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RULING CASES: ARRANGED, ANNOTATED, AND EDITED BY ROBERT CAMPBELL, M.A., Of Lincohi's Inn, Barrister-at-Law, Advocate of the Scotch Bar. ASSISTED BY OTHER MEMBERS OF THE BAR. WITH AMERICAN NOTES By lEVING BEOWNE, Formerly Editor of the American Reports, ^-c. ^ Subscribers for Five Volumes in advance will be entitled to them at £ 1 per Volume. OPINIONS OF THE PRESS. " A work of unusual value and interest. . . . Each leading case or group of cases is preceded by a statement in bold type of the rule which they are quoted as establishing. The work is happy in conception, and this first volume shows that it will be adequately and successfully carried out." — Solicitors' Journal. "The English Ruling Cases seem generally to have been well and carefully chosen, and a great amount of work has been expended. . . . Great accuracy and care are shown in the preparation of the Notes." — Law Quarterly Mevieiv. 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'^^' Prospectus gratis on application. *^* All Standard Law Works are kept in stock, in law calf and other bindings. A SELECTION OF LEADING CASES IN THE CRIMINAL LAW. (FOUNDED ON SHIRLEY'S LEADING CASES.) BY HENRY WARBURTON, BARBISTER-AT-LAW, OK THE INNER TEMPLE, AND OF THE SOUTH-EASTEBN CIRCUIT, AND CENTRAL CRIMINAL COURT. LONDON : STEYENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, 18912. LONDON : PRINTED BY C. F. KOWORTH, GREAT NEW STREET, FETTER LANE, E.C. K ^ ^ TO THE RIGHT HONOURABLE JOHN DUKE, LORD COLEEIDGE, LORD CHIEF JUSTICE OF ENGLAND, WHO HAS FOR SO MANY YEARS PRESIDED OVER THE COURT FOR THE CONSIDERATION OF CROWN CASES RESERVED, THIS BOOK IS 7f/xfo PREFACE. This book is founded on Shirley's Leading Cases in the Criminal Law, and my aim has been to make the present collection a handbook for practitioners as well as for students. I have given 120 leading cases which will, I think, be found to include most offences and points of procedure with which a prac- titioner in criminal law has to deal. I have dealt with the cases in the following order: — (1) General Principles of Law; (2) Offences more particularly against the State, and Offences against the Person ; (3) Offences against Property; (4) Criminal Procedure. Having had several years' experience at the Bar of the Central Criminal Court, my attention has been especially directed to cases tried there, and I have made frequent use of the cases reported in the Sessions vi PREFACE. Papers of that Court,* in addition to the well-known Reports. My thanks are due to my friend Mr. Sydney W. KnoXj of the South Eastern Circuit, for much valu- able help during the preparation of this book for the Press. I may add that I have verified in the original reports the references to all the cases which have been cited. I ventm-e to express a hoj)e that, so far as it goes, this work may be found of some assistance to those who are engaged in, — " Mastering the lawless science of our law, That codeless myriad of iDrecedent, That wilderness of single instances." — Tennyson. H. W. 14, Outer Temple, January, 1892. * Published by Stevens and Sons, Limited, 119 & 120, Chancery Lane. CONTENTS PAGE Twose 1 Jordan 2 Michael 4 Manning . . . . 7 Lee and Scott, 9 Stubbs 12 Gregory 14 Brown 16 Owen , 19 Oxford , 21 Cruse , 24 Torpey ..,.., , 26 Tyler , . 31 GENERAL PRINCIPLES OF CRIMINAL LAW. 1. Intention R. 2. Principals - 3. Agents , - 4. Accessory before the Fact - 5. Accessory after tbe Fact - 6. Accomplices - 7. Incitement - 8. Attempt - 9. Infancy as an Excuse for Crime - 10. Insanity as an Excuse for Crime - 11. Drunkenness as an Excuse for Crime - 12. Coercion by Husband - 13. Compulsion - 14. Corporations R. v. Birmingham and Gloucester Rail. Co. 33 15. Liability of Master for Acts of Servant R. v. Stephens 37 OFFENCES MORE PARTICULARLY AGAINST THE STATE, AND OFFENCES AGAINST THE PERSON. 16. Treason Felony B,. v. Gallagher. ... 39 17. Foreign Enlistment — Sandoval .... 43 18. Offences against Foreign Sovereigns — Bernard .... 45 19. Unlawful Assemblies Beatty v. Gillbanks 49 20. Forcible Entry Lows v. Telford .... 51 21. Refusing to Aid a Constable B,. v. Sherlock 53 22. Prize Fighting — Orton 54 23. Presence at a Prize Fight — Coney 56 24. Unnatural Offences — Jellyman .... 57 25. Libel — Adams 58 26. Perjury— Competent Jurisdiction — Hughes 60 27. Perjury— Materiality — Tyson 63 f'oXTEXTH. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. PAGE Compounding Crimes R- ^'- Burgess 67 Bigamy— .Bowrt fide Belief in Death — Tolson 72 Bigamy— Invalidity of Second Marriage — Allen io Uttering Counterfeit Coin — Hermann .... 77 Concealing Treasure Trove B. «'. Thomas and Willett 79 Conspiracy R. i. Orman 81 Conspiracy— Must be of Two at least ■. — Manning 84 Receiving Lunatics in Unregistered House — Bishop 85 Obstructing Trains — Hadfield 87 Abduction — Prince 89 Stealing Children under Fourteen — Johnson 91 Abandonment and Exposure of an Infant — Falkingham . . 93 Concealment of Birth — Brown 94 Burning, and Disposing of, Dead Bodies — Stephenson . . 97 Public Indecency — Crunden .... 99 Keeping a Disorderly House , R. r. Rice and Wilton 101 Homicide — Necessity R. r. Dudley and Stephens 102 Homicide — Real Cause of Death R. v. Pym 105 Homicide — " Constructive Murder" R. t'. Serne and Goldfinch 108 Homicide by Correction R. r. Hopley 110 Homicide — Provocation Homicide — Neghgence Homicide — Neglect of Duty Unlawful and Malicious Wounding, and Causing Grievous Bodily Harm Abortion — Administering Noxious Thing Abortion — Supplying Noxious Thing Rape — Consent and Submission , Rape — Character of Prosecutrix Coramimicating a Venereal Disease Fisher 112 Salmon 113 Morby Latimer Cramp . , Hillman Flattery Riley . . . , Clarence 115 117 120 124 126 128 130 OFFENCES AGAINST PROPERTY. 57. Value of Property stolen R. 58. Stealing Wild Animals — 59. " Corjjus Dehcti" _ 60. ' ' Asportation " in Larceny 61. Stealing from Automatons] _ 62. Stealing from Co-partners — 63. Extortion by Frightening 64. Threat to accuse of an Infamous Crime — 65. Sovereign mistaken for a ShiUing _ 66. Larceny through mistake of Post Office Clerk — V. Edwards . . . . 132 Townley . . . . 133 Dredge . 135 Poynton , . . . 136 Hands . 138 Robson . 139 McGrath ... . 140 Redman . . . . 142 Ashwell . . . . 144 Middleton . . . . 147 COXTFNTS. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. Larceny by Finder R- ^'- Thurborn Larceny by a Bailee — Persons Employed to Sell appropriating Money Received Larceny by Trick Distinction between Larceny and False Pretences.. — False Pretence by Conduct — False Pretences by means of Worthless Cheques . . — Promissory False Pretences — Intent to Defraud in False Pretences — Puffing not Indictable — Prosecutor not Deceived by False Pretence — Remoteness in False Pretences — Hiring by False Pretences — Previous False Pretences — False Pretences — Inchoate Instrument — Receiving Stolen Goods — Recent Possession — " Other Property Stolen " — Embezzlement — Forgery — Burglary '. Arson — Goods in Building — Damage to Property — Poachino* Osbond v. Meadows 1 96 Armed Poaching by Night 'R. v. Sutton 199 Fraudulent Banki-uptcy — Peters 201 Personation — Hague 204 Intimidation Smith v. Thomasson 205 PAGE Thurborn . . . . 149 Wynn . 153 Do Banks . . . . 156 Buckmaster . . 158 Solomons . . . . 160 Barnard . . . . 102 Hazelton . . . . 164 Jennison . . . . 167 Naylor . 169 Bryan . 170 Mills . 172 Martin . 173 Kilham . 175 Francis . 176 Bowerman , ,. 177 Schmidt . . . . 180 Partridge . . . , 182 Carter . 183 Negus . 185 Martin . 188 Hughes . 190 Child . 193 Fisher . 195 95. 96. 97. 98. 99. 100. 101. CRIMINAL PROCEDURE. Extradition In re Castioni 209 Admiralty Jurisdiction R. v. Keyn 211 Trial of Peers of the Realm Arrest Interrogation of Prisoners by the Police Notice to Produce Amendment of Indictment , 102. Setting out Material Passages in Indictment .... — 103. The Counts of an Indictment 104. Defect in Indictment Cured by Verdict , Lord Audley .213 Cumpton .... 215 Mick 217 El worthy .... 218 Welton 221 Bradlaugh and Besant .... 222 Castro 224 Goldsmith .. 226 X CONTENTS. PAGE 105. Autrefois Acquit B,. v. O'Brien 228 106. Autrefois Convict — MUes 230 107. Witnesses Unable to Travel — Stephenson . . 233 108. Character of Witnesses H. v. Brown and Hedley . . 236 109. Duty of Counsel when Conducting Prosecutions .. R. v. Berens , 237 110. Order of Counsel Addressing Jury — Reply — Bums 240 111. Statement of Prisoner although Defended by Counsel — Doherty .... 242 112. Effect of Misreception of Evidence — Gibson 246 113. Criminal Law Amendment Act, 1885 — E\idence.. — Paul 248 114. Confessions under Inducements — Fennell 250 115. Dying Declarations — Jenkins 252 116. Exclamations as Part of the Ees Gestae — Bedingfield . . 254 117. Restoration of Property on Conviction Vilmont v. Bentley . 256 118. Wives Prosecuting Husbands R. v. Lord Mayor of London, . 258 119. New Trials B,. v. Duncan .... 260 120. Torts and Felonies Wells v. Abrahams. 261 LIST OF LEADING CASES. PAGE Adams, "R. v 58 Allen, 'R. v 7-5 ashwell, h. v 144 AuDLEY (Loed), K. V 213 Baenaed, E. V 162 Beatty v. Gillbanks 49 Bedingfield, R. V 254 Beeens, E,. f , 237 Beenaed, R. V 45 BlEMINGHAM AND GlOUCESTEE Railway Company, R. v 33 Bishop, R. v 85 boweeman, r. v 177 Beadlaugh and Besant, H. v. . . 222 Beown, R. V 16 Beown, R. V 94 Beown and Hedley, H. V 236 Beyan, H. V 170 Buckmastee, R. V. 158 BtTEGESS, B,. V. , 67 BuENS, R. V 240 Caetee, R. V 183 Castioni, In re 209 Casteo, R. v 224 Child, R. v 193 Clarence, R. v 130 Coney, R. v 56 Ceamp, R.v 120 Cetjnden, R. V 99 Cetjse, R. V 24 CUMPTON, R. V. 215 De Banks, R. t' 156 Doheety, R. V 242 PAGE Deedge, R. V 135 Dudley and Stephens, R. v 102 Duncan, R. v 260 Edwaeds, R. V 132 Elwoethy, R. V 218 Falkingham, R. V 93 Fennell, R. V 250 FiSHEE, R. V 112 FxsHEE, R. V 195 Flatteey, R. V 126 Feancis, R. ■y 176 Gallaghee, R. V 39 Gibson, R. v 246 Goldsmith, R. v 226 Geegoey, R. V 14 Hadfield, R. V 87 Hague, R.v 204 Haijds, R. V 138 Hazelton, R. v 164 Heemann, R. i) 77 HiLLMAN, R. V 124 HOPLEY, R. V 110 Hughes, R. v 60 Hughes, R. v 190 Jelltman, R.v 67 Jenkins, R. v. 252 Jennison, R. V 167 Johnson, R. v 91 joedan, r.v 2 LIST OF LEADING CASES. PAGE Keyn, R. r 211 KiLHAir, R. r 175 Latimeb, R. r 117 Lee and Scott, R. r 9 LoED Mayor of Londox, B,. v. . . 258 Lows V. Telfoed ol McGeath, R. r 140 Mankinq, R. t' 7 Manxinq, H. V 84 Maetin, R. r 173 Maetin, R. r 188 Michael, R. r 4 Mick, R. r 217 MlDDLETOX, R. t' 147 Miles, R. v 230 Mills, R. r 172 MOEBY, R. f 115 Nayloe, R. I' 169 Negus, R. r 185 O'Beien, U. V 228 Oeman, B,. V 81 Oeton, R. t; ... 54 OsBOXD V. Meadows 196 Owen, R. V 19 OxFOED, R. r 21 Paeteidoe, R. t' 182 Paul, R. v 248 Petees, R. V 201 PoYNTotr, R. V 136 FAQB Peince, R. r 89 Pym, R. v 105 Redman, R. v 142 Rice and Wilton, R. v 101 RiLBY, R. V 128 RoBSON, R. V 139 Salmon, R. V , 113 Sandoval, R. v , 43 ScHifiDT, R. r 180 Skene and Goldfinch, R. v 108 Sherlock, R. v 53 Smith v. Thomasson 205 Solomons, R. v 160 Stephens, R. v. , 37 Stephenson, R. v 97 Stephenson, R. v 233 Sttjbbs, R. V 12 Sutton, R. v 199 Thomas and Wlllett, R. v 79 Thueboen, R. V 149 ToLSON, R. V 72 ToEPEY, R. V 26 TOWNLEY, R. V 133 TwosE, R. t; 1 Tylee, R. V , 31 Tyson, R. v 63 ViLMONT V. Bentley 256 Wells v. Abrahams 261 Welton, R. V 221 Wynn, R.v 153 LIST OF CASES CITED. PAGE Adams, B. v 149, 161 Adams v. Masters 198 Aden, R. v 156 Adlington, H. V , 188 AicKLES, n.v 219, 220 Aitkin, H. v 188 Allen, H. v 58, 213 Allen r. England 52 Allen v. Thompson 198 Allison, B,. v 76 Almon, E,. v. , 39 Andeeson, H. V 212 Andeews, E. f 4, 13, 201 Ansett, R. i' 63 Ansteuthee, R. V 188 Appleby v. Franklin 263 Aechee, R. «; 29, 164 Aedley, R. i" 171 Aemsteonq, R. f 213 Aextndel, R. v 13 Aspinall, n. V 224, 228 Asterley, R. r , 164 Atkinson, R. i' 149 Attwood v. Joliffe 52 Austin, R. v 201 Babcock v. Lawson 258 Back v. Holmes 51 Badcock, R. f 4 Bailey, R. v 188, 191, 192 Baillie, R. V 90 Bain, R. r 19 Ball, R. v 19, 171, 247 Ball, Ex parte 263 PAGE Balls, R. v 188 Banks, R. v 31 Bannen, R. V 6 Barber, R. v 240, 241 Baeham, R. v 201 Barker, R. v 130, 221 Barker t;. Davis 199 Baenett, R. V 4 Baeeett, R. V 75, 92 Barton, R. v 23 Basil, R. V 188 Bate, R. v 97 Bates, R. V 168 Batson v. Donovan 145 Batstone, R. V ] 94 Bauld, R. V 83 Bearcock, R. V 188 Beck, R. v 204 Beqkwith, R. V 242 Beddall v. Maitland 52 Bell, R. v 242 Bellencontee, In re 210 Belton, R. V 241 Benabo, R. V 63 Bennett, R. «;. ..39, 74, 130, 131, 190, 192 Bent, R. v 205 Bernard, R. v 210, 241 Bereiman, R. v. .'. 96, 218 Beeteand, R. V 260, 261 Bevan v. Hopkinson 201 BiLLINGHAM, R. V 55, 56 Bingley, R. V 4 BiRCiiALL, R. r 115 Bird, R. r 191, 230 XIV LlfiT OF rA.SE,S L'lTED. TAGE BiBKETT, R. r 13 BrEMINOHAM AND GLOUCESTER Ratl-way Company, R. f 36, 39 BiRNiE r. Marshall 198 Bishop, R. i' 2 BispHAN, R. r 236 Biswell, R. «' 91 Bjoensen, R. t' 213 Blades v. Higos 133, 135 Bleasdale, R. f 6 BOALEE, R. v 60 Bodkin, R. f 218 BOLTEE, R. V 120 BooBEE, R. V , 20, 31 Booth, R. v 90 Boucher, R. r 143, 24G BOULTBEE, R. t' 199 BouLTON, R. f t . 175 BowEN, R. t' 4 BowEES, R. I' 187 BowLEE, R. f 205 BowjiAN, R. v 233 Beackenbeidqe, R. f 190 Beadshaw, R. f 114 Beawn, R. t' 9,76 Beaynell, 'R. V 143 Beice, R. V 191, 240 Beittleton, R. f 259 Beomley, R. t' 143 Beooke, R. ■!; 60 Beooks, R. V 31, 135, 201, 253 Beown, R. t'. .18, 53, 55, 191, 192, 205 Beown r. "Woodman 221 Beownlow, "R. V 188 Beyan, R. V 174 Buchanan v. Hardy 86 Buckmastee, R. v 161 Bull, R. v ....164, 235 Bullock, R. v 196 Buncombe, "R. v 30 Burden, Re 204 BuEDETT, R. V 60, 240, 241 BuEKE, R. V 42 BUELEY, R. V 251 BUEEELL, R. V 91 BuEEOWS, R. V 192, 242 BuET r. Burt , 76 PAGE BuETON, R. v 4, 11, 23, 136, 174 Bush v. Steinman 38 Butcher, R. v 6 butteefield, r. v 11 butteeis, r.v 4 butteewoeth, r. v 140 Buttle, R.v 63 Calbeaith, R. f 191 Callan, R. v. , , 191 Calvert, R. v 143 Cape'vell, R. V 201 Carey, R. i; 217 Caegalis, R. V , 210 Caepentee, R. V 188 Caee, R.v...., 188, 212 Carrell, R. V 192 Caeruthers, R. V 143 Caeter, R.v 192 Caetweight v. Geeen 146, 152 Casbolt, R. V 201 Case, R.v 127, 128 Caton, R. V 4 Cattell v. Ireson 199 Central Criminal Court, J J. of, R.v 257 Chalking, R. v 192 Chalmers, R. v 143 Chamberlain, R.v 233 Chambers, R. tJ 190 Chapman, R.v 19, 62, 188, 216 Chapplb, R. V 11 Cheafor, R. V 135 Cheeseman, R. V 19, 111 Cherry, R. V 137 Child, R. v 52 Childees, R. V 171 Christian, R. V 188 Christie, R. r 242 Christopher, R. v 152 Clarence, R. j; 120 Claek, R. V 20, 96, 100, 230 Claeke, R.v 97, 130, 132 Clay, R.v 130 Claybuen, R. 17 192 Clayton, R. v 4 Cleaey, R. V 253 LIST OF CASES CITED. XV PAGE Clegg, R. i- 63 Clements, R. v 235 Clewes, R. v 251 Cliitoed, E.. V 6 Closs, R. r 190 CocKBxmN, R. V 235 COCKEOFT, R. v 130 CoDD r. Cabe 198, 216 Coffin, 'R. v 153 COGHLAN, R. f , 143 Cohen, R. v 31 Cole, R. v 58, 204 Coleman f. Bathuest 198 Coles, R. «; 62 COLEY, R. V 187 Colliee, R. v , . 251 Collins, R. v 16, 17, 18, 244 Collins v. Thomas 52 COLLISON, R. v 4 COLMEE, R. t' 96 Coney, R. i' 4 CONNELL, R. V , 230 CoNNOE V. Kent 207 CONOLLY, R. V 31 Cook, R. i' 97, 189 Cook v. Cox , 223 Cooling, "R. v 251 CooPEE, R. V. ..9, 143, 163, 182, 242 Coots, R. V 183 COPELAND, R. •y 108 Copley, R. V 241 COENWELL V. SaUNDEES 199 COEY, R. V 135 COSLET, R. V 137 ConxsoN, R. V 163 CoxjNHAYE, In re 210 County, R. w 4 couetney, r. v 66 COUEVOISIEE, R. f 240 Cox, R. V 83, 120 Cox V. Reid 198 CoziNS, R. V 58 Ceab, R. v 171 Ceacknell, R. V 142 Ceamp, R. V 205 Ceeese, R. V 204 Ceick, R. V 201 page Cridland, R. V 198 Ceitchlow, R. i' 198 Ceonmiee, R. V 150 Ceoxtchee, R. V 235 Ceowhhest, R. V 183 Ceoydon, R. v 251 Cehnden, R. V 143 Ceuse, R. V 29 Ceutchley, R. ■!' 32 Cuddy, "R. v 4 CuLLUM, R. r 188 Cunningham, R. v 24 6 CUEETON v.R. , 201 CURGEEWEN, R. V 74 CuEL, R. V 60, 224 CUENOCK, R. V 201 CuEEAN V. Teeleavan , 207 cuetis, r. v 117 Dade, R. v 4 Dahle, R. V 245 Dalmas, R. V 253 Dammaeee, R.v 40, 42 Dann, R. V 230 Daet, R.v 2 Davenpoet, R. V 149 Davies, R. V 23 Davies v. R 201 Davis, R. v. .A, 22, 25, 107, 182, 191, 192, 201 Day, R.v 201, 218, 235 Deasy, R. r 42 Deaves, R.v 153 Delamotte, R. V 42 Deebyshiee Justices 198 Deeham, R. V 97 Dereington, R. V 251 Dicks, R. v 31 Dillon, R.v 52 DiXBLANC, R. V 242 Dixon, R. v 23, 31, 38, 153 DoDD, R. V 16 Doddridge, R. v 201 doherty, r. v 25, 115 DOLAN, R. V 180 DONALLY, R. t' 141 XVI LIST OF CASES CITED. PAGE DooDY, R. t' 26 Douglas, R.f 162,168 DovTEY, R. t' 3, 7 DowNES, R. I' 91,116 Dowse, R. r 240 DowsELL, R. r 3, 201 Dkage, R. r 181, 184, 185 Deuitt, R. v 83 DtTGDALE, n.v 19, 223 Dtjncombe v. Daniell 240 Dunn, R. v 63, 189 Dunning, R. f 63 Dwekeyhouse, 'R. V 23 Dyee, H.v 244 Dykes, R. z' 31 Dyson, R. v 4 Eagle, R. r 113 Eaoleton, R. f 19 Easteen Counties Rail. Co. v. Beoom 39 Eaton, R. V 3,201 Edmeads, R. t' 4 Edwick v. Hawkes 52 Eggingtox, R. t' 192 Ellicombe, R. t- 220 Elliott, R. ^' 100 Ellis, R. r 205 Eleington, R. V 233 Emden, R. f 230 d'Eon, R. «• 48 Evans, R. «; 107,183,192 Eveeett, "R. V 245 Ewington, R. V 03 ExALL, R. V , 183 Eaielie, R. V 66 Fallon, R. r 11 Fanning, R. v 76 Faenham, R. r 97 Faerell, R, r 100, 235 Faeuow, R. t' 124 Feist, R. i; 98 Feeens r. O'Beien 132 Feeguson, R. r 226 PAGE Feeeees, Loed, R. t' 22 Fielding, R. v 201 Finucane, R. V 201 Flannagan, R. V 176, 192 Fletchee, R. V 63 Fletchee v. Calthoepb 201 Fletchee v. Rylands 39 Flowbe v. Sadlee 72 Flowees, R. t' 147 Fogaety, R. V 240 Foeeestee, R. V 253 Fosij:e, R.v 171, 255 FouLKES, R. V 186 FowLEE, R. V 261 Fox, R. V 205 Feances, B.. V 23 Feay, R. V 113 Feench, R. V 75,190 Feetwell^ R. V 9,' 119, 126 Feost, R. V 40, 42, 222 Fey, R. i; 168,201 FuiDGE, R. V 247 Fullaghee, "R.v 188 Fuesey, R. V 51 Gainee, R. r 201 Gale, R. v 188 Galliaed v. Laxton 216 Gamble, R. t; 18 Gamlen, R. 1' 26 Gaednee, R. V. ....35, 142, 153, 174, 240, 242 Gaenee, R. t' 251 Gaenham, R. V 201 Gaeeett, R. V 156 Gascoigne, R. r 240 Gavin, B,. v. 218, 251 Gayloe, R. 1' 9 Geeeing, R. r 176 Geoege, R. V 97 Gibbon, R. t- 66 Gibbons, R. v 74, 192 Gibson, R. v 192, 201 Gibson v. Lawson 207 GiLBEET, R. 4' 192 Giles, R. r 6, 164, 107, 168 LIST OF CASES CITED. PAGE GrILHAM, R. V 251 GiLi.ES, R. f 98 GiLLiNGS, R. r 149 GiLMORE, R. «; 229 GiMSOJf V. WOODFULL 262 GlEDWOOD, R. I' 143 GissoN, R. r 230 Glostee, R. r 253 Glyde, R. V 152 GODDAKD, R. t> 255 GOGAETY, R. V 97 GOGEELY, 'R. V 4 GoLBSMiTH, R. «' 224, 228 Good, R. r 31 GooDE, R. )■ 23, 97 GooDFELLOw, R. i' 201, 235 Goodman, R. r 205 GoEDON, R.v 168, 191 GoEDON, Lord George, R. v. . .42, 48 Gould, R. v 230 Graham, R. V 188 Gray, R. t; 14,120,176 Geeat Noeth of England Rail- way Company, R. i' 35, 39 Geeathead, R. i; 174 Geeen, R. r 230 Geeenacee, R. r 11 Geeenland, R. r , 63 Geeexwood, R. V 4 Geegoey, R. t; 9 Geegoey v. R 222, 226 Geey, R. I' 100 Grice, R. V 201 Geiffin, R. V Ill Griffith v. Haeeies 199 Griffiths, R. v 204 Grim-wade, R. r 143 GuERiN, In re 210 GuMBLE, R. V 222 GUENEY, R. V 240 GuTCH, R. V 39 Gtttteridge, R. e- 253 Hadfield, R. r 66 Haines, R. r 115, 191 Hall, R. v 188, 191 PAGE Hallett, R. V 63 Halliday, R. V 19 Halloway, R. V 1 97 Hambleton, R. V 13 Hamilton, R. i" 143 Hammond, R. v 31 Hancock, R. v 180, 192 Hanks, R. t- 63 Hardy, R. v 88 Haee, R. c 60 Hargrave, R. I' 55 Harland, R. V 52 Harmer, R. V 183 Harper, R. r 179, 190 Harrington, R. v 4, 113 Haeeis, R. V 100, 183, 192, 194, 222, 235, 251 Hart, R. v 179 Hartley v. Hindmaesh 231 Harvey, R. t' 161, 171 Harwood, R. r. 184 Haslam, R. t' 205 Hassall, R. «' , . . . . 156, 157 Hawkins, R. r 4 Hayes, R. r 241 Haynes, R. i' 23 Haywaed, R. V 113, 253 Hazell, R. V 235, 241 Hazelton, R. «' 163 Head, R. c ,. 135 Heaen, R. V 204 Heaene v. Gaeton 39 Heaton, R. r 75 Heeson, R. r 235 Hegaety v. Shine 131, 132 Hemming, R. v 204 Hendy, R. V 143 Henkees, R. r 91 Hennah, R. V 122, 123 Henshaw, R. V 164 Henslee, R. r 19, 173 Hewitt, R. r 83, 97 Heymann V, The Queen .... 224, 228 HiBBEET, R. r 83, 89 HicKES, SiE Baptist, R. r 60 HioKLiN, R. r 2 Hickman, R. r 143 b LIST OF CASES CITED. PAGE HiCKSON, E,. v 188 HiGoiNS, R. f 14 Hiaas, R. r 192,201 HiGLEY, R.r 97 Hill, R. v 192 HiNES, n.r 117 HoAEE, R. V 52, 156 Hodges, R. v 23 Hodgson, R. r 130 HOLBEOOK, R. V 60 HOLCEOFT, R. V 230 HoLDEN V. King 233 Holland, R. v 107 HoLLis, R. V 9, 123, 149 Hollow AY, R. v 19, 164 HoLiiAN, R. r 241 Holhes, R. «• 100, 130 Holt, R. V 176 HoMEE V. Cadman 51 Honey, R. v 78 Hook, R. v 63 HoEAN, R. V 258 HOENBY, R. V 4 HoENE, R. V 224 HOENEE, R. t" 251 HOESEY, R. V 110 HoETON, R. V 74 HoEwooD r. Smith 258 HowAED, R. r 91, 131, 210 Howe, R. v 224 Howell, R. v 4, 82, 253 Howes, R. v 251 hubbaed, r. v 253 Htjggins, R. V 39 Hughes, R. v. ..97, 117, 183, 187, 188 HuGUET, Ex- parte 210 Hull, R. v 201 Hunt, R. r 118,119,187 Hunter, R. r 164, 224 HUEEELL, R. V 63 HuESE, R. V 4 HUESFIELD, R. V 239 Hyde, Ex parte 199 Hyde, R. f 199 Ingeam, R. V , 31 Isaacs, R. v 122, 126 PAGE Jackson, R. V 4,149,163,167 Jacobs, R. v 58 Jacobson, R. «' 98 James, R. v 4, 169, 222 Jaeeald, R. V 192 Jaevis, R. V 11, 251 Jeffeey, R. V 117 Jeffeies, R. V 4 Jenkin v. King 199 Jenkins, R. v 13 John, R. v 31 JoHi.soN, R. V 63, 191 Johnston, R.v 168 Jones, R. r...4, 75, 115,143,149,172, 185, 188, 191, 192, 201, 213 Jones v. Dickee 199 Jones v. Dowle 92 Jones v. "Williams 198 joedan, r. v 4, 241 JuBY, R. V 202 Kain, R. t' 143, 241 Kay, R. V 76, 149, 190 Kayley, R. V 199 Keaes, R. V 206 Kelly, R. f 4,113 Kendeick, R. V 200 Kennett, R. r 51 Keneick, R. V 83 Ken-xon v. Haet 198 Keee, R. V 152, 218, 251 Kew, R. V 115 KiLMINSTEE, R. r 201 King, R. v 11, 13, 23, 188 Kingston, R. v 251 Kingston, Countess of v. O'Neal 199 Kinneesley, R. r 85 Kipps, R. «; 91 KlEKHAM, R. i; 113 KlEKWOOD, R. V 4 KiTSON, R. t' 220 Knewland and Wood, R. v 141 Knight, R. v. . .31, 153, 183, 224, 230 Laboucheee, R. v. Lake, R.v 60 205 LIST OF CASES CITED. PAGE Langher, R. «' 31, 251 Langmead, R. f 182, 183 Lapiee, R. r 137 Laekin, R. t' 222 Laenee, 'R. v. , 174 Laughee v. Poyntee 38 Law, R. V 23 Laweence, R. V 191 Latee, R. r 224 Layton, R. «' 23 Lea, R. V 233 Leatt v. Vine 199 Ledgee, R. V 115 Lee, R. r 4, 168, 171 Legg v. Paedoe 198 Leigh, R. » 23 Lemon v. Simmons 259 Lesley, R. v 213 Levine, R. V 171 Lewis, R. i; 19, 191 Leyman v. Latimee 60 Lindsay v. Cundy 258 LiTHGO, a. V 192 Little, R. v 149 LiTTLECHILD, R. r 198 Littleton, R. i' 240 LiVEEPOOL (Mayob and Coepoea- TiON of) R. ■?' 34 Lloyd, R. v 19, 61, 253 Lock, R. f 127 Loczett, R. r 167 Long, R. v 198, 242 longbottom, r. « 115 Longsteeeth, 'R. V 149 Lonsdale v. Rigg 133 Looks, R. v 78 Lopez, R. v 213 lovell, r. v 141 LovESAY 1). Stallaed 198 Luck, R. f' 4 Ltjmley, R. V 75 Lynch, R v 1 13, 235 Lynn, R. «-• 98 Lyons, R. r 192, 194. 213 page Macdaniel, R. I' 107 Maddy, R. r 112 Malins, R. r 246 Mankletow, R. -y 89 Mannees, R. t' 4 Manning, R. r 9, 11, 31 Maxzano, R. r 246 Maekin, R. V 75 Maeks, R. 1' 222 Maesden, R. V 128, 242 Marshall, R. v 76, 235 Maetin, R. ». .,19, 100, 119, 130, 167, 192, 205, 241, 261 Maslin, R. t' 241 Mason, R. v 224, 242 Mastees, R. t' 187 Mastin, R. «• 4 Matthews, R. v 31 Maund v. Glamoeganshiee Canal Co 34 Maueee, R. w 210 May, R. «; 97,182,201 Mayhew v. Waedley 198 McAuBEEY, R. v 242 McCall «'. Tayloe 179 McDonald, R. « 147,156 McGiNNES, R. V 31 McIntyee, R. V 106 McMahon, R. v 181 McMakin, R. « 4 McNatjghten, R. V 22 McPhane, R. ■;; 4 McPheeson, R. r 19 Mead, R. v 253 Meadham, R. v 201 Meadows, R. v 241 Meakin, R. V 26 Meal, R. r 191 Meaney, R. V 42 Medley, R. v 38 Megson, R. t; 128 Meeey, R. « 201 Meeey v. Geeen 144, 146, 153 MiAED, R. ?• 143 Middleton, R. V 146, 147 Midelton v. Gale 198 Milhouse, R. I' 245 h2 LIST OF CASES CITED. PAGE MlLLEE, R. f ^^ MiLLiGAN, R. r 253 MiLLis, R. r 76 MiLNEE V. Maclean 52 MiSSELBEOOK, R. t' 117 MissLLicH V. Lloyds 60 MocKFORD, R. r 136 MOLAND, R. V 4 Mole, R. r 153 MONKHOUSE, R. V 2o Mooney, R. r 253 MooEE, R. V 26, 38, 74, 153, 251 Mooes, R. r 220 MoEDEN i\ Poetee 198 MoEiGGiA, R. f 204, 241 MoEEis, R. r 9, 31, 97, 132, 233 MOETON, R. V 189 Most, R. r 46 Moyce v. Newington 256, 257 mulcahy 1'. r 42 MULLANY, R. t' 66 MULEEATY, R. r 58 MUNDAY, R. i' 9 MuEPHY, H.v 4, 55, 226, 261 MuETOx, R. V 107 Mycock, R. v 91 Nally, R. t^ 246 Nash, IL. v 110 Natteass, R. t' 195 Neale, R. V 50 Neville, R. v 97, 222 Newton v. Haeland 52 NicHOLLS, R. V 19, 85, 116 NiCKLESS, R.v. , 3, 201 NiCKLiNG V. Heaps 258 Nlxon, R.v. 97 noakes, r. v 13 Noon, R.v 113 NoEEis, R. V 192 NoETON, R. V 143 NULANO, R. » 91 0'Beien,R. r 191 O'CoNNELL V. The Queen 84 Oddy, R. V 184 PAGE Oldham, R.v 192 Olifiee, R. V 90 Olivee, R. V 1^9 Olpin, R. V 251 Opib, R. r , 97 Oechaed, R.v 100, 222 Oeeell, R.v 240 OSBOEN V. GiLLETT 263 Osboene, R. V 128 OsMAN, R. V 253 Owen, R. v 4, 201, 250 oxenham, r. v 156 Oxfoed, R. V. 42 Packee, R. I- 91 Page, R.v 77,240 Paine, R.v 192 Palmee, R.v 60, 201 Paekee, R.v 165, 189, 192, 201 Paekee v. Pateick 258 Paekins, R. v 246 Paenell, R. V 81 Paee, R.v 205 Paeey, R. r 230 Passey, R.v 3, 201 Payne, R.v 13, 201 Peaece, R. V 23, 149 Peaeson, R. V 25 Peat, R. v 76 Pedley, R.v 38 Peel, R.v 253 Peee v. Humpheey 258 Peltiee, R. v 48, 60 Pembliton, R. T 118,196 Peezes, R. V 191 Peekins, R. V 4, 55, 56, 253 Peeeot, R.v 224 Peeey, R.v 97, 122, 123, 245 Petch, R. V 134 Petees, R. V 153 Phillips, R. v 18, 233, 235 Phillips v. Baenet 260 Phillips and Cole, R. r 207 Philpotts, R. V 66 PiCKFOED, R. V. , 143 Pieece, R. V 153, 204 LIST OF CASES CITED. PAGE Pike, R. v 253 PiNNEY, R. «; 51 PipPETT v. Heaen 224: Pitts, R. r 107 Plant, R. v 230 Poll, R. v 195 Pope, B,. v 152 Popplewell, R. V 224 Poetee, R. V 86 POETUGAL, R. V 179 Pottee, R. V 192 Potts, R. v 4, 205 Powell, R. v 164 Powell v. Hoyland 159 Powis, R. V 204 Peatt, R. V 197, 198, 201 Peestney, R.v 198, 201 Peeston, R. V 153 Peice, R. v 31,98,201 Peiest, R. V 218 Peince, R. V 2, 149 Peingle, R. V 205 Peitchaed, R.v 222 Peoud, R. V 63, 188 PUDDICK, R. V 240 PUGIN, R.v 60 Pywell, R. V 83 Quail, R. v. , , 9 Randell, R. V 164 Rankin, R. v 113 Ransfoed, R. V 15, 19, GO Read, R. v 135 Reed, R.v 100 Reedie v. London and Noeth Westeen Railway Company . , 39 Reekspeae, R. V 58 Rees, R. V 117 Ree¥e, R. V 75, 251 Reeve v. Wood 260 Regan, R. v 247 Reiglehuth, R. V 246 Reust, R. V 168 Reynolds, Ex parte 201 page RiCHAEDS, R. V 11, 23, 142, 251 RlCHAEDSON, R. V 170, 188 Richmond, R. v , 150 RiDEE, R.v 246 Ridley, R. v 201 Riley, R. v 147, 201, 235 Ritson, R.v 181, 183, 190 ROBEETS, R. V 19, 191 robeetson, r. v 143 Robins, R.v 58, 130 Robinson, R. i'....135, 143, 156, 191, 204, 226 Robinson v. Robinson and Lane. 84 Robinson v. Vaxjghton 199 Robson, R. V 156, 159 Roche, R. v 230 Roderick, R. v 19 Roe, R.v 135 Roebuck, R. v 170, 172 RooPE v. D'AviGDOB 263 Rose, R. v , 104 Rosinski, R. v 128 Ross, R.v 245 rothwell, r. v 112 Rowed, R. v 58 Rowlands, R. ^' 83 Rowton, R. V 236 rundle, r. v 86 Russell, R.v 9, 39, 191 Rust, R.v 191 Rymes, R.v 222 Sacheveeell, R. t' 223 St. Geoeoe, R. v 19 Salvi, R. V 230 Sampson, R. v 188 Sanders, R. «' 192 Sanderson, R. v 201 Sattlee, R. t; 213 Saundees, R. V 100 ScAiFE, R.v 235, 260, 261 SCATTERQOOD V. SyLVESTEE 258 SCOEEY, R.V 24 1 Scott, R. v 66, 230 scotton, r. v 198 Scully, R. v 153 LIST OF CASES CITED. PAGE Searing, R. f 135 Searle, R. t' 23 Seberg, Sven, R. r 213 Sedley, Sir Cuaeles, R. f 99 Sefton, R. f 192 Serxk, n.v 241 Sharpe, R. t' 98 Sheen, R. t; 230 Shepherd, R. » 117, 143, 196 Sheppard, R. r 4 SlIICKLE, R. I' 135 SuiMiriN, R. r 245 Sicilies, King op the Two v. Wilcox 36 SiDDON, Att.-Gen. «' 39 Sill r. R 224 SiMMONDS, R. r 21 Simpson, R. v 137 Sinclair, R. r 131 Skeet, 'R. V 4 Skellow, R. t' 88 Sleep, R. t- 96 Small v. Warr ., 2 Smith, R. v 31, 63, 78, 113, 117, 140, 143, 182, 183, 191, 192, 253 Smith v. Tottng 220 Smyth, R. f 52 Scares, R. r 9 Solomons, R. r 159 SOUTHERTON, R. V 143 Southey, R. r 23 Spanner, R. r 191 Sparling, R. v 224 Speed, n. v 168 Spencer, R. t- 188, 201 Spicer v. Barnard 198 Spilsbury, R. t' 251 Squire, R. v 186 Stacey r. Whitehitrst 198 Stainer, R. «' 187 Stancliffe, R. «; 258 Standley, R. r ., 4 Stanger, R. r 62 Stanton, R. v 128,233 Start, R. v 120 Stennel v. Hogg 227, 228 Stephens, R. t^ 246 PAGE Stevens r. Midland Ry. Co 39 Stewart, R. v 4 Stock, R. v 192 Stoessiger v. S. E. Ry. Co 179 Stokes, R. r 23, 218 Stone, 'R. v 63, 68 Stone v. Stone and Appleton . . 84 Stopfoed, R. v 119 Story, R. t' 164 Strange, R. ■y 83 Stratford-upon-Avon (Mayor AND Corporation of), R. v 35 Steatton, R. t' 104 Stroulger, R. 1' 228 Studd, R. w 52 Sturge, R. v 222 Summers v. City Bank 260 Suter, R. V 171 Swallow, R. v 191 swtndall, r. v 115 Syeds v. Hay 155 Tacey, R. V 196 Taffs, R. t' 188 Tait, R. V 235 Tancock, n.v. 233 Tannet, R. v 205 Taebox, R.v 224 Tate, R. v 66 Tatlock, R. t' 188 Taylor, R. ■y 9, 55, 83, 143, 230, 232, 246, 253 Teasel, R. v 246 Tenant v. Goldwin 39 Teste, R. v 246 Thallman, R. V 100 Thistlewood, R. r 243 Thomas, R. v 26, 161, 241, 253 Thompson, In re 233 Thompson, R. v. .A, 13, 97, 137, 192, 205, 235 Thompson v. Trevanion 255 Thornton, R. v 218, 251 TiMMINS, R. f 91 TiNCKLER, R. v 13, 247, 253 TissiNGTON, R. r 130 LIST OF CASES CITED. PAGE TiTE, R. t; 188 TiTLET, n.v 125, 222 TOAKLEY, E.. V 242 TOMLINSON, 'R. V 201 ToNKiNSON, ~R. V 156, 157 Toole, R. v 80 TowEES, R. «' 107 Townsend, R. V 65 Teeyelli, R. V 24 1 TUCKEE, R. t' 191 TUCKWELL, R. i' 9 TUEBEEVILLE V. StAMPE 38 TUENBULL, R. v 188, 251 TuENEE, R. V. ..74, S3, 192, 201, 205 TtTENEE V. MOEGAN 199 TtJEEELL, R. t' 195 TuETON, R. V 23 Tylee, R. t' 4 Tymms, R. V 222 Tyeee, R. v 187 Uezzell, R. V 4, 201 Utting, R. v. , , 62 Vaile, R. 17 205 Vamplew, R. y 20 Vandeecom, R. r 230 Vann, R. r 98 Vass, R. r 241 Veysey t;. HosKiNS 201 Vincent, R. v 50, 222 Vint, R. V 48 Vyse, ~R.v 23 Wagstaff, R. V 143 Walkee, R. V...21, 115, 188, 233, 234 Walkee v. Matthews 258 Walking, R. v 246 Wall, R. r 199, 207 Walne, R. v 163, 167 Walsh, R. v 137, 159 Waltees, R. r 192 Walton, R. r 143,210 Waebueton, R. «' 82 Waed, R. V 91, 120 PAGE Waedeopee, R. V 31 Wateeage, R. t> 97 Watees, R. V 242 Watkins v. Majoe 199 Watson, R. v 23, 99, 100, 171 Watts, R. r 18 Wavell, R. r 167 Waymaek, R. t' 253 Wealand, R. v 249 Webb, R. v 99 Webstee, R. V 222 Wegeeee, R. V 60 Welch, R. v 78, 196 Wellaed, R. V 100 Wellings, R. t' 234, 235 Wellock v. Constantine 263 Welsh, R. r 113 Welton, R. r 235 Wemyss v. Hopkins 233 Wenmouth, R. V 192 Wesley, R. f 201 West, R. t- 4, 153, 168 Westeen, R. V 222 Weston, R. v 246 Westwood, R. r 192 Wheeldon, R. t' 191 Whiley, R. t' 176 Whitchuech, R. i' 124 White, R. v 4, 94, 1S9, 246, 253 White v. Gaeden 258 White v. Spettigue 262 Whitehouse, R. «' 261 Whiteley v. Chappell 205 Whitfield v. South Easteen Rail- way Company 39 Whithoene, R. t' 4 Whittakee, R. f 3, 201 Whybeow, R. i' 63 Whyte, R. r 189 WicKEE, R. ■y 235 WicKHAM V. Phillips 205 WiDDOP, R. V 204 WlLBEAHAM V. SnOW 155 Wild, R. v 251 Wiley, R. r 181 Wilkes, R. r 224, 226 WiLKINS, R. f 19 XXIV LIST OF CASES CITED. PAGE Wilkinson, "R. v 137, 187 Wilkinson v. Button 233 WiLKS, R.v 201 Williams, R. v 97, 169, 189, 201, 224, 235, 244 Williamson, R. t' 171 WlLLOrOHBY, R. V 113 WiLLsiiiRE, R. r 75 Wilshaw, r.v 235 Wilson, R. f...52, 123, 156, 161, 183, 235 Wilton, R. v 235 WiNNALL, R. r 188 Wisdom v. Hodson 198 Withers, R. r , 182 Wollaston, R. r 127 WOLSTENHOLME, R. V 188 Wood, R. «^ 201,241 WooDALL, In re 210 Woodman, R. v 168 PAGE Woodstock, R. v 252 woodwaed, r. v 31, 181 WooLLEY, R. V 173, 188 WOEGEK, R. V 78 WOEKEE, R. I' 201 " WoELD," The, R. r 60 woeley, r. v 66 Weight, R.v 23, 222 Wynne, R.v 152 Yaeboeough v. Bank of England 34 Yates, R. v 63, 143 Teadon, R. «" 261 YoEK, R. r 20 Yoeke, R. V 153 Young, R. v 4, 55 Young and Muezzell, R. v 76 YscuADO, R. V 240 lEADIM CASES IN THE CRIimAl LAW. Intention. R. t'. TWOSE. (1879) [1] [14 Cox, C. C. 327.] The prisoner was indicted for having set fire to some furze growing on a common, and it appeared from the evidence that persons living near the common had occasionally bm-nt the furze to improve the growth of the grass, although the existence of any right to do this was denied. The prisoner denied having set the furze on fire at all. It was contended on the prisoner's behalf that, even if it were proved that she set the furze on fire, she could not be found guilty if it appeared that she hona fide believed that she had a right to do so, whether the right were a good one or not. Lopes, J., said: "If she set fire to the fm^ze thinking she had a right to do so, it would not be a criminal offence. I shall leave two questions to the jury, — 1. Did she set fire to the furze ? 2.. If yes, did she do it wilfully and maliciously ? " [C. W. Mathews for the prosecution; BuUen for the prisoner.] Intention lias been defined as the fixing tlie mind upon tlie act, and tbinking of it as of one wliicli will be performed wlien the time comes, and such intention must be a state of mind forbidden by the law. The guilty state of mind, or criminal intention, is generally known by the term mens rea, and is thus necessary to the legal conception of crime. w. a 2 INTENTION. Si)eaking generally, an act cannot amount to a crime ■when it is not accompanied by tlie mens rea ; but wben an act is done of which the probable consequences may be highly injurious, the nuns rea, or criminal intention, is an inference of law resulting fi'om the doing of the act ; thus the publication of obscene matter is a punishable offence, although the defendants had no thought of depraving the public morals. Examples of this are the publishing and selling of a work entitled ' ' The Fruits of Philosophy," for which some years back a prosecution was instituted against Mr. Bradlaugh and Mi's. Besant. A recent verdict in the prose- cution of the Eabelais Gallery is to the same effect. Moreover, when the statute law expressly declares that a thing shall not be done, it becomes ipso facto illegal to do it. Malice, in its legal sense, only imports the existence of the criminal intention, and has no reference to the motives. In the case of E. v. Dart, 14 Cox, C. C. 143, the jirisoner was charged with having thrown her child into the water with intent to drown, &c., under 24 & 25 Vict. c. 100, s. 14, and it was held necessary to prove that the prisoner had the will and intention at the time to kill the child. In a colliery certain horses were worked while suffering from raw wounds. T. was an owner, and S. was the certificated manager, but neither was proved to be i^resent or to have any notice or knowledge of the state of the horses : — Held, that the justices were wrong in convicting S. of ni-treating the horses under 12 & 13 Vict. c. 92, s. 2, merely because he was certificated manager, and that some knowledge of the matter was an essential ingredient of that offence. (Small v. Warr, 47 J. P. 20 ; vide also E. V. Bishop, 14 Cox, C. C. 404, in which the defendant was con- victed under 8 & 9 Vict. c. 100, s. 44, of receiving two or more lunatics into her house, not being a registered asylum or hospital, or a house duly licensed under the Act.) Other cases on the question of intention are — E. v. Tolson, 23 Q. B. D. 168 (bigamy), vide post, p. 72; E. v. Prince, L. E. 2 C, C. E. 158 (abduc- tion), vide post, p. 89; and E. v. Hickhn, L. E. 3 Q. B. D. 360, "The Confessional Unmasked." Prhicipals. [2] R. V. JORDAN AND OTHERS. (1836) [7 C. & P. 432.] In. this case a room door was latched, and one person lifted the latch and entered the room and concealed himself for the purpose of committing a robbery there, which he afterwards accomplished. Two other persons were present with him at the time he lifted the latch, for the purpose of assisting him to PlilNOIPALS. 3 enter, and screened him from observation hy opening an umbrella. It was held that the two were in law parties to the breaking and entering, and were answerable for the robbery which took place afterwards, though they were not near the sj)ot at the time when it was perpetrated. It was also held that where the breaking is in one night, and the entry the night after, a person present at the breaking, though not present at the entering, is in law guilty of the whole offence of bm-glary. [Campbell, A.-Gr., Adolphus, Barlow, Bodkin, and Chambers for the prosecution ; Andrews, Serjt., C. Phillips, Clarkson, Payne, and Jones for the prisoners.] A prmcii:»al may be in tlie first degree, or he may be in tbe second degree. A principal in tlie first degree is one who actually takes part in the commission of the crime ; but it is not necessary that he should be present at the place where the crime is consummated, or he might accom- plish his purpose by means of an innocent agent, as where a man tells a child to bring him money belonging to a third person. ( Vide R. v. Dowey, 11 Cox, C. 0. 115.) A princij)al in the second degree is where one aids and abets the com- mission of a crime, as where one of a party of robbers keeps watch at a distance from the scene of the robbery. These distmctions, however, are of no practical importance. Where two persons go out to fight a deliberate duel, and death ensues, all persons who are present encouraging and j)romoting that duel will be guilty of murder ; but mere presence at a duel is not sufficient to make spectators principals in the combat. If, however, they sustain the prin- cipals, either by advice or assistance, or go to the ground for the purj)ose of encouraging and forwarding the unlawful conflict, although they do not say or do anything, yet, if they are present assisting and encouraging by their presence at the moment when the fatal shot is fired, they ai-e, in law, guilty of murder. If a man encourages another to commit suicide, and is present abetting him while he does so, such person is guilty of murder as a principal. By 24 & 25 Vict. c. 94, s. 8, whosoever shall aid, abet, counsel, or procure the commission of any misdemeanour, whether the same be a misdemeanour at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and j)unished as a j^rincipal offender. There are a large number of cases on the question of j)rincipals, such as — ■ R. V. Whittaker, 2 C. & K. 636 ; R. v. Eaton, 2 Den. C. C. 274 ; R. v. Dowsell, 6 C. & P. 398 ; R. v. Passey, 1 C. & P. 282 ; R. v. Nicklcss, S C. & P. 757 ; 4 PRINCIPALS. E. V. Andi-ews, 2 M. & Eob. 37 ; E. v. Hawkins, 3 C. & P. 392 ; E. v. Jones, 2 Cox, C. C. 185 ; E. v. UezzeU, 3 C. & K. 150 ; E. v. Edmeads, 3 C. & P. 390 ; E. v. WHthorne, 3 C. & P. 394 ; E. v. Skeet, 4 F. & F. 931 ; E. V. Luck, 3 F. «& F. 483— all of wliicli are cases connected with the crime of i^oaching. Other cases in point are :— E. v. Potts, E. & E. C. C. 353 ; E. v. Cuddy, 1 C. & K. 210 ; E. V. Young, 8 C. & P. 644 ; E. v. Manners, 7 C. & P. 801 ; E. V. Jones, 9 C. & P. 761 ; E. v. West, 2 Cox, C. C. 237; E. v. Dyson, E. & E. C. C. 523; E. v. M'Phane, Car. & M. 212 ; E. v. M'Makin, E. & E. C. C. 333 ; E. v. Murphy, 6 Cox, C. C. 340 ; E. v. Butteris, 6 C. & P. 147; E. V. James, 24 Q. B. D. 439; E. v. Gogerly, E, & E. C. C. 343; E. V. KeUy, E. & E. C. C. 421 ; E. v. Owbu, 1 M. C. C. 96; E. v. Davis, E. & E. C. C. 113; E. v. Jeffries, 3 Cox, C. C. 85; E. v. Jordan, 7 C. & P. 432 ; E. V. Badcock, E. & E. C. C. 249 ; E. v. Bingley, E. & E. C. C. 446 ; E. V. Kirkwood, 1 M. C. C. 304 ; E. v. Dade, 1 M. C. C. 307 ; E. v. Stewart, E. & E. C. C. 363 ; E. v. Tyler, 8 C. & P. 616 ; E. v. White, E. & E. C. C. 99; E. V. Standley, E. & E. C. C. 305 ; E. v. County, 2 Euss. C. & M. 180, 272; E. V. KeUy, 2 Cox, C. C. 171 ; E. v. Hornby, 1 C. & K. 305; E. v. Hurse, 2 M. & Eob. 360; E. v. Sheppard, 9 C. & P. 121 ; E. v. Barnett, 2 C. & K. 594 ; and 3 Cox, C. C. 432 ; E. v. Murphy, 6 C. & P. 103 ; E. v. Caton, 12 Cox, C. C. 624 ; E. v. HoweU, 9 C. & P. 437 ; E. v. Mastin, 6 C. & P. 396; E. V. Harrington, 5 Cox, C. C. 231 ; E. v. Collison, 4 C. & P. 565 ; E. V. Lee, 4 F. & F. 63 ; E. v. Jackson, 7 Cox, C. C. 357 ; E. v. Bowen, C. & M. 149 ; E. v. Perkins, 5 Cox, C. C. 554 ; E. v. Greenwood, 5 Cox, C. C. 521 ; E. v. Coney, 15 Cox, C. C. 46 ; E. v. Perkins, 4 C. 6 P. 537; E. V. Burton, 32 L. T. 539; E. v. Thompson, 11 Cox, C. C. 362; and 21 L. T. 397; n.v. Moland, 2 M. C. C. 276; E. v. Clayton, 1 C. & K 128. Agents. [3] R. V. MICHAEL. (1840) [9C. &P. 356; 2 M. C. C. 120.] The prisoner, Catherine Michael, was indicted for the murder of her iufant child, G-eorge Michael, ly poison. It appeared AGENTS. 5 that the deceased was a child between nine and ten months old, and that the prisoner was its mother, and was a single woman living in service as wet niu'se at Mrs. Kelly's, in Hunter Street, Brunswick Square. The child was taken care of by a woman named Stevens, living at Paddington, who received five shillings a week from the prisoner for its support. A few days before its death the prisoner told Mrs. Stevens that she had an old frock for the child, and a bottle of medicine, which she gave her, telling her it would do the baby's bowels good. Mrs. Stevens said the baby was very well, and did not want medicine ; but the prisoner said it had done her mistress' baby good, and it would do her baby good, and desired Mrs. Stevens to give it one teaspoonful every night. Mrs. Stevens did not open the bottle or give the child any of its contents, but put the bottle on the mantle-piece, where it remained till Tuesday, the 31st of March, on which day, about half-past four in the afternoon, Mrs. Stevens went out, leaving the prisoner's child playing on the floor with her children, one of whom, about five years of age, during the absence for about ten minutes of his elder sister, gave the prisoner's child about half the contents of the bottle, which made it extremely ill, and in the course of a few hom's it died. The bottle was found to contain laudanum. The prisoner said that a young man, an assistant of Dr. Keid's, had given the bottle by mistake. This was proved to be untrue ; and Dr. Raid stated that in the course of a conversation he had with the prisoner, she used these remarkable words, speaking of the death of the child, and the probability of an inquest being held upon the body : " If I am hanged for it, I could not support the child on my wages." It was also proved that the prisoner purchased the laudanum at a chemist's in Tavistock Place, Russell Square, saying it was for her mistress, Mrs. Kelly, who was in the habit of taking it, being a bad sleeper. One of the medical men examined at the trial said that a teasj)oonful administered to a child of the age of the deceased would be sure to destroy Life. The jmy found the prisoner 6 AGENTS. guilty. The judgment was respited that the opinion of the judges might be taken whether the facts above stated con- stituted an administering of the poison by the prisoner to the deceased child. At a subsequent session, Mr. Baron Alderson, in j)assing sentence upon the prisoner, said that the judges were of opinion that the administering of the j)oison by the child of Mrs. Stevens was, under the circumstances of the case, as much, in point of law, an administering by the j)risoner as if the prisoner had actually administered it with her own hand. They therefore held that she was rightly convicted. [Hyland for the prosecution; Ballantine for the prisoner.] If a man does, by means of an innocent agent, an act wliicli amounts to a felony, tlie employer, and not the agent, is accountable for the act. (E. V. Bleasdale, 2 C. & K. 765.) If A. by letter desii'es B., an innocent agent, to wiite the name of S. to a receipt on a post-office order, and the innocent agent does it, believing that he is authorized so to do, A. is a principal in this forgery ; and it makes no difference that, by the letter, A. says to B. that he is at liberty to sign the name of S. , and does not in exj)ress words direct him to do so. (E. V. Clifford, 2 0. & K. 202.) The prisoner employed a die sinker to make, for a pretended innocent purpose, a die calculated to make shillings. The die sinker, siispecting fraud, informed the Commissioners of the Mint, and under their direc- tions made the die for the purpose of detecting the iirisoner; — Held, that the die sinker was an innocent agent, and the prisoner rightly convicted as a principal under 2 & 3 Will. 4, c. 34, s. 10. (E. v. Bannen, 1 C. & K. 295.) Where a prisoner, charged with uttering a forged note to A., knowing it to be forged, gave forged notes to a boy who was ignorant of that fact, and directed him to pay away the note mentioned in the indictment at A.'s for the pnrchase of goods, and the boy did so, and brought back the goods and the change to the prisoner :— Held, that it was an uttering by the prisoner to A. (E. v. Giles, 1 M. C. C. 166.) B. was one of many persons employed whose wages were paid weekly at a pay-table. On one occasion, when B.'s wages were due, the prisoner said to a little boy, " I wiU give you a penny if you will go and get B.'s money." The boy went innocently to the pay-table, and said to the treasurer, "I am come for B.'s money;" and B.'s wages were given to him :— Held, that the prisoner might be convicted of obtaining the money by false pretences. (E. v. Butcher, 8 Cox, C. C. Tt; and 28 L. J. (M. C.) 14.) The prisoner, knowing that some old country bank notes were valueless. A CCESSOB Y BEFORE THE FA CT. 1 gave them to a man to pass, telling him to say, if asked about them, that he had taken them from a man he did not know. It was held that the prisoner was guilty of obtaining money by false pretences. (E. v. Dowey, 11 Cox, C. C. 115.) Accessory before the Fact. R. V. MANNING. (1852) [4] [Dears. C. C. 21 ; 6 Cox, C. C. 86; 22 L. J. (M. C.) 21 ; 17 Jur. 28.] Michael Manning and John Smith were tried at the Man- chester Borough Sessions on the 5th of August, 1852, for steahng, on the 17th of July, twenty-four bags, the property of John Sheridan. The prosecutor was a potato dealer, and used bags in that trade ; and he also dealt largely in bags which he bought and sold. The prisoner Manning had been for several years in the prosecutor's service, and had the care of his warehouse, in which the bags were kept. The prisoner Smith had for five years regularly supplied the prosecutor with bags, which he made, and from time to time, when he had finished a lot, his custom was to take them and put them down at the warehouse door of the prosecutor, outside the warehouse, and very shortly after any bags had been so left, either he or his wife, but generally his wife, used to come to receive payment for them from the prosecutor. On the night of the 16th July, the pro- secutor had a quantity of marked bags in his warehouse. On the morning of the 17th July, the prisoner Manning went into his master's warehouse and brought out twenty-four of the bags which had been so marked by his master on the pre\'ious night, and put them down outside the warehouse, by the door, at the place where Smith used to deposit the bags he brought for the prosecutor, and for which he had to be paid. Shortly after Manning had brought the prosecutor's bags out of his ware- house, and so placed them at the door, Smith's wife came 8 ACCESSOBY BEFORE THE FACT. and asked for payment for tliem, as for bags that lier hus- band had brought that morning. Upon this Smith was sent for, and was told what his wife had said, and the bags, which were then lying where Manning had placed them, were pointed out to him, and he was asked whether he had brought those bags there ; he said yes, he had brought them there an hour before, and that his wife had been working at them till twelve o'clock the night before, in order to finish them. " Nay," said the prosecutor, " those bags are mine." " Yes," replied Smith, " they will be yours when you have paid for them." Upon this the prosecutor pointed out to the two prisoners, Manning being then also present, the mark that had been put upon the bags the night before. The prisoners were then given into custody. The recorder told the jmy that, if they were satisfied that Manning brought his master's bags out of the warehouse, and placed them outside by the door in the manner stated, for the purpose of enabling Smith to receive payment for them fi-om his master, and with the intent that he should do so as if they had been new bags just then finished by Smith, and for which he would be entitled to be paid, that that would be larceny ; and that if they were satisfied that this had been so done by Manning, in pm'suance of previous concert and arrangement between him and Smith, that Smith, though absent when the bags were so removed out of the warehouse, would be accessory before the fact to the felony. The jury said that they were satisfied that the bags had been so removed out of the warehouse by Manning, for the purpose and with the intention aforesaid, and that the same had been done in pursuance of a previous arrangement between him and Smith, and they found both the prisoners guilty. The question reserved for the opinion of the Com-t of Crown Cases Reserved was whether these facts amounted to larceny. The Com-t held that the finding of the jury was right, and that Smith was an accessory before the fact. [Cross for the Crown.] ACCESSORY BEFORE THE FACT. 9 By 24 & 25 Vict. c. 94, s. 1, whosoever shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any Act passed or to be passed, may be indicted, tried, con- victed, and punished in all respects the same as if ho were a j^rincii^al felon. By sect. 2, whosoever shall counsel, procure, or command any other person to commit any felony, whether the same be a felony at common law or by virtue of any Act passed or to be passed, shall be guilty of felony, and may be indicted and convicted either as an accessory before the fact to the j)rincii)al felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony whether the jirincipal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may bo punished. A., a married woman, in the lifetime of her husband, married B., a widower : — Held, that if B. knew at the time of his marriage with A. that she was a married woman, he might be convicted of the felony of coun- selling A. to commit bigamy. (E. v. Brawn, 1 C. & K. 144 ; and 1 Cox, C. C. 33.) A person cannot be indicted under the 24 & 25 Vict. c. 94, s. 2, for counselling another to commit a felony, unless a felony is actually com- mitted by such other person. (E. v. Gregory, L. E. 1 C. C. E. 77; 36 L. J. (M. 0.) 60 ; and 10 Cox, C. C. 459.) Other cases are : — E. v. Quail, 4 F. & P. 1076 ; E. v. Munday, 2 F. & F. 170 ; E. V. Tuckwell, Car. & M. 215 ; E. v. Morris, 2 Leach, C. C. 1096 ; E. V. Scares, E. & E. C. C. 25 ; E. v. Fretwell, 9 Cox, C. C. 152 ; E. v. Hollis, 28 L. T. 455 ; E. v. Manning (the murder of Mr. O'Connor), 2 C. & K. 903 ; E. v. Cooper, 5 C. & P. 535 ; E. v. Gaylor, 7 Cox, C. C. 253 ; E. V. Taylor, L. E. 2 0. C. E. 147 ; E. v. Eussell, 1 M. C. 0. 356. Accessory after tJie Fact. R. V. LEE AND SCOTT. (1834) [5] [6 C. & P. 536.] The prisoner Lee was indicted for stealing eleven 10/. jiro- mi&sory notes and eleven pieces of paper in the dwelling-house of Messrs. Stephens & Co., and the prisoner Scott was charged 10 ACCESSORY AFTER THE FACT. as an accessory after the fact. It appeared that the prisoner Lee, who w-as a lad of seventeen years of age, and whose family lived in Reading, was a clerk in the banking-house of Messrs. Stephens at that place, and that the prisoner Scott was aged twenty-three, and that his family had gone to reside in America. It was proved, that, for some time before the 21st of Jime, 1834, when the felony was committed, the prisoner Lee was in the daily habit of coming to the room of the prisoner Scott, and that he did so on the evening of the 21st of June, after the banking-house had closed, and consequently after stealing the notes, and stayed twenty minutes. It fm'ther appeared, that, on that evening, the two prisoners proceeded together in the stage coach to Bristol, and after that by mail to Liverpool, where both the prisoners were apprehended, each of them having a number of Spanish dollars in his possession. It appeared that the places in the coaches for both prisoners were paid for by the prisoner Lee. The prisoner Lee had made a confession in writing ; and it was also proved that the prisoner Scott said, that they were going to America. "Williams, J., in summing up, said, "In considering the question, whether the prisoner Scott is guilty of receiving, harbouring and maintaining the prisoner Lee, you ought to look at the relative situations of the parties. You find that Lee is a boy who is connected with Reading in the most intimate manner, and that he being a clerk in a banking-house is frequently going to the room of Scott, who is a man whose friends are in America. You next find that the banking-house is robbed, and that the two prisoners go off together, evidently on their way to America. It is for you to say whether the elder prisoner did not suggest to the younger that he would not only aid his escape to America, but go off with him ; and is it not manifest that the boy was encouraged by the man?" The jury found both prisoners guilty. [Talbot and Cripps for the prosecution ; Curwood and Car- rington for the prisoners.] A CCEBSOR Y A FTER THE FA CT. 1 1 By 24 & 25 Vict. c. 94, s. 3, ■whosoever sliall become an accessory after the fact to any felony, whether the same be a felony at common law or by virtue of any Act jjassed or to be passed, may be indicted and convicted either as an accessory after the fact to the principal felony, together with the principal felon, or after the conviction of the jDrincipal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished. By sect. 4, every accessory after the fact to any felony (excej^t where it is otherwise specially enacted), whether the same be a felony at common law or by virtue of any Act passed or to be passed, shall be liable, at the discretion of the Court, to be imprisoned in the common gaol or house of correction for any term not exceeding two years, with or without hard labour, and it shall be lawful for the Court, if it shall think fit, to requii'e the offender to enter into his own recognizances and to find sureties, both or either, for keeping the peace, in addition to such piinish- ment ; provided that no person shall be imprisoned under this clause for not finding sureties for any jDcriod exceeding one year. An accessory after the fact is one who, knowing that a felony has been committed, helps or harboui-s the felon. A mfe, however, may imder such circumstances, screen her husband. In treasons and misdemeanoiu's all are principals. (E. v. Burton, 13 Cox, C. C. 71.) Accessories after the fact indicted with principal. (E. V. Eichards, 13 Cox, C. C. 611.) H. and S. broke open a warehouse, and stole thereout thirteen firkins of butter, which they carried along the street thii'ty yards; they then fetched the prisoner, who was apprised of the robbery, and he assisted in carrying away the property ; he was indicted for theft : — Held, that he was only an accessory, and not a principal. (E. v. King, E. & E. C. C. 332.) Other cases are : — E. v. Eichards, 2 Q. B. D. 311 ; E. v. Greenacre, S C. & P. 35 ; E. V. Chappie, 9 C. & P. 355 ; E. v. Butterfield, 1 Cox, C. C. 39 ; E. V. Jarvis, 2 M. & Eob. 40 ; E. v. Manning, 2 C. & K. 903 ; E. v. Fallon, 9 Cox, C. C. 242. 12 ACCOMPLICES. Accomplices. [6] R. V. STUBBS AND OTHERS. (1855) [Dears. C. C. 555; 25 L. J. (M. C.) 16 ; 1 Jui-. X. S. 1115.] The prisoner and tliree others were indicted at Quarter Sessions with stealing some copper. Three accompKces swore that Stubbs assisted in taking some of the copper and selling it to a marine store dealer. The latter, being called, stated that the three other prisoners were the parties who brought the copper and sold it to him. No other evidence was adduced against fetubbs, but the accomplices were corroborated in other particulars with regard to the three other prisoners. The chairman directed the jury that it was not necessary that the accomplices should be confirmed as to each indi\-idual prisoner being connected with the crime charged, that their being cor- roborated as to material facts, tending to show that two of the other prisoners were connected ^dth the larceny, was sufficient as to the whole case, but that the jury should look with more suspicion at the evidence in Stubbs' case, where there was no corroboration, than to the cases of the others, where there was corroboration, but that it was a C[uestion for the jury. The jury found all the prisoners guilty. The question for the opinion of the Court of Crown Cases Reserved was, whether the direction of the chaii-man was right. The Court held that if the jury chose to act on such evidence only, the conviction could not be quashed as bad in law. ACCOMPLICES. 13 "We cannot interfere," said Jervis, C. J., "thougli we may regret the result tliat has been arrived at, for it is contrary to the ordinary practice. It is not a rule of law that accomplices must be confii'med in order to render a conviction valid, and it is the duty of the judge to tell the jury that they may act on the unconfirmed testimony of an accomplice ; but it is usual in practice to advise the jury not to convict on such testimony alone, and juries generally attend to the judge's direction, and require confirmation. But it is only a rule of practice." [Grray for Crown.] The evidence of an accomplice, although admissible, is naturally regarded with very great suspicion. Not only is the witness necessarily a person of damaged character — not only is he presumably anxious to save himself and please the authorities — but also he shows, by the very fact of his betraying his friends, that he is destitute of the most elementary notions of loyalty and honour. The rule of practice, therefore, which requii-es that he shall be corroborated has become so well established that it is now almost (but not quite) a rule of law. The corroboration should be not only as to the circumstances of the crime itself, but also as to the piisoner's having been impHcated in it. {Vide E. r. Birkett, 8 C. &P. 732.) The evidence of other accomplices is, of course, not corroboration. (E. r. Noakes, 5 C. & P. 326.) Xor will the evidence of the wife of an accomplice carry the case any further, for husband and wife must be taken as one for this purpose. A judge is not entitled to direct an acquittal as a matter of course in a case where there is no sufficient con- firmation of an accomplice's evidence. He cannot do more than give the jury his advice, and tell them how important it is, for the protection of innocence, that no one should be convicted except on the testimony of at least one reliable witness. Where an accomplice in giving evidence against two prisoners is con- firmed as to his statement against one of them, it ought not to ojierate as a confiimation of his statement against the other. (E. v, Jenkins, 1 Cox, C. C. 177.) A prisoner jointly indicted with another, and pleading guilty, may be called as a witness for the prosecution, or for the other prisoner (Lord Denman's Act, 6 & 7 Yict. c. 85). (E. v. King, 1 Cox, C. C. 232.) Other cases on the subject of accomplices are: — E. v. Andrews, 1 Cox, C. C. 183 ; E. V. Arundel, 4 Cox, C. C. 260 ; E. v. Hambleton, Sessions paper, C. C. C. Sept., 1865 ; E. v. Payne, 1 C. C. E. 349; E. v. Thompson, 1 C. C. E. 377 ; Margaret Tinckler's Case, 1 East, P. C. 354. 14 INCITEMENT. Incitement. [7] R. V. GREGORY. (1867) [L. E. 1 C. C. E. 77 ; 36 L. J. (M. C.) 60 ; 16 L. T. 388 ; 15 W. E. 774 ; 10 Cox, 0. C. 459.] The prisoner was indicted at the Borough Sessions at Leeds for inciting a person named John White, a servant of one James Kirk, to steal a bushel of hay the property of James Kirk his master. The second count of the indictment merely varied the date, and in a third count, the prisoner was charged with inciting John Wbite and two other servants of the said James Kirk to steal barley, the property of their master. The indictment charging a misdemeanour, the jury were sworn accordingly. There was evidence upon all the counts of the indictment in proof of the offence charged, but no one of the three servants named stole any barley in compliance with the defendant's solicitations or otherwise. Counsel for the defence submitted that the incitement t) commit a felony was not a misdemeanour but a felony ; and that the indictment, therefore, not charging the incitement and solicitation to have been done " feloniously " was bad ; he cited R. v. Higgins, 2 East, 5, and R. v. Grray, Leigh & Cave, C. C. 365. The prisoner was convicted, and the question reserved for the consideration of the Court of Crown Cases Reserved was, whether, since the passing of the 24 & 25 Vict. c. 94, it is a misdemeanour to solicit and incite a servant to steal his master's goods, though no other act be done except the soliciting and inciting ; and the Com-t held that the oifence of soliciting and inciting a man to commit a felony is, where no such felony is actually committed, a misdemeanour only, and not a felony under the 24 & 25 Vict. c. 94, s. 2, which only applies to cases where a felony is committed as the result of the counselling and procuring therein mentioned. Said Kelly, C. B., " The fii'st question is, whether a soliciting and inciting is equi- INCITEMENT. 15 valent to a counselling and procuring, so tliat an allegation of the former would sustain a conviction upon a statute making the latter an offence. It is not necessary to decide that point now ; but we must not be taken to hold that an indictment founded upon a statute could be sustained, if, instead of the words of the statute, it used other words which might have a different signification. The second question is, whether the soliciting and inciting, or, indeed, the counselling and procuring (if we may supply those words), a man to commit a felony, are within the 24 & 25 Vict. c. 94, so as to make the soliciting and inciting a felony, although no principal felony be committed. Looking at the structure of the section, and construing it by the ordinary rules of grammar, it is impossible to put that construc- tion upon it. There can be no accessory to a felony, unless a felony has been committed. Here there was no principal felony; and, therefore, the prisoner's offence was a misde- meanour only, and he has been properly convicted." [Waddy for the prosecution ; C. Foster for the prisoner.] * Tliis case shows that the inciting a man to the commission of a crime is a misdemeanour, although such incitement may not result in the actual commission of the crime. An attempt to incite is also a misdemeanour. A count in an indictment charged that the prisoner unlawfully, wickedly and indecentlj' did write and send to H. a letter, with intent thereby to move and incite H. to attempt and endeavour feloniously and wickedly to commit an unnatural offence, and by the means aforesaid did unlawfully attempt and endeavour to incite H. to attempt to commit the crime afore- said : — Held, that the count charged an indictable misdemeanour. The evidence was that H. was a boy at school, and that he had received two letters from the prisoner, which he read, but that when he received the one mentioned in the above count he did not read it, nor was he in any way aware of its contents, but handed it over to the school aiitho- rities : — Held, that the sending the letter proved the attempt to incite, although it might be doubted whether it could be said to amount to inciting and soHciting, inasmuch as H. was not aware of the contents. (E. V. Eansford, 13 Cox, 0. C. 9.) 16 ATTEMPT. Attempt. [8] R. V. BROWN. (1889) [24 a B. D. 357; 16 Cox, C. 0. 715; 59 L. J. (M. C.) 47; 61 L. T. 594 ; 38 W. E. 95 ; 54 J. P. 408.] The prisoner was indicted, at the Essex Assizes, with at- tempting to commit unnatural oifences with domestic fowls, and pleaded guilty. He was sentenced to twelve months' imprisonment with hard labour, hut after sentence Lord Coleridge, C. J., who tried the case, having been informed that it had been held that a duck was not an animal within 24 & 25 Yict. c. 100, s. 61, reserved the question. The Court of Cro^vn Cases Reserved affirmed the conviction, and Lord Coleridge, C. J., in delivering the judgment of the Court, said : — " My attention having been called to R. v. Dodd after I left the assize town, I thought it was my duty to make inquiry with respect to it. It turned out to be a case decided by this Court in 1877, and it is unreported. The question reserved for the consideration of the Court was whether a duck was an animal within 24 & 25 Vict, c, 100, s. 61. The Court quashed the conviction, and it Avas not unreasonable to suppose that they had quashed it upon the ground that a duck was not an animal within the statute. It is fortunate, however, that several of the judges who composed the Court are still amongst us, and having made inquiry we understand that the conviction was quashed, not upon the ground that a duck was not an animal within the statute, but upon another ground. In R. v. Collins, 9 Cox, C. C. 497; and L. & C. 471, the Court held that where a man put his hand into another's pocket and there was nothing in the pocket which he could steal, he could not be convicted of an attempt to steal. That is a decision icith which Kc are not satisfied. R. r. Dodd proceeded upon the same view, that a person could not be convicted of an attempt to commit an ofience which he could not actually commit. Some of the ATTEMPT. 17 judges, I know, yielded with great reluctance to the authority of R. i\ Collins, and thought that decision was wrong. In tliis case it would seem, on the question of fact, that the ground of the decision in R. r. Dodd fails, because I shoidd suppose it is obvioKS that as a fact t//e offence could he committed hy the hoi/. We are all, therefore, of opinion that R. v. Dodd is no longer law. It was decided on tJie aatJiority of E-. v. Collins, and that case, in our opi)iion, is no lonejer law.''^ The above is an extract from the report of the case in the Law Reports, but in Cox's Criminal Cases the report varies from it in some important points, the passage in Cox being as follows : — " It happens that some of the judges who decided that case are still amongst us, and, so far as they remember the case, the reversal of the conviction took place, not on the ground that a duck was not an animal within the statute, but upon another point, and on the authority of R. v. Collins, in which the Court held that where a man had put his hand into another man's pocket and had found nothing in the pocket, he could not be convicted of an attempt to steal, because, there being nothing in the pocket to steal, the oifence with the attempt to commit which the prisoner was charged could not have been committed. Now, that is a decision tcith icliich ice all agree, and, as far as I can obtain information, the reversal of the conviction in R. v. Dodd proceeded upon that ground, namely, that the prisoner could not be convicted of an attempt, when he could not have been convicted of the whole offence. It is clear tliat the question raised here was raised there. In this case, hoicever, as a matter of fact, the pain f fails, because, I suppose, that an animal which could extrude a thing so large as an egg could receive the male organ of the prisoner. It is satisfactory to find that we are compelled to quash this conviction, and we are all of opinion that R. V. Dodd cannot be considered any longer as law. It proceeded on the authority of R. v. Collins, and, so far as it pro- w. c 18 ATTEMPT. ceeded on that autJiority, it was, in our opinion, decided npon a midalien view of the law.'' Conviction unanimously affirmed. [No counsel appeared.] It seems clear that the report in Cox's Criminal Cases cannot be relied upon, especially as the report says, " It is satisfactory to find that we are compelled to quash this conviction;" whereas, in fact, what the Court did was to aj^rm the conviction unanimously. This may throw light on the passage a few lines above which should, in all probability, read "Now, this is a decision with which we do not agree." However, putting aside the question of the discrepancies in the reports, this decision has given rise to great doubt and difficulty amongst counsel practising at the Criminal Bar, and it is to be hoped that, before long, a case will be reserved in which the facts are practically similar to those in E. v. Collins, so that the question may be definitely settled by the Court of Crown Cases Eeserved, and it may be determined whether the long received ru.le of law in E. V. Collins is to be acted on or not. At the present moment, some practitioners consider that E. v. Collins is overruled, and many are of a contrary opinion. E. v, Collins was a case of physical impossibility ; E. v. Brown was a case of j^hysical possibility but alleged legal impossibility. The distinction is obvious, and the real question is whether the Court of Crown Cases Eeserved went so far as to overrule E. v. Collins, or whether the expression of the opinion of the Court, as delivered by Lord Coleridge, C. J., on a different state of facts, is to be taken as an obiter dictum. It will also be observed that E. v. Brown was not argvied before the Court, no counsel appearing on either side. "An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. " The point at which such a series of acts begins cannot be defined ; but dej)ends upon the circumstances of each particular case. " An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is not an attempt to commit that crime. ' ' The offence of attempting to commit a crime may be committed in cases in which the offender voltmtarily desists from the actual commission of the crime itself." Stephen's Digest of the Criminal Law. For attempts to commit murder, vide 24 & 25 Vict. c. 100, as. 14, 15; and E. v. Brown, 10 Q. B. D. 381 ; E. v. Watts, Sessions Paper, C. C. C. November, 1869 ; and E. v. Gamble, Sessions Paper, C. C. C. April, 1867. Any attempt to commit a misdemeanour is itself a misdemeanour, vide E. V. Phillips, 6 East, 404; and 14 & 15 Vict. c. 100, s. 9, provides that INFANCr AS AN EXCUSE FOR CRIME. 19 in every case wliere a prisoner is cliargod with tlie full crime, whatever it may be, the jury may convict him of an atlcmpt to commit it. Other cases on the qiiestion of attempt are, E. v. McPherson, Dears. & B. 197 ; E. V. Halliday, Sessions Paper, C. C. C. July, 1875 ; E. v. Wilkins, Sessions Paper, C. C. C. April, 1866; E. v. St. George, 9 C. & P. 483; B. V. Lewis, 9 0. & P. 523 ; E. v. Bain, 9 Cox, C. C. 98 ; E. v. Lloyd, 7 C. & P. 318; E. V. Chapman, 1 Den. C. C. 432; E. v. Martin, 9 C. & P. 215; E. V. Eoderick, 7 C. & P. 795; E. v. Nicholls, 2 Cox, C. C. 182; E. V. Hensler, 11 Cox, C. C. 570; E. v. Cheeseman, L. & C. 140; E. v. Holloway, 1 Den. C. C. 370; E. v. Eagleton, Dears. C. C. 515; E. v. Ball, Car. & M. 249; E. v. Eansford, 31 L. T. N. S. 488; Eobcrt's case, Dears. 0. C. 539 ; E. v. Dugdale, Dears. 0. C. 64. Infancy as an Excuse for Crime. — ♦ — R. V. OWEN. (1830) [9] [4 C. & P. 236.] A girl of ten was indicted for stealing coals. She had taken a few knobs of coal from a large heap belonging to Messrs. Harford and Brothers, and put them in a basket she had with her. Of course she had no satisfactory explanation of her appropriation of the coals to offer. Notwithstanding that the facts were undisputed, the jury acquitted her, saying, *' We do not think that the prisoner had any guilty knowledge." " In this case," said Littledale, J., " there are two questions : first, did the prisoner take these coals ? and secondly, if she did, had she at the time a guilty knowledge that she was doing wrong ? The prisoner, as we have heard, is only ten years of age ; and unless you are satisfied by the evidence that, in com- mitting this offence, she knew that she was doing wrong, you ought to acquit her. Whenever a person committing a felony is under fourteen years of age, the presumjotion of law is that he or she has not sufficient capacity to know that it is wrong ; and such person ought not to be convicted, unless there be evi- dence to satisfy the jury tliat the party, at the time of the c2 20 INFANCY AS AN EXCUSE FOE CRIME. offence, had a guilty knowledge that he or she was doing wrong." [Lumley for Crown.] A child under seven cannot be guilty of a crime, for it is conclusively presumed to be doli incapax. Between seven and fourteen tbe presump- tion in favoui' of innocence still continues, but may be rebutted by strong and pregnant evidence of a miscliievous discretion; for tben malitia suppUt cetatem. This capacitas doli ought to be affirmatively proved, as in the case of E. v. Clark, tried before Mr. Justice Denman at Winchester Assizes in 1880, where a little boy of eleven was charged with manslaughter, and his school-master was put into the "witness-box against him to show the amount of his intelligence. If it were merely proved against a boy of ten or eleven that he killed a person intentionally, or picked his pocket, he would be entitled to his acquittal ; but, of course, the surrounding circumstances may, in. any particular case, furnish the proof of the " mischievous discretion" required. Thus, at Abingdon Assizes in 1629, before ]\Ii-. Justice Whitlock, a boy named Dean, about eight or nine years of age, was found guilty of bui'ning some barns at "Windsor, and sentenced to death, it appearing upon examination that he had malice, revenge, craft, and cunning. So, in a case where a boy of nine killed a playmate, and then hid the blood and body, the attempt at concealment was considered to prove the capacitas doli. The case of E. v. York, where a boy of ten murdered a little girl of five, is very similar. A boy under fourteen is conclusively presumed to be incapable of com- mitting a rape ; but he maj' be a principal in the second degree as aiding and assisting another, or he may be convicted of a common assault, although he cannot be convicted of an assault with intent to commit a rape, and if he is under that age, no evidence is admissible to show that, in point of fact, he could commit the offence, nor could a boy under fourteen years of age be convicted of feloniously carnally knowing and abusing a girl under ten years old, even though it was proved that he was arrived at the full state of puberty. This last point would hold good under the Criminal Law Amendment Act, whereby the age of the girl is altered. A child under fourteen, indicted for mui'der, must be proved conscious of the nature of the act (E. v. Yamplew, 3 F. & F. 520) ; and in a case where coining implements were found in the house occupied by a man, his wife, and a child ten years of age, the jui-y were directed to acquit the child of a felonious possession. (E. v. Boober, 4 Cox, C. C. 272.) Infants between the ages of fourteen and twenty-one are privileged in a few cases where the offence charged is a mere nonfeasance, on the ground that, till the latter age, they have not command of their purses. On an indictment against a defendant for obtaining goods by falsely pretending that he was of full age, a plea of infancy in an action brought INSANITY AS AN EXCUSE FOB CRIME. 21 against him is not admissible for tlio purpose of proving that he was a minor. (R. v. Simmonds, 4 Cox, 0. 0. 277 ; and E. v. Walker, 1 Cox, 0. C. 99.) I ti sanity as an Excuse for Crime, — ♦ — R. V. OXFORD. (1840) [10] [9 0. & P. 525.] The prisoner discliarged the contents of two pistols at tho Queen, and tlie defence of insanity was set up for him. Denman, C. J., who tried the case, in summing up to the jury said, " Persons prima fade must be taken to be of sound mind till the contrary is shown. But a person may commit a criminal act, and yet not be responsible. If some controlling disease was, in truth, the acting power within him which he could not resist, then he will not be responsible. It is not more im- portant than difficult to lay down the rule by which you are to be governed. Many cases have been referred to upon the subject. But it is a sort of matter in which you cannot expect any precedent to be found. It is the duty of the Court to lay down the rule of the English law on the subject, and even that is difficult, because the Court would not wish to lay down more than is necessary in the particular case. . . . The question is whether the prisoner was labouring under that species of insanity which satisfies you that he was quite unaware of the nature, character, and consequences of the act he was committing, or, in other words, whether he was under the influence of a diseased mind, and was really unconscious at the time he was committing the act, that it was a crime." [Campbell, A.-Gr., and Wilde, S.-Gr., for the prosecution ; J. Sydney Taylor for the prisoner.] The point is, that everything depends on the attitude of tho prisoner's mind with regard to the particular act charged against him. If it was a guilty mind with regard to that act, its general derangement will not bo 22 INSANITY AS AN EXCUSE FOE CRIME. an excuse. Thus, in the case of Lord Ferrers, 19 St. Trials, 947, who ■was tiied before the House of Lords for the murder of his steward, it was shown that he was occasionally insane, and incapable from his insanity of knowing what he did, or judging of the consequences of his actions. Many witnesses stated that they considered him insane, and it appeared that several of his relations had been confined as lunatics. But as it ajipeared that the murder of his steward was deliberate, and that the earl knew quite well in that particular instance what he was doing, he was found guilty and executed. "A person," said Stephen, J., in E. v. Davis (14 Cox, C. 0. 563), "may be both insane and responsible for his actions, and the great test laid down in McNaughten's case (10 CI. & Fin. 200) was whether he did or did not know at the time that the act he was committing was wrong. If he did, even thoixgh he were mad, he must be responsible; but if his madness prevented that, then he was to be excused. As I understand the law, any disease which so disturbs the mind that you cannot think calmly and rationally of all the different reasons to which we refer in considering the rightness or wrongness of an action, — any disease which so disturbs the mind that you cannot perform that duty with some moderate degree of calmness and reason, — may be fairly said to prevent a man from knowing that what he did was wrong." Notwithstanding that a party accused did an act which was in itself criminal, under the influence of an insane delusion, with a view of redressing or avenging some supposed grievance or injury, or of pro- ducing some public benefit, he is nevertheless punishable if he knew at the time that he was acting contrary to law. If the accused was conscious that the act was one which he ought not to do, and if the act was at the same time contrary to law, he is punishable. A party labouring under a partial delusion must be considered in the same situation as to responsibility as if the facts, in respect of which the delusion exists, were real. Where, ujion a trial for murder, the plea of insanity is set up, the question for the jury is, did the prisoner do the act under a delusion, believing it to be other than it was ? If he knew what he was doing, and that it was likely to cause death, and was con- trary to the law of God and man, and that the law directed that persons who did such acts should be punished, ho is guilty of murder. Sir James Fitzjames Stephen says : — "No act is a crime if the person who does it is, at the time when it is done, prevented either by any defective mental power or by any disease affecting his mind — , " (a) From knowing the natm-e and quality of his act, or "(b) From knowing that the act is wrong, [or " (c) From controlling his own conduct, unless the absence of the powers of control has been produced by his own default.]" It has been said that in an insane person there may be no bodily disease, but his language and habits are changed, the reasoning power INSANITY AS AN EXCUSE FOR CRIME. 23 ■whicli lie may have enjoyed in common witli others is lost or perverted, and he is no longer fitted to discharge his duties. From perversion of reason he may show a disposition to commit acts which may endanger his own life or the lives of those around him ; it is at this point that the law interferes for his own protection, and for that of society. The slightest acquaintance with the insane proves that they are not only perfectly conscious of their actions in general, but that they reason upon their feelings and impressions. Insanity has been said to consist in a loss of the facidty of attention — • that power by which we are capable of changing, controlling, arresting, or fixing the current of our thoughts. Sanity exists when the brain and the nervous system are in such a condition that the mental functions of feeling, and knowing, emotion, and willing, can be performed in their regular and usual manner. Insanity means a state in which one or more of these mental functions is performed in an abnormal manner, or not performed at all by reason of some disease of the brain or nervous system. There can be no task entrusted to counsel more diflicult than the defence of insanity in a murder case where the facts show the accused's mind to be on the border line of sanity and insanity ; the opinions of medical men so often differing as to the interpretation of symptoms in each jiarticular case. Among trials for murder the reader is referred to the celebrated case of the Eeverend J. S. Watson, of Stockwell, for the murder of his wife, and to the case of E. v. King (the Grosvenor Square murder), the latter tried at the Central Criminal Court in March, 1887. Other cases on this subject are: — E. i\ Haynes, 1 F. & F. 666; E. v. Barton, 3 Cox, C. C. 275 ; E. v. Davies, 1 F. & F. 69 ; E. v. Eichards, 1 F. & F. 87 ; E, v. Wright, E. & E. C. C. 456 ; E. v. Searle, 1 M. & Eob. 75 ; E. V. Frances, 4 Cox, C. C. 57 ; E. v. Layton, 4 Cox, C. C. 149 ; E. V. Stokes, 3 C. & K. 185 ; E. v. Law, 2 F. & F. 836 ; E. v. Vyse, 3 F. & F. 247 ; E. v. Burton, 3 F. & F. 772 ; E. v. Dixon, 11 Cox, C. C. 341 ; E. V. Leigh, 4 F. & F. 915 ; E. v. Hodges, 8 C. & P. 195 ; E. v. Dwerry- house, 2 Cox, C. C. 446 ; E. v. Southey, 4 F. & F. 864 ; E. v. Pearce, 9 0. & P. 667 ; E. V. Goode, 7 A. & E. 536 ; E. v. Davies, 6 Cox, C. C. 326 ; E. V. Tui-ton, 6 Cox, C. C. 385. 24 DRUNKENNESS AS AN EXCUSE FOR CRIME. Drunkenness as an Excuse for Crime. — ♦ — [11] R. V. CRUSE. (1838) [8 C. & P. 541 ; 2 Moo. C. C. 53.] The prisoner Thomas Cruse, and his wife Mary Cruse, were indicted under 1 Vict. c. 85, s. 2, for the offence, at that time capital, of inflicting an injury dangerous to life with intent to murder ; the prisoners w^ere found guilty of an assault. The evidence showed that the child Charlotte Heath, upon whom the assault was committed, was seven years old, and was a natural daughter of the female prisoner. Between six and seven in the evening of the 5th of June, Thomas Cruse asked his wife for more monej^ ; she said he should have no more that night ; he shut the door, he and his wife being then in the house. Both prisoners were very drunk, and a neighbour heard the husband call the child, and the child say, " Father, do not beat me." The female prisoner said he might beat the child when he liked, and if he killed the child she would not come near him. Blows were heard, and after that the child ran out of the house ; the female prisoner ran after the child and gave her a blow on the head, and drove her back again. A noise was then heard of something falling, and Mary Cruse cried " Murder." The medical evidence showed that two hours after these injuries were inflicted, the child was suffering from con- cussion of the brain, which is an injury dangerous to life. Patteson, J., in summing up the case to the jury, said : " Before you can find the prisoner, Thomas Cruse, guilty of this felony, you must be satisfied that when he inflicted this violence on the child, he had in his mind a positive intention of murdering that child. Even if he did it under circumstances which would have amounted to murder if death had ensued, that will not be sufficient, unless he actually intended to commit murder. With respect to the wife, it is essential not only that she should have DBUNKENNESS AS AN EXCUSE FOB CRIME. 23 assisted lier husband in tlie commission of the offence, but also that she should have known that it was her husband's intention to commit mm'der. It appears that both these persons were drunk, and although drunkenness is no excuse for any crime whatever, yet it is often of very great importance in questions where it is a question of intention. A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence. If you are not satisfied that the prisoners, or either of them, had formed a positive intention of murdering this child you may still find them guilty of an assault." [J. J. Williams for the prosecution; Carrington for the prisoners.] Voluntaiy drunkenness affords no excuse for crime, as men must be taken to drown tlieir faculties at their peril. {Vide Pearson's Case, 2 Lewin, 0. C. 144.) But in the later case of E. v. Monkhouse (4 Cox, C. C. 55), where the prisoner was indicted for discharging a loaded pistol at the prosecutor with intent to raiu'der him, Mr. Justice Coleridge ex- pressed substantial agreement with the view of Mr. Justice Patteson in the leading case. "Drunkenness," he said, "is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining himself from committing the act in question, or to take away from him the power of forming any specific intention. Such a state of drunkenness may no doubt exist. To ascertain whether or not it did exist in this instance, you must take into consideration the quantity of spirit he had taken, as well as his i^revious conduct." So, in the recent case of E. v. Doherty (16 Cox, C. C. 306), which was a trial for murder, Mr. Justice Stephen said, ' ' Although you cannot take drunken- ness as any excuse for crime, yet when the crime is such that the inten- tion of the party committing it is one of its constituent elements, you m.ay look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime." Although drunkenness is no excuse for crime, delirium tremens caused by excessive drinking is different. If it produces such a degree of mad- ness as to render the person incapable of distinguishing right from wrong at the time the offence is committed, he is relieved from criminal responsi- bility. (E. V. Davis, 14 Cox, C. C. 563.) It is said that drimkenness, even though contracted voluntarily, may 26 VBUNKENNESS AS AN EXCUSE FOB CRIME. sometimes be taken into consideration as tending to rebut the existence of a specific intention. And clearly, whenever the question is whether the prisoner committed the act charged against him intentionally or by acci- dent, it is important to ascertain whether he was drunk or sober. In a case of stabbing, where the prisoner had used a deadly weapon, the fact that he was drunk does not at all alter the nature of the case ; but if he had intemperately used an instrument, not in its nature a deadly weapon, at a time when he was drunk, the fact of his being drunk might induce the jury to less strongly infer a malicious intent in him at the time. (E. v. Meakin, 7 C. & P. 297.) If a man is di-unk, this is no excuse for any crime he may commit ; but where provocation by a blow has been given to a person, who kills another with a weaj)on which he happens to have in his hand, the drunkenness of the prisoner may be considered on the question, whether he was excited by passion, or acted from malice; as, also, it may be on the question, whether expressions used by the prisoner manifested a deliberate purpose, or were merely the idle expressions of a drunken man. (E. v. Thomas, 7 0. & P. 817.) Though drunkenness is no excuse for crime, it may be taken into account by the jury, when considering the motive or intent of a j^erson acting under its influence. (R. v. Gamlen, 1 F. & F. 90.) Where, on the trial of an indictment for an attempt to commit suicide, it appeared that the prisoner was at the time of the alleged offence so di'iuik that she did not know what she did : — Held, that this negatived the attempt to commit suicide. (E. v. Moore, 3 0. & K. 319 ; and 16 Jur. 750.) On a charge of attempting to commit suicide, the mere fact of drunken- ness is no excuse for the crime ; but it is a material fact for the jury to consider, before coming to the conclusion that the prisoner really intended to destroy his life. (E. v. Doody, 6 Cox, C. 0. 463.) Coercion by Husband. [12] R. V. TORPEY. (1871) ""^ [12 Cox, C. C. 45.] The prisoner Martha Torpey was indicted, with one Michael Torpey, for a robbery with violence committed by them to- gether upon James TJnett Parkes, and stealing from his person two diamond necklaces and other articles of jewellery, the goods of William Henry Ryder. COERCION BY HUSBAND, 27 The second count of the indictment described the goods as being, at the time of the robbery, in the possession and under the control of the said J. U. Parkes. The third count charged both prisoners with feloniously receiving the proj)erty, knowing it to have been stolen. The male prisoner was not in custody, and the female prisoner was, therefore, tried alone. In the gaol calendar, she was described as a married woman, but tliis did not appear on the face of the indictment, which contained no description of either prisoner. The facts of the case, as appearing from the evidence, were as follows : — The j)rosecutor was an assistant to Messrs. London and Ryder, jewellers, of New Bond Street. On the 12th of January, in consequence of an order given to his employers, he went with some jewellery, to the value of over 5,000/., to a house. No. 4, Upper Berkeley Street, "W. He reached the house about half past five o'clock in the evening, and the door was opened by Michael Torpey, who had given the order for the jewellery at the shop. Michael Torpey apologised for the absence of the servant, asked prosecutor to leave his hat in a room on the ground floor, and then to follow him (Torpey) to the drawing room. There they were joined by the prisoner, Martha Torpey, and the prosecutor took out of a bag part of the jewellery, and, placing it on the table, began to show it to the two prisoners, keeping the remainder of the jewellery in his bag under the table. The two prisoners were together on the other side of the table, and as they examined the jewels, the value of each article was explained. The male prisoner admired a necklace worth 1,100/., and said he should like to have either that or one valued at 750/., but that he thought he should like to consult his wife's sister before a decision was come to. He told the female prisoner to call her sister, and she left the room apparently for that pur- pose. The male prisoner continued standing at the table in the 28 COERCION BY HUSBAND. same position as before, and the prosecutor remained with his hack to the door. In about a couple of minutes the female prisoner returned, and said that her sister would be there directly. She then came quietly behind the prosecutor, and placed a handkerchief saturated with something over his face and mouth, whilst the male prisoner rushed at him and clasped him round the arms in front. They struggled together for two or three minutes, the female prisoner constantly applying the handkerchief to the prosecutor's face, who, after a short time, became unconscious, and was forced by the prisoners on to a sofa. On returning to complete consciousness, the prosecutor found himself lying on the sofa, bound with straps. Both prisoners had then left the house, taking with them all the jewellery which had been placed on the table, except a small gold chain. The house in Upper Berkeley Street had been taken at a weekly rent by the male prisoner from a house agent, to whom he represented his name as Tyrrel, and gave a reference to an hotel keeper at Bath. The reply to the reference, in conse- quence of which the male prisoner was allowed to engage the house, was as follows : " Bath, Eoyal Hotel. "Le 10 Jan., 1871. "M. de Madaillon (being imperfectly acquainted with the English language) has requested me to acknowledge and reply to your letter. We have known Mr. T}Trel for some years in Paris, and I have no hesitation in assuring you that any engagement into which he may enter with you will be honour- ably fulfilled. " I am faithfully yours, " EmUy de Madaillon." This letter was proved to be in the handwriting of the female prisoner. On the afternoon of the robbery, both prisoners arrived at the house in Upper Berkeley Street in a cab ; they had no luggage. 1 COERCION BY HUSBAND. 29 Shortly afterwards, the only servant iu the house was sent out by the female prisoner with a letter directed to some fictitious Miss Pearson at Tulse Hill, and the servant's unsuccessful search for this person kept her fully occupied until after the robbery had been completed. On lier return the house was in the possession of the police. The direction on the envelope of this letter was also proved to be in the handwriting of the female prisoner. The two prisoners had been living together as husband and wife since the month of June previously, at the house of a Miss Pitt at Leamington. They had with them an infant whom they treated as their child. On the 9th of January, the male prisoner went to London. On the 11th, the female prisoner received two telegrams at Leamington. On the morning of the 12th (the day of the robbery), she left for London, stating that she might not return that evening, in which case she would send a telegram. On the evening of the 12th, Miss Pitt received a telegram from her, and about two o'clock on the morning of the 13th, both prisoners returned together, and the male prisoner left in a day or two and went abroad, leaving the female prisoner at Leamington, where she was shortly after- wards ajjprehended. On the 15th of January, a relative of the female prisoner received from her a parcel containing part of the stolen pro- perty, with a letter asking the former to take charge of the parcel for a time. This letter, also, was in the handwriting of the female prisoner. Counsel for the defence referred to li. v. Cruse, 8 C. & P. 541 ; Ind 2 Moody, 0. C. 53 ; and R. t\ Archer, 1 Moody, C. C. 143. The prisoner was acquitted. [Metcalfe and Straight for the prosecution ; Montagu Wil- liams and Horace Brown for the prisoner.] This is probably the strongest case on the doctrine of coercion by a husband which it is possible to find, and for this reason, the facts have 30 COERCION BY HUSBAND. been given in detail. It will be obseryed tbat tlie wife took a very active part in the whole matter. It was she who wi'ote the false reference, it was she who got rid of the servant by sending her out on a fictitious errand, and it was she who commenced the assault on the prosecutor. It would seem from the arguments in this case that the doctrine of coercion, applies to misdemeanours as well as to felonies, and the question for the jury is the same in both cases; also that this doctrine applies to the crime of robbery with violence. The above case would also appear to show that where a man and woman are indicted together for a joint crime, and it appears from the evidence for the prosecution that they had Hved together for some months as husband and wife, having with them an infant who passed as their child, it is not necessary for the woman to give evidence of her marriage in order to entitle her to the benefit of the doctrine of coercion, although the indictment does not describe her as a married woman. A wife who commits a crime in the presence of her husband is in general presumed to have acted under his coercion, and is excused. This proposition, however, must be taken with certain limitations. The pre- sumption does not api^ly to crimes of the gravest kind, such as treason, murder, or manslavighter. Nor does it ajjply to those misdemeanours in which the law considers it reasonable to presume that the wife was as guilty as the husband. Thus, she may be convicted of keeping a brothel, though her husband lived in the house and superintended the establish- ment, for the law presumes that the wife has a principal share in the management of domestic affairs. A wife cannot commit larceny in the company of her husband, for it is deemed his coercion and not her vokmtaiy act ; and the law, out of tenderness to the wife, if a felony is committed in the presence of the husband, raises a presumption prima facie, and prima fade only, that it was done under his coercion. But the presumption can in all cases be rebutted by showing that the woman acted voluntarily, and not out of regard to her husband's wishes or com- mands. It is not necessary for the defence, when taking the point of coercion, to prove the marriage in the strictest way, evidence of reputation, if such as to satisfy the jury, being sufiicient. And if the woman is charged in a joint indictment as the wife of the man, no kind of proof is necessary. Mere cohabitation will not, however, suffice to discharge the woman from liability. A wife who has incited her husband to the com- mission of a felony can be indicted and convicted as an accessory before the fact ; but although she knows that he has committed a felony, she has a right to receive and screen him. Query, can a married woman be convicted of robbery if her husband were present at the committing of the crime? Passage quoted from Eussell on Crimes as to crimes of violence. (E. v. Buncombe 1 Cox C. C. 183.) COERCION BY HUSBAND. 31 Goods found in the house of a married man are presumed to be in his possession, not in the possession of his wife, in the absence of statements on her part and other evidence. (R. v. Banks, 1 Cox, C. C. 238.) In a case where a wife went from house to house uttering base coin, and her husband, who accompanied her, remained outside, it was held that she acted under his coercion. In E. i\ Brooks (6 Cox, C. C. 148), it was held that a wife cannot be convicted of feloniously receiving goods stolen by her husband. If husband and wife jointly commit a murder, both are equally amen- able to the law, as the doctrine of presumed coercion of the wife docs not apply in murder ; and a wife is amenable to the law as an accessory before the fact to a murder committed by her husband ; but if the only part she took in the transaction was in harbouring and comforting her husband after the crime was committed, she is not liable as an accessory after the fact. (R. v. Manning, 2 C. & K. 903.) Where, on the trial of a man and woman for larceny, it appears that they addressed each other as husband and wife, and passed and aj^peared as such, and were so spoken of by the witnesses for the prosecution, it will be for the jury to saj^ whether they are satisfied that they are in fact husband and wife, even though the woman pleaded to the indictment, which described her as a single woman. (E. v. Woodward, 8 C. & P. 561.) Other cases on this subject are :— E. v. Smith, 8 Cox, C. C. 27; E. v. Knight, 1 C. & P. 116; E. v. Price, 8 C. & P. 19 ; E. v. Dicks, 1 Euss. C. & M. 141 ; E. V. Matthews, 1 Den. C. C. 596; E. v. Langher, 2 Cox, C. C. 134; E. V. Boober, 4 Cox, C. C. 272; E. v. John, 13 Cox, C. C. 100; E. V. Morris, E. & E. C. C. 270; E. v. Cohen, 11 Cox, C. C. 99; E. V. Wardroper, 8 Cox, C. C. 284; E. v. McGinnes, 11 Cox, C. C. 391 ; E. V. Good, 1 C. & K. 185 ; E. v. Hammond, 1 Leach, 447 ; E. v. Conolly, 2 Lewin, 229 ; E. v. Dixon, 10 Mod. 336 ; E. v. Ingram, 1 Salk. 384 ; E. V. Dykes, 15 Cox, C. C. 771. Compiilsion. R. V. TYLER & PRICE. (1838) [13] [8 C. & P. 616.] In this case a person named Jolin Tliom, who called himself Sir William Courtenay, and was insane, collected a number of persons together in the neighbourhood of Canterbury, promising 32 COMPULSION. tliem plenty in tliis world and happiness hereafter, and asserted that he was above all earthly authority, and was the Saviour of the world. A warrant for his arrest was entrusted to a constable named John Meares, who went with his brother to effect the arrest. Thorn shot the brother and tried to stab John Meares. Then Thorn hacked Meares' brother with a sword, and the prisoners and two other persons, by the order of Thorn, afterwards took the deceased, who was still alive, and threw him into a dry ditch, where they left him. The Court held that any apprehension that Tyler and Price had of personal danger to themselves from Thom, w^as no ground of defence for continuing with him after he had declared his purpose of cutting down constables, the apprehension of p)ersonal danger not fm-nishing any excuse for assisting in doing any act which is illegal. [Law, Andrews, Serjt., Bodkin, and Channell, for the prose- cution ; Shee and Deedes, for the prisoners.] An appreKension, though, never so well grounded, of having property wasted or destroyed, or of suffering any other mischief not endangering the person, will afford no excuse for joining or continuing with rebels, but it is said to be otherwise if the party joins from fear of death or by compulsion, although this does not appear consistent with the doctrine of the leading case. On an indictment under 7 & 8 Geo. 4, c. 30, s. 4, for breaking a threshing machine, the judge allowed a witness to be asked whether the mob, by whom the machine was broken, did not compel persons to go with them, and then comjiel each person to give one blow to the machine ; and also, whether at the time when the prisoner and himself were forced to join the mob, they did not agree together to run away from the mob the first opportunity. (E. r. Crutchley, 5 0. & P. 133.) COEFORATWNH. 33 Corpoyations. — ♦ — R. V. BIRMINGHAM AND GLOUCESTER RAIL. CO. (1842) [14] [9 C. & P. 469 ; 3 Q. B. 223 ; 6 Jui-. 804.] This was an indictment against the defendants in their cor- porate name, found at the summer assizes for Worcestershire, 1839, for disobeying an order of justices. By the Company's Act (6 Will. IV. c. 14), it was provided that in case the company, in constructing the line of railway, should sever any person's land into detached portions, they should construct such bridges or archways over or under the railway for the purpose of communication, as two justices, on the application of the owner, should direct ; and an appeal was given to the quarter sessions. The prosecutor had obtained an order of two justices on the defendants, to make an arcliway under the railway for the purpose of connecting the severed portions of the prosecutor's lands. On appeal by the company to the quarter sessions, the order was confirmed. The company had not obeyed the order, and the prosecutor preferred the indictment at the assizes. A distringas had issued from time to time to compel the company to appear and plead. When the case came on at the Worcester Assizes, Baron Parke, the presiding judge, expressed himself in these terms : — " There are instances of corporations aggregate being indicted for non-repair of bridges and roads rat tone tenurce. The only difficulty is as to how they are to appear. If the indictment were in the Court of Queen's Bench, they would appear by attorney ; but the question is whether they can appear by attorney here. At present, I see no other way than by removing the indictment by certiorari, and the company plead- ing in the Court of Queen's Bench by attorney. There is no doubt that an indictment lies against a company if they will not do their duty. They have no person, and must appear by 34 CORPORATIONS. attorney. They may be indicted, and it seems to me that tliey must have a certiorari, and appear by attorney ; or if they do not, there may be a distress ad infinitum.'' The defendants accordingly removed the indictment into the Court of Queen's Bench by certiorari, and their counsel moved to quash the indictment, on the ground that the company, as a corporation aggregate, was not liable to be indicted in their corporate name. The case was argued on demurrer, and a great number of cases were cited on each side. Patteson, J., in delivering the judg- ment of the Court, said, " This was an indictment against the company in their corporate name, for neglecting to make an arch and do other works pursuant to an order of justices. The indictment was found at the assizes at Worcester, and removed into this Court by certiorari. The company appeared, and demurred generally to the indictment, on the ground that they were not liable to be indicted in their corporate name. On the argument, it was not contended that trespass might not be brought against a corporation, for, notwithstanding some dicta in the older cases, it must be taken to be settled law, since the case of Lord Yarborough v. The Bank of England (16 East, 6), and Maund v. The Glamorganshire Canal Co. (Exch. 1840), that both trover and trespass are maintainable. But it was said that an indictment would not lie in this form. The only autho- rity cited for that position was a dictum of Lord Holt's, in Anon., 12 Mod. 559, where he said that ' a corporation is not indictable, but the particular members are.' That dictum was not necessary to the decision of the case then before the Court ; nor does it appear what the nature of the offence was to which it had reference, it may have been felony. As a general proposi- tion, it is opposed to many authorities, which show that a corporation may be indicted for a breach of duty, though not for a felony or crime involving personal violence, or for riot or assault. (Hawk. P. C. c. 76, s. 8 ; and c. 77, s. 2.) In the case of E. v. The Mayor and Corporation of Liverpool (3 East, 86), the judgment was arrested, but no question was raised whether the indictment would lie. In R. r. The Mayor, &e. of con FOB A TIUNS. 35 Stratford-upon-Avou (14 East, 348), the verdict ior the Crown was sustained, and there was no question raised generally as to a corporation being liable to an indictment. On the discussion of the question in the present case, counsel for the defendants relied on an objection to this form of the indictment, that at the assizes, where it was found, the appearance must be in person, and, as a corporation aggregate can only appear by attorney, the defendants could not appear and take their trial on it, if so disposed. We think there is no weight in that objection. It may throw some difficulty in the prosecutor's way, and oblige him to remove the indictment by certiorari, but the liability of the corporation is not affected by it. In R. v. Gardner (Cowp. 84, 85), a corporation was held liable in their corporate capacity to be rated to the poor : and it was considered that the proper mode of proceeding to enforce tliat liability was by distress in- finite, as was pointed out by Mr. Baron Parke in this very case, in 9 C. & P. 469, and as appears from 2 Hawk. c. 27, s. 10 ; Yin. Abr. ' Corporations,' B. a ; and Com. Dig. 'Pleader,' B. 1. We are therefore of opinion that on this demurrer our judgment must be for the Crown." [Talfourd, Serjeant, for the Crown ; Whateley for the defendants.] In E. V. The Great Nortli of England Railway Company (10 Jur. loo), it was held that an indictment will lie against a corj)oration for a misfeasance at common law. In this very important case, Lord Denman, C. J., in delivering the judgment of the Court, said: — "The question is whether an indictment will lie at common law against a corporation for misfeasance, it being admitted, in conformity with undis- puted decisions, that an indictment may bo maintained against a corpora- tion for nonfeasance. All the preliminary difficulties as to the service and execution of process, the mode of appearing and pleading and enforcing judgment, are, by this admission, swept away. But the argument is that for a wrongful act a corporation is not amenable to an indictment, though for a wrongful omission it undoubtedly is, assuming, in the first place, that there is a plain and obvious distinction between the two species of offence. No assumption can be naoro unfounded. Many occiu'rences may bo easily conceived, full of annoyance and danger to the public, and involving l)lamo in some indiA'idual or some corpora- 1)2 36 CORPORATIONS. tion, of wMcli the most acute person could not clearly define tlie cause, or ascribe them -with more correctness, to mere negligence in providing safeguards, or to an act rendered improper by nothing but the -want of safeguards. If A. is authorized to make a bridge with parapets, but makes it without them, does the offence consist in the construction of the imsecured bridge, or in the neglect to secure it ? "But if the distinction were always easily discoverable, why should a corporation be liable for the one species of offence, and not for the other ? The startling incongruity of allowing the exemption is one strong argu- ment against it. The law is often entangled .in technical embarrassments, but there is none here. It is as easy to charge one person, or a body corporate, with erecting a bar across a public road as with the non-repair of it, and they may as well be compelled to pay a fine for the act as for the omission. "Some dicta occur in old cases: 'A corporation cannot be guilty of treason or of felony;' it might be added, 'of perjmy or offences against the person.' The Court of Common Pleas lately held that a coi-poration might be sued in trespass, but nobody has sought to fix them with acts of immorality. Those plainly derive their character from the corrupted mind of the person committing them, and are violations of the social duties that belong to men and sub j ects. A corporation, which, as such, has no such duties, cannot be guilty in these cases, but they may be guilty, as a body corporate, of commanding acts to be done to the nuisance of the community at large. The late case of The Gloucester and Birmingham Eail. Co. (3 Q. B. Eep. 223), was confined to the state of things then before the Coui-t, which amounted to nonfeasance only, but was by no means intended to deny the liability of a corporation for a misfeasance. ' ' We are told that this remedy is not required, because the individuals who concur in voting the order, or in executing the work, may be made answerable for it by criminal proceedings. Of this there is no doubt, but the public knows nothing of the former ; and the latter, if they can be identified, are commonly persons of the lowest rank, whollj' incompetent to make any reparation for the injury. There can be no effectual means for deterring from an oj)pressive exercise of power for the purposes of gain, except the remedy by an indictment against those who commit it ; that is, the corporation acting by its majority, and there is no principle which places them beyond the reach of the law for such proceedings. The verdict for the Crown, therefore, on the first four counts, will remain undisturbed." In Two Sicilies (King) v. Wilcox (14 Jur. 751), an incorporated com- pany domuiTcd to a bill in equity, because the discovery thereby sought might subject it to a criminal prosecution under 59 Geo. 3, c. 69 (The Foreign Enlistment Act), and it was held that a corporation was not liable to be indicted under that Act, and the Court overruled the demurrer. LIABILITY OF MASTER FUR ACTS OF SERVANT. 37 Liability of Master for Acts of Servant. R. V. STEPHENS. (1866) [15] [L. E. 1 Q. B. 702 ; 35 L. J. Q. B. 251 ; 12 Jiu-. N. S. 961 : 14 L. T. 593; 14 W. E. 859.] This case decided that the owner of works, carried on for his profit by his agents, is liable to be indicted for a public nuisance caused by acts of his workmen in carrying on the works, though done by them without his knowledge, and contrary to his general orders. The defendant was tried before Blackburn, J., at the Pembrokeshire Assizes ; and it was proved that the Tivy was a public navigable river which flowed through Llechryd Bridge, thence to Kilgerran Castle, and from there past the town of Cardigan to the sea. About twenty years previous, the Tivy was navigable to within a quarter of a mile of Llechryd Bridge, from which place a considerable traffic was carried on in lime- stone and culm by means of lighters. The defendant was the owner of a slate quarry called the Castle Quarry, situate near the Castle of Kilgerran, which he had extensively worked since 1842. The defendant had no spoil bank at the quarry. The rubbish from the quarry was stacked about five or six yards from the edge of the river. Previous to 1847, the defendant erected a wall to prevent it from falling into the river, but in that year a heavy flood carried away the wall, and with it large quantities of the rubbish. Quantities of additional rubbish were from time to time shot by the defendant's workmen on the same spot, and so slid into the river. By these means the navigation was obstructed, so that even small boats were prevented from coming up to Llechryd Bridge. The defendant, being upwards of eighty years of age, was unable personally to superintend the working of the quarry, which was managed for his benefit by 38 LIABILITY OF MASTER FOR ACTS OF SERVANT. his sons. The defendant's counsel at the trial was prepared to offer evidence that the workmen at the quarry had been pro- hibited both by the defendant and his sons from thus depositing the rubbish, and that they had been told to place the rubbish in the old excavations and in a place provided for that purpose. The learned judge intimated that the evidence was immaterial ; and he directed the jirry that as the defendant was the proprietor of the quarry, the quarrying of which was carried on for his benefit, it was his duty to take all proper precautions to prevent the rubbish from falling into the river, and that if a substantial part of the rubbish went into the river from having been improperly stacked so near the river as to fall into it, the defendant was guilty of having caused a nuisance, although the acts might have been committed by his workmen, without his knowledge and against his general orders. The jury found a verdict of guilty. This ruling was upheld by the Court of Queen's Bench. Said Blackburn, J., "I see no reason to change the opinion I formed at the trial. I only wish to guard myself against it being supposed that either at the trial or now, the general rule that a j)rinci2ml is not criminally answerable for the act of his agent is infringed. All that it is necessary to say is this, that where a person maintains works by his capital, and employs servants, and so carries on the works as in fact to cause a nuisance to a private right, for which an action would lie, if the same nuisance inflicts an injury upon a public right the remedy for which would be by indictment, the evidence which would maintain the action would also support the indictment. That is all that it was necessary to decide and all that is decided." [H. S. Giffard, Q.C., and Poland for the Crown; J. W. Bowen and Hughes for the defendant.] During the hearing of the above important case, the following cases were cited as bearing upon the point in issue :— E. r. Medley, 6 C. & P. 292 ; Bush V. Steinman, 1 B. & P. 407 ; TurberviUe v. Stampe, 1 Ld. Eaym. 264 ; Laugher v. Pointer, 5 B. «fe C. 576 ; E. v. Dixon, 3 M. & S. 11 ; E. V. Pedley, 1 A. & E. 822 ; E. v. Moore, 3 B. & Ad. 188; Eeedie r. London TBEAt^ON FELONY. 39 and North Western Eail. Co., 4 Ex. 244 ; E. v. Great North of England Eail. Co., 9 Q. B. 315; E. v. Birmingham and Gloucester Eail. Co., 3 Q. B. 223 ; Tenant v. Goldwin, 1 Salk. 360 ; Fletcher v. Eylands, L. E. 1 Ex. 265 ; E. v. Eussell, 3 E. & B. 942 ; E. v. Huggins, 2 Ld. Eajnn. 1574; Att.-Gen. v. Siddon, 1 C. & J. 220; Hearne v. Garton, 28 L. J. (M. C.) 216; Eastern Counties Eail. Co. v. Broom, 6 Ex. 314; Whitfield V. South Eastern Eail. Co., 27 L. J. (Q. B.) 229; Stevens v. Midland Counties Eail. Co., 10 Ex. 352; E. v. Gutch, Moo. & M. 433; and E. v. Almon, 5 Burr. 2686. In E. V. Bennett (Bell, C. C. 1 ; and 8 Cox, C. C. 74), the prisoner had for years been accustomed to keep fireworks in a house in London for sale, and a part of the j^rocess of manufacture of some of them was per- formed in the house, and bj- the supposed negligence of one of his servants an ignition of red and blue fire was caused, which communicated to tho other fireworks, and a rocket shot across the street and set a house on the opposite side on fire, by which a person's death was caused. It was held that the prisoner was not liable to be indicted for manslaughter, as the unlawful act of keeping the fireworks was disconnected with the supposed negligence of the servant, which was the proximate cause of the death. Treason Felony. — ^ — R. V. GALLAGHER AND OTHERS. (1883) [16] [15 Cox, C. C. 291 ; Sessions Paper, C. C. C, vol. 98, p. 279.] The prisoners were indicted nnder the Treason Felony Act, 1848 (11 & 12 Yict. c. 12) — (1) For feloniously and ■ unlawfully compassing, imagining and devising and intending to depose the Queen from the Imperial Crown of Great Britain and Ireland, and expressing the same by divers overt acts set out in the indictment ; (2) Intending to levy war upon the Queen in order, by force and constraint, to compel her to change her measures and counsels ; (3) To intimidate and overawe the Houses of Parliament. 40 TBEASOX FELONY. Secret clubs were formed in Americca, branclies of a society called the Fenian Brotherhood, whose object was said to be to procure "the freedom of Ireland by force alone." The prisoners, members of these clubs, came to England provided with funds, their intent being to destroy public buildings by nitro-glycerine and other explosives. One of the prisoners appeared to be the du-ector of the movements of the others ; another was detected in manufacturing nitro-glycerine in large quantities at Birmingham ; and otners were employed in the removal thereof, when manufactured, to London, under the director's superintendence. There was evidence that the House of Commons and Scotland Yard Office of the Detective Police were pointed out as places to be destroyed, as well as that the nitro-glycerine was to be used for destroying other public buildings. At the close of the case for the prosecution, Edward Clarke, Q.C., on behalf of Thomas Gallagher, submitted that there was no evidence to go to the jiuy in support of the second and third counts of the indictment. Prior to the Treason Felony Act, and under the statute of Edward III., the question of what amounted to " a levying of war" had often come before the Courts for judicial decision, and the current of the authori- ties substantially amounted to this — that there must be num- bers arrayed for the purpose of opposing the forces of the Crown, and a premeditated design of conflict with the Eoyal forces. These elements were essential to the crime of levying war against the Crown, and he contended that they were wholly wanting in this case. He referred to Coke's Institute, vol. 3, p. 9 ; Hale's Pleas of the Crown, p. 149 ; Foster's Crown Law, c. 2, p. 208 ; State Trials, vol. 24, p. 902 ; R. v. Frost, 9 Car- rington and Payne, p. 129 ; and E. r. Dammaree, 15 State Trials, p. 522. The Lord Chief Justice (Lord Coleridge) : " The words * levying war ' are words general and descriptive. It is obvious that war may be levied in very different ways and by very different means, in different ages of the world. And the judges have never attempted to say that there TREASON FELONY. 41 could not be a ' levying of war ' in any other way than in the way brought before them in earlier times. I am of opinion that it is enough to say in this case, if the jury should bo of opinion that the prisoners, or any of them, have agreed among themselves that some one of tliem should destroy the property of the Crown, and destroy or endanger the lives of the Queen's subjects by explosive materials, such as it has been suggested have been made use of ; and if they shoidd be further of opinion that such acts have been made out, then the prisoners are guilty of treason felony within the meaning of this Act." The jury were directed — (1) That if they thought that one or more of the prisoners did compass, devise, or intend to force the Queen to change her counsels and to overawe the Houses of Parliament by violent measures, directed either against the property of the Queen, the public property, or the lives of the Queen's subjects, and not with the view of repaying any private spite or enmity against any particular subjects of the Queen, it would be a levying of war against the Queen within the meaning of the first count of the indictment ; and that it was not the less com- passing, and intending levying war, because, by the progress of science, two or three men could do now what could not have been done years ago except by a large number of persons ; that the question was, was there proof that the prisoners did what they did with the intention of depriving and deposing the Queen from the style of the Imperial Crown of the United Kingdom, or with the intention of separating Ireland from the Crown of England, and establishing an independent Republic ? (2) Tliat if what the prisoners did was done to compel Her Majesty or her ministers, by force, to change the present Constitution, and to alter the relations between England and Ireland, or even to set up a separate Parliament in Ireland, it would be within the second count of the indictment. (3) That if what the prisoners did was done for the pm^pose of intimidating and overawing both or either Houses of Parliament so as to frighten 42 TnEAHON FELONY. them into doing what otherwise they would not have done, it would be within the third count. On the trial, which took place at the Central Criminal Court in June, 1883, before Lord Coleridge, C. J., the Master of the EoUs, and Grove, J., four of the prisoners were convicted and sentenced to penal servitude for life. [Edward Clarke, Q.C., Bowen Eowlands, U.C, J. J. Sims, M. W. Mattinson, Keith Frith, Burnie, H. J. Broun, and T. Waite for the prisoners ; the Attorney- General, the Solicitor- General, Poland, and E. S. Wright for the Crown.] War levied against tha Queen is of two kinds — direct and constrtictive. Open and armed rebellion against the person of the sovereign would, of course, belong to the former class. Instances of the latter are attemj)ts to effect innovations of a public and general nature by force. Therefore, where a mob assembled for the purjiose of destroying all the Protestant dissenting meeting-houses, and actuallj- pulled down two, it was held to be treason. (E. v. Dammaree, 15 St. T. 522.) But in another case, it was held that, if a person act as the leader of an armed body, who enter a town, and their object be neither to take the town nor to attack the military, but merely to make a demonstration to the miagistracy of the strength of their party, either to procure the liberation of certain prisoners convicted of some political offence, or to procure for those prisoners some mitigation of their punishment, this, though an aggravated misdemeanour, is not high treason. (E. v. Frost, 9 C. & P. 129.) Nor -svould a tumult, •with a view to the pulling down of a particular house, or the laying open of a particular enclosure, be treason, this being no general defiance of public government. The principal statutes relating to the crime of treason are — 25 Edw. III. stat. 5, c. 2 ; 1 Mary, sess. 1, c. 1 ; 36 Geo. III. c. 7 ; 5 & 6 Vict. c. 51 ; and 11 & 12 Vict. c. 12. Important cases bearing upon the law of treason are — E. v. Oxford, 9 0. & P. 525 ; E. v. Lord George Gordon, 2 Dougl. 590 ; E. v. Delamotte, 1 East, P. C. 53 ; E. v. Burke, 10 Cox, C. C. 519 ; Mulcahy v. Eegina, L. E. 3 H. L. 306 ; E. v. Meaney, 10 Cox, C. C. 506 ; E. v. Deasy and others, 15 Cox, C. C. 334 ; and E. v. Dammaree and E. v. Frost, above quoted. FOUEION ENLISTMENT. 43 Foreign Enlistment. R. V. SANDOVAL. (1887) [17] [16 Cox, C. C. 206.] The defendant, a foreigner, but resident in this couutiy, was indicted for a breach of the Foreign Enlistment Act, 1870 (f33 & 34 Vict. c. 90), by fitting out an expedition within the Queen's dominions against a friendly state. It was held that an offence under sect. 11 of that Act is sufficiently constituted by the purchase of guns and ammunition in this country, and their shipment for the piu-pose of being put on board a ship in a foreign port, with a knowledge of the purchaser and shipper that they are to be used in a hostile demonstration against such state, though the shipper takes no part in any overt act of war, and the ship is not fully equipped for the expedition within any port belonging to the Queen's dominions. " The Act was passed," said Day, J., " to prevent such mischiefs as the present; and I am of opinion that the moment any overt act of prepara- tion is done the statutory offence is committed, so that such attempts may be defeated and the mischievous consequences likely to ensue to this country may be prevented." " Nothing can be more mischievous," said Wills, J., " than that persons who act as the present defendant has done should suppose that they can escape the responsibility for acts done in violation of the municipal law, passed to maintain the require- ments of international comity ; acts which might be followed by consequences most mischievous, and which under certain circum- stances it might be impossible to exaggerate. The present expedition was contemptible, and not of a character seriously to affect our relations with a foreign power; but the law is the same as to a small expedition and a formidable one, as to an 44 FOREIGN ENLISTMENT. expedition cagainst a small State and a great State, and those ■who took part in it are criminally liable." [J. P. Grrain for the prisoner.] The 11th section of the Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90), provides that " if any person within the limits of her Majesty's dominions, and without the licence of her Majesty, prepares or fits out any naval or military expedition to proceed against the dominions of any friendly state, the following consequences shall ensue :— (1) Eveiy person engaged in such preparation or fitting out. or assisting therein, or employed in any capacity in such expedition, shall be guilty of an offence against tliis Act, and shall be jjunishable by fine and imprisonment, or either of such punishments, at the discretion of the Court before which the offender is convicted ; and imprisonment, if awarded, may be either with or without hard labour. (2) All ships, and their equipments, and all arms and munitions of war, used in or forming part of such expedition, shall be forfeited to her Majesty." The 12th section says, that any person who aids, abets, counsels, or prociu'es the commission of any offence against this Act shall be liable to be tried and punished as a principal offender. Section 4 says that if any person, without the licence of her Majesty, being a British subject, within or without her Majesty's dominions, accepts or agrees to accept any commission or engagement in the militaiy or naval service of any foreign state at war with any foreign state at peace with her Majesty, and in this Act referred to as a friendly state, or whether a British subject or not within her Majesty's dominions, induces any other pei'son to accept or to agree to accept any commission or engagement in the military or naval service of any such foreign state as aforesaid, he shall be guilty of an offence against this Act, and shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the Court before which the offender is convicted ; and imprisonment, if awarded, may be either with or without hard labour. The 5th section deals with the case of a British subject leaving her Majesty's dominions with intent to serve a foreign state, and the 8th section has reference to illegal shipbuilding and illegal expeditions. The whole international question was fully discussed at the time of the celebrated Alabama case, in which a vessel was fitted out in England and used by the Confederate States dimng the Ci-\al War in the United States of America. The Alabama case gave rise to the Geneva Arbitration, at which the matter was finally settled. OFFEXCES A GA IXS T FOUEIGX HO ] 'EIIEKJXS. 45 Offences against Foreign Sovereigns. R. V. BERNARD. (1858) [18] [1 F. & F. 240.] The prisoner was charged with being an accessory before the fact to the murder of two persons who were among the victims of Orsini's attempt upon the life of the Emperor of the French on the 14th of January, 1858. During the trial the following points of imjiortance were decided : — (1) Evidence that A. was privy to a plot to murder B. by ex2:)losive machines, held suffi- cient to go to the jury on counts charging A. with the murder of C. (accidentally killed by the explosion), with conspiring to murder him, and as an accessory to the murder. (2) The attempt to assassinate having been made in Paris, and B. and C. being both Frenchmen, and A., the prisoner, being also an alien, residing in England, qmere, whether (within 9 Geo. lY. c. 31, s. 7) he was indictable either as principal or as accessory ? (3) The prisoner declining to plead to an indictment, the Court directed a plea of not guilty to be entered. (4) A special commission for the trial of the prisoner having been read in open Court at the opening of the commission immediately be- fore the delivery of the charge to the grand jmy, an application made at the arraignment by his counsel for the commission to be then read a second time, upon the ground that it had not been read in the presence of the prisoner, was refused. (5) Upon a charge of miu'dering a person named by means of explosive grenades, evidence of other deaths and wounds suffered by others at the same time held admissible for the purpose of proving the character of the grenades. (6) A witness being called to prove that he manufactured certain grenades by which the death in question had been caused : — HchI, that the name of the person who gave the order for them might be asked, as a fact in the transaction, even though he had not then been sliown 46 OFFENCES AGAINST FOREIGN SOVEREIGNS. to be connected with the prisoner. (7) A serjeant in the police, after stating in cross-examination that he attended a debating society where political subjects were discussed, by the direction of the commissioners of police, for the purpose of noticing and reporting ; and that he went in private clothes, was asked if he went as a spy. Ileid, that the question could not be put, as it required the witness to draw an inference from facts ; but that he might be asked under what directions, and for what purpose he went, and what he did when there. (8) At a period of the trial when it had been proved that the grenades by which the death in question had been caused had been ordered by A., but when there was no evidence to connect A. with the prisoner, it was proved that a letter in A.'s handwriting, bearing a memo- randum in the handwriting of the prisoner, was found at the prisoner's residence after his arrest ujjon the present charge. Held, that such letter was admissible against him, not upon the ground that A. was a co-conspirator, but upon the ground that it was found in the possession of the prisoner, and was relevant to this inquiry. (9) Evidence as to the way in which, and the time at which, the prisoner and other conspirators had procured passports for Belgium, and for other countries (not France) through which they might obtain access to France, was ad- mitted. (10) Not more than two counsel are entitled to ad- dress the Court for a prisoner during the trial upon a point of law. (11) 11 & 12 Vict. c. 78, applies to points of law arising upon trials under special commission, and authorizes the Court to reserve points of law arising at the trial. The prisoner was acquitted. [Edwin James, U.C, Simon, Hawkins, Sleigh, Brewer, and Scotell, for the prisoner ; Sir Fitzroy Kelly, A.-Gr., Macaulay, Q.C., Welsby, Bodkin, and Clerk, for the Crown.] A very recent case is that of E. v. Most (14 Cox, C. C. 583 ; and 7 Q. B. D. 244). The prisoner was indicted under 24 & 25 Vict. c. 100, s. 4. The encouragement and endeavour to persuade to murder, proved at the trial, was the publication and circulating by him of an article, written in German in a newspaper called " FreiheiV published in London, exulting OFFENCES AGAIXSr FOREfGX SOVEREIGNS. 47 in tho recent munlor of tlio Emi^eror of Eussia, and comineuding it as an example to revolutionists throughout the world. The jury were dii'ccted that if they thoTight that by the publication of the article the prisoner did intend to, and did, oncoiu'ago or endeavour to persuade any person to murder any other person, whether a subject of her Majesty or not, and whether within the Queen's dominions or not, and that such encourage- nient and endeavouring to persuade was the natural and reasonable effect •of the article, they should find him guilty : — Held, by the Court of Crown Cases Eeserved (Ijord Coleridge, 0. J., Grove and Denman, JJ., Huddle- ston, B., and Watkin Williams, J.), that such direction was correct, and that the publication and circulation of a newspaper article might bo an encouragement or endeavour to persuade to murder, within sect. 4 of 24 & 25 Vict. c. 100, although not addressed to any person in particular. Lord Coleridge, C. J., said : "The question arises upon sect. 4 of 24 & 25 Vict. c. 100, which enacts that all persons who shall, or any one who shall, encourage, or who shall endeavour to persuade any jierson to murdor any other person, whether a subject of the Queen, or Avithin the Queen's dominions, or not, shall be guilty of a misdemeanour "We have to deal here with a publication proved by the evidence at the trial to have been written by the defendant, to have been i3rinted by the de- fendant, that is, he ordered and paid for the jiriuting of it, sold by tho defendant, called by the defendant his article, and intended as the jury have found, and most reasonably found, to be read by the twelve hundred or more persons who were the subscribers to, or the purchasers of, the ' Freiheit' newspaper; and, further, one which the jury have found, and I am of opinion have quite rightly found, to be naturally and reasonably intended to incite and encourage, or to endeavour to persuade persons who should read that article to the murder either of the Emj^eror Alexander, or the Emperer "William, or, in the alternative, the crowned and un- crowned heads of states, as it is exjiressed in one jiart of the article, from Constantinople to "Washington. The question, therefore, simply is on these facts which are undisputed and with regard to which the jury have pronounced their opinion — do these facts bring it within these words ? I am of ojiinion they clearly do. An endeavour to jiersuade or an encouragement is none the less an endeavoiir to persuade or an encour- agement because the person who so encourages or endeavoiu-s to j^ersuade does not in the particular act of encouragement or persuasion personally address the number of people, the one or more persons, whom the address which contains the encouragement or the endeavour to persuade reaches. The argument has been well put, that an orator who makes a siDccch to two thousand people, does not address it to any one individual amongst those two thousand ; it is addressed to the number. It is endeavoimng to persuade the whole number, or large portions of that number, and if a particular individual amongst that number addi'essed by the orator is persuaded, or listens to it and is encouraged, it is plain that the words of 48 OFFENCES AGAINST FOREIGN SOVEREIGNS. tliis statute are complied witli, because according to well-known principles of law the person wlio addresses those words to a number of persons must be taken to addi-ess them to the persons who, he knows, hear them, who he knows will understand them in a particular way, do understand them in that particular way, and do act upon them." Upon the ground that malicious and scurrilous reflections upon those who are possessed of rank and influence in foreign states may tend to involve this country in disputes and warfare, it has been held that publications tend- ing to degrade and defame persons in considerable situations of power and dignity in foreign countries may be treated as libels. Thus, an informa- tion was filed, by command of the Crown, for a libel on a foreign ambas- sador, then residing at the British Court, consisting principally of some angry reflections on his public conduct, and charging him with ignorance in his official capacity, and with having used stratagem to supjilant and depreciate the defendant at the Court of Versailles (R. v. D'Eon, 1 Blac. 510) ; and Lord George Grordon was found guilty in 1787 upon an infor- mation for having published some severe reflections upon the Queen of France, in which she was represented as the leader of a faction ; upon which occasion Ashurst, J., observed, in i:)assing sentence, that the object of the publication being to rekindle animosities between England and France by the personal abuse of the sovereign of one of them, it was highly necessary to repress an offence of so dangerous a nature ; and that such libels might be supposed to have been made with the connivance of the state where they were pxxbHshed, unless the authors were subjected to punishment. In the case of E. v. Vint (27 St. Tr. 627), the defendant was convicted of pubKshing a libel on the Emperor of Russia in the " Courier" news- paper. The libel was in the following terms : — ' ' The Emperor of Russia is rendering himself obnoxious to his subjects by various acts of tj'ranny , and ridiculous in the eyes of Europe by his inconsistency ; he has now passed an edict prohibiting the exportation of timber, deals, &c. In consequence of this ill-timed law, upwards of 100 sail of vessels are likely to return to this kingdom without freights." In R. V. Peltier (28 St. Tr. 530), the defendant was convicted of a libel upon Napoleon Bonaparte, at that time First Consul, but war broke out between England and France, and the defendant was not sentenced. In this case Lord EUenborough, C. J., in his address to the jury, said: — "I lay it down as law, that any publication which tends to degrade, revUe, and defame persons in considerable situations of power and dignity in foreign countries, may be taken to be, and treated as, libel ; and par- ticularly when it has a tendency to interrupt the pacific relations between the two countries." UNLAWFUL ASSEMBLIES. 49 Unlawful Assemblies. BEATTY r. GILLBANKS. (1882) [19] [9 Q. B. D. 308 ; 51 L. J. (M. C.) 117 ; 47 L. T. 194 ; 31 W. E. 275 ; 46 J. P. 789 ; 15 Cox, C. C. 138.] A religious association, calling themselves the " Salvation Army," assembled to the number of about a hundred persons, and, forming a procession, headed by flags and music, marched through the streets of Weston-super-Mare, as they had done on previous occasions. They were met by an organized band styled the " Skeleton Army," who also were in the habit of parading the streets, and who were antagonistic to the " Sal- vation Ai'my." The two bodies met, and, as on several pre- vious occasions, a free fight and general disorder ensued. Edward Clarke, U.C., for the appellants, contended that, to constitute an unlawful assembly, there must be either an illegal object, or, if the object be legal, the mode of carrying it out must be tumultuous ; that neither had been made out, and that the intention of other persons to commit unlawful acts could not affect the question whether there had been an offence by the appellants. It was held that the Salvationists, having assembled for a law- ful purpose, and with no intention of carrying it out unlawfully, could not be rightly convicted of an unlawful assembly, notwith- standing that they were aware that a breach of the peace would be very likely to result from their action. *' What has happened here," said Field, J., " is that an unlawful organization has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, tliat a man may W. E 50 UNLAWFUL ASSEMBLIES. be convicted for doing a lawful act if lie knows that Ms doing it may cause another to do an unlawful act. There is no authority for such a proposition." [E. Clarke, d.C, Sutherst, and L. C. Jackson for the appel- lants ; A. E. Poole and Yalpy for the respondent.] Beatty v. Giilbanks does not go further than to establish the proposition that an assembly which is lawM in itself does not become unlawful merely because of the disorderly intentions of others. It cannot be re- garded as an authority to show that, und^r all imaginable circumstances, people have a right to have processions through the streets. " An unlawful assembly is an assembly of three or more persons : — " (a) With intent to commit a crime by open force ; or " (b) With intent to carry out any common purpose, lawful or unlaw- ful in such a manner as to give firm and courageous persons in the neighbourhood of such assembly reasonable grounds to apprehend a breach of the peace in consequence of it. " Every unlawful assembly is a misdemeanoiu\" (Stephen's Digest of the Criminal Law.) In the case of E. v. Vincent (9 C. & P. 91), it was held that any meeting assembled under such cii'cumstances as, according to the oi)inion of rational and firm men, are likely to produce danger to the tranquillity and i^eace of the neighbourhood, is an unlawful assembly ; and in viewing this question the jury should take into theii' consideration the hoiu' at which the parties met, and the language vised by the persons assembled, and by those who addi'essed them, and then consider whether firm and rational men, having their families and property there, would have rea- sonable ground to fear a breach of the peace ; as the alarm must not be merely such as would frighten any fooHsh or timid person, but must be Buch as would alarm persons of reasonable firmness and courage. In E. V. Neale (9 C. & P. 431) it was decided that any assembly of persons attended -svith circumstances calculated to excite alarm is an un- lawful assembly, and it is not only lawful for magistrates to disperse an unlawful assembly, even when no riot has occurred ; but if they do not do so, and are guilty of criminal negligence in not putting down any unlawful assembly, they are liable to be prosecuted for a breach of their duty. A rout is a disturbance of the peace caused by those who, after assembling together to do a thing which, if executed, would amount to a riot, proceed to execute that act, but do not actually execute it. It differs fi-om a riot only in the circumstance that the enterprise is not actually executed. A riot is an unlawful assembly which has actually begun to execute the purpose for which it assembled, by a breach of the jieaco, and to the terror of the public. FonCIBLE ENTRY. 51 Otlier cases connected witli this subject are : — E. v. Pinney, 5 C. & P. 254 ; E. V. Kennett, 5 C. & P. 282 ; and E. v. Fursey, 6 C. & P. 81. Cases on the question of highways used for places of public meeting are : — Homer v. Cadnian, 34 W. E. 413 ; and Back v. Holmes, 16 Cox, C. C. 263. • Forcible Entry. — ♦ — LOWS V. TELFORD. (1876) [20] [1 App. Cas. 414 ; 45 L. J. (Ex.) 613 ; 35 L. T. 69 ; 13 Cox, C. C. 226.] Lows became the mortgagee in fee of certain premises, of wliich it appeared that he did not at once take actual possession. The mortgagor, whose position had not been interfered with, made an agreement with Telford and Westray to allow them (at a rent) the use of these premises, and for some little time Telford and Westray did have the use of them, and deposited goods there. On one morning, at an early hour. Lows, without notice to any one, went, accompanied by a carpenter and another man, and, by taking off the lock of the outer door, entered into actual possession. Telford and Westray hearing of this, went to eject him, and not being able to get in at the door, obtained an entrance through a side window, then came down and did eject Lows. On this Lows indicted them for a forcible entry; they were acquitted, jointly paid their attorney's bill, and then brought a joint action against Lows for malicious prosecution without reasonable and probable cause. Held, that on these facts they could not sustain the action, and that Lows was entitled to have the verdict entered in his favour. This case decides that where a person having the legal title to land is in actual possession of it, the attempt to eject him by force brings the person who makes it within the provisions of the statute against forcible entry. It will do so, though the possession of the person having the legal title has only just commenced, though the person who attempts to eject liim may even set up a claim to the possession of the land. If for civil e2 52 FORCIBLE EXTRY. purposes the legal possession is in a person, the foundation for a charge of forcible entry is sufficiently established. [C. Russell, Q.C., and Trevelyan for the appellant; Hers- chell, Q.C, and Kenelm Digby for the respondents.] " Every one commits the misdemeanoui- called a forcible entry, who, in Older to take possession thereof, enters upon any lands or tenements in a violent manner, whether such violence consists in actual force applied to any other person or in threats, or in breaking open any house, or in collecting together an unusual number cf persons for the purpose of making such entry. It is immaterial whether the person making such an entry had or had not a right to enter, provided that a person who enters upon land or tenements of his own, but which are in the custody of his servant or bailiff, does not commit the offence of forcible entry. Every one commits the misdemeanour called a forcible detainer, who, having wi'ongfully entered upon any lands or tenements, detains, such lands and tenements in a manner which would render an entry upon them for the purpose of taking possession forcible," (Stephen's Digest.) To constitute a forcible entry, or a forcible detainer, it is not necessary that anyone should be assaulted, but only that the entry or detainer should be with such numbers of persons and show of force, as is calcu- lated to deter the rightful owner from sending the persons away and resuming his possession. (Milner v. Maclean, 2 C. & P. 17.) A licence by a tenant to his landlord to eject him on a specified day without any process of law is void, as authorizing the commission of an act which is made illegal by 5 Eich. II. st. 1, c. 8. If a person who has a legal entry upon land which is in the possession of a wrongdoer, is allowed to enter peaceably through the outer door, it is still illegal for him to turn out the wrongdoer by violence. (Edwick v. Hawkes, 18 Chanc. Div. 199.) In an indictment for forcible entry it is not necessary to allege the prosecutor's title to the property ; it is sufficient to state possession ; but if the title is stated it need not be proved. Eolfe, B., — ^" Whether it may be proper to allege the title or not, it is clearly not in issue here. I shall merely leave it to the j ury to say whether the prosecutor was in posses- sion of this land ; and if so, did the defendants in a violent and tumultuous manner deprive him of such possession." (E. v. Child, 2 Cox, C. C. 102.) The principal statutes relating to forcible entry are:— 5 Eich. II. st. 1, c. 8 ; 8 Hen. YI. c. 9 ; 31 Eliz. c. 11 ; 21 Jac. I. c. 15. Other cases on this subject are :— Allen v. England, 3 F. & F. 49 ; E. v. Smyth, 5 C. & P. 201 ; Collins v. Thomas, 1 F. & F. 416 ; E. v. Wilson, 8 T. E. 357 ; Attwood v. Joliffe, 3 New Sess. Cas. 116 ; E. v. Studd, 14 L. T. 633 ; E. v. Dillon, 2 Chit. 314 ; E. v. Hoare, 6 M. & S. 266 ; E. v. Harland, 1 P. et I). 93 ; Newton v. Harland, 1 Scott, X. E. 474 ; and Beddall v. IMaitland, 17 Chanc. Div. 174. REFUSING TO AID A CONSTABLE. 53 Ref using to Aid a Constable. R. V. SHERLOCK. (1866) [21] [L. E. 1 C. C. E. 20; 35 L. J. (M. C.) 92; 12 Jur. N. S. 126; 13 L. T. 643 ; 14 W. E. 288 ; 10 Cox, C. C. 170.] An indictment for refusing to aid a constable in tlie execution of his duty, and to prevent an assault made upon him by per- sons in his custody with intent to resist their lawful apprehen- sion, need not show that the apprehension was lawful, nor aver that the refusal was on the same day and year as the assault, or tliat the assault which the defendant refused to prevent was the same as that which the prisoners made upon the constable ; neither is it any objection that the assault is alleged to have been made with intent to resist their lawful apprehension by persons already in custody. [No counsel appeared.] To support an indictment against a person for refusing to aid and assist a constable in the execution of liis duty in quelling a riot, it is necessary to prove — (1) tliat the constable saw a breach of the peace committed; (2) that there was a reasonable necessity for calling on the defendant for his assistance ; (3) that, when duly called upon to assist the constable, the defendant, without any physical impossibility or lawful excuse, re- fused to do so ; and in such case it is no ground of defence that from the number of the rioters the single aid of the defendant would not have been of any use. (E. v. Brown, Carrington & Marshman, 314.) In this case Baron Alderson said : " The offence imputed to the defendant consists in this — that Herbert being a constable, and there being a broach of the peace actually committing under his own view, he called upon the de- fendant to assist him in putting an end to it, and that he, without lawful excuse, refused to do so. It is no unimportant matter that the Queen's subjects should assist the officers of the law, when duly required to do so, in preserving the public peace ; and it is right that the state of the law should be known, and that all parties violating the duty which the law casts upon them should be fully aware of the very serious risk they run in case of refusal. It is necessary that you should be satisfied of three particulars — first, that the constable actually saw a breach of the peace committed by two or more persons. It is clear that all prize-fights are 54 nEFUSlNd TO AID A COS STABLE. illegal, and that all persons engaging in tlieni are pnnisliable by law. The constable, therefore, saw parties breaking the law, and if a breach of the peace is in the act of being committed in the presence of a con- stable, that constable is not only justified but bound to prevent it, or put a stop to it if it has begun, and he is bound to do so without a warrant. Secondly, you must be satisfied that there was a reasonable necessity for the constable Herbert calling upon other persons for their assistance and sui:)liort ; and in this case there is no doubt that the constable could not by his own unaided exertions have put an end to the combat. Lastly, the prosecutor must prove that the defendant was duly called upon to render his assistance, and that, without any physical impossibility or lawful excuse, he refused to give it. AVhether the aid of the defendant, if given, would have proved sufficient or useful is not the question or the criterion. Every man might make that excuse, and say that his in- dividual aid would have done no good ; but the defendant's refusal may have been, and perhaps was, the cause of that of many others. Every man is bound to set a good example to others by doing his duty in pre- serving the public peace." Prize-FigJi ting. [22] R. V. ORTON. (1878) [14 Cox, C. 0. 226 ; 39 L. T. 293.] Divers persons assembled in a room, entrance money being paid, to witness a fight between two persons. The combatants fought in a ring with gloves, each being attended by a second, who acted in the same way as at prize-fights. The combatants fought for about forty minutes with great ferocity, and severely punished each other. The police interfered and arrested the defendants, who were among the spectators. Uj)on the trial of an indictment against them for imlawfully assembling together for the purpose of a prize-fight, the chairman directed the jury that, if it was a mere exhibition of skill in sparring, it was not illegal; but if the parties met intending to fight 'till one gave in from exhaustion or injury received, it was a breach of the law and a prize-fight, whether the combatants fought in gloves FRlZE-FKHrriXa. bo or not, and left it to the jnry to say wTiether it was a prize-figlit or not : — Held, that the jury were properly directed. Kelly, C. B. : The question in this case is whether the prisoners were guilty of the offence of unlawfully assembling together for the purpose of prize-fighting. The jury found that this was a prize-fight. No doubt the combatants wore gloves, but that did not prevent them from severely punishing each other. There can be no doubt that, upon the facts, the convic- tion ought to be affirmed. Denman, J. : I am of the same opinion. The jury examined the gloves in their private room, and having the fact proved that the combatants severely mauled each other, they found rightly that this was a prize-fight. The question was entirely one for the jury. Lindley, Manisty, and Hawkins, JJ., concurred. [No counsel appeared.] "No one," saj's Mr. Justice Stephen, in his Digest of tlio Criminal Law, ' ' has a right to consent to the infliction of bodily harm uj)on himself in such a manner as to amount to a breach of the peace, or in a prize- fight, or other exhibition calculatefl to collect together disorderly jiersons." "All these fights are illegal," said Mr. Justice Burrough, in E. v. Billingham, 2 C. & P. 234. "Prize-fights are altogether illegal," said Mr. Justice Patteson, in E. v. Perkins, 4 C. & P. 537. All prize-fights are illegal, and all persons engaged in them are punish- able by law. (R. v. Brown, Car. & M. 314.) If one of the combatants in a prize-fight is killed, not only is his antagonist guilty of manslaughter, but also the seconds, promoters, and everybody present and approving. (R. V. Murphy, 6 C. & P. 103.) In R. V. Taylor (L. R. 2 C. C. E. 147), it was held that a mere stake- holder, who was not present at the fight, was not liable as an accessory before the fact in manslaughter, where one of the pugilists had been killed. "Nothing that the accused did," said Bramwell, B., " assisted or enabled the fight to take place." There is nothing unlawful in sparring, unless, perhaps, the men fight on until they are so weak that a dangerous fall is likely to be the result of the continuance of the game. Therefore, except in the latter case, death caused by an injury received during a sparring match does not amount to manslaughter. The sj^ectators of a sparring match are not imrticipes criminis, and their evidence, touching what occurred at the match, does hot require corroboration. (R. v. Young, 10 Cox, C. 0. 371. Vide also E. r. Hargrave, o C. & P. 170.) 66 FltlZE-FIGHTING. Persons who are present at a prize-figlit, and who have gone thither with the purpose of seeing the persons strike each other, are all principals in the breach of the peace, and indictable for an assault, as well as the actual combatants ; and it is not at all material which of the combatants struck the first blow. (R. v. Perkins, 4 C. & P. 537.) "Where a prize-fight is expected, the magistrates ought to cause the intended combatants to be brought before them, and compel them to enter into sureties to keep the peace till the assizes or sessions ; and if they refuse to enter into such securities, to commit them. (E. v. Billingham, 2 C. & P. 234.) Presence at a Prize-Fight. [23] R. V. CONEY AND OTHERS. (1882) [8 Q. B. D. 534 ; 51 L. J. (M. C.) 66 ; 46 L. T. 307 ; 30 AV. E. 678 ; 46 J. P. 404; 15 Cox, C. C. 46.] Two men fought with each other in a ring, formed by ropes supported by posts, in the presence of a large crowd. Amongst that crowd were the prisoners. It did not appear that the prisoners took any active part in the management of the fight, or that they said or did anything. They were tried and con- victed of assault, as being principals in the second degree. The jmy were directed that prize-fights are illegal, and that all persons who go to a prize-fight to see the combatants strike each other, and who are present when they do so, are guilty in law of an assault, and that if the persons charged were not casually passing by, but stayed at the place, they encouraged the fight by their presence, although they did not do or say anything. Upon this direction the jury found the prisoners guilty, but added that they did so in consequence of such direction of law, as they found that the prisoners did not aid or abet : — Held, by Denman, J., Huddleston, B., Manisty, Hawkins, Lopes, Stephen, Cave, and North, J J. (Lord Coleridge, C. J., Pollock, B., and Mathew, J., dissenting), that the above direction was not coiTect, that mere voluntary presence at a fight does not as FREfiENt'E AT A I'MI/.K-FKiUT. 67 a matter of law necessarily render persons so present guilty of an assault as aiding and abetting in such figlit, and that the conviction could not be sustained. Held by Lord Coleridge, C. J., Pollock, B., and Matliew, J., that the conviction could be sustained, that the legal inference to be drawn from mere presence, as a voluntary spectator, at a prize-fight is, in the absence of other evidence to rebut such inference, that the person so present is encouraging, aiding, and abetting such fight, and consequently guilty of an assault. Held, by the whole Court, that a prize-fight is illegal, and that all persons aiding and abetting therein are guilty of assault, and that the consent of the persons actually engaged in fighting to the interchange of blows does not afford any answer to the criminal charge of assault. Semblc, that the mere presence of a person, unexjilained, at a prize-fight, affords some evidence for the consideration of a jury of an aiding or abetting in such fight. [H. D. Grreene and Hammond Chambers for prisoner Coney ; Poland, J. R. W. Bros, and R. G. C. Mowbray for the Crown.] Although, mere voluntary presence at a prize-fight does not, as a matter of law, necessarily render persons so present guilty of an assault, as aiding and abetting in such fight; still, if it were shown that the defendants took a walk in the direction of the fight, for the purpose of seeing something of it, and d fortiori if they went by train with a large party for the purpose of being present, there would be evidence for the jury of participation and encouragement. Unnatural Offences. R. V. JELLYMAN. (1838) [24] [8 C. & P. 604.] The prisoner was indicted for having committed an unnatural offence with his own wife. Patteson, J., who tried the caiie, said : " There was a case 58 UNNATURAL OFFENCES. of this kind which I had the misfortune to try, and it there appeared that the wife consented. If that had been so here, the prisoner must have been acquitted; for although consent or non-consent is not material to the offence, yet, as the wife, if she consented, would be an accomplice, she would require con- firmation, and so it would be with a party consenting to an offence of this kind, whether man or woman." [Cui'wood for the jDrosecution ; Greaves for the prisoner.] The minimum punishment for the full ofience of sodomy, or bestiality, ■was formerly ten years penal servitude, but that is now altered by 54 & 55 Vict. c. 69. Section 11 of 48 & 49 Yict. c. 69 (the Criminal Law Amendment Act, 1885), enacts that any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure, the commission by any male person of any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the Court, to be imj^risoned for any term not exceeding two years, with or without hard labour. Before this Act was passed a large number of persons who had com- mitted acts of gross indecency and were indicted for inciting to sodomy, were acquitted through the evidence not being sufficiently strong to warrant a verdict of guilty. It will also be observed that this section of the Act will meet cases where men have been guilty of filthy practices together, but not with sufficient publicity to warrant a conviction for indecent exposure in a public place. Cases in point are : — E. v. Eeekspear, 1 M. C. C. 342 ; E. v. Cozins, 6 C. & P. 351 ; E. V. Jacobs, E. & E. C. C. 331 ; E. v. Mulreaty, 1 Euss. C. & M. 880; E. v. Allen, 1 C. & K. 495; E. v. Eowed, 3 Q. B. 180; E. v. AUen, 3 Cox, C. C. 270; E. v. Eobins, 1 Cox, C. C. 114; E. v. Cole, 1 Euss. C. &M. 881. Libel. — ♦ — [25] R. V. ADAMS. (1888) [22 Q. B. D. 66; 16 Cox, C. C. 544.] The defendant was tried at the Central Criminal Court in September, 1888, and convicted on an indictment charging him with having unlawfully and maliciously written and pubhshed to a young woman of virtuous and modest character a defama- tory libel of and concerning her, and of and concerning her I LIBEL. 59 character for virtue and modesty. The defendant having seen an advertisement for a situation inserted by the young woman in a newspaper, wrote, and sent to her at the address given, a letter which began thus: — "I have seen your advertisement in tlie ' Daily Telegraph.' I have no situation to offer you, but I should like to ask you a thing or two. I am a young man twenty-five. . . . . I should like to make certain proposals to you. Of course, this is strictly private between you and I." The letter then proceeded to state, in very plain language, that if Emily Susan Yuill (the advertiser) was a virgin, the writer would offer her anything up to 10/. to allow him to have immoral intercourse with her. He also said that perhaps one day she would lose her virginity for nothing ; that he would treat her well ; that he was a highly respectable young man ; and gave his word that, if she was willing to consent to his proposals, she should have whatever she asked in money. He asked her to reply in an evening paper stating the number of pounds she wanted ; and he concluded : " Think over it, dearest ; and if you are willing and answer as above, I wiU write to the same address as this letter." Evidence was given that Emily Susan Yuill, the j^ounger, inserted an advertisement for a situation, and that it w^as stated in it that replies were to be addressed to " K. S.," 21, liadnor Street, Old Street, E.G. ; that the prisoner wrote the letter in qu(!stion, and that it was received by Emily Susan Yuill, the elder, who opened and read it, and then handed it to her hus- band, who handed it to a sergeant of police, and that it was never seen by Emily Susan Yuill, the younger. On the jDrisoner being convicted, and the question being reserved, it was held that the conviction could be sustained, because, under all the circumstances, the defamatory letter might reasonably tend to provoke a breach of the peace. [Poland and C. "W. Mathews for the prosecution ; Blackwell for the prisoner.] A libel lias been defined as " a malicious defamation, expressed either 60 LIBEL. in printing or writing, and tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule." The reason why a libel is punishable criminally is, that it tends to pro- voke a breach of the peace, and therefore, in cases which tend to a breach of the peace, there need be no publication to a third party. It is no answer to an indictment for libel for the defendant to prove that the libel is true, unless he can also show that it was for the public benefit. In E. V. Holbrook (4 Q. B. D. 42), it was held that the general autho- rity given to an editor of a newspaper is not per se evidence of the pro- prietors having authorized the publication of a libel ; and in E. v. Boaler (21 Q. B. D. 284), on an indictment for publishing a defamatory libel, "knowing the same to be false," it was held that the defendant might be convicted of merely publishing a defamatory libel. Other cases on this subject are: — E. v. Burdett, 4 B. & Aid. 314; Sir Baptist Hickes's Case, Pop. 139; and Hob. 215; E. v. Curl, 2 Str. 789; E. V. Eansford, 13 Cox, C. C. 9 ; E. v. Wegerer, 2 Stark. 245; E. v. Peltier, 28 Howell's St. Tr. 530 ; E. v. Labouchere, 12 Q. B. D. 320 ; E. V. Pugin, Sessions Paper, C. C. C, Sept. 1874; E. v. Palmer, Sessions Paper, 0. C. C, vol. 106, p. 495 ; E. v. Brooke, 7 Cox, C. C. 251 ; E. v. " The World," 13 Cox, C. C. 305 ; Missilich v. Lloyds, 13 Cox, C. C. 575 ; Leyman v. Latimer, 13 Cox, C. C. 632. The statutes connected with this subject are : — 9 & 10 "Will. 3, c. 32 (Attacks on Chiistianity) ; Fox's Act (32 Geo. 3, c. 60) ; Lord Campbell's Act (6 & 7 Vict. c. 96) ; the Newspaper Libel and Eegistration Act, 1881 (44 & 45 Vict. c. 60) ; and the Act to Amend the Law of Libel, 1888 (51 & 52 Vict. c. 64). Perjury — Co7npete7it Jurisdiction. [26] R. V. HUGHES. (1879) [4 Q. B. D. 614; 48 L. J. (M. C.) 151 ; 40 L. T. 685; 14 Cox, C. C. 284.] A police constable in Wales procured a warrant to be illegally issued, without either written information or oath, for the arrest of a man named Stanley, on a charge of "assaulting and PEBJ L 'II r— (UJMPKTF.S T J ( 'RIS/> f( 'TI( >X. 61 obstructing him in tlio discliarge of his duty." On this Avarraiit Stanley was arrested, and brought before the magistrates, who, on the testimony of the police constable, convicted him. The accused defended himseK on the merits, and did not take any objection to the illegality of the manner in which he had been brought before the Court. It afterwards turned out that the constable had been lying, and that Stanley had not really " assaulted and obstructed " him as he had sworn. Accordingly the constable was put on his trial for perjury, and it was con- tended on his behalf that he ought to be acquitted, because, on account of the original informality, the proceedings in which he had sworn were coram non J u dice, in other words, were not before a competent jurisdiction. This view of the matter, how- ever, was not adopted by the Court, and the conviction was affirmed. " I think," said Lopes, J., " the warrant in this case was mere process for the purpose of bringing the party complained of before the justices, and had nothing whatever to do with the jurisdiction of the justices. I am of opinion that whether Stanley was summoned, brought by warrant, came voluntarily, was brought by force, or under an illegal wanant, is immaterial. Being before the justices, however brought there, the justices, if they had jurisdiction in respect of time and place over the offence, were competent to entertain the charge, and, being so competent, a false oath, wilfully taken, in respect of something material, would be perjury." [C. S. Bowen and Muir Mackenzie for prisoner ; Sir John Holker, Att.-Gen., Poland, and Dicey for Crown.] To constitute the crime of pcrjuiy it is necessary not only tliat the de- fendant should swear falsely, but also that the swearing should be in a judicial proceeding and before a competent jurisdiction. If it turns out at the trial that the oath was taken before a person who had no lawful authority to administer it, or who had no jurisdiction of the cause, the defendant must bo acquitted. In R. r. Lloyd (19 Q. B. D. 213), the prisoner was convicted of perjury, alleged to have been committed in an examination by " the Court " under 62 PERJURY— COMPETENT JURISDICTION. sect. 27 of tlio Bankruptcy Act, 1883. It appeared that lie was summoned under sect. 27 before a County Court (Liverpool) having juiisdiction in bankruptcy. The oath was administered to the prisoner in Court by the registrar, but having administered it that official seems to have thought he had done enough. He remained in Court while the prisoner's examina- tion was conducted in another room. It was held, that there had been no vaUd examination by " the Court " within the meaning of sect. 27, and that the conviction must be quashed. ' ' A man is brought before the regis- trar," said Lord Coleridge, C. .T., " who under the Act and Eules is the Court. The registrar administers the oath, but ceases to take any active part in what foUows. He goes away and tiansacts other business. The witness, who, according to the Act and Eules, is to be examined before him, is taken to a room, where the examination proceeds in the registrar's absence. What has been called his legal presence is his actual absence. The witness is then indicted for perjury committed before the registi'ar. But the examination has not been conducted before the registrar." " It is said in the case," said Hawkins, J., " that the registrar was at hand and ready to come if wanted. But this does not disturb the fact that he was not in the room. The examination, which is said to have taken place before him, took place behind his back." As ah'eady stated, to constitute the full crime of perjury, the false swearing must have been in a judicial proceeding. But if it has been before some person authorized to administer an oath, though not in a judicial proceeding, e.