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. 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. 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. 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 />' 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 ce 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/' 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. 4e, 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, 2in 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. 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. . 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. 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. . Wroxton, 4B.fyAd. 640, a?ia//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 . 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. . 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, 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. 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/' 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. ? 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. . 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. . 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. . 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.. 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. 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. ~ 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. 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 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. . 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 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, 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 \] 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 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. 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,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