it was not addressed to any
one, the judges were unanimously of opinion, that the words
" per bearer" did not necessarily import " send per bearer,"
but might mean, " I have sent per bearer," and that there
ought to have been an innuendo to explain them. They seemed
to think an address not necessary. Cullen's case, 1 Moody,
C. C. 300. The latter point again arose in a case which occurred
goon afterwards. 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 5^ yards of blue to pattern,
&c. and you will oblige
VV. Reading, Mortimer St."
The request was not addressed to any one. The prisoner
being convicted, 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. All the judges who were present at
the meeting held the conviction right. Carney's case, 1 Moody,
C. C.351.
It seems, says Mr. East, to be now settled, that if the warrant
or order do not purport on the face of it, or be shown, by proper
averments, to be made by one having authority to command the
payment of the money, or direct the delivery of the goods, and
to be compulsory on the person having possession of the subject
matter of it ; but only purport to be a request to advance the
money, or supply the goods on the credit of the party applying,
which the other may comply with or not, as he thinks proper, it
is not a warrant or order within the statute. 2 East, P. C. 936.
Thus a note in the name of an overseer of the poor to a shop-
keeper, desiring him to let the prisoner have certain goods,
which he would see him paid for, was held not to be a warrant
or order for the delivery of goods, within the statute (7 G. 2.
c. 22.) The judges, on a case reserved, said, that the words
" warrant or order," as they stood in the act, were synonymous,
and imported that the person giving such warrant or order had,
or at least, claimed an interest in the money or goods which
were the subject matter of it, and had, or at least, assumed to
have a disposing power over them, and took upon himself to
transfer the property, or at least, the custody of them to the
person in whose favour such warrant or order was made. One
of the judges doubted, and another of their lordships dissented.
Mitchell's case, 2 East, P. C. 936. The prisoner was indicted
for forging the following " order for delivery of goods." "Sir,
please to let the bearer, Capt. Geo. Williams, have 12 barrels
x 5
418 Forgery.
of tar. W. Robinson." It appeared that the prisoner was
not the owner of, and had not any special interest in the
goods in question, nor had he any authority to send such an
order, if it had been genuine. Being convicted, the judges, on
a case reserved, held that it was not an order within the
act, on the authority of Mitchell's case, though most of them
said, they should have doubted the propriety of that deter-
mination had it been res Integra, but having been so long
acquiesced in, they thought it should not now be departed from.
Williams 'a case, 2 East, P. C. 937, 1 Leach, 114. ELfor's
case, 2 East, P. C. 938. The prisoner was indicted for forging
an order for the delivery of goods. The indictment stated, that
J. L. Desormeaux, silk dyer, delivered to F. Purser, silk dyer,
781bs. of raw silk, &c., and that the prisoner well knowing the
premises, forged a certain warrant or order for the delivery of
the goods, with the name of L. Desemockex thereto subscribed,
purporting to have been signed by one Louis Desormeaux by the
name of L. Desemockex, he, the said L. Desormeaux, then and
there being the servant of the said J. L. D. in his business of a
silk dyer, and purporting to be a warrant or order from the said
L. Desormeaux, as such servant of the said J. L. D. for the
delivery of, &c. the tenor of which, &c. is as follows :
" Please to send by the bearer 81b. of that whorpe hun
market,
L. Desemockex."
It appeared in evidence that the prisoner, who had lived fora
fortnight with the prosecutor as servant, went to Purser, to
whom certain silk had been delivered, with the forged order,
which he represented as coming from Mr. L. Desormeaux, the
son of the prosecutor, who managed part of his father's busi-
ness. The prisoner being convicted, the judges on a reference
to them, on the authority of Mitchell's and Williarns's case,
supra, held the conviction wrong. They said that the order
must be directed to the holder of, or person interested in, or
having possession of the goods, but that the order in question
was not directed to any person, merely expressing a desire that
8lbs. of silk should be delivered to the bearer, without any
direction from whom it was to be received. On that ground,
therefore, the judges were of opinion that this was not a warrant
or order within the statute. They also said, that with regard
to the form of the indictment, it ought to have appeared
therein that the person whose name was subscribed to the
order had authority to make it, which was not to be collected
from the words of the present indictment. Clinch's case, 2 East,
P. C. 938, 1 Leach, 540. It has been observed as a consequence
of this decision, that if the indictment states the person in
whose name the order is forged to have been servant to J. S.,
Forgery. 419
and that the order was for the delivery of goods of J. S., it
ought to show that the servant, as such, had a disposing power
over the goods. JUS. Baiiley, J. 2 Russell, 474. (n.)
The prisoner was indicted for forging a certain order for the
payment of money ; that is to say,
" Mr. Thomas,
Sir You will please to pay the bearer, for Rd.
Power, three pounds, for three weeks, due to him, a country
member, and you will much oblige, your's, 3cc.
J. Beswick.
To Mr. Thomas, Gray's Inn Lane."
The indictment then averred an intent to defraud J. Thomas,
who had in his hands a large sum of money belonging to a
Friendly Society. Beswick, whose name was forged, was
Secretary to the Society, and he proved that there was no person
named Rd. Power, a member. No evidence was given of the
rules of the Society. The Recorder, in the absence of such
evidence, thought that there was nothing to prove that Beswick
had any disposing power over the money in the hands of
Thomas ; and upon a case reserved, the judges (except
Gaselee and Parke, Js.) held that this was not an order on
the face of it, and that the conviction was wrong. Baker's
case, 1 Moody, C. C. 231. Upon the same principle it was
held, that a forged order, for the purpose of obtaining a reward
for the apprehension of a vagrant, not being under seal as
required by the statute J7 G. 2. c. 5. s. 5, (repealed) and not
being directed to the higli constable, was not an order
for the payment, although orders in that form had been
generally acted upon. Bayley, J., before whom the prisoner
was tried, said, to bring the case within the statute, the
order must be such as, on the face of it, imports to be made
by a person who has a disposing power over the funds. In
this case the party, looking at the act, must have known that
the order was not made by one who had a disposing power
over the funds in his hands. The magistrate, as an individual,
had no right to make such an order ; and the treasurer had no
right to consider it as an order which he was bound to obey.
The magistrate, in his character of a justice of the peace, had
no right to make such an order ; if he had any, it was derived
from the statute ; but he had no power to make such an order
as this ; and if such a one had been made, the treasurer ought
not to have obeyed it. Rushworth's case, 2 Russell, 471. On
a reference to the judges, they held that this direction was
right. Buss. &; Ry. 317. See Frond's case, Russ. % Ry. 389.
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
although no such person be in existence as the order purports
420 Forgery.
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 and Co., Pay to Wm. Hopwood, or bearer,
16 10s. 6d. R. Vennist." The prisoner had given this
order in payment for goods. No such person as Vennist kept
cash with Neale and Co. ; nor did it appear that there was any
such person in existence. The judges, on considering the
Case, held it to be forgery. They thought it immaterial
whether such a man as Vennist existed or not ; or if he did,
whether he kept cash with Neale and 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.
Lockett's case, 2 East, P. C. 940, 1 Leach, 94. The same
point was again argued in Abraham's case, 2 East, P. C. 941,
1 Leach, 96. (n.)
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 Goldsmith's-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. Jones'* case, 2 East, P. C. 941, 1 Leach, 53.
Nor will the order he less the subject of forgery on account
of its not being available, by reason of some collateral objection
not appearing on the face of it. 2 Russell, 475. The prisoner
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 statute 32 G. 3. c. 34. s. 2. The
judges, however, held the conviction proper, the order itself,
on the face of it, purporting to be made at another place
beyond the limited distance. M'Intosh's case, 2 East, P. C.
942, 2 Leach, 883, 2 Russell, 475.
The prisoner was charged with forging " a certain warrant
and order for the payment of money." The instrument in
fjuestion was a forged check 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
Furgery. 421
sufficient. He thought the instrument was both a warrant and
an order; a warrant authorising the banker to pay, and an
order upon him to do so. Crowther's case, 5 C. P. 316.
FORGING RECEIPTS.
By the 1 W. 4. c. 66. s. 10, if any person shall forge or
alter, or shall offer, utter, dispose of, or put off, knowing the
same to be forged or altered, any acquittance or receipt, either
for money or goods, or any accountable receipt, either for
money or goods, with intent to defraud any person whatsoever,
every such offender shall be guilty of felony, and being con-
victed thereof, shall be liable, at the discretion of the court, to
be transported beyond the seas for life, or for any term not less
than seven years, or to be imprisoned for any term not exceeding
four years, nor less than two years.
With regard to what, on the face of it, will constitute a
receipt, the following case was decided upon the repealed statute.
The prisoner was convicted of uttering a forged receipt for
money, as follows, viz.:
18th March, 1773.
" Received the contents above, by me,
Stephen Withers."
The prisoner was employed by a lottery shopkeeper to carry
out prize-money, and had the following account delivered to
him to carry out:
"Mr. Withers.
" One 16th of a 20. prize .... 1 5
Deduct, &c 010
1 4 0"
To this account the prisoner forged the receipt in question.
It was objected for the prisoner, that the receipt being for
" contents above," it and the bill were one entire thing, and
the whole ought to have been set out ; and that it did not
appear by the indictment what the receipt was for. But the
judges were of opinion that the indictment was good, for it was
*' Received the contents above," which showed it to be a
receipt for something, though the particulars were not expressed,
and it was laid to be a forged receipt for money, under the
hand of S. W., for I/. 4s. Qd. ; and the bill itself was only
evidence of the fact, and showed it to be a receipt for money
as charged. Testick's case, 2 L'asf, P. C. 925.
422 Forgery.
What is to be considered a "receipt for money," was decided
in the following case : The prisoner was indicted underthe 2 G.
2. c. 25. & 3 1 G. 2. c. 22. s. 78, for forging a certain receipt for
money, viz. &c. ; and in other counts, upon the statute 7 G. 2.
c. 22, with altering a certain accountable receipt for bank notes
for payment of money, with intent to defraud the Bank of
England. It appeared that the prisoner was accountant to the
London Assurance Company, who kept their cash with the
Bank of England, who furnished them with a book in which
the clerk of the Bank entered all sums paid in by the Company,
and signed his name to the entry. One of these entries was
altered by the prisoner, from 210/. to 3,210/., which was the
forgery in question. It was objected for the prisoner, that the
statutes 2 & 31 G. 2. mentioned only money and goods, and
not bank notes ; and the statute 7 G. 2. related only to persons,
and not to corporations. The prisoner was acquitted upon the
first count, and on a reference to the judges, with regard to
the second objection, they were of opinion that the statute did
not apply to corporations. Harrison's case, 2 East, P. C. 926,
1 Leach, 180. It appears, from the report of this case
in Leach, that the judges expressed a clear opinion that the
entry in the bank book was an accountable receipt within the
meaning of the act, but no opinion to that effect was publicly
given. See 2 East, P. C. 928.
In an indictment for forging a receipt to an assignment for
payment of a certain sum in a navy bill, it is not sufficient to
state such navy bill and such assignment, and then to charge
that the prisoner forged a receipt for money mentioned in the
said navy bill as follows; viz. " Wm. Thornton, Win. Hun-
ter ;" because the mere signing such names, unless connected
with the previous matter, does not necessarily purport on the
face of it to be a receipt ; but it should be averred that such
navy bill, &c., together with such signature, did purport to be,
and was a receipt, &c. The judges, to whom the case was re-
ferred, said that the name itself, as stated in the indictment,
was no receipt, though, coupled with the navy bill, it might
form one. But then it ought to be so stated, as was done in a
case referred to in the Crown Circuit Companion, which was
an indictment for uttering a forged warrant for the payment of a
South Sea annuity, wherein it was stated that one D. H. was
a clerk of the S. S. Company, intrusted to sign warrants for the
payment of money, and that one H. P., having in his custody a
certain warrant, &c., signed by the said D. H., and directed to
R. R., the cashier of the company, for the payment of 8/. to
one W. D., on the back of which said warrant the said W. D.
had signed his name ; which said paper, partly printed, c., to-
gether with the said indorsement, in form aforesaid, did purport
to be and was a receipt, acquittance, and discharge under the
hand <>f the said W. D. for the said sum of 81. ; he the said
Forgery. 423
H. P. did feloniously, &c. alter, &c. Hunter's case, 2 East, P.
C. 928, 2 Leach, 624. Upon the authority of the foregoing
case, the following was decided. The prisoner was indicted
for forging " a certain receipt for money," as follows, that is to
say, " Settled, S. M.," with intent, &c. It appeared in evi-
dence, that the prisoner, who was employed to receive and pay
the monies of a subscription fund, had forged the receipt in
question at the bottom of a bill sent in to the trustees of the
fund. It was contended for the prisoner, that on the face of
the indictment there did not purport to be a " receipt for mo-
ney," and that it should have been shown to be such by proper
averments ; and the court, (Thompson B. and Graham B.) on
the authority of Hunter's case, supra, were of that opinion, and
held that the indictment was defective. Thompson's case, 2 Leach,
910. The indictment charged that a precept had been issued by
one C. H., high constable, &c., directed to the overseers of the
poor of C., to collect 2 H. 11s. 4</. ; that a receipt far money,
viz. for the sum of 21/. 11s. 4d. had been forged, by falsely af-
fixing and cementing to the said precept, at the foot thereof, a
certain receipt, in the hand-writing of one Henry Hargreaves, of
the tenor following, that is to say, " 1825. Reed., H. H.,"
which had, before then, been made and written by the said
Henry Hargreaves as a receipt for other money, and that the pri-
soner published, ixc. It was objected that there ought to have
been an averment to explain what was meant by the word
" Reed.," and what by the initials H. H. The prisoner
being convicted, the judges considered the case, and held the
indictment bad, because there was nothing to show what the
initials H. H. meant, or what connection Hargreaves had with
Hindle, or with the receipt. Barton's case, 1 Moodu, C. C. 141.
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 contemplation of law, within the stat. 2 G. 2. c. 25.
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 subscribers, and until the blank was filled up, the instru-
ment did not become 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 Harrison's case, (ante, p. 422.) the book, in
which the entry was made, imported to be a book containing
receipts for money received by the bank from their customers,
and showed that the money was received from the person to
whom the book belonged. Lyon's case, 2 East, P. C. 933,
2 Leach, 597.
424 Forgery.
In the following case, a point arose with regard to the party
intended to be defrauded by certain forged receipts. Grose J.,
in delivering the opinion of the judges, stated the facts of the
case. He said the prisoner was tried on an indictment charg-
ing h'im, in the first count, with having uttered twenty-two
forged acquittances and receipts for money, purporting to be
signed by different persons, as for money received by John
Collinridge. There were two other counts, one for forging, and
another for uttering one of the receipts. Previously to the
trial, it was submitted to the court by the prisoner's counsel,
that the prosecutor ought to be directed on which particular re-
ceipt he intended to proceed ; but the indictment charging him
with having uttered all the receipts at one and the same time,
the objection was overruled, and the judges were of opinion that
this application was properly refused ; for it was proved that
the prisoner had uttered ail the receipts at the same time to the
solicitor of the navy board, as vouchers for the account of
Collinridge, a public accountant, deceased, which the prisoner
had undertaken to get passed at the navy board. The second
objection was, that as these receipts purported to be receipts
given to Collinridge, by the workmen whom he employed, for
work done and materials found for him, the navy board had
no concern with them, and the offence was not within the 2 G. 2.
c. 25. s. 1. or 31 G. 2. c. 22. ; forthatthe workmen were solely
employed by Collinridge, and not by the navy board ; and that,
as he only was answerable, it was indifferent to the board whe-
ther the sums had been paid or not. In answer to this objec-
tion, the learned judge observed, that as the work was done for
the commissioners of the navy board, the persons employed for
that purpose by him, were employed not solely on his own ac-
count, but also on account of the king ; and these receipts, if
genuine, would have been legal vouchers for his account, and
would have entitled him to a discharge from the navy board.
The judges, therefore, were of opinion, that the instruments
were forged receipts for money within the statute, and that
they had been uttered with intent to defraud the king. Thomas's
case, 2 Leach, 877, 2 Fast, P. C. 934.
To constitute a receipt for money, within the statute, the in-
strument must purport to be an acknowledgment by some one,
of money having been received. The prisoner was indicted for
forging a receipt and acquittance, (setting it out.) The in-
strument was 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 house-
keeper. The prisoner being convicted, the judges held the
conviction wrong, being of opinion that this could not be
Forgery. 425
considered as a receipt. It was an assertion that Chinnery
had paid the money, but did not import an acknowledgment
thereof. Harvey's case, Russ. fy Ry. 227.
FORGERIES RELATING TO THE PUBLIC FUNDS.
False entries in books of Bank, and transfer in false names.]
By the 1 W. 4. c. 66. s. 5, if any person 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 by the governor and company of merchants
of Great Britain, trading to the South Seas and other parts of
America, and for encouraging the fisheries, commonly called
the South Sea Company ; in which books, the accounts of the
owners of any stock, annuities, or other public funds, which
now are or hereafter may be transferrable at the Bank of Eng-
land, or at the South Sea House, shall be entered and kept, or
shall in any manner wilfully falsify the accounts of such owners
in any of the said books, with intent, in any of the cases afore-
said, to defraud any person whatsoever ; or if any person shall
wilfully make any transfer of any share or interest of or in any
stock, annuity, or other public fund, which now is or hereafter
may be transferable at the Bank of England, or at the South
Sea House, in the name of any person not being the true and
lawful owner of such share or interest, with intent to defraud
any person whatsoever ; every such offender shall be guilty of
felony, and being convicted thereof, shall suffer death as a
felon. As to the punishment, videante, p. 411.
Proof of forging tranfers of stock, and of power of attorney
to transfer.] By the 1 W. 4. c. 66. s. 6, it is enacted, that
if any person shall forge or alter, or shall utter, 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 transferrable at the Bank of England,
or at the South Sea House, or of or in the capital stock of any
body corporate, company, or society which now is or hereafter
may be established by charter or act of parliament, or shall
forge or alter, or shall utter 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 as is herein-before mentioned, or to receive any
dividend payable in respect of any such share or interest, or
shall demand or endeavour to have any such share or interest
transferred, or to receive any dividend 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
426 Forgery.
in any of the several cases aforesaid to defraud any person what-
soever ; or if any person shall falsely and deceitfully personate
any owner of any such share, interest or dividend as aforesaid,
and thereby transfer any share or interest belonging to such
owner, or thereby receive any money due to such owner as if
such person were the true and lawful owner ; every such
offender shall be guilty of felony, and, being convicted thereof,
shall suffer death as a felon. As to punishment of death in the
above cases, see the 2 & 3 W. 4. c. 123, ante, p. 411.
In the following cases which was an indictment founded on
the stat. 33 G. 3. c. 30, 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 ; 2dly, that till
the stock was accepted, no transfer at all could be made ;
3rdly, that the instrument was not witnessed, which, according
to the printed forms 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 ;
2d, that the nature of the offence would not have been altered
if the party had not 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. Cade's case, 2 East, P. C. 874, 2 Leach,
732.
Proof of personating owner, and endeavouring to transfer
ttock.~] By the 7th section of the 1 W. 4. c. 66, it is enacted,
that if any person shall falsely and deceitfully personate any
owner of any share or interest of or in any stock, annuity, or
other public fund which now is or hereafter may be transferable
at the Bank of England or at the South Sea House, 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 act of parliament, or any
owner of any dividend payable in respect of any such share or
interest as aforesaid, and shall thereby endeavour to transfer
Forgery. 427
any share or interest belonging to any such owner, or thereby
endeavour to receive any money due to any such owner as if
such offender were the true and lawful owner, every such
offender shall be guilty of felony, and, being convicted thereof,
shall be liable, at the discretion of the court, to be transported
beyond the seas for life, or for any term not less than seven
years, or to be imprisoned for any term not exceeding four years,
nor less than two years.
The following case was decided upon the former statute
31 G. 3. c. 22. The prisoner was indicted for personating
one Isaac Hart, the proprietor of certain stock, and thereby
endeavouring to receive from the Bank of England the sum of,
&c. 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 carrying 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 endeavoured
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 personating of the
true proprietor, and that he thereby endeavoured to receive the
money, within the intent and meaning of the act of parliament.
Parr's case, 1 Leach, 434, 2 East, P. C. 1005.
Proof of forging attestation to power of attorney or transfer of
jrocfe.] By the 8th section of the 1 W. 4. c. 66, it is enacted,
that if any person shall forge the name or hand-writing of any
person, as or purporting to be a witness attesting the execution
of any power of attorney or other authority, to transfer any
share or interest of or in any such stock, annuity, public fund,
or capital stock, as is in the said act before mentioned, or to
receive any dividend payable in respect of any such share
or interest, or shall utter any such power of attorney or other
authority, with the name or hand-writing of any person forged
thereon, as an attesting witness, knowing the same to be forged,
every such offender shall be guilty of felony, and being con-
victed thereof, shall be liable at the discretion of the court to
be transported beyond the seas for the term of seven years, or to
be imprisoned for any term not exceeding two years, nor less
than one year.
Proof of clerks in the bank making out false dividend war-
rants.] By the 9th section of the 1 W. 4. c. 66, it is enacted,
that if any clerk, officer, or servant of, or other person employed
or entrusted by the governor and company of the Bank of Eng-
land, or the governor and company of merchants, commonly
called the South Sea Company, shall knowingly make out or
deliver any dividend warrant for a greater or less amount than
428 Forgery.
the person or persons on whose behalf such dividend warrant
shall be made out is or are entitled to, with intent to defraud
any person whatsoever, every such offender shall be guilty of
felony, and being convicted thereof, shall be liable, at the dis-
cretion of the court, to be transported beyond the seas for the
term of seven years, or to be imprisoned for any term not ex-
ceeding two years, nor less than one year.
Proof of forging exchequer bills East India bonds, $fc.] By
the 3d section of the statute 1 W. 4. c. 66, it is enacted,
(inter alia) that if any person 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 exchequer debenture, or any
indorsement on, or assignment of, any exchequer bill, or ex-
chequer debenture, or any bond under the common seal of the
united company of merchants of England, trading to the East
Indies, commonly called an East India bond, with intent in
any of the cases aforesaid, to defraud any person whatsoever,
every such offender shall be guilty of felony, and being con-
victed thereof, shall suffer death as a felon. As to the punish-
ment, vide ante, p. 411.
FORGERY, AND SIMILAR OFFENCES WITH REGARD
TO BANK OF ENGLAND AND BANKERS* NOTES.
The various statutes passed for the purpose of preventing the
forgery of bank notes are repealed, and their provisions re-
enacted by the statute 1 W. 4. c. 66, which contains the fol-
lowing clauses relating to this head of forgeries.
Proof of knowingly purchasing or receiving, or having in
possession, forged bank notes.'] 13y section 12 of the above
statute, it is enacted, that if any person shall, without law-
ful excuse, the proof whereof shall lie upon the party accused,
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 bank
bill of exchange, or blank bank post bill, knowing the same
respectively to be forged, every such offender shall be guilty of
felony, and, being convicted thereof, shall be transported be-
yond the seas for the term of fourteen years.
Proof of making or having, without authority, any mould for
making paper with the words " Bank of England" visible m the
Forgery. 429
substance, or for making paper with curved bar lines, fyc., or
selling such paper.~] And by section 13, it is enacted, that
if any person shall, without the authority of the governor
and company of the Bank of England, to be proved by the
party accused, make or use, or shall, without lawful ex-
cuse, to be proved by the party accused, knowingly have
in his custody or possession, any frame, mould, or instru-
ment for the making of paper with the words " Bank of
England" visible in the substance of the paper, or for the
making of paper with curved or waving bar lines, or with
the laying wire lines thereof in a waving or curved shape
or with any number, sum, or amount, expressed in a word or
words in Roman letters, visible in the substance of the paper ;
or if any person shall, without such authority, to be proved as
aforesaid, manufacture, use, sell, expose to sale, utter, or dis-
pose of, or shall, without lawful excuse, to be proved as afore-
said, knowingly have in his custody or possession, any paper
whatsoever with the words " Bank of England" visible in the
substance of the paper, or any paper with curved or waving bar
lines, or with the laying wire lines thereof in a waving or
curved shape, or with any number, sum, or amount, expressed
in a word or words in Roman letters, appearing visible in the
substance of the paper ; or if any person, without such authority,
to be proved as aforesaid, shall, by any art or contrivance, cause
the words " Bank of England" to appear visible in the sub-
stance of any paper, or cause the numerical sum or amount of
any bank note, bank bill of exchange, or bank post bill, blank
bank note, blank bank bill of exchange, or blank 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 ; every such offender shall be guilty of felony, and,
being convicted thereof, shall be transported beyond the seas
for the term of fourteen years.
Proviso as to paper used for bills of exchange, fc.] And by sec.
14, it is provided and enacted, that nothing therein contained
shall prevent any person from issuing any bill of exchange
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
paper having waving or curved lines, or any other devices in
the nature of watermarks, visible in the substance of the paper,
not being bar lines or laying wire lines, provided the same are
not so contrived as to form the groundwork or texture of the
paper, or to resemble the waving or curved laying wire lines
or bar lines or the watermarks of the paper used by the governor
and company of the Bank of England.
430 Forgery.
Proof of engraving on any plate, dSfe. any bank-note, blank
bank-note, $fc. or ming or having such plate, <3fc., or uttering
or having paper upon which a blank bank-note, c. shall be
printed, without authority.'] And by section 15, it is en-
acted, that if any person shall engrave or in anywise make
upon any plate whatever, or upon any wood, stone, or other
material, any promissory note or bill of exchange, or blank
promissory note or blank bill of exchange, or part of a pro-
missory note or bill of exchange, purporting to be a 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,
without the authority of the governor and company of the Bank
of England, to be proved by the party accused ; or if any person
shall use 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, without
such authority, to be proved as aforesaid ; or if any person shall,
without lawful excuse, the proof whereof shall lie on the party
accused, knowingly have in his custody or possession any such
plate, wood, stone, or other material, or any such instrument or
device; or if any person shall, without such authority, to be
proved as aforesaid, knowingly offer, utter, dispose of, or put off
any paper upon which any blank bank-note, blank bank bill of ex-
change, or blank bank post bill, or part of a bank-note, bank
bill of exchange, or bank post bill, shall be made or printed ;
or if any person shall, without lawful excuse, to be proved as
aforesaid, knowingly have in his custody or possession any such
paper ; every such offender shall be guilty of felony, and, being
convicted thereof, shall be transported beyond the seas for the
term of fourteen years.
Proof of engraving on any plate, c. any word, number, or or-
nament resembling any part of a bank-note, (Sfc.] And by sec. 16,
it is enacted, that if any person shall engrave or in anywise make
upon any plate whatever, or upon any wood, stone, or other
material, any word, number, figure, character, or ornament, the
impression taken from which shall resemble, or apparently be
intended to resemble, any part of a bank-note, bank bill of ex-
change, or bank post bill, without the authority of the governor
and company of the Bank of England, to be proved by tiie party
accused ; or if any person shall use any such plate, wood, stone,
or other material, or any other instrument or device, for the
making upon any paper or other material the impression of any
word, number, figure, character, or ornament which shall re-
semble, or apparently be intended to resemble, any part of a
bank-note, bank bill of exchange, or bank post bill, without
Forgery. 431
such authority, to be proved as aforesaid ; or if any person shall,
without lawful excuse, the proof whereof shall lie on the party
accused, knowingly have in his custody or possession any such
plate, wood, stone, or other material, or any such instrument or
device ; or if any person shall, without such authority, to be
proved as aforesaid, knowingly offer, utter, dispose of, or put off
any paper or other material upon which there shall be an' im-
pression of any such matter as aforesaid ; or if any person shall,
without lawful excuse, to be proved as aforesaid, knowingly
have in his custody or possession any paper or other material
upon which there shall be an impression of any such matter as
aforesaid ; every such offender shall be guilty of felony, and,
being convicted thereof, shall be transported beyond the seas for
the term of fourteen years.
Proof of making or having in possession any mould for manu-
facturing paper, with the name of any bankers appearing in thesub-
stu'ice.] And by sec. 17, it is enacted, that if any person shall
make or use any frame, mould, or instrument for the manufacture
of paper, with the name or firm of any person or persons, body
corporate, or company carrying on the business of bankers
(other than and except the Bank of England) appearing visible
in the substance of the paper, without the authority of such per-
son or persons, body corporate, or company, the proof of which
authority shall lie on the party accused ; or if any person shall,
without lawful excuse, the proof whereof shall lie on the party
accused, knowingly have in his custody or possession any such
frame, mould, or instrument; or if any person shall, without
such authority, to be proved as aforesaid, manufacture, use, sell,
expose to sale, utter, or dispose of, or shall, without lawful ex-
cuse, to be proved as aforesaid, knowingly have in his custody or
possession, any paper in the substance of which the name or firm
of any such person or persons, body corporate, or company car-
rying on the business of bankers shall appear visible ; or if any
person shall, without such authority, to be proved as aforesaid,
cause the name or firm of any such person or persons, body cor-
porate, or company carrying on the business of bankers to appear
visible in the substance of the paper upon which the same shall
be written or printed ; every such offender shall be guilty of fe-
lony, and, being convicted thereof, shall be liable, at the discre-
tion of the court, to be transported beyond the seas for any term
not exceeding fourteen years, nor less than seven years, or to be
imprisoned for any term not exceeding three years, nor less than
one year.
Proof of engraving on any plate, &c. uny bill of exchange or
promissory note of any bankers, $c.~] And by sec. 18, it is enacted,
that if any person shall engrave or in anywise make upon any
plate whatever, or upon any wood, stone, or other material, any
432 Forgery.
bill of exchange or promissory note for the payment of money, or
any part of any bill of exchange or promissory note for the pay-
ment of money, purporting to be the bill or note, or part of the
bill or note, of any person or persons, body corporate, or com-
pany carrying on the business of bankers, (other than and ex-
cept the Bank of England,) without the authority of such person
or persons, body corporate, or company, the proof of which
authority shall lie on the party accused ; or if any person shall
engrave or make upon any plate whatever, or upon any wood,
stone, or other material, any word or words resembling, or ap-
parently intended to resemble, any subscription subjoined to
any bill of exchange or promissory note for the payment of
money issued by any such person or persons, body corporate, or
company carrying on the business of bankers, without such au-
thority, to be proved as aforesaid ; or if any person shall, with-
out such authority, to be proved as aforesaid, use, or shall,
without lawful excuse, to be proved by the party accused, know-
ingly have in his custody or possession, any plate, wood, stone,
or other material upon which any such bill or note, or part
thereof, or any word or words resembling, or apparently intended
to resemble, such subscription., shall be engraved or made ; or
if any person shall, without such authority, to be proved as
aforesaid, knowingly offer, utter, dispose of, or put off, or shall,
without lawful excuse, to be proved as aforesaid, knowingly
have in his custody or possession, any paper upon which any
part of such bill or note, or any word or words resembling, or
apparently intended to resemble, any such subscription, shall
be made or printed, every such offender shall be guilty of felony,
and, being convicted thereof, shall be liable, at the discretion
of the court, to be transported beyond the seas for any term not
exceeding fourteen years, nor less than seven years, or to be
imprisoned for any term not exceeding three years, nor less than
one year.
FORGING ENTRIES IN PUBLIC REGISTERS, ETC.
The forging of entries in registers of marriages, &c. was for-
merly provided against by the statutes 52 G. 3. c. 146, and
4 G. 4. c. 76 ; but the provisions of those statutes on this sub-
ject are now repealed, and ic-enacted in substance in the
1 W. 4. c. 66.
By the 20th section of that statute, it is enacted, that if any
person shall knowingly and wilfully insert, or cause or permit
to be inserted, in any register of baptisms, marriages, or burials,
which has been or shall be made or kept by the rector, vicar,
curate, or officiating minister of any parish, district-parish, or
chapelry in England, any false entry of any matter relating to
Forgery. 433
any baptism, marriage, or burial, or shall forge or alter in any
such register any entry of any matter relating to any baptism,
marriage, or burial ; or shall utter any writing, as and for a copy
of an entry in any such register of any matter relating to any
baptism, marriage, or burial, knowing such writing to be false,
forged, or altered ; or if any person shall utter any entry in any
such register of any matter relating to any baptism, marriage, or
burial, knowing such entry to be false, forged, or altered, or
shall utter any copy of such entry, knowing such entry to be
false, forged, or altered, or shall wilfully destroy, deface, or in-
jure, or cause or permit to be destroyed, defaced, or injured,
any such register or any part thereof; or shall forge or alter, or
shall utter knowing the same to be forged or altered, any licence
of marriage ; every such offender shall be guilty of felony, and,
being convicted thereof, shall be liable, at the discretion of th
Court, to be transported beyond the seas for life or for any term
not less than seven years, or to be imprisoned for any term not
exceeding four years nor less than two years.
And by section 21, it is provided and enacted, that no rector,
vicar, curate, or officiating minister of any parish, district-
parish, or chapelry, who shall discover any error in the form or
substance of the entry in the register of any baptism, marriage,
or burial respectively by him solemnized, shall be liable to any
of the penalties herein mentioned if he shall, within one calen-
dar month after the discovery of such error, in the presence of
the parent or parents of the child baptized, or of the parties
married, -or in the presence of two persons who shall have
attended at any burial, or in the case of the death or absence of
the respective parties aforesaid, then in the presence of the
churchwardens or chapelwardens, correct the entry which shall
have been found erroneous, according to the truth of the case,
by entry in the margin of the register wherein such erroneous
entry shall have been made, without any alteration or oblitera-
tion of the original entry, and shall sign such entry in the
margin, and add to such signature the day of the month and
year when such correction shall be made ; and such correction
and signature shall be attested by the parties in whose presence
the same are directed to be made as aforesaid : Provided also,
th^t in the copy of the register which shall be transmitted to the
registrar of the diocese, the said rector, vicar, curate, or officiat-
ing minister shall certify the corrections so made by him as
aforesaid.
And by section 22, reciting;, that whereas copies of the regis-
ters of baptisms, marriages, and burials, such copies being signed
and verified by the written declaration of the rector, vicar, cu-
rate, or officiating minister of every parish, district-parish, and
chapelry in England where the ceremonies of baptism, marriage,
and bunal may lawfully be performed, are directed by law to be
made and transmitted to the registrar of the diocese within which
434 Forgery.
such parish, district-parish, or chapelry may be situated ; it is
enacted, that if any person shall knowingly and wilfully insert,
or cause or permit to be inserted, in any copy of any register so
directed to be transmitted as aforesaid, any false entry of any
matter relating to any baptism, marriage, or burial, or shall
forge or alter, or shall utter knowing the same to be forged or
altered, any copy of any register so directed to be transmitted as
aforesaid, or shall knowingly and wilfully sign or verify any
copy of any register so directed to be transmitted as aforesaid,
which copy shall be false in any part thereof, knowing the same
to be false, every such offender shall be guilty of felony, and,
being convicted thereof, shall be liable, at the discretion of the
Court, to be transported beyond the seas for the term of seven
years, or to be imprisoned for any term not exceeding two years
nor less than one year.
FORGERY OF STAMPS.
By 52 Geo. 3. c. 143. s. 7, it is enacted, that if any person
shall, after the passing of that act, forge or counterfeit, or cause
or procure to be forged or counterfeited, any mark, stamp, die,
or plate, which, in pursuance of any act or acts of parliament,
shall have been provided, made, or used, by or under the
direction of the commissioners appointed to manage the duties
on stamped vellum, parchment, and paper, or by or under the
direction of any other person or persons legally authorized in
that behalf, for expressing or denoting any duty or duties, or
any part thereof, which shall be under the care and manage-
ment of the said commissioners, or for denoting or testifying
the payment of any such duty or duties, or any part thereof, or
for denoting any device appointed by the said commissioners for
the ace of spades, to be used with any playing cards, or shall
forge or counterfeit, or cause or procure to be forged or counter-
feited, the impression, or any resemblance of the impression,
of any such mark, stamp, die, or plate, as aforesaid, upon any
vellum, parchment, paper, card, ivory, gold, or silver plate, or
other material, or shall stamp or mark, or cause or procure to
be stamped or marked, any vellum, parchment, paper, card,
ivory, gold, or silver plate, or other material, with any such
forged or counterfeited mark, stamp, die, or plate, as aforesaid,
with intent to defraud his Majesty, his heirs or successors, of
any of the duties, or any part of the duties, under the care and
management of the said commissioners ; or, if any person shall
utter or sell, or expose to sale, any vellum, parchment, paper,
card, ivory, gold or silver plate, or other material, having there-
Forgery. 435
upon the impression, or any such forged or counterfeited mark ,
stamp, die, or plate, or any such forged or counterfeited im-
pression as aforesaid, knowing the same respectively to be
forged or counterfeited; or, if any person shall privately or
secretly use any such mark, stamp, die or plate, which shall
have been so provided, made or used, by or under such direction
as aforesaid, with intent to defraud his Majesty, his heirs, or
successors, of any of the duties, or any part of the duties, under
the care and management of the said commissioners, every
person so offending, and being thereof convicted, shall be
adjudged guilty of felony, and shall suffer death as a felon,
without benefit of clergy. As to the punishment, mde
ante, p. 411.
And by 55 Geo. 3. c. 184. s. 7, it is enacted, that if any
person shall forge or counterfeit, or cause or procure to be
forged or counterfeited, any stamp, or die, or any part of any
stamp, or die, which shall have been provided, made, or used,
in pursuance of that act, or in pursuance of any former act or
acts, relating to any stamp duty or duties, or shall forge, coun-
terfeit, or resemble, or cause or procure to be forged, counter-
feited, or resembled, the impression, or any part of the im-
pression, of any such stamp, or die, as aforesaid, upon any
vellum, parchment or paper, or shall stamp or mark, or cause
or procure to be stamped or marked, any vellum, parchment,
or paper, with any such forged or counterfeited stamp or
die, or part of any stamp or die as aforesaid, with intent to
defraud his Majesty, his heirs or successors, of any of the
duties hereby granted, or any part thereof; or if any person
shall utter, or sell or expose to sale, any vellum, parchment
or paper, having thereon the impression of any such forged
or counterfeited stamp or die, or part of any stamp or die, or
any such forged, counterfeited, or resembled impression, or part
of impression, as aforesaid, knowing the same respectively to be
forged, counterfeited or resembled, or if any person shall pri-
vately and secretly use any stamp or die, which shall have been
so provided, made or used, as aforesaid, with intent to defraud
his Majesty, his heirs or successors, of any of the said duties,
or any part thereof; or if any person shall fraudulently cut,
tear or get off, or cause or procure to be cut, torn or got off,
the impression of any stamp or die, which shall have been
provided, made or used, in pursuance of that or any former act,
for expressing or denoting any duty or duties, under the care
and management of the commissioners of stamps, or any part
of such duty or duties, from any vellum, parchment, or paper
whatsoever, with intent to use the same for or upon any other
vellum, parchment or paper, or any instrument or writing
charged or chargeable with any of the duties thereby granted ;
then, and in every such case, every person so offending,
and every person knowingly and wilfully aiding, abetting,
436 Forgery.
or assisting any person or persons in committing any such
offence as aforesaid, and being thereoflawfully convicted, shall
be adjudged guilty of felony, and shall suffer death as a felon,
without benefit of clergy.
By the statute 3 & 4 W. 4. c. 97. s. 11, it is enacted, that
whenever any vellum, parchment, or paper shall be found in the
possession of any person licensed to vend or deal in stamps, or
who shall have been so licensed at any time within six calendar
months then next preceding, such vellum, parchment, or paper
having thereon any false, forged, or counterfeit stamp, mark, or
impression, resembling or representing, or intended or liable
to pass or be mistaken for any stamp, mark, or impression of
any die, plate, or other instrument, which at any time whatever
hath bten, or shall or may be provided, made, or used, by or
under the direction of the commissioners of stamps, for the
purpose of expressing or denoting any stamp duty whatever,
then, and in every such case, the person in whose possession
such vellum, parchment, or paper shall be so found, shall be
deemed and taken to have so had the same in his possession,
with intent to vend, use, or utter the same, with such false,
forged, or counterfeit stamp, mark, or impression thereon,
unless the contrary shall be satisfactorily proved ; and such
person shall also be deemed and taken to have such vellum,
parchment, or paper so in his possession, knowing the stamp,
mark, or impression thereon to be false, forged, and counterfeit,
and such person shall be liable to all penalties and punishments
by law imposed or inflicted upon persons vending, using,
uttering, or having in possession false, forged, or counterfeit
stamps, knowing the same to be false, forged, or counterfeit,
unless such person shall, in every such case, satisfactorily prove
that such stamp or stamps was or were procured by or tor such
person, from some distributor of stamps appointed by the said
commissioners, or from some person licensed to deal in stamps,
under the authority of that act.
By section 12 of the same statute, it is enacted, that if any
person shall, knowingly and without lawful excuse, (the proof
whereof shall lie on the person accused,) have in his possession
any false, forged, or counterfeit die, plate, or other instrument,
or part of any such die, plate, or instrument, resembling or
intended to resemble, either wholly or in part, any die, plate, or
other instrument, which at any time whatever hath been, or shall
er may be provided, made, or used by, or under the direction of
the commissioners of stamps, for the purpose of expressing
or denoting any stamp duty whatever; or, if any person what-
ever shall, knowingly and without lawful excuse, (the proof
whereof shall lie on the person accused,) have in his possession
any vellurn, parchment, or paper, having thereon the impression
of any such talse, forged, or counterfeit die, plate, or othei instru-
ment, or part of any such die, plate, or other instrument, a*
Forgery. 437
aforesaid, or having thereon any false, forged, or counterfeit
stamp, mark, or impression, resembling or representing, either
wholly or in part, or intended or liable to pass or be mistaken
for the stamp, mark, or impression of any such die, plate, or
other instrument, which hath been, or shall or may be so pro-
vided, made, or used as aforesaid, knowing such false, forged,
or counterfeit stamp, mark, or impression, to be false, forged,
or counterfeit, or if any person shall fraudulently use, join, fix,
or place for, with, or upon any vellum, parchment, or paper,
any stamp, mark, or impression, which shall have been cut.
torn, or gotten off, or removed from any other vellum, parch-
ment, or paper ; or if any person shall fraudulently erase, cut,
scrape, discharge or get out of or from, any stamped vellum,
parchment, or paper, any name, sum, date, or other matter or
thing thereon written, printed, or expressed, with intent to use
any stamp or mark then impressed or being upon such vellum,
parchment, or paper, or that the same may be used for any
deed, instrument, matter or thing, in respect whereof any stamp
duty is, or shall or may be, or become payable ; or, if any
person shall knowingly use, utter, sell, or expose to sale, or
shall knowingly, and without lawful excuse, (the proof whereof
shall lie on the person accused,) have in his possession, any
stamped vellum, parchment, or paper, from or off, or out of
which any such name, sum, date, or other matter or thing as
aforesaid, shall have been fraudulently erased, cut, scraped,
discharged, or gotten as aforesaid, then, and in every such case,
every person so offending, and every person knowingly and
wilfully aiding, abetting, or assisting any person in committing
any such offence, and being thereof lawfully convicted, shall be
adjudged guilty of felony, and shall be liable, at the discretion
of the Court, to be transported beyond the seas for life, or for
any term not less than seven years, or to be imprisoned for any
term not exceeding four years, nor less than two years.
Proof of the transposing intent. ~\ It does not require any
fraudulent intent to be proved, in order to bring the party
within the statute, there being no words in the statute to that
effect. Ogdens case, 6 C. % P. 63 1 .
Proof of the transposing variance.] Upon an indictment
for removing, from one silver knee-buckle to another, certain
stamps, marks, and impressions ; to wit, the King's head, and
the lion rampant, on producing the knee-buckle in evidence,
it appeared that the lion was a lion passant, and not a lion
rampant ; and this was held to be a fatal variance. Lee's case,
1 Leach, 416.
438 Forgery.
FORGERY OF OTHER PUBLIC DOCUMENTS.
There are a great variety of statutes containing enactments
against the forging of public documents of various kinds. A
reference to the principal of these is all that can be given in the
present work.
Forgeries relating to the navy and army.] 11 G. 4. & 1 W.
4. c. 20, for amending and consolidating the laws relating to
the pay of the royal navy. See also 57 G. 3. c. 127 ; 10 G. 4.
c. 26. 23 G. 3. c. 50, forging name of paymaster of the forces.
47 G. 3. Sess. 2. c. 25. s. 8, forging names of persons entitled
to pay, or pensions. 54 G. 3. c. 86. s. 8, altering names in
prize lists. 7 G. 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, &c. 46 G. 3.
c. 45. s. 9, forging name of treasurer of the ordnance. 54 G. 3.
c. 151, forging name of agent general of volunteers.
Forgeries relating to the customs and excise.'] Forging the name
of the receiver or comptroller- general of the customs, is punishable
with transportation for life, by 3 & 4 W. 4. c. 51. s. 27. Un-
authorised persons making paper in imitation of excise paper,
and persons forging or counterfeiting plates or types, are guilty
of felony, and subject to transportation, by 2 W. 4. c. 16. s. 3 ;
and by section 4, persons counterfeiting permits, or uttering
forged permits, are likewise guilty of felony, and punishable in
the same manner. By the 7 & 8 G. 4. c. 56, the forging the
name of the receiver-general, or comptroller of excise, is made a
capital felony ; but the capital punishment is taken away by
L W. 4. c. 66. s. 10. As to forging debentures and certificates,
see 59 G. 3. c. 143. s. 10.
Forgeries relating to land tax, 3fc.] The forgery of contracts
for the redemption of the land tax, is provided against by the
52 G. 3. c. 143. So the forging the names of the commissioners
of woods and forests, by the 50 G. 3. c. 65.
Forgeries relating to public officers in courts of justice, <5fc.J
Forging the name of the accountant-general of the Court of
Chancery, 12 G. 1. c. 32 ; or of the accountant-general of the
Court of Exchequer, 1 G. 4. c. 35 ; or of the receiver at the
Alienation Office, 52 G. 3. c. 143 ; or of the registrar of the
Court of Admiralty, 53 G. 3* c. 151. s. 12 ; or of certificate of
former conviction, 7 & 8 G. 4. c. 28. s. 11.
Forgery. 439
Forgeries relating to matters of trade, iJrcr] Forgeries of do-
cuments relating to the suppression of the slave trade, are pro-
vided against by the 5 G. 4. c. 113. s. 10 ; forgeries of Medi-
terranean passes, by the 4 G. 2. c. 18. s. 1 ; and forgeries of
certificates of quarantine, by the 6 G. 4. c. 78.
441
EVIDENCE IN PARTICULAR PROSECUTIONS,
(CONTINUED.)
FURIOUS DRIVING.
By statute 1 G. 4. c. 4, if any person whatever shall be
maimed, or otherwise injured by reason of the wanton and
furious driving or racing, or by the wilful misconduct of any
coachman, or other person having the charge of any stage-
coach, or public carriage, such wanton or furious driving or
racing, or wilful misconduct of such coachman or other person,
shall be, and the same is thereby declared to be a misdemeanor,
and punishable as such, by fine and imprisonment. Provided
that nothing in that act contained shall extend or be construed
to extend to hackney-coaches being drawn by two horses only,
and not plying for hire as stage-coaches.
GAME.
Taking or killing hares, <3fc., in the night . . 442
Proof of the taking or killing . . . 442
Proof that the offence was committed in some warren,
3fc., used for the breeding of hares, fyc. . 442
Proof of the offence being committed in the night . 443
Taking or destroying game by night . . . 443
Proof of the former convictions . . . 444
Proof of the third offence . , . 444
Proof of the situation and occupation of the land . 444
Unlawfully entering land for the purpose of taking game,
being armed .... 445
Proof of the entering, tyc, . . . 445
442 Game.
Proof of the entering or being in the place specified , 445
Proof of the purpose to take or destroy game or rabbits 445
Proof of the being armed, Sfc. . . . 44ti
Assault upon persons apprehending offenders . . 446
All offences with regard to game, which are the subject of
indictment, are statu table offences, not known to the common
law. Such animals being ferte naturae, are not, in their live
state, the subjects of larceny. Vide post, title " Larceny."
The principal provisions with regard to offences relating to
game, are contained in the 7 & 8 G. 4. c. 29 ; and 9 G. 4. c. 69.
TAKING OB, KILLING HAHES, &C., IN THE NIGHT,
IN GROUND USED FOR BREEDING, &C.
By statute 7 & 8 G. 3. c. 29. s. 30, if any person shall un-
lawfully and wilfully, in the nighf , take or kill any hare or coney,
in any warren or groundjawfully used for the breeding or keep-
ing of hares or conies, whether the same be inclosed or not,
every such offender shall be guilty of a misdemeanor, and shall
be punished accordingly. The offence in the day-time is made
the subject of a summary conviction.
Upon an indictment under the statute, the prosecutor must
prove 1st, the taking or killing of a hare or coney ; 2d, that it
was in some warren or ground lawfully used for the breeding,
&c. ; and 3d, that the offence was committed in the night.
Proof of the taking or killing.] It is not necessary to give
evidence that the defendant was seen in the act of taking or
killing the hare, nor in order to prove a taking, is it necessary
to show that the animal came actually into his hands. 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
within the stat. 5 G. 3. c. 14, the word taking meaning catch-
ing, and not taking away. Glover's case, Russ. <Sf Ry. 269.
Proof that the offence icas committed in some warren or ground
lawfully used for the breeding of hares, $c.] This averment
must be proved as laid in the indictment. It must also be
Game. . 443
shown that the place was situated in the parish mentioned in
the indictment, and that it was in the occupation of the party
stated.
Proof of the offence being committed in the night time.] The
7 & 8 G. 4. c. 29, does not contain, like the 9 G. 4. c. 69, any
clause declaring what shall be deemed night time. The word,
therefore, must be taken to have the same sense as in burglary.
Vide ante, p. 278.
TAKING AND DESTROYING GAME BY NIGHT.
By statute 9 G. 4. c. 69, s. 1. (repealing 57 G. 3. c. 90,)
it is enacted, that if any person shall, after the passing of
that 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, such offender
shall, upon conviction thereof, before two justices of the
peace, be committed for the first offence to the common gaol
or house of correction, for any period not exceeding three
calendar months, there to be kept to hard labour, and at the ex-
piration of such period, shall find sureties by recognizance, or in
Scotland, by bond of caution, himself in 10/., and two sureties
in 5L 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 labour 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 be thereof 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 labour, and at the expiration
of such period, shall find sureties by recognizance 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 labour
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 misdemeanor, and being convicted thereof, shall be
liable, at the discretion of the Court, to be transported beyond
seas for seven years, or to be imprisoned, and kept to hard
labour in the common gaol or house of correction, for any term
not exceeding two years ; and in Scotland, if any person shall
u 2
444 Game.
so offend a first, second, or third time, lie shall be liable to be
punished in like manner as is thereby provided in each case.
Upon a prosecution under this statute, the prosecutor must
prove 1, the former convictions ; 2, the committing of the
third offence ; 3, the situation and occupation of the land ;
4, the commission of the offence in the place specified.
Proof of the former convictions.] The former convictions may
be proved by the production of the records themselves, or of
copies thereof. 9 G. 4. c. 64. s. 8.
Proof of the third offence.] The offence must be proved to
have been committed in the night, and by the l'2th section of
the 9 G. 4, the night shall be considered to commence at the
expiration of the first hour after sunset, and to conclude at the
beginning of the last hour before sunrise. The precise hour
laid is not material, provided it appear that the offence was com-
mitted within the above hours. The prosecution (sec. 4, )
must be commenced within twelve months.
Proof of the situation and occupation of the /)/.] The in-
dictment must particularise 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. Ridley's case, Runs. &\ liti. 51;").
If in the indictment, a name be given to the place, though un-
necessarily, such name must be proved as laid. Owen's case,
1 Moody, C. C. 118. (Indictment under 57 G. 3. c. 90.)
And it must be proved that the offence was committed in
the particular place. Therefore, where the indictment is for
taking or destroying game, such taking or destroying must
be proved in the place specified. It is not necessary that
the party should be actually seen in the place specified ;
it is sufficient if it appear from circumstantial evidence that he
was there. Worker's case, 1 Moody, C. C. 165. Where the
charge is for entering land with a gun, for the purpose of taking
game, the purpose must be proved. Where the indictment
alleged an entry into a particular close, with intent then and
there to kill game, it was held that the intent was confined to
the killing of game in that particular place. Burham't caft.
1 Mood it, C. C. 151. Capewell's case, 5 C. <$, 7'. 549.
Game. 445
UNLAWFULLY ENTERING LAND FOR THE PURPOSE
OF TAKING GAME, BEING ARMED.
By stat. 9 G. 4. c. 69. s. 9, it is enacted, that if any per-
sons 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 of
such persons being armed with any gun, cross-bow, fire-arms,
bludgeon, or any other offensive weapon, each and every of
such persons shall be guilty of a misdemeanor, and being con-
victed 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
imprisoned and kept to hard labour for any term not exceeding
three years; and in Scotland any person so offending shall be
liable to be punished in like manner.
Upoa an indictment under this clause of the statute, the pro-
secutor must prove, 1st, the unlawful entry by night by three
persons or more ; 2d, the place in which, &c. ; 3d, the purpose
to take or destroy game or rabbits ; 4th, the being armed with
a gun, &c.
It has been ruled that a count on this clause 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. Finacane's case, 5 C. &; P. 551.
Proof of the entering, iSfe.] 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," vide ante, p. 444.
Proof of the entering or being in the place specified.] The
place must be described in the indictment, and the proof must
agree with the allegation. Vide ante, p. 444. The defendants,
to the number of three or more, must be proved to have been
in the place named ; if one only appear to have been there,
all must be acquitted. Dowsell's case, 6 C. & P. 398.
Proof of the purpose to take or destroy game or rabbits.] In
general little difficulty exists with regard to the intent of the
446 Game.
defendants. The circumstance of their being found armed is in
itself a strong presumption of their object.
Proof of the being armed with a gun, fyc.~\ Though it must
be proved that three persons at least were concerned in the
commission of the offence, the statute does not require that it
should appear that eac/i was armed with a gun or other weapon,
the words being " any of such persons being armed," &c.,
and this was held upon the former statute, 57 G. 3. c. 90,
which did not contain the word " any." Smith's case, Russ.
ty Ry. 368. 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 con-
victed, the judges held this a being " found armed" within the
57 G. 3. c. 90. Nash's case, Russ. if Ry. 386.
Where several go out together, and one only is armed, with-
out the knowledge of the others, the latter are not guilty within
the statute. Southern's case, Russ. ty Ry. 444.
It must appear that the weapon was taken out with the
intention of being unlawfully used. The defendant was in-
dicted for being out at night for the purpose of taking game,
armed with a bludgeon. It appeared that he had wilh 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 offen-
sive weapon, or merely for the purpose to which he usually
applied it. The defendant was acquitted. Palmer's case,
1 Moody $f Rob. 70. A walking-stick of ordinary size was
ruled to be " an offensive weapon," within the 7 G. 2. c. 21.
Johnson's case, Russ. fy Ry. 492.
ASSAULT UPON PERSONS APPREHENDING
OFFENDERS.
By 9 Geo. 4. c. 69, s. 2, it is enacted, that where any
person shall be found upon any land, committing any such
offence as is thereinbefore mentioned, it shall be lawful
for the owner or occupier of such land, or for any per-
son 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 thereinbefore mentioned, or any person
assisting such gamekeeper or servant, to seize and apprehend
such offender upon such land, or in case of pursuit being madt!
Gaming. 447
m 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 with any gun, cross-bow, fire-arms, bludgeon,
stick, club, or any other offensive weapon whatsoever, towards
any person thereby authorised 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
labour in the common gaol or house of correction, for any term
not exceeding two years ; and in Scotland, whenever any per-
son shall so offend, he shall be liable to be punished in like
manner.
On an indictment under this statute, the prosecutor must
prove, 1st, that the defendant was found upon some land com-
mitting one of the offences specified in the 9 G. 4. c. 69, vide
supra, ; 2d, that he is himself either the owner or occupier of
the land, or person having a right of free warren or free chase,
or land of the manor, or gamekeeper, or servant of any of the
above named persons, or a person assisting such gamekeeper or
servant ; 3d, the assaulting or offering violence, with a gun, &c.
at the time of the attempted apprehension.
GAMING.
Where an offence at common law . . . 447
Statute 9 Anne, c. 14 . . . . 448
Proof of the game . . . 448
Proof of the winning at one time or sitting . 449
Statute 18 Geo. 2. c, 34. . . 449
When an offence at common late.'] Gaming, says Hawkins,
is permitted in England, upon every possible subject, excepting
where it is accompanied by circumstances repugnant to morality
or public policy, or where, in certain special cases, it is restrained
448 Gaming*.
by positive statutes. Hawk. P. C. b. 1. c. 92. . 1. But
where the playing is, from the magnitude of the stake, excessive,
and such as is now commonly understood by the term " gam-
ing,'' it is considered by the law as an offence, being in its con-
sequences most mischievous to society. 1 Russell, 406. The
principal statutory provisions against gaming are those contained
in the 9 Anne, c. 14. s. 5, and the 18 Geo. 3. c. 34. s. 8.
Statute 9 Anne, c. 14.] By 9 Anne, c. 14. s. 5, it is en-
acted, that if any person or persons whatsoever, at any time or
times after the said first day of May, 1711, do or shall, by any
fraud or shift, cosenage, circumvention, deceit, or unlawful
device, or ill practice whatsoever, in playing at or with cards,
dice, or any the games aforesaid, (i. e. cards, dice, tables, or
other games whatever,) or in or by bearing a share or part in
the stakes, wagers, or adventures, or in or by betting on the
sides or hands of such as do or shall play as aforesaid, win,
obtain, or acquire to him or themselves, or to any other or
others, any sum or sums of money, or other valuable thing or
things whatsoever, or shall at any one time or sitting, win of any
one or more person or persons whatsoever, above the sum or value
of 10J. ; that then every person or persons so winning by such ill
practice as aforesaid, or winning at any one time or sitting
above the said sum or value of Wl. and being convicted of any
of the said offences upon an indictment or information to be
exhibited against him or them for that purpose, shall forfeit five
times the value of the sum or sums of money, or other thing so
won as aforesaid ; and in case of such ill practice as aforesaid,
shall be deemed infamous, and suffer such corporal punishment,
as in cases of wilful perjury ; and such penalty to be recovered
by such person or persons as shall sue for the same, by such
action as aforesaid.
Upon an indictment under this statute, the prosecutor must
prove, 1st, the playing at or with cards, or dice, or at any of the
games previously mentioned, or bearing a share or part in the
stakes, &c., or the belting on the sides of the players ; 2d, the
winning, obtaining, or acquiring ; 3d, of some sum of money
or other valuable thing; and 4lh, that this was done by fraud,
shift, &c.
Proof of the game. J A horse race above 101. is within the
statute. Goodburn v. Marley, % Str. 1159. Although for a legal
plate. Btaiton v. Pye, 2 Wils. 309. So a foot race. Lynull
v. Longbolhom, 2 Wits. 36. So also, as it seems, a wager on a
game at cricket. Jeffreys v. Walter, 1 H'i/s. 220. Indeed,
Abbott C. J. was of opinion, that the statute applied to all
games, whether of skill, or chance, and that it was the play-
ing for money which made them unlawful. Sigel v. Jebb,
3 Stark. N. P. C.I.
Highways. 449
Proof of the winning at one time or sitting.'] The statute
makes the winning of 10/. at one time or sitting, a nullity.
To lose Wt. at one time, is to lose it by a single stake or bet ;
to lose it at one sitting, is to lose it in a course of play where the
company never parts, though the person may not be actually
gaming the whole time. The statute 18 G. 2. c. 34, (a law
made in purl materiel,) may serve to explain this. To lose
10/. at any one time, or 201. within twenty-four hours, is
equally penal by that statute. Per Blackstone J., Bones r.
Booth, 2 W. Bt. 1226. Where the playing continued from
Monday evening to Tuesday evening, without any intermission,
except an hour or two for dinner, this was held to be one
sitting within the statute. Ibid. The defendant may be con-
victed of winning a less sum than that stated in the declaration.
Hill's case, 1 Stark. N. P. C. 359.
Statute 18 Geo. 2. c. 34.] By 18 Geo. 2. c. 34. s. 8, it is
enacted, that if any person, after the commencement of that act,
shall win or lose at play, or, by betting, at any one time, the
sum or value of 1(M., or within the space of twenty-four hours,
the sum or value of 20/., such person shall be liable to be
indicted for such offence, within six months after it is com-
mitted, either before his Majesty's justices of the King's
Bench, assize, gaol delivery, or giand sessions, and being
thereof convicted, shall be fined five times the value of the
sum so won or lost; which fine, (after such charges as the
Court shall judge reasonable allowed to the prosecutors,
and evidence out of the same,) shall go to the poor of the
parish or place where such offence shall be committed.
HIGHWAYS.
\uitances to highways .... 450
Proof of the way being a highway . . . 450
Proof iif the highway as set forth . . . 451
With regard to the termini . . . 452
Proof of changing . . . . 453
Proof of the nuisance what will amount to , . 453
Wteiher justifiable from necessity . . 455
450 Highways Nuisance.
Not repairing highways .... 455
Proof of liability to repair . . . 456
Parish . . . . .456
Inclnsure . . 458
Particular districts and persons by prescription 458
Corporations .... 460
Private individuals .... 460
Proofs in defence . . . .461
Paris/* . . . . .461
Districts, or private individuals . 462
Competency of witnesses . . . .462
NUISANCES TO HIGHWAYS.
Upon prosecutions for nuisances to a highway, the prosecutor
must prove, 1st, that the way in question is a common
highway ; 2d, 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 highway. 2 Ld. Raym. 1174. So a foot-
way, Logan v. Burton, 5 B. $ C. 513, for it is a public
highway for foot passengers. Allen v. Ormond, 8 East, 4. So
a public bridle- way. R. v. Inhab. of Salary, 13 East, 95.
So a towing-path, used only by horses employed in towing
vessels, is a highway for that purpose. Per Bayley, J. R. v.
Severn and Wye Railway Co. 2 R. # A. 648. And a railway
made under the authority of an act of parliament, which pro-
vides 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 Railway Co. 2 B. % 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. 1 Rol. Ab. 390.
Hammond's case, 10 Mod. 382. Hawk. P. C. b. 1. c. 76. s.l.
It must appear that the highway was a way common to all
the King's subjects ; for, though numerous persons may be
entilled to use it, yet, if it be not common to all, it is not a
public highway. Thus a private way, set out by commis-
sioners 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 of a public nature, but merely con-
cerns the individuals who have a right to use it. Richardi's
case, 8 T. R. 634.
In general the proof of any particular way being a highway,
is fiom the use of it by the public as such for such a number
Highways Nuisance. 451
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. IVandsworth, 1 jB.<Sf 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 pre-
venting the acquisition of any right by the public ; and conse-
quently, acquiescence affords a stronger presumption of right,
than that which results from possession and user in ordinary
eases. 2 Stark. Ev. 380. 2d ed. A road may be dedicated to
the public for a certain time only, as by the provisions of an
act of parliament, and upon the expiring or repeal of the act,
its character as a public highway will cease. Mellor's case,
1 B.fyAdol. 32. 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. Wright's case,
3 B. <5f AdoL 681. In the same case Lord Tenterden held,
that when a road runs through a space of 50 or 60 feet, between
inclosures set out by act of parliament, 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. Ibid.
Unless there be some one who was capable of dedicating the
soil to the public, it seems that a use of it as a highway by
them, and repairs 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
burthen. li. v. Edmonton, 1 Moo. $ tiob. 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. $ Adol. 469,
2 Nev. # M. 583.
According to the opinions of some persons, a way was only a.
highway when it led directly from a market town, 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 is a way for all travellers, and
communicates uithagreatroad,itis ahighway ; butifitlead only
to a church, or to a private house, or to a village, then it is a pri-
vate way ; but it is a matter of fact, and much depends upon
common reputation. Austin's case, 1 Vent. 189. But it is
now held to be sufficient if the way in question communicates
at its termini with other highways. Thus on an indictment or
obstructing a passage, which led from one part of a street, by a
circuitous route, to another part of the same street, and which
452 Highways Nuisance.
had been open to the public as far back as could be remem-
bered, 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. Lhyd's case, I Campb. 260.
Whether a street which is not a thoroughfare can be deemed
* highway, has been the subject of considerable discussion.
Jn 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 particular place does not lead
conveniently from one street to another, would go to extinguish
all highways where (as in Queen's-square) there is no tho-
roughfare.' The same doctrine was recognized by Lord
Kenyon, in the case of the Rugby Charity v. Merryweather,
11 East, 375. (.), 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 Lord Ellen-
borough on this point have, however, been questioned. In
Woodyer v. Hodden, 5 Tannt. 125, the Court expressed their
dissatisfaction with the dictum of Lord Kenyon, in the Rugby
ease; and in Wood v. Veal, 5 B. $ A. 454, Abbott, C. J.,
after referring to that case, said, " I have great difficulty in
conceiving that there can be a public highway, which is not a
thoroughfare, because the public at large cannot be in the use
of it;" and similar doubts were expressed by Holroyd and
Best, Js. It may, perhaps, be questioned, whether the reason
given by the Chief Justice in the latter case is a satisfactory one.
In many instances, as in that of Queen's-square, mentioned by
Lord Ellenborough, the public at large have the use of it, as form-
ing an approach to the houses built around the square. In such
cases the proper question seems to be not whether the place is
a thoroughfare, but whether it is in fact useful to the public.
Proof of the highway as set forth.'] The highway in question
must be proved as set foith in the indictment; but if the
description be too general and indefinite, advantage must be
taken of that defect by pica in abatement, and not under the
general issue. R.v. Hammersmith, 1 Stark. N.P.C.357. A ma-
terial variance between the description in the indictment and the
evidence will be fatal ; as where a highway leading from A. to
B., and communicating with C. by a cross road, is described
as a highway leading from A. to C., and from thence to B.
R. v. Great Canjield, 6 A'sp. 136. Where the way was stated
to be " for all the liege subjects, &c., to go, &c., with their
horses, coaches, carts, and carriages," and the evidence was
that carts of a particular description, and loaded in a particular
manner, could not pass along the way, it was held to be no
Highways Nuisance. 452
variance. R. v. Lyon, Ry.&Moo. N. P. C. 151. So where
the way is stated to be a pack and prime way, and appears
to be a carriage way, the vaiiance is fatal. R. v. Inhab. <>/'
St. Weonard's, 6 C. <5f P. 582.
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 must be proved as laid. R. v. Upton-on-
Severn, 6 C. &; P. 133.
Proof of changing.] An ancient highway cannot be changed
without the King's license first obtained, upon a writ of ad
(juod damnum and inquisition thereon found, that such a change
will not be 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 duiinium. 1 BUTT. 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. Ibid.
The power of widening and changing highways is given to
iustices of the peace, by the statutes 13 Geo. 3. c. 78, and
55 Geo. 3. c. 68.
A statute giving authority to make a new course for a navi-
gable river, along which there is a towing-path, will not take
away the right of the public to use that path, without express
words for that purpose. Tippett's case, 1 Russell, 316.
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 com-
modious 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. s. 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 evidence in favour 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 growing near the highway to
hang over the road in such a manner as to incommode the
passage. Id. c. 76. s. 147 ; and see 13 G. 3. c. 78. Where a
waggoner occupied one side of a public street, in a city before
454 Highways Nuisance.
his warehouses, in loading and unloading his waggons, for
several hours at a time, by night and by day, having one
waggon at least usually standing before his warehouses, so that
no waggon 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. Russell's case, 6 East, 427. So
keeping coaches at a stand in a street, plying for passengers, is
a nuisance. Cross's case, 3 Campb. 226. Ploughing up a foot-
path is a nuisance, Griesleu's case, 1 Vent. 4, Well-beloved on
Highways, 443, both on the ground of inconvenience to the
public, and of injuring the evidence of their title.
The obstruction of a navigable river is likewise a public
nuisance; as by diverting part of the water whereby the current
is weakened, and made unable to carry vessels of the same
burthen as before. Hawk. 1'. C. b. 1. c. 75. s. 11. But if a
vessel sink by accident in a navigable river, the owner is not
indictable as for a nuisance in not removing it. Watt's case,
2 Esp. 675. And where a stakh was erected stretching into
the river Tyne, and used in shipping coals, whereby the public
had a better and cheaper supply of that article, it was held to
be no nuisance, ilisx. Lord Tenterden. Russell's case, 6 R. & C.
566, 9 D. <5f IL 566. In this case it was said, by Mr.
Justice Bayley, 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 beneficial ; and he directed the jury
to find a verdict for the defendants, if they thought the abridg-
ment of the right of passage was for a public purpose, and pro-
duced 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 nver J yne. On a motion for a new trial, the
Court of King's Bench, with the exception of Lord Tenterden,
held this direction right. Lord Tenterden said, "Admitting
there was some public benefit both from the price and the
condition of the coals, still I must own that 1 do not think
those points could be properly taken into consideration, in the
question raised by this indictment. That question 1 take pro-
perly to have been, whether the navigation and passage of
vessels 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-maik, extending for a considerable space
along the river, upon an indictment for a nuisance, it was
contended that, as claiming under the corporation, the party
had a right to make the wharf. But Abbott, C. J., said,
" Will you contend that you have a right to narrow the river
Thames, so long as you have space sufficient for the purposes
of navigation?" The argument that the wharf was a public
benefit, was then advanced) but the Chief Justice said,
Highways Repairs. 455
" Much evidence has been adduced on the part of the
defendant, for the purpose of showing that the alteration affords
greater facility and convenience for loading and unloading; but
the question is not whether any private advantage has resulted
from the alterations to any particular individuals, 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." Lord Grosve-
nor's case, 2S(ar/c. N. P. C. 511.
Proof of 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 business. The defendant, a timber-merchant,
occupied a small timber-yard close to the street ; and, from the
smallness 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 could 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 Lord Ellenborough said,
" If an unreasonable time is occupied in the operation of deli-
vering beer from a brewer's dray into the cellar of a publican,
this is certainly a nuisance. A cart or waggon 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
inconvenience occasioned necessarily in repairing the house ;
but if this inconvenience 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 in 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." Jones's case, 3 Camph. 230. 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 unnecessarily upon the highway, it is a nuisance.
See Bush v. Steinmav, 1 Bos. Put. 407. Rvssell's case,
6 East, 427, ante, p. 454.
NOT REPAIRING HIGHWAYS.
Upon an indictment for not repairing a highway, to which
the general issue is pleaded, the prosecutor must prove, 1st,
that the way in question is a public highway, (vide ante, p. 450,
et seq.) and that it agrees with the description of the way in
the indictment, (ante, p. 452 ;) 2dly, that it is within the pa-
456 Highways Repairs.
rish, or other district charged ; 3dly, 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 tenura, the liabi-
lity 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. Ragleu, 12 Mod. 409, Hawk. P. C. b. 1.
c. 76. No agreement with any person whatever can take ofl'
this charge. 1 Ventr. 90. The parish generally, and not the
overseers, are liable ; and an indictment against the latter was
quashed. Dixon's case, 12 Mod. 198. If particular persons are
made liable by statute to repair, and become insolvent, the pa-
rish 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. R. r. Sheffield, 2 T. R.
106. The parish will remain liable, though the duty of repair-
ing 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 that 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. Si. George, Hanover Square, 3 Campb.
222. So where the trustees of a turnpike-road are required by
statute 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 tlie
inhabitants of the district, who may apply for relief under the
32d section of the General Turnpike Act. R. v. Netherthong,
2 B. &; A. 179 ; see also R. v. Oxfordshire, 4 B. $ C. 194. Nor
can other parties render 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 the repair of all
ways within their boundaries, cannot be discharged from their li-
ability by an agreement with others. R. v. Mayor, <5fc. of Liver-
pool, 3 Last, 86.
If the repairs are done by a parishioner, under an agreement
with the parish, in consideration of his being excused his statute-
highways Repairs. 457
duty, that is virtually a repair by the parish. Per Ld. Ellenbo-
rough, R.v. IVandsworth, 1 B. # Aid. 66.
When, by act of parliament, trustees are authorised to make
a road from one point to another, the making of the entire road
is a condition precedent to any part of it becoming a highway re-
pairable 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 what they had made, put
up two turnpike-gates, and taken toll ; that the road was conve-
nient, 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 having
finished their road according to the act of parliament, and con-
sequently that it was no public highway. R. v. Hepworth,
cited 3 B.fyAdol, 110, Lewin, C. C. 160. So where trustees,
empowered 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 high-
way, it was held that the district, in which the part so com-
pleted lay, was not bound to repair it. R. v. Cumberu-orth,
3 B. % Adol. 108 ; and see R. v. Paddington Vestry, 9 B. $ C.
460.
It was for some time a matter of doubt whether, where an
individual 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. u. v St. Benedict, 4 B. Aid. 450, an opinion was 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 re-
pair 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. fy Adol.
469, 2 Nev. <5f M. 583.
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, the indictment must be against the whole parish, and
must be preferred in that county in which the ruinous part lies.
JR. t-. Clifton, 5 T. R. 498. By statute 34 G. 3. c. 64, justices
of the peace are authorised to allot the highway, in such case,
between the two parishes ; and the parish, to whom the portion
is allotted, shall be bound to repair it, and shall be liable to be
indicted for the neglect of such duty. It is provided, that the
act shall not extend to highways repairable by bodies corpo-
rate, townships, &c. or by a private person.
Where a question arises as to the road being within the boun-
daries of the parish, it is sometimes necessary to prove those
x
458 Highways Repairs.
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 commissioners pursues their authority. By
an inclosure act, commissioners were directed to fix the boun-
daries 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 autho-
rity, and that the award was not binding as to the boundaries of
the parish. R. v. Washbrook, 4 B. <Sf C. 732. By a similar act,
commissioners had power to settle the boundaries of certain pa-
rishes, upon giving certain previous notices to the parishes to be
affected by the award. The highway in question never having
been repaired 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 applica-
tion for a new trial, it was refused. R. v. Hasliiigfield, 2 M. fy
S. 558. Where two parishes are separated by a river, the
medium filum is the boundary. R.v. Landulph, 1 Moo. $ R. 393.
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. Ibid.
Proof of liability to repair inclosure.] Where the owner of
lands not inclosed, next adjoining to a highway, incloses his
lands on both sides 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 inclosure, 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 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 inclo-
sure, he is freed, as it seems, altogether from the liability to
repair. Hawk. P. C. b. 1. c. 76. s. 6, 7,8. 3 Bac. Ab. High-
ways, (F.) 1 Russell, 325. Welbeloved on Highways, 90.
2 Wm. 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
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 pur-
suance of a writ of ad quod dumnum. Exparte Vernier, 3 Atk.
772. Hawk. P. C. 6. 1. c. 76. s. 7.
Proof of liability to repair particular districts and persons by
prescription.'] Although prima facie the parish is bound to re-
pair all the ways within its boundaries, yet other bodies or indi-
Highways Repairs. 459
viduals 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. Where
it appears that a township has been used immemorially to repair
all roads within it, such township is placed, as to repairs, in the
same situation as a parish, and cannot discharge itself from its
liability without showing that some other persons, in certainty,
are liable to the repairs. R. v. Hatfield, 4 B. <3f A. 75. Where
a new way is made within the limits of the township, and
which, had the parish been bound to repair, must have been re-
paired by the parish, such way must be repaired by the town-
ship. R.v.EcdetJield, 1 B. % A. 348. R. v.Netherthong, 2 B.
ft A. 179. It appears that the liability of a township, or other
district, has its origin in custom rather than in prescription ; a
prescription 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 Bayley J., that a parish cannot be bound by prescription ; for
individuals in a parish cannot bind their successors. R. v. .St.
Giles, Cambridge, 5 M. fy S. 260. The inhabitants of a town-
ship, or other district, cannot be charged to repair ratione tenune ;
for unincorporated inhabitants cannot, as inhabitants, hold
lands. R. v. Machyidleth, 2 B. <5f C. 166.
Upon an appeal against the appointment of a surveyor of the
highways for the township 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 own township ;
that distinct rates had been made for each township, and ap-
plied distinctly to the repairs 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 whicli the houses they resided in were situate.
Lord Tenterden said, that if there had been an indictment
against either township, and an allegation that each township
had immemorially repaired the roads within it, these facts would
be sufficient evidence to support the averment. R. v. Kings
Newton, 1 B. if Ad. 826.
It seems that the inhabitants of a district, not included within
any parish, cannot be bound to repair the highways within such
district. This point arose, but was not decided in the case of
R. v. Kingsmoor, 2 B. fy C. 190, which was an indictment
against an extra-parochial hamlet. The court held that it
should have been shown on the face of the indictment that the
460 Highways Repairs.
hamlet neither formed part of, nor was connected with, any other
larger district, the inhabitants of which were liable to repair the
road in question. Upon this point, the judgment for the crown
was reversed ; but Best J. observed, " I can find no authority
for saying that any thing but a parish can be charged. If the
law authorises 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 Welbeloved on Highways, 81.
Proof of liability to repair corporations.] A corporation,
sole or aggregate, may be bound by prescription or usage to re-
pair a highway, without showing that it is in respect either of
tenure or of any other consideration. Hawk. P. C. b. 1. c. 76.
*. 8. R. v. St. Giles, Cambridge, 5 M. <Sf S. 260.
Proof of liability to repair private individuals.] A private
individual cannot be bound to repair a highway, except in re
spect of some consideration, and not merely by a general prescrip-
tion ; because no one, it is said, is bound to do what his ancestors
have done, except for some special reason, as the having land
descending from such ancestors, which are held by such service,
&c. Hawk. P. C.b. 1. c. 76. s. 8. Austin's case, 1 Ventr. 189.
13 Rep. 33. R. v. St. Giles, Cambridge, 5 M. &; S. 260. Yet
an indictment, charging a tenant in fee simple with being liable
to repair, by reason of the tenure of his land, is sufficiently cer-
tain, 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
showing 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
Eltenborough, R. v. St. Giles, Cambridge, 5 M. % S. 260.
Where lands, chargeable with the repairs of a bridge or high-
way, are conveyed to different persons, each of such persons is
liable to the charge of all the repairs, and may have contribu-
tion 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 repairs. And the grantees are chargeable with
the repairs, though the grantor should convey the lands dis-
charged from the burthen, in which case, the grantee has his
re medy over against the grantor. Re*, v. Duchess of Buccteugh,
1 Salk. 358. R. v. Buckeridge, 4 Mod. 48. 2 Saund. 159, (n.)
1 Russell. 325.
Repairing a highway for a length of time will be evidence of
Highways Repairs. 461
a liability to repair rativne tenure. Thus, if a person charged
as being bound to repair ratione lenurf, pleads that the liability
to repair arose from an encroach meat which has been removed,
and it appears that the road has been repaired by the defendant
twenty-five years since the removal of the alleged encroach-
ment, that is presumptive evidence that the defendant repaired
ralione tenurue. generally, and renders it necessary for him to
show the time when the encroachment was made. Skinner's
case, 5 Esp. 219, 1 Russell, 326. In determining whether
the act of repairing a way is evidence to prove a liability to re-
pair ratimie tenure, the nature of the repairs must be regarded.
Thus, it is said by Hullock B., that an adjoining occupier occa-
sionally doing repairs for his own convenience to go and come,
is no more like that sort of repair which makes a man liable
rations tenure, than the repair by an individual of a road close
to his door, is to the repair of the road outside his gate. Allan-
son's case, Lewin, C. C. 158.
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 high-
way, or that it does not lie within the parish, or that it is not
out of icpair, for all these are facts which the prosecutor must
allege in the indictment, and prove under the plea of not guilty.
2 Sound. 158, (.) 3. 1 Russell, 331. But where a parish
seeks to discharge itself from its liability, by imposing the bur-
then of repair upon others, this defence 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 Ventr. 256, R. t. Hornsey, Carlh. 212, Fort. 254,
Hatch. P. C. b. 1. c. 76. s. 9. But where the burthen of repairs
was transferred from the parish by act of parliament, Lord
Kllenborough held that this might be shown under a plea of not
guilty. jR. v. St. George, 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 evidence that it is not a highway. R. v. Brown,
1 1 Mod. 273.
In order to prove the liability of a parish to repair, when de-
nied under a special plea, the prosecutor may give in evidence
a conviction obtained against the same parish upon another in-
dictment for not repairing, and whether such judgment was
after verdict or by default, it will be conclusive evidence of the
liability of the whole parish to repair. R. v, St. Pancras,
Peake, 219. But fraud will be an answer to such evidence.
Ibid. A record of acquittal is not admissible as evidence of the.
non-liability of the parish acquitted. Ibid.
462 Highways Repairs.
But where an indictment has been preferred against a parish
consisting of several townships, and a conviction has been ob-
tained, but it appears that the defence was made and con-
ducted entirely by the district in which the way lay, without the
privity or consent of the other districts, the indictment will be
considered as in substance an indictment against that district
only, and the others will be permitted to plead the prescription
to a subsequent indictment for not repairing the highways
in that parish. 2 Sound. 159. 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 gene-
rally, for not repairing highways situate in the township of
Eardisland, and the township of Hardwicke, with general pleas
of not guilty, and convictions thereupon were primd facie evi-
dence to disprove the custom for each township to repair sepa-
rately, 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 Hardwicke, without the privity of
Burton. JR. v. Eardisland, 2 Campb. 494.
Pronffor the defence district or private individual.] Where
a particular district, not being a parish, or where a private in-
dividual 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 such special grounds exist. In such case, it is not ne-
cessary 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 tra-
verse their own liability, but that they must show in particular
who is bound to repair. R. v. Yarton, 1 Sid. 140. JR. v.
Hornsey, Garth. 213. 2 Sound. 159, a. (n.) 1. 1 Russell,
332. Where charged rations tenures, the defendant may show
that the tenure originated within the time of memory. Hayman's
vase, M. % M. 401.
Competency of witnesses.] The prosecutor of an indict-
ment against a parish for not repairing, is a competent wit-
ness to support the indictment. R. v. Hammersmith, 1 Stark.
357, 1 Russell, 334. And inhabitants of the parish are
also competent for the prosecution, since they are speaking
against their own interest, in subjecting themselves to the
Highways Repairs. 463
charge. Hainan's case, M, fy M. 401. So the general high-
way act, 13 G. 3. c. 78. s. 68, enacts, that the surveyor of any
parish or place shall be deemed a competent witness on all mat-
ters relative to the execution of the act, notwithstanding his sa-
lary may arise in part from the forfeitures and penalties thereby
inflicted ; and the same statute (s. 76,) enacts, that any inha-
bitant of any parish or place in which any offence shall be
committed contrary to the act, shall be deemed a competent
witness.
But upon indictments charging individuals with the repairs,
inhabitants of the parish in which the lands lie, are not compe-
tent witnesses for the prosecution. Thus, upon an information
against the defendant for not repairing the highway between
Stratford and Bow, none of the persons who lived in either of
these parishes were allowed to give evidence for the prosecution.
R. v. Buckeridge, 4 Mod. 48.
The inhabitants of a parish are not competent witnesses for
the defendants, for they are themselves in effect defendants in
the proceeding. 1 B. fy A. 66, ante, p. 111. Nor are they
made competent by the 54 G. 3. c. 170. Ovenden v. Palmer,
2 B. # Adol. 236. R. v. Bishop Auckland, 1 Moo.<5f R. 286. And
upon a plea by the inhabitants of a parish, that one R. was bound
to repair the road in question ratione tenura:, a mere inhabitant,
not occupying any land within the parish, was held by Lord
Kenyon to be incompetent to support the plea, because every
inhabitant is liable to do statute duty, and also, because in the
event of a verdict against the defendants, the witness would be
liable to contribute towards the payment of the fine. JR. v.
Wheaton Aston, Stark, on Ev. part iv. p. 780, 1st ed. ante, p. 1 11.
See also R. v. Wandsworth, 1 B. &; A. 66. Upon an indictment
against a parish for not repairing, Bayley J. held that a rated
inhabitant of another parish, in which it was contended by the
defendant, that the highway in question lay, was an incom-
petent witness to disprove that fact. Anon, cited 15 East,
474. But upon an indictment charging the inhabitants of the
township of P. with a liability to repair all roads within their
township, it was held that an inhabitant of an adjoining town-
ship, within the same parish, was a competent witness to prove
that the place in question was a common highway, because
though a conviction would discharge the parish , yet there would
be this evidence to show that the road was public, whereby the
latter township, from whence the witness came would be charged.
R. v. Felling Appx. Stark. Ev. part iv. p. 673, 1st ed. vol. 2.
p. 385, 2<i ed.
The inhabitant of a hundred also cannot be called to prove
any fact in favour of the hundred, though so poor, as upon that
account to be excused from the payment of taxes, "for though,"
says Chief Justice Parker, " poor at present, he may become
rich." R. v. Honisev, 10 Mod. 150. W oolrych on Ways, 265.
464 Homicide.
HOMICIDE.
Those homicides which are felonies, viz., murder and man-
slaughter, will for the convenience of reference be treated of
under separate heads ; but as the shades between the various
kinds of homicide, are in many cases very faint, and require
the circumstances to be stated at large, it has been thought bet-
ter to collect all the decisions under one head, viz., that of mur-
der, in order to avoid repetition, and to this part of the work,
therefore, the reader is referred on the subject of homicide in
general. It will be useful, however, in this place, to distin-
guish the nature of the different kind of homicide, not amount-
ing to felony.
Homicides not felonious, may be divided into three classes,
justifiable homicide, excusable homicide, and homicide by mis-
adventure.
Justifiable homicide is where the killing is in consequence of
an imperious duty prescribed by law, or is owing to some un-
avoidable necessity induced by the act of the pa-rty killed, with-
out any manner of fault in the party killing. 1 East, P. C. 219,
Hawk. P. C.b. I.e. 28. s.l, 22.
Excusable homicide is where the party killing is not altoge-
ther free from blame, but the necessity which renders it excusa-
ble, may be said to be partly induced by his own act. For-
merly in this case, it was the practice for ihe jury to find the
fact specially, and upon certifying 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 stat. 9 G. 4. c. 31. s. 10, no punishment or for-
feiture shall be incurred by any person who shall kill another by
misfortune or in self-defence, or in any other manner without
felony.
Homicide by misadventure is where a man doing a lawful act,
without any intention of bodily harm, and after using proper
precaution to prevent danger, unfortunately kills another per-
son. The act upon which the death ensues, must be lawful in
itself, for if it be malinn in se, the case will amount to felony,
either murder or manslaughter, according to the circumstances.
If it be merely mulnm 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 mode-
rate and lawful correction in foro dnmestico ; and 3, from acts
Kidnapping. 465
lawful or indifferent in themselves, done with proper and ordi-
nary caution. Homicide by chunce-medling is, strictly, where
death ensues from a combat between the parties upon a sudden
quarrel ; but it is frequently confounded with, misadventure or
accident. 1 East, P. C. 221.
KIDNAPPING.
Kidnapping, which is an aggravated species of false impri-
sonment, is the stealing and carrying away or secreting of any
person, and is an offence at common law, punishable by fine
and imprisonment. 1 East, P, C. 429. By the habeas corpus
act, 31 Car. 2. c. 2. s. 12, the sending prisoners out of Eng-
land, is made punishable as a prxmunire ; and by the 1 1 &
12 \V. 3. c. 7, masters of vessels forcing their men on shore or
leaving them behind, were subjected to three months imprison-
ment. This statute is repealed by the 9 G. 4. c. 31, by the
30th section of which it is enacted, that if any master of a
merchant vessel shall, during his being abroad, force any man
on shore, or wilfully leave him behind in any of his majesty's
colonies or elsewhere, or shall refuse to bring home with him
again all such of the men whom he carried out with him, as are
in a condition to return when he shall be ready to proceed on his
homeward-bound voyage, every such master shall be guilty of
;i misdemeanor, and being lawfully convicted thereof, shall be
imprisoned for such term as the Court shall award ; and all
such offences may be prosecuted by indictment or by informa-
tion, at the suit of his majesty's attorney-general, in the Court of
King's Bench, and may be alleged in the indictment or in-
formation to have been committed at Westminster in the county
of Middlesex ; and the said Court is thereby authorised to issue
one or more commissions, if necessary, for the examination of
witnesses abroad ; and the depositions taken under the same
shall be received in evidence on the trial of every such in-
formation.
x 5
466
LARCENY.
Definition, &c. .... 467
Proof of the lucri causa . , . 468
Proof of the taking . . . 469
Proof oj the manual taking . . . 469
Proof of the felonious intent in the taking . 471
Goods obtained by false process of law , 471
Goods taken by mistake . . .471
Goods taken by trespass ... 472
Goods taken under a fair claim of right . 473
Goods procured by finding . . 474
Goods taken by wife or bit wife and a stranger 476
Proof of the taking with reference to the possession of the
goods .... 477
Original taking not felonious . . 477
Cases of bailees .... 47ft
Determination of the bailment . , 479
Cases of tenants .... 481
Cases of lodgers .... 485
Stealing from the person . . . 486
Proof of the taking; distinction between larceny and false
pretences cases of larceny . . 487
A T o intent to part with the property by the prosecutor
originalfelonious intent on the part of the
prisoner cases of hiring horses, fyc. larceny 488
Farious cases amounting to larceny, where goods have
been obtained by false pretences . 491
Cases of pretended purchases larceny . . 493
Proof of the taking ; distinction between larceny and false
pretences cases of false pretences . 495
Intent to part with the property by the prosecutor
originalfelonious intent on the part of the
prisoner .... 495
Pretended purchases . . . 495
Cases of obtaining goods, <Sfc. by false pretences . 497
Proof of the things stolen things savouring of the realty
at common law . . . 499
Larceny. 4(>?
Things annexed to buildings, fa. . . 500
Mines ..... 500
Trees, fa. . . . .501
Written instruments ... 503
Securities for money, fa. . . 504
Promissory notes . . . 506
Bankers checks . . . 507
Exchequer hills ' . . . 507
Goods from vessels . . . 508
Goods in the course of manufacture . . 509
Proof of the thing stolen animals, fa. domestic animals 509
Animals /era naturie . . . 509
Dead or reclaimed . . .510
Animals kept for pleasure only, and not Jit for food . 510
Dogs, pigeons, fa. . . .511
Proof of the thing stolen , , . 512
Identity .... 512
Value ....'. 512
Proof of the ownership cases where it is unnecessary to
allege or prove ownership . . 512
Intermediate tortious taking . . . 5l2
Goods in custodid legis . . . 513
Goods of the offender himself . . . 513
Goods of joint-tenants and tenants in common . 514
Goods in possession of children . .615
Goods in possession of bailees . . 515
In possession of carriers, drivers of stage coaches,
fa. . . . 516
Goods of deceased persons, executors, fa. . . 516
Goods of lodgers . . . .517
Goods of married women . . . 517
Goods of persons unknown , . .518
Goods of servants . . . .518
Goods of corporations . . . 518
Goods belonging to counties, fa. . . 520
Goods for the use of poor of parishes . . 520
Goods of trustees of turnpikes . . 520
Goods of commissimiers of sewers, fa. . .521
Venue . . . . .521
Definition, fa.] Larceny has been defined to be " the
wrongful or fraudulent taking and carrying away, by one person,
of the mere personal goods of another, from any place, with a
felonious intent to convert 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. 2 Kutsetl, 93. See the definitions collected,
\ii Rep. on Crim. Law, p. 9.
46B Larceny.
Larceny was formerly divided into grand larceny, where the
value of the property was above twelve pence, and petty larceny
where the value was twelve pence or under, but now by statute
8 & 9 G. 4. c. 29. s. 2, it is enacted, that the distinction be-
tween grand larceny and petty larceny shall be abolished, and
every larceny, whatever be the value of the property stolen,
shall be deemed to be of the same nature, and shall be subject
to the same incidents in every respect, as grand larceny was,
before the commencement of the act ; and every court whose
power as to the trial of larceny was, before the commencement
of the act, limited to petty larceny, shall have power to try every
case of larceny, the punishment of which cannot exceed the
punishment in the act after mentioned for simple larceny, and
also to try all accessories to such larceny.
Proof of the Incri causa.] I Larceny is defined by Eyre, B.
to be " the wrongful taking of goods, with intent to spoil the
owner of them, lucri causa." Pear's case, 2 East, P. C. 685.
And in the same manner Mr. Justice Blackstone says, that
" the taking must be felonious, that is, done animofnrandi, or
as the civil law expresses it, lucri causa." 4 Com. 232. The
expression, lucri causa, must not, as it seems, be understood to
convey any further meaning, than that expressed in Mr. East's
definition, " a felonious intent, to convert the goods to the
taker's own use, and make them his own property," vide supra.
It is not necessary that the offender should contemplate any
thing in the nature of a pecuniary advantage. | Thus, in the
following case, where the object was to destroy the property,
the offence was still held to be larceny. The prisoner, in con-
junction with the wife of a man, who was charged with stealing
a horse, went to the stable of the owner, took the horse out, and
backed it into a coal pit. It was objected for the prisoner, on an
indictment for stealing the horse, that it was not taken animo
furandi, and lucri causa. The prisoner being convicted, the
opinion of the judges was taken, who thought the conviction right.
Six of the judges held it not to be essential to constitute the
offence of larceny, that the taking should be lucri causa. They
thought that a taking fraudulently, with an intent wholly to
deprive the owner of the property was sufficient; but some of the
six thought, that in this case the object of protecting the party
charged with stealing the horse might be deemed a benefit, or
inert causa. Two of the judges held the conviction wrong.
Cabbage's case, Puss. <Sf Hi/. 29'2. Upon this case it is observed
in the report of the criminal law commissioners, (p. 17,) that
where the removal is merely nominal, and the motive is that of
injury to the owner, and not of benefit to the taker, the offence
is scarcely distinguishable from that of malicious mischief. In
the following case, the lucri cuusd appeals not to have been
considered as a necessary ingredient of larceny. The prisoners
Larceny. 469
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 an allowance of beans. The prisoners had
entered the granary by a false key, and carried away a quantity
of the beans which they gave to the prosecutor's horses. Bayley J<
had directed an acquittal in a similar case ; but Abbott J. being
informed that several judges had, under the same circumstances,
held the offence to be larceny, reserved the point. Eleven of
the judges having met, eight were of opinion that it was felony ;
that the purpose to which the prisoners intended to apply the
beans did not vary the case. It was, however, alleged by some
of the judges, that the additional quantity of beans would
diminish the work of the men who had to look after the horses,
so that the master not only lost the beans, or had them applied
to the injury of his horses, but the men's labour was lessened,
so that the lucri causa, to give themselves ease, was an in-
gredient in the case. Three of the judges thought it no felony.
Morjit's case, Russ. ft R_i/. 307.
The rule with regard to the Ittcri causd is stated by the
criminal law commissioners in the following terms. " The
ulterior motive by which the taker is influenced in depriving
the owner of his property altogether, whether it be to benefit
himself or another, or to injure any one by the taking, is imma-
terial." 1st Rep. p. 17.
Proof of ihe taking.] The following is 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 manner, or where possession is obtained either by
force or surprise, or by any trick, device, or fraudulent expe-
dient, the owner not voluntarily parting with his entire interest
in the goods, and where the taker intends in any such case
fraudulently to deprive the owner of his entire interest in the
property against his will. 1st Rep. p. 16.
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 contents, but before the prosecutor could do
this the prisoner was apprehended ; the offence was held to
be complete by the first taking. Peat's case, 2 East, P. C.
557.
Proof of the taking what manual taking is required.] In
order to constitute the offence of larceny, there must be an
actual taking or severance of the thing from the possession of
the owner, for as every larceny includes a trespass, if the party
be not guilty of a trespass in taking the goods, he cannot be
470 Larceny,
guilty of a felony in carrying them away. Still though there must
be a taking i n fact from the actual or constructive possession of the
owner, yet it need not be by the very hand of the party accused.
For if he fraudulently procure another, who is himself innocent
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, or
if, by fraud or perjury, he get possession of the goods by legal
process without title. 2 East, P. C. 555. 2 Russell, 95.
The least removing of the thing taken, from the place where
it was before, though it is not quite carried off, is a sufficient
taking and carrying away to constitute larceny ; and upon this
ground 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.l. c. 35. s. 25. 3 Inst. 108. 2 East, P. C. 555.
1 Leach, 323. So where a person takes a horse in a close,
with intent to steal him, and is apprehended before he can get
him out of the close. 3 Inst. 109. See further as to Cattle,
William's case, 1 Moody, C. C. 107, stated post. The prisoner
got into a waggon, and taking a parcel of goods which lay in
the forepart, had removed it to near the tail of the waggon,
when he was apprehended. The twelve judges were unani-
mously of opinion that, as the prisoner had removed the
property from the spot where it was originally placed, with an
intent to steal, it was a sufficient taking and carrying away to
constitute the offence. Coslet's case, 1 Leach, 236, 2 East,
P. C. 556. But where the prisoner had set up a parcel con-
taining linen, which was lying lengthways in a waggon, on
one end, for the greater convenience of taking the linen out,
and cut the wrapper all the way down for that purpose, but was
apprehended before he had taken any thing, 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. Cherry's case,
2 East, P. C. 556, 1 Leach, 236, (w.) The following case,
though nearly resembling the latter, is distinguished by the
circumstance 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
holding it endeavoured to pull it out, but were prevented by the
guard. The prisoner being found guilty, the judges, on a case
reserved, were of opinion that the conviction was right, thinking
that there was a complete asportavit of the bag. Walsh's case,
1 Moody, C. C. 14. The prisoner was indicted for robbing the
\
Larceny. 471
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, sepa-
rated from the owner's person, was sufficient, though lie could
not retain it, but probably lost it again the same instant that it
was taken. Lapier's case, 2 East, P. C. 557, 1 Leach, 320.
There must, however, be a possession by the party charged,
however temporary. The prisoner stopped the prosecutor as he
was 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
apprehended. The judges were of opinion that the offence was
not completed. Parrel's case, 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
ihe 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. Wilkinson's case,
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
consequently no felony. Anon, cited in Cherry's case, 2 East,
P. C. 556, 1 Leach, 321, (n.)
Proof of the felonious intent in the taking goods obtained by
false process of law.'] \\ here the possession of goods is obtained
from the owner by means of the fraudulent abuse of legal process,
the offence will amount to larceny. Thus it is laid down by
Lord Hale, that if A. has a design to steal the horse of B. and
enters a plaint of replevin in the Sheriff's Court for the hoise,
and gets him delivered to him and rides him away, this is a
taking and stealing, because done, in fraudem legis. So where
A. having a mind privately to get the goods of B. into his pos-
session, brings an ejectment and obtains judgment against the
casual ejector, and thereby gets into possession and takes the
goods, if it be done animofurandi, it is larceny. I Hale, P. C.
507, 2 East, P. C. 660, 2 Russell, 130.
Proof of the felonious intent in the taking mistake."] The
proof that the goods were taken with a felonious intent may be
rebutted, by showing that the party charged with the larceny
472 Larceny.
took them by mistake. Thus if the sheep of A. stray from his
flock into that of B., and the latter by mistake drives them with
his own flock, or shears them, that is not felony ; but if he
knows the sheep to be another's, and marks them with his own
mark, that would be evidence of a felony. 1 Hate, P. C. 507. So
if he appear desirous of concealing the property, 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.
Proof of the felonious intent in the taking goads taken by
trespass.] Although the party may wrongfully take the goods,
yet, unless he intended to assume the property in them, and to
convert them to his own use, it will amount to a trespass only,
and not to a felony. Thus if A. leaves his harrow in the field,
and 13. having land in the same field uses the harrow, and
having done so returns it to iis place, or informs the owner.this
is only a trespass. 1 Hale, P. C. 509. In the same manner if
A. takes away the goods of B., openly before him or other
persons, this carries with it evidence only of a trespass. Ibid.
So of a servant riding his master's horse upon his own business.
Vnd. The two prisoners were charged with stealing two horses.
It appeared that they went inr the night to an inn kept by the
prosecutor, and took a horse and mare from his stable, and
rode about 33 miles to a place, where they left them in the
care of the ostler, stating that they should return. They were
apprehended the same day, about 14 miles from the place.
The jury found the prisoners guilty, but added that they were
of opinion they merely meant to ride the horses to this
place, and to leave them there ; but that they had no intention
either of returning them, or making any further use of them.
The judges, upon this finding, (Grose, J. dits. and Lord
Alvanley not giving any express opinion,) held it to be a
trespass only, and no larceny. They said there was no intent
in the prisoners to change the property, or to make it their own,
but only to use it for a special purpose, that is, to save their
labour in travelling. The judges agreed that it was a question
for the jury, and that if they had found the prisoners guilty
generally upon this evidence, the verdict could not have been
questioned. Philipp's case, 2 East, P. C. 662. So where,
upon an indictment for stealing a horse, two saddles, &c., it
appeared that the prisoner got into the prosecutor's stables, and
took away the horse and the other articles altogether ; but that
when he had got to some distance he turned the horse loose,
and proceeded on foot, and attempted to sell the saddles ;
Garrow, B. left it to the jury to say, whether the prisoner had
any intention of stealing the horse ; for that if he intended to
Larceny. 473
steal the other articles, and only used the horse as a mode of
carrying off the other plunder more conveniently, and, as it
were, borrowed the horse for the purpose, he would not in point
of law be guilty of larceny. Crump's case, 1 C. dif P. 658.
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's intent was to
induce the girl to go again to the hay-mow, but that he did not
mean to deprive her of the bonnet. On a case reserved, the
judges held that this taking was not felonious. Dickinson's
case, Rust, fy Ry. 420-
The prosecutor met the prisoner, whom he knew to be a
poacher, and seized him. The prisoner getting free, wrested a
gun from the hands of the prosecutor, and ran away with it.
It was proved that the next day the prisoner said he would sell
the gun, and it was never found. Vaughan, B. told the jury,
upon the trial of the prisoner for stealing the gun, that he might
imagine that the prosecutor would use the gun so as to endanger
his life, and if so, his taking it under that impression would not
be felony ; but if he took it, intending at the time to dispose
of it, it would be felony. Holloway's case, 5 C. 3f P. 524.
See Knight's case, 2 East, P. C. 510. Anon. Matth. Dig.
C. L. 48, cited post. See Van Muyen's case, Russ.S; Ry. 118 ;
and the observations of the Criminal Law Commissioners,
1st Rep. 17, 18.
Proof of the felonious intent in the taking goods taken under
a fair claim of right.'] If there be any fair claim of property
or right in the prisoner, or if it be brought into doubt at all, the
court will direct an acquittal. 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 circum-
stances 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 seizure 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 ; and it
was held that this design rebutted the presumption of a felonious
intent. Knight's case, 2 East, P. C. 510, 659, stated post,
" Burglary."
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
depend upon the circumstances of the particular case. In some
places, a custom, authorising the practice of gleaning, is said to
474 Larceny.
exist ; in others, it is sanctioned by the permission of the tenant
of the land ; 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, however, is said to have taken place at
the Old Bailey, upon an indictment for the exercise of this sup-
posed right ; but the circumstances of the case are not stated.
Woodfall, Landl. and Ten. 242, (ed. 1814,) 2 Russell, 99.
Proof of the felonious intent in the taking goods procured by
finding.] The law respecting the converting of goods found, to
the finder's own use, depends upon the question of felonious in-
tention. " If," says Lord Hale, " A. finds the purse of B. in
the highway, and takes and carries it away, and the case has all
the circumstances that prove it to be done animo furandi, as de-
nying or secreting it, yet it is not felony." 1 Hale, P. C. 506.
But, he adds, where a man's goods are in such a place, where
ordinarily they are or may be lawfully placed, and a person
takes them animofurandi, it is felony, and the pretence of find-
ing must not excuse. Id. The distinction, therefore, appears to
be, that where the goods are found in such a situation that the
owner may be presumed to have abandoned the property in
them, the converting of them will not be larceny ; but if, from
circumstances, the finder must infer that there has been no such
abandonment, it will be felony to convert them without making
due inquiry as to the owner. Thus it is said by Lord Hale,
that if a man hides a purse of money in his corn mow, and his
servant, finding it, takes part of it ; if, by circumstances, it ap-
pear that he knew his master laid it there, it is felony ; but then
the circumstances must be pregnant, otherwise it may be rea-
sonably interpreted to be a bare finding, being an unusual place
for such a depositum. I Hale, P. C. 507.
In the following cases, although, in strictness, the goods were
acquired by finding, yet the converting of them was held to be
larceny. 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 larceny ; for the coachman must have known where
he took the gentleman up, and where he set him down, and
ought to have restored his trunk to him. Lamb's case, 2 East,
P. C. 664. In a similar case, where a box had been left in a
coach, and was found at the house of a Jew, where the coach-
man had uncorded it, and taken out several articles, some of
which were missing ; the coachman being indicted for larceny,
the judge directed the jury that, if they thought that the prisoner
had detained the box merely in the hope that a reward would be
offered for it, and that he meant then to return it to the owner,
they ought to acquit him ; but if they thought that he had un-
corded the box not merely from curiosity, but with an intention
to embezzle any part of its contents, and that he had actually
Larceny. 475
taken any of the goods mentioned in the indictment, it would be
matter of legal consideration, whether a person so guilty should
not be reached as a felon. The jury having found the prisoner
guilty, upon a case reserved, the verdict was approved of by the
judges. Wynne's case, I Leach, 413 ; 2 East, P. C. 664, 697 ;
and see Seam's case, 1 Leach, 415, (n.) 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 in-
dicted for larceny, Park J. said, 'I If a person picks up a thing,
and knows that he can immediately find the owner, but, instead
of restoring it to the owner, converts it to his own use, this is fe-
lony." Pope's case, 6 C. # P. 346. /
A pocket-book, containing bank-notes, was found by the pri-
soner in the highway, and converted by him to his own use ;
upon which Lawrence J. observed, that if the party finding pro-
perty in such manner knows the owner of it, or if there be any
mark upon it, by which the owner can be ascertained, and the
party, instead of restoring it, converts it to his own use, such
converting will constitute a felonious taking. Anon. 2 Russell,
102. And in a similar case, Gibbs C. J. stated to the jury that
it was the duty of every man, who found the property of another,
to use all diligence to find the owner, and not to conceal the pro-
perty, (which was actually stealing it, ) and appropriate it to his
own use. James's case, 2 Russell, 102. Where the prisoner
took a letter, supposing it belonged to himself, and finding it did
not, appropriated to himself the property it contained, this ap-
propriation was held not to make him guilty of larceny, there
being no animusfurandi when he first received the letter. Muck-
low's case, 1 Moody, C. C. 160.
The doctrine relating to ihe finding of property was much dis-
cussed in a case which arose in the Court of Chancery. Ann
Cartwright died possessed of a bureau, in a secret part of which
she had concealed 900 guineas. After her death, Richard
Cartwright, her representative, lent the bureau to his brother
Henry, who took it to the East Indies, and brought it back with-
out the contents being discovered. It was then sold to a person
named Dick, for three guineas, who delivered it to one Green, a
carpenter, to repair it. Green employed a person named Hil-
lingworth, who discovered the money. He only received a
guinea for his trouble, and the guineas were secreted by Green,
by his wife, and one Mrs. Sharpe. Cartwright hereupon filed
his bill against Mr. and Mrs. Green and Mrs. Sharpe ; in which
bill Dick joined, not claiming the money on his own account.
The defendants demurred to the bill, on the ground that an
answer to the discovery sought might subject them to criminal
punishment. Lord Eldon, after taking time to look into the
cases, and consult the judges, said, " I have looked into the
books, and talked with some of the judges and others, and I
have not found any one person to doubt that this is a felony.
476 Larceny.
To constitute felony, there must of course be a felonious taking;
breach of trust will not do. But, from all the cases in Hawkins,
there is no doubt that this bureau, being delivered to Green for
no other purpose than to repair, if he broke open any part which
it was not necessary to touch for the purpose of repair, with an
intention to take and appropriate to his own use what he should
find, that is a felonious taking within the principle of all the
modern cases, as not being warranted by the purpose for which
it was delivered. If a pocket-book, containing bank-notes, were
found in the pocket of a coat sent to be mended, and the tailor
took the pocket-book out of the pocket, and the notes out of the
pocket-book, there is not the least doubt that it is a felony. So
if a pocket-book was left in a hackney-coach, if ten people were
in the coach in the course of the day, and the coachman did not
know to which of them it belonged, he acquired it by finding,
certainly, but not being intrusted with it for the purpose of open-
ing it, this is felony according to the modern cases. There is a
vast number of other cases, and those with whom I have conversed
upon this point, who are of very high authority, have no doubt
upon it." Cartwright v. Green, 8 Ves. 435; 2 Leach, 952.
Evidence to show that the finder endeavoured to discover the
true owner, and kept the goods till it might reasonably be sup-
posed that he could not be found ; or that he made known his
acquisition so that he might make himself responsible for the
value, in case he should be called upon by the owner, are cir-
cumstances to rebut the presumption of a felonious taking and
conversion. 2 East, P. C. 665. "The intention of a person
taking property by rinding will be felonious or not, according as
his conduct, in omitting to use due diligence to discover the
owner, or in concealing the property, or in other circumstances,
shows that, in the taking, he had or had not a design to deprive
the owner altogether of his property." 1st Eep. Crim. Law Cum,
p. 18.
Proof of the felonious intent in the taking goods taken /;(/
wife or by wife and a stranger.] If a wife take goods of which
the husband is the joint or sole owner, the taking is not larceny,
because they are in law but one person, and the wife has a kind
of interest in the goods. Hawk. P. C. h. 1. c. 33. s. 19. There-
fore, 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. Willis's case, 1 Moody,
C. C. 375.
Whether where a stranger and the wife jointly steal the hus-
band's property, it is larceny in the stranger, has been the sub-
ject of contradictory decisions. In Clark's case, 0. B. 1818,
1 Mood ti, C. C. 376, (n.) it appeared that the prosecutor's
wife had assisted in carrying off the goods, and had continued
Larceny. 477
to cohabit with the prisoner. On objection, the court ruled,
that no person could be convicted of a felony in stealing goods
when they came into his possession by the delivery of the pro-
secutor's wife. But in a subsequent case, referred to the opi-
nion of the judges, it was held that where the wife and a
stranger steal the goods of the husband, the stranger is guilty
of larceny. Tolfree's case, I Moody, C. C. 243.
Proof of the taking with reference to the possession of the
goods-] It has been already stated, (ante, p. 469,) that in
order to constitute larceny, there must be such a taking of the
goods, as would, without the felonious intent, amount to a tres-
pass. Therefore, if the party obtain possession of the goods
lawfully, as upon a trust, for or on account of the owner, by
which he acquires a kind of special property in them, he cannot
afterwards be guilty of felony in converting them to his own
use, unless by some new a nd distinct act of taking, as by severing
part of the goods from the rest with intent to convert them to
his own use, he thereby determine the privity of the bailment
and the special property conferred upon him, in which case he
is as much guilty of a trespass, against the virtual possession of
the owner, by such second taking, as if the act had been done by
a mere stranger. 2 East, P. C. 554. Vide post.
Proof of the taking with reference to the possession original
taking not felonious.] In cases, therefore, where the original
taking of the goods is not animo fnrandi. a subsequent con-
version of them to the party's own use will not constitute lar-
ceny. Upon an indictment for stealing, it appeared that the
prosecutor's shop (containing the articles menlioned in the
indictment) being on fire, his neighbours assisted him in
removing his goods for their security. The prisoner probably
had removed all the articles which she was charged with steal-
ing, when the prosecutor's other neighbours were thus em-
ployed. She removed some of the articles in the presence of
the prosecutor, and under his observation, though not by his
desire. Upon the prosecutor applying to her next morning,
she denied that she had any of the things belonging to him, but
they were found concealed in her house. The jury found her
guilty, but said, that in their opinion when she first took the
goods from the shop, she had no evil intention, but that such
evil intention came upon her afterwards ; and upon reference to
the judges, they all held the conviction wrong, for if the ori-
ginal taking were not with intent to steal, the subsequent con-
version was no felony, but a bieach of trust. Leigh's case, 2 F.ast,
P. C. 694, 1 Leach, 4U. (n.)
So where a letter containing a bill of exchange was by mis-
take delivered to another person of the same name as the person
to whom it was addresse d.and the person to whom it was so
478 Larceny.
delivered, converted the bill of exchange to his own use, being
convicted of larceny for this act, a case was reserved for the
opinion of the judges, who held the conviction wrong, on the
ground that it did not appear that the prisoner had any animus
furandi, when he first received the letter ; and a pardon was
recommended. Mucklow's case, 1 Moody, C. C. 160. Sea
1st Rep. Crim. Law. Com. 17.
Proof of the taking with reference to the possession original
taking not felonious bailees.] The cases which most usually
occur, illustrative of this doctrine, are those where goods have
been delivered into the hands of a bailee for a special purpose,
who thereby acquires a right to the possession, and who, if he
converts them, while in his possession as bailee, to his own use.
even animo furandi, as he is not guilty of a trespass, is not
guilty of larceny by that act. Thus if goods are delivered to a
carrier to be conveyed, and he steals them on the journey, it it
no felony. 1 Hale, P. C. 504. So where a man delivered his
watch to the prisoner to be repaired, who instead of repairing it
sold it, this was ruled by Vaughan B. to be no felony. Levy's
case, 4 C.<5f P.241.
The captain of a vessel having a number of casks of butter
belonging to the prosecutor to carry on board his vessel, and
having occasion to pay a debt contracted by him at a port in
course of his voyage, gave an order to his mate to deliver thir-
teen casks of the butter to his creditor, and the casks were
delivered accordingly. Being indicted for larceny, Graham B. f
before whom he was tried, thought that the severance of a part
of the casks from the rest, and the formed design of doing so,
took the case out of the authorities cited, (1 Hale, P. C.
504, 2 East, P. C. 693.) if they could be considered as
applying to the case, and the prisoner was convicted ; but
upon a case reserved, the judges were of opinion that it was
not larceny, and that the conviction was wrong. Madoi's case,
Runs, 3f Ry. 92. So where the prosecutor sent three trusses of
hay consigned to a third person by the prisoner's cart, and the
prisoner took away one of the trusses which was found in his
possession, but not broken up ; Parke J. held this to be no
larceny, the truss not being broken up. Pratley's case, 6 C.ty P.
533.
It is said by Lord Hale, that if A. delivers the key of his
chamber to B., who unlocks the chamber, and takes the goods
of A. animo furandi, this is felony, because the goods were not
delivered to him, but taken by him. 1 Hale, P. C. 505. Upon
this passage Mr. East remarks, that if the key be delivered for
the purpose of intrusting the party with the care of the goods, it
is as much a delivery of the goods themselves, as if each article
had been put by the owner into the hands of the party. And
then, although the taking of such goods out of the room with a
Larceny. 479
fraudulent intent to convert them, might still be felony, yet it
would be so on another ground, because by the act of taking
the goods with such intent out of the room, where they were
intended to remain for safe custody, the privity of contract
would be determined in, the same manner as if they had been
delivered in a box, and taken out of it afterwards. 2 East,
P. C. 685. It may be doubted, however, whether the con-
struction put upon the case by Mr. East, is not carrying the
doctrine as to the determination of the special property further
than the decided cases warrant.
In these cases it is always a question for the jury, whether
when the goods were taken the prisoner had a felonious intent,
for if he had, the act will amount to larceny. The prosecutor
hired the prisoner at Bristol to drive fifty sheep for him to
Bradford. The prisoner never took the sheep to Bradford, but
sold ten of them on the way. The jury found the prisoner
guilty, saying, they were of opinion that at the time he received
the slieep, he intended to convert them to his own use, and not
to drive them to Bradford. On a case reserved, the judges
were unanimously of opinion that the conviction was right.
Stock's case, 1 Moody, C. C. 87. See M'Namus's case, Id. 388,
post. And where goods were delivered by the prosecutor to
the prisoners, (who were not carriers, and only employed by
him on that occasion) to be conveyed by them, but they were
to be paid for carrying them, and instead of taking them to the
place directed, they stole the goods, but without opening any
of the packages, it was ruled bv Patteson J. to be no felony.
Fletcher's case, 4 C. $ P. 545.
Proof of the taking with reference to the possession original
taking not felonious baileesdetermination of the bailment.']
Upon the principle that it is not felony in a bailee to convert to
his own use the goods bailed to him, a nice distinction has been
grafted, which seems, says Mr. East, to stand more upon posi-
tive law, which cannot now be questioned, than upon sound
reasoning. 2 East, P. C. 695, but see Mr. Starkie's observations,
2 Evid. 448, (i.) 2d ed. The distinction is thus stated by
Lord Hale. If a man delivers goods to a carrier to carry to
Dover, and he carries them away, it is no felony, but if the
carrier have a bale or trunk with goods in it delivered to him,
and he breaks the bale or trunk, and carries away the goods
animofurandi, or if he carries the whole pack to the place ap-
pointed, and then carries it away animofurandi, it is a felonious
taking. But that must be intended where he carries them to
the place, and delivers or lays them down, for then his possession
by the first delivery is determined, and the taking afterwards is
a new taking. 1 Hale, P. C. 504, 505.
This distinction has been recognized and acted upon i
numerous cases, not only of carriers and other bailees, where
480 Larceny.
the bailment has been determined by breaking bulk, &c., but
likewise in the case of other persons, having a special property,
where the contract conferring the special property has been
terminated by the tortious act of the party. A farmer sent forty
bags of wheat to the prisoner, who v&s a warehouseman, for
safe custody. The prisoner took eight of the bags, and shooting
the wheat out on the floor, mixed it with four bags of inferior
wheat, and sold the whole twelve for his own benefit. He replaced
the wheat thus taken from the prosecutor with inferior wheat of
his own. It did not appear that there was any severing of part
of the wheat in any one bag, from the residue of the wheat in
the same bag. The prisoner being convicted of larceny, the
judges were unanimously of opinion that the conviction was
right, that the taking of the whole of the wheat out of any one
bag, was no less a larceny than if the prisoner had severed a
part from the residue of the wheat in the same bag, and had
taken only that part, leaving the remainder of the wheat in the
same bag. Brazier's case, Russ. <f Ry. 337.
In order, therefore, to establish a larceny of goods which have
been bailed, some act determining the bailment must be proved.
A woman intrusted a porter to carry a bundle for her to
Wapping, and went with him. In going to the place, the
porter ran away with the bundle, which was lost. Being
indicted for felony, Holt, C. J. told the jury, that if they thought
the porter opened the bundle and took out the goods, it was
felony ; and he thought that the fact as above stated was evi-
dence of it. Anon. 2 Easf, P. C. 697, 1 Leach, 415. (n.)
Upon this case Mr. East observes, with submission to so high
an authority, it may fairly be doubted, whether there were
sufficient evidence before the jury on this statement, to warrant
them in finding that the porter opened the bundle and took out
the goods. A different ground for the determination, he con-
tinues, is suggested in another MS. (2 MS'. Sum. 233,) viz. that
all the circumstances of the case showed that the porter took
the bundle at the first, with an intent to steal it. 2 East, P. C.
697.
It seems to have been the opinion of Kelynge, (p. 81, 82,)
that the ground for holding that the opening of a packet or bale
by a carrier, or other bailee, and a subsequent conversion, shall
constitute felony, was because that act declares that his intent
originally was not to take the goods upon the agreement and
contract of the party, but only with a design of stealing them.
There may, says Mr. East, observing upon this passage, be
evidence of such a previous intent, sufficient to warrant such a
conclusion in point of fact, and whether the particular evidence
in that case were of such a nature, does not appear ; but if the
inference may be drawn from the mere fact of the carrier's
embezzling the goods, there is an end of the distinction at once
as to the case of breaking the package and taking out the goods.
Larceny. 481
For if the taking of part of the goods out of the package be
evidence of the carrier's having originally intended to take the
goods, not upon the agreement, but with intent to steal them,
a fortiori, the taking of the whole package of goods, whether
broken or not, and converting it, must be evidence of such
an intent ; and so, indeed, Kelynge himself admits. 2 East,
P. C. 697.
Although a contrary opinion appears to have been formerly
entertained, ( See Charlewood's case, I Leach, 409, 2 East, P. C.
689, post, 490,) yet it is now settled, that when the owner
parts with the possession of goods for a special purpose, and the
bailee, when that purpose is executed, neglects to return, and
afterwards disposes of them, if such bailee had not a felonious
intention when he originally took the goods, the subsequent
withholding and disposing of them will not constitute a new
felonious taking, nor make him guilty of felony. Banks's
case, Russ.fyRy. 441, 2 Russell, 132. See Ist"Rep. Crim.
Law. Com. p. 25.
Proof of the taking with reference to the possession of the
goods cases of servants.] Where a person has the bare charge
or custody of goods, the legal possession of such goods remains
in the owner, and larceny may be committed by the person
having such a bare possession or custody. He that has the care
of another's goods, says Lord Hale, has not the possession of
them, and therefore may, by his felonious embezzling of them,
be guilty of felony ; as the butler who has the charge pf his
master's plate, the shepherd who has the charge of his master's
sheep ; 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. Robinson's case,
2 East, P.C. 565. The prisoner was a drover, and had been em-
ployed 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. Being indicted for larceny he was found guilty ; 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,
all the judges who met were of opinion, that as the owner parted
with the custody only, and not with the possession, the pri-
soner's possession was the owner's, and that the conviction
was right. M'Kamee's case, 1 Moody, C. C. 368 ; and see
Stock's case, Id. 87. The prisoner was employed by the
prosecutor as his foreman and book-keeper, 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 trans-
mitted 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
482 Larceny.
case was resembled to that of a carrier intrusted with goods ;
but the judges held it larceny, on the principle that the pos-
session still remained in the master. Paradice's case, 2 East,
P. C. 565, cited I Leach, 523, 524. The prisoner was em-
ployed as a porter by the prosecutor, who delivered to him a
parcel to carry to a customer. While carrying it he met two
men, who 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. Bass's case, 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. Lavender's case, 1793, twice considered by the
judges. 2 East, P. C. 566, 2 Russ. 201. And 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. Atkinsons case, 1 Leach, 302, (n.) 2 Russ. 201.
So where the clerk of a banker told a customer of t the
house that he bad paid in money to his account, and thereby
induced the customer to give him a check to the amount, for
which the prisoner took bank-notes out of the drawer, and
afterwards made fictitious entries in the books to prevent a
discovery of the transaction, it was held, on a case reserved for
the opinion of the judges, that this was a felonious taking of
the bank-notes from the drawer, and not an obtaining of them
under a false pretence. Mammon's case, 2 Leach, 1083,
4 Taunt. 304, Russ. <3f By. 221, 2 Russ. 202.
Where a clerk or servant takes a bill of exchange belonging
to his master, gets it discounted, and converts the proceeds to
his own use, this is a larceny of the bill, though the clerk have
authority to discount bills. In a case of this kind it was con-
tended on behalf of the prisoner, 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 prose-
cutor's desk, and the prisoner having feloniously taken it away
out of that possession. Chipchuse's case, 2 East, P. C. 567,
2 Leach, 699, 2 Russell, 202.
In order to render the offence larceny, where the property is
taken by a servant, it must appear that the goods were at the
Larceny. 483
time in the possession of the master. It is not, however, ne-
cessary that they should be in his actual possession, it is suffi-
cient if he has a constructive possession, or possession in law.
Therefore, where a man purchases goods, and sends his servant
to receive them, and the servant carries them away, it is lar-
ceny, for the property carries with it the possession in law.
On the other hand, unless the possession of the goods actual or
constructive, be in the prosecutor, no larceny can be committed
upon them with regard to him. This distinction is very mate-
rial, as drawing the line between larceny and embezzlement.
In the following cases, the possession was decided to be in the
prosecutor, and the offence to be larceny.
The prisoner was ordered by his masters, the prosecutors,
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 220 quarters in
loose bulk, and five other quarters, which he ordered to be put in
sacks, and afterwards embezzled. The question reserved for
the opinion of the judges was, whether this was felony, the oats
never having been in the possession 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. Spears's case, 2 East, P. C.
568, 2 Leach, 826, 2 Russell, 189. 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 carried 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 complete before the deli-
very 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. Abrahat's case, 2 East,
P. C. 569, 2 Leach, 824, 2 Russell, 199. So where a
servant sent to fetch away goods purchased, and lying at the
London Docks, purloined them. Harding's case, Buss. Ry.
125, 2 Russell, 200.
If the goods are not in the actual or constructive possession
of the master at the time they are taken, the offence of the ser-
vant in taking them will be embezzlement, and not larceny.
Therefore, where goods in the possession of a third person, and
not yet delivered over to the master, are delivered to the servant,
who appropriates them to his own use, this is not a larceny, for
the time of the larceny must be referred to the period of the re-
ceipt of the goods by the servant, at which time there was no
possession in the master, without which there could be no tres-
Y 2
484 Larceny.
pass, and no larceny. Vide ante, (p. 469.) If, says Mr.
East, the master had no otherwise the possession of the goods
than by the bare receipt of his servant, upon the delivery of
another for the master's use, and the servant have done no act
to determine his original, lawful, and exclusive possession, as
by depositing the goods in his master's house, or the like ;
although to many purposes, and as against third persons, this
is in law a receipt of the goods by the master, yet it has been
ruled otherwise in respect of the servant himself, upon a charge
of larceny at common law, in converting the goods to his own
use ; because as to him, there was no tortious taking in the first
instance, and consequently no trespass, as there is where a ser-
vant converts to his own use property in the virtual possession
of his master. 2 East, P. C. 568.
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 re-
ceived them from the Court of Chancery, put them in his own
desk, and afterwards sold them. The Court before which the
prisoner was tried, was of opinion, that this was not felony ;
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 sufficient
to maintain a civil action, and a possession whereon to found a
criminal prosecution. Waite's case, 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 acknow-
ledgment for the sum in question, but kept back a 100Z. 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 bankers, distinct
from the possession of the prisoner, though it would have been
otherwise, if the prisoner had deposited it in the drawer, and
had afterwards taken it. They thought that this was not to be
differed from the cases of IVaite, (supra, 485,) and Bull,
(post, p. 485,) which turned on this consideration, that the
thing was not taken by the prisoner out of the possession of the
owner, and here it was delivered into the possession of the pri-
soner. They said, that though to many purposes the note was
in the possession of the masters, yet it was 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 were hardly
Larceny. 485
to be distinguished ; and that in Spears's case, the corn was in
the possession of the master, under the care of the servant.
Bazeley's case, 2 Eait, P, C. 571, 2 Leach, 835, 2 Resell, 205.
In consequence of this case, the statute 39 G. 3. c. 85,
(now repealed by 7 & 8 G. 4. c. 29,) against embezzlements
by clerks and servants, was passed. 2 Leach, 849. The pro-
secutor suspecting that he was robbed by the prisoner, his ser-
vant, who attended the shop, employed a customer to come to
his shop on pretence of purchasing, and gave him some marked
silver of his own, with which the customer came to the shop in
the absence of the owner, and bought goods of the prisoner.
Soon after the master coming in, examined the till, in which the
prisoner ought to have deposited the money when received, and
not rinding it there, procured him to be arrested, and on search,
the 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 against the defendant. Butt's case, cited in Bazeley's
case, 2 East, P. C. 572, 2 Leach, 841, 2 Russell, 204.
So where a servant was sent by his master to get change for a
51. 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. Sulten's case, 1 Moody, C. C. 129.
The punishment of larceny, when committed by clerks and
servants, is regulated by the 7 & 8 G. 4. c. 29. s. 46, which
enacted for the punishment of depredations committed by clerks
and servants, that if any clerk or servant shall steal any chattel,
money, or valuable security, belonging to, or in the possession
or power of his master, every such offender being convicted
thereof, shall be liable, at the discretion of the Court, to be
transported beyond the seas for any term not exceeding fourteen
years, nor less than seven years, or to be imprisoned for any
term not exceeding three years, and if a male, to be once,
twice, or thrice publicly or privately whipped, (if the Court
shall so think fit,) in addition to such imprisonment.
Proof of the taking with reference to the possession cases of
lodgers.] It was for some time considered a doubtful point whether
the taking of goods by a lodger was larceny at common law, on
the ground, that like a bailee, he had the possession of the goods,
but at last it was held, that it was not larceny. Meeres's case,
1 Shower, 50, 2 Russell, 246. Upon this decision Mr. East
observes, that if it clearly appears that the prisoner took the
lodgings with the intent to gain a better opportunity of rifling
them, and to elude the law, there seems to be no reason why it
should not be felony at common law. 2 East, P. C. 585, To
486 Larceny.
remedy this state of the law, the statute 3 & 4 W. & M. c. 9,
was passed, making the offence larceny. That act being re-
pealed by the 7 & 8 G. 4. c. 27, it is by the 7 & 8 G. 4. c. 29.
s. 45, enacted, for the punishment of depredations committed
by tenants and lodgers, that if any person 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 en-
tered into by him or her, or by her husband, or by any person
on behalf of him or her, or her husband, every such offender
shall be guilty of felony, and, being convicted thereof, shall be
liable to be punished in the same manner as in the case of sim-
ple larceny ; and in every such case of stealing any chattel, it
shall be lawful to prefer an indictment in the common form as
for larceny, and in every such case of stealing any fixture to
prefer an indictment in the same form as if the offender were
not a tenant or lodger, and in either case to lay the property in
the owner or person letting to hire.
Under the repealed statute, it was held that where the whole
house, ready furnished, was let to the prisoner, it was not a
case within the statute, which was meant to apply to cases
where the owner had a possession, and the lodger the use.
Palmer's case, 2 East, P. C. 586. But such a case is within
the provisions of the new statute, which applies to houses and
tenants. Under the former statute also, it was held that it was
no objection to state that the lodgings were let by the wife of
the owner, for that the contract might be stated, according
either to the fact or the legal operation ; and it seems to have
been thought unnecessary to state by whom the lodgings were
let, and that if there was a mistake in the name of that party,
the allegation might be rejected as surplusage. Healey's case,
1 Moody, C. C. 1.
Proof of the taking with reference to the possession stealing
from the person.] The stealing from the person without vio-
lence, or putting in fear, was provided against by the statute
48 G. 3. c. 129. s. 2, (now repealed;) by which it was en-
acted, that any person who should feloniously steal, take, and
carry away any money, goods, or chattels, from the^person of
any other, whether privily, without his knowledge, oT not, but
without such fear, or putting in fear, as is sufficient to constitute
the crime of robbery, should be liable, &c.
In a case upon this statute, it was held that the indictment
need not negative the force or fear, and that, although such
force and fear did in fact exist, the prisoner might be convicted
under this act. Pearce's case, Russ. Sf Ry. 174, 2 Leach, 1046.
And the same point was held in a subsequent case. Robin-
son's case, Russ. <Sf Ry. 321.
The above statute being now repealed by the 7 & 8 Geo. 4.
c. 27, it is enacted by stat. 7 & 8 Geo. 4. c. 29. s. 6, that if any
Larceny. 487
person shall steal any such property [viz. any chattel, money,
or valuable security,] from the person of another, or shall
assault any other person, with intent to rob him, or shall with
menaces, or by force, demand any such property of any other
person, with intent to steal the same, every such offender shall
be guilty of felony, and, being convicted thereof, shall be liable,
at the discretion of the court, to be transported beyond the seas
for life, or for any term not less than seven years, or to be im-
prisoned for any term not exceeding four years, and, if a male,
to be once, twice, or thrice publicly or privately whipped, (if
the Court shall so think fit,) in addition to such imprisonment.
To support a prosecution for stealing from the person, the pro-
secutor must prove, 1, the taking, 2, of the goods, &c. f and, 3,
from the person. The taking, and the nature of the goods taken,
will be proved as in other cases of larceny.
The taking from the person, to constitute this offence, may
be either with or without the knowledge of the owner ; but the
property must be completely removed from the person. The
following evidence was held not to be sufficient. The prosecutor
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 that 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 hand down from my breast ; I se-
cured the prisoner after a severe struggle." On cross-examina-
tion, the prosecutor said, ' I am satisfied the book was drawn
from my pocket ; it was an inch above the top of the pocket."
The prisoner being convicted, on a case reserved, six of the
judges thought that the prisoner was not rightly convicted of
stealing from the person, because, from first to last, the book
remained about the person of the prosecutor. Four of their
lordships were of a contrary opinion ; but the judges were una-
nimously of opinion that the simple larceny was complete.
Thomson's case, 1 Moody, C. C. 78. Vide, ante, p. 471.
Proof of the taking distinction between larceny and obtain-
ing goods, $fc. by false pretences.] Although the distinction
between larceny and the obtaining of goods, &c. by false pre-
tences, is not so material, since the statute 7 & 8 Geo. 4. c. 29.
s. 53, which provides, that where a person is indicted for the
misdemeanor, and it appears that he obtained the property in
such a manner as to amount to larceny, he shall not, by reason
thereof, be acquitted ; yet as the converse is not the case, it is
material to inquire what circumstances will be held to constitute
the respective offences.
488 Larceny.
As the character of the transaction depends upon the inten-
tion of the parties, that intention must determine the nature of the
offence. It is not however sufficient to show simply a felonious
intent, an animus furandi on the part of the offender ; although
such would seem to have been the opinion of Ashurst J., who
says, " Wherever there is a real and bond Jide contract and de-
livery, and afterwards the goods are converted to the party's own
use, that is not felony. But if there be no real and bona fide
contract, if the understanding of the parties be not the same,
the contract is a mere pretence, and the taking is a taking with
intent to commit felony." Pear's case, 2 East, P. C. 688. (n.)
It will be seen, however, by the cases about to be cited, that the
mere intent to commit felony, or rather fraudulently to appro-
priate the matter in question to the party's own use, is not suffi-
cient to render the taking felonious, where the owner, although
induced by the false representations of the offender, intends to
part with his property in the matter delivered. The law of Scot-
land is the same as our own on this point ; and the principle of
the distinction, between larceny and false pretences, is well ex-
Eressed in the following passage from a writer on the criminal
iw of that country. " Where possession is obtained by such
false representations as induce the owner to sell or part with the
property, the crime is swindling. But a variety of cases fre-
quently occur, in which the possession is obtained, not on any
contract or agreement adequate to pass the property, but on
some inferior title, adequate to give the prisoner the right of in-
terim custody. The distinction between such cases, and those
in which the property is obtained on a false pretence, lies here,
that in the one case, the proprietor has agreed to transfer the
property, and therefore he has only been imposed upon in the
transaction ; in the other, he has never agreed to part with his
property, and therefore the subsequent appropriation is theft."
Alison's Princ. Crim. Law of Scotl. 259.
To prevent the case from amounting to larceny, the delivery
of the goods must be by some person having authority, by such
delivery, to pass the property. Therefore, where the prisoner
procured a parcel from the servant of a carrier, by falsely pre-
tending that he was the person to whom it was addressed, and be-
ing indicted for larceny, the jury found, that when the prisoner
obtained the goods he knew they were not his own property,
and intended to steal them ; the judges, on a case reserved, held
that the conviction of the prisoner for larceny was right, on the
ground that the ownership of the goods was not parted with, the
carrier's servant having no authority to part with the ownership
to the prisoner, and the taking was therefore larceny. Long-
streeth's case, 1 Moody, C. C. 137 ; see Jackson's case, Id. 119,
post, 499 ; Wilkins's case, 2 East, P. C. 673, post, p. 493.
Proof of the taking no intent to part with property bit the prose-
Larceny. 480
cutor original felonious intent on the part of the prisoner cases
of hiring horses, <Sfc. larceny.] In the following case, the owner
of the goods having no intention of parting with the property in
them, and the offender having, at the time of obtaining them,
the animus fur andi, the circumstances were held to constitute a
felony. The prisoner hired a mare for a day from the prosecutor
in London, in order to go to Sutton in Surrey, and said he
should return the same evening. The prisoner gave the prose-
cutor a false reference. On the afternoon of the day on which
he hired the mare, the prisoner sold her in Smithfield. The
jury found the prisoner guilty of stealing the mare, and a case
was reserved for the opinion of the judges, which underwent
great discussion. Two of their lordships thought, that as the
mare was obtained from the owner by means of asserting that
which was false, vh. that the prisoner wanted to go a journey
which he never intended to take, and as the statutes 33 Hen. 8.
and 30 Geo. 2. had made the offence of obtaining goods by false
tokens, or false pretences, punishable as a misdemeanor only,
and the 33 Hen. 8. had distinguished the case of obtaining goods
by false tokens from obtaining goods by stealth, they were
bound by those statutes to say that the prisoner's offence was
not felony. A majority of their lordships, however, held that
this case did not come within the statutes 33 Hen. 8. and 30 G. 2.
relating to false pretences, which were not intended to mitigate
the common law, or to make that a less offence which was a
greater one before. They held, that where an original felonious
intent appeared, those statutes did not apply. They said, that
if no such intent appeared, if the means mentioned in the statutes
were made use of, the legislature had made the offender answer-
able criminally, who before, by the common law of the land,
was only answerable civilly. Pear's case, 2 East, P. C. 685,
1 Leach, 212. It will be observed, that, in this case, the pro-
secutor did not intend to part with the property in the horse,
and no question arose upon that point.
The following case, under similar circumstances, was decided
the same way. The prisoner, a post-boy, applied to the prose-
cutor, a livery stable-keeper, for a horse, in the name of a 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 pro-
secutor's servant 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 Goodman's-fields for a guinea
and a half, including saddle and bridle. The horse was much
injured, and appeared to have been ridden very hard. The pur-
chaser sold the horse for 2/. 15s. The Court observed, that the
judges, in Pear's case, had determined, that if a person, at the
time he obtained another's property, meant to convert it to his
Y 5
490 Larceny.
own use, it was felony. That there was a distinction, however,
to be observed in this case, though it was so nice that it might
not be obvious to common understandings ; 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 him-
self 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. That there was yet another
point for their consideration ; for though the prisoner really went
to Barnet, yet, being obliged by the contract to re-deliver the
horse to the owner on his return, if they thought that he did per-
form the journey, and that after his return, instead of re-deliver-
ing it to the owner, converted it to his own use, he would thereby
be guilty of felony, for the end and purpose of the journey was
then over. The jury found the prisoner guilty on the first
?-ound, and he- was executed. Charlewood's rase, 2 East,
. 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 carriages from the prosecutor, a
coach-maker, 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 Uxbridge, where he ordered a pair
of horses, went to Bulstrode, returned to Uxbridge, and got
fresh horses. 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 Pear's case,
(ante, p. 489,) and Aickle's case, (post, p. 492,) 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 tor-
tious 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 dispo-ed of the chaise. The court, how-
ever, said, that it was now settled, that the question of inten-
tion 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 effect to that design, without intention
to restore or pay for it, it would fall precisely within Pear's
case, and the other decisions, and the taking would amount to
felony. For if the owner only intended to give the prisoner a
qualified use of the chaise, and the prisoner had no intention to
Larceny. 491
make use of that qualified possession, but to convert it to his
own use, he did not take it upon the contract, and therefore did
not obtain the lawful possession of it; but if there were a bond
fide hiring, and a real intention of returning it, at the time, the
subsequent conversion of it would not be felony ; for by the
contract and delivery, the prisoner would have obtained the
lawful possession of the chaise, and his subsequent abuse of the
trust would not be felony. The court also held that there was
sufficient presumptive evidence of a conversion, and the prisoner
was found guilty. Semple's case, 0. B. Cor. Gould J.
<$f Adair Serj. Rec. 2 East, P. C. 691, 1 Leach, 420.
It will be observed, that in this case the judges adverted to
the fact, that the prosecutor only intended to give a qualified
possession, a distinction which will be afterwards fully noticed.
The doctrine at the conclusion of Charleu-ood's case, supra, p.
490, that if the prisoner on his return to London, instead of
restoring the horse to the owner, had converted it to his own
use, he would have been guilty of a felony, (see also Tunnard's
case, 0. B. 1 Leach, 2J4, (?.) has been since overruled. The
prisoner borrowed a horse under pretence of carrying a child to
a neighlwuring surgeon. Whether he carried the child thither
did not appear ; but the day following he took the horse in a
different direction and sold it. The prisoner did not offer the
horse to sale, but was applied to to sell it, so that it was possible
that he might have had no felonious intention till that appli-
cation was made. The jury thought that the prisoner had no
felonious intention when he took the horse, but the learned
judge thought, that as it had been borrowed for a special pur-
pose, and that purpose was over when the prisoner took the
horse to the place where he sold it, it was proper to submit the
point to the consideration of the judges, who after consideration
were of opinion, that the doctrine laid down on the subject in
2 East, P. C. 690, and 2 Russell, 1089 and 1090, (1st
ed.) was not correct. They held, that if the prisoner had not a
felonious intention when he originally took the horse, his sub-
sequent withholding and disposing of it, did not constitute a
new felonious taking, and make him guilty of felony ; and that
consequently, the conviction could not be supported. Banhs's
case, Russ.fyRy. 441, 2 Russell, 132, 2<2 ed. and vide post,
Larceny by Servants.
Proof of taking no intent by prosecutor to part with the
property in the goods original felonious intent on the part of
the prisoner various cases amounting to larceny where goods are
obtained by false pretences.'] There is a numerous class of cases
in which goods have been obtained from the owner with a
fraudulent intent, but where the owner only intended to part
with the possession, and not with the property in them. In
these cases it has been held, that if the prisoner had the animiit
492 Larceny,
furandi at the time of the taking, and has converted the goods
to" his own use, the offence amounts to larceny. It has been
generally in cases of this kind, that the distinction between
larceny and obtaining goods under false pretences has been
lost sight of. The false pretences are only the mode employed
by the offender to procure the possession of the property, and
render the case no less a larceny than if he had taken the pro-
perty without the knowledge of the owner, or by force. The
real distinction is, whether the owner intended to pass the right
of property. If he did not, it is the subject of an indictment
for larceny if he did, of an indictment for obtaining money by
false pretences.
The prisoner, J. H. Aickles, was indicted for stealing a
bill of exchange, 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 line. Three weeks after-
wards 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, Edwards
whispered to his clerk not to leave the prisoner without receiving
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 a room, and desired him to wait, saying, he should
be back again in a quarter of an hour. The clerk, however, fol-
lowed him down Pulteney-street, but in turning a corner,
missed him. The prosecutor and his clerk waited at the pri-
soner's lodgings three days and nights in vain. Being appre-
hended 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 subpana duces tecum.buthc 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
po-session, with intent to steal it, and next, whether the pro-
secutor intended to part, with the bill to the prisoner without
havi ig the money first paid. Upon the first point the jury found
in the affirmative, 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.
jtickles's case, 2 Last, P. C. 675, 1 Leach, 294.
The following observations are made by Mr. East on this
Larceny. 493
case. " From the whole transaction it appeared that Edwards
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
which it was to be discounted, that by showing it to the ac-
ceptor he might satisfy himself that it was a genuine accept-
ance. But besides, that 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.
The prisoner was indicted for stealing a quantity of stock-
ings. 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 ques-
tion, 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 afterwards found
to be of no value, telling him to take it to his master directly,
that it might be forwarded to a Mr. Browne, and then, with the
consent of the apprentice, he took from him the parcels in ques-
tion. The boy then left the prisoner, but returned 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 facts amounted
to felony, referred the case to the judges, who were of opinion
that the conviction was proper ; Mr. Justice Gould, in stating
the reasons of the judgment, laid down the following rules as
clearly settled: that the possession of personal chattels follows
the rijjht of property in them ; that the possession of the servant
was 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. Wilkiits's case, 2 East, P. ('. 673,
1 Leach, 520.
Proof of the taking no intent to part with the property hy the
prosecutor original felonious intent on the part of the prisoner
cases of pretended purchase* larceny.] Where the owner of
goods, which are taken by another with a fraudulent intent to
eonvert them to his own use, parts with his property in such
goods, although under the false pretence of a purchase, it is no
larceny, as will be seen from the cases afterwards stated ; but
if there be only a negotiation for a purchase, and such purchase
be not complete, the taking will amount to larceny, if there be
a felonious intent on the part of the prisoner, as in the following
case, which well illustrates the distinction between the offence
of larceny, and of obtaining goods under the false pretence of
494 Larceny.
purchasing them. The prisoner was indicted for stealing two
silver cream ewers from the prosecutor, 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 prosecu-
tor's shop, and said that his master, (meaning the gentleman
whose service he had left,) 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, that
this amounted merely to obtaining goods under false pretences ;
but Bayley 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. Davenport's case, Newcastle Spring
Assizes, 1826. Archbold's Peel's Acts, 5. The prisoner having
bargained for some oxen, of which he agreed 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 pri-
soner under a contract, they thought he originally got posses-
sion of them without intending to pay for them, making the
bargain the pretext for obtaining them, for the purpose of steal-
ing them. The jury having found in the affirmative, the
judges, in a case reserved, were unanimously of opinion that the
offence amounted to felony. Gilbert's case, Gow, N. P. C.
225, (n.) 1 Moody, C. C. 185. 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
prosecutor desired they might be taken care of. Half an hour
afterwards the prisoner returned, and took the articles away.
There were other circumstances showing a fraudulent intent,
and the judge directed the jury, that if they were satisfied that
the prisoner, when he first called on the prosecutor, had no in-
tention of buying and paying for the goods, but gave the order
for the purpose ot getting them out of his possession, and after-
wards clandestinely removing, and converting them to his own
use, they should find him guilty, which they did, and the
Larceny. 495
judges, on a case reserved, held the direction and conviction
right. Campbell's case, 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 pri-
soner should take away the goods, on the express condition
that they should be paid for at the door of his house. The pri-
soner never took the goods to his house, but lodged them else-
where. The prisoner was indicted for stealing the goods. The
jury found that he had no intention 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 com-
plete, and the conviction good, the jury having found that the
prisoner never meant to buy, but to defraud the owner. Pratt'*
case, 1 Moody, C. C. 250.
Proof of the taking intent to part with the property by prose'
cntor original felonious intent on the part of the prisoner -false
pretences.] It may be laid down as a well established principle,
that if the owner of goods intends to part with the property in them
to the prisoner, and in pursuance of such intention, delivers the
goods to him, and lie takes them away, he is not guilty of felony,
although at the time of taking the goods he had no intention of
paying for them, or otherwise performing his contract with the
owner, but intended to appropriate them to his own use.
In the various cases before-mentioned, (p. 487, to p. 495,)
it will be observed, that the owner of the goods had only in-
tended to pass the possession of them to the prisoner ; in all the
cases under the present head, the intention was to pass the
property.
Proof of the taking intent to part with the property by prose-
cutor original felonious intent of the prisoner pretended pur-
chasesfalse pretences.] The prisoner was indicted for horse
stealing, and it appeared in evidence that he met the prosecutor at
a fair with a horse, which the latter had brought there for sale.
The prisoner being known to him, proposed to become the pur-
chaser. On a view of the horse, the prosecutor told the prisoner
he should have it for 8/., and calling his servant, ordered him to
deliver it to the prisoner, who immediately mounted the horse,
telling the prosecutor that he would return immediately, and
pay him. The prosecutor replied, " Very well," and the pri-
soner 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.
Harvey's case, 2 East, P. C. 669, 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
496 Larceny.
pretences been used, the prisoner might have been indicted
under the 30 G. 2. c. 24.
Parks was indicted for stealing a piece of silk, the property
of Thomas Wilson. The prisoner called at Wilson's ware-
house, and having looked at several pieces of silk, selected the
one in question. He said his name was John Williams, that
he lived at No. 6, Arabella-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, Ara-
bella-row, examined the bill of parcels, and gave the servant a
bill drawn by Freth and Co., at Bradford, on Taylor and Co.,
in London. The bills were for more than the price of the
goods. The servant could not give change, but the prisoner
said he wanted more goods, and should call the following day,
which he did not do. Taylor and Co. said the notes were
good for nothing, and that they had no correspondent at Brad-
ford. Before the goods were sent from Wilson's, they were
entered in a memorandum-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 whe-
ther tliere was, from the beginning, a premeditated plan on the
part of the prisoner to obtain the goods without paying value for
them, and whether this was a sale by Wilson, and a delivery of
the goods with intent to part with the properly, he having re-
ceived bad bills in payment through the medium of his servant.
The jury found that, from the beginning, it was the prisoner's
intention to defraud Wilson, and that it was not Wilson's inten-
tion to give him credit, and they found him guilty. But the
judges were of opinion that the conviction was wrong, the pro-
perty, as well as the possession having been parted with, upon
receiving that which was accepted as payment by the prosecu-
tor's servant, though the bills afterwards turned out to be of no
value. Parkes's case, 2 East, P. C. 671, 2 Leach, 614.
The circumstances of this case would have supported an in-
dictment for obtaining the goods under false pretences. The
prisoner after his acquittal, was convicted for obtaining a gold
watch from a Mr. Upjohn, by falsely pretending that he wanted
to purchase it, that he lived at No. 27. Cambden-street, Isling-
ton, and that he would pay for the same on deliveiy. 2 Leach,
616.
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 the pro-
perty, though to the third person, it has been held not to
amount to felony. The prisoner was indicted for stealing a hat,
in one count laid to be the property of Robert Beer, in another
of John Paul. The prisoner bought a hat of Beer, a hat-maker,
at Islington ; but was told he could not have it without paying
Larceny. 497
for it. While in the shop, he 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 was 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 him to Beer's
for his hat ; but that as he owed Beer for a hat himself, which
he had not money to pay, he did not like to go. He asked the
boy (to whom he promised something for his trouble) to carry
the message to Beer's, and bring Paul's hat to him, (the pri-
soner.) 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, which, after carry-
ing part of the way by the prisoner's desire, he delivered to him,
the prisoner saying he would take it himself to Paul. The pri-
soner was apprehended with the hat in his possession. It was
objected for him, that this was not a larceny, but an obtaining
goods under false pretences. The prisoner being found guilty,
the question was reserved for the opinion of the judges, who de-
cided that the offence did not amount to a felony, the owner
having parted with his property in the hat. Adams's case,
2 Russell, 113, 2d ed.
Proof of the taking intent to part with the property by pro-
secutor original felonious intent of prisoner cases of obtaining
goods, &;c. b y false pretences.] Under this head may be classed
the cases, strictly speaking, of obtaining money under false
pretences, cases in which, on account of the owner of the goods,
&c. intending to part with the property in them, the offence
does not amount to larceny, and where the possession of the
goods has been fraudulently obtained by the prisoner under
false pretences. The prisoners, Nicholson, Jones, and Chappell,
were indicted for stealing two bank post bills and seven guineas.
The prisoner Nicholson introduced himself to the prosecutor at
the apartments of the latter in the Charter-house, under pre-
tence of inquiring what the rules of the charity were. Dis-
covering that the prosecutor had some money, he desired to
walk with him, and having been joined by the prisoner Chap-
pell, 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 1400/., and produced a quantity of notes.
Chappell said to him, " I suppose you think that no one has
any money but you." Jones answered, " I'll lay 10/. that
neither of you can show 40/. in two hours." They then all
went out, Nicholson and Chappell saying, that they should go
to the Spotted Horse, and they both asked the prosecutor if he
could show 401. He answered, he believed he could. Nichol-
son 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
498 Larceny.
took two guineas more. They then went to the Spotted Horse,
where Jones and Chappell 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 whether he took up the 101. given to him.
Jones then wrote four letters with chalk upon the table, and
going to the end of the room, turned his back and said, that he
would bet them a guinea a piece that he would name another
letter which should be made and a basin put over it. Another
letter was made and covered with a basin. Jones guessed
wrong, and the others won a guinea each. Chappell 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 guineas. 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 con-
stable immediately came in 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, &c., 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 enter-
tained by the bench, on the latter point, it was left to the jury
to consider whether this was a gaming transaction or a pre-
concerted scheme by the prisoners, or any of them, to get from
the prosecutor the post bills and cash. The jury were of opi-
nion that it was a preconcerted scheme in all of them for that
purpose, and found them guilty ; but the judges held the con-
viction wrong, for in this case the possession as well as pro-
perty had been parted with by the prosecutor, under the idea
that it had been fairly won. Nicholson's case, 2 East, P. C.
669, 2 Leach, 610.
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 10 act in his busi-
ness, after looking at the diamonds, delivered them back to the
Larceny. 499
prisoner to seal up, when the prisoner substituted 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 S. before whom he
was tried, thought that inasmuch as the property was parted
with by the pawnbroker's servant, absolutely, under the im-
pression, 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 autho-
rity from the master, parted with the property, and not merely
with the possession. Jackson't case, I Moody, C. C. 119. See
Longstreetht't case, Id. 137, ante, p. 488.
Proof of the things stolen things savottriiig of the realty
at common law."] At common law larceny could not be com-
mitted of things that savoured of or adhered to the freehold, as
trees, grass, bushes, bridges, stones, the lead of a house, or the
like. 1 Hale, P. C. 510. 2 East, P. C. 587. But if these
things be severed from the freehold, as wood cut, grass in cocks,
stones dug out of a quarry, &c., then felony might be com-
mitted 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 continued, 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. I 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 con-
stitutes a felony, if he comes back and takes it, and so of a tree
which has been some time severed." Lee v. Risdon, 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 connexion 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 in-
stantly after that severance." 1st Eep. p. 11.
To remedy the inconvenience which arose from this state of
the law, it has been made larceny in certain cases to steal things
500 Larceny.
annexed to a part of the freehold. These enactments will now
be stated.
Proof cf things stolen things savouring of the realty things
annexed to buildings, <Sfc.] By 7 & 8 G. 4. c. 29. s. 44, it is
enacted, that if any person shall steal, or rip, or cut, or break,
with intent to steal any glass, or woodwork, belonging to any
building whatsoever, or any lead, iron, copper, brass, or other
metal, or any utensil, or fixture, whether made of metal, or
other material, respectively fixed in, or to any building what-
soever, 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, street, or other place dedicated to
public use or ornament, every such offender 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,
and in case of any such thing being fixed in any square, street,
or other like place, it shall not be necessary to allege the same
to be the property of any person.
Upon the repealed statute 4 G. 2. c. 32, it was held, that a
person who procured possession of a house under a written
agreement between him and the landlord, with a fradulent in-
tention to steal the fixtures belonging to the house, was, in steal-
ing the lead affixed to the house, guilty of a felony within the
statute. Monday's case, 2 Leach, 850, 2 East, P. C. 594.
With regard to what shall be deemed a building within this
act, it has been held (upon the statute 4 G. 2, which, after
specifying certain buildings, uses the words, " any other
building whatever,") that a summer-house, half a mile from
the dwelling-house, is within the act. Norris's case, Muss. 6f
Ry. 69. So upon the same statute a majority of the judges
determined that a church was within the meaning of the act.
Parker's case, 2 East, P. C. 592. But it was agreed that
the property in lead affixed to a church could not he laid to
be either in the churchwardens, or in the parishioners or in-
habitants. 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.
Upon the words " any square, street or other place dedicated
to public use or ornament," it has been held that a church-yard
comes within the meaning of the act. Per Bosanquet J. Jitick's
case, 4 C. ^ P. 377.
Proof of the thing stolen stealing from mines.] The steal-
ing, or severing with intent to steal, the ore of any metal, &c.
from a mine, is made felony by the 7 & 8 G. 4. c. 29. s. 37, by
which it is enacted, that if any person shall steal, or sever with
Larceny. 501
intent to steal, the ore of any metal, or any lapis calaminaris,
manganese or mundick, or any wad, black cawke, or black lead,
or any coal or cannel coal, from any mine, bed, or vein thereof
respectively, every such offender 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.
The following case was lately decided on the subject of lar-
ceny in mines. The prisoners were indicted for stealing copper-
ore, the goods and chattels of A. B. and others. It appeared
in evidence, that A. B. and others, were the lessees and adven-
turers in a mine, the ores in which were excavated by several
distinct parties of labourers, working under separate contracts,
and at different rates of wages, which were so much in the
pound on the price of the ores when sold. The ores, when exca-
vated, were left, by the men who dug them, in various heaps in
the mine, and were afterwards raised to the surface, manufac-
tured, and sold by and at the expense of the adventurers. The
prisoners, who were contractors, working in the mine at wages of
5s. in the pound, had taken ores from a neighbouring heap which
had beendug out by other contractorsworking at'2s. inthe pound,
and had placed them on their own heap, and there left them, to
be raised and manufactured by the adventurers in the usual
course. The prisoners having been convicted, on a point re-
served, a majority of the judges were of opinion that the con-
viction was wrong, on the ground that there was no larceny
from the adventurers, in whom the property was laid. Webb's
case, Cornwall Lent Ass. 1835. MS.
Proof of the thing stolen trees, <$fe.] The stealing of trees,
&c. of greater value than ]/., growing in certain situations, is
made felony by the 7 & 8 Geo. 4. c. 29. s. 38, by which it is
enacted, that if any person shall steal, or shall cut, break, root
up, or otherwise destroy or damage, with intent to steal, the
whole or any part of any tree, sapling, or shrub, or any under-
wood, respectively growing in any park, pleasure ground, gar-
den, orchard, or avenue, or in any ground adjoining or belonging
to any dwelling-house, every such offender (in case the value of
the article or articles stolen, or the amount of the injury done,
shall exceed the sum of one pound) 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 ; and if any
person shall steal, or shall cut, break, root up, or otherwise de-
stroy or damage, with intent to steal, the whole or any part of
any tree, sapling, or shrub, or any underwood, respectively
growing elsewhere than in any of the situations herem-before
mentioned, every such offender (in case the value of the article
or articles stolen, or the amount of the injury done, shall exceed
the sum of five pounds,) shall be guilty of felony, and, being
502 Larceny.
convicted thereof, shall be liable to be punished in the same
manner as in the case of simple larceny.
Upon the words "adjoining to a dwelling-house," it has
been ruled, that they import actual contact, and therefore
ground separated from the dwelling-house by a narrow walk
and paling, with a gate in it, has been held not to be within
their meaning. Hodge's case, Moo. fyMalk.N. P.O. 341. There
was no count, laying the trees to be growing in ground belong-
ing to a dwelling-house. What is to be considered a garden,
within this section, is a question for the jury. Id.
The stealing of trees, &c. of inferior value, is provided against
by section 39, by which it is enacted, that if any person shall
steal, or shall cut, break, root up, or otherwise destroy or da-
mage, with intent to steal, the whole or any part 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,
every such offender, being convicted before a justice of the peace,
shall, for the first offence, 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 if any person so convicted shall
afterwards be guilty of any of the said offences, and shall be
convicted thereof in like manner, every such offender shall for
such second offence be committed to the common gaol or house
of correction, there to be kept to hard labour for such term, not
exceeding twelve calendar months, as the convicting justice
shall think fit ; and if such second conviction shall take place
before two justices, they may further order the offender, if a
male, to be once or twice publicly or privately whipped, after
the expiration of four days from the time of such conviction ; and
if any person so twice convicted shall afterwards commit any of
the said offences, such offender shall be deemed guilty of felony,
and, being convicted thereof, shall be liable to be punished in
the same manner as in the case of simple larceny.
The stealing of plants, fruits, and vegetable productions,
growing in any garden, &c., is provided against by the 42d sec-
tion of the same statute, by which it is enacted, that if any per-
son shall steal, or shall destroy or damage, with intent to steal,
any plant, root, fruit, or vegetable production, growing in any
garden, orchard, nursery-ground, hothouse, greenhouse, or con-
servatory, every such offender, being convicted thereof before a
justice of the peace, shall, at the discretion of the justice, either
be committed to the common gaol or house of correction, there
to be imprisoned only, or to be imprisoned and kept to hard la-
bour, for any term not exceeding six calendar 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 twenty pounds, as to the justice shall
Larceny. 503
seem meet ; and if any person so convicted shall afterwards com-
mit any of the said offences, such offender shall be deemed
guilty of felony, and, being convicted thereof, shall be liable to
be punished in the same manner as in the case of simple
larceny.
By the following section, this stealing of the same articles not
growing in any garden, &c. is punishable only by summary
conviction.
Proof of the things ttolen written instruments.] At com-
mon law, larceny could not be committed of deeds or other
instruments concerning land. 1 Hale, P. C. 510. Thus it was
held, that stealing a commission, directed to commissioners to
ascertain boundaries, was not a felony, the commission concern-
ing the realty. Westbeer's case, 1 Leach, 12, 2 East, P. C. 596,
2 Str. 1134. 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. Walker's rase, 1 Moody, 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 EL 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.
But now, by the various provisions of the 7 & 8 G. 4. c. 29,
these offences are rendered felonies.
By section 21, if any person 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 obliterate, injure, or destroy
any record, writ, return, panel, process, interrogatory, deposi-
tion, affidavit, rule, order, or warrant of attorney, or any ori-
ginal document whatsoever, of or belonging to any court of
record, or relating to any matter civil or criminal, begun, de-
pending, or terminated in any such court, or any bill, answer,
interrogatory, deposition, affidavit, order, or decree, or any ori-
ginal document whatsoever, of or belonging to any court of
equity, or relating to any cause or matter begun, depending, or
terminated in any such court, every such offender shall be guilty
of a misdemeanor, and, being convicted thereof, shall be liable,
at the discretion of the Court, to be transported beyond the seas
for the term of seven years, or to suffer such other punishment,
by fine or imprisonment, or by both, as the Court shall award ;
and it shall not, in any indictment for such offence, be necessary
to allege that the article, in respect of which the offence is com-
mitted, is the property of any person, or that the same is of any
value.
504 Larceny.
By section 22, of that statute, if any person shall, either dur-
ing the life of the testator or testatrix, or after his or her death,
steal, or, for any fraudulent purpose, destroy or conceal, any
will, codicil, or other testamentary instrument, whether the
same shall relate to real or personal estate, or to both, every
such offender shall be guilty of a misdemeanor, and, being con-
victed thereof, shall be liable to any of the punishments which
the Court may award, as hereinbefore last mentioned, (vis. at
the discretion of the Court, transportation beyond the seas for the
term of seven years, or such other punishment by fine or im-
prisonment, or by both, as the Court shall award ;) and it shall
not, in any indictment for such offence, be necessary to allege
that such will, codicil, or other instrument, is the property of
any person, or that the same is of any value.
And by section 23, if any person shall steal any paper or
parchment, written or printed, or partly written and partly
printed, being evidence of the title, or of any part of the title, to
any real estate, every such offender shall be deemed guilty of a
misdemeanor, and, being convicted thereof, shall be liable to
any of the punishments which the Court may award, as herein-
before last mentioned, (vide ante, p. 503 ;) and in any indict-
ment for such offence, it shall be sufficient to allege the thing
stolen, to he evidence of the title, or of part of the title, of the
person, or of some one of the persons, having a present interest,
whether legal or equitable, in the real estate to which the same
relates, and to mention such real estate, or some part thereof ;
and it shall not be necessary to allege the thing stolen to be of
any value.
By section 24, it is provided, that nothing in the act con-
tained, relating to either of the misdemeanors aforesaid, nor
any proceeding, conviction, or judgment, to be had or taken
thereupon, shall prevent, lessen, or impeach any remedy at law
or in equity, which any person, aggrieved by any such offence,
might or would have had, if the act had not been passed ; but
nevertheless the conviction of any such offender shall not be re-
ceived in evidence in any action at law or suit in equity
against him ; and no person shall be liable to be convicted of
either of the misdemeanors aforesaid, by any evidence whatever,
in respect of any act done by him, if he shall, at any time previ-
ously to his being indicted for such offence, have 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 disclosed the same in any examination or deposi-
tion before any commissioners of bankrupt.
Proof of the things stolen chases in action securities for
money, <fc.] The stealing of choses in action was provided
against by statute 2 Geo. 2. c. 25. s. 3, which made it larceny
Larceny. 505
to steal any exchequer orders or tallies, or other orders enti-
tling any person to any annuity or share in any parliamentary
fund, or any exchequer bills, South Sea bonds, bank-notes,
East India bonds, dividend warrants of the Bank, South Sea
company, East India company, or any other company, society,
or corporation, bills, bills of exchange, navy bills or debentures,
goldsmiths' notes lor the payment of money, or other bonds or
warrants, bills or promissory notes, for the payment of any
money being the property of any other person or persons, or of
any corporation, notwithstanding any of the particulars were
termed in law a chose in action. This statute is repealed, by
the 7 St 8 G. 4. c. 27, except so far as such repeal may be
considered as qualified by the 2d section of the act, which
enacts, that nothing in the act contained shall affect or alter
such part of any act as relates to the Post-office, or any branch
of the public revenue, or to the naval, military, victualling,
or other public stores of his Majesty, &c., except the acts of
iJl Eliz. c. 4, and 22 Car. 2. c. 5, which are thereinbefore
repealed, or shall affect or alter any act relating to the Bank of
Scotland, or South Sea company. See 2 Russell,, 144.
And now, by statute 7 & 8 G. 4. c. 29. s. 5, if any person
shall steal any tally, order, or other security whatsoever, enti-
tling 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 orof 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 shall steal any
debenture, deed, bond, bill, note, warrant, order, or other
security whatsoever, for money, or for payment of money,
whether of this kingdom or of any foreign state ; or shall steal
any warrant or order for the delivery or transfer of any goods
or valuable thing : every such offender shall be deemed 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 mentioned
in the warrant or order; and each of the several documents
thereinbefore enumerated, shall throughout the act be deemed
for every purpose to be included under and denoted by the
words valuable security.
Upon an indictment for stealing a bill of exchange, it
appeared that when the bill was stolen from the prosecutor, at
Manchester, there were the names of two indorsers only upon it;
but when negociated by one of the prisoners at Leicester, the
name of another indorser. had been added. It was objected,
that this being an indictment at Leicester, for then and there
stealing a bill, whereon the names of A. B. and C. D. were
z
506 Larceny.
indorsed, it was not supported by evidence of a bill wi;h the
additional name of E. F. thereon, at the time of the negociation
by the prisoner at Leicester. The judges, however, resolved
that the addition of the third name made no difference ; that it
was the same bill as originally stolen, and that the prisoner was
properly convicted. Austin's case, 2 East, P. C. 602.
Proof of property stolen Promissory notes. Where the
indictment is for stealing a promissory note, the proof must
support the description of the note in the indictment. The
prisoner was indicted under the 2G.2. c. 25, for stealing
" a certain note, commonly called a promissory note ;" but the
judges, on a case reserved, held the indictment wrong ; that it
was not sufficient to state it merely to be a note, the words of
the statute being bank note or promissory note for payment of
money, and they said that " commonly called a bank note" did
not aid such originally wrong description. Craven's case, Ruts.
# Ry. 14. So also where the instrument was described as
" a bank post bill." Chard's case, Id. 488.
The promissory notes of a banker, payable at his correspon-
dent's in London, and, after payment there, stolen on their return
to the country, have been held to be "promissory notes,"
within the meaning of the statute 7 G. 3. c. 50, (against
secreting letters in the post-office.) Le Blanc, J. in delivering
the resolution of the judges, said, the notes in point of form
were sirictly promissory notes, they remained uncancelled on
the face of them, and as against the makers (the country
bankers) they were valid and obligatory ; so that into whose ever
hands they might come for valuable consideration, they would
be productive and available against the makers. Ranson's case,
Russ. <3f Ry. 232, 2 Leach, 1090.
Whether the paid re-issuable notes of a banker can be properly
described as valuable securities, does not appear to be well set-
tled ; 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, &c. It appeared
that the notes consisted of country bank notes, which, after
having been paid in London, were sent down to the country to
be re-issued, and were stolen on the road, [t 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, amd particularly the
latter, being valuable to the owners. Clark's case, Russ. <!f JRv-
181, 2 Leach, 1036, 1 Moody, C.C. 222.
In a later similar case, where re-issuable bankers' notes
Larceny. 507
(paid in London) had been stolen from one of the partners on
a journey, the prisoner having been convicted, upon an indict-
ment 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, &c., the judges
held the conviction' right. Some of them doubted whether the
notes could properly be called " valuable securities ;" but if
not, they all thought they were goods and chattels. Vyse's
case, I Moody, C. C. 218.
Lord Ellenborough is said to have ruled, that it was not a
felony under 2 Geo. 2. c. 25. to steal bankers' notes which
were completely executed, but which had never been in circu-
lation, 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 larceny at common law. 2 Russell,
147 (n.) See Clark's case, and Vyse's case, (supra.) If the
halves of promissory notes are stolen, they should be described
as goods and chattels. Mead's case, 4 C. fy P. 535.
An incomplete bill of exchange or promissory note, is not as such
a valuable security so as to be the subject of larceny. In conse-
quence of seeing an advertisement, A. applied to the prisoner
to raise money for him. The latter promised to procure 5000/.,
and producing ten blank 10s. stamps, induced A. to write an
acceptance across them. The prisoner then took them, without
saying anything, and afterwards filled them up as 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 secu-
rities for money ;" and that a charge of larceny for stealing the
paper and stamps could not be sustained, the stamps and paper
not being the property of A., or in his possession. Hart's case,
6 C. $ P. 106. See also Phipoe's case, 2 Leach, 673, 2 East,
P. C. 599, stated post.
Proof of the thing stolen banker's checks.] A check upon
a banker, drawn more than twenty miles from London, and not
stamped, has been held not to be a bill or draft, within the
7 Geo. 3. c. 50 ; being of no value, nor in any way available.
Potitey's case, Russ. 6; Ry. 12. So a check on a banker, made
payable to A. B., and not to bearer, not being stamped, has
been decided by the judges not to be a valuable security within
the meaning of the statute 7 & 8 Geo. 4. c. 29, the banker
being subject to a penalty of SOL by paying it. Fates 's case,
1 Moody, C. C. 170.
Proof of the thing stolen Exchequer bills.] The statute
2 Geo. 2. c. 25. mentioned exchequer bills by name, and under
that statute it was held, that where the indictment charged the
z2
508 Larceny.
prisoner with stealing "certain bills, commonly called Exche-
quer bills," and it appeared that they were signed by a person
having no authority to sign them, they were misdescribed, and
the prisoner was entitled to an acquittal. Aslett's case, (first
case) 2 Leach, 954. But being afterwards indicted for stealing
certain "securities" and "effects," the judges held that he
was rightly convicted. Id. (second case) 958, 1 Bos. & Put.
N. R. 1.
Prnof of the thins: stolen goods from vessels^] Various pro-
visions are made by the statute 7 & 8 Geo. 4. c. 29, for the
protection of goods in vessels.
By section 17, it is enacted, that if any person shall steal
any goods or merchandize in any vessel, barge, or boat of any
description whatsoever, in any port of entry or discharge, or
upon any navigable river or canal, or in any creek belonging to
or communicating with any such port, river, or canal ; or shall
steal any goods or merchandize from any dock, wharf, or quay
adjacent to any such port, river, canal, or creek ; every such
offender, being convicted thereof, shall he liable to any of the
punishments which the Court may award, as therein-before last
mentioned. (Transportation for life, &c., sec. 14.)
And by section 18, if any person 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, merchandize, or
articles of any kind belonging to such ship or vessel, every
such offender, being convicted thereof, shall suffer death as
a felon : Provided always, that when articles of small value
shall be stranded or cast on shore, and shall be stolen without
circumstances of cruelty, outrage, or violence, it shall be lawful
to prosecute and punish the offender as for simple larceny ; and
in either case the offender may be indicted and tried either in
the county in which the offence shall have been committed, or
in any county next adjoining.
And by section 19, if any goods, merchandize, or articles of
any kind, belonging to any ship or vessel in distress, or wrecked,
stranded, or cast on shore as aforesaid, shall, by virtue of a
search warrant, to be granted as therein-after mentioned, be
found in the possession of any person, or on the premises of
any person with his knowledge, and such person, being carried
before a justice of the peace, shall not satisfy the justice that
lie came lawfully by the same, then the same shall, by order of
the fustice, be forthwith delivejed over to or for the use of the
rightful owner thereof; and the offender, on conviction of such
offence before the justice, shall forfeit and pay, over and above
the value of the goods, merchandize, or articles, such sum of
money, not exceeding twenty pounds, as to the justice shall
seem met.
Larceny. 509
By section 20, if any person offers shipwrecked goods for
sale, they may be seized.
Proof of the thing stolen goods in process of manufacture.]
By statute 7 & G. 4. c. 29. s. 16, it is enacted, that if any
person shall steal, to the value of ten shillings, any goods or
article of silk, woollen, linen, or cotton, or of any one or more
of those materials mixed with each other, or mixed with any
other material, whilst laid, placed, or exposed, during any
stage, process, or progress of manufacture, in any building,
field, or other place, every such offender, being convicted
thereof, shall be liable to any of the punishments which the
court may award as thereinbefore last mentioned. (See section
14.)
Proof of the thing stolen animals $fc. domestic animals.]
Of domestic cattle, as sheep, oxen, horses, &c., or of domestic
fowls, as hens, ducks, geese, &c., 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.
t>. 1. c. 33, 843. And it being felony to steal the animals
themselves, it is also 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 palling the wool from a
sheep's back. Martin's case, Id. 618. But it must be under-
stood in this as in the other instance, that the fact is done
fraudulently and feloniously, and not merely from wantonness
or frolic, Id. The stealing of a stock of bees, also seems to be
admitted to be felony. Tibbs v. Smith, T. Raym. 33, 2 East, P. C.
607, 2 Russell, 151. 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 for such
thefts being very numerous, Alison's Pi inc. Crim. Law of
Scotland, 280. See also 1st Rep. Crim. Law Com. p. 14.
Proof of the thing stolen animals ferae naturae.] Larceny
cannot be committed of animals, in which there is no pro-
perty, as of beasts that are ferte naturae and unreclaimed,
such as deers, hares, 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,
ratione loci aut privilegii, to take them, if he can in those
places. 1 Hale, P. C. 511. 4 El. Com. 235, 6. 2 East, P. C.
607. So of swans, though marked, if they range out of the
royalty, because it cannot be known that they belong to any
person. 1 Hale, P. C. 511. So ferrets, though tame and
saleable. Searing's case, Russ. <Sf Ry. 350. So of rooks in a
510 Larceny,
rookery. See Hannum v. Mockett, 2 B, $ C. 934, 4 D. <5f R.
518.
Proof of the things stolen animals feree nature dead or
reclaimed/] Where animals feraz naturae, 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 where they may be taken
at the pleasure of the owner at any time, pheasants or paitridges
in a mew, young hawks in a nest or even old ones, or falcons
reclaimed, and known by the party to be so. 1 Hale, P. C.
511. 2 East, P. C. 607. So of young pigeons in a dove-cote.
1 Hale, P. C. 511. And where pigeons were so far tame that
they came home every night to roost in their boxes, after they
had been out to feed, Taddy S. held them to be the subject of
larceny. Brvohs's case, 4 C. &; P. 131. Of the eggs of hawks,
or swans, though reclaimed, larceny cannot be committed ; the
reason of which is said to be, that a less punishment, namely,
fine and imprisonment, is appointed by statute for that offence.
2 East, P. C. 607. 2 Russell, 151.
And when an animal^m? nature is killed, larceny may be
committed of its flesh, as in the case of wild deer, pheasants,
partridges, &c., for the flesh or skins are the subject of property.
3 Jnst. 116. 1 Hale, P. C. 511.
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.
Edward's case, Pij/ss. <3) Ry. 498, see Puckering's case,
Lewin, C, C. 302, staled post. So where the prisoner was in-
dicted 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
feree naturae, the indictment 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. Rough's case, 2 East,
P. C. 607.
Proof of the thing Stolen animals kept for pleasure only, and
not Jit for food.] There is, says Lord Coke, a distinction
between such beasts as arefera: natura:, and being made tame,
serve for pleasure only, and such as, being made tame, serve
for food, &c. 3 Inst. 110. 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 blood-hounds ;
and other things, though reclaimed by ait and industry, as
Larceny. 511
bears, foxes, ferrets, &c., and their whelps or calves, because
though reclaimed, they serve not for food but pleasure, and so
differ from pheasants, swans, &c., which when made tame,
serve for food. I Hale, P. C. 512. Searing's case, Russ.fy Ru.
350, ante, p. 509. The rule with regard to animals/ene natnne.
not lit for food, is said to include " bears, foxes, monkeys, apes,
polecats, cats, dogs, ferrets, thrushes, singing birds in general,
parrots, and squirrels." 1st Rep. Crim. Law Com. p. 14. The
young of wild animals are also included. Id.
Before the late game act, it was held that it is not necessary
that a person in the possession of game, which has been re-
claimed, should be qualified in order to support an indictment
laying the property in him. Jones's case, 3 Burn. Just. tit.
Larceny, p. 84.
Proof of thing stolen dogs, pigeons, $c.] By the 7 & 8 G.
4. c. 29. s. 31, if any person shall steal any dog, or shall steal
any beast, or bird, ordinarily kept in a state of confinement,
not being the subject of larceny at common law, every such
offender, being convicted thereof before a justice of the peace,
shall for the first offence forfeit and pay, over and above the
value of the dog, beast, or bird, such sum of money, not exceed-
ing 20/., as to the justice shall seem meet; and if any person
so convicted shall afterwards be guilty of any of the said
offences, and shall be convicted thereof in like manner, every
such offender shall be committed to the common gaol or house
of correction, there to be kept to hard labour for such term not
exceeding 12 calendar months, as the convicting justice shall
think fit ; and if such subsequent conviction shall take place
before two justices, they may further order the offender, if a
male, to be once or twice publicly or privately whipped, after
the expiration of four days from the time of such conviction.
And by sec. 32, if any dog, or any such beast, or the skin
thereof, or any such bird, or any of the plumage thereof, shall
be found in the possession, or on the premises of any person by
virtue of a search warrant, to be granted as thereinafter men-
tioned, the justice by whom such warrant was granted may
restore the same respectively to the owner thereof, and the pei-
sou in whose possession or on whose premises the same shall be
so found, such person knowing that the dog, beast, or bird
has been stolen, or that the skin is the skin of a stolen dog, or
beast, or that the plumage is the plumage of a stolen bird, shall
on conviction before a justice of the peace, be liable for the
first offence to such forfeiture, and for every subsequent offence
to such punishment as persons convicted of stealing any dog.
beast, or bird, are thereinbefore made subject to.
And by sec. 33, if any person shall unlawfully and wilfully
kill, wound, or take any house-dove, or pigeon, under such cir-
cumstances as shall not amount to larceny at common law, every
512 Larceny.
such offender being convicted thereof before a justice of the
peace, shall forfeit and pay, over and above the value of the
bird, any sum not exceeding two pounds. '
Proof of the thing taken identity.] Evidence must be given
to show the identity of the property taken. But a resemblance
between the article stolen and the article lost, will in some
oases be sufficient without positive proof of the identity, as in
the case of corn, or sugar stolen, &c. 2 East, P. C. 657.
2 Russell, 178.
Proof of the thing taken value.'] Evidence must be given
that the thing stolen is of some value. Phipoe's case, 2 Leach,
680. But it is not 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' re-issuable notes,
which have been paid. Clarke's case, 2 Leach, 1036, Hanson's
case, Id. 1090, Russ. <5f Ri/. 232, ante, p. 506. In certain
statutory felonies, as stealing trees, &c., the article stolen
must be proved to be of a certain value, ante, p. 501, and
in other cases, as tor stealing a will, (7 & 8 G. 4. c. 29. s. 22,)
it is not necessary to allege the properly to be of any value.
Proof of ownership cases wJiere it is unnecessary to allege or
prove ownership.] In some cases, in consequence of the pro-
visions of certain statutes, it is unnecessary either to allege or
prove the ownership of the property stolen, as upon an indict-
ment upon the repealed statute 4 G. 2. c. 32, (see 7 & 8 G. 4.
c. 29. s. 44,) 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, &c., without stating the pro-
perty to be in any one. Hickman's case, 2 East, P. C. 593.
So by 7 & 8 G. 4. c. 29. s. 22, upon an indictment for stealing
a will, &c., it shall not be necessary to allege that such will, &c.
is the property of any person, or that the same is of any value,
and the same with regard to stealing records, &c., sec. 21.
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 devested 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 ./. deliveiing the opinion of the
judges, Wilhins's case, 1 Leach, 522. If A., says Lord
Hale, steal the horse of B., and after C. steals the same horse
from A., in this case C. is a felon, both as to A. and B., for by/
Larceny. 513
the theft by A., B. lost not the property, nor in law the pos-
session of his horse, aud 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 afterwards delivers it to C., who was no
party to the first stealing, and C. rides away with it, animo
furandi, yet C. is no felon to B., because, though the horse
was stolen from B., yet it was stolen by A., and not by C., for
C. did not take it, neither is he a felon to A., for he had it by
his delivery. Ibid. The doctrine as to property not being
changed by felony, holds also with regard to property taken
by fraud, for otherwise a man might derive advantage from his
own wrong. Per Gould J. 1 Leach, 523. Noble v. Adams,
1 Taunt. 39. Kelhy r. Wilson, Ry. <Sf Moo. N. P. C. 178. Irving
L-. Motly, 1 Bingh. 543.
Proof of ownership of goods in custodia legis.~\ Goods
seized by the sheriff under a ft. fa. remain the property of the
defendant until a sale. Lucas v. Nockells, 10 Bingh. 182.
A sheriffs officer seized goods under a fi. 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 was
objected that they were no longer the goods of J. S., and should
have been described as the goods of the sheriff; but upon the
point being saved, the judges held that notwithstanding 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
continued until the goods were applied to its discharge.
Ea.itall's case, 2 Russell, 158.
Proof of ownership goods of the offender himself.] Under
certain circumstances a man may be guilty of larceny in stealing
his own goods, or of robbery in taking them by violence from
the person of another. And he may likewise be accessory after
the fact to such larceny or robbery, by harbouring the thief, 01
assisting his escape. These cases arise where the property is
in the temporary possession of another person, from whence the
owner takes them with a fraudulent intent. Thus where A.
delivers goods to B. to keep for him, and then steals them, witli
intent to charge B. with the value of them, this is felony in A.
1 Hale, P. C. 513, 514. Footer, 123. 2 East, P. C. 558.
And if A. having delivered money to his servant to carry, dis-
guises himself, and robs him on the load, with intent to charge
the hundred, this is undoubtedly robbery in A. Foster, 123,
124. 4 Bl. Com. 231. And there seems to be no objection in
such case to laying the property in the servant. 2 East, P. C.
654. Goods were placed in the hands of lightermen for the
purpose of getting them passed at the customs, and conveyed
on board ship. In order to defraud the government of the
z 6
514 Larceny.
duties, the owner of the goods secretly abstracted them from
the possession of the lighterman. The owner being convicted
of larceny, upon a case reserved, seven of the judges held it to
be a larceny, because the lightermen had a right to the posses-
sion until the goods reached the ship ; they had also an interest
in that possession, and the intent to deprive them of their pos-
session wrongfully, and against their will, was a felonious in-
tent, as against them, because it exposed them to a suit upon
the bond given to the customs. In the opinion of some of the
seven judges, it would have been larceny, although there had
been no felonious intent against the lightermen, but only an
intention to defraud the crown. Four of the judges doubted
whether it was larceny, because there was no intent to cheat or
charge the lightermen, but only an intention to defraud the
crown. Wilkinson's case, Russ. &; Ry, 470.
Upon the same principle, although the part owner of goods
cannot in general be guilty of larceny with regard to the
other part owners, yet if the property be in the possession of a
person who is responsible for its safety, and a part owner take
it out of his possession, under such circumstances as would in
ordinary cases constitute a larceny, it is a felony. Thus where
a box belonging to a benefit society, was deposited with the
landlord of a public house, who, by the rules of the society,
was answerable for its safety, and a member of the society
broke into the house, and carried away the box, being convicted
of the larceny, the judges on a case reserved were clear, that as
the landlord was answerable to the society for the property, the
conviction was right. Bromley's case, Russ. <Sf Ry. 478.
Proof of ownership goods of joint tenants, tenants in
common, and partners.] In general a party having a right of
property in goods, and also a right to the possession, cannot be
guilty of larceny with respect to such goods. Tenants in com-
mon, therefore, and joint tenants cannot be guilty of stealing
their common goods. 1 Hate, P. C. 513. 2 East, P. C. 558.
Difficulties often arising with regard to the proof of the
names of all the partners laid in an indictment, the following
enactment was made for the purpose of removing the incon-
venience.
By the 7 G. 4. c. 64. s. 14, 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 enacted, that in any in-
dictment or information for any felony or misdemeanor, wherein
it shall be requisite 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,
Larceny. 515
and another or others, as the case may be ; and whenever, in
any indictment or information for any felony or misdemeanor,
it shall be necessary to mention for any purpose whatsoever,
any partners, joint tenants, parceners, or tenants in common,
it shall be sufficient to describe them in the manner aforesaid ;
and the provision shall be construed to extend to all joint stock
companies and trustees.
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 wav. 2 East,
P. C. 654. 2 Russell, 160. 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 in-
dictments, which had laid them to be the property 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 apprenticed to his
father, and, in pursuance of the indentures of apprenticeship,
was furnished with clothes by the father, it was held tiiat 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. Forsgate's case, 1 Leach, 463.
Proof of ownership goods in possession of bailee.'] Any one,
who has a special property in goods stolen, may lay them to be
his in ail indictment, as a bailee, pawnee, lessee for years, car-
rier, or the like ; a fortiori, they may be laid to be the property
of the respective owners, and the indictment is good either way.
But if it appear in evidence that the party, whose goods they
are laid to be, had neither the property nor the possession, (and
for this purpose the possession of a feme covert or servant is, ge-
nerally speaking, the possession of the husband or master,) the
prisoner ought to be acquitted on that indictment. 1 Hale, P. C.
513. 2 East, P. C. 652. Many cases have been decided on
this principle.
Goods stolen from a washer-woman, who takes in the linen of
other persons to wash, may be laid to be her property ; for per-
sons of this description" have a possessory property, and are
answerable to their employers, and could all maintain an appeal
of robbery or larceny, and have restitution. Packer's case, 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
them, and may maintain trespass against any who takes them
away. Woodward's case, 2 East, P. C. 653, 1 Leach, 357. (n.)
516 Larceny.
A coach-master, in whose coach-house a carriage is placed for
sate custody, and who is answerable for it, may lay the property
in himself. Taylor's cose, 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 pro-
perty was held to be properly laid in the master of the yard.
Statham's cuse, cited I Leach, 357.
Goods at an inn, used by a guest, where stolen, may be laid
to be either the property of the innkeeper or the guest. Todd's
case, 2 East, P. C. 653.
Where the landlord of a public-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 indictment, lay-
ing the property in the landlord, Parke J. held that there was
sulficient evidence to go to the jury of the property being in the
landlord alone. Wymer's case, 4 C. $ P. 391.
. Proof of ownership bailee goods in possession of carriers
drivers of stage-coaches, #c.] Carriers, as bailees of goods, have
such a possession as to render an indictment, laying the property
in them, good. Ante, p. 515. And so it has been held, with
regard to the driver of a stage-coach. The prisoner was in-
dicted for stealing goods, the property of one JVlarkham. 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 propeity of
Markham, who was not the owner, but only the driver of the
coach, there being no contract between him and the proprietors
that he should be liable for any thing stolen ; and it not ap-
pearing that he had been guilty of any laches. Upon a case
reserved, the judges were of opinion that the property was
rightly laid in JVlarkham ; for though, as against his employers,
he, as driver, had only the bare charge of the property com-
mitted to him, and not the legal possession, which remained 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 prosecution of the proprietms, considers the
driver to have the hare charge of the goods belonging to the
coach ; but, on a charge against any other person, for taking
them tortiously and feloniously out of the driver's custody, lie
must be considered as the possessor. Deukin's caw, 2 Leach,
862, 876, 2 Last, P. C. 653.
Proof of ownership goods of deceased persons, executors, $fc.]
Where a person dies intestate, and the goods of the deceased are
Larceny. 517
stolen before administration granted, the property must be laid
in the ordinary ; but if he dies, leaving a will, and making exe--
cutors, the property may be laid in the executor, though he has
not proved the will ; and it is not necessary that the prosecutor
should name himself ordinary or executor, because he proceeds
on his own possession. 1 Hale, P. C. 514. 2 East, P. C. 652.
There can be no property in a dead corpse, and though a high
misdemeanor, the stealing of it is no felony. A shroud stolen
from the corpse must be laid to be the property of the executors,
or of whoever else buried the deceased. So the coffin may be
laid to be the goods of the executor. But if it do not readily
appear who is the personal representative of the deceased, laying
the goods to be the goods of a person unknown is sufficient.
2 East, P. C. 652. 2 Russell, 163.
In some cases, the property of an intestate has been held to be
rightly described as being in the party in actual possession, no
administration 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 at-
tended 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. Gaby's case, Rnxs $r Ry. 178. So where
a father and son carried on business as farmers, 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 indict-
ment right. .Scott's case, RUSH. Ry. 13.
Proof of ownership goods of lodger.] 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, by the judges, that the property must be laid in the
lodger. Belstead's case, Rms. R\I. 411. Brunswick's case,
1 Mood 11, C. C. 26.
Proof of ownership goods of married women. ~\ Where goods,
in the possession of a married woman, are stolen, they must
not be described as her property, but as that of her husband ;
for her possession is his possession. 2 East, P. C. 652. See
French's case, Russ. & J?v- 491, ]['itford's case, Id. 517, stated.
Where the goods of a feme sole are stolen, and she afterwards
marries, she may be described by her maiden name. Turner's
ruse, 1 Leach, 536.
518 Larceny.
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 in-
titled to them. 1 Hale, P. C. 512. 2 East, P. C. 651. But if
the owner be really known, an indictment, alleging the goods to
be the property of a person unknown, is improper, and the pri-
soner must be discharged upon that indictment. 2 East, P. C.
651. See Walker's case, 3 Campb. 264, Bush's case, Huss.&tRy.
372, slated, mite, p. 80. 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 invite 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 a wreck contained two counts.
The first count stated the 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 name of
some of the owners. The counsel for the crown then relied
upon the second count, but Richards C. B. said, "1 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 V Robinson's case, Holt's N. P. C. 596.
Proof of ownership goods of servants.] In general, the pos-
session 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 Russell, 158. 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 5L 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 mi-
nister 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 Hot be considered as
belonging to Evans. Hntchinson's case, Russ. &; Ry. 412. But
in some cases, 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. Ante, p. 516. So where the owner of goods steals them
from his own servant, with intent to charge him with the loss, the
goods may, as already stated, be described as the property of the
servant. Ante, p. 513.
Proof of ownership of corporations.] Where goods are the
property of a company of persons not incorporated, they must
Larceny. 519.
be described as the goods of the individuals, or of some one of
the individuals and others. 1 Russ. 164. But by statute 7
G. 4. c. 64. s. 20, judgment shall not be stayed or reversed
on the ground that any person or persons mentioned in an in-
dictment or information, is or are designated by a name of
office, 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 name. Where in an indictment the goods
were laid to be the property of A. B. C. D., &c. they the said
A. B. C. D., &c. being the church wardens of the parish church ;
and it appeared that the churchwardens were incorporated by
the name of " the churchwardens of the parish church of En-
field," 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 their incor-
poration, is totally extinct. If an action were brought in the
private names of the prosecutors, for any matter relating to
their public capacity, they must unavoidably be nonsuited,
and a fortiori it must be erroneous in a criminal prosecution.
Patrick's case, 1 Leach, 252. But where trustees were ap-
pointed by act of parliament (but not incorporated), for pro-
viding a workhouse, and property stolen from them was laid to
be the property of " the trustees of the poor of," &c. without
naming them, the court (at the Old Bailey), held it wrong ;
for as the act had not incorporated the trustees, and by that
means given them collectively a public name, the property
should have been laid as belonging to A. B., &c. by their proper
names, and the words " trustees of the poor of," &c. subjoined
as a description of the capacity in which they were authorized
by the legislature to act. Sherrington's case, 1 Leach, 513.
On the authority of this case, the following was decided :
By statute 24 G. 3. c. 15, certain inhabitants in seven parishes
were incorporated by the name of " the guardians of the poor
of," &c. Twelve directors were to be appointed out of the
guardians, and the property belonging to the corporation was
vested in " the directors for the time being," who were to exe-
cute the powers of the act. The prisoner was indicted for em-
bezzling the monies of the " directors of the poor of," &c. 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. Beacall's case, 1 Moody, C. C. 15. See
Jones and Palmer's case, 1 Leach, 366, 2 East, P. C. 91,
ante, p. 401, 402.
A bible had been given to a society of Wesleyan Dissenters,
and was bound at the expense of the society. There did not
appear to be any trust deed. The bible having been stolen, the
520 Larceny.
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 light. Boulton's case, 5 C. fy P. 537.
Proof of the ownership goods belonging to counties, $c.]
By the 7 G. 4. c. 64. s. 15, with respect to the property of
counties, ridings, and divisions, it is enacted, that in any indict-
ment 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
maintained in whole or in part at the expense of any county,
riding, or division, or on or with respect to any goods or chat-
tels whatsoever, provided for or 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 sucli building as aforesaid, or to be used in or with any
such court or other building, it shall be sufficient to state any
such property, 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 of such inhabitants.
Proof of the ownership goods for the vse of the poor of
parishes.'] By the 7 G. 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 misde-
meanor committed in, upon, or with respect to any workhouse
or poorhouse, or on or with respect to any goods or chattels
whatsoever, provided for the use of the poor of any parish or
parishes, township or townships, hamlet or hamlets, place or
places, or to be used in any workhouse or poorhouse in or be-
longing to the same, or by the master or mistress of such work-
house or poorhouse, or by any workmen or servants employed
therein, it shall be sufficient to state any such property to be-
long to the overseers of the poor for the 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 information 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 any parish,
township, hamlet, or place, 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 necsssary to spe-
cify the name or names of any such surveyor or surveyors.
Prnnf of ownership goods, &\c. of trustees of turnpikes.^
By statute? G. 4. c. 64. s. 17, with respect to property under
Larceny. 521
turnpike trusts, it is enacted, that in any indictment or informa-
tion for any felony or misdemeanor committed on or with re-
spect to any house, building, gate, machine, lamp, board, stone,
post, fence, or other thing, erected or provided in pursuance of
any act of parliament for making any turnpike road, or any of
the conveniences or appurtenances theieunto respectively be-
longing, or any materials, tools, or implements provided for
making, altering, or repairing any such road, it shall be suffi-
cient 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 of such trustees or commissioners.
Proof of ownership goods, c. of commissioners of sewers.]
By statute 7 G. 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 on 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, cogni-
zance, or management any such things shall be, and it shall
not be necessary to specify the names of any of such commis-
sioners.
Venue.'] An indictment for larceny must be tried in the
county in which the offence was, either actually, or in con-
templation 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 caption. 1 Hale, P. C. 507. 4. BL
Com. 305. 1 Moody, C. C. 47. (.) 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
cepit, as much as the first taking. Hawk. P. C. 6. 1. c. 19.
s. 52. Though a considerable period elapse between the origi-
nal taking and the carrying them into another county, the rule
still applies ; as where property was stolen on the 4th Novem-
ber, 1823, in Yorkshire, and carried into Durham on the 17th
March, 1824. Parkin's case, 1 Moody, C. C. 45. This rule
does not, however, hold with regard to compound larcenies, in
which case the prisoner can only be tried for simple larceny in
the second county. Thus where the prisoner robbed the mail
of a letter, either in Wiltshire or Berkshire, and brought it into
Middlesex, and was indicted on the statutes 5 G. 2. c. 25, and
7 G. 3. c. 40, the judges, upon a case reserved, held that he
could not be convicted capitally out of the county in which the
letter was taken from the mail. Thompson's case, 2 Russell,
174. 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
522 Larceny.
in the latter county, but he may be indicted of 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 accord-
ing to its altered, and not according to its original state.
2 Russell, 174. See Edward's case, Russ. &; %. 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 broke it to pieces,
and brought the pieces into the county of H. Halloway's case,
1 C. # P. 127.
If the original taking be such 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 Inst. 113, 2 Russell, 175. And
so where the goods are stolen abroad, (as in Jersey,) carrying
them into an English county will not render the offender in-
dictable there. Prowes's case, 1 Moody, C. C. 349. The case
of property stolen in any one part of the united kingdom, and
carried into any other part, is provided for by stat. 7 & 8 G.4.
c. 29. s. 76, which enacts, that if any person, having stolen or
otherwise feloniously taken any chattel, money, valuable se-
curity, or other property whatsoever, in any one part of the
united kingdom, shall afterwards have the same property in his
possession in any other part of the united kingdom, he may be
dealt with, indicted, tried, and punished for larceny or theft in
that part of the united kingdom where he shall so have such
property, in the same manner as if he had actually stolen or
taken it in that part ; and if any person in any one part of the
united kingdom shall receive or have any chattel, money, valua-
ble security, or other property whatsoever, which shall have
been stolen or otherwise feloniously taken in any other part of
the united kingdom, such person knowing the said property to
have been stolen or otherwise feloniously taken, he may be dealt
with, indicted, tried, and punished for such offence in that part
of the united kingdom where he shall so receive or have the
said property, in the same manner as if it had been originally
stolen or taken in that part.
A joint original larceny in one county may become a separate
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 in-
dictment 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 election as to which of the
prisoners he would proceed against. Burnett's case, 2 Russell,
174. But where a larceny was committed by two, and one of
Libel. 523
them carried the stolen goods into another county, the other
still accompanying him, without their ever having been sepa-
rated, they were held both indictable in either county, the pos-
session of one being the possession of both in each county, as
long- as they continued in company. M'Donagh's case, Carr.
Suppt. 23, Id. ed.
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 prosecutrix 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 concurred in securing
them. The indictment was against both in Middlesex, and
upon a case reserved, the judges were unanimous that as
County was present aiding and abetting in Surrey, at the ori-
ginal larceny, his concurrence afterwards in Middlesex, though
after an interval, might be connected with the original taking,
and brought down his larceny to the subsequent possession in
Middlesex. They therefore held the conviction right. County's
case, 2 Russell, 175.
See further as to Venue, title " Venue," ante, p. 185.
LIBEL.
Blasphemous libels at common law
Statutes
Indecent libels
Libels on government .
Libels on the administration of justice
lAbels on individuals . .
Proof of introductory averments
Proof of publication in general
Of libels in newspapers .
.By admission of defendant .
Constructive publication
Proof of innuendo .
Proof of' malice
524
524
525
525
526
526
528
529
531
533
533
535
536
524 Libel.
Proof of intent . . 537
Venue ..... 537
Proof for the defendant .... 538
Statute 32 G. 3. c. 60 . . . 541
Blasphemous libels at common law.~] 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 contempt of the established religion, are punishable
at common law, inasmuch as they lend to a breach of the peace.
1 East, P. C. 3. 1 Russell, 217. So it has been held 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 those cases where the very root of Christianity itself is struck
at. R. v. Woolston, Fitzgib. 66, 2 Str. 834.
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 an inten-
tion, in law, as well as morals, a state of apathy 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 con-
tumelious and abusive expressions applied to sacred persons or
subjects, that the design of the author was to occasion that mis-
chief to which the matter which he publishes immediately tends,
to destroy, or even to weaken men's sense of religious or moral
obligations, to insult those who believe, by casting contumelious
abuse and ridicule upon their doctrines, or to bring the estab-
lished religion and form of worship into disgrace and contempt,
the offence against society is complete. 2 Starkie nn Slander,
147, 2d ed. Upon an indictment for alleging that Jesus Christ
was an impostor, a murderer in principle, and a fanatic, a jury-
man inquiring whether a. work denying the divinity of our
Saviour was a libel ; Abbott, C. J. stated that a work speaking
of Jesus Ch|ist 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.
Waddingtmt's case, 1 B. fy C. 26.
Blasphemous libel statutes.'] By statute 1 Ed. 6. c. 1,
persons reviling the sacrament of the Lord's supper, are punish-
able by imprisonment. By stat. 1 Eliz. c. 2, ministers and
Libel. 525
others speaking in derogation of the book of common prayer,
are punishable as therein mentioned. The 1 W. 3. c. 18. s. 17,
against denying the doctrine of the Trinity, was repealed by the
53 G. 3. c. 160. The statute of W. 3. has been held not
to affect the common law offence, being cumulative only.
Carlile's case, 3 B. & A. 161. Waddington's case, 1 B. #
C. 26.
Indecent libels.] Although an opinion formerly prevailed,
that the publication of an obscene or indecent writing not con-
taining leflections upon any individual, was not an indictable
offence, Hairk. P. C. t>. 2. c. 73. s. 9, yet a different rule has
been since established, and it is now clear that an indictment
at common law may be maintained for any offence which is
against public morals or decency. Sedley's case, Sid. 168.
Wilkes's case, 4 Burr. 2530. Holt on Libel, 73, 2d ed. Under
this head may be comprehended every species of representation,
whether by writing, by painting, or by any manner of sign, or
substitute, which is indecent and contrary to public order. Holt,
ii-bi supra. The principle of the cases also seems to include the
representation of obscene plays, an offence which has formed
the ground of many prosecutions. 2 Stark, on Slander, 150, '2d
ed. Holt, 73. 1 Russell, 220.
Libels on the government.'] The result of the numerous cases
respecting 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 common interest, and so long as he exercises this inestima-
ble privilege candidly, honestly, and sincerely, with a view to
benefit society, he is not amenable as a criminal. This is the
plain line of demarcation ; where this boundary is overstepped,
and the limit abused for wanton gratification or private malice,
in aiming a stab at the private character of a minister, under
colour 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
correcting errors, but in reality for the purpose of impeding or
obstructing the administration of public affairs, 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 violent changes, sedition, or even revo-
lution ; in these and similar instances, where public mischief 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, Id ed.
The test with regard to libels of this description proposed by
Mr. Starkie, and adopted by another eminent text- writer is this :
" Has the communication a plain tendency to produce public
526 Libel.
mischief, by perverting the mind of the subject, and creating a
general dissatisfaction towards government V 1 Russetl, 224.
See also Lambert's case, 2 Campb. 398. Tuchin's case, Holt li.
424, 5 St. 2V. 583. Holt on Libel, 88, 89.
Libels on the administration of justice*] Where a person, either
by writing, by publications 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 jus-
tice, and consequently to sap the very foundations of the con-
stitution itself. Per Buller J. Watson's case, 2 T. R. 199. It
certainly is lawful, with decency and candour to discuss tlie
propriety of the verdict of a jury, or the decisions 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 indi-
viduals, and to bring into hatred and contempt the administra-
tion of justice, such a publication is punishable. Per Grose J.
White's case, 1 Campb, 359.
Libels upon individuals.] A libel upon an individual is
defined by Hawkins to be a malicious defamation, expressed
either in printing or writing, and tending either to blacken the
memory of one that is dead, 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 vilify a man and to bring him into
hatred, contempt, and ridicule, an indictment lies. Per Mans-
Jietd C. J. Thorley v. Lord Kerry, 4 Taunt. 364. Digbu v.
Thompson, 4 B. if Ad. 821. No man has a right to render the
person or abilities of another ridiculous, not only in publica-
tions, 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, Cobbett's
case, Holt on Lib. 114, 2d ed. Thus an information was
granted against Dr. Smollett for a libel in the Critical
lleview upon Admiral Knowles, insinuating that he wanted
courage and veracity, and tending to cause it to be believed
that he was of a conceited, obstinate, and incendiary dispo-
sition. Smollett's case, Holt on Lib. 224. (n.) So an informa-
tion was granted against the printer of a newspaper for a
ludicrous paragraph, giving an account of the Earl of Clanri-
card's marriage with an actress at Dublin, and of his appearing
with her in the boxes with jewels, &c. Kinnersley's case,
1 W. Bl. 294. And for a libel on the Bishop of Durham,
contained in a paragraph, which represented him as "a
bankrupt." Anon. K. B. Hil. T. 1819. Holt on Lib. 224. (n.)
2d ed.
Libel. 527
It is extremely difficult to define the boundaries beyond
which reflections upon the character of an individual are com-
monly cognizable. It is said by Mr. Holt, that where there is
no imputation on the moral character, no words of ridicule or
contempt, and nothing which can affect the party's reception in
life, it is no libel, and he illustrates this position by the follow-
ing case. The alleged libel was this : " The Rev. John
Robinson, and Mr. James Robinson, inhabitants of this town,
not being persons that the proprietors and annual subscribers
think it proper to associate with, are excluded this room."
This libel was published in the Cassino room at Southwold, by
posting it on a paper. It was held that the paper and mode of
promulgating 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. 2dly, That it was the regulation of a sub-
scription assembly, and the paper might import no more than
that the party was not a social and agreeable character in the
intercourse of common life. 3dly, That the words charged him
with nothing definite, threw no blemish on his reputation, and
implied no unfitness for general society." Robinson v. Jermyn,
1 Price, 11. Holt on Libel, 218, 2d 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 with a design to bring
scandal or contempt on the family of the deceased, or to in-
duce them to break the peace, is not punishable as a libel.
Tophainscase, 4 T. R. 127, and see Taylor's case, 3 Sulk. 198.
Holt on Lib. 230, Id ed.
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 S/aWer,217, 2d ed. ; and informa-
tions have also been granted for libels upon the characters of the
Emperor of Russia, and of Napoleon. Id. In the latter case,
Lord Ellenborough appears to have considered the situation of
the individual as. forming the ground of the decision. " I lay
it down as law," he says, " that any publication which tends
to disgrace, revile, and defame persons of considerable situations
of power and dignity in foreign countries, may be taken to be
and treated as a libel, and particularly where it has a tendency
to interrupt the amity and peace between the two countries."
It is not necessary that the libel should reflect upon the cha-
racter of any particular individual, provided it immediately tend
to produce tumult and disorder; 2 Stark, on Slander, 213, 2rf
eti. ; although the contrary was formerly held. Hauk. 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 recently arrived from
Portugal had been attacked by the mob and barbarously treated
528 Libel.
in consequence of the libel. Osborne's case, Sess. ca. 260.
Barnard. K. B. 138, 166. Informations.at the suit of public
bodies upon the application of individuals presiding over them,
have been frequently granted by the Court of King's Bench.
Campbell's case, Bell's case, Holt on Lib. 240, 2d ed. Wil-
liams' s case, 5 B. fy A. 595.
Proof of introductory averments.] Where the indictment
contains 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 public one, it will be
sufficient if it appear that the prosecutor has acted in it, and it
will not be necessary to give strict evidence of his appointment,
ante, p. 1. f p. 14. 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, tterryman v. Wise, 4 T. R. 366. 2 Stark, on
Slander, 2, Id ed.
Whether a person practising as a physician, and libelled in
his character as such, was .bound to prove, by strict evidence,
the introductory 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 D. Gutch, 1787, 2 Stark, on
Slander, 3, (?i.) 2d ed. ; but in a subsequent case, the Court of
Common Pleas was equally divided upon the point. Smith v.
Taylor, 1 A'. JR. 196. It has, however, been decided by the
Court of King's Bench, in a very late 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 practice
as such, and that proof of his in fact practising as such is insuffi-
cient. Collins v. Carnegie, 1 A do 1. <Sf EIL 695, 2 Nev.ft M. 703.
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 a descriptive allegation with all its circumstances, although
a more general allegation would have been sufficient ; for though
a totally irrelevant allegation may be rejected as surplusage,
one which is material and descriptive of the legal injury must
be proved as laid. 2 Stark, on Slander, 8, 2d ed.
In all cases where the libel itself is an admission of the
particular character alleged, further proof of such particular
character is unnecessary. Thus where, in an action for words
spoken of the plaintiff', as an attorney, it appearing that they
contained a threat to have the plaintiff struck off the roll of
attornies, it was held unnecessary to give any proof of the
Libel. 529
plaintiff's professional character. Berryman v. Wise, 4 T. R.
366. So where the. words were, " He is a pettifogging, blood-
sucking attorney." Armstrong v. Jordan, cor. Huliock, 2 Stark,
on Slander, 11 (?.) 2d ed. Where the declaration alleged that
the plaintiff held a certain office and place of trust and confi-
dence, 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 confi-
dence, and that he was not trusted with the receipt of money.
Bagnall v. Underwood, 11 Price, 62).
In the same manner where the libel admits any other of the
introductory 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 republic 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. So where a libel alleged
that certain acts of outrage had been committed, and there was
a similar introductory averment, it was held that the latter
required no proof. Suit on' s case, 4 M. Sf S. 548. If an intro-
ductory averment be immaterial, it may be rejected as sur-
plusage, and need not be proved ; and, in general, where it is
not matter of description, it is divisible, and part of it only may
be proved. Fide, ante, p. 74.
The averment that the libel was published "of and con-
cerning" the 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
pourtrayed were meant to represent the parties alleged to have
been libelled. Dubois v. Beresford, 2 Campb. 512.
Proof of publication in genera^^ All who are concerned in
publishing a libel are equally guillp. a misdemeanor; Bac. At>.
Libel, (B.) 1 Russell, 234; buKhe writing or composing a
libel, without a publication of it, w not an offence. The mere
writing a defamatory libel, whichHhe party confines to his own
closet, and neither circulates nor reads to others, is not punish-
able. Paine s case, 5 Mod. 165, 167. So the taking acopy of a
libel is not an offence, unless the person taking the copy publishes
it. Com. Dig. Libel, ( B. 2.) The question of publication is ordi-
narily one of mere fact, to be decided by the jury ; but this,
like all other legal and technical terms, involves law as well as
530 y^ Libel.
fact, and it is a question for the court in doubtful cases, whether
the facts when proved constitute a publication in point of law.
2 Start, on Slander, 311, 2d ed.
With regard to the acts which constitute a publication, it has
been "held that a man who acts as servant to the printer of the
Jibel, 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 any thing wrong. Clark's
case, 1 Barnard. 304. To this decision, however, Mr. Serjeant
Russell has with much reason added a qiuere. 1 Russell, 234.
Production of a libel, and proof that it is in the hand-writing
of the defendant, afford a strong presumption that he pub-
lished it. Scare's case, 1 Lard Raym, 417. A delivery of a
newspaper, (containing a libel) according to the provisions of
the 38 G. 3. c. 78, to the officer of the Stamp-office, is a pub-
lication, though such delivery is directed by the statute, for the
officer has an opportunity of reading the libel. Amphlitt's case,
4 B.$c C. 35. See also Cook v. Ward, 6 Bingh. 408.
It is said, by Mr. Justice Fortescue, to have been ruled that
the finding of a libel on a bookseller's shelf, is a publication
of it by the bookseller. Dodd's case, 2 Sess, Ca. 33, Holt's L.
nf L. 284, Zd 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, 2d 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 of it to another, he is
guilty of an unlawful publication of it. Hawk. P. C. b. 2.
c. 73. s. 10.
Although, in civil cases, publication of a libel to the party
libelled only is not sufficient to support an action, yet in
criminal cases such publication will maintain an indictment or
information. Hawk. P. C. b. 1. c. 73. s. 11, 1 Russ. 235.
Wegener's case, 1 Stark. N. P. C. 245.
Where the libel is in a foreign language, and it is set out in
the indictment, 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 was
charged to be a libel in the original, and then the translation
was read by the clerk at nisi prius. Peltier's case, Selw.
N. P. 987.
Where the libel has been printed by the directions of the
defendant, and he has taken away some of the impressions,
a copv of those left with the printer may be read in evidence.
Watson s case, 2 Stark. N. P. C. 129, ante, p. 4. In order to show
that the defendant had caused a libel to be inserted in a news-
paper, a reporter to the paper was called, who proved that he
had given a written statement to the eclitor, the contents of
which had been communicated by the defendant for the purpose
Libel. 531
of publication ; and that the newspaper produced was exactly the
same, with the exception of one or two slight alterations not
affecting the sense ; it was held, that what the report pub-
lished might be considered as published by the defendant, but
that the newspaper could not be read in evidence, without pro-
ducing the written statement delivered by the reporter to the
editor. Adams v. Kelly, Ry. $ Moo. N. P. C. 157.
Where a libel is printed, the sale of each copy is a distinct
publication, and a fresh offence; and a conviction or acquittal
on an indictment for publishing one copy, will be no bar to
an indictment for publishing another copy. Carlile's case,
1 Chitty, 451, 2 Stark, on Slander, 320. 2d ed.
Proof of publication of libels contained in newspapers.] The
proof of the publication of libels contained in newspapers is fa-
cilitated by the stat. 38 G. 3. c. 78, by which an affidavit or
affirmation sworn by the proprietors and printers of every news-
paper, or by a certain number of them, as therein directed, is to
be delivered to the commissioners of the stamp duties, such affi-
davit to specify the names and abode of the printer, publisher,
and proprietors, if they do not exceed two, exclusive of the
printer and publisher, or if they do, then of two proprietors
and their proportional shares, and the description of the print-
ing-house, and the title of the paper; and by sec. 9, all such
affidavits and affirmations, or copies thereof, certified to be true
copies, shall respectively, in all proceedings, civil and criminal,
touching any newspaper, or other such paper as aforesaid,
which shall be mentioned in any such affidavits or affirmations,
or touching any publication, matter, or thing contained in any
such newspaper, or other paper, be received and admitted as
conclusive evidence of the truth of all such matters set forth
in such affidavits or affirmations, as are by the said act required
to be therein set forth, against every person who shall have
signed, or sworn, or affirmed, such affidavits or affirmations,
and shall also be received and admitted in like manner as suffi-
cient evidence of the truth of all such matters against all and
every person, who shall not have signed, or sworn, or affirmed
the same, but who shall be therein mentioned to be a proprietor,
printer, or publisher of such newspaper or other paper, unless
the contrary shall be satisfactorily proved ; provided always,
that if any such person or persons respectively, against whom
any such affidavit or affirmation, or any copy thereof, shall be
offered in evidence, shall prove that he, she, or they, hath or
have signed, sworn, or affirmed, and delivered to the said com-
missioners, or such officer as aforesaid, previous to the day of
the date, or publication of the newspaper, or other such paper
as aforesaid to which the proceedings, civil or criminal, shall re-
late, an affidavit or affirmation that he, she, or they hath or have
ceased to be the printer or printers, proprietor or proprietors, or
A A 2
532 Libel.
publisher or publishers of such newspaper, or other such paper
as aforesaid, such person or persons shall not be deemed, by
reason of any former affidavit or affirmation so delivered as
aforesaid, to have been the printer or printers, proprietor or
proprietors, or publisher or publishers of such paper, after the
day on which such last-mentioned affidavit or affirmation shall
have been delivered to the said commissioners, or their officer
as aforesaid. By sec. 11, it shall not be necessary after any
such affidavit or affirmation, or a certified copy thereof, shall
have been produced in evidence against the persons who signed
the same, &c., or after a newspaper, or any such other paper as
aforesaid, shall be produced in evidence, entitled in the same
manner as the newspaper, or other paper mentioned in such affi-
davit 01 copy, is entitled, and wherein the name or names of the
printer or publisher, or printers or publishers, and the place of
printing, shall be the same as those mentioned in such affidavit
or affiimation, for the plaintiff to prove that the newspaper, or
paper, to which such trial relates, was purchased at any house,
shop, or office, belonging to or occupied by the defendant or
defendants, or any of them, or by his or their servants or work-
men, or where he or they by themselves or their servants or
workmen usually carry on the business of printing or publish-
ing such paper, or where the same is usually sold. By sec. 14,
in all cases, a copy of any such affidavit or affirmation, certified
to be a true copy under the hand or hands of one or more of the
commissioners or officers in whose possession the same shall be,
shall, upon proof made, that such certificates have been signed
with the handwriting of the person or persons making the same,
and whom it shall not be necessary to prove to be a commis-
sioner or commissioners, or officer or officers, be received in evi-
dence as sufficient proof of such affidavit or affiimation, and that
the same was duly sworn or affirmed, and of the contents there-
of ; sand such copies so produced and certified, shall also be
received as evidence that the affidavit or affirmation, of which
they purport to be copies, have been sworn or affirmed according
to this act, and shall have the same effect for the purposes of
evidence, to all intents whatsoever, as if the original affidavits
or affirmations, of which copies so produced and certified shall
purport to be copies, had been produced in evidence, and had
been proved to have been duly so certified, sworn, or affirmed by
the person or persons appearing by such copy to have sworn or
affirmed the same as aforesaid. By sec. 17, the printer or pub-
lisher of every newspaper, or other such paper as aforesaid,
shall, upon every day upon which the same shall be published,
or wilhin six days after, deliver to the commissioners of stamps,
at their head office, or to some officer to be appointed by them to
receive the same, and whom they are hereby required to appoint
for that purpose, one of the papers so published upon each such
day, signed by the printer or publisher thereof, in his hand-
Libel. 533
writing, with his name and place of abode ; and in case any
person or persons shall make application to the commissioners,
or such officer as aforesaid, in order that such newspaper, or
other paper, so signed by the printer or publisher, may be pro-
duced in evidence in any proceeding, civil or criminal, the .said
commissioners, or such officers, shall, at the expense of the party
applying, at any time within two years from the publication
thereof, either cause the same to be produced in the court in
which the same is required to be produced, and at the time when
the same is required to be produced, or shall deliver the same to
the party applying for it, taking, according to their discretion,
reasonable security at his expense for the returning the same to
the said commissioners, or such officer ; and in case, by reason.
that the same shall have been previously required by any other
person to be produced in any court, or hath been previously de-
livered to any other person for the like purpose, the same cannot
be produced at the time required, or be delivered according to
such application, in such case the said commissioners, or sued
their officer, shall cause the same to be produced, or shall de-
liver the same as soon as they are enabled so to do.
Since this statute, the production of a certified copy .of the
affidavit and of a newspaper corresponding in the title and in
the names and descriptions of printer and publisher, with the
newspaper mentioned in the affidavit, will be sufficient evidence
of publication. Mayne v. Fletcher, 9 B. fy C. 382. R. v. Hunt,
31 State Trials, 375. But where the affidavit and the news-
paper vary in the place of residence of the party, it is insuffici-
ent. Murray v. Souter, cited 6 Bingh. 414. The statute has
been held to apply to motions for criminal informations. Don-
nison's case, 4 B. &; Ad. 698. A newspaper may be given in evi-
dence, though it is not one of the copies published, and though
it be unstamped. Pearce's case, Peake, 75.
Proof of publication by admission cf the defendant.^ On .an
information for a libel, the witness, who produced it, stated that
he showed it to the defendant, who admitted that he was tbe
author of it, errors of the press and some small variances only
excepted. It was objected that this evidence did not entitle the
prosecutor to read the book, the admission not being absolute ;
but Pratt C. J. allowed it to be read, and said that he would put
it to the defendant to prove material variances. Halt's case,
1 Str. 416. An admission of the signature to a libel is no ad-
mission 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 periodical work cannot be extended
beyond the date of such admission. M'Leod v. Wakle\i, 3 C.<Sf
"
Publication constructive publication.] It is now well estab-
534 Libel.
lished, that, in order to render a party guilty of publishing a
libel, it is not necessary that he should be the actual publisher
of it, or that he should even have a knowledge of the publica-
tion ; not only is a person, who procures another to publish a
libel, himself guilty of the offence, Hawk. P. C. b. 1. c. 73.
s. 10, but a bookseller or publisher, whose servant publishes a
libel, is criminally answerable for that act, though it was done
without his knowledge. This rule, which is an exception to
those which govern the other branches of criminal law, appears
to be founded upon a principle of policy, and to have been arbi-
trarily adopted with the view of rendering publishers cautious
with regard to the matters to which they give general circula-
tion. The leading case on this subject is that of Almon'f
case, 5 Burr. 2689. The defendant, a bookseller, was con-
victed of publishing a libel in a magazine. The proof of the
publication was, that the magazine was 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 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 prima facie
evidence of its being published by him, not indeed conclusive,
because he might have contradicted it, if the facts would have
borne it, by contrary evidence. 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 was the old
and received law for above a century, and was not to be broken
in upon by any new doctrine upon libels. Walters's case, 3 Esp.
21. And the same rule was laid down by Lord Ellenborough.
Cuthel's case, White's case, Holt, Law of Libel, 287, 2 Stark.
on Slander, 33, 2d ed. In a late case, where it was urged that
the rule, respecting the liability of publishers in libel, was con-
trary to the principle which prevails in all other criminal cases,
Lord Tenterden said, " The rule seems to me to be conformable
to principle and to common sense. Surely a person, who de-
rives profit from, and who furnishes the means of carrying on
the concern, and intrusts the conduct of the publication to one
whom he selects, and in whom he confides, may be said to
cause to be published what actually appears, and ought to be
answeiable, although you cannot show that he was individu-
ally concerned in the particular publication. It would be ex-
ceedingly dangerous to hold otherwise, for then an irresponsible
person might be put forward, and the person really producing
the publication, and without whom it could not be published,
Libel. 535
might remain behind and escape altogether." Gutch's case,
Moody % M. 433.
It does not appear to be well settled whether a publisher by
whose servant a libel has been sold, may exonerate himself
from the consequences of that act, by showing that he has him-
self in no way been accessory to the publication. If the libel-
lous work has been sold by the servant in the regular perform-
ance of his duty towards his employer, the latter would, as it
seems, still be answerable, although he should prove that in fact
he was absent from his shop at the time, and that he was
wholly ignorant of the contents of the book, and innocent of any
intent to disseminate the libel. Dodd's case, 2 Sess. Co.. 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, as it seeras, be guilty of the publication.
In Almon's case, (supra) the Court appear to have treated the
publication by the servant as presumptive evidence only of a
publication as against the master, who would be entitled to re-
but 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.
Woodfall's case, Essai/ on Libels, 18. See also Salmon's case,
B. R. H. T. 1777, Hawk. P. C. b. 1. c. 73. s. 10. (n.) 1th
ed. So it is said by Mr. Starkie, that the defendant may rebut
the 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 circum-
stances which entirely negative any presumption of privity or
connivance. 2 Starkie on Slander, 34, 2d ed.
Where the libel is published by an agent of the defendant,
the authority of such agent must be strictly proved. In the
case of booksellers 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 authorised her to write this particular docu-
ment, it was held to be no evidence of publication as against
him. Harding v. Greening, 1 B. Moore, 477.
Proof of innuendo*.] Where, in order to bring out the libel-
lous sense of the words, innuendos 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
536 Libel.
their belief with regard to the intended application of the words ;
the grounds of such belief may be inquired into on cross-exa-
mination. 2 Stark, on Slander, 51, 2d ed. If the witness de-
rives his conclusion from the terms of another libel, with the
publication of which the defendant is not connected, this is not
sufficient. Bourke v. Warren, 2 C. <5f P. 307. If a good in-
nuendo, ascribing a particular meaning to certain words, is not
supported in evidence, the party will not be permitted to ascribe
another meaning to those words. Williams v. Stott, 1 Crom. $f
M. 675. Archimhop of Tuam v. Robison, 5 Bingh. 17, but see
Harvey v. French, 1 Crom. fy M. 11. 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 ac-
cording to the sense and meaning of the writer. Per Lord
Mansfield, Almon's case, 5 Burr. 2686.
Proof of malice.] V 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 an offence,
and it is unnecessary on the part of the prosecution to give evi-
dence of any circumstances from which malice may be inferred.
Thus, in Harvey's case, it was said by Lord Tenterden, that a
person who publishes what is calumnious concerning the cha-
racter 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. Harvey's case, 2 B.
&; C. 257. | Burdett's case, 4 B. <5f A. 95. 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.
It is however frequently necessary, upon prosecutions for libel,
where the expressions are ambiguous, or the intentions of the
defendant doubtful, to adduce evidence for the purpose of show-
ing the malice which prompted the act of publication. Thus,
where the occasion of the publication would primd facie justify
the defendant, yet, if the libel be false and malicious, it is an
offence ; in such case, evidence of the malice must be given
on the part of the prosecution to rebut the presumed justifica-
tion. Where the material question, says Mr. Starkie, is whe-
ther 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 pur-
pose of causing evil consequences. 2 Stark, on Slander, 55,
Id ed. Upon this principle, in an action for a libel contained
in a weekly paper, 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
Libel, 537
in the regular course of circulation, and vended in regular trans-
mission for public perusal. Plunkett v. Cobbett, 5 E. i />. 136.
So where on the trial of an action for a libel contained in a
newspaper, subsequent publications by the defendant in the same
paper, were tendered in evidence to show quo animo the defendant
published the libel in question, Lord Ellenboroughsaid, nodoubt
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 w,as published con-
cerning the plaintiff. Chubb v. Westley, 6 C. # P. 436. So
it was held by Lord Ellenborough, that any words or any act
of the defendant are admissible, in order to show quo animo lie
spoke the words which are the subject of the action. Rnstell v.
Macquister, 1 Campb. 49. So either the prosecutor or the de-
fendant is entitled to have extracts read from different parts of
the same paper or book which contains the libel, relating to
the same subject. Lambert's case, 2 Campb. 398.
Proof of intent.] Where the malicious intent of the defendant
is, by averment in the indictment, pointed to a particular indi-
vidual, or to a particular act or offence, the averment must be
proved as laid. Thus where the indictment alleged a publica-
tion of a libel with intent to disparage and injure the prosecutor
in his profession of an attorney, it was held that proof of a pub-
lication to the prosecutor 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. Wegener's case, 1 Stark.
N. P. C. 245. The allegation of intent is divisible, ante,
p. 11.
Venue.] The libel must be proved to have been published
in the county in which the venue is laid. Where the libel is
once published, the party is guilty of a publication in every
county in which such libel is afterwards published. Johnson's
case, 7 East, 65. B. N. P. 6. So if he send 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 delivered 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 defendant
wrote it in the county of Leicester, it might 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 evidence of a publication in Leicestershire ; but the
A A 5
538 Libel.
Court of King's Bench (diss. Bayley J.) held that the direc-
tion 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. Burdett's case, 4 B.
$ A. 95. In the above case the question was discussed, -whe-
ther it was essential that the whole offence should be proved to
have been committed in the county in which 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., (Beere's case,
2 Salk. 417, Carth. 409. Knell's case, Barnard. K. B. 305.)
and that the composing and writing with intent afterwards
to publish, was a misdemeanor ; but Bayley 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 act done in the prosecution of the same criminal in-
tention, the whole might be tried in the county of L., 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.
Plumer's case, Russ. 3f Ry. 264. But the mark of double post-
age having been paid, is not, of itself, proof that the letter
contained an inclosure. Id.
Proof of a newspaper under the requisitions of the statute
38 G. 3. c. 78, ante, p, 531, is proof that the paper was
published in the county where the printing is described to be.
Hart's case, 10 East, 94.
A letter containing a libel was proved to be in the hand-
writing 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 with the seal broken. This was held to
be sufficient evidence of the letter having reached the person to
whom it was addressed, and of its having been published to
him. Warren v. Warren, 1 C. M. $ R. 250.
Proof/ or the defendant.] As the offenceof publishing alibelcon-
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 competent to the defendant in all cases, to show the absence
of malice on his part. He cannot, it is true, give in evidence
Libel. 539
matter of justification, that is to say, he cannot admit the pub-
lication to be malicious, and then rely for his defence upon cir-
cumstances which show that he was 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 without malice. It may, perhaps,
be laid down as a rule, that the matters 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. Topham's case, 4 T. R. 127,
128. Nutt's case, Fitzg. 47. Lord Abingdon's case, 1 Esp. 226.
So the defendant, under the plea of not guilty to the indict-
ment, may show that the libel was published under circum-
stances which the law recognizes as constituting either an abso-
lute 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 Stand- 308,
2d 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, 1 2 St. Tr. 183 ; or to
parliament ; Hawk. P. C. b. 2. e. 73. s. 8 ; or that it was con-
tained in articles of the peace exhibited to a magistrate, or in
any other proceeding in a regular course of justice. Ibid. It
seems, says Hawkins, to have been held by some, that no want
of jurisdiction in the court to which such a complaint is exhi-
bited 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 ground-
less, commenced, not with a design to go through with it, but
only to expose the defendant's character under the show of a
legal proceeding, it would form a ground for an indictment at
the suit of the king, as the malice of the proceeding would be
a good foundation^for an action on the case at the suit of the
party. Ibid.
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 proceeding, yet if it appear that the publication took
place by the party, when not invested with that privileged capa-
city, or by a third person, who has never been invested with it,
it furnishes no defence. Thus a member of parliament, who
after delivering his speech in parliament, publishes it, is crimin-
ally responsible for the libel ; Creevy's case, 1 M. fy S. 281 ;
540 Libel.
though by act of parliament, the members are protected from all
charges against them for any thing said in either house. 1 W.
<Sf M. St. 2. c. 2. 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
contained any thing blasphemous, seditious, indecent, or de-
famatory, the defendant had no right to publish it, though it
had actually taken place in a court of justice. Carlile's case,
3 B. # A. 167.
It will, upon the same principle, be a defence to show that
the supposed libel was written bond. Jide, with the view of in-
vestigating a fact in which the party is interested, provided the
limits necessary for effectuating such inquiry are not exceeded.
Delany v. Jones, 4 Esp. 191. Finden v. Westlake, Moo. fy
Malk.'46l. Brown v. Croome, 2 Stark. N. P. C. 297.
So the showing a libel to the person reflected on, with the
bondjide 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, 2d ed. B. N. P. 8. M'Dougall
v. Claridge, 1 Campb. 267. And the same with regard to a
letter of friendly advice. Id. But an unnecessary publicity
would render such a communication libellous, as if the letter
were published in a newspaper. Knight's case, Bac.Ab. Libel,
(A. 2.)
Upon the same principle the defendant may show that the
supposed libel was written bondjide for the purpose of giving
the character of a servant. Edmondson v. Stephenson, B. N. P.
8. Weatherstone v. Hawkins, 1 T. JJ. 110. Pattison v. Jones,
8 B. <) C. 578. Child v. Affleck, 9 B. $ C. 403.
How far the publication of the proceedings of a court of jus-
tice correctly given, containing a libel upon the character of an
individual, and published by a third person not connected with
the proceedings, and without any justification for the act, is
criminally punishable, does not appear to be satisfactorily set-
tled. See Curry v. Walter, 1 Esp. 456, 1 B. Sf P. 525,
Wright's case, 8 T. 11. 298. Stiles v. Nokes, 7 East, 504.
Fisher's case, 2 Campb. 563. Duncan v. Thwaites, 3 B. fy C.
583. Lewis v. Clement, 3 B. # A. 702. Lewis v. Walter,
4 B. % A. 613. Flint v. Pike, 4 B. fy C. 476, 481. It is how-
ever decided that the publication of preliminary or ex parte pro-
ceedings in a court of justice, cannot be justified, as the pub-
lication of depositions before a justice of the peace on a charge
of murder; Lee's case, 5 Esp. 123; or the proceedings of a
coroner's inquest. Fleet's case, 1 B. fy A. 379.
Statute 32 Geo. 3. c. 60.] By Mr. Fox's act (stat. 32 G. 3.
c. 60.) reciting, that doubts had arisen whether on the trial of an
Libel. 541
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 impannelled to try the same, to give
their verdict upon the whole matter in issue, it is (by sec. 1,)
declared and enacted, that on every such trial the jury sworn to
try the issue, may give a general verdict of not 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, be-
fore 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 indictment or information. By sec. 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
the jury on the matter in issue between the king and the de-
fendant or defendants, in like manner as in other criminal cases.
By sec. 3, it is provided, that nothing in the act contained shall
extend, or be construed to extend, to prevent the jury from rind-
ing a special verdict, in their discretion, as in other criminal
cases. And by sec. 4, in case the jury shall find the defendant
or defendants guilty, it shall and may be lawful for the de-
fendant or defendants to move an 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.
542
MAINTENANCE, &c.
Maintenance ...... 542
Nature of the offence .... 542
Justification in respect of interest . . . 543
Master and servant .... 543
Affinity . . . . .543
Poverty ..... 543
Counsel and attornies . . 543
Champerty .... . . 544
Embracery ...... 544
MAINTENANCE, CHAMPERTY, AND EMBRACERY.
Maintenance nature of the offence.'] Maintenance signifies
an unlawful taking in hand or upholding of quarrels or sides,
to the disturbance 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 common law with fine and imprisonment,
and is forbidden by various statutes. 1 Ed. 3. st. 2. c. 14.
20 Ed. 3. c. 4. 1 11. 2. c. 4. 32 Hen. 8. c. 9. s. 3.
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, of^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 labour the jury, or
stand by the partv while his cause is tried, this is maintenance.
Hawk. P.C. b" I. c. 83. s. 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 another 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. \. c. 83. s. 8.
So the mere giving of friendly advice, as what action it will be
proper to bring to recover a certain debt, will not amount to
maintenance. Ibid. s. 11.
Maintenance, %c. 543
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 con-
cerning such matter ; as in the case of landlord and tenant,
trustee and cestui que trust. Hawk. P. C. 6.1. c. 83. s. 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. So
wherever persons claim a common interest in the same thing,
as in a way, common, &c., by the same title, they may main-
tain one another in a suit relating to the same. Hawk. P. C.
b. 1. c. 83. s. 24.
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. s. 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. Ibid. s. 34.
Maintenance justifiable affinity.] Whoever 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. I.e. 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. I.e. 83. s. 36.
Maintenance -justifiable counsel and attoraies.] Another
exception to the general rule with regard to maintenance is the
case of counsel and attornies. But no counsel or attorney 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 any misdemeanors of this kind. Hawk. P. C. b. 1. c.83. s.31.
And by statute 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 court
or the party, he shall be imprisoned for a year and a day.
Procuring an attorney 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 prtccipe against
a poor man, knowing he has nothing in the land, on purpose
to get the possession from the true tenant. Id. s. 35.
544 Maintenance, fyc.
Champerty.'] Champerty is a species of maintenance,
accompanied by a bargain to divide the matter sued for between
the parties, whereupon the champertor is to carry on the suit
at his own expence. 4 Bt. Com. 135. 1 Russell, 179. Cham-
perty may be in personal as well as in real actions ; Hawk.
P. C. b. 1. c. 84. s. 5 ; and to maintain a defendant may be
champerty. Ibid. s. 8.
By 31 Eliz. c. 5, the offence of champerty may be laid in
any county, at the pleasure of the informer.
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 main-
tenance of a suit, in consideration of a bargain for a part of the
thing, or some profit out of it. Stevens v. Bagwell, 15 Fes. 139.
So in a late case it was 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 <5f P. 1 93. See Potts v. Sparrow, GC.fyP. 749.
Embracery.] Embracery, likewise, is another species of
maintenance. Any attempt to corrupt, or influence, or instruct
a jury, or to incline them to be more favourable to one side
than the other, by money, promises, letters, threats, or per-
suasions, 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 give any verdict
or not, and whether the verdict given be true or false. Hawk.
P. C. b. 1. c. 85. s. 1. The giving money to a juror after the
verdict, without any preceding contract, is an offence savouring
of embracery; but it is otherwise of thefpayment of a juror's
travelling expenses. Id. s. 3. Embracery is punishable by fine
and imprisonment. Id. s. 7.
Analogous to the offence of embracery is that of persuading,
or endeavouring 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. Lautey's case, 2 Str. 904.
1 Russell, 184.
545
MALICIOUS INJURIES.
General clauses .... 546
Apprehension of offenders . . . 546
Accessories .... 546
Punishment hard labour ... 546
With regard to mines .... 547
Engines, erections, fyc., used in mines . . 547
With regard to breaking down sea-lanks, locks, and works
on riverSf canals, Jish-ponds, fyc . 548
With regard to turnpike gates and houses, fyc. . 549
It' ith regard to trees and vegetable productions . 549
Proof of cutting, <5fc., trees above the value of II. in
parks, &jc. .... 549
Proof of destroying trees, $c., wheresoever growing,
above the value nf Is. . . 550
Proof of destroying plants, <Sfc., in a garden . 551
Proof of cutting hop-binds ... 551
IJ*i(/i regard to ships .... 552
Proof nf destroying a ship with intent, 3fc. . 552
Proof of damaging a ship, otherwise than by fire, u-ith
intent, $c. .... 552
Proof of exhibiting false lights, 5fc., tvith intent, fyc. 553
Proof of cutting away buoys, fyc. . . 553
Proof of removing anchors, fyc. . . 553
With regard to machines^, and goods in the course of ma-
nufacture .... 554
Proof of destroying threshing machines, and machines
used in manufactures . . . 555
The law relating to malicious injuries to property, was for-
merly comprised in a great variety of statutes, which are now
repealed by the 7 & 8 G. 4. c. 27, and new provisions substi-
tuted in their place, by the 7 & 8 G. 4. c. 30. In the latter
act, certain general clauses are contained, which being appli-
cable to the greater part of the offences after-mentioned, may
be most conveniently inserted in this place.
546 Malicious Injuries.
GENERAL CLAUSES.
Proof of malice against owner.] By the 7 & 8 G. 4. c. 30.
s. 25, it is enacted, that every punishment and forfeiture by this
act imposed on any person maliciously committing any offence,
whether the same be punishable upon indictment or upon sum-
mary conviction, shall equally apply and be enforced, whether
the offence shall be committed from malice conceived against the
owner of the property, in respect of which it shall be committed,
or otherwise.
Apprehension of offenders.'] By the 28th section of the act,
for the more effectual apprehension of all offenders against
this act, it is enacled, that any person found committing any
offence against this act, whether the same be punishable
upon indictment or upon summary conviction, may be imme-
diately apprehended, without a warrant, by any peace officer,
or the owner of the property injured, or his servant, or any per-
son authorised by him, and forthwith taken before some neigh-
bouring justice of the peace, to be dealt with according to law.
Accessories.'] By the 26th section of the act, it is enacted,
that 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 punish-
able ; and every accessory after the fact to any felony punish-
able under this act shall, on conviction, be liable to be impri-
soned for any term not exceeding two years ; and every person
who shall aid, abet, counsel or procure the commission of any
misdemeanor punishable under this act, shall be liable to be in-
dicted and punished as a principal offender.
Punishment hard labour.'] By the 27th section of the act
it is enacted, that where any person shall be convicted of
any indictable offence punishable under this act, for which
imprisonment may be awarded, it shall be lawful for the Court
to sentence the offender to be imprisoned, or to be imprisoned
and kept to hard labour, in the common gaol or house of cor-
rection, and also to direct that the offender shall be kept in soli-
tary confinement for the whole or any portion or portions of
such imprisonment, or of such imprisonment with hard labour,
as to the Court in its discretion shall seem meet.
Malicious Injuries. 547
WITH REGARD TO MINES.
Proof of drowning a mine, or filling up a shaft with intent to
destroy the mine.] The statute 39 & 40 G. 3. c. 77, relating
to this subject, being repealed, the offence is now provided
against by the 7 & 8 G. 4. c. 30, by the sixth section of which
it is enacted, that if any person shall unlawfully and malici-
ously cause any water to be conveyed 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 maliciously pull down, fill up, or obstruct any airway,
waterway, drain, pit, level, or shaft of or belonging to any mine,
every such offender shall be guilty of felony, and, being con-
victed thereof, shall be liable, at the discretion of the Court, to
be transported beyond the seas for the term of seven years, or to
be imprisoned for any term not exceeding two years ; and, if a
male, to be once, twice, or thrice publicly or privately whipped
(if the Court shall so think fit), in addition to such imprison-
ment : Provided always, that this provision shall not extend to
any damage committed under ground by any owner of any ad-
joining mine in working the same, or by any person duly em-
ployed in such working.
The prosecutor must prove 1, the act of causing the water
to be conveyed into the mine, for which purpose it will probably
be necessary to resort to circumstantial evidence ; 2, that the
act was done unlawfully and maliciously ; 3, the intent to
destroy or damage the mine, or hinder the working ; and 4,
that the mine is in the possession of the party named.
The setting fire to mines is provided against by stat. 7 & 8
G. 4. c. 30. s. 5, by which it is enacted, that if any person shall
unlawfully and maliciously set fire to any mine of coal, or cannel
coal, every such offender shall be guilty of felony, and being
convicted thereof, shall suffer death as a felon.
Engines, <Sfc., used in mines.] By 7 & 8 G. 4. c. 30. s. 7,
it is enacted, that if any person shall unlawfully and maliciously
pull down or destroy, or damage with intent to destroy or to
render useless, any steam engine or other engine for sinking,
draining, or working any mine, or any staith, building, or
erection used in conducting the business of any mine, or any
bridge, waggon-way, or trunk for conveying minerals from any
mine, whether such engine, staith, building, erection, bridge,
waggon-way, or trunk be completed or in an unfinished state,
548 Malicious Injuries.
every such offender shall be guilty of felony, and, being con-
victed thereof, shall be liable to any of the punishments which
the Court may award, as hereinbefore last mentioned. (Section
6, ante, p. 547.)
WITH REGARD TO BREAKING DOWN, &C., SEA
BANKS, LOCKS, WORKS ON RIVERS, CANALS, AND
FISH PONDS.
The former statutes relating to these offences were the
6 G. 2. c. 37 ; the 8 G. 2. c. 20 ; the 4 G. 4. c. 46 ; and the
I G. 4. c. 115 ; but these statutes are now repealed, and their
provisions consolidated in the 7 & 8 G. 4. c. 30.
Proof of breaking down sea banks, banks of canals, marshes,
$c.] By the stat. 7 & 8 G. 4. c. 30. s. 12,' it is enacted, that
if any person shall unlawfully and maliciously break down or
cut down any sea bank or sea wall, or the bank or wall of any
river, canal, or marsh, whereby any lands shall be overflowed
or damaged, or shall be in danger of being so, or shall unlaw-
fully and maliciously throw down, level, or otherwise destroy
any lock, sluice, floodgate, or other work on any navigable
river or canal, every such offender shall be guilty of felony, and
being convicted thereof, shall be liable, at the discretion of the
Court, to be transported beyond the seas for life, or for any
term not less than seven years, or to be imprisoned for any term
not exceeding four years ; and if a male, to be once, twice, or
thrice publicly or privately whipped (if the Court shall so think
fit) in addition to such imprisonment.
With regard to breaking down Jish-ponds, <Sfc.] Breaking
down the mounds of fish-ponds was formerly punishable by the
5 Eliz. c. 21, and the 9 G. 1. c. 22. Those statutes are
repealed by the 7 & 8 G. 4. c. 30, by the 15th section of which
statute, it is enacted, that if any person shall unlawfully and
maliciously break down or otherwise destroy the dam of any
fish-pond, or of any water which shall be private property, or
in which there shall be any private right of fishery, with intent
thereby to take or destroy any of the fish in such pond or water,
or so as thereby to cause the loss or destruction of any of the
fish, or shall unlawfully and maliciously put any lime or other
noxious material in any such pond or water, with intent thereby
to destroy any of the fish therein, or shall unlawfully and mali-
ciously break down or otherwise destroy the dam of any mill-
pond, every such offender shall be guilty of a misdemeanor,
and, being convicted thereof, shall be liable, at the discretion of
Malicious Injuries. 549
the Court, to be transported beyond the seas for the term of
seven years, or to be imprisoned for any term not exceeding
two years ; and, if a male, to be once, twice, or thrice publicly
or privately whipped (if the Court shall so think fit), in addition
to such imprisonment.
The above section provides against the defect in the former
stat. 9 G. 1. c. 22, under which it was held, that if the prisoner
broke down the mound of the pond with intent to steal the fish,
it was not within the statute, boss's case, Rust. $ Ry. 10.
WITH REGARD TO TURNPIKE GATES, TOLL-
HOUSES, &C.
By the stat. 7 & 8 G. 4. c. 30. s. 14, it is enacted, that if
any person shall unlawfully and maliciously throw down, level,
or otherwise destroy, in whole or in part, any turnpike-gate, or
any wall, chain, rail, post, bar, or other fence belonging to any
turnpike-gate, or set up or erected to prevent passengers passing
by without paying any toll directed to be paid by any act or acts
of parliament relating thereto, or any house, building, or weigh-
ing-engine erected for the better collection, ascertainment, or
security of any such toll, every such offender shall be guilty of
a misdemeanor, and, being convicted thereof, shall be punished
accordingly.
WITH REGARD TO TREES AND VEGETABLE PRODUC-
TIONS.
Proof of cutting , <fc. trees, &c. above the value of I/, in parks,
(Sfc.J The provisions on this subject were formerly contained in
the statutes 6 G. 3, c. 36, and 4 G. 4, c. 54 ; but these are
now repealed by the 7 & 8 G. 4, c. 27, and the following pro-
visions substituted by the 7 & 8 G. 4, c. 30.
By the 19th section of that statute it is enacted, that if any
person 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, respectively growing
in any park, pleasure ground, garden, orchard, or avenue, or in
any ground adjoining or belonging to any dwelling house, every
550 Malicious Injuries.
such offender (in case the amount of the injury done shall exceed
the sum of one pound) shall be guilty of felony, and, being con-
victed thereof, shall be liable, at the discretion of the court, to
be transported beyond the seas for the term of seven years, or to
be imprisoned for any term not exceeding two years ; and, if a
male, to be once, twice, or thrice publicly or privately whipped
(if the court shall so think fit), in addition to such imprisonment ;
and if any person 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, respec-
tively growing elsewhere than in any of the situations therein-
before mentioned, every such offender (in case the amount of
the injury done shall exceed the sum of five pounds) shall be
guilty of felony, and, being convicted thereof, shall be liable to
any of the punishments which the court may award for the
felony therein-before last mentioned.
The prosecutor must prove, 1, that the tree, sapling, &c., in
question was growing in some park, pleasure ground, &c. ; 2,
that its value exceeded II. ; 3, that it is the property of the pro-
secutor ; 4, that the defendant cut, rooted it up, or otherwise
destroyed or damaged the whole or some part of it ; 5, that the
act of the defendant was wilful and malicious.
When the ground is described as adjoining to a dwelling-
house, and it appears that the ground and dwelling-house are
separated by a walk, it is a variance. Hodges's case, Moo. and
Malk. N. P. C. 341.
Upon the statute 9 G. 1, c. 22, s. 1, the words of which are,
" shall cut down or otherwise destroy," it was held that the cut-
ting down of fruit trees, though such cutting down did not de-
stroy the trees, was within the act. Taylor's case, Russ. <5f Ry.
373.
Proof of destroying or damaging trees, 6fc. wheresoever grow-
ing, of any value above Is.] By the 7 & 8 G. 4, c. 30. s. 20, it is
enacted, that if any person 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 respectively growing, the injury
done being to the amount of one shilling at the least, every such of-
fender, being convicted before a justice of the peace, shall, for the
first offence, forfeit and pay, over and above the amount of the
injury done, such sum of money, not exceeding five pounds, as
to the justice shall seem meet ; and if any person so convicted
shall afterwards be guilty of any of the said offences, and shall
be convicted thereof in like manner, every such offender shall for
such second offence be committed to the common gaol or house
of correction, there to be kept to hard labour for such term, not
exceeding twelve calendar months, as the convicting justice shall
think fit ; and if such second conviction shall take place before
Malicious Injuries. 551
two justices, they may further order the offender, if a male, to be
once or twice publicly or privately whipped, after the expiration
of four days from the time of such conviction ; and if any per-
son so twice convicted shall afterwards commit any of the said
offences, such offender shall be deemed guilty of felony, and,
being convicted thereof, shall be liable to any of the punish-
ments which the cour tmay award for the felony therein-before
last mentioned.
The prosecutor must prove, 1, the two previous convictions by
certified copies (see 7 & 8 G. 4, c. 30, s. 40) ; 2, the commis-
sion of the third offence, by proving the cutting, &c. of the tree,
that it is above the value of Is., that it is the property of the
party mentioned, and that the act was done wilfully and ma-
liciously.
Proof of destroying plants, c. in a garden.] By the statute
7 & 8 G. 4. c. 30, s. 21, it is enacted, that if any person shall
unlawfully and maliciously destroy, or damage with intent to
destroy, any plant, root, fruit, or vegetable production, growing
in any garden, orchard, nursery ground, hothouse, greenhouse,
or conservatory, every such offender, being convicted thereof be-
fore a justice of the peace, shall, at the discretion of the justice,
either be committed to the common gaol or house of correction,
there to be imprisoned only, or to be imprisoned and kept to hard
labour, for any term not exceeding six calendar 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 if any person so convicted
shall afterwards commit any of the said offences, such offender
shall be deemed guilty of felony, and, being convicted thereof,
shall be liable to any of the punishments which the court may-
award for the felony therein-before last mentioned.
The proofs on a prosecution for this offence will resemble
those in the last case.
Proof of cutting or destroying hopbinds.~\ By the statute
7 & 8 G. 4, c. 30. s. 18, it is enacted, that if any person shall
unlawfully and maliciously cut or otherwise destroy any hop-
binds growing on poles in any plantation of hops, every such
offender shall be guilty of felony, and being convicted thereof,
shall be liable at the discretion of the court to be transported
beyond the seas for life, or for any term not less than seven years,
or to be imprisoned for any term not exceeding lour 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 im-
prisonment.
The prosecutor must prove the cutting or destroying of the
hopbinds, that they were growing on poles in some plantation of
hops, the property of the party specified, and that the act was
done unlawfully and maliciously.
552 Malicious Injuries.
WITH REGARD TO SHIPS.
Proof of destroying a ship with intent, 6fc.] The offence of
destroying ships with intent to defraud underwriters, &c., was
provided against by the 43 Geo. 3. c. 113, and 33 G. 3. c. 67,
now repealed by the 7 & 8 G. 4. c. 27, the following enactment
being substituted by the 7 & 8 G. 4. c. 30, by the 9th section
of which it is enacted, that if any person shall unlawfully and
maliciously set fire to, or in any wise destroy any ship or vessel,
whether the same be complete or in an unfinished state, or shall
unlawfully and maliciously set fire to, cast away, or in anywise
destroy any ship or vessel, with intent thereby to prejudice any
owner or part owner of such ship or vessel, or of any goods on
board the same, or any person that hath underwritten or shall
underwiite any policy of insurance upon such ship or vessel, or
on the freight thereof, or upon any goods on board the same,
every such offender shall be guilty of felony, and, being convicted
thereof, shall suffer death as a felon.
The prosecutor must prove, 1, that the matter set fire to was
a ship or vessel ; 2, the act of setting fire to or destroying ; 3,
the intent within the words of the statute ; and 4, the malice.
Patteson, J. inclined to think that a pleasure boat, 18 feet
long, was. a ship or vessel within the meaning of the act. Bow-
yer'scase,4 C.<SfP. 559.
In construing the repealed acts of 4 & 10 G. 1 . it was ruled
that if a ship was only run aground or stranded upon a rock, and
was afterwards got off in a condition capable of being easily re-
fitted, she could not be said to be either cast away or destroyed.
De Londo'scase, 2 East, P. C. 1098.
Where the intent is laid to be to defraud the underwriters, as
to the proof of the policy, vide ante, p. 236.
Proof of maliciously damaging a ship, otherwise than by fire,
with intent to destroy the same, $fc.] By the 7 & 8 G. 4. c.
30. s. 10, it is enacted, that if any person shall unlawfully and
maliciously damage, otherwise than by fire, any ship or vessel,
whether complete or in an unfinished state, with intent to de-
stroy the same, or to render the same useless, every such of-
fender shall be guilty of felony, and, being convicted thereof,
shall be liable, at the discretion of the Court, to be transported
beyond the seas for the term of seven years, or to be imprisoned
for any term not exceeding two years ; and if a male, to be once,
twice, or thrice publicly or privately whipped, (if the Court
shall so think fit,) in addition to such imprisonment.
The proofs, upon a prosecution for this offence, resemble
those in the case last mentioned.
In an indictment under this clause, it does not appear to be
Malicious Injuries. 553
necessary to aver that the damage was done " otherwise than by
fire," if the mode in which it was done be stated, as by boring a
hole in the bottom of the vessel. Bowyer's case, 4 C. & P. 559.
Proof of exhibiting false lights, fyc. with intent to bring ships
into danger.] By statute 7 & 8 G. 4. c. 30. s. 11, it is en-
acted, that if any person shall exhibit any false light or signal,
with intent to bring any ship or vessel into danger, or shall un-
lawfully and maliciously do anv tiling tending to the immediate
loss or destruction of any ship or vessel in distress, or destroy
any part of any ship or vessel which shall be in distress, or
wrecked, stranded, or cast on shore ; or any goods, merchandize
or articles of any kind belonging to such ship or vessel ; or shall
by force prevent or impede any person endeavouring to save his
life from such ship or vessel, (whether he shall be on board or
shall have quitted the same,) every such offender shall be guilty
of felony, and, being convicted thereof, shall suffer deatli as a
felon.
Prvnf o/' cutting awuy buoys, 8fc.~\ Another offence, con-
nected with that of malicious injuries to ships, is the wilful
destruction of buoys ; with regard to which, it is enacted, by
the 1 & 2 G. 4. c. 75. s. 1, that if any person or persons shall
wilfully cut away, cast adrift, remove, alter, deface, sink, or
destroy, or in any other way injure or conceal any buoy, buoy-
rope, or mark belonging to any ship or vessel, or which may be
attached to any anchor or cable belonging to any ship or vessel
whatever, whether in distress or otherwise, such person or per-
sons so offending shall, on being convicted of such offence, be
deemed and adjudged to be guilty of felony, and shall ba liable
to be transported for any term not exceeding seven years, or, to
be imprisoned for any number of years, at the discretion of the
Court in which the conviction shall be made.
Prwf of reeeieing anchors, <5fc. weighed up.] By the 2d sec-
tion of the 1 & 2 G. 4. c. 75, it is enacted, if any person shall,
knowingly and wilfully, and with intent to defraud and injure
the true owner or owners thereof, or any person interested therein
as aforesaid, purchase or receive any anchors, cables, or goods
or merchandize which may have been taken up, weighed, swept
for, or taken possession of, whether the same shall have be-
longed to any ship or vessel in distress or otherwise, or whether
the same shall have been preserved from any wreck, if the direc-
tions thereinbefore contained, with icgaid to such articles, shall
not have been previously complied with, such person or persons
shall, on conviction theieof, be deemed guilty of receiving stolen
goods, knowing the same to be stolen, as if the same had been
stolen on shore, and suffer the like punishment as for a misde-
meanor at the common law, or be liable to be transported for
B B
554 Malicious Injuries.
seven years, at the discretion of the Court before which he, she,
or they shall be tried.
And by sect. 15, persons carrying anchors and cables abroad
may be transported.
By 1 & 2 G. 4. c. 76, similar provisions are made for the
Cinque Ports.
WITH REGARD TO MACHINERY AND GOODS ITK
COURSE OF MANUFACTURE.
The law relating to the destruction of machinery was contained
in a variety of statutes which were repealed by the 4 Geo. 4.
c. 46 ; and the latter statute, so far as it relates to the same sub-
ject, was also repealed by the 7 & 8 G. 4. c. 27, and the fol-
lowing provisions substituted by the 7 & 8 G. 4. c. 30 ; by the
third section of which it is enacted, that if any person shall un-
lawfully and maliciously cut, break, or destroy, or damage, with
intent to destroy, or to render useless, any goods or article of silk,
woollen, linen, or cotton, or of any one or more of those mate-
rials mixed with each other, or mixed with any other material,
or any framework-knitted piece, stocking, hose, or lace, respec-
tively, being in the loom or frame, or on any machine or engine,
or on the rack or tenters, or in any stage, process, or progress of
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, or cotton, or of any
one or more of those materials mixed with each other, or mixed
with any other material, or any loom, frame, machine, engine,
rack, tackle or implement, whether fixed or moveable, prepared
for or employed in carding, spinning, throwing, weaving, full-
ing, shearing, or otherwise manufacturing or preparing any
such goods or articles ; or shall by force enter into any house,
shop, building or place, with intent to commit any of the
offences aforesaid; every such offender shall be guilty of felony,
and being convicted thereof, shall be liable, at the discretion of
the Court, to be transported beyond the seas for life, or for any
term not less than seven years, or to be imprisoned for any term
not exceeding four years, and if a male, to be once, twice, or
thrice publicly or privately whipped, (if the Court shall so think
fit,) in addition to such imprisonment.
This clause enumerates a variety of separate offences. The
proofs in general will be, 1, proof of the unlawful and malicious
act ; 2, the nature of the property upon which that act was done,
which must appear to be within the description of the statute ;
Malicious Injuries. 555
3, the property of the prosecutor ; 4, the intent with which the
act was done, according to the statute ; and, 5, the malice.
Proof of destroying threshing-machines, and certain machines
used in manufacture.] By statute 7 & 8 G. 4. c. 30. s. 4, if
any person shall unlawfully and maliciously cut, break, or de-
stroy, or damage with intent to destroy, or to render useless,
any threshing-machine or any machine or engine, whether fixed
or moveable, prepared for or employed in any manufacture what-
soever, (except the manufacture of silk, woollen, linen, or
cotton 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,) every such
offender shall be guilty of felony, and, being convicted thereof,
shall be liable, at the discretion of the Court, to be transported
beyond the seas for the term of seven years, or to be imprisoned
for any term not exceeding two years ; and, if a male, to be
once, twice, or thrice publicly or privately whipped, (if the
Court shall so think fit,) in addition to such imprisonment.
It has been held in several cases, that it is an offence within
the statute, though, at the time when the machine is broken, it
has been taken to pieces, and is in different places, only requir-
ing the carpenter to put those pieces together again. Mackerel's
case, 4 C. &; P. 448. So where the machine was worked by
water, and the prosecutor, expecting a riot, took it to pieces, and
removed 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. Fidler's case, 4 C. & P. 449. Where certain side-
boards were wanting to a machine, at the time it was destroyed,
but which did not render it so defective as to prevent it altoge-
ther from working, though it would not work so effectually, it
was still held to be a threshing-machine within the statute.
Bartlett's case, Salitb. 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 accus-
tomed to stand, and had also taken away the legs ; and it ap-
peared 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
as well, and that it could also be worked without the legs ; it
was held to be within the statute. Chubb's case, Salisb. Sp. Com.
2 Deac. Dig. C. L. 151. But where the owner had not only
taken the machine to pieces, but had 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 take the case
out of the statute. West's case, Salisb. Sn. Com. 2 Deac. Di". C.
/,. 1518.
Where the prisoner was indicted, under the 28 G. 3. c. 55,
BB2
556 Manslaughter.
s. 4, 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 use-
less, this was held a damaging of the frame within the statute.
Tacey's case, Russ. $f Ry. 452.
Where the prisoners were charged, under 22 G. 3. c. 40. s. 1,
with breaking into a house with intent to cut and destroy certain
tools employed in making woollen goods, and it appeared that
the article destroyed was part of the loom itself, they were held
to be rightly acquitted. Hilt's case, Russ. fy Ry. 483.
MANSLAUGHTER.
JJistinctiim between manslaughter and murder . 556
Proof in cases of provocation . . 557
Proof in cases of mutual combat . . . 558
Proof in cases of resistance to officers of justice, $c. . 559
Proof in cases of killing in the performance of an unlawful
or wanton act .... 560
Proof in cases of killing in the performance of a lawful
act . . 560
Distinction between manslaughter and murder.] Man-
slaughter 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 maiice, either
express or implied, which is the very essence of murder, is pre-
sumed to be wanting in manslaughter, ihe act being rather im-
puted to the infirmity of human nature. 1 Em>t, P. C. 218.
Foster, 290. It also differs from 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 Hate, P. C. 437. Thus if there be an indict-
ment charging A. with murder, and B. and C. with counselling
and abetting, as accessories before the fact only, (and not as
present aiding and abetting, for such are principals,) and A. i*
Manslaughter. 557
acquitted of murder, but found guilty of manslaughter, B. and
C. must be altogether acquitted. 1 Hale, P. C. 437, 450.
1 Rnsiell, 485.
la considering the evidence in cases of manslaughter, it will
merely be necessary to state the points shortly, and to refer gene-
rally to the cases, all of which will be found set forth at length
under the title " Murder."
The subject of manslaughter will be treated under the follow-
ing heads: 1, cases of provocation; 2, cases of mutual com-
bat ; 3, cases of resistance to officers of justice, &c. ; 4, cases
of killing in the prosecution of an unlawful or wanton act ; 5,
cases of killing in the execution of a lawful act, improperly per-
formed, or performed without lawful authority. 6'ee 1 Russell,
486.
Proof in cases of 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 ex-
press malice, it will be murder. 1 East, P. C. 232. Foster,
313.
But where the provocation is sought by the prisoner, it will
not furnish any defence against the charge of murder. I East,
P. C. 239. 1 Hale, P. C. 457.
Words of reproach, how grievous soever, are not a provoca-
tion sufficient to free the party killing from the charge of murder,
neither are indecent or provoking actions or gestures, without an
assault. Foster, 290, 291. Brain's case, 1 Hale, P. C. 455.
1 Russell, 435. (w.) Morleu'scase, 1 Hale, P. C. 456. Kel. 55.
1 East, P.C. 233.
Although an assault is in general such a provocation as that,
if the party struck strikes again, and death ensues, it is only
manslaughter, yet it is not every trivial assault which will fur-
nish such a justification. 1 East, P. C. 236. 1 Russell, 434.
Sted man 's case, Foster, 292. Reason's case, Foster, 293, 2 Sfr.
499. 1 East, P. C. 320.
in cases depending upon provocation, it is always material to
consider the nature of the weapon used by the prisoner, as tend-
ing to show the existence of malice. If a deadly weapon be
used, the presumption is, that it was intended to produce death,
which will be evidence of malice ; but if the weapon was not
likely to produce death, that presumption will be wanting. 2
Lord Ravm, 1498. Rowley's case, 12 Rep. 87. 1 Hale, P. C.
453. Foster, 294. 1 East,' P. C. 236. 1 Leacft, 368. Wigg's
case, 1 Leach, 378. (n.)
In order that the provocation may have the effect of reducing
the offence to manslaughter, it must appear to have been recent ;
for if there has been time for passion to subside, and for reason
558 Manslaughter.
to interpose, the homicide will be murder. Foster, 296. 1 Ecat r
P. C. 262. 2 Lord Raym. 1496. Oneby's case, 2 Str. 766, 2
Lord Raym. 1485. Hayward's case, 6 C. 3f P. 157.
As evidence of provocation is only an answer to that presump-
tion of malice which the law infers in every case of homicide, if
there be proof of express malice at the time of the act committed,
the additional circumstance of provocation will not extenuate the
offence to manslaughter. In such a case, not even previous
blows or struggling will reduce the offence to homicide. 1 Rus-
sell, 440. Mason's case, Foster, 132. 1 East, P. C.239.
There is one peculiar case of provocation which the law recog-
nizes 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. Maiming'*
case, Sir T. Raym. 212. 1 Russell, 488. But if the husband
kill the adulterer deliberately, and upon revenge, after the fact
and sufficient cooling time, the provocation will not avail in al-
leviation of the guilt. 1 East, P. C. 251.
Proof in cases of 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 convic-
tion for murder, and a sufficient degree of provocation to show,
such absence.
The degree of provocation is not altogether of the same nature
in these cases as in those mentioned under the last head, for
where, upon words of reproach, or indeed upon any other sudden
provocation, the parties come to blows, and a combat en-
sues, in which no undue advantage is taken on either side, and
one of the parties is killed, it is manslaughter only. 1 Eust,
P. C.241. 1 Hale, P. C. 456. Foster, 295.
But if one of the parties provide himself with a deadly weapon
beforehand, which he uses in the course of the combat, and kills
his adversary, this will be murder, though it would be only man-
slaughter if, in the heat of the combat he snatched up the wea-
Eon, or had it in his hand at the commencement of the combat,
ut without an intention of using it. Anderson's case, 1 Russell,
447. Kessal's case, 1 C. $ P. 437. Snow's case, 1 East, P. C.
244-5.
Not only may death in the course of a mutual combat be
heightened to murder by the use of deadly weapons, but by the
manner of fighting, as in " an up and down fight." Thorpe's
case, Ltficin, C. C. 171.
To reduce the homicide to manslaughter in these cases, it must
appear that no undue advantage was sought or gained on either
side. Foster, 295. 1 East, P. C. 242. Whiteley's case, Lewin,
C. C. 173.
The lapse of lime between the origin and the quanel is also
Manslaughter. 559
to ba greatly considered, as it may tend to prove malice. Lynch's
case, 3 C. fy P. 324. But it is not in every case where there
has been an old grudge that malice will be presumed. Hawk,
P. C. b. 1, c. 31, s. 30. 1 Hale, P. C. 452.
The case of deliberate duelling is an exception to the general
yule, that death ensuing in the course of a mutual combat is
manslaughter only. Foster, 297. The authorities upon this
subject will be found stated under the head " Murder," post.
Proof in cases of resistance to officers of justice, Sfc.] The
cases of homicide which arise in the instances of officers of justice,
or others having authority to arrest, where resistance is made
to them in the execution of their duty, include 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, accord-
ing 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 circumstances. These distinctions will be noticed, and the
different authorities, and cases collected under the head
"'Murder;" and it will only therefore be necessary to refer
under the present head to the cases relating to manslaughter.
In what instances peace officers are authorised to arrest indi-
viduals, and where they have power to do so without warrant,
and in what cases the process under which they act is regular
or irregular, and what is the consequence of such irregularity,
will be fully stated in a subsequent part of this work. Vide
post, title " Murder."
In order to render it murder, in a person who kills an officer
attempting to arrest him, it must appear that he had notice of
the character in which the officer acted ; for if he had not, the
offence will amount to manslaughter only. Foster, 310. The
mode in which a constable is bound to notify his authority will
be stated hereafter, post, title " Murder."
Where a peace officer who attempts to arrest another, without
having sufficient authority, is resisted, and in the course of that
resistance is killed, the offence only amounts to manslaughter,
as where he attempts to arrest on an insufficient charge of
felony. Cm-van's case, 1 Moody, C. C. 132, post. Thomson's,
rase, Id. 80. So if a peace officer attempts to execute process
out of his own jurisdiction, and is killed under the like circum-
stances. 1 Hale, P. C. 458. 1 East, P. C. 314. Mead's case,
"2 Stark. A r . P. C. 205, post. So where a peace officer unlaw-
fully attempts to break open the outer door or window of a house,
as to his authority herein, see post, title " Murder ,-")
560 Manslaughter.
and he is resisted, and killed in the course of that resistance,
it is manslaughter. 1 Hale, P. C. 458.
With regard to the cases of peace officers killing others in
the supposed execution of their duty, it is to be observed that
where they act without proper authority, and the party refuses
to submit, and death ensues, it will be murder or man-
slaughter, according to the circumstances of the case. 1 Ilale,
1\C. 48 I.Foster, 271.
So where an officer uses a greater degree of violence than is
necessary to overcome the resistance of the party, and death
ensues, it will be manslaughter in the officer. 1 i'u.sf, P.C.297.
So where an officer kills a party attempting to make an
escape, when arrested on a charge of misdemeanor. Forster's
ease, Lewin, C. C. 187, post.
With regard to private persons attempting to make an arrest,
the rule is the same as in the case of peace officers. Wheie a
private person is justified in making an arrest, (as to which
see the cases stated under the head '' Murder;") and he is
resisted and is killed, it will be murder. But if a private
person, without lawful authority, attempt to arrest, and be
killed by the party whom he attempts to arrest, it will only
be manslaughter in the latter. Fide the cases cited post, title
" Murder."
Proof in cases of killing, in the performance of an unlauful
or wanton act.] If in doing an unlawful act death ensue, iu
consequence of the negligence of the party, but without any
intent to do bodily harm, it is manslaughter. Foster, 261.
It is not necessary, in order to render the homicide man-
slaughter, that the act in the performance of which death is
caused should be a felony, or even a misdemeanor ; it is enough
if it be an act contrary to law. Thus if a person in sport
throw stones down a coal-pit, whereby a man is killed, this
is manslaughter, though the party was only a trespasser.
Fenton's cane, Lewin, C. C. 179.
Proof in cases of killing in the performance of a lawful act.]
Death ensuing in the performance of a lawful act 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 clnss are those where the
death has been occasioned by negligent driving. 1 East, P. C.
263 ; Walker's case, 1 C. $ P. 320. Knight's case, Lenin, C.
C. 168. Grout's case, 6 C. # P. 629. Another large class of
cases of manslaughter consists of those in which death takes
Manslaughter. 561
place in the course of prize-fights. 1 East , P. C. 270. Murphy's
case, 6 C. $ P. 103. Hargrove's case, 5 C. % P. 170.
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 conse-
quence of such negligence or inattention death ensues, it is
manslaughter. 1 Hale, P. C. 429. 4 Bl. Com. c. 14. Fan
Butchell's case, 3 C. $ P. 632. WiUiamton't case, 3 C. $ P.
635. Long's case, 4 C. # P. 398, (2d case ;) Senior's case,
1 Moody, C. C. 346. Simpson's case, 4 C.Jj P. 407, CM.)
Lwin, C. C. 172. SpMer's case, 5 C. $ P. 333. Ferguson's case,
Lewin, C. C. 181 all stated post, title " Murder."
B B3
562
MURDER.
Statutory provision} .... 563
Proof of a murder having been committed . . 564
Proof of the murder party killed . . . 565
Proof that the prisoner was the party killing . . 567
Proof of the means of killing . . . 571
Variance in statement of . . 577
Proof of malice in general . . . 579
Death ensuing in the performance of an unlawful
or wanton act .... 580
Death ensuing in the performance of a lawful act . 582
Persons administering medicines . . 588
Intent to do bodily injury death ensuing . 591
Exposure of infants killing by neglecl, 5fc. . 592
Provocation in general . . . 594
By words or gestures only . . 595
By assault .... 596
Where an instrument is used . . 598
Must be recent . . , 601
Express malice . . , 604
Proof of malice cases of mutual combat . . 605
Duelling . . . .610
Proof of malice peace-officers and others killed in per-
forming their duty . . .611
Peace-officers killed or killing others in performance
of their duty their authority . . 612
Regularity of process . . 621
Notice of their authority . . . 625
Mode of executing their duty . . . 627
Mode (where an officer has been killed) in which
that killiitg has been effected .. .631
Private persons killed or killing others in apprehending
them . . .634
Killing in defence of person or property . . 637
Proof in cases offelo de se. . . 646
Murder is the voluntarily killing of any person under the
king's peace, of malice prepense or aforethought, either express
or implied by law. 1 East, P. C. 214. 3 Inst. 47. 1 Hale,
P. C. 425.
Murder. 563
Statutory provisions.] By statute 9 Geo. 4. c. 31. s. 3,
every person convicted of murder, or of being accessory
before the fact to murder, shall suffer death as a felon. And
every accessory after the fact to murder, shall be liable at the
discretion of the court to be transported beyond the seas for
life, or to be imprisoned, with or without hard labour in the
common gaol, or house of correction, for any time not exceeding
four years.
By section 4, provision is made with regard to the period of
execution, and by sec. 5, as to the dissection of the bodies of
murderers.
By section 2, every offence which before the commence-
ment of the act would have amounted to petit treason, shall be
deemed to be murder only, and no greater offence, and all
persons guilty thereof, whether as principals or accessories,
shall be dealt with, indicted, tried and punished, as principals
and accessories in murder.
By the 2 & 3 W. 4. c. 75. s. 16, the 9 G. 4. respecting the
dissecting of the bodies of murderers, was repealed, and they
were directed to be hung in chains or buried as the court
should direct.
By 4 & 5 W. 4. c. 26 reciting 9 Geo. 4. c. 31, 10 Geo. 4.
c. 34. and the 2 & 3 W. 4. c. 75, it is enacted that so much of
the said recited act made and passed in the ninth year of the
reign of his Majesty King George IV., as authorises the court
to direct that the body of a person convictedof murder, should,
after execution, be hung in chains, and also so much of the said
recited act made and passed in the 10th year of the same reign,
as authorises the court to direct that the body of a person con-
victed of murder, should, after execution, be dissected or hung
in chains, and also so much of the said recited act, made and
passed in the 2d and 3dyears of the reign of his present Majesty,
as provides that in every case of conviction of any prisoner
for murder, the court shall direct such prisoner to be hung in
chains, shall be and the same is thereby repealed.
With regard to murders committed abroad, it is enacted by
the 9 G. 4. c. 31. s. 7, that if any of his Majesty's subjects
shall be charged in England with any murder or manslaughter,
or with being accessory before the fact to any murder, or after
the fact to any murder or manslaughter, the same being re-
spectively committed on land out of the United Kingdom,
whether within the King's dominions or without, it shall be
lawful for any justice of the peace of the county or place where
the person so charged shall be, to take cognizance of the
offence so charged, and to proceed therein as if the same had
been committed within the limits of his ordinary jurisdiction ;
and if any person so charged shall be committed for trial, or
admitted to bail to answer such charge, a commission ot oyer
and terminer under the great seal shall be directed to such
564 Murder.
persons, and into such county or place as shall be appointed
by the lord chancellor, or lord keeper, or lords commissioners
of the great seal, for the speedy trial of any such offender ; and
such persons shall have full power to inquire of, hear, and
determine all such offences, within the county or place limited
in their commission, by such good and lawful men of the said
county or place as shall be returned before them for that
purpose, in the same manner as if the offences had been
actually committed in the said county or place: Provided
always, that if any pters of the realm, or persons entitled to
the privilege of peerage, shall be indicted of any such offences,
by virtue of any comm ssion to be granted as aforesaid, they
shall be tried by their peers in the manner heretofore used :
Provided also, that nothing therein contained shall prevent any
person from being tried in any place out of this kingdom, for
any murder or manslaughter committed out of this kingdom,
in the same manner as such person might have been tried before
the passing of that act.
And by section 8, of the same statute, it is enacted, that
where any person, ,>eing feloniously stricken, poisoned, or
otherwise hurt upon the sea, or at any place out of England,
shall die of such stroke, poisoning, or hurt in England, or being
feloniously stricken, poisoned, or otherwise hurt at any place
in England, shall die of such stroke, poisoning, or hurt, upon
the sea, or at any place out of England, every offence com-
mitted in respect of any such case, whether the same shall
amount to the offence of murder or of man-slaughter, or of being
accessory before the fact to murder, or after the fact to murder
or manslaughter, may be dealt with, inquired of, tried, deter-
mined and punished in the county or place in England in which
such death stroke, poisoning, or hurt shall happen, in the same
manner in all respects, as if such offence had been actually
committed in such county or place.
Proof of a murder having been committed.] The corput
delicti, that a murder has been committed by some one, is essen-
tially necessary to be proved, and Lord Hale advices 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. 13.
Where the death has been occasioned in secrecy, says Mr.
Starkic, a very important preliminary question arises whether it
has not resulted from accident, or from the act of the party
himself. It sometimes happens that a person determined on
self-'iestruction resorts to expedients to conceal his guilt, in
order to save his memory from dishonor, and his property from
forfeiture. Instances alo have occurred where, in doubtful
cases, the surviving relations have used great exertions to
rescue the character of the deceased from ignominy by sub-
Murder. 565
^tantiating a charge of murder. (Cowper's case, 5 St. Tr.)
On the other hand, in frequent instances attempts have been
made by those who have really been guilty of murder, to per-
petrate it in such a manner as to induce a belief that the party
\vasfelo de se. Wlierethe 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 established be
wholly inconsistent and irreconcileable 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 the hypothesis to which such a circum-
stance is essential cannot be true. 2 Stark. Ev. 521, 2d. Ed.
The question, observes Mr. Starkie, whether a person has
died a natural death, as from apoplexy, or a violent one, as from
strangulation, 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 Coicper's case, 5 St. TV.)
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 delibe-
rate and wicked act of the prisoner, it would be unsafe to con-
vict, notwithstanding strong, but merely circumstantial evidence
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 must, in
order to form their own conclusion and opinion, rely partly on
external circumstances. It is, therefore, in all cases expedient
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 which, considering
the position and state of the body, and other circumstances, it
is possible that the death may have been accidentally occa-
sioned. 2 Stark. EC. 521, Id. Ed.
Proof of the murder as to the party killed.] A child in the
womb is considered pars viscerum matris, and not possessing an
individual existence, and cannot therefore, be the subject of mur-
der. Thus, if a woman, quick or great with child, take a potion
to procure abortion, or if another give her such potion, or strike
her, whereby the child within her is killed, it is neither murder
566 Murder.
nor manslaughter. 1 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 indicted 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. Poulton's case, 5 C. fy P. 329. The authority of
this decision was recognized by Park, J. in Brain's case,
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 essential 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 prisoner guilty of murder," and he cited Poulton's case,
(supra,) Brain's case, 6 C. fy P. 349. 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 independent circulation in the
child, orthat it could not be considered as alive for this purpose.
Pulley's case, 5 C. # P. 539.
It is said by Lord Hale, that if the child be born alive and
afterwards dies in consequence of the blows given to the mother,
this is not homicide. 1 Hale, P. C. 433. And see 5 Taunt. 21.
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 List. 50. The latter is generally regarded as the
better opinion, and has been followed by modern text writers.
Hawk. P. C. b.l. c. 31. s. 16. 4 Bl. Com. 198. 1 Russell,
424. See 5 C. ty P. 541. (a). And in conformity with the
same opinion the following case was decided. A person
grossly ignorant practising midwifery, in attempting to deliver
a woman as soon as the head of the child became visible, broke
and compressed the skull, and thereby occasioned its death
shortly after it was born. Being indicted for manslaughter, it
was objected that the child was not wholly born when the
injury was received, but the Judge overruled the objection,
and the prisoner being convicted, the Judges held the convic-
tion right. Senior's case, 1 Moody, C. C. 346.
Where 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
Murder. 567
" Mary Anne," and on two occasions had called it by that
name ; the prisoner having been convicted, the judges held the
conviction right. Smith's case, 6 C. &; P. 151. Where the
deceased was described as " George Lakeman Clark," and it
was-proved that being a bastard child, he had been baptised
" 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.
Clark's case, Russ.fy Ry. 358. With regard to what is suffi-
cient 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." Sheen's
case, 2 C. $ P. 639.
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 evidence
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 support the allegation.
Poulton's case, 5 C. ^ P. 329.
Proof that the prisoner was the parly 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. Circumstantial 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;
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 inducement to commit an act from which our nature is
abhorrent, and the consequence of which is usually so fatal to
the criminal. 2dly, The means and opportunity which he pos-
sessed for the perpetrating the offence. 3dly, 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 adverted to,
is a melancholy instance to shew 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
proof has been given of the death, it is still to be recollected
that a weak, inexperienced, and injudicious person, ignorant of
568 Murder.
the nature of evidence, and unconscious that the truth and sin-
cerity of innocence 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 misrepresentation. 4thly, Circum-
stances which are peculiar to the nature of the crime, such as
the possession of poison, or of an instrument of violence corre-
sponding with that which has been used to perpetrate the crime,
stains of blood upon the dress, or other indications of violence,
2 Stark. Ev. 521, Id Ed.
In order to convict the prisoner of murder, it is not neces-
sary 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 El. Com. 34. Thus, if several persons set out toge-
ther, 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 com-
mitted, 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 afford assistance if
necessary. Therefore, if A. happens to be present at a murder,
but takes no part in it, nor endeavours to prevent it, nor appre-
hends the murderer, this, though highly criminal, will not of
itself rend ar 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 and 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 with committing the act him-
self, and it appears to have been committed in his presence by
a third person, the indictment is sustained. Thus, where the
indictment charged that the prisoner " with both her hands
about the neck of one M. D." suffocated and strangled, &c.
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 suffocation 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." Cutkiit'scase, 5 C. fy P. 121.
In general, if a man in the prosecution of zjelonious intent
kill another, it will be murder. A. shoots at the poultry of B.
Murder. 569
and by accident kills 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 intent ; but if it be done
wantonly and without that intention, it will be barely man-
slaughter. Foster, 259.
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 will not necessarily be guilty of murder. If
three persons, says 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. Duffey's
case, Lewin, C. C. 194.
Three soldiers went 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, collared 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 inno-
cent. 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 resolution against all opposers. This
circumstance, observes Mr. Justice Foster, would have shewn
that the murder was committed in prosecution of their original
purpose. But that not appearing to have been the case,
those in the tree were to be considered as mere trespassers.
Their offence could not be connected with that of him who
committed the murder, foster, 353.
The following is a leading case on this 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.,
v.-as known, but the rest were not known, and a warrant was
obtained from a justice of the peace, to apprehend the said
A. and divers persons unknown, who were altogether 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 justice's
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
570 Murder.
and his assistants, fearing mischief, went away, and being about
five roods from the door, several persons, about fifteen in
number, issued out, and pursued the constable and his assist-
ants. 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 warrant, 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. 1, That 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 Mucally'scase, (9 Co. 67. b.)
2, That in this case all that were present and assisting to 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 com-
pany. 3, That those within the house, if they abetted or
counselled the riot, were in law present, aiding and assisting,
and principals, as well as those that issued out and actually
committed the assault, for it was but within five roods 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 was the
constable, before the man was killed ; because he was the con-
stable 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, com-
manded 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 consented to the assault, as the jury thought. Hissing-
hurst- Iwtise case, 1 Hate, P. C. 461.
Although the criminal intent of a single person, who, without
the knowledge or assent of his companions, is guiltyof homi-
cide, will not involve them in his guilt, yet it is otherwise
where all the party proceed with an intention to commit an
Murder. 571
unlawful act, and with a resolution at the same time to over-
come all opposition by force ; for if in pursuance of such reso-
lution, 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.
Proof of the means of killing.~\ The killing may be by any
of the thousand forms of death by which 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 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 offered of which the law can
take notice. 1 Hale, P. C. 429. Some modes of killing are
enumerated by Lord Hale: 1, By exposing a sick or weak
person to the cold. 2, By laying an impotent 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 noxious and noisome filth at a man's door to poison
him. 1 Hale, P. C. 431.
Forcing 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 that by
such threats and violence she was so terrified that, through
fear of his putting his threats into execution, she threw herself
out of the window, and of the beating and bruises received by
the fall, died. There was strong evidence that the death of
the wife was occasioned bv 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 constrained 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 outof the window himself. The prisoner, how-
ever, 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. Evans's case,
1 Russell, 425.
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 suffers it to go
572 Murder.
abroad, and it kills a man, even this is manslaughter in the
owner. 4 Bl. Com. 197. Palmer, 545. 1 Hale, P.O. 431.
In proving murder by poison, the evidence of medical men
is frequently 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
of attention. In general it may be taken that where the testi-
monies of professional men are affirmative, 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 circum-
stances of ill health ; if he has endeavoured to stifle the inquiry
by prematurely burying the body, and afterwards, on inspec-
tion, signs agreeing with poison are observed, though such as
medical men will not positively affirm could not be owing to
any other cause, the accumulative strength of circumstantial
evidence may be such as to warrant a conviction, since more
cannot be requited than that the charge should be rendered
highly credible from a variety of detached points of proof, and
that supposing poison to have been employed, stronger demon-
strations could not reasonably have been expected, under all
the circumstances, to have been produced. Loft in 1 Glib.
Ev. 302.
With regard to the law of principal and accessory, there
is a distinction between the case of murder by poison and
other modes of k:lling. In general, in order to render a party
guilty as principal, it is necessary, either that he should with
iiis own hand have committed the 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 13. takes it and dies, A., though
absent when the the poison is taken, is a principal. So if A.
had prepared the poison and delivered it to D. to be adminis-
tered to B. as a medicine, and D. in the absence of A. accord-
ingly administered it, not knowing that it was poison, and B.
had died of it, A. would have been guilty of murder as prin-
cipal. 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
principal in the murder, and A. would have been an accessory
before the fact. Foster, 349. Ket. 52. 1 Russell, 23.
Murder. 573
Whether or not the giving false evidence against another
upon a capital charge, with intent to take away his life,
(the party being executed upon such evidence) will amount
to murder 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.
48. The point arose in McDaniel's case, 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 Attorney-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 againit 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 prosecutions against Titus Gates, as shewing that
at that day the offence could not have been considered as
amounting to murder, otherwise Gates would undoubtedly have
been so charged. Foster, 132. Sir W. Blackstone states, on
the contrary, that though the Attorney-general declined in
McDaniel's case, to argue the point of law, yet he has good
grounds to believe it was not from any 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 Bt. Com. 196. (n.) And it is
asserted by Mr. East that he has heard Lord Mansfield say
that the opinions of several of the Judges at the time, and his
own, were strongly in support of the indictment. 1 East, P.
C. 333, (n.) 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 offence as murder.
4 El. 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 paity or those
about him, of unwholesome salves or medicines the party dies,
if it clearly appear that the medicine and not the wound wa
the cause of the death, it seems it is not homicide, but then it
574 Murder.
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
applications 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 thatwound, though it was not the immediate cause of
the death, yet if it were the mediate cause, and the fever or gan-
grene the immediate cause, the wound was the cause of the gan-
grene or fever, and so consequently causa causali. 1 Hale, P.C.
428. Neglect or disorder in the person who receives the wound
will not excuse the person who gave it. Thus it was resolved,
that if one gives wounds to another who neglects the cure of
t,hem, 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.
Rews' case, KeL 26.
Whether the infliction of a blow which, had the party upon
whom it was inflicted been sober, would not have produced
death, will, 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 manslaughter, it appeared that
the prisoner and the deceased had been fighting, and the de-
ceased 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 party had been sober. Hullock B. directed an
acquittal, observing, that where the death was occasioned partly
by a blow and partly by a predisposing circumstance, it was
impossible to apportion the operations of the several causes,
and to say with certainty that the death was immediately oc-
casioned by any one of them in particular. His lordship cited
from his notes the following case (Brown's case, April 1824) :
Indictment charging with killing by striking. The jury found
that the death was occasioned by over-exertion in the fight.
The judges held that the prisoner was entitled to an acquittal.
Johnson's case, Lewin, C. C. 164. It may be doubted how 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 was accelerated,
it seems that the prisoner would be guilty of the felony. See
Martin's case, 5 C. <Sf P. And although a state of intoxication
might render the party more liable to suffer injury from the
blows, yet it is difficult to say that the intoxication was the
cause of his death, any more than the infirmity of age or sick-
ness, which could not, it is quite clear, be so esteemed.
Very few decisions are to be found in our own books on this
subject, and it may, therefore, be allowable to illustrate it by a
reference to a few cases in the Scotch law, which is in principle
Murder. 575
the same as our own on this point, and to the text writers on
the criminal law of that country. It is clear, 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 occupa-
tions, and bear about with him no apparent seeds of his
malady, the assailant 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 Priii. Crim. Law of
Scot. 146, 1 Hume 181. So if a person be wounded, but re-
covers after a long confinement, which induces a consumption
which ultimately 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. Ib. Bur-
nett, 550.
If, says Mr. Alison, the death be owing not to the natural and
accustomed consequences of the injury, butto remote and impro-
bable accidents which have since intervened, the prisoner must
be acquitted. Alison's Prin. Crim. Law of Scot. 147. The pri-
soner was gamekeeper to Lord Blantyre, and in the course of a
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 thatdisorder, he took it, and died in consequence.
Till this supervened the wound bore no peculiarly dangerous
symptoms. The public prosecutor strongly contended 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
prisoner, under the direction of Lords Justices Clerk, Boyle,
and Succoth, was acquitted. Campbell's case, Ibid. In like
manner where the prisoner had thrown a quantity of sul-
phuric acid in the face of the deceased, and produced such
inflammation in the eyes, that bleeding was deemed necessary,
and the orifice made by the surgeon inflamed, and of this the
party died, but not of the injury in the face, the court held
this second injury, produced by a different hand, not so con-
nected with the original violence as to support the charge of
murder, and the prisoner was convicted of assault only.
Macmillan's case. Ib.
If the death be truly owing to the wound, it signifies not
that under more favourable circumstances, and with more
skilful treatment, the fatal result might have been averted.
I Burnett, 551. Alison, 149. Thus, if an assault be made
576 Murder.
which opens an artery, it will be no defence to plead that by
the assistance of a surgeon the wound might have been
staunched and life preserved. 1 Uume, 184. Ali*m, 1;
The prisoner was one of a party of smugglers who had fi
an officer of excise. The wounded man was carried t<
nearest village, where he was attended by a surgeon of the coun
try 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 man might have recovered, but the cour
said that it was for the prisoner to prove, if he could that dealt
ensued ex malo regimine. Edgar's case, Alison, 149 .
true distinction in all such cases is, that if the death was ev]dently
occasioned by grossly erroneous medical treatment, the original
author will not be answerable ; but if it was occasioned from
want merely of the higher skill which can only be commanded
in great towns, he will, because he has wilfully exposed the
deceased to a risk from which practically he had no means of
escaping Accordingly, where the prisoner was indicted for
the culpable homicide 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 inflammation thus oc-
casioned, 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.
Macewun's oise. Ib.
Though death do not ensue for weeks or months after the
injury was received, yet if the wound be severe, and keep in a
regular progression from bad to worse, so that the patient con-
tinually languishes 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.
I Hume 185. Alisons Priiic. GY. Law of Scot. l<Jl. Inus,
where the deceased, a post-boy, was 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, with 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 d< ?th,
the prisoner was convicted of the murder as well as the robbery.
Caldiouit's case, Burnett, 552 (a.) Alison Prinr. 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 pei son killed had been in the prime of youth and
vigour Accordingly; where it appeared that the deceased, a
sic k 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. Ramsay's case.
\ Hume, 183. Alison's Princ. Or. Law oj 'Scot. 149. -
Murder. 577
The same point lately arose in a case in this country. 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
circumstance was observed upon on behalf of the prisoner,
but Mr. Justice James Parke in addressing the jury remarked :
" It is said that the deceased was in a bad state of health, but.
that is perfectly immaterial, as, if the prisoner was so unfortu-
nate as to accelerate her death, he must answer for it." Mar-
tin'* case, 5 C. $ P. 130.
Proof of the means nf killing Variance in statement.] Where
a man is indicted for one species of killing, as by poison, he
cannot be convicted by evidence of a totally different species
of death, as by shooting, starving, or strangling. But if the
means of death proved agree in substance with tho.se charged, it
is sufficient. Thus, where the death is occasioned by any
weapon, the nature and description of that weapon ought to
be stated ; yet if it appear that the party was killed by a dif-
ferent weapon it maintains the indictment, as if a wound or
bruise be alleged to be given with a sword, and it proves to be
with a staff or axe, this difference is immaterial. 1 East. P.
C. 341. 2 Hate, P. C. 185. So if the death be laid to be
by one kind of poisoning and it turns out to be by another. 26.
Where the prisoner was charged with assaulting the prosecutor
with a certain offensive weapon commonly called a " wooden
stuff," with a felonious design to rob him, and it was proved to
be with a stone, the judges, on a conference, held this was suf-
ficient, for the weapons produce the same sort of mischief, VK.
by blows and bruises, and this, they said, would be sufficient
even on an indictment for murder. Sharwin's case, 1 East,
P. C. 341.
So where the indictment (for manslaughter) charged the
wound to have been inflicted by a blow with a hammer, but
there was no direct evidence that the blow had been so inflicted,
and a medical man stated that the injury might have arisen
either from a blow with a hammer, or by the deceased falling
against the key or lock of a door, Mr Justice James Parkt
said in summing up " the kind of instrument is immaterial, it
you think the injury was occasioned by a blow given with a
hammer, or with any other hard substance held in the hand, the
indictment will be sufficiently proved." Martin's case, 5 C. 3f P.
128.
Where the indictment charged that the murder had been
committed by cutting "the throat" of the deceased.it was
ruled that the throat meant what in common parlance was so
called, and that the allegation was proved by showing that the
jugular vein was divided, although the carotid artery .was not
cut, and although the surgeon stated that what he should call
the throat was not cut. Edwards's cafe, 6 C. fy P. 401.
57S Murder.
Where the prisoner was charged " that with both her hands the
neck and throat of the said M. D., she did feloniously &c.,
grasp, squeeze, and press, and by the grasping, &c., did suf-
focate and strangle, "and it appeared that the death was caused
by a hand being held over the mouth of the deceased, it was ruled
that the indictment was supported, the death being proved to
have been occasioned by suffocation. Culkin's case, 5 C'.dif P. 121 .
The indictment stated that the prisoner with a certain piece
of brick struck and beat the deceased, thereby giving him with
the piece of brick aforesaid, one mortal wound, &c. It ap-
peared that the prisoner struck, not with the piece of brick, but
with his fist, and that the deceased fell, from the blow, upon the
piece of brick, and that the fall upon the brick was the cause of his
death. The judges, on a case reserved, were of opinion unani-
mously, that the means of death were not truly stated. AV//u's
case, 1 Moody, C. C, 113. The authority of this decision was
recognized soon afterwards in another case which came before
the judges, under similar circumstances. Thompson's case,
1 Moody, C. C. 139.
An indictment for manslaughter, stated that the deceased
was riding on horseback, and the prisoner struck him with a
stick, and that the deceased, from a well-grounded apprehension
of a further attack upon him, which would have endangered his
life, spurred his horse, whereby it became frightened and threw
the deceased off, giving him a mortal fracture, &c. It ap-
peared that the prisoner struck the deceased with a small
.stick, that the deceased then rode away, the prisoner riding
after him, and that on the deceased spurring his horse, which
was a young one, it winced and threw him. It was objected
for the prisoner, 1, That the fall ought to have been laid as
the cause of the death. 2, That the blow and the frightening
the horse were stated jointly to have been the cause of the death ,
whereas the blow could not have been the cause. 3, That
there was no evidence of the deceased being apprehensive of a
further attack. Parke J. however, overruled all the objections,
and held the evidence sufficient and the prisoner was convicted.
Hickman'scase,5 C.<5f P. 151.
An indictment for manslaughter, charging that the prisonti
" did compel A. B. and C. D. who were working at a certain
windlass to leave the said windlass, and by such compulsion and
force, &c., the deceased was killed," is not supported by evi-
dence that the prisoner was working the windlass with A. B.
and C. D.. and that by his going away they were not strong
enough to work it, and let it go. The words "compel and
force" must be taken to mean active force. Lloyd's case, 1
C. 6$ P. 301.
It is no variance in an indictment for murderto omit tostate the
intermediate process by which death was caused. The indict-
ment charged the prisoner with thrusting divers large quantities
of moss and dirt into the mouth of the deceased , a child, whereby
Murder. 579
it was choaked, suffocated and strangled. The evidence was
that the child was found with moss in its mouth, crammed in
exceedingly hard. A surgeon said that in his opinion the child
did not die immediately of the moss, but that, from the effects
of the moss on the throat, the parts were so much injured as to
prevent it swallowing or breathing. The bruising of the throat
caused the death of the child by closing the passages. The
prisoner being convicted, the judges, on a case reserved, held
the conviction right. They said that as the primary cause of
the suffocation was the forcing the moss into the mouth of the
child, it was not necessary to state in the indictment the inter-
mediate process, viz. the swelling of the passage of the throal
which occasioned the suffocation. Ti/e's case, liu$s. & Ry. 345.
See Webb's case, 1 Moo. $ Rob. 405.
It is not necessary, in an indictment for murder, to describe
the length, breadth, or depth of the wound,. Tomlinson's case,
6 C. &; P. 370.
Proof of malice ia 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 properly spite or malevolence to
the individual in particular, as an evil design 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 un-
usual 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 h ! s 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 Bt. 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
deliberate act the law presumes malice, though no particular
enmity can be proved. And if a man kills another without
any, or without a considerable provocation, the law implies
malice ; for no person, unless of an abandoned heart, would be
guilty of such an act upon a slight or no apparent cause.
Id. 200. The Scotch law resembles our own in this particular,
and the rule is well laid down by Baron Hume, " Our prac-
tice," he says, " does not distinguish between an absolute
purpose to kill and a purpose to do any excessive and grievous
injury to the person, so that if the pannel assault his neighbour,
tneaning to hamstring him or cut out his tongue, or break his
cc 2
580 Murder.
bones, or beat him severely, or within an incli of his life ; ar[
if in the prosecution of this outrageous purpose, he has actually
destroyed his victim, he shall equally die for it, as if he had
run him through the body with a sword. The corrupt dis-
regard of the person 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.
/'rod/ of malice death ensuing in the performance of an
unlawful nr tmntoii <*.] The rule in this case is thus laid
down by Sir Michael Foster. If an action, unlawful, in itself,
be done deliberately and with intention of mischief, or great
bodily harm to particulars, 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 mischiev-
ous intention do not appear, (which is matter of fact to be col-
lectedfrom the circumstances,) and the act was done heedlessly
and incautiously, it will be manslaughter, not accidental death,
because the act which ensued, was unlawful. Foster, 261.
Thus, where an injury intended to be inflicted upon A. by
poison, blows, or other means of death, would, had he sus-
tained it, have been murder ; it will amount to the same
offence, if B. by accident 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 manslaughter ; the fact
will admit of the same alleviation, if 13. should happen to fall
by the blow. Foster, 262. 1 Hale, P. C. 438. So where
two parties meet to fight a deliberate duel, and a stranger
comes to part them, and is killed by one of them, it is murder
in the latter. 1 Hale, P.O. 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 endeavoured to dissuade his wife from giving it to the
child. Saunders 's cose, Plowd. 474. Vide ante p. 169. Such also
was the case of the wife wl j mixed rats-bane 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. l.c.31. s.46.
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
medicines to a woman, (1 Hale, P. C. 429.), and of him
who put 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 misde-
Murder. 581
meanor; for the acts were in their nature malicious and de-
liberate, and necessarily 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 endeavouring to keep the peace and suppress
the affray, he who kills him is guilty of murder, for notwith-
standing it was not his primary intention to commit a felony,
yet inasmuch as he persists in a less offence with so much
obstinacy, 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 cri-
minal as if his intention had been to commit a felony, thvk.
P.C. b. I.e. 31. s.54.
If a person rides a horse known to be used to kick, amongst
a multitude of people, although he only means to divert him-
self, and death ensues in consequence, he will, it is said, be
guilty of murder. Hawk. P.C.b. I.e. 31. s. 61. 1 Lord
Ruyrn. 143. Foster, 261. 1 East, P. C. 231. And if a man,
knowing that people are passing along the street, throw a stone
likely to create danger, or shoot over the house or wall, with
intent to do hurt to people, and some one is consequently
killed, it is murder, on account of the previous malice, though
not directed against any particular individual ; for it is no excuse
that the party was bent on mischief generally ; but if the act
were merely done incautiously, it would only be manslaughter.
1 East, P. C. 231. 1 Hale, P. C. 475. Vide post p. 582. In
all these 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.
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 prohibi-
tum, as (formerly) shooting at game by a person not qualified
to keep a gun for that purpose, the case of him so offending
will fall under the same rule as that 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 Half,
P. C. 39.
Death ensuing in consequence of a trespass committed in
*port 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 (.',. J., in addressing the jury
said, if death ensue as the consequence of a wrongful act which
tlie 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
to do any serious injury in the particular case, or any general
malice, the offence becomes that of murder. In the
582 Murder.
instance the act was one of mere wantonness and sport, but
still the act was wrongful, and was a trespass. Few ton's case,
Lewin, C. C. 179.
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 delin-
quency, and from which no peril to life could have been
reasonably anticipated, it will amount to culpable homicide
only. Alison's Princ^Crim. Lav; 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.
Proof of malice death ensuing in the performance of a
lawful act.] Where death is occasioned by the hand of a party
engaged in the performance of a lawful act, it may amount
either to murder, manslaughter, or mere misadventure, ac-
cording to the circumstances by which it is accompanied.
The most usual illustration of this doctrine is the instance of
workmen throwing stones and rubbish from a house, in the
ordinary course of their business, by which a person underneath
happens to be killed. If they deliberately saw the danger or
betrayed any consciousness oi' 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 probability of persons passing by, it will be man-
slaughter. 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 ac-
cidental death. For though the act itself mig-ht breed danger,
yet the degree of caution requisite being only in proportion to
the apparent necessity of it, and there being no apparent call
for it in the instance put, the rule applies, de non existentibita
at non appurentibus eudem est ratio. So if any person had
been before seen on the spot, but due warning were given, it
will be only misadventure. 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, notwithstand-
ing 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, however
loud. 1 East, P. C. 262. Foster, 262. 1 Hale, P. C. 472.
I HI. Com. 192.
Cases of negligent driving fall under the same consideration^
Murder. 583
?,nd if death ensue it will be murder, manslaughter, or mis-
adventure, according to the caution exercised, and with re-
terence to the place where the injury occurred. It has been
already stated that under circumstances indicating a wanton
and malicious disregard of human life, the offence may
amount even to murder. If there be negligence only in the
driver it will be manslaughter, and if negligence be absent 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 him, it is murder ; if he did not see
the child, it is manslaughter ; if the child ran across the way
and it was impossible to stop the cart before it ran over the
child, it is homicide, per infortunium. 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 man-
slaughter, and not pe>~ 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. A. was driving
his cart with four horses in the highway at Whitechapel. He
being in his cart, and the four horses at a trot, they threw down
a woman who was going the same way, with a burthen upon
her head and killed her. Holt C. J., two other judges, and the
recorder, held this to be misadventure only ; but per Holt C. J. ,
if it had been in a street where people usually passed, it had
been manslaughter. Upon this case Mr. East has made the
following observations : It must be taken for granted from
this note of the case that the accident happened in a highway,
wliere people did not usually pass, for otherwise the circumstance
of the driver being in the cart and going so much faster than is
usual for carriages of that construction, savoured much of
negligence and impropriety ; for it was extremely difficult, if not
impossible, 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 circumstances, 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 ex-
pected, nor is it required, but whoever seeks to excuse himself
from having unfortunately occasioned, by any act of his own,
the death of another, ought at least to show that he took that
care to avoid it, which persons in similar situations are ac-
customed to do. 1 East, P. C. 263. The deceased was
walking along the road in a state of intoxication. The pri-
soner was driving a cart drawn by two horses, without reins.
The horses were cantering, and the prisoner was sitting in front
of the cart. On 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 unusually rapid pare,
584 Murder.
whereby a person is killed, though he calls repeatedly to such
person to get out of the way, if from the rapidity of the driving
or any other cause, the person cannot get out of the way 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.
Walker's case, 1 C. 3f P. 320. \V hat 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. Knight's case, Lewin, C.C.
168. And the same point was ruled by Hullock B. Anon.
Ibid.
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 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 trigger. 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, summumjiis. But, he continues, I think it was not so;
tor 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 the like cases, should be used.
Foster, 264. Mr. Justice Foster mentions a similar case which
occurred before himself " I once upon the circuit tried a maa
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 neighbours, to take a dinner at the house of their
common friend. He carried his gun with him, hoping to meet
with some diversion 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 to church, and in the evening
returned home with his wife and neighbours, bringing his gun
with him, which was carried into the room where his wife was.
He, taking itup, touched the trigger, whenit 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 de-
t'endant, ignorant of what had passed, found it, to all appear-
ance as he had left it. I did not," says Mr. Justice Foster,
" inquire whether the poor man had examined the gun before
he carried it home, but being of opinion, upon the whole evidence
Murder. }&>
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.
Parents, masters, and other persons having authority in
faro 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 circumstances 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. Speaking of homi-
cides of this class, Air. 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 which 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 instruments as may kill
them ; and a bar of iron is not an instrument of correction.
Grey's case, Kel. 64. 1 Russell, 461.
Though the correction exceed the bounds of moderation, yet
the court will pay regard to the nature of the provocation,
where the act is manifestly accompanied with a good intent,
and the instrument is not such as will, in all probability, occa-
sion 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 corrected him. At
length the son, being charged with another theft, and resolutely
denying it, though proved against him, the father in a passion
beat his son by way of chastisement with a rope, by reason ot
which 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 wickedness. The learned judge who tried th
prisoner, after consulting his colleague and the principal counsel
on the circuit, ruled this to be manslaughter only. Anon.
1 East, P.C. 261.
Where death ensues in the case of sports or recreations, such
recreations being innocent and allowable, it falls within the
c c 3
586 Murder,
rule of excusable homicide, because boJily harm is not the
motive on either side, foster, 259. 1 East, P. C. 268.
Therefore persons playing at cudgels, Comb. 408, or foils or
wrestling, Lane's case, 1 East, P. C. 268, are excusable, if
death ensue. Lord Hale appears to be of a different opinion.
He says, regularly, he that voluntarily and knowingly intends
hurt to the person tif a man, though he intends not death, yet if
death ensue, it excuses not from the guilt of murder or man-
slaughter at least, as if A. intends to beat B., but not to kill
him, yet if death ensue, this is not per nnfortnnium, 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 injortunium, as Mr. Dalton, (cop. 90.) seems to doubt
it; and accordingly it was, P.I Car. 2. by all the judges.
upon a special verdict, from Newgate, where two friends
were playing at foils at a fencing school, and one casually
killed the other, resolved to be manslaughter. 1 Hale,
P. C. 472.
The question in these cases appear to be twofold, 1st.
whether the sport was lawful, and 2d, whether the parties en-
gaged in it with a friendly mind, or with intent to do each
other some bodily harm. The cases mentioned by Lord Half-
seem to proceed upon the latter supposition, and on this ground
they are distinguished by Mr. Justice Foster from the case ot
persons who in perfect friendship engage by mutual consent in
recreations for the trial of skill or manhood, or for improve-
ment in the use of arms. Foster, 259, 260. 1 East, 1'.
C. 268.
But if there be dangerous weapons ued 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 man-
slaughter. Sir John Chichester, fencing with his servant,
made a pass at him, which the servant parried off with a bed-
staff. In the heat of the exercise the chape of the scabbard
riew 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 intended 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
itselt, the thrusting at the servant, was unlawful. Ale tin, 12.
1 Hale, P.O. 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 sug-
gested ; 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 manslaughter, if any undue advantage has been taken.
Murder. 587
Thus, if two persons 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.
Though the weapons be of a dangerous nature, yet if they
be not directed by the persons using them against each other,
and so no danger to be reasonably apprehended, if death casu-
ally ensue, it is only misadventure. 1 East, P. C. 269.
Therefore, if a person be shooting at game or buts, or other
lawful object, and a bystander be casually killed, it is onlv
raisadventure. 1 Hale, P. C. 38. 39. 472. 1 East, P. C. 269.
But if the sport or recreation be unlawful, and death ensues
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 Shrove-tide, missed his
aim, and a child looking on, received a blow from the staft',
of which he died, Mr. Justice Foster, (who observes that this
is a barbarous, unmanly custom, productive of great disorders,
and dangerous to bve-standers,) ruled it to be manslaughter.
Foster, 261.
Prize-fights, public 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 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 Ward's case, who was challenged to fight by his adversary,
for a public trial of skill in boxing, and was 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 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 consequence of the blows he received
on this occasion. There was contradictory evidence as to the
prisoner having acting as second. In summing 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 ot
which death ensues, are all guilty of manslaughter, if they en-
588 Murder.
couraged it by their presence ; I mean if they remained present
during the fight. It they were not merely casually passing by,
but stayed at the place, they encouraged it by their presence,
although they did not say or do anything. 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 break -
ing in the ring and striking with their sticks, those who were
merely present are not, by being present, guilty of manslaughter.
The case is at most one of manslaughter only." Murphy's case,
6 C.$f P. 103. It has been ruled, however, that persons present
at a fatal prize fight are not such accomplices as that their
evidence requires confirmation. Ha.rgruve'sca.se,5 C. &; P. 170.
Where death casually ensues in the course of a lawful em-
ployment, and there is a want of due caution on the part of the
person from whom it proceeds, 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
lie 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.
Proof of malice deatli ensuing in the performance of a Lawful
act persons administering medicint*.] Cases of great difficulty
and nicety have arisen with regard to the question of malice.
where medicines have been carelessly or unskillfully admi-
nistered by incompetent persons. The law on this subject i<
thus laid down by Lord Hale " If a physician gives a person
A potion without any intent of doing him any bodily hurt, but
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 I hold their opinion to be
erroneous that think, if he be no licensed surgeon or physician
that occasions this mischance, then it is felony, for physic and
salves were before licensed physicians and surgeons, and
therefore, if they be not licensed according to the statutes, thev
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, P. C. 429.
Upon the latter point Sir William Blackstone appears to con-
cur in opinion with Lord Hale. If a physician or surgeon,
he says, gives his patient a potion or plaster to cure him , which
Murder. 589
contrary to expectation kills him, this is neither murder nor
manslaughter, but misadventure, and he shall not be punished
criminally, however liable he might formerly have been to a civil
action for neglect or ignorance ; but it has been held that if
lie 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 thi*
determination. 4 Bl. Com. c. 14. The correctness of Sir M.
Hale's opinion has been recognised in several late cases.
Thus in Van Butchell's case, 3 C. if P. 632, Hullock B. ruled
that it made no difference 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 ex-
pressed by Parke J. in a subsequent case, in which he observed
that whether the party was licensed or unlicensed is of no con-
sequence except in this respect, that he may be subject to
pecuniary penalties, for acting contrary to charters or acts of
Parliament. Long's case, 4 C. $ P. 398.
But whether the party be licensed or unlicensed, if he dis-
play gross ignorance, or criminal inattention, or culpable rash-
ness, in the treatment of his patient, he is criminally responsible.
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.
Van Butchell's case, 3 C. <3f P. 633, 4 C. <Sf P. 407. 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 Ellenborough said
there has not been a particle of evidence adduced that the
prisoner was guilty of murder, but it was for the jury to consider
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 or the most 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. Williamson's case, 3 C. f P. 635.
This ruling was cited with approbation by Park J. in Long's
case, 4 C. 8; P. 407, where he held that to support the charge
of manslaughter it must appear that there was gross ignorance
or inattention to human life. In Long's case, 4 C. # P. 404,
a case was cited by counsel, as having occurred on the Nor-
thern circuit, where a man who was drunk went and delivered
a woman, who by his mismanagement died, and he was sen-
tenced to six months' imprisonment. And where a person
grossly ignorant undertook to deliver a woman and killed the
590 Murder.
child in the course -of the delivery, it was resolved by the judges
that he was rightly convicted of manslaughter. Senior's case.
1 Moody, C. C. 346.
The rule with regard to the degree of misconduct which
will render a person practising medicine, criminally answer-
able, is thus laid down by Mr. J ustice Bay ley. "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 improper rashness and want of caution. I have no hesi-
tation 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 con-
sequence, he will be liable to a conviction for manslaughter."
Lang's case, 4 C. &; P. 440. 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 corrosive 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
erYect, 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."
Simpson's case, Wilcock on Laws of Med. J'rof. Ap/icndh ,
227, 4 C. <$f P. 407, (n), Lenin, C. C. 172. 'The prisoner
was indicted for manslaughter. It appeared that the deceased,
a child, being affected with a srald head, the prisoner had
directed a plaister to be applied, from the effects of which the
child was supposed to have died. Bolland, B., addressing the
jury, said, " The law, as I am bound to lay it down, as it ha?
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 person, whether he be a regular 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 patientswith care, attention, and assiduity,"
Murder. 591
filler's case, 5 C. ft P. 333. The direction given by Tindal.
C. J. in a case of this kind, where the prisoner was charged
with neglecting to attend and take due 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 shewn such a gross want of care,
or such a gross and culpable want of skill, as any person under-
taking such a charge ought not to be guilty of, and that the
death of the person named in the indictment was caused
thereby." Ferguson's case, Lewin, C. C. 181.
In a case which lately occurred before Lord Lyndhurst, C.B.
upon an indictment for manslaughter (by administering Mo-
rison's pills,) 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 licence. In either case, if a
party, having a competent degree of skill and knowledge,
makes an accidental mistake in his treatment of a patient,
through which death ensues, he is not thereby guilty of man-
slaughter; 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 dangerous remedy to one
labouring under disease, and death ensues in consequence of
that dangerous remedy having been so administered, then he i*
guilty of manslaughter. If I had the least doubt of this position ,
1 might fortify it by referring to the opinion of Lord Ellenborough
in Rex v. Williamson, (ante p. 580.) 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."
H'fbb'scase, 1 Moody ft Rob. 405.
A. chemist, likewise, who negligently supplies a wrong drug,
in consequence of which death ensues, is guilty of man-
slaughter. The apprentice to a chemist, by mistake, delivered
a bottle of laudanum to a customer, who asked for paregoric :
anil a portion of the laudanum being administered to a child,
caused its death. The apprentice being indicted for man-
slaughter, Bayley, J. directed the jury that if they thought
him guilty of negligence, they should find him guilty of the
manslaughter. Tessymond's case, Lewin, C. C. 109.
I'rtxtf of malice intent to do bodily injury death ensuing.]
If a man assault another with intent to do him a bodily injury,
and death ensue, malice, sufficient to constitute murder, will
be presumed, provided the act be of such a nature, as plainly
und in the ordinary course of events, must put the life of the
party in danger. 4 RL Com, 200, A remarkable case, which
592 Murder.
tnay 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 legs 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. Rat's
cafe, Alison's Prin. Cr. Law, Scotl. 4.
Proof of nutlice exposure of infants, &;c. kUiing by neglect,
fe.] Amongst the modes of killing mentioned by Lord Hale,
are the exposing a sick or weak person or infant to the cold,
with 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 th< 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 Juut,
7'. C. 225.
Cases of this kind have arisen, where apprentices or pri-
soners have died in consequence of the want of sufficient food
and necessaries, and where the question has been whether the
law would imply such malice in the master or gaoler, as is
necessary to make the offence murder. The prisoner, Charles
vSquire, and his wife, were both indicted for the murder of a
parish apprentice, bound to the former. Both the prisoners
had used the deceased in a most cruel and barbarous manner,
and had not provided him with sufficient food and nourish-
ment ; 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 re-
ceived. Lawrence, J., upon this evidence was of opinion that
the case was defective 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, who acquitted her ; but the
husband was found guilty, and executed. Squire's case,
1 Kuweit, 426. The not supplying an apprentice with suf-
ficient food is an indictable misdemeanour. Friend's caie.
Ruts. % Ry. 20.
Huggins, the warden of the Fleet, appointed Gibbon his
Murder. 593
'leputy, and Gibbon had a servant, Barnes, whose duty it wa
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, Muggins knew
its condition, having been once present, seen Arne, and turned
away. By reason of the duress of imprisonment, Arne sickened
and died. During the time Gibbons was deputy, Huggina
sometimes acted as warden. These facts appearing on a spe-
cial verdict, the court were clearly of opinion that Barnes was
guilty of murder. They were deliberate acts of cruelty and
enormous violations of the trust reposed by the law in its
ministers of justice. But they thought Muggins not guilty.
It could not be inferred from the bare seeing the deceased once
during his confinement, that Muggins 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. Muggins could not
know the circumstances under which he was placed in the
room against his consent, 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 prin-
cipal would not amount to a revocation of the deputy's autho-
rity. Muggins's case, 2 Str. 882. Foster, 322. l' East, P.
C. 331. So where a gaoler, knowing that a prisoner, infected
with the small-pox, 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. Bainhridge, 2. Str.
856. Foster, 322. 1 East, P. C. 331.
But where the death ensues from incautious neglect,
however culpable, rather than from any actual malice or art-
ful disposition to injure, or obstinate perseverance in doing an
act necessarily attended with danger, regardless of its conse-
quences, 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 apprentice returned
from Bridewell, whither he had been sent for bad behaviour,
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
594 Murder.
boards without any covering, and no medical aid was pro-
cured. 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 re-
covered. There was no evidence of personal violence or want
of sufficient sustenance. The recorder left it to the jury to
consider 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 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 circumstances, find him guilty of
manslaughter, which they accordingly did, and the judges
afterwards approved of the conviction. Selfs case, 1 East,
P. C. 226. 1 Russell, 426.
Proof of malice provocation in general.] It frequently be-
comes 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 indulgence 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/uror
krevis, which, while the frenzy lasts, renders the man deaf to
the voice of reason. The provocation therefore, which ex-
tenuates in the case of homicide, must be something which the
man is conscious of, which he feels and resent.5 at the instant
the fact which he would extenuate is committed, not what time
or accident may afterwards bring to light. Foster, 315.
Wherever death ensues from sudden transport of passion or
:heat of blood, if upon a reasonable provocation, and without
malice, or if upon sudden combat, it will be manslaughter ; if
without such provocation, or the blood 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 provocation,
if it appear by any means that he acted upon express malice.
1 East, P. C. 232.
Where the provocation is sought by the prisoner, it cannot
furnish any defence against the charge of murder. Thus,
where A. and B. having 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
ji. having a difference, A. bade B. take a pin out of his f .\.\)
Murder. 595
sleeve, intending thereby to take an occasion to strike or
wound B. ; B. did so accordingly, on which A. struck him a
blow of which he died. It was held that this was wilful
murder. 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.
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, expres-
sive 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 to 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, and against his- intention, does
kill, in which 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 provocation as would abate the presumption of
malice in the party killing. Brain's case, 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 provocation, 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 probably supposes con-
siderable violence and insult in the jostling. 1 Russell,
435. (a). 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 provoca-
tion to reduce it to manslaughter. 1 Hale, P. C, 457. In
the following case the distinction taken by Mr. Justice Foster,
in the passage cited as the commencement of the present para-
graph came in question. A. drinking in an ale-house, 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 propounded
to the judges at Serjeant's Inn; 1, Whether bare words, or
words of this nature, will amount to such a provocation as will
extenuate the offence into manslaughter. 2, Admitting that it
596 Murder.
would not, in case there had been a striking with such an instru-
ment, as necessarily would have caused death, as stabbing
with a sword, or pistolling, yet whether this striking, which was
BO improbable to cause death, will not alter the case. The
judges not being unanimous 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 within the reason of
such a provocation, as would make the offence manslaughter
only. Lord Morley's case, 1 Hale, P. C. 456. But in ano-
ther 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 East, P. C. 233. 1 Russell 435.
Proof of malice provocation ossaj</(.] Although, under
circumstances, 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 matter of course, reduce the
crime to manslaughter. For where the punishment inflicted
for a slight transgression of any sort is outrageous in its nature,
either in the manner or continuance of it, and beyond all pro-
portion to the offence, it is rather to be considered as the effect
of a brutal and diabolical malignity than of human frailty, and
is one of the symptoms of that which the law denominates
malice, and the crime will amount to murder notwithstanding
such provocation. Barbarity, says Lord Holt, (Keate's case,
Comb. 408,) will often make malice. 1 East, P. C. 234.
1 Russell, 434.
There being an affray in the streets, the prisoner, a soldier,
ran towards the combatants. The deceased, seeing him, ex-
claimed, " You will not murder the man will you ?" The
prisoner replying "what is that to you, you bitch," the de-
ceased gave him a box on the ear, upon which the prisoner
struck her on the breast with the pommel of his sword. She
fled, and the prisoner pursuing her, stabbed her in the back.
Holt C. J. was at 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 re-
turn for the blow on the ear. But it afterwards appearing
that the deceased had struck the prisoner a blow in the face
with an iron patten, which drew a great deal of blood, it was
held only manslaughter. Stedman's case, Foster, 292. 1 East,
I'. C. 234. The smart of the wound, adds Mr. Justice Foster,
and the effusion of the blood might possibly keep his indigna-
tion boiling till the moment of the fact. Ibid. A quarrel
arising between some soldiers and a number of keelmen at
Murder. 597
Sandgate, a violent affray 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, he struck at them
with the flat side, and as they fled pursued them. The other
soldier in the meantime 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 bran-
dished his sword, and bid them keep off. At this time the de-
ceased, 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 went 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 provocation, and the
blood was heated in the contest ; nor was it in self-defence,
because there was no inevitable necessity to excuse the killing
in that manner. Brown's case, 1 East, P. C. 245.
A gentleman named Luttrell being arrested for a small debt,
prevailed 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 lodgings about civility money, and Luttrell went up stairs
to fetch money for the payment of debt and costs. He soon re-
turned, with a brace of loaded pistols in his bosom, which, on
the importunity of his servant, he laid down on the table, saying
lie 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, where-
upon 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's wound.
This was held manslaughter, by reason of the first assault with
the cane. Such is the report of the case given by Sir J.
Strange, upon which Mr. Justice Foster has observed that an
extraordinary case it is that all these circumstances of aggra-
tion, 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 (6 St. Tr. 195,) there are some circum-
stances 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 that happened did not appear ia
598 Murder.
evidence. 2, When Luttrell laid the pistols on the table, he
declared that he brought them because he would not be forced
out of his lodgings. 3, He threatened the officers several times.
4, One of the officers appeared to have been wounded in the
hand with a pistol shot, (both the pistols being discharged in
the affray,) and slightly on the wrist with some sharp pointed
weapon, and the other was slightly wounded in the hand with
a like weapon. 5, The evidence touching Luttrell's begging
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 endeavoured 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 the circumstances of pro-
ducing 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. Reason's case, Foster, 293. 1 Str.
499. 1 East, P. C. 320.
Two soldiers, having a recruit in a room under their care,
who wished to leave them, one of them stationed himself at the
door with his sword drawn, to prevent ingress or egress, and u
person wishing to enter the room (which was in a public-
house, kept by his father,) was resisted by the soldier at the
door, whereupon a struggle ensuiug, the other soldier, coming
out, struck the party struggling, with his bayonet in the back.
Being indicted for stabbing with intent to murder, and con-
victed, the judges, 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. Long-
den's case, Russ. fy Ry. 228.
Under this head may be mentioned the cases of peace officer?
endeavouring to arrest without a proper authority, the killing
of whom will not, unless the party can retreat, amount to
murder ; the attempt to make an unlawful arrest being con-
sidered a sufficient provocation. Curvan's case, 1 Moody,
C. C. 132 ; and see all the cases stated, post.
Proof of malice provocation instrument used.] In con-
sidering the question of malice where death has ensued after
provocation given by the deceased in assaulting the prisoner,
or upon other provocation, 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 result, 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 calculated
Murder. 5gg'
to give a severe wound, that presumption will be wanting.
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 be'mg satisfactory, and do not lay down any general
rule with regard to the nature of the weapons. In one in-
stance, Mr. Justice Foster takes a nice distinction with regard to
the size of a cudgel. The observations arise upon Rowley's case,
12 Rep. 87, 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 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 manslaughter,
because done in sudden heat and passion. " Surely," says
Mr. Justice Foster, "the provocation was not very grievous.
The boy had fought with one who happened to be an overmatch
tor 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 dispatched him with a hedge-
stake, or any other deadly weapon, or by repeated blows with
the cudgel, it would, in my opinion, have been murder ; since
any of these circumstances would have been a plain indication
of the mulitia, the mischievous, vindictive motive before ex-
plained. But with regard to these circumstances, with what
weapon, or to what degree the child was beaten, Cokeis totally
silent. But Croke (Cro. Jac. 296,) sets the case in a much
clearer light. His words are : " Rowley struck the child with
a small cudgel [Godbold, 182, coils it a rod,] of which stroke he
afterwards died. I think," continues Foster, "it maybe fairly
collected from Croke's manner of speaking, that the accident
happened by a. single stroke with a cudgel not likely to destroy,
and that death did not immediately ensue. The stroke wa?
given in heat of blood, and not with any of the circumstances
which import the malitia, the malignity of heart attending the
fact already explained, and therefore manslaughter. I observe
Lord Raymond lays great stress on the circumstance, that the
stroke was with a cudgel not likely to kill." Ld. Raym. 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 ver-
dict that the prisoner had directed her daughter-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 which the child soon
afterwards died. The jury found that the stool was of suf-
ficient size and weight to give a mortal blow, but that the
prisoner, when she threw it, did not intend to kill the deceased.
600 Murder.
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 objections were taken to the
special verdict,) the case, on account of its difficulty, was re-
ferred 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. Pazet'scase, I 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 manslaughter, because the prisoner could not,
from the size of the instrument made use of, have had any
intention to take away the boy's life. Turner's case, Ld.
Raum. 144, 1499. The prisoner, a butcher, seeing some of
his sheep getting through the hurdles of their pen, ran towards
the boy who was tending 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. Mares, J. said to the jury, you will consider whether
the stake, which was lying on the ground, was the first thing
the prisoner saw in the heat of his passion, is or is not, undei
such circumstances, and in such a situation, an improper instru-
ment for the purposes of correction. For the using a weapon
from which death is likely to ensue, imports a mischievous dis-
position, and the law implies that a degree of malice attended
the act, which, if death actually happen, will be murder.
Therefore, if you should think the stake an improper instru-
ment, you will further consider whether it was used with an
intent to kill. If you think it was, you must find the prisoner
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. Wigy's case, 1 Leach,
378, (n). A. finding a trespasser on his land, in the first
transport of his passion, 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-
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 indicted 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 apprentice, upon which he immediately
went off and in passing a work-bench took up a whittle (a
sharp pointed knife with a long handle) and threw it at the ap-
prentice, whose body it entered and killed him. Hullock Q.
Murder. 601
said to the Jury, if without adequate provocation a person
strikes another with a weapon likely to occasion death, al-
though 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. observed that had he been indicted
for murder, the evidence would have sustained the charge.
Langstdffe's case, Lewin, C. C. 162.
Proof of malice provocation rmist be recent.] In order to
rebut the evidence of malice it must appear that the provoca-
tion was recent, for in every case of homicide, however great
the provocation may be, if there be sufficient time for passion
to subside, and for reason to interpose, such homicide will be
murder. Foster, 296. With respect to the interval of time
allowed for passion to subside, it has been observed that it is
much easier to lay down rules for determining what cases are
without the limits, than how far exactly those limits extend.
It must be remembered that in these cases the immediate ob-
ject of inquiry is, whether the suspension of reason arising from
sudden passion continued from the time of the provocation
received, to the very instant of the mortal stroke given, for if,
from any circumstance whatever, it appears that the party
reflected, deliberated, or cooled, any time before the mortal
stroke given, or if, in legal presumption, there was time or op-
portunity 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. Raym. 1496. The fol-
lowing are stated as general circumstances amounting to
evidence of malice in disproof of the party's having acted
under the influence of passion only. If, between the pro-
vocation received and the stroke given, the party giving the
stroke fall in to other discourse or diversions, and continue so
engaged a reasonable time for cooling ; or if he take up and
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 oft" from the subject of his provocation ; again, if it appear
that he meditated upon his revenge, or used any trick or cir-
cumvention to effect 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 provocation
and the stroke, less allowance ought to be made for any excess
of retaliation, either in the instrument or the manner of it. The
more length of time intervening between the injury and the
retaliation adds very much to the presumption of malice in law,
and is in some cases evidence in itself of deliberation. 1 Enst,
602 Murder.
P. C. 252. A leading case on this subject is that of Major
Oneby, who was indicted 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 half-pence, 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, it was an impertinent thing to set half-pence, and he
was an impertinent puppy for so doing ; to which the deceased
answered, whoever 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 in-
terposing, 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 words, but you were the aggressor, but 1 think
we may pass it over," and at the same time, offered his hand to
the prisoner, who replied, " No, damn you, 1 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 something to say to
you," on which the deceased came back. The door was im-
mediately 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 shoulders, and that he received three slight
wounds in the fight, and the deceased being asked on his death-
bed whether he received his wound in a manner among swords-
men called fair, answered, " I think I did." It was further
found, that from the throwing of the bottle there was no re-
conciliation 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. Oneby's case, 2 Sir. 766,
2 Lrf. 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 hid been shut the parties were
upon an equal footing, in point of preparation, 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,
Murder. 603
was express malice, after the interposition of the company, and
the parties had all sat down again for an hour. Under these
circumstances the court were of opinion that the prisoner had
had reasonable time for cooling, after which, upon an offer of re-
conciliation from the deceased, he had made use of that bitter and
deliberate expression, he would have his blood! And again the pri-
soner remaining in the room after the rest of the company had
retired, and calling back the deceased by the contemptuous
appellation of young man, on pretence of having something to
say to him, altogether shewed such strong proof of deliber-
ation and coolness, as precluded 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 cir-
cumstances, for it must have been implied, according to Maw-
fridge's case, (Kel. 128,) that he acted upon malice, having
in the first instance, before any provocation received, and with-
out 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 illustrate 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 prisoner leaving the
house, he said to the deceased, " he would 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 pantry, and thence to return hastily back 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 purpose 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 again
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 exclaimed, 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 deceased a second time,
he said he had served him right, and instantly ran back to his
lodging, and was heard, as before, to pass hastily through his
bed-room and kitchen to the pan'ry, and thence back to the
D D 2
604 Murder.
bed-room, where he went to bed. Ts'o 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 principal question for their consideration would be, whether
the mortal wound was given by the prisoner, while smarting
under a provocation so recent 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 man-
slaughter 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. That, in determining this question, the most
favourable circumstance for the prisoner, was the shortness of
time which elapsed between the original quarrel and the stab-
bing 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 shewn thought, contrivance,
and design, in the mode of possessing himself of this weapon,
and again replacing 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 ungovern-
able passion. The jury found the prisoner guilty of^ murder.
II in/ward's case, 6 C. ty P. 157.
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 provo-
cation will not reduce the offence from murder to manslaughter.
In such a case, not even previous blows or struggling will re-
duce the offence to homicide. 1 Russell, 440. This rule is illus-
trated by the following case : llichard Mason was indicted and
convicted forthe wilful murder of William Mason, his brother ;
but execution was respited to take the opinion of the judges,
upon a doubt whether, upon the circumstances given in evi-
dence, the offence amounted to murder or manslaughter. The
prisoner, with the deceased and some neighbours, 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 in witli the pri-
soner, and they fought a short time in good earnest; but the
Murder. 605
company interposing, they were soon parted. The prisoner
then quitted the room in anger ; and when he got into the
-treet, 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
<lo 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 door-post, his lelt-
hand in his bosom, and a cudgel in his 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 answeted, "1 will not come in." " Why will you
not ?" said the deceased. The prisoner replied, " Perhaps yon
will 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 yon will play at cudgels
with me." The prisoner answered, " I am uot afiaid to do
so, if you 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, and with it gave the prisoner two blows
on the shoulder. The prisoner immediately 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 pa^i at
him with the sword, but missed him. The deceased thereupon
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 con-
ference, unanimously agreed, " that there are in this case
so many circumstances of deliberate malice and deep re-
venge on the prisoner's part, that his offence cannot be less
than wilful murder." Mason's case, Fast. 132. 1 East, P. C.
239.
Proof f malice cases c>f mutual combat.'] The rules, with
repaid to" the proof of malice in cases 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
<loes 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.
606 Murder.
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 aprovocation, as to lessen the crime into manslaughter,
were yet of this opinion, that if A. gives indecent language to
13., 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 fiist stroke, and
after a blow received from A., B. gives him a mortal stroke,
this is but manslaughter ; according to the proverb, the second
blow makes the affray ; and this, adds Lord Hale, was the
opinion of myself and others. 1 Hide, P. C. 456. Foster, 295.
But if B. had drawn his sword and made a pass at A., hi*
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 adver-
sary' i sword undrawn, showed that he sought his blood, and
A.'s endeavour to defend himself, which he had a right to
do, will not excuse B. But if B. had first drawn and for-
borne 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 in a case of mutual
combat, the rule was laid down by Mr. Justice Bayley, in the
following case. 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 clasped 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 tliat he might use it during the affray, 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. Anderson's case, 1 Russell, 447.
Another late case exhibited nearly similar circumstances.
The prisoner returning home was overtaken by the prosecutor.
They were both intoxicated, and a quarrel ensuing, the prose-
cutor 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 him. On this, the prisoner,
who had taken out his knife, gave the prosecutor a cut across
Murder. 607
the abdomen. The prisoner being indicted for cutting the
prosecutor with intent to murder him, Park, 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, notwith-
standing the previous fighting between them on equal terms,
and the prosecutor having struck the first blow, he was of
opinion that if death had ensued, the crime of the prisoner
would have been murder ; or whether the prisoner bond fide
ran away from the prosecutor with intent to escape from an
adversary of superior strength, but finding himself pursued,
drew his knife to defend himself; and in the latter case, if the
prosecutor had been killed, it would have been manslaughter
only. Kessal's case, 1 C. # P. 437.
In the following case, the use of a deadly weapon during a
fight was held not to be evidence of malice, the prisoner hap-
pening 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, who was a shoemaker, lived
in the neighbourhood 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 prevented by the mother,
wlio 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 called out to him as he passed, " Are not you an aggra-
vating rascal V 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 roiled 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 the deceased so hard with his other hand that he could not
get away. The deceased, however, 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 judg-
ment was respited, to take the opinion of the judges, who (in
the absence of Ue 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 deceased,
with a malicious design to provoke him, and under that colour
608 Murder.
to revenge his former quarrel by stabbing him, which would
have made it murder. On the contrary, he had composed him-
self to work at his own door, in a summer's evening ; and when
the deceased passed by, provoked him neither by word nor
gesture. The deceased began first by ill language, and after-
wards 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 concealed from the by-standeis;
though the deceased in his passion did not perceive it till they
were both down ; and, though the prisoner was not justifiable
in using such a weapon on such an occasion, yet, it being
already in his hand, and the attack upon him very violent and
sudden, they thought it only amounted to manslaughter, and
he was recommended for a pardon. Snow's case, 1 East,
P. C. 244, 245.
Not only will the premeditated use of deadly weapons, in
rases 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 prisoner was indicted for manslaughter, and
the evidence was, that he and the deceased were " fighting up
and down," a brutal and savage practice in the north of Eng-
land. Bayley J. said to the jury, Fighting ' up and down' is
calculated to produce death, and the foot is an instrument likely
to produce death. If death happens in a fight of this descrip-
tion, it is murder, and not manslaughter. The prisoner being
convicted, Bayley J. told him, that had he been charged with
murder, the evidence adduced would have sustained the indict-
ment. Thorpe's case, Lewin, C. C. 171.
In order to bring the case within the rule relating to mutual
combats, so as to lessen the crime to manslaughter, it must ap-
pear 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 sudden, but the party assaulted
must be put 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 Bayley,
" 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 in-
strument, 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. ]\ hiteley's case, Lewin, C. C.
173.
The lapse of time, also, which has taken place between the
Murder. 609
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 Harring-
ton. 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 intellects,
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 receiv-
ing it strikes with a deadly weapon, reduce the crime from mur-
der to manslaughter. But it depends upon the time elapsing
between the blow and the injury ; and also, whether the injury
was inflicted with an instrument at the moment in the possession
of the party, or whether 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
ot his knowledge. Unless attention is particularly called to it, it
seems to me that evidence of time is very uncertain. The pri-
soner may have been absent less than five minutes. There is no
evidence that he went any where 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 pri-
soner with respect to each other. If there had been any old
grudge between them, then the crime which the prisoner com-
mitted might be murder. But it seems they had been long in
habits of intimacy, and on the very night in question, abcut an
hour before the blow, they had been drinking in a friendly way
together. If you think that there was not time and interval suf-
ficient for the passion 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 man-
slaughter. But if you think that the act was the act of a wicked,
malicious, and diabolical mind, (which, under the circum-
stances, I should think you hardly would,) then you will find
D D 5
BIO Murder.
him guilty of minder. The jury found the prisoner guilty ofr
manslaughter. Lynch'i case, 5 C. & P. 324.
In cases of mutual combat, evidence is frequently given ol
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 finding malice. Thus, where two peisons who have
formerly fought in malice, are afterwards 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. 6. 1. c. 31. . 30 ; unless it appear that the reconciliation
was pretended only. 1 Hale, P. C. 452. If, says Lord Hale,
A. sues B., or threatens to sue him, this alone is not sufficient
evidence of malice prepense, though possibly they meet and
fall out and fight, and one kills the other, if it happens upon
sudden provocation ; but this may by circumstances be height-
ened into malice prepense, as if A., without any other provo-
cation, strikes B. upon account of that diffeience in law, or
lies in wait to kill him, or comes with a resolution to strike or
kill him. 1 Hale, P. C.451.
Proof of malice cases of mutual combat duelling.] Deli-
berate 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 be drawn into a duel, not on a motive so
criminal, but merely upon the punctilio of what the swonlsiiit u
falsely call honour, that will not excuse him. For he that
deliberately seeks the blood of another, in a private quarrel, .u:ts
in defiance of all laws, human and divine, whatever his motive
may be. But if upon a sudden quarrel the parties fight on the
spot, or if they presently fetch their weapons, and go into the
field and fight, and one of them falls, it will be only man-
slaughter, because it may be presumed that the blood never
cooled. It will however be otherwise, if they appoint to fight
the next day, or even upon the same day, at such an interval, as
that the passion might have subsided, or if from any circum-
stance attending the case, it may be reasonably concluded that
their judgment had actually controlled the first transport ot
passion before they engaged. The same rule will hold, if alter
a quarrel they fall into other discourse or diversions, and ron-
linue so engaged a icasonable time for cooling. Foster, '2Q1.
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 wasfiist 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 vindic ate
his reputation, or that he meant not to kill but only to disarm
his adversary, for since he deliberately engaged in an act higlilv
Murder. 61 1
unlawful, he must at his peiil 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 light, and A. strikes B., and pursues him so closely, that B.
in safeguard of his own life kills A., this is murder in B., be-
cause 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, quaere, adds Lord
Hale, whether if B. had really and bon&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. after all this kills A. in sell-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. Ibid. Blackstone has noticed
this doubt, but has given no opinion upon the subject ; 4 Com.
185 ; but Mr. East lias argued at some length in support of the
proposition, that such homicide 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,
P. C. 285. But if B. does not retreat voluntarily, but is driven
to retreat by A., in such case the killing would be murder.
Thus a is said by Hawkins, that if a man assault another with
malice prepense, and alter be driven by him to the wall, and
kill him there, in his own defence, he is guilty of murder in
respect of his first intent. Hairk. P. C. 6. 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 pai ty killed is not also guilty of the same offence.
for the latter position, Lord Hale cites the book of 22 Edw. 3.
t'li/oii. 262, but he adds, that he thinks the law was too much
strained in that case, and that though a great, misdemeanor, it
is not murder. 1 Hale, P. C. 442.
Proof of malice peace officers and others killed in performing
their duty whtit persons are whltin the rt</e.] The protection
is not confined to the person of the officer only. Every one
lending his assistance to an officer of the peace, for the keeping
of the peace, whether commanded to do so or not, is under the
same protection as the officer. Foster, 309. 1 Hale, P. C.
463.
Nor is the protection confined to the ordinary ministers of
justice or their assistants. It extends, with some limitations, to
private persons interposing to prevent mischief in case of an,
affray, or endeavouring to apprehend felons, or persons who
612 Murder.
have given a dangerous wound, and bring them to justice.
For those persons are discharging a duty required of them by
law. Foster, 309. But in the case of private persons endea-
vouring to bring felons to justice, this caution must be ob-
served viz. that a felony has been actually committed, for if
not, no suspicion, however well founded, will bring the person
so interposing within the protection of the law ; and supposing a
felony to have been actually committed, and the party inter-
posing to arrest a wrong person, he will not be entitled to pro-
tection. Foster, 318.
There is a distinction between this case and that of a peace
officer, who has a warrant against a particular person by name,
though that person may happen to be innocent of the offence
with whichthe is charged. If A., being a peace officer, has a
warrant from a proper magistrate for apprehending B. by name,
upon a charge of felony, or if B. stands indicted for felony, or
if the hue and cry be levied against B. by name, in these cases,
if B., though innocent, flies, or turns and resists, and in the
struggle or pursuit is killed by A., or any person joining in the
hue and cry, the person so killing will be indemnified. And on
the other hand, if A. or any other person joining in the hue and
cry is killed by B., or any of his accomplices joining in that
outrage, it will be murder. For A. and those joining with him
were in this instance in the discharge of a duty the law requires
from them, and subject to punishment, in case of a wilful
neglect of it. Foster, 318.
Proof of malice peace officers killed, or killing others in per-
formance of their duty their authority.] It will be convenient
to consider the evidence relating to the conduct of peace officers
in the execution of their duty, under the following heads :
1, their authority or warrant ; 2, what notice of their authority
is required ; 3, the mode of executing their authority ; and 4,
the mode, where an officer is killed, in which that killing was
effected.
With regard to the authority of a peace officer, and those
assisting him, they are justified in apprehending, without
any warrant, all persons who have committed a felony,
or have been indicted for felony, and if in the pursuit, the
felon be killed, where he cannot be otherwise overtaken, the
homicide is justifiable. 1 East, P. C. 298, 300. So a peace
officer may justify an arrest on a charge of felony, on reasonable
suspicion, although it should afterwards appear that no felony
has been committed. Samuel v. Payne, Dougl. 359. 1 East,
}'. C. 301. The constable, it is observed by Lord Hale, can-
not judge whether the party be guilty or not, till he come to his
trial, which cannot be till he be apprehended, which he thinks
a sufficient reason for justifying him in killing the party ac-
cused, if he fly from the anest, and cannot otherwise be taken,
Murder. 613
however innocent he may afterwards appear to have been.
2 Hale, P. C. 84, 89, 93. 1 LW, P. C. 301. All that can
in reason be required of the peace officer is, that he should in-
form himself, as well as he can, of the circumstances, and that
the relation of the party who gave him information, should ap-
pear credible. 1 East, P. C. 302. But in order to justify a
peace officer in making an arrest, upon suspicion of felony, on
the charge of another, it must appear that the party arrested was
charged with felony. The prisoner having quarrelled with his
master about wages, the latter threatened to send for a con-
stable. The prisoner went up stairs for his tools, and said no
constable should stop him, and coming down, he drew from his
sleeve a naked knife, saying he would do for the first bloody
constable that offered to stop him ; that he was ready to die,
and would have a life before he lost his own, and making a
flourishing motion with his knife, he put it in his sleeve again,
and left, the shop. The master then applied to a constable, but
made no charge, only saying he suspected the prisoner had tools
of his, and was leaving his work undone. The constable told
him he would take him, if the master would give him in charge,
upon which the master took the constable to the place in which
the prisoner was, (a privy) and said " That is the man, I give you
in charge of him." The constable then said to the prisoner, "My
good fellow, your master gives you in charge to me, you must
go with me." The prisoner, without speaking, stabbed the con-
stable with a knife under the left breast, and attempted to make
three other blows. Being indicted for maliciously stabbing the
constable, and convicted, a case was reserved for the opinion of
the judges, the majority of whom held, that as the actual arrest
would have been illegal, an attempt to make it, when the pri-
soner was in such a situation that he could not get away, and
when the waiting to give notice might have enabled the con-
stable to complete the arrest, was such a provocation as, if death
had ensued, would have made the case manslaughter only, and
that there the conviction was wrong. Ilolroyd J., and Bur-
rough J., thought otherwise. Thomson's case, 1 Moody, C, C.
80. So in the following case, (which was an indictment under
the 43 G. 3, for cutting the prosecutor, who had assisted the
constable), the charge upon which the constable and the prose-
cutor acted, was held to be not sufficient to justify the arrest.
A peison travelling on the highway told the constable that a
man coming on the road had been ill-using him, and charged
the constable, in the prisoner's hearing, to take him before a ma-
gistrate for so misusing him, on which the constable meeting
the prisoner passing along the highway, ordered him to stop, for
insulting a man on the road, and told him he was his prisoner,
ordering the prosecutor to assist him. The prisoner being in
custody, attempted to escape, but being pursued by the prose-
cutor, gave him the cut in the face, for which he was indicted
614 Murder.
and convicted. On a case reserved, the judges were of opinion
that the original arrest was illegal, and that the recaption would
also have been illegal ; that the case would not have been
murder if deatli had ensued, and that the prisoner was conse-
quently entitled to an acquittal. Cm-van's case, 1 Moody, C. C.
132. But in order to justify the officer, the charge need not
contain the same accurate description of the offence, as would
be required in an indictment. Thus, where the prisoner was
delivered into the custody of a constable, who was told that it
was because he had a forged note in his possession, and the
prisoner shot at, and wounded the constable, and was thereupon
indicted for that offence, it was held, on a reference to the judges,
that the conviction was right. They were of opinion, that
though the charge on which the prisoner was taken into custody,
viz. the having a forged note in his possession, without more,
was defective, still that defect was immaterial ; that it was not
necessary that the charge should contain the same accurate de-
scription of the offence as an indictment, and that it must be
considered as imputing to the prisoner a g"Hty possession.
Ford's case, Russ. fy Ru. 329.
At common law, both peace officers and private persons are
justified, without a warrant, in apprehending and detaining,
until they can be carried before a magistrate, all persons found
attempting to commit a felony. Hunt's case, 1 Mooily, C.
C. 93.
So at common law, either a constable or a private person
may interpose, without warrant, to prevent a breach of the peace,
and if he be killed in endeavouring to part those whom he sees
fighting, the person by whom he is killed, is guilty of murdei,
and cannot excuse himself by alleging that what he did was in
a sudden affray, in the heat of blood, for he who carries his re-
sentment so high as not only to execute his revenge against
those who have affronted him, but even against such as have no
otherwise offended him, than by doing their duty, and endea-
vouring to restrain him by breaking through his, shows such
an obstinate contempt of the law, that he is no more to be
favoured, than if he had acted in cool blood. Hawk. I'. C. b. 1.
c. 31. s. 48.
But. whether a constable or other peace officer is warranted
in arresting a person upon a charge by another, of a mere breach
of the peace, after the affray is ended, without a special warrant
from a magistrate, is a point which has occasioned some doubt.
According to some authorities, the officer may arrest the party
on the charge of another, though the affray is over, for the pur-
pose of bringing him before a justice, to find security for his
appearance. 2 Hate, P. C. 90. Handcoch v. Sandham, WU-
Hams v. Dempsey, 1 East, P. C. 306. (n.) But the better opinion
is said to be the other way. 1 F.ust, P. C. 305. Hawk. b. 2.
c. 12. s. 20. 2 Russell, 506. See Timothy v. Simpson, 1 C. M.& R>
Murder. 615
757. It seems, however, that if one person threatens to kill
another, who complains to a constable, the latter may, in order
to avoid the present danger, arrest -the party, and detain him till
he can conveniently bring him before a justice of the peace.
2 Hale, P. C. 88. This power is grounded on the duty of the
officer, to prevent a probable felony, and must be governed by the
same rules which apply to that case. 1 East, P. C. 306.
According to Lord Hale, a peace-officer may arrest night-
walkers or persons unduly armed, who will not yield themselves,
and if they fly or resist, and the officer, in endeavouring to arrest
them, kills them, it is not felony, though the parties be innocent.
2 Hale, P. C. 85, 97. But unless there were a reasonable sus-
picion of felony in such a case, it may be a matter of doubt at
this day, says Mr. East, whether so great a degree of severity
would be either justifiable or necessary, especially in case of mere
flight. 1 East, P. C.303. I none case it was held that the appre-
hension of a person in the night, as a night-walker and disorderly
person, though by a lawful officer, would be illegal, if the per-
son arrested was innocent, and there were no reasonable grounds
to mislead the officer. Tootsy's case, 2 Lord Ruytn. 1301. And
Lord Holt is reported to have said, that constables had made a
practice of taking up people only for walking the streets, but
lie knew not whence they had such an authority. 2 Hale,
P. C. 89. (note.) In a late case of an action for false imprison-
ment, it appeared that the plaintiff was returning home late from
a party, when a constable seized him as a disorderly person, and
carried him before the captain of the watch (the defendant),
who, upon the information of the constable, sent him to the
House of Correction till the following morning. The defendant
justified under a local act, which gave power to apprehend all
ttiglit-waikers, malefactors, and suspicious persons. But Bay-
ley, J., said this was no defence to the action ; that by night-
walkers was meant such persons as are in the habit of being out
at night for some wicked purpose, and that there was no evidence
to show that the plaintiff was a malefactor or suspicious person.
\Vation v. Carr, Lewin, C. C. 6.
It is said in one case that watchmen and beadles have power
at common law to arrest and detain in prison for examination,
persons walking in the streets at night, where there is reasonable
ground to suspect of felony, although there is no proof of a felony
having been committed. Lawrence v. Hedger, 3 Taunt. 14.
This case, however, does not appear to extend beyond the rule
already laid down, that every peace officer has authority, upon
a reasonable suspicion of felony, to arrest a party, whether
by day or by night. It is said by Hawkins, that it is held by
some that any private person may lawfully arrest a suspicious
night-walker, and detain him till it be made to appear that he
is a person of good reputation ; and also that it has been ad-
judged that any one may apprehend a common notorious cheat
616 Murder.
going about the country with false dice, and being actually
caught playing with them, in Older to have him brought before
a justice of the peace. Hau-k. P. C. 6. 2, c. 13, *. 20, and see
the 5 G. 4. c. 83, s. 6, stated post.
An officer is not justified in killing, to prevent an escape, where
the party is in custody on a charge of misdemeanor. The
piisoner, an excise officer, had apprehended a smuggler, who,
after his capture, assaulted the officer, and beat him severely,
when the former fired a pistol at his legs, and warned him to
keep off. The smuggler, however, rushed forwards, when the
prisoner again fired at and killed him. Holroyd, J. said to the
jury, an officer must not kill for an escape when the party is in
custody for a misdemeanor, but if the prisoner had reasonable
grounds for believing himself to be in peril of his own life, or of
bodily harm, and no other weapon was at hand to make use of,
or if he was rendered incapable of using such weapon by the
previous violence he had suffered, then he was justified. Former's
case, Lewin, C. C. 187.
By various statutes, peace officers and others are authorised
to arrest certain offenders without warrants. The most impor-
tant of these acts are those of 7 & 8 Geo. 4. c. 29, and c. 30.
By the former (s. 63) it is enacted, That any person found com-
mitting any offence punishable either by indictment or upon
summary conviction, by virtue of that act, except only the offence
of angling in the day time, may be immediately apprehended
without a warrant by any peace officer, or by the owner of the
property on or with respect to which the offence shall be com-
mitted, or by his servant, or any person authorised by him, and
forthwith taken before some neighbouring justice of the peace.
The 7 & 8 G. 4. c. 30, s. 28, contains a provision in the same
words, applicable to offences committed against that act.
By the metropolitan police act, 10 G. 4. c. 44, s. 7, it is
enacted, That it shall be lawful for any man belonging to the
said police force, during the time of his being on duty, to appre-
hend all loose, idle, and disorderly persons, whom he shall find
disturbing the public peace, or whom he shall have just cause to
suspect of any evil designs, and all persons whom he shall find,
rietween sunset and the hour of eight in the forenoon, lying in
any highway, yard, or other place, or loitering therein, and not
giving a satisfactory account of themselves, and to deliver any
person so apprehended into the custody of the constable ap-
pointed under that act, who shall be in attendance at the nearest
watch-house, in order that such person may be secured until he
can be brought before a justice of the peace, to be dealt with
according to law, or may give bail for his appearance before a
justice of the peace, if the constable shall deem it prudent to
take bail in the manner therein-after mentioned.
Under this statute it has been ruled that a police constable is
not justified in laying hold of, pushing along the highway, and
Murder. 617
ordering to be off, a person found by him conversing in a crowd
with another, merely because that other is known as a reputed
thief. Slacken v. Carter, 4 C. % P. 477.
Whether persons in his Majesty's navy, acting in the impress-
ment of seamen, are to be held to enjoy, in the execution of
their duty, the same privileges as a peace officer acting by virtue
of a warrant, does not seem to be well settled. It is clear, how-
ever, that in order to justify the act there must be a warrant, and
that it must be executed by a proper officer. It is, however, laid
down by Mr. East, that if there be a proper officer with a legal
warrant to impress, and the party endeavoured 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 struggle, it seems justifiable, provided
the resistance could not be otherwise overcome ; and the officer
need not give way, but may freely repel force by force. Ibid.
The following is one of the few cases to be found on this sub-
ject, and it can scarcely be said to recognize any principle witli
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 seivice onboard.
The boat steered away in another direction ; and the officer pur-
sued in another vessel for three hours, firing several shots at her
with a musket loaded with ba\\,for the purpose of hitting the
kailyards, and bringing the boat to, which was found to be the
usual way, oneof which shots unfortunately killed Collyer. The
court said it was impossible foritto be more than manslaughter.
This, it may he 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 not warranted by law, though no bodily hurt was
intended, it was manslaughter ; and the defendant was burned
in the hand. Phillip's case, Coicper, 832. 1 East, P. C. 308.
The following cases only establish the position, that the im-
pressment of persons without warrant, 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 press gang, 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 press gang
being killed, in the furtherance of that service, by a mariner, in
a vessel which they had boarded with intent to press such per-
sons as they could meet with, it was ruled to be only man-
618 Murder.
slaughter, though no personal violence had been offered by the
press gang. Broadfoot's case, Foster, 154. So where the mate
of a ship and a party of sailors, without the captain (who had
the warrant) 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 afterwards, it was adjudged murder. Dixmi's
cane, 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 upon that ground, as upon the ground
that neither the captain nor the lieutenant was present. 1 East,
P. C. 313. A press warrant had been directed to Lieutenant
Wm. Palmer, enjoining all mayors, &c. 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, although it was proved to be the con-
stant custom of the navy to delegate the authority in this man-
ner. Borthwick's case, 1 Dougl. 207. 1 East, P. C. 313.
A sailor in the king's navy, on duty as a sentinel, has no
authority to fire upon persons approaching the ship against
orders. The prisoner was sentinel on board the Achille, when
she was paying off. The orders to him from the preceding sen-
tinel 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 was his duty, and
they found that he did. J3ut on a case reserved, the judges re-
solved unanimously, that it was nevertheless, murder. They
thought it, however, a proper case for a 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 up
a mutiny, the sentinel would have been justified. Thomas' 's case ,
1 Russell, 509.
A question sometimes arises, where peace officers are in the per-
formance of their duty, of conflicting authority, namely, whether
they are to be subjected to the interference of other peace officers, on
a rhargeor supposition of their having themselves been guilty of an
offence in the execution of their duty. A case of this kind is
put by Loid Hale. A. and B. being constables of the vill of
C., and a riot happening between seveial persons, A. joined
one party, and commanded the adverse party to keep the peace,
and B. joined the other party, and in like manner commanded
tl.e adverse party to keep the peace. The assistants and party
Murder. 619
of A. in the tumult killed B. This, adds Lord Hale, seems
but manslaughter, and not murder, inasmuch as the officers
and their assistants were engaged one against the other, and
one had as much authority as the other. 1 Hale, P. C. 460.
It is remarked upon this passage, by Mr. East, that perhaps it
would have .been better expressed to have said, that inasmuch
as they acted not with a view so much to keep the peace as in
the nature of partisans to the different parties, they acted alto-
gether out of the scope of their character as peace officers, and
without any authority whatever. For if one having a com-
petent authority, issue a lawful command, it is not in the power
of any other having an equal authority to issue a command con-
trary to the first, for that would be to legalise confusion and
disorder. 1 East, P. C. 304. And this doctrine seems to be
supported by another passage from Lord Hale, who says, that if
the sheriff have a writ of possession against the house and
lands of A., and A. pretending it to be a riot upon him, gain
the constable of the vill to assist him and to suppress the sheriff
or his bailiffs, and in the conflict the constable be killed, this
is not so much as manslaughter, but if any of the sheriff's
officers were killed, it would be murder, because the constable
had no authority to encounter the sheriff's proceeding when
acting by virtue of the king's writ. 1 Hale, P. C. 460. The
sheriff's officers having apprehended a man by virtue of a writ,
a mob attempted to rescue him. One of the bailiffs being
assaulted, struck one of the assailants, a woman, and for some
time it was thought he had killed her ; whereupon the constable
was sent for and charged with the custody of the bailiff. The
bailiffs, on the other hand, gave the constable notice of their
authority, and represented the violence offered to them, not-
withstanding which, he proceeded to take them into custody on
the charge of murder. The woman having recovered, they were
discharged next morning. The constable being indicted for the
assault, Heath J. was of opinion that he and his assistants were
guilty of an assault, and a verdict was found accordingly.
Anon. 1 East, P. C. 305.
A peace officer is to be considered as acting strictly in dis-
charge of his duty, not only while executing the process en-
trusted 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, eundo, morando, et redeundo. And,
therefore, if 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 Half., P. C. 463. Upon
the same principle, if he meets with opposition by the way, and
is killed before he comes to the place, (such opposition being
intended to prevent his performing his duty, a fact to be col-
lected from the evidence,) it will also amount to murder.
F,,ster, 309.
C20 Murder.
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, P. C. 458. 1 East, P. C.
314. So where a bailiff attempted to execute a writ without a
non omittim clause, within an exclusive liberty, Holroyd, J.
held him a trespasser, and the defendant who had wounded
him in resisting, and who was indicted for maliciously killing
him, was acquitted. Mead's case, 2 Stark. K. P. C. 203.
But if the wanant 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 vill, that is sufficient. 1 East, P. C. 314. Hawk.
P. C. t>. 2. c. 13. s. 27. By statute 5 G. 4. c. 18, reciting,
that warrants addressed to constables, &c., of parishes, 6cc.,
in their character of, and as constables, &c., of such respective
parishes, &c., cannot be lawfully executed by them out of the
precincts theteof respectively, it is enacted, that it shall be law-
ful to and for each and everv constable, and to and for each
and every headborough, tithing-man. borsholder, or other
peace officer, for every parish, township, hamlet, or place,
to execute any warrant or warrants of any justice or justices
of the peace, or of any magistrate or magistrates, within any
parish, hamlet, township, or place, situate, lying, or being
within that jurisdiction for which such justice or justices,
magistrate or magistrates, shall have acted when granting such
warrant or warrants, or when backing or indorsing any such
warrant or warrants, in such and the like manner, as if such
wanant or warrants had been addressed to such constable,
headborough, tithing-man, borsholder, or other peace officer,
specially, by his name, or names, and notwithstanding the
parish, township, hamlet, or place, in which such warrant or
warrants shall be executed, shall not be the parish, township,
hamlet, or place, for which he shall be constable, lieadhorough,
tithing-man, or borsholder, or other peace-officer, provided that
the same be within the jurisdiction of the justice or justices,
magistrate or magistrates, so granting such warrant or warrants,
or within the jurisdiction of the justice or justices, magistrate,
or magistrates, by whom any such warrant or warrants shall be
backed or indorsed.
In general whuie it becomes necessary, in order to show the
character of the offence, to prove that the deceased, or the
prosecutor, or other person was a constable, it will be sufficient
to prove that he acted in that character, which will be primd facie
evidence of his regular appointment, without its production.
Vide ante, p. 7, 14.
Where it becomes necessary to show the warrant or writ
upon which a constable or other officer has acted, it is sufficient
Murder. C2 1
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, c\~r.
upon which it issued. Mead's case, 2 Stark. N. P. C. 205.
2 Stark. Ev. 518, 2d ed. Where it is requisite 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 acquitted on a charge of murder for want of such
evidence. 2 Stark. Ev. 519, 2ri ed.
Proof of malice peace officers killed or killing others in per-
formance of their duty their authority regularity of process.]
Where a peace officer, or other person, having the execution of
process, cannot justify without a reliance on such process, it
must appear that it is legal. But by this, it is only to be
understood 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 therefore, 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 sufficient, upon an indictment for the murder, to produce
the vrrit or warrant, without showing the judgment or decree.
Rogers's case, Foster, 312. So in case of a warrant obtained
from a magistrate by gross imposition, and false information
touching the matters suggested in it. Ciirtis's case, 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 it
be under the seal of the justice, 6cc. 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 t!>e
demand in the one case, or the party's innocence in the other,
will afford no matter of alleviation for killing the officer ; for
every man is bound to submit himself to the regular course of
justice. 1 East. P. C. 310. 1 Hale, P. C. 457.
But if the process be detective in the frame of it, as if there
be a mistake 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
622 Murder.
whose liberty is invaded. Pouter, 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 would
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-sheriffs
custom was to deliver to Ueacle, sometimes blank warrants,
sometimes blank pieces of paper, under the seal of the office, to
be afterwards 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. Stockley's case, 1 East,
P. C. 310. So where the name of another 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.
Stevenson's cane, 19 .St. Tr. 846. But where the naine of an
officer is inserted, before the warrant is sent out of the sheriffs
office, it seems the arrest will not be illegal, on the ground that
the warrant was scaled before the name of the officer was
inserted. 1 Russell, 513. 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 G. 3. c. 58, and convicted, the judges
held the conviction right. Harris's case, 1 Russell, 513. But
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 attempting to make the
arrest was killed, it was held that this was murder in the
party killing. Per Lord Kenyan, R. v. Inhab. of Winwick,
8 T. R. 454.
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 by-stander, as will
extenuate his guilt in killing the officer, in order to set the party
free, or prevent the arrest 1 In the following case it was held,
by seven of the judges against five, that it was such a pro-
vocation. One Bray, constable of St. Margaret's, Westminster,
came into St. Paul's, Covent Garden, and without warrant
took up one Ann Dekins, as a disorderly person, though she
was innocent. The prisoners, strangers to Dekins, meeting her
Murder. 623
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 Covent-Garden. Soon after-
wards the prisoners drew their swords, and assaulted Bray, in
order to get the woman discharged. 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 acted
without any authority ; but that one thought showing his staff
was sufficient, and that with respect to the prisoners, he was
to be considered 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 pro-
vocation to by-standers ; 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 man-
slaughter, 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 imprison-
ment of the woman, and to rescue one who was unlawfully
restrained of her liberty. Too/ei/'s case, 2 Lord Raym. 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 the first meeiing,
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 ; that there
was no pretence of a rescue ; for, before the second encountei,
the woman had been lodged in the round-house, which ihe
soldiers could not hope to force ; so that the second assault
upon the constable seemed rather to be grounded upon resent-
ment, 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 the 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 very late case also, upon Toi'leu'* ca-e
being cited, Alderson, J. observed that it had been overruled.
Warner's case, 1 Moody, C. C. 388.
The majority of the judges, in the preceding case, appear to
624 Murder.
have grounded their opinion upon two former decisions. The
first of these is thus stated by Kelyng. Berry and two others
pressed a man without authority. The man fjuietly 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, winch the pri-
soner and his companions said was no warrant, and immediately
drawing their swords to rescue the impressed man, thrust at
Berry. 'On this, Berry and his two companions drew their
swords, and a fight ensued, in which Hugget killed Berry.
Hugget's case, Kel. 69. Lord Hale's report o}' this case is more
brief. A press-master seized B. for a soldier, and with the as-
sistance of C. laid hold on 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 was but manslaughter. 1 Hale, P. C. 465. The judges
were, however, divided in opinion, four holding that it was mur-
der, eight that it was manslaughter. Foster, 314. Mr. Justice
Foster is inclined to rest the authority of this case upon the
ground of its having been a sudden quarrel and affray, causing
a combat between the prisoner and the assistant of the press-
master ; and he observes, 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 op-
pression towards individuals might be supposed to give to the
by-standers. He admits, however, that the case, as reported in
Kelyiig, 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 com-
passion, to attempt a rescue, faster, 314. The other case,
referred loin Toolty'i cute, was that of Sir Ilemy 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 murder and manslaughter. Sir H.
Ferrers' s case, Cm. Car. 371. Upon this case, Mr. Justice
Foster observes, that from the report it does not appear 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 underwent some discussion in a later case.
The prisone'r was tried at the Old Bailey, for the murder of an
assistant to a constable, who had cpme to arrest a man named
Farmello, (with whom the prisoner cohabited,) as a disorderly
person, under 19 G. 2. c. 10. Farmello, though not an object
of the act, made no resistance, but the prisoner immediately, on
the constable and his assistant requiring Farmello to go along
Murder. 625
with them, without any request to desist, 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 entered 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 man-
slaughter. The offence also might have been of a different
complexion in the eye of the law, if the prisoner had been the
lawful wife 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 required Farmello to go with them, and without saying a
word to prevent the intended arrest, stabbed the assistant, she
was guilty of murder. He then adverted to Hugget's case, and
Tootey's case, (supra,) and observed, that the circumstances
there were extremely different from those of the present case.
Mr. Justice Gould, and Mr. Justice Ashurst, concurred 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 manslaughter only. Adey's case, 1 Leach,
206, 1 East, P. C. 329. (H.)
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 confessed, says Mr. East, that the
limits between both are no where accurately defined. And,
after all, the nearer or more remote connexion of the 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 fur-
nishing any precise rule of law grounded on such a distinction.
1 East, P. C. 292. 1 Russell, 500.
Proof of malice cases of peace-officers killed, or killing others,
in the performance of their duty notice of their authority.]
With regard to persons who, in right of their offices, are con-
servators 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 an
affray, imagine that they came to take a part in it. But in these
626 Murder.
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 with what intent he interposes. And if the
officer be within his proper district, and known or generally ac-
knowledged 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 day-time. In the night, some further
notification is necessary, and commanding the peace, or using
words of the like import, notifying his business, will be suffi-
cient. 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 at-
tend at the leet, and are consequently bound to take notice that
he is a constable; 1 Hute, P. C. 461; and in such case,
the officer, in making the arrest, is not bound to show the war-
rant. Id. 459. But if the constable be appointed in some other
way, from which the notoriety of his character could not be pre-
sumed, some other circumstances would be required to found the
presumption of knowledge. And in the night-lime, some notifi-
cation 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-
jeants-at-mace in the execution of an escape warrant, had been
killed, a point was reserved for the opinion of the judges, whe-
ther or not sufficient notice of the character in which the con-
stables 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 surrender, otherwise they
should break open the door. In proceeding to do so, the pri-
soner killed one of the Serjeant's assistants. Nine of the judges
were of opinion that no precise form of words was 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 pro-
per authority. The judges who differed, thought that the
officers ought to have declared in an explicit manner what sort
of 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 prisoner had not due notice
that they came under the authority of a warrant grounded on x a
breach of the peace ; and they concluded, that, for want of
this due notice, the officers were not to be considered as acting
in the discharge of their duty. Curtis' s- case, 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 say-
ing I arrest ymi, which is of itself sufficient notice ; and it is at
Murder. 627
ilie 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.
Mackallii'f case, 9 Co. 69. b. 1 Russell, 518. It is said also,
that a piivate bailiff ought to show the warrant upon which he
acts, if it is demanded. 1 Rnssell, 518, citing 1 Hale, P. C.
583, 458, 459. It seems, however, that this must be under -
st od of a demand made, after submitting to ihe arrest. The
expression in Hale ("459,) is, "such person must show his war-
rant, or signify the contents 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 au-
thority.
Proof of malice cases of peace-officers killed or killing others
in tlie execution of their duty mode of executing their dwti/.]
In cases of felony actually committed", if the offender will not
suffer himself to be arrested, but stands upon his own defence,
or flies, so that he cannot possibly be apprehended 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. ft. 1. c. 28. s. 11. Where, says Mr. Justice
Foster, a felony is committed, and the felon flies from justice,
and a dangerous wound is given, it is the duty of every man to
use his best endeavours for preventing an escape ; and if, in the
pursuit, the party flying is killed, where he cannot be ot/iennV
overtaken, it is justifiable homicide. Foster, 271.
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 purpose, 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, however, that a constable, or other
peace-officer, is bound to arrest a person indicted of felony,
without a warrant, and that, therefore, 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 war-
rant, to apprehend a person on suspicion oflelonu will be justi-
fied in killing him, in case he cannot otherwise apprehend him,
is a case requiring great consideration. Even in the instance of
breaking open the outward 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, 629; still less
could he be justified in a matter concerning life. However,
according to Loid Hale, the officer would be justified in killing
the party 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 mis-
EE2
628 Murder.
demeanors 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, 471. Or rather, according to Mr. Justice Foster, it
will be murder or manslaughter, as circumstances may vary the
case. For if the 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 weapon riot likely to
kill, and death should ensue, it seems that this would amount
to no more than manslaughter, 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.
If persons engaged in a riot or forcible entry or detainer,
stand in their defence, and continue the force in opposition to
the command of a justice of the peace, &c. or resist such justice
endeavouring to arrest them, the killing of them may be justi-
fied, and so perhaps may the killing of dangerous rioters by any
private persons, who cannot otherwise suppress 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 manner, 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 assail-
ant, it is adjudged homicide in self defence. 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 reason-
able necessity. Therefore where a collector, having distrained
for a 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 suffi-
cient 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 over, and the neces-
sity 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.
Murder. 629
In respect to 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. c. 7.
s. 6. all process wanants, &c. served or executed on a Sunday,
are void, except in cases of treason, felony, or breach of the
peace, and therefore an arrest on any other account, made on
that day, is the same as if done without any authority at all.
1 East, P. C. 324.
I Q executing their, duty, it often becomes a question in what
cases constables and other peace officers are justified in break-
ing open windows and doors. In no case whatever is an officer
justified in breaking an outward door, or window, 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.
Where a felony has been actually committed, or a dangerous
wound given, a peace officer may justify breaking an entrance
door to apprehend the offender without any warrant, but in
cases 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. fc.2. c. 14. s. 7. 1 Russell, 520. Sedvide
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. 6.2.
c. 14. s. 3. So upon a capias utlagatum, or capias 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.
Hairk. 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 entrance, and being refused, and the affray
continuing, may break open the doors to keep the peace. 2
Hale, P. C. 95. Haick. P. C. b. 2. c. 14. s. 8. And if there
be disorderly drinking or noise in a house, at an unseasonable
hour of 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 suppress the disorder. 2
Hale, P. C. 95. 1 East, P. C. 322. So 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 such a case without a magistrate's warrant, and
it is said, that at least there must be some circumstance of
G30 Murder.
extraordinary violence to justify him in so doing. 1 Russell,
273, CM.)
In civil suits an officer cannot justify the breaking open an
outward door or window to execute the process ; if he do break
it open, he is a trespasser. In such case, therefore, if the occu-
pier resist the officer, and in the struggle kill him, it is only man-
slaughter. 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 house. 1 Hale, P. C. 458. This last instance, says
Mr. East, which is set in opposition to the second, must be un-
derstood to include at least a reasonable ground of suspicion
that the party broke the house with a felonious intent, and that
the party did not know or had reason to believe that he was only
a trespasser. 1 East, P. C. 321, 322.
The privilege is confined to the miter 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
him 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 doois or windows to search for them, without
demanding admission. Per Gibbs, J. Hutchison v. Birch, 4
Taunt. 619. But it seems that if the party against whom the
process has issued be not within the house at the time, the officer
must demand admittance before he will be justified in breaking
open an inner door. Ratdiffe v. Burton, 3 Bos. ^ Pul. 223.
So if the house be that of a stranger, the justification of the offi-
cer will depend upon the fact of the goods 01 the person, against
whom he is proceeding, being in the house at the time. Cooke
v. Birt, 5 Taunt. 765. Johnson v. Leigh, 6 Taunt. 240. 1 lius-
tell, 521.
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 pans, the lower hatch being closed,
and the higher open. A struggle ensued between the officer 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. Baker's case, 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
occupier or any of his family, who have their domestic or ordi-
nary residence there, are the objects of the arrest ; and if a
stranger, whose ordinary residence is elsewhere, upon pursuit,
Murder. 631
takes refuge in the house of another, such house is no castle of
Ins, and he cannot claim the benefit of sanctuary in it. Foster,
-320, 3'21, 1 East, P. C. 323. But this must be taken subject
to the limitation already expressed with regard to breaking open
inner doors in such cases, viz. that the officer will only be
justified by the fact of the person sought being found there.
Ante, p. 630, 1 East, P. C. 324.
The privilege is also confined to arrests in the first instance ;
for if a man legally arrested (and laying hands on the pri-
soner, and pronouncing words of arrest, constitute an actual ar-
rest), 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, having first given due notice of his busi-
ness, 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 Hate, P. C. 459. Foster,
320. 1 East, P. C. 324.
Proof itf malice cases of officers killed or killing others in the
execution of their duty mode (where an officer is killed) in which
that killing has been effected.] It is a matter of very serious
consideration, whether in all cases where a peace officer or other
person is killed, while attempting to enforce an illegal warrant,
such killing shall, under circumstances of great cruelty or unne-
cessary violence, be deemed to amount to manslaughter only.
In Car tit's case, Fester, 135, ante, p. 626, the prisoner 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 shop door, struck one of them on the head with an axe, and
killed him. This was held murder, and a few of the judges were
of opinion that even if the officers could not have justified break-
ing 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 by-stander,
yet surely the knocking a man's brains out, orcleaving him down
with an axe, on so slight a provocation, savoured rather of brutal
rage, or, to speak more propeily, of diabolical mischief, than of
human frailty, and it ought always to be remembered, that in
all cases of homicide upon sudden provocation, the law indulges
to human frailty, and to that alone. So in Stockley's case, ante,
p. 622, 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, independently of the legality of the warrant. 1 East,
P. C.311.
When a bailiff, having a warrant to arrest a man, pressed
632 Murder.
early into his chamber with violence, but not mentioning his busi-
ness, 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 declaring 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 bailiffdisregarding the threat, 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 manslaughter, 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.
Cook's case, 1 Hale, P. C. 458, Cro. Car. 537, W.Jones, 429.
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 requires some qualification. If it be possible for
the party resisting to effect his object with a less degree of vio-
lence 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 reduced so manslaughter. In
Thomson's case, 1 Moody, C. C. 80, ante, p. 613, where the offi-
cer was about to make an arrest on an insufficient charge, the
judges adverted to the fact that the prisoner was in such a situa-
tion 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 unnecessary 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 mur-
der. So also where, as in Stockley's case, (ante, p. 622), and
Curtis's case, (ante, p. 626), the party appears to have acted
from molives of express malice, there seems to be no reason for
withdrawing such cases from the operation of the general rule,
{vide ante, p. 604), that provocation will not justify the party
killing, or prevent his offence 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 attempting it exactly on the same footing
as any other wrong-doer." 1 East, P. C. 328.
It may be remarked that this question is fully decided in the
Scotch law, the rule being as follows : In resisting irregular
or defective warrabts, or warrants executed in an irregular way,
Murder. 633
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
tor 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
lower crime than murder. 1 Hume, 250. The distinction ap-
pears to be, says Mr. Alison, that the Scotch law reprobates
the immediate assumption of lethal weapons in resisting an illegal
warrant, and will hold it as murder if death ensue by such im-
mediate use of these, the more especially if the informality or
error was not known to the party resisting ; whereas the Eng-
lish practice makes such allowance for the irritation consequent
upon the irregular interference with liberty, that it accounts
death inflicted under such circumstances as manslaughter only.
Alison's Princ. Cr. Law of Scot I. 28.
In case of death ensuing, where resistance is made to offi-
cers in the execution of their duty, it sometimes becomes a
question how far the acts of third persons, who take a part in
such resistance, or attempt to rescue the prisoner, shall be held
to affect the latter. If the party who is arrested yield him-
self, and make no resistance, but others endeavour 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 ; otherwise, if he do any
act to countenance the violence of the rescuers. Sta7iley's case,
Kel. 87, 1 Russell, 450. 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 refusing 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 com-
pany, and made a common resistance, and one animated the
other, all those who were of the company in the same field,
though at a distance from Jackson, were all principals, r/i.
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. was not engaged in the
affair, after he parted from B., it was held that this was mur-
der 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 a matter of fact, for the jury in these cases, to determine
E EO
TG34 Murder.
in what character the third party intervened. If he interfered
for the purpose of aiding the person in custody to rescue him-
self, and in so doing killed the bailiff, it would be murder,
but if, not knowing the cause of the struggle, he inter-
posed with intent to prevent mischief, it would not amount
to murder. 1 East, P. C. 318, 1 Russell, 450, See Kel. 86,
Sid. 159.
Proof of malice private persons, killed or killing others, in
apprehending them.'] The rules regarding the protection of
private persons who take upon themselves to arrest offenders, is
much more confined than that which is applicable to peace offi-
cers and others, who act only in the execution of their duty.
It must, however, be remembered, that where a private person
lends his assistance to a constable, whether commanded to do
so or not, he is under the same protection as the officer himself.
Foster, 309.
So in cases of felony actually committed, or a dangerous
wound given, private persons may apprehend without a warrant,
and will be protected, so that the killing of them in executing
that duty, will be murder ; but it is otherwise, where there is
merely a reasonable suspicion of a felony, ante, p. 560, 612.
Whether or not a private person ought to enjoy the protection
extended to peace officers, where he proceeds to arrest a person
who stands indicted of felony, does not appear to be well
settled. Lord Hale inclines to the opinion that the protection
does not extend to a private person in such case, because a per-
son innocent may he indicted, and because there is another way
of bringing him to answer, viz. process of capias to the sheriff,
who is a known responsible officer. 2 Hale, P. C. 84. The
reasoning of Mr. East, however, is rather in favour of the pro-
tection. It may be urged, he observes, that if the fact of the
indictment found against the party be known to those who en-
deavour to arrest him, in order to bring him to justice, it cannot
be truly said, that they act upon their own private suspicion or
authority, and therefore they ought to have equal protection
with the ordinary ministers of the law. At any rate, it is a
good cause of arrest by private persons if it may be made with-
out the death of the felon. (Dalton, c. 170. s. 5.) And if the
fact of the prisoner's guilt be necessary for their complete justifi-
cation, the bill of indictment found by the grand jury would (he
conceives) for that purpose be primd facie evidence of the fact,
till the contrary should be proved. 1 East, P. C. 300.
There is one class of misdemeanors in which private persons
are justified in interposing, and are under the same protection
as peace officers, namely, in case of sudden affrays to part the
combatants, and to prevent mischief; but in these cases they
m ust ive express notice of their friendly intent, and if the party
interposing with such notice, is killed by the affrayers, it wiJl
.Warder. 635
be murder in the party killing. Foster, 272, 311. And it is
said by Hawkins, that perhaps private persons may justify the
killing of dangerous rioters, when they cannot otherwise sup-
press them or defend themselves from them, inasmuch as every
person seems to be authorised by law, to arm himself for such
purposes. Hawk. P. C. b. I. c. 28. s. 14. And this was so
resolved by all the judges in Easter Term, 39 Eliz., though they
thought it more discreet for any one in such a case to attend
and assist the king's officer in so doing. Poph. 121. 1 East,
P. C. 304. It is said by Hawkins, that at common law every
private person may arrest any suspicious night walker, and detain
him till he give a good account of himself. Hawk. P. C. b. 2.
c. 13. s. 6. But it is doubtful how far such a power is vested
even in peace officers, (vide ante, p. 615,) and it is still more
doubtful with regard to private persons. See 1 Russell, 506.
In general, in cases of misdemeanor, except in those above-
mentioned, a private person will not be justified in apprehending
the offender, and if in attempting to apprehend him he kill him,
it will be murder. The neighbourhood of Hammersmith had
been alarmed by what was supposed to be a ghost. The pri-
soner went out with a loaded gun to take the ghost, and upon
meeting with a person dressed in white, immediately shot him.
Aiacdonald, C. B., Kooke, and Lawrence, Js., were clear that
this was murder, as the person who appeared to be a ghost, was
only guilty of a misdemeanor, and no one might kill him,
although he could not otherwise be taken. The jury, however,
brought in a verdict of manslaughter ; but the Court said that
they could not receive that verdict, and told the jury that if they
believed the evidence, they must find the prisoner guilty of mur-
der : and that if they did not believe the evidence, they should
acquit the prisoner. The jury found the prisoner guilty, and
sentence was pronounced, but he was afterwards reprieved.
^i/uili'scase, 1 Russell, 459. 4 Bl. Com. 201, (n.)
By various statutes, private persons are autiiorised to make
arrests, as the owners of property injured, and their servants,
under the 7 & 8 G. 4. cc. 29 & 30, ante, p. 616.
Gamekeepers, &c. have authority to arrest in certain cases
by stat. 9 G. 4. c. 69. s. 2, by which it is enacted, that
where any person shall be found upon any land, committing any
such offence as is thereinbefore mentioned, it shall be lawful for
the owner or occupier of such land, or for any person having a
right or reputed 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 therein mentioned, or any person assisting such game-
keeper 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 therefiom, and to deliver him as
soon as may be into the custody of a peace officer, in order to his
630 Murder.
being conveyed before two justices of the peace, and in case
such offender shall assault or offer any violence with any gun,
cross-bow, fire arms, bludgeon, stick, club, or other offensive
weapon whatsoever, towards any persons thereby authorised to
seize or apprehend him, he shall, whether it be his first, second,
or any other offence, be guilty of a misdemeanor, &c.
Under this statute it has been held, that a gamekeeper, &c.,
is entitled to arrest a party for an offence under the 9th section,
though the above clause (s. 2,) speaks only of offences therein-
before mentioned, for an offence under s. 9, is an offence also
under s. 1. Ball's case, 1 Moody, 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 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 pro-
secutor. The prisoner was indicted under the 9 G. 4. c. 31 , for
shooting at the prosecutor with intent to kill, &c. 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 man-
slaughter 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 illegally brought into operation against
him, it would have been murder if death had ensued. He told
the jury that he thought the keeper and his men, even if they
had no right to apprehend, had full right to follow the prisoner
and his party, to discover who they were, and that the prisoner
and his party were not warranted in attempting to prevent them,
and that if they had attempted to apprehend them, which, how-
ever, they did not, he thought they would have been warranted
by the statute in so doing. The prisoner being convicted, on a
case reserved, the judges were of opinion that the keeper had
power to apprehend, and that notwithstanding the blows given
by the keeper, it would have been murder, had the keeper's man
died. Ball's case, 1 Moody, C. C. 330. 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.
Ball's case, 1 Moody, C. C. 333.
A gamekeeper and his assistants proceeded to apprehend a
party of poachers, whose guns they heard in a wood. They
rushed in upon the poachers, who ran away, and the keeper fol-
lowed, one of the poachers exclaiming, " the first man that
comes out, I'll be damn'd if 1 don't shoot him." At length
several of the poachers stopped, and the prisoner, one of them,
pulling his gun to his shoulder, fired at and wounded the pro-
secutor; being indicted for this offence, it was objected that
it was incumbent on the prosecutor to have given notice to the
persons by calling upon them to surrender, which he did not
Murder. 637
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. Payne's
case, I Moody, C. C. 378.
Upon an indictment for murder, it appeared that the prisoner,
being poaching at night in a wood, was attempted to be appre-
hended by the deceased, the servant of the prosecutor. 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 game there. The deceased having been killed bv
the prisoner in the attempt to apprehend him, it was held to be
manslaughter only. Addis's case, 6 C. # P. 388.
In these cases a question frequently arises, how far the com-
panions of the party who actually committed the offence parti-
cipate 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 shooting pheasants, and the prosecutor
and his assistants going towards them for the purpose of appre-
hending them, they formed into two lines, and pointing their
guns at the keepers, threatened to shoot them. A gun was
fired, and the prosecutor was wounded. Some of the keepers
were also severely beaten, but uo other shot was fired. It was
objected that as there was no common intent to commit any
felony, Mancey alone could be convicted, but Vaughan B. said,
" 1 am of opinion that when this act of parliament (57 G. 3.c. 90,
repealed by 9 G. 4. c. 69,) empowered certain parties to appre-
hend persons who 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 ques-
tion 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 the 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 separated him-
self from the rest, and showed distinctly that he would have no
hand in what they were doing, the objection would have much
weight in it." Edmeads's case, 3 C. &; P. 390. So when two
persons had been seized by a gamekeeper and his assistants,
and while standing still in custody, called to another man, who
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. Wkitkenut'i case, 3 C. &; P.
394.
Proof of malice killing in defence of person or property."]
The rule of law upon this subject is thus laid down by Mr.
638 Murder.
East. A man may repel force by force in defence of his person,
habitation, or property, against one who manifestly intends or
endeavours 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, 2.
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 law-
fully 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. (Sed vide
post, p. 644.) In this case there seems to be no dilference
between the case of the person assaulted, and those who come in
aid against such felons. The legislature itself seems to have
considered them on the same footing, for in the case of the
Marquis de Guiscard, who stabbed Mr. Harley while sitting ine
council, they discharged the party who gave the mortal wound
from all manner of prosecution on that account, and declared
the killing to be a lawful and necessary action. (9 Ann. c.16.)
1 East, P. C. 289. Foster, 274. Cooper's case, 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 contradistinction as it seems to such
secret felonies as may be committed without violence to the
person, such as picking the pocket, &c. 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.
Ibid.
A statute was passed in the 24 Uen. 8. (c, 5.) upon this
subject, in affirmance of the common law. After reciting that
it had been doubled whether if any person should attempt felo-
niously to rob or murder any persons in or near any common,
high-way, cartway or footway, or in their mansions, messuages,
or dwelling places, or attempt to break any dwelling-house in
Murder. 639
the night time, and should happen in such felonious intent to
be slain by those whom they should so attempt to rob or murder,
or 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, of or for the death of any such evil disposed person
or persons attempting to rob, murder, or burglarily to break
mansion-houses, 35 is above-said, the person or persons so
indicted or appealed thereof, and of the same by verdict
so found and tried, shall not forfeit or lose any lands, tene-
ments, goods, or chattels, for the death of any such evil dis-
posed 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 homi-
cide, 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 breaking a house in the night time,
(which must be intended a breaking accompanied with a felo-
nious intent,) yet, a breaking in the day time with a like pur-
pose must be governed by the same rule. 1 East, P. C. 272, 3.
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 justify a battery for the purpose of making him
desist, yet if he kill him, it will be manslaughter. 1 Hute,
P. C. 485, 486. 1 East, P. C. 272.
It is not essential that an actual felony should be about to be
committed in order to justify the killing. If the circumstances are
such as that, after all reasonable caution, the party suspects
that the felony is about to be immediately committed, he will
be justified in making the resistance, as in the following case.
Level being in bed and asleep, his servant, who had procured
Frances Freeman to help her in her work, went to the door, about
twelve o'clock at night, to let her out, and conceived she heard
thieves about to break into the house. Upon this she wakened
her master, telling him what she apprehended. He took a drawn
sword, and the servant tearing 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 buttery in the dark, and thrusting
before him with his sword, struck Freeman under the breast, of
which wounds she instantly died. This was ruled to be misadven-
ture only. Levet's case, Cro. Car. 538. 1 Hale, P. C. 42, 474.
Possibly, says Mr. Justice Foster, this might have been ruled
manslaughter, due circumspection not having been used. Fos-
ter, 299.
Whether a person who is assaulted by another will be justified
640 Murder.
in using, in the first instance, such violence in his resistance as
will produce death, must depend upon the nature of the assault,
and the circumstances under which it is committed. It may be of
such a character that the party assailed may reasonably appre-
hend death, or great violence to his person, as in the following
case : Ford being in possession of a room at a tavern, several
persons persisted in having it, and turning him out, but he re-
fused to submit, when they drew their swords upon Ford and his
company, and Ford, drawing his sword, killed one of them, and
it was adjudged justifiable homicide. Both in Kelyng and in
Foster a qutere is added to 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 his party
who seems to have resisted, such probably was the case), the de-
termisation seems to be maintainable. Ford's case, Kel. 51.
1 East, P. C. 243. So in Mawgridge's case great violence was
held justifiable in the case of a sudden 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 lawful for him
to do in his own defence, and wounded him, whereupon Maw-
gridge stabbed Cope, which was ruled to be murder ; for Maw-
gridge, in throwing the bottle, showed an intention to do some
great mischief, and his drawing immediately showed that he in-
tended to follow up the blow. Mawgridge's case, Kel. 128. 2
Lord Kaym. 1489. Fast. 296. 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 rea-
sonable for the former to suppose his life in danger, when at-
tacked with so dangerous a weapon, and the assault followed up
by another act indicating an intention of pursuing his life, and
this at a time when he was off his guard, and without any warn-
ing. The latter circumstance furnishes a main distinction be-
tween this case and that of death ensuing from a combat, where
both parties engage upon equal terms, for then, if upon a sud-
den quarrel, and before any dangerous blow given or aimed at
either of the parties, the one who first has recourse to a deadly
weapon, suspend his arm till he has warned the other, and given
him time to put himself upon his guard, and afterwards they
engage 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
adversary, 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 sudden combat upon heat of blood. But if several attack a
person at once with deadly weapons, as may be supposed to have
happened in Ford's case, (supra), though they wait till he
be upon his guard, yet it seems (there being no compact to fight)
Murder. 641
that he would be justified in killing any' of the assailants in his
own 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 indicted 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 deceased, a brother of the prisoner,
who was in bed, hearing the disturbance, got up, threw the pri-
soner on the ground, and fell upon him, and beat him, the pri-
soner not being able to avoid 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 man-
ner. The deceased did not appear to have aimed at the prisoner's
life, but only to chastise him for his misbehaviour to his father.
Nailer's case, 1 East, P. C. 277. The circumstances in the
following case were very similar. The prisoner and the brother
of the prosecutor were fighting, 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 prisonei being
indicted for stabbing under 9 G. 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 beat-
ing his brother, or that he struck the prisoner any blows, then I
think that it would. You will consider whether any thing was
done by the prosecutor more than necessary, or whether he gave
any blows before he was struck. Bourne's case, 5 C. <Sf P. 120.
At the conference of the judges upon Nailor's case, (supra),
Powell, J., by way of illustration, put the following case : If A.
strike B. without 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 un-
less there be a plain manifestation of a felonious intent, no as-
sault, 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
042 Murder.
must appear that the act was done from mere necessity, and to
avoid the immediate 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 declined any further combat, and retreated
as far as he could with safety, and that he had killed his ad-
versary 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 forego-
ing circumstances justifiable, it must appear that he was wholly
without any fault imputable to him by law in bringing the ne-
cessity 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 entry and holding with
force were illegal. Hawk. P. C. b. 1. c. 23. s. 22.
It is to be observed, that killing in defence of the person will
amount either to justifiable or excusable homicide, or chance-med-
ley, as the latter is termed, according to the circumstances of
the case. Self-defence, upon chance-medley, implies that the
party, when engaged in a sudden affray, quits the combat be-
fore a mortal wound is given, and retreating as far as he can
with safety, urged by necessity, kills his adversary for the pre-
servation of his own life. Foster, 276. It has been observed,
that this case borders very nearly upon manslaughter, and that
in practice the boundaries are in some instances scarcely per-
ceptible. 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, orchance-medley,
is thus stated by Sir William Blackstone. When both parties
are actually combating 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) endeavours to decline any
further struggle, and afterwards, being closely pressed by his
antagonist, kills him to avoid his own destruction, this is homi-
cide, excusable by self-defence. 4 B/. Com. 184.
In all cases of excusable homicide, 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
Murder. CIS
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 trespass is committed merely against the property of
another, and without any felonious intent, the law does not ad-
mit the force of the provocation to be sufficient to warrant the
owner of the property to make use, in repelling the trespasser,
of any deadly or dangerous 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 supra.
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 tres
passing 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 trespassing, 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. Moir's case, 1828.
But if the owner use 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.
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 grounds which
the party had to suspect 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 shoot-
ing 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 take measures for
their apprehension. But here the life of the prisoner was
threatened ; and if he considered his life in actual danger, 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.
Sculli/'s case, 1 C. & P. 319.
The rules, with regard to the defence of the possession of a
house, are thus laid down. If A., in defence of his house, kill
})., a trespasser, who endeavours to make an entry upon it, it is
at least common manslaughter, 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
644 Murder.
turned upon him and assaulted him, and A. had killed him,
(not being otherwise able to avoid the assault, or retain his law-
ful possession,) it would have been in self-defence. So if A.
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 the possession of his house to his
adversary. But in this case, the homicide is excusable rather
\\iznjustifiable. 1 East, P. C. 287. 1 Hale, P. C. 445. Cook's
case, Cro. Car. 537, ante, p. 632.
In the following case, Bayley, J. seems to have been of opi-
nion 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 without 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 ano-
ther 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 backwards, in order to avoid the
conflict. Dakin's case, Lewin, C. C. 166. Sedvideante, p. 638.
Upon an indictment for manslaughter, it appeared that the
deceased and his servant insisted on placing corn in the pri-
soner'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. Hinchcliffe't
case, Lewin, C. C. 161.
So where the owner of a public-house was killed in a struggle
between him and those who unlawfully resisted his turning
Murder. 645
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,
wbich 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 was 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 land-
lord returned the same answer. On his refusing to depart,
and persisting in having some beer, and offering to lay hold
of the deceased, the latter at the same instant collared him,
and the one pushing, 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, notwith-
standing the previous struggle between the landlord and one of
them. For the landlord did no more than he lawfully 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.
Wiltoughby's case, 1 East, P. C. 288.
The following case illustrates various points which may arise
in questions respecting the defence of property. The prisoners
were indicted for murder ; Meade for having shot one Law
with a pistol, and Belt as having been present aiding and
abetting him. It appeared that Meade had rendered himself
obnoxious to the boatmen at Scarborough, by giving informa-
tion to the excise, of certain smuggling transactions in which
some of them had been engaged ; and the boatmen, 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 to
him, 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 apprehension, as he alleged, that his life
and property were in dauger, 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 sudden resentment
or anger. If a person takes forcible possession 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 authorised to fire a
&46 Murder.
pistol on every intrusion or invasion of his house. He ought, it
he has a reasonable opportunity, to endeavour to remove him
without 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 authorise 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 dan-
ger, but that the pistol was fired for the purpose of killing, then
it is murder. There are cases where a person in the heat of
blood kills another, that the law does not deem it murder, but
lowers the offence to manslaughter ; 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. Jf, 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 evi-
dence 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 voice of Belt. M cade's case, Leu-in,
C. C. 184.
Proof in cases of felo de se.] It is only necessary in this
place to notice the law respecting self-murder so far as it
affects third persons. If one person persuade another to kill
himself, and the latter do so, the party persuading is guilty ol
murder, and if he persuade him to take poison, which lie does
in the absence of the persuader, 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 drown-
ing her. It appealed that they had cohabited for several months
previous to the woman's death, who was with child by the pri-
soner. Being in a state of extreme distress, and unable to pay
for their lodgings, they quitted them on the evening of the day
in 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,
Murder. 617
the water where the first boat \vas moored not being of suffi-
cient 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 in or by accident, did not
appear. He struggled and got back into the boat again, and
then found that the woman was gone. He endeavoured 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 en-
couraging 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 she
threw herself in, and consented to her doing it, the act of throw-
ing 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 encouragement
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. Dyson's case, Russ. $ Ry. 523.
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 with 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 7 G. 4. c. 64. s. 9, he
is not triable for a substantive felony under that act. An
accessory before the fact to self-muider was not triable at com-
mon law, because the principal could not be tried, nor is he now
triable under 7 G. 4. c. 64. s. 9, for that section does not make
accessories triable except in cases in which they might have
been tried before.
648
MURDER ATTEMPT TO COMMIT MAIMING,
&c.
Offences at common law .... 648
Offences by statute ..... 649
Proof 'of attempt tn poison .... 649
Proof of attempt to drown , 650
Proof of shooting with intent to murder . . . 650
Proof of stabbing or cutting .... 651
Proof of wounding ..... 652
Proof of the intent in general . . . 653
to murder ..... 654
to maim and disfigure .... 654
to do some grievous bodily harm . . . 655
to prevent lawful apprehension . . . 656
Principals aiding and abetting . . . 657
MURDER, &C. ATTEMPT TO COMMIT.
Under this head head will be considered the evidence with
regard to the several offences mentioned in the llth and 12th
sections of the statute 9 Geo, 4. c. 31. including not only
attempts to murder by poisoning, shooting, &c, but likewise
attempts to maim, &c. The circumstance that all the offences
mentioned in sec. 12, are likewise mentioned in sec. 11, and
differ only with regard to intent, renders it unnecessary to con-
sider the authorities separately.
Many of the cases illustrating this head, have been already
stated under the title " Murder." In order to bring the case
within the statute 9 Geo. 4, c. 31, it is necessary that the cir-
cumstances should be such that, had death ensued, the offence
would have been murder. The decisions therefore are equally
applicable to both heads, and many of them are necessarily
classed under that of " Murder."
Offence at common law.'] At common law an attempt to
commit murder was a high misdemeanour ; 1 East, P. C. 411 ;
but now, this offence is provided for by the 9 Geo. 4 c. 31,
s. 11, by which it is enacted, that if any person or persons un-
lawfully and maliciously shall administer or attempt to ad-
minister to any person, or shall cause to be taken by any person
any poison, or other destructive thing, or shall unlawfully and
Murder Attempt to commit. 649
maliciously attempt to drown, suffocate, or strangle any person ;
or shall unlawfully and maliciously shoot at any person, or shall,
by drawing a trigger, or in any other manner attempt to dis-
charge any kind of loaded arms at any person, or shall unlaw-
fully and maliciously stab or wound any person with intent in
any of the cases aforesaid to murder such person, evciy such
offender, and every person counselling, aiding or abetting such
offender, shall be guilty of felony, and being convicted thereof
shall suffer death as a felon.
By 9 Geo. 4. c. 31. s. 12, it is enacted, that if any
person unlawfully and maliciously shall shoot at any person,
or shall, by drawing a trigger, or in any other manner, at-
tempt to discharge any kind of loaded arms at any person ;
or shall unlawfully and maliciously stab, cut, or wound any
person, with intent in any of the cases aforesaid to maim,
disfigure, or disable such person, or to do some other
grievous bodily harm to such person ; or with intent to re-
sist or prevent the lawful apprehension or detainer of ihe party
so offending, or of any of his accomplices, for any offence for
which he or they may respectively be liable by law to be appre-
hended or detained, every such offender, and every person coun-
selling, aiding or abetting such offender, shall be guilty of
felony ; and being convicted thereof, shall suffer death as a
felon : provided always that in case it shall appear, on the trial
of any person indicted for any of the offences above specified,
that such acts of shooting or attempting to discharge loaded
arms, or of stabbing, cutting, or wounding as aforesaid, were
committed under such circumstances that if death had ensued
therefrom, the same would not in law have amounted to the
crime of murder, in every such case the person so indicted shall
be acquitted of the crime of felony.
Upon an indictment framed on the llth section of the act,
the prosecutor must prove, 1st; the malicious act, viz. the attempt
to poison, or the shooting, &c. and 2ndly, the intent to murder.
Upon an indictment on the 12th section, he must prove, 1st,
the malicious act (which is the same as in the llth section,
with the exception of attempts to poison, or to drown, suffocate,
or strangle) and 2ndly, the intent, which is of three different
kinds, vis. 1st, to maim, disfigure, or disable; 2dly, to do
some other grievous bodily harm, and 3dly, to prevent the
lawful apprehension or detainer of the party offending or of any
of his accomplices.
Proof of attempts to poison.] Under Lord Ellenborough's
act, 43 Geo. 3. c. 48. s. 1, (which did not contain the words
attempt to administer,) it was held that to constitute the offence
of administering poison, some of the poison must be taken by,
or applied to the person to whom it is administered, and that
merely giving it, if no part was taken or applied, was not
650 Murder Attempt to commit.
sufficient. It was at the same time held that if any part was
taken, it was not necessary to complete the offence that it should
be swallowed. Cadman's case, I Moody, C. C. 1 14. See 6 C.
# P. 372. It seems, however, that this would now be con-
sidered an " attempt to administer," within the 9G. 4. c. 31.
A servant put poison into a coffee pot, and when her mistress
came down to breakfast, told her that she had put the coffee pot
there for her, and the mistress drank of the poisoned coffee.
Upon an indictment for " administering and causing to be ad-
ministered" the poison, Park J. ruled, that it was not necessary
in order to constitute ah " administering," that there should
be a delivery by the hand, and that this was " a causing to be
taken," within the 9 Geo. 4. Hurley's case, 4 C. <Sf P. 369.
When A. sent poison, intendingit for B. with intent to kill B.,
and it came into the possession of C. who took it, but did not
die, Gurney 1J. held this case within the statute. Lewis's case,
6 C. $ P. 161.
Proof of attempt to drown, fyc.] No reported case is to be found
on the construction of this part of the 9 Geo. 4. c. 31. A
similar enactment occurs in the 10 Geo. 4. c. 38, relating to
Scotland, and upon this it has been observed that the clause
regarding attempts to suffocate, strangle, or drown, requires
only the application of personal violence, with the intent to
murder, &c. and does not also require a serious injury to the
person. Ifwill be sufficient therefore if the accused have laid
hold of another, and attempted to throw him into a draw well,
Or deep river, or has striven to strangle or suffocate him,
although no lasting injury has resulted from the attempt.
Alison's Prin. Crim.Law of Scoti. 171.
Proof of shooting, $c. with intent to murder.] Under Lord
Ellenborough's act, the words of which are substantially the
same as those of the 9 Geo. 4. c. 31, it was ruled, that firing
at a person with a gun loaded with paper and powder only,
might be within the statute. In a case of this kind, Le Blanc,
J . directed the jury that though the pistol was loaded with
gun-powder and paper only, if the prisoner fired it so near to
the person of the prosecutrix, and in such a direction that it
would probably kill her, or do her some grievous bodily harm,
and with intent that it should do so, the case was within the
statute; but he desired them, in case they found the prisoner
guilty, to say whether they were satisfied that the pistol was
loaded with any destructive material besides gun-powder and
paper or not. The jury found the prisoner guilty, and said
they were satisfied that the pistol was loaded with some other
destructive material. The prisoner being convicted, the
judges on a case reserved, held the conviction right. Kitchen's
case, Russ. fy Ry. 95. Upon an indictment under the same
Murder Attempt to commit. C51
statute, for priming and levelling a blunderbuss, loaded with
gun-powder 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 equivalent 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 mean-
ing of the statute. Carr's case, Russ. fy Ry. 377. So upon
an indictment under the 9 G. 4. c. 31, for attempting to
discharge a loaded pistol, by drawing the trigger, with intent, &c.
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 acquitted, because I do not think that a
pistol so circumstanced ought to be considered as loaded arms
within the meaning of the act. Harris's case, 5 C. &; P. 159.
Where the indictment alleges that the pistol was loaded with
powder and a leaden bullet, it must appear that it was loaded
with a bullet, or the prisoner will be acquitted. Hughes's case,
5 C. ^ P. 126. and see Whitley's case, Lewin, C. C. 123.
Proof of stabbing or cutting.] Lord Ellenborough's act, 43
Geo. 3. c. 58, did not contain, like the new statute, the word
wound in the corresponding enactment. The words are all in-
tended to express a different mode of inflicting the injury. Thus
where the prisoner was indicted under 43 G. 3. for striking and
cutting with a bayonet, and the surgeon stated that the wound
was a punctured triangular one, the prisoner being convicted,
the judges, on a case reserved, were of opinion, that as the statute
used the words in the alternative " stab" or " cut" so as to dis-
tinguish between them, the distinction must be attended to in the
indictment, and they held the conviction wrong. M'Dermot't
case, Russ. & Ry. 356. A striking over the face with the sharp
or claw end of a hammer, producing a wound or cut, was held
to be a cutting within the same statute. Atkinson's case, Ibid,
104. It is not necessary in order to render the injury a cutting
that it should be effected with an instrument adapted for the
purpose of cutting, and, therefore, when it was inflicted with an
iron adapted for the purpose of forcing open doors, drawers,
chests, &c., the prisoner being convicted of cutting, the judges
held the conviction to be correct. Hayward'scase, Russ.fy Rii*
78.
But a blow from a square iron bar, which inflicted a contused
or lacerated wound, has been held not to be a cutting within the
act. Adam's case, cor. I,awrence, O. B. 1 Russell, 597. So where a
similar wound was given on the head by a blow with ihe metal
FF2
652 Murder Attempt to commit.
scabbard of a sword, by a yeomanry man (the sword being in the
scabbard at the time.) Whitfield's case, cor. Baylei/, J. 1 Russell,
597. So a blow with the handle of a windlass, though it made
an incision. Anon. cor. Dallas, 5 Ev. Coll. Stat. part v. p. 334,
(n.) 1 Russell, 597. The authority of these latter cases may
perhaps be doubted since the decision of Atkinson's case (supra),
in which the nature of the injury, and not of the instrument,
appears to have been considered the proper test of decision. See
2 Stark. Ev. 500 (n.), 2d ed.
Proof of wounding."] Where the prisoner is indicted for a
wounding, it must appear that the skin was broken, a mere con-
tusion is not sufficient. Where the prisoner had struck the pro-
secutor with a bludgeon, and the skin was broken, and blood
flowed, Patteson J. said, that it was not material what the in-
strument used was, and held the case to be within the statute.
Payne's case, 4 C. fy P. 558. In a case which occurred before
Littledale J. on the Oxford circuit, he directed a prisoner to be
acquitted, it not appearing that the skin was broken or incised.
Anon, cited 1 Moody, C. C. 280. See Moriartyv. Brooks, 6 C. c5f
P. 684. But in a case which came soon after wards before Park
J., where there was no proof of an incised wound, the learned
judge told the jury that he was clearly of opinion that it need not
be an incised wound, for thai he believed the act of parliament
(9 G. 4.) had introduced the word wound for the purpose of de-
stroying the distinction, which, as the words in the old statute
were only stab or cut, it was always necessary to make, between
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 would remain as before. The
prisoner being found guilty, the case was reserved for the deci-
sion of the judges, amongst whom there was considerable dis-
cussion and difference of opinion. Lord Tenderden said he
thoughtthe 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 being broken, it was
thought by all, except Bay ley B. and Park J., that there was no
wound within the act, and that the conviction was wrong. Wood's
case, 1 Afoodi/, C. C. 278, 4 C.ty P. 381. Where the prisoner was
indicted under the 9 G. 4. for cutting and wounding the prose-
cutor, with intent, &c., and it appeared that he threw a hammer
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 consi-
dered either as a stab, cut, or wound, within the true construction
of the statute, and it was unanimously resolved by those who were
present, that the case amounted to a u-ound within the statute,
aad that the conviction was right. Withcrs's case, 1 Moody,
C. C. 294, 4 C. <Sf P. 446.
Murder Attempt to commit. 65S
The means or instrument by which the wound was effected
need not be stated, and if stated, do not confine the prosecutor
to the proof of wounding by such means. The prisoners were
indicted for wounding with a stick and with their feet. The jury
found them guilty, but stated that they could not tell whether
the wound was caused by a blow with the stick or a kick with a
shoe. On a case reserved, the judges were unanimously of opi-
nion that the means by which the wound was inflicted need not
have been stated, that it was mere surplusage to state them, and
that the statement did not confine the crown to the means stated,
but might be rejected as surplusage, and that whether the wound
was from a blow with a stick, or a kick from a shoe, the indict-
ment was equally supported. Briggs's case, 1 Moody, C. C.
318.
Proof of the intent, in general.] The intent must be proved
as laid. Thus where the prisoner was charged with cutting, &c.,
with intent to murder, maim, and disable, and the jury found
that the intent was to commit a robbery, and that the prisoner
cut and maimed the watchman, with intent to disable him,
till he could effect his own escape ; the prisoner being convicted,
on a case reserved, the judges were of opinion that the convic-
tion was wrong, for, by the finding of the jury, the prisoner in-
tended only to produce a temporary disability, till he could
escape, and not a permanent one. Boyce's case, 1 Moody, C. C.
29. But where the prisoner was charged with shooting with
intent to do A. B. some grievous bodily harm, and the juiy 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 subordinate,
and that the conviction was right. Gillow's case, 1 Moody, C. C.
85, and see Williams' s case, 1 l.each, 533.
In estimating the prisoner's real intentions, says Mr. Starkie,
it is obviously of importance to consider the quantity and quality
of the poison which he administered, the nature of the instrument
used, and the part of the body on which the wound was in-
flicted, according to the plain and fundamental rule that a man's
motives and intentions are to be inferred from the means which
he uses, and the acts which he does. If with a deadly weapon
he deliberately inflicts a wound upon a vital part, where such a
wound would be likely to prove fatal, a strong inference results
that his mind and intention were to destroy. It is not, however,
essential to the drawing such an inference that the wound should
have been inflicted on a part where it was likely to prove mor-
tal ; such a circumstance is merely a simple and natural indi-
cation of intention, and a prisoner may be found guilty of a
cutting with an intention within the statute, although the wound
654 Murder Attempt to commit.
was inflicted on a part where it could not have proved mortal,
provided the criminal intention can be inferred from other cir-
cumstances. 2 Stark. Ev. 500, 2d ed. citing R. v. Case, coram
Park J., who said that it had been so held by the judges.
Where the question is whether the shooting was by accident
or design, evidence that the prisoner at another time maliciously
shot at the prosecutor is admissible. Yoke's case, lluss. &; Ry.
531, stated ante, p. 71. So in the case of poisoning, evidence
of former as well as of subsequent attempts of a similar kind, may
be received. 2 Stark. Ev. 501, 2d ed.
Proof of intent to miirder.~\ Where the prisoner is charged
under the 9 Geo. 4. with shooting, &c. with intent to murder,
and from the circumstances it appears that if death had ensued
it would have been manslaughter only, he must be acquitted ;
Mylton's case, 1 East, P. C. 411 ; and in such a case he could
not be convicted of a common assault upon that indictment,
the offence charged therein being a felony. But where the
charge is that of making an assault with intent to murder, the
defendant, in case the intent is not proved, may be convicted of
the common assault. See 2 Stark. Ev. 500. (n.) '2d ed.
Proof of the intent to maim, disfgure, or disable.] A maim,
at common law, is such a bodily hurt as renders a man less able
in fighting to defend himself, or annoy his adversary ; but if the
injury be such as disfigures him only, without diminishing his
corporal ability, it does not fall within the crime of mayhem.
Upon this distinction the cutting off, disabling, or weakening
a man's hand or ringer, or striking out an eye or fore tooth, or
castrating him, or, as Lord Coke adds, breaking his skull, are
said to be maims ; but the cutting off his nose or ears is not so
at common law. 1 East, P. C. 393.
Though the primary intent of the offender be of a higher and
more atrocious nature, viz. to murder, and in that attempt he
does not kill, but only maims the party, it is an offence within
the 12th sec. ; for it is a known rule of law, that if a man intend
to commit one kind of felony, and in the prosecution of that
commit another, the law will connect his felonious intention
with the felony actually committed, though different in species
from that he originally intended. 1 East, P. C. 400. The
following case was decided upon the Coventry act, 21 & 22
Car. 2. c. 1, (repealed by 9 Geo. 4. c. 31.) which, like the
9 Geo. 4. contained the words "with intent to maim or dis-
figure." The prisoners were indicted for slitting the prose-
cutor's nose, with intent to maim him. In their defence they
insisted that their intent was to murder him, and not to maim
him ; and that, therefore, they were not within the statute,
but Lord King said, that the intention was a matter of fact
to be collected from all the circumstances of the case, and as
Murder Attempt to commit. 655
such was proper to be left to the jury ; and that if it were the
intention of the prisoners to murder, it was to be considered
whether the means made use of to accomplish that end, and the
consequences of those means, were not likewise in their intention
and design ; and whether every blow and cut were not intended,
as well as the object for which the prisoners insisted they were
given. The prisoners were found guilty. Upon this case, Mr. Jus-
tice Yates has observed, that it seemed to him that the whole aim
of this defence, allowing the intention to be what the prisoners
contended, was insufficient, and that an intention more criminal
and malignant could not excuse them from one which was
less so. On the conference, however, of the judges in Carroll's
case, Willes, J. and Eyre, B. expressed some dissatisfaction
with this case, and thought, at least, the construction ought
not to be carried further. Coke's case, 1 East, P. C. 400.
6 St. Tr. 212, 219, 222, 228. See Cox's case, post, p. 656.
To disable, signifies the infliction of a permanent disability ;
therefore, where the indictment charges an intent to disable,
and it appears that the prisoner only intended to disable the
party till he could effect his own escape, it is not within that
part of the statute. Boyce's case, 1 Moody, C. C. 29.
Proof of intent to do some grievous bodily harm.'] It is not
necessary either to prove malice in the prisoner against the
person injured, or that any grievous bodily harm was in fact
inflicted ; all that is necessary is to prove the stabbing, cutting,
or wounding, and the intent required by the statute. The
prisoner having been apprehended by one Headley, in an
attempt to break open his stable in the night, was taken into
Headley's house, where he threatened him with vengeance,
and endeavoured to carry his threats into 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 the prisoner guilty,
stated, that the thrust was made with intent to do grievous
bodily harm to any body 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 imma-
terial whether grievous bodily harm was done. Hunt's case,
1 Moody, C. C. 93. This case appears to have resolved the
doubts expressed by Mr. Justice Bayley, in a case previously
tried before him. Akenhead's case, Holt, N. P. C. 469. The
same construction, with regard to general malice, was put upon
the Coventry act. See Carroll's cafe, 1 East, P.C. 394,396.
Where the prisoner, in attempting to commit a robbery,
threw down the prosecutor, kicked him, and produced blood,
656 Murder Attempt to commit.
Denman, C. J. left it to the jury to say, whether his intent was
to disable the prosecutor, or to do him so me grievous bodily
harm ; adding that nothing was more likely to accomplish the
robbery which he had in view, than the disabling which such
violence would produce. Shadbolt's case, 5 C. f P. 504.
The intent to do grievous bodily harm will be proved,
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, Graham, B. told the jury, that they were
to consider whether this was not a grievous bodily injury to the
child, though eventually not dangerous. As to the intent,
though it probably was the prisoner's intention to commit
a rape, yet, if to effect 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 prisoner guilty, and, on a case reserved, the judges held the
conviction right. Cox's case, Riiss. &; Ey. 362 ; and see Gillow's
case, 1 Moody, C. C. 85, ante, p. 653.
Proof of intent to prevent lawful apprehension or detainer.]
The statute only makes it an offence when the injury is done
to prevent a lawful apprehension or detainer; and therefore,
the prosecutor must show that the arrest, or intended arrest,
was legal. Duffin's case, Russ. $f Ry. 365. The prisoner
having previously cut a person on the cheek, several others,
who were not present when the transaction took place, went to
apprehend him without any warrant, and, upon their attempting
to take him into custody, he stabbed one of them. Le Blanc,
J. was of opinion that the prosecution could not be sustained.
He said that, to constitute an offence within this branchot
the statute, there must be a resistance to a person having lawful
authority to apprehend the prisoner, in order to which the party
must either be present when the offence was committed, or must
be armed with a warrant. ( Vide ante, p. 614.) This branch
of the statute was intended to protect officers and others armed
with authority, in the apprehension of persons guilty of robberies
or other felonies. Dyson's case, 1 Stark. N. P. C. 246.
In order to render a party guilty of the offence of
wounding, &c. with intent to prevent his lawful apprehension,
it must appear that he had notice of the authority of the officer ;
for, if lie had no such notice, and death had ensued, it would only
be manslaughter. Ante, p. 625. Some wheat having been stolen,
was concealed in a bag in a hedge. The prisoner and another
man came into the field, and took up the bag. They were
pursued by the prosecutor, who seized the prisoner without
Murder Attempt to commit. 657
desiring him to surrender, or stating for what reason he was
apprehended. A scuffle ensued, during which, before the
prosecutor had spoken, the prisoner drew a knife and cut him
across the throat. On an indictment for cutting, with intent
to prevent appjehension, Lawrence, J. said, As the prosecutor
did not communicate to the prisoner the purpose for which he
seized him, the case does not come within the statute. If death
had ensued, it would only have been manslaughter. Had a
proper notification been made before the cutting, the case would
have assumed a different complexion. The prisoner must be
acquitted on this indictment. Rickett's case, 3 Campb. 68 ;
and see ante, p. 625. But where, in a case somewhat similar
to the preceding, the goods had been concealed by the thief in
an out-house, and the owner, together with a special constable
under the watch and ward act, waited at night to apprehend
the tiiief when he came to take away the goods, and the prisoner
and another came at night, andremoued the goods from the place
where they were deposited, and upon an attempt to apprehend
them the prisoner fled, and was pursued by the owner of the
goods, who cried out after him several times in a loud voice
" Stop thief," and on being overtaken the prisoner drew a knife,
with which he cut the hands of the prosecutor, and made several
attempts to cut his throat, the prisoner was convicted and
executed. Robinson's case, cor. Wood, B. 2 Stark. Ev. 501, (n.)
'2d ed.; and see ante, p. 625, as to notification of an officer's
i iniracter, fyc.
Proof of the intent principals aiding and abetting.'] Where
several persons are engaged in the commission of a felony, and
one of them commits an offence within the above statute, a
question arises how far the others are to be considered as sharing
in his guilt. Where three persons, engaged in committing a
felony, were surprised by the watchman, and two of them made
their escape, and the third afterwards, in attempting to make
his escape in a different direction, cut the watchman ; upon an
indictment, charging both him and one of the other prisoners
i Richardson,) with an offence under the 43 G.3., Graham, B.
directed the jury, that if the prisoners came with the same ille-
gal purpose, and both determined to resist, the act of one would
fix guilt upon both, and that it might have been part of the plan
to take different ways. The prisoners were found guilty ; but,
on a case reserved, the judges were of opinion that there was
no evidence against Richardson. White's case, Russ. $f Ry. 99.
Two private watchmen, seeing the prisoner and another per-
son with their carts loaded with apples, went to them, intending,
as soon as they could get assistance, to secure them ; one walk-
ing at the side of each of the men. The other man wounded
the watchman near him. The prisoner being indicted for this
offence, under the 9 G. 4., it was held that the jury must be
658 Nuisance.
satisfied that he and the other man had not only gone out with
a common purpose of stealing apples, but also of resisting with
violence any attempt to apprehend them. Collison's case, 4 C. fy
P. 565.
It is not necessary, in order to convict the prisoner, that he
should appear to be the person who actually fired the shot. In
an indictment, on the 43 G. 3., the three first counts stated, in
the usual form, that J. S. did shoot at A. B., and went on to
state that M. and N. were present aiding and abetting. The
three last counts stated that an unknown person did shoot at
A. B. &c., and that J. S. and M. and N. were present aiding
and abetting the said unknown person in the felony aforesaid, to
do and commit, and were then and there knowing of and privy
to the commission of the said felony, against the statute, &c. ;
but they omitted to charge them with being feloniously present,
&c. There was no evidence to show that J. S. was the person
who fired. It was objected that the prisoners could not be con-
victed on the first set of counts, because the jury had negatived the
firing by J. S. ; nor on the second set, because the word " felo-
niously" was omitted. Graham, B., said that the objection was
founded upon a supposed difference in the act of shooting, &c.,
and the being present, &c. at it ; whereas the act of parliament
had made no degrees, no difference of offence, and that the
plain meaning and necessary construction of the act was, that
if the parties were present, knowing, &c., they and every
one of them shot, and that the charge of feloniously shoot-
ing applied to every one of them. The prisoners being
convicted, all the judges thought that the conviction was right.
Towle's case, Russ. fy Ry. 314.
NUISANCE.
Proof of the public nature of the nuisance . 659
Proof of the degree of annoyance which cimttitutes a public
nuisance . 659
Proof with regard to situation
Proof with regard to length of time
Proof of particular nuisances
Particular trades
Rail-ways and steam-engines
660
661
662
662
662
Nuisance. 659
Acts tending to produce public ditorder, and acts
of public indecency ... 663
Disorderly inns . . . 663
Gaming-houses . . 663
Baudy-houses .... 664
Play-houses .... 664
Gunpowder and f reworks . . 665
Dangerous animals < . . 665
Contagion, and unwholesome provisions 665
Eaves dropping common scotd . 665
ProoJ of the liability of the defendant . 666
A public or common nuisance is such an inconvenient or
troublesome offence as annoys the whole community in general,
and not merely some particular person ; and therefore this is in-
dictable only, and not actionable. 4 Bl. Cam. 167.
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.
Wh ite's case, 1 Burr. 337. Thus where a tinman was indicted
for the noise made by him in carrying on his trade, and it ap-
peared 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 any thing, was a private nuisance. Lloyd's case, 4 Esp. 200.
But a nuisance near the highway, whereby the air thereabouts
is corrupted, is a public nuisance. Pappeueau's case, 1 Str. 686.
Making great noises in the night, as with a speaking-trumpet,
has been held to be an indictable offence, if done to the dis-
turbance of the neighbourhood. Smith's case, 1 Str. 704. So
keeping dogs which make noises in the night is said to be
indictable. 2 Chitty's Cr. Law, 647.
How far the fact, that the thing complained of furnishes,
upon the whole, a greater convenience to the public than it
takes away, is an answer to an indictment for a nuisance, does
not appear to be well settled. See Russell's case, 6 B.&f C. 566,
ante, p. 454. Morris's case, 1 B. Ad. 447. Pease's case,
4 B. ^ Ad. 42, post 662.
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 an indictment for a nuisance, in making great quantities
of offensive liquors near the king's highway, it appeared in evi-
660 Nuisance.
dence that the smell was not only intolerably offensive, but also
noxious and hurtful, giving many persons headaches. It was
held, that it was not necessary that the smell should be un-
wholesome, but that it was enough if it rendered the enjoyment
of life and property uncomfortable. White's case, 1 Burr, 333.
So it is said, that the carrying on of an offensive trade is indict-
able, where it is destructive of the health of the neighbourhood,
or renders the houses untenantable or uncomfortable. Davey's
case, 5 Esp. 217. So it was ruled, by Abbott C. .1., 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 waseaough, as the neighbourhood had a right to pure
and fresh air. Neil's case, 2 C. <Sf P. 485.
Proof- ivhh regard to situation.] A question of consider-
able difficulty frequently presents itself, as to the legality of
carrying on an offensive trade in the neighbourhood of similar
establishments, and as to the length of time legalising such a
nuisance. Where the defendant set up the business of a meltcr
of tallow in a neighbourhood where other manufactories were
i-stablished, which emitted disagreeable and noxious smells, it
was ruled that he was not liable to be indicted for a nuisance,
unless the annoyance was much increased by the new manu-
factory. B. Neville's case, 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. S. Neville's case, Peake, 93. But upon this
case it has been observed, that it seems hardly reconcileable to
the doctrine, that no length of time can legalise a public
nuisance, although it may supply an answer to an action by a
private individual. 1 Russ. 297 ; vide post, p. 661. It should
seem, continues the same writer, that, in judging whether u
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 annoy-
ance. With regard to offensive works, though they may have
been originally established under circumstances which would
priiiiu facie protect them against a prosecution for a nuisance,
it seems that a wilful neglect to adopt established improve-
ments, which would make them less offensive, may be indict*
able. 1 Russell, 297.
In a late case, of an indictment for carrying on the business
of a horse-boiler, it appeared that the trade had been carried on
lor many years before the defendants came to the premises;
but its extent was much greater under them. For the defend-
ants, it was shown that the neighbourhood was full of horse-
boilers and other noxious trades, and evidence was given of the
trade being carried on in an improved manner. Lord Tenter-
Nuisance. 061
den observing, that there was no doubt that this trade was in
its nature a nuisance, said, that, considering the manner in
which the neighbourhood 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 im-
provements in the mode of conducting the business, there was
no increase of annoyance, though the business itself had in-
creased, the defendants were entitled to an acquittal; if the
annoyance had increased, this was an indictable nuisance, and
the defendants must be convicted. Walts's case, Moo. & Mai.
N. P. C. 281.
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 to it, that the carrying on of the
trade becomes a nuisance to the persons using the road ; in
those cases, the parly is entitled to continue his trade, because
it was legal before the erecting of the houses in the one case,
and the making of the road in the other. Per Abbott C. J.
Cross's case, 2 C. % P. 483.
Proof with regard to length of time.] No length of time
will legitimate a nuisance ; and it is immaterial how long the
practice has prevailed. Though twenty years' user may bind
the right of an individual, yet the public have a right to demand
the suppression of a nuisance, though of longer standing. Weld v.
Hornby, 7 East, 199. Thus upon an indictment for continuing
a stell 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 continued unlawful, and gave judg-
ment that it should be abated. Case cited bit Lord Ellenborough,
3 Campb. 227. So it is a public nuisance to place a woodstatk
in the street of a town before a house, though it is the ancient
usage of the town, and leaves sufficient room for passengers, 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 ob-
structing a highway by depositing bags of clothes there, it ap-
peared 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 purpose 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 le-
gally instituted. Smith's case, 4 Esp. 111.
062 Nuisance.
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 neighbourhood, as
making candles in a town by boiling stinking stuff, which annoys
the whole neighbourhood with stenches. Tohayle's case, cited
Cro. Car. 510; but see 2 Roll. Ab. 139, Hawk. P. C. b. 1. c.
75. s. 10. And it seems that a brewhouse erected in such an
inconvenient place that the business cannot be carried on with-
out greatly incommoding the neighbourhood, may be indicted as
a common nuisance ; and so in the case of a glass-house or
swine yard. Hawk. P. C. b. 1. c, 75. s. 10. Wigg's case, 2
Lord llaym. 1163. So a manufactory for making spirit of
sulphur, vitriol, and aqua fortis, has been held indictable. White's
case, 1 Burr. 333. So a tannery where skins are steeped in
water, by which the neighbouring air is corrupted. Pappineau'i
case, 1 Str. 686.
Proof of particular nuisances railways steam engines, <Sfc.]
Where an act of parliament gave a company power to make a
railway, and another act gave 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 unrea-
sonable in the act of parliament giving the powers. Pease's case,
4 B. Ad. 30. But when the defendant, the proprietor of a
colliery, without the authority 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 afforded to traffic was not such a convenience as
justified the obstruction of the highway. Morris's cast, 1 B. fy
Ad. 441.
The proceedings in indictments for nuisances by steam-engines
are regulated by statute 1 & 2 Geo. 4. c. 41. By sec. 1, the
couit by which judgment ought to be pronounced in case of a
conviction upon any such indictment (riz. for a nuisance arising
from the improper construction or negligent use of furnaces em-
ployed in the working of steam-engines), is authorised to award
such costs as shall be deemed proper and reasonable to the pro-
secutor, such award to be made before or at the time of pro-
nouncing 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 pro-
Nuisance. 663
secutor, 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 purpose of work-
ing 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 only because they are great temptations to idleness,
but because they are apt to draw together great numbers of disor-
derly persons to the inconvenience of the neighbourhood. Hauk.
P. C. b. 1. c. 75. s. 6. So collecting together a number of per-
sons in a field, for the purpose of pigeon-shooting, to the dis-
turbance of the neighbourhood, is a public nuisance. Moore's
case, 3 B.&; Ad. 184. It is upon this same principle that many of
the acts after-mentioned have been held to be public nuisances.
What outrages public decency, and is injurious to public
morals, is indictable as a misdemeanor. Hank. P. C. b. 1. c. 76.
s. 4. 1 Russell, 302. Thus bathing in the open sea, where the
party can be distinctly seen from the neighbouring houses, is an
indictable offence. (Jrunden's case, 2 Campb. 89. Sedley'scase,
Hid. 168.
Proof of particular nuisances disorderly inns.] Every one,
at common law, is entitled to keep a public inn, (but if it be an
ale-house, he comes within the statutes concerning ale-houses ;)
and may be indicted and fined, as guilty of a public nuisance,
if he usually harbour 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 victuals upon the tender
of a reasonable price. Hawk. P. C.b. 1. c. 78. s. 1, 2. It is
said also that setting up a new inn where there is already a suffi-
cient number of ancient and well governed inns, is a nuisance.
Id. 3 Bac.Ab. Inns, (A.) 1 Russell, 298.
Proof of particular nuisances gaming houses.] The keeping
a common gaming house is an indictable offence, for it not only
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. I.e. 75. s. 6. 1 Russell, 299.
A feme covert may be convicted 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 evil
disposed peisons 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. Rogier's case, 1 B. fy C.
tiG4 Nuisance.
272 ; and per Halroyd J. it would have been sufficient merely
to have alleged that the defendant kept a common gaming house.
ibid.
It seems that the keeping of a cockpit is not only an indictable
offence at common law, but such places are considered gaming
liouses within the statute 32 Hen. 8. c. 9. Hawk. P. C. b. 1.
c. 92. s. 92.
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 which 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 dis-
orderly 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 9, inhabitants of the parish
or place, though bound by recognizance, may give evidence upon
the prosecution. By section 10, no indictment shall be removed
by certiorari. This clause does not prevent the crown from re-
moving the indictment. Davies's case, 5 T. R. 626.
Proof of the particular nuisance bawdy houses.] The keeping
of a bawdy house is a common nuisance, both on the ground of
its corrupting public morals, and of its endangering the public
peace, by drawing together dissolute persons, hawk. P. C.
l>. 1. c. 74. s. 1. 5 Buc. Ab. Nuisances, (A.) 1 Russell, 299. A
feme covert is punishable for this offence as much as if she were
sole. Ibid. Wiltiamis case, 1 Salk. 383. And a lodger who
keeps only a single room for the use of bawdry is indictable for
keeping a bawdy house ; but the bare solicitation of chastity
is not indictable. Hawk. P. C. b. 1. c. 74. s. 1. Though the
charge in the indictment is general, yet evidence may be given
of particular facts, and ot the particular time of these facts, see
Clarke v. Periam, 2 Atk. 339, it being, in fact, a cumulative
offence, vide ante, p. 66. It is not necessary to prove who
iiequents the house, which in many cases it might be impossible
to do, but if unknown persons are proved to have been there,
conducting themselves in a disorderly manner, it will maintain
tiie indictment. J'Anson v. Stuart, 1 T. R. 754. 1 Russell, 302.
When the house is described as being situated in a particular
parish, this being matter of description, must be proved as laid.
The proceedings in prosecutions against bawdy houses are
facilitated by statute 25 Geo. 2. c. 36, supra.
Proof of particular nuisances play-houses.] Play-houses
having been originally instituted with the laudable design of
lecommending virtue to the imitation of the people, and expos-
ing vice and folly, are not nuisances in their own nature, but
Nuisance. 665
may become so by drawing together numbers of people to the
inconvenience of the neighbourhood. Hawk. P. C. b. 1. c. 75.
*. 7. see 2 B. $ Ad. 189. By statute 25 G. 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 Lon-
don, 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.
Proof of particular nuisances gunpowder, &;c.] Things
likely to be productive of injury to the persons of those residing
in the neighbourhood, are nuisances, as the erecting of gun-
powder mills, or the keeping a gunpowder magazine near a
town. Williams's case, 4 Burn's Justice, 758. Taylor's case,
2 Str. 1167, and see 12 G. 3. c. 61. So by 10 W. 3. c. 1,
the making, selling, or exposing to sale any fireworks, or
throwing, or firing them into any public street, or highway, is
declared to be a common nuisance.
Proof of particular nuisances dangerous animals.] Suffer-
ing fierce and dangerous animals, as a fierce bull-dog, which is
used to bite people, to go at large, is an indictable offence.
4 Burns Justice, 578. But where the animal is not of such a
description as in general, from its ferocity, to endanger the per-
sons of those it meets, in order to maintain an indictment, rt
must be shown that the owner was awaie of the ferocity of that
particular animal. 2 Ld. Raym. 1582.
Proof of particular nuisances contagion, and unwholesome pro-
visions.] It is an indictable offence to expose a peison having
a contagious disease, as the small-pox, in public. Vantandilto's
case, 4 M. if S. 73. Burnett's case, Id. 272. So it is a nuisance
for a common dealer in provisions to sell unwholesome food, or
to mix noxious ingredients in the provisions which he sells.
Dixon's case, 3 M . Sf S. 11.
Proof of particular nuisances eaves dropping, common
scold.] Eaves droppers, or such as listen under walls or
windows, or the eaves of houses, to hear discourses, and there-
upon frame slanderous and mischievous tales, are common
nuisances, and indictable, and may be punished by fine, and
finding sureties for their good behaviour. 4 El. Com. 167.
Burn's Justice, Eares Droppers. \ Russell, 302.
So a common scold is indictable as a common nuisance, and
upon conviction may be fined or imprisoned, or put into the
ducking-stool. Hau-k. P. C. b.l. 75. s. 14. 4 Bl. Com. 168.
The particulars need not be set forth in the indictment. Hawk.
666 Oaths unlawful.
P. C. &. 2. c. 25. s. 59 ; nor is it necessary to prove the parti-
cular expressions used, it is sufficient to give in evidence gene-
rally, that the defendant is always scolding. Per Butler J.
J'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 by their superintendant and engineer, under a
general authority to manage their works, though they are per-
sonally ignorant of the particular plan adopted, and though such
plan be a departure from the original and understood method,
which the directors had no reason to suppose discontinued.
Medley's case, 6 C. $ P. 292.
OATHS UNLAWFUL.
Statutes ..... 666
Proof of the oath . . . .667
Proirf of aiding and assisting . . . 668
Proof for prisoner .... 668
Disclosure of facts . . . 668
Venue . 669
Statutes.] The offence of taking or administering unlawful
oaths is provided against by statutes 37 G. 3. c. 123, and
52 G. 3. c. 104.
By the former of these statutes (sec. 1.) it is enacted, that
any person or persons who shall in any manner or form what-
soever, 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 intended
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 confederacy formed for any" such
purpose ; or to obey the order or commands 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
Oaths unlawful. 667
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 confederacy ; or not to reveal
or discover any illegal act done, or to be done ; or cot to reveal
or discover any illegal oath or engagement, which may have
been administered 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 engagement, shall on conviction be ad-
judged guilty of felony, and be transported for any term not
exceeding seven years, and every person who shall take sucb
oath or engagement, not being compelled thereto, is subject to
the same punishment. See Mark's rase, 3 East, 157.
By statute 52 G. 3. c. 104. s. 1, it is enacted, that every per-
son who shall in any manner or form whatsoever administer, or
cause to be administered, or be aiding or assisting at the admi-
nistering of any oath or engagement, 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 compelled thereto,
shall on conviction be adjudged guilty of felony, and be trans-
ported for life, or for such term of years as the court shall
adjudge.
The statutes are not confined to oaths administered with a
seditious or mutinous intent, Ball's case, 6 C. $ P. 563.
Krndribb's case, Id. 571. And it is sufficient to aver that the
oath was administered, not to give evidence against a person
belonging to an association of persons associated to do " a cer-
tain illegal act." Brodribb's case, ubi sup.
Proof of the oath.'] With regard to what is to be considered
an oath within these statutes, it is enacted by the 37 G. 3.
c. 123. s. 5, that any engagement or obligation whatsoever in
the nature of an oath, and by 52 G. 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 administration 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 purpoit or some material part
thereof is sufficient. 37 G. 3. c. 123. s. 4. 52 G.3. c. 104. s.5.
Moors's ease, 6 East, 419. (.) Parol evidence may be given
668 Oaths unlawful.
of the oath, though the party administering it appeared to read
it from a paper, to produce which no notice has been given.
Moors's case, ubi sup. ante, p. 10. And where the terms of
the oatli are ambiguous, evidence of the declarations 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
Testament, it is immaterial, if the party taking the oath believes
himself to be under a binding engagement. BroJripp's case,
6 C. <3f P. 571. Loveless' s case, 1 Moo. <3f Rob. 349.
Where the prisoners were indicted under the 37 G. 3.
Williams B. said, that with regard to the oath contemplated by
the act of parliament, it was not required to be of a formal
naluie, 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 oath was not material, and the act provided
against any evasions of its intentions by declaring, (sec. 5.) that
any engagement or obligation whatever 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 admi-
nistered or taken. Loveless's case, 1 Moo. fy Rob. 349.
Proof of aiding and assisting."] Who shall be deemed persons
aiding and assisting in the administration of unlawful oaths is
declared by the third section of the 37 G. 3. c. 123, which
enacts that persons aiding or assisting in, or present and con-
senting to the administering or taking of any oath or engage-
ment before mentioned in that act, and persons causing any
such oath or engagement to be administered or taken, though
not present at the administering or taking thereof, shall be
deemed principal offenders, and tried as such, although the per-
son or persons who actually administered such oath or engage-
ment, if any such there be, shall not have been tried or con-
victed. The statute 52 G. 3. c. 104, contains a similar pro-
vision, (sec. 3.)
Proof for prisoner disclosure of 'fuels."] 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 com-
pulsion, 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 (sec. 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 sickness,
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 per-
son or persons to whom and in whose presence, and when and
Offices Offences relating to. 669
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 majesty's principal secretaries of state, or 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 G. 3.
c. 104, contains a similar provision, ^sec. 2,) fourteen days be-
ing substituted for four days.
Venue.] Offences under these statutes committed on the
high seas, or out of the realm, or in England, shall be tried be-
fore any court of oyer and terminer or gaol delivery for any
county in England in the same manner and form, as if the
offence had been therein committed.
OFFICES OFFENCES RELATING TO.
Proof of malfeasance illegal acts in general . . 669
Proof of nonfeasance . .... 670
Proof of extortion . . . . . 671
Proof on prosecutions for refusing to execute an office . 671
Under this head will be considered the evidence requisite in
prosecutions against officers, 1, for malfeazance ; 2, for non-
feasance ; 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 misbehaviour 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, having concurrent jurisdiction, appointed a sub-
sequent 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
670 Offices Offences relating to.
motives. Sainsbury's case, 4 T. R. 451. Still more is such
an offence punishable when it proceeds from malicious or cor-
rupt motives. Williams's case, 3 Burr. 1317. Hollands's
case, 1 T. R. 692.
A gaoler is punishable for barbarously misusing his prisoners.
Hawk. P. C. b. 1, c. 66, s. 2. So overseers of the poor for
misusing paupers, as by lodging them in unwholesome apart-
ments, Wetheril's case, Cald. 432 ; or by exacting labor from
such as are unfit to work, Winthip'i case, Cald. 76.
Public officers are also indictable for frauds committed by
them in the course of their employment. As where an overseer
receives from the father of a bastard a sum of money as a com-
pensation with the parish, and neglects to give credit for this
sum in account, he is punishable, though the contract is illegal.
Martin's case, 2 Campb. 268. See also Bembridges's case, cited
6 East, 136.
Proof trf nonfeasance.] Upon a prosecution for not perform-
ing the duties of an office, the prosecutor must prove, 1, that
the defendant 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 inditable offence.
Thus a coroner, 2 Chitt. C. L. 255, 1 Russell, 141 ; a con-
stable, Wyat's case, 380 ; a sheriff, Anlrobus's case, 6 C. P.
784 ; and an overseer of the poor, Tawney's case, 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. Meredith's case, Russ. fy Ry. 46. But
where the indictment stated that the defendant (an overseer)
had under his care a poor woman belonging to his township,
but neglected to provide for her necessary meat, &c. whereby
she was reduced to a state of extreme weakness and afterwards,
through want, &c. died, the defendant was convicted, and sen-
tenced to a year's imprisonment. Booth's case, Ibid, 47. (n.) And
in a case where an overseer was indicted for neglecting, when
required, to supply medical assistance to a pauper labouring
under dangerous illness, it was held that theoffence was suffici-
ently 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. Warren. s case, coram liol-
royd, Ibid, p. 48 (n.)
By statute 11 G. 1. c. 4, the chief officers of corporations,
absenting themselves on the charter day for the election of
officers, shall be imprisoned for six months. Such offence, how-
ever, is not indictable within the statute unless their presence is
Offices Offences relating to. 671
necessary to constitute a legal corporate assembly. Con-y'i
case, 5 East, 372.
Proof of extortion.] One of the most serious offences com-
mitted by persons in office is that of extortion, which is defined
to be the taking of money by an officer by colour 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.
Hescott's case, 1 Salk. 330. Hutt. 53. So when 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.
Burden's case, 1 Ld. Raym. 149. The offence of extortion is
punishable as a misdemeanor at common law, by fine and im-
prisonment, and by removal from office. Hawk. P. C. b. 1,
c. 68. s. 5. Penalties are likewise added by the statute of
Westm. I.e. 26.
The prosecutor must be prepared to prove, first that the defen-
dant 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. The indictment must state the sum which
the defendant received, but the exact sum need not be proved,
as where he is indicted for extorting twenty shillings, it is
sufficient to prove that he extorted one shilling. Burdett's case,
I Ld. Raym. 149. Gillham's case, 6 T. I*. 267.
Proof on prosecutions for refusing to execute an office.] A.
refusal to execute an office to which a party is duly chosen, is
an indictable offence, as that of constable ; Lane's case, 2 .Str. 920.
George's case, Cou-p. 13 ; or overseer. Jones's case, 2 Str. 1145.
7 Mod. 410.
The prosecutor must prove the election or appointment of the
defendant, 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 constable on the appointment of a corporation, it
must be stated and proved that the corporation had power by
prescription to make such an appointment, for they possess no
such power of common right. Bernard's case, 2 Salk. 52. 1
Ld. Raym. 94. The notice of his appointment must then be
proved, Harpur's case, 5 Mod. 96, and his refusal, or neglect
to perform the duties of the office, from which a refusal may be
presumed.
C72
PERJURY.
At common law . . . . 672
Proof of the authority to administer an oath . 672
Proof of the occasion of administering the oath . 674
Proof of the taking of the oath .... 675
Proof of the substance of the oath . . . 676
Proof of the materiality of the matter sworn . 680
Proof of introductory averments . . . 683
Proof of the falsity of the matter sworn . 685
Proof of the corrupt intention of the defendant . - 685
Witnesses, number required .... 686
Competency of .... 688
.Statutes relating to perjury .... 689
Subornation of perjury .... 691
Proof of incitement .... 691
Proof of taking the false oath . . . 691
The proofs required to support an indictment for perjury at
common law will be first considered, and the statutes creating the
offence of perjury in various cases will be subsequently stated.
Perjury at common law."] Perjury at common law is denned
to be a wilful false oath by one who, being lawfully required to
depose the truth in any proceeding in a court of justice, swears
absolutely in a matter of some consequence to the point in ques-
tion, whether he be believed or not. Hawk. P. ('. b. I.e. 69,
i. 1. The proceedings, however, are not confined to courts of
justice. Vide post, p. 674.
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 subslance
of the oath ; 5, the materiality of the matter sworn ; 6, the in-
troductory averments; 7, the falsity of the matter sworn ; and,
8, the corrupt intention of the defendant. 2 Stark. Ev. 621,
Proof of the authority to administer an oath.'] Where the oath
has been administered by a master in chancery, surrogate or
Perjury. 673
commissioner, having a general authority for that purpose, 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,
p. 7, and p. 14. But as this evidence is only presumptive, it maybe
rebutted, and the defendant may show that there was no appoint-
ment, or that it was illegal. Thus after 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. I'erelst's case, 3 Campb. 432. Where the
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 commis-
sion which creates the special authority. 2 Stark. Ev. 622, 2d
ed. Thus upon an indictment for perjury against a bankrupt,
in passing his last examination, Lord Ellenborough 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
unauthorised. Pumhon's case, 3 Campb. 96. 3 B. fy C. 354.
Where a cause was referred by a judge's order, and it was di-
rected that the witnesses should be sworn before a judge, " or
before a commissioner duly authorised," and a witness was sworn
before a commissioner for taking affidavits (empowered by stat.
29 Car. 2. c. 5.), it was held that he was not indictable for perjury,
the commissioner not being " duly authorised" by the statute to
administer an oath for a viva voce examination. Hanks's case,
3 C. & P. 419. So on an indictment for perjury, before a justice,
in swearing that J. S. had sworn twelve oaths, where the charge
as stated did not import that the oaths were sworn in the county
in which the justice acted, Eyre, J. arrested the judgment, be-
cause, as the charge did not so import, the justice had no power
to administer the oath to the defendant. Wood's case, 2 Russell,
540.
In the case of a trial taking place where the court has no juris-
diction, as where one of several co-plaintiffs dies, and his death
is not suggested on the roll, pursuant to 8 & 9 W. 3. c. 11. s. 6,
the suit is abated, and for evidence given at the trial a witness
cannot be indicted for perjury. Cohen's case, 1 Stark. N. P. C.
511. So a false oath taken in the court of requests, in a matter
concerning lands, has on the same ground been held not to be
indictable. Boston v. Gouch, 3 Salk. 269. But a false oath
taken before commissioners, whose commission is at the time in
strictness determined by the death of the king, is perjury, if taken
before the commissioners had notice of the demise. Hawk. P. C.
b.l.c. 69. s. 4. 2 Russell, 521.
No oath taken before persons acting merely in a private ca-
pacity, or before those who take upon them to administer oaths
of a public nature without legal authority ; or before those who
are authorised to administer some oaths, but not that which
G G
674 Perjury.
happens to be taken before them, or even before those who take
upon them to administer justice by virtue of an authority seem-
ingly colourable, but in truth void, can ever amount to perjury
in the eye of the law, for they are of no manner of force. Hawk.
P. C. b. 1. c. 69. s. 4. 2 Russell, 521.
The authoiity by which the party is empowered to adminisler
the oath, must, if specially described, be proved as laid. There-
fore where the indictment stated the oath to have been adminis-
tered at the assizes, before justices assigned to take the said as-
sizes, before A. B. one of the said justices, the said justices hav-
ing then and there power, &c., and in fact the judge, when the
oath was administered, was sitting under the commission of oyer
and terminer and gaol delivery, this was held to be a fatal va-
riance. Lincoln's case, Russ. fy 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. Atford's case, 1 Leach, 150.
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 at Nisi Prius,
the record must be produced in order to show that such a trial
was had ; 2 Stark. Ev. 622, Id ed., and for this purpose the
Nisi Prius record is sufficient. lies' case, Cases temp. Hardw.
118, ante, p. 156. The occasion, and the parties before whom
it came on to be tried, must be correctly stated, and a variance
will be fatal, as where it was averred that a cause came on to be
tried before Lloyd, Lord Kenyon, &c., William Jones being asso-
ciated, &c., and it appearing that Roger Kenyon was associated,
it was ruled to be a fatal variance. Eden's case, 1 Esp. 97.
With regard to the occasion upon which the oath is adminis-
tered, it is not merely before courts of justice, even at common
law, that persons taking false oaths are punishable for perjury.
Any false oath is punishable as perjury, which tends to mislead
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 himself as bail. And not only such oaths as are taken
on judicial proceedings, 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. h. 1. e.
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. Lewis's case, 1 Sir. 70.
A man may be indicted for perjury in an oath taken by him
Perjury. 675
in his own cause, as in an answer in Chancery, or to interro-
gatories concerning a contempt, or in an affidavit, &c. 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 caunot 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 be-
fore a surrogate to procure ^ 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 that 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 punishment could be inflicted.
Foster's case, Rnss. <5f Ry. 459, and see Alexander's case,
1 Leach, 63 ; see also 1 Vent. 370, and Deacon's Observations,
2 Dig.C.L. 1001.
The object with which the oath was taken need not be carried
into effect, for the perjury is complete at the moment when the
oath is taken, whatever be the subsequent proceedings. Thus
where the defendant was indicted for perjury in an affidavit
which could not, from certain defects in the jurat, be received
in the court for which it was sworn, Littled.de J. was of opinion
that nevertheless perjury might be assigned upon it. Hailey's
case, Ry. $ Moo. N. P. C. 94. So it was ruled by Lord Ten-
terden that a party filing a bill for an injunction, and making
an affidavit of matters material to it, is indictable for perjury
committed in that affidavit, though no motion is ever made for
an injunction. White's case, Moody fy Malkin, 271.
Proof of the taking of the oath.'] It is sufficient in the in-
dictment to state that the defendant duly took the oath.
M'Arther's case, Peake, N. P. C. 155. But where it was
averred that he was sworn on the Gospels, 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 manner. Id.
The mode of proving that the defendant was sworn, in au
indictment for perjury in an answer in chancery, is by producing
the original answer signed by him, and proving his hand-
writing, and that of the Master in Chancery to the jurat, toge-
ther with proof of the identity of the defendant. Morris's case,
1 Leach, 50, 2 Burr. 1189. Benson's case, 2 Campb. 508.
The making of an affidavit is proved in the same manner by
production and proof of the hand-writing. Ante, p. 157.
Where the affidavit upon which the perjury was assigned, was
signed only with the mark of the defendant, and the jurat did
o o 2
G76 Perjury.
not state that the affidavit was read over to the party, Little-
dale J. said, As the defendant is illiterate, it must be shown
that she understood the affidavit. Where the affidavit is made
by a person who can write, the supposition is that such person-
is acquainted with its contents, hut in the case of a marksman
it is not so. If in such a case a master by the jurat authenti-
cates the fact of its having been read over, we 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 per-
son. Hai/ey's case, 1 C. &; P. 258.
It is incumbent upon the prosecutor to give precise and posi-
tive proof that the defendant was the person who took the oath,
Brurfi/'s case, 1 Leach, 330, hut this rule must not be taken to
exclude circumstantial evidence. Price's case, 6 East, 323.
2 iJar/c. Ev. 624, 2d. erl.
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 ad-
ministered at the place named. Spencer's case, Ry. &\ Moo.
N. P. C. 98. But though the jurat state the oath to be taken
in one county, the prosecutor may show that it was in fact taken
in another. Emden's case, 9 East, 437. A variance as to the
place of taking in the same county, will not be material ; thus,
if it be alleged to be taken at Serjeant's Inn, in London, and it
appear to have been taken in Cheapside, this is not material.
Taylors case, Skinner, 403.
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. By stat. 22 G. 2. c. 46. s. 36, if any Quaker making
the declaration or affirmation therein mentioned, shall be law-
fully convicted of having wilfully, falsely, and corruptly affirmed
and declared any matter or thing which, if the same had been
deposed in the usual form, would have amounted to wilful and
corrupt perjury, every person so offending shall incur and
suffer the pains, penalties, &c., inflicted on persons convicted
of wilful and corrupt perjury. The 9 G. 4. c. 32, & 3 & 4.
W. 4. c.49, which admit the evidence of Quakers and Moravians
in all cases whatsoever, criminal or civil, contain similar clauses.
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
<t question how far it was incumbent on the prosecutor to prove
the whole of the defendant's statement relative to the same sub-
ject 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 evi-
dence given by him, which qualified or explained the part tet
Perjury. 677
out. Thus Lord Kenyon ruled, that the whole of the defend-
ant'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 perjury. Jones' case, Peake, N.
P. C. 38. See also R. v. Dowlin, Id. 170. 2 Chitty, C. L. 312,
Id ed. Anon. cor. Lord Gi/ord, cited Ry. &; Moo. N. P. C.
300, vide post, 680.
It was formerly thought that an oath did not amount to per-
jury 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 be true, which he knows to be
false. Pedleit's case, I Leach, 327. De Grey, C. J. also, in
Miller's case, 3 Wils. 427, 2 Bl. 881, observed, that it was a
mistake mankind had fallen into, that a person cannot be con-
victed of perjury who swears that he thinks or believes a fact to
be true, for that he certainly may, and it only renders the proof
of it more difficult. The same question was agitated in the
Common Pleas, when Lord Loughborough and the other judges
were of opinion that belief was to be considered as an absolute
term, and that an indictment might be supported on it. Anon.
Hawk. P. C.b.l. c. 69. s. 7, (.)
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 men-
tioned 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 ihe liquor down, he
would in much less time than two hours have been a dead man.
Loft's Gilb. Ev. 662.
No case appears to have occurred in our law of an indictment
for perjury for mere matter of opinion. The following observa-
tions 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 gene-
ral 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
678 Perjury.
plea that it is related to a matter of professional investigation.
Alison, Princ. Cr. Law of Scot/. 468.
A doubt may arise, whether a witness can be convicted of
perjury, in an answer to a question which he could not legally
be called upon to answer, but which is material to the point in
issue. No decision upon this subject appears to have taken
place in our courts ; but 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 per-
jury, 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 ex-
amine 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 of August, 1777, who had been precog-
nosced 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 different account of the matter,
and he swore he had not. . Upon this last falsehood he was
indicted for perjury ; and after a debate on the relevancy, the
prosecutor abandoned the charge ; nor, in truth, does it seem
possible to maintain an indictment for perjury in such a case,
where the question put was clearly incompetent, and the wit-
ness would have been entitled to decline answering it. Prin.
Crim. Law Scot, 470.
Where on an indictment for perjury, upon the trial of an
action, it appeared that the evidence given on that trial by the
defendant contained all the matter charged as perjury, but other
statements not varying the sense, intervened between the mat-
ters set out, Abbott, C. J. held the omission immaterial, since
the effect of what was stated was not varied. Solomon's case,
Ry.fy 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. Callanan's
case, 6 B. % C. 102.
It seems that where the indictment sets forth the substance
and effect of the matters sworn, it must be proved, that in sub-
stance and effect, the defendant swore the whole of what is thus
set forth as his evidence, although the count contains several
distinct assignments of perjury. LeeJ'e's case, 2 Campb. 134.
4 B. # C. 852.
Where the indictment charged that the defendant in sub-
stance and effect swore, &c. and it appeared that the deposi-
tion was made by him and his wife jointly, he following up
Perjury. 679
the statement of the wife, this was held to be no variance-
Grendall's case, 2 C. # P. 563.
An indictment for perjury alleged to have been committed in
an affidavit sworn before a commissioner of the Court of Chan-
cery, stated that a commission of bankrupt 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
commission, and that, at the second meeting, one A. B. was
appointed assignee, and an assignment made to him, and that
he possessed himself of the estate and effects of the petitioner.
It then stated, that at the several meetings before the commis-
sion, the petitioner declared openly, and in the presence and hear-
ing of the said assignee, to a certain effect. At the trial the peti-
tion was produced, and it appeared that the allegation was, that
at the several meetings before the commissioners, the petitioner
declared to that effect. It was held, that this was no variance,
inasmuch as it was sufficient to set out in the indictment 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. Dudman's case, 4 B. $ C. 850.
Where the indictment professes to set out the substance and
effect of the matter sworn to, and in the deposition a word is
omitted, which is supplied in the setting forth of the deposition
in the indictment, this is a 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. Taylor's case, 1 Campb. 404.
And where the indictment, in setting out the substance and
effect of the bill in equity upon the answer to which the per-
jury 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 was house (in the singular
number,) Abbott, C. J. said, The indictment professes to des-
cribe the substance and effect of this bill ; it does not, certainly,
profess to set out the tenor, but this I think is a difference in
substance and consequently a fatal variance. Spencer's case,
Ry. # Moo. AT. P. C. 98.
The omission of a letter, in setting out the affidavit on which
perjury is assigned, will not be material, if the sense is not
altered thereby, as underload for understood. Although it be
under an averment, " to the tenor and effect following."
Beech's case, 1 Leach, 133. Coup. 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
680 Perjury.
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 pritnd
facie sufficient, and that if there was any thing 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. Rowley's case, By. fy 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 beincumbent 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, 2rf ed.
The defendant, although perjury be assigned in his answer,
deposition, or affidavit in writing, may prove that an explana-
tion was afterwards given, qualifying or limiting the first
answer. 2 Stark. Ev. 627. 2rf ed. 2 Russell, 549. Carr's
case, Sid. 418. And if it appear, on the evidence for the prose-
cution, that a part of the defendant'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 overchaige. The defen-
dant was asked whether Watson was indebted to him in the
sum of lls. he answered, " he is." On the question being
repeated, and the witness required to recollect himself, he sub-
joined, " as agent for Mr. Shipley." He was indicted for perjury
upon his first answer ouly, but it appearing upon the case for
the prosecution, 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. Hurry's ease, 1 Lofft's Gilb.
Ev. 57.
Proof of the materiality of the matter sworn."] It must either
appear on the face of the facts set forth in the indictment, that
the matter sworn to, and upon which the perjury is assigned,
was material, or there must be an express averment to that
effect. Dowlin's case, 5 T. R. 318. Niclwll's case, 1 J3. <5f Ad.
21. M'Keron's case, 2 Russell, 541. Thus where upon an
indictment for perjury committed in an answer in Chancery,
the perjury was assigned in the defendant's denial, in the answer,
of his having agreed, upon forming an insurance company, of
which he was a director, &c. to advance lO.OOO/. for three
years, to answer any immediate calls, and there was no aver-
ment that this was material, nor did it appear for what purpose
the bill was filed, nor what was prayed ; the judgment was
Perjury, 681
arrested. Bignold's case, 2 Russell, 541. So perjury cannot
be assigned on an answer in Chancery, denying a promise ab-
solutely void by the statute of frauds. Benesech's case, Peake's
Add. Cases, 93.
The materiality 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 extenuate the damages, nor likely to induce the
jury to give a readier credit to the substantial part of the evi-
dence, it cannot amount to perjury. As if upon a trial in
which the issue is, whether such a one is compos or not, a wit-
ness 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
was asked by a judge, 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 biing 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 same
ground it is said to have been adjudged, that where a witness
being asked, whether such a sum of money were paid for two
things in controversy between the parties, answered, it was,
when in truth it was only paid for one of them by agreement,
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 Rolle 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 him with a staff, was not
guilty of perjury, because the beating only was material. (Hetley,
97.) Hawk. P. C.b. 1. c. 69. s. 8.
After stating these authorities, Mr. Serjeant Hawkins ob-
serves, that perhaps in all these cases it ought to be intended,
that the question 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 inadvertency, to take no notice of the cir-
cumstantial part, and give a general answer to the substantial ;
for otherwise, if it appear plainly that the scope of the question
was to sift him as to his knowledge of the substance, by exa-
mining him strictly as to the circumstances, and he give a par-
ticular and distinct account of all the circumstances, which
afterwards appears to be false, he cannot but be guilty of per-
jury, inasmuch as nothing can be more apt to incline a jury to
give credit to the substantial part of a man's evidence, than his
appearing to have an exact and particular knowledge of all the
circumstances relating to it. Upon these grounds, the opinion
of the judges seems to be very reasonable, (1 Rolle, 368,
682 Perjury.
Palmer, 382,) who held a witness to be guilty of perjury who
in an action of trespass for breaking the plaintiff'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 defen-
fant's, whereas in truth, the defendant never used such a mark ;
for the giving of such a special reason for his remembrance,
could not but make his testimony more credible than it would
have been without it ; and though it signified nothing to the
merits of the cause, whether the sheep had any mark or not, yet
inasmuch as the assigning such a circumstance, in a thing
immaterial, had such a direct tendency to corroborate the evi-
dence 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. 2 Russell, 521.
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 recover upon, for evidence may be very material, and
yet not full enough to prove directly the issue in question.
Rhodes'* case, 2Ld. Raym.88T. So if the evidence was cir-
cumstantially material, it is sufficient. Griepe's case, I Lord
Raym.258. 12 Mod. 142.
A few cases may be mentioned to illustrate the question of
materiality. If in an answer to a bill filed by A. for redemption of
lands assigned to him by B., the defendant swears that he had
no notice of the assignment, and insists upon tacking another
bond debt due from B. to his mortgage, this is a material fact
on which perjury may be assigned. Pepys's cai>e, Peake, N. P.
C. 138. In an answer to a bill filed against the defendant for
the specific performance of an agreement relating to the pur-
chase of land, the defendant had relied on the statute of frauds,
(the agreement not being in writing,) and had also denied hav-
ing 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 de-
fendant was acquitted. Dunston'scase, Ry.fy Moo. N. P. ('.
109, but see Bartlettv. Pickersgill, 4 Burr. 2255, 4 East, 577.
(n.) An indictment for perjury stated that it became a mate-
rial question, whether OH the occasion of a certain alleged arrest
L. touched K., &c. The defendant's evidence as set out was,
" L. put his arms round him and embraced 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 sufficiently
appear. A'/c/iu/fs case, 1 B. 8f Ad. 21.
In order to show the materiality of the deposition or evidence
Perjury. 0&3
of the defendant, it is essential, where the perjury assigned is in
an answer to a bill in equity, to produce and prove the bill, or if
the perjury assigned is on an affidavit, to produce and prove the
previous proceedings, such as the rule nisi of the Court in an-
swer 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 previous 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,
Zd ed.
Proof irf introductory averments.] Where, in order to show
the materiality of the matter sworn to, introductory averments
have been inserted in the indictment, those averments must, as
in other cases, be proved with great accuracy. 2 Russell, 537.
Where the averment is a descriptive one a variance will be
fatal. In an indictment for perjury before a select committee
of the house of commons, it was averred that an election was
had for the borough of New Malton, by virtue of a certain pre-
cept of the high sheriff of the county, by him duly issued to the
bailiff' of the said borough of N. M. The precept was directed
" to the bailiff of the borough of Malton," and it was objected
that this was a variance, but Lord Ellenborough held it not to
be matter of description, and that if the precept actually issued
to the bailiff of the borough of New Malton, it was sufficient.
But the indictment having stated that " A. B. and C. D. were
returned to serve as burgesses for the borough of New Malton,"
this was held to be descriptive of the indenture of return, and
the borough being therein styled the borough of " Malton," the
variance was held fatal. Leefe's cate, 2 Campb. 140. So where
upon the trial of an indictment containing an assignment of
perjury in the following form, " whereas in truth and in fact the
the said defendant at the time of effecting the said policy, that
is to say, a certain policy purporting to have been written by
one Kite by his agent, Meyer, on the 13th August, 1807, &c.
(and by other underwriters specified in the indictment) well
knew, &.C.," and on production of the policy it appeared to have
been underwiitten by Meyer for Kite on the 15th, Lord Ellen-
borough was of opinion, that as the prosecutor had chosen to
allege a fact, material with reference to the knowledge of the
defendant, it was necessary to prove it, and held the variance
fatal. Buck's case, 1 Stark. N. P. C. 523.
But where the introductory averment is not matter of descrip-
tion, it is sufficient to prove the substance of it, and a variance
in other respects will be immaterial. Thus where the indict-
ment averred the perjury to have been committed in the defend-
ant'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 hied of a preceding term, Lord Ellenborough ruled that the
684 Perjury.
variance was not material ; since the day was not alleged a*
part of the record, and that it was sufficient to prove the bill
filed on any other day. Buck's case, I Stark. N. P. C. 521.
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. Waller's case, 2 Stark. Ev. 623-.
So in a similar indictment where it was averred, that Francis
Cavendish Aberdeen, and others, exhibited their bill in the Ex-
chequer, and the bill on the face of it purported to be exhibited
by J. C. Aberdeen, and others, Lord Ellenborough held the
variance immaterial, but that if the indictment had professed to
set out the tenor of the bill, it would have been a variance.
Rojw's case, 1 Stark. N. P. C.518. And upon a motion in arrest
of judgment, the Court of King's Bench held the conviction
right. Per Abbott, J. It is no more than addressing a man by
a wrong name, which may well happen without causing any
uncertainty as to the identity of the peison intended to be ad-
dressed. 6 AI. &; S. 327. And, again in a similar case, where
the bill was stated to have been filed by A. against B. (the de-
fendant 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. Benson's case,
2 Campb. 509. The defendant was tried on an indictment for
perjury, committed in giving evidence, as the prosecutor of an
indictment against A. tor an assault; and it appeared that the
indictment for the assault charged, that the prosecutor had
received an injury, " whereby his life was greatly despaired of."
In the indictment for perjury, the indictment for the assault was
introduced in these words, " which indictment was presented
in manner and form following, that is to say," and set forth the
indictment for the assault at length, and correctly, with the
omission 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 had so strict and
technical a meaningasto make a literal recitalnecessary.butthat
by the words " in manner and form following, that is to say,"
nothing more was requisite than a substantial recital, and that
the variance in the present case was only matter of form, and
did not vitiate the indictment. May's cane, 2 Russell, 539.
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 held immaterial. Jones's case, Peakc, A ; . P.C. 37.
The defendant was indicted for perjury on an answer to a bill
in Chancery, which had been amended after the answer put in.
To prove the amendments, a witness was called, who stated
Perjury. f,85
that the amendments were made by a clerk in the Six Clerks
Office, whose hand-writing he knew, and that the clerk wrote the
word " amendment" against each alteration. Lord Tenterden
was of opinion, that this was sufficient proof of the amendments,
but did not think it material lo the case. Laycock's case, 4 C. &
P. 326.
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. Littledale, one of the justices, &c. On pro-
ducing the record, it did not appear before whom the trial took
place, but the postea stated it to have been before Sir C. Abbott,
C. J., &c. In point of fact, it took place before Mr. Justice
Littledale. Lord Tenterden overruled the objection, that this
was a variance, saying on a trial at the assizes, the posiea
states the trial to have 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 differently, when a judge of the court sits for the chief
justice. Coppard's case, Moody fy Malk. 118.
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 proved, the defendant ought to be found guilty. Rhodes's
case, 2 Lord Raym. 886. 2 W. EL 790. 2 Stark. Ev.
627. '2d 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. 2 Russell, 542. "
Where the prosecutor gave no evidence upon one of several
assignments of perjury, Ueuman, C. J. refused to allow the
defendant to show that the matter was not false. Hemp's case,
5 C. % P. 468.
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, 2rf ed. In this, as in other
cases of intent, the jury may infer the motive from the circum-
stances. Knill's case, 5 B. A. 929, (n.)
There must be proof that the false oath was taken with some
degree of deliberation ; for if, under all the circumstances of
the case, it appears that it was owing to the weakness rather
than the perveiseness of the 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 Russell,
518. 4 Bl. Com. 137.
686 Perjury.
Witnesses number requisite.] It is a general rule, that the
testimony of a single witness is insufficient to convict on a
charge of perjury. This is an arbitrary and peremptory rule,
founded upon the general apprehension that it would be unsafe
to convict, in a case where there would be merely the oath of
one man to be weighed against that of another. 2 Stark. Ev.
626, 2ded. 2 Russell, 644. Hawk. P.O. b.l. c.69. 4 Bl.
Com. 358. Butitissaid that 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 circum-
stance be proved by other witnesses, in confirmation of the
witness who gives the direct testimony of perjury, it may turn
the scale and warrant a conviction. Lee's case, 2 Russell, 545.
So it is said, by Mr. Phillipps, that it does not appear to have
been laid down that two witnesses are necessary to disprove the
fact sworn to by the defendant ; nor does that seem to be
absolutely requisite ; that at least one witness is not sufficient ;
and in addition to his testimony, some other independent evi-
dence ought to be produced. 1 Phill. Ev. 141. 6th ed.
A distinction, however, appears to be taken between proving
the positive allegations in the indictment, and disproving the
truth of the matter sworn to by the defendant ; the latter, as 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
taking 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
Mr. Starkie, (citing the above passage from Hawkins) that it
seems the contradiction must be given by two direct witnesses ;
and that the negative, supported by one direct witness and by
circumstantial evidence, would not be sufficient. He adds that
he had been informed that it had been so held by Lord
Tenterden. 2 Stark, Ev. 626, (n.)
But where a statement by the prisoner himself is given in
evidence, contradicting the matter sworn to by him, it has been
held not to be necessary to call two witnesses to prove the
falsity ; one witness, with proof of the admission, being
sufficient. The defendant made information, upon oath be-
fore a justice of the peace, that three women were con-
cerned in a riot at his mill, (which was dismantled by a
mob, on account of the price of corn) ; and alterwards,
at the sessions, when the rioters were indicted, he was
examined concerning those women, and having been tam-
pered with in their favour, 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 ia the riot, (which was the
perjury assigned), but the defendant's information, which was
read. The judge thought this evidence sufficient, and the
defendant was convicted and transported. Anon. cur. Yules,
Perjury. 687
and afterwards Lord Mansfield, and Wilmot and Aston, J J.
concurred, 5 B.&; A. 939,"940, (n.) 2 Russell, 545. So in a
case where the defendant 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 con-
tradictory 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
committee of the House of Commons ; and further it was
insisted, that the mere proof of a contradictory statement by
the defendant on another occasion was not sufficient, without
other circumstances showing a corrupt motive, and negativing
the probability of any mistake. But the Court held, that the
evidence was sufficient, the contradiction being by the party
himself; and that the jury might infer the motive from the
circumstance, and the rule was refused. Knill's case, 5 B. <5f A.
929, note (a.) So where, 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
taxation, only one witness was called, and, in lieu of a second
witness, it was proposed to put in tiie defendant's bill of costs,
delivered by him to the prosecutor ; upon which it was objected
that this was not sufficient, the bill not having been delivered
on oath, Denman, C. J. was clearly of opinion, that the bill
delivered by the defendant was sufficient evidence, or that even
a letter written, by the defendant contradicting his statement
on oath, would be sufficient to make it unnecessary to have a
second witness. May hew' s case, 6C.<5fP. 315.
There appears, however, to be an objection to this evidence
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 weie made by
Holroyd, 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 committed 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
subsequent time, be convinced that he was wrong, and swear to
the reverse, without irreaning to swear falsely either time.
Again, if a person swears one thing at one time, and another
at another, you cannot convict, where it is not possible to tell
which is the true and which is the false. Jackson's case,
Lewin, C. C. 270.
The following observations on this subject, by an able writer
688 Perjury.
on criminal law, are well deserving of attention. Where
depositions, contrary to each other, have been emitted in the
same matter by the same person, it may with certainty be con-
cluded 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 toge-
ther, without distinguishing which contains the truth and
which the falsehood, would be directly contrary to the precision
justly required in criminal proceedings. In the older practice
this distinction does not seem to have been distinctly recognised;
but it is now justly considered indispensable that the perjury
should be specified as existing in one, and the other deposition
referred to in modum probationis, to make out along with other
circumstances, where the truth really lay. Alison, Princ. Cr.
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 prosecutor's case, and as such they are admitted in the
Scotch law. A party cannot be convicted (says Mr. Alison)
of perjury, upon the evidence merely of pievious 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 declarations 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.
Witnesses competency o/".] It was formerly ruled, that the
party injured by the perjury was incompetent as a witness for
the prosecution, where he might obtain relief in equity, on the
ground of the perjury. Daley's case, Peake, A'. P. C. 12.
Eden's case, 1 Esp. N. P. C. 97. But as it is now an estab-
lished rule, that a court of equity will not grant relief on a con-
viction which proceeds on the evidence of the prosecutor, there
can be no objection to his being admitted as a witness. Bartlett
v. Pickersgill, cited 4 Burr. 2255 , 4 East, 577. 1 Phill. Ev.
1 12, 6th ed. And, in general, the party prejudiced is a com-
petent witness to prove the offence. Rroughton's case, 2 Str.
1230. Abraham v. Bunn, 4 Burr. 2255, 2 Russell, 546. It
is no objection to the competency of a witness, on an indict-
ment for perjury committed in an answer in chancery, that in
Perjury. 689
his answer to a cross bill, filed by the defendant, he has sworn
the fact which he is to prove on the indictment. Pepys's case,
Peake, N. P. C. 138.
If several persons are separately indicted for perjury, in
swearing to the same fact, any of them, before conviction, may
give evidence for the other defendants. 2 Hale, P. C. 280.
Statutes relating to perjury.] The principal statutory enact-
ment respecting perjury is the 29 Eliz. c. 5. the operation
of which is, however, more confined than that of the com-
mon law ; and as it does not (see sec. 13,) 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 sec. 1, the procuring any witness to commit perjury in
any matter in suit, by writ, &c., concerning any lands, goods,
&c., or when sworn in perpetuam rei memoriam, is punishable
by the forfeiture of forty pounds.
By sec. 4, offenders, not having goods, &c. to the value of
forty pounds, are to suffer imprisonment, and stand in the
pillory.
Sec. 5, enacts, that no person or persons, being so convicted
or attainted, be from thenceforth received as a witness to be de-
posed 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 re-
versed 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 reveised, 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.
Sec. 6, enacts, that if any person or persons, either by the
subornation, unlawful procurement, sinister persuasion, or
means of any others, or by their own act, consent, or agree-
ment, wilfully and corruptly commit any manner of wilful per-
jury, by his or their deposition in any of the courts before
mentioned, or being examined ad peipetuam rei memoriam, that
then every person or peisons so offending, 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, without 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 or 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
very such reversal, the parties grieved to recover his or their
690 Perjury.
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 laws of
this realm.
By sec. 7, if such offenders have not goods to the value of
twenty pounds, they are to be set in the pillory, and have their
ears nailed, and to be disabled from being witnesses until judg-
ment reversed.
This provision, as already stated, does not affect persons con-
victed of perjury at common law, whose competency may be
restored by pardon, though it is otherwise with regard to persons
convicted under this statute. Ante, p. 103.
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 subornation 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, &c.," no
perjury, upon an indictment or criminal information, can bring
a man within the statute. Hawk. P. C. b.\. c. 69. s, 19.
Bac. Ab. Perjury, (B.) The statute only extends to perjury by
witnesses, and therefore no one comes within the statute by rea-
son 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 be-
fore 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 be said that
any person was grieved, hindered, or molested. In every pro-
secution on the statute, therefore, it is necessary to set forth the
record of the cause wherein the perjury complained of is sup-
posed 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 tiue copy of it, which must agree with that set forth in the
pleadings, without any material variance, otherwise it cannot
legally appear that there ever was such a suit depending, 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 1o all the plaintiffs. Hawk. P. C. b. 1. c. 69. s.
23. Bac. Ab. Perjury, (B.) IRmsell, 534.
Various provisions for facilitating the punishment of per-
sons guilty of perjury, are contained in the stat. 23 G. 2. c. 11.
By section 3, the judges of assize, &c. may direct any wit-
ness to be prosecuted for perjury, and may assign counsel,
&c. By secions 1 and 2, the indictment in perjury is much
Perjury Subornation of. 691
simplified, it being made sufficient to set forth the substance
of the offence charged upon the defendant ; and by what
court, or before whom the oath was taken, (averring- such
court or person to have a competent authority to administer
the same,) together with the proper averments to falsify the
matter wherein the perjury is assigned, without setting forth the
bill, answer, &c. or any part of any record or proceeding, and
without setting forth the commission or authority of the court or
person before whom the perjury was committed ; and so also
with regard to indictments for subornation of perjury.
The statutes, imposing the punishment of perjury upon the
taking of false oaths in particular matters, are extremely numer-
ous. An abstract of the principal of these will be found in
2 Russell, 526, et seq., and in 2 Deacon, Dig. C. L. 1010.
SUBORNATION OF PERJURY.
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.l.c.69.s. 10.
Upon an indictment for subornation of perjury, the prosecutor
must prove, 1, Ine inciting by the defendant, and that he knew
that the evidence to be given was false ; and 2, the taking of
the false oath by the witness, &c.
Proof of the incitement.'] The incitement may be proved by
calling the party who was suborned, and though convicted, he
is a competent witness if he has been pardoned. Reilly's case,
1 Leach, 454. The knowledge of the defendant that the evi-
dence about to be given would be false, will probably appear
from the evidence of the incitement, or it may be collected from
other circumstances.
Proof of the taking of the false oath.'] In general the proof
of the perjury will be the same as upon an indictment for per-
jury, against the witness who perjured himself ; and even if the
latter has been convicted, it will not, as it seems, be sufficient,
against the party who has suborned him, to prove merely the re-
cord of the conviction ; but the whole evidence must be gone
into as \ipon the former trial. The defendant 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 defend-
anl, that the record was not of itself sufficient evidence of the
692 Piracy.
fact ; that the jury had a right to be satisfied that such convic-
tion was coned; that the defendant had a right to controvert the
guilt of Macdaniel, and that the evidence given on the trial of
the latter ought to be submitted to the consideration of the pre-
sent 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. Reilly's case, 1 Leach,
455. Upon this case Mr. Staikie has made the following ob-
servations : This authority seems at fiist sight to be incon-
sistent 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. Jf the pri-
soner, instead of being indicted as a principal in procuring, &c.,
had been indicted as accessory before the fact, in procuring,
&LC., the record would clearly have been good primii facie evi-
dence of the guilt of the principal. It is, however, to be recol-
lected, that this doctrine rests rather upon technical and arti-
ficial grounds, than on any clear and satisfactory principle of
evidence. 2 Stark. Ev. 627, 2d ed. It may also be observed,
that the indictment for subornation of perjury does not set forth
the convictiim 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 Turner's case, 1 Moodu, C'. C. 347, post, the judges
expressed a doubt whether, if an indictment against a re-
ceiver stated, not the conviction, but the guilt of the principal
felon, the record of the conviction of the principal would be
sufficient evidence of the guilt.
PIRACY.
Offence at common law . . . 692
Stat. 1 1 <5f 12 W. 3. c. 7. . . . 693
8 G. I.e. 24. . . . .693
18 G. 2. c. 30. . . . 694
32 G. 2. c. 25. . . . 694
5 G. 4. c. 113, dealing in slaves . 694
Proof of the piracy .... 695
Pnof with regard to the persons guilty . . 695
Proof with regard to accessories . . . 696
Venue and trial .... 696
Offence at common law.'] The offence of piracy at common
law consists in committing those acts of robbery and depreda-
tion upon the high seas, which, if committed on land, would
Piracy. 693
have amounted to felony there; though it was no felony at
common law. 2 at, P. C. 796. 4 Bl. Com. 72 Hawk. P. C.
c. 37. s. 4. Before the statute 28 Hen. 8. c. 15, the offence
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 de-
scribed.
Statute 11 # 12 IF. 3. c. 7.] By statute 11 & 12 W. 3.
c. 7. s. 8, it is enacted, that 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 colour 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.
By section 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 merchandize, or yield them up voluntarily to any
pirate; or shall bring any seducing message from any pirate,
enemy, or rebel ; or consult, combine, or confederate with, or
attempt, or endeavour to corrupt any commander, master, offi-
cer, or mariner, to yield up, or run away with any ship, goods,
or merchandize, or turn pirates, or go over to pirates ; or if any
person shall lay violent hands on his commander, whereby to
hinder him from fighting in defence of his ship, and goods com-
mitted to his trust, or shall confine his master, or make, or en-
deavour to make a revolt in his ship, he shall be adjudged,
deemed, and taken to be a pirate, felon, and robber, and suffer
death, &c.
Upon the above section (9) of the 11 & 12 W. 3. c. 7, it has
been decided by the twelve judges, that the making, or endea-
vouring to make a revolt on board a ship, with a view to procure
a redress of what the prisoners may think grievances, and with-
out any intent to run away with the ship, or to commit any act
of piracy, is an offence within the statute. Hasting's case,
1 Moody, C. C. 82.
Stat. 8 G.I. c. 24.] By statute 8 G. 1. c. 24. s. 1, it is
enacted, that in case any person or persons belonging to any ship,
or vessel whatsoever, upon meeting any merchant ship, or vesstl
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 over-
board, or destroy any part of the goods or merchandize belonging
694 Piracy.
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 anyways 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.
Statute 18 G. 2. c. 30.] By statute- 18 G. 2. c. 30, it is
enacted, that all persons being natural born subjects or denizens
of his Majesty, who, during any war, shall commit any hos-
tilities upon the sea, or in any haven, river, creek, or place
where the admiral or admirals have power, authority, or juris-
diction, against his Majesty's subjects, by viitue or under colour
of any commission from any of his Majesty's enemies, or shall
be any other ways adherent, or giving aid or comfort to his Ma-
jesty's enemies upon the sea, or in any haven, river, creek, or
place where the admiral or admirals have power, &c., may be
tried as pirates, felons, and robbers in the Court of Admiralty,
in the same manner as pirates, &c., are by the said act (1 1 & 12
W. 3.) directed to be tried, and shall suffer death.
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 Hen. 8. Evans's case, 2 East, P. C. 798.
Stat. 32 Geo. 2. c. 25.] By stat. 32 Geo. 2. c. 25, s. 12, in
case any commander of a private ship or vessel of war, duly
commissioned by the 29 G. 2. c. 34, or by that act, shall agree
with any commander or other person belonging to any neutral or
other ship or vessel (except those of his Majesty's declared ene-
mies) for the ransom of any such neutral or other ship or vessel,
or cargo, after the same has been taken as a prize, and shall, in
pursuance of such agreement, quit, set at liberty, or discharge
any such prize, instead of bringing it into some port of his Ma-
jesty's dominions, such offender shall be deemed and adjudged
guilty of piracy, felony, and robbery, and shall suffer death. See
itat. 22 Geo. 3. c. 25, and 2 East, P. C. 801.
Stat. 5 Geo. 4. c. 113 dealing in slaves.] By statute 5 Geo.
4. c. 113, s. 9, the carrying away, conveying, or removing, of
any person upon the high seas for the purpose of his being im-
Piracy. 695
ported or brought into any place as a slave, or being sold or dealt
with as such, or the embarking or receiving onboard any person
for such purpose, is made piracy, felony, and robbery, punishable
with death. By section 10 the dealing in slaves, and other of-
fences connected therewith, are made felony.
Proof of the piracy.] The prosecutor must give evidence of
facts, which, had the transaction occurred within the body of a
county, would have rendered the offender guilty of larceny or rob-
bery at common law. He must therefore show a taking anhno
furandi and lucri causa. It is said that if a ship is attacked by
a pirate, and the master, for her redemption, gives his oath to
pay a sum certain, though there is no taking, yet it is piracy by
the law marine, but by the common 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 Ed. 3/14, 4 Hen. 4. If a
ship is riding at anchor, with part of the mariners 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 sub-
ject of a foreign power in amity with this country may be pun-
ished 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 in-
tent to defraud the owners and insurers, on an indictment for
piracy and stealing the goods, it was held to be only a breach
of trust, and no felony, and that it could not be piracy to con-
vertjthejgoods in a fraudulent manner, until the special trust was
determined. Mason's case, 2 East, P. C. 796, 8 Mod. 74. But
it is otherwise with 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.
May's case, 2 East, P. C. 796. The prisoners were convicted
upon a count charging them with feloniously and piratically
stealing sixty-five fathoms of cable, &c., upon the high seas,
within the jurisdiction of the admiralty. It appeared that they
were Deal pilots, who having been applied to by the master to
take the vessel into Ramsgate, had, in collusion with him, cut
away the cable and part of the anchor, which had before been
broken, for the purpose of causing an average loss to the under-
writers. It was objected that the offence of the prisoners was
not larceny, having been committed by them jointly with the
master of the vessel, not for the purpose of defrauding the owners,
696 Piracy.
but for the purpose of defrauding the underwriters for the benefit
of the owners. A majority of the judges, however, held the
conviction right. Curling's case, Russ. fy Ky. 123.
Proof with regard to accessories.] Accessories to piracy were
triable only by the civil law, and if their offence was committed
on land, they were not punishable at all before the stat. 11 & 12
W. 3. c. 7. s. JO. And now by salute 8 Geo. 1. c. 24. s. 3,
all persons whatsoever, who, by the stat. 11 & 12 \V. 3. c. 7.
are declared to be accessory or accessories to any piracy or rob-
bery therein mentioned are declared to be principal pirates, felons,
and robbers, and shall be inquired of, heard, determined, and
adjudged, in the same manner as persons guilty of piracy and
robbery may, according to that statute, and shall suffer death in
like manner as pirates, &c.
The knowingly abetting a pirate, within the body of a county,
is not triable at common law. Admiralty case, 13 Kep. 53.
Venue and fria/.] The decisions with respect to the venue
upon prosecutions for offences committed on the high seas have
been already stated, ante, p. 187.
By statute 46 Geo, 3. c. 54. all treasons, piracies, felonies,
robberies, murders, conspiracies, and other offences, of what na-
ture 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, &c., accor-
ding 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 Bri-
tain, to be directed to any such four or more discreet persons as
the Lord Chancellor, &c., shall from time to time think fit to
appoint. The commissioners are to have the same powers as
commissioners under the statute 28 Hen. 8.
697
POST OFFICE OFFENCES RELATING TO.
Embezzlement by officers of ... 697
Proof that the prisoner was a person employed by the
post office .... 698
Proof of the secreting, embezzlement, or destruction . 699
Proof of the Letter or packet intrusted to the prisoner 699
Proof that the letter, fyc., contained the whole or some
part of a note, <5fc. . . . 700
Accessories, fyc., .... 701
Embezzling money and destroying letters by persons in the
post office . . . .701
Stealing letters 6i/ persons not employed in the post office . 702
Secreting letters, fyc., found . . . 704
Embezzling newspapers, notes, fyc. . . . 704
Forging post office marks . . . 704
Forging franks 705
Embezzlement by officers of post office.] The law with regard
to the embezzlement of letters by persons employed in the post
office was formerly contained in the statutes 5 Geo. 3. c. 25. s.
17, 7 Geo. 3. c. 50. s. 1, and 42 Geo. 3. c. 81. s. 1. The pro-
visions of those acts are, however, now consolidated in the 52
G. 3. c. 143.
The first section of that statute lakes away the penalty of death
for breach of the revenue laws, except where imposed by that
act itself.
The first section enacts, that if any deputy, clerk, agent,
letter carrier, post boy, or rider, or any other officer or person
whatsoever, employed by or under the post office of Great Britain,
in receiving, stamping, sorting, charging, carrying, conveying,
or delivering letters or packets, or in any other business relating
to the said office, shall secrete, embezzle, or destroy any letter
or packet, or bag, or mail of letters, with which he or she shall
have been intrusted in consequence of such employment, or
which shall in any other manner have come to his or her hands
or possession, whilst so employed, containing the whole, or any
part or parts of any bank note, bank post bill, bill of exchange,
exchequer bill, South Sea or East India bond, dividend war-
rant, either of the bank, South Sea, East India, or any other
698 Post office offences relating to.
company, society, or corporation, navy, or victualling or trans-
port bill, ordnance debenture, seaman's ticket, state lottery
ticket, or certificate, bank receipt for payment on any loan, note
of assignment of stock in the funds, letter of attorney for receiv-
ing annuities or dividends, or for selling stock in the funds, or
belonging to any company, society, or corporation, American
provincial bill of creJit, goldsmith's or banker's letter of credit,
or note for or relating to the payment of money, or other bond
or warrant, draft, bill, or promissory note whatsoever, for the
payment of money : or shall steal and take out of any letter or
packet, with which he or she shall have been so en trusted, or which
shall have so come to his or her hands or possession, the whole,
or any part or parts of any such bank note, bank post bill, bill of
exchange, exchequer bill, South Sea or East India bond, divi-
dend warrant, either of the bank, South Sea, East India, or any
other company, society, or corporation, navy, or victualling or.
transport bill, ordnance debenture, seaman's ticket, state lottery
ticket or certificate, bank receipt for payment of any loan, note
of assignment of stock in the funds, letter of attorney for receiv-
ing annuities or dividends, or for selling stock in the funds, or
belonging to any company, society, or corporation, American
provincial bill of credit, goldsmith's or banker's letter of credit,
or note for or relating to the payment of money, or other bond
or warrant, draft, bill, or promissory note whatsoever, for the
payment of money ; every person so offending, being thereof
convicted, shall be adjudged guilty of felony, and shall suffer
death as a felon, without benefit of clergy.
Upon a prosecution for secreting, embezzling, or destroying
any letter, &c., under this statute, the prosecutor must prove,
1st, that the prisoner was a deputy, &c., or person employed by or
under the post-office in receiving, &c. ; 2d, that he did secrete,
embezzle, or destroy ; 3d, a letter, or packet, &c. entrusted to
him, in consequence of his employment, or come to his posses-
sion while so employed ; and 4th, that it contained the whole
or some part of some bank-note, &c.
Embezzlement by officers of proof that the prisoner was a person
employed under the post-office.] The employment of the prisoner
in some one of the special capacities named in the statute, or
generally " by or under the post-office," must be proved. It
is not necessary in these cases to produce the actual appointment
of the prisoner, it is sufficient to show that he acted in the capacity
imputed to him. Barrett's case, 6 C. f P. 124. liees's case,
Id. 606. The prisoner was indicted on the 7 G. 3. c. 50,
in the first and third counts, as " a person employed in sorting
and charging letters in the post-office," and 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
Post-office offences relating to. 699
fourth counts only. It was objected that as he was acquitted on
the counts charging him as a sorter and charger, and it was not
proved that he was employed in any other capacity than that of
sorter, he ought not to have been convicted on the second and"
fourth counts. The judges thought the objection valid, but
were inclined to be of opinion that the prisoner might have been
properly convicted upon the first and third counts by a special
rinding, that he was a sorter only. Shaw's case, 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 was a rider as well as a post-boy. Ellins's case, Russ. &$
Ry. 188. A person employed at a receiving-house of the
general post-office to clean boots, &c., and who occasionally
assisted in tying up the letter-bags, is not a person employed by
the post-office within 52 G. 3. c. 143. s. 2. Pearson's case,
4 C. % P. 572.
Where the prisoner was employed by a post-mistress to carry
letters from D. to 13., 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
statute 52 G. 3. c. 143. s. 2. Salisberry's case, 5 C. # P. 155.
In the above case, Patteson, J., was inclined to think that the
words "whilst employed," 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, Ibid.
ZiJtzzlement by officers of proof of the secreting, embezzle-
ment, or destruction.] The prosecutor must prove that the pri-
soner either embezzled, secreted, or destroyed the letter or
parcel, &c. described. Where the prisoner secreted half a
bank-note on one day, and the other half on another day, it
was held to be a secreting of the note within the statute 7 G. 3.
c. 50. The doubt was, whether secreting in the statute did not
mean the original secreting, as taking does ; but the judges dis-
tinguished between taking and secreting, for after the prisoner
had got possession of the second letter, he secreted both.
Moore's case, 2 East, P. C. 582. The statute 52 G. 3. men-
tions, " any part of any bill," &c. The secreting will be proved
in general by circumstantial evidence. Vide ante, as to conceal-
ment of effects by Bankrupts, p. 224.
Embezzlement by officers of proof of the letter or packet
intrusted, to the prisoner.] It must be proved that there was
a letter or packet, &c. intrusted to the prisoner, in consequence
of his employment, or which came to his hands in consequence
of his employment. In an indictment upon the 7 G. 3. c. 50,
nn2
700 Post-office offences relating to.
the letter was described as one " to be delivered to persons
using in trade the name and firm of Messrs. B. N. & H." the
word Messrs, being frequently added to their address in the
direction of letters and other papers received on business,
though they themselves in drawing bills, &c. never used the
word, this was held to be no variance. Dawson's case, 2 East,
P. C. 605.
Embezzlement by officers of proof that the letter, <fc. con-
tained ihe whole or some part of n note, &;c.~\ It must appear
that the letter or packet, &.C., contained the whole or some part
of a note or other instrument enumerated in the statute. Where
the letter embezzled was described as containing several notes, it
was held sufficient to prove that it contained any one of them, the
allegation not being descriptive of the letter, but of the offence.
Ellin*' s case, Rms. <Sf Ry. 188. It is not necessary to prove
the execution of the instruments which the letter is proved to
contain. Ibid. Country bank-notes paid in London, and not
re-issued, have been held to be within the statute 7 G. 3. 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. Ransom's case, Russ. # Rti. 23'2. 2 Leach,
1090. Upon an indictment under the 7 G. 3, it was held that
a bill of exchange might be described as a warrant for the
payment of money, as in cases of forgery. Willovghkii's cose,
2 East, P. C. 58-1. Neither the former statutes nor the 52 G. 3,
contain the word " coin" or " money." The prisoner was
indicted under the former statutes for stealing 5s. 3d. 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. Skutt's case,
2 Lust, 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 G. 3. c. 25, was held not to
be a draft within the 7 G.3. c. 50. Poolers case, Russ.fy Ry. 12.
2 Leach, 887, 3 Bo*. <Sf Pul. 311.
It seems that the contents of the letter secreted, &.c. will not
be evidence as against the prisoner to prove that the letter con-
tained the valuable security mentioned in it. P turner's case,
Rum. fy Ry. 264. The letter in question had marked upon it,
" p:iid 2s.," which was the rate of double postage. This was
wiitten by the clerk of the writer of the letter, who had paid the
postage, but was not called. There being no other proof of the
double postage, the judges held the conviction wrong. Plttmer'.\
case, Russ. f Ry. 264.
Embezzlement by officers of- accessories, fc.] By 52 G . 3 . c. 1 43 .
Post-office offences relating to. 701
s. 4, it isenacted, that if any peison shall counsel, command, hire,
persuade, procure, aid, or abet any such deputy, clerk, agent, let-
ter carrier, post-boy, or rider, or any officer or person whatsoever
employed by, or under the said office, in receiving, stamping,
sorting, charging, carrying, conveying, or delivering letters, or
packets, or in any other business relating to the said office, to
commit any of the offences hereinbefore mentioned, or shall with
a fraudulent intention buy, or receive the whole, or any part or
parts of any such security, or instrument, as hereinbefore de-
scribed, which shall have been contained in, and which at
the time of buying or receiving thereof, he or she shall know
to have been contained in any such letter or packet so secreted,
embezzled, stolen, or taken by any deputy, clerk, agent, letter
carrier, post-boy, or rider, or any other officer, or person so em-
ployed as aforesaid, or which such person so buying or receiving
as aforesaid, shall at the time of buying or receiving thereof,
know to have been contained in, and stolen, and taken out of
any letter or packet stolen, and taken from, or out of any mail,
or bag of letters sent and conveyed by such post, or from or out
of any post-office, or house, or place for the receipt or delivery
of letters, or packets, or bags, or mails of letters, sent or to be
sent by such post, every person so offending, and being thereof
convicted, shall be adjudged guilty of felony, and shall suffer
death as a felon, without benefit of clergy, and shall and
may be tried, convicted, and attainted of such felony, as well
before as after the trial or conviction of the principal felon,
and whether the said principal felon shall have been appre-
hended, or shall be amenable to justice or not.
Embezzling money and destroying letters and by persons em-
ployed in the post-office.'] By statute 5 G. 3. c. 25. s. 19, it is
enacted, that if any deputy, clerk, agent, letter carrier, or other
servant, appointed, authorised, and entrusted, to take in letters
or packets, and receive the postage thereof, shall embezzle or
apply to his, her, or their own use, any money or monies by
him, her, or them received with such letters or packets, for the
postage thereof, or shall burn, or otherwise destroy any letter
or letters, packet or packets, by him, her, or them, so taken in
or received, or who by virtue of their respective offices shall
advance the rates upon letters or packets sent by the post, and
shall not duly account for the money by him, her, or them received
for such advanced postage, every such offender or offenders,
being thereof convicted as aforesaid, shall be deemed guilty of
felony.
By the statute 7 G. 3. c. 50. s. 3, (not expressly repealing
the 5 G. 3,) it is enacted, that if any deputy, clerk, agent, let-
ter-carrier, officer, or other person whatsoever, employed or
hereafter to be employed in any business relating to the post-
office, shall take and receive into his, her, or their hands or pos-
702 Post-office offences relating to.
session, any letter or letters, packet or packets to be forwarded
by the post, and receive any sum or sums of money therewith
for the postage thereof, shall burn or otherwise destroy any letter
or letters, packet or packets, by him, her, or them so taken in
cr received ; or if any such deputy, clerk, agent, letter-carrier,
officer, or other person whatsoever so employed, or hereafter to
be so employed, shall advance the rate or rates of postage upon
any letter or letters, packet or packets, sent by the post, and
shall secrete, and not duly account for the money by him, her,
or them, received for such advanced postage, being thereof con-
victed as afoiesaid, shall be deemed guilty of felony.
The prisoner having been indicted under the foregoing sta-
tutes, 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
oflice, 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 post-
age, which had been paid. The prisoner, it is said, remained
in prison several years, but no judgment appears to have been
given. Sloper's case, 2 East, P. C. 583, 1 Leach, 81.
Stealing letters by persons not employed in the post-office.]
By the 7 G. 3. c. 50. s. 2, it is enacted, that if any person or
persons whatsoever shall rob any mail or mails, in which letters
are sent or conveyed by the post, of any letter or letters, packet
or packets, bag or mail of letters, or shall steal and take from or
out of any such mail or mails, or from or out of any bag or bags
of letters, sent or conveyed by the post, or from or out of any
post-office, or house or place for the receipt or delivery of letters
or packets sent or to be sent by the post, any letter or letters,
packet or packets ; although such robbery, stealing, or taking,
shall not appear, or be proved to be a taking from the person,
or upon the King's highway ; or to be a robbery committed in
any dwelling-house, or any coach-house, stable, barn, or any
outhouse belonging to a dwelling-house ; and although it should
not appear that any person or persons were put in fear by such
robbery, stealing, or taking ; yet such offender or offenders, being
thereof convicted as aforesaid, shall, nevertheless, respectively
be deemed guilty of felony ; and shall suffer death as a felon,
without benefit of clergy.
This offence may be tried either in the county where it is
committed, or where the offender is apprehended. 42 G. 3.
c. 81. s. 3.
By 52 G. 3. c. 143. s. 3, it is enacted, that if any person
shall steal and take from any carriage, or from the possession of
any person employed to convey letters sent by the post of Great
Britain, or from or out of any post-office, or house, or place for
the receipt or delivery of letters or packets, or bags or mails of
Post-office offences relating to. 703
letters, sent or to be sent by such post, any letter or packet, or
mail of letters sent or to be sent by such post ; or shall steal and
take any letter or packet out of any such bag or mail, every
person so offending, and being thereof convicted, shall be
adjudged guilty of felony; and shall suffer death as a felon,
without benefit of clergy, and such offences shall and may
be inquired of, tried and determined either in the county
where the offence shall be committed, or where the party shall
or may be apprehended.
Although it has been held, that a person in the employ of the
post-office is not within the second section of the statute 52 G. 3.
c. 143, ante, p, 698, yet such a person may be indicted and
convicted under the third section for stealing a letter. Brown's
case, Russ. fy Ry. 32, (n.) 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 G. 3, and found
guilty, all the judges held the conviction right, on a count for
stealing the letters out of the post-office ; for his artifice in ob-
taining the delivery of them in the bag out of the house, was the
same as if he had actually taken them out himself. Pearce's
case, 2 East, P. C. 603. Upon the same statute, (7 G. 3,) it
was held, that a letter carrier taking letters out of the office, in-
tending to deliver them to the owners, but to embezzle the post-
age, could not be indicted for stealing such letters. Howard's
case, 2 East, P. C. 604.
The above statute makes it an offence to steal from the pos-
tession (not from the person) of persons employed to convey let-
ters, &c. Therefore, where a mail-rider, after fixing the port-
manteau containing the letters on his horse, fastened his horse
at the post-office, and went to a house about thirty yards dis-
tant 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 pos-
session of the mail-rider, and that possession had never been
abandoned. Robinson's case, 2 Stork. A r . P. C. 485.
With regard to what is to be considered a " post-office"
within the above statute, it has been held, that a " receiving-
house" is not such, but such house is " a place for the receipt
of letters" within the act ; and, if a shop, the whole shop is to
be considered as " a place for the receipt of letters,'' and,
therefore, the putting of a letter on the shop counter, or giving
it to a person belonging to the shop, is a putting into the post.
Pearson's case, 4 C. &; P. 572.
To complete the offence under the above section, of stealing
a letter from the place of receipt, the letter should be carried
wholly out of the shop, and, therefore, if a person open a letter
in the shop, and there steal the contents without taking the let-
ter out of the shop, the case is not within the statute. Ibid.
704 Post-office offences relating to.
Secreting letters, <fc., found.'] By 42 G. 3. c. 81. s. 4, re-
ciiing that it frequently happened that bags or mails of letters
sent by the post, having been stolen, or accidentally lost, and
afterwards found, or picked up, were wilfully detained by the
persons finding the same, in expectation of gain or reward ; it is
enacted, that if any person or persons shall wilfully secrete,
keep, or detain, or being required to deliver up by any deputy,
clerk, agent, letter-carrier, post-boy, rider, driver, or guard of
any mail-coach, or any other officer or person whatsoever em-
ployed, or to be employed in any business relating to the post-
office, shall refuse, or wilfully neglect to deliver up any mail or
bag of letters, sent or conveyed or made up in order to be sent
or conveyed by the post, or any letter or letters, packet or
packets, sent or conveyed by the post, or put for that purpose
into any post-office, or house, or place for the receipt or de-
livery of letters or packets sent, or to be sent by the post, and
which letter or letters, packet or packets, bag or mail of letters,
shall have been found or picked up by the same or any other
person or persons, or shall, by or through accident or mistake
have been left with, or at the house of the same, or any other
person or persons, each and every person or persons so offend-
ing shall be deemed and taken to be guilty of a misdemeanor,
to be punished by fine and imprisonment.
Embezzling newspapers, votes of parliament, $c.] By 5 G. 4.
c. 20. s. 10, it is enacted, that from and after the passing of
this act, if any deputy, clerk, agent, letter-carrier, letter-sorter,
post-boy, or rider, or any other officer or person whatsoever
employed, or hereafter to be employed in receiving, stamping,
sorting, charging, conveying, or delivering letters or packets, or
in any other business relating to the post-office in the said
United Kingdom, shall wilfully purloin, embezzle, secrete, or
destroy, or shall wilfully permit, or suffer any other person or
persons to purloin, embezzle, secrete, or destroy any printed
votes or proceedings in parliament, or printed newspapers, or
any other printed paper whatsoever, sent or to be sent by the
post without cover or covers, open at the sides, each and every
such person or persons so offending, shall be deemed and taken
to be guilty of a misdemeanor, and be punished by fine and im-
prisonment, and such offences shall and may be inquired of,
tried and determined either in the county where the offence
shall be committed, or where the party shall or may be appre-
hended.
Forging post-office mar/ts.] By 54 G. 3. c. 169, s. 14, it is
enacted, that if any person shall forge or counterfeit, or cause
to be forged or counterfeited, any stamp, mark of postage,
or designation upon any letter, thereby authorised to be so
stamped, marked, or designated, with intent to avoid the pay-
Prison Breach. 705
ment of the rate of postage thereby imposed, each and every per-
son and persons so offending, shall be deemed and taken to be
guilty of a misdemeanor, to be punished by fine and imprison-
ment, and such offence, if committed within Great Britain,
shall and may be inquired of, tried, and adjudged, either within
the city of London, or where the offence shall be committed.
Forging franks.'] The forgery of franks was made felony by
the 24 G.3, Sess. 2. c. 37. s. 9 : and by statute 42 G. 3. c. 63.
s. 14, it is enacted, that if any person shall forge or counterfeit
the hand-writing of any person whatsoever in the superscription
of any letter or packet to be sent by the post, in order to avoid
the payment of the duty of postage, or shall forge, counterfeit,
or alter, or procure to be forged, &c., the date upon the super-
scription of any such letter or packet, or shall write and send by
the post, or cause to be written and sent by the post, any letter
or packet, the superscription or cover whereof shall be forged or
counterfeited, or the date upon such superscription or cover
altered in order to avoid the payment of the duty of postage,
knowing the same to be forged, counterfeited, or altered ; every
person so offending, and being thereof convicted in due form of
law, shall be deemed guilty of felony, and shall be transported
for seven years.
PRISON BREACH.
Proof of the nature of the offence for which the person
was imprisoned . . . 706
Proof of the imprisonment and the nature of the prison . 706
Proof of the breaking of the prison . . , 707
Conveying toots, &c. to prisoners to assist escape . 707
Special enactments .... 708
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 com-
mon law ; where he is in custody on a minor charge, it is a
misdemeanor. Statute 1 Erf. 2. st. 2. 1 Russell, 378.
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.
R H 5
706 Prison Breach.
Proof of the nature of the offence for which the prisoner wat
imprisoned.] The statute de frangentibus prisonam, 1 Ed. 2.
st. 2, enacts " that none thenceforth 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 judg-
ment of life or member, it is not a felony. 1 Russell, 379. And
though the offence for which the party is committed 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.
Ibid. It seems that the stating the offence in the mittimus
to be one of lower degree than felony, will not prevent the break-
ing from being a felony, if in truth the original offence was such.
hawk. P. C. b. 2. c. 18. s. 15. 1 Russell, 379. A prisoner on a
charge of high treason, breaking prison, is only guilty of a felony.
Hawk. P. C. b. 2. o. 18. s. 15. It is immaterial whether the
party breaking prison has been tried or not. Id. s. 16.
Where the prisoner had been convicted, the certificate of the
clerk of assize, &c. with proof of identity, will be proof of the
nature and fact of the conviction and of the species and period
of confinement to which the party was sentenced. 4 Geo. 4.
c. 64. s. 44. ante, p. 355.
Although it is immaterial whether or not the prisoner has been
convicted of the offence with which he has been charged, yet if
he has been tried and acquitted, and afterwards breaks prison,
he will not be subject to the punishment of prison breach. And
even if the indictment for the breaking of the prison be before
the acquittal, and he is afterwards acquitted of the principal
felony, he may plead that acquittal in bar of the indictment for
felony, for breach of prison. 1 Hale, P. C. 611, 612.
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 imprisonment; actual imprisonment
will not be sufficient ; it must be primd facie justifiable.
Therefore where a felony has been committed, and the prisoner
is apprehended 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. 18. *. 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 within the statute, his imprison-
ment 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
Prison Breach. 707
in fact been committed, for the accusation being on record, makes
his imprisonment lawful, though the prosecution be groundless.
Hawk. P. C. b. 2. c. 18. s. 5, 6.
The statute extends to a prison in law, as well as to a prison
in deed. 2 Inst. 589. An imprisonment in the stocks, or in
the house of him who makes the arrest, or in the house of
another is sufficient. 1 Hale, P. C. 609. So if a party arrested,
violently rescues himself from the hands of the party arresting
him. Ibid. 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 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. So if another person breaks open the prison. Id.
And if the prison be fired, and the prisoner escapes to save his
life, this excuses the felony, unless the prisoner himself set
fire to the prison. Id. In these cases the breaking amounts
to a misdemeanor only.
A prisoner convicted of felony made his escape over the
walls of the prison, in accomplishing which, he threw down some
bricks from the top of the wall, which had been placed there
loose, without mortar, in the form of pigeon holes, for the pur-
pose of preventing escapes. Being convicted of prison break-
ing, 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. Haswell's case, Runs. Ry. 458.
Conveying tools, <Sfc. to prisoners to assist in escape.] By
statute 4 Geo. 4. c. 64. s. 43, it is enacted, that if any person
shall convey or cause to be conveyed into any prison to which
that act shall extend, any mask, vizor, or other disguise, or any
instrument or arms proper to facilitate the escape of any pri-
soneis, and the same shall deliver or cause to be delivered to
any prisoner in such prison, or to any other person there, for
the use of any such prisoner, without the consent or privity of
the keeper of such prison, every such person shall be deemed to
have delivered such vizor or disguise, instrument or arms, with
intent to aid and assist such prisoner to escape, or attempt to
escape ; and if any person shall by any means whatever aid and
assist any prisoner to escape, or in attempting to escape from
any prison, every person so offending, whether an escape be
actually made or not, shall be guilty of felony, and being con-
708 Rape.
victed thereof, shall be transported beyond the seas for any term
not exceeding 14 years.
Special enactments,'] The offence of prison breach is made
the subject of special provisions in various statutes. Thus, by
the 59 Geo. 3. c. 11, prison breaking from the General Peni-
tentiary at JVIilbank, is made punishable by additional impri-
sonment for three years, and in case of a second offence, with
death.
RAPE.
Statutes respecting . . . * 708
Proofs with regard to the person committing the offence . 708
Proofs with regard to the person on whom the offence is
commuted , 709
Proof of the offence .... 709
Accessories . . . . .710
Competency of witnesses .... 710
Of the unlawful carnal knowledge of 'female children . 711
Assault with intent to ravish . . . 712
Statutes respecting.] Rape is defined by Lord Hale to be the
carnal knowledge of any woman, above the age of ten years,
against her will ; and of a woman child, under the age of ten
years, with or against her will. 1 Hale, P. C. 628. 3 Inst. 60.
Hawk. P. C. fe. 1. c. 41. s. 2. The offence has been the subject
of various statutory provisions, (Westm. 1. c. 13; Westm. 2.
c. 34 ; 18 Eliz. c. 7. s. 1.). And now, by statute 9 G. 4. c. 31,
s. 16, it is enacted, that every person convicted of the crime
of rape shall suffer death as a felon.
Proof with regard to the person committing the offence.] Au
infant under the age of fourteen years is presumed by law un-
able 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.
And although a husband cannot be guilty of a rape upon his
own wife, yet he may be guilty as a principal in assisting
another person to commit a rape upon her. Lord Audley's case,
1 St. 7V. 387, fo. ed. 1 Hale, P. C. 629. The wife in this case
is a competent witness against her husband. Id.
Rape. 709
Proof with regard to the person upon u-hom the offence is com-
mitted.] It must appear that the offence was committed against
the will 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 that she was a common strumpet ; for she is
still under the protection of the law, and may not be forced ; or
that she was first taken with her own consent, if she was after-
wards 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 incapable of amendment.
All these circumstances, however, are material, to be left to the
jury in favour of the accused, more especially in doubtful cases,
and where the woman's testimony is not corroborated by other
evidence. 1 East, P. C. 444. 1 Hale, 628, 631. Hawk. P. C.
b. I.e. 41. s. 2.
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 Russell, 557.
Whether carnal knowledge of a woman, who, at the time
of the commission of the offence, supposed the man to be
her husband, is a rape, came in question in the following
case. The prisoner was indicted 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 discovery ; 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 convicted,
upon a case reserved, four of the judges thought that the having
carnal knowledge of a woman, whilst she was under the belief of
its being her husband , would be a rape ; but the other eight judges
thought that it would not ; several of the eight judges intimated
that if the case should occur again, they would advise the jury
to find a special verdict. Jackson's case, Russ. <$f Ry. 487.
Proof of the offence.] By the 9 Geo. 4. c. 31. s. 18, reciting
that upon trials for the crimes of buggery and of rape, and of
carnally abusing girls under the respective ages hereinbefore
mentioned, offenders frequently escape by reason of the difficulty
of the proof which has been required of the completion of those
several crimes ; for remedy thereof be it enacted, that it shall
not be necessary, in any of those cases, to prove the actual
emission of seed in order to constitute a carnal knowledge, but
that the carnal knowledge shall be deemed complete upon proof
of penetration only. In a case which occurred soon after the
passing of the 9 G. 4. c. 31, Taunton J. ruled that, notwith-
standing the above provision, it was still necessary, in order
710 Rape.
to complete the offence, that all which constitutes carnal
knowledge should have happened, and that the jury must be
satisfied, from the circumstances, that emission took place. Rus-
sell's case, 1 Moo. f Rob. 122. But this decision has been re-
peatedly overruled: by Hullock B. in Jennings s case, 4 C. $f P.
249 ; by Park, J., in Cozins's case, 6 C.# P. 351 ; and, lastly,
upon a case reserved, by all the judges. Reekspear's case, 1 Moody,
C. C. 342, and Cox's case, Id. 337, 5 C. # P. 297.
It. has been made a question, upou 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, Ashhurst, 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. Russen's case, 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 penetration to constitute
the offence. I know that there have been cases in which a less
degree of penetration has been held to be sufficient; but I have
always doubted the authority of those cases. Gammon's case,
5 C. $ P. 321. So in Beck's Medical Jurisprudence, p. 53, it
is said that it would be difficult to support an accusation of rape
where the hymen is found entire.
Accessories.] An indictment, charging the prisoner both as
principal in the first degree, and as aiding and abetting other
men in committing a rape, was held, after conviction, to be
valid, upon 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, with-
out putting the prosecutor to elect on which count to proceed.
Folkes's case, 1 Moody, C. C. 354.
Competency and credibility of the witnesses.] The party ra-
vished, says Lord Hale, may give evidence upon oath, and is
in law a competent 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 discovered the offence, and made
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 passengers ; if the offender fled for it ; these and the like
Rape. 711
are concurring evidences to give greater probability to her testi-
mony, when proved by others as well as herself. 1 Hate, 633,
1 East, P. C. 448. On the other hand, if she concealed the
injury for any considerable time, after she had an opportunity to
complain ; if the place, where the fact was supposed to be com-
mitted, was near to inhabitants, 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 carry a strong pre-
sumption that her testimony is false. Ibid. General evidence of
the prosecutrix's bad character is admissible, ante, p. 72 ; but
not evidence that she had had connexion with a particular per*
son, Hodgson's case, Russ. Rii. 211, ante, p. 72; though
the prosecutrix may be asked whether she has not been formerly
connected with the prisoner. Ante, p. 72. A strict caution is
given by Lord Hale, with regard to the evidence for the prose-
cution in cas^s 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 innocent." 1 Hale, 635.
Of the unlawful carnal knowledge of female children.] The
unlawful carnal knowledge of female children, under the age
of ten years, was declared to be felony, without benefit of
clergy, by the 18 Eliz. c. 7 ; but that act being repealed by
the 9 G. 4. c. 31, it is enacted by the latter statute, (sect. 17,)
that if any person shall unlawfully and carnally know and
abuse any girl under the age of ten years, eveiy such offender
shall be guilty of felony, and, being convicted thereof, shall
suffer death as a felon ; and if any person shall carnally know
and abuse any girl, being above the age of ten years and under
the age of twelve years, every such offender shall be guilty of a
misdemeanor, and, being convicted thereof, shall be liable to be
imprisoned, with or without hard labour, in the common gaol
or house of correction, for such term as the Court shall award.
Upon an indictment for carnally knowing a girl under ten
years of age, the proofs for the prosecution will be, 1, the com-
mission of the offence ; 2, that the child is under ten years of
age.
The child herself, however tender her age, if capable of dis-
tinguishing between right and wrong, may be examined in
proof of the offence. Tucker's case, 1 PhilL Ev. 19, ante, p. 94.
But her declarations are inadmissible, B>azier's case, 1 East,
P. C. 443, ante, p. 94 ; though the fact of her having com-
plained of the injury, Reentry after its having been received, is
evidence in corroboiation. 1 Phill. Ev. 15; see ante, p. 21.
The propriety of corroborating the testimony of the infant, in a
case of this kind, has been lemarked upon by Mr. Justice Black-
stone. 4 Com. 214, ante, p. 94. As to putting off the trial for
the purpose of having an infant witness instructed ; tide ante,
p. 95.
712 Receiving stolen goods.
The age of the child must be proved. Where the offence was
committed on the 5th of February, 1 832, and the father 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 grandmother that she had been born the day
before, and the register of baptism showed that she had been
baptized on the 9th of February, 1 822 ; this evidence was held
insufficient to prove the age. Wedge's case, 5 C. fy P. 298.
Assault with intent to ravish.'] Upon an indictment for this
offence, the evidence will be the same as in rape, with the
exception of the proof of the commission of the offence.
RECEIVING STOLEN GOODS.
Common law and former statutes . . .712
Statute 7 <3f 8 Geo. 4. c. 29. . . . .712
Proof of the larceny by the principal . .714
Proof of the receiving .... 716
Distinction between receiving and stealing . 716
Joint receiving . . . .718
Proof of the particular goods received , . 719
Proof of guilty knowledge . . . 720
Proof where the prisoner is charged as principal and
receiver in different counts . . . 721
Proof by the prisoner of innocence of principal felon 722
Witnesses competency of principal felon . . 722
Venue . . .722
Common law and former statutes.'] Before the statute 3 & 4
W. & M. c. 9. receivers of stolen goods, unless they likewise
received and harboured the thief, were guilty only of a mis-
demeanor ; but by that statute they were made accessories
after the fact, and consequently felons. By statute 1 Anne,
s. 2. c. 9. it was enacted, that the receiver might be prosecuted
for a misdemeanor, though the principal was not before con-
victed ; and by the 5 Anne, c. 31. he might be so prosecuted,
though the principal could not be taken. The offence was
again changed to felony by 31 Geo. 4. c. 24. s. 3. These acts
being now repealed, their provisions are consolidated in the
7 & 8 Geo. 4. c. 29.
Statute 7 <Sf 8 Geo. 4. c. 29.] By the 54th section of that
Receiving stolen goods. 713
statute it is enacted, that if any person shall receive any
chattel, money, or valuable security, or other property what-
soever, the stealing- or taking whereof shall amount to a felony,
either at common law, or by virtue of that act, such person
knowing the same to have been feloniously stolen or taken,
every such receiver 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 transported bevond the seas for any term
not exceeding fourteen years, nor less than seven years, or to
be imprisoned for any term not exceeding three years, and if
a male to be once, twice, or thrice publicly or privately whipped,
(if the Court shall so think fit), in addition to such imprison-
ment; provided always that no person, howsoever tried for
receiving as aforesaid, shall be liable to be prosecuted a second
time for the same offence.
And by section 55, if any person shall receive any chattel,
money, valuable security, or other property whatsoever, the
stealing, taking, obtaining, or converting whereof is made an
indictable misdemeanor by that act, such person knowing the
same to have been unlawfully stolen, taken, obtained or con-
verted, every such receiver shall be guilty of a misdemeanor,
and may be indicted and convicted thereof, whether the person
guilty of the principal misdemeanor shall or shall not have been
previously convicted thereof, or shall or shall not be amenable
to justice ; and every such receiver shall, on conviction, be
liable, at the discretion of the Court, to be transported beyond
the seas for the term of seven years, or to be imprisoned for
any term not exceeding two years, and if a male, to be once,
twice, or thrice publicly or privately whipped, (if the Court
shall so think fit), in addition to such imprisonment.
And by section 60, for the punishment of receivers, where
the stealing, &c. is punishable on summary conviction, it is
enacted, that where the stealing or taking of any property
whatsoever is punishable on summary conviction, either for
every offence, or for the first and second offence only, or for the
first offence only, any person who shall receive any such
property, knowing the same to be unlawfully come by, shall,
on conviction thereof before a justice of the peace, be liable,
for every first, second, or subsequent offence of receiving, to the
same forfeiture and punishment to which a person guilty of a
first, second, or subsequent offence of stealing or taking such
property is by that act made liable.
To support an indictment upon the 7 & 8 G. 4. c. 29. s. 54,
the prosecutor must prove, 1, the stealing of the goods by the
principal felon, if it be so stated in the indictment, or his con-
714 Receiving stolen goods.
viction for that offence, if it be averred ; 2, the receiving of
the goods by the prisoner ; 3, that the goods so received
were those previously stolen ; 4, the guilty knowledge of
the prisoner.
Proof of the larceny by the principal.] It is not necessary
to state, in the indictment, the name of the principal felon.
Where it was objected to such a count, that the name of the
principal ought to appear, Tindal, C. J, said, The offence
created by the act of parliament is not the receiving the stolen
goods from any particular person, but receiving them knowing
them to have been stolen. The question, therefore, is, whether
the goods were stolen, and whether the prisoner received them
knowing them to have been stolen? Jervis'scase, SC.fyP. 156.
Where the goods had been stolen by some person unknown, it
was formerly the practice to insert an averment to that effect in
the indictment, and such averment was held good. Thomas's
case, 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 sometimes 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 case by the
evidence of the principal himself, who had been a witness
before the grand jury, Le Blanc, J. interposed, and di-
rected 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 principal
felon could be alleged to be unknown to the jurors when they
had him before them, and his name was written on the back of
the bill ? Walker's case, 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 feloniously stolen. The grand jury also found a
bill, charging one Henry Moreton with stealing the same goods,
and the prisoner with 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 prisoner 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. Bush's case, Rnss.fyRy.3T2.
It has been doubled whether, where the indictment alleges
Receiving stolen goods. 715
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. See marginal note, Messingham's case, 1 Moody,
C. C. 257. It seems that as such an averment is immaterial,
(vide ante, p. 714,) it mav be rejected as surplusage, and the
proof of it is unnecessary. Fide 2 Deacon, Dig.C. L.1092. How-
ever, where the indictment stated that 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 prisoner, Parke, J. held, that on this indict-
ment 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. Elsivorthy's case, Lewin, C. C. 117.
Where the indictment states a previous conviction of the prin-
cipal, such conviction must be proved by the production of an
examined copy of the record of the conviction, and it is no ob-
jection 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, &c.
Baldwin's case, Russ. $ Rii. 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. Turner's case,
1 Moody, C. C. 347, ante, p. 40. The opinion of Mr. Jus-
tice Foster, however, is in favour of the affirmative. Where the
accessory, he says, is brought to trial after the conviction of his
principal, it is not necessary to enter into a detail of the evi-
dence on which the conviction was founded. Nor does the in-
dictment aver that the principal was in fact guilty. It is suffi-
cient if it recites with proper certainty the record of the convic-
tion. This is evidence against the accessory, to put him on his
defence ; for it is founded on a legal presumption that every
thing in the former proceeding was rightly and properly trans-
acted. Foster, 365.
Where the indictment stated that the principal felon had
been convicted of the stealing, and in support of this averment,
an examined copy of the record was put in, by which it appeared
that the principal had pleaded guilty, it was objected that this
was merely equivalent to a confession by the principal, and was
not evidence against the receiver ; but Bosanquet, J. ruled, that
though the principal was convicted on his own confession, yet
such a conviction was primd facie, but not conclusive evidence,
against the accessory. Blick's case, 4 C. $ P. 377.
Where the principal felon has been convicted, it is sufficient
in the indictment to state the conviction, without stating the
716 Receiving stolen goods.
judgment. Hymans case, 2 Leach, 925, 2 East, P. C. 782.
Baldwin's case, 3 Canipb. 265.
Provfofthe receiving di&tinctitm between receiving and steal-
ing^] 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 which it appears that if the pri-
soner 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. J)yer and Disting were in-
dicted for stealing a quantity of barilla, the property of Hawker.
The goods, consigned to Hawker, were on board ship at Ply-
mouth. Hawker employed Dyer, who was the master of a large
boat, to bring the barilla on shore, and Disting was employed
as a labourer, in removing the barilla after it was landed in Haw-
ker's warehouse. The jury found that while the barilla was in
Dyer's boat, some of his servants, without his consent, re-
moved 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 would 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 who
assisted in carrying it from thence, it was one continuing trans-
action, 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. Dyer's cane, 2 East, P. C. 767. Another case
arose out of the same transaction. The rest of the baiilla
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 after-
wards the persons who had so removed it, together with Abwell
and O'Donnell, who had in the mean time agreed to purchase
part, came and assisted the others (who took it out of the ware-
house) in carrying it from thence. Being all indicted as prin-
cipals in larceny, it was objected that two were only receivers,
the larceny being complete before their participation in the
transaction; but Graham, B. held, that it was a continuing
transaction as to those who joined in the plot before the goods
were actually carried away from the premises ; and all the de-
fendants having concurred in, or been present at the act of re-
moving the goods from the warehouse where they had been de-
posited, they were all principals ; and the prisoners were con-
victed accordingly. Atwell's case, 2 East, P. C. 768.
Receiving stolen goods. 717
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 paity 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, pulling them
in the street, about thirty yards from the warehouse door.
They then fetched the prisoner, who was apprised of the rob-
bery, 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 pri-
soner 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. King's case, Russ. &; Ry. 332. The same con-
clusion 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
was at work 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 asportauif was
complete before he interfered, and D tier's case, ante, p. 716,
was cited, and Lawrence, J., after conferring with Le Blanc, J.,
was of this opinion, and directed an acquittal. M'Makiii's
case, Russ. f Ri/. 333, (n.) Upon the authority of King's
case, the following decision proceeded. The prisoner was in-
dicted 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 thetn to the place
where the prisoner was waiting for him. and he and the pri-
soner rode away with them. Mr. Justice Bayley atfirr.t thought,
that the prisoner's joining in riding away with the horses might
be considered a n.w larceny; but on adverting to King's case,
(Mi/mi) he thought this opinion wrong, and on a case reserved,
the judges were of opinion that the prisoner was an accessory
only, and not a principal, because he was not present at the
original taking. A'e//i/'s case, Russ. &; Ry. 421.
'The circumstances in the next case were held not to constitute
a receiving. The prisoner was indicted for receiving goods stolen
in a dwelling-house by one Debenham. Debenharn 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 occasionally looking up; and he and Debenham
718 Receiving stolen goods.
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 pri-
soner was guilty of receiving, and reserved 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.
Owen's case, 1 Moody, C. C. 96.
Where the evidence leaves it doubtful in what manner the
goods first came to the prisoner's possession, the safest mode
is to frame the indictment as for larceny. Stolen property having
been discovered concealed in an out-house, the prisoners were
detected in the act of carrying it away from thence, and were
indicted as receivers. Patteson, J., said, "there is no evidence
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 circum-
stances 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 prisoners received it know-
ing that fact, they may be convicted of receiving. 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.
Densley's case, 6 C. fy P. 399. The two prisoners were in-
dicted for larceny. It appeared that the prisoner A. (being in
the service of the prosecutor) was sent by him to deliver some
fat to C. He did not deliver all the fat toC., 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 separation. It was in the master's possession till the time of
the separation. Butteris's case, 6 C. fy P. 147.
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 necessary 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. Messing-
hanSs case, I Moody C. C. 257.
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 offences, which she may be supposed to have committed
Receiving stolen goods. "19
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 endeavoured 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. Archer's case, 1
Moody, C. C. 143.
As the extent of the wife's liability in case of a joint receipt
of stolen goods by her and her husband, does not appear to be
well settled, it may not be useless to advert to the rule of the
Scotch law on this subject. According to that law, the wife
may be tried on the same libel with her husband for reset (receiv-
ing) in which they are both implicated, but she cannot be
charged with resetting the goods which he has stolen, and
brought to their common house, unless it appear that she was not
merely concealing the evidence of his guilt, but commencing a
new course of guilt for herself, in which she takes [a principal
share as by selling the stolen articles, and carrying on long the
infamous traffic. If she has done either of these things, her
privilege ceases, and in many of such cases the wife has been
convicted of receiving goods stolen by the husband. This being
matter of evidence, however, must be pleaded to the jury, and
cannot be stated as an objection to the relevancy of a charge of
reset against the wife. Alison's Princ. Cr. Law of bcott.
338.
Proof of the particular goods received.] The proof of the
goods received must correspond with the allegation in the indict-
ment, and substantially with the allegation of the goods stolen
by the principal felon. But it is sufficient if the thing
received be the same in fact, as that which was stolen, though
passing under a new denomination, as where the principal was
charged with stealing a live sheep, and the accessory with re-
ceiving twenty pounds of mutton, part of the goods stolen.
Cowell's case, 2 East, P. C. 617. IJut where the principal
felon was charged with stealing six promissory notes of 10CM.
each, and the other prisoner with receiving" the said promissory
notes," knowing them to have been stolen, and it appeared
that he had only received the proceeds of some of the notes, it
was ruled, that the prisoner charged with the receiving must be
acquitted. Walkley's case, 4 C.6; P. 132.
Upon an indictment (for receiving a lamb, it appeared in evi-
dence that at the time of the receiving, the lamb was dead, but
on a case reserved, the judges held that it was immaterial as to
720 Receiving stolen goods.
the prisoner's offence, whether the lamb was alive or dead, the
offence and the punishment for it being in both cases the same.
Puckering's case, 1 Moody, C. C.242. In another report of
this case, the judges are stated to have said, that the word
slieep (lamb) did not necessarily import, that the animal was
received alive, though it would have been more correct to state,
that the prisoner received the dead body or carcase. Lewin,
C. C. 302.
Proof of guilty knowledge,] Evidence must be given of the
prisoner's guilty knowledge, that he received the goods in ques-
tion, knowing them to have been stolen. In general this evi-
dence is to be collected from all the various circumstances of the
case. The usual evidence is, that the goods were bDiight at an
undervalue by the receiver. Proof that he concealed the goods
is presumptive evidence to the same effect. So evidence may
be given that the prisoner pledged or otherwise disposed of other
articles of stolen property besides those in the indictment, in
order to show the guilty knowledge. Dunn's case, 1 Mnodii,
C. C. 150. And where the receiving of the other articles has
been made the subject of another indictment, it is still, as it
seems, in strictness, admissible to prove the guilty knowledge.
Davis's case, 6 C. % P. 177.
The following enumeration of the circumstances from which
presumption of the prisoner's guilty knowledge may be
gathered, well illustrates the subject. " Owing to the jealousy
and caution so necessary in this sort of traffic, it often happens,
that no express disclosure is made, and yet the illegal acquisi-
tion of the articles in question is as well understood, as if the
receiver had actually witnessed the depredation. In this, as
in other cases, therefore, it is sufficient if circumstances are
proved, which to persons of ordinary understanding, and situated
as the prisoner was, roust have led to the conclusion, that they
were illegally acquired, jj Thus, if it be proved that the prisoner
received watches, jewellery, large quantities of money, bundles
of clothes of various kinds, or moveables of any sort, to a con-
siderable value, from boys or other persons destitute of pro-
perty, and without any lawful means of acquiring them : and
especially if it be proved that they were brought at untimely
hours, and under circumstances of evident concealment, it is
impossible to arrive at any other conclusion, but that they were
received in the full understanding of the guilty mode of their
acquisition. This will be slill further confirmed, if it appear
that they were purchased at considerably less than their real
value, concealed in places not usually employed for keeping
such articles, as under beds, in coal cellars, or up chimnies ; if
their marks be effaced, or false or inconsistent stories told as to
the mode of their acquisition. And it is a still further ingredient
towards inferring guilty knowledge, if they have been received
Receiving stolen goods. 721
from a notorious thief, or one from whom stolen goods, have on
previous occasions, been received. Alison's Princ. Cr. Law of
Scot I. 330.
VV here it was averred that the prisoner, " Francis Morris the
goods and chattels, &c. feloniously did receive and have ; he
the said Thomas Morris then and there well knowing the said
goods and chattels to have been feloniously stolen," &c., it
was moved in arrest of judgment, that the indictment was bad,
for that the fact of receiving, and the knowledge ofihe previous
felony, must reside in the same person, whereas this indictment
charged them in two different persons ; but the judges held that
the indictment would be good without the words " the said
Thomas Mori is," which might be struck out as surplusage.
Morris sense, \Leach, 109.
The intention of the party in receiving the goods is not ma-
terial, provided he knew them to be stolen. Where it was
objected that there was no evidence of a conversion by the re-
ceiver, 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. Davis's case,
6 C. if P. 178. The same point was ruled by Taunton, J., in a
subsequent case. Richardson's case, 6 C. if P. 336. The rule
by the law of Scotland is the same. If the prisoner once receive
the goods into his keeping, it is immaterial upon what footing
this is done, whether by purchase, pledge, barter, or as a mere
depository for the thief. Nay, though he buy them for full
value, the crime is the same, because he knowingly detains them
from the true owner ; but the fact of a fair price having been
paid is an important circumstance to outweigh the presumption
of the guilty knowledge. Alison's Prinr. Crim. Law of Scot i.
329, Hume, 113, Burnett, 155, 156.
Proof where the prisoner is charged as principal and receiver in
different counts.] A person maybe legally charged in different
counts of the same indictment, both as the principal felon
and as the receiver of the same goods. Galloway's case,
1 Moody, 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 respective clerks of assize not
to put both charges in the same indictment. Id. The latter
point again arose in a subsequent case, and, after discussion, a
great majority of the judges were of opinion that the rule laid
down in GaUmi-ay's case, (supra,) should be adhered to. Mad-
den's case, \ Moody, C. C. 277. Where the prisoner was in-
dicted for stealing, and the second count charged him with a
fcubstantive felony in receiving, Vauglian, B. ruled that the
prosecutor must elect upon wh.ch of the counts he would pro-
ceed. F'Uwer's case, 3 C. $ P. 413.
i i
722 Receiving stolen goods.
Proof l>\] the prisoner of innocence af principal felon.] The part*
charged as receiver may controvert the guilt of the principal
felon, even afier 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 every
thing was rightly and properly transacted. It being res inter
rt/iiw acta, it cannot be conclusive as to him. Foster, 365. It,
therefore, it should appear, on the trial of the receiver, that the
offence of which the principal was convicted did not amount to
felony, (if so charged), or 10 that species of felony with which he
is charged, the receiver ought to be acquitted. Id. Thus where
the principal had been convicted, and on the trial of the re-
ceiver the conviction was proved, but it appeared on the cross-
examination of the prosecutor, that, in fact, the paity convicted
had only been guilty of a breach of trust, the prisoner, on the
authority of Foster, was acquitted. Smith's cane, 1 Leac/i,288.
Prosser's case, Id. 290 (.)
Witnesses competency nf principal felon. ] The principal
felon, though not convicted or pardoned, is a competent witness
for the crown to prove the whole case against the receiver. /-/.-
lam's case, 1 Leach, 418. J'rice's case, i'atram's case, lit. 419,
(n.) 2 East, P. C. 732. But the confession of the principal
felon is not, as it has been already stated, evidence against the
receiver. Turner's case, 1 Moody, C. C. 347 , ante, p. 40.
Venue.'] By 7 & 8 Geo. 4. c. 29. s. 76, (after providing that
nothing contained in the act shall extend to Scotland or Ireland,
except as follows), it is enacted, that if any person in any one
part of the United Kingdom shall receive or have any chattel,
money, valuable security, or other property whatsoever, which
shall have been stolen, or otherwise feloniously taken in any other
part of the United Kingdom, such person knowing the said pro-
perty to have been stolen or otherwise feloniously taken, he may
be dealt with, indicted, tried, and punished for such offence, in
that part of the United Kingdom where he shall so receive or
have the said property, in the same manner as if it had been ori-
ginally stolen or taken in that part.
And by sec. 56, if any person shall receive any chattel, money ,
valuable security, or other property whatsoever, knowing the
same to have been feloniously or unlawfully stolen, taken, ob-
tained, or converted, every such person, whether charged as an
accessory after the fact to the felony, or with a substantive felony,
or with a misdemeanor only, may 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
Rescue. 723
felony or misdemeanor may by law be tried, in the same man-
ner as such receiver may be dealt with, indicted, tried, and
punished, in the county or place where he actually received such
property.
RESCUE.
Nature of the offence ..... 723
Proof of the custody of the party rescued . . 723
Proof of the rescue ..... 724
Punishment ...... 724
Aiding a prisoner to escape .... 724
Offence under various statutes . . . 724
\ature of the offence.] The offence of rescue nearly resem-
bles that of prison breach, which has already been treated of,
ante, p. 697. 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 tor felony, and was
rescued before 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 rescued, there needs only a recital that
he was indicted pront, cc., and taken and rescued. 1 Hale,
P. C. 607. Though the party rescuing may be indicted before
the principal be convicted and attainted, yet he shall not be ar-
raigned 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 felony. 1 Hale, P. C. 699.
Proof of the custody of the party rescued.] To make the of-
fence 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 of-
ficer, or under a warrant of a justice of the peace, for where the
724 Rescue.
arrest of a felon is lawful, the rescue of him is felony. But it
seems necessary that the party rescuing should have knowledge
that the other is under anest 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, he 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. s. 1, 2. 1 Rus-
sett, 383.
Proof of the rescue.] The word rescue, or some word equiva-
lent 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 cus-
tody. Burridge's case, 3 P. Wins. 483. In order to render the
offence of rescue complete, the prisoner must actually get out of
the prison. Hawk. P. C. 6.2. c. 18. s. 12.
Punishment.] The offence of rescuing a person in custo.ly for
felony was formerly punishable as a felony within clergy at com-
mon law. Stanley's case, Russ. fy Ry. 432. But now, by 1 & 2
Geo. 4. c. 88. s. 1, if any person shall rescue, or aid and assist
in rescuing, from the lawful custody of any constable, officer,
head borough, or other person whomsoever, any person charged
with, or suspected of, or committed for any felony, or on sus-
picion 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 transported beyond the seas
for seven years, or be imprisoned only, or be imprisoned and
kept to hard labour in the common gaol, house i;f correction,
or penitentiary house, for any term not less than one and not ex-
ceeding 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. See
Burridge's case, 3 P. Wins. 439.
Aiding a prisoner to escape offence under various statutes.]
The offence of assisting a prisoner to escape has, by various sta-
tutes, been subjected to diiferent degrees of punishment. By
statute 4 Geo. 4. c. 64. s. 43, the conveying any disguise or in-
Riots, !fc. 725
straments into any prison with intent to aid or assist a prisoner
to escape is made a felony, punishable by transportation for
fourteen years. And the assisting any prisoner in attempting
to make his escape from any prison, is subject to the same
punishment. Similar provisions are contained in the 16
G. 2. c. 31.
Upon the latter statute it has been held, that the act
is confined to cases of prisoners committed for felony, ex-
pressed in the warrant of commitment or detainer, and
therefore a commitment on suspicion only, is not within the
act. Walker's case, 1 Leach, 97. Greenijfs case, 1 Leach, 363.
It was likewise held on the construction of this statute, that it
does not extend to a case where the escape has been actually ef-
fected, but only to the attempt. Tilley s case, 2 Leach, 662.
The delivering the instrument is an offence within the act, though
the prisoner has been pardoned of the offence of which he was
convicted, on condition of transportation ; and a party may be
convicted, though there is no evidence that he knew of the speci-
fic offence of which the prisoner he assisted had been convicted.
Shaw's case, Russ. &; Ry. 526.
Where the record of the conviction of the person aided is set
forth, and is produced by the proper officer, no evidence is ad-
missible to contradict that record. Shaw's case, Russ- fy Ry.
526.
RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES.
Proof of riot nature of in general . . 725
Proof of the unlawful assembling . . . 726
Proof of the liolence or terror . . . . 726
Proof of the object of the rioters private grievance . 727
Proof of the guilt of the defendants . . 727
Proof upon prosecution under the Riot Act . . 728
Proof of demolishing buildings, tfc. (7 <5f 8 G. 4. c. 30.) 730
Proof of a rout . . . .731
Proof of an unlawful assembly . . .731
Proof of riot nature of in general,'] A riot is defined by
Hawkins to be a tumultuous disturbance of the peace, by three
720 Riots, Sfc.
persons or more, assembling together of their own authority,
with an intent mutually to assist one another, against any who
shall oppose them, in the execution of some enterprise of a pri-
vate nature, and afterwards actually executing the same, in a
violent and turbulent manner, to the terror of the people, whe-
ther the act intended were of itself lawful or unlawful. Hawk.
P. C. b. I.e. 65. s.l.
Proof of the unlawful assembling.'] An unlawful assembling
must be proved, and, therefore, if a number of persons, met to-
gether at a fair, suddenly quarrel, it is an affray, and not a riot,
ante, p. 198 ; 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, join-
ing rioters, is equally guilty, as if he had joined them while as-
sembling. Hawk. P. C. b. I.e. 65. s. 3.
Proof of the violence or terror.] 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. J3ut 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 no personal
violence is done to any individual, and no injury done to the
house. Clifford v. Brandon, 2 Campb. 358. But the unlawful-
ness of the object of an assembly, even though they actually
carry their unlawful object into execution, does not cunstitute a
riot, unless accompanied by circumstances of force or violence ;
and in the same manner, three or more persons assembling to-
gether, peaceably, to do an unlawful act, is not a liot. Hawk.
P. C. 6. I.e. 65. s. 5.
In some cases in which the law authorises force, the use of
such force will not constitute a riot, as where a sheriff or con-
stable, 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 pri-
vate individual may assemble a number of others to suppress a
common nuisance, or a nuisance to his own land. Thus where
a wier had been erected across a common navigable river, and
a number of persons assembled, with 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
uf his person, or the possession of his house, against such as
Riot*, Ifc. 727
threaten to beat him, or to make an unlawful entry, is excusable.
> Burn, 278.
Proof of the object of the rioters private grievance.] 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 intention of the assembly is to redress public griev-
ances, as to pull down all inclosures in general, an attempt
with force to execute such intention, will amount to high trea-
son. 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 assem-
bled, 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 indictments on this
branch of treason. As if the rising be only against a particular
market, or to destroy particular inclosures, 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 par-
liament, if it only affect the district of the insurgents, as in the
case of a turnpike act. 1 East, P. C. 75.
Proof of the guilt of the defendants.] In proving the parti-
cipation of the defendants in the riot, it is not, as it seems, com-
petent to the prosecutor to prove a riot in the first instance, and
afterwards to connect the prisoners with such riot. Where the
counsel for the prosecution was pursuing this course, Alderson,
J., interposed, and said that he must first identify the prisoners
as having been present. He stated that it had been held by the
judges at the special commission at Salisbury, in 1830, that the
prisoners must rirst be identified as having been present, forming
part of the crowd, and that the fifteen judges had confirmed the
holding of the special commission. Nicholson's case, Lewin,
C. C. 300.
In the above case, it was stated by the counsel for the prose-
cution, that an opposite course had been pursued in the Man.
ehester case.
On the trial of an action of trespass, the issues were, whether
a conspiracy had existed to excite discontent and disaffection,
and also whether there had been an unlawful assembly to the
terror of the inhabitants of the town of Manchester. For the pur-
pose of proving the affirmative, evidence was offered of large bodies
of men having been seen, on the morning of the day in question,
marching along the road, and of expressions made use of by them
tending to show that they were proceeding to a place called
Whitemoss, for the purpose of being drilled. Evidence was also
offered of drillings in the neighbourhood of Manchester, previous
728 Riots, SfC.
to the meeting, and a witness was asked whether the proceed-
ings which he saw created any alarm in his mind. Another wit-
ness stated that he saw several parties of men proceeding to the
place where there had been drillings, and he was asked as to
their having solicited hirn to join them, and as to declarations
made by some of those persons with regard to theobject and pur-
pose of their going thither. The whole of this evidence was ob-
jected to, but was admitted by Holroyd, J., and on a motion for
a new trial, the Court of King's Bench held that it had been
rightly received. Redford v. Birley, 3 Stark. N. P. C. 76.
Proof upon prosecution under the riot act.] By the statute
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 toge-
ther, 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 peacably to
depart to their habitations or to their lawful business, shall to the
number of twelve or more (notwithstanding such proclama-
tion made), unlawfully, riotously, and tumultuously remain or
continue together by the space ot one hour after such command
or request made by proclamation, that then such remaining or
continuing together, to the number of twelve or more, afler such
command or request made by proclamation, shall be adjudged
felony without benefit of clergy, and the offenders therein shall
be adjudged felons, and shall suffer death, as in the case of
felony, without benefit of clergy.
The third section gives the form of the proclamation, con-
cluding with the words, " God save the King." Where, in the
reading of the proclamation these words were omitted, it was
held that the persons continuing togeiher, did not incur the
penalties of the statute. Child's case, 4 C. 6f P. 442.
Upon an indictment under this statute the prosecutor must
prove, 1, that the prisoners with others, to the number of twelve,
were unlawfully, riotously, and tumultuously assembled toge-
ther ; 2, that proclamation was made in the form given by the
third section of the statute ; 3, that the defendants, with others,
to the number of twelve, remained or continued unlawfully,
riotously, and tumultuously together, for one hour or more after
the proclamation ; lastly, it must be proved that the prosecution
has been commenced within twelve months after the offence
committed. 1 G. 1. st. 2. c. 5. s. 8.
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 com-
Riots, $t. 729
puted from the time of the first reading. Woolcock's case, 5
C. Sf P. 517.
If there be such an assembly that there would have been a
riot if the parties had carried their purpose into effect, the case
is within the act, and whether there was a cessation or not is a
question for the jury. Woolcock's case, 5 C. 8$ P. 517.
Proof of demolishing buildings, fyc.~\ The offence of demo-
lishing buildings by rioters (formerly provided against by the
statutes 1 G. 1. st. 2. c. 5, 9 G. 3. c. 29, 52 G. 3. c. 130, and
56 G. 3. c. 125, repealed) is now forbidden by the 7 & 3
Geo. 4. c. 30, by the eighth section of which it is enacted,
that if any persons, riotously and tumultuously assembled
together to the disturbance of the public peace, shall unlawfully
and with force demolish, pull down, or destroy, or begin to
demolish, pull down, or destroy, any church or chapel, or any
chapel for the religious worship of persons dissenting from the
united church of England and Ireland, duly registered or
recorded, or any house, stable, coach-house, out-house, ware-
house, office, shop, mill, malt-house, hop oast, barn, or granary,
or any building or erection used in carrying on any trade or
manufacture, or any branch thereof, or any machinery, whether
fixed or moveable', prepared for or employed in any manufac-:
ture, or in any branch thereof, or any steam engine or other
engine for sinking, draining, or working any mine, or any
staith, building, or erection used in conducting the business of
any mine, or any bridge, waggon-way, or trunk for conveying
minerals from any mine, every such offender shall be guilty of
felony, and, being convicted thereof, shall suffer death as a felon.
Although the prisoners are charged only with a beginning to
demolish, pull down, 6cc., yet it must appear that such a
beginning was with intent to demolish the whole. The
beginning to pull down, said Parke, 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, &c. to go farther, and
destroy the house, they are guilty of a capital offence. If they
had the full means of going 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 breaking the windows, and having
afterwards entered the house, set fire to the furniture ; but no
part of the house was burnt. Parke, J., said to the jury,
"If you think the prisoners originally came, without intent. to
demolish, and that the setting fire to the premises was an after
thought, but with that intent, then you must acquit, because
no part of the house having been burnt, there was no beginning
n5
730 Riots, Iff.
lo destroy. If they came originally without such intent, buf
afterwards set fire to the house, the offence is arson. If you
have doubts whether they originally came with an intent to
demolish, you may use the setting fire to the furniture under
such circumstances, and in such manner as that the necessary
consequence, if not for timely interference, would have been the
burning of the house, as evidence to show that they had such
intent, although they began to demolish in another manner."
Ashton's cane, I ewin, C. C. 296.
The same rule was laid down in the two following cases :
The prisoners about midnight came to the house of the prose-
cutor, 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 their committing further injury. Liltledale, J., told
the jury that this was not a " beginning to demolish," unless
ihey should be satisfied that tl>e ultimate object of the rioters
was to demolish the house ; and that if they had carried their
intentions into full effect, they would in fact have demolished
it. That such was not the case here, for that they had gone
away, having manifestly completed their purpose, and done all
the injury they meant to do. Thomas's case, 4 C. 6$ P. 237,
and see 6 C. $ P. 333.
Where 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 ; Tindal, C. J., ruled, that the case was
not within the statute, the object of the rioters not being to de-
stroy the house, but to secure the person they were in search of.
Price's case, 5 C. Sf P. 510.
But the case may fall within the statute, though the intent to
demolish 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-
jumper, 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, and began to throw stones, &c.,
and broke the windows and partitions, and part of a wall, and
after his escape, continued to throw stones, &C-, till stopped by
the police ; Gurney, B., ruled that the parties might be con-
victed under the 7 & 8 6. 4. c. 30. s, 8, of beginning to de-
molish, though their principal object might be to injure the
lumper, provided it was also their object to demolish the house,
on account of its having been used by him. Baft's case, 6 C. fy
P. 329.
Proof of a rout.] A rout seems to be, according to the
general opinion, a disturbance of the peace by persons assem-
Riots, &,-. 731
biing together, with an intention to do a thing, which, if exe-
cuted, would make them rioters, and actually making a motion
towards the execution thereof. Hawk. P. C. b. 1. c. 65. s. 8.
1 Russell, 253.
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, as where great numbers com-
plaining of a common grievance, meet together armed in a war-
like manner, in order to consult respecting the most proper
means for the recovery of their interests, for no one can loresee
what may be the event of such an assembly. Hawk. P. C.
b. I. c. 65. s. 9. The circumstances which constitute an unlaw-
ful assembly were much discussed in the case of Bedford r.
Birley, 3 Stark, N. P. C. 76. 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 Bayley,
J ., in Hunt's case at York. All persons assembled to sow sedition,
and bring into contempt the constitution, are an unlawful as-
sembly. With regard to meetings for drilling, he said, If the
object of the drilling is to secure the attention of the persons
drilled to disaffected speeches, and give confidence by an ap-
pearance 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 pur-
pose, 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 calcu-
lated to excite terror, alarm and consternation, it is generally
criminal and unlawful.
A question, with regard to the admissibility of evidence,
showing previous meetings for the purpose of drilling, arose
in Hunt's cine, 3 B. fy A. 566, which was an indictment
containing counts for a conspiracy, unlawful assembly and
riot ; and in which the jury found the defendants guilty, on
the count for an unlawful assembly. On a motion for a new
trial, on the ground that this evidence had been improperly re-
ceived, the application was rejected. Abbott, C. J., said, " It
was shown, that a very considerable part of the persons assem-
bled, or at least a very considerable part of those who came
from a distance, went to the place of meeting in bodies, to a
certain extent arranged and organised, and with a regularity
of step and movement, resembling those of a military march,
732 Robbery.
though less perfect. The effect of such an appearance, and the
conclusion to be drawn from it, were points for the consider-
ation of the jury, and no reasonable person can say, that they
were left to the consideiationof the jury in a manner less favour-
able to the defendants than the evidence warranted. And if
this appearance was in itself proper for the consideration of the
jury, it must have been proper to show to them, that at the
very place from which one of these bodies came, a number of
persons had assembled before day break, and had been formed
and instructed to march as soon as there was light enough for
such an operation, and that some of the persons thus assembled
had grossly ill-treated two others, whom they called spies, and
had extorted from one of them, at the peril of his life, an oath
never lo be a King's man again, or to name the name of a
King ; and that another of the bodies that went to the place
of meeting, expressed their hatred towards this person by
hissing as they passed his doors. These matters were in my
opinion, unquestionably competent evidence upon the general
character and intention of the meeting."
ROBBERY.
Statute 7 % 8 G. 4. c. 29 . , 733
Proof of the goods, Sfc. taken . . . 733
Proof of the taking .... 734
felonious intent ... 735
from the person ... 736
in presence of the owner . . . 737
against the will of the owner . . 737
Proof of the violence or putting in fear violence degree
of . . . .738
under pretence of legal or rightful proceeding . 739
mode of putting in fear ... 740
degree of fear .... 742
Proof of being put in fear . . . 743
injury to the person . , . 743
fear of injury to prrperty . . 744
fear of injury to reputation . . 744
must be before the taking . . . 754
Robbery, 733
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.
Statute 7 $ 8 G. 4. c. 29.] It is now a statutable offence by
the 7 & 8 G. 4. c. 29. s. 6, which enacts, that if any person
shall rob any other person of any chattel, money, or valuable
security, every such offender being convicted thereof, shall suffer
death as a felon.
The provisions of the same statute with regard to stealing
from the person, assaulting with intent to rob, and demanding
property with menaces, or by force with intent to steal ; the ac*
cusing or threatening to accuse of any infamous crime ; and
the sending of threatening letters demanding money, are all
separately noticed under distinct heads.
On a prosecution for a robbery, the evidence will be, 1st,
proof that certain goods, &c. were taken ; 2d, that they were
taken with a felonious intent ; 3d, from the person or in the
presence of the owner; 4th, against his will; 5th, that they
were taken, either by violence or by putting the owner in fear.
Proof of the goods, &;c., 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 properly 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 List. 69. 1 Hale, P, C.
532. 2 East, P. C. 707. 2 Russell, 62. 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
indictment for robbing him of the paper was held to be main-
tainable. Bingletj's case, coram Gurnet/, B., 5 C. &; P.
602. In the following case it was held that there was no pro-
perty in the prosecutor so as to support an indictment for rob-
bery. The prisoner was charged with robbing the prosecutor
of a promissory note. It appeared that the prosecutor 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 covered also with black, a pair of
large horse pistols ready cocked, a tumbler glass filled with gun-
powder, 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, seizing 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 which had been provided by the prisoner.
It was objected that there was no property in the prosecutor,
734 Robbery.
and the point being reserved for the opinion of the judges, they
held accordingly. They said that it was essential to larceny,
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 tar from
being of any the least value to him, that he had not even the
property of the paper on which it was written ; for it appeared
that both the paper and ink were the property of Mrs. Phipoe,
and the delivery of it by her to him, could not under the circum-
stances 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 peace-
able possession of the owner. Phipoe' t case, 2 Leach, 673.
2 East, P. C. 599.
Pronfofthe tatting.'] In order to constitute a taking, there
must be a possession by the robber. Therefore, if a man hav-
ing 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 after-
wards let it fall in the struggle, without taking it up again, it
would have been robbery, for it would have been once in his
possession. Id. However short the period of possession, it is
sufficient. The prisoner taking the prosecutor's purse imme-
diately 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 was
apprehended. The Court (Ilotham, B., and Willes, .1.}, held,
that though the prosecutor did not eventually lose either his
purse or his money, yet as the prisoner had in fact demanded
the money, and under the impulse of that thieat and demand,
the property had been once taken from the prosecutor by the
prisoner, it was in strictness of law a sufficient taking to com-
plete the offence, although the prisoner's possession had con-
tinued for an instant only. Peat's case, 1 Leach, 228, 2 Lust,
P. C. 557. See Lapier's case, I Leach, 326, ante, p. 471. 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 person unawares was sufficient to con-
stitute robbery, the contrary doctrine appears to be now esta-
blished. (See Gnosil's case, 1 C. # P. 304,) and that no tak-
ing by violence will at the present day be considered as suffi-
cient to constitute robbery, unless some injury be done to the
person (os in Lapier's ease, ante, p. 471,) or unless there b
Robbery. 735
some previous struggle for the possession of the property, or
some force used to obtain it. 2 Russell, 63, vide post.
Proof of the taking felonious intent.] The robbery must be
nuimofurandi, with a felonious intent to appropriate the goods
to tle offender's own use. And there must be a felonious in-
tent with regard 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. assaulted 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 paniers about the highway, but did not
take any thing 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 take the goods with violence and
menaces, yet if it be under a bon&fide claim, it is not robbery.
The prisoner 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 delivered 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 pheasant 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 posses-
sion of his own property, there was no animus furandi, and the
prosecution must fail. The prisoner was acquitted. Halt's case,
3 C. % P. 409.
It sometimes happens that the original assault is not made
with the particular felonious intent of robbing the party of the
property subsequently taken ; but if the intent arises before the
property taken, it is sufficient ; as where money, offered to a
person endeavouring to commit a rape, is taken by him. The
prisoner assaulted a woman, 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 continued to treat the wo-
man with violence in order to effect his original purpose, till he
was interrupted. A majority of the judges held this to be rob-
bery, on the ground that the womau, from the violence and
terror occasioned by the prisoner's behaviour, 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. Blackham's case,
1 East, P. C. 711.
Where several persons went out at night for the purpose of
736 Robbery.
poaching, and encountering a gamekeeper, assaulted him, and
after beating him severely, left him, when one of them, named
Williams, returned and robbed him ; on an indictment against
all for robbery, Park, J., said, it appears that Williams alone
is guilty of this robbery. There was no common intent to steal
the keeper's property. They went out with a common intent
to kill game, and perhaps to resist the keepers ; but the whole
intention of stealing the property is confined to Williams alone.
Hawkins's case, 3 C. $ P. 392.
The question of the animus furandi often arises in cases
where, after a quarrel and assault, part of the property of some
of the parties engaged 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 animo furandi.
It is said, by a writer on the criminal law of Scotland, that it
behoves prosecutors to be rigidly on their guard against such
perversions of the real transaction which has occurred, and to
endeavour to restrict charges of this serious description to cases
of real felonious depredation. Alison, Princ. Crim. Law of Scot-
land, 238. Several cases, to illustrate this, are mentioned by
Mr. Alison. A scuffle took place, on the high road, between
the prosecutor and the prisoner ; in the course of which, the
former was deprived of a ruling measure, his hat, and a quan-
tity of articles out of his pockets, which were afterwards tound
by the road-side ; but as it turned out, that he was tipsy at the
time, and the articles might have been lost in the struggle, with-
out any intent of felonious appropriation on the prisoner's part,
he was acquitted. Bruce's case, Alison, Prin. Crim. Law of
Scot. 238. But, continues Mr. Alison, it may happen that an
assault is commenced from some other motive, and in the course
of it a depredation, done evidently lucri causa, is committed,
suggested perhaps by the unforeseen exposure of some valuable
property, or the defenceless condition to which the owner is re-
duced in the course of the affray. In such a case, it is not the
less robbery that the intention to appropriate arose after the
assault. The prisoner, from malice, lay in wait, and assaulted
the witness ; a scuffle ensued, during which the witness lost a
bundle, which he never recovered. The Court laid it down,
that if the intention of depredation existed at the moment of the
taking, the offence was robbery, though the assault commenced
from a different motive ; but the jury, doubting the evidence,
acquitted of the robbery, and convicted only of the assault.
Young's case, Alisun, 239.
Proof of the 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 pri-
Robbery. 737
soners were indicted for assaulting the prosecutor, and robbing
him of a bundle. It appeared 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 assaulted the pro-
secutor ; 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 off 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 committed. 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 this
case, was not in the prosecutor's possession. If the prisoners
intended to take the bundle, why did they assault the prose-
cutor, and not the person who had it ? The prisoners were
convicted of simple larceny. Fallou-s's case, 5 C. $f P. 508.
Proi'f of the taking in presence of the owner.] The taking
need not be by the immediate delivery of the party to the
offender, or immediately from the person of the party robbed ;
it is sufficient if it be in his presence. The instances given by
Lord Hale are, where 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 vio-
lence, and putting A. in fear, drives away his horse, cattle, or
sheep. 2 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 pievent 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 of the money out of the hand
was without pulling the owner in fear, there was no robbery.
Francis's case, 2 Str. 1015, Com. Rep. 478, 2 East, P. C. 708.
And the same was resolved in another case, with the concur-
rence ot all the judges. Grey's case, 2 East, P. C. 708. Where
robbers, by putting in fear, made a waggoner drive his waggon
from the highway, in the day-time, but did not take the goods till
night ; some held it to be a robbery from the first force, but
others considered that the waggoner's possession continued till
the goods were actually taken, unless the waggon were driven
away by the thieves themselves. 2 East, P. C. 707. 2 Rus~
sell, 66.
Proof of the taking against the will of the owner.'] It must
appear that the taking was against the will of the owner. Seve-
ral persons conspired to obtain for themselves the rewards given
738 Robbery.
by statute for apprehending robbers on the highway. The rob*
bery was to be effected upon Salmon, one of the confederates,
by Blee, another of the confederates, and two strangers pro-
cured 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 highway, at Deptford, where the
colourable robbery took place. The judges were of opinion
that this did not amount to robbery in any of the prisoners, be-
cause Salmon's property was not taken from him against his
will. M 1 Daniel's cuse,' Fust. 121, 128. 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 ap-
prehending him. One Norden, 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 de-
manded money. Norden gave him what money he had, jumped
out of the chaise with the pistol in his hand, and with some
assistance apprehended the prisoner. The prisoner was con-
victed 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 connexion between
Norden and the highwayman. A mm. Foster, 129.
Proof of the violence or putting in fear violence degree.]
It must be proved that the goods were 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. 2 Russe//, 67. Where violence is used, it is not ne-
cessary to prove actual fear. I am very clear, says Mr.
Justice Foster, that the circumstance of actual fear, at the
lime of the robbery, need not be strictly proved. Suppose the
true man is knocked down without any previous warning, to
awaken his fears, and lies totally insensible, while the thief
rifles his pockets, is not this a robbery 1 Faster, 128. And if
fear be a necessary ingredient, the law in oiiium spnliutoris will
presume it, where there appears to be so just a ground for it.
Id. 2 East, P. C. 711.
With regard to the degrees of violence necessary, it has been
seen, ante, p. 734, that the sudden taking of a thing unawares
from the person, as by snatching any thing from the hand or
head, is not sufficient to constitute robbery, unless some injury
be done to the person, or unless there be some previous struggle
for the possession of the property. In Lapier'scuse, ante, p. 471,
it was held robbery, because an injury was done to the person.
2 East, P. C. 709. A boy was carrying a bundle along tlie
street, when the prisoner ran past him, and snatched it suddenly
away, but being pursued, let it fall. Being indicted for robbery,
theCourt(Hotham,B.,and Adair, Serjt.,)said, the evidence in
Robbery. 739
this case does not amount to a robbery ; for though he snatched
the bundle, it was not with that degree of force and terror that
is necessary to constitute this offence. Macauley's case, 1 Leach,
287. And the same has been resolved in several other cases,
in which it has appeared that there was no struggle for the pro-
perty. Baker's case, 1 Leach, 290. Robins's case, Id. (n.)
Davies's case, Id. (n.) Homer's case, Id, 191. (n.)
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. Moore's case, 1 Leach, 335, and see I.apier'x
case, Id. 320, ante, p. 471. 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, that the force was sufficient to
make it a robbery, it having been used with that intent. Anon.
Lewin, C. C. 300. It appeared 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 attempt at resistance
hazardous, if not 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.
Hughes's case, 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
secrete; but, it appearing 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 struggled for it, this was
adjudged robbery. Davies's case, 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 it out of his fob. The watch was fastened with a steel
chain, which went round his neck, and which prevented the
prisoner from immediately taking the watch ; but, by pulling,
and two or three jerks, he broke the steel chain and made off
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. Mason's case, Russ. ty Ry. 419.
Proof of violence Under pretence of legal or rightful
proceedings.] Violence may be committed as well by actual
740 Robbery.
unlawful force, as under pretence of legal and rightful pro-
ceedings. 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 was 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 mean-
time other persons, riotously assembled on account of the
dearness of provisions, and in confederacy with Hall for the
purpose, carried off the goods in Merriman's absence. It was
objected that this was no robbery, there being no force used ;
but Hewitt, J., overruled the objection, 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 Chip-
penham, 2 East, P. C. 709.
The prosecutrix was brought before a magistrate by the
prisoner, into whose custody she had been delivered by a head-
borough, 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 handcuffed 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 him, if he would
wait till her husband came. The prisoner then put his hand
in her pocket, and took out three shillings. Having been
indicted for this as a robbery, Nares, J., said, That, in order
to commit the 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 colourable 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 violence of the handcuffs as a means to prevent her
making a resistance, and took the money with a felonious
intent, they should find him guilty. The jury having found
accordingly, the judges, upon a case reserved, were unani-
mously 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 obtaining it, the offence he had
committed was clearly a robbery. Gascoigne's case, 1 Leach,
280, 2 East, P. C. 709.
Proof of putting in feat mode of putting in f ear.] 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
Rubbery. 741
show that he was 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, nnimo J'urundi, says
"Give me your money;" "lend ine 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. Donnally's case, 1 Leach,
196. During the riots in London, in 1780, a boy with a
cockade in his hat knocked violently at the prosecutor's door,
and on his opening it said " God bless your honour, 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 bye-standers said, " You must give them
money." The boy said " Now 1 have brought my captain ;"
and some of the mob said " God bless this gentleman, he is
always generous." The prosecutor asked the prisoner "how
much;" and he answered " halt-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
robbery, by Nares, J., and Buller, J., at the Old Bailey.
Taptin's case, 2 East, P. C. 7 12.
There may be a putting in fear where the property is taken
under colour of regular or legal proceedings, as well as in
cases where it is taken by actual violence. See the cases
cited ante, p. 740.
So there may be a putting in fear where the robbery is
effected under colour of a purchase. Thus if a person, by
force or threats, compel another to give him goods, and by
way of colour, 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 foiced the owner to take 13J.
for it, threatening to kill her if she refused, it was clearly held
by all the judges to be a robbery. Simon s case, 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 geing to take it away ; and the
prisoner said, they would give him 30s. a load, and if he
would not accept that, they would take the corn away ; upon
which the prisoner sold it for 30s., though it was worth 38s.,
this was held to be robbery. Spencer's case, 2 East, P. C. 712.
742 Robbery.
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 he a putting in fear, yet if in fact the party
had not the animus furandi, 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 his 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 Fisherman's case,
2 East, P. C. 661. It has been observed, that this was
properly a question for the jury to say whether, from the cir-
cumstance 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.
One of the most common modes of effecting a robbery is by
menaces and threats. These are said to be a constructive vio-
lence, and as such, sufficient to render the felonious taking of
goods from the person, robbery. But it is not every species of
threat that will be accounted sufficient for this purpose. The
distinction is well stated by a writer on the criminal law of
Scotland, which, in this respect, corresponds with our own.
If, says Mr. Alison, the threat be of instant, or near and per-
sonal danger, as if matches be exhibited, by which it is pro-
posed immediately to set fire to the house, or cords be produced
for binding the person, preparatory to dragging him on a false
charge to gaol, there seems no difference between such a case,
and the extortion of money by the menaces of immediate death.
But if the threat be of a future or contingent danger, and such
as by the interposition of law, or by other means may be averted,
the crime is not to be considered as robbery, but as oppression,
which is a crime sui generis ; more especially, if in consequence
of such threats, the money be delivered not immedinteiu, but
ex intervallo, as by sending it by letter, placing it under a stone
designed by the criminal, or the like. In such cases, the crime
is not considered as robbery, any more than if the money had
been obtained under the terror of an incendiary letter. Alison,
Princ, Crim. Law of Scot!.. 231. See Jackson's case, 1 East,
P. C. Addenda xxi. posi.
Proof of tlie putting in fear the degree of fear '.] It is a
question for the jury, whether the circumstances accompanying
the commission of the offence were such, as reasonably to
create fear in the breast of the party assaulted ; and it can sel-
dom happen that such a presumption may not properly be
made. Jt is not, says Willes, J., necessary that there should
be actual danger, for a robbery may be committed without using
an offensive weapon, as by using a tinder-box, or candlestick,
instead of a pistol. A reasonable fear of danger caused by tha
Robbery . 743
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 constiuctive violence be such, as
in its effects necessarily imports a probable injury, for when a
villain comes and demands monej, no one knows how far he
will go, Doiniallii's case, 1 Leach, 196, 197, 2 East, P. C.
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 such a nature as in reason and common experience
is likely to induce a person to part with his property against his
will, and to put him, as it were, under a temporary suspension
of the power of 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 foice, or an actual taking
by violence or assault upon the person. 2 East, P. C. 713.
Ibid. 727.
In Jackson's case, 1 Ensf, P. C. Addenda xxi. post, it seems
to have been considered that the fear must be of that descrip-
tion 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 robbery, in every case, that
the terror impressed should be that of which a man of constancy
and courage would be sensible. It has been well remarked,
that in estimating the degree of violence which will be held suf-
ficient to support a charge of robbery, regard is to be had to the
age, sex, and situation of the party assaulted, it being justly
deemed that a much smaller degiee of threats and violence will
be sufficient to effect the spoliation from a woman or an infirm
person, in a remote situation, than from a young or robust man
in a frequented spot. Alison, Princ. Crim. Law of Scott. 229,
Burnett, 146.
Proof of being put in fear injury to the person.] 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 was no real
danger, as that the supposed pistol was in fact a candlestick,
see ante, p. 742 ; in short, danger to the person may be appre-
hended 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 tier personal safety. It seems
also, that fear of violence to the person of the child of the party,
whose property is demanded, is regarded in the same light as
fear of violence to his own person. Hoth.am, B., in Donnallii's
ease, 2 East, P. C. 718, stated, that with regard to the case put
in argument, if a man walking with his child, and delivering
744 Robbery.
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 suffi-
cient to constitute a robbery. So in Heave's case, 2 East, P. C.
735, Eyre, C. J., observed, that he saw no sensible distinction
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.
Proof of the putting in fear -fear of injury to property.'] It
is sufficient to prove that the conduct of the prisoner put the
prosecutor in fear for the safety of his property. During certain
riots in Cornwall, the prisoners with a mob, came to the prose-
cutor's house, and said they must have from him the same they
had had from his neighbours, which was a guinea, else that
they would tear down his mow of corn, and level his house.
The prosecutor gave them 5s., but they demanded, and received
5s. more, being terrified. They then opened a cask of cyder,
and drank part of it, eat some bread and cheese, and the pri-
soners carried away a piece of meat. The prisonerswere indicted
and convicted 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, &c., and it
was held robbery in the dwelling-house. Simons' 's case, 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 house must come
down. The jury found that, the prosecutor did not deliver his
money from any apprehension of danger to his life or person,
but from an apprehension, that if he refused, his house would
at some future time be pulled down in the same manner as
other houses in Birmingham. On a case reserved, a majority
of the judges held this to be robbery. Astley's case, 2 East,
P. C. 729. See also Brown's case, 2 East, P. C. 731, Spencer's
case, 2 East, P. C. 712, ante, p. 741.
Proof of being put in fear fear of injury to reputation.]
There appears to be only one case in which the fear of an in-
jury to the party's reputation, has been allowed to raise the
offence of larceny from the person to robbery, viz. where the
prisoner has threatened to accuse the prosecutor of unnatural
practices. The species of terror, says iAlr. 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 sodomi-
tical practices. Knewland's case, 2 Leach, 730. The rule is
laid down in the same case, in rather larger terms, by Mr. Jus-
Robbery. 745
tice Heath, who says, " The cases alluded to (Donnolly's case,
and Hickman's case, infra), only go thus far that to obtain
money from a person by accusing him of that which, if proved,
would carry with it an infamous punishment, is sufficient to sup-
port 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 robbery, was decided
in Jones's case. 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 1 The prosecutor re-
plied, 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 prisoner being alarmed, left the
house, but the prosecutor 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 V to which the prisoner answered,
" A present. You must make me a present." And the prose-
cutor gave him three guineas and twelve shillings. The pri-
soner, during the whole conversation, held the prosecutor by the
arm. The prosecutor swore that at the time he parted with the
money, he understood the threatened charge to be an imputa-
tion of sodomy ; that he was so alarmed at the idea, that he
had neither courage nor strength to call for assistance, 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.J. C., and Ashhurst,
J., and one vacancy,) were of opinion, that although the money
had been obtained in a fraudulent way, and under a false pre-
tence, yet, that it was a pretence of a very alarming natuie,
and that a sufficient degree of force had been made use of in
effecting 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 there was no occasion to use weapons or real
violence, but that taking money from a man in such a situation
as rendered him not a tree man, as if a person so robbed were
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 a robbery, and they referred to Brown's case, (0. B.
1763.) Jones's case, 1 Leach, 139, 2 East, P. C. 714.
In the above case, it does not clearly appear whether the
judges 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
746 Robbery.
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
prisoner, who desired he would give him a present. The pro-
secutor asking, 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 pri-
soner 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
prosecutor delivered his money through fear, and under an ap-
prehension that his life was in danger. The case being reserved
for the opinion of the judges, they gave their opinions seri-
atim, (see 2 East, P. C. 716,) and afterwards the resultof 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 cul-
prit, charged with an unnatural crime. The threat must ne-
cessarily and unavoidably create intimidation. It v 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. DonnaUq's case, 1 Leach, 193, 2 East, P. C.
713.
It will be observed, that in the foregoing case, the jury
found that the prisoner delivered the money under an apprehen-
sion 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 reputation.
The prosecutor was employed in St. James's Palace, and
the prisoner was a sentinel on guard there. One night
the prosecutor treated the prisoner with something to eat
in his room. About a fortnight afterwards the prisoner followed
the prosecutor 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 ser-
geant 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 prose-
cutor gave him two guineas. The prisoner took them, saying,
" Mind, I don't demand anything of you." The prosecutor
swore that he was very much alarmed when he gave the two
Robbery. 74T
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 Jones's case, ante p. 745.) and
some doubt having prevailed with regard to DonnaUy's case,
because he had not been executed, and because this case dif-
fered with regard to the nature of the fear, it was reserved for
the opinion of the judges. Their resolution was delivered by
Mr. Justice Ashhurst, who said, that the case did not mate-
rially differ from that of Donnally, for that the true defini-
tion of robbery is, the stealing, or taking from the person, or in
the presence of another, property of any amount, with such a
degree of force or terror as to induce the party unwillingly to
to part with his property ; and whether the terror arises from
real or expected violence to the person, or from a sense of in-
jury 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 than the dread of personal injury. The
principal ingredient in robbery is a man's being forced to part
with his 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 sufricient/brce to constitute the
crime of robbery by putting in fear. Hickman's case, 1 Leach,
278, 2 Hast, P. C. 728.
This decision was followed in a recent case. The prisoner
came up to the prosecutor, a gentleman's servant, at his mas-
ter's door, and demanded 51. On being told by the prosecutor,
that he had not so much money, he demanded I/, 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 liber-
ties 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 h's coats, which the prisoner took away. lie 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 character and his place. He stated that he was not afraid
of being taken into custody, nor had he any dread of punish-
ment. 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, expecting the company to dinner
mmediately. On a case reserved, eleven ofthejuuges thought
748 Robbery.
the case similar to Hickman's (supra), and that they could not,
with propriety, depart from that decision. Graham B. thought
that Hickman's case 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. Egerton's case, Russ.
Sf Ry. 375.
Upon a threat of accusing the prosecutor of unnatural
practices, he promised to provide a sum of money for the pri-
soners, 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 gentleman, 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 \OL, which he gave to the pri-
soners. He stated that he parted with his money in the fear and
dread of being placed in the situation of a criminal of that na-
ture, 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.
In a case of this kind, where the point of violence was in
question, ten of the judges were of opinion that the calling a
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 peison.
Lord Ellenborough, Macdonald, C.B., Lawrence, J., Chambre,
J., and Graham, B., thought some degree of force or violence
essential, and that the mere apprehension of danger to the cha-
racter would not be sufficient to constitute this offence. Heath,
J., Grose, J., Thomson, B., Le Blanc, J., and Wood, B.,
seemed to think it would. Cannon's case, Russ. &; Ry. 146.
The threat in these cases must be a threat to accuse the party
robbed; it is not sufficient to constitute 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. Lit-
tledale, 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 ; and his lordship directed an acquittal. He said
that the case was new and perplexing. He thought it was rather
a misdemeanor, and even as a misdemeanor the case was new.
Robbery. 749
The principle was, that thg person threatened is thrown off his
guard, and had not firmness to resist the extortion, but he could
not apply that principle to the wife of the party threatened. Ed-
ward's case, 1 Moody &; Rob. 257, 5 C. $ P. 518.
Where the fear, in cases of this nature, is not so much of injury
to the reputation, as of some other loss, it seems doubtful how
far it will be considered robbery. The prisoner went twice to
the house where the prosecutor lived in service, and called him a
sodomite. The prosecutor took him each time before a magis-
trate, who* discharged him. On being discharged, the prisoner
followed the prosecutor, repeated the expressions, and asked
him to make him a present, saying, he 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 men-
tioned 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 the Privy Council, the opinion of the
judges was taken. Most of them thought that this was within
Hickman's case, 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 cart 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. Elmstead's case,
2 Russell, 86.
In these, as in other cases of robbery, 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 vio-
lence 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 20J. in cash, and a bond for 501. a-year, upon
which the prosecutor, in pursuance of a plan he had previously
concerted with a friend, told him that he could not give them 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 20L, but he refused to take it without the
bond, upon which the prosecutor fetched it, and gave it, with
nineteen guineas and a shilling, to the prisoner, who took them
awav, saying, he would not give the prosecutor any further
trouble. The prosecutor deposed that when the charge was
first made, his mind was extremely alarmed, and that he appre-
hended injury to his person and character, but that his fear soon
subsided, and that he sought the several interviews with the
prisoner for the purpose of parting with his property to him, in
order to fix him with the crime of robbery, and to substantiate
the fact of his having extorted money from him by means of the
750 Robbery.
charge ; but that at the time the prisoner demanded from him
the money and the bond, he parted with them without being
under any apprehension, either of violence to his person, or injury
to his character, although he could not say that he parted with
his property voluntarily. The judges having met to consider this
case, were inclined to be of opinion that it was no robbery, there
being neither violence nor fear, at the time when 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 rob-
bery. 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 cir-
cumstances, impressed such a terror on the prosecutor as to
render him incapable of resisting the demand ? Therefore,
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 different from Norden's
case, (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 was held
wrong. Reane's case, 2 Leach, 616, 2 East, P. C. 734. The
same point was ruled in Fuller's case, Rnss. &; 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 pro-
secute 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 accom-
pany 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 drink-
ing together. Shelton confirmed the prisoner'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 robbery, the money must be parted with from an im-
mediate 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 deliberate upon
Robbery. 751
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 that it was not robbery, went upon the ground
that there was not a continuing fear, such as could operate in
conslantem virum from the time when the money was demanded
till it was paid, for in the interval he could have procured as-
sistance, and had taken advice. The minority, who held the
case to be robbery, thought the question concluded 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 de-
finition of robbery long ago adopted and acted upon, and they
said it would be difficult to draw any other line. 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 oppor-
tunity of applying to magistrates cr others for their assistance,
for the money was given to prevent the public disclosure of the
charge. Jackson's case, I East, P. C. Addenda XKI. It is sug-
gested by Mr. East, Id. xxiv. (margin), whether this case does
not in a great measure overrule Hickman's case (ante, p. 747) ;
but it is justly observed by an eminent writer, that the cir-
cumstances of the two cases differ materially ; that in Hickman't
case the money was given immediately upon the charge being
made, and that there was no previous application to any friend
or other person from whom advice or assistance might have been
procured. 2 Russell, 85.
There appears to have been so much doubt entertained with
regard to the law, as it is to be gathered from the preceding
ases, that a statutory provision has been made on the subject.
By the 7 & 8 G. 4. c. 29. s. 7. it is enacted, that if any person
shall accuse, or threaten to accuse any other person of any in-
famous crime, as thereinafter defined, with a view or intent to
extort or gain from him, and shall by intimidating him by such
accusation or threat, extort or gain from him any chattel,
money, or valuable security, every such offender shall be deemed
guilty of robbery, and shall be indicted and punished accord-
ingly.
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, whether the prosecutor were
really guilty or not ; as if he was guilty, the prisoner ought to
have prosecuted him for it ; and not have extorted money froru
752 Robbery.
him ; but if the money was given voluntarily without any pre-
vious threat, the indictment could not be supported. The jury
acquitted the prisoner. Gardner's case, 1 C. & P. 479.
The following case appears to have been regarded as ranging
itself under the same class as the foregoing, but as wanting that
species of fear of injury to the reputation which is necessary to
constitute robbery. The prosecutrix, a servant maid, was in-
veigled into a mock-auction, and the door was shut. There were
about twenty persons present. Refusing to bid, she was told,
" you must hid before you obtain your liberty again." She,
however, again refused, and at length, alarmed by their impor-
tunities, she attempted to leave the shop. Being prevented,
and conceiving that she could not gain her liberty without com-
plying, 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 could 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 pre-
tended 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 her 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 release 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 only parted with her money to avoid being carried to
Bow-street, and thence to Newgate, and not out ot fear or ap-
prehension 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
cases of threats to accuse persons of unnatural offences, Mr.
Justice Ashhurst, delivering the resolution of the judges, thus
proceeds: In the present case the threat which the prisoners
made was to take the prosecutor 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
Robbery. 753
threat to put her into the hands of the law, and an innocent
person need not in such circumstances be apprehensive of any
danger. She might have known, that having done no wrong,
the law, if she had been carried to prison, would have taken her
under its protection and set her free. The terror arising from
such a source cannot therefore be considered of a degree suffi-
cient 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,
(\Vood, the pretended constable,) it appears that the force
which he used against the prosecutrix was merely that of push-
ing her into the sale-room ; and detaining her until she gave
the shilling ; but as terror is, no less than force, a component
part of the complex idea annexed to the term robbery, the crime
cannot be complete without it. The 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. Knewland's
case, 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 express declaration of the 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 robbery. The statement that terror
no less than force is a component part of the complex idea
annexed to the term robbery, is not in conformity with the
various decisions already cited, from which it appears that
either violence or putting in fear is sufficient to constitute
a robbery. There seems also to be a fallacy in the reasoning
of the Court, with regard to the 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 prisoners 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), would probably be
resorted to, in order to extort money. It is difficult to imagine
any case in which a party might with more reason apprehend
violence and injury, botli 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 Gascoigne's case, 1 Leach, 280, 2 East, P. C, 709, ante,
KX5
7-i4 Robbery assault with intent to rob.
p. 740, 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 prosecutrix's pocket by the
prisoner himself, but it is clearly immaterial whether the of-
fender 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 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 after-
wards, it is not robbery. 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
hands, demanded it, when the prisoner answered, " Villain, if
thou speakest of this purse, I will pluck thy house over thy
ears," &c., 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. Harman's case, 1 Hate,
P. C. 534, 1 Leach, 198. (n.)
ROBBERY.
ASSAULT WITH INTENT TO ROB.
Statute 7 3f 8 G. 4. c. 29. . . 754
Proof of the assault .... 755
Proof of the intent to rob ... 755
Statute 1 &; 8 G. 4. c. 29.] Before the statute 7 & 8
Geo. 4. c. 29. s. 6, the offence of assaulting with intent
to rob was provided against by the 4 Geo. 4. c. 54. a. 5,
Robbery Assault with intent to rob. 755
(repealing the 7 G. 2. c. 21.) The 4 Geo. 4. enacted, that if
any person should maliciously assault any other person, with
intent to rob such, other person, he should be adjudged guilty of
felony, &c. The enactment in the 7 & 8 Geo. 4. is substan-
tially the same, being " shall assault any other person with in-
tent to rob him."
Upon an indictment for an assault with intent to rob, the
prosecutor must prove, 1, the assault ; and 2, the intent of the
prisoner to commit a robbery.
Proof of the assault.] The assault will be proved in the same
manner as the assault in robbery, only that the completion of
the offence, in taking the prosecutor's property from his person
or in his presence will be wanting. A question has been raised
upon the repealed statutes, whether or not there must be an actual
assault upon the same person whom it is the offender's intention
to rob. In the construction of the 7 Geo. 2. c. 21. it was de-
cided that the assault must be upon the person intended to be
robbed. The prosecutor was riding in a post-chaise, when it
was stopped by the prisoner, who, extending his arm towards
the post-boy, presented a pistol, swore many bitter oaths with
great violence, but did not.make any demand of money. He
immediately stopped the chaise, when the prisoner turned to-
wards it, but perceiving some one coming up, rode off without
speaking. Upon an indictment for assaulting the prosecutor
with intent to rob him, Ashhurst, J. told the jury that the evi-
dence was not sufficient, that the charge was, not for an assault
with intent to rob the postillion, but with an intent to rob the
prosecutor in the chaise, and that no such intent appeared.
Thomas's case, 1 Leach, 330, 1 East, P. C. 417.
Proof of the intent to rofc.] The intent to rob will be gathered
from the general conduct of the prisoner at the time. Menaces,
threats, violence, and in short whatever conduct, which, if it had
been followed by a taking of property, would have constituted
robbery, will in this case be evidence of an intent to rob. The
prisoners rushed out of the hedge upon the prosecutor, who was
the driver of a return chaise, as he was passing along the road,
and one of them, presenting a pistol to him, bade him stop, which
the boy did, but called out for assistance to some persons whom
he had met just before. On this one of the prisoners threatened
to blow his brains out if he called out any more, which the pro-
secutor nevertheless continued to do, and, obtaining assistance,
took the men, who had made no demand of money. They were
convicted of an assault with intent to rob, and transported.
Trusty's case, 1 East, P. C. 418.
It appears from one case to have been thought that in order
to substantiate the fact of the intent to rob, a demand of pro-
perty was necessary to be proved. Parfait's case, 1 East, P. C.
750 Sacrilege.
416. It seems, however, that this decision was founded upon
an erroneous view of the then statute, two of the clauses, that
respecting assaults to rob, and that respecting demanding inoney
by threats and menaces being read as one enactment. 1 East,
P. C. 417. Thomas's case, Id., and Trusty's case, Id. 418,
also tend to show that the resolution of the court in Parf ait's
case is erroneous, see also Sharwin's case, 1 East, P. C. 421.
The words of the statute 7 & 8 G. 4. c. 29. s. 6, seem to leave
no doubt upon the question, the words " with intent to rob"
following immediately after the description of the offence by
assaulting, and not being deferred, as in the stat. 7 G. 2. c. 21,
until after the description of the offence of demanding, Sue.,
with menaces.
SACRILEGE.
Statute 1 $ 8 G. 4. c. 29. . . . 756
Proof that the building is a church or chapel . . 756
Proof of the stealing of goods . . 757
Statute 7 <Sf 8 G. 4. c. 29.] The statutes 23 Hen. 8. c. 1,
and 1 Ed. 6. c. 12, which related to the offence of sacrilege, or
breaking and stealing in a church, are repealed by the 7 & 8
G. 4. c. 27.
By 7 & 8 G. 4. c. 29. s. 10, if any person shall break
and enter any church or chapel, and steal therein any chattel,
or having stolen any chattel in any church or chapel, shall break
out of the same, every such offender, being convicted thereof,
shall suffer death as a felon.
Upon a prosecution under this statute, the prosecutor must
prove, 1, the breaking and entering ; 2, that the building broken
was a church or chapel within the statute ; and, 3, the stealing
of goods in the church or chapel.
Such a breaking and entering, as would constitute a burg-
lary, will be a breaking and entering within this statute ; but it
need not be in the night-time. It should be observed, that a
breaking and entering, merely uith intent to steal, is not made
an offence by the statute.
Proof that the building is a church or chapel.] It must ap-
pear that the building, in which the offence was committed,
Shop. 757
was a church or chapel. Where the goods stolen had been de-
posited 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 ; Parke, J., was of opinion that this
tower was to be taken as part of the church. Wheeler's case,
3 C. <Sf P. 585. This statute Hoes not include the chapels of
dissenters, Richardson's case, 6 C. fy P. 335 ; and the practice
is to indict, in such instances, for the larceny. Hutchinson's
case, Russ. fy Ry. 412. Where such chapels are intended to be
comprised, they are specifically described, as in the 7 & 8 G. 4.
c. 30. s. 2 ; against setting fire " to any church or chapel, or to
any chapel for the religious worship of persons dissenting from
the united church of England and Ireland, duly registered and
recorded."
Proof of the stealing of goods.'] The words in the 7 & 8 G. 4.
c. 29. s. lO, " any chattels," must be held, like the words " any
goods," in the repealed statute 1 Ed. 6. c. 12, to extend to arti-
cles deposited in a church, though not used for divine service.
While a church was undergoing repair, the prisoner stole from
it a pot, used to hold charcoal, for airing the vaults, and a
snatch-block, used to raise weights, if the bells wanted repair.
Upon a conviction for this offence, as sacrilege, under the statute
of Ed. 6, the judges were of opinion that these goods were
within the protection of the act, which was intended to prevent
the violation of the sanctity of the place. Rourke's case, Russ.
$ Ry. 386. Upon the ground of the decision in the above
case, and the very general nature of the words used in the
new statute, it would probably be held, that the stealing of any
chattels in the church, though deposited there by a private indi-
vidual, would be larceny. See 2 Deac. Dig. C. L. 1156.
SHOP,
BREAKING AND ENTERING A SHOP, AND
STEALING THEREIN.
By the 7 & 8 G. 4. c. 29. s. 15, it is enacted, that if any
person shall break and enter any shop, warehouse, or counting-
house, and steal therein any chattel, money, or valuable secu-
rity, every such offender, being convicted thereof, shall be liable
758 Smuggling.
to any of the punishments which the Court may award, as
therein-before last mentioned. By the section referred to,
(s. 14,) the punishment is transportation for life, or for any
term not less than seven years, or to be imprisoned for any term
not exceeding four years, and, if a male, to be once, twice, or
thrice publicly or privately whipped, if the Court shall so think
fit, in addition to such imprisonment.
The prosecutor must prove a breaking and entering, in the
same manner as upon an indictment for breaking and entering
a dwelling-house, ante, p. 331 ; and he must then prove a lar-
ceny in the shop, and that the goods were the property of the
person mentioned in the indictment. Probably the decisions,
with regard to the goods being under the protection of the
dwelling-house, (in prosecutions for breaking and entering a
dwelling-house, and stealing therefrom, ante, p. 333,) would
be held applicable to prosecutions for this offence.
SMUGGLING,
AND OTHER OFFENCES CONNECTED WITH THE CUSTOMS.
Proof of assembling armed to assist smuggling . 759
Proof of being assembled together . . . 759
Proof of being armed with offensive weapons . . 759
Proof of shooting at a vessel belonging to the navy, fc. . 760
Proof of being in company with others having prohibited
goods .... 760
Service of indictment in certain cases, and entering plea
for prisoners . . . 761
Certain rules of evidence . . . 761
Limitation of prosecutions . . . 762
Venue . . . . .763
The statutes against the offence of smuggling were consoli-
dated by the 6 G. 4. c. 108, but other statutes having been
subsequently passed, the whole were consolidated in the 3 & 4
W. 4. c. 53, which contains various regulations with regard to
prosecutions by the customs in general.
Smuggling. 759
Proof of assembling armed to assist in smuggling-] By the
58th sect, of the 3 & 4 VV. 4. c. 53, it is enacted, that if any
persons to the number of three or more, armed with fire-arms
or other offensive weapons, shall, within the United Kingdom,
or within the limits of any port, harbour, or creek thereof, be as-
sembled in order to be aiding and assisting in the illegal land-
ing, running, or carrying away of any prohibited goods, or any
goods liable to any duties which have not been paid or secured,
or in rescuing or taking away any such goods as aforesaid, after
seizure, from the officer of the customs or other officer authorised
to seize the same, or from any person or persons employed by
them, or assisting them, or from the place where the same shall
have been lodged by them, or in rescuing any person who shall
have been apprehended for any of the offences made felony by
this or any act relating to the customs, or in the preventing the
apprehension of any person who shall have been guilty of such
offence, or in case any persons to the number of three or more,
so armed as aforesaid, sjiall, within the United Kingdom, or
within the limits of any port, harbour, or creek thereof, be so
aiding or assisting, every person so offending, and every person
aiding, abetting, or assisting therein, shall, being thereof con-
victed, be adjudged guilty of felony, and surfer death as a felon.
On the part of the prosecution, the evidence will be 1, that
the defendants to the number of three or more, were assembled
together ; 2, for the purpose of aiding and assisting; 3, that
they or some of them (see Smith's case, Russ. fy By. 386, ante,)
were armed ; 4, with offensive weapons.
Proof of being assembled together.] It must be proved that
the prisoners, to the number of three or more, were assembled
together, and as it seems, deliberately, for the purpose of aiding
and assisting in the commission of the illegal act. Where a
number of drunken men came from an ale-house, and hastily
set themselves to carry away some Geneva, which had been
seized, it was considered very doubtful whether the case came
withm the statute 19 G. 2. c. 34, the words of which manifestly
allude to the circumstance of great multitudes of people coming
down upon the beach of the sea, for the purpose of escorting
uncustomed goods. Hutchinson's case, 1 Leach, 343.
Proof of being armed with offensive weapons.] Although it
n>ay be difficult to define what is to be called an offensive
weapon ; yet, it would be going too far to say, that nothing but
guns, pistols, daggers, and instruments of war are to be so consi-
dered ; bludgeons, properly so called, and clubs, and any thing
not in common use for any other purpose than a weapon, being
clearly offensive weapons within the meaning of the act.
Cosan's case, 1 Leach, 342, 343, (?i.) Large sticks, in one
case, were held not to be offensive weapons ; the preamble cf
760 Smuggling.
the statute, showing that they must be what the law calls dan-
gerous. Ince's case, 1 Leach, 342, (.) But on an indictment
with intent to rob, a common walking stick, has been held to be
an offensive weapon. Johnson's case, Russ. <f Ry. 492, vide
ante, p. 446. See also Sharwin's case, 1 East, P. C. 321. A
whip was held not to be " an offensive weapon" within the
statute 9 G. 2. c. 35, Fletcher's case, 1 Leach, 23, and, under
the statute 6 G. 4. c. 138, bats, which are poles used by smug-
glers to carry tubs, were held not to be offensive weapons.
Noake's case, 5 C. <Sf P. 326. If in a sudden affray, a man
snatch up a hatchet, this does not come within the statute.
Rose's case, 1 Leach, 342, (n.)
Proof of shooting at a boat belonging to the navy, <Sfc.] By
section 59 of the 3 & 4 W. 4. it is enacted, that if any person
shall maliciously shoot at any vessel or boat belonging to his
Majesty's navy, or in the service of the revenue, within one
hundred leagues of any part of the coast of the United King-
dom, or shall maliciously shoot at, maim, or dangerously wound
any officer of the army, navy, or marines, being duly employed
for 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 due
execution of his office or duty, every person so offending, and
every person aiding, abetting, or assisting therein, shall, being
lawfully convicted, be adjudged guilty of felony, and suffer
death as a felon.
Upon an indictment under the first part of this section, the
prosecutor 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 ; 4, that the vessel was within 100 leagues of the
coast.
Upon the statute 52 G. 3. c. 143, it was held that if a cus-
tom-house vessel chased a smuggler, and fired into her without
hoisting such a pendant and ensign, as the statute 56 G. 3. st. 2.
c. 104. s. 8, required, the returning the fire by the smuggler, was
not malicious within the act. Reynold's case, Russ. fy Ry. 465.
Proof of being in company with others having prohibited goods.]
By the 60th section of the 3 & 4 W. 4. c. 53, it is enacted,
that if any person being in company with more than four other
persons be found with any goods liable to forfeiture, under this
or any other act relating to the revenue of customs or excise, or
in company with one other person, within five miles of the sea
coast, or of any navigable river leading therefrom, with such
goods, and carrying offensive arms or weapons, or disguised in
any way, every such person shall be adjudged guilty of felony,
and shall, on conviction of such offence, be transported as a
felon for the space of seven years.
Smuggling. 761
Service of indictment in certain cases, and entering plea for
prisoner.] By section 108, of the 3 & 4 W. 4. c. 53, the
judges of the King's Bench, are empowered to issue warrants
for apprehending offenders prosecuted by indictment or informa-
tion, and such offenders neglecting to give bail, may be com-
mitted to gaol, and where any person, either by virtue of such
warrant of commitment, or by virtue of any writ of capias ad
respondendum issued out of the said court, is now detained or
shall hereafter be committed to and detained in any gaol for
want of bail, it shall be lawful for the prosecutor of such indict-
ment or information to cause a copy thereof to be delivered to
such person, or to the gaoler, keeper, or turnkey of the gaol
wherein such person is or shall be so detained, with a notice
thereon indorsed, that unless such person shall, within eight
days from the time of such delivery of a copy of the indictment
or information as aforesaid, cause an appearance and also a
plea or demurrer to be entered in the said court to such indict-
ment or information, an appearance and the plea of not guilty
will be entered thereto in the name of such person ; and in
case he or she shall thereupon, for the space of eight days after
the delivery of a copy of such indictment or information as
aforesaid, neglect to cause an appearance and also a plea or
demurrer to be entered in the said court to such indictment or
information, it shall be lawful for the prosecutor of such indict-
ment or information, upon affidavit being made and filed in the
court of the delivery of a copy of such indictment, or informa-
tion, with such notice indorsed thereon as aforesaid, to such
person, or to such gaoler, keeper, turnkey, as the case may be,
which affidavit may be made before any judge or commissioner
of the said court authorised to take affidavits in the said court,
to cause an appearance and the plea of not guilty to be entered
in the said court to such indictment or information, for such
person ; and such proceedings shall be had thereupon as if the
defendant in such indictment or information appeared and
pleaded not guilty, according to the usual course of the said
court ; and that if upon trial of such indictment or information
any defendant so committed and detained as aforesaid shall be
acquitted of all the offences therein charged upon him or her,
it shall be lawful for the judge before whom such trial shall be
had, although he may not be one of the judges of the said
court of King's Bench, to order that such defendant shall be
forthwith discharged out of custody as to his or her commit-
ment as aforesaid, and such defendant shall be thereupon dis-
charged accordingly.
Certain rules of evidence."] The statute 3 k 4 W. 4. c. 53,
creates various presumptions for the purpose of facilitating the
evidence in proceedings instituted under it.
By section 116, it is enacted, that in case of any information
762 Smuggling.
or proceedings had under this or any other act relating to the
customs, the averment that the commissioners of his majesty's
customs or excise have directed or elected such information or
proceedings to be instituted, or that any vessel is foreign, or
belonging wholly or in part to his majesty's subjects, or that
any person detained or found on board any vessel or boat liable
to seizure is or is not a subject of his majesty, or that any
person detained is or is not a seafaring man, or fit and able to
serve his majesty in his naval service, or that any person is an
officer of the customs, and where the offence is committed in
any port in the united kingdom, the naming of such port in any
information or proceedings shall be sufficient, without proof as
to such fact or facts, unless the defendant in such case shall
prove to the contrary.
By section 117, it is enacted, that all persons employed for
the prevention of smuggling under the direction of the commis-
sioners of his majesty's customs, or of any officer or officers in
the service of the customs, shall be deemed and taken to be duly
employed for the prevention of smuggling ; and the averment,
in any information or suit, that such party was so duly employed
shall be sufficient proof thereof, unless the defendant in such
information or suit shall prove to the contrary.
And by section 11 8, it is enacted, that if upon any trial a ques-
tion shall arise whether any person is an officer of the army, navy,
or marines, being duly employed for the prevention of smug-
gling, and on full pay, or an officer of customs or excise, evi-
dence of his having acted as such shall be deemed sufficient,
and such person shall not be required to produce his commission
or deputation, unless sufficient proof shall be given to the con-
trary ; and every such officer, and any person acting in his aid or
assistance, shall be deemed a competent witness upon the trial
of any suit or information on account of any seizure or penalty
as aforesaid, notwithstanding such officer or other person may be
entitled to the whole or any part of such seizure or penalty, or
to any reward upon the conviction of the party charged in such
suit or information.
Limitation of prosecutions.'] By 3 & 4 W. 4. c. 53. s. 120,
it is enacted, that all suits, indictments, or informations exhi-
bited for any offence against this or any other act relating to
the customs in any of his majesty's courts of record at West-
minster, or in Dublin, or in Edinburgh, or in the royal courts
of Guernsey, Jersey, Alderney, Sark, or Man, shall and may
be had, brought, sued, or exhibited within three years next
after the date of the offence committed, and shall and may be
exhibited before any one or more justices of the peace within
six months next after the date of the offence committed.
All indictments under this act (except cases before justices,)
are to be preferred by order of the commissioners.
Sodomy. 765
Venue.'} By statute 3 & 4 W. 4. c. 53. s. 77, it is enacted,
that in case any offence shall be committed upon the high seas
against this or any other act relating to the customs, or any penalty
or forfeiture shall be incurred upon the high seas for any breach
of such act, such offence shall for the purpose of prosecution,
be deemed and taken to have been committed, and such penal-
ties and forfeitures to have been incurred, at the place on land
in the United Kingdom or the Isle of Man into which the
person committing such offence or incurring such penalty or
forfeiture, shall be taken, brought, or carried, or in which such
person shall be found ; and in case such place on land is si-
tuated within any city, borough, liberty, division, franchise, or
town corporate, as well any justice of the peace for such city,
borough, liberty, division, franchise, or town corporate, as any
justice of the peace of the county within which such city,
borough, liberty, division, franchise, or town corporate is si-
tuated, shall have jurisdiction to hear and determine all cases
of offences against such act so committed upon the high seas,
any charter or act of parliament to the contrary notwithstanding :
provided always, that where any offence shall be committed
in any place upon the water not being within any county of
the united kingdom, or where any doubt exists as to the same
being within any county, such offence shall, for the purposes of
this act, be deemed and taken to be an offence committed upon
the high seas.
By section 122, any indictment or information for any offence
against that act, or any act relating to the customs, shall be
inquired of, examined, tried and determined in any county of
England where the offence is committed in England, and in
any county in Scotland where the offence is committed in
Scotland, and in any county in Ireland where the offence is
committed 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.
SODOMY./
By the statute 9 G. 4. c. 30. s. 15, it is enacted, that every
person convicted of the abominable crime of buggery, com-
mitted either with mankind, or with any animal, shall suffer
death as a felon.
764 Spring Guns.
The clause (sec. 18,) respecting the difficulty of proof with
regard to the completion of the offence of rape, already stated,
ante, p. 709, is applicable also to this crime, and the cases
there cited, on the interpretation of that clause, are authorities
here.
It is not necessary to prove that the offence was committed
against the will of the party upon whom the assault is made,
and if that party be consenting, both are guilty of the offence.
In one case, a majority of the judges were of opinion, that the
commission of the crime with a woman was indictable. Wise-
man's case, Fortescue, 91. The act in a child's mouth does not
constitute the offence. Jacob's case, Russ. <3f Ry. 331.
Proof that the prisoner was addicted to such practices is not
admissible, ante, p. 58.
SPRING GUNS.
The setting of spring guns and man traps is made a mis-
demeanor by the statute 7 & 8 G. 4. c. 18, by the 1st section
of which it is enacted, and declared, that if any person shall set
or place, or cause to be set or placed, any spring gun, man trap,
or other engine calculated to destroy human life, or inflict griev-
ous bodily harm, with the intent that the same, or whereby the
same may destroy or inflict grievous bodily harm upon a tres-
passer, or other person coming in contact therewith, the person
so setting or placing, or causing to be so set or placed, such
gun, trap, or engine as aforesaid, shall be guilty of a misde-
meanor.
By section 3, of the same statute, it is enacted and declared,
that if any person shall knowingly and wilfully permit any- such
spring gun, man trap, or other engine as aforesaid, which may
have been set, fixed, or left in any place then being in or after-
wards coming into his or her possession or occupation, by some
other person or persons, to continue so set or fixed, the person
so permitting the same to continue shall be deemed to have set
and fixed such gun, trap, or engine, with such intent as afore-
said.
But by section 4, it is provided and enacted, that nothing in
this act shall be deemed or construed to make it a misde-
meanor, within the meaning of that act, to set or cause to beset,
or to be continued set, from sunset to sunrise, any spring gun,
man trap, or other engine which shall be set, or caused or
Threats demanding money with menaces. 765
continued to be set in a dwelling house for the protection
thereof.
And by section 2, it is also provided and enacted, that no-
thing therein contained shall extend to make it illegal to set any
gin or trap, such as may have been or may be usually set with
the intent of destroying vermin.
Upon a prosecution in this statute, the prosecutor must prove,
1st, the setting or causing to be set the engine in question; and
2d, the intent to destroy or inflict grievous bodily harm. It is
not however necessary to show an actual intent, the words of
the statute being, " or whereby the same may destroy or inflict,"
&c., therefore if the party sets the engine in such a place as
that in reasonable probability it may inflict the injury, the
offence seems complete.
If the indictment is for continuing the engine, evidence must
be given that the defendant knew of its being set, and know-
ingly continued it.
THREATS.
DEMANDING MONEY WITH MENACES.
Stature 7 6> 8 Geo. 4. c. 29. . . . 765
Proof of the demand ..... 765
Proof of the threat or force .... 766
Proof of the intent ..... 766
Proof of the thing demanded .... 767
Statute 74-8 Geo. 4. c. 29.] The offence of demanding
money with menaces is now provided against by statute 7 & 8
G. 4. c. 29. s. 6, by which it is enacted, that if any person
shall, with menaces or by force, demand any such property
(fir. any chattel, monney or vauable security) of any other
person, with intent to steal the same the offender shall be pu-
nished as therein-mentioned.
Upon an indictment under this statute, the prosecutor must
prove 1, the demand; 2, the menaces or force ; 3, the intent
to steal.
Proof of the demand.'] There must be evidence that the
prisoner demanded some chattel, money, or valuable security ;
766 Threats demanding money with menaces.
but it does not appear to be necessary that the demand should
be made in words, if the conduct of the prisoner amount to a
demand in fact. Where the prisoners seized the prosecutor,
and one of them said, " Not a word, or I will blow your brain*
out," and the other repeated the words, and appeared to be
searching for some offensive weapon in his pocket, when, upon
the prosecutor seizing him, the other prisoner ran away without
any thing more being said ; on an objection that this was no
demand, (within the repealed statute 7 Geo. 2. c. 21, which
enacts, that if any person shall, by menaces or by any forcible
or violent manner, demand any money, &c. with intent, &c. )x )
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 afterwards disposed of on the form of
the indictment. Jnckson's case, 1 Leach, 267, 1 East, P. C.
419. See 5 T. P. 169.
In another case upon the same statute, but upon an indict-
ment for an assault with intent to rob, Willes, C. J., made the
following observations on the subject of a demand. The cir-
cumstances were that the prisoner 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. ; and, per Willes, C. J. a man who is dumb may
make a demand of money, as if he stop a person on the highway,
and put his hat or hand 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. Parfait's ease, 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 circumstances, 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 Russell, 619.
Proof of the threat or force.] The prosecutor must show that
the demand was made with menaces, or by force. With re-
gard to the menaces, they must be of the same nature, as if the
money had been delivered in consequence of them, would have
constituted the offence of robbery. Vide supra. In the same
manner the force used must be such as would have been suf-
ficient to render the taking a robbery.
Proof of the intent.] The intent, as in similar cases, will
be proved from the circumstances under which the demand
was made. The decisions upon the animus furandi in robbery,
(vide ante, p. 736) may be referred to as governing the evidence
in this case also.
Threatening letters demanding money. 767
Proof with regard to the thing demanded.'] In order to
bring the offence within the statute, the thing demanded must
be such as the party menaced has the power of delivering up,
or is supposed by the offender to have the power of delivering
up. Where several persons were indicted for demanding with
menaces the money of W. Gee, with intent to steal it, and it
appeared that they had by duress extorted from him a check,
(which he wrote on paper furnished by the prisoners,) upon a
banker, for a large sum of money, the offence was held not to
be within the statute. Edwards's case, 0. B. 6 C. <5f P. 515.
The prisoners were afterwards charged with demanding by
menaces a valuable security for money, but the court held this
offence likewise not within the statute, on the ground that the
check never was in the peaceable possession of Mr. Gee.
Edwards's case. Id. 521.
THREATENING LETTERS DEMANDING MONEY.
Statute 7 and 8 Geo. 4 c. 29 . . .767
Proof cf the sending or delivering of the letter or
writing ..... 768
Proof of the nature of the letter or writing
the demand . . . 770
Proof ff the thing demanded . . . .771
Statute 7 $ 8 Geo. 4. c. 27.] The offence of demanding
money by a threatening letter was provided against by the
statute 9 Geo.l. c. 22. s. 1., which enacted, that if any
person or persons should knowingly send any letter without
any name subscribed, or with a fictitious name, demanding 1
money, venison, or other valuable thing, he should be guilty
of felony without benefit of clergy. This enactment was
extended by 27 Geo. 2. c. 15, to threats to kill, or murder, or
to burn houses, &c., and by 30 Geo. 2. c. 24, to threats to
accuse of any crime punishable with death, transportation,
pillory, or other infamous punishments. There were several
important differences in the defining of the different of-
fences created by these statutes, which it is not now neces-
sary to specify. See 2 Hussell, 579, (11.) These statutes
were repealed by the 4 Geo. 4. c. 54. s. 3, and their provisions
re-enacted, and the latter statute is also repealed by the
768 Threatening letters demanding money.
f & 8 Geo. 4. c.27, except so far as relates to any person
who shall send or deliver any letter or writing, threatening
to kill or murder, or to burn, or destroy, as therein men-
tioned, or shall be accessory to any such offence, or shall
forcibly rescue any person being lawfully in custody for
any such offence.
And now by stat. 7 & 8 Geo. 4. c. 29. a. 8, it is enacted,
that if any person shall knowingly send or deliver any
letter or writing, demanding of any person with menaces,
and without any reasonable or probable cause, any chattel,
money, or valuable security ; or if any person shall accuse or
threaten to accuse, or shall knowingly send or deliver any
letter or writing, accusing or threatening to accuse any
person of any crime punishable by law with death, trans-
portation, or pillory, or of any assault with intent to com-
mit any rape, or with any attempt or endeavour to commit
any rape, or of any infamous crime as thereinafter defined,
with a view or intent to extort or gain from such person any
chattel, money, or valuable security, every such offender shall
be guilty of felony, and be liable to be transported for life, &cc,
Section 9, defines what shall be an infamous crime, viz.
buggery, committed either with mankind or with beast, and
every assault with intent to commit that crime, and every
intent or endeavour to commit that crime, and every solici-
tation, persuasion, promise, or threat, offered or made to
any person, whereby to move or induce such person to com-
mit or permit such crime.
Upon a prosecution under the first branch of this clause,
vfz.the knowingly sending or delivering any letter or writ-
ing demanding of any person with menaces, and without
any reasonable or probable cause, any chattel, money, or
valuable security, the prosecutor must prove, 1, the know-
ingly sending or delivering of the letter by the prisoner,
2, the nature of the letter or writing, and that it contains a
demand, with menaces, and without any reasonable or pro-
bable cause, and 3, that the demand is of some chattel,
money, or valuable security.
Proof of the sending or delivering of the letter nr writing.]
The sending or delivering of the letter need not be imme-
diately by the prisoner to the prosecutor, if it be proved to
be sent or delivered by his means and directions, it is
sufficient. Upon an indictment on the repealed statute
27 Geo. 2. c.15, for sending a threatening letter to William
Kirby, it appeared that the threats were, in fact, directed
agaiust two persons, named Rodwell and Brock. 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 delivered the letter to
Threatening tetters demanding money. 769
Itodwell or Brook, and a jury should 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. Puddle's CJSB, RIISS.&, Rii. 484. Where
the prisoner dropped the letter upon the steps ot' the pro-
secutor's house, and ran away, Abbot, 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. Wagstajf's c.tse, Russ. <5f
Riy. 398. So in a case upon the 9 Geo. 1. c. 22, 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
had picked it up, and delivered it to him. Llnt/d's case,
2 Ea,<t, P. C. 1122. In a note upon this case, Mr. East
says qtitfre, whether if one intentionally put a letter in a place
where it is likely to be seen and read by the party for whom
it is intended, or to be found by some other person who it
is expected will forward it to such party, this may not be
said to be a sending to such party 1 The same evidence was
given in Sprinpett's case, (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,
/'. C. 1123, (n.) So where the evidence was that the letter
was in the handwriting of the prisoner, who had sent it to
the post-office, whence it was delivered in the usual man-
ner ; no objection was made. Heming's case, 2 Eust, P. C.
1116.
It must appear that the prisoner sent or delivered the
letter in question, knowing it to be such a letter as is de-
scribed in the statute. In a case upon the 27 Geo. 2. c. 15,
the evidence was, that the prisoner delivered the ietter at
the gate of Newgate, to a person who was employed in
doing errands for the prisoners ; that this person imme-
diately carried it to the penny post-office, whence it was
regularly conveyed, as directed, to the prosecutor, but there
was no proof of the prisoner's handwriting, or that he was
acquainted with the contents. Hotham, 13 , left it to the
jury to say whether, from the fact of the prisoner having
delivered the letter as before mentioned, he knew of the
contents, and the jury having found the prisoner guilty, the
judges held the conviction right. Girdwood's case, 1 Leuch,
142. 2 E-ist, P. C. 1120.
L L
770 Threatening letters demanding money.
Proof of the nature of the letter or writing."] It must be
proved that the letter or writing was one demanding of some
person with menaces, and without any reasonable or pro-
bable cause, some chattel, &c.
The act mentions letter or writing in general, and does
not specify whether it shall or shall not have a signature, or
a fictitious signature, or initials, and the questions, therefore,
which arose upon the 9 Geo. 1. c. 22, respecting the mode
of signature (See Robinson's case, 2 Leach, 749, 2 East, P. C.
1110,) have become immaterial. Nor need the document
have the form of a letter ; any writing containing a threat of
the nature mentioned in the statute, is within the section.
Proof of the nature of the letter or writing the demand.]
The letter must contain a demand with menaces, and without
any reasonable or probable cause. Whether the demand is
such as is laid in the indictment is a question for the jury.
Girduood's case, \ Leach, 142. 2 East, P. C. 1121. The de-
mand need not be made in express words ; it is sufficient if
it appear from the whole tenor of the prisoner's letter. See
the cases cited infra. That the demand was made with
menaces, and without any reasonable or probable cause, will
also appear in the same manner ; but should any doubt
exist upon the latter point, the prosecutor should be called
to give some evidence of the want of reasonable and probable
cause.
A mere request, such as asking charity, without imposing
any conditions, does not come within the sense or meaning of
the word " demand." Robinson's case, 2 Leach, 749, 2 East,
P. C.I 110.
The prisoner was indicted for sending a letter to the
prosecutor demanding money, with menaces. The letter
was as follows :
" Sir, as you are a gentleman and highly respected by
all who know you, I think it 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
manner they have planned, this dreadful undertaking would
be a most serious loss. They have agreed, &c. Sir, I
could give you every particular information how you may
preserve your property and your person, and how to detect
and secure the offenders. Sir, if you will lay me a purse of
thirty sovereigns upon the garden edge, 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 won't attempt to
seize me, when I come to take up the money and leave the
note of information. Sir, you will find I am doing you a
most serious favour, &c. &c." Bolland, 13., doubted whether
Threats accusing of murder, fy c. 771
this letter contained either a menace, or a demand, and re-
served the point for the opinion of the judges, who held that
the conviction was wrong. Pickford's case, 4 C. fy P. 227.
Proof of the thing demanded.'] It must appear that the
thing demanded bj the letter or writing was a chattel,
money, or some valuable security. Where the indictment
charged, that the prisoner intending to extort money, sent a
threatening letter, and it appeared that it was for the pur-
pose of extorting a promissory note, it was held that the
evidence did not support the indictment. Major's case,
2 Leach, 772, 2 East, P. C. 1118. And see Edwards's case,
6 C. 8[ P. 515, ante, p. 767.
THREATS.
ACCUSING OF MURDER, &C.
^tatute 4 Geo. 4. c. 54. . . . . 771
Proof of the sending of the letter, fyc. . . 772
Proof that the letter was one threatening to kill or murder 772
Statute 4 Geo. 4. c. 54.] That portion of the statute
4 Geo. 4. c. 54, which relates to threats to kill or murder, or
to burn or destroy, is excepted from the repealing statute of
7 & 8 Geo. 4. c. 27. vide ante, p. 768.
By 4 Geo. 4. c. 54. s. 3. it is enacted, that if any person
shall knowingly and wilfully send or deliver any letter or
writing, with or without any name or signature subscribed
thereto, or with a fictitious name or signature, threatening to
kill or murder any of his Majesty's subjects, or to burn or
destroy his or their houses, outhouses, barns, stacks of grain,
hay or straw, or shall procure, counsel, aid, or abet the
commission of the said offences, or any of them, or shall
forcibly rescue any person being lawfully in custody of any
officer or other person, for any of the said offences, every
person so offending shall, upon being thereof lawfully con-
victed, be adjudged guilty of felony, and shall be liable, at
the discretion of the court, to be transported beyond the
LL2
772 Threats accusing of murder, fyc.
seas for life, or for such term, not less than seven years, as
the court shall adjudge, or to be imprisoned only, or to be
imprisoned and kept to hard labour, in the common gaol or
house of correction, for any term not exceeding seven years.
In a prosecution under this act, the prosecutor mustprove,
1, the knowingly and wilfully sending or delivering a letter
or writing, with or without any name or signature subscribed
thereto, or with a fictitious name or signature ; and 2, that it
was a letter threatening to kill or murder, &c. No view or
intent to extort money is required to constitute the offence
by this act.
Proof of the sending or delivering of the letter, fyc.~] The
sending or delivering will be proved in the manner before
mentioned, with regard to other threatening letters. Vide
ante, p. 768.
Proof that the letter was one threatening to kill or murder,
#c.] Whether or not the letter amounts to a threat to kill
or murder, &c. within the words of the statute, is a question
for the jury. The prisoner was indicted (under the 27 G. 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 you 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 de-
pend 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 contained in the terms of it an actual threatening to
kill or murder, directing them to acquit the prisoner, if
they thought the words might import any thing less than to
kill or murder. The jury having found the prisoner guilty,
on a case reserved, the judges were of opinion that the
conviction was right. Girdwood's case, 1 Leach, 142. 2 East,
P.O. 1121.
The prisoners were indicted on the 27 Geo. 2. c. 15. for
sending to the prosecutor the following letter :
" Sir I am very sorry to acquaint you, that, we are de-
termined to set your mill on fire, and likewise to do all the
public injury we are abl'e to do you, in all your farms and
seteres [lettings] which you are in possession of, without
j'ou on next day, release that Ann Wood which you
put in confinement. Sir, we mention in a few lines, and
we hope if you have any regard for your wife and family,
Accusing of infamous crimes. 773
you will take our meaning without any thing 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 utter-
most ruin. I shall not mention nothing more to you, until
such time as you find the few lines, a fact, with our re-
spect. So no more at this time from me, " R. R."
It was proved that this was in the handwriting of one of
the prisoners, and that it was thrown hy the other prisoner
into the prosecutor's yard, whence it was taken by a servant,
and delivered to the prosecutor. The prosecutor swore that
he had 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 was 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 Buller, J., were of opinion, that
die 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 necessary construction, the
conviction was held wrong, and a pardon recommended.
Jepsoii and Spritigett's case, 2 East, P. C. 1115.
ACCUSING OF INFAMOUS CRIMES.
Statute 7 <Sf 8 Geo. 4. c. 29. ... 773
Proof of the accusing or threatening to accuse . . 774
Proof of the nature of the accusation . . . 774
/'mi)/ of the view or intent to extort money . . 77.5
Proof of the thing intended to be extorted . . 77j
Statute 1 & 8 Geo. 4. c. 29.] By the 7 & 8 Geo. 4. c. 29.
s. 8. it is enacted, if any person shall accuse, or threaten to
accuse, or shall knowingly send or deliver any letter or
writing, accusing, or threatening to accuse, any person of any
crime punishable by law with death, transportation, or
pillory, or with any assault with intent to commit any rape,
or of any attempt or endeavour to commit any rape, or
of any infamous crime as thereinafter denned, with a view
or intent to extort or gain from such person auy chattel,
money, or valuable security, everv such offender shall be
guilty of felony.
774 Accusing of infamous crimes.
On a prosecution upon this statute, the prosecutor must
prove, 1, the accusing or threatening to accuse, or the
knowingly sending or delivering of the letter or writing ac-
cusing or threatening to accuse; 2, that the accusation is of
the nature specified in the statute ; 3, the view or intent to
extort or gain ; 4, that the matter intended to be extorted
or gained was some chattel, money, or valuable security.
Proof of the accusing or threatening to accuse, <Sfc.] The
accusation under this statute may either he by word of mouth
or in writing, and an actual accusation before a competent
authority or otherwise, or a mere threat to make such an
accusation, will be sufficient. But if the party has been
already accused .threatening to procure witnesses to support
that accusation, is not within the statute. "It is one thing
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 . Gill's case, York Sum. As$.
1829, Greenwood's Stat. 191, (n.) Lewin, C. C. 305. An
indictment upon the 4 G. 4. c. 54. s. 5, (which uses the
words " threaten to accuse,") charged the prisoners with
" charging and accusing J. N., and with menacing an,d
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. Abgood's case, 2 C. fy P.
436.
I f the accusation or threat to accuse was contained in a
letter or writing, the knowingly sending or delivering of
such letter or writing must be proved in the manner already
pointed out. Vide ante, p. 768.
Proof of the nature of the accusation.] It must be shown
that the accusation, made or threatened, was of the nature
of those specified in the statute. Where the meaning is
ambiguous, it is for the jury to say whether it amounts to
the accusation or threat imputed. Declarations subse-
quently made by the prisoner are also admissible, to explain
the meaning of a threatening letter. The prisoner 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 him
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 prosecutor denied
it, and the prisoner afterwards said, " I mean by taking
Transportation returning from. 775
indecent liberties with my person." This evidence having
been received, and the point having been reserved for the
opinion of the judges, they unanimously resolved that the
evidence had been rightly received. Tucker's case, 1 Moody,
C. C. 134.
Proof of the view or intent to extort money.'] It must ap-
pear that the accusation or threat was made, or the letter or
writing sent or delivered, with the view or intent to extort
or gain from some person some chattel, &c. If the accusa-
tion or threat were merely made in passion, and with no
view of gain, it would not be within the statute.
Proof of the thing intended to be extorted, #c.] The matter
intended to be gained or extorted must be some chattel,
money, or valuable security, and it must be proved as laid
in the indictment.
TRANSPORTATION RETURNING FROM.
By stat. 5 Geo. 4. c. 84. s. 22. it is enacted, that 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 her-
self 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
dominions, without some lawful cause, before the expiration
of the term for which such offender shall have been sen-
tenced 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 law-
fully 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 res-
cue, or attempt to rescue, or assist in rescuing, or in at-
tempting 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 re-
conveying him or her, or shall convey, or cause to be con-
77C Transportation returning from.
veyed, any disguise, instrument for effecting escape, or
arms, to such offender, every such offence shall be punish-
able in the same manner as if such offender had been con-
fined 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. 24, it is enacted, that the clerk of the court, or
other officer having the custody of the records of the court
where such sentence or order of transportation or banishment
shall have been passed or made, shall at the request of any
person, on his majesty's behalf, make out and give a certi-
ficate in writing, signed by him, containing the effect and
substance only (omitting the formal part) of every indict-
ment and conviction of such offender, and of the sentence
or order for his or her transportation or banishment, (not
taking for the same more than 6s. 8</.) which certificate
shall be sufficient evidence of the conviction and sentence,
or order for the transportation or banishment of such offen-
der; 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 official character
of the person signing the same ; and ever)- such certificate,
if made by the clerk or officer 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.
Upon a prosecution for this offence, the prosecutor must
prove, 1, the conviction of the offender, by producing a
certificate according to the above section of the statute ; 2,
the sentence or order of transportation, 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 admis-
sible 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 was convicted " of felony'' is not sufficient.
SiUdif'e's case, lluss. &; Ry. 4f)9. (w.) Watstm's case, Id. 46'8.
3, Proof must then be given of the prisoner's identity; and
4, that he was at large before the expiration of his term.
Punishment.] By stat. 4 & 5 W. 4. c. 67. repealing 5 G.
4. c. 84. it is enacted, that from and after the passing of
that act, every person convicted of any offence above speci-
fied in the said act of the 5th year of the reign of his late
majesty king George IV. or of aiding orabetting, counsel-
General matters of defence. 777
ling or procuring the commission thereof, shall be liable
to be transported beyond the seas for his or her natural life,
and previously to transportation shall be imprisoned, with
or without hard labour, in any common gaol, house of cor-
rection, prison, or penitentiary, for any term not exceeding;
four years.
GENERAL MATTERS OF DEFENCE.
There are certain general matters of defence, the evidence
with regard to which it will be convenient to comprise
under the three following heads : Infancy, Insanity, and
Coercion by Husbands.
INFANCY.
Infancy .... . 777
In case of misdemeanors and offences not capital 777
In cases of capital offences . . . 778
Insanity ...... 778
Cases in which the prisoner has been held not insane 779
Cases in which the prisoner has been held insane . 782
Cases of insanity caused by intoxication . . 784
Coercion by husband . . . . 785
An infant is, in certain cases, and under a certain age,
privileged from punishment, by reason of a presumed want
of criminal design.
In cases of misdemeanors and offences not capital.] In certain
misdemeanors an infant is privileged under the age of 21,
as in cases of non-feasance only, for laches shall not be im-
puted to him. 1 Hate, P. C. 20. But he is liable for misde-
meanors accompanied with force and violence, as a riot or
battery. Id. So for perjury. Sid. 253. So be may be con-
victed of a forcible entry, 4 Bac. Ab. 591 ; but must not be
fined, ante, p. 379.
In cases of capital offences.'] Under the age of seven years,
an infant cannot be punished for a capital offence, not hav-
ing a mind doli capax ; 1 Hale, P. C. 19. ; nor for any other
L L 5
778 Insanity.
felony, for the same reason. Id. 27. But on attaining the
age of fourteen, he is obnoxious to capital (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
prevailed, but it is now quite clear, that where the circum-
stances of the case show that the offender was capable of
distinguishing between right and wrong, and that he acted
with malice, and an evil intention, he may be convicted 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 1629, an infantbetween 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. Dean's case, 1 Hale, P. C. 25. (n.)
So Lord Hale mentions two instances to the same effect,
one of a girl of thirteen, executed for killing her mistress,
and another of a boy often, for the murder of his companion.
\ 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 opi-
nion that the conviction was right. York's case, Foster, 70.
An infant under the age of fourteen years is presumed by
law unable to commit a rape, and though in other felonies,
malitia supplet (Etatem, 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 second degree, as aiding and
assisting, though under fourteen years, if it appear that he
had a mischievous discretion. 1 Hale, P.O. 630. Eldershaic's
case, 3 C. $ P. 396.
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. Ibid.
INSANITY.
Cases in which the prisoner has been held not to be
insane . . . .779
Cases in which the prisoner lias been held to be insane 782
Casee of insanity, caused by intoxication . . 784
The defence of insanity is one involving great difficulties
of various kinds, and the rules which have occasionally been
Insanity. 779
laid down by the judges, with regard to the nature and de-
gree 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 principle. That principle ap-
pears to be well laid down in the following passage.
To amount to a complete bar of punishment, either at
the time of committing the offence, or of the trial, the in-
sanity must have been of such a kind as entirely to deprive
the prisoner of the use of reason, as applied to the act in ques-
tion, and the knowledge that he was doing wrong in com-
mitting it. If, though somewhat deranged, he is yet able to
distinguish right 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. Grim. Law ScotL 645, 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. Cr. Law of ScotL 659.
For the purpose of proving insanity, the opinion of a per-
son possessing medical skill is admissible. Wright's case,
Russ. fy Ky. 456, ante, p. 137.
The disposal of persons found to be insane at the time of
the offence committed, is regulated by the statute 39 & 40
Geo. 3. c. 94, ante, p. 175.
The mode of arraignment and trial of such persons has
also been stated, ante, p. 175.
Coses in which the prisoner has been held not to be insane.} In
the following cases, the defence of insanity was set up, but
without effect, and the prisoners were convicted. The pri-
soner was indicted for shooting at Lord Onslow. It ap-
peared 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 insa-
nity must be clearly made out ; that it is not every idle or
frantic humour of a man, or something unaccountable in his
actions, which will show him to be such a madman as to
exempt him from punishment ; but that where a man is
totally deprived of his understanding and memory, and does
not know what he is doing any more than an infant, a brute,
or a wild beast, he will be properly exempted from punish-
ment. Arnold's case, Collinson on Lunacy, 475, 16 How. St.
Tr. 764, 765. 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 deprived of the power
of distinguishing between right and wrong with relation to
780 Insanity.
that act, it does not appear to be necessary that lie 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 waa occasion-
ally insane, and fancied his steward to be in the interest of
certain supposed enemies. The steward being in the parlour
with him, he ordered him to go down on his knees, and shot
him with a pistol, and then directed his servants to put him
to bed. He afterwards sent for a surgeon, but declared he
was not sorry, and that it was a premeditated act ; and he
would have dragged the steward out of bed, had he not con-
fessed himself a villain. Many witnesses stated that they
considered him insane, and it appeared that several of his
relations had been confined as lunatics. It was contended
for the prosecution, that the complete possession 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. Karl Ferrer's cax, 19 How. St. Tr. 886.
The prisoner was indicted for shooting at and wounding
W. 13., 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 conduct, and it was necessary to
watch him, lest he should destroy himself. Mr. Warburtoii,
the keeper of a lunatic asylum, said that in insanity caused
by epilepsy, the patient often imbibed 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 March. [The date of the offence committed does
not appear in the report.] Le Blanc, J., concluded his sum-
ming 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 be-
tween right and wrong, or under the influence of any illu-
sion in respect of the prosecutor, which rendered his mind
at the moment insensible of the nature of the act which he
was about to commit, since in that case he would not be
legally responsible for his conduct. 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
disabled him from discovering that he was doing a wrong-
act, he would be answerable to the justice of the country,
wild guilty in the eye of the law. The jury, after consider-.
Insanity. 781
able deliberation, pronounced the prisoner guilty. Bowler's
case, Coltlnsitn on Lunacy, 673, (n.)
The prisoner was indicted for adhering to the king's ene-
mies. His defence was insanity. He 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 displayed 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 mocey, than to remain confined in a dungeon. The at-
torney-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 was
committed, the prisoner did not really know right from
wrong. He was convicted. Parker's case, Collinson on Lu-
nacy, 477.
The direction of Mansfield, C. J., to the jury in Belling-
ham's case, 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 unquestionable evidence,
that the prisoner was incapable of judging between 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 ivas a crime against the laws of God and nature, and
that there was no other proof of insanity which would ex-
cuse murder or any other crime. That in the species of
madness called lunacy, where persons are subject to tem-
porary paroxysms, in which they are guilty of acts of extra-
vagance, 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 answerable 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
under this description of derangement. The prisoner was
found guilty and executed. Bellingham's case, 1 CoUhison vn
Lunacy, 636. She/ford on Lunatics, 462. See Offord's case,
5 C. 3f P. 168. The above direction does not appear to
make a sufficient allowance for the incapacity of judging
between right and wrong upon the veru 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
ihe distinction between right and wrong, yet if he labours,
as is generally the case, under an illusion and deception in
782 Insanity.
his own particular case, and is thereby incapable of apply-
ing it correctly to his own conduct, he is in that state of
mental aberration which renders him not criminally an-
swerable for his actions. For example ; a mad person may
be perfectly aware that murder is a crime, and will admit
that, if pressed on the subject ; still he may conceive that a
homicide he has committed was nowise blameable, because
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 in-
carnate, whom it was the duty of every good Christian to
meet with weapons of carnal warfare. Alison's Princ. Crlrn.
Law Scotl. 645, citing 1 Hume, 37, 38. And see the obser-
vations on Bellingham's case, Alisim, 658.
It has been justly observed that the plea of insanity must
be received with much more diffidence in cases proceeding
from the desire of gain, as theft, swindling, or forgery,
which generally require some art and skill for their comple-
tion, 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 un-
frequented road to a distance, sold it, and taken a bill for the
price, the defence was overruled. Henderson's case, Alison's
Princ. Cr. Law Scotl. 655, 656.
Cases in which the prisoner has been held to be insane.] James
Hadfield 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, re-
ceived many severe wounds in battle, near Lisle, which had
caused partial derangement of mind, and he had been dis-
missed 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 af-
fected by his disorder, he imagined himself to hold inter-
course 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 extravagance ; but at other times he appeared to be
rational, and discovered 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
Insanity. 783
of bed, and, alluding to his child, a boy of eight months old,
of whom he was usually remarkably fond, said he was about
to dash his brains out against the bed-post, and that God
had ordered him to do so ; and, upon his wife screaming
and his friends coming in, he ran into a cupboard and de-
clared he would lie there, it should be his bed, and God had
said so ; and when doing this, having overset some water, he
said he had lost a great deal of blood. On the same and the
following day he used many incoherent and blasphemous
expressions. On the morning of the 15th May he seemed
worse, said that he had seen God in the night, that the
coach was waiting, and that he had been to dine with the
king. He spoke very highly of the king, the royal family,
and particularly the Duke of York. He then went to his
master's workship, 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 fel-
lows ; and, after repeating his irreligious expressions, went
out and repaired to the theatre. Oil 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 Majesty's enter-
ing 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
favourable for taking aim, for he was standing upon the
second seat from the orchestra, in the pit ; and he took a de-
liberate aim, by looking down the barrel as a man usually
does when taking aim. On his apprehension, amongst other
expressions he said that he knew perfectly well his life
was forfeited ; that he was tired of life, and regretted no-
thing but the fate of a woman who was his wife, and would
be his wife a few days longer, he supposed. These words
he spoke 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 other means;
he did not intend any thing against the life of the king, 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 morbid delusion of the
intellect, and admitted 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 immediately 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,
784 Insanity.
yet, there being no reason for believing 1 the prisoner to have
been at that period a rational and accountable being, be
ought to be acquitted, and was acquitted accordingly. Hud-
tield's case, Collinson on Lunacy, 480, 1 Russell, 11.
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 po destroy the cathedral on account of the misconduct of
the clergy. Several medical witnesses stated their opinions
that he was insane, and that, when labouring under his de-
lusion, he could not distinguish right from wrong. One
surgeon said that such persons, though incapable on a par-
ticular subject of distinguishing right from wrong, seek to
avoid the danger consequent upon their actions, and that
they frequently run away and display great cunning in escap-
ing punishment. The jury acquitted the prisoner on the
ground of insanity. Martin's cafe, Shelf ord on Lunacy, 465,
Annual Register, vol. 71, p. 301.
Cases of insanity caused liy intoxication.] Intoxication is no
excuse 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 bis drunkenness he was tried
and executed for these offences. Dey's case, 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 se-
verely wounded in the head, especially, who well k,now that
excess makes them mad ; but if such persons wilfully de-
prive themselves of reason, they ought not to be excused
one crime by the voluntary perpetration of another. 3 Parii
<5f Fonbl. M.J. 140. But if, by the long practice of in-
toxication, 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. And though voluntary drunkenness
cannot excuse from the commission of crime, yet where,
as upon a charge of murder, the question is, whether an act
is premeditated, or done only from sudden heat and im-
pulse, the fact of the party being intoxicated has been held
to be a circumstance proper to be taken into consideration.
I'er Hoiroyd, J,, Grind ley's case, 1 Russell, 8.
Coercion by husband. 785
COERCION BY HUSBAND.
In certain cases a married woman is privileged from pu-
nishment upon the ground of the actual or presumed com-
mand and coercion of her husband compelling her to the
commission of the offence. But this is only a presumption
of law, and if it appears, upon the evidence, that she did
not in fact commit the offence under compulsion, but washer-
self 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 of-
fence, though her husband was with her when she took the
oath. Dicks's case, 1 Russell, 16. 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. Atkinson's case, 1 Russell, 20.
Evidence of reputation and cohabitation is in these cases
sufficient evidence of marriage. Ibid. But where the wo-
man is not described in the indictment as the wife of the
man, the onus of proving that she is so, rests upon her.
Jones's case, Kel. 37, 1 Russell, 20.
The presumption of coercion on the part of the husband
does not arise unless it appear that he was present 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 certi-
ficate 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 utter-
ing, and the husband of procuring. Morris's case, Russ. &;
Ay. 270.
The prisoner, Martha Hughes, was indicted for forging
and uttering Bank of England notes. The witness stated
that he went to the shop of the prisoner's husband, where
she took him into an inner room, and sold him the notesj;
that while he was putting them into his pocket the husband
put his head in and said, " Get on with you." On return-
ing to the shop he saw the husband, who, as well as the
wile, desired him to be careful. It was objected, that the
offence was committed under coercion, but Thompson, B.,
thought otherwise. He said, the law out of tenderness
to the wife, if a felony be committed in the presence of her
?86 Coercion by husband.
husband, raises a presumption, prima facie, and primA facie
only, as is clearly laid down by Lord Hale, that it was done
under his coercion, but it is absolutely necessary in such
case 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 communi-
cation 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 was a putting off
before the husband came, and it is sufficient if, before that
time, she did that which was 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 accessory to the felony of the wife), can be referred to
what was done in his absence. Hughes's case, 1 Russell, 18.
But where, on an indictment against a woman 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. Anon. Math. Dig.
C. L. 262.
Where husband and wife were convicted on a joint in-
dictment for receiving stolen goods, it was held that the
conviction of the wife was bad, it not having been left to
the jury to say whether she received the goods in the ab-
sence of her husband. Archer's case, 1 Moody, C. C. 143,
ante, p. 719.
There are various crimes, from the punishment of which
the wife shall not be privileged on the ground of coercion,
such as those which are mala in se, as treason and murder.
1 Hale, P. C. 44, 45. And in offences relating to domestic
matters and the government of the house, in which the wife
may be supposed to have a principal share, the rule with re-
gard to coercion does not exist, as upon an indictment for
keeping a disorderly house, Hawk. P. C. b. 1. c. 1. s. 12.,
ante, p. 644., or gaming house. Dixon's case, 10 Mod. 336.
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, 4th ed. 4 Bl. Com. by Ryland, 29. (n.) In-
grain's case, 1 Salk. 384.
Where the wife is to be considered as merely the servant
of her husband, she will not be answerable for the conse-
quences of his breach of duty, however fatal, though she may
be privy to his conduct. Thus, where the husband and
wife were 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 conscientiie, yet, in point of
law, she could not be guilty of not providing the apprentice
with sufficient food. Squire's case, 1 Russell, 16.
Coercion by husband. 787
A woman cannot be indicted as an accessory by rescuing
her husband. 1 Hale, P. C. 47. Nor can she be guilty of
larceny in stealing her husband's goods. 1 Hale, P. C. 514,
ante, p. 476. But if she and a stranger steal the goods the
stranger is liable. Tolfree's case, 1 Moody, C. C.243, ante,
p. 477. Nor is she guilty of arson within the 7 & 8 Geo.
4. c. 30. s. 2. by setting her husband's house on fire.
March's case, 1 Moody, C. C. 182.
788
ADDENDA.
Page 48. Examinations mode of proof ."] Several cases
respecting the mode of proving examinations have occurred
since this work went to press. In one case, Patteson, J. on the
authority of 2 Hale, P. C. 284, though contrary to his own
opinion, refused to admit the examination, because neither the
magistrate nor his clerk was called to prove it. Richurds's rase,
1 Moody <Sf Rob. 396. (n.) In a subsequent case, where the
examination had the signature of an attesting witness, who was
called to prove it ; Vaughan, J., and Patteson, J., at the Cen-
tral Criminal Court, admitted it. Patteson, J. observing, that
he was by no means satisfied, that it was in any case necessary
to call either the magistrate or his clerk. Hope's case, 1 Moody
<5f Rob. 396. (n.) In a case before Denman, C. J., it was pro-
posed to prove an examination, signed with the prisoner's mark,
by calling a person who was present when it was taken, but
his lordship refused to receive this evidence, unless it were
proved by the magistrate or his clerk; he observed, that the
necessity of proving the deposition in this manner had been
doubted, but the distinction appeared to him to be, that where
the examination of a prisoner before a magistrate is taken down
in writing, and signed with the prisoner's name, it need not be
proved by the magistrate or his clerk ; but if not signed by him,
or if his mark only be attached to it, it is necessary to be proved
by the magistrate or the clerk. For if the prisoner ^igns his
name, this implies that he can read, and has read the examina-
tion, and adopted it. But if he has not signed it, or has only
put his mark, there are no grounds to infer that he can read, or
that he knows the contents, and no person can swear that the
examination has been correctly read over to him, except the
person who read it.
Page 99. Witnesses Quakers and Moravians.] By statute
3 & 4 W. 4. c. 49, Quakers and Moravians are permitted to
make an affirmation or declaration instead of taking an oath,
" in all places, and for all purposes whatsoever, where an oath
is or shall be required, either by the common law, or by any
act of parliament," and any such affirmation or declaration, if
false, is punishable as perjury.
Addenda. 789
Page 221. Bankrupt evidence of the bankruptcy.] So
upon an indictment against a bankrupt, and others, for a con-
spiracy to conceal the bankrupt's effects, it was held not suffi-
cient merely to aver that the trader became a bankrupt, but
that the trading petitioning creditor's debt, and the other
averments of matters necessary to constitute the offence ought
to have been set forth. Jones's case, 4 B. 3f Ad. 345, 1 A T .
* Af. 78.
Page 491. Larceny."] The following cases, relating to
what is called ring dropping, were accidentally omitted in
their proper place.
The prisoner, with some accomplices, being in company
with the prosecutor, pretended to find a valuable ring wrapped
up in a paper, appearing to be a jeweller's receipt for " a rich
brilliant diamond ring." They offered to share the value of it
with the prosecutor, 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. Patch's case, 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
also was held to be larceny. Moore's case, 1 Leach, 314,
2 East, P. C. 679. To the same effect is Watson's case,
2 Leach, 640, 2 East, P. C. 680. In all these cases it will be
observed, that the prosecutor had no intention of parting with
the property in the money, &c. stolen, but either that it was
taken while the transaction was proceeding, as in Patch's case,
without his knowledge, or was delivered under a promise that it
should be restored, as in Moore's case.
Page 650. Shooting at with intent, #c.] Where the pri-
soner by snapping a percussion cap discharged a gun-barrel,
detached from the stock, this was held " a shooting at" with
" loaded arms," within the 9 G. 4. c. 31. Coates's case, 6 C.
if P. 394.
INDEX.
ABDUCTION,
at common law, 193.
by statute, 194.
proof of the taking away, or detaining against the will, id.
proof of the woman's interest, 195.
proof of the motive of lucre, id,
proof of the intent to marry or defile, id.
venue, 296.
abduction of girls under sixteen, id-
proof of the taking of the girl out of the possession of the
father, &c. id.
proof of the want of consent of the father, &c. 197.
competency of witnesses on, 116.
ABETTORS,
Proof with regard to, 166-
See Accessories.
ABORTION.
offence at common law, 190.
procuring abortion where the woman is quick with child,
id.
proof of the intent, id.
proof of the being quick with child, 191.
proof of the administering, id,
proof of the nature of the thing administered, id.
procuring abortion where the woman is not quick with
child, 192.
ACCEPTANCE, See Forgery.
forged, proof of uttering will not support averment of utter-
ing forged bill, 398.
ACCESSORIES,
proof with regard to aiders and abettors, 166 .
what presence is sufficient to make a party principal in
the second degree, id.
punishment of, 167.
proof with regard to accessories before the fact, 167.
by the intervention of a third person, 168.
792 Index.
ACCESSORIES (continued.)
degree of incitement, 168.
principal varying from orders, id.
what offences admit of accessories, 170.
trial and punishment, id.
proof with regard to accessories after the fact, 171.
in burglary, 259.
in coining, 310.
in forgery, 408, 409.
in manslaughter, before the fact, cannot be, 556.
in murder, 568, 569.
in malicious enquiries, 546.
in administering unlawful oaths, 668.
before the fact, to self murder, 647.
in piracy, 696.
in offences relating to the post office, 701.
in rape, 710.
ACCIDENT,
where it excuses assault, 211.
from discharge of fire arms, 584.
ACCUSING
of infamous crime, 773.
of murder, &c. 771.
of crimes punishable with death, transportation, &c. 773.
ACCOMPLICE,
admissibility of evidence of, 117 et seq. See Witness.
dying declarations of, 23, 24.
ACQUIESCENCE, See Consent.
of public, toprove liability to repair new bridge, 248.
whether it will excuse a nuisance, 661.
ACT OF BANKRUPTCY,
proof of, 222.
ACT OF PARLIAMENT, See Statute.
AD QUOD DAMNUM,
writ of, 452.
ADDITION
to name of prosecutor not necessary, 81.
variance in statement of, id.
ADJUDICATION
in bankruptcy, proof of, 223.
ADMINISTRATION,
proof of letters of, 159.
ADMIRALTY,
examinations, touching- offences within jurisdiction of, 44.
venue incase of offences within jurisdiction of, 187.
A OMISSION, See Confession.
where it precludes the necessity of producing a written
instrument, 3.
Index. 79S
ADMISSION (continued.)
by prisoner, in case of bigamy, of former marriage, 229, 234.
by prisoner in forgery, as to person whose name is forged,
404.
of publication of libel, 533.
ADOPTION
of highway by parish, 457.
ADULTERY,
sufficient provocation to render homicide manslaughter,
558.
AFFIDAVIT
by person convicted of crime, 101 .
proof of, made in causes, 157.
proof of perjury upon, 675.
AFFIRMATION
of Quaker or Moravian, punishable as perjury, 676.
AFFRAY,
nature of, and evidence, 198.
where party engaged in, may be arrested, 614.
breaking open doors by peace officers, in case of, 629.
AGBNT,
notice to, to produce, 9.
confessions of, when admissible against principal, 40.
occupation by, in burglary, 271.
embezzlement, by, 351.
agency in libel, 535.
AGISTER,
property may be laid in, in larceny, 515.
AIDERS,
proofs with regard to, 166. See Accessories.
ALE-HOUSE. See Inn.
ALTERI>G
the legal coin, 299.
equivalent to forging, 408.
a forged deed, 413.
AMBASSADOR,
proof of marriage in house of, 241.
AMICABLE CONTEST.
when excuse for an assault, 212.
ANCHORS,
receiving anchors, &.c. weighed up, 553.
ANCIENT DOCUMENTS,
old leases, evidence of boundaries, 22.
ANIMALS,
how to be described in an indictment, 77, 511.
stealing of, 5Q9,et.ieq. See Larceny-
murder, by means of, 571.
suffering dangerous animals to go at large, a nuisance,
665.
794 Index.
ANIMUS FURANDI,
proof of, in burglary, 280.
in larceny. See Taking, in Laiceny.
in piracy, 695.
in robbery, 736.
ANSWER
in chancery, proof of, 158.
proof of perjury on, 675, 681, 683.
APPOINTMENT
of persons acting in public capacity, proof of, by parol,
7, 14.
of officers of customs, &c., 762.
APPREHENSION,
assault with intent to prevent, 217.
shooting at, &c. with intent to prevent lawful apprehension,
656.
rewards for apprehension of offenders, 183.
APPRENTICE,
unreasonable correction of, 585.
death of, by starvation, murder, 592.
by ill treatment, 593.
not supply ing with food, an indictable offence, 592.
ARRAIGNMENT,
mode of, 174.
ARREST. See Peace Officer.
protection of witnesses from, 93.
proof of, on prosecution for escape, 353.
must be justifiable, id.
by peace officers in general, 611, et seq. See Peace
Officer ; and Murder.
power to arrest under particular statutes, 616.
metropolitan police act, id.
regularity of the process, 621.
what constitutes, 631.
ARSON,
offence at common law, 198.
proof of the burning, 199.
proof that the house burnt is the house of another, id.
proof of tlie malice and wilfulness, 201.
offence by statute, 201.
setting fire to houses, id.
proof of the setting fire, &c., 202.
proof of the property set fire to, 203-
proof of the intent to injure or defraud, __ 206.
setting fire to stacks, 207.
to ships, 208.
negligent burning, 209.
ASPORTAVIT,
in cases of larceny of cattle, 285.
Index. 795
ASPORTAVIT (continued.)
in stealing in a dwelling-house, 332
what sufficient in larceny, 470.
ASSAULT,
hearsay (j when admissible on prosecution for, 21.
allegation of, divisible, 77.
what amounts to, 210.
what does not amount to, 211.
accident, id.
amicable contest, 212.
lawful chastisement, id.
self defence, 213.
interference to prevent breach of the peace, id.
defence of possession, 214.
execution of process by officers, 215.
summary conviction, bar to indictment, 215.
when a sufficient provocation in homicide, 596, 640.
with intent to commit felony, 216.
on officers endeavouring to save shipwrecked property, 217.
on officers employed to prevent smuggling, id.
with intent to spoil clothes, 218.
by workmen, 219.
on deer-keepers and their assistants, 330.
by poachers, 446, 447.
with intent to commit rape, 712.
with intent to rob, 754.
ASSEMBLY, UNLAWFUL,
what constitutes, 730.
of smugglers, 759.
ATTACHMENT,
for disobeying subpoena, 90
ATTESTING WITNESS,
when he must be called, 161.
where waived, id.
ATTEMPT
to commit bribery, a misdemeanor, 244.
to provoke a challenge, 289.
to commit felony, party may be arrested without warrant,
614.
to commit murder, 648.
ATTORNEY,
privilege of, as witness, 144.
extends to his agents and clerks, id.
and to an interpreter, 145.
privilege that of the client, id.
to what matters it extends, id. 146.
where party to transaction not privileged, 152.
not liable for maintenance, 543.
796 Index.
AlITRE FOIS ACQUIT,
plea of in burglary, 283.
AUTRE FOIS CONVICT,
plea of, how proved, 155.
AWARD
of commissioners setting out boundaries, 458.
BAIL,
incompetency of, as witnesses, 111.
false personation of, 359.
BAILEES,
larceny by, 478. See Larceny*
determination of bailment, 479.
property when to be laid in, in larceny, 515.
captain of ship, as bailee, not guilty of piracy, 695.
BAILIFF. See Peace-officer.
private bailiff, notice of his authority, 626.
BANK OF ENGLAND. See Funds.
embezzlement by officers and servants of, 350.
proof of being an officer entrusted, &c. id.
proof of the bills, &c. 351.
intent to defraud in forgery, 401.
forgeries relating to the public funds, 425.
clerks in, making out false dividend warrants, 427.
forgeries in general, relating to, 428, et seq. See Forgery.
BANK NOTES,
filed at the bank, copy admissible, 160.
halves of, may be described as chattels, 345.
bank post bill not a bill of exchange, id.
passing no es of bank that has stopped, 368.
forgery oi. degree of resemblance, 393.
forgery of in general, 428, et seq. See Forgery.
of the paper for, id.
engraving plates, &c. 430.
embezzlement of by officers of post office, 697 , et seq. See
Post Office.
country bank notes, paid in London, within the statute,
700.
may be described as a warrant for the payment of money, id.
BANK POST BILL
cannot be described as a bill of exchange, 407.
embezzlement of, by officers of post office, 698.
BANKER. See Check.
embezzlement by, 351.
obtaining credit with and procuring him to pay money to a
creditor is not an obtaining money, 370.
making paper for forging banker's notes, 431.
engraving notes, id.
Index. 797
BANKRUPT,
wife of, when competent witness, 1 15.
concealing effects, &c. 220.
proof of the trading, 221.
of the petitioning creditor's debt, id.
of the act of bankruptcy, 222.
of rhe commission or fiat, id.
of the commissioner's oath, 223.
of the adjudication, id.
of the notice to the bankrupt, id.
of the Gazette, id.
of the bankrupt's examination, 224.
of the conceal ment, &c. id.
of the value of the effects, 225.
of the intent to defraud, 226.
BANNS,
proof of marriages by, 230.
marriages in wrong name, 230, 231.
BAPTISM,
register of, forging, 433.
BARN,
demolishing, 729.
BARON AND FEME. See Wife.
BARRATRY,
nature of the offence, 226.
BASTARD,
evidence on indictment for murder of, 567.
BATHING
in exposed situation a nuisance, 663.
BATTERY,
what will amount to, 210.
BAWDY-HOUSE
a public nuisance, 664.
feme covert indictable for keeping, id.
so a lodger, id.
proof on indictment for keeping, id.
BEES,
stealing of, 509.
BELIEF,
false swearing to, perjury, 577.
BIGAMY,
first wife an incompetent witness, 114.
former law and statute 9 G. 4. c. 31. 227.
proof of the marriages, 228.
in general, id.
in England, 229.
by banns, 230.
by licence, minors, 233.
in Scotland, 233.
798 Index.
BIGAMY (continued.)
in Ireland, 236.
marriages abroad, 236.
in British factories, 239.
in British colonies, 240.
in houses of ambassadors, 241.
Venue, 242.
proof for the prisoner under the exceptions in the marriage
act, 242.
BILL OF EXCHANGE,
forgery of, unstamped, 392.
degree of perfectness, 394, 395, 396.
averment of forged bill, not proved by forged accept-
ance, 398.
bank post bill cannot be described as, 407.
forgery of, stat. 1 VV. 4. c. 66. 413.
must purport to be legally such, 414.
must be in a negotiable shape, 415.
drawn in pursuance of particular statute, id.
stealing of, 505.
embezzling of, by officers of post office, 697.
BLANK WARRANTS,
illegal, 622.
BLASPHEMY
at common law, 524.
by statute, id.
BOAT,
stealing from, 508.
firing at, by smugglers, 760.
BOUNDARIES,
hearsay when admissible to prove, 22.
venue in offences on boundaries of counties, 185.
of highways, proved by award of commissioners, 457, 458.
BREW-HOUSE,
when a nuisance, 662.
BREAKING,
proof of, m burglary, 253.
breaking out of a dwelling-house, 283.
proof of, in house-breaking, 331.
a building within the curtilage, 336.
proof of, in prison breach, 706.
into shop, warehouse, &c. 756.
BRIBERY,
nature of the offence, 243.
bribery at elections for members of Parliament, 244.
BRIDGES,
competency of inhabitants on questions respecting, 110.
indictment for not repairing, 245.
proof of the bridge being a public bridge, id.
Index. 799
BRIDGES (continued.)
highway at each end, 247.
proof of the bridge being out of repair, id.
proof of the liability of the defendant, id.
at common law, id.
new bridges, 248.
public companies, 249.
individuals ratione tenures, 250.
proof in defence, 250.
by counties, 250.
by minor districts and individuals, 251.
by corporations, id.
venue and trial, id.
competency of witnesses, id.
indictment for maliciously pulling down bridges, id.
BROKER,
embezzlement by, 351.
BUILDINGS,
what buildings form part of the dwelling-house, 262, 263.
breaking and entering a building within the curtilage, 336.
BUOYS,
wilfully cutting away, 553.
BURGLARY,
offence at common law, 253
statute 7 & 8 G. 4. c. 29. id.
proof of the breaking, id.
general instances, 254.
doors, id.
windows, 255.
chimneys, 256.
fixtures, cupboards. &c. 257.
walls, id.
gates, 258.
constructive breaking, id.
fraud, id.
conspiracy, id.
menaces, 259.
by one of several, id.
proof of the entry, id.
introduction of fire-arms or instruments, 260.
by firing a gun into the house, 261.
constructive entry by one of several, id.
proof of the premises being a mansion-house, id.
occupation, 264.
temporary or permanent, 265.
house divided without internal communication,
and occupied by several, 266.
occupied by same person, 267.
800 Index.
BURGLARY (continued.}
where there is an internal communication, but
the parts are occupied by several under distinct
titles, 268.
by lodgers, 269.
by wife or family, 270.
by clerks or agents of public companies, &c.
271.
by servants, occupying as such, 273.
by servants, occupying as tenants, 275.
by guests, &c. 276.
by partners, 277.
outbuildings and curtilage, id.
proof of the offence having been committed in the night-
time, 278.
proof of the intent lo commit felony felony at common law
or by statute, 279.
variance in statement of, 281.
minor offence, larceny, &c. id.
proof of the breaking out of a dwelling-house, &c. 283.
proof, upon plea of autrefois acquit, id.
on indictment for, prisoner may be convicted of larceny, 75.
BURIAL,
conspiracy to prevent, indictable, 315.
refusing to bury, indictable, 328.
burying without inquest, id.
of bodies cast on shore, 329.
register of, forging, 433.
BURNING. See Arson.
negligent burning, 209.
CANAL,
maliciously breaking down banks of, 548.
stealing goods from vessels on, 508.
CAPABILITY
of committing crimes, 778, 779
CARRIERS,
larceny by, 478. See Larceny.
special property in goods, 516.
CARRYING AWAY,
what sufficient in larceny, 470.
CATTLE,
variance in description of, 77, 78.
stealing horses, cows, &c. 284.
killing, with intent to steal, 286.
maiming, &c. of, 286.
proof of the animal being within the stat. 287.
proof of the injury, 287.
proof of malice and intent, 288.
Index. 801
CERTIFICATE
of commissioners of stamps, how proved under 38 Geo. 3.
c. 78., 532.
CERTIFICATE OF CONVICTION. See Conviction.
CHALLENGE
to fight, what amounts to, 289.
proof of intent, id.
venue, id.
CHAMBERS,
burglary may be committed in, 267.
stealing in, a stealing in a dwelling-house, 331.
CHAMPERTY,
what amounts to, 544.
CHANCE-MEDLEY,
what amounts to, 465, 642.
CHAPEL,
demolishing, 729.
sacrilege in, 756.
CHARACTER,
evidence of character of prosecutor when admissible, 72.
of prisoner, id.
of general character of witness, when admissible, 135.
C H A STISEM ENT,
lawful, excuse in assault, 212.
excessive, causing death, 585.
assault with intent to chastise, resistance to, 641.
CHEATING,
what cheats are indictable, 290.
affecting the crown and the public, id,
public justice, 291.
false weights and measures, id.
what cheats are not indictable, 292.
bare assertion, id.
breach of contract only, 293.
CHECK
on banker, giving, without effects, not indictable at com-
mon law, 292.
but as a false pretence by stat. id. 363.
proof of forgery of, 387.
is both a warrant and order for payment of money, 420.
when not the subject of larceny, 507.
extorting by duress, 767.
CHEMIST
guilty of manslaughter for death caused by wrong drug, 591.
CHILD,
in venire sa mere, not the subject of murder, 190. See
Abortion.
chastisement of, excuse in assault, 212.
stealing of, 294.
M M 5
802 Index.
CHILD (continued.}
concealment of birth of, 295.
property when to be laid in, 515.
murder of, in the birth, 565.
name of, 566, 567.
unreasonable correction of, causing death, 585.
death of, by exposure, murder, 592.
carnal knowledge of female children, 711.
CHIMNEY,
entering by, burglary, 256, 260.
CHOSES IN ACTION,
stealing of, 594.
CHRISTIAN RELIGION,
libels on, 5*24.
CHURCH,
setting fire to, 201.
demolishing, 729.
sacrilege, 756. See Sacrilege.
CLAIM,
goods taken under fair claim of right, not larceny, 473.
so in robbery, 735.
CLERK,
who is, within the 7 & 8 G. 4. as to embezzlement, 341.
person employed in capacity of, 342.
COACHMAN,
furious driving by, 441.
finding goods in hackney-coach, 470.
of stage-coach, property may be laid in, 516.
COAL-MINE,
setting fire to, 547.
COCK-PIT,
keeping of, a public nuisance, 664.
COCK-THROWING,
an unlawful sport, 587.
COERCION
of wife by husband, 785.
COIN,
proof of guilty knowledge of coin being counterfeit, 69.
proof of counterfeiting the gold and silver coin, 297.
proof of the counterfeiting, id.
proof that the coin is counterfeit, 298-
proof of colouring counterfeit coin or metal and riling,
and altering legal coin, 299.
proof of impairing or diminishing the coin, 300.
proof of uttering counterfeit gold or silver coin, id.
proof of the simple uttering, 301.
proof of the compound offence of uttering, having
other false coin in possession, id.
Index. 803
COIN (continued.)
proof of buying or selling counterfeit coin for less value
than its denomination importing counterfeit
coin, 303.
proof of having counterfeit coin in possession, 304.
proof of counterfeiting, &c. the copper coin, id.
proof of counterfeiting foreign coin, 305.
proof of uttering foreign counterfeit coin, 306.
proof of having in possession 6ve or more pieces of foreign
counterfeit coin, 307.
proof of offences with regard to coining tools, 308.
venue, 310.
traversing, id.
accessories, id.
interpretation clause, id.
COLLATERAL FACTS,
evidence of, when admissible, 58, 59. See Issue.
in proving riots, 727.
COLONY,
proof of marriage in, 240.
COLOURING
of coin, 299. See Coin.
COMMISSION
of bankrupt, proof of, 222.
COMMISSIONERS,
oaths taken before, perjury, 673.
COMPANIES,
public, liability of, to repair bridges, 249.
burglary in house of, 271, 272.
larcenies connected with stock of, 505.
property laid in, in larceny, 519.
directors of, indictable for nuisance committed by their
servants, 666.
COMPARISON
of hand- writing inadmissible, 163.
evidence of persons skilled in detecting forgeries, 164.
COMPOUNDING OFFENCES,
felonies and misdemeanors, 311.
informations on penal statutes, id.
misprision of felony, 312.
taking rewards for helping to stolen goods, id.
CONCEALMENT,
not in itself evidence of stealing, 17.
of his effects by a bankrupt, 220, 224. See Bankrupt.
of birth of child, 295.
on indictment for murder, prisoner may be convicted
of concealment, 296.
CONFESSIONS,
effect of, in general, 28.
804 Index.
CONFESSIONS (continued.)
party may be convicted on, alone, 28.
with regard to degree of credit, id.
must be voluntary, 29.
cases where inadmissible after promises, id.
cases where held admissible, 30.
where impression removed from mind of pri-
soner, 31.
threat or promise from person having no power, 33 .
what amounts to a threat, 34.
must have reference to temporal matters, 35.
obtained by artifice, 35.
cases where witnesses have made statements, anU have
afterwards themselves been tried for the offence, 36
compulsory examinations, id.
evidence of facts, the knowledge of which has been
obtained by improper confessions, id.
declarations accompanying an act done, 38.
only evidence against the party making them, id.
whether the names of other persons mentioned by the
prisoner are to be read, 39.
confession of principal not evidence against accessory,
40.
by agents, id.
prosecutor how affected by declarations of agent, 4 1 .
whole confession to be taken together, id.
confession of matters void in point of law, or false in point
of fact, 42.
CONFIRMATION
of evidence of accomplice, 120.
CONIES,
taking or killing, in the night, 442.
CONSENT,
negative evidence of, 6, 56.
proof of want of, of father, in prosecutions for abduction, 197
marriage of minor, without, 233.
CONSPIRACY :
acts and declarations of conspirators when admissible, 60.
See Declarations.
to commit burglary, 258, 259.
proof of nature of conspiracy in general, 313.
to charge party with offence, 314.
to pervert the course of justice, id.
relating to the public funds, &c. 315.
to create riot, &c., id.
against morality and decency, id.
to marry paupers, id.
affecting trade to defraud the public, 316.
by workmen to raise wages, 317.
Index. 805
CONSPIRACY (continued,)
to extort money from individuals, 319.
to defraud individuals, id.
to injure individuals in their trade, 320.
to commit a civil trespass, id.
legal associations, 321.
proof of the existence of a conspiracy, id.
declarations of other conspirators, 324.
proof of acts, &c., done by other conspirators, 325.
proof of the means used, id.
cumulative instances, 326.
proof of the object of the conspiracy, id.
cross-examination of witnesses, 327.
Venue, id.
CONSTABLE. See Peace-officer.
CONTRADICTION,
of witness by party calling him, 136.
by other witnesses by opposite party, 140.
CONTAGION,
carrying about child with contagious disorder, 665.
CONVICTION,
negative evidence in cases of, 56.
proof of, to render witness incompetent, 101.
cannot be given in evidence in favour of party by whose
testimony it was procured, 107.
former conviction, proof of, 178.
summary, for assaults, 215.
former conviction, proof of, in indictment for coining, 303.
on indictment for escape, 355.
against parish for not repairing, evidence on another
indictment, 461.
against townships, 482.
for publishing one copy of libel, no bar to another indict-
ment, 531.
proof of guilt of principal in receiving, 715.
COPPEII COIN,
offences relating to, 304, 305.
foreign counterfeit copper money, 308.
COPY.
old copy of record when admissible, 155.
office copies, 155.
copies by authorised officers, id.
of public books, evidence, 160.
of marriage registers, &c., 433.
of newspaper, when evidence, 531, 532,
CORN,
setting fire to stack of, 207.
CORONER,
depositions taken before, 53.
806 Index.
CORONER (continued.)
burying corpse without sending for, 328.
indictable for not performing the duties of his office, 670.
CORPORATION,
copy of corporation books admissible, 160.
may be liable to repair of bridges, 247.
evidence in defence by, 251.
burglary in house of, 271.
statement of intent to defraud, in forgery, 401 .
when liable to repair highways, 460.
property, how laid in, in larceny, 519.
chief officers of, absenting themselves on charter day, 670.
CORPSES. See Dead Bodies.
COSTS,
stat. 7 G. 4. c. 64. s. 2291.
cases decided upon that stat., 180, 181.
mode of payment by treasurer of county, 181.
expenses of prosecution for capital offences in exclu-
sive jurisdiction, 182.
rewards for the apprehension of offenders, 183.
allowance to widows of persons killed, 184.
COUNSEL,
privilege of as witness, 144.
not liable for maintenance, 543.
COUNTERFEITING. See Coin.
proof of, 297.
word "counterfeit" rejected as surplusage, 397.
COUNTIES,
venue in offences on boundaries of, 185.
of city or town corporate, 186.
liability of, to repair of bridges, 247, et seq. See Bridges.
evidence in defence by, 250.
goods belonging to, how described in larceny, 520..
COUNTING-HOUSE,
breaking and stealing in, 756.
COURTS. See Inferior Courts.
ordering witnesses out of, 123.
where the publication of proceedings of is a libel, 540.
stealing, &c., proceedings of, 503.
COVENANTER,
form of oath by, 98.
Cows,
variance in description of, 77.
stealing of, 284.
CREDIT,
what, to be attached to confessions, 29.
of witnesses in general, how impeached and supported.
139. See Witness.
CRICKET,
game at, within statute 9 Anne, c. 14, 448.
Index. 807
CROSS-EXAMINATION,
in general, 127.
credit of witness impeached by irrelevant questions on,
139.
in conspiracy, 327.
CUMULATIVE OFFENCES,
evidence in case of, 66.
in conspiracy to defraud, 326.
in indictment for keeping a bawdy-house, 664.
CUPBOARDS, '
breaking of, whether burglary, 257.
CURTILAGE,
what constitutes, in burglary, 278.
breaking and entering a building within, 336.
CUSTODY
of ancient documents, 161.
of law, goods in, 513.
CUSTOM,
immemorial when presumed, 14.
hearsay admissible to prove, 22.
townships liable to repair highways by, 459.
CUSTOMS (KING'S,)
venue in case of offences committed at sea, 188.
in other cases, 189.
forgeries relating to, 438.
offences by smugglers against, 759, et seq.
enactments respecting evidence in prosecuting, relating to,
' 761, 762.
CUTTING,
proof of, under stat. 9 G. 4. c. 31651.
DEAD BODIES See Burial.
offences relating to, 328.
no property in, 517.
DEAD PERSONS,
libels on, 527.
DEAF AND DUMB,
when competent as witness, 95.
arraignment of, 174.
DEATH,
presumption as to, 19, 20.
depositions admissible in case of, 49.
proof of the means of killing in murder, 571.
variance in proof of, 577.
DEBENTURE,
stealing of, 505.
DECENCY,
public, conspiracies against, 315.
dead bodies, offences relating to, 328.
808 Index,
DECLARATIONS
where admissible, 21.
in cases of rape, id.
of assault, id.
of treason, id.
of rioting, 22.
of pedigree, id.
of public right, id.
of persons having no interest to misrepresent,
23.
dying declarations, id. See Diiing Declara-
tion.
accompanying an act done, admissible though not receiv-
able as a confession, 38.
of conspirators when admissible, 60.
letters and writings of, 61.
not necessary that they should have come to
hand, 62.
as to time and place of finding, id.
collateral declarations of prisoners, when admissible, 71.
of husband and wife, 113.
former declarations of witness, if admissible to support his
testimony, 142.
of conspirators, 324.
of party administering illegal oath, evidence of motive,
668.
DFCREE,
in equity, proof of, 158.
DEDICATION
of way to the public, 451 .
DEED,
forgery of, at common law, 382.
in general, 413.
stealing of, 505.
DF.ER,
stealing of, 329, 509.
power of deer-keepers to seize guns, 330 .
assaulting them or their assistants, id.
DEGRADING QUESTIONS,
whether witness is bound to answer, 133.
DEMAND,
demanding money with menaces, 765.
what amounts to a " demand," 766.
DEMOLISHING
houses, &c. stat. 7 & 8 G. 4. c. 30729.
what is a " beginning to demolish," id.
DEPOSITIONS,
statute 7 G. 4. c. 64 49.
where admissible, id.
Index. 809
DEPOSITIONS (continued.)
in case of death, 49.
or insanity, id.
or, semble, inability to travel, id.
witness kept back by prisoner, 50.
does not extend to treason, id.
mode of proof, id.
mode of taking, id.
in presence of prisoner, 51.
where present during part of time, id.
signature, 52.
parol evidence not admissible to vary, id.
admissible on trial of other offences, id.
admissible to contradict witness, id.
case of several depositions, 52.
before the coroner, id.
whether prisoner must be present, 53.
depositions in India, id.
depositions by consent, 55.
proof of depositions in equity, 158.
DETAINER, FORCIBLE. See Forcible Entry and Detainer.
proof of the detainer being forcible, 377.
DILIGENCE,
in searching for lost instrument, 11.
in procuring information of death of wife in bigamy, 242.
DISABLING,
proof of intent to disable, stat. 9 G. 4. c. 31 654.
DISFIGURING,
proof of intent to disfigure, stat. 9 G. 4. c. 31 654.
DISORDERLY HOUSE. See Bawdy -house, Gaming-house, Nui-
sance.
DISSECTION,
taking up body for, indictable, 328.
of bodies of murderers abolished, 562.
DISSENTING CHAPEL,
not within statute as to sacrilege, 756.
demolishing of, 729.
burning of, 202.
DISTRICT,
inhabitants of, if bound to repair highways, 459.
defence by, 462.
DIVIDEND WARRANTS,
false, by clerks in Bank, 427.
embezzlement of, by officers of Post-office, 697.
DIVISIBLE AVERMENTS,
instances of, 74, et sfq.
DIVORCE,
what a defence in bigamy, 243.
810 Index.
DOCUMENTARY EVIDENCE,
acts of parliament, 153.
records, 154.
office copies, and copies by authorised officers, 155.
inquisitions, 156.
verdicts, id.
affidavits made in causes, 157.
proceedings in equity, 158.
depositions, i</.
judgments and proceedings of inferior courts, 159.
probate and letters of administration, id.
ancient terriers, documents, &c., 160.
public books, 159.
private documents, 161.
attesting witness, id.
when waived, id.
hand-writing, 162.
stamps, 164.
DOG,
not the subject of larceny, 510.
statute 7 & 8 Geo. 4. c. 29, 511.
DOORS,
breaking of, in burglary, 254.
when peace officer justified in breaking, 629, 630.
DRIVING,
negligent, death caused by, manslaughter, 583.
furious, 441.
DROWNING,
attempt to drown, stat. 9 G. 4. c. 31, 649, 650.
DUELLING,
when it amounts to murder, 610.
guilt of seconds in, 611.
challenging to fight, 289.
DWELLING-HOUSE.
what constitutes a man's own house, in arson, 199.
setting fire to, stat. 7 & 8 Geo. 4. c. 30, 201.
assault justifiable in defence of, 214, 629, et seq.
proof of premises being such, in burglary, 261 to 278.
See Burglary.
breaking out of, burglary by, 283.
housebreaking, 331.
statute 7 ' & 8 G. 4. c. 29. id.
proof of the breaking and entering, id.
proof of the premises being a dwelling-house, id.
proof of the larceny, 332.
stealing in a dwelling-house to the amount of 51., 332.
statute 7&8 G. 4. c.29., id.
proof of the stealing of the goods what goods, 333.
Index. 811
DWELLING-HOUSE (continued.)
proof of the value of the goods stolen, 333.
proof of the stealing being in a dwelling-house, 334.
consequences of verdict against one of several, as to
part of the offence, 335.
indictment for burglary, id.
stealing in a dwelling-house, any person being put in
fear, id.
statute 7 & 8 G. 4. c. 29, id.
proof that some person was put in fear, 336.
breaking and entering a building within the curtilage, id.
privilege of, with regard to outer doors not being broken,
629.
acts done in defence of, 629, 630, 631.
demolishing, 729.
DYING DECLARATIONS,
in general, 23.
admissible only in homicide, where the circumstances of
the death are the subject of the declaration, 24.
whether admissible in civil cases, id.
the party must be aware of his situation, 25.
by child of tender years, 26.
where reduced into writing, 27.
evidence in answer to proof of, id.
of wife admissible against husband, 117.
EAST INDIA BONDS,
forgery of, 428.
embezzlement of, by officers of Post-office, 697.
EAVES-DROPPING,
a public nuisance, 665.
ECCLESIASTICAL COURT,
sentence of, defence in bigamy, 243.
ELECTION,
in case of embezzlement, 348.
where party is charged both as principal and receiver, 721.
EMBEZZLEMENT,
the whole sum stated need not be proved, 76.
by bankrupt of his effects, 220. See Bankrupt.
statute 7 & 8 Geo. 4. c. 29, 338.
proof of being a servant, 339.
what servants are within the statute, id.
wages or payment of servants, 341.
proof of being a clerk within the statute, id.
proof of being a person employed for the purpose, or
in the capacity of a clerk or servant, 342.
proof of the chattels, money, &c. embezzled, 344.
proof of the embezzlement, 346.
812 Index.
EMBEZZLEMENT (continued.)
embezzlement by persons employed in the public
service, 348.
in the Bank of England, 350.
by bankers' agents and factor, 351.
by other persons, 354.
distinction between, and larceny, 344.
by officers of the Post-office, 697, et seq. See Post-office.
EMBRACERY,
what amounts to, 544.
ENGINES,
in mines, malicious injuries to, 547.
steam engines, nuisances, 662.
regulated by 1 & 2 G. 4. c. 45, id.
demolishing, 729.
ENGROSSING, 373.
ENTRY,
in burglary, proof of, 259 to 261.
in house-breaking, 331.
in forcible entry, 376.
unlawfully entering land for the purpose of taking game,
445. See Game.
ENTRY, FORCIBLE. See Forcible Entry.
EQUITY,
proof of proceedings in, 1 58.
ESCAPE,
proof of escape by the party himself, 355.
proof of the criminal custody, id.
proof of escape suffered by an officer, 356.
proof of arrest, id.
must be justifiable, id.
proof of voluntary escape, 357.
retaking, id.
proof of negligent escape, id.
retaking, 358.
proof of escape from the custody of a private person, id.
conveying tools to prisoner to assist in, 707.
EXAMINATION,
statute 7 Geo. 4. c. 64, 43.
felonies, id.
misdemeanors, 44.
offences committed at sea, id.
mode of taking examination, id.
questioning the prisoner, id.
must not be on oath, id.
when reduced into writing, and when not, 45.
cases of no writing, id.
particular part not taken down, 46.
signature, id.
Index. 81s
EXAMINATION (continued.)
informal examinations used to refresh memory of wit-
ness, 47.
mode of proof, 48.
examination of witnesses in general, 123, et seq. See
Witness.
on the voire dire, 125.
in chief, 126.
cross-examination, 127.
re-examination, 128.
of bankrupt, proof of, 224.
EXCHEQUER BILLS,
not legally signed may be described as effects, 351.
forgery of, 428.
stealing of, 507.
embezzlement of by officers of Post-office, 697.
EXCISE,
copy of, books of admissible, 160.
venue in indictments for resisting officers of, 189.
forgeries relating to, 438.
EXCOMMUNICATION
does not render witness incompetent, 99.
EXCUSABLE HOMICIDE,
what amounts to, 464, 642.
EXEMPLIFICATION
of will, 159.
EXECUTORS,
when property to be laid in, 517.
EXPENSES. See Costs.
EXTORTION,
the exact sum need not be proved, 76, 671.
conspiracy to extort money, 319.
when indictable in general, 671.
FACTOR,
embezzlement by, 351.
FACTORY,
proof of marriage in British factory, 239.
FALSE PERSONATION.
offence at common law, 359.
by statute, id.
personating bail, acknowledging recovery, &c. Id.
of soldiers and seamen, 360.
personating owner of stock, and endeavouring to
transfer, 426.
FALSE PRETENCES,
all the pretences need not be proved, 76.
statutory provision, 361.
what amounts to a false pretence, 362.
not necessary that words should be used, 366.
goods obtained upon an instrument void in law, id.
814 Index.
FALSE PRETENCES (continued.)
proof of the false pretences, 367.
proof of the falsity of the pretence, 368.
proof of the intent to cheat or defraud, 369.
proof of the obtaining some chattel, money, or valuable
security, id.
proof of the ownership of the property, 370.
proof of all being principals, 371.
defendant not to be acquitted, where the offence appears
to be larceny, id.
restitution of the property obtained, id.
distinction between, and larceny, 362.
FELO DE SE,
party persuading another to commit self-murder, guilty of
murder as principal, if present, 646.
trial of accessory, 647.
FELONY,
examination of prisoners in, 43 .
proof of intent to commit, in burglary, 279.
compounding, 311.
misprision of, 312.
oath binding party to commit, 667.
FEME COVERT. See Wife.
FERRETS,
no larceny of, 509.
FIAT
in bankruptcy, proof of, 222.
FILING
of coin, 299.
FINDING,
goods procured by, when larceny, 474, et seq.
letters carried by post, 704.
FIREWORKS,
setting off, a nuisance, 665.
FISH,
where larceny could be committed of at common law, 371,
509, 510.
statute 7 & 8 G. 4. c. 29, wilfully taking or destroying
fish, 372.
power to apprehend offenders, id.
taking oysters, id.
maliciously breaking down banks of fish ponds 548.
FIXTURES,
breaking of, in burglary, 257.
larceny of, 499, 500.
FOBCIBI.E ENTRY AND DETAINER :
offence at common law, 374.
offence by statute, id.
proof of the entry, 376.
proof of the force and violence, id.
Index. 815
FORCIBLE ENTRY AND DETAINER (continued.)
proof that the detainer was forcible, 377.
proof of the possession upon which the entry was made,
378.
proof that the offence was committed by the defendant, id.
award of restitution, 379.
competency of witnesses in, 107, 379.
FOREIGN BILLS,
forging bills, &c. purporting to be made abroad, 410.
FOREIGN COIN,
offences relating to, 305 to 308. See Com.
FOUEIGN LAW,
evidence of persons skilled in, 138, 239.
FOMEIGN MARRIAGES,
proof of, 236 to 239.
FOREIGNERS,
libels upon, 527.
FORESTALLING, 373.
FORMER CONVICTION. See Conviction.
FORFEITURE,
questions subjecting witness to, 129.
FOHGERV.
forgery at common law, 381.
proof of the false making, 383.
in the name of the party assuming the name of a
person in existence, id.
party forging having the same name, id.
fictitious name, 385.
assumed and borne by the party forging, 387.
proof of the false making with legard to the apparent
validity of the matter forged, 391.
substantial resemblance to true instrument, 393.
cases ol non-resemblance, 395.
proof of the act of forging, 397.
proof of the uttering, 397.
proof of the disposing or putting off, 398.
proof of the intent to defraud, 400.
with legard to the party intended to be defrauded,
401.
proof of identity of the party whose name is forged, 403.
proof of the forged instrument, 405.
proof with regard to principals and accessories, 408.
proof of guilty knowledge, 409.
witnesses, id.
venue, id.
forgery of instruments not made, or purporting to be
not made in England, 410.
interpretation clause, 411.
punishment, id.
forgery of particular instruments, 412.
816 Index.
FORGERY (continued.)
forging wills, 413.
forging deeds, id.
proof of forging of bills of exchange promissory notes
and warrants, or orders for payment of money
or delivery of goods, 414,
proof of forging bills of exchange, &c,, id.
proof of forging warrants, &c., 415.
forging receipts, 421.
forgeries relating to the public funds, 425.
false entries in books of bank and transfer in
false name, id.
proof of forging transfer of stock, and power of
attorney to transfer, id.
proof of personating owner, and endeavouring to
transfer stock, 426.
proof of forging attestation to power of attorney
or transfer of stock, 427.
proof of clerks in the bank making out false divi-
dend warrants, id.
proof of forging exchequer bills, East India
bonds, &c., 428.
forgery and similar offences with regard to bank-notes,
id.
proof of purchasing, receiving, &c., forged bank-
notes, id.
proof of making or having moulds, &c., id.
proviso as to paper for bill of exchange, 429.
proof of engraving any bank-note, &c., 430.
proof of engraving any word, &c., id.
proof of making, &c. mould for manufacturing
paper, 431.
proof of engraving bill of exchange, &c., id.
forgery of entries in public registers, 432.
forgery of stamps, 434.
forgery of other public documents, 437.
FORGERY,
evidence of hand-writing being forged, 5, 6, 164.
presumption of intent to defraud, 19.
proof of guilty knowledge, 66, et seq. See Guilty Know-
ledge.
competency of witnesses in, stat. 9 G. 4. 106.
evidence of, matter of opinion in, 137 164.
of franks, 705.
FORUM DOMESTICUM. See Correction, Murder, Apprentice.
FRANCE,
proof of law of marriage in, 239.
FRANKS,
forgery of, 705.
Index. 817
FRAUD,
in assuming wrong name to evade marriage laws, 231, 232.
constituting a constructive breaking in burglary, 258.
cheating, when indictable, 290.
when not, 292.
conspiracy to defraud individuals, 319.
by public officers, 670.
FREEHOLD,
larceny of things, part of, 499, 500.
FRUIT,
larceny of, 502.
FUNDS,
conspiracies relating to, 315.
embezzlements relating to, 349.
forgeries relating to, 425, et seq. See Forgery.
larcenies relating to, 505.
FURIOUS DRIVING,
punishable as a misdemeanor, 441.
GAME,
taking or killing hares, &c. in the night, 442.
proof of the taking or killing, id.
proof that the offence was committed in some warren,
&c. used for the breeding hares, &c., id.
proof of the offence being committed in the night, 443.
taking or destroying game by night, id.
proof of the former convictions, 444.
proof of the third offence, id.
proof of the situation and occupation of the land, id.
unlawfully entering land for the purpose of taking game,
being armed, 445.
proof of the entering, &c., id.
proof of the entering, or being in the place specified, id.
proof of the purpose to take or destroy, id.
proof of being armed, 446.
assault upon persons apprehending offenders, id. 635.
GAMEKEEPERS,
power to arrest poachers, 635.
cases of murder of, 636, 637.
GAMING,
offence at common law, 447.
statute 9 Anne, c. 14., 448.
proof of the game, id.
proof of the winning at one time or sitting, 449.
statute 18 G. 2. c. 34, id.
GAMING-HOUSES,
a public nuisance, 663.
wife may be indicted for keeping, id.
proceeding under 25 G. 2. c. 36., 664.
818 Index.
GAOLER. See Peace-officers.
indictable for misusing his prisoners, 670.
suffering prisoner to escape, 357. See Escape.
GARDEN,
stealing in, 501,503.
GATE,
breaking of, in burglary, 258.
GAZETTE,
proof of, 223.
GLASS HOUSE,
where a nuisance, 662.
GLEANING,
whether larceny, 473.
GOVERNMENT,
libels on, 525.
GRAND JURY,
matters before, privileged from disclosure, 150.
GREENWICH HOSPITAL,
embezzlements relating to, 354.
GRIEVOUS BODILY HARM,
proof of intent to do, statute 9 G. 4. c. 31., 655.
GRUDGE :
weight of old grudge, on indictment for murder, 610.
GUEST,
occupation by, in burglary, 276.
property may be laid in, in larceny, 505.
refusal to receive, by innkeeper, indictable, 663.
GUILT,
presumptive proof of, 15.
arising from possession of stolen property, 16.
Gt'II-TY KNOWLEDGE,
evidence of other transactions to prove, 66. et seq.
uttering other forged notes, 67.
whether notes of same description, id.
Scotch law on this subject, 68.
declarations of prisoner as to former uttering in-
admissible, 69.
where other notes subject of other indictment, id.
possession of other notes, id.
of receiver, 70.
in prosecutions for making coining-tools, &c., 309.
in forgery, 409.
in receiving stolen goods, 720.
GUNPOWDER.
gunpowder mills a nuisance, 665.
HABEAS CORPUS,
ad testijicandum , when and how issued, 89.
how served, 90.
Index. 819
HANDWRITING,
primary evidence of, 5.
may he disproved by third person, 6.
evidence of signing-clerk not necessary on Bank prosecu-
tions, id.
evidence of, in general, 162.
HARES,
taking or destroying, 442. See Game.
HAY,
setting fire to stack of, 207.
HEALTH,
public, selling unwholesome provisions, 290, 665.
nuisances injurious to, 659, 660.
exposing persons with contagious disorders, 665.
HEARSAY:
general nature of hearsay, 20.
admissible as part of the res gestce, 20.
on questions of pedigree, 22.
on questions of public right, id.
of persons having no interest to misrepresent, or
speaking against their own interest, 23.
of dying declarations, 23 to 28. See Dying de-
clarations.
not evidence of liability to repair ratione tmura, 250.
contents of letter, 700.
HIGHWAY,
proof of, being within parish, 86.
prosecutor competent witness, 107.
at each end of, a bridge, repairs of, 247.
nuisances to highways, 456.
proof of the way being a highway, id.
proof of the highway as set forth, 45 1 .
with regard to the termini, 452.
proof of changing, 453.
proof of the nuisance what will amount to, id .
whether justifiable from necessity, 455.
not repairing highways, id.
proof of liability to repair, 456.
parish, id.
inclosure, 458.
particular districts and persons by prescription, id.
corporations, 460.
private individuals, id.
proofs in defence, 461.
parish, id.
districts, or private individuals, 462.
competency of witnesses, id.
HIGH SEAS. See Admiralty venue.
NN 2
820 Index.
HOMICIDE. See Manslaughter, Murder.
not felonious, of three kinds, 464.
justifiable, id.
excusable, id.
by misadventure, id.
chance-medley, 465.
HOP-BINDS,
maliciously cutting or destroying, 551.
HORSE,
variance in description of, 78.
evidence on indictment for stealing, 284. 285.
horse-race within stat. 9 Anne, c. 14., 448.
maiming and wounding, 287.
poisoning, 288.
conspiracy to sell unsound horse, 320.
HOUSE. See Dwelling-house.
acts done in defence of, 629, 630, 631.
demolishing, 729.
HOUSEBREAKING, 331. See Dwelling-house.
HOUSE OF COMMONS. See Parliament.
HUNDRED,
competency of inhabitants of, 111, 483.
HUSBAND AND WIFE. See Wife.
competency of, as witnesses, 112, et seq. See Witnts*.
husband may be principal in rape on wife, 708.
IDEM SONANS,
rule of, 81.
IDENTITY,
proof of, in bigamy, 229.
of the person whose name is forged, 402.
in larceny, 512.
IDIOT,
incompetent witness, 95.
marriage of, 228.
arraignment of, 175.
disposal of, if found insane, id.
ILLEGALITY,
not to be presumed, 14.
IMPAIRING
the king's coin, 300.
IMPARLANCE, 175.
IMPLEMENT. See Machinery.
IMPORTING
of counterfeit coin, 303.
of foreign counterfeit coin, 306.
IMPRF.SSMENT,
cases of murder or manslaughter in course of, 617.
IMPRISONMENT,
proof of, in prison breach, 706.
Index. 821
INCLOSURE :
Inclosure Act, road set out under, when a highway, 450.
liability to repair highway by reason of, 458.
INDECENCY :
indecent libels, 425.
acts of, indictable as nuisances, 663.
INDIA,
depositions in, 54.
INDICTMENT,
divisible averments in, 74.
descriptive averments in, 77.
how proved, 154, 155.
quashing of, 177.
mere omission to do an act is not indictable, 210.
form of, in forgery, 405, 407.
INDORSEMENT
of bill of exchange, forgeiy of, what is within the
statute, 385.
ou warrant or order for payment of money not within
statute 1 W. 4. c. 66, 413.
INFAMOUS CRIME,
admissions of prisoner as to other offences, 58.
proof of other attempts, id.
accusing of, 773.
INFAMY :
incompetency of witnesses from, 100, et seq. See
Witness.
INFANT. See Child.
dying declarations of, 26.
when incompetent witness from want of understanding, 94,
marriage of, in Ireland, 236.
may be guilty of forcible entry, 379.
chastisement of, 212, 585.
murder of in birth, 565.
by exposure, 592.
concealment of birth, 295.
stealing of, 294.
property laid in, 515.
when presumed capable of committing rape, 708.
carnal knowledge of female infant, 711.
when incapable of committing crimes, 777.
in cases of misdemeanors, and offences not capital, id.
in cases of capital offences, 778.
INFECTION. See Contagion.
INFERIOR COURTS,
proof of judgments and proceedings in, 159.
INFIDELS
admissible witnesses, 96.
fc22 Index.
INFORMATIONS
on penal statutes, compounding, 311.
INFORMERS,
when competent witnesses, 108.
disclosures by, when privileged from being made public,
147.
to whom such disclosures must be made, id.
INHABITANTS,
competent witnesses, though penalties given to poor, 110.
competency of in general, id.
on indictments respecting highways, 462, 463.
of hundred not competent, 463.
INNS,
every one entitled to keep, at common law, 663.
disorderly, indictable, id.
innkeeper bound to supply guests, id.
setting up new inn in neighbourhood of others, id.
INNOCENCE,
presumption of, 14.
INNUENDO,
proof of in libel, 535.
INSANITY :
depositions admissible on insanity of witness, 49.
of prisoner, proceedings in case of, 175.
when it exempts from the consequences of crime, 778.
cases in which prisoners have been held not
insane, 779.
cases in which they have been held insane, 782.
insanity caused by intoxication, 784.
INSCRIPTIONS,
on banners, &c., how proved, 4.
in family bibles, &c., 22.
INSOLVENT,
proof of discharge under insolvent debtors' act, 3.
INSURANCE,
proof of policy of, 2, 206, 207.
INTENT
to defraud, presumption of, 19.
in cases of forgery, id.
proof of by collateral circumstances, 71.
cases of threatening letters, id.
of libel, id.
of murder, id.
of treason, id.
averment of, divisible, 77.
on prosecutions for abortion, 190, 191, 192.
to marry or defile in cases of abduction, 195.
to injure or defraud in arson, 206.
of bankrupt to defraud, in concealing his effects, 225, 226.
Index. 823
INTENT (continued.)
to commit felony, in burglary, 279.
variance in statement of, 281.
killing cattle with intent to steal, 286.
in maiming cattle, &c., 288.
to provoke a challenge, 289.
to defraud, in false pretences, 369.
to defraud, in forgery, 400.
mode of proof, id.
with regard to the party intended to be defrauded, 401.
malicious, in libel, 537.
in malicious injuries to the person, 653.
to murder, 654.
to maim, disfigure, or disable, id.
to do some grievous bodily harm, 655.
to prevent lawful apprehension, 656.
in perjury, 685.
in robbery, 735.
in assault, with intent to rob, 755.
INTEREST,
declarations of persons having no interest, 23.
of witnesses in general, 104 to 112. See Witness.
INTERPRETER :
acting between attorney and client, a privileged witness,
145.
INTESTATE,
goods of, in whom property is to be laid in larceny, 517.
INTOXICATION,
insanity, caused by, 784.
INTRODUCTORY AVERMENTS,
in libel, proof of, 528.
in perjury, 683.
IRELAND,
proof of Irish statutes, 154.
proof of Irish marriages, 236.
ISSUE,
evidence confined to, 57.
general rule, id.
cases where evidence of other transactions is admis-
sible, as referable to the point in issue, 58.
acts and declarations of conspirators, 60.
admissible for prisoner as well as for prosecutor,64.
cumulative offences, 66.
guilty knowledge, 66.
intent, 71.
evidence of character of prosecutor, 72.
of prisoner, id.
substance of the issue to be proved, 74.
general rule, id.
824 Index.
ISSUE (continued.')
divisible averments, 74.
sufficient to prove what constitutes an offence, id.
in cases of intent, 77.
descriptive averments, id.
in cases of property stolen or injured, id.
name of the prosecutor or party injured, 79.
rule of idem sonans, 81.
name of third persons mentioned in the indict-
ment, 82.
mode of committing offences, 83.
what are not material, 84.
averments as to time, id.
averments as to place, 85.
averments as to value, 86.
JEW :
form of oath by, 97.
proof of marriages of, 230.
JOINT TENANT,
forcible entry by, 378.
larceny by, 514.
property of, how laid, 514.
JOURNALS,
of parliament, how proved, 154.
JOURNIES,
venue in case of offences committed on, 185.
JUDGMENT,
reversal of, restores competency of infamous witness, 103.
how proved, 154, 155.
in inferior courts, 159.
bringing prisoner up for, 179, 180.
JURAT,
not conclusive evidence of place where affidavit was sworn,
676.
JURY,
discharge of, 177.
may give verdict on the whole matter in libel, 541.
imbracery of, 544.
JUSTICE,
libels on the administration of, 526.
JUSTICES OF THE PEACE,
whether they can grant aa attachment for disobeying a
subpcfna, 91.
they may fine and imprison, id.
matters communicated to, when privileged from disclosure,
148.
illegal proceedings by, indictable, 669.
JUSTIFIABLE HOMICIDE, 464. See Murder.
Index. 825
KIDNAPPING,
at common law, 465.
statute 9 G. 4. c. 31, id.
KILLING *
cattle, with intent to steal, 286.
maliciously killing cattle, 237, 288.
KING,
the king's coin, what is, 310.
libels against, 525.
petition to, not libellous, 539.
property, when laid in, 330.
LAND TAX:
copy of books of commissioners, admissible, 168.
forgeries relating to, 438.
LAHCENY,
definition, &c., 467.
proof of the lucri causa, 468.
proof of the taking, 469.
proof of the manual taking, id.
proof of the felonious intent in the taking, 47 1 .
goods obtained by false process of law, id.
goods taken by mistake, id.
goods taken by trespass, 472.
goods taken under a fair claim of right, 473.
goods procured by finding, 474.
goods taken by wife or by wife and a stranger,
476.
proof of the taking with reference to the possession of the
goods, 477.
original taking not felonious, id.
cases of bailees, 478.
determination of the bailment, 479.
cases of servants, 481.
cases of lodgers, 485.
stealing from the person, 486.
proof of the taking ; distinction between larceny and false
pretences cases of larceny, 487.
no intent to part with the property by the prosecutor
original felonious intent on the part of the
prisoner cases of hiring horses, &c., 488.
various cases amounting to larceny, where goods have
been obtained by false pretences, 491.
cases of pretended purchases, 493.
proof of the taking ; distinction between larceny and false
pretences cases of false pretences, 495.
intent to part with the property by the prosecutor
original felonious intent on the part of the pri-
soner, id.
N K 5
820 Index.
LARCENY (continued.)
pretended purchases, 495.
cases of obtaining goods, &c. by false pretences, 497.
proof of the things stolen things savouring of the realty at
common law, 499.
things annexed to buildings, &c., 500.
mines, id.
trees, &c., 501.
written instruments, 503.
securities for money, &c., 504.
promissory notes, 506.
bankers' checks, 507.
exchequer bills, id.
goods from vessels, 508.
goods in the course of manufacture, 509.
proof of the thing stolen animals, &c. domestic ani-
mals, id.
animals/era natures, id.
dead or reclaimed, 510.
animals kept for pleasure only, and not fit for food, id
dogs, pigeons, &c., 511.
proof of the thing stolen, 512.
identity, id.
value, id.
proof of the ownership cases where it is unnecessary to
allege or prove ownership, id.
intermediate tortious taking, id.
goods in custodia legis, 513.
goods of the offender himself, id.
goods of joint-tenants and tenants in common, 514.
goods in possession of children, 515.
goods in possession of bailees, 516.
in possession of carriers, driveis of stage coaches,
&c., id.
goods of deceased persons, executors, &c., id.
goods of lodgers, 517.
goods of married women, id.
goods of persons unknown, 518.
goods of servants, id.
goods of corporations, id.
goods belonging to counties, &c., 520.
goods for the use of poor of parishes, id.
goods of trustees of turnpikes, id.
goods of commissioner of sewers, &c., 521.
venue, id.
on indictment for compound larceny, person may be con-
victed of simple larceny, 75.
so on indictment for burglary, 281.
proof of, in house-breaking, 332.
Index. 827
LARCI.NY {continued.)
in dwelling house, to amount of 5/., 332. See Dwelling-
house.
distinction between, and embezzlement, 344.
and false pretences, 362.
defendant not to be acquitted when larceny,
371.
ring dropping. See Addenda.
LEADING QUESTIONS,
when they may be put, 126.
LEGITIMACY,
presumption of, 14.
LETTERS,
of conspirators, when admissible, 61, 325.
secreting, embezzling, &c., by officer of post-office, 697.
See Post-office.
destroying, 699.
by persons not employed by the post-office, 701.
stealing by such persons, 702.
secreting letters found, 704.
threatening letters. See Threats.
LIBEL,
blasphemous libels at common law, 524.
statutes, id.
indecent libels, 525.
libels on government, id.
libels on the administration of justice, 526.
libels on individuals, id.
proof of introductory averments, 528.
proof of publication in general, 529.
of libels in newspapers, 531.
by admission of defendant, 533.
constructive publication, id.
proof of innuendo, 535.
proof of malice, 536.
proof of intent, 537.
venue, id.
proof for the defendant, 538.
statute 32 G. 3. c. 60, 541.
allegation of the offence divisible, 76, 77.
LICENCE,
presumption of, 14.
proof of marriage by, 233.
illegal grant of by justices, indictment for, 669.
LIFE,
presumption of duration of, 19, 20.
in cases of bigamy, 242.
LOCK,
maliciously breaking down, 548.
828 Indtx.
LODGINGS,
stealing from, what averments material, 84.
when burglary may be committed in, 269.
when burglary may be committed by lodger, 277.
lodger may be guilty of stealing in a dwelling-house in his
own lodgings, 334.
goods stolen from, must be laid as his property, 517.
lodger, whether justified in defending possession of house,
638, 644.
rriay be indicted for keeping a bawdy-house, 664.
LOOM. See Machinery.
Loss:
proof of loss of document, so as to let in secondary evi-
dence, 11.
LUCRE,
proof of motive of, in prosecution for abduction, 195.
Lucri causa,
in larceny, 468.
in piracy, 695.
in robbery, 736.
LUNATIC,
when a competent witness, 95.
marriage of, 228.
arraignment of, 175.
MACHINERY,
malicious injuries to, 554.
threshing machines, 555.
MAGISTRATE. See Justice of the Peace.
MAHOMEDAN,
form of oath by, 98.
MAIL BAGS,
stealing of, 702.
MAIMING
of cattle, 286. See Cattle.
proof of intent to maim, statute 9 G. 4. c. 31. 654. See
Malicious Injuries.
MAINTENANCE,
nature of the offence, 542.
when justifiable, 543.
in respect of interest, id.
master and servant, id.
affinity, id.
poverty, id.
counsel and attornies, id.
MALA PRAXIS,
when manslaughter, 561, 588 to 591.
MALICE,
presumption of, 18, 19.
Index. 829
MALICE (continued.)
proof of in arson, 201.
to owner, not necessary, on prosecution for maliciously
killing cattle, &c. 288.
proof of in libel, 536.
defendant may show absence of, 539.
to owner, need not be proved on indictment for malicious
injury, 546.
proof of in murder in general, 579.
express malice prevents provocation being an excuse, 604.
general malice sufficient in case of malicious injury to the
person, 655.
MALICIOUS INJURIES.
pulling down bridges, 252.
to cattle, 287.
to property, 545.
7 & 8 G. 4. c. 30, general clauses, 546.
with regard to mines, 547.
' with regard to destroying engines, id.
with regard to breaking down sea banks, locks, canals,
, fish-ponds, &c., 548.
with regard to turnpike-gates, toll-houses, &c., 549.
with regard to trees and vegetable productions, id.
trees growing in parks, &c., above the value of II., id.
trees wherever growing, above the value of Is., 550.
plants, &c., in a garden, 551.
hop-binds, id.
with regard to ships, 552.
destroying ships with intent, &c., id.
damaging a ship otherwise than by fire, with intent,
&c., id.
exhibiting false lights, 552.
cutting away buoys, id.
receiving anchors, 553.
with regard to machinery and goods in the course of ma
nufacture, 554.
threshing machines, &c., 555.
to the person, 649.
cutting or stabbing, 651.
wounding, 652.
proof of intent, 653.
to maim, disfigure, or disable, 654.
to do some grievous bodily harm, 655.
to prevent lawful apprehension, 656.
principals aiding and abetting, 657.
MANOR,
custom of, proveable by hearsay, 22.
lord of, may apprehend poachers, 635.
830 Index.
MANSLAUGHTER. See Murder throughout.
conviction for, on indictment for murder, 75.
distinction between, and murder, 556.
in cases of provocation, 557, 694, et seq.
in cases of mutual combat, 558.
in cases of resistance to peace-officers, &c., 559, 627, 628.
in cases of killing in the prosecution of an unlawful act, 560.
of lawful act, id.
statement of mode of killing, 577, 578.
in cases of sports, 581, 585.
in cases of correction by parents, &c., 585.
in cases of administering medicines, 588.
venue, where committed abroad or at sea, 563.
MANUFACTURE,
stealing goods in process of, 509.
maliciously destroying goods in process of, 554.
what manufactories are nuisances, 662.
demolishing buildings used in, 729.
MARK,
forgery of instrument signed with, 387.
perjury upon affidavit signed with, 675. ,
post-office marks, forgery of, 704.
MAKKKT,
taking money for the use of stalls in, extortion, 671.
MARRIAGE,
register not the only evidence of, 4.
proof of marriages in general, '228 to 241. See Bigamy.
of paupers, conspiracy to procure, when indictable, 315,
316.
register of, forging, 433.
MASTER. See Servant and Apprentice.
unreasonable correction by causing death, 585.
answerable for publication of libel by servant, 530, 534,
535.
maintenance of servant by, 543.
liable for nuisance by act of his servant, 666.
MATERIALITY :
of the subject sworn to, in perjury, 680.
MEDICAL MEN. See Physician.
opinions of, admissible, 21.
MEMBER OF PARLIAMENT. See Parliament.
MEMORY,
informal examination of prisoner used to refresh, 47.
MENACES,
constructive breaking by, in burglary, 259.
demanding money with, 765.
MINES,
malicious injuries to, 547.
setting on fire, id.
Index. 831
MINES (continued.)
demolishing engines used in, 729.
MlNOH,
pi oof of marriage by, 233.
bigamy, in case of marriage of, 243.
MISCARRIAGE. See Abortion.
MISDEMEANOR,
examination of witnesses, defendants, 43.
suffering punishment in cases of, renders witnesses com-
petent, 102.
change of venue in cases of, 189.
compounding, 311.
no accessories in, 409.
killing on escape on charge of, 616.
arrests in cases of, 628.
MISNOMER,
cases of, 79, 80.
rule of idem sonans, 81.
MISPRISION
of felony, 312.
MISTAKE,
goods taken by, not larceny, 471.
MONEY. See Coin.
not within the Post-office statutes, 700.
demanding, with menaces, 765.
MORAVIANS,
evidence of, admissible, 99.
false affirmation punishable as perjury, 676.
MOULD,
for making bank-notes, 430.
for the purpose of coining, 308.
MURDER,
evidence of former declarations of prisoner, 71.
on indictment for, prisoner may be convicted of man-
slaughter, 75.
or concealment of birth of child, 296.
evidence of medical men in, 137.
statutory provisions respecting, 563.
disposal of bodies of murderers, id.
murders committed abroad, id.
at sea, 564.
proof of a murder having been committed, id.
pioof of the murder as to the party killed, 565.
cases of children killed in the biith, id.
as to the name of the child, 566.
proof that the prisoner was the party killing, 567.
his hand need not do the act, id.
his presence required, id.
when done by another in his company, 569.
832 Index.
MURDER (continued.)
proof of the means of killing, 571.
compelling another by threats to kill himself, id.
by savage animals, id.
by poison, 572.
accessories in poisoning, id.
by giving false evidence in capital cases, 573.
parties dying of wounds unskilfully treated, id.
where the deceased was intoxicated, 574.
decisions in the Scotch law on this subject, id.
variance in statement of means of killing, 577.
where mode of death substantially the same, id.
where not so, id. 578.
intermediate means need not be stated, id.
size, &c. of wound need not be stated, 579.
proof of malice, id.
in general, id.
death ensuing in the performance of an unlawful or
wanton act, 580.
injury intended to be inflicted on another, id.
need not be an intended felony, id.
cases of riots, &c. 581.
riding restive horse, id.
from acts done in sport, manslaughter, id.
death ensuing in the performance of a lawful act, 582.
workmen throwing stones from houses, id.
negligent driving, 583.
accidents from loaded fire-arms, 584.
moderate correction exceeded, 585.
lawful sports, and contests, id. 586.
prize-fights, &c. 587.
misadventure, 688.
persons administering medicines, id.
intent to do bodily injury, death ensuing, 591.
exposure of infants, killing by neglect, &c. 592.
by master of apprentice, id. 593.
by gaoler, 592.
provocation in general, 594.
sought by prisoner, id.
by word or gestures only, 595.
by assault, 596.
in affrays with soldiers, id.
in apprehending debtor, 597.
nature of the instrument used, 598.
provocation must be recent, 601.
where there is express malice, 604.
proof of malice cases of mutual combat, 605.
what provocation sufficient, id.
words not sufficient, 606.
nature of the instrument used, id.
Index. 838
MURDER (continued.)
" up and down" fight, 608.
lapse of time, id.
old grudge, 610.
duelling, id.
where one party gives way, 611.
seconds when guilty, id.
proof of malice peace-officers and others killed in per-
forming their duty, id.
what persons are within the rule, id.
officers killed, or killing others, in the performance of
their duty, 612.
their authority, id.
actual felons, id.
persons suspected, id.
misdemeanants, 613.
nature of the charge on which party is de-
livered to officer, 614.
persons found attempting to commit felony, id.
preventing breach of peace, id.
after affray over, id.
night-walkers, 615.
killing to prevent escape of misdemeanant, 616.
where empowered to arrest without warrant, id.
cases of impressment, 617.
cases of conflicting authority of peace-officers, 618 .
during what period officer has authority, 619.
acting out of jurisdiction, 620.
warrant directed to particular officer by name, 62 1 .
statute 5 G. 4. c. 18. id.
proof of warrant or writ, id.
regularity of the process, 621.
not defective in frame, id.
defective in frame, id.
third person interfering, in case of defective pro-
cess, 622.
notice of the authority, 625.
known officer, 626.
in the night, id.
bailiff of the leet, id.
assistant to constable, id.
private or special bailiff, id.
mode of executing their duty, 627.
where the offender flies, id.
where the offender has been indicted, id.
on suspicion of felony, id.
in cases of misdemeanor, id.
in cases of riot, &c. 628.
degree of violence exercised, id.
834 Index.
MURDER (continued.)
proof of malice officers
breaking doors, Sac. 629, 630.
where the officer is killed, mode in which the
killing has been effected, 631.
degree of violence used in resisting officers
acting under illegal process, &c. id.
Scotch law on the subject, 632.
how far the acts of third persons in larceny
shall affect the prisoner, 633.
private persons killed, or killing others, in appre-
hending offenders, 534.
where the offender has been indicted, id.
in case of affrays, id.
in case of misdemeanors, 635.
in apprehending poachers, id.
accusing of, 771.
killing in defence of person or property, 637.
degree offeree which may be used, 638.
nature of the attempted offence which will
justify homicide, id.
must be felony, 639.
or apprehended felony, id.
what violence an assault will justify, id.
assault with intent to chastise, 641 .
necessity for the force used must appear, 642.
cases of trespass, 643.
cases of watchmen set to watch property, id.
whether a lodger may interfere to protect the
house, 644.
proof in cases of/e/o de se, 646.
oath binding party to commit, 667.
MURDER ATTEMPT TO COMMIT.
offence at common law, 648.
offence by statute, 649.
attempt to poison, id.
attempt to drown, 650.
MUTE,
standing mute, 174.
MUTUAL COMBAT,
killing by, when manslaughter, 558.
when murder, 605.
NAME,
forgery by party having same name, 383.
in fictitious name, 385.
assumed and borne by the party forging, 387.
mistake in signing of, to forged instrument, 394.
in cases of child-murder, 566.
Index. 835
NAVY. See Soldiers and Suitors.
forgeries relating to, 438.
NECKSSITY,
whether nuisance justifiable from, 455.
NEGATIVE AVERMENTS,
general rules, 55.
where a fact is peculiarly within the knowledge of a party, 56.
NEGLIGENCE,
negligent burning, 209.
negligent driving, manslaughter, 560, 583, 584.
of medical men, 588 to 591.
NEGLIGENT ESCAPE,
proof of, 357.
NEWSPAPERS,
proof of publication of libel in, 531.
purloining, by officers of Post-office, 704.
NIGHT,
proof of, in burglary, 278.
taking and destroying game at night, 443. See Game.
what is " night," by statute 9 G. 4. 444.
NIGHT-WALKERS,
arrest of, 615.
Nan compos mentis- See Idiot, Insanity, Lunatic.
NOTICE,
proof of, where both written and verbal, 4.
by peace-officers, of their character and authority, 625,
626, 656.
to gaoler in prison breach, 707.
NOTICE TO PRODUCE,
in general, 9.
same rule in criminal and civil cases, agent, 9.
where dispensed with, 10.
form of, id.
to whom and when, id.
consequences of, 11.
NUISANCE,
to public highways, 449. See Hihu-ny.
proof of the public nature of the nuisance, 659.
quiere, where it furnishes a greater convenience to the
public, id.
proof of the degree of annoyance, id.
need not be prejudicial to health, 660.
with regard to situation, id.
with regard to length of time, 661.
particular trades, 662.
rail-ways, steam-engines, &c. (';('.
acts tending to produce public disorder acts of public in-
decency, 663.
disorderly inns, id.
gaming-houses, id.
836 Index.
NUISANCE (continued.)
bawdy-houses, 664.
play-houses, id.
gunpowder, fireworks, &c., 665.
dangerous animals, id.
contagion, and unwholesome provisions, id.
eaves dropping, and common scolds, id.
proof of the liability of the defendant, 666.
NUL TEIL RECORD,
proof on issue of, 154.
OATH.
examination of prisoner must not be on oath, 44.
by witnesses, form of, 97.
does not exclude witness from revealing what he has sworn
to conceal, 153.
of commissioners of bankrupt, proof of, 122.
administering or taking unlawful oaths, 666.
statutes, id.
proof of the oath, 667.
proof of aiding and assisting, 668.
proof for the prisoner, disclosure of facts, id.
venue, 669.
proof of authority to administer, in forgery, 672.
proof of the taking, in perjury, 675.
OBSTRUCTING OFFICERS. See Smuggling.
OBTAINING MONEY under FALSE PRETENCES. See False Pre-
tences, Cheating.
OCCUPATION,
what amounts to in arson, at common law, 200.
what sufficient occupation in burglary, 264 to 278. See
Burglary.
OFFENSIVE WEAPON,
what is, 446, 759.
OFFICE,
bribery of persons in, 244.
cheating by persons in, 291.
offences relating to officers, 669.
misfeasances by officers, illegal acts in general, id.
by magistrates, 670.
by gaolers, id.
frauds by public officers, id.
nonfeasances by public officers, id.
not performing duties, id.
overseer not relieving pauper, id.
head officer of corporation absenting him-
self, id.
extortion, 671.
refusing to execute office, id.
Index. 837
OFFICE COPIES, 155.
OPINION
of witnesses, examination as to, 137.
whether subject of perjury, 677.
ORDEE
for payment of money, forgery of, 396.
stat. 1 W. 4. c. 66. 413, 415.
what amounts to, 415, 416, 417.
forging indorsement on, not within the statute,
414.
for delivery of goods, forgery of, 418, 420.
stealing of, 505.
OUTHOUSE,
subject of arson at common law, 199.
what is, within the statute against arson, 204, 205.
what form part of the dwelling-house in burglary, 262,
277.
what is, in house-breaking, 332.
demolishing, 729.
OVERSEER,
when indictable for not relieving pauper, 670.
frauds by, in keeping accounts, id.
refusal to execute office of, 671.
OVEUT ACT,
proof of, not laid in indictment in treason, 57.
OWNERSHIP,
proof of, in false pretences, 370.
in larceny, 512, et seq. See Larceny.
OYSTERS,
stealing, 372.
dragging oyster bed, 373.
PAPER
for forging bank-notes, 429.
or bankers' notes, 431.
PARDON,
where it restores competency of infamous witnesses, 102.
promised by statute, whether it renders a witness incom-
petent, 105.
effect of promise of, to accomplice giving evidence, 119.
PARISH
boundaries, hearsay, evidence of, 22.
proof of, in indictments, 85.
competency of inhabitants of, 111.
may be liable to repair a bridge, 247.
evidence in defence by, 251.
liability of, to repairs of highways, 456, et seq. See
Highways.
proof in defence by, 461.
838 Index.
PARISH (continued.)
goods belonging to poor of, how described in larceny, 520.
registers, 160, 381.
PARLIAMENT,
members of, bribery of, 244.
privileged publication by, 539.
petition to, no libel, id.
what passes in, not to be disclosed, 149.
proof of acts of, 153.
proof of journals of, 154.
PAROL,
written instruments not provable by, 2.
proof by, of appointment of persons acting in public capa-
city, 7.
dying declarations where reduced into writing, 27.
examination of prisoner where reduced into writing, 45.
not admissible to vary depositions, 51.
parol evidence of illegal oath in writing, 667, 668.
PARTICULARS
of the charges in barratry, 226.
PARTNERS,
occupation of, in burglary, 277.
When guilty of larceny with respect to partnership goods,
514.
property of, how laid, id.
PAUPERS,
marriage of, conspiracy to procure, 315, 316.
overseer when indictable for not relieving, 670.
PEACE-OFFICER,
proof of appointment of, 14, 15.
assaults by, in the execution of their duty when justifiable,
"215.
assaults on, 217.
proof of escape suffered by, 356.
cases of manslaughter in resisting, 559.
killed and killing others in the performance of their duty,
when it amounts to murder, 611, et seq. See
Murder.
their authority, 612.
regularity of process, 621.
notice of their authority, 625.
mode of executing their duty, 627.
refusal to execute the office of, indictable, 671.
PEER,
punishable for disobeying subpoena, 91.
PEDIGREE,
hearsay when admissible on questions of, 22.
PENAL STATUTES,
compounding informations on, 311.
Index. 839
PENALTIES,
party entitled to, when competent witness, 109.
questions subjecting witness to, 129.
whether they may be put, 130.
consequences of answering or not answering, 132.
PERJURY,
prosecutor when a competent witness, 106.
proof of affidavit in, 157.
proof of answer in chancery in, 168.
perjury at common law, 672.
proof of authority to administer oath, id.
that party acted in character sufficient, 573.
commission of bankrupts, id.
commission for taking affidavits, id.
court having no jurisdiction, id.
persons in private capacity, id.
variance in statement of authority, 674.
proof of the occasion of administering the oath, id.
need not be in court, id.
before commissioners, id.
oath of simony, 675.
not oath before surrogate, id.
oath in party's own cause, id.
not on false verdict, id.
object of oath need not be effected, id.
proof of taking the oath, id.
variance in statement of, id.
upon answer in chancery, id.
upon affidavits, id.
identity of the party, 676.
Quakers and Moravians, id.
proof of the substance of the oath, id.
whether the whole of defendant's evidence must be
proved, id.
oath as to belief, 677.
equivocating oath, id.
matter of opinion, id.
upon question which witness was not bound to an-
swer, id.
intervening statements not varying sense, 678.
" substance and effect" construction of, id.
adding word, 679.
omitting letter, id.
proof of parol evidence of defendant, id.
explanatory proof by defendant, 680.
proof of materiality of matter sworn, id.
cases, id. 681, 682.
matter of circumstance, 681.
840 Index.
PERJURY (continued.')
proof of degree of materiality, 681, 682.
proof of proceedings in equity, 682, 883.
proof of introductory averments, id.
matters of description, id.
immaterial variances, 684.
proof of trial having been had, 685.
proof of the falsity of the matter sworn, id.
proof of the corrupt intention of the defendant, id.
witness, number requisite, 686.
where the defendant's own admission is given in
evidence, id.
competency of, 688.
statutes relating to perjury, 689.
28 Eliz. c. 5. id.
construction of, 690.
other statutes, id.
23 G. 2. c. 11., id.
subornation of, 601. See Subornation.
PERSON,
stealing from the person, 486.
proof of taking from, in robbery, 736.
PERSONATION. See False Personation.
PETIT TREASON,
punishable as murder, 563.
PETITIONING CREDITOR'S DEBT,
proof of, 221.
PHYSICIAN,
opinion of, admissible, 137.
not privileged as a witness, 144.
liable for mala praxis, 588 to 591.
proof of his practising as such, 528.
PIGEONS,
stealing of, 510.
statute 7 & 8 G. 4. c. 25., 511.
PIRACY,
offence at common law, 692.
statute 11 & 12 W. 3. c. 7., 693.
statute 8 G. 1. c. 24., id.
statute 18 G. 2. c. 30., 694.
statute 32 G. 2. c. 25., id.
proof of the piracy, 695.
proof with regard to the persons guilty of piracy, id.
proof with regard to accessories, 696.
PLACE,
variance in averments as to, 85.
PLANTS,
in gardens, malicious injuries to, 551.
Index. 841
PLATE,
transposing stamp on, 437.
PLAY-HOUSE,
indictable as a nuisance, 664.
PLEA,
imparlance and traverse, 175.
PLEDGING ;
by banker, agent, or factor, 351, 352.
POACHING. See Game.
night poaching, 443.
with arms, 445.
power to arrest poachers, 635.
POISON,
administering to procure abortion, 191. See Abortion.
administering to horses, 288.
evidence in murder by means of, 572.
principal and accessories in, id.
attempt to, stat. 9 Geo. 4. c. 31. 649.
evidence of former attempts, 654.
taken by woman to procure miscarriage, and causing
death, felo de se, 647.
POLICY,
proof of, 2.
on indictment for arson, 206, 207.
POLL BOOK,
copy of, admissible, 160.
POSSESSION
of stolen property, presumption of stealing, 16.
length of time after the larceny, if?.
found in a house, id.
after prisoner's apprehension, id.
proof of commission of other offence, id.
where property is carried into another county, 18.
evidence to be received with great caution, id.
of forged notes, evidence of guilty knowledge, 69.
defence of, a justification in assault, 214.
having counterfeit coin in possession, 304.
interpretation clause as to, 311.
having counterfeit foreign coin in possession, 307.
of property, so as to make it larceny, and not embezzle-
ment in servant taking it, 344.
interpretation clause in forgery act as to, 411.
by prisoner, necessary in larceny, 471.
defence of, 637, 638.
POST OFFICE
marks, effect of in evidence, 538.
embezzlement by officers of, 697.
statute 52 Geo. 3. c. 143. s. 1. id.
842 Index.
POST OFFICE (continued.)
proof that the prisoner was a person employed
by the post office, 698.
proof of the secreting, embezzlement, or de-
struction, 699.
proof of the letter or packet intrusted to the
prisoner, id.
proof that the letter, &c. contained the whole or
some part of a bank note, &c., 700.
accessories, &c., 701.
statute 5 G. 3. c. 25. s. 19. 701.
persons in post office applying money in letters
to their own use, or burning letters, id.
statute 7 G. 3. c. 50. s. 3. id.
stealing letters, by persons not employed in the post office,
7 G. 3. c. 50. s. 2. 702.
venue, id.
stealing from carriage, or possession of person employed to
carry letters, or from post office, &c., 702.
what is a post office, 703.
stealing letters, &c. accidentally found, stat. 42 G. 3.
c. 81. s. 4. 704.
embezzling newspapers, votes of parliament, &c. id.
forging post office marks, id.
forging franks, 705.
POSTEA,
proof of trial had, 157, 685.
POWER OF ATTORNEY,
forgery of, 385.
for receipt of prize-money, 392, 413.
to transfer government stock, 413, 425.
forging attestation to, 427.
embezzlement of by officers of post office, 698.
PRACTICE j
arraignment, 174.
plea, imparlance, and traverse, 175.
quashing indictment, 177.
discharge of jury, id.
former conviction, 178.
trial, 179.
verdict, id.
judgment, id.
costs, expenses, and rewards, 180.
PRESUMPTION,
of person acting in a public capacity being duly
authorised, 7.
of document being destroyed, 12.
general nature of presumptive evidence, 12.
distinction taken in criminal and civil cases, 13.
Index. 843
PRESUMPTION (continued.)
general instances of presumption, 14.
of innocence and legality, id.
of guilt arising from the conduct of the party charged, at
or after the charge, 15.
from the possession of stolen property, &c., 16.
of malice, &c., 18.
of intent to defraud, 19.
of the duration of life, id.
of duly exercising an office, 56.
of check being forged, 387.
of way being a highway, 451.
PRETENCES. See False Pretences.
PRIMARY EVIDENCE ;
general rule, 1.
written instruments, 2.
handwriting, 5.
negative evidence of consent, 6.
exceptions, 7.
evidence of person acting in public capacity, id.
admissions by party, 8.
PRINCIPAL ; See Accessaries.
confession of principal not evidence against accessory, 40.
principal admitted as witness against accessory, 1 18.
proofs with regard to accessories in general, 166, et seq.
See Accessories.
principal in the second degree, what constitutes, 166.
principal varying from orders given to him, 168.
principals, who, in burglary, 259, 261.
in false personation, 361.
in false pretences, 371.
in forgery, 408.
at common law all are principals, 409.
in murder, by poison, 572.
in malicious injuries to the person, 657.
in the second degree, infelo de se, 647.
in administering unlawful oaths, 668.
in piracy, 696.
in offences relating to the post office, 701.
in rape, 708, 710.
proof of conviction of, as against receiver, 715.
party charged both as principal and receiver, 721.
PRINTED DOCUMENTS,
how proved, 4.
PRISON BREACH,
nature of the offence for which the party was impri-
soned, 705.
proof of the imprisonment, and nature of the prison, 706.
proof of the breaking of the prison, 707.
o o2
844 Index.
PRISON BREACH (cotied.)
conveying tools, &c. to prisoners, to assist in escape, 707.
special enactments, 708.
PRISONER,
examination of, 43. See Examination.
roust be present at depositions, 51.
qucere before coroner, 54.
evidence of character when admissible, 72.
accomplice admissible witness for, 118.
arraignment of, 174.
plea, imparlance, and traverse, 175.
proofs for, in bigamy, 242.
death of, by ill-treatment in gaol, murder, 593.
gaoler indictable for misusing, 670.
conveying tools to, to assist escape, 707.
breach of prison by, 705. See Prison Breach.
rescue of, 723. See Rescue.
aiding to escape, 724.
PRIVATE PERSONS,
when and how liable to repair highways, 450.
defence by, 462.
libels upon, 526.
apprehending offenders, and killed, when murder or man-
slaughter, 560, 612.
arrest of night-walkers by, 615.
authority of, to arrest offenders in general, 634, 635.
authority to suppress an affray, 634.
PRIVILEGED COMMUNICATIONS, 144 to 153. See Witness.
PRIVILEGED PUBLICATIONS,
when a defence on indictment for libel, 539.
PRIZE FIGHTS,
death ensuing in course of, 587.
PROBATE,
proof of, 159.
not conclusive proof of validity of will, 413.
PROCESS,
breaking open doors to execute civil process, 628, 629.
PROCLAMATION,
under riot act, 728.
PRODUCTION CF PAPERS,
when witness privileged from, 147.
of check referred to in letter, in conspiracy, 326.
PROMISES,
effect of, in confessions, 29.
what amounts to, 30.
removal of effect of, 31.
must have reference to temporal advantage, 35.
PROMISSORY NOTE ; See BUI of Exchange.
forgery of, 413, 414, 415.
Index. 845
PROMISSORY NOTE (continued.)
stealing of, 505.
paid re-issuable bankers' notes may be described as
promissory notes, 506.
whether as valuable securities, id.
PROPERTY,
defence of, 637.
PROSECUTOR,
when affected by declarations of his agents, 41.
evidence of character of, when admissible, 72.
variance in statement of name of, 79.
when a competent witness, 105.
PROVOCATION,
intent to provoke a challenge, 289.
what sufficient to make killing manslaughter, 557, 594.
words or gestures only, 595.
assault, 596.
instrument used, 598.
must be recent, 601.
express malice prevents provocation being an excuse,
604.
cases of peace-officers executing illegal process, 631.
PUBLIC BOOKS,
proof of, 159.
PUBLIC COMPANIES. See Companies.
PUBLIC FUNDS. See Funds.
PUBLIC SERVICE,
embezzlement by persons in, 348.
PUBLICATION
of libel, 529, et seq.
PURPORT,
effect of the word, 406.
PUTTING IN FEAR,
stealing from dwelling-house, some person being put in
fear, 335.
in robbery, 740.
PUTTING OFF,
in coining, what amounts to, 300.
in forgery, 398.
QUAKERS,
evidence of, admissible, 99.
proof of marriage of, 230.
false affirmation punishable as perjury, 676.
QUARANTINE,
forging certificate of, 439.
QUASHING
of indictments, 177.
846 Index.
RABBITS,
taking or killing in a warren, 442.
RAILWAY,
a public highway, 450.
when a public nuisance, 662.
RANSOM,
of neutral vessel, 694.
RAPE,
declarations of woman admissible, 21.
wife competent witness against her husband, 115.
statutes respecting, 708.
proof with regard to the person committing the offence, id.
proof with regard to the person upon whom the offence is
committed, 709.
proof of the offence, id.
accessories, 710.
competency and credibility of the witnesses, id.
unlawful carnal knowledge of female children, 711.
assault with intent to commit, 712.
RATIONK TENURS,
inhabitants of a district cannot be so charged, 248.
proof of such liability, 250.
private individuals so charged, 450.
RECEIPT,
proof of receipt of money, 3 .
forgery of, 421.
what amounts to a receipt, 422, 424.
to assignment of navy bill, id.
scrip receipt, 423.
RECEIVING,
common law offence, former statutes, 712.
statute 7 & 8 Geo. 4. c. 29. id.
proof of the larceny by the principal, 714.
name of, need not appear, id.
where he is unknown, id.
where indictment alleges a receipt from a person
named, id.
previous conviction of principal evidence, 715.
where he pleaded guilty, id.
distinction between receiving and stealing, 716.
proof of receiving, joint receipt, 718.
receipt by wife, id.
proof of the particular goods received, 719.
need not be in same shape as when stolen, id.
proof of guilty knowledge, 720.
immate r ial with what intent party received the goods,
721.
proof where the prisoner is charged as principal and re-
ceiver in different counts, id.
Index. 847
RECEIVING ("continued.)
proofjby prisoner of innocence of principal, 722.
witnesses, competency of principal, id.
venue, id.
RECEIVER,
confession of principal felon not evidence against, 40.
proof of guilty knowledge of, 70, 720.
charged as both principal and receiver, 721.
competency of, 722.
RECEIVING-HOUSE
not a post-office, 699.
RECITAL,
in private act, effect of, 154.
RECOGNIZANCE
of witnesses, 87.
of bail, false acknowledgment of, 359.
RECORDS,
primary evidence of the facts recorded, 2.
mode of proving, 154.
nul tiel record, evidence on, id.
forgery of, at common law, 381.
larceny of, 503.
RECOVERY,
false acknowledgment of, 359.
RECTOR,
altering registers, when criminally liable, 433.
RE-EXAMINATION, 128.
REGISTERS,
public, copy of, admissible, 160.
forgery of, at common law, 381.
by statute, 432.
RE-GRATING, 373.
RELEASE
to and by witnesses, 112.
RELIGIOUS BELIEF
of witness, mode of inquiring into, 98.
REMUNERATION
of witnesses, 91.
REPAIRS,
indictment for not repairing bridges, 245. See Bridges.
not repairing highways, 455, et seq. See Highways*
REPUTATION. See Hearsay.
RESCUE,
nature of the offence, 723.
proof of the custody of the party rescued, id.
proof of the rescue, 724.
punishment, id.
aiding prisoner to escape, id.
offence under various statutes, id.
conveying disguise or tools to prisoners, id.
848 Index.
RES GESTJE,
hearsay admissible as part of, 20.
RESOLUTION
of public meeting, how proved, 5.
RESTITUTION
of property obtained by false pretences, 371
award of, in forcible entry, 379.
RESURRECTION-MEN. See Dead Bodies.
RETAKING,
after escape, proof of, 357, 358.
REVENUE LAWS. See Smuggling.
REVOLT,
endeavouring to make, in ship, 693.
REWARDS,
when they render a witness incompetent, 104, 108. See
Informers.
to persons apprehending prisoners, 183.
for helping to stolen goods, 312
RICK. See Arson, Stack.
RING-DROPPING.
See Addenda.
RIOT,
hearsay when admissible on prosecution for, 22.
conspiracy to create, 315.
killing rioters in suppressing riot, 635.
nature of, in general, 726.
proof of the unlawful assembling, id.
proof of the violence or terror, id.
proof of the object, private grievance, 727.
proof of the guilt of the defendants, id.
prosecutions under the riot act, 728.
proof of demolishing buildings, &c. 729.
what is a beginning to demolish, id.
RIVER,
presumption of public navigable river, 14,
a public highway, 450.
obstruction of, a public nuisance, 454.
maliciously breaking down banks of, 548.
ROAD. See Highway.
ROBBERY,
statute 7 & 8 Geo. 4. c. 29. 733.
proof of the goods taken, id.
must be in peaceable possession of prosecutor, 734.
proof of the taking, 734.
felonious intent, 735.
bon&Jide claim, id.
robbery not original intent, id.
where several are concerned, id.
after quarrel, 736.
from the person, id.
Index. 849
ROBBERY (continued.)
in presence of the owner, 737.
against the will of the owner, id.
proof of the violence, or putting in fear, 738.
degree of violence, id.
under pretence of legal or rightful proceedings, 739.
proof of putting in fear, 740.
mode of putting in fear, id.
need not be threats,-741.
colour of purchase, &c. id.
menaces and threats, 742.
degree of fear, id,
of injury to the person, 743.
of injury to property, 744.
of injury to reputation, id. to p. 752.
threat of imprisonment, 752.
must be before the taking, 754.
assault, with intent to rob, 754.
statute 7 & 8 G. 4. c. 29, id.
proof of the assault, 755.
proof of the intent to rob, id.
ROOKS,
stealing of, 509.
ROUT,
what constitutes, 730.
RULE OF COURT,
Office copy of, 156.
SACRILEGE,
Statute 7 and 8 Geo. 4, c. 29, 756.
proof of the building being a church or chapel, id.
dissenting chapel, not within the act, 757.
proof of the stealing of the goods, id.
what goods are within the act, id.
SAILORS. See Soldiers and Sailors.
SALVAGE,
assaulting persons engaged in, '215.
SAVINGS BANKS,
larcenies relating to, 505.
SCOLD ;
common scold, a nuisance, 665.
SCOTLAND,
proof of marriage in, 233 to 236.
SEA BANKS,
maliciously breaking down, 548.
SECONDARY EVIDENCE,
when admissible in general, 9.
notice to produce, id. See Notice to Produce.
loss of documents, 11.
o o 5
850 Index.
SECONDS
in duels, when guilty of murder, 611.
SEDITION,
unlawful oath to engage in seditious purpose, 666.
seditious libels, 525, 526.
SEISIN.
presumption of in seisin, fee, 14.
SELF-DEFENCE. See Justifiable Homicide..
excuse in assault, 213.
SERVANT
may justify an assault in defence of his master, 214, 638.
burglary in houses occupied by, 273, 275.
what are within the 7 & 8 Geo. 4, as to embezzlement,
339. See Embezzlement.
with regard to his wages or payment, 341.
goods in possession of, must be laid in master in larceny,
518.
publication of libel by, 580.
giving character of, no libel, 540.
may interpose in defence of his master's person or property,
638.
SESSIONS,
minute book of, effect of in evidence, 154, 155.
SEVERANCE
of goods from possession of owner, necessary in larceny,
471.
SEWERS ;
goods belonging to commissioners of, how described in
larceny, 521.
SHEEP,
stealing of, 284.
killing with intent, &c. 286.
maiming of, id.
SHERIFF,
liable for an escape, suffered by his bailiff, qutere, 356.
power to suppress riots, 726.
under not act, 728.
SHIP,
setting fire to, 208
burning, destroying King's ships, 209.
assault upon officers endeavouring to save shipwrecked
property, 217.
captain forcing men on shore abroad, 465.
larceny by, 478.
stealing from, in any port, river, canal, &c. 508.
from vessels in distress, id.
wrecked property found in possession, id.
malicious injuries relating to, 552.
destroying with intent to defraud, id.
Index. 851
SHIP (continued.)
damaging otherwise than by fire, 552.
exhibiting false lights to bring ships into danger,
553.
cutting away buoys, &c. id.
receiving anchors, &c. weighed up, id.
piracy by master or marines, 693, 694.
SHOOTING,
with intent to murder, stat. 9 G. 4. c. 31649, 650.
with intent to do some grievous bodily harm, &c. 655.
SHOP,
demolishing of, 729.
breaking and entering and stealing in, 757.
SIGNATURE
of prisoner to examination, 47.
by witness making deposition, 52.
in indictment for stealing bank note, when necessary
to be proved, 78.
want of, to promissory note, prevents the case being for-
gery, 415.
SLAVES,
conveying of, &c. piracy, 694.
SMUGGLING,
assault upon officers, endeavouring to prevent, 217.
statute 3 & 4 W. 4. c. 53. 158.
proof of assembling armed to assist in, 759.
proof of being assembled together, id.
proof of being armed with offensive weapons, id.
proof of shooting at a boat belonging to the navy, &c.
760.
proof of being in company with others having prohibited
goods, id.
service of indictment in certain cases, and entering plea
for prisoner, 761.
certain rules of evidence, id.
limitation of prosecutions, 762.
venue, 763.
SODOMY. See Unnatural Practices.
statute 9 G. 4, c. 30. 763.
proof of the offence, 764.
SOLDIERS AND SAILORS. See Greenwich Hospital.
false personation of, 360.
forgeries relating to, 438.
SOUTH SEA COMPANY ;
embezzlement by officers of, 350.
SPORT ;
death ensuing in course of, when manslaughter, 581,
585.
SPRING GUNS ;
statute 7 & 8 G. 4. c. 18. 764.
852 Index.
STABBING,
on indictment for ( 1 Jac. 1 ) prisoner might be convicted
of manslaughter, 75.
proof of, under stat. 9 G. 4. c. 31. 651.
nature of the instrument, 651, 652.
STACKS,
setting fire to, 207,
STAGE COACH,
goods stolen from on journey. See Journey.
STAMPS,
when necessary in criminal proceedings, 164.
venue in indictments for offences relating to, 189.
on policy of insurance, produced in arson, 207.
forgery of unstamped instruments, 392.
counterfeit, vending of, 394, 395.
forgery of, in general, 434.
stat. 52 G. 3. id.
55 G. 3. 435.
3 & 4 W. 4. c. 97, vending and having counter-
feit stamps in possession, 435, 436.
proof of transposing stamp, 437.
variance, id.
STATE,
matters of, privileged from disclosure, 149.
STATUTE,
proof of, 153.
private act, 154.
effect of recital in, id.
roads made by authority of, 457.
inclosure under, does not render party liable to
repair, 458.
STEALING. See Larceny.
in dwelling-house above the value of 51. 332.
any person being put in fear, 335.
in a building within the curtilage, 336.
in a shop, 757.
from the person, 486.
from vessels in port, &c., 508.
distinction between stealing and receiving, 716.
in a church, 756.
STEAM-ENGINE,
used in mine, maliciously damaging, 547.
regulations respecting, when nuisances, 662.
STOCK. See Funds.
STORES,
naval or military, embezzling, 354.
STRANGLE,
attempt to, 649.
Index. 853
STRAW,
setting fire to stack of, 207.
construction of the word, id.
STREET,
nuisances in, 453, 454. See Highways.
SUBJECTION
to power of others. See Coercion.
SUBPCENA
to compel the attendance of witnesses, 88.
whence issued, id.
duces tecum, effect of, id.
how served, id.
where witness is indifferent part of the United King-
dom, id.
for prisoner, 89.
consequences of neglect to obey, 90.
SUBORNATION OF PEPJURY,
proof of the incitement, 691.
proof of the taking of the false oath, id.
SUFFOCATE,
attempt to, 649.
SUNDAY,
process cannot be served on, 629.
SURGEON,
liable for mala praxis, 588, 591.
SURPLUSAGE,
what descriptive averments may be rejected as, 77.
in stating addition to name of prosecutor, 81.
' in use of words not used by statute, 397.
means of wounding on indictment for malicious injury, 653.
SURROGATE,
proof of acting as, 673.
false oath before, not perjury, 675.
SUSPICION
of felony, arresting on, 612, et seq.
justification of violence in defence of dwelling-house,
639, 643.
SWANS,
stealing of, 509.
SWINDLING. See Cheating, False Pretences.
TACKLE. See Machinery.
TAKING,
in larceny, 469, et seq. See Larceny.
in piracy, 695.
in robbery, 734.
TALLY,
larceny of, 505.
854 Index.
TENANTS IN COMMON.
no larceny by, 514.
property of, how laid, id.
TENOB,
effect of the word, 405, 684.
TEJIMINI
of highways, proof of, 452.
TERRIER
ancient, proof of, 160.
THOROUGHFARE ;
whether it can be a highway, 452.
THREATS,
under confession inadmissible. 29.
impression of, removed, 31.
must proceed from person having power, 33.
what amounts to a threat, 34.
must have reference to temporal object, 35.
evidence of other threats by prisoner, 71.
evidence of hand writing to threatening letter, 164.
compelling a person by, to kill himself, murder, 571.
of accusing person of unnatural practices, when sufficient
to make such a putting in fear to constitute
robbery, 744 to 752.
demanding money with menaces, 765.
statute 7 & 8 Geo. 4.C.29, id.
proof of the demand, id.
proof of the threat or force, 766.
proof of the intent, id.
proof of the thing demanded, 767.
proof of the sending or delivering of the letter, 768.
proof of the nature of the letter or writing, the
demand, 770.
accusing of murder, &c. 771.
statute 4 G. 4. c. 54. id.
proof of the sending of the letter, 772.
proof of the letter, threatening to kill or murder, id.,
accusing of infamous crime, 772.
statute? &8 G. 4. c. 29. id.
proof of the accusing, 774.
proof of the nature of the accusation, id.
proof of the view or intent, 775.
proof of the thing intended to be extorted, id.
THRESHING MACHINES,
malicious injuries to, 555.
TIME,
variance in averments as to, 84.
TOLLS ;
effect of, with regard to repairs of bridges, 248.
maliciously destroying toll-house, 549.
Index. 855
TOOLS,
coining tools, offences relating to, 308.
conveying to prisoner, to assist escape, 707.
TOWING PATH,
a public highway, 450.
TOWNSHIP
may be liable to repair a bridge, 247.
evidence in defence by, 251.
may be liable to repair a highway, 459.
former convictions against, when evidence of liability,
462.
TRADE,
conspiracies affecting, 316.
to injure an individual in his trade, 320.
forgeries affecting, 439.
what trades are a nuisance, 659, 662.
with pirates, 694.
TRADING,
proof of, 221.
TRANSPORTATION,
returning from, 775.
TRAP-DOOR,
opening of a, breaking in, burglary, 254.
TRAVERSE
in general, 175.
in coining, 310.
TREASON,
hearsay, when admissible, 21.
depositions under statute, not admissible in, 50.
proof of overt act, not laid in indictment, 57.
acts and declarations of traitors, when admissible, 60.
collateral declarations of prisoner when admissible, 71.
whether wife a competent witness, 115.
TREES,
malicious injuries to, 549.
above the value of II. in parks, &c. id.
above the value of Is. elsewhere, 550.
plants, &c. in gardens, 551.
TRESPASS ;
conspiracy to commit, not indictable, 320.
goods taken by, not larceny, 472.
what degree of violence is justifiable in resisting a tres-
passer, 643.
TRIAL ;
at assizes of, indictment found at sessions, 179.
partial, change of venue on account of, 189.
postponement of, to instruct infant witness, 95.
but not an adult, id.
plea of not guilty, puts party on, 175.
refusal to plead at, 174.
856 Index.
TURNPIKES,
goods belonging to trustees of, how described in larceny,
520.
maliciously throwing down gates, &c. 549.
UNDERWOOD ;
maliciously destroying, 549.
UNDERWRITERS
destroying ships, with intent to defraud, 552.
UNKNOWN ;
statement of stealing goods of a person unknown, 80, 518.
murder of child whose name is unknown, 566.
statement of receiving goods from person unknown, 714.
UNLAWFUL ASSEMBLY,
what constitutes, 731.
UNNATURAL PRACTICES,
threat to accuse of, a sufficient putting in fear in robbery,
744.
UTTERING
counterfeit coin, 300.
simple uttering, 301.
compound offence, id.
what makes a joint uttering, 302.
forged instruments, 397.
disposing, or putting off, 398.
what constitutes principals in, 408.
VALUABLE SECURITY,
what comprised under the term, 505.
paid reissuable bankers' notes, whether, 506.
incomplete bill not a valuable security, 507.
VALUE,
proof of in indictments in general, 86.
in prosecution against bankrupt for concealing his
effects, 225.
proof of value of goods in stealing in dwelling-house above
5/., 333.
of the thing stolen in larceny, 512.
in robbery, 734.
VARIANCE ; See Issue.
in divisible averments, 74, et seq.
in descriptive averments, 79, et seq.
in averments as to time, 84.
as to place, 85.
as to value, 86.
in arson, 202.
in statement of intent in burglary, 281.
in proof of putting off counterfeit coin, 303, 304.
in statement of ownership of dwelling-house, 334.
Index. 857
VARIANCE (continued.)
in statement of forging, 397.
of forged instrument, 405, 406.
in transposing stamp, 437.
in indictment for night poaching, 444.
in statement of highway, 452, 453.
in statement of mode of killing in murder, 577.
in statement of authority to administer oath, 674.
in statement of substance of matter sworn, 678.
in introductory averments in perjury, 683.
VEGETABLES,
in gardens, malicious injuries to, 551.
VENUE,
in case of trial of accessories before the fact, 171.
after the fact, 172.
offences committed on boundaries of counties, or partly in
one county, 185.
offences committed on persons or property in coaches em-
ployed on journies, or vessels on inland naviga-
tion, ('</.
offences committed in the county of a city, or town cor-
porate, 186.
offences committed in Wales, 187.
offences committed at sea, or within the admiralty juris-
diction, 187.
offences against excise, customs, stamps, &c., 189.
want of proper venue when cured, id.
change of, id.
in abduction, 196.
in bigamy, 242.
in not repairing bridges, 251.
in challenging to fight, 289.
in coining, 310.
in conspiracy, 327.
in escape, 355.
in forgery, 409.
in larceny, 521.
in libel, 537.
in murder, abroad, and at sea, 563.
in administering unlawful oaths, 669.
in perjury, 676.
in piracy, 693, 694, 696.
in receiving stolen goods, 722.
in prosecutions respecting smuggling, 763.
VERDICT,
not sufficient to prove witness infamous, 101.
proof of, 156.
VESSEL. See Ship.
858 Index.
VIOLENCE,
proof of, in case of forcible entry, 376.
proof of, in case of riot, 726.
proof of, in robbery, 738.
VOIRE DIRE,
examination on, 125.
VOLUNTARY ESCAPE,
proof of, 357.
VOTES
of parliament, stealing by officers of post office, 704.
WAGER,
does not render a witness incompetent, 105.
WAGES,
assault in pursuance of conspiracy to raise wages, 217 .
conspiracies to raise, 317.
WALES,
venue in case of offences committed in, 187.
WALLS,
breaking of, in burglary, 257.
WAREHOUSE,
demolishing of, 729.
breaking, and stealing in, 757.
WAREHOUSED GOODS,
embezzling, 354.
WAREHOUSEMAN,
larceny by, 480.
WARRANT
for payment of money, forgery of, 413, et seq.
stealing of, 505.
when peace officer or private person may arrest without
warrant, 613, 614, 615.
proof of, 620.
regularity of, id.
blank warrants, 621.
whether necessary before breaking open outer door to sup-
press an affray, 629.
of attorney. See Power of Attorney.
WARRANTY,
when it amounts to a false pretence, 365.
WARREN,
taking or killing hares, &c. in, 442.
WASHERWOMAN,
property may be laid in, in larceny, 515.
WEAPON;
use of deadly weapon in cases of mutual combat, 606,
et seq.
in other cases, 643.
Index. 859
WEAPON (continued.)
against trespassers, 643.
offensive, what shall be deemed, 446.
WEIGHTS AND MEASURES,
false, cheating by, 291, 293.
WIFE ; See Husband and Wife.
competency of, as a witness, 112, et seq. See Witness.
not guilty of arson by setting fire to her husband's house, 206.
justification by, in assault, defence of her husband, 213.
when competent witness in bigamy, 229.
occupation by, occupation of hei husband, in burglary, 270.
cannot be convicted of stealing in a dwelling-house, in the
house of her husband, 334.
may be convicted of forcible entry on husband's premises,379.
taking goods of her husband, not larceny, 476.
goods stolen from, must be laid as husband's property, 517.
indictable for keeping a gaming-house, 663.
or bawdy-house, 664.
witness against husband, in rape, 708.
carnal knowledge of, by a man pretending to be the hus-
band, whether a rape, 709.
liability of, on indictment for receiving, 718, 719.
coercion of, by husband, 785.
WILL,
proof of, not by parol, 2.
forgery of, at common law, 382.
though party be alive, 391.
of land, with two witnesses only, 397.
in general, 412.
probate not conclusive proof of validity, 413.
destroying or concealing, 504.
WINDOWS,
breaking of, in burglary, 255.
entry through, in burglary, 259, 260.
when peace-officers justified in breaking through, 629, 630
WITNESS,
depositions, evidence to contradict, 52.
mode of compelling the attendance of, 87.
by recognizance, id.
by subprena, 89.
by habeas corpus ad testificandum, 89.
neglect to obey subpoena, 90.
remuneration of, 91.
whether witness is bound to answer without tender of
expenses, 92.
protection of, 93.
incompetency of, from want of understanding, 94.
infants, id.
instruction of, 95.
560 Index.
WITNESS (continued.)
deaf and dumb, 95.
idiots and lunatics, id.
incompetency from want of religious principle, 96.
general rule, id.
form of the oath, 97.
questions as to religious belief, 98.
Quakers and Moravians, 99.
persons excommunicated, id.
incompetency from infamy, 100.
what crimes disqualify, id.
in what manner the conviction must be proved, 101.
competency, how restored, 102.
by suffering the punishment, id.
by pardon, id.
by reversal of judgment, 103.
incompetency from interest, 104.
nature of the interest in general, id.
rewards, id.
wagers, 105.
prosecutor, when competent, id.
informers, when competent, 108.
inhabitants, when competent, 110.
bail, incompetent, 111
interest, how removed, 112
incompetency husband and wife, id.
general rule, id.
lawful husband and wife only excluded, 113.
nature of the evidence which the husband or wife is
excluded from giving, id.
cases where husband or wife has been held incom-
petent, 114.
cases of personal violence, 115.
admissibility of accomplices, 117.
accomplices in general, id.
principal felon, 118.
accomplice, when competent for prisoner, id.
promise of pardon, 119.
effect of accomplices evidence, id.
confirmation, 120.
situation of accomplice when called as a witness, 121 .
examination of, 123.
ordering witnesses out of court, id.
at what time objection to competency must be taken,
124.
voire dire, 125.
examination in chief, 126.
cross-examination, 127.
re-examination, 128.
Index. 861
WITNESS (continued.)
questions subjecting witness to a civil suit, 129.
to a forfeiture, id.
to penalties or punishment, id.
whether they may be put, 130.
consequences of answering, 132.
consequences of not answering, id.
objection must be taken by witness himself,
133.
whether a witness is bound to answer questions
tending to degrade, id.
evidence of general character, 135.
when a party may contradict his own witness, 136.
examination as to opinion, 137.
credit of, how impeached and supported, 139.
impeached by irrelevant questions on cross-exami-
nation, id.
by relevant questions contradiction by other
witnesses, 140.
proof of former declarations in support of credit of
witnesses, 142.
privileged communications, 144.
general rule, id.
what persons are privileged, id.
form of oath to witness claiming the privilege, 146.
what matters are privileged, id.
production of deeds, &c., 147.
disclosures by informers, id.
to whom, id.
matters of state, 149.
matters before grand jury, 150.
matters of fact, id.
attorney, party to transaction, 152.
where oath of office has been taken not to
divulge, 153.
attesting witness, 161.
when waived, id.
creditor, when competent on prosecution of bankrupt, 222.
endeavouring to persuade from giving evidence, 544.
number required in perjury, 686,
credibility of, in rape, 710.
competency in particular prosecutions, in prosecution of
bankrupt for concealment, 222.
in bigamy, 114, 229.
in indictment for not repairing bridge, 251.
in forcible entiy, 379.
in forgery, 409.
in indictments respecting highway, 462.
in perjury, 686.
862 Index.
WITNESS (continued.)
in rape, 710.
in receiving, 722.
WOOLLEN GOODS. See Manufacture.
WORDS,
not a sufficient provocation in homicide, 595.
WORKMEN,
assaults and violence by, 217, 219.
conspiracies by, to raise wages, 317.
negligence of, when amounting to manslaughter, 582.
WOUND ;
construction of the word in stat. 7 & 8 G. 4. c. 30. s. 16,
(wounding cattle), 287.
death caused by wounding, when it amounts to murder,
573, et seq.
proof of wounding under stat. 9 G. 4. e. 31. 652.
construction of the word " wound" in that statute, id.
instruments used immaterial, 653.
WRECK,
stealing from, 508.
WRIT,
proof of, 157.
WRITTEN INSTRUMENTS ; See ParoL
contents of, cannot be proved by parol, 2,
what cases are not within this rule, 3. 1
appointments of persons acting in a public capacity, 7.
larceny of, 504.
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