THE 1 [BRARY THE UNIVERSITY OF CAL [FORNIA LOS ANGELES SCHOOL OF LAW You I. C. C. E. THE INCORPORATED COUNCIL OF LAW REPORTING ENGLAND AND WALES. Jtttmbcrs of tf>e Council. Chairman SIR KOUNDELL PALMER, Knt., M.P., Q.C. EX-OFFICIO MEMBERS. THE ATTORNEY-GENERAL, SIR J. D. COLERIDGE, Knt, M.P. THE SOLICITOR-GENERAL, SIR GEORGE JESSEL, Knt, M.P. ELECTED MEMBERS. MR. SERJEANT O'BRIEN ) __ } Serjeants' Inn. MR. SERJEANT PULLING ) SIR KOUNDELL PALMER, Knt, M.P., Q.C. ) T> -n T< vn s\ n \ Lincoln's Inn. R. P. AMPHLETT, Esq., M.P., Q.C. j WILLIAM FORSYTE, Esq., Q.C. j H. WARWICK COLE, Esq., Q.C. j IimerTem P le - T. W. GREENE, Esq., Q.C. ) ' } Middle Temple. JOHN GRAY, Esq., Q.C. JOHN A. RUSSELL, Esq., Q.C. ) WILLIAM CRAGROFT FOOKS, Esq., Q.C. j WILLIAM WILLIAMS, Esq. (Firm Messrs. Currie and ") Williams), Lincoln's Inn Fields / Incorporated W. S. COOKSON, Esq. (Firm Messrs. Cookson, Waine- ( Law Society, wright, & Pennington), 6, New Square, Lincoln's Inn J Secretary JAMES THOMAS HOPWOOD, Esq., 3, New Square, Lincoln's Inn. THE LAW REPORTS. CASES DETERMINED BY THE Court for Croton Cases REPORTED BY Hox. E. CHANDOS LEIGH, L. W. CAVE, E. A. C. SCHALCH, AND AKTHUR WILSON, BARRISTERS-AT-LAW. EDITED BY JAMES REDFOORD BULWER, Q.C. YOL. I. FROM MICHAELMAS TERM, 1865, TO TRINITY TERM, 1872, BOTH INCLUSIVE. XXIX XXXV VICTORIA. LONDON: for % Incorporate Council of gafo ^porting for (England anb BY WILLIAM CLOWES AND SONS, DUKE STREET, STAMFOKD STREET; AND 14, CHAKIXQ CROSS. PUBLISHING OFFICE, 51, CAREY STREET, LINCOLN'S INN, W.C. 1872. SB aS C?5 v.l TABLE OF CASES KEPOKTED IN THIS VOLUME. A. Eeg. v. Allen v. Anderson v. Ardley B. Eeg. v. Bailey v. Balls v. Barnes v. Barrow v. Beale v. Bowers v. Bracken ridge v. Brown v. v. Bullock v. Buttle C. Eeg. v. Carpenter v. Chambers v. Child v. Clark v. Cooke v. Curgerwen D. Eeg. v. Davis v. Dunning PAGE 367 161 301 347 328 45 156 10 41 133 244 70 315 248 29 341 307 54 295 1 272 290 E. Eeg. v. Elworthy F. Eeg. v. Falkingham . IT TTirtli PAGE 103 222 172 7 39 320 217 139 65 77 241 253 221 278 282 284 184 212 334 of Chart 237 G. Eeg. v. Glyde H. Eeg. v. Hadfield I. Eeg. v. Inhabitants and Longbridge 708010 TABLE OF CASES BEPOETED. [C. C. E. VOL. L J. Beg. v. Jarvis v. Jenkins Reg. v. Kay v. Keena v. Kilham Reg. v. Lowrie v. Lumlev M. Reg. v. Manning - v. Marsdeu v. Martin v. McGrath v. McKale v. Morriss Reg. v. Naylor v. Newbonlt P. Reg. r. Parker v. Parsons v. Payne L , B - r. Prince v. Proud PAGE 96 187 257 113 261 61 196 338 131 56, 214 378 205 125 90 4 344 225 24 27 349 150 71 R. Reg. v. Rea . /j "Rpowlrm find T^lnnv PAGE 365 31 12 362 21 200 80 136 99 75 15 264 145 118 20 158 110 266 230 182 194 377 49 315 177 107 363 274 356 122 311 aa v. Redman v. Rice ^^^^ ot "Rtrlfind s. Reg. v. Saunclers - v. Sven Seberg T. Reg. v. Taylor v. Tyson W. Reg. v. \Villis v. White V TABLE OF OASES CITED. A. PAGE . . , , , ~ t 1 Leach, 294, 297, 299, n. (a) ; AicklesCase . . . .j S ee also p. 300, n. (a) 104,105 Allen v. The Sea, &c., Assurance Company 9 C. B. 574 . . . 261 B. Baker w. Locke . -; r 1 . < 34 L. J. (C.P.) 49 .30 Barrack v. McCullock . . . 3 K. & J. 110 . . .271 Barrow v. Barrow . . . v 4 K. & J. at p. 419 . . 83 Bates, Ex parte . rT5 , . . 2 M. D. & De G. 337 . . 83 Bell's Case .... Foster's C. L. 430 . . 288 Blade v. Higgs . . . . 11 H. L. C. 621 316, 317, 319 Bryan's Case . . . . 2 F. & F. 567 . . 59, 60 Burt v. Burt . . . . 2 Sw. & Tr. 88 368, 371, 372, 370 C. Chambers v. Miller . . . 32 L. J. (C.P.) 30 . . 152 ( 6 B. & C. 394, 398, 399; 1 Colling v. Treweek . . .] Tayl. Ev. 4th ed. s. 422, p. ( 432 . . . . 105 Cutten, Ex parte . . . . 1 Gl. & J. 317 . . .83 D. Davenport v. Nelson . , .4 Camp. 26 . .82 Douglass's Case . . . .1 Camp. 212 . ... .59 E. Elsworth's Case . . . .2 East, p. C. 986 . . 288 F. Farrer v. Close .... Law Rep. 4 Q. B. 602 . . 232 Fletcher v. Calthorpe . . . 6 Q. B. 880 . . . 124 Freegard v. Barnes . . .7 Ex. 827 . 76 vm TABLE OF CASES CITED. [C. C. R. VOL. I. G. Gardner's Case Genesee Chief v. Fitzhugh Goldie v. Gunston Graves v. Short . Gray v. Reg. Grevil's Case Dears. & Bell. C. C. 40 12 Howard, 443 4 Cam p. 381 . -.r. Cro. Eliz. 616 . 11 Cl. & F. 427 1 And. 194 PAGE 59,60,61 . 165 . 83 381, 382 . 380 . 288 Hawkcsworth v. Showier , Hilton v. Eckersly Hornby v. Close . H. 12 M. & W. 45, at p. 47 . 355 6 E. & B. 47, 53 . 232, 234 Law Rep. 2 Q. B. 153 . 232, 234 Jackson's Case Jacobs v. Layborn Jennings's Case . J. 1 Moo. C. C. 119 11 M. & W. 685 2 Lew. C. C. 130 128, 130 37,38 117 Kitchen v. Shaw . K. 6 Ad. & E. 629 28 L. Lapsley v. Grierson Lavey v. The Queen Leary v. Lloyd . Lee v. Risdon Lembro v. Hamper Lewis's Case Lonsdale (Lord) v. Rigg 1H. L. C. 498. ;H . 197 17Q.B.496 . .' 292,294 3 E. & E. 178 . . 265,' n. (2) 7 Taunt. 188, 189, at p. 191 316, 318 Cro. Eliz. 147 . . . 286 Foster's Crown Cases, 116 . 204 1H. &N. 923. . 317 ilawson v. Hartsink McPherson v. Daniels Morrison's Case , M. 4 Esp. 102 10 B. & C. at p. 272 Bell, C. C. 158 . 71 360 260 Nash v. Reg. Needham v. Smith Nepean v. Doe d. Knight Nicholson's Case . Norcntt v. Dodd . 4 B. & S. 935, 944 **< . 242 2Vern. 464 . I'"' . 38 2M. &W.894, 914; 2 Sm. L. C. 6th ed. 510 ' if> . ' ' 197, 198 2 Leach, 610 ; 2 East, P. C. c. 16, s. 103, p. 669 . .127 Cr. & Phill. 100 . 271 Oliver's Case 0. 4 Taunt, at p. 274; 2 Leach, 1072. . . 128,129 C. C. E. VOL. L] TABLE OF qASES CITED. Phillips v. Kingfield Points v. Attwood Poole v. Canning . Powell v. Hoyland Price v. Green P. 1 Applet. 375 . 6 C. B. 38, 49 . Law Rep. 2 C. P. 241 6 Ex. 67, at p. 70 16 M. & W. S46 PAGE 71 30 83 298 233 R. Reg. v. Abbot v. Adams . v. Allen v. Allison . v. Arnall v. Atkinson . v, Baldry v. Bankes . v. Bannen . v. Barnes v. Bartlett . v. Batty v. Berry v. Bleasdale . v. Boulton . v. Bradford . v. Brawn v. Brecon v. Brings v. Brooks v. Bryan v. Burgon . v. Camplin . v. Chandler . v. Gliapman . v. Child v. Christopher v. Clay r. Cockbnrn v. Cockroft . v. Cook v. Cory v. Cryer v. Curgerwen v. Dalmas . v. Deelcy v. De Mattos v. Depardo . v . Dodd _ . v. Dolan v. Dring v v. Dundas . v. Ellis v. Elrington v. Essex v. Evans v. Eyre VOL. I. C. C. K. 1 Den. C. C. 273 1 Den. C. C. 8.8 1 Mood. C. C. 494 Law Rep. 1 C. C. 367 11. & R. C. C. 109 8 Cox, Cr. C. 439 2 East, P. C. 673 2 Den. C. C. 430 8 C. & P. 574 . 2 Moo. C. C. 309 2 Den. C. C. 59 1 Cox, Cr. C. 105 2 Moo. C. C. 257 Bell, C. C. 46 . 2 C. & K. 765 . 1 Den. C. C. 508 Bell, C. C. 268 . 1 C. & K. 144 . 15 Q. B. 813 . Dears. & Bell, C. C. 98 1 Cox, Cr. C. 6 Dears. & B. C. C. 265 Dears. & B. C. C.' 11 1 Den. C. C. 89 Dears. C. C. 453 I Den. C. C. 432 Law Rep. 1 C. C. 307 Bell. C. C. 27 . 5 Cox, Cr. C. 146 3 Cox, Cr. C. 543 II Cox, Cr. C. 410 22 L. T. (N.S.) 216 10 Cox, Cr. C. 23 Dears. & B. C. C. 324 Law Re]). 1 C. C. 1 1 Cox. Cr. 0. 95 11 Cox, Cr. C. 607 70. & P. 458 . 1 Taunt. 26 . 18 L. T, (N.S.) 89 Dears. C. C. 436 Dears. & B. C. C. 329 6 Cox, Cr. C. 380 1 Frost & Fin. 309 1 B. & S. 688 . Dears. & B. C. C. 371 Leigh 5 1 Camp. 549. n. . . 234 Law Rep. 1 C. C. 182 . . 364 Law Rep. 1 C. C. 194 . 242, 243 Leigh & Cave, C. C. 233 298, 299, 300 1 Den. C. C. 387 . 139, 143, 144 Leigh & Cave, C. C. 29, 33 . 44 Bell, C. C. 289 . . . 233 2 Den. C. C. 325 . . 102 Not reported . . .216 1 Moo. C. C. 86 ..." . 35 Dears. C. C. 358 . . 132 Dears. & B. C. C. COO ; 2 Mood. & Rob. 446 . . 43.45,91 15 Jur. 318; 2 Den. C. C. 447, note ... 97, 98 7 Ad. & E. 461, 469 . . 30 2 Den. C. C. 14 . . 300 Dears. C. C. 353 . . 120 8 Cox, Cr. C. 438 . . 112 1 Leach, 520 ; 2 East, P. C. 673 154 2 Den. C. C. 433 ; 3 Russ. on Crimes, 4th ed. 377 . 97, 98 6C. &P. 626 . . .331 6 C. & P. 390 . . 128, 129 8 C. & P. Ill . . . 207 1 Den. C. C. 559 . . 303 Leigh & Cave, C.C. 81 195, 242, 380 3 C. & K. 106 3 C. & P. 589 . 6 B. & C. 102 . 2 Stark. N. P. C. 241 4 C. & P. 544, 545 1 Ld. Baym. 711 2 Moo. & Rob. 17, 19 1 Leach, C. C. 493 3 Stark. 62 Saver, 202 5 T. R. 311 . Russ & Ry. 459 1 Moody, 474 . 6 T. R. 286 . 2 A. & E. 540 . 1 Sess. Ca. 180 6 C. & P. 157, 160 2 East, 5 B. & R. 211 . Russ. & Ry. 487 1 Moody, 434 . 227, 228 335, 337 292, 293 335, 337 . 189 . 79 . 262 . 286 . 242 . 380 292, 293 . 213 . 180 . 268 197, 198 . 380 189, 192 . 78 335, 336, 337, 338 . 157 180 C. C. E. VOL. I] TABLE OF CASES CITED. sin PAGE Rex v. Longstreeth 1 Moo. C. C. 137 . 153, 155 v. Nicholas .... 6 Cox, Cr. C. 120 . .390 v. Martin .... 6 C. & P. 562 . . 335, 337 v. Parkes .... 2 Leach, at p. 785 . '." . 202 v. Ryan .... 2 Moo. C. C. 15 . . 287 - v. Smith .... 1 Moo. C. C. 289 . . 353 v. Spilsbury .... 7 C. & P. 187, 190 . . 190 v. Turner .... 1 Moo. C. C. 239 . . 287 v. Twyning .... 2 B. & Ad. 386 . 197, 198 v. Van Butchell 3 C. & P. 629, 631 . . 189 v. Williams . 8 C. & P. 286 . . . 157 v. Withall . . . 1 East, P. C. 517 . . 242 v. Wood 2 Leach, 721 . . . 207 v. Wroxton .... 4 B. & Ad. 640 . . 365 Rickman's Case . 2 East, P. C. 1034 . . 346 s. ,< t Salway v. Wale .... Moore, 655 . 202 Sandiman v. Breach 7 B. & C. at p. 100 . .28 Sattler's Case .... D. & B. C. C. 525 . . 162 Sedley's, Sir Charles, Case 1 Sid. 168 . . . 28S Sharp v. Taylor .... 2 Phill. 801 . . .233 Sims v. Thomas .... 12 A. & E. 536 . . 270 Stedman's Case .... Cro. Eliz. 137 . . . 292 Steel v. Smith . . . ' 1 B. & A. 94, 99 j V ^ . 286 T. Tenant v. Elliott . . ) ^ir: 1 B. & P. 3 . . .233 Thomas v. Lane . . ) t ?o'J 2 Sumner, 1 . 164, 168, 170 Tongue v. Tongue 1 Moo. P. C. 90 . 365, 366 u. United States Bank v. Bank of Georgia . 10 Wheaton, 333 . . 152 United States v. Coombs . 12 Peters, 72 . 164, 168, 170 1 Mason, 152 . JBf . 165 v, lllilliniOIl . , f "\\7"l-|rtQ 4- A_1 O ~l RA. 5 Wheat! 76 ! 164,* 168, 169, 170 V. Vicary v. Farthing . Cro. Eliz. 411 . " '' a . 381 Vaughan v. Vanderstegen 2 Drew. 408 . . , 83 v. Worrall . . 2Sw. 400 . . . 38 W. Watson v. Wace .... 5 B. & C. 153 . . . 83 Wavell's Case . 1 Moo. C. C. 224 . . 59 West, Ex parte .... 22 L. J. (Bank) 71 . .84 White v. Garden .... 10 C. B. 919, at p. 927 . 298 Winsor v. Reg. .... .6B.&S.143;7B.&S.490 350,554 Witchell's Case .... 2 East, P. C. 830 . . 298 Witham v. Lewis .... 1 Wils. 48 ... 380 Woodcock's Case .... 1 Leach, C. C. 500, 502 189, 192 Worrall v. Jones .... 7 Bing. 395 . . .351 Y. Yardley v. Arnold . 10 M. & W. 141, 145 . .38 VOL. I. C. C. E. d 4 CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN MICHAELMAS TEEM, XXIX VICTOKIA. THE QUEEN v. JOHN CURGERWEN. 1865 -n- A-L j Nov. II. Bigamy Absence during seven years. Upon a trial for bigamy, when it is proved that the prisoner and his first wife have lived apart for the seven years preceding the second marriage, it is incumbent on the prosecution to shew that during that time he was aware of her existence ; and, in the absence of such proof, the prisoner is entitled to be acquitted. THE following case was stated by Willes, J. : The accused was tried before me at the last Cornwall Assizes for bigamy, when the question arose whether, when a husband and wife have lived apart for seven years, and he marries again, there being no evidence to shew his knowledge of the existence of his first wife (so to speak), he is liable to be convicted of bigamy, unless he can prove that, at the time of the second marriage, he did not know of his first wife being alive ; in other words, whether the burden of proof of absence of such knowledge rests upon the prisoner, a question left undecided in Reg. v. Briggs. (1) The prisoner was a man-of-war's man. The first marriage was to one Charlotte Curgerwen on the 1st day of September, 1852, at Buryan, in Cornwall. After the marriage the couple went to Ireland, where the prisoner was then in the Coast Guard service ; and they lived together until June, 1853, when, in consequence of some disagreement, she left him, and returned to her father's house (1) Dears & Bell, C. a 98 ; 26 L. J. (M. C.) 7. VOL. I. B 4 2 CROWN CASES RESERVED. [L. R. 1865 at Buryan. In January, 1854, the prisoner went to Portsmouth TIIK QUEEN to join a ship of war which was proceeding to the Baltic, and was CVBQEBWEN. afterwards engaged in the Kussian war. Upon that occasion the first wife went to Portsmouth to see the prisoner off; and, after doing so, she, in or about March, 1854, returned to her father's house, where she remained without seeing or corresponding with her husband, or, so far as the evidence went, knowing whether he was dead or alive until shortly before the prosecution. There was no evidence that he had in the mean time ever been near where she lived, or had seen or heard of her or any member of her family, or known whether she was dead or alive. After the war, but at what precise time did not appear, the prisoner returned to England, and was again employed in the Coast Guard. On the 9th of July, 1862, the prisoner, being- then at a Coast Guard station at a small place upon the coast of Devon, contracted the second marriage with one Eliza Hardy ; and they lived together as man and wife undisturbed until this prosecution. A short time before the prosecution he was promoted, and sent to a station in Cornwall, about twenty miles from where his first wife was living. This led to the proceedings. It appears, therefore, that the prisoner and his first wife had been living apart for more than eight years at the time of the second marriage, and under circumstances in which it was at the least equally probable that he did not know, as that he did know, of his first wife being alive, if not, indeed, as I inclined to think, more probable that he did not know. A statement of the prisoner before the magistrates was put in; but, fairly construed, it amounted only to an admission of having been married twice, and of his then that is, when before the magistrates knowing that his first wife was alive. Prideaux, for the prisoner, contended that there was no evi- dence upon which a conviction could properly take place, and that the burden of proving absence of knowledge was not upon the prisoner. Knowing that the question of burden of proof in these cases was unsettled, I determined, in the event of a conviction, to reserve these objections ; and I directed the jury, in substance, that the fact of the second marriage whilst the first wife was alive made a primd facie case, and that the burden was upon the prisoner to VOL. I.] MICH. TERM, XXIX VICT. 3 bring himself within the exception in the statute ; and, it being 1865 clear that the living apart for seven years was proved, they ought THE QCEEN to acquit him if they were satisfied that he did not know of his CCBGEUWEN. wife being alive within the seven years, and convict if the evidence did not so satisfy them. The jury found the prisoner Guilty ; and I let him out on bail, until the opinion of the Court for Crown Cases Reserved was taken, upon the propriety of the conviction. This case was considered on the llth of November, 1865, by POLLOCK, C.B., WILLES, J., PIGOTT, B., and SHEE and MONTAGUE SMITH, JJ. No counsel was instructed to argue on either side ; but Prideaux, amicus curias, referred the Court to Eeg. v. Heaton, (1) where it was held by Wightman, J,, that the burden of proof that a prisoner charged with bigamy has not been continually absent from his wife for seven years, and that she was known by him to be living within that time, is on the prosecution, on the ground that the prisoner cannot prove the negative. He also called the attention of the Court to Eeg. v. Ellis, (2) in which Willes, J., said that, where the husband had been living apart from his wife for seven years, under such circumstances as to raise a probability that he supposed that she was dead when he re-married, it might be necessary on the part of the prosecution to offer evidence to shew that he knew that his first wife was alive. POLLOCK, C.B. This question has arisen more than once before ; and we are now asked to settle the law on the subject. The term " burden of proof " is an inconvenient one, except when a person is called upon to prove an affirmative. Our attention has been called to a note by the editor of Russell on Crimes, (3) known as a gentleman of great learning, ability, and research, who appears to have adopted the view that the burden of proof lies on the prisoner. We think, however, that it is contrary to the general spirit of the English law that the prisoner should (1) 3 Fost. & Fin. 819. (3) Russell on Crimes and Misde- (2) 1 Fost. & Fin. 809. meanors, 4th edition, by Greaves, vol. 1, p. 270, note (I.) CROWN CASES RESERVED. [L. E. 1865 bo called on to prove a negative ; and that it is better, and more TIIK.QII:KN in agivnnnil \\iili tin- general ilncli-inc iind priiH-i|l-s of our CUHGEBWEX. criminal law, to adopt the rule laid down by Wightman, J., in Reg. v. Ileaton. (1) Conviction quashed. Nov.U. THE QUEEN v. FRANCIS NAYLOR. False Pretences Intent. The crime of obtaining goods by false pretences is complete, although, at the time when the prisoner made the pretence and obtained the goods, he intended to pay for them when it should be in his power to do so. THE following case was stated by the Deputy-Kecorder of the city of Chester : This prisoner was tried before me at the Quarter Sessions for the city of Chester, on the 14th of July, 1865. There were three counts in the indictment ; but the only one which became material was the second, which stated that " the said Francis Naylor unlaw- fully, knowingly, and designedly did in a certain letter written by him, the said Francis Naylor, and sent by him to the said Mary Ingram, falsely pretend to the said Mary Ingram that the said Francis Naylor had seen a person named Moss (meaning one Elias Moss, of Koscoe Arcade, in the town of Liverpool, furniture-broker, the said Elias Moss then and long before being well known to the said Mary Ingram as a furniture-broker), and that the said Elias Moss was furnishing a house, and wanted two Kidderminster carpets, two felt carpets, and twelve yards of stair carpets, and that the said Elias Moss wanted the said carpets to come by passenger train, by means of which said false pretences contained in the said letter, the said Francis Naylor did then unlawfully obtain from the said Mary Ingram two Kidderminster carpets, two felt carpets, and twelve yards of stair carpet, with intent thereby then to defraud. Whereas, in truth and in fact, the said Francis Naylor had not then seen the said Elias Moss, nor did the said Elias Moss then want the said carpets or any carpets to come by passenger train, nor had the said Elias Moss then ordered the said carpets, (1) 3 Fost. & Fin. 819. VOL. I.] MICH. TEEM, XXIX VICT. or any carpets whatsoever, to the great damage and deception of 18C5 the said Mary Ingram, to the evil example," &c. THE The prosecutrix, Mary Ingram, at the time of the transaction in question, carried on the business of an upholsterer and furniture- dealer at Chester. For some considerable time prior to the month of January, 1865, the prisoner had been employed by the prose- cutrix to procure orders for goods to be supplied by her ; and, during the six months prior to the transaction in question, goods to a considerable amount had been supplied by the prosecutrix, in consequence of representations by the prisoner that he had received orders for them. In the month of January, 1865, the prisoner wrote a letter to the prosecutrix containing the statement set out in the second count, that is to say, that a person named Moss, a furniture-dealer at Liverpool, was in want of some carpets of sizes. and descriptions mentioned in the letter, and that such carpets were to be sent by passenger train to Moss's place of business. In con- sequence of this letter the prosecutrix forwarded by railway a package containing carpets of the size and description mentioned in the letter, such package being directed to Moss at his place of business at Liverpool, where it arrived in due course. The value of the . carpets so sent was 12?. Prior to the arrival of the package, the prisoner, who had been previously acquainted with Moss, and also with persons in his employment, applied to one of such persons, stating that he expected a package of carpets from Chester to be sent to Moss's, and requested that it might be permitted to remain there. Permission was given ; and, after the arrival of the carpets at Moss's, the prisoner applied there for them, and they were delivered to him. The statement in the letter that Moss was in want of the carpets was false. Neither Moss nor any person in his employment had had any communica- tion with the prisoner about carpets prior to his writing the letter containing such statement. The prosecutrix, in cross-examination, stated that payments on account had been made to her by the prisoner, both prior and subsequent to the transaction in question, and that such payments amounted to 465?. ; but that the carpets in question had never been paid for. She further stated, on cross- examination, that, prior to the transaction in question, the prisoner had accepted bills of exchange for her accommodation. She also G CROWN CASES RESERVED. [L. R. 1865 stated that she expected to receive the price of the carpets from THE QUEEN the prisoner, but that she supplied them in consequence of his NATLOB. representation that Moss wanted them, as she knew that Moss was a respectable and solvent person. The jury found, in answer to questions put by me that the prisoner's statement that Moss wanted the carpets was false to his knowledge ; that he made it to induce the prosecutrix to part with the carpets ; that the prosecutrix was induced to part with the carpets by reason of such false pretence ; and that the prisoner, at the time he made the pretence and obtained the carpets, intended to pay the prosecutrix the price of them when it should be in his power to do so. Upon this finding, the counsel for the prisoner contended that the jury had negatived the intention to defraud, and, consequently, that the prisoner was entitled to a verdict of Not Guilty. I enter- tained some doubt upon the question, and, therefore, reserved it for the consideration of the Court for Crown Cases Reserved. I directed a verdict of Guilty to be entered, but postponed judgment ; and the prisoner was discharged upon recognizance of bail to appear and receive judgment. The question for the consideration of the Court is, whether upon the facts above stated, and the finding of the jury, a verdict of Guilty or a verdict of Not Guilty ought to have been entered. This case was considered on the llth of November, 1865, by POLLOCK, C.B., WILLES, J., PIGOTT, B., and SHEE and MONTAGUE SMITH, JJ. No counsel appeared on either side. POLLOCK, C.B. We are all of opinion that this conviction must be affirmed. Conviction affirmed. VOL. I.] MICH. TERM, XXIX VICT. THE QUEEN v. WILLIAM FISHER. ]8G5 Nov. 11. Malicious Injury Damaging Engines 24 & 25 Viet, c. 97, s. 15. The prisoner plugged up the feed-pipe of a steam-engine, and displaced other parts of the engine in such a way as rendered it temporarily useless, and would have caused an explosion, if the obstruction had not been discovered, and, with some labour, removed : Held, that he was guilty of damaging the engine with intent to render it useless, within the meaning of the 24 & 25 Viet. c. 97, s. 15. THE following case was stated by the Chairman of Quarter Sessions for the county of Suffolk : At the General Quarter Sessions of the Peace for the county of Suffolk, held by adjournment at Bury Saint Edmunds on the 4th of July, 1865, William Fisher was arraigned upon an indictment framed on the 24 & 25 Viet. c. 97, s. 15, (1) which charged that he unlawfully, maliciously, and feloniously damaged, with intent to destroy or render useless, a certain thrashing machine, the pro- perty of Edward Kersey Green. At the trial it was shewn that the engine in question had been under the prisoner's care as engine-driver and servant to the prosecutor, and that, on Saturday the 6th of May last, in conse- quence of a difference between him and the prosecutor, the prisoner left prosecutor's service. On Monday, the 8th of May, the prisoner did not come to work ; but in the course of the day he told the prosecutor that he had not a man who could drive the engine, and that he would be glad to take him back. When the prosecutor and his other men went to work the engine, they got up the steam, and tried to start it, but found they could not get it to move. They then unscrewed the engine to ascertain the cause, when they discovered that the working parts of the engine had been so tightly screwed up that the steam-power of the engine was not sufficient to set them in motion ; and it was proved that this must have been the result of design and not of accident. (1) That section enacts that, " Who- or moveable, used or intended to be soever shall unlawfully and maliciously used for sowing, reaping, mowing, cut, break, or destroy, or damage with thrashing, ploughing, or draining, or for intent to destroy or to render useless, performing any other agricultural opera- any machine or engine, whether fixed tion .... shall be guilty of felony." 8 CROWN CASES RESERVED. [L. R 18G5 They also discovered that the plug of the pump which supplies T m n, , , N i lie cnginc'-boilcr \\ ii h mM \\;itcr lm-1 limi t.-ikm mil ;my ln's direction, IMICS to try if the prisoner will receive them. The goods were delivered to the prisoner for no bond fide purpose. ERLE, C.J. Suppose a person is taking a basket of stolen wheat along a road, by direction of the thief, to an accomplice, and a policeman sees him, stops him, ascertains that the property is stolen, yet tells him to go on, and watches him deliver the wheat to the accomplice, could not the accomplice be convicted? In Reg. v. Dolan (1) Cresswell, J., distinguishes between the case of stolen goods being restored to the owner or being retained in the custody of the police. Here the porter seems not to have been informed that the property was stolen. MARTIN, B. The policeman tells the porter not to part with the parcel ; and the porter subsequently by his direction takes it to the prisoner. That being so, she was receiving it from the policeman ; and, although at the time she believed she was com- mitting a felony, she was not doing so.] The prisoner really received the property from the company, as the innocent agents of the thief. [MELLOR, J. The company sent the parcel to the address given by the thieves. ERLE, C.J. The company were merely innocent bailees of the thief a position which does not prevent the goods from being received as stolen goods. Many burglaries are committed by means of innocent agents. MARTIN, B. When do goods cease to be stolen ?] When they get back into the possession of the real owner. Sup- pose the policeman, instead of opening the bundle, had simply watched it without saying anything to the porter, surely then the goods would not have ceased to be stolen ; and the addition of a manual prehension by the policeman cannot make any difference. Pearce, in reply. The policeman was in the employ of the company; so that his interference was that of the company. Moreover, the thieves were actually taken into custody on the Sunday night, and the property was not sent on to the receiver until the Monday morning. (1) Dears. C.C. 436 ; 24 L. J. (M.C.) 59. VOL. I.] HILAET TEEM, XXIX VICT. 19 EKLE, C.J. My own opinion is that the company were the 1866 innocent agents of the thieves, and that the female prisoner was THE QUBEK rightly convicted ; but, as the majority of the Court are of a SCHMIDT. different opinion, the conviction must be quashed. I also think that the company had such a property in the goods as to support the indictment. MARTIN, B. I am of opinion that this conviction is wrong. The property is either wrongly or rightly laid in the indictment ; if rightly laid, there was a delivery by the owners after the goods had been returned to them. KEATING, J. I agree with my Brother Martin. If the goods got back into the possession of the owner, then, according to Reg. v. Dolan (1), the conviction is wrong. In this case, the property is laid in the railway company ; and they must be taken to be the owners. Then the property is stolen from them, and subsequently gets back into their possession. The felonious transitus was then at an end. MELLOE, J. I agree with the Lord Chief Justice. The property is rightly laid in the company, because at the time of the larceny there was a bailment to them by the true owners. I concur in the propriety of the decision in Reg. v. Dolan (1) ; but there the goods got back into, the possession of the true owner. In this case the policeman merely looked at the goods, and did not take pos- session of them. LUSH, J. I agree with my Brother Martin. The goods were brought back into the possession of the company by the thief; and, if they had then carried them in the usual course, I should agree with the Lord Chief Justice. But, while the goods are in their possession, they are discovered to be the stolen property . and after that the railway company did not intend to carry them on in the usual course, but made a mere pretence of doing so, and really held them to the order of the true owner. Conviction quashed. Attorneys for prosecution : Faifhfuil & Coode. Attorney for prisoner : A. T. MiHs. (1) Dears. C. C. 436; 24 L. J. (M. C.) 59, 20 CROWN CASES RESERVED. [L. R. 18G r, THE QUEEN v. CALEB SHERLOCK. Constable Refused to aid in the execution of his duly Indictment. An indictment for refusing to aid a constable in the execution of his duty, and to prevent an assault made upon him by persons in his custody with intent to resist their lawful apprehension, need not show that the apprehension was lawful, nor aver that the refusal was on the same day and year as the assault, or that 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. THE following case was stated by the chairman of Quarter Sessions for the county of Sussex : At the general Quarter Sessions, holden at Lewes, on Monday, the 2nd of July, 1865, Caleb Sherlock was tried on an indictment of which the following is a copy : Sussex to wit " The Jurors for our Lady the Queen upon their oath present that, heretofore and before the committing of the offence hereinafter mentioned, to wit, on the twenty-fifth day of May, in the year of our Lord One thousand eight hundred and sixty-five, Isaac Brown and James Brown were in the custody of James Newnham and George Parsons, constables of the East Sussex County Constabulary, and James Baldwin, a peace-officer in the parish of Eotherfield in the said county of Sussex, upon a charge of felony ; and the said Isaac Brown and James Brown committed an assault upon the said constables and breach of the peace, with intent to resist their lawful apprehension. And the jurors further present that the said constables, there being a reasonable necessity for them to do so, called upon Caleb Sherlock, the defendant, for assistance, in order to prevent the said assault and a breach of the peace. And the jurors aforesaid further present that the defendant, Caleb Sherlock, did unlawfully, wilfully and knowingly refuse to aid and assist the said constables in the execution of their duty, or to prevent an assault and breach of the peace, against the peace of our said Lady the Queen, her Crown, and dignity." The defendant's counsel submitted that the indictment was bad upon the following points : VOL. L] HILAEY TEEM, XXIX VICT. 21 1. That the record did not shew a lawful apprehension of the 1866 two Browns. THE QITEEN 2. That there could not have been an assault to prevent their apprehension, the Browns being already apprehended. 3. That the record did not state that the refusal to assist was on the same day and year as the assault, or that it was the same assault ; and that the merely stating a refusal was not sufficient, without an allegation that he did not aid and assist. The Chairman did not withdraw the case from the jury ; and the defendant was convicted, and ordered to pay a fine to Her Majesty of five pounds, which amount the defendant deposited with the deputy clerk of the peace, pending the decision of the Court for Crown Cases Eeserved. The opinion of the Court for Crown Cases Eeserved is requested whether the defendant was lawfully convicted upon the above indictment. This case was considered on the 20th of January, 1866, by ERLE, C. J., MARTIN, B., and KEATING, MELLOR, and LUSH, JJ. No counsel appeared on either side. The Court affirmed the conviction. Conviction affirmed. THE QUEEN v. PETER RICE AND MARY WILTON. Jan. 20. .Disorderly house. The defendants, as master and mistress, resided in a house to which men and women resorted for the purpose of prostitution, but no indecency or disorderly conduct was perceptible from the exterior of the house : Held, that the defendants were guilty of keeping a disorderly house. THE following case was stated by the Deputy Eecorder of the city of Chester : These defendants were tried before me, at the quarter sessions for the city of Chester, on the 14th of July, 1865. The indict- ment upon which they were tried stated that they " unlawfully did keep and maintain a certain common ill-governed and disorderly house, and in the said house, for the lucre and gain of them, the VOL. I. B 4 22 CROWN CASES RESERVED. [L. R. 1866 Raid Peter Rice and Mary Wilton, certain persons, as well men as TH QcnT women, of evil name and lame and of dishonest conversation, then v - and there unlawfully and wilfully did cause and procure to fre- BlCE AND J WILTON, quent and come together ; and the said men and women, m the house of them, the said Peter Eice and Mary Wilton, at unlawful times, as well in the night as in the day, then and there to be and remain, drinking, tippling, whoring and misbehaving themselves, unlawfully and wilfully did permit, and yet do permit, to the great damage and common nuisance of all the liege subjects of our said Lady the Queen there inhabiting, being, residing, and passing, to the evil example of all others in like case offending, against the peace, or un til his or nominated and elected to be assistant their appointment shall be revoked by overseer or overseers of the poor, for the inhabitants of the parish in vestry such purposes and with such salary as assembled, and no longer." shall have been fixed by the inhabitants (2) 7 Ad. & E. 461, 469. in vestry ; and such salary shall be paid (3) 6 C. B. 38, 49. See also the out of the money raised for the relief of judgment of Byles, J., in Baker v. the poor at such times and in such Locke, 34 L. J. (C.P.) 49. YOL. L] EASTEK TEEM, XXIX VICT. 31 be described as the servants of the inhabitants of the parish, 1866 which seems a valid reason for holding that that is the proper THE QUEEN description of an assistant overseer appointed by the vestry. POLLOCK, C.B. We are all of opinion that the conviction is good. Conviction affirmed. Attorneys for prosecution: Dyne & Harvey; for A. W. & H. N. Knott, Worcester. THE QUEEN v. REARDON AND BLOOR. April 28. Receiving Joint indictment Separate receipt 24 & 25 Viet. c. 96, s. 94. The 24 & 25 Viet. c. 96, s. 94, which enacts that, " If, upon the trial of any two or more persons indicted for jointly receiving any property, it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict, upon such indictment, such of the said persons as shall be proved to have received any part or parts of the said property," extends to cases where, upon an indictment for a joint receipt, it is proved that the prisoners separately received the whole of the stolen property. THE following case was stated by Lush, J. : The prisoners were jointly indicted before me at Manchester for receiving stolen goods, knowing them to have been stolen. There was no evidence of a joint receipt ; but Reardon, who kept a house of her own, was in the practice of receiving stolen property from the thief or his accomplice, and of selling it to Bloor, who also had a place of business of his own. The jury found each guilty. I sentenced Bloor ; but, an objection having been taken that upon the indictment a conviction of both could not stand, I respited the sentence against Eeardon, and reserved for the opinion of the Court of Criminal Appeal the question whether the conviction against her is sustainable upon this indictment. This case was argued on the 28th of April, 1866, before Pollock, C.B., Bramwell, B., Byles, J., Pigott, B., and Lush, J. Cottingham, for the prisoner Reardon. The question in this case is whether, upon an indictment of two persons for a joint receipt, both can be convicted, when no joint receipt, but only a separate receipt at different times, is proved. Before the 14 & 15 Viet. 32 CROWN CASES RESERVED. [L. R. 18GG c. 100, if two or more persons were jointly indicted for receiving, ~THE~QCEIN~ anf l no ji nt act f receiving was proved, the prosecutor was put to- r- his election, and could only convict one of them : jR. v. Messing- KEARDON AND * BLOOR. ham. (1) The 14 & 15 Viet. c. 100, s. 14, remedied this inconve- nience to some extent ; and, although that section is now repealed, it has been re-enacted by the 24 & 25 Yict. c. 96, s. 94, which pro- vides that, " if, upon the trial of any two or more persons indicted for jointly receiving any property, it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict upon such indict- ment, such of the said persons as shall be proved to have received any part or parts of such property." That section, however, only applies to a separate receipt of different parts of the stolen pro- perty at the same time, leaving the old law to operate where there has been a separate receipt of the whole at successive times. [POLLOCK, C. B. A man who receives the whole of the stolen property receives a part ; for the whole embraces all the parts. BKAMWELL, B. The old-fashioned indictment would have alleged that the two prisoners " then and there" (i.e., at the same time and place) received the goods ; and in this case that aver- ment could not have been proved.] This point was raised in Eeg. v. Dring (2), but was not decided. By the 24 & 25 Viet. c. 96, s. 93, any number of receivers at different times of the stolen property, or of any part thereof, may be charged with substantive felonies in the same indictment ; but the proper mode of carrying out that enactment is to indict them for separate receipts in different counts, and not, as was done here, to indict them for a joint receipt in a single count. Sowler, for the prosecution, was not called upon. POLLOCK, C.B. The object of the enactment in question was to do away with certain technical objections which prevailed pre- viously. By the 93rd section any number of receivers of the same stolen property, or of different parts of it, may be indicted together, although there has been no joint receipt ; and it is clear that, under that section, no distinction is made between separate receipts at the same time and separate receipts at (1) 1 Moo. C. C. 257. (2) Dears. & B. C. C. 329. VOL. I.] HILAEY TEEM, XXIX YICT. 33 different times. That section throws light on the 94th; and, i860 although 'there is some colour for the objection, we are all of THE QUEEN opinion that no distinction can be made for the purposes of that REARJ^ j^ section between a separate receipt of the whole and a separate BLOOR. receipt of part of the stolen property. It would be absurd to convict both prisoners, if it were proved that each separately received a part, and to acquit one, if it were proved that each separately received the whole. Conviction affirmed. Attorney for prosecution : Talbot, Manchester. Attorney for prisoner : W. Bennett, Manchester. THE QUEEN v. WHITEHEAD. May 5. Witness Incompetency Withdrawal of evidence from jury. The evidence of an incompetent witness may be withdrawn from the jury upon the incompetency appearing during his examination-in-chief, although he has been examined previously on the voir dire and pronounced to be competent. THE following case was stated by the Chairman of quarter sessions for the hundred of Salford, in the county of Lancaster : Holinrake Whitehead was tried before me at Salford, upon the 27th of October, 1865, upon an indictment charging him with an assault upon one Harriet Pugh, with intent the said Harriet Pugh to ravish and carnally know. There were two other counts in the indictment, one of them charging an indecent assault, and the other a common assault. The said Harriet Pugh is about seven- teen years old, and has always been deaf and dumb. At the trial it was proposed by the counsel for the prosecution to examine her through the medium of her father. It was stated that he and her sister could hold communication with her by means of arbitrary signs and motions, but that she had not been instructed in the deaf- and-dumb alphabet, or in any institution, or by any person skilled in communicating with persons labouring under the deprivation with which she is afflicted. The father was sworn truly to inter- pret in the case, and was requested by the counsel for the prosecution to explain to her the oath about to be administered to 34 CROWN CASES RESERVED. [L. R. 1SC6 her. He then stated that he believed she was unaware of the THE QCEEN nature and obligation of an oath, and that (although she had w ,* attended Sunday school for some years) he was not prepared to say that she believed in a future state or a condition of future rewards and punishments. Upon this it was objected by the counsel for the defendant that she could not be sworn ; and the counsel for the prosecution proposed to give evidence independent of the prosecutrix in proof of the offence charged. It was objected that such evidence, in the absence of the direct testimony of the prosecutrix herself, could not be received on such a charge. I did not at the time decide upon this objection ; but I caused a person named Beahan, an expert in regard to the education of, and com- munication with, deaf and dumb persons, to be summoned to the court for the assistance of myself and the jury in the case. The expert attended forthwith ; and, before being sworn to interpret, I requested him to endeavour to communicate with the prosecu- trix, and particularly to ascertain the extent of her intelligence as to the nature and obligation of an oath. He did so, and intimated his belief that he was able to understand her signs 'and gestures, and to make himself understood by her, and that she comprehended him when he conversed by signs with her as to Heaven and Hell. He was then sworn to interpret ; and she, through him, was sworn in the ordinary form. The examination, through him, then proceeded some way ; and, among other replies so obtained from the prosecu- trix, was one, that she had consented to what the defendant did to her. She answered, " Yes," to almost every question put to her. She was asked whether she knew the counsel who was examining her. To this she answered "Yes." The expert at this point informed the Court that he was satisfied he had been mistaken ; that the prosecutrix had not been able to understand him ; and that the means of communication were, from want of training and other- wise, so defective that he felt it would be unsafe in the extreme to proceed with her examination through him or otherwise. Before coming to this conclusion he again tested her in various ways ; and the Court and jury were of opinion that any further examination of the girl under the circumstances would be most unsatisfactory. The counsel for the prosecution then applied that the jury should be discharged from returning a verdict, and that the trial should be VOL. I.] EASTEK TEEM, XXIX VICT. 35 adjourned to a further session, in order that in the interval the girl might be sent to a deaf-and-dumb school and properly instructed. THE QUEEK Feeling myself bound by the authority of B. v. Wade (1), I refused the application. Counsel for the prosecution then proposed to enter into the evidence of other witnesses in support of the charge, when the objection before-mentioned was revived. After argument I overruled the objection, and admitted the evidence, which was in substance as follows : About 8.30 p.m. on the night in question, two girls one, the sister of the prosecutrix and a young man who had been walking on a foot road to a place called Car Laithe, in the outskirts of Todmorden, were returning homewards in the direction of Tod- morden, when they heard a noise which caused them to stand and listen. It was repeated. The sister recognised it as the cry of the prosecutrix ; and at her request the others accompanied her, all three running, in the direction whence the noise proceeded. ^ It was repeated several times as they approached. After running about a hundred yards, they found the prosecutrix on the ground across the foot-road with her clothes thrown upwards over her knees and the defendant on his knees in the act of rising from her. The male witness seized him by the collar, and pulled him off the prosecutrix. His trousers also were down. He was seized by the male witness, who (having recognised him and spoken to him by his nickname, " Darling") ultimately released him, and left him on the spot seeking his cap. Meanwhile the prosecutrix rose up. Her bonnet was crushed ; her dress soiled with sand ; her hair dis- hevelled. She was in tears, and put her hand several times to her chest. The footpath on which she was found is on the edge of a valley ; and a witness resident on the opposite bank of the' valley heard screams from the direction of this road about the time spoken to by the other witnesses. The road for a considerable length is skirted on each side by a wood, after emerging from which, as it approaches the place where the prosecutrix was found with the defendant as aforesaid, it is separated from the fields for a certain length by a hurdle fence on one side of the road only ; after which there ceases to be any fence, and access to the fields and the wood is very easy from the road. It was on the part of the road above (1) 1 Moo. C. C. 86. 36 CEOWN CASES EESEKVED. [L. K. i860 the hurtlle fence that the prosecutrix was found. The foot-road in question is a public foot-road, and is distant nearly half a mile vr, * from the residence of prosecutrix, and is known by the name of the WHITEHEAD. " Lover's Walk." The evidence did not shew for what purpose the prosecutrix had gone thither ; but it was proved that she had pre- viously gone the same walk with her sister. All the witnesses (except the resident of the other side of the valley) had known the defendant for many years. He worked at the same mill as they did. He had never visited at the house of the prosecutrix, or paid his addresses to her ; nor, as far as the evidence went, had there been any association between him and her. On cross-examination of prosecutrix's sister, she admitted that a man had been charged with an assault with intent, &c., upon her sister, the prosecutrix, four or five years ago, but that the case was dismissed by the magistrates. At the close of the case for the prosecution, the counsel for the defendant called my attention to the fact that prosecutrix had been duly sworn, and then withdrawn as above stated, and he then submitted that there was no case to go to the jury in the absence of her testimony denying that Avhat was spoken to by the witnesses was done with her consent. I overruled the objection, and held that the evidence given was such as was sufficient to go to the jury in support of the charge ; but at counsel's request I reserved the point for the opinion of the Court. The defendant called witnesses to prove an alibi ; but the jury found him guilty of an assault with intent to ravish. I therefore respectfully desire the opinion of this Court upon the following points : first, was it competent for and obligatory upon me to discharge the jury under the circumstances in order that an opportunity might be afforded for 'the instruction of the prosecu- trix ; and, secondly, was it competent for me to leave the case to the jury upon the [evidence above appearing, withdrawing the doubtful evidence of the prosecutrix herself, and confining their attention entirely to the testimony of the other witnesses. This case was argued on the 5th of May, 1866, before Pollock, C.B., Martin, Bramwell, and Piggott, BB., and Montague Smith, J. Torr, for the prisoner. The judge had no right to withdraw the VOL. I.] EASTER TEEM, XXIX VICT. 37 prosecutrix's evidence from the jury, after lie liad once decided to 1866 admit it. She was not an incompetent witness, but merely a wit- THE QT^EN ness difficult to understand. Her conduct her very look might \VHTTEHEAD. have thrown light on the transaction. The judge should have told the jury, it was not reliable evidence; but that, if her conduct during the trial had been such as to throw light on the matter, they were perfectly at liberty to take that into consideration ; and the jury would have .been justified in acting on that suggestion. Reg. v. Hill (1) is directly in the prisoner's favour. That was the case of a lunatic witness ; and it was held that the lunatic might be examined and cross-examined, and witnesses called on either side, in order to determine the question of his competency ; but that, when admitted, it was for the jury to attach what weight they thought fit to his testimony. '7 In that case Lord Campbell, C. J. said, in answer to an argument of the witness's incompetency drawn from his cross-examination after he was sworn, "What you got out on cross-examination was for the jury, not for the judge. You cannot avail yourself of anything that took place after the insane person was sworn." [POLLOCK, C.B. Insanity is not quite in point ; as partial insanity will not render the witness's evidence inadmissible.] In Jacobs v. Layborn (2), a witness for the defendant, to whom several questions had been put on his examination-in-chief, stated, in answer to a question put to him by the plaintiff's counsel who had interposed, that he was answerable to the defendant's attorney for the costs, and was therefore objected to as incompetent; and it was held that the objection did not come too late. But that case is distinguishable on the ground that there was no examination on the voir dire ; while here there was a most careful preliminary examination, and a decision that the witness was competent. C. H. Hopwood, for the Crown. In this case there was a pre- liminary objection to the competency of the witness and a pre- liminary inquiry. The judge subsequently thought a further inquiry necessary ; and the result was that after further examina- tion he discovered that the evidence was altogether unsatisfactory ; and he was right in striking that evidence out. [POLLOCK, C.B. He was, if it was a question of law.] (1) 2 Den. C. C. 254. (2) 11 M. & W. 685. 38 CROWN CASES RESERVED. [L. R. 186 It was a question of competency, and that is for the judge. In Tius QUEEN Jacobs v. Layborn (1) Kolfe, B., says : " Does it necessarily follow WHITEHEAD ^at *^ e examination on the voir dire is to precede the examina- tion-ID -chief ?" Lord Abinger, in his judgment in the same case, says (2) : " To this I can add the testimony of my own experience, which has been of more than forty years, that, whenever a w itness , was discovered to be incompetent, the judge always struck the evidence which he had given out of his notes." In Reg v. Garner (3), where a confession, which afterwards turned out to be inad- missible, was received in evidence, Patteson, J., was of opinion that the proper course would have been for the judge to have struck the evidence of the confession out of his notes. The same practice is adopted in courts of equity: Lord Eldon, C., in Vauglian v. Worrall, (4) says : "When, after the witness has been cross-examined to the bone, on the last question it appears that he has an interest in the suit, the judge must say that no attention could be given to his evidence." Again, in Needham v. Smith (5) Lord Keeper-King says : " Though a witness is examined an hour together at law, if in any part of his evidence it appears that ho was a party interested, the Court will direct the jury that he is no witness, nor any regard to be had to his evidence." [He was then stopped.] Torr, in reply. In Yardley v. Arnold (6) Parke, B., says : " I cannot help wishing very much that it were established as the regular practice, that, when once a witness is sworn, no question should be put to him in order to raise questions to his compe- tency. I think all such should be put on the voir dire, and that, when once sworn-in-chief, his competency should be taken for granted." POLLOCK, C.B. The first question is a hypothetical, not a practical question, and one which we are not bound to answer. As to the second question, whether it was competent for the chairman to leave the case to the jury upon the evidence of the other witnesses, and to withdraw from their consideration altogether the evidence of the prosecutrix, we are all of opinion (1) 11 M. & W. at p. 688. (5) 2 Vein. 464. (2) Ib. p. 690. (6) 10 M. & W. 141, 145. Parke, (3) 2 Car. & K. 920. B., adds, however, " But certainly the (4) 2 S\v. 400. practice has been different hitherto." VOL. I.] EASTEE TEEM, XXIX VICT. 39 that it was competent for him to do so. A witness was sworn to ISGG interpret, who thought that he had got into communication with THE QUEEN the prosecutrix's mind. Of that notion he was soon disabused; ^\r Hrr *' HEAD and the judge, when he found her incompetent, did what he had a perfect right to do he withdrew her evidence, and directed the attention of the jury merely to the testimony of the other witnesses. That would not prevent the jury from taking notice of anything in the conduct of the prosecutrix which might seem to be favour- able to the prisoner. Conviction affirmed. Attorney for prisoner : Stansfield, Todniorden. THE QUEEN v. FLETCHER. May 7. Rape Idiot Consent. Upon an indictment for rape there must be some evidence that the act was without the consent of the woman, even where she is an idiot. In such a case, where there were no appearances of force having been used to the woman, and the only evidence of the connection was the prisoner's own admission, coupled with the statement that it was done with her consent, the court held that there was no evidence for the jury. THE following case was stated by KEATING, J. : Charles Fletcher was tried before me, at the last assizes for the county of Warwick, for a rape upon Fanny Elizabeth Churchill, and convicted. The prosecutrix was an idiot girl, with one side and a foot paralysed. She was seen going with the prisoner towards the inn where he was ostler, and afterwards coming from thence with her hair down, and the hair-net in her hand, but, as . her mother said, "not different from her ordinary manner;" she had three cakes in her hand, and was eating one of them. There was no evidence of the circumstances under which the con- nection had taken place ; but the prisoner admitted the fact, alleging consent, and that he had had connection with her before, also with her consent. In answer to his question whether she knew him, she said, "Yes; the man at Eichards'." Although only sixteen years old, the medical man stated she was a fully VOL. I. G 4 40 CROWN CASES RESETTED. [L. R. i860 developed woman, and that strong animal instincts might exist, THE QL-BEX notwithstanding her imbecile condition. Appearances on exainin- ation were not inconsistent with connection having previously taken place, and he rather inclined to that opinion; but they were also consistent with the connection in question being a first connection. I left the case to the jury in the terms reported to have been used by Willes, J., in Eeg v. Fletcher (1), viz., That, if they were satisfied that the girl was incapable of expressing consent or dissent, and that the prisoner had connection with her without her consent, they should find him guilty ; but that a consent produced by mere animal instinct would be sufficient to prevent the act from constituting a rape. The jury found the prisoner guilty. I desire the opinion of the Court of Criminal Appeal as to whether I ought to have left the case to the jury at all, there being no evidence against the prisoner, except the fact of con- nection and the imbecile state of the girl. This case was considered on the 7th May, 1866, by Pollock, C.B., Martin, Bramwell, and Pigott, BB., and M. Smith, J. No counsel appeared on either side. POLLOCK, C.B. The question in this case is whether there was any evidence to go to the jury. Of the physical fact there could be no doubt whatever ; but no evidence was given on behalf of the crown that what was done to the girl was against her will or with- out her consent. We are all of opinion that some evidence of that kind ought to have been given, and that in its absence there was no case to go to the jury. For myself I may add that in my opinion the act which makes the carnal knowledge of a girl of tender years penal (2) throws some light upon this case. A girl of tender years is incapable of consenting ; and, therefore, if mere incapacity to consent were sufficient to constitute the crime of rape, that part of the act would have been unnecessary. Conviction quashed. (1) Bell C. C. G3. (2) The 24 & 25 Viet, c. 100, ss. 50, 51. END OF EASTER TERM. CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED m TEINITY TEEM, XXIX VICTORIA. THE QUEEN v. BOWERS. 1866 June 9. Embezzlement Clerk or servant. A person who is employed to get orders for goods, and to receive payment for them, but who is at liberty to get the orders and receive the money where and when he thinks proper, being paid by a commission on the goods sold, is not a clerk or servant within the meaning of the 24 & 25 Viet. c. 96, s. 68. THE following case was stated by the assistant judge of the Middlesex Sessions : Samuel Bowers was tried before me at the Sessions of the Peace for Middlesex on the 10th of January, 1866, upon an in- dictment which charged him with having feloniously embezzled several sums of money, the property of John Clark, by whom, it was alleged, he was employed as clerk and servant. The pri- soner was employed by the prosecutor under an agreement dated May 9th, 1864, of which the following is a copy : " Memorandum of agreement made and entered into this 9th day of May, 1864, between Samuel Bowers of the one part, and Robert Skirrow, John Clark, and John Quick, coal owners and merchants, of the other part, witnesseth, that the said Samuel Bowers hereby agrees to become, and the said Skirrow, Clark, and Quick agree to engage the said Samuel Bowers as, their agent or traveller for the sale of coals, one guinea per week to be paid to the said Samuel Bowers as salary, and one shilling per ton to be paid as commis- sion upon all coals sold by him when the prices realized are in VOL. I. H 4 42 CROWN CASES RESERVED. [L. R. I8fi6 accordance with the current prices delivered ; any dealers he may THE QUEEN be the means of securing as customers to the wharf, sixpence per BOWERS, ton to be paid for such services ; two shillings and sixpence to be paid for cartage and delivery of coals. The said Samuel Bowers likewise agrees to collect all moneys in connection with his orders; but the said Skirrow, Clark, and Quick will not hold him respon- sible for any bad debts that may be contracted, but expect him to be as cautious as practicable in securing good and solvent cus- tomers: the before-mentioned commission not to become due until the money has been received by the said Skirrow, Clark, and Quick. The said Samuel Bowers also agrees not to keep or retain in his possession moneys collected on behalf of the said Skirrow, Clark, and Quick more than one week from the date of receiving the same. The said Skirrow, Clark, and Quick agree to take the board and blinds now fitted up at the residence of the said Samuel Bowers at the cost price to him, on condition that they have free use, without charge, of that part of his residenqe now used as an office. It is mutually agreed that, should dissatisfaction arise on either side, a month's notice in writing must be given." In June, 1865, the prisoner was desirous of selling coals by retail on his own account ; and the prosecutor consented to supply him with coals for that purpose, but then made an alteration in the mode of remunerating him, which is specified in a letter, of which the following is a copy : Mr. Samuel Bowers, " London, June 3rd, 1865. Dear Sir, As you are now going into the retail coal trade on your own account, we think it best to have a proper understanding ; and in future we pay you a commission only your salary will be stopped from this date. We find a very large amount standing against you ; and we particularly request you to do all you possibly can to get it in. The writer will wait upon you on Wednesday at the usual time, and hopes you will have a large amount of money ready. Yours truly, Skirrow, Clark, & Quick." The prisoner consented to the proposed alteration, and continued to obtain orders from various persons for coals, which were sup- VOL. I.] TRINITY TERM, XXIX VICT. 43 plied by the prosecutor, the invoices being made out in the name 1866 of the prosecutor's firm; and in the three instances charged in this THE QPEEN indictment such invoices were produced by the customers, who BOWBBS proved payment of the several amounts in such invoices to the prisoner, whose receipt *was attached to each invoice. The prisoner did not account to the prosecutor for either amount. The manner of accounting was for the prosecutor to call on the prisoner weekly, who then paid him a sum of money on account of what he had received ; and once a month the prisoner attended at the prosecutor's office, when the names of the customers who had been supplied with coals were called over, and the prisoner stated whether they had paid, handing over in respect of the amounts he reported as having been paid the surplus beyond his weekly payments on account. He did not report that either of the sums in this indictment had been paid, but, on the contrary, re- presented them as still due after he had received the money. The coals supplied for the purpose of his retail trade were charged to him as to other customers; but this account was kept quite dis- tinct from the account of the moneys received by the prisoner on the prosecutor's account. The sums alleged to have been embezzled were not received by the prisoner until after the second agreement had been made ; and at the prisoner's place of business a board was exhibited, describing him as agent to the prosecutor. It was contended that he was not a clerk or servant to the prosecutor within the meaning of the statute. I declined to stop the case ; and the jury found the prisoner guilty. The question for the opinion of the Court is, whether the prisoner, under the circumstances herein stated, was a clerk or servant to the prosecutor, so as to be liable to be convicted of the crime of embezzlement. This case was argued on the 9th of June, 1866, before Erie, C.J., Martin, Bramwell, and Channell, BB., and Shee, J. Collins, for the prisoner. The prisoner was not a clerk or servant within the meaning of the act. (1) In Reg. v. Walker (2), (1) The 24 & 25 Viet. c. 96, s. 68. (2) Dears. & B. (C. C.) 600 ; 27 L. J. (M.C.^ 207. H 2 4 44 CROWN CASES RESERVED. [L. R. 1SG6 the prisoner was employed to go through the country and see the THE QIEEK farmers and get orders for manure, and was paid by a commission in addition to a nominal salary of II. per annum. It did not, however, appear that he had undertaken to give any definite quan- tity of time or labour to the business ; und the Court held that he was an agent and not a servant. In Reg. v. May (1), the pri- soner was appointed an agent to get orders for iron, and was paid by a commission ; and it was held that he was not a servant. In the former case (2), Bramwell, B., says : " It seems to me that the difference between the relations of master and servant, and of principal and agent, is this : A principal has a right to direct what the agent has to do ; but a master has not only that right, but also the right to say how it is to be done." In this case the prosecutor had no right to control the prisoner in the use of his time ; he was free to get orders or not as he liked. In Reg. v. Tite (3), a commercial traveller was held to be a servant ; but a commercial traveller is bound to obey his employer, and must go here or there and do this or that according to orders. Metcalfe (Harington with him), for the Crown. The prisoner was a servant in this sense, that it was his duty, and he could have been compelled, to get the money upon the orders he had obtained, if he could not have been compelled to get the orders. In Reg. v. May (4), Williams, J., bases his judgment upon the fact that the prisoner was not employed to receive money. In Reg. v. Batty (5) the prisoner was held to be a servant, although he was in the service of more masters than one, and k although it did not appear that he devoted any particular portion of his time to the service of the prosecutor. [EELE, C. J. In order to constitute the relation of master and servant, the inferior must be under more control than is implied in having the option of getting orders with the right to receive a commission thereon.] There are, no doubt, certain cases, as, for instance, that of an insurance agent, in which the relation is not that of master and (1) Leigh & Cave (C.C.) 13 ; 30 L. J. (4) Leigh & Cave (C.C.) at p. 17. See (M.C.) 81. also the judgment of the same learned (2) See the 27 L. J. (M.C.) 208. judge in Eeg. v. Tite, Leigh & Cave (3) Leigh & Cave (C.C.) 29 ; 30 L. J. (C.C.) at p. 33. (M.C.) 142. (5) 2 Moo. (C.C.) 257. VOL. I.] TEINITY TEEM, XXIX VICT. 45 18C6 servant. But, if a man binds himself to get orders, or at any rate to get in the money outstanding upon the orders he may get, he THB Q UEEN is a servant pro tanto. In Reg. v. Walker (1), the prisoner had BOWEBS. been treated as a debtor in respect of the sums embezzled. Collins, in reply. In Reg. v. Batty (2) the prisoner was paid by wages and not by a commission. EELE, C. J. We are all of opinion that this conviction must be quashed. The facts stated fall within the cases cited by Mr. Collins, which decide that a person who is employed to get orders and receive money, but who is at liberty to get those orders and receive that money where and when he thinks proper, is not a clerk or servant within the meaning of the statute. The construc- tion of the documents decides this case. Under the first agree- ment the prisoner was a servant ; but under the second he was at liberty to dispose of his time in the way he thought best, and to get or to abstain from getting orders on any particular day as he might choose ; and this state of things is inconsistent with the relation of master and servant. Conviction quashed. Attorney for prosecution : Ed. Lewis. Attorneys for prisoner : C. Lewis & Sons. THE QUEEN v. BARNES. Larceny Indictment Property. The prisoner was sent by his fellow-workmen to their common employer, to get the wages due to all of them. He received the money in a lump sum, wrapped up in paper, with the names of the workmen and the sum due to each written inside : Held, that he received the money as the agent of his fellow-workmen, and not as the servant of the employer, and that, in an indictment against him for stealing it, the money was wrongly described as the property of the employer. THE following case was stated by the recorder of Bolton : Robert Barnes was tried at the general quarter sessions for the borough of Bolton, holden on the 12th of April, 1866, on an (1) Dears. & B. (C.C.) 600; 27 L. J. (M.0.)"207. (2) 2 Moo. (C.C.) 257. June 9. 46 CROWN CASES RESERVED. [L. R. 1866 indictment which charged him with stealing a sum of 137. 6s., THE QUEEN the moneys of Keuben Smith and others. The evidence was BAK NE8 . as follows :- Reuben Smith : On the 16th of December last the prisoner was a fellow-workman with me at Ormrod and Hardcastle's. The prisoner, myself, and two others worked in the same room. It had been our custom for one of us to go every fortnight to get the wages of the four from the cashier, and to pay over the amount due to each. We did this by turns. On the 16th of December last it was my turn to go for the wages. The wages due to me on that day came to about 57. Os. 6d. ; I cannot speak to the pence. The prisoner asked me if he might fetch the wages this time. I said, " Yes ; but you must fetch them again when it comes to your turn." He said he would. At twelve o'clock the prisoner went to get the wages. He did not come back, and never gave me my wages. Cross-examined : We used to get the four men's wages in a lump, and pay them over in separate shares. Thomas Unsworth : I worked in the same room with prisoner and Eeuben Smith on the 16th of December last. My share of wages on that day was about 37. 18s. On that day prisoner went for my wages. He never paid them to me. Peter Critchley : I worked in the same room with the prisoner on the 16th of December last. On that day 47. 8s. lid. was due to me for wages. Prisoner went to get the wages ; he has not paid me my share. John Makin : I am cashier for Ormrod & Co. On the 16th of December last the prisoner came to me for his wages, and those of the other witnesses. The account of wages due to each was made out in my office, under my superintendence ; but I cannot say exactly how much was due to each on the day in question. When the prisoner came to me, I believe I said, " Whose wages are you come for?" He answered, "No. 6, Sovereign." "No. 6" is the number of the room in which the prisoner and the others worked ; and " Sovereign " is the name of the mill. I had the money in one sum wrapped up in a paper. Our custom was to wrap up the wages for each room in a separate paper, inside which was written the names of the parties to whom they were to be paid, and the VOL. L] TRINITY TEEM, XXIX VICT. 47 sum due to each ; and this was done on the present occasion. On the 16th of December I handed the money to the prisoner, wrapped THB up in a paper in the usual way. The sum which I handed to the BABNES. prisoner was 18?. 5s. Id. ; and it was made up of 5s. Id. in copper, 101. in silver, and 8/. in gold. On this evidence it was objected by counsel for the defence, that the indictment could not be sustained, because the money alleged to have been stolen was not the property of the prosecutors, but that of their employers, Messrs. Ormrod & Co. ; and I was of this opinion. Counsel for the prosecution thereupon applied to have the in- dictment amended by alleging that the money in question was the property of Me_ssrs.. Ormrod & Co. ; and I ordered the indictment to be amended accordingly, by inserting therein the words "Peter Ormrod and another," instead of the words " Reuben Smith and others." Counsel for the prisoner did not address the jury or call wit- nesses ; but he contended that the above evidence was not in point of law sufficient to warrant a conviction on the indictment as amended, either at common law or under the 24 & 25 Yict. c. 96, sec. 3. I then summed up the evidence ; and the jury found the prisoner guilty : but, on the application of counsel for the prisoner, I reserved the above question for the opinion of this Court. This case was argued on the 9th of June, 1866, before Erie, C.J., Martin, Bramwell and Channell, BB., and Shee, J. No counsel appeared for the prisoner. Sleigh, for the Crown. The property was originally laid in the men ; but the indictment was amended by alleging that the money was the property of Messrs. Ormrod & Co., the masters. [CHANNELL, B. As the record was amended, this Court has only to decide on the amended record.] The broad principle is this : If a servant receives money from his master for a specific purpose, eo instanti that he tortiously appro- priates it, it is larceny. The cases on this point are all collected in Eussell on Crimes* (1) [BKAMWELL, B. In all those cases the person to whom the (1) Vol. ii. pp. 394, 395, 4th ed. 48 CROWN CASES RESERVED. [L. R. 1866 money was to have been paid would have had a claim against the TUB QCKRN master ; in this case the masters could have said, in answer to such BARNES. a claim, that they had paid the prisoner, who was the workmen's own agent.] The prisoner was the masters' agent, until the money reached its destination. ERLE, C.J. The conviction must be quashed. The prisoner was the agent of the workmen ; and by their authority the cashier, who was the masters' agent, gave him the money. As soon as he received it, it was the money of the workmen. Conviction quashed. Attorneys for the Crown : Gregory & Rowclijfes. END OF TRINITY TERM. CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED jar MICHAELMAS TERM, XXX VICTORIA. THE QUEEN v. TOMLINSON. 1866 Perjury Jurisdiction of Local Marine Board -17 & 18 Viet. c. 104, s. 241. Nov ' 1Q - Wilful and corrupt false swearing before a local marine board lawfully con- stituted upon a matter material to an inquiry then being lawfully investigated by them in pursuance of the 17 & 18 Viet. c. 104, is perjury, and indictable as such. THE following case was stated by Martin, B. : The prisoner was tried before me at the last Liverpool assizes, and convicted of perjury or indictable false swearing before a local marine board, held at Liverpool, under the alleged authority of the Merchant Shipping Act (17 & 18 Viet. c. 104). The prisoner was proved to have committed wilful and corrupt false swearing before the board ; but an objection was made by counsel on his behalf: first, that there was not sufficient legal evidence of the appointment and due constitution of the board before which the false evidence was given; and, secondly, that wilful and corrupt false swearing before a local marine board was neither perjury properly so called nor an indictable offence. I overruled the objections, but stated that I would reserve the further consideration of them for the Court of Criminal Appeal. The evidence as to the appointment and constitution of the board was as follows : John Thomas Towson : I am the secretary to the Liverpool Local Marine Board. I was present on the 1st and 8th of May, VOL. I. I 4 50 CROWN CASES RESERVED. [L. R. 1866 when meetings of the board were held. The assessor was Mr. THE QUEEN Raffles, the stipendiary magistrate. Mr. James Smith was chair- TOMUSSON man. He was appointed by the Board of Trade. Mr. Henry Wood was also present. He was also appointed by the Board of Trade. Mr. Aaron Boyd and Mr. Edward Friend were also present. They were elected by the ship-owners of the port. All these five gentlemen were present at the investigation. The same persons had acted as members of the board upon previous occasions. Some of them had been occasions similar to the present. The meeting was held in consequence of a direction or order from the Board of Trade. This is the letter containing the direction or order : "M Board of Trade, Whitehall. 1759 25th April, 1866. Sir, I am directed by the Board of Trade to transmit to you the enclosed letter from Messrs. Stewart & Douglas, and to request you to move the Liverpool Local Marine Board to be so good as to institute an investigation into the charges of drunkenness therein preferred against Mr. Henry Couche, late master of the barque Phrenologist. I am, &c., (Signed) W. D. Fane. The Secretary, Local Marine Board, Liverpool." The letter of Messrs. Stewart & Douglas above referred to is as follows : M 1640 Liverpool, 24th April, 1866. 362 My Lords, We duly received your letter of the 19th instant, and beg to thank you for the same. Since then we have seen Mr. Tyndale, and, as directed by him, beg to request that your Lordships will be pleased to order an inquiry to be held into the conduct of Henry Couche, late master of our barque Phrenologist, during her late voyage from Liverpool to and from the West Coast of Africa, from the 21st of October, 1864, to the 18th of April, 1866, as we are and have been informed that he was, during such voyage, repeatedly unfit to command his vessel through drunkenness, and VOL. I.] MICH. TEEM, XXX VICT. 51 disobeyed our written orders in managing the ship's affairs. We i860 have the honour to be, your Lordships' humble servants, THE QUEEN Stewart & Douglas. The Lords of the Committee of Council for Trade, London." I have had frequent communications with Mr. Fane, the writer of the letter, upon similar subjects. I know that he is the assis- tant secretary of the marine department of the Board of Trade. I caused a summons to be issued to Henry Couche. This is the duplicate original summons : " To Henry Couche, late master of the British ship Phrenologist, of Liverpool. Whereas the Board of Trade has reason to believe that you, the said Henry Couche, are from misconduct unfit to discharge your duties : And whereas the local marine board of the port of Liver- pool is, by the direction of the Board of Trade, about to institute an investigation under the provisions of .section 241 of the Mer- chant Shipping Act, 1854, into such misconduct, the particulars whereof are set forth in the copy of the report hereunto annexed, upon which the said investigation is ordered : These are, therefore, to require you personally to be and appear on the first day of May, 1866, at 2 o'clock in the afternoon, at the Sailors' Home, Liverpool, before the said local marine board, to answer the said charge, bring- ing with you your certificate as master. Given under my hand, this 26th day of April, in the year of our Lord 1 866, at Liverpool aforesaid. For and on behalf of the said local marine board, (Signed) James Smith, Chairman." Mr. Couche attended before the board on the 1st of May, in pursuance of this summons. It was adjourned until the 8th, and resumed upon that day. Mr. Couche again attended. The remainder of the evidence of this witness is immaterial to the present purpose. Henry Murphy : I am superintendent of the local marine board of Liverpool. I attended this inquiry in pursuance of my duty. The board hold their courts at the Sailors' Home, where they meet and hold their investigations. The secretary has an office there. I attended this inquiry on the 1st of May, and also on the 8th. 52 CROWN CASES RESERVED. [L. E. 1866 The same gentlemen had formed a court before. Their proceed- THB QUEEN ings have been acted upon. TOMLINSON. Th e remainder of this witness's evidence is immaterial to the present purpose. William Patrickson : I am a clerk in the Board of Trade. The document of the 25th of April is signed by Mr. Fane. He is an assistant secretary of the board. The remainder of the evidence in the case is immaterial to the present purpose. The counsel for the prosecution referred to the following sections of the 17 & 18 Viet. c. 104, viz. ss. 6, 14, 15, 110, 241, 242 ; and also to the 25 & 26 Viet. c. 63, s. 23. I request the opinion of the Court of Criminal Appeal upon the following questions : First, was there legal evidence to go to the jury that the local marine board, which sat on the 1st and 8th of May as above men- tioned, was duly and lawfully appointed and constituted ? (1) Secondly, is wilful and corrupt false swearing before a local marine board, duly and lawfully appointed and constituted, upon a matter material to an inquiry then being lawfully investigated by them, in pursuance of the statute, perjury properly so called ; or, if not, is it an indictable offence ? This case was argued before Cockburn, C.J., Martin and Brarn- well, BB., and Mellor and Montague Smith, JJ. No counsel appeared for the prisoner. Edward James, Q.C. (C. Russell with him), for the Crown. By the 17 & 18 Viet. c. 104, s. 241, " if the Board of Trade, or any local marine board, has reason to believe that any master or mate is from incompetency or misconduct unfit to discharge his duties, the Board of Trade may either institute an investigation, or may direct the local marine board at or nearest to the place at which it may be convenient for the parties and witnesses to attend to institute the same, and thereupon such persons as the Board of Trade may (1) This question was not argued, suining that the Board was lawfully nor alluded to in the judgment. But constituted, the Court affirmed the conviction, as- VOL. L] MICH. TEEM, XXX VICT. 53 appoint for the purpose, or, as the case may be, the local marine 1866 board, shall, with the assistance of a local stipendiary magistrate THE QUEEN (if any), and, if there is no such magistrate, of a competent legal * J.OMLINSON* assistant to be appointed by the Board of Trade, conduct the in- vestigation, and may summon the master or mate to appear, and shall give him full opportunity of making a defence, either in person or otherwise, and shall for the purpose of such investigation have all the powers given by the first part of this act to inspectors appointed by the Board of Trade, and may make such order with respect to the costs of such investigation as they may deem just, and shall on the conclusion of the investigation make a report upon the case to the Board of Trade." By s. 242 " the Board of Trade may suspend or cancel the certificate (whether of competency or service) of any master or mate in the following cases, that is to say, 1st, if, upon any investigation made in pursuance of the last preceding section, he is reported to be incompetent, or to have been guilty of any gross act of misconduct, drunkenness, or tyranny." By s. 15, "Every such inspector as aforesaid shall have the following powers (that is to say) ... he may administer oaths, or may, in lieu of requiring or administering an oath, require every person examined by him to make and subscribe a declaration of the truth of the statements made by him in his examination." By the 25 & 26 Yict. c. 63, s. 23, "the following rules shall be observed with respect to the cancellation and sus- pension of certificates, that is to say, the power of cancelling or suspending the certificate of a master or mate by the 242nd section of the principal act (the 17 & 18 Yict. c. 104), conferred on the Board .of Trade, shall (except in the case provided for by the fourth paragraph of the said section) vest in and be exercised by the local marine board, magistrates, naval court, admiralty court, or other court or tribunal by which the case is investigated or tried, and shall not in future vest in or be exercised by the Board of Trade." The effect of these enactments is that the investigation is a judicial proceeding in every sense of the term. COCKBUEN, C. J. We are all agreed that an indictment for per- jury will lie. The inquiry was before a tribunal invested with judicial powers, and enabled to inquire on oath, and pass a sentence VOL. I. K 4 54 CEOWN CASES RESERVED. [L. R. 1866 affecting the status of the person accused. It would be highly TBB QTJEKN inconvenient if false swearing upon such an inquiry did not amount T "INSON to P er J ur y- ft wou ld be fatal to the person accused, if he were not to have protection against witnesses who came to swear falsely. Conviction affirmed. Attorneys for the Crown : The Solicitor to the Customs, London ; and William Tyndall, Liverpool. 10 . THE QUEEN v. CLARK. Jurisdiction of the Court for Grown Cases Reserved 17 & 18 Viet. c. 78, 8. 1. No case can be stated for the opinion of this Court except upon some question of law arising on the trial. Where, therefore, the prisoner had pleaded guilty, and the question asked was whether the prisoner's act as described in the deposi- tions supported the indictment, the Court held that they had no jurisdiction to consider the case. THE following case was stated by the chairman of quarter sessions for the county of Cambridge : At the general quarter sessions of the peace holden for the county of Cambridge, on the 6th of July, 1866, James Clark pleaded guilty to an indictment which charged him with having, on the 5th of April, 1866, at Longstowe, in the said county, com- mitted a certain unlawful act, to wit, the throwing a stone at and upon a certain tender then being used upon a certain railway called " The Bedford and Cambridge Branch of the London and North Western Railway," whereby he, the said James Clark, endangered the safety of the persons then being in or upon such tender. This indictment was framed under the 34th section of the 24 & 25 Viet. c. 100, which enacts that " whosoever, by any unlawful act,, or by any wilful omission or neglect, shall endanger or cause to be endangered the safety of any person conveyed or being in or upon a railway, or shall aid or assist therein, shall be guilty of a misdemeanor." It appeared by the depositions that the prisoner and three com- panions (all of them agricultural labourers), having previously been drinking together, were, on the evening of the 5th of April, standing VOL. L] MICH. TERM, XXX VICT. 55 on the bridge on the Old North Road, which runs over the Bed- 18GG ford and Cambridge Railway ; and, as a goods train was passing, THE QCEEK the prisoner picked up a stone from the road, and threw, or CLARK dropped, it on the tender. The stone struck the tender, and then rebounded on the fireman, without, however, inflicting any injury. The Court of quarter sessions entertained a doubt whether this act of the prisoner, i.e., throwing or dropping a stone, was such an unlawful act as to bring it within the provision of s. 34, espe- cially as the offence of throwing a stone is specifically provided for by the 33rd section of the act. Judgment was, therefore, post- poned ; and the prisoner was discharged, upon recognizances to appear when called upon. The opinion of the Court of Criminal Appeal is requested whether the prisoner was rightly indicted. This case was considered by Cockburn, C.J., Martin and Bram- well, BB., and Mellor and Montague Smith, JJ. No counsel appeared on either side. COCKBURN, C.J. In this case we have no jurisdiction. It was not a question arising on the trial ; for the man pleaded guilty, and he must be taken to know the law. The power to state a case for the consideration of this Court only applies to questions of law which arise on the trial. (1) (1) See the 11 & 12 Viet. c. 78, s. 1, or justices of the peace "before whom by which it is enacted that " when any the case shall have been tried, may, person shall have been convicted of any in his or their discretion, reserve any treason, felony, or misdemeanor before question of law which shall have arisen any Court of oyer and terminer or on the trial for the consideration of the gaol delivery, or court of quarter justices of either bench and barons of sessions, the judge or commissioner, the Exchequer." END OF MICHAELMAS TEEM, 1866. VOL. I. CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED HILAEY TEEM, XXX VICTOEIA. 1867 THE QUEEN v. MARTIN. an - !& False Pretences Remoteness. A conviction for obtaining a chattel by false pretences is good, although the chattel is not in existence at the time the pretence is made, provided the subse- quent delivery of the chattel is directly connected with the false pretence. Whether or not there is such a direct connection is a question for a jury. THE following case was stated by the chairman of quarter sessions for the county of Warwick : The indictment charged the prisoner, in the first count, that by falsely representing to the prosecutor that he, the prisoner, was agent to the Steam Laundry Company, of which some of the lead- ing men in Birmingham were at the head, and that, as such agent, he was desired by the company to procure a spring van for the use of the company, he did obtain a certain spring van of the prose- cutor with intent to defraud ; and, in the second count, that the prisoner did order a spring van to be made and built for the com- pany, under the same false representations as in the first count. The prosecutor, John Grindrod, stated that he is a wheelwright at Aston, nigh Birmingham ; that on an early day of June last the prisoner Martin came to him, and said that he wanted a van for the Steaii Laundry Company at Aston, of which he was the agent, and that the company comprised some of the leading men of Birming- ham at the head of it. He inquired the price, and was told it would be 40?. for the van, and 31. more for lettering, if it was to be VOL. L] HILAEY TEEM, XXX VICT. 57 lettered. He said it must be done in a month ; and, being told it 1867 could not be got ready in that time, he said, " Then you must do it THE QUEEN as soon as you can." Nothing further passed between them ; but, MARTI*. when the van was ready to receive the letters, the prosecutor went to the prisoner's office in Colmore Kow, to inquire in what way the van was to be lettered. The prisoner was not within on that occa- sion, and the prosecutor did not see him ; but he was furnished at the office with a paper which contained the inscription to ba put upon the van in the prisoner's handwriting. On the 7th of July the prosecutor received a letter from the prisoner altogether counter- manding the order for the van ; but, the van being by that time completed, the prosecutor on the following Saturday, notwith- standing the countermand, delivered the van, in pursuance of the original order, at the steam laundry premises situated in Aston Park. On the Monday after the Saturday on which the van had been delivered, the prisoner himself brought it back again to the prosecutor's yard, telling him that he ought not to have sent it after he received his letter countermanding the order. To this the prosecutor replied that he should not know what to do with it it would be a burthen and a loss to him and that the prisoner must keep it. The prisoner then said, " If I do, you must take off five pounds ;" and the prosecutor answered, " Not five pence." Prisoner added, " Then, if I keep it, you must put in some boards to carry the baskets of linen upon." The prosecutor assented. The prisoner then drove away with the van. A few days after, the boards were fitted to the van by the prosecutor's workmen, whom he sent for the purpose; and the prosecutor also received from the prisoner an old van to have some repairs done to it. The prosecutor further stated in his evidence that on a Saturday, about a fortnight or three weeks after the delivery of the van, he received a printed circular, informing him that a meeting of the prisoner's creditors was to take place at three o'clock on the following Monday, and inviting him to attend as a creditor. This he declined to do; but, in the forenoon of Monday previous to the meeting, he called upon the prisoner at his office in Colmore Bow, and had an interview with him, when he said to him, " How came you to send a circular to me ? I have nothing to do with you ; it is the company I made the van for." To this the prisoner replied, " I am the company ; L2 4 58 CROWN CASES RESERVED. [L. R. 1867 there is no other company but only ine. You may call me rogue, THB^QcKEir thief, and villain. I know that I have done wrong." The prose- M v ' cutor also proved that in the month of February he had seen an advertisement frequently repeated in the Birmingham Daily Post newspaper, giving notice of the establishment of a Steam Laundry Company in Aston Park, the prisoner being the agent and manager, with an office at No. 3, Colmore Row ; and the prosecutor further stated that he supplied the van to the prisoner solely as agent of the company, and on the faith of his representation that the com- pany consisted of the leading men in Birmingham. On cross- examination the prosecutor admitted that once before, after the appearance in February of the advertisement in the newspaper, the prisoner had called upon him, and given him a similar order for a van, under precisely similar circumstances, which order was subsequently countermanded before the work was much advanced, consequently it was not proceeded with. This took place some time in the spring. He also admitted that he had taken the prisoner's representation about the company, without inquiring who the leading men of Birmingham at the head of it were, and without requiring any reference ; and that he knew the prisoner was proprietor of a theatre in Birmingham. He also admitted that in the interview between himself and the prisoner, after receiving the circular, the prisoner said to him, "Well, you have got the old van ; and you will not be so badly off." Being asked what he considered the old van was worth, the prosecutor said he valued it at 25?. Three other witnesses were examined on the part of the prosecu- tion ; but they only proved, 1st, the meeting of the creditors on Monday, the 13th of August, which resulted in a deed of composi- tion, under which the prisoner paid 5s. in the pound ; 2ndly, the publication in February of the advertisement in the newspaper by the prisoner's authority ; 3rdly, the delivery of the van on the pre- mises of the Steam Laundry Company in Aston Park. Verdict: Guilty. Judgment respited until Epiphany sessions. The prisoner liberated on bail. The question for the opinion of the Court of Criminal Appeal is, whether the verdict of Guilty is a right Verdict upon the evidence. VOL. I.] HILARY TEEM, XXX VICT. 50 This case was argued before Bovill, C.J., Willes, J., Channell, B., 1867 and Blackburn and Lusli, JJ. THE QUEEN v. Kennedy, for the prisoner. In order to support an indictment for obtaining by false pretences, the thing obtained must be in existence when the false pretence is made. A man cannot be indicted for obtaining by false pretences an agreement to make something. The old law contemplated the existence of something of which there could be an owner ; and although now, by the 24 & 25 Viet. c. 96, s. 88, ownership need not be alleged, yet the nature of the thing to be obtained is not altered. Section 90 of that act applies to the case of valuable securities not in existence when the false pretence is made ; but there is no offence in order- ing a chattel to be made. A man cannot be convicted of obtaining a dog by false pretences, because a dog is not the subject of larceny : Reg. v. Robinson. (1) Neither is that the subject of lar- ceny which is not in existence when the false pretence is made. [WiLLES, J. The law did not condescend to take notice of base animals. A dog was not the subject of larceny at common law, because, as it was said, a man shall not hang for a dog. (2)] In Douglass's Case (3) it was held that money obtained from a servant cannot be described as the property of the master, because the master afterwards reimburses the servant. In Wavett's Case (4), where a man induced a banker to honour his cheques by false pre- tences, the conviction was held bad, because what was obtained was Credit on account. [BLACKBURN, J. There the prisoner never obtained the money at all. The question here is, whether the van, when built, was ob- tained by a continuing false pretence.] The doctrine of a continuing pretence is not to be found in the statute. In Gardners Case (5) the prisoner obtained a contract for lodging by false pretences, and afterwards obtained food under that contract; but it was held that the getting the food was too re- motely the result of the false pretence. So here the false pre- tence was exhausted in obtaining the contract to build the van. Bryan's Case (6) is still more strongly in favour of the prisoner. (1) Bell, C. C. 34; 28 L. J, (M,C.) 58. (4) 1 Moo. C. C. 224. (2) See 7 Eep. 18 a. (5) Dears. & B. C. C. 40. (3) 1 Camp. 212. (6) 2 F. & F. 567. 60 CEOWN CASES EESEEVED. [L. K. 1867 [LusH, J. In Gardner's Case (1) the prisoner did not contem- Tm: QIT.KN- plate obtaining the loot I \\hrli llf! imrle t]ic false MARTIN. BLACKBURN, J. It is not everything obtained subsequently that is obtained by the false pretence. I should have said that even in Gardners Case (1) the question of remoteness was one for the jury. Here, however, the delivery of the van was the very object and aim of the false pretence.] No counsel appeared for the Crown. BOVILL, C. J. The question asked of us is, whether the verdict was right upon the evidence. This we understand to mean whether there was evidence to go to the jury ; and so understanding it, we are all of opinion that there was. The objection urged upon us has been answered by my Brothers Willes and Blackburn in the course of the case ; and it is obvious that there are many cases within the mischief of the statute where the thing obtained is not in existence when the false pretence is made. Thus a man, by false pretences, may induce a tailor to make and send him a coat, or a friend to lend him money, which may consist of bank-notes not printed when the false pretence was made on which the loan was granted. So also a man might obtain coals which were not got, and therefore not a chattel in the eye of the law, at the time of making the pretence. It is absurd to say that the chattel ob- tained must be in existence when the pretence is made. The pre- tence must, indeed, precede the delivery of the thing obtained; but at what distance of time ? What is the test ? Surely this, that there must be a direct connection between the pretence and the delivery that there must be a continuing pretence. Whether there is such a connection or not is a question for the jury. In Gardner's Case (1) the prisoner obtained, at first, lodgings only, and, after he had occupied the lodgings more than a week, he . obtained board; and it was held that the false pretence was exhausted by the contract for lodging, the obtaining board not having apparently been in contemplation when the false pretence was made. It is true that in Aryan's Case (2) the contract was for board as well as lodging; but there the indictment was for having obtained sixpence as a loan some time after the contract (1) Dears. & B. C. C. 40. (2) 2 F. & F. 5fi7. VOL. I.] HILAKY TEEM, XXX VICT. 61 for board and lodging had been entered into ; and it is clear that 1867 the obtaining the loan was as remote from the false pretence under THE QUEEN which the contract for board and lodging had been entered into, as v r the obtaining of the board was from the false pretence made in Gardners Case. (1) In the present case, when the false pretence was made and the order given, it was never contemplated that the matter should rest there ; and we have no difficulty in holding that there was a continuing pretence, and a delivery obtained thereby. WILLES, J. I will only add that, since the cases of Reg. v. Abbot (2) and Reg. v. Burgon (3), it is impossible to contend seriously that the case is not within the statute because the chattel is obtained under a contract induced by the false pretence. Conviction affirmed. Attorney for prisoner : Walter, Birmingham. THE QUEEN v. LOWEIE. Jan. 19. Larceny Valuable Security 24 & 25 Viet. c. 96, ss. 1, 27 Indictment. An indictment under 24 & 25 Viet. c. 96, s. 27, for stealing a valuable security, must particularize the kind of valuable security stolen ; and any material variance between the description in the indictment and the evidence, if not amended, will be fatal. THE following case was stated by the chairman of quarter ses- sions for the county of Northumberland : David Lowrie was tried before me, at the last Michaelmas quar- ter sessions for Northumberland, upon an indictment which charged him with stealing " a certain valuable security to wit, an agree- ment between the said David Lowrie and one William Cairns, whereby the said William Cairns was entitled to receive payment of certain sums of money, and which said sums of money were then due and unsatisfied to the said William Cairns, the said security being then and there the property of one John Mackintosh." (1) Dears. & B. C. C. 40. (2) 1 Den. C. C. 273. (3) Dears. & B. C. C. 11. 02 CROWN CASES RESERVED. [L. R, 1867 One James Alexander had been tenant of a farm, William THE QciEaT Cairns and John Alexander being sureties for his rent. James LOWBIE. Alexander became bankrupt; and Cairns and John Alexander put the prisoner into the farm for the remaining year of the lease namely, from May, 1865, to May, 1866 at a rent of 1567. The prisoner entered in May, 1865. The first half-year's rent was satis- fied in November Cairns said, by a distress. At the close of March, 1866, Cairns met the prisoner, by appointment, at his house ; and one John Mackintosh, at their request, wrote upon a piece of paper b9aring a peiiiry stamp an agreement relative to the farm. Mackintosh gave evidence of what passed at this inter- view. He stated that he wrote down upon a piece of paper the terms agreed upon by Cairns and the prisoner, and read them over aloud. He then handed the paper to the prisoner to sign ; and the latter, after signing it, handed it to Cairns; and by him it was re-delivered to Mackintosh to keep until May, or until the affairs were settled. This paper was what the prisoner was charged with afterwards stealing ; and, as it was not forthcoming at the trial, although the prisoner had notice to produce it, secondary evidence of its contents was given. Mackintosh stated that he recollected a stipulation in it, that Cairns was to take the crop, and pay 507. for it, and also a stipulation that Cairns was to pay a certain sum for some fixtures ; but he did not recollect any relative to two sums of 287. and 77. being made payable to Cairns, instead of to the prisoner ; and, on being asked in cross-examination, he said his belief was, that there was no such term in the agreement, although there might have been other things in. (It appeared in the course of the case that the prisoner had let a grass park to one Robert Stafford for 287., payable on May 12th, and some stintage for 77., payable on the same day.) Cairns stated that the terms contained in the paper were 1st, that he was to pay 507. for the right to sow t and reap the crop ; 2nd, that the two sums above mentioned were to be received by him, and not by the prisoner; 3rd, that he undertook to pay the half-year's rent of 787., due on May 12th, in return for the crop and the 287. to be received from Eobert Stafford. The stintage 77. had to be accounted for, when the dila- pidations were ascertained. He made no mention of any sum being payable for fixtures. Cairns paid the 787. in June. Stafford stated VOL. I.] HILARY TEEM, XXX VICT. 63 that he had agreed with the prisoner for the grass for 287., payable 1867 on May 12th (but that the prisoner got from him, on account, 247. THE QUEEN on the 14th of April, and the balance on May 18th), and that he had no notice of any agreement between Cairns and the prisoner affecting his bargain with the prisoner until considerably later than May 12th, and after the rent of 287. had been paid by him to the prisoner. No further evidence than Cairns' was given about the 77. for stintage. A few days after the drawing up of the agree- ment Cairns turned off the farm fifty or sixty head of cattle belonging to the above John Alexander, which were on his fallow quarter for turnips. On the 13th of April John Alexander and the prisoner called on Mackintosh ; and Alexander asked to look at the agreement itself. Mackintosh produced it, and read it aloud to the two men ; and then the prisoner took it out of his hand, and folded it up and put it in his pocket, saying he was going to shew it to Cairns ; and he and Alexander walked away, after Mackintosh had again asked prisoner to return it to him. Mackintosh called on the prisoner the same evening ; but he refused to give it up. Cairns said the prisoner had never offered to shew him the agree- ment, nor had he seen it since he had delivered it to Mackintosh. He also said, in cross-examination, that he had heard there was some arrangement between the prisoner and John Alexander about feeding the latter's cattle on the farm. He admitted that his soli- citor had, on his instructions, commenced an action against the prisoner for the second half-year's rent, said to have been made the subject of the agreement, and that such proceedings were still pending. Criminal proceedings were not commenced till the month of August, when an information was laid by Cairns, upon the same day that his son was brought before the magistrates and fined, at the instance of the prisoner, for an assault upon him. At the close of the above case for the prosecution, it was ob- jected for the prisoner, by his counsel, that he could not be legally convicted upon the above indictment, because, 1st, The written paper alleged to have been stolen by him was not a valuable security within the 27th section of the 24 & 25 Viet. c. 96. 2nd, It was not a valuable security whereby Cairns was entitled to receive payment of certain sums of money, and which said sums of money were then due and unsatisfied to the said Cairns. VOL. I. M 4 'C4 CKOWN CASES RESERVED. [L. R. 1867 3rd, It was the prisoner's own property, to which he was entitled XHB QCEEN as part owner. 4th, The prisoner was joint bailor of it ; and there LOWBI wa8 no evidence of a fraudulent intention against the bailee, in whom the property was laid in the indictment. I, however, left the case to the jury, who convicted the prisoner ; and I admitted him to bail, until the opinion of the Court for the consideration of Crown Cases Reserved could be obtained. The opinion of the Court is requested, whether, on proof of the above facts, the prisoner was legally convicted upon the above indict- ment ? If the opinion of the Court should be in the affirmative, the conviction to be affirmed ; if in the negative, to be quashed. This case was argued before Bovill, C. J., Willes, J., Channell, B., and Blackburn and Lush, JJ. Greenhow, for the prisoner. The indictment is framed under the 24 & 25 Yict. c. 96, s. 27, which makes the larceny of " any valuable security other than a document of title to lands " felony. The words "valuable security" are explained by s. 1 of the same act to include, among other things, any " warrant, order, or other security whatsoever, for money or for payment of money." The description given in the indictment was material, and was not proved ; for the document was nothing more than an agreement between the prisoner and Cairns, and did not entitle the latter to receive the 28?. from Stafford, who was discharged by having paid the prisoner without notice of it There was nothing more than an executory agreement, Cairns' right to receive the 28?. depending on his payment of the rent. (1) [BLACKBUKN, J. The document seems to be an equitable assign- ment of money when it became due. LUSH, J. It was an agreement that Cairns should receive, and not an actual direction to Stafford to pay.] T. C. Foster, for the prosecution. The description of the docu- ment, being laid under a videlicet, is immaterial, and may be (1) He also contended that the be convicted of stealing it; and that agreement was not a valuable security there was no evidence of fraudulent within the meaning of the 24 & 25 intent. But, as no decision was given Viet. c. 96, s. 1 ; that the prisoner was upon these points, this part of his argu- part owner of it, and as such could not ment is omitted. VOL. L] HILARY TERM, XXX VICT. 65 struck out. The agreement was a document of title to goods within 1867 the meaning of the 24 & 25 Viet. c. 96, s. 1. THE QUEEN Greenhow was heard in reply. LOWBIE BOVILL, C. J. We are all of opinion that the description given in the indictment was necessary and material, because it is not every valuable security, but only such as is not included in the term " document of title to lands," that is within the 27th section of the Larceny Act. That description was not supported by the evidence. The document proved at the trial was an agreement by which Cairns was to sow and reap the crop, to pay the rent, and to receive 28Z. from Stafford. No notice of this agreement was given to Stafford ; and it was not of itself a document entitling Cairns to receive the money from Stafford. Moreover, the money was not due and unsatisfied at the time the prisoner took the agreement. The indictment describes a particular kind of security ; and, as the evidence does not correspond with that description, the indictment cannot be sustained. Conviction quashed. Attorneys for prosecution : Gray, Johnstone, & Mounsey, for Forster, Alnwick. Attorneys for prisoner : Slium & Grossman, for Wilson & Middle- mas, Alnwick. THE QUEEN v. GREENLAND. j^. 26. Perjury Banker's affidavit 9 Geo. 4, c. 23, s. 7. The affidavit verifying the return of the issue by a banker of unstamped bills and notes under the 9 Geo. 4, c. 23, may be sworn, either before a justice of the peace under s. 7 of that statute, or before a commissioner to administer oaths in Chancery under the 55 Geo. 3, c. 184, s. 52, the later enactment being cumula- tive only. The manager of a bank is a chief clerk within the meaning of the 9 Geo. 4, c. 23, s. 7, which requires such affidavit to be made by a cashier, accountant, or chief clerk. THE following case was stated by Pigott, B : Edward Greenland was tried and convicted before me, at the Central Criminal Court, on the 25th day of October last, on an in- 66 CROWN CASES RESERVED. [L. R. 1867 dictment for perjury committed by him in an affidavit made in ~THB QCJBEW pursuance of the statute 9 Geo. 4, c. 23, entitled " An act to enable v - bankers in England to issue certain unstamped promissory notes and bills of exchange upon payment of a composition in lieu of the stamp duties thereon." The facts were, that the prisoner, Edward Greenland, was for several years manager of the Leeds Banking Company (which was a registered joint-stock company) at a salary of 3000Z. per annum. He had twelve clerks under him, over whom he had the control. He was not the accountant or cashier ; but the cashiers took their orders from him. He directed the issues of notes, and signed them. His duties were those of general manager ; and he made the affidavit in question on the 4th of July, 1864, before Mr. William Sykes Ward at Leeds (he being a commissioner to administer oaths in Chancery for the Leeds district). The affidavit is written on the back of a half-yearly return required under the 7th section of the statute 9 Geo. 4, c. 23. No director or proprietor of the bank joined in the affidavit, or made any other affidavit verifying the return. The half-yearly returns which had been made for the years 1860, 1861, 1862, 1863, and 1864, and received by the commis- sioners, were produced in evidence, and were respectively verified by the affidavit of the manager of the bank alone. Mr. Serjeant Ballantine, for the prisoner, took the following objections in point of law : First, that the affidavit was not made before a person empowered to take it, but should have been made before a justice of the peace. Secondly, that the prisoner was not the proper person to make the affidavit, he not being a cashier, accountant, or chief clerk. Thirdly, that there should have been evidence that the commissioners of stamps expressly required the affidavit of a " cashier, accountant, or chief clerk," in addition to that of the persons empowered to issue bills and notes. (1) I overruled these objections, and directed the jury that the prisoner was proved to be a chief clerk sufficiently for the purpose of the statute, and that the evidence, which shewed that the com- missioners had for years received and acted upon the affidavit of the prisoner as manager or chief clerk, was sufficient to shew that they required an affidavit (if any requirement were necessary). (1) The third objection was not argued. VOL. I.] HILARY TERM, XXX VICT. 67 The jury found the prisoner guilty. 1867 If the Court should be of opinion that either of these objections THE QUEEN" is good in point of law, the prisoner is to be discharged from his GREENLAND recognizances : otherwise the verdict is to stand ; and the prisoner will come up for sentence at the next Court. This case was argued before Kelly, C.B., Willes, Keating, and Blackburn, JJ., and Pigott, B. Giffard, Q.C. (Sleigh with him), for the prisoner. This indictment is framed under the 9 Geo. 4, c. 23, which, by s. 7, requires that persons to be licensed to issue or draw unstamped notes or bills under that act shall give security by bond to deliver to the commissioners of stamps half-yearly "a just and true account in writing, verified upon the oaths or affirmations (which any justice of the peace is hereby empowered to administer), to the best of the knowledge and belief of such person or persons, and of his or their cashier, accountant, or chief clerk, or of such of them as the said commis- sioners shall require, of the amount or value of all unstamped promissory notes and bills of exchange, issued," &c. The first objection is, that the affidavit in this case was not made before a justice of the peace in pursuance of that section, but before a commis- sioner to administer oaths in Chancery. By the 55 Geo. 3, c. 184, s. 52, " all affidavits and solemn affirmations in the case of quakers, required by this or any former or future act of parliament, or which shall be required by the said commissioners of stamps, to be made for the satisfaction of the said commissioners, of and concerning any facts or circumstances upon which they are to execute the powers vested in them by this or any other act, or for the verifica- tion of any accounts of or concerning the duties under their man- agement, or for any other purpose relating to such duties, shall, in all cases not otherwise expressly provided for, be made before the said commissioners, or any one or more of them, or before a master in Chancery, ordinary or extraordinary, in England," &c. (1) But in this case it is "otherwise expressly provided" by the 9 Geo. 4, c. 23, s. 7, that the affidavit shall be made before a justice of the (1) By the 16 & 17 Viet. c. 78, s. 1, " Commissioners to administer oaths in "Masters Extraordinary in Chancery" Chancery." are to be designated thenceforth as VOL. I. N 4 C8 CKOWN CASES RESERVED. [L. R 18G7 peace. The 5 Geo. 3, c. 46, and the 44 Geo. 3, c. 98, s. 24, contain TUB QUEXN similar express provisions ; and, whenever the legislature has in- tended that the powers given by the later act should-Jbe cumulative, and not in substitution for those given by the 55 Geo. 3, c. 184, it has expressly said so, as in the 4 & 5 Viet. c. 50, s. 2, which requires an affidavit or affirmation, and enacts that " such affidavit or affir- mation shall be made before any justice of the peace in any part of the United Kingdom, or before a master extraordinary in Chan- cery, or any person authorized to take affidavits by any of the superior courts in England or Ireland." Secondly, the prisoner was not the proper person to make the affidavit. The case finds that he was the manager, not the cashier, accountant, or chief clerk ; and he discharged the duties of a prin- cipal, and not those of a clerk or servant. Hellish, Q. C. (F. H. Lewis with him), for the Crown. As to the first objection, the 9 Geo. 4, c. 23, s. 7, contains only a permissive provision empowering a justice of the peace to administer the oath, and does not prevent persons expressly mentioned in the 55 Geo. 3, c. 184, from administering k also. The word "otherwise" must be construed to mean "to the contrary of what is herein enacted;" and, to render the one statute inconsistent with the other, the subse- quent statute should not contain permissive, but compulsory words, as is the case with the 4 & 5 Viet. c. 50, s. 2. If the intention of the legislature is to be considered, it is more reasonable to suppose that a justice of the peace was added to the persons named in the previous statute for the sake of convenience, and that it was not intended to take away the power from those in superior authority. One affirmative statute does not repeal another affirmative statute. Giffard, Q.C., was heard in reply. KELLY, C.B. At first I entertained some difficulty in recon- ciling the imperative language of the 55 Geo. 3, c. 184, with the permissive language of the 9 Geo. 4, c. 23 ; but, on full considera- tion, I agree with, my learned Brothers that, as these are both affirmative statutes, they are not inconsistent ; and, if we read the statute 9 Geo. 4 as enacting that, whereas a statute had previously authorized certain qualified persons to administer oaths, a justice of the peace might also do so, then the statute 55 Geo. 3 remains VOL. I.] HILAKY TEEM, XXX VIOT. 69 unrepealed. I entertain no doubt that the legislature intended 1867 the later provision to be cumulative and additional. .THE QUEEN As to the second objection, both in a joint-stock and in a private GREENLAND bank, every one employed, whether he is called manager or secre- tary, in reality is nothing more than a clerk ; and heads of the separate departments may properly be called chief clerks. The prisoner, although called manager, was still a chief clerk, and qualified to make the affidavit. Conviction affirmed. Attorneys for the Crown : Jacobs & North, for North & Son, Leeds. Attorney for prisoner : /. D. Marsden,for Eichardson & Turner, Leeds. END OF HILARY TERM, 1867. VOL. I. CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN EASTER TEEM, XXX VICTORIA. 1867 THE QUEEN t>. BROWN AND HEDLEY. * Evidence Witnesses Impeaching Credit. In order to impeach the character of a witness for veracity, witnesses may be called to prove that his general reputation is such that they would not believe him upon his oath. THE following case was stated by the chairman of quarter sessions for the North Riding of Yorkshire : The defendants were indicted at the Easter quarter sessions of the peace for the North Riding of Yorkshire, for unlawfully and maliciously conspiring and agreeing together to assault and inflict grievous bodily harm on one John Francis Robinson. At the close of the case for the prosecution, the counsel for the defen- dants, after having called several witnesses to character, proposed to call witnesses to prove that they would not believe the witnesses for the prosecution on their oaths. The Court decided on refusing to receive such evidence. The defendants were found guilty, but were admitted to bail to appear at the next court of quarter sessions for the North Riding of Yorkshire, to receive judgment. At the request of the defendants' counsel, this case was granted by the Court for the opinion of the Court of Criminal Appeal, whether the evidence tendered by the defendants' counsel ought to have been received or not. VOL. I.] EASTEK TEEM, XXX VICT. 71 This case was heard before Kelly, C.B., Martin, B., and Byles, 186? Keating, and Shee, JJ. THE QUEEN v. Shepherd, for the prisoner, cited Mawson v. HartsinJc (1), and MEDLEY. was then stopped. A. W. Simpson, for the Crown, submitted that the evidence offered was inconsistent with Reg. v. Eowton (2), and read a note from Taylor on Evidence (3) in which that learned author quotes the opinion of Shepley, J., in an American case of Phillips v. Kingfield. (4) The Court, however, declined to hear any further argument on the subject, observing that all the text- writers were agreed that the evidence could be given, and that the practice was so ancient, and hitherto so undoubted, that it could not be altered now unless by the authority of the legislature. Conviction quashed. Attorneys for the prisoner: De Gex & Harding, for Dobson, MiddlesborougTi. Attorneys for the Crown : R. M. & F. Lowe, for Trevor, Guis- lorough. THE QUEEN" v. PROUD. May 11. Perjury Jurisdiction of Justice Master and Apprentice 4 Geo. 4, c. 34, s. 2. The prisoner was indicted for perjury committed before a police magistrate upon a summons taken out by him as an apprentice against his master under the 4 Geo. 4, c. 34, s. 2, for non-payment of wages : Held, that the magistrate had jurisdiction to adjudicate upon the complaint, although the summons was not taken out until the relation of master and servant- had ceased ; and that, at any rate, he had jurisdiction to inquire into the existence of such relation. THE following case was stated by the Recorder of London : On the 31st of January, 1867, the prisoner was tried before me at a session of the Central Criminal Court upon an indictment for perjury. The indictment alleged that on the 16th of January, (1) 4 Esp. 102. (3) Vol. ii. p. 1250, 4th ed. (2) Leigh & Cave C. C. 520 ; 34 (4) 1 Applet. 375. L. J. (M. C.) 57. 72 CROWN CASES RESERVED. [L. R. 1867 1867, at the Westminster police court, T. J. Arnold, Esq., one of the magistrates of the police courts of the metropolis, sitting at the Westminster police court, did duly hear a complaint then depend- in" 1 against one Charles Ginn for neglecting to pay his apprentice, the said William Proud, certain wages then due to him ; and that, upon the hearing of the said complaint, the said William Proud falsely swore that, during the period between the 28th of October, 1865, and the 28th of April, 1866, he had not received any money from the said Charles Ginn ; and that, during the period between the 28th of April, 1866, and the 28th of October, in the same year, he had received from the said Charles Ginn the sum of 2s. 6d. each week, and no more. In a second count, the perjury was alleged to be in falsely swearing on the said hearing that in the week next following the 28th of October, 1865, he had not received from the said Charles Ginn any money for wages ; that the said Charles Ginn had not paid him 2s. 6d. for wages several times during the period between the 28th of October, 1865, and the 28th of April, 1866 ; and that the said Charles Ginn had not paid him 5s. several times for wages during the period between the 28th of April, 1866, and the 28th of October in the same year. It was proved in evidence by the said Charles Ginn that, on the 28th of October, 1865, the defendant, William Proud, entered the service of the said Charles Ginn (a hairdresser) under an indenture of apprenticeship for twelve months, with an arrangement that he was to be paid 2s. 6d. a week wages for the first six months, and 5s. a week wages for the last six months ; and that on the 28th of October, 1866, having completed his service, he left the employ- ment, and afterwards wrote a letter to the said Charles Ginn, stating that, while by his indenture he should have received 2s. 6d. a week during the first six months and 5s. a week during the last, he had received nothing during the first six months, and only 2s. Gd. a week during the last, and claiming 61. as due to him. The said Charles Ginn alleging that he had paid the defendant, and the latter denying it, the summons in question was issued and heard before Mr. Arnold, the magistrate, as alleged in the indict- ment. Witnesses were called on the trial in confirmation of the evidence of the said Charles Ginn; and the jury found the defen- dant guilty of perjury : but at the close of the case for the prosecu- VOL. I.] EASTEE TERM, XXX VICT. . 73 tion, Mr. Kibton, on behalf of the defendant, objected that the 1867 magistrate's jurisdiction under the 4 G-eo. 4, c. 34, s. 2, with respect T^. Q UEEN to differences and complaints between masters and apprentices, was gone when that relation ceased to exist, and that, therefore, he had no jurisdiction to hear or adjudicate upon this complaint. I held that he had jurisdiction under the said act, on the ground that this matter was a complaint, difference, or dispute which arose between a master and apprentice, within the meaning of the said act and the acts therein recited, touching wages due to such apprentice ; but I agreed to reserve that question, and now accordingly state this case for the opinion of the justices of either bench and barons of the exchequer in the Court for the consideration of Crown Cases Keserved. If the Court should think that the magistrate had not jurisdiction to hear the complaint, the conviction will be reversed ; otherwise the defendant, who is in custody, will receive judgment. This case was argued before Kelly, C.B., Martin, B., and Byles, Keating, and Shee, JJ. J. Digby, for the prisoner. The police magistrate had no juris- diction. The 4 Geo. 4, c. 34, s. 2, enacts that " all complaints, differences, and disputes which shall arise between masters or mistresses and their apprentices, within the meaning of the said before-recited acts, or any of them, touching or concerning any wages which may be due to such apprentices, shall and may be heard and determined by one or more justice or justices of the peace of the county or place where such apprentices shall be em- ployed" &c. These words contemplate the continuance of the rela- tion of master and apprentice ; and, as in this case that relation had ceased, the police magistrate had no jurisdiction, and so the false swearing was coram non judice. [MAKTIN, B. According to your contention the magistrate would have no jurisdiction to enforce payment of the last week's wages in any case. KELLY, C.B. If a magistrate had made an order on the master for payment of wages, and the apprenticeship ceased before a warrant could be issued, you must contend that the jurisdiction to issue the warrant would be gone.] By the first section of the act the magistrate, upon the complaint 74 CROWN CASES RESERVED. [L. R. 18G7 of the master, may abate the wages of the apprentice or commit to tne house of correction. If the jurisdiction does not cease * with the apprenticeship, a master by delaying his complaint until the apprenticeship was over might deprive the magistrate of this option. The same observation applies to the 20 Geo. 2, c. 19, one of the previous acts, under which the apprentice may be dis- charged. [MARTIN, B. The magistrate had at any rate jurisdiction to inquire whether the relation of master and apprentice existed. KELLY, C.B. The apprentice himself set the magistrate in motion by his complaint.] The act is a penal one and must be construed strictly. No -counsel appeared for the Crown. KJELLY, C.B. This conviction must be affirmed. The act in question is a remedial not a penal enactment ; and in construing it we must look to the substance of its provisions. It enables a magistrate to determine disputes between masters and their apprentices about wages. In this case there was a dispute : the apprentice put the law in motion ; and there was a determination. Is there anything in all that inconsistent with the statute ? Our attention, however, is called to the words, " where such apprentice shall be employed." If those words refer to the time for adjudi- cating upon the complaint, the objection is well-grounded ; but we think that they are merely descriptive of the justice, and do not refer to time at all, and that the magistrate in this case had autho- rity to hear and determine the complaint. But, further, whether the magistrate had jurisdiction or not to proceed, he clearly had jurisdiction to inquire whether the relation of master and ap- prentice existed, with a view to proceeding to determine the dispute as to wages, if such a relation did exist. He could not divine that the relation of master and servant was at an end. He could only arrive at that fact by inquiry ; and, if in the course of that inquiry perjury was committed, although it might turn out that the magistrate had no jurisdiction, yet successful perjury is not to go unpunished. Conviction affirmed. Attorney for prisoner : W. D. Smyth. VOL. I.] EASTEE TEEM, XXX VICT. 75 THE QUEEN v. SANDERS. 1867 Resisting Apprehension Warrant 11 . Indictment Amendment 14 & 15 Viet. c. 100, s. 1 Infoiination Game 9 Geo. 4, c. 69, s. 1. The judge has power, under the 14 & 15 Viet. c. 100, s. 1, to amend an indict- ment for perjury, describing the justices before whom the perjury was committed as justices for a county, where they are proved to be justices for a borough only. An information, under the 9 Geo. 4, c. 69, s. 1, for entering land for the pur- pose of taking game, is sufficient to give the justices before whom it is laid juris- diction to hear the charge, although it does not allege that the entry was for the purpose of taking game there. THE following case was stated by Blackburn, J. : The prisoner was tried before me, at the last assizes for Devon- shire, for perjury. The indictment alleged that, " at a petty session of the peace holden in the parish of Tiverton, in the county of Devon, a certain charge and complaint came on to be heard in due form of law before John Lane, Esq., and Samuel Garth, Esq., then respectively being justices of the peace of our Lady the Queen assigned to keep the peace in and for the said county, and acting in and for the borough of Tiverton in the said county, against Thomas Martin, for that he, to wit, on the night of the 31st of January, 1863, at Chettercombe Barton, in the parish of Tiverton, in the borough of Tiverton, unlawfully did enter and be on certain land there, called Quarry Down Close, with a certain YOL. L] EASTER TERM, XXXI VICT. 123 gun and other instruments for the purpose of taking and destroy- 1868 ing game contrary to the statute in such case made and provided," "THE and then alleged that the prisoner committed perjury on the hear- -\V ES T' EIIN ing of that complaint. On the evidence it appeared that an information or complaint in writing against Martin and the now prisoner Western was laid before a justice of the borough of Tiverton in 1863. Western was then convicted; but, Martin having absconded, a warrant was issued against him, and he was not taken till 1868, when the com- plaint against him was heard before the two gentlemen named in the indictment, who were justices for the borough of Tiverton only, and were not justices for the county. On the hearing of this com- plaint Western was called as a witness, and swore that Martin was not the person who was with him poaching on that night ; and on this the perjury was assigned. It was objected that, though the two justices for the borough had jurisdiction to hear the complaint, yet, not being justices in and for the county, the allegation in the indictment was not proved. To this it was answered that the fact that they were justices for the borough, which was within the county, was proof of the averment, or that the words " in and for the county " might be rejected as surplusage. I was, however, of opinion that the averment being descriptive required to be proved as laid. It was then urged that I had power to amend the indict- ment so as to cure the variance, either under the 9 Geo. 4, c. 15, or under the 14 & 15 Viet. c. 100, s. 1. I thought that the 9 Geo. 4, c. 15, did not apply to this case, and doubted whether the variance came within the meaning of the 14 & 15 Viet. c. 100, s. 1, as, though it was a variance in the description of persons in the indictment named and described, it seemed to me doubtful whether those words in the act were not confined to variances ejusdem generis with a variance in the name of such persons. I thought, however, that, if I had power to make the amendment, it was proper to exercise it, and therefore directed the indictment to be amended by striking out the words " the said county," so as to make the averment be that they were justices " assigned to keep the peace in and for, and acting in and for, the borough of Tiver- ton, in the said county," subject to the opinion of the Court of Criminal Appeal as to my power to make such an amendment. U 2 4 124 CROWN CASES RESERVED. [L. R. 1868 It was further objected that the information or complaint in THE QUEEN writing (which was in the same words as those used in the indict- WESTERX ment ) disclosed no offence, as it did not allege that Martin was in Quarry Down Close for the purpose of destroying game there, and Fletcher v. Calthorpe (1) was cited in support of this position. It appeared on the evidence that the charge actually made an$ heard before the justices was for poaching there ; and I thought that, inasmuch as the justices had jurisdiction over the complaint which was, in fact, heard before them, the prisoner, if he wilfully gave false evidence with intent to mislead them, was liable to punishment, even if the written complaint was informal ; but, having reserved the point as to the variance, I reserved this point also. The case was then left to the jury ; and the prisoner was convicted, and liberated on bail. The opinion of this Court is requested, 1st, whether I had power to amend as I did ; and, if I had not such power, whether as the indictment originally stood there was a fatal variance : 2ndly, whether the form of the complaint before the justices pre- vented the conviction of the prisoner under this indictment. ~No counsel appeared for the prisoner. A. Collins, for the Crown. The amendment was properly made under the 14 & 15 Yict. c. 100, s. 1. (2) [KELLY, C.B. There can be no doubt on that point. It was a description of the justices.] As to the second point, the information follows the words of the statute, the 9 Geo. 4, c. 69, s. 1, and is sufficient to give the justices jurisdiction to inquire into the charge. The case cited at the trial relates to the form of the conviction only. KELLY, C.B. It is perfectly clear that the justices had jurisdic- tion, and that the perjury was well assigned. (1) 6 Q. B. 880. in the Christian name or surname, or (2) That section enacts that " when- both Christian name and surname, or ever, on the trial of any indictment for other description whatsoever, of any any felony or misdemeanor, there shall person or persons whomsoever therein. appear to be any variance between the named or described, it shall and may statement in such indictment and the be lawful for the court, &c., to order evidence offered in proof thereof .... such indictment to be amended, iSrc." VOL. I.] EASTER TEEM, XXXI VICT. 125 KEATING, J., PIGOTT, B., MONTAGUE SMITH, and HANNEN, JJ., 1868 eoncurred. THE QUEEN Conviction affirmed. Attorneys for the Crown : Greaves & Walker, for G. W. Cock- ram, Tiverton. V. WESTERN. THE QUEEN v. McKALE. Larceny Possession obtained by Fraud. The prisoner with another man went into the shop of the prosecutrix and asked for a pennyworth of sweetmeats, for which he put down a florin. The prosecutrix put it into the money-drawer, and put down sixpence in silver and fi vepcnce in copper in change, which the prisoner took up. The other man said, " You need not have changed," and threw down a penny, which the prisoner took up ; and the latter then put down a sixpence in silver and sixpence in copper on the counter, saying, " Here, mistress, give me a shilling for this." The prosecutrix took a shilling out of the money-drawer and put it on the counter, when the prisoner said to her, " You may as well give me the two-shilling-piece and take it all." The prosecutrix took from the money-drawer the florin she had received from the prisoner, and put that on the counter, expecting she was to receive two shillings of the prisoner's money in exchange for it. The prisoner took up the florin ; and the prosecutrix took up the silver sixpence and the sixpence in copper put down by the prisoner, and also the shilling put down hy herself, and was putting them into the money- drawer, when she saw she had only got one shilling's worth of the prisoner's money ; but at that moment the prisoner's companion drew away her attention, and, before she could speak, the prisoner pushed his companion by the shoulder, and both went out of the shop : Held, that the property in the florin had not passed to the prisoner, and that he was rightly convicted of larceny. THE following case was stated by the Chairman of Quarter Sessions for the county of Nottingham : At the sessions holden at Nottingham, in December last, Patrick McKale was indicted and tried before me for feloniously stealing 2s., the moneys of Elizabeth Pickering. At the trial it was proved that Mrs. Pickering kept a shop for the sale of small articles. On the 25th ^of October, prisoner and another man not in custody both strangers to Mrs. Pickering, went into her shop ; and prisoner asked Mrs. Pickering for a, pennyworth of peppermints (sweet- meats), which she served, and prisoner put on the counter a two- shilling-piece in payment. Mrs. Pickering took up the two-shil- April 25. 126 CKOWN CASES RESERVED. [L. B. 1868 ling-piece, and put it into the money-drawer, and took out of the THE QCEEN same drawer a shilling and a sixpence in silver and five pence in * copper, and put these moneys (Is. lid.) on the counter as the proper change for the 2s., after deducting the penny for the sweet- meats. Prisoner took up the Is. 1 \d. ; and the other man said to prisoner, " What was it you gave her ?" Mrs. Pickering replied, " A two-shilling-piece." The other man said to prisoner, " You need not have changed ;" and at the same time threw down a penny on the counter. The prisoner took up the penny, and put a sixpence in silver and sixpence in copper on the counter, and said to Mrs. Pickering, " Here, mistress, give me a shilling for this." Mrs. Pickering then took a shilling out of the money-drawer, and put that shilling on the counter ; and prisoner said to her, " You may as well give me the two-shilling-piece, and take it all." Mrs. Pickering then took from the money-drawer the same two-shilling- piece she had received from the prisoner, and put that on the counter, expecting she was to receive two shillings of the prisoner's money in exchange for it. Prisoner took up the two-shilling-piece, and Mrs. Pickering took up the silver sixpence and the sixpence in copper put down by the prisoner, and also the shilling put down by herself, and was putting them into the money-drawer, when she saw she had only got the silver sixpence and sixpence in copper of the prisoner's money and the shilling of her own money in ex- change for the two-shilling - piece ; but at the same moment prisoner's companion pointed to some twist sweetmeats, and said to her, "How do you sell that?" and, before she could speak, prisoner pushed his companion by the shoulders, and said, " You don't want any of that ;" and both went out of the shop, prisoner taking the two-shilling-piece. In answer to a question, Mrs. Pick- ering said she did not intend parting with the two-shilling-piece without getting full change for it. Upon this evidence it was contended by the counsel for the prisoner: 1st, that upon the facts proved, the prisoner could not be convicted of larceny upon the present indictment; and 2nd, that Mrs. Pickering parted not only with the possession of the two-shilling-piece, but also with the property in it ; and therefore there was no larceny. Upon these objections counsel for the prisoner called upon me not to let the case go to the jury. I VOL. I.] EASTER TEEM, XXXI VIOT. 127 refused to stop the case, and directed the jury 1. That Mrs. 1868 Pickering was deprived of a shilling in value ; for that the prisoner THE QUEEN taking her two-shilling-piece left her in exchange only one shilling of his money. 2. That, although Mrs. Pickering did put down the two-shilling-piece on the counter, intending to part with it in exchange for two shillings, yet that, if the jury believed she intended only to part with it in exchange for two shillings of the prisoner's money, the parting with it by her under the circum- stances stated would not be a parting with the property in it, if the jury believed those circumstances to be fraudulently contrived by the prisoner and his companion. I left it to the jury to say whether the taking away of the two-shilling-piece under the circumstances was an error or mistake, and unintentional on the part of the prisoner ; or whether they believed that the prisoner and his companion went into the shop intending to defraud Mrs. Pickering, and that they did obtain from her by fraud the two- shilling-piece, meaning to steal from her a shilling in value ; and, if they should be of the latter opinion, I directed them that that was larceny. Upon this direction the jury found the prisoner guilty; and, a case being demanded, I state this case for the opinion of the Court of Criminal Appeal. If the Court shall be of opinion that the facts proved do not amount to larceny, and that my direction was wrong, the prisoner is to be discharged ; but, if the Court think the facts proved do amount to larceny, and that I directed the jury aright, the prisoner is to be brought up for sentence. J. W. Mellor, for the prisoner. In this case Mrs. Pickering had parted with the property in the two-shilling-piece ; and, although she may have done so under a mistake, yet that will not make the prisoner's act amount to larceny. He might, indeed, have been convicted of obtaining the money by false pretences. The true principle is laid down in Kussell on Crimes (1) ; and in Nicholson's Case (2), it was held that there can be no larceny where the pro- perty is parted with, although that is brought about by fraud. [KELLY, C.B. Mrs. Pickering discovered that she had only got (1) Vol. ii. 4th edit, by Greaves, p. (2) 2 Leacli, 610 ; 2 East, P. C. 196-198. c. 16, s. 103, p. 669. 128 CROWS CASES RESERVED. [L. R. 1868 a shilling before the transaction was at an end. If the money had QIKKN been P u t i n t the till, and the transaction had been completed, the case m i n t nave keen different. She never intended to part with the property unless she got the full change.] Cave, for the Crown. The property had not passed, because the transaction was not complete. Mrs. Pickering was entitled to a reasonable time for the inspection of the change before accepting it In this case that time had not elapsed ; and Mrs. Pickering had not accepted the change. The property in the two-shilling- piece consequently still remained in her, and had not been trans- ferred to the prisoner. In Olivers Case (1), where the prisoner had 351. in bank-notes handed to him for the purpose of changing into gold, and he went out with the notes promising to return imme- diately with the gold, but did not do so, it was held that he was guilty of larceny. In that case Wood, B., held that the property had never been parted with, because, " that could only be done by contract, which required the assent of two minds, that here was not the assent of the mind either of the prosecutor or of the prisoner ; the prosecutor only meant to part with his notes on the faith of having the gold in return, and the prisoner never meant to barter but to steal." That case was recognized in Reg. v. Williams (2), and in Reg. v. Rodway. (3) In the former case the prisoner went to a shop, and asked a boy there for change for a half-crown. The boy gave him two shillings and sixpence, and the prisoner held out a half-crown which the boy touched but never got hold of; and the prisoner ran away with the change. The prisoner was convicted of larceny of the change, Park, J., observing that, if the prisoner had only been charged with stealing the half-crown, he should have had great doubt. In the latter case the prisoner was convicted of stealing a receipt for rent which was given him to look at, but which the prosecutor stated he did not expect to get back, although he did not intend to part with it without receiving his money. Mellor, in reply. In Jackson s Case (4) it was held that if a pawnbroker's servant, who has a general authority from his master, delivers up a pledge to the pawner on receiving a parcel which he is by fraud induced to suppose to contain valuable diamonds, there (1) 4 Taunt, at p. 274 ; 2 Leach, 1072. (3) 9 Car. & P. 784. (2) G Car. & P. 390. (4) 1 Moo. C. C. 119. VOL. I] EASTER TERM, XXXI VICT. 129 is no larceny of the pledge. In Reg. v. Williams (1) the boy 1868 never intended to part with the property in the half-crown, and the THE~QUEEN transaction was clearly not at an end. In Rodivays Case (2) the ,, * receipt was only handed to the prisoner for a special purpose, viz., to be looked at. Olivers Case (3) is inconsistent with the later .authorities, and cannot be supported. KELLY, C.B. The distinction between fraud and larceny is well established. In order to reduce the taking under such circum- stances as in the present case from larceny to fraud, the transac- tion must be complete. If the transaction is not complete, if the owner has not parted with the property in the thing, and the accused has taken it with a fraudulent intent, that amounts to larceny. In this case the prisoner wishes to have back his two- shilling-piece, and is to give two shillings in money to Mrs. Picker- ing in exchange. She puts down the two-shilling-piece, expecting to receive two shillings of the prisoner's money. Did she part with the property in the two-shilling-piece by putting it down on the counter ? It is clear that she did not. If the prisoner had taken it up immediately without giving the change, she would have stopped him. The placing the two-shilling-piece on the counter was only -a step in the transaction. Then the prisoner took up the two- shilling-piece. That cannot make the transaction complete, and does not affect the question. Mrs. Pickering next takes up the change. Is the mere taking up of the change a parting with the property in the two-shilling-piece ? I am clearly of opinion that it is not. She is putting the change into the drawer, when she sees she has only got a shilling of the prisoner's money. She takes up the money, imagining it to be the whole change ; but she corrects her error in a moment ; and but for the act of the confederate she would have said, " You have only given me a shilling ; give me the other shilling, or give me back the two-shilling-piece." Up to that time the transaction remained incomplete ; and, when the prisoner carried off the two-shilling-piece, he took something the property in which had not passed out of her, and, calling away her attention by fraud, quitted the shop. He knew that it was her property, (1) 6 Car. & P. 390. (2) 9 Car. & P. 784. (3) 4 Taunt. 274 ; 2 Leach, 1072. 130 CROWN CASES RESERVED. [L. R. 1868 and that he was taking it against her will, and consequently he THE QUEEN was g u i% of larceny. In Jackson s Case (1) the shopkeeper did MCK'ALE. no ^ P en * ue Parcel, but took it on the assumption that it con- tained diamonds, and had deliberately, finally, and completely handed over the property in exchange for the parcel to the pri- sdner. The whole question here is whether Mrs. Pickering had finally, and completely, and deliberately parted with the property ; and I am of opinion that she had not, and that the prisoner Avas guilty of larceny. KEATING, J. I am of the same opinion. The distinction be- tween some of the cases is very fine. Looking at this case by the light of the facts as stated, I am of opinion that the conviction should be affirmed. PIGOTT, B. I am of the same opinion. The transaction was never completed. MONTAGUE SMITH, J. At first I entertained some doubt ; but,, after hearing the argument, I have arrived at the conclusion that the conviction is right. Mrs. Pickering put down the two-shilling- piece conditionally only, expecting that she was going to receive two shillings of the prisoner's money. LUSH, J. For some time I was unable to agree with the view entertained by my brethren. The difference between us was not,, however, one of principle, but lay in the conclusions we drew from the facts of the case. Looking at the case again, I think that Mrs. Pickering may not have intended to part with the property until she had received another shilling from the prisoner, and am of opi- nion that on this ground the conviction may be supported. Conviction affirmed. Attorney for the Crown : Pacliitt, Nottingham. Attorneys for prisoner : Wright & Banner, for Cranoh, Notting- ham. (1) 1 Moo. C. C. 119. VOL. I.] EASTER TEEM, XXXI VICT. 131 THE QUEEN v. MAIISDEN. 1868 Assault Arrest Resisting Officer. April25. The prisoner assaulted a police constable in the execution of his duty. The constable went for assistance, and after an interval of an hour returned with three other constables, when he found that the prisoner had retired into his house, the door of which was closed and fastened ; after another interval of fifteen minutes the constables forced open the door, entered, and arrested the prisoner, who wounded one of them in resisting his apprehension : Held, that, as there was no danger of any renewal of the original assault, and as the facts of the case did not constitute a fresh pursuit, the arrest was illegal. THE following case was stated by Montague Smith, J. : The prisoner was tried and convicted before me at the spring assizes, 1868, at Nottingham, on an indictment which charged him with feloniously wounding George Wesson, a police constable, with intent to resist his lawful apprehension. The facts were that the prisoner lodged at his father's house in Lower Town Street, Nottingham. About twelve o'clock on the night of Saturday, the 29th of February, the prisoner, suspecting a man called Wormald was listening at the windows of the house, came into the street, and used threatening language to him. Kaison, a police constable, came up and interfered to put a stop to the altercation ; and the prisoner then turned upon him, and struck him with his fist ; and there was a struggle between them. Raison, the police constable then went away for assistance, and remained absent for an hour. In the interval he changed his plain clothes for his uniform ; and he returned to the house with three other constables, Wesson, Ash, and Harabin. The prisoner had then retired into the house ; and all was quiet. The door of the house was closed and fastened. Raison asked the prisoner to open the door ; and he refused. The constables tried the door several times ; and, after an interval of ten minutes or a quarter of an hour, finding they could not get into the house, they determined to send for a serjeant of police. One of them then went to the police station, distant about half a mile, and, after another interval of fifteen or twenty minutes, returned with serjeant Hind. The serjeant and Harabin went to the back door. Raison, Wesson, and Ash remained by the front door. CROWN CASES RESERVED. [L. R. 1868 These three constables again demanded admission, and were re- THE QUEEN fused ; and they then forced open the front outer door, and entered X ^ e house. ^e constables saw the prisoner standing on the top of the stairs with a bill-hook in his hand. Kaison asked the prisoner to come down. He refused, and threatened to kill the first man who came up. Wesson then said, " Here's at him ;" and the three constables, Wesson, Kaison, and Ash, ran up stairs to lay hold of him. The prisoner then struck Wesson with the hook upon the head, and wounded him. A struggle ensued, in which Kaison was also wounded by the prisoner with the hook. The prisoner was overpowered, and taken into custody, having himself received severe wounds on the head from the constables in the ^struggle. It was contended for the prisoner that the apprehension was not lawful the assault was over, there was no further assault or affray to be apprehended, and no such fresh pursuit as would justify the constables in breaking into the house or apprehending the prisoner : See Beg. v. Gardener (1) ; Reg. v. Walker. (2) I reserved these points for the consideration of the Court for Crown Cases Reserved. If the apprehension was not lawful, it is to be taken that there was no excess in this resistance offered by the prisoner. No counsel appeared on either side. KELLY, C.B. The question in this case is whether there was a lawful apprehension, which depends on whether the attack on the constable in the house was merely a continuance of the struggle which took place on the occasion of the first assault. Between the constable quitting the premises and his returning with the other constables, an hour had elapsed ; and it is impossible to say that what then occurred was a continuation of the previous transaction. The original assault and the rights connected therewith were at an end ; and I am of opinion, independently of authority, that the apprehension was unlawful. If there could have been any doubt upon the subject, Reg. v. Walker (2) would be conclusive. MONTAGUE SMITH, J. There was nothing here to show any reasonable apprehension that the affray would be continued ; nor (1) 1 Moo. C. C. 390. (2) Dears. C. C. 35a VOL. I.] EASTER TERM, XXXI VICT. was there such a fresh pursuit as to justify the constable in break- 1868 ing into the house. THE Q rEEN - V. KEATING, J., PIGOTT, B., and LUSH, J., concurred. Conviction quashed. THE QUEEN v. BRACKENRIDGE AND KING. May 2. Forgery Bank-notes Scotch Bank 24 & 25 Viet. c. 98, ss. 16, 55. The 24 & 25 Viet. c. 98, s. 16, extends to the engraving in England without authority of notes purporting to be notes of a banking company carrying on business in Scotland only ; notwithstanding that s. 55 enacts that nothing in the act contained shall extend to Scotland. THE following case was stated by Montague Smith, J. : The two prisoners were tried and convicted before me at the spring assizes for Warwickshire, 1868, on an indictment which charged them with feloniously, and without lawful authority and excuse, engraving upon a plate part of a promissory note, purport- ing to be a part of a bank-note of the British Linen Company, carrying on the business of bankers, for the payment of 51., con- trary to the form of the statute, &c. (see the 24 & 25 Viet. c. 98, s. 16.) The evidence shewed that the prisoners had engraved upon a plate part of a bank-note for five pounds, purporting to be a note of a Scotch banking company called the British Linen Company, and had made arrangements with a printer for printing a large number of notes from the plate, when engraved. It was proved that the British Linen Company was a Scotch banking company, carrying on the business of bankers at Edinburgh, and at other places in Scotland, and not carrying on the business of bankers out of Scotland. It was objected on behalf of the prisoners that they were not in- dictable under the 24 & 25 Viet. c. 98, inasmuch as that act did not apply to the engraving, &c., of the plates of notes of Scotch banks ; and ss. 19 & 55 of the act were referred to. I reserved the point for the consideration of the Court of Criminal Appeal. 134 CROWN CASES RESERVED. [L. R. 1968 THE Qi KEN v. BBACKEX- lUlXJE AND No counsel appeared for the prisoners. Overend, Q.C. (Beasley with him), for the Crown. The 24 & 25 Viet. c. 98, consolidates the statutes relating to forgery ; and this conviction is under s. 16 of that statute for engraving upon a plate part of a bank-note of a Scotch banking company. (1) The prosecu- tion contend that the notes of a Scotch bank are included in the words of the section, " or of any other body corporate, company, or person carrying on the business of bankers." On behalf of the prisoner, reliance was placed on s. 55, that " nothing in this act contained shall extend to Scotland, except as otherwise herein- before expressly provided ;" and it was contended that this being a Scotch bank, and the case not being expressly provided for, the act did not apply. Section 55 is, however, merely a loose mode of expression, and has the same meaning as the words in the 11 Geo. 4 & 1 Wm. 4, c. 66, s. 29 : " This act shall not extend to any offence committed in Scotland ;" and the words, " herein- before otherwise expressly provided," have reference to offences committed in Scotland, one of which, namely, the forging of the seal of the union, is expressly provided for by s. 1. In no other section is Scotland mentioned. If this interpretation is not put on s. 55, this anomaly would exist, that by the 19th section it would be an offence to forge any foreign note in England, but not to forge a Scotch note. In Reg. v. Hannon (2), it was decided that s. 18 of the 11 Geo. 4 & 1 Wm. 4, c. 66 (from which s. 16 of the act now in question was taken), applied to plates of promissory notes of persons carrying on the business of bankers in the province of Upper Canada. KELLY, C.B. This is an important question ; yet it appears to us to be free from difficulty. The indictment is under s. 16, which contains the words, " or of any other body corporate, company, or (1) That section enacts that " who- soever without lawful authority or excuse . . . shall engrave or in any- wise make any plate, &c., of any promis- sory note, &c., purporting to he a bank- note, &c., of the governor and company of the Bank of England, or of the governor and company of the Bank of Ireland, or of any other body corporate, company, or person carrying on the business of bankers, . . . shall he guilty of felony." (2) 9 C. & P. 11. See also Beg. v. Keith, Dears. C. C. 486, and Reg. v. Kirkwood, 1 Moo. C, C. 311. VOL. I.] EASTEK TEEM, XXXI VICT. 135 person carrying on the business of bankers." We are all of opinion 18C8 that under these general words a bank in Scotland, or in the THEQUEEX colonies, must be taken to be included. The only doubt that could " arise would be owing to the wording of g. 55 ; but it would be of RIDGE AND / n KING. serious importance if that section were to exclude scotch notes ; for it would then leave bankers in Scotland and in the colonies unprotected. Such could not have been the intention of the legis- lature. The true meaning of the words, " nothing in this act shall extend to Scotland," is restricted to offences committed in Scot- land, thereby excluding from acts of parliament relating to England and Ireland offences committed and punishable in Scotland. The words "hereinbefore expressly provided for" would lead us to expect some express provision in the act with reference to Scot- land. Scotland is mentioned in s. 1 ; but that is all. These words have, in fact, no operation at all. We therefore come back to s. 16 ; and we are of opinion that that section applies to the present case. MONTAGUE SMITH, J. At the trial, hiy opinion was in favour of the view now adopted by this Court ; but, after hearing the able argument of Mr. Buszard, who then appeared for the prisoners, I felt bound to reserve the point. KEATING, J., PIGOTT, B., and HANNEN, J., concurred. Conviction affirmed. Attorneys for the Crown : Young, Maples, Teesdale, and Nelson, JOY Whateleys & Whateley, Birmingham. 136 CROWN CASES EESERVED. [L. It. 1868 THE QUEEN v. ROGERS. May i. Larceny Constructive Possession Jurisdiction 24 & 25 rid. c. 96, s. 114. The prisoner stole a watch at Liverpool, and sent it by railway to a confederate in London : Held, that the constructive possession still remained in the prisoner, and that he was triable at the Middlesex Sessions. THE following case was stated by the Assistant Judge for 3Iiddlesex : John Rogers and Charles Byatt were tried before me at the- sessions for Middlesex, on the 3rd of March, 1868, for stealing and receiving a watch, the property of John Shaw. Byatt pleaded guilty ; Rogers was found guilty of stealing. John Rogers resided at Liverpool, and forwarded by railway box containing the watch in question, and several other stoleni watches, to the prisoner Byatt ; and the box was delivered in due course to Byatt, in the county of Middlesex. It was contended that, as Rogers was not shewn to have left Liverpool, the Court had no jurisdiction to try him. I told the jury that, if they believed Rogers to have stolen the watch, his transmission of it into the county by the agency of the railway was sufficient to give the Court jurisdiction, although he did not personally convey it. It was proved that Rogers had advised Byatt of the transmission of the box by a letter found in Byatt's possession, and which wa* as follows : "Liverpool, Jan. 30, 1868. " I send you up the goods this morning ; they are as follows : . s. 13 W. Levers . . . . 15 12 4 W. Genevas . . . . 1 12 1 R. Lever 60 1 R. Geneva . . . .15 1 Red Case, 1242 dwts. . .15 1 Red Slang, 1 oz. 17 dwts. . .25 Ditto, 1 oz. 2 dwts. ... 1 7 29 6 VOL. L] EASTER TEEM, XXXI VICT. 137 " Try and deal this time without so much wrangling ; you did 18G8 not come down as you promised. THE "DlCK." v. ROGER? Articles corresponding with this letter were contained in the box found at Byatt's. The box was addressed to his house in the handwriting of Eogers ; and a similar box empty, with similar address in Eogers' handwriting, was found at Byatt's. That box Avas taken by Eogers to the railway office in Liverpool on the 13th of January, and booked as a parcel for London. Eogers was asked if he wished to pay the carriage ; and he did so. The box was then forwarded in the ordinary manner. The box containing the articles named in the letter (and amongst them the stolen watch in question) was sent by railway in the same manner on the 30th of January, at ten o'clock in the morning ; but the railway clerk could not say by whom it was brought to the office. It was proved that the watch in question was stolen from the owner at Liverpool on the 29th of January, about seven o'clock in the even- ing ; and, when found at Byatt's, the bow of the watch had been broken off. Eogers was the keeper of a beershop at Liverpool ; and there were found in his house a number of watch-keys, a jeweller's eye-glass, and jewellers' scales and weights. Being asked by the officer what such things were used for, he laughed, and said, " You know as well as I do." No counsel appeared for the prisoner. A. Collins, for the Crown. Under the 24 & 25 Viet. c. 96, s. 114(1), the Court had jurisdiction to try Eogers at the Middle- sex sessions. The watch was in the possession of the railway company as innocent agents, and was therefore in the constructive possession of Eogers. In Reg. v. Cryer (2), the half of a country bank-note having been stolen at some period during its transit from Swindon, in Wiltshire, to Bristol, was afterwards enclosed by (1) That section enacts that "if any ceny or theft in that part of the United person shall have in his possession in Kingdom where he shall so have sach any one part of the United Kingdom property, in the same manner as if he any chattel, &c., which he shall have had actually stolen or taken it in that stolen, &c., in any other part of the part." United Kingdom, he may be dealt with, (2) Dears. & B., C. C. 324 ; 26 L. J. indicted, tried, and punished for lar- (M.C.) 192. VOL. I. X 4 138 CKOWN CASES RESERVED. [L. R. 1868 the prisoner in a letter addressed to tlie bankers at Swindon, "THE" QUEEN demanding payment, and this letter was posted at Bath, and sent in R v ' due course of post to Swindon ; and it was held that the prisoner was rightly tried in Wiltshire, as the possession in Wiltshire either of the post-office servants or of the bankers was his possession, and the case was therefore brought within the 7 & 8 Geo. 4, c. 29, s. 56, the statute then in force, which is similar in its terms to the 24 & 25 Viet. c. 96, s. 114. KELLY, C.B. It appears that the watch was stolen at Liver- pool, and forwarded by Rogers to Byatt in London. The question then arises, did the possession remain in Rogers ? We think the authority quoted is conclusive to shew that the constructive posses- sion, which is equivalent to the actual possession, remained in Rogers. I may add that we had arrived at the same conclusion, independently of any authority. KEATING, J., PIGOTT, B., MONTAGUE SMITH and HANNEN, JJ., concurred. Conviction affirtned. Attorneys for the Crown : C. & J. AUen & Son. END OF EASTER TEEM. CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN TRINITY TEEM, XXXI VICTORIA. THE QUEEN v. GLYDE. 1868 Larceny Lost Property. May 30 ' The prisoner found a sovereign on a highway, believing at the time that it had been accidentally lost; but, nevertheless, with a knowledge that he was doing wrong, he at once determined to appropriate it, .notwithstanding it should after- wards become known to him who the owner was. There was no evidence to shew that the prisoner believed he could ascertain who the true owner was at the time he found the sovereign : Held, on the authority of Beg. v. Thurlvrn (1 Den. C. G. 387 ; 18 L. J. (M.C.) 140), that the prisoner was not guilty of larceny. The following case was stated by COCKBURN, 0. J. : William Glyde was convicted before me, at the last assizes for the county of Sussex, on an indictment, in which he was charged with having stolen a sovereign, the property of Jane Austin. It appeared that, on the evening of the 16th of January last, the prosecutrix, being on her way from Robertsbridge to her home at Brightling, and having some money loose in her hand, had occasion, owing to the dirty state of a part of the road, to hold up her dress, and in doing so let fall a sovereign. It being then dark, she did not stop to look for the sovereign ; but on the following morning she started to go to the spot, in the hope of finding the lost coin. In the meantime, the prisoner, coming from Robertsbridge towards Brightling, in company with a man named Hilder and his son, and seeing, at the spot where the pro- 140 CROWN CASES RESERVED. [L. R. 1868 secutrix had dropped her sovereign, a sovereign lying in the road,. THH QCEEN picked it up and put it in his pocket, observing that it was a good GLYDE. sovereign, and would just make his week up. Proceeding onwards, the men soon afterwards met the prosecutrix, then on her way to the spot where the sovereign had been dropped. According to her statement, on meeting the men, she addressed Hilder, whom she knew, and asked, in the hearing of the prisoner, " if he had stumbled on a sovereign," stating that she had lost one and was going to look for it, to which inquiry Hilder answered in the nega- tive. She was, however, contradicted by Hilder and his son, who were called as witnesses for the prosecution, as to any such con- versation having taken place. But it was clear that the fact of the sovereign thus picked up by the prisoner being one which had been lost by the prosecutrix was speedily brought to the prisoner's knowledge. The fact of the prosecutrix having lost a sovereign, and of the prisoner having found one, having come to his master's ears, the master asked him if he had found a sovereign, to which he answered that he " was not bound to say." The master further asked, if he had not heard that Mrs. Austin had lost one, to which the prisoner made the same reply. On the master asking whether it would not be more honest to give the sovereign up to her, he answered that "he could just manage to live without honesty." Being asked by a police constable whether he remembered going up the Brightling road and picking up a sovereign, he answered, " I don't know that I did." On the officer saying, " I have been informed by witnesses that you did so ; and, if you did, it did not belong to you more particularly as you know to whom it be- longed," the prisoner said he did not want to have anything more to say to the officer, and went into his house. On a subsequent occasion, however, he admitted to the same witness that he had picked up the sovereign. The witness Hilder also stated that the prisoner afterwards came to him, and asked him if he could say that he (prisoner) had picked up a sovereign, and on receiving an answer in the affirmative, said that if that was so he must go to and see the prosecutrix, who had applied to him several times about it In summing up to the jury on this state of facts, I told them that where property was cast away or abandoned, any one finding VOL. I.] TRINITY TEEM, XXXI VICT. 141 and taking it acquired a right to it, which would be good even 1868 as against the former owner, if the latter should be minded to THE QUEEN resume it, but that, when a thing was accidentally lost, the pro- QLTDE perty was not divested, but remained in the owner who had lost it, and that such owner might recover it in an action against the finder. As to how far larceny might be committed by a person finding a thing accidentally lost, it depended on how far the party finding believed that the thing found had been abandoned by its owner or not ; that, where the thing found was of no value, or of so small value that the finder was warranted in assuming that the owner had abandoned it, he would not be guilty of larceny in appropriating it ; or if, not knowing, or not having the means of discovering, the owner, the finder, from the inferior value of the thing found, might fairly infer that the owner would not take the trouble to come forward and assert his right, so that practically there would be an abandonment, and so believing appropriated the thing found as virtually abandoned by the owner, he would not be guilty of larceny. So, although the value of the article might, render it impossible in the first instance to presume abandonment by the owner, yet, if, from the fact of no owner coming forward within a sufficient time, the finder might reasonably infer that the owner had abandoned and given up the thing as lost, there would be no criminality in an appropriation of it by the latter. On the other hand, I pointed out that there were things as to which it could not be supposed that they had been intentionally abandoned, or the owner be supposed to have given up his property. Thus, for example, a purse of gold, or a pocket-book containing bank- notes, found in the road, could not possibly be supposed to have been intentionally placed there ; or a diamond ornament, found outside the door of an assembly room, to have been intentionally dropped by the lady who had worn it ; or a box or parcel left in a public conveyance or a hack cabriolet, to have been left with the intention of abandoning the property. In all these cases, as the property remained in the owner, and the presumption of abandon- ment was plainly negatived by the circumstances, a person finding such an article and appropriating it to himself with an intention of wronging the owner, if he knew who the owner was, or had the means of finding the owner as where the name and address of 142 CROWN CASES RESERVED. [L. R. 1868 the owner were on the thing found or had the means of ascer- THE QUEEN taining the owner, as in the case of a cabman who knew the house Q v ' at which he had taken up or set down a person by whom an article must have been left in the carriage would clearly be guilty of larceny. And, even where the finder did not know the owner, if the nature of the thing found precluded the pre- sumption of abandonment, and gave every reason to suppose that the owner would come forward and assert his claim, and the finder nevertheless determined to appropriate the chattel and to keep it, though he should afterwards become aware who the owner was this, too, if done with the intention of wrongfully depriving the unknown owner of property which the finder knew still to belong to him, would be larceny, provided such intention was contemporaneous with the original taking of possession. I told the jury that, while, to constitute larceny in appropriating an article thus found, there must be a guilty intention of taking that which was known to belong to some one else, and which .the party appropriating knew he had no right to treat as his own, this intention might be gathered from the value of the article and, the other circumstances of the case, especially the conduct of the party accused as to concealment or otherwise. In this respect I told them they might properly take into ac- count u the conduct of the prisoner, in maintaining silence when he heard the question put by the prosecutrix to Hilder, if they believed that portion of her evidence ; or, at all events, in re- fusing to say whether he had found a sovereign or not, and only acknowledging it when Hilder had told him he was pre- pared to speak to the fact. As the result of this reasoning, I left it to the jury to say whether the prisoner, on finding the sovereign, believed it to have been accidentally lost, and nevertheless with a knowledge that he was doing wrong, at once determined to appro- priate it to himself, and to keep it, notwithstanding it should after- wards become known to him who the owner was ; and I told the jury, if they were of that opinion, to find the prisoner guilty. But, inasmuch as there was nothing to shew that the prisoner, on appro- priating the sovereign on finding it, had any reason to suppose that the owner would afterwards become known to him, I doubted whether an intention on his part of keeping it, even if the owner VOL. L] TRINITY TEEM, XXXI V1CT. 143 should become known to him he not believing that the latter 1868 event would come to pass would amount to larceny. I therefore THE QUEEN thought it right to take the opinion of this Court whether the con- viction can be sustained on the facts I have stated. No counsel appeared for the prisoner. Lumley Smith, for the Crown. The question is whether a person who picks up an article may be found guilty of larceny, although at the time he does not know, and has no means of knowing, who the owner is. There was evidence in this case to shew that the sovereign was not abandoned, although it was not specifically left to the jury to say whether the prisoner had the means of knowing who the owner was. In Eeg. v. Moore (1), on an indictment for stealing a 10Z. note found by the prisoner in his shop, he was con- victed of larceny, although the jury found that at the time he picked it up he did not know, nor had he reasonable means of knowing, who the owner was. It must be admitted, however, that the jury also found, which they have not done here, that the prisoner believed, at the time he picked up the note, that the owner could be found, and that in that case the note was not really lost in the sense in which the sovereign was lost in this case. [BLACKBUEN, J. Can a man be held to be guilty of larceny where the original taking by finding is innocent ? In Reg. v. Moore (1), Wightman, J., seems to say that three ingredients are necessary to constitute larceny: that the prisoner intended to appropriate the property from the first ; that he believed, at the time he took it, that the owner could be found ; and that he acquired the knowledge of who that owner was before he converted" it to his own use.] In Eeg. v. Thurborn (2) it was held that, if a person find the chattel of another, and instantly appropriate it, ammo furandi, that is, with the intent of usurping the entire dominion over it, but under such circumstances as to warrant a jury in finding that at the time of the appropriation he really believed that the owner could neither find the chattel nor be found himself, such appro- priation is not larceny. In Eeg v. Preston (3), and Eeg v. Christo- (1) Leigh & Cave, C. C. 1 ; 30 L. J. (2) 1 Den. C. C. 357 ; IS L. J. (M.O.) (M.C.) 77. 140. (3) 2 Den. C. C. 353; 21 L. J. (M.C.) 41. 144 CROWN CASES RESERVED. [L. E. 1868 p7iey(l),the same principle was adopted. But it is submitted that THE^TEEiT this Court is not bound by Eeg. v. Thurborn (2) ; and in the last Cj w ; t edition of Kussell on Crimes (3) the editor asserts that the judg- ment in that case " met with very general disapprobation among criminal lawyers, and has been often questioned since." COCKBURN, C. J. This is not a case of larceny. In all cases of larceny of lost property, the question turns on what were the prisoner's grounds for believing that the goods were abandoned ; and in this case, although the sovereign was accidentally lost, it was very doubtful whether the owner would come and -claim it. If, indeed, the finder, although it was doubtful whether the pro- perty would be claimed, were on finding it to say, even if the owner does claim it, I mean to keep it, that might be larceny, although the rule in Thurborn' 's Case (2) does not go so far as that. But here we have no evidence to shew that the prisoner had reason to believe the true owner could be found ; and therefore the case falls within the rule laid down in Eeg. v. TJiurlorn (2), by which decision we are bound. MARTIN, B. I very much doubt whether the principles laid down in Thurborn's Case (2) are right; but, as in Reg v. Christopher (1), so also in this case we are bound by it. BLACKBURN, J. I am not prepared to say that Thurborn s Case (2) is not law. At all events it stands unreversed; and .we are bound by it. In this case there was no evidence to shew that the prisoner believed he could find the true owner when he picked up the sovereign. WILLES, J., and BRAMWELL, B., concurred. Conviction quashed. Attorney for the Crown : T. Philcox, Burwash. (1) Bell, C. C. 27 ; 28 L. J. (M.C.) 35. (3) Vo l. ii. p. 180, note (t), 4th ed. (2) 1 Den. C. C. 387 ; 18 L. J. (M.C.) by Mr. Greaves. 140. VOL. L] TRINITY TERM, XXXI VICT. 145 THE QUEEN v. SHAW. 18G8 Lunatic 8 & 9 Viet. c. 100, ss. 90, 114. Mai J 30 - Imbecility and loss of mental power, whether arising from natural decay or from paralysis, softening of the brain, or other natural cause, and although unac- companied by frenzy or delusion of any kind, constitute unsoundness of mind amounting to lunacy within the meaning of the 8 & 9 Viet. c. 100. THE following case was stated by COCKBURN, C.J. : Edward Charles Shaw was convicted before me at the last spring assizes for the county of Hertford, on an indictment under the 8 & 9 Viet. c. 100, s. 90, charging him with having taken charge of and received to board and lodge, in a house not being a duly registered hospital or licensed asylum, one John Clode, a lunatic or alleged lunatic ; as also with having done so without the other conditions and formalities required by the statute having been complied with. All the facts necessary to support the indictment (assuming the said John Clode to have been a lunatic) were fully established. But a question arose whether the said John Clode was a lunatic within the meaning of the act, the term lunatic being by the inter- pretation clause declared to mean " every insane person, and every person being an idiot or lunatic, or of unsound mind." It appeared that Mr. Clode, a man of fifty-five years of age, having had, after indulging for some time in habits of intemperance, three attacks of paralysis, had been placed with the defendant, a medical man, not as a lunatic, but as an invalid, whose memory had become greatly impaired by bodily weakness and infirmity. It did not appear that he laboured under any delusions or mental aberration ; neither was he subject to fits of frenzy or violence. Bu.t it was clear that his mental faculties had fallen into a state of exceeding weakness and imbecility, as will appear from the following facts : He was insensible to the calls of nature, and utterly regardless of all clean- liness, and was satisfied to remain in a most revolting state of filthiness. It appeared that he had been visited, by order of the Lord Chancellor, by two physicians, Drs. Blandford and Bennett ; thrice by the former, once by the latter. Dr. Blandford proved that on visiting defendant's establishment, on the 31st of October VOL. I. Y 4 14G CKOWN CASES RESERVED. [L. R. 1868 lust, he found Mr. Clode, at between six and half-past six in the THE QUEEN afternoon, in bed, in a room about 12 feet square and 6 feet high. SHAW He was lying on the remains of two old mattrasses, covered over with a piece of old carpet, with no other bedclothes whatever, and without pillow or bolster. The mattrasses, one of which was of flock, the other of straw, were soaked with faeces and urine, which was dripping through on to the floor, and were quite rotten. The walls of the room were filthy, having marks of fingers dirty with faeces having been smeared on them ; as was also the case with a post which supported the ceiling. The smell in the room was, in the words of the witness, " most abominable." The room was without carpet of any sort. There was an old washstand with a basin and jug, but no water, soap, or towel. Not far from the bed- stead was a heap of ashes, and on it two chamber utensils, one full of faeces. Mr. Clode's trousers were wet with urine ; and a pair of drawers lying there were dirty with faeces. He was lying in a flannel shirt, the tail of which was gone. He was very wet with filth, as was the piece of carpet with which he had been covered. Emma Coughtree, a witness, proved that, since the month of May, she had been employed to clean out Mr. Clode's room once a week. His bed consisted of two rotten mattrasses and a piece of old carpet and an old coat. There were no sheets or blankets. She stated that, on first going there, she had to remove a pail, as well as two chamber utensils, full of excrement, which was all flowing over on to the floor, while under the bed there was " quite a pond drained from the mattrasses." It appeared that, after the first visit of Dr. Blandford, a slight improvement in the attention to the comforts of Mr. Clode took place. According to the evidence of the witness Emma Coughtree, on the 1st of November the two old mattrasses were removed, and carried to a dunghill, having fallen to pieces from rottenness in the course of removal. A straw bed and palliasse were substituted, and two straw pillows supplied. On the 25th of November, which was after the improvement just referred to had taken place, Mr. Clode was visited by Dr. Bennett. This witness stated that, having desired to see Mr. Clode's room, he was conducted to it by the defendant, but on entering the room the stench was so intolerable that he proceeded no further. Never- theless, he saw Mr. Clode's bed, which he described as having YOL. L] TRINITY TERM, XXXI VICT. 147 a very miserable, dirty-looking mattrass on it. The room itself 1SG8 also looked miserable, and dirty. Chloride of lime had evidently THE QUBEK- been recently used ; but, though the smell of it was very strong, it SHAW. was not sufficient to overpower the stench of the room. It appeared that Mr. Clode was not dissatisfied with, and was pro- bably insensible to, the disgusting state in which he was thus suffered to remain. He, indeed, said, in answer to a question from Dr. Blandford how he came to be in such a room, that it was in a very disgraceful state; but on being asked by Dr. Bennett on going to his apartment, whether he liked his room, he answered, "Yes;" and on being asked whether he was comfortable in it, answered, " Oh, very comfortable ;" and on being further asked whether his bed was comfortable, his answer was, "Oh, very." This insensibility to filth in so revolting a form was strongly insisted upon by the two medical witnesses for the prosecution as a marked indication of the utter decay of the intellectual faculties of the patient. But there was also striking proof that Mr. Clode's mental faculties in general, and more especially his memory, had become very seriously impaired. According to the evidence of the medical witnesses, it was extremely difficult to fix his attention on any subject, or to get him to converse. " He did not seem," says Dr. Bennett, " to take interest in anything ;" and he gave only " monosyllabic answers." He remembered, however, that he had lived in Park Street, Windsor, and, in his interview with Dr. Blandford, kept saying, " I'm John Clode of Windsor," in a silly way. " He remembered," says Dr. Bennett, " that he had taken part in elections for Windsor, but could not remember the names of the candidates, or on which side he had acted." On being asked if he had any family, he remembered he had a wife, and a daughter married ; but on no occasion of his being visited by the medical witnesses could he remember, though frequently asked, the name of his daughter. Neither could he remember the name of the people with whom he was then living. When asked on each occasion how long he had been where he then was, his answer was " five months," though in fact he had been there as many years. This mistake he made twice during the same interview, though corrected by the defendant, who refused after the first interview with Dr. Blandford to allow the patient to be seen alone. When asked, on more than 1 18 CROWN CASES RESERVED. [L. R. 1868 one occasion, why he remained at the defendant's, his answer was THE QCEEX " tk&t ne intended to leave next week, when the railway would be SHAW opened." Both Dr. Blandford and Dr. Bennett declared their positive opinion that there was decided unsoundness of mind in Mr. Clode in respect of the general decay of mental power, as well as of loss of memory and insensibility to the ordinary, instinctive repugnance to filth. They agreed that there was an absence of active dementia or morbid delusion, and ascribed the existing symptoms to a decay of the intellectual and moral faculties, whether proceeding from paralysis, softening of the brain, or any other cause from which such decay could arise. Two medical witnesses, called on behalf of the defendant, stated that there were no symptoms of insanity in Mr. Clode, and had given certificates to that effect ; but one of them admitted that there was unsoundness of mind in respect of loss of memory arising from softening of the brain. I directed the jury, if they believed the evidence for the prosecution, to find the defendant guilty, which they accordingly did ; and looking on the case as an aggravated one, in consequence of the neglect with which the patient had been treated more especially as. the defendant had insisted on having his pay doubled in consideration of extra comforts to be afforded I sentenced the defendant to a fine of 100Z. and six months' imprisonment ; but, deeming it worthy of consideration whether imbecility and loss of mental power, arising either from natural decay or from paralysis, softening of the brain or other supervening cause, if unaccompanied by frenzy or delusion of any kind, constituted unsoundness of mind, so as to be lunacy within the meaning of the act on which this indictment was framed, I reserved that question for the decision of this Court. If the Court shall be of opinion that John Clode was a lunatic within the meaning of the 90th section of the 8 & 9 Viet. c. 100, the verdict is to stand ; otherwise not. Woolkit (E. F. Griffin with him), for the defendant. There is no legal evidence to bring the defendant within the 90th section of the 8 & 9 Viet. c. 100. There is no evidence of any aberration of mind. [BLACKBURN, J. The way in which the patient submitted to be kept was evidence of an unsound mind.] VOL. L] TRINITY TERM, XXXI VICT. . 149 It is necessary to go beyond that to render the defendant 1868 criminally liable ; it is necessary to shew that he knew the man to be a lunatic, and that he received him as such. Parry, Serjt. (Poland with him), for the Crown, was not called upon. COCKBUEN, C. J. What I meant to reserve was whether a state of imbecility, arising naturally from the gradual natural decay of the faculties, is lunacy within the statute. We are all of opinion that this case falls within the mischief contemplated by the act, and that the conviction ought to stand. MARTIN, B., WILLES, J., BEAMWELL, B., and BLACKBTJEN, J. concurred. Conviction affirmed. Attorneys for the Grown : Vandereom, Law, & Payne. Attorney for defendant : Hembery. END OF TRINITY TERM. VOL. I. 150 CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED MICHAELMAS TEEM, XXXII VICTOEIA. 1868 THE QUEEN v. PRINCE. NOD. 14. Larceny False Pretences Master and Servant Effect of Distinction 'betiveen General and Limited Authority of Servant. Where a servant is entrusted with his master's property with a general autho- rity to act for his master in his business, and is induced by f raud ,to -|Ht with his master's property, the person who is guilty of the fraud and so obtains tha property, is guilty of obtaining it by false pretences, and not of larceny, because to constitute larceny there must be a taking against the will of the owner, or of the owner's servant duly authorized to act generally for the owner. But where a servant has no such general authority from his master, but is merely entrusted with the possession of his goods for a special purpose, and is tricked out of that possession by fraud, the person who is guilty of the fraud and so obtains the property is guilty of larceny, because the servant has no authority to part with the property in the goods except to fulfil the special purpose for which they were entrusted to him. The cashier of a bank is a servant having a general authority to conduct the business of the bank, and to part with its property on the presentation of a genuine order from a customer ; and if he is deceived by a forged order, and parts with the money of the bank, he parts, intending so to do, with the property in the money, and the person knowingly presenting such forged order is guilty of ob- taining the money by false pretences, and not of larceny. THE following case was stated by the Common Serjeant : The prisoner was tried before me at the August session of the Central Criminal Court on an indictment charging him, in the first count, with stealing money to the amount of 100?., the pro- perty of Henry Allen ; in the second count, with receiving the VOL. L] MICH. TEEM, XXXII VICT. 151 same, kncm ing it to have been stolen ; and in two other counts the 1868 ownership of the money was laid in the London and Westminster THE QUEEN Bank. PRINCE. It appeared in evidence that the prosecutor, Henry Allen, had paid moneys amounting to 900Z. into the London and Westminster Bank on a deposit account in his name, and on the 27th of April, 1868, that sum was standing to his credit at that bank. On that day the wife of Henry Allen presented at the bank a forged order purporting to be the order of the said Henry Allen for payment of the deposit, and the cashier at the bank, believing the authority to be genuine, paid to her the deposit and interest in eight bank-notes of 1007. each, and other notes. Among the notes of 1007. was one numbered 72,799, dated the 19th of November, 1867. ' On the 1st of July, 1868, the wife of Henry Allen left him and his house, and she and the prisoner were shortly afterwards found on board a steamboat at Queenstown on its way from Liverpool to New York, passing as Mr. and Mrs. Prince, Mrs. Allen then hav- ing in her possession nearly all the remainder of the notes obtained from the bank. The note for 1007., No. 72,799, was proved to have been paid away by the prisoner in payment for some sheep in May, 1868, and he said he had it from Mrs. Allen. Upon this evidence it was objected by prisoner's counsel that the counts alleging the property to be in Henry Allen must fail, as the note had never been in his possession; and that, as to the other counts, the evidence did not shew any larceny of the note from the bank by the wife, but rather an obtaining by forgery or false pre- * tences by her, and that the receipt by the prisoner from her was not a receipt of stolen property. I held, however, that the forged order presented by the wife was, under the circumstances, a mere mode of committing a larceny against the London and West- minster Bank, and that the prisoner was liable to be convicted on the fourth count. The jury found the prisoner guilty on that count, and I respited judgment, and reserved for the consideration of the Court the question whether the obtaining the note from the bank by Mrs. Allen, under the circumstances stated, was a larceny by herj if not, the conviction must be reversed. Z 2 4 152 CROWN CASES RESERVED. [L. R. 1868 Collins, for the prisoner. The conviction is for receiving a 1007. THE QUEEN note stolen by Mrs. Allen from the London and Westminster PRINCE. Bank, but Mrs. Allen's conduct did not amount to stealing; it was an obtaining money by false pretences ; for, first, the cashier had power to part with the property in, and possession of, the money of the bank ; and, secondly, he did part with both as regards this note, believing the order presented to him to be genuine. In Story on Agency, s. 115, p. 118, 6th ed., the duties of cashiers are stated, and where payment is made to a bona fide holder on a forged order the payment cannot be recalled, for the cashier is bound to know the genuine paper of the bank : United States Bank v. Bank of Georgia. (1) Money had and received will not lie by a banker against a person who has received money of the bank through a cashier's mistake : Chambers v. Miller. (2) These cases shew that a cashier can part with his master's property, and divest his master of it. The cashier's duty is to decide on the genuine- ness of a cheque. If he decides wrongly, and pays money on a forged cheque, he still acts within the scope of his authority. Believing the cheque in question to be genuine, he intended to part with the property in the note, and he did so part with it to Mrs. Allen. The bank is identified with its cashier, and having voluntarily parted with its own money, and not merely with the possession of it, the act of Mrs. Allen is not larceny, because one of the material elements of that offence is absent, viz., a taking against the will of the owner. Reg. v. Jackson (3) is on all fours with this case. There the servant of a pawnbroker, who had a general authority from his master to act in his business, delivered up a pledge to the pawner of it, believing he was receiving in exchange a parcel of diamonds. The parcel contained worthless stones; but the servant having entirely parted with the pledge under a mistake, it was held that the pledger could not be con- victed of larceny. Eeg. v. r Adams (4), Beg. v. Atkinson (5), are also in point. In 1 Hale's Pleas of the Crown, p. 506, it is eaid: " If A. comes to B., and by a false^message or token receives money of him, and carries it away, it is no felony :" Reg. v. Parks (6) ; (1) 10 Wheaton, 333. (4) 1 Den. C. C. 38. . (2) 32 L. J. (C.P.) 30. (5) 2 East, P. C. 673. (3) 1 Moo. C. C. 119. (6) 2 East, P. C. 671. VOL. I.] MICH. TEEM, XXXII YICT. 153 Reg. v. Barnes (I) ; Reg. v. Essex. (2) The cashier here did not 1868 merely part with the possession of the note ; he parted with the THE QUEEN property in it also. The prisoner might have been convicted of receiving property obtained by false pretences : 24 & 25 Viet. c. 96, s. 95. But he cannot be convicted under the indictment as it stands. Poland, for the Crown. The cashier had no power to part with the property in the note. Reg. v. Adams (3) is not in point, because there the person who parted with the goods was the owner himself. [BLACKBUKN, J. The three cases which press most against you are Reg. v. Jackson (4), Reg. v. Barnes (1), and Reg. v. Essex. (2) Unless you can distinguish those cases, the present is decided by authority.] It is impossible almost to distinguish those cases, but there are several other cases at variance with them. This case must be decided by deciding between conflicting authorities. In Reg. v. Atkinson (5), cited for the prisoner, the delivery was by the owner. Reg. v. Jackson (4) is difficult to distinguish ; but the question in every case is, whether the person who parts with goods had authority to divest the owner of the property. [BoviLL, C.J. The cashiers of a bank are the only persons authorized to part with the money of the bank. They have full authority to decide on the genuineness of any signature presented to them, and, if they believe it genuine, to pay over money accordingly.] It is submitted that it makes no difference whether a cashier has to judge of a signature or not ; at any rate, he has no autho- rity to part with money improperly which is not his, but the bank's : Rex v. Longstreetli. (6) [BLACKBUBN, J. There the servant had no authority to deal with the property in the goods, but merely with the possession.] A carrier, as a bailee, is responsible for property entrusted to him. Why should not his servant have the same extent of autho- rity and the same discretion as a bank clerk ? (1) 2 Den. C. C. 59. (4) 1 Mood. C. C. 119. (2) Dears. & B. C. C. 371. (5) 2 East, P. C. 673. (3) 1 Den. C. C. 38. 154 CKOWN CASES RESERVED. [L. R 1868 [Lusn, J. The property in the goods remained in the con- THE QUEEN signer. PBINCE BLACKBURN, J. The decision turned on the fact that the ser- vant of the carrier had no general authority to part with the goods, while in Reg. v. Jackson (1) the pawnbroker's servant had such general authority.] A servant can have no authority to part with goods improperly. Every servant must have a certain discretion given him, and if he exercises that discretion wrongly, and parts with goods, he parts with the possession, and not with the property : Reg. v. Wilkins (2) ; Reg. v. Small (3) ; Reg. v. Stewars. (4) Collins was not called upon in reply. BOVILL, C.J. I am of opinion that this conviction cannot be sustained. The distinction between larceny and false pretences is material. In larceny the taking must be against the will of the owner. That is of the essence of the offence. The cases cited by Mr. Collins on behalf of the prisoner are clear and distinct upon this point, shewing that the obtaining of property from its owner, or his servant absolutely authorized to deal with it, by false pre- tences will not amount to larceny. The cases cited on the other side are cases where the servant had only a limited authority from his master. Here, however, it seems to me that the bank clerk had a general authority to part with both the property in and possession of his master's money on receiving \vhat he believed to be a genuine order, and that as he did so part with both the pro- perty in and possession of the note in question the offence com- mitted by Mrs. Allen falls within the cases which make it a false pretence, and not a larceny, and therefore the prisoner cannot be convicted of knowingly receiving a stolen note. CHANNELL, B. I am of the same opinion. The cases cited on one side and the other are distinguishable on the ground that in one class of cases the servant had a general authority to deal with his master's property, and in the other class merely a special or limited authority. If the bank clerk here had received a genuine order, he would have paid the money for his master, and parted (1) 1 Mood. C. C. 119. (3) 8 C. & P. 46. (2) 1 Leach, 520 ; 2 East, P. C. 673. (4) 1 Cox. C. C. 174. VOL. L] MICH. TERM, XXXII' VICT. 155 with the property, and the transaction would have really been what 1S68 it purported to be. If, however, the clerk makes a mistake as to THE Qvianx the genuineness of a signature, nevertheless he has authority to p v - decide that point ; and if he pays money on a forged order, the property therein passes from the master, and cannot be said to have been stolen. BYLES, J. I am of the same opinion. I would merely say that I ground my judgment purely on authority. BLACKBURN, J. I also am of the same opinion. I must say I cannot but lament that the law now stands as it does. The distinction drawn between larceny and false pretences, one being made a felony and the other a misdemeanour and yet the same punishment attached to each seems to me, I must confess, un- meaning and mischievous. The distinction arose in former times, and I take it that it was then held in favour of life that in larceny the taking must be against the will of the owner, larceny then being a capital offence. However, as the law now stands, if the owner intended the property to pass, though he would not so have intended had he known the real facts, that is sufficient to pre- vent the offence of obtaining another's property from amounting to larceny ; and where the servant has an authority co-equal with his master's, and parts with his master's property, such property cannot be said to be stolen, inasmuch as the servant intends to part with the property in it. If, however, the servant's authority is limited, then he can only part with the possession, and not with the property ; if he is tricked out of the possession, the offence so committed will be larceny. In Reg. v. Longstreefh (1), the carrier's servant had no authority to part with the goods, except to the right consignee. His authority was not generally to act in his master's business, but limited in that way. The offence was in that case held to be larceny on that ground, and this distinguishes it from the pawnbroker's case (2), which the same judges, or at any rate some of them, had shortly before decided. There the servant, from whom the goods were obtained, had a general au- thority to act for his master, and the person who obtained the goods was held not to be guilty of larceny. So, in the (1) 1 Moo. C. C. 137. (2) Keg. v. JacJcson, 1 Mood. C. C. 119. 15() CHOWN CASES RESERVED. [L. R. 18G8 present case, the cashier holds the money of the bank with a Tin-: QUKEN general authority from the bank to deal with it. He has au- p *'_ thority to part with it on receiving what he believes to be a genuine order. Of the genuineness he is the judge ; and if under a mistake he parts with money, he none the less intends to part with the property in it, and thus the offence is not, according to the cases, larceny, but an obtaining by false pretences. The distinction is inscrutable to my mind, but it exists in the cases. There is no statute enabling a count for larceny to be joined with one for false pretences ; and as the prisoner was indicted for the felony, the conviction must be quashed. LUSH, J. I also agree that the conviction must be quashed. I ground my judgment on the distinction between the cases which has been pointed out. The cashier is placed in the bank for the very purpose of parting with the money of the bank. He has a general authority to act for the bank, and therefore that which he does his masters, the bankers, do themselves through him. Conviction quashed. Attorneys for the Crown : Pawle, Lovesy, & Fearon ; Moy & Cartwrigtht. Attorney for prisoner : E. Froggatt. Nov. 14. THE QUEEN v. BAEBOW. llape Woman's Consent obtained ty Fraud. Where a woman consents to the act of connection, even though her consent is obtained by fraud, the act does not amount to rape. A woman while in bed with her husband permitted the prisoner, under the- belief that he was her husband, to have connection with her : Held, that, in the absence of proof that she was asleep or unconscious at the time the act of connection commenced, it must be taken that her consent was obtained by fraud, and that the prisoner's act did not amount to rape. THE following case was stated by Kelly, C.B. : This was an indictment for a rape. The question is whether the offence as proved amounted in point of law to a rape. This VOL. I.] MICH. TEEM, XXXII VICT. 157 question depended entirely upon the evidence of the prosecutrix, 1868 Harriet Geldart, which was as follows : THE QCEEK "I and my husband lodge together at William Garner's. We BARU sleep up stairs on the first floor, and were in bed together on the night of Saturday, the 21st of June. I went to bed about 12 o'clock, and about 2 o'clock on Sunday morning I was lying in bed, and my husband beside me. I had my baby in my arms, and was between waking and sleeping. I was completely awakened by a man having connection with me, and pushing the baby aside out of my arms. He was having connection with me at the moment when I completely awoke. I thought it was my husband, and it was while I could count five after I completely awoke before I found it was not my husband. A part of my dress was over my face, and I got it off, and he was moving away. As soon as I found it was not my husband, I pulled my husband's hair to wake him. The prisoner jumped off the bed." On cross-examination she added, " Till I got my dress off my face I thought it was my husband. After he had finished I pulled the dress off my face. I was completely awakened by the man having connection with me and the baby being moved." On re- examination she said, " The baby was pushed on further into the bed." The jury found this evidence, as I have stated it, to be true. Upon these facts the prisoner's counsel, Mr. Cottingham, sub- mitted that the indictment was not sustained, and quoted 1 Kussell on Crimes, ed. of 1843, p. 677 ; Bex v. Jackson (1) ; Reg. v. Saunders (2) ; Rex v. Williams (3) ; Reg. v. Camplin (4). Reg. \- Fletcher (5) was also referred to. I thought, especially on the authority of the judgment delivered by Lord Campbell in Reg. v. Fletcher (5), that the case was made out, inasmuch as it was sufficient that the act was done by force and without consent before or afterwards; that the act itself, coupled with the pushing aside the child, amounted to force ; and there was certainly no consent before, and the reverse immediately (1) Euss. & Ey. 487. (4) 1 Den. C. C. 89. (2) 8 C. & P. 265. (5) 8 Cox, C. C. 131. (3) 8 C. & P. 286. 158 CROWN CASES RESERVED. [L. R. 1868 afterwards ; but I reserved the 'point for the Court of Criminal THEQCEEX Appeal. V. No counsel appeared on either side. BOVILL, C. J. We have carefully considered the facts as stated in this case. It does not appear that the woman, upon whom the offence was alleged to have been committed, was asleep or uncon- scious at the time when the act of connection commenced. It must be taken, therefore, that the act was done with the consent of the prosecutrix, though that consent was obtained by fraud. It falls therefore within the class of cases which decide that, where consent is obtained by fraud, the act done does not amount to rape. CHANNELL, B., BYLES, BLACKBURN and LUSH, JJ., concurred. Conviction guaslied. Xot. 14. THE QUEEN v. SHICKLE. Larceny Animals ferae, natures Young Partridges reared under a common hen. Partridges, batched and reared by a common ben, while they remain with her, and from their inability to escape are practically under the dominion and in the power of the owner of the hen, may be the subject of larceny, though the hen is not confined in a coop or otherwise, but allowed to wander with her brood about the premises of her owner. Reg. v. Cory (10 Cox C. C. 23), followed. THE following case was stated by Cockburn, C. J. : James Shickle was tried before me at the last assizes for the county of Suffolk on an indictment for larceny, for stealing eleven tame partridges. There was no doubt that the prisoner had taken the birds animo furandi ; but a question arose whether the birds in question could be the subject of larceny ; and the prisoner having been convicted, I reserved the point for the consideration of the Court. The birds in question had been reared from eggs which had been taken from the nest of a hen partridge, and which had been placed under a common hen. They were about three weeks old, VOL. I.] MICH. TEEM, XXXII VICT. 159 and could fly a little. The lien had at first been kept under a coop 1868 in the prosecutor's orchard, the young birds running in and out, as THE QUEEN" the brood of a hen so confined are wont to do. The coop had, how- ever, been removed, and the hen set at liberty, but the young birds still remained about the place with the hen as her brood, and slept under her wings at night. It is well known that birds of a wild nature, reared under a common hen, when in the course of nature they no longer require the protection and assistance of the hen and leave her, betake themselves to the woods or fields, and after a short time differ in no respect from birds reared under a wild hen of their own species. The birds in question were neither tame by nature nor reclaimed. If they could be said to be tame at all, it was only that their in- stinct led them during their age of helplessness to remain with the hen. On their attachment to the hen ceasing, the wild instincts of their nature would return, and would lead them to escape from the dominion and neighbourhood of man. On the other hand, from their instinctive attachment to the hen that had reared them, and from their inability to escape, they were practically in the power and dominion of the prosecutor. The question is, whether under the circumstances, there can be such property in birds of this de- scription as can be the subject matter of larceny. Douglas, for the prisoner. These birds are fera3 naturae, and unless reclaimed are not the subject of larceny. The case finds that they were not tame nor reclaimed, that they were restrained by their instinct only from betaking themselves to the woods or fields, not being confined in any way. They could not, therefore, be the subject of larceny. No counsel appeared for the Crown. BOVILL, C.J. I am of opinion that, upon the facts stated, the question asked of us must be answered in the affirmative, and that the conviction is right. The case states that " from their inability to escape, they were practically in the power and dominion of the prosecutor." That is sufficient to decide the point. In Reg. v. Cory (1) the law on the subject is very clearly laid down by my (1) 10 Cox C. C. 23. 160 CROWN CASES RESERVED. '[L. R. 1868 Brother Cliannell. He there says, speaking of pheasants hatched THiTcjuEEH under circumstances similar to those here : " These pheasants, <, H * having been hatched by hens, and reared in a coop, were tame pheasants at the time they were taken, whatever might be their destiny afterwards. Being thus, the prosecutor had such a pro- perty in them that they would become the subject of larceny, and the inquiry for stealing them would be of precisely the same nature as if the birds had been common fowls or any other poultry, the character of the birds in no way affecting the law of the case but only the question of identity." In that statement of the law we all concur. The question here is, were these birds the subject of property ? They were so when first hatched, and they re- mained so at the time they were taken by the prisoner, though it might be that at a later period they would become wild and cease to have an owner. The prisoner therefore, was rightly convicted. CHANNELL, B., concurred. BYLES, J. I am of the same opinion. The usual cases of larceny of animals are those of animals which, being at first wild, have become tame and reclaimed. In this case the only difference is that the birds here are tame and have been so from their birth, though they may become wild at a future time. BLACKBURN and LUSH, JJ., concurred. Conviction affirmed. (1) Attorney for prisoner : T. Horrex, for W. Walpole, Bury St. Edmunds. (1) See also Beg. v. Head, I F. & F. 350. VOL. I.] MICH. TEEM, XXXII VICT. 161 THE QUEEN v. ANDERSON. 1808 Admiralty Jurisdiction Manslaughter International Law Merchant Shipping Act (17 & 18 Viet. c. 104), s. 267. The Admiralty jurisdiction of England extends over British vessels, not only when they are sailing on the high seas, but also when they are in the rivers of a foreign territory at a place below bridges, where the tide ebbs and flows, and where great ships go. All seamen, whatever their nationality, serving on board British vessels, are amenable to the provisions of British law. An American citizen, serving on board a British ship, caused the death of another American citizen, serving onboard the same ship, under circumstances amounting to manslaughter, the ship at the time being in the river Garonne, within French territory, at a place below bridges where the tide ebbed and flowed and great ships went : Held, that the ship was within the Admiralty jurisdiction, and that the prisoner was rightly tried and convicted at the Central Criminal Court. Quaere, as to the effect of the Merchant Shipping Act (17 & 18 Viet. c. 104), s. 267. THE following case was stated by Byles, J. : James Anderson, an American citizen, was indicted at the Central Criminal Court for murder on board a vessel belonging to the port of Yarmouth, in Nova Scotia ; she was registered in London, and was sailing under the British flag. At the time of the offence committed the vessel was in the river Garonne, within the boundaries of the French empire, on her way up to Bordeaux, which city is by the course of the river about ninety miles from the open sea. The vessel had proceeded about half way up the river, and was at the time of the offence about 300 yards from the nearest shore ; the river at that place being about half a mile wide. The tide flows up to the place and beyond it. No evidence was given whether the place was or was not within the limits of the port of Bordeaux. It was objected for the prisoner, that the offence having been committed within the empire of France, the vessel being a colonial vessel, and the prisoner an American citizen, the Court had no jurisdiction to try him. I expressed an opinion unfavourable to the objection, but agreed to grant a case for the opinion of this Court. L The prisoner was convicted of manslaughter. 162 CROWN CASES RESERVED. [L. R. 1868 M. Williams, for the prisoner. The Court had no jurisdiction in THE QUEEN this case because the prisoner was an American citizen, and in a ANDERSON, fo^g 11 territory, at the time the offence was committed. The Admiralty authorities had no power to send the man back to Eng- land for trial. [BoviLL, C.J. The case does not raise that point. The ques- tion in the case is, " Being here, could he be tried ?" BLACKBURN, J. Sattlers Case (1) decides that even if wrongly brought here, it makes no difference.] The 267th section of the Merchant Shipping Act, 1854 (17 & 18 Viet. c. 104) (2), was relied on by the Crown at the trial. It has no application to this case because it applies only to British seamen, whereas the prisoner here was an American citizen. In Lewis on Foreign Jurisdiction, p. 25, it is said, " It seems that under this provision " (Merchant Shipping Act, 1854, s. 267), " a theft, or even a common assault, committed by a British seaman upon a native in a foreign port might be the subject of an indict- ment under the Admiralty jurisdiction in England. It is possible, however, that the very extensive terms of this enactment might receive some limitation from judicial interpretation." The author clearly thought the section must be limited to British subjects. [BLACKBUKN, J. The expression, British seaman, may mean one who, whatever his nationality, is serving on board a British ship.] The section in question must be limited to British subjects. The legislature cannot legislate for the subjects of a foreign power. The 18 & 19 Yict. c. 91, s. 21, professes to legislate for offences (1) D. & B. C. C. 525. heard, tried, determined, and adjudged (2) 17 & 18 Viet. c. 104, s. 267 : in the same manner and by the same " All offences against property or per- Courts and in the same places as if such son committed in or at any place either offences had been committed within ashore or afloat out of her Majesty's the jurisdiction of the Admiralty of dominions by any master, seaman, or England ; and the costs and expenses apprentice, who at the time when the of the prosecution of any such offence offence is committed is or within three may be directed to be paid as in the months previously has been employed case of costs and expenses of prosecu- in any British ship shall be deemed to tions for offences committed within the be offences of the same nature respec- jurisdiction of the Admiralty of Eng- tively, and be liable to the same punish- land." ments respectively, and be inquired of, VOL. L] MICH. TERM, XXXH YICT. 163 committed on board ship on the high seas by those not British iscs subjects. If the legislature could make such an enactment, still THE QUEEN the place in question is not the high seas. It was within the empire of France. [BLACKBURN, J. It has been decided that a ship, which bears a nation's flag, is to be treated as a part of the territory of that nation. A ship is a kind of floating island.] If it floats into the territory of another nation, it would cease to be so, and the jurisdiction of the flag would then be excluded. This man might have been tried in France. [BoviLL, C. J. Even if he might, why should not this country legislate to regulate the conduct of those on board its own vessels, so as to have concurrent jurisdiction? However it would seem from Ortolan, Diplomatie de la Mer, Book 2, ch. 13, pp. 269 271, 4th ed., that the French local authorities will not interfere with transactions on board foreign vessels. They repudiate jurisdiction in such cases.] Section 267 of the Merchant Shipping Act, 1854, professes to give jurisdiction three months after a man has left the ship. Under that provision an alien, who had left a ship, and returned to his own country and committed a crime two months afterwards there, might be tried and punished here. That could never have been intended. This was not the high seas. It was French territory where the ship was sailing, and therefore our courts have no juris- diction : Eeg. v. De Nattos (1) ; Eeg v. Depardo (2) ; and Reg. v. John Lewis (3), were also referred to. Poland (Beasley with him), for the Crown. The 267th section of the Merchant Shipping Act, 1854, is not relied on in support of this conviction. The word " British subject " applies to an alien who resides in this country. (4) This man is a British subject, as being subject to British law. In Eeg. v. Depardo (2), no decision was given. The man was released, it is true, but he was an alien enemy. In that case there was no protection afforded by our law, and therefore he was not amenable to it. In Eeg. v. Mattos (1) the offence was committed on land out of the United Kingdom, and the prisoner, a foreigner, had left the service of the ship. Heliacl (1) 7 C. & P. 458. (3) D. & B. C. C. 182. (2) 1 Taunt. 26. (4) 1 Hale, P. C. 542. 1 04 CROWN CASES RESERVED. [L. R. 18C8 ceased to be under British protection, and therefore ceased to be THE QUEEX amenable to British law. The question here is, whether a person, \NDERBOX killing another in a British ship afloat, is amenable to British law ? A ship is a floating island, and it does not lose its character as such when in the river of another territory, but it still remains British, and subject to British law : E. v. Jemot (1) ; Reg, v. Allen. (2) Great inconvenience would ensue if that were not so. Crimes would fre- quently escape altogether unpunished. The French courts repu- diate jurisdiction in the case of offences committed on board foreign merchant vessels by one member of the crew against another in French ports, unless the peace of the port is disturbed. They would take no cognizance of the offence in this case there- fore : Wheaton's Int. Law (ed. 1864), pp. 202-3 ; Ortolan, Diplomatie de la Mer, Bk. 2, cap. 13, pp. 303305, 3rd ed.; 269271, 4th ed. Suppose the ship was in the waters of a savage country, if a per- son committing a crime could not be tried by the law of the ship, he would escape altogether : United States v. Holmes. (3) To give jurisdiction to the country to which a ship belongs, it is not neces- sary that the ship should be on the high seas at the time the crime is committed. It is sufficient if it be in tidal water, even though that water be in the body of another country, and where great ships go. [BLACKBURN, J. The latter limitation is necessary, otherwise a foreign country might claim jurisdiction over a crime committed on a boat belonging to one of its vessels though as far up the Thames as Teddington.] United States v. Wilfberger (4) seems to deny the jurisdiction of the nation to which the ship belongs when the ship is in the tidal river of a foreign power, but that case is opposed to United States v. Coombs (5), which shews that the jurisdiction exists in such cases. The true view of the law is, that if a British ship is in a foreign river, at a place where the tide ebbs and flows, and where great ships go, the jurisdiction of the Admiralty extends to her: Tlwmasv. Lane. (6) The struggle in former times was between the Common (1) Old Bailey, 28th Feb. 1812, (3) 5 Wheat. 412. MS. Cited 1 Russ. on Crimes, 4th ed. (4) 5 Wheat, 76. p. 153, and Archbold's Crim. Pig. (5) 12 Peters. 72. 16th ed. p. 395. (6) 2 Sumner, 1. (2) 1 Mood. C. C. 494. VOL. I.] MICH. TERM, XXXII VICT. 165 Law courts and the Admiralty courts. If a crime was committed 1868 on a river in this country, then a conflict of jurisdiction arose ; but if the ship is in a foreign river, if the Admiralty has no jurisdiction, no court has. The earliest statutes on the subject of Admiralty jurisdiction are 3 Kich. II. c. 3, and 15 Hen. VIII. c. 15, but those statutes were passed not to limit the jurisdiction, but to cure defects of venue in certain cases: 1 Kent's Comm. 10th ed. pp. 409, 410. The American courts hold that the large lakes and rivers of that country are within Admiralty jurisdiction : Genesee Chief v. FitzhugJi. (1) Even supposing that the country of the river had concurrent jurisdiction, that could not affect the question. The true test is, does the jurisdiction of the Admiralty extend to the place where the ship is sailing, i.e., is the ship on the higli seas, or in a tidal river of a foreign power, where great ships go ? It is submitted that the ship in question did not lose its character as a British ship, by floating within a league of French territory in a tidal river. "Where the ship is in a foreign port, it loses its character as a ship: United States v. Hamilton (2); but it does not lose that character while in a river. The flag of the ship extends its protection over all on board, as long as the character of ship remains, and in return for that protection, every person on board owes allegiance to the law of the flag. The prisoner, there- fore, was within Admiralty jurisdiction ; he had the protection of the British flag, and was therefore amenable to British law. M. Williams, in reply. BOVILL, C. J. There is no doubt that the place where the offence was committed was within the territory of France, and that the prisoner was, therefore, subject to the laws of France, which that nation might enforce if they thought fit ; but at the same time he was also within a British merchant vessel, on board that vessel as a part of the crew, and, as such, he must be taken to have been under the protection of the British law, and also amenable to its provisions. It is said that the prisoner was an American citizen, but he had embarked by his own consent on board a British ship, and was at the time a portion of its crew. There are many observa- tions to be found in various writers to shew that in some instances, (1) 12 Howard, 443. (2) 1. Mason, 152. VOL. I. 2 A 4 llj<; CROWN CASES RESERVED. [L. It. 18G8 though subject to American law as a citizen of America, and to the THK Qi-Ei.y hiw of France as being found within French territory, yet that ho A . v must also be considered as being within British jurisdiction as form- ing a part of the crew of a British vessel, upon the principle, that the jurisdiction of a country is preserved over its vessels, though they may be in ports or rivers belonging to another nation. With respect to France, M. Ortolan in his work (I) says, that it is clear, that with regard to merchant vessels of foreign, countries, the French nation do not assert their police law against the crews of those vessels, unless the aid of the French authority be invoked by those on board, or unless the offence committed leads to some disturbance in their ports. The law of France is very clear on this point. Amongst the instances mentioned are two cases of American vessels, one being in the port of Antwerp, and the other in the port of Marseilles, where, offences being committed on board, the Americans claimed the exclusive jurisdiction over their vessels ; though being in foreign ports, they were vessels belonging to America. As far as America is concerned, she has by statute made regulations for those on board her vessels in foreign ports, and we have adopted the same course in this country. When vessels go into a foreign port they must respect the laws of that nation to which the port belongs ; but they must also respect the laws of the nation to which the vessel belongs. When our vessels go into foreign countries we have the right, even if we are not bound, to make such laws as to prevent disturbance in foreign ports, and it is the right of every nation, which sends ships to foreign countries, to make such laws and regulations. In the present case, if it were necessary to decide the question upon the Merchant Shipping Act, I should have no hesitation in saying that we have the power to legislate for those persons who place themselves under allegiance to us by becoming a portion of a British crew, and there would be no inconsistency in including foreigners in such legislation. What is the effect of the Merchant Shipping Act it is not necessary now to decide, and therefore I do not feel it necessary to enter into the question, for the Common Law of England, inde- pendently of the statute, is in my judgment sufficient to decide this case. Here the offence is committed on board a British vessel (1) Diplomatic de la Mer, Book 2, ch. 13, pp. 269-271, 4th ed. VOL. L] MICH. TEEM, XXXH VICT. 167 by one of her crew. If this offence had been committed upon the 1868 high seas, there could have been no doubt upon the question either TUE QUEEN on principle or authority, and the offence then would have been ANL ,g' RSOy committed clearly within the jurisdiction of the Admiralty, and therefore the Central Criminal Court would have stood in the same position as if the offence had been committed within its jurisdiction on land. Then, is the case different because the offence was com- mitted when the vessel was lying in the Bordeaux river, some miles from its mouth, and not in the open sea ? The place where the vessel was lying was in a navigable river, in a broad part of it below all bridges, and at a point where the tide ebbs and flows and where great ships lie and hover. What difference is there be- tween such a place and tha high seas ? The cases that have been cited clearly shew that the Admiralty has jurisdiction in such a place ; if so, the case stands precisely the same as if the offence had been committed upon the high seas. On the whole, I have come clearly to the conclusion that the prisoner is amenable to British law, and that the conviction is right. CHANNELL, B. I am of opinion that the conviction is right. The 267th section of 17 & 18 Viet. c. 104, has been referred to, especially by the counsel for the prisoner. I agree, however, with the view put forward by Mr. Poland, that it is not necessary to pray that section in aid, in order to support this conviction. I say that it is not necessary, because I especially wish to guard myself from saying that such a case may not fall within the statute whenever the point arises. I agree in thinking this Court must execute and exercise the power which is given by any English act of parliament, but I express no opinion as to whether the words used in that section are such as to cover the present case. In construing a statute of this kind we are at liberty to ascertain as near as we can, what the international law on the point is, and construe the words of the statute in harmony therewith. I agree, however, with my Lord Chief Justice, that that point does not arise ; when it does, it will be time to consider it. The ground of decision in my opinion is that the ship in question was within the Admiralty jurisdiction at the time the offence was committed, and that that of itself is sufficient to support the conviction. It may 168 CROWN CASES RESERVED. [L. R. 18C8 not be however that the ship was at the time on the high seas, but THE QCBEN 8ne was within the Admiralty jurisdiction. I come to that opinion * from the views expressed by various text-writers, and from the ANDERSON. authority of the case of Reg. v. Allen (1), and the American case of Thomas v. Lane. (2) There may be some difficulty in dealing with the case of United States v. Wilfberger (3), but it does not seem to me to be altogether conflicting. BYLES, J. I retain the opinion I expressed at the trial. I told the jury that the ship being a British ship was, under the cir- cumstances, a floating island, where the British law prevailed ; that the prisoner, though an alien, enjoyed the protection of the British law, and was as much subject to its sanctions, as if he had been in the Isle of Wight. Two English cases, Reg. v. Allen (1), and Reg. v. Jemot (4), and two American cases, Thomas v. Lane (2) and United States v. Coombs (5), have decided that in a river like the Garonne, within the flux and reflux of the tide, and where great ships go, a ship is within the'- Admiralty jurisdic- tion of the country to which she belongs. The only consequence of the ship being within the ambit of French territory, is that, (the vessel not being an armed vessel) there might have been concurrent jurisdiction, had the French law claimed it. If the murder had been committed on shore, and it had become necessary to consider the international effect of the Merchant Shipping Acts, I should have required further time for considera- tion. BLACKBURN, J. I am also of opinion that the prisoner was rightly convicted, and that it is not necessary to consider the effect of the 267th section of the Merchant Shipping Act, 1854. There are numerous cases which shew that where English law would have had jurisdiction over a prisoner, the matter of venue is cured by statutes passed for the removal of technical rules, and that he could properly be tried in the Central Criminal Court. Then the question arises, had any of the Queen's courts jurisdiction at all (1) 1 Mood. C. C. 494. 1 Russ. on Crimes, 4th ed. 153 ; Arch- (2) 2 Sumner, 1. bold's Grim. Pig. 16th ed. p. 395. (3) 5 Wheat. 76. (5) 12 Peters, 72. (4) Old Bailey, 28th Feb. 1812, MS. VOL. I.] MICH TERM, XXXII VICT. 1G9 to try the prisoner? If any, the Central Criminal Court hail. iscs There are a vast number of cases which decide that when a ship THE QCEEN is sailing on the high seas, and bearing the flag of a particular v ' ANDERSON. nation, the ship forms a part of that nation's country, and all per- sons on board of her may be considered as within the jurisdiction of that nation whose flag is flying on the ship, in the same manner as if they were within the territory of that nation. The question now is, is the Garonne at the place in question to be considered the high seas ? The term " high seas " has had various meanings attached to it, but from the earliest times in this country the Maritime Court has had jurisdiction over what happens on the common ground of nations, and, further than this, from the earliest lii"' In Kjigland, and I think abroad also, it has been established that the jurisdiction of the Admiralty extends over vessels, not onh \\ Ken they are in the open sea, but also when in places where s do generally go. In the present case the ship had miles up the Garonne, and it may be that she was in French territory, -so as to give the French courts jurisdiction, had ten to exercise it; but not only have the French courts xorcised jurisdiction in this case, or in such like cases, but, as I understand, they have absolutely repudiated any such jurisdic- Then the question is, has England jurisdiction over an English vessel in such a place, or would there be jurisdiction in the United States over an American ship which happened to be there ? There seems to be no doubt that at a place where the tide flows, and below all bridges, the Admiralty assumes to have / jurisdiction at common law. I pass by the law as laid down in Bale's Pleas of the Crown, for it seems to me that the modern cases of Reg. v. Jemot (1) and Eeg. v. Allen (2) are those most closely in point. Those were both cases of crimes committed on board British ships at a time when they were lying, not in the open sea, but at some distance up a Chinese river. Each of these cases was held to be within the Admiralty jurisdiction, and con- sequently within that of the Central Criminal Court. In the American case of United States v. Wittier ger (3) the Court seems (1) Old Bailey, 28th Feb. 1812, ed. 153; and Archbold's Grim. Pig. 16th M.S. Cited 1 Paiss. on Crimes, 4th ed. p. 395. (2) 1 Mood. C. C. 494. (3) 5 Wheat. 76. You T. 2 B 4 170 CROWN CASES RESERVED. [L. R. 1868 to have held as a fact that the ship was out of the Admiralty juris- THE QUEEX diction, but in Thomas v. Lane (1) and United States v. Coomls (2) ANDEB N * ne y ^ ve ^he grounds of their decision, not in conformity with the United States v. Wiliberger (3), but very much in conformity with the English decisions, and therefore I consider that the Ame- rican courts would agree with us that the Admiralty jurisdiction would extend to this place ; and so, just as an American seaman on board an American ship at the place in question would have been triable in America, so a foreign subject serving on board a British ship can be tried here. The difficulty as to the statute legislating for those out of the scope of its authority we must deal with when it arises. As a general rule, no doubt, we should construe a British statute according to the principles of international law, and should ; , confine a legislative enactment to a British subject, or to a \ subject to British protection. However, as long as the slii] sea, we have no need of the statute. If the offence had rnitted on land, or in harbour, it might become a question as t ;) the construction of the statute. My present impression, hou is, that where a ship is sailing under a particular flag, t)i affords protection to all who sail under it, and the nation, to which the flag belongs has a perfect right to legislate for all those on board, because she affords them that protection. Whore a nation allows a vessel to sail under her flag, and the crew have the pro- tection of that flag, common sense and justice require that they should be punishable by the law of the flag, and the 267th sec- tion of the Merchant Shipping Act, 1854, might properly be con- strued to mean that. The latter part of -the section, where the three months' clause is introduced, affords more difficulty, but that point does not now arise. The one and only point decided in the present case is, that under the circumstances, the ship being within the jurisdiction of the Admiralty, the prisoner was pro- perly tried at the Central Criminal Court. LUSH, J. I also think that it is not necessary to resort to the Merchant Shipping Act, 1854, and therefore I offer no opinion upon its construction. I concur in the judgment of the rest of the Court upon the ground, that at the time the offence was committed, the (1) 2 Sumner, 1. (2) 12 Pctere. 72. (3) 5 Wheat. 76. VOL. I.] MICH. TEEM, XXXH VICT. 171 vessel was in a tidal river and within the flux and reflux of the 1868 tide, and, not being within the body of a county, was within the THEQUEEN^ jurisdiction of the Admiralty. The prisoner was therefore properly v - j r r j AXDEBSOX. convicted at the Central Criminal Court. Conviction affirmed. Attorney for the Crown : The Solicitor to the Treasury. Attorneys for prisoner : Senior, Attree, & Johnson. END OF MICHAELMAS TEEM, 1868. VOL I. 2 C CASES DETERMINED BY THE COUKT FOR CROWN CASES RESERVED IN HILARY TERM, XXXII VICTORIA. 18G9 THE QUEEN v. FIETH. Jan. 23. Larceny Continuous Taking Abstraction of Gas. A. stole gas for the use of a manufactory by means of a pipe which drew off the gas from the main without allowing it to pass through the meter. The gas from this pipe was burnt every day, and turned off at night. The pipe was never closed at its junction with the main, and consequently always remained fall of gas : Held, that as the pipe always remained full, there was, in fact, a continuous taking of the gas, and not a series of separate takings ; but Held, further, that, even if the pipe had not been thus kept full, the taking would have been continuous, as it was substantially all one transaction. CASE stated by the Chairman of Quarter Sessions for the West Riding of Yorkshire. John Firth was tried at the quarter sessions for the West Riding of Yorkshire at Wakefield on the 17th of August, ]868, on an indictment which charged that he stole 1000 cubic feet of gas the property of the mayor, &c., of the borough of Halifax. The offence was alleged to have been committed on the 30th day of April, 1866. The corporation of Halifax are the owners of gas works within the borough, and a firm of S. and J. Firth, worsted manufacturers, had for some years been the occupiers of Lily Lane Mill in Halifax, which was lighted with gas supplied by the corporation VOL. L] HILAKY TEEM, XXXII VICT. 173 by meter. The prisoner was the son of S. Firth ; and, though not 1869 a partner, was employed by his father and took an active part in THE QUEEN" the management of the business. FIRTH The case then stated evidence which showed that the prisoner had for several years supplied a portion of the manufactory with gas, which he abstracted from a main gas-pipe of the corporation of Halifax by means of a pipe which drew off the gas from the main without allowing it to pass through the meter in the manu- factory. The gas thus obtained was burnt during the day at a large number of burners, and was turned off at night. There was no means of closing the entrance from the pipe into the main, and the pipe in consequence always remained full of gas. The gas was turned off by turning the cocks at the burners. No further evi- dence was given of any specific taking of gas by the prisoner. At the close of the case for the prosecution it was objected by the prisoner's counsel, that if the taking of the gas amounted to larceny, the case for the prosecution proved a separate and distinct act of larceny committed almost daily during a period of several years. That the prisoner could not be called on to answer such a case on one indictment, and that the prosecution must confine their charge (1) to, and the case go to the jury on, one or any number of separate takings of the gas not exceeding three, by or under the orders of the prisoner, within a period of six calendar months from the first to the last of such takings. The chairman overruled the objection, but reserved the point for the Court of Criminal Appeals. The prisoner was convicted and liberated on bail. The question submitted to the Court was, whether the conviction under the circumstances above stated was according to law. (1) The case in fact stated that the the trial, and that the objection was objection was, " that the prosecution then distinctly taken, that the prosecu- must confine their evidence to, and tion should be required to elect upon, the case go to the jury on, one or any which takings, not exceeding three number," &c., &c. It was conceded by within six months, they would proceed. Manisty that this objection could not The Court then allowed the argu- be sustained as stated, inasmuch as a ment to proceed on the question, whether number of successive takings might bo the charge in the indictment ought to shewn in order to establish the feloni- have been restricted to specific takings ous intent of one specified taking, by the prisoner, not exceeding three Atkinson stated that he was present at within six months. 202 4 174 CROWN CASES RESERVED. [L. R. 1869 The case was" argued before Bovill, C. J., Channell and Pigott, THE QUEEN BB., Byles and Lush, JJ. FIRTH. Hanisty, Q.C. (Serjt. Atkinson and Forbes with him), for tlie prisoner. There was a series of takings of gas, not one con- tinuous act, and the chairman should have directed that the prose- cution should be confined to specific takings not exceeding three, under s. 6 of 24 & 25 Viet. c. 96 ; otherwise the prisoner, if in- dicted again for the same offence, might find it impossible to defend himself, as he would not know for what act he had been convicted. There was clearly a succession of takings, from the very nature of the acts. The fact that the prisoner took gas on one day does not shew that he took it on the next day, when he may have been absent from the manufactory. [BoviLL, C.J. In Reg. v. Bleasdale (1), where there was an in- dictment for stealing coal from a mine during a long period of time, the words of Erie, J., are (2) : " As long as coal was gotten irom one shaft it was one continuous taking, though the working was carried on by means of different levels and cuttings, and into t je lands of different people."] There is a distinction between that case and the present. Here the gas which was taken last was not in existence when the takings commenced, and it cannot therefore be said that the gas taken at those two points of time was taken by one act. [BoviLL, C.J. In Reg. v. Shepherd (3) it was held, on an indict- ment under s. 32 of 24 & 25 Viet. c. 96, that in calculating whether injury to the amount of 57. had been caused to trees, the damage done to several trees might be added together if the acts causing such damage were substantially one continuous transaction.] Maule, Q.C. (with him Hannay), for the prosecution. Authori- ties are not of much value in determining a point like this. Each case must be regarded with reference to its own nature and all the surrounding circumstances. There was here a continuous flow of gas from the main as long as the decoy pipe remained. There was, therefore, a continuous taking. The fact that the gas was being made from day to day does not affect the question. If water were abstracted from waterworks by a pipe open for a year, there (1) 2 C. & K. 7G5. (2) 2 C. & K. at p. 767. (3) Ante, p. 118. VOL. I.] HILARY TERM, XXXLT VICT. 175 would be a continuous taking, although the water last taken might 1SG9 not have fallen from the clouds when the abstraction commenced. THE QUEEN [He was stopped by the Court.] FIKTH. Manisty, in reply. BOVILL, C.J. [after referring to the form of the objection, and the statement of Serjeant Atkinson (1)] : The real question in this case is, whether there was a series of takings during the whole number of years during which the gas was used, or whether there was only one continuous taking. Formerly it was necessary that there should be a separate indictment for each act of larceny. The last statute (2), following the principle of a former one (3), allows three different takings to be proved and to be left to the jury. But the only difference caused by this statute is, that three different acts may now be proved on one indictment for larceny, instead of, as formerly, only one. The law which decides whether there are several acts or only one act is the same as before that statute. Before the act is applicable it must be established that there were takings at different times, which can be so calculated that it may be shewn that there is six months from the first to the last of such takings. It is only in these cases that any question arises about election. Before the act, if the taking were continuous, there was only one taking ; if there were several takings, the prisoner could only be convicted on one of them. Reg. v. Bleasdale (4) is a clear authority on this point. The fact that the statute allows three takings to be proved on one indictment does not alter the appli- cation of the case to the present law. In that case the prisoner was indicted for stealing coal from the mines of a number of different landowners. The taking of the coal had continued for a number of years, and all the coal was taken through one shaft. It was objected for the prisoner, that there were a number of different takings, and that the charge should be restricted to one specified act. Erie, J., as a matter of convenience, confined the charge to the taking from one owner, but he held that the whole taking was one continuous act. There is also Reg. v. Shepherd (5), where the question was, (1) See ante note (1) p. 173. (3) 14 & 15 Viet. c. 100, s. 16. (2) 24 & 25 Viet. c. 86, s. 6. (4) 2 C. & K. 765. (5) Ante, p. 118. 176 CROWN CASES RESERVED. [L.R. i860 whether damage done by the prisoner to a number of "trees could THK QCEEN b considered as one single act. It was left to the jury, who found F Vm that the act was continuous. The prisoner was convicted, and the conviction was affirmed. These are authorities for holding that the taking in the present case was one continuous act. This causes no hardship to the prisoner, but is the view that is most favourable to him, as he cannot now be again indicted for taking any of this gas. This view would dispose of the case, if there were no taking except when the gas was burnt ; but really this difficulty does not arise here, because the opening from the main to the pipe was never closed, and the taking was, therefore, in fact continuous. This being so, there is no difficulty in the case ; but even if it had not been so, the taking would have been continuous. Many in- stances might be given besides those already mentioned. Take the case of a granary at a railway station, and a man bringing two waggons close to the granary, and taking sacks from time to time, and extending this taking over four or five days. Here there would be different takings at different times, but it would be impossible to treat the taking otherwise than as one continuous act. Another case might be suggested, of a man at work in a house, stealing, on different days, out of different rooms, and taking one article out f one room, and another out of another, at intervals of a quarter of an hour, or an hour, or longer, all during the same job of work. I should rather suppose that this would be one continuous act, and might be included in - one indictment. On principle, therefore, and on authority, I think the conviction was right ; and the appeal must be dismissed. Conviction affirmed. Attorneys for prosecution : Williamson & Sill, for Norris, Town Clerk, Halifax. Attorney 'for prisoner: E. W. Le Eiclie, for Wavdl & Co., Halifax. VOL. I.] HILAKY TERM, XXXn VICT. 177 THE QUEEN v. TYEEE. 18C9 Embezzlement" Clerk or Servant" Treasurer of Friendly Society 24 & 25 Jan ' 23 ' Viet. c. 96, s. 68. A. was treasurer of a friendly society, whose rules directed that all the moneys of the society should be paid to the treasurer, and that he should make no pay- ments except on an order signed by the secretary, and countersigned by the chairman, or a trustee, and that he should give security. By another rule, all the moneys of the society were vested in trustees. A. was a member of the society, but received no payment for filling the office of treasurer : Held, on an indictment against A, as clerk and servant of the trustees of the society, for embezzling money which he had received as treasurer, that A. was not the " clerk or servant " of the trustees within s. 68 of 24 & 25 Viet. c. 96. CASE stated by the Assistant-Judge of the Middlesex sessions. William Tyree was tried at the Middlesex sessions on the 6th of January, 1869, on an indictment which charged that he was employed in the capacity of a clerk and servant to S. Young and others, and whilst so employed received 186?. 5s. on the account of S. Young and others, and that he embezzled the said money. The prisoner was prosecuted at the instance of the trustees of a society called The Weymouth Lodge Friends of Labour Loan Society, which had been duly enrolled, and the rules of which had been duly certified by the barrister appointed to certify the rules , of savings banks. The prisoner had for two years filled the office of treasurer, and by one of the society's rules the duties of that office were defined as follows: "That a treasurer shall be ap- pointed, into whose hands all money received on meeting nights, as well as all other money received for or on behalf of this society, shall be paid, and for which he shall sign a proper receipt. He shall be responsible for all money paid to him by the cashier, or any other person for or on behalf of this society. He shall pay no money for or on behalf of this society except by an order signed by the secretary, and countersigned by the chairman or a trustee. He shall give proper securities for the faithful execution of such office or trust, pursuant to the 3 & 4 Viet. c. 110, s. 12, in a bond of 100Z." By another rule all moneys of the society were vested in trustees, of whom S. Young was one. The prisoner was a member of the society, but received no salary or payment as treasurer, nor 178 CROWN CASES KESERVED. [L. R 1869 were there any fixed periods for his accounting for the moneys THE QUEEN received and paid by him. In June, 1868, the prisoner was * called upon by the trustees of the society to produce his accounts, .L YBEK. and they were examined by an auditor. It appeared that during his office the prisoner had received on account of the society 10,638Z., and that he had disbursed 10,148Z., leaving to be ac- counted for 1802., or thereabouts. On being required to pay over this sum, he disputed the accuracy of the demand, and stated that his deficiency did not amount to more than 126?. As, however, he did not make any payment whatever, the present charge was preferred. The assistant-judge doubted whether the prisoner could be con- sidered as a clerk or servant, so as to make him amenable for the crime of embezzlement, but, on the authority of Reg. v. Murphy (1), he reserved that question, and took the opinion of the jury upon the facts, directing them to find a verdict of guilty if they were satisfied that the prisoner had failed to pay over the money re- ceived by him on account of the society, and had knowingly applied such money to his own purposes. The jury found the prisoner guilty, and judgment was respited. The question submitted to the Court was, whether the prisoner was a clerk or servant or acting in the capacity of a clerk or servant to the trustees of the society, so as to make him, by his misappropriation of the money received by him as treasurer, liable to be convicted of the crime of embezzlement. The case was argued before Bovill, C. J., Channell and Pigott, BB., Byles and Lush, J J. Ribton, for the prisoner. There are several points of law in the prisoner's favour which appear on the face of the case, although they are not formally submitted for the opinion of the Court. [BoviLL, C.J. We can only decide those points which are re- served for our opinion. That is, in this case, whether the prisoner was " clerk or servant " to the trustees of the society.] The prisoner was not a clerk or servant, but rather in the posi- tion of a banker to the society. His duty was to honour cheques of the society duly drawn. All those circumstances which are (1) 4 Cox, C. C. 101. VOL. I.] HILARY TERM, XXXLT VICT. 179 usually relied on to prove that a person is clerk or servant to 1869 another are wanting here. The prisoner was not appointed by the THE QUEEN" trustees. He was not paid by them, or by any one else. They T * had no power over the prisoner. They could not direct him to act in any particular manner. He was not even bound to receive any money at all for the society ; but, having received it, he held it as their banker. Eeg. v. Murphy (1), which is relied on for the prosecution, is very different from the present case. There the prisoner was clerk in fact to the society, was paid as such, and re- ceived money for the society in that capacity. [BYLES, J. If the prisoner in this case spent the money he re- ceived for the society, and was yet ready to account when the time came, would he be guilty of embezzlement ?] Clearly not. He was not bound to pay over the very coin that he received. Metcalfe, for the prosecution. The question turns wholly upon the Friendly Societies Act, 18 & 19 Yict. c. 63. Section 18 vests all money and other property in the trustees of the society. By s. 19, the trustees are entitled to bring and defend all suits and prosecutions concerning the rights of the society. By s. 21, the treasurer must give security for the faithful execution of his office. By s. 22 (2) the treasurer is required to account to the trustees. It is not necessary to shew that Eeg. v. Murphy (1) governs this case, because the statute makes the prisoner the servant of the trustees. He was bound to account, and he did not account. [BoviLL, C. J. Was he bound to return the money itself, or an equivalent amount ?] Probably he was only bound to return an equivalent amount. (1) 4 Cox, C. C. 101. tees shall cause to be audited . . . and (2) 18 & 19 Viet. c. 63, s. 22 : such treasurer, if thereunto required, " Every treasurer . . . upon being re- upon the said account being audited, quired so to do by the trustees of such shall forthwith hand over to the trustees society . . . within seven days after such the balance which on such audit shall requisition shall render to the trustees of appear to be due from him," and if lie the society ... a just and true account fail to pay, the trustees may sue upon of all moneys received and paid by him the bond given as^his security, and may since he last rendered the like account, sue him in any court of law for such and of the balance then remaining in balance. his hands . . which account the trus- 180 CROWN CASES KESERVED. [L. K. 1869 [BoviLL, C.J. Then what becomes of the charge of embezzle- ~THE Q CEEN ment ? Is there any case in which the treasurer of a friendly TTREE society has been indicted as a clerk or servant?] There is no case precisely in point, but in Bex v. Jenson (1) it was held that the clerk of a savings bank was guilty of embezzle- ment, as clerk to the trustees, although he was appointed by the managers. In Bex v. Hall (2), and in Reg. v. Proud (3), the secretary of a society was held, on an indictment for embezzle- ment, to be the clerk of the trustees. BOVILL, C.J. We are all of opinion that the conviction cannot be sustained. Beg. v. Murphy (4), which at first sight appears in favour of the prosecution, is no authority for a conviction in the present case. Here the prisoner was treasurer, having certain duties clearly pointed out by an act of parliament and certain rules. In Murphy's case the prisoner was not treasurer, and there was no treasurer nor any rule that there should be one. The clerk therefore received the moneys of the society, and in making out his accounts credited himself with a portion of the money as remunera- tion for executing the office of secretary. The case states that there was no distinction between the office of secretary and treasurer (5) r and it is material in considering this case to examine what was the defence set up by the prisoner. He urged (5), first, that having fairly accounted, and not having denied the receipt of the money, the offence only amounted to a breach of trust ; 2ndly, that as he was a member of the society he could not be guilty of embezzling its moneys ; Srdly, that he had received the moneys as treasurer, for which office he received no remuneration. What he contended was not that he was not clerk, but that he had received the money as treasurer and not as clerk. His own counsel says (6), " The office of treasurer is not in the rules at all ; the secretary is alone named. When the prisoner admitted the balance in his hands as secretary, and a trust was placed in him to keep it until distribu- tion, he no longer held it as servant to the society." The argument was, that although Murphy was clerk at first, he was not so after (1) 1 Moody, 434. (4) 4 Cox, C. C. 101. (2) 1 Moody, 474. (5) 4 Cox, C. C. at p. 103. (3) Leigh & Cave, 97. (6) 4 Cox,C. C. at p. 105. VOL. L] HILAKY TEEM, XXXn VICT. 181 he had accounted as he then became treasurer. In the argument 1869 for the prosecution, it was urged that he continued to be servant THE Q UEES all along, and never occupied the position of treasurer ; and Lefroy, B., said during the argument (1), " the difficulty I feel is this, whether the prisoner . . . stood in the capacity of clerk or servant at all to the trustees, taking it to be his duty to collect the sub- scriptions, to account for them, and to keep them safe. If doing this constitutes him a servant, ... I cannot distinguish the case of any banker, agent, or receiver." Blackburn, J., says (2), " It is immaterial to consider whether the prisoner filled the office of secretary or treasurer, or both, because it appears he was employed to collect the subscriptions, and that on the face of his account a balance appeared in his hands, and it was his duty to keep any surplus and have it ready for distribution when he should be required so to do. In this state of things, can any one doubt but that on accepting this office he was to perform its duties ? But it is contended that his duties as clerk ceased the moment the balance of the account was struck. . . We do not think so. His obligations were unchanged ; he was the clerk when he got the money, and he was the clerk when he absconded." Murphy was therefore clerk to the society and not treasurer, and he performed the duties of clerk, and Reg. v. Murphy (3) is no authority for holding that a treasurer appointed as in this case is a servant. The two cases are quite distinct. In Reg. v. Proud (4) the prisoner was in- dicted for embezzling the money of a friendly society of which he was a member ; but he was the secretary, and the rules provided for the appointment of a treasurer, although no treasurer had ever been appointed. The prisoner was found guilty, and the convic- tion was upheld, I presume, on the same grounds as in Reg. v. Murphy. (3) I believe that there is no case to shew that the treasurer of a friendly society can be indicted for embezzlement. The essence of the indictment in this case is, that the prisoner was a clerk or servant of the trustees. The trustees have all moneys of the society vested in them by apt of parliament, as well as by one of their rules, and the prisoner must account to them ; but this does not (1) 4 Cox, C. C. at p. 106. (3) 4 Cox, C. C. 101. (2) 4 Cox, C. C. at p. 107. (4) Leigh & Cave, 97. CROWN CASES RESERVED. [L. R. 1869 make him their servant. The treasurer is an accountable officer Eot a servant. We are all of opinion that the conviction 6 ( l uas ^ e( ^- Conviction quashed. Attorney for prosecution : /. Wilding. Attorney for prisoner : T. Beard. UE QUEEN TYKEE Jan. 30. THE QUEEN v. SUMMERS. Misdemeanour Prior Conviction of Felony not alleged in Indictment Period of Penal Servitude -27 cfc 28 Viet. c. 47, s. 2. 27 & 28 Viet. c. 47, s. 2, enacts, that when any person shall, on indictment, be convicted of any crime punishable with penal servitude, after having been pre- viously convicted of felony, the least sentence of penal servitude that can be awarded shall be a period of seven years. A. was convicted of the misdemeanour of having done grievous bodily harm to B. The indictment did not charge a previous conviction of felony ; but after the jury had found A. guilty, it was proved on oath that A. had been previously con- victed of felony, but no record or certificate of such conviction was produced. A. was sentenced to penal servitude for five years, as for a misdemeanour only without any previous conviction of felony : Held, that the sentence was correct. CASE stated by the Deputy Assistant-Judge of the Middlesex sessions :- "William Summers was convicted at the Middlesex sessions on the 7th of January last, of the misdemeanour of having inflicted grievous bodily harm on a policeman. The indictment did not contain any allegation of any previous conviction of felony, and it is not the practice to insert a previous conviction of felony in an indictment for a misdemeanour without some authority by statute, as in such case it would be error on the record. The Larceny Act recognizes the insertion in the indict- ment of the previous conviction, and gives directions as to the arraignment and trial of the prisoner. A similar provision appears in the Coinage Act; but in the act relating to personal injuries no such machinery is provided or referred to. After the jury had found the prisoner guilty some policemen and prison officers were called, and stated upon oath that the prisoner had been previously VOL. I.] HILARY TEEM, XXXII VICT. 183 convicted of felony ; but no record of any such conviction, nor any 1869 certificate of any such, was produced on the part of the prosecution. THE QUEEN The learned judge, therefore, treated it as a conviction for the misdemeanour only, without any previous conviction of felony, and passed the ordinary sentence for five years penal servitude accord- ingly. It was suggested that the sentence ought to have been for seven years penal servitude, under 27 & 28 Viet. c. 47, s. 2. (1) The questions for the opinion of the Court were, first, whether that sentence, under the circumstances, was or was not correct; and, secondly, whether the statute 27 & 28 Viet. c. 47, s. 2, autho- rized the Court to pass a sentence of seven years penal servitude, whether a previous conviction of felony is alleged in the indict- ment or not ? No counsel appeared. The case was considered by Bovill, C. J., Channell and Pigott, BB., Byles and Lush, JJ. BOVILL, C. J. [after reading the case] : The learned judge treated this case as a misdemeanour only, without any previous conviction of felony, and passed a sentence of five years penal servitude. There are two questions in the case. First, whether the sentence was correct ; secondly, whether it ought to have been for seven years ? The only question with which we have power to deal is, whether the sentence was right or not. Our opinion is, that the view taken at the trial was correct, and that the sentence is, therefore, right. The question is a simple one, and it is not usual in these cases to give reasons for our judgment at length. Conviction affirmed. (1) 27 & 28 Viet. c. 47, s. 2, enacts : of felony ... the least sentence of " Where any person shall, on indict- penal servitude that can be awarded ment, be convicted of any crime or in such cases shall be a period of seven offence punishable with penal servitude, years." after having been previously convicted 184 CKOWN CASES EESEEVED. [L. K. 1869 THE QUEEN v. HIBBERT. Abduction Taking Girl under Sixteen out of Possession of her Father 24 & 25 Viet. c. 100, s. 55. 24 & 25 Viet. c. 100, s. 55, enacts that " whosoever shall take an unmarried girl, under the age of sixteen, out of the possession and against the will of her father or mother, or of any other person having the lawful care and charge of her, shall be guilty of a misdemeanour." A. met a girl in the street going to school, and induced her to go with him to a town some miles distant, where he seduced her. They returned together and he left her where he met her. The girl then went to her home, where she lived with her father and mother, having been absent some hours longer than would have been the case if she had not met A. A. made no inquiry, and did not know who the girl was, or whether she had a father or mother living or not, but he had no reason to and did not believe that she was a girl of the town : Held, that A. was not guilty of having unlawfully taken the girl out of the possession of her father under s. 55 of 24 & 25 Viet. c. 100. CASE stated by Lush, J. : The prisoner was tried at the last assizes at Manchester for having " unlawfully taken Elizabeth Ann Oldham, an unmarried girl under the age of sixteen, out of the possession and against the will of her father," under 24 & 25 Viet. c. 100, s. 55. The girl, who lived with her father and mother at Ashton, left her home in company with another girl to go to a Sunday school. The prisoner met the two girls in the street, and after some little persuasion induced them to go with him to Manchester, on the pretence of shewing them some object of curiosity there. He paid their railway fare there and back. At Manchester he took them to a public-house and there seduced the girl in question. He then accompanied them back to Ashton and parted from them in the street where he had met them. The girl immediately went home, having been absent some hours longer than she ought to and otherwise would have been. The prisoner made no inquiry and did not know who the girl was or whether she had a father or mother living or not, but he had no reason to and did not believe that she was a girl of the town. The jury found him guilty, but in deference to Reg. v. Green (1) (1) 3 F. & F. 274. VOL. I.] HILARY TEEM, XXXII VICT. 185 the question whether the case is within the statute was reserved 1869 and the sentence suspended. THE QUEEN No counsel appeared. HIBBEBT. The case was considered by Bovill, C. J., Channell and Pigott, BB., Byles and Lush, JJ. BOVILL, C.J. [after reading the case] : Section 55 of 24 & 25 Viet. c. 100, enacts that " whosoever shall unlawfully take or cause to be taken any unmarried girl being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanour." In the present case there is no statement of any finding of fact that the prisoner knew or had reason to believe that the girl was under the lawful care or charge of her father, mother, or of any other person. Still less is there any statement that the prisoner knew that she was under the care of her father as charged in this indictment. In some cases, as, for instance, if the girl were a girl of the town, there would be a probability that the person taking her away had no reason to believe that he was taking her out of the possession of her father or other person. In other cases, again, the surrounding circumstances might be such as to satisfy a jury that he had knowledge that he was taking the girl from the possession of those who lawfully had charge of her. In the absence, however, of any finding of fact on this point the conviction cannot be supported. The decision at which we have arrived is quite in accordance with Reg. v. Green (1), where the facts resembled those of the present case. Martin, B., there said, " There must be a taking out of the possession of the father ; here the prisoners picked up the girl in the streets, and for any- thing that appeared, they might not have known that the girl had a father. The essence of the offence was the taking the girl out of the possession of the father. The girl was not taken out of the possession of any one The act of the prisoners was scandalous, but it was not any legal offence." Under these circumstances, therefore, the conviction must be quashed. PIGOTT, B. I have felt some doubt on this point, but I do not (1) 3 F. & F. 274. 186 CRO\VN CASES RESERVED. [L. R. 1869 dissent from the conclusion that has been arrived at bv the rest of THE QCEEN the Court. . LUSH, J. My impression at the trial was that the conviction was right ; but I now think that it cannot be supported. Conviction quashed. END OF HILARY TEEM 187 CASES DETERMINED BY THE COUET FOR CROWN CASES RESERVED IN EASTEE TEEM, XXXII VIOTOEIA. THE QUEEN v. JENKINS. 1869 Evidence Admissibility of Dying Declaration "No present hope of recovery." -April 24. On a trial for murder a written declaration of the deceased was put in evidence for the prosecution. The declaration was made on oath to a magistrates' clerk, about thirteen hours before death. The clerk asked the deceased before he took down her statement, whether she felt she was likely to die ? She said, " I think so, from the shortness of my breath." Her breath was then extremely short. The clerk said, " Is it with the fear of death before you that you make these statements, and have you any present hope of your recovery ?" She said, " None." The clerk then wrote out her statement, and added to it the above conversation, in the form of a statement by the deceased, but he omitted the word " present " before " hope." He then read over to the deceased what he had written, and she then added the words " at present " before " hope," and signed the declaration : Held, that the statement was not admissible in evidence, as it did not appear to have been made under a settled hopeless expectation of death, inasmuch as the deceased had expressly qualified the words " no hope," by inserting before them the words " at present." CASE stated by Byles, J. : The prisoner was convicted at the last Bristol assizes of the murder of Fanny Eeeves, and is now under sentence of death, subject to the decision of the Court of Criminal Appeal as to the admissibility of the dying declaration of the deceased woman. On the night of the 16th of October, between 8 and 9 o'clock, the deceased was found in the river Avon, at a place where the river is very deep. She was rescued from the water, but in an VOL. I. 2 D 4 CROWN CASES RESERVED. [L. R. exhausted condition, and she became, according to the medical evidence, in great danger. On the next day, the 17th, she said she did not think she should get over it, and desired that some one should be sent for to pray with her. A neighbour accordingly visited her about 8 o'clock P.M., who prayed with her, and, as her mother said, talked seriously to her. At 10 o'clock the same evening the magistrates' clerk came. He found her in bed, breathing with considerable difficulty and moan- ing occasionally. He administered an oath, and she made a written statement as hereinafter set fortn. He asked her if she felt she was in a dangerous state, whether she felt she was likely to die ? She said, " I think so." He said, Why ?" She replied, " From the shortness of my breath." Her breath was extremely short ; the answers were disjointed from its shortness. Some intervals elapsed between her answers. The magistrates' clerk said, " Is it with the fear of death before you that you make these statements ?" and added, " Have you any present hope of your recovery ?" She said, "None." The counsel for the defendant pointed out that in the statement the words " at present " were interlined. The magistrates' clerk was recalled. He said, that after he had taken the deposition he read it over to her, and asked her to correct any mistake that he might have made. She then suggested the words " at present." She said " no hope at present of my recovery." He then inter- lined the words " at present." She died about 11 o'clock the next morning. Without the declaration of the deceased, there was not evidence sufficient to leave to the jury ; but the other evidence of the prosecu- tion was, so far as it went, confirmatory of the deceased woman's statement. The case, therefore, rested on what was called the dying declaration of the deceased. The counsel for the prisoner submitted that there was not such an impression of impending death on the mind of the deceased as to render the declaration admissible. I expressed no opinion, but reserved this question for the opinion of this Court, and I allowed the case to go to the jury. The case then set out the examination of Fanny Keeves, the ^deceased. It gave a detailed account of a walk she had taken with VOL. L] EASTEE TEEM, XXXII VICT. 189 the prisoner on the evening of the 16th of October, and stated that i860 he had induced her to go to the edge of the river Avon, and had THE QUEEN then pushed her in. After describing how she was saved from J EN K' INS being drowned, the declaration continued : " After being so taken out I became insensible, and did not recover till I found myself in bed in this house. Since then I have felt great pain in my chest, bosom, and back. From the shortness of my breath I feel that I am likely to die, and I have made the above statement with the fear of death before me, and with no hope at present of my reco- very. Dr. Smart has been to see me twice to-day. " . . . . " The mark X of Fanny Beeves." The jury found the prisoner guilty. Sentence of death was passed, but execution stayed, that the opinion of this Court might be taken on the admissibility of the declaration. The case was argued before Kelly, O.B., Byles, Lush, and Brett, JJ., and Cleasby, B. Collins (Norris with him), for the prisoner. The declaration of the deceased was not admissible in evidence, as it does not appear that she had absolutely no hope of recovery. The general prin- ciple on which declarations of this kind are admitted " is that they are made in extremity when the party is at the point of death, and when every hope of this world is gone" : Woodcock's Case. (1) Before a dying declaration is admissible in evidence, the prosecu- tion must prove affirmatively First, that it was made under fear of impending death : Woodcock's Case. (1) Secondly, that it was made under the expectation of "an almost immediate dissolu- tion :" Bex v. Crockett (2), Bex v. Van Butchell. (3) Thirdly, that it was made when there was no hope of recovery : Reg. v. Dalmas. (4) In Beg. v. Peel (5), Willes, J., says that, before a dying declara- tion is admissible, " it must be proved that the man was dying, and there must be a settled hopeless expectation of death in the declarant." In Rex v. Hayward (6) Tindal, 0. J., says "any hope of recovery, however slight, existing in the mind of the deceased (]) 1 Leach, C. C. 500, 502. (4) 1 Cox, C. 0. 95. ' (2) 4 C. & P. 544, 545. (5) 2 F. & P. 21, 22. (3) 3 C. & P. 629, fi31. (6) 6 C. & P. 157, 160. 190 CROWN CASES RESERVED. [L. R. 1869 at the time of the declarations made, would undoubtedly render THIS QUEEN the evidence of such declarations inadmissible." The evidence * must also show clearly that the declarant knew the state he was JENKINS. in: Bex v. Nicholas (1), Reg. v. Megson (2), Hex v. Spilsbury. (3) The law regards the admission of these declarations with great jealousy, as they are wanting in those sanctions which guard evidence in other cases : Greenleaf on Evidence, vol. i. s. 162, p. 233, 9th ed. The declaration in this case did not satisfy the requirements of the law as established by these cases. The clerk wrote down that the declaration was made "with no hope of recovery." These words are in their terms absolute, but the deceased deliberately refused to express herself thus. She said, " No, that is not my meaning. What I wish to say is not that I have no hope, but that I have no hope at present." The deceased thus carefully qualified what would otherwise have been an absolute statement, and in the clearest way shewed that she was not entirely without hope. This declaration, therefore, does not come within the rule which admits dying declarations, and there is consequently no evidence against the prisoner, and the conviction should be quashed. T. W. Saunders (Bailey with him), for the prosecution. It is admitted that to make the declaration in this case evidence it must be shewn that it was made in the fear of impending death, under the immediate expectation of death, and when there was no hope of recovery. The authority of the cases that establish these rules cannot be disputed. The prosecution, however, proved all that was necessary to make the declaration evidence. The de- claration was made " with the fear of death before me, and with no hope at present of my recovery." If the words " at present " were omitted the case would be clear, but these words do not really alter the meaning of the sentence. The sentiment of hope, or of want of hope, must refer necessarily to the time when the feeling is expressed. " I have no hope," and " I have no hope at present," have the same meaning. Even if some meaning is to be attributed to " at present," its most obvious signification is, that it is not absolutely impossible that the deceased should recover. (1) 6 Cox, C. C. 120. (2) 9 Car. & P. 418. (3) 7 C. & P. 187, 190. VOL. I.] EASTEK TERM, XXXH VICT. 191 While there is life there is hope, and therefore there cannot be 1869 absolutely no hope of recovery. THE QUEES The real meaning, however, of the insertion of the words " at JENKI>-S. present " appears in the case. The clerk asked the deceased, " Have you any present hope of your recovery ?" She said, " None." He then wrote down " with no hope of my recovery," and she corrected this, because it was not what she had in fact said, and not because it was not what she wished to say. She, no doubt, saw no dif- ference in meaning between the two sentences. Direct evidence need not be given to shew that the deceased was conscious of approaching dissolution. This may be inferred from all the sur- rounding circumstances : Reg. v. Brooks. (1) KELLY, C.B. We are all of opinion that the conviction must be quashed. The question, and the only question, is, whether the declaration of the dying woman was admissible in evidence, because it is clear that if the declaration is to be excluded, there was no evidence to go to the jury. This question depends upon what passed between the clerk and the deceased just before and at the time when the statement was made. She was asked if she felt she was in a dangerous state, whether she felt she was likely to die ? She said " I think so." She did not express an absolute belief, but an impression, that she was likely to die. There is nothing con- clusive in this part of the statement. The clerk then went on to ask her why she thought that she was about to die. She replied, " From the shortness of my "breath." The clerk says, " Her breath was extremely short the answers were disjointed from its short- ness. Some intervals elapsed between her answers." The clerk then said to her, " Is it with the fear of death before you that you make these statements ?" and added, " Have you any present hope of your recovery ?" She said, " None." Thereupon he wrote out what he conceived to be the substance of her statement. After detailing the facts of the case, the statement as he wrote it made her say, " I have felt great pain in my chest, bosom, and back. From the shortness of nay breath. I feel that I am likely to die, and I have made the above statement with the fear of death before me, and with no hope of my recovery." If the deceased had sub- (1) 1 Cox, C. C. 6. 192 CROWN CASES HESE11VED. [L. R. 18G9 scribed this declaration, a very difficult question might have arisen. ~^ Q But it appears that after reading over these words to her, and asking her to correct any mistake he might have made, she sug- * gested the words "at present." She said no hope "at present' of my recovery. The clerk then interlined the words " at present." The question is, whether this declaration as it now stands was admissible in evidence. The result of the decisions is, that there must be an unqualified belief in the nearness of death, a belief with- out hope that the declarant is about to die. If we look at reported cases, and at the language of learned judges, we find that one has used the expression " every hope of this world gone " (1) ; another " settled hopeless expectation of death " (2) ; another " any hope of recovery, however slight, renders the evidence of such declara- tions inadmissible." (3) We, as judges, must be perfectly satisfied beyond any reasonable doubt that there was no hope of avoiding death ; and it is not unimportant to observe that the burthen of proving the facts that render the declaration admissible is upon the prosecution. If the present case had rested upon the expression, " I have made the above statement with the fear of death before me, and with no hope of my recovery," a difficult question might have been raised. But when these words were read over to the declarant, she desired to put in the important words " at present ;" and the statement so amended is " with no hope at present of my recovery." We are now called upon to say what is the effect of these words, taking into consideration all the circumstances under which they were put in. The counsel for the prosecution has argued that the words " at present " do not alter the sense of the statement. We think, however, that they must have been intended to convey some mean- ing, and we must endeavour to give effect to that meaning. It is possible that when the statement was first read over to the deceased, she may have remembered that what she had been asked was, whether she had " any present hope of recovery," and observ- ing that the word " present " was omitted, that she merely wished to correct the discrepancy bet\veen the words as spoken and those (1) Per Eyre, C.B., Woodcock's Case, (2) Per Willes, J., Beg. v. Peel, 2 F. 1 Leach, C. C. at p. 502. & F. at p. 22. (3) Per Tindal, C.J., Rex v. Hayward, 6 C. & P. at p. 160. VOL. L] EASTER TERM, XXXII V1CT. 193 written down, without wishing to make any alteration in the mean- i860 ing of those words. On the other hand, she may have meant to THE QUEEN alter and qualify the statement as first written. She may have wished to express, " All I meant to say was, ' I have not hope at present ;' " but not to say that she had absolutely no hope. The case is capable of either of these two constructions, one of which is against and the other in favour of the prisoner ; and if we had simply to choose between the two, without anything to guide us as to the real meaning of the deceased, we should resolve the doubt in favour of the prisoner in favorem vitse. But another mode of solution is presented which calls on us to decide for the prisoner on another ground. The deceased was asked in express terms by the clerk " to correct any mistake that he might have made." She then said, " Put in the words ' at present.' " Even if this were not a criminal case, this would be sufficient to shew that the omission of " at present " was a mistake that she meant " no present hope " as distinguished from " no hope." She there- fore intended the words to have some substantial meaning ; and if they have any meaning at all, they must qualify the absolute meaning which the declaration must contain in order to render it admissible evidence. The conviction must therefore be quashed. BYLES, J. As I tried the case, I wish to state that I enter- tain no doubt that the declaration was not admissible. There being no other evi lence against the prisoner, I thought it best to admit the declaration, and reserve the point whether it was admis- sible evidence. Dying declarations ought to be admitted with scrupulous, and I had almost said with superstitious, care. They have not neces- sarily the sanction of an oath ; they are made in the absence of the prisoner ; the person making them is not subjected to cross- examination, and is in no peril of prosecution for perjury. There is also great danger of omissions, and of unintentional misrepre- sentations, both by the declarant and the witness, as this case shews. In order to make a dying declaration admissible, there must be an expectation of impending and almost immediate death, from the causes then operating. The authorities shew that there must be no hope whatever. CROWN CASES RESERVED. [L. R. 1869 In this case the deceased said originally she had no hope at present. The clerk put down that she had no hope. She said in * effect when the statement was read over to her, " No, that is not JENKINS. what I said, nor what I mean. I mean that at present I have no hope ;" which is, or may be, as if she had said, " If I do not get better, I shall die." The conviction must be quashed. Conviction quashed. Attorney for prosecution : Walter Pigeon, Bristol. Attorney for prisoner : J". H. Clifton, Bristol. April 24. THE QUEEN v. TAYLOR, Misdemeanour necessarily including lesser misdemeanour Indictment far " Un- lawfully and Maliciously Wounding" and for " Unlawfully and Malicumsly inflicting grievous bodily harm" Verdict " Guilty of an Assault." An indictment charged the prisoner in the first count with " unlawfully and maliciously wounding," and in the second count, with " unlawfully and maliciously inflicting grievous bodily harm." The jury found the prisoner guilty of an assault : Held, that the prisoner could be properly convicted of an assault on the indict- ment, as the offences charged were misdemeanours, and each of them necessarily included the lesser misdemeanour of an assault. CASE stated by the Chairman of the Quarter Sessions for the North Hiding of Yorkshire : The prisoner was indicted at the Easter general quarter sessions, 1869, of the North Biding of Yorkshire, for a misdemeanour upon an indictment, the first count of which charged that he "unlaw- fully and maliciously did wound one Thomas Meek." The second count charged that he "did unlawfully and maliciously inflict grievous bodily harm upon the said Thomas Meek." The jury re- turned a verdict of " guilty of an assault." The counsel for the prisoner contended that the prisoner could not be convicted of a common assault on that indictment, and that the verdict therefore amounted to an acquittal. The Court postponed judgment, and reserved the question, Whether this conviction can be sustained? The prisoner was admitted to bail. VOL. I.] EASTEE TEEM, XXXII V1CT. 195 The case was argued before Kelly, C.B., Byles, Lush, and 1869 Brett, JJ., and Cleasby, B. THE V. Shepherd, for the prosecution. The question is, whether there TATLOB - should have been a count for the assault, or the word "assault" in one of the counts. The offences charged are only misde- meanours, and each of them necessarily includes the lesser mis- demeanour of a common assault. A verdict for a common assault can, therefore, properly be given on this indictment. The rules relating to felonies do not apply in this case, which con- cerns misdemeanours only. In Reg. v. Oliver (1), a conviction of a common assault was upheld upon an indictment that the prisoner did "make an assault upon, and did unlawfully beat, wound, and ill-treat, and did thereby occasion actual bodily harm" to the prosecutor. The same point was decided in Eeg. v. Yeadon. (2) These cases do not go quite so far as the present one, because the word " assault " was used in the indictments, but the principle applies to this case as it is not necessary to use the word " assault." Every battery includes an assault, 1 Hawk. P.O. (8th ed.) p. 110, and therefore wounding or inflicting grievous bodily harm necessarily includes an assault : Eeg. v. Ingram. (3) No counsel appeared for the prisoner. KELLY, C.B. This conviction must be affirmed. There is no count in the indictment for an assault, nor is the word " assault" used in the indictment. Each of the two counts is, however, for an offence which necessarily includes an assault, and the offences charged as well as the offence of which the prisoner has been found guilty are misdemeanours. If there were an absence of authority, we think on principle that the jury could properly find a verdict of guilty of a common assault on this indictment. It is not necessary that matters of aggravation stated in the indictment should be proved, and if not proved the prisoner may be found guilty of the offence without the circumstances of aggravation. There is, however, no want of authority. In Eeg. v. Yeadon (2), there was an indictment containing a count for an assault occasion- (1) BellC. C. 287 j 30 L. J. (M.C.) (2) Leigh & Cave, 81; 31 L. J. 12. (M.O.) 70. (3) 1 Salk. 384. VOL. I. 2 E 4 196 OEOWN CASES EESEEVED. [L. B. 1869 ing actual bodily harm, under 14 & 15 Viet. c. 100, s. 29. The QCEKN jury found a verdict of guilty of a common assault. The chairman TAYLOR ^ tne > *** Practice Proof of previous Conviction Offences relating to the Coin Misde- meanour Felony 24 & 25 Viet. c. 99, ss. 12, 37. By s. 10 of 24 & 25 Viet. c. 99, littering counterfeit coin knowing it to be counterfeit is a misdemeanour. By s. 11, the possession of counterfeit coin, know- ing it to be counterfeit, and with intent to utter the same, is a misdemeanour. By s. 12, whosoever having been convicted of (amongst others) any offence in the three preceding sections mentioned, shall afterwards commit any of the offences mentioned in those sections, shall be guilty of felony, and liable to punishment as therein specified. By s. 37, where any person shall have been convicted of any offence against any Act relating to the coin, and shall afterwards be indicted for any offence against this Act, it shall be sufficient, in any such in- dictment, after charging such subsequent offence, to state and to prove at the trial the previous conviction in the manner therein specified, and upon any such indict- ment the prisoner shall in the first instance be arraigned upon and tried for the subsequent offence only ; and if he is found guilty the previous conviction may then be inquired into, but not before. A. was indicted under s. 12 for feloniously having in his possession counterfeit coin, after a previous conviction for uttering counterfeit coin : Held, overruling Keg. v. Goodwin (10 Cox, C. C. 534), that s. 37 applies to a trial on an indictment under s. 12, and that therefore the previous conviction could not be proved until the jury had found A. guilty of the subsequent offence. CASE stated by W. Forsyth, Q.C., commissioner : At the last Leeds summer assizes William Martin was tried on the charge of being feloniously in possession of counterfeit coin, he having been before convicted of uttering counterfeit coin. At the outset of the case the counsel for the prosecution pro- posed to give in evidence a certificate to prove the previous con- viction of the prisoner. The counsel for the prisoner objected, and the commissioner, having regard to s. 37 of 24 & 25 Viet. c. 99, refused to receive the evidence at that stage of the case. Evidence was then given to shew that the prisoner was guilty of the subse- quent offence charged, but the commissioner refused to allow evi- dence to be .given of the previous conviction until the jury should give their verdict upon the subsequent charge. At the close of the case for the prosecution, the counsel for the prisoner contended that there was no case of felony to go to the jury, for that the offence of being in possession of counterfeit coin was, by s. 12 of 24 & 25 Viet. c. 99, made felony only when there had been a VOL. I] MICH. TERM, XXXIII YICT. 215 previous conviction of an offence relating to the coin, and no such previous conviction had been proved. The case was then left to the jury upon the question whether the prisoner was guilty or not of the subsequent offence. The jury found a verdict of guilty. The prisoner was then asked whether he had been previously convicted as charged in the indictment, and he admitted that he had been so convicted. The commissioner deferred passing sentence, and the prisoner remained in custody. The question was, whether the commissioner was right in rejecting the certificate when it was tendered in evidence, and in submitting to the jury the question whether the prisoner was guilty of the subsequent offence before the previous conviction had been proved against him. (1) The case was argued before Kelly, O.B., Martin, B., Blackburn, Lush, and Brett, JJ. 1869 THE QUEEN v. MABTIK (1) 24 & 25 Viet. c. 99, s. 10, enacts that, " whosoever shall utter counterfeit coin, knowing it to be counterfeit, shall be guilty of a misdemeanour." s. 11 enacts that, " whosoever shall have in his possession counterfeit coin, knowing it to be counterfeit, and with intent to utter the same, shall be guilty of a misdemeanour." s.12: "Whosoever, after having been convicted of (amongst others) any such offence as in any of the last three pre- ceding sections mentioned, shall after- wards commit any of the offences in any of the said sections mentioned, shall be guilty of felony, and liable to the punishment therein provided." s. 37 : " Where any person shall have been convicted of any offence against this Act, or any former Act relating to the coin, and shall after- wards be indicted for any offence against this Act, committed subsequent to such conviction, it shall be sufficient, in any such indictment, after charging such subsequent offence," to state in such indictment, and to prove at the trial in the manner therein specified, such previous conviction, " and the proceed- ings upon any indictment for com- mitting any offence, after a previous conviction or convictions, shall be as follows; that is to say, the offender shall, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence ; and if he plead not guilty, or if the Court order a plea of not guilty to be entered on his behalf, the jury shall be charged, in the first instance, to inquire concern- ing such subsequent offence only, and if they find him guilty, or if, on ar- raignment, he plead guilty, he shall then, and not before, be asked whether he had been previously convicted, as alleged in the indictment, and if he answer that he had been so previously convicted, the Court may proceed to sentence him accordingly; but if he deny that he had been so previously convicted, . . . the jury shall then be charged to inquire concerning such pre- vious conviction, and in such case it shall not be necessary to swear the jury again. 212 210 GROWN CASES RESERVED. [L. R. 1869 No counsel appeared for the prisoner. IE QUEEN Forbes, for the prosecution. The question is, whether the pro- MAHTIN. cedure prescribed by s. 37 of 24 & 25 Viet. c. 99, applies to indict- ments under s. 12 of the same statute, which makes an offence, in itself a mere misdemeanour, a felony, if committed after a previous conviction. There has been some doubt as to the practice in these cases, but it has been ruled that s. 37 does not apply to indictments under s. 12 by Willes, J., in Eeg. v. Wade, at the Warwick winter assizes, 1861 (I), 1 and by Lush, J., at the Leeds spring assizes, 1867. (2) This ruling of Lush, J., was approved and followed by Mellor, J., in Eeg. v. Goodwin. (3) In these cases the previous con- viction was proved before the subsequent offence was left to the jury. This, however, seems to be contrary to the express words of s. 37. KELLY, C.B. The conviction must be affirmed, as the procedure adopted was right. Section 37 applies to and expressly provides for such a case as this. BLACKBURN, J. I have always acted on the principle that the jury should first be asked as to the subsequent offence, and after- wards as to the prior conviction. LUSH, J. My attention was not drawn to s. 37 when I ruled as I am reported to have done at Leeds. MARTIN, B., and BRETT, J., concurred. Conviction affirmed. Attorney for prosecution : The Solicitor to the Treasury. (1) Not reported. was cited in the argument, but no refer- (2) Cited Arckbold, Cr. PI. p. 700, ence was given. Forbes stated that he Cth ed. had not been able to find any report of (3) 10 Cox, C. C. 534. This case the case. END OF MICHAELMAS TERM, 1869. VOL. L] 217 CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED HILAKY TEEM, XXXIII VICTOKIA. THE QUEEN v. GEORGE FRENCH. 1870 Forgery "Acquittance or Receipt for Money" 24 & 25 Viet. c. 98, 8. 23. Jan 22 - Section 23 of 24 & 25 Viet. c. 98, enacts that " whosoever shall forge . . . any acquittance or receipt for money . . . shall be guilty of felony." A. was secretary of a friendly society which had branches in various towns. Any member who had paid all his dues, on going from one of these towns to another, was entitled to a document called a " clearance," which admitted him to membership at any place where a branch of the society existed. The qualifica- tions for membership were the payment of an entrance fee, a time of probation, and certain general payments which were made to the secretary, whose duty it was at once to hand them over to the treasurer. A clearance had to be signed by the secretary and by two other officers of the society. . Neither of these two officers received or was responsible for any of these payments, nor were their signatures to a clearance understood as importing that any money had been received by them. C., a member of the society, was entitled to a clearance, having paid A. all his dues, but the money he had so paid had not been accounted for by A. to the trea- surer. A. sent C. a clearance to which he had forged the names of the two officers whose signatures besides his own were necessary for the validity of the clearance. The clearance certified that the bearer C. was a member of the branch of the society granting it, and had paid all dues and demands, and it then authorized any other branch to receive C. as a clearance member : Held, that the clearance was not an " acquittance or receipt for money " withi s. 23 of 24 & 25 Viet. c. 98. CASE stated by Lush, J. : Indictment under 24 & 25 Viet. c. 98, s. 23, for forging an acquittance or receipt for money. 218 CROWN CASES RESERVED. [L. R. 1870 The prisoner was secretary of a friendly society called the Ancient THE QCEEN Ord. The case was argued before Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B. No counsel appeared for the prisoner. Ridley, for the prosecution. It must be taken on this case that there was a criminal intent to " endeavour to conceal the birth " within the meaning of the section, and the question, therefore, now is, was there any evidence to go to the jury of a " secret dis- position " of the body ? The test is, was there any probability that the body would be found in the place where it was put ? Here it was not probable that the body would be found, and there was, therefore, a secret disposition. In Reg. v. Sleep (1), the prisoner had placed the dead body of her child in an open box in her bedroom. Byles, J., told the jury that " secresy was the essence of the offence," but left it to the jury to say whether there was a secret disposition. In Reg. v. Cook (2) the facts resemble very closely those of Reg. v. Sleep (1), which was cited, and Lush, J., there assented to the ruling in Reg. v. Sleep (1), but said, " but then all the attendant circum- stances of the case must be taken into consideration." The case was left to the jury, who found the prisoner guilty. In Reg. v. Nixon (3), it seems to have been held that there was no secret disposition of a body, by placing it in an open pound surrounded by a wall five feet high. There, however, there was a public pathway along the wall, so that any one who passed could see the body. There was there a probability that the body would be found, but in this case there was no such probability. BOVILL, C.J. The first question is whether there is any evi- dence of a " secret disposition " of the body within the statute, 24 & 25 Viet. c. 100, s. 60. It seems to me that what is a secret dis- position must depend upon the circumstances of each particular case. The most complete exposure of the body might be a concealment. As, for instance, if the body were placed in the middle of a moor in the winter, or on the top of a mountain, or in any other secluded (1) 9 Cox, 559. (3) Cited in &cg. v. Clarke, 4 F. & F. (2) 22 L. T. (N. S.) 216. 1040, n. VOL. L] EASTER TERM, XXXIII VICT. 247 place, where the body would not be likely to be found. There 1870 would, in such a case, be a secret disposition of the body, and the THE QUKEK jury must say, in each case, whether or not the facts shew that B " there has been such a disposition. In this case there was abun- dant evidence to go to the jury that the body had been disposed of secretly. The evidence of a secret disposition consisted in the situation in which the body was placed, and it was a question for the jury to say whether placing the body in such a situation was, in fact, a secret disposition of the body. It is easy to suggest cases where placing a body in a particular situation would undoubtedly be evidence of a secret disposition, as if a body were thrown down from a cliff to the sea-shore, in a secluded place. If, however, the place were very much frequented, there might be no evidence of a secret disposition from such an~act. There must, no doubt, be an intent to conceal the body, but here there is no question as to the intent. The second question is as to the direction of the learned judge. I think it was right. BYLES, J. I am of the same opinion. I doubt, however, whether we have any power to question the ruling of the learned judge. WILLES and HANNEN, JJ., and CLEASBY, B., concurred. Conviction affirmed. Attorneys for prosecution : Shum & Grossman, for Daglisli & Stewart, Newcastle. END OF EASTER TERM, 1870. VOL. L- 2 N CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED 1870 THE QUEEN v. BUTTLE. Evidence Perjury Answers to Commissioners for Inquiring into Existence of Corrupt Practices at Elections 26 Viet. c. 29, s. 7 Construction. By 26 Viet. c. 29, s. 7, it is enacted, that witnesses before commissioners for inquiring into the existence of corrupt practices at elections shall not be excused from answering questions on the ground that the answers thereto may criminate them, and " that no statement made by any person in answer to any question put by such commissioners shall, except in cases of indictments for perjury, be admissible in evidence in any proceeding, civil or criminal ": Held, that " except in cases of indictments for perjury " applies only to perjury committed before the commissioners, and therefore, on an indictment for perjury committed at the trial of an election petition, evidence of answers to commissioners appointed to inquire into the existence of corrupt practices at the election in question is not admissible. CASE stated by Kelly, C.B. : Indictment for perjury committed at the trial of an election petition, in respect of the borough of Bridgwater, before Black- burn, J. The perjury assigned was, that the prisoner " had not received money for his vote," and " that he had not received ten pounds for his vote." The prisoner was tried at the last assizes for the county of Somerset. Evidence was given on which, though it was by no means conclusive, a conviction might have been obtained. The counsel for the prosecution then proved that, upon a commission to VOL. L] TKINITY TEEM, XXXHI VICT. 249 inquire into the existence of corrupt practices at the election in 1870 question before certain commissioners, the prisoner was examined THE QUEEN as a witness upon oath, and admitted upon such examination that B v - he had received 10Z. for his vote at the election in question, and he further admitted in express terms that he had sworn falsely upon the trial of the election petition before Blackburn, J. It was contended for the prisoner that this evidence was not admissible, and that the exception in relation to perjury in 26 Viet. c. 29, s. 7 (1), applied only to perjury committed before the com- missioners under the commission, and not to perjury committed upon the trial of the election petition, the judgment or report upon which petition had led to the commission of inquiry. Inasmuch as it was clear that the prisoner had been compelled, under peril of commitment and imprisonment, to give evidence before the commissioners, and consequently, that the evidence which he so gave, which was perfectly true, was obtained from him by compul- sion, if it could be used in evidence against him on a criminal charge, the rule of law that no man is bound to criminate himself would be defeated. The prisoner was found guilty. The question was, whether this evidence was admissible. The case was argued before Kelly, C.B., Martin, B., Blackburn, Mellor, and Montague Smith, JJ. Saunders, for the prisoner. The question is, whether the words " except in cases of indictments for perjury " include all indict- ments for perjury, or only indictments for perjury committed before the commissioners. It is contrary to the whole scope and object of the section that the words should have the larger meaning, and (1) 26 Viet. c. 29, s. 7, enacts, offence, under the Corrupt Practices that no witness before commissioners Prevention Acts, committed by him inquiring into the existence of corrupt before so giving his evidence. . . . practices at elections shall be excused " Provided that 110 statement made by from answering questions on the ground any person in answer to any question put that the answer thereto may criminate by or before such commissioners shall, him, and a witness answering all such except in cases of indictments for per- questions shall be entitled to receive a jury, be admissible in evidence in any certificate, which shall be a defence to proceeding, civil or criminal." him against any proceedings for any 2 N 2 4 250 CKOWN CASES RESEKVED. [L. B. 1870 there is notliing unreasonable or contrary to the ordinary rules of construction in reading these words as applying only to perjury n * before the commissioners. The evidence was. therefore, not adrnis- BfTTLE. sible. Poole, for the prosecution. The words " except in cases of in- dictments for perjury " are general, and subject to no exception, and the evidence was therefore admissible. To construe these words in a limited sense would be contrary to their plain and ordi- nary meaning. If the legislature had intended to except any class of cases, such exception could easily have been expressed. There is no ambiguity here. The only question is, whether the words of the section are to be read in their ordinary sense. Reference to the earlier statute, 15 & 16 Viet. c. 57, shews that the words include all indictments for perjury. S. 8 of 15 & 16 Viet. c. 57, contained provisions somewhat similar to those of s. 7 of 26 Viet. c. 29, and a somewhat similar proviso, but the exception to the proviso is, " except in cases of indictment for perjury committed in such answers." It must be assumed that the legislature in- tended a change of meaning by this change of words, especially as the alteration of meaning is clear and unambiguous if the words are read in their ordinary sense. [He referred to Reg. v. Seott. (1)] KELLY, C.B. I am of opinion that this conviction should be quashed. The question is, what is the meaning and spirit of the statute (26 Viet. c. 29, s. 7) ? It enables the commissioners to summon people before them, and to put to them any questions respecting the elections. The question then is, what are the terms and conditions upon which this power is given to the commissioners ? It seems to me that the powers of the commissioners may be thus stated : When a witness is before them they may be supposed to say, " You must answer all proper questions we may choose to put to you ; if you refuse to do so, we shall commit you to prison. If you answer truly, you are safe. If by any answer you are exposed to a criminal proceeding for bribery, the Court will stay the pro- ceedings against you. Further, the evidence you shall give shall under no circumstances whatever be used against you. But if you (1) Dear. & Bell, 47 ; 25 L. J. (M.C.) 128. VOL. L] TEINITY TEEM, XXXIII VICT. 251 do not tell the truth, and by answering untruly you defeat justice 1870 and mislead us, you may be indicted for this perjury, and this THE QUEEN evidence may then be used against you." BCTTLE I think that it was not the intention of the legislature that a witness should be compelled to answer, under pain of imprisonment, and should then be exposed to an indictment for some perjury committed on another occasion, and that his answers before the commissioners should be used as evidence at the trial of that indictment. This would be directly subversive of the principle of the common law. If, however, a witness commits perjury before the commissioners, his evidence before the commissioners may be used against him on an indictment for that perjury. In the former statute (15 & 16 Yict. c. 57, s. 8) there are words which, if they had been introduced here, would have put the present question beyond doubt. The witness would then clearly have been protected. The reason why these words were omitted no doubt is that, whoever framed this statute, did so in a slovenly way, and shewed great want of care in drawing it. MAETIN, B. I am of the same opinion. The proviso in the section (26 Viet. c. 29, s. 7), is that " no statement made by any person in answer to any question put by or before such com- missioners shall, except in cases of indictments for perjury, be admissible in evidence in any proceeding, civil or criminal." We are asked to read the section as allowing these statements to be admissible evidence in all indictments for perjury. If this is not the true construction of the section evidence of these statements is not admissible, because then the rule of the common law inter- venes which excludes this species r of proof. Of course no other kind of evidence is excluded, and the accused person might be convicted on other evidence. I think that these answers were not admissible in evidence unless the witness is deprived of his common law protection. We cannot assume that this protection is taken away unless the legislature clearly says so ; and as the statute (26 Viet. c. 29, s. 7) does not clearly say so, I think the protection is not taken away, and the evidence therefore was not admissible. BLACKBUKN, J. I am of the same opinion. Section 7 of 26 252 ' CROWN CASES RESERVED. [L. B. 1870 Viet. c. 29, enacts : [the learned Judge read the first part of the THE QUEEN section]. By the common law a witness may, but is not compelled B p- to, answer questions if the answers would criminate him. By this section the legislature says that a witness before a commission shall answer questions notwithstanding that the answer may criminate him. Then comes the proviso : [the learned Judge read the pro- viso]. The proviso is general, that no statement before the com- missioners shall be given in evidence at all, in any proceedings civil or criminal. This provision is for the purpose of obtaining full dis- covery of all the matters as to which the witness is questioned. Then comes the exception in the proviso, " except in cases of indictments for perjury." These words, again, are quite general ; and Mr. Poole's argument is, that the evidence was consequently admissible on this and on any other trial for perjury. I think, however, that this is not the true construction. I think that the exception must be correlative with the operation of the statute, and that it therefore refers only to perjury committed under the statute, that is to perjury before the commissioners. In 15 & 16 Viet. c. 57, s. 8, there are provisions somewhat similar to those of 26 Viet. c. 29, s. 7 ; and then there follows a proviso to s. 8 of 15 & 16 Viet. c. 57: "Provided always that no statement made by any person in answer to any question put by such commissioners shall, except in cases of indictment for perjury commiUed in such answers, be admissible in evidence in any pro- ceeding, civil or criminal." The older section has, however, been remodelled and quite altered in form in the later one, and the words, " committed in such answers," have been omitted in s. 7 of 26 Viet. c. 29. When the legislature change the words of an enact- ment, no doubt it must be taken prima facie that there was an intention to change the meaning of the enactment. This, however, is not necessarily so. Here, the omission may have been because there was a wish to change the law, or because the omitted words were thought to be superfluous. I cannot believe that there was a wish to change the law, and I therefore think that the evidence was not admissible. MELLOR, J. I am of the same opinion. The object of the statute is to enable the commissioners to prosecute their inquiries VOL. L] TRINITY TERM, XXXHE VICT. 253 successfully. The statute, therefore, protects witnesses who answer ISTO truly, and I think that " except in cases of indictment for per- THE QCEEN jury " means perjury committed before the commissioners. - * JJUTTLE, MONTAGUE SMITH, J. I am of the same opinion. The section protects witnesses answering truly from all liability to proceedings under the Corrupt Practices Prevention Acts, and it also provides that no statement made by such witnesses before the commissioners shall be admissible in evidence in any proceeding, civil or criminal. The intention of the section is shewn by these general words ; and I think the exception does not apply to any indictment for perjury except perjury committed before the commissioners. Conviction quashed. Attorneys for prosecution : Torr & Co. Attorneys for prisoner : Reed & Cook, Bridgwater. THE QUEEN v. JOSEPH N. HADFIELD. Obstruction of Train 24 & 25 Viet. c. 97, s. 36 Altering Signals. 24 & 25 Viet. c. 97, s. 36, enacts that " whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct, or cause to be obstructed, any engine or carriage using any railway, . . . shall be guilty of a misdemeanour." The prisoner unlawfully altered some railway signals at a railway station. The alteration caused a train, which would have passed the station without slackening speed, to slacken speed, and to come nearly to a stand. Another train going in the same direction, and on the same rails, was due at the station in half an hour : Held (Martin, B. dissenting), that the prisoner had " obstructed " a train within, the meaning of s. 36 of 24 & 25 Viet. c. 97. CASE stated by the Deputy Chairman of Quarter Sessions for the county of Chester. Indictment under 24 & 25 Yict. c. 97, s. 36, that the prisoner " by a certain unlawful act, to wit, by unlawfully interfering with and changing certain signals in use upon a certain railway called, &c., . . . unlawfully and wilfully did obstruct, and cause to be obstructed, a certain engine and carriages then using such railway, against the form," &c. 254 CROWN CASES RESERVED. [L. R. 1870 Second count: that the prisoner "unlawfully and wilfully did THE QUEEN obstruct, and cause to be obstructed, a certain engine and carriages H r> then using a certain railway, called," &c. The prisoner was tried on the 22nd of February, 1870. At about eleven o'clock on the night of the 14th of January last, the clerk in charge of the Dukinfield station of the Manchester, Sheffield, &c., Kailway, arranged the signals for the night. There was a semaphore signal on the platform, having several arms, with a separate lever to work each arm, and there were two signals at about 200 yards distance from and on either side of the station, one on the "up " line and the other on the " down " line, and both worked by levers from the platform at the station. The clerk put out the lights of the semaphore signal, and placed the arms down to indicate the lines " all clear," and the two distant signals he arranged so as to shew white lights also indicating that the lines were clear. Subsequently the prisoner climbed over a door in the wall of the station and altered the signals. He placed one arm of the semaphore at right angles with the post, and another at an acute angle, the former signifying " danger," the latter " caution." He made both the distant signals shew red lights, indicating " danger." The. prisoner was not sober. The clerk gave him into custody for meddling with the signals. On his way back to the station, after giving the prisoner into custody, the clerk saw a goods train which, under ordinary circumstances, would have passed through Dukinfield station without slackening speed, moving slowly through the station on the " up " line. The driver of the goods train proved that he had observed the distant signal on the " up " line shewing the red light, and that in consequence he shut off steam and approached the Dukinfield station cautiously, and that at the station he brought the train " very near to a stand, and could have come to a stand at any moment," but seeing no one on the platform he passed on. It was also proved that the mail train going in the same direction, and on the same rails as the goods train, was due at Dukinfield station in about half an hour after the goods train so passed through the station. The jury found the prisoner guilty. The question was, whether the above facts amounted to an YOL. I.] TEINITY TEEM, XXXIII VICT. 255 "obstruction" within the meaning of s. 36 of 24 & 25 Viet. 1870 c - 97. (1) THEQCEEN V. The case was argued before Kelly, C.B., Martin, B., Blackburn, HADFIELD - Mellor, and Montague Smith, JJ. Horatio Lloyd, for the prosecution. The words of s. 36 (1) are, " obstruct or cause to be obstructed." There is nothing in the section to shew that the obstruction must be some physical obstacle on the line. If a train is unlawfully stopped, it is obstructed whether the stoppage is caused by signals or by placing something on the rails. The wording of s. 35 (1) also shews that there may be an obstruction by the unlawful alteration of signals. In this case the goods train was obstructed because it was stopped, and its stoppage was also an obstruction of the mail train, which was due at the place shortly afterwards. No counsel appeared for the prisoner. KELLY, C.B. I think the obstruction in this case is within s. 36 of 24 & 25 Viet. c. 97. The prisoner changed the railway signals from " all clear " to " danger " and " caution." Then a goods train came, which, but for this change, would have passed on through the station without slacking speed. The driver of the train, however, seeing the state of the signals, came " very near to a stand." A mail train was going in the same direction, and on the same rails, and was due at the station in half an hour. I think that there was as much an obstruction as if a log of wood (1) Section 35 of 24 & 25 Viet. c. 97, unlawfully and maliciously do, or cause enacts that " whosoever shall unlaw- to be done, any other matter or thing, fully and maliciously put, place, cast, with intent in any of the cases afore- or throw upon or across any railway said, to obstruct, upset, overthrow, any wood, stone, or other matter or injure, or destroy any engine, tender, thing, or shall unlawfully and mali- carriage, or track using such railway, ciously take up, remove, or displace shall be guilty of felony. . ." any rail, sleeper, or other matter or Section 36 : " Whosoever, by any thing belonging to any railway, or shall unlawful act, or by any wilful omission unlawfully and maliciously turn, move, or neglect, shall obstruct, or cause to be or divert any points or other machinery obstructed, any engine or carriage belonging to any railway, or shall un- using any railway, or shall aid or assist lawfully and maliciously make or shew, therein, shall be guilty of a misde- hide or remove, any signal or light meanour. . ." upon or near to any railway, or shall 256 CROWN CASES RESERVED. [L. H. 1870 had been placed across the rails. There was a direct obstruction, THEQUEKN which I think is within the words as well as the spirit of the MARTIN, B. If the decision of this case rested with me, I should be of opinion that there had been no obstruction within s. 36. I think that it is straining the meaning of the section to hold this to be an obstruction. The words of the section are : [the learned Judge read the section]. I think that stopping a train by changing the signals is not " to obstruct or cause to be obstructed an engine or carriage " within this section. BLACKBURN, J. Section 35 of 24 & 25 Viet. c. 97, deals with malicious obstructions to railways. [The learned Judge read the section]. The felony under this section consists not in the wrong- ful act alone, but in its being done with a malicious intent. Then comes s. 36, which creates a misdemeanour. [He read the section], Section 36 deals with an offence much less serious than that men- tioned in s. 35. The offence, under s. 36, is the unlawfully obstructing a train, not in obstructing it unlawfully with a mali- cious intent, as required by s. 35. In this case a drunken man unlawfully changed the signals. The natural result of this would be to stop the train, and to cause derangement of the whole machinery of the railway. If this is the natural result of the prisoner's act, is it not a causing a train to be obstructed ? There is nothing in s. 36 to shew that the obstruction must be a physical one. It is sufficient if a train is in fact obstructed. MELLOR, J. Section 35 defines a number of unlawful acts, including the altering of signals, which if done with a malicious intent, are felonies. Section 36 says, if " by any unlawful act " any person shall obstruct an engine, &c., he shall be guilty of a misdemeanour. I think the acts specified in s. 85 are all included in s. 36 under the terms " unlawful act," and as an actual obstruc- tion was caused in this case by one of the acts mentioned in s. 35, I think the prisoner was guilty of obstructing a train within the meaning of s. 36. MONTAGUE SMITH, J. I am of the same opinion. The words VOL. I] TRINITY TEEM, XXXIH VICT. 257 V. HADFIELD. of the section are : [the learned Judge read the section]. I think 1870 that s. 36 may be read by reference to s. 35, which assumes that THE a train may be obstructed by dealing with the signals, and as the train in this case was in fact obstructed, I think the case comes within s. 36, and that the prisoner was rightly convicted. Conviction affirmed. Attorneys for prosecution : Cunliffe & Beaumont. .THE QUEEN v. KAY. Forgery 24: & 25 Viet. c. 98, s. 24 "Warrant," "Authority," "Bequest," "for the Payment of Money " Receipt. S. 24 of 24 & 25 Viet. c. 98, enacts that, " whosoever, with intent to defraud, shall make . . . any warrant, order, authority, or request for the payment of money . . . for, in the name, or on the account, of any other person, without lawful authority or excuse, . . . shall be guilty of felony " : Held, that a document, in form a mere receipt given by a depositor to a building society that received money on deposit, might properly be described in an indict- ment as a " warrant," " authority," or " request " " for the payment of money," if, by the custom of the society, such receipts were in fact treated as warrants, authorities, and requests for the payment of money ; and, therefore, that a person forging such a receipt might be properly convicted under s. 24 of 24 & 25 Viet. c. 98, upon an indictment so describing the document'as a " warrant," " authority," or " request " " for the payment of money." | CASE stated by A. E. Adams, Q.C., Commissioner. Indictment for feloniously making, by procuration, in the name of one Susey Ambler, a security for money, to wit 4177. 13s., without lawful authority or excuse, with intent to defraud. In the second count the prisoner was charged as in the first count, except that it was stated that he made the security without the lawful authority of the said Susey Ambler. The third and fourth counts were as the first and second, except that the document was described as a " warrant." The fifth and sixth counts were as the first and second, but the document was described as an " order." The seventh and eighth counts were also as the first and second, but the document was described as an " authority for the payment of money." The ninth and tenth counts were also as the first and June 4. 258 CEOWN CASES HESEKVED. [L. B. 1870 second, but the document was described as a "request for the THE QUEEN" payment of money." In ten other counts the prisoner was charged with feloniously signing by procuration like documents as in the other counts, mutatis mutandis. The prisoner was tried at the last assizes for the West Eiding of Yorkshire, at Leeds. The document forming the subject of the indictment was in the following form : "Thornton, October, 1867. " Keceived of the South Lancashire Building Society the sum of four hundred and seventeen pounds 13s., on account of my share, No. 8071. " Pp. Susey Ambler, " 4177. 13s. " Wm. Kay." The prisoner was the local agent at Thornton of a society called "The South Lancashire Permanent Building Society," the head office of which was at Manchester. The society carried on a large business, and was in the habit of taking money on deposit for fixed periods at various rates of interest ; but, if circumstances were favourable, and the funds of the society flourishing, no objection was made to repay money lent on deposit at a date earlier than that originally agreed on, if the depositor gave one month's notice of an intention to withdraw the whole or a part of a deposit. Susey Ambler was a depositor in the society, and in August, 1866, she lent to the society, through the prisoner, 4601. for two years, at interest, and received from the prisoner a deposit note for that sum, signed by him as agent. In August, 1868, the prisoner informed Mrs. Ambler that the sum of 41?. 8s. was due to her as interest on her loan of 4607. She, however, told him that he was to pay her the 17. 8s., and put the balance (407.) to her loan account ; he then promised to do so, and obtained from her the receipt he had given her, and afterwards gave her an accountable receipt for 5007. at interest, signed by him as agent for the society. In October, 1867, the prisoner sent to the secretary of the society, at Man- chester, the document on which the indictment was founded, and at the same time forwarded his monthly statement of accounts, in which he debited himself, amongst other sums, with 7507. re- ceived from the secretary, and credited himself, amongst other VOL. I.] TRINITY TEEM, XXXHI VICT. 259 payments, with a payment to Susey Ambler, 8071, of the sum of 1870 4:171 13s. THE QUEEK The secretary of the society absconded in 1868 or 1869 ; and on examination of the accounts of the society, a large deficit was discovered. The present secretary, W. Wadsworth, was called as a witness for the prosecution, and he proved that, if a depositor at a fixed date wished to withdraw the whole or any part of his deposit, a notice of one month was required by the society's rules, but he did not know whether or not that rule had not been frequently dis- pensed with; he proved that it was the custom of the agents to write to the secretary at Manchester each month, sending in an account of the probable withdrawals of money, for which the agent had, or ought to have had, notice, and that the secretary thereupon sent down to the agent sufficient funds for that purpose ; he also proved that in the books of the society it appeared that the sum of 4:111. 13s. had been paid in October, 1867, to Susey Ambler, and produced the receipt before mentioned. He stated that he had carefully searched through the documents, but could find no order for the payment of that sum signed by S. Ambler, or any document relating to that payment, except the monthly account and the receipt ; nor could he find any letter from the agent giving notice that Susey Ambler required a return of a portion of her deposit. He stated that receipts were required, and that it was the duty of the agents not to pay without receipts, and to forward the receipts to the office, when the sums would be properly entered in the books of the society. He also proved that the prisoner was a director of the society in the years 1868 and 1869. It was objected, on the part of the prisoner, that under 24 & 25 Viet. c. 98, s. 24 (1), this indictment must fail, as the document produced was only a receipt for money paid, and as the word " receipt " was not in that section ; and that it was clear from the evidence that the money was paid to the prisoner by the secretary (1) S. 24 of 24 & 25 Viet. c. 98, enacts or request for the payment of money, that, " whosoever, with intent to de- ... by procuration or otherwise, with- fraud, shall draw, make, &c., . . . any out lawful authority or excuse, . . . undertaking, warrant, order, authority, shall be guilty of felony." 260 CROWN CASES RESERVED. [L. R. 1870 before the receipt was handed over by him. The Commissioner ~THB QuEmT declined to stop the case, on the authority of Eeg. v. RaaJce (1), Eeg. v. Ittidge (2), and Eeg. v. Pulbrook. (3) The counsel for the prisoner thereupon addressed the jury, contending that there was nothing proved which could justify them in saying that the society had ever treated such documents as anything else than simple receipts for money previously paid. The Commissioner told the jury, that if they were of opinion that the society had recognized such documents as orders, or as authorities, or requests to pay* money, they should find the prisoner guilty ; and that they might take into their consideration the fact that in this case no order or authority or request from Susey Ambler, or pretending to be signed by her, had been discovered amongst the papers of the society. The jury returned a verdict of guilty, saying, that by the custom of the society such documents were treated as "authorities to pay," and as " warrants to pay," and as " requests to pay money," but not as " orders." A verdict of guilty was then directed on the counts wherein the document was described as a " warrant," " authority," or " request." The question was, whether under the circumstances, the docu- ment in question could be held to be a " warrant," or an " autho- rity," or a " request to pay money." April 30. No counsel appeared. Cur. adv. vult. June 4. The judgment of the Court (Bovill, C.J., \Yilles, Byles, and Hannen, J J., and Cleasby, B.) was delivered by BOVILL, C.J. We are of opinion that the conviction in this case was right. The jury found that documents such as that in question were, by the custom of the society, treated as " an autho- rity to pay," as a " warrant to pay," and as " a request to pay money." We think there is no objection in law to its being so treated. In Morrison's Case (4), it was held that a pawnbroker's (1) 2 Mood. C. C. 66. (3) 9 C. & P. 37. (2) 1 Den. C. C. 404 ; 18 L. J. (4) Bell, C. C. 158 ; 28 L. J. (M.C.) (M.C.) 179. 210. VOL. L] TEINITY TEEM, XXXIII VICT. 261 ticket might be treated as a warrant for the delivery of the goods. 1870 In Allen v. The Sea, &c., Assurance Co. (1), it was held that a THE QUEEN credit note, signed by the directors and addressed to the cashier of a company, might be declared upon as a promissory note of the company; and we think that the document in this case might properly be described as a " warrant," an " authority," or " a re- quest," to pay money, and that the conviction must be affirmed. Conviction affirmed. THE QUEEN v. KILHAM. j une . False Pretences 24 & 25 Viet. c. 96, s. 88 Temporary use of Chattel. S. 88 of 24 & 25 Viet. c. 96, enacts that, " whosoever shall, by any false pre- tence, obtain from any other person any chattel, money, or valuable security, with intent to defraud, shall be guilty of a misdemeanour . . ." : Held, that " obtain " does not mean obtain the loan ofj but obtain the property in, any chattel, &c., and that to constitute an obtaining by false pretences, it is essential that there should be an intention to deprive the owner wholly of the property in the chattel, and, consequently, that obtaining by false pretences the use of a chattel for a limited time only, without an intention to deprive the owner wholly of the chattel, is not an obtaining by false pretences within s. 88 of 24 & 25 Viet. c. 96. CASE stated by the Eecorder of York. Indictment under 24 & 25 Viet. c. 96, s. 88, for obtaining goods by false pretences. The prisoner was tried at the last Easter quarter sessions for York. The prisoner, on the 19th of March last, called at the livery stables of Messrs. Thackray, who let out horses for hire, and stated that he was sent by a Mr. Gibson Hartley to order a horse to be ready the next morning for the use of a son of Mr. Gibson Hartley, who was a customer of the Messrs. Thackray. Accordingly, the next morning the prisoner called for the horse, which was delivered to him by the ostler. The prisoner was seen, in the course of the same day, driving the horse, which he returned to Messrs. Thackray's stables in the evening. The hire for the horse, amount- ing to 7s.; was never paid by the prisoner. The prisoner was found guilty. (1) 9 C. B. 574 ; 19 L. J. (C.P.) 305. 262 CEOWN CASES EESEEVED. [L. B. 1870 The question was, whether the prisoner could properly be found 8 u ^y f obtaining a chattel by false pretences within the meaning of 24 & 25 Viet. c. 96, s, 88. (1) The case of Reg. v. Boulton (2) was relied on on the part of the prosecution. The case was argued before Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B. May 7. No counsel appeared for the prisoner. Simpson, for the prosecution. The question is, whether there can be an obtaining goods by false pretences within s. 88, when the taking of the goods under similar circumstances would not be a larceny. If the prisoner in this case had simply taken the horse away without leave, for the purpose of using it during the day, there would have been no larceny, because there \vould not be any intention to deprive the owner wholly of the property. The point in this case is, whether the same principle applies to the offence of obtaining goods by false pretences. In Rex v. Cross- ley (3) it was held that obtaining a loan of money by false pre- tences was an offence under s. 53 of 7 & 8 Geo. 4, c. 29, and Patteson, J., said, " as to the money being advanced by the pro- secutor only as a loan, the terms of the Act of Parliament embrace every mode of obtaining money by false pretences, by loan as well as by transfer." In Reg. v. Boulton (2) it was held that obtaining a railway ticket by false pretences, although with the intention of giving up the ticket at the end of the journey, was an obtaining by false pretences under the same section. The authority of Reg. \. Boulton (2) was recognized in the subsequent case of Reg. v. Morrison. (4) In 1 Eussell on Crimes, however, 4th ed., p. 646, n., the very facts of the present case are put as an hypothetical case, and it is said, '/ it could hardly be contended that " the horse was obtained by false pretences, and the correctness of the decision in Reg. v. Boulton [(2) is questioned. (1) 24 & 25 Viet. c. 96, s. 88, enacts (2) 1 Den. C. C. 508 ; 19 L. J. that, " whosoever shall, by any false (M.C.) 67. pretence, obtain from any other person (3) 2 Moo. & Rob. 17, 19. any chattel, money, or valuable security, (4) Bell, C. C. 158 ; 28 L. J. (M.C.) with intent to defraud, shall be guilty of 210. a misdemeanour." VOL. I] TRINITY TEEM, XXXIII VICT. 263 [He also referred to Burn's Justice, vol. iii. p. 198, 30th ed. ; 1870 2 East, P. C. 689 ; 33 Hen. 8, c. 1 ; 30 Geo. 2, c. 24.] Tm Q~ V. Cur. adv. vult. KILHAM. June 4. The judgment of the Court (Bovill, C. J., Willes, Byles, and Hannen, JJ., and Cleasby, B.) was delivered by BOVILL, C.J. We are of opinion that the conviction in this case cannot be supported. The statute 24 & 25 Yict. c. 96, s. 88, enacts that, " whosoever shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to defraud, shall be guilty of misdemeanour." The word " obtain " in this section does not mean obtain the loan of, but obtain the property in, any chattel, &c. This is, to some extent, indicated by the proviso, that if it be proved that the person indicted obtained the property in such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted ; but, it is made more clear by referring to the earlier statute from which the language of s. 88 is adopted. 7 & 8 Geo. 4, c. 29, s. 53, recites that " a failure of justice frequently arises from the subtle distinction between ' larceny and fraud,' " and, for remedy thereof, enacts that " if any person shall, by any false pretence, obtain," &c. The subtle distinction which the statute was intended to remedy was this : that if a person, by fraud, induced another to part with the possession only of goods and converted them to his own use, this was larceny ; while, if he induced another by fraud to part with the property in the goods as well as the possession, this was not larceny. (1) But to constitute an obtaining by false pretences it is equally essential, as in larceny, that there shall be an intention to deprive the owner wholly of his property, and this intention did not exist in the case before us. In support of the conviction the case of Eeg. v. Boulton (2) was referred to. There the prisoner was in- dicted for obtaining, by false pretences, a railway ticket with intent to defrand the company. It was held that the prisoner was rightly convicted, though the ticket had to be given up at the end of the (1) See the cases on this subject ; 2 (2) 1 Den. C. C. 508 ; 19 L. J. (M.C.) Russ. ou Crimes, 200, 4th ed., and 67. note (d) p. 664. You L 20 * CROWN CASES RESERVED. [L.R. TIIE QUEEN v Kll.l! \M. 1870 journey. The reasons for this decision do not very clearly appear, but it ma y be distinguished from the present case in this respect : *kat *ke prisoner, by using the ticket for the purpose of travelling on the railway, entirely converted it to his own use for the only purpose for which it was capable of being applied. In this case the prisoner never intended to deprive the prosecutor of the horse or the property in it, or to appropriate it to himself, but only intended to obtain the use of the horse for a limited time. The conviction must, therefore, be quashed. Conviction quashed. Attorney for prosecution : Dale, York. June 4. THE QUEEN v. SVEN SEBERG. Evidence Jurisdiction Ship and Shipping Ownership of Vessel Registration Merchant Shipping Act, 1854 (17 & 18 Viet. c. 104), s. 106. On a trial for maliciously wounding on the high seas, it was stated by three witnesses that the vessel was a British ship of Shields, and that she was sailing under the British flag, but no proof was given of the register of the vessel er of the ownership : Held, that the Court had jurisdiction over the offence ; first, because the evidence was sufficient to prove that the vessel was a British vessel ; secondly, because even if it had appeared that the vessel was not registered, the Court would Btill have jurisdiction, as there is nothing in the Merchant Shipping Acts to take away that jurisdiction, and also, by reason of s. 106 of the Merchant Shipping Act, 1854, which provides that, as regards the punishment of offences committed on board such a ship, she shall be dealt with in the same manner as if she were a recognized British ship. CASE stated by Hannen, J : Indictment charging the prisoner with maliciously wounding one W. Bedlington with intent to do him grievous bodily harm. The prisoner was tried at the last spring assizes for Cornwall. The prisoner was a sailor on board the bark Statesman, and while on the high seas on a voyage from Alexandria to Falmouth he inflicted on \V. Bedlington, the mate of the vessel, a dangerous wound with a knife. The master, the boatswain, and one of the crew of the Statesman, stated that the vessel was a British ship of Shields, and that REPORTS, , 187U VOL. I.] TEINITY TEEM, XXXIII VICT. 265 she was sailing under the British flag, but no proof of the register mo of the vessel, or of the ownership, was given. THE QUEEN" It was objected on behalf of the prisoner that this evidence was v - SEBERQ. not sufficient to establish that the ship was a British ship, and that without proof of the ship having been registered as a British ship the prisoner could not be convicted. This was the question for the consideration of the Court. The jury found the prisoner guilty. May 7. No counsel appeared. Cur. adv. vult. June 4. The judgment of the Court (Bovill, C. J., Willes, Byles, and Hannen, JJ., and Cleasby, B.) was delivered by BOVILL, C.J. We think the conviction in this case was correct. The evidence was, in our opinion, sufficient to prove that the vessel was a British ship without proof of her having been registered ; and even if it had appeared that she had not been registered, we think the prisoner ought to have been convicted : first, because there is nothing in the Merchant Shipping Acts to take away the criminal jurisdiction of the Court ; and, next, by reason of the pro- vision at the end of s. 106 of the Merchant Shipping Act, 1854 (17 & 18 Yict. c. 104) (I), which provides that, as regards the punishment of offences committed on board such a ship, she shall be dealt with in the same manner as if she was a recognized British ship. The conviction will, therefore, be affirmed. Conviction affirmed. (2) (1) 17 & 18 Viet. c. 104, s. 106, national character ; "but so far as regards enacts that, " whenever it is declared the payment of dues, the liability to by this Act that a ship belonging to pains and penalties, and the punish- any person . . . qualified according to ment of offences committed on board this Act to be owner of British ships, such ship, or by any persons belonging to shall not be recognized as a British ship, her, such ship shall be dealt with in the such ship shall not be entitled to any same manner in all respects as if she benefits, privileges, advantages, or pro- were a British ship." tection usually enjoyed by British ships, (2) See Leary v. Lloyd, 3 E. & E. and shall not be entitled to use the 178 ; 29 L. J. (M.C.) 191 British flag; or assume the British 266 CROWN CASES RESERVED. [L. R. 1870 THE QUEEN v. JESSE SMITH. Receiving Stolen Goods Larceny "by Partner 24 & 25 Viet. c. 96, s. 91 31 & 32 Viet. c. 116, s. 1 Construction. 24 & 25 Viet. c. 96, s. 91, enacts that, " whosoever shall receive any chattel, . . . the stealing or taking . . . whereof shall amount to a felony, either at common law or by virtue of this Act, knowing the same to have been feloniously stolen or taken, . . . shall be guilty of felony." 31 & 32 Viet c. 116, s. 1, enacts that, "if any person, being a member of any co-partnership . . . shall steal or embezzle any money or goods ... of or belonging to sxich co-partnership, . . . every such person shall be liable to be dealt with, tried, convicted, and punished for the same, as if such person had not been or was not a member of such co-partnership " : Held, that it is not an offence, under s. 91 of 24 & 25 Vjct. c. 96, to receive stolen goods, knowing them to have been stolen, if the stealing is not a crime either at common law or under 24 25 Viet. c. 96, although the stealing is a felony under 31 & 32 Viet. c. 116, s. 1. CASE stated by A. R. Adams, Q.C., Commissioner. Indictment under s. 91 of 24 & 25 Viet. c. 96, for receiving goods, the property o.f G. Morton and another, knowing them to have been feloniously stolen. The prisoner was tried at the last assizes for the West Biding of Yorkshire, at Leeds. G. Morton was in partnership with one R. F. Martin, at Leeds, and they carried on business in that town as ironmongers, under the firm of " K. F. Martin & Co." The goods sold there were principally supplied by W. Morton, of Birmingham, trading under the firm of Haines and Morton. In consequence of certain rumours as to the solvency of his firm, G. Morton came to Leeds on the 13th of December, 1869, and made arrangements with his partner, R. F. Martin, to secure the debt due to Haines & Morton by giving a bill of sale of the goods then in the shop ; and whilst this document was being prepared G. Morton left Leeds and went to Sheffield. During his absence his partner, R. F. Martin, had interviews with the prisoner, and before the return of G. Morton, on the 14th of December, shut up the shop, and in the evening of the following day he hired drays, and in the presence of the prisoner conveyed the whole of the goods to the house of the prisoner, who apparently paid 100Z. for them to R. F. Martin; VOL. I] TRINITY TERM, XXXIII V1CT. 267 the goods were proved to be worth considerably more than 300?. mo The prisoner was aware of the intended bill of sale, and that T E. F. Martin was disposing of these goods in fraud of his partner, v - and to prevent the operation of the bill of sale. It was objected, on the part of the prisoner, that even if it were proved that R F. Martin had committed an act of felony against his partner under 31 & 32 Viet. c. 116, s. 1 (1), and that he had been guilty of larceny of the partnership goods, yet that the prisoner could not be indicted for receiving such goods, knowing them to be stolen, as that statute had not made such receiving a felony, and that under 24 & 25 Viet. c. 96, s. 91 (2), only persons who received goods, the stealing of which amounted to felony either at common law or under the provisions of that Act, could be indicted as receivers ; and as the stealing by a partner was not a larceny at common law, or under the provisions of 24 & 25 Viet. c. 96, no receiver of such goods could be indicted for a felony. The jury found the prisoner guilty of receiving the goods, knowing them to be stolen. The question was, whether the prisoner had been properly convicted. The case was argued before Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B. April 30. Waddy ( WiTberforee with him), for the prisoner. The conviction should be quashed, first, because Martin was not guilty of a felony ; secondly, because even if he was guilty of a felony, (1) 31 & 32 Yict. c. 116, s. 1, enacts such co-partnership, or one of such that, " if any person, being a member of beneficial owners." any co-partnership, or being one of two (2) 24 & 25 Viet. c. 96, s. 91 : or more beneficial owners of any money, " Whosoever shall receive any chattel, goods, or effects, bills, notes, securities, money, valuable security, or other pro- or other property, shall steal or em- perty whatsoever, the stealing, taking, bezzle any such money, goods, or effects, extorting, obtaining, embezzling, or bills, notes, securities, or other property otherwise disposing whereof shall of or belonging to any such co-partner- amount to a felony, either at common ship, or to such joint beneficial owners, law or by virtue of this Act, knowing every such person shall be liable to the same to have been feloniously be dealt with, tried, convicted, and stolen, taken, extorted, obtained, em- punished for the same, as if such person bezzled, or disposed of, shall be guilty had not been or was not a member of of felony . . ." 268 CROWN CASES RESERVED. [L. B. 1870 the receipt of the goods by the prisoner is not an offence under THE QcEKjT 8l 91 f 24 & 25 Viet. c. 96. Martin's offence is only criminal by * 31 & 32 Viet. c. 116, s. 1. This section renders him liable to be SMITH. dealt with as a felon, but does not make him a felon. The goods, therefore, were not feloniously stolen, and the prisoner was wrongly convicted. Secondly, even if Martin did feloniously steal the goods, still the prisoner cannot be convicted under s. 91 of 24 & 25 Viet. c. 96, because that section only applies to the receipt of goods, the stealing of which amounts to a felony " either at common law or by virtue of this Act." The fraudulent taking of partner- ship goods by one of two partners is not a crime either at common law or by 24 & 25 Viet. c. 96, and therefore the case does not come within s. 91. No question can at present arise as to the prisoner's liability as an accessory, because he is not indicted as such. [He referred to Dwarris on Statutes, 634-5, and Rex v. Handy. (1)] Campbell Foster, for the prosecution. 24 & 25 Viet. c. 96, s. 91, extends to the case of goods stolen by a partner. 31 & 32 Viet. c. 116, does not create any new offence, it only alters a technical rule respecting the effect of the joint ownership of property. The stealing of goods is a felony at common law, but one of several joint owners of goods taking the goods could not be convicted of this felony. 31 & 32 Viet. c. 116, abolishes this rule as to joint ownership ; and a joint owner is now in the same position in this respect as a mere stranger, and may bis convicted of stealing goods in which he has a joint property. The offence of which he may be thus convicted is not a new one created by the statute, but an old common law offence, and therefore within the meaning of a 91 of 24 & 25 Viet. c. 96. Cur. adv. vuU. June 4. The judgment of the Court (Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B.) was delivered by BOVILL, C.J. The prisoner was convicted for feloniously re- ceiving stolen goods, knowing them to have been stolen, contra formam statuti. There was no count charging the prisoner as ac- cessory either before or after the fact. The statement of facts shews (1) 6 T. R. 286. VOL. L] TRINITY TEEM, XXXin VICT. 269 evidence of a receipt of goods stelen by one partner of the firm, mo with knowledge of their being stolen. It farther states facts which THE QUEEN might, perhaps, have been relied on to sustain a charge of being a simple accessory to the felony if the indictment had contained a count to that effect. We must, however, deal with the only ques- tion raised, viz., whether the conviction upon the special charge of feloniously receiving stolen goods can be sustained. Section 91 of 24 & 25 Viet. c. 96, creates the felony charged in these terms : " Whosoever shall receive any chattel, &c., the stealing, &c., whereof shall amount to a felony either at common law or by virtue of this Act, knowing the same to have been feloniously stolen, &c., shall be guilty of felony, and may be indicted and convicted either as an accessory after the fact or for a substantive felony, and shall be liable, at the discretion of the Court, to a maximum sentence of fourteen years penal servitude." At the time that Act (24 & 25 Yict. c. 96) was passed theft by a partner of the goods of the firm did not fall within the criminal law, either common or statute. This defect was supplied by 31 & 32 Viet. c. 116, which, after reciting that " it is expedient to provide for the better security of the pro- perty of co-partnerships and other joint beneficial owners against offences by part owners thereof, and further to amend the law as to embezzlement," proceeds to enact, by the first section, that if a partner, or one of two or more beneficial owners, shall steal, &c., any property of such co-partnership or such joint beneficial owners? " every such person shall be liable to be dealt with, tried, convicted, and punished for the same as if such person had not been or was not a member of such co-partnership, or one of such beneficial owners." This enactment is, therefore, limited in words to the fraudulent partner, and does not directly extend to third persons who deal with the property, though in collusion with such partner. In order to reach such persons either the law as to accessories must be resorted to, or it must be shewn that 24 & 25 Viet. c. 96, s. 91, is extended by implication to, and is to be read as incorporated in, 31 & 32 Viet. c. 116. As to the law of accessories we do not suggest any doubt that if a statute creates a felony or misdemeanour, it by implication for- bids counselling, aiding, or abetting the offence. This is now provided for in language strongly contrasting with that of 24 & 270 CROWN CASES RESERVED. [L. R. 1870 25 Viet. c. 96, s. 91, as to felony by 24 & 25 Viet. c. 94, s. 1, that "THE QuEBjT *' whosoever shall become an accessory before the fact to any felony, v - whether the same be a felony at common law or by virtue of any Act passed or to be passed, may be indicted, tried, convicted, and punished in all respects as if he were a principal felon." The case of accessories after the fact is provided for in like prospective terms by s. 3. Also as to misdemeanours by s. 8 : " whosoever shall aid, abet, counsel, or procure the commission of any misde- meanour, whether the same be a misdemeanour at common law, or by any Act passed or to be passed, shall be liable to be tried as a principal offender." And apart from these enactments, the com- mon law would have supplied a remedy, though without the statu- tory facilities of procedure. As already pointed out, however, the conviction of the prisoner is not as of a simple accessory, whether before or after the fact ; and it cannot be sustained upon that footing. The question, therefore, depends upon whether 24 & 25 Viet. c. 96, s. 91, is extended by inference or implication to the present case; if not, the conviction was wrong, because at the common law receivers of stolen goods, unless they likewise received and harboured the thief, were guilty of a bare misde- meanour, for which they were liable to fine and imprisonment ; Foster's Crown Law, p. 373 ; and there could not be a conviction for a misdemeanour upon the present indictment for felony. The subject of extending statutes by inference, to include cases not originally contemplated, is one which has given rise to several decisions, the leading characteristic of which is, that the earlier statute deals with a genus within which a new species is brought by a subsequent Act. Thus, choses in action were not originally within 13 Eliz. c. 5, against fraudulent conveyance, that statute being applicable only to property which could be taken in execution : Sims v. Thomas (1) ; but as to choses in action made subject to execution by 1 & 2 Viet. c. 110, there can be no doubt that by the conjoint operation of that Act and the 13 Eliz. c. 5, such choses in action having become, by new enactment, a species of the genus property subject to execution, did, without any express enactment to that effect in the later statute, become subject to the (1) 12 A. & E. 536. IiKPORXS. ,v, 1S70. VOL. I.] TRINITY TERM, XXXIII VICT. 271 operation of the former Act : Norcutt v. Dodd (1) ; Barrack v. 1870 MeOutioch. (2) So that, if 24 & 25 Viet. c. 96, s. 91, is to be read as a general enactment, that for the future any person receiving goods stolen with a guilty knowledge that they were stolen, should be liable to be indicted for felony as a receiver, the subsequent statute having introduced a new species of larceny, it might have been contended that the general provision as to receiving in the former statute was by inference extended to the new species of larceny. There are, however, several difficulties in the way, upon the construction of 24 & 25 Viet. c. 96, of arriving at that result : first, the express words of s. 91, "either at common law or by virtue of this Act ;" secondly, the fact that the statute, in pari materia, as to accessories, does expressly refer to Acts to be passed ; thirdly, the character of the extending enactment, 31 & 32 Viet. c. 116, which deals not so much with property or acts of a parti- cular species, as with a class of persons whom it specifies, and against whom only it is in terms directed, viz , partners and part owners, so that the effect is to create a new class of offenders ; fourthly, the rule peculiarly applicable to the elaborate criminal legislation of which the statute under consideration forms a part, against extending penal enactments by construction. This latter rule may be illustrated by reference to the statute 31 Eliz. c. 12, s. 5, which took away clergy from an accessory in horse stealing, upon which it was held that the enactment extended only to such persons as were in judgment of law accessories at the time the Act was made, viz., accessories at common law, and not to such as are made accessories by subsequent statutes ; and, therefore, a person knowingly receiving a stolen horse, though made an accessory by subsequent statutes, was held not to be ousted of clergy by the statute of Elizabeth : Foster's Crown Law, p. 372. Upon these grounds we think the statute 24 & 25 Viet. c. 96, s. 91, cannot be extended by construction, so as to include a receiver of property stolen by a partner, so as to make such receiver liable in the discretion of the Court to the graver punishment of fourteen years penal servitude thereby imposed, as the prisoner would be if * (1) Cr. & Phill. 100. (2) 3 K. & J. 110; 26 L. J. (Ch.) 105. VOL. I. 2 P 4 272 CROWN CASES RESERVED. [L. K. 1870 this conviction were sustained a circumstance which makes the THE QXJEES authority cited from Foster especially applicable. The conviction S&UTH must > therefore, be quashed. Conviction quashed. Attorneys for prosecution: Williamson, Hill, & Co., for Bond & BarwicJc, Leeds. Attorney for prisoner : A. BiUington, Leeds. June 11. THE QUEEN v. JOHN DAVIS. Evidence Onus of Proof Receiving Stolen Goods Previous Conviction Habitual Criminals Act (32 & 33 Viet. c. 99), s. 11 Construction. 32 & 33 Viet. c. 99, s. 11, enacts, that when any person who has been previously convicted of certain specified offences " is found in possession of stolen goods, evi- dence of such previous conviction shall be admissible as evidence of his knowledge tbat such goods have been stolen ;" and in proceedings against such person as receiver of stolen goods, proof may be given of his previous conviction, " provided that not less than seven days' notice shall be given to such person that proof is intended to be given of his previous conviction, and that he will be deemed to have known such goods to have been stolen until he has proved the contrary " : Held, on an indictment for receiving stolen goods, that service of a notice under this section and proof of a previous conviction does not relieve the prosecution from the necessity of proving that the prisoner knew that the goods had been stolen. CASE stated by H. S. Giffard, Q.C., Commissioner. Indictment for receiving stolen goods, knowing them to be stolen. The prisoner was tried at the last spring assizes for Glamorgan- shire. At the trial a notice under s. 11 of 32 & 33 Viet. c. 99 (1), was (1) 32 & 33 Viet. c. 99, s. 11, enacts of his knowledge that such goods have that, " where any person, who either been stolen ; and iu any proceedings before or after the passing of this Act, that may be taken against him as re- has been previously convicted of any ceiver of stolen goods, or otherwise in offence specified in the first schedule relation to his having been found in hereto " [which includes larceny], . . . possession of such goods, proof may be " is found in the possession of stolen given of his previous conviction before goals, evidence of such previous con- evidence is given of his having been viction shall be admissible as evidence found in possession of such stolen goods ; VOL. I.] TEINITY TERM, XXXIII YICT. 273 proved to have been duly served upon the prisoner, and also that 1870 V. DAVTS. in the year 1867 the prisoner had been convicted of larceny, and THE QCEEX that he had received the goods which were the subject of the indictment, and that those goods were stolen. The jury were told that the legislature must be taken to have intended that the notice should have the operation which, upon the face of it, it purported to have, and that the prisoner ought to be deemed to have known such goods to have been stolen until he proved the contrary. The jury found the prisoner guilty. The question was, whether the direction to the jury was right. June 4. No counsel appeared. June 11. THE COURT (Kelly, C.B., Martin, B., Blackburn, Mellor, and Montague Smith, JJ.) held that the conviction must be quashed. Conviction quashed. provided that not less than seven days' notice shall be given to such person that proof is intended to be given of his .previous conviction, and that he will be deemed to have known such goods to have been stolen until he has proved the contrary. . ." END OF TRINITY TERM, 1870. VOL. I. 2Q 274 [L. E. CASES DETERMINED BY THE COUKT FOR CROWN CASES RESERVED MICHAELMAS TEEM, XXXLV VICTOEIA. 1870 THE QUEEN v. JAMES WARBURTON. Nov. 12. Conspiracy Agreement to Commit Civil Wrong Fraud on Partner in taking Accounts on Dissolution of Partnership. A fraudulent agreement by a member of a partnership with third persons, wrongfully to deprive his partner by false entries and by false documents of all interest in some of the partnership property on taking accounts for the division of the property on the dissolution of the partnership, is a conspiracy, although the offence was completed before the passing of 31 & 32 Viet. c. 116, by which a partner can be criminally convicted for feloniously stealing partnership property. CASE stated by Brett, J. : Indictment, amongst other counts, that the prisoner had unlaw- fully conspired with one Joseph Warburton, and one W. H. Pepys, by divers subtle means and devices to cheat and defraud the pro- secutor, S. C. Lister. At the trial at the summer assizes, in 1870, for the West Hiding of Yorkshire, at Leeds, it was found that the prisoner and Lister were in 1864 in partnership, and carried on a part of the partner- ship business at Urbigau, in Saxony, by there selling patent machines, that the prisoner had given notice according to the terms of the partnership agreement for a dissolution of the part- nership between himself and Lister ; and that upon such dissolution an account was to be taken according to the partnership agreement of the partnership property, and that according to it such property would be divided on such dissolution in certain proportions between VOL. I.] MICH. TEEM, XXXIV VICT. 275 the prisoner and Lister after payment of partnership liabilities ; 1870 and that the prisoner, in order to cheat Lister, had agreed with his THE QUEEN brother Joseph Warburton, who managed the partnership business .\VABBURTON at Urbigau, and with Pepys, who resided at Cologne, to make it appear by documents, purporting to have passed between Pepys and Joseph Warburton, and by entries in the partnership books or accounts, made under the superintendence of Joseph Warburton, that Pepys was a creditor of the firm for moneys advanced ; and that, by reason of such documents and entries, certain partnership property was to be withdrawn and to be handed to Pepys or other- wise abstracted or kept back so as to be divided between the prisoner and Joseph Warburton and Pepys, to the exclusion of Lister from any interest or advantage in or from or in respect of it. The jury, upon this evidence, found the prisoner guilty of the conspiracy charged, and rightly so found if in point of law such an agreement made by a partner with such an intent to defraud his partner of partnership property and to exclude him entirely from any interest in or advantage from it on such an occasion, that is to say, on the taking of an account for the purpose of dividing the partnership property on a dissolution of the partnership, by means of false entries in the partnership books, and false documents pur- porting to have passed with a supposed creditor of the firm, is a conspiracy for which a prisoner can be criminally convicted. The offence, if it were one, was fully completed before the passing of 31 & 32 Viet. c. 116, by which a partner can be crimi- nally convicted for feloniously stealing partnership property. The question for the opinion of the Court was whether the verdict could be sustained so as to support a conviction for con- spiracy in point of law. Waddy (Wliiiaker with him) for the prisoner. To constitute a conspiracy there must be an agreement to do an illegal act or to do a legal act by illegal means. (1) Here the acts agreed upon, although doubtless immoral, are not illegal. If the agreement had been carried out, the prisoner could not have been sued at law by Lister, nor could he have been indicted for doing the agreed (1) See Eussell on Crimes, 4th ed. vol. iii. p. 116. L>:<; CROWN CASES RESERVED. [L. 17. 1870 acts: Lindley on Partnership, 2nd ed. vol. ii. p. 850. It is not an J HE QCEEN indictable offence for one partner to obtain some of the partnership W \BBt-BToy mone y from the other partners by means of a fraudulent misstato- ment of existing facts: Reg. v. Evans. (1) The acts contemplated by the agreement were, therefore, neither actionable nor criminal. [CoCKBURN, C. J. Even assuming that no action or indictment would lie for such acts, the acts are wrongful nevertheless, and there is a remedy, viz., by proceedings in equity.] An act which merely gives a right to proceed in equity is not an illegal act within the meaning of the definitions of conspiracy. Maude, Q.C. (Nathan with him), for the prosecution, was not called upon. COCKBURN, C.J. It has been doubted sometimes whether the law of England does not go too far in treating as conspiracies agreements to do acts which, if done, would not be criminal offences. This question does not, however, arise here, as no one would wish to restrict the law so that it should not include a case like the present. It is sufficient to constitute a conspiracy if two or more persons combine by fraud and false pretences to injure another. (2) It is not necessary in order to constitute a conspiracy that the acts agreed to be done should be acts which if done would be criminal. It is enough if the acts agreed to be done, although not criminal, are wrongful, i.e., amount to a civil wrong. Here, there was undoubtedly an agreement with reference to the division of the partnership property or of the partnership profits. It is equally clear that the agreement was to commit a civil wrong, because the agreement was to deprive the prisoner's partner by fraud and false pretences of his just share of the property or profits of the partnership. A civil wrong was therefore intended to Lister. The facts of this case thus fall within the rule that when two fraudulently combine, the agreement may be criminal, although if the agreement were carried out no crime would be committed, but a civil wrong only would be inflicted on a third party. In this case the object of the agreement was, perhaps, not criminal. It is not necessary to decide whether or not it was criminal ; it (1) Leigh & Cave, 252 ; 32 L. J. (M.C.) 33. (2) See Russell on Crimes, 4th ed. vol. iii. p. 110. VOL. I.] MICH. TERM, XXXIV VICT. 277 was, however, a conspiracy, as the object was to commit a civil 1S70 wrong by fraud and false pretences, and I think that the conviction ^ HE Q UEEN should be affirmed. * \\ ARBUBTON. CHANNELL and CLEASBY, BB., KEATING and BRETT, JJ., con- curred. Conviction affirmed. Attorneys for prosecution : Wilson, Bristows & Carpmael. Attorneys for prisoner : Pitman & Lane, for Ferns, Leeds. END OF MICHAELMAS TERM, 1870. VOL. I. 2 R CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IX HILARY TEEM, XXXIV VICTORIA. 1871 THE QUEEN v. HARDY. Jan - 2I - Obstructitm of Train 21 & 25 Viet. c. 97, s. 36 Making Signals. 24 & 25 Viet. c. 97. s. 36, enacts that, " whosoever by any unlawful act, or by any wilful omission or neglect, shall obstruct, or cause to be obstructed, any engine or carriage using any railway .... shall be guilty of a misdemeanour." The prisoner, who was not a servant of the railway company, stood on a railway between the two lines of rails, at a point between two stations. As a train was approaching he held up his arms in the mode used by inspectors of the line when desirous of stopping a train between two stations. This, as the prisoner intended that it should, caused the driver to shut off steam and diminish the speed, and led to a delay of four minutes : Held, that the prisoner had obstructed a train within the meaning of 24 & 25 Viet. c. 97, s. 36. CASE stated by Keating, J. Indictment under 24 & 25 Viet. c. 97, s. 36, that the prisoner " by a certain unlawful act, to wit, by unlawfully interfering with and changing, and by making and shewing certain signals upon a certain railway to wit, &c., unlawfully and wilfully did obstruct, and cause to be obstructed, an engine and carriages then using the said railway against the statute, &c." *' Second count, that the prisoner did " unlawfully and wilfully obstruct and cause to be obstructed an engine and carriages then using the said railway against the statute, &c." The prisoner was tried on the 26th of July, 1870. At 10 A.M. on the 24th of May, 1870, the defendant requested TOL. I] HILARY TERM, XXXIV VICT. 279 the signal man at the Luton Station, on the Midland Bail way, to stop the goods train then coming towards it, on its way to Leagrave, two and a half miles nearer to Bedford, to which latter place lie was anxious to proceed in order to catch a passenger train. The signal man refused to do so, and referred him to the station-master, who also gave a like refusal. The defendant then proceeded along the line towards Leagrave 700 or 800 yards and on the goods train approaching him, having passed the Luton Station, lie placed himself on the space between the two lines of railway, -and held up his arms in the mode used by inspectors of the line when desirous of stopping a train between two stations. The defendant knew that his doing so would probably induce the driver >to stop or slacken speed, and his intention was to produce that effect. The driver, supposing him to be an inspector, shut off steam, diminishing the speed gradually from twenty to four miles an hour, and the defendant, when the train came up at that speed, jumped into the guard's van, and the train, without actually stopping, proceeded onward towards Leagrave at its usual pace. The delay caused by shutting off the steam and diminishing the speed was about four minutes, and the station-master stated that if the goods train had not on that occasion been before its usual time, the delay of four minutes would have obliged him to stop the next passenger train if punctual to its time. No actual delay in that respect, however, took place. The defendant was a season ticket holder, but had no right as such to travel in a goods train. The jury found the prisoner guilty. The question was whether the facts as stated amounted to an obstruction within the meaning of s. 36 of 24 & 25 Viet. c. 97. (1) 1871 THE QUEEN v. HAEDY. (1) S. 35 of 24 & 25 Viet. c. 97, enacts that " whosoever shall unlaw- fully and maliciously put, place, cast, or throw upon or across any railway -any wood, stone, or other matter or thing, or shall unlawfully and mali- ciously take up, remove, or displace -any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or shew, hide or remove any signal or light upon or near to any railway, or shall unlawfully and mali- ciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using such railway, shall be guilty of felony. . . ." S. 36 : " Whosoever by any uulaw- R 2 4 280 CROWN CASES RESERVED. [L. R. 1871 The case was argued before Bovill, C.J., Willes and fiannen, JJ. r THE Qt-EBN Channell and Pigott, BB. No counsel appeared for the prisoner. G. G. MerewetJier, for the prosecution. This Court has decided in Eeg. v. Hadfield (1), that an obstruction under s. 36 of 24 & 25 Viet. c. 97, need not be an actual physical obstruction ; and therefore in that case it was held that the prisoner who had stopped a train by altering the signals at a station from " all clear " to " danger," and " caution," was rightly convicted of an obstruction under this section. This section, which makes it a misdemeanour to obstruct a train, uses only the general words " by any unlawful act." But s. 35. whicli makes a similar obstruction felony, if done maliciously, mentions a number of specific acts. And these are all included under the words "unlawful act" in s. 36; Eeg. v. Hadfield. (1) Then s. 35 uses the words expressly, " make or shew, hide or remove any signal or light." The only distinction between this case and Eeg. v. Hadfield (1) is that there the prisoner altered a fixed signal, here he made a signal with his arms. But this is making a signal within the meaning of the Act. It is a signal according to the popular use of language. And the case shews that it is the mode of signalling in ordinary use between two stations, as the fixed signal is used at stations. BOVILL, C.J. There can be no doubt in this case that the prisoner did in fact make a signal, namely, by holding up his arms in the mode used by inspectors of the line when desirous of stopping a train between two stations; or that he did thus obstruct the train, for the driver shut off steam and diminished the speed of the train from twenty to four miles an hour ; or that the prisoner did what he did with the intention of producing this result. We have to consider whether this is such an obstruction as is contem- plated by s. 36 of 24 & 25 Yict. c. 97. The first question is whether the section applies to anything except a mere physical obstruction. If it had spoken of obstructing ful act, or by any wilful omission or therein, shall be guilty of a misde- neglect, shall obstruct, or cause to meanour " be obstructed, any engine or carriage (1) Ante, p. 253. using any railway, or shall aid or assist VOL. I] HILAEY TEEM, XXXIV VICT. 281 the line of railway, it might have been limited to physical ob- 1871 structions. But the words are " obstruct any engine or carriage." TUK QUEEN And further the section speaks not only of obstruction " by any unlawful act," but also of obstruction " by any wilful omission or default." These latter words are probably directed to the case of a servant of the company delaying a train by wilfully omitting some act which it is his duty to do; and they must include -something beyond mere physical obstruction. But all doubt is removed when we refer to s. 35. That section makes it felony to do certain acts maliciously and with intent to obstruct. It enumerates first a number of acts which would no doubt amount to a physical obstruction of the line itself, such as placing wood or stones across the railway, displacing the rails, or altering the points. Then follow the words " shall unlawfully and maliciously make or shew, hide or remove any signal or light upon or near to any railway;" and then the general words "shall unlawfully and maliciously do or cause to be done any other matter or thing with intent, &c." Now it is quite clear that the making or altering of a signal need not necessarily create any physical obstruction ; and it is therefore clear that the word obstruct in s. 35 is not limited to physical obstruction. I should have said the same of s. 36, even if it had stood alone. But plainly the same word must have the same meaning in both sections; and therefore s. 36 applies .to other than physical obstructions. Secondly, I think that each of the things specifically mentioned in s. 35 is included under the general words " any unlawful act " in s. 36. And as the prisoner's act is within the terms of s. 35, he was properly convicted. The case of Eeg. v. Hodfield (1) proceeded upon the same principle. It is true that in that case an actual fixed signal was altered ; but the Act says expressly " shall make any signal," and the cases are therefore not distinguishable. WILLES and HANNEN, JJ., CHANNELL' and PIGOTT, BB., -concurred. Conviction affirmed. Attorneys for prosecution : Beale, Marigold, & Beale. (1) Ante, p. 253. 2S2 CROWN CASES RESERVED. [L. U71 THE QUEEN v. SAMUEL HARRIS AND HENRY COCKS. Nuisance Indecently exposing the Person Public place Urinal. The prisoners were convicted of indecently exposing their persons in a open to the public, which stood on a public footpath in Hyde Park, and the entrance to which was from the footpath : Held, that the jury might well find the urinal to be a public place, and that r therefore, the conviction was good. Reg. v. Orchard (3 Cox Grim. C. 248), observed upon. CASE stated by the Assistant Judge of the Middlesex Sessions. Indictment for a nuisance by indecently exposing the person and committing acts of lewdness in an open and public place. The prisoners were tried on the 23rd of November, 1870. It was proved that, complaints having been made to the polica of practices at a urinal, two police constables in plain clothes were directed to watch the place, and on the 10th of October they found the two prisoners in the urinal. They were standing facing each other ; but on seeing the officers, each retired into a compartment in the urinal. The police officers went to the further end of the- urinal where there were openings enabling them to see into the- urinal ; they then saw Harris leave the compartment which he- had previously entered and go to the compartment in which Cocks was. Cocks turned round, and the prisoners exposed their persons and committed acts of lewdness. The urinal is open to the public, and is situate in Hyde Park near to a lodge the window of which on a first floor commands a view of the urinal, the distance between the lodge and the urinal being 14 feet 6 inches. The urinal is approached by a gate opening from the public footpath, and there is also access to it by another gate communi- cating with a small garden belonging to the lodge. The jury found the prisoners guilty. The question was whether, in point of law, the conviction could be sustained. The case was argued before Bovill, C.J., "NVilles and Hannen, JJ.,. Channell and Pigott, BB. TOL. L] HILAEY TEEM, XXXIV YICT. 283 H. Giffard, Q.C. (Ribton with him), for the prisoners. The 1871 conviction cannot be sustained. To make the acts of the prisoners " TnE Q CEEN ~ a criminal offence, they must have been done in an open and .. v - r HARRIS. public place. It is not every place to which the public have the right of access that is an open and public place in this sense, but the place must be open to public view ; otherwise bathing on the most unfrequented spot of the sea-shore would be an offence. And Reg. v. Orchard (1) expressly decides that inasmuch as the very purposes for which a urinal is set apart necessarily involve some exposure of the person, it cannot be a public place in such a sense as to make an indecent exposure of the person there a nuisance. On the authority, therefore, of that case, there was no evidence in the present case to go to the jury. In Sir Charles Sedleijs Case (2), the defendant exposed his person so as to be visible from a public market, and all the other cases in which a conviction has been upheld are upon the same principle. Harris, for the prosecution, was not called upon. BOVILL, C.J. If all the facts in Eeg. v. Orchard (1) had been set out, and the view of the learned judge clearly stated in the report of the case, it might have been some authority for our guidance. But, upon any view of it, I do not think that it applies to the present case. The indictment is for exposing the person and committing acts of lewdness in an open and public place. If the judge was bound to tell the jury that a urinal could not be such a place, of course the conviction was wrong and must be set aside, but not otherwise. Now, it appears that the urinal was open to the public ; that it was in Hyde Park, upon a public footpath ; and that the entrance to it was from that footpath. I think it was just as much a public place, with respect to that portion of the public who use it, as a public highway. Every place must be more or less screened from view on some side, and the size of an inclo- sure does not necessarily affect the question whether it is a public place or not. We are only bound to decide whether this could be a public place. But I think it clearly was so ; and just the sort of public place to which the law ought to be applied. (1) 3 Cos Grim. C. 248. (2) 1 Sid. 168. 284 CROWN CASES RESERVED. [L. R. WILLES and HANNEK, JJ., CHANNELL and PIGOTT, BB., coi> curred. ]i A r ,' BIg< Conviction affirmed. Attorneys for prosecution : Allen & Sons. Attorney for prisoner : Edward Lewis. THE QUEEN v. HARVEY. Jan. 2t. Coining Having possession of Coining Tools Lawful Authority or Excuse 24 & 25 Viet. c. 99, s. 24 Felony Guilty Intent. 24 & 25 Viet. c. 99, s. 24, enacts that " whosoever without lawful authority or excuse (the proof whereof shall lie on the party accused), shall knowingly make or meiid, or begin or proceed to make or mend, or buy or sell, or have in his custody or possession," any die impressed with the resemblance of either side of any current coin, shall be guilty of felony. Indictment under this section that the prisoner " knowingly and without lawful excuse feloniously " had in his possession dies impressed with the resemblance of the sides of a sovereign. The prisoner ordered dies, impressed with the resemblance of the sides of a sovereign, of the maker. The maker gave information to the police, who commu- nicated with the authorities of the Mint. The latter authorities, through the police, gave the maker permission to give them to the prisoner. He did so, and they were found in the prisoner's possession : Held, first, that it was necessary in the indictment to negative lawful authority or excuse, notwithstanding that the burden of proof lay upon the accused : secondly, that the word " excuse" includes "authority," and therefore the indict- ment was good : thirdly, that there was no evidence to go to the jury of lawful authority or excuse : fourthly, that the prisoner being knowingly in possession of the dies, had a sufficient guilty knowledge to constitute felony, whatever his intention as to their use might be. CASE stated by Bramwell, B. Indictment under 24 & 25 Yict. c. 99, s. 24, that the prisoner " knowingly and without lawful excuse feloniously " had in his custody and possession a die impressed with the resemblance of the obverse side of a sovereign. Second count : for having possession of a die for the reverse side of a sovereign. The prisoner was tried at the last Winter Commission for Warwick. VOL. I.] HILARY TERM, XXXIV VIC I. 285 It was proved that the prisoner ordered of a die-sinker two 1871 dies having an apparent resemblance to the two sides of a sovereign ; THE QUEEW that they were made for him and paid for by him ; that he received them from the maker ; and that when taken into custody thev Avere found on him. *> Besides other evidence, the following was given : The maker of the dies said, that on the order being given he communicated with the police, with a police-officer named Glossop. On cross-examination he said, " Two days after the prisoner came I told the police. They said they would inform the people in London. Glossop told me to go on. I obtained permission of Manson (another police-officer) or Glossop to give them to the prisoner. I should not have given them up without that per- mission." A police-officer deposed : " Glossop was spoken to first, and spoke to me. I communicated with Gem. He is an attorney, and conducts this case. I have received communications from Gem. Gem told me he had communicated with the Mint in London. Bartrarn had his orders from Glossop. I gave Bartram permission to give the dies to the prisoner. This was in consequence of orders from London." It was contended that the judge ought to rule, or leave to the jury to say that this constituted lawful cause or excuse. It was also contended that the prisoner ought not to be convicted unless he had a guilty mind, and that if he had no guilty intention in reference to the possession and use of the dies (as to which there was evidence both ways) he was not guilty, and that this ought to be left to the jury. It was further contended that the indictment was bad, on the ground that it did not negative lawful authority as well as lawful excuse. The judge refused to direct an acquittal, or to leave to the jury any other questions than whether the dies were found on the prisoner, and whether they had an apparent resemblance to the two sides of a sovereign. The jury found the prisoner guilty. The question was, whether the judge ought to have ruled that the prisoner had, or left it to the jury to say if the prisoner had, 28C CROWN CASES RESEEVED. [L. I?. 1871 lawful authority or excuse, or ought to have left to the jury the THE QUEEN question of whether he had a guilty intention in reference to the ., v " possession or use of these dies ; and whether the indictment was HAUVEV. bad. The case was argued before Bovill, C. J., Willes and Hannen, J J., Channell and Pigott, BB. Dugdale, for the prisoner. The indictment is bad. The offence onsists in having possession of coining tools " without lawful autho- rity or excuse." (1) And the indictment negatives only excuse. An indictment must negative all the exceptions contained in the same section which creates the offence, per Bailey, J. ; Steel v. Smith. (2) The earlier enactment, s. 10 of 2 Wm. 4, c. 34, spoke of the two offences separately which in the present section are treated together. It made it felony to make without authority, or to have possession without excuse. But now both authority and excuse apply to each offence, and the words cannot be without meaning. [PiGOTT, B. Can you suggest an authority which would not be an excuse? WILLES, J. Excuse is either an authority or a reasonable belief in authority.] The indictment must in every case follow the statute. In Lemlro v. Hamper (3), an indictment for perjury was held bad because it omitted the word voluntarie. In Rex v. Davis (4), under the Black Act, which made it felony " wilfully and maliciously " to shoot at any person, an indictment which used the words " unlawfully, maliciously, and feloniously " was held bad. Under (1) 24 & 25 Yict.c.99, s. 24, enacts that, to make or impress, the figure, stamp, "whosoever without lawful authority or apparent resemblance of both or or excuse (the proof whereof shall lie either of the sides of any of the Queen's on the party accused), shall knowingly current gold or silver coin, or of any coin make or mend, or begin or proceed to of any foreign prince, state, or country, make or mend, or buy or sell, or have or of any part or parts of both or either of in his custody or possession, any pun- such sides, shall in England and cheon, counter puncheon, matrix, Ireland be guilty of felony " stamp, die, pattern, or mould, in or (2) 1 B. & A. 94, 99. upon which there shall be made or im- (3) Cro. Eliz. 147. pressed, or which will make or impress, (4) 1 Leach, C. C. 493. or which shall be adapted and intended VOL. I.] HILAEY TERM, XXXIV VICT. 287 a statute which used the words " wilfully and maliciously," the words " feloniously, voluntarily, and maliciously," in the THE QUEEN indictment, were held insufficient in Eex v. Turner (1); and , * HAKVEY. under a statute which used the words "unlawfully and mali- ciously," the words " feloniously, wilfully, and maliciously," in Bex v. Ryan. (2) Secondly, the evidence shews that the authorities of the Mint authorized the maker of the dies to deliver them to the prisoner ; he therefore had possession of them by lawful authority. Reg. v. Bannen (3), which will be cited on the other side, is no authority on the point. That was an indictment for making a die; the prisoner employed a die sinker to make the die ; the maker com- municated with the authorities of the Mint, and under their directions made the die for the purpose of detecting the prisoner. The question was whether the prisoner could be convicted as a principal ; and it was held that, having acted through an innocent agent, he could. The question did not and could not arise whether he had lawful authority or excuse to possess. Thirdly, there cannot be a felony without a guilty mind, and aa the case states that on this point there was evidence both ways, the question ought to have been left to the jury. The word " feloniously " is necessary in an indictment for felony : Hawkins P. C., Bk. 2, c. 25, s. 55 ; Reg. v. Gray. (4) And, this being so, the word must have a meaning. Felony must be " felleo animo perpetratum :" Co. Litt. 391 a. ; Jacob's Law Diet. sul. we. In Reg. v. Sleep (5) Cockburn, C.J., says, " To constitute an offence there must be a guilty mind." J. C. Carter, for the prosecution. The indictment is good. It is true that the words " without lawful authority or excuse " occur in the same section which creates the offence. But as the burden of proof is expressly thrown on the accused, they are rather of the nature of a proviso than an exception. The only reason why a pro- viso need not be negatived is because the proof lies on the accused. But, even if it be otherwise, the word excuse includes authority. (1) 1 Moo. C. C. 239. L. J. (M.C.) 78. (2) 2 Moo. C. C. 15. (5) Leigh & Cave, C. C. 44, 54 ; 30- (3) 2 Moo. C. C. 309. L. J. (M.C.) 170, 173. (4) Leigh & Cave, C. C. 365 ; 33 288 CROWN CASES RESERVED. [L. R. 1871 Equivalent words are always sufficient. In Grevil's Case (1) the ^THB QCBBN words of a statute were " shall command, hire or counsel ;" and the HARVEY indictment, which charged that the accused " excitavit, movit, et procurabat," was held good. In Elswortlis Case (2) the words of the statute were, " shall falsely make, forge, or counterfeit," and the indictment, which charged the prisoner with " falsely making, forging, and adding, &c.," was held good. Secondly, the prisoner had no lawful authority or excuse for his possession of the dies. Reg. v. Bannen (3) is an authority to this effect. There, as here, the innocent agent was authorized to do what he did, and there was as much an authority to the accused to make in that case as to possess in this. Thirdly, the intention of the prisoner as to the use of the die is no ingredient in the offence : Bell's Case. (4) BOVILL, C.J. The first question is as to the sufficiency of the indictment. To make an indictment good under the section in question, it must sufficiently describe that which is made an offence by the section ; and that is, not simply having possession of coining tools, but having them " without lawful authority or excuse." It is true there are words throwing upon the accused the burden of shesving lawful authority or excuse ; but these words only alter the rules of evidence, they do not alter the rule as to the description of the offence in an indictment. It being necessary, then, to negative "lawful authority or excuse," the words of the present indictment are, " without lawful excuse," nothing being said of authority. If the word " excuse " necessarily includes authority, the indictment will be good ; if not, it will be bad. Under the older Act, 2 Will. 4, c. 34, s. 10, two distinct offences were mentioned separately, namely, making or mending coining tools without lawful authority, and having pos- session of them without lawful excuse. In the present Act the two offences are spoken of together, and the words " without lawful authority or excuse " applied to the whole. This is sufficient to account for the introduction of both words without supposing that in the case of possession both are necessary ; and we have been (1) 1 And. 194. (3) 2 Moo. C. C. 309. (2) 2 East, P. C. 98G. (4) Foster's C. L. 430. VOL. I.] HILAEY TEEM, XXXIV VICT. 289 unable to conceive any case in which there could be a lawful 187 authority, which was not also a lawful excuse. We must therefore hold that the word " excuse " includes authority, and the indict- ment is sufficient. The second question is, whether there was any evidence to go to the jury of lawful authority or excuse. The only evidence was that the maker of the dies had permission from the authorities of the Mint to deliver them to the prisoner. In this they only allowed the prisoner to carry out his original intention, whatever that might be ; they gave him no authority to have the dies in his possession. I think, therefore, there was no evidence to go to the jury of lawful authority or excuse. It was further argued that a guilty mind or guilty intention was necessary to the offence ; and that the judge ought to have left a question as to intent to the jury. But there is nothing in the Act to make the intent any part of the offence. I agree that under the word " feloniously " a guilty knowledge must be shewn ; that is to say, that the accused must have knowingly done that which is made an offence by the Act. What it was here suggested ought to have been left to the jury was the prisoner's intention as to the use of the dies. And that has nothing to do with the offence. WILLES and HANNEN, JJ., CHANNELL and PIGOTT, BB., con- curred. Conviction affirmed. Attorney for prosecution : The Solicitor io the Treasury. Attorney for prisoner : /. M. Green, for E. Parry, Birmingham. CROWN CASES RESERVED. [L. R. 1871 THE QUEEN v. HENRY DUNNING. Jan. 21. Perjury Indictment Substance of the Offence charged Averment of Jurisdic- tion 2Z Oeo. 2, c. 11, s. 114 & 15 Viet. c. 100, . 20. An indictment for perjury stated the offence to have been committed on the trial of " a certain indictment for misdemeanour " at the quarter sessions for the county of Salop ; but it did not state what the misdemeanour was, nor that the quarter sessions had jurisdiction to try it : Held, that the indictment was good. CASE stated by Pigott, B. Indictment for perjury, that " heretofore, to wit, at the general quarter sessions of the peace of our sovereign lady the Queen, holden for the county of Salop, on the 28th day of June, A.D. 1870, at the shirehall in Shrewsbury, in the said county, before Sir Baldwin Leighton, Bart., Sir William Curtis, Bart, and others their associates, her Majesty's justices of the peace, assigned to keep the peace in the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdemeanours in the same county done and committed, a certain indictment for misdeameanour, in which John Davies of the Bull's Head, Lawley Bank, in the said county, was the prosecutor, and Isaac liowlands and John Davies were the defendants, came on to be tried in due form of law, and was then and there tried by a jury of the county in that behalf, duly sworn between the parties aforesaid, upon which said trial Henry Dunning appeared as a witness for and on behalf of the said J. E. and J. D., the defendants in the indictment aforesaid, and was then duly sworn and took his corporal oath upon the Holy Gospel of God before the said Sir B. L., Bart, Sir W. C., Bart., and others their associates, so being such justices as aforesaid, that the evidence which he the said H. D. should give to the Court there .and the said jury so sworn as aforesaid touching the matter then in question between the prosecutor in the said indictment and the defendants therein should be the truth, the whole truth, and nothing but the truth." Then followed averments of materiality, that the said Henry Dunning, falsely, &c., deposed and swore, &c. Whereas, &c. (here followed the negatives and the formal con- clusion that Henry Dunning so committed perjury.) VOL. I] HILARY TERM, XXXIV VICT. 291 The prisoner was tried at the last assizes for the county of Salop. 1871 It was proved that the indictment on the trial of which the perjury 'f UE Q UEEX was committed was for an offence against the person under s. 20 v - DUNNING. of 24 & 25 Viet. c. 100. At the conclusion of the case for the prosecution it was objected by counsel for the prisoner that the indictment was bad in not stating what the misdemeanour was, or that it was one triable at quarter sessions. The prisoner was found guilty. The question was, whether the indictment was good. Nov. 12. The case was argued before Kelly, C.B., Channell and Cleasby, BB., Keating and Brett, JJ. Evelyn Asliley, for the prisoner. The indictment is bad, for it does not shew that the quarter sessions had jurisdiction to try the misdemeanour, on the trial of which the perjury is alleged to have been committed. It neither states what the misdemeanour was, so as to enable the Court to see as matter of law that there was jurisdiction ; nor does it aver jurisdiction. It is true that by 23 Geo. 2, c. 11, s. 1 (1), and 14 & 15 Viet. c. 100, s. 20 (2), merely formal averments are unnecessary, and that jurisdiction (1) 23 Geo. 2, c. 11, s. 1, enacts whom the perjury was committed ; that, " In every information or indict- any law, usage or custom, to the tnent to be prosecuted against any contrary notwithstanding." person for wilful and corrupt perjury, (2) 14 & 15 Viet. c. 100, s. 20, it shall be sufficient to set forth the enacts that, " In every indictment for substance of the offence charged upon perjury, or for unlawfully, wilfully, the defendant, and by what Court, or falsely, fraudulently, deceitfully, mali- before whom the oath was taken [aver- ciously, or corruptly taking, making, ring such Court, or person or persons, signing, or subscribing any oath, affir- to have a competent authority to ad- mation, declaration, affidavit, deposi- minister the same], together with the tion, bill, answer, notice, certificate, or proper averment or averments to falsify other writing, it shall be sufficient to the matter or matters wherein the per- set forth the substance of the offence jury or perjuries is or are assigned ; charged upon the defendant, and by without setting forth the bill, answer, what Court or before whom, the oath, information, indictment, declaration, or affirmation, declaration, affidavit, de- any part of any record or proceeding, position, bill, answer, notice, certificate, either in law or equity, other than as or other writing, was taken, made, aforesaid ; and without setting forth signed, or subscribed, without setting the commission or authority of the forth the bill, answer, information, in- Court, or person or persons lefore dictment, declaration, or any jart of 202 CROWN CASES RESERVED. [L. R. 1871 need not be averred in express terms. But the substance of the THE QUEKX offence charged must be set forth, and it goes to the substance of DUNKING tne ff ence tna t tne Court should have authority to administer the oath taken ; the indictment must therefore shew this in substance : Stedman's Case (1) ; Bex v. Cattanan (2) ; Bex v. Dowlin (3) ; Lavey v. The Queen (4) ; Reg. v. Fellowes. (5) The same prin- ciple has been applied with respect to materiality : Bex v. Dowlin (3), Beg. v. Harding (6) ; and as to other offences besides perjury : Beg. v. Philpotts. (7) The statement that the indict- ment came on to be tried " in due course of law " is not sufficient to shew jurisdiction : Beg. v. Overton. (8) No counsel appeared for the prosecution. Cur. adv. vult. Jan. 21. The judgment of the Court, prepared by Brett, J., was delivered by CHANNELL, B. In this case the prisoner was tried and convicted at the last summer assizes held at Shrewsbury before Pigott, B., for perjury, committed on the trial at the general quarter sessions of the peace for the county of Salop, of an indictment for misdemeanour against Isaac Eowlands and John Davies, for an offence against the person of John Davies, under s. 20 of 24 & 25 Viet. c. 100. The case at the trial was fully proved in every necessary par- ticular; but it was objected on behalf of the prisoner, and has been argued before us, that the indictment was bad in form, and that the judgment should therefore be arrested, and the conviction quashed. The objection taken at the trial was, that the indict- ment did not state what the misdemeanour was which was alleged to have been tried at the quarter sessions, or aver that it was one triable at quarter sessions, that is, in other words, did not aver that the court of quarter sessions had jurisdiction to try the mis- demeanour. This objection, when developed in argument before any proceeding, either in law or in (3) 5 T. R. 311. equity, and without setting forth the (4) 17 Q. B. 496. commission or authority of the Court (5) 1 C. & K. 115. or person before whom such offence (6) 8 Cox, Grim. C. 99. was committed." (7) 1 C. & K. 112. (1) Cro. Eliz. 137. (8) 4 Q. B. 83. (2) 6 B. & C. 102. VOL. L] HILAEY TEEM, XXXIV VICT. 293 us, seemed to fall into two objections ; first, that the indictment 1871 did not set forth the substance of the offence charged upon the THE QIEEK defendant ; and, secondly, that it did not expressly aver or shew by p * necessary inference that the Court before which the false oath was taken had a competent authority to administer the same. As to the first objection, the indictment alleges that at the general quarter sessions " a certain indictment for misdemeanour " came on to be tried in due form of law, in which one Davies was prosecutor and Eowlands and Davies were defendants, and was then and there tried by a jury, &c., and that the prisoner appeared as a witness upon the said trial, and was then duly sworn, &c. The indictment then sets out the matter sworn to by the prisoner, avers its materiality, and negatives its truth and truthfulness. The objection taken is that it does not state the subject-matter of the indictment for misdemeanour which was tried at the sessions. But that seems rather to point out an alleged defect in not stating the substance of the offence charged against the defendants who were tried at the sessions, than a defect in not stating the sub- stance of the offence charged against the defendant tried at the assizes. The substance of the offence charged against him is that in a judicial proceeding he swore to the truth of certain facts which are set forth, which at the time of so swearing he knew to be false. " All that it is necessary to state," says Buller, J., in Bex v. Dowlin (1), " is that there was a certain cause, &c., and that it came on to be tried in due form of law," &c. It is true, as pointed out by the counsel for the defendant, that in that case it was alleged that one Kimber was tried upon a certain indictment for murder, &c., but it seems to us that neither Lord Kenyon nor Buller, J., relies upon the presence of the words " for murder," in stating the proposition of law, but they mention them only in their relation of the actual facts of the case. In the case of Bex v. Callanan (2) all that was stated was the substance of what the defendant swore, and that he did so upon affidavit before a commissioner. The indictment did not state the cause for or in respect of which the affidavit was made. Yet Abbott, C J., says that it sets forth the substance of the matter sworn, using that expression as equivalent to the substance of the offence charged (1) 5 T. R. 311, at p. 320. (2) 6 B. & C. 102. VOL. I. 2 S 4 294 CROWN CASES RESERVED. [L. K. 1871 upon the defendant, and holding the case to be consequently THE QUEEN within the statute 23 Geo. 2, c. 11. In Lavey v. The Queen (1) r> the objection taken was that it was not shewn that the county DUNNING. J court had jurisdiction over the suit in which the alleged false oath was taken, because the nature of the suit was not sufficiently described. " It was argued," says Parke, B., in the judgment, " that in setting forth the substance of the offence it was not sufficient to state the substance of the matter sworn to, and aver that it was false, and to allege the authority of the judge to administer the oath." But the indictment was nevertheless held to be sufficient on the ground that it appeared that there was a judicial proceed- ing, and that the defendant was sworn, and stated certain matters which were false, and that the judge had power to administer the oath. The ground of decision is that the substance of the offence charged upon the defendant sufficiently appeared, and that the Court had competent authority to administer the oath. These cases seem to us to be authority for the correctness of the suggestion we have made as to the meaning and construction of the statute, and for holding that in the present case the substance of the offence charged against the defendant sufficiently appears. As to the second point, if the case had depended upon the Statute 23 Geo. 2, c. 14, we should have probably thought that the indictment was insufficient. That statute was passed in order to obviate difficulties in the form of indictments for perjury. It states what it shall be sufficient to set forth, namely, the substance of the offence charged upon the defendant, and by what Court or before whom the oath was taken, " averring: [it says] such Court or person or persons to have a competent authority to administer the same" with the proper averment or averments to falsify the matter charged, &c., without setting forth, &c. After that statute the question treated by the Courts in every case was whether an indictment contained the averments mentioned in the statute or their equivalents. If it did it was good without more. But then by Statute 14 & 15 Vic. c. 100, passed to relax still further technical forms of indictments, it is enacted in s. 20 that "in every indictment for perjury, &c., it shall be sufficient to set forth (1) 17 Q. B. 496. VOL. I.] HILAEY TERM, XXXIV VICT. 295 the substance of the offence charged upon the defendant, and by 1871 what court, or before whom the oath was taken, &c., without THE QUEEN setting forth, &c." It is almost identical in terms with s. 1 of the 23 Greo. 2 c. 11, except that it omits the words " averring such Court or person or persons to have a competent authority to ad- minister tlie same" This omission seems to us conclusively to shew the intention of the legislature, that this allegation, or its equivalent, in the indictment, is a technical strictness which may well be dispensed with, the matter of it being left for proof at the trial. Having then determined that the substance of the offence charged against the defendant is in the present indictment suffi- ciently stated, we are of opinion that the indictment contains every averment required by s. 20 of 14 & 15 Vic. c. 100, and is there- fore by the express terms of the section sufficient, although it does not contain any express or equivalent averment that the Court had competent authority to administer the oath. We are, therefore, finally of opinion that the indictment was sufficient, and that the conviction in this case was right, and must be affirmed. Conviction affirmed. Attorney for prisoner: A. D. Smith, for Walker, Wellington, Salop. THE QUEEN v. EDWIN COOKE. Jan. 28. Larceny Obtaining Money by False Pretences Master and Servant Mis- appropriation of Money by Servant. A servant, whose duty it was to pay his master's workmen, and for this purpose to obtain the necessary money from his master's cashier, fraudulently represented to the cashier that the wages due to one of the workmen were larger than they really were, and so obtained from him a larger sum than was in fact necessary to pay the workmen. He did this intending at the time to appropriate the balance to his own use. Out of the sum so received he paid the workmen the wages really due to them, and appropriated the balance to his own use : Htld, that whether the obtaining of the money in the first instance was larceny or obtaining money by false pretences, the money while it remained in the pri- soner's custody was the property and in the possession of the master, and there- fore the misappropriation of it by the servant was larceny. CASE stated by the Chairman of the Worcestershire Quarter Sessions. 296 CROWN CASES RESERVED. [L. R. 1871 Indictment for larceny. THE QUEEN The prisoner was tried on the 2nd of January, 1871, for stealing COOKE certain moneys belonging to his master, one George Hands. The said George Hands was a currier, at Kidderminster, and in the habit of employing several workmen in his said business. The prisoner was in and before the month of November, 1870, and continued until the early part of the following month to be, a servant of the said George Hands, being employed at a weekly salary, as a confidential foreman over the workmen. It was part of the duty of the prisoner to engage and dismiss the workmen, as occasion required, and he generally, but not invariably, consulted his master as to such engagement and dismissal, and as to the amount of wages at which such workmen were to be engaged. The workmen were engaged at so much a week for ordinary time, and they were to be paid after the same proportionate rate for any overtime. A wages book was kept at the master's counting- house, and was given out to the prisoner on the morning of every Saturday (which was the pay-day for the workmen), in order that he might enter on a pay-sheet in the book the names of the several workmen who had been employed during the week, and set opposite to each person's name the amount due to him for wages. When this was done, the prisoner, according to the usual practice, brought back the book to the counting-house and gave it to the master's cashier, who generally shewed it to the master. The several sums entered in the pay-sheet were then added up, and the total amount paid by the cashier to the prisoner, whose duty it would be to pay thereout to the several workmen their respective wages. Among the workmen so employed under the prisoner in the month of November, 1870, was a man named Williams, who had been en- gaged by the prisoner at 24s. a week for ordinary time (overtime, if any, to be paid for in addition at the same proportionate rate). During the week ending the 12th of November, 1870, Williams had worked overtime, and the wages due to him for that week, calculated at the rate of 24s. a week, amounted to the sum of 11. 8s. and no more. The prisoner, however, had before this time, fraudulently represented to his master that Williams had been engaged at the rate of 26s. a week, and in the pay-sheet for the week ending the 12th of November, 1870, he VOL. I.] HILARY TERM, XXXIV VICT. 297 fraudulently set opposite the name of Williams, instead of the sum 1871 of II. 8s. the correct amount due to him, the sum of 17. 10s. 4d., THE QCEEK being in fact the amount that Williams would have been entitled to if he had been engaged at the rate of 26s. instead of 24s. a week. The total amount of the wages in the pay-sheet for that week, including the sum of 11. 10s. 4d., so represented to be due to Williams, was the sum of 21?. 18s., and the cashier, in ignorance of the fraud practised by the prisoner, and believing that the pay- sheet was correct, on the same 12th of November, paid to the pri- soner, out of his master's moneys, the sum of 211. 18s., in order that he might by means thereof pay the several workmen men- tioned in the pay-sheet the wages due to them respectively. And the prisoner was not authorized, either by his master or by the cashier, to apply any part of such moneys for any other purpose. After so obtaining the sum of 211. 18s. from the cashier, on the same day the prisoner paid thereout to Williams the sum of \l. 8s., being the correct amount of the wages due to him, and fraudu- lently appropriated thereout to his own use the sum of 2s. 4d., being the excess of the sum represented in the pay-sheet to be due to Williams, over the sum actually due, and the prisoner intended, at the time when he obtained the money from the cashier, to appropriate this excess to his own use, and to defraud his master of the same. The appropriation of this excess of two shillings and fourpenoe was the subject of the first count of the indictment, on which the prisoner was tried. It was objected by the counsel for the prisoner that, even if the above facts were proved, the offence of the prisoner was not a felony, but that of obtaining money by false pretences. The prisoner was found guilty. The question was whether the prisoner, on the foregoing state of facts, was properly found guilty of felony. The case was argued before Bovill, C.J., Willes and Hannen, JJ., Channell and Pigott, BB. Streeten (JeTfwith him), for the prisoner. The prisoner was not properly convicted of larceny; his offence was only obtaining money by false pretences. The distinction between the t\vo 298 CROWN CASES RESERVED. [L. R. 1871 offences is clearly pointed out by Talfourd, J., in White v. THE QIKKN Garden (1) : " There is a very obvious distinction between the Cooks cases of goods obtained by felony, and fraud or false pretences. In the one case the owner of the goods has no intention to part with his property; in the other he has." And Parke, B., in Powell v. Hoyland (2), says: "If a person, through the fraudu- lent representations of another, delivers to him a chattel, intend- ing to pass the property in it, the latter cannot be indicted for larceny, but only for obtaining the chattel under false pretences." The law is laid down in similar terms in 2 East. P. C., p. 816 ; 2 Russell on Crimes, 4th ed. pp. 200, 201 ; Archbold, Criminal Pleading, 16th ed. p. 312. And this distinction is a material one : per Bovill, C. J., Reg. v. Prince. (3) In the present case the cashier, who was the prosecutor's agent for this purpose, parted with the property. The test is, whether there was any intention to retain a control over the money or that it should come back to the master's hands. And this there was not. Reg. v. Thompson (4) is expressly in point. In that case the prisoner was clerk to the prosecutors, and it was his duty to ascertain each day the amount of dock and town dues payable upon their goods during the day, to obtain the amount from the cash-keeper, and to pay it over to the persons entitled. On one occasion he fraudulently represented the amount payable to be larger than it really was, obtained the larger amount from the cash-keeper, and appropriated the differ- ence ; and it was held that his offence was obtaining money by false pretences, not larceny. The earlier cases, WiteheWs Case (5), and Reg. v. Leonard (6), are to the same effect. The prisoner having obtained the money, and with an existing fraudulent in- tent, the misappropriation took place then, and his offence was completed. Nothing that took place afterwards can constitute larceny. There can be no larceny without a trespass ; and if there was any trespass here, it could only have been at the time of first obtaining the money. Here, too, as in Reg. v. Thompson (4), it would be impossible to specify the money stolen. Therefore a (1) 10 C. B. 919, at p. 927. (4) Leigh & Cave, C. C. 233 ; 32 (2) 6 Ex. 67, at p. 70. L. J. (M.C.) 57. (3) Ante, p. 150, 154. (5) 2 East. P. C. 630. (6) 1 Den. C. C. 304. VOL. I] HILAKY TERM, XXXIV VICT. 299 larceny cannot be proved. The statute as to fraudulent misappro- 1871 priation by bailees (1) has no application to the case. There is no THE Q- EEN bailment unless the property is to be returned, and to be returned in specie : Reg. v. Hassall. (2) A bailment is there expressly defined by Cockburn, C.J., as "a deposit of something to be returned in specie." (3) J. 0. Griffits and Montague Williams, for the prosecution, were not called upon. BOVILL, 0. J. The point submitted to us is whether in this case there was any evidence to go to the jury of a larceny. The objec- tion was, that even if the facts, as stated, were proved, the offence of the prisoner was not a felony, but that of obtaining money by false pretences. What, then, are the facts ? [His Lordship stated the facts as already set out.] Now, it is expressly stated that the prisoner, after receiving 21Z. 18s. of his master's money, paid thereout certain moneys on his master's account, and " fraudulently appropriated thereout to his own use the sum of 2s. 4d." Thus the whole foundation of one of Mr. Streeten's arguments fails. He says the jury could not find that the particular moneys intrusted, or any particular moneys, were appropriated. The case states otherwise. It steers clear of the difficulties which have arisen in some cases, such as Eeg. v. Thompson (4), inasmuch as the misapplication is found to have been of a portion of the very moneys delivered to the prisoner. It was next contended that the manner in which the prisoner obtained the 21Z. 18s. was an obtaining the money by false pre- tences, but did not amount to larceny. If this had been the only circumstance in the case, the question would have had to be deter- mined, and it would have been a question for the jury. (1) 24 & 25 Viet. c. 96, s. 3, enacts victed thereof upon an indictment for that, " whosoever, being a bailee of any larceny. . . ." chattel, money, or valuable security, (2) Leigh & Cave, C. C. 58; 30 shall fraudulently take or convert the L. J. (M.C.) 175. same to his own use, or the use of any (3) Leigh & Cave, C. C. at p. 63 ; 30 person other than the owner thereof, L. J. (M.C.) at p. 176. although he shall not break bulk or (4) Leigh & Cave, C. C. 233; 32 otherwise determine the bailment, shall L. J. (M.C.) 57. be guilty of larceny, and may be con- 300 CROWN CASES RESERVED. [L. R. 1871 But, after the money was handed over, whose property was it ? THB QCEEK I think the evidence shews it was the master's ; and, if so, at com- ^^ mon law, the possession was the master's too. A servant and a bailee at common law are in a different position ; for a bailee has the possession of the goods intrusted to him, a servant only the custody. A servant could therefore be indicted for stealing the things in his custody, but in his master's possession. Difficulties arose, it is true, in cases where the servant received property from a third person, and appropriated it to his own use before it ever came into the hands of his master or of any fellow-servant for him. And hence the statutes as to embezzlement were passed. But in all other cases the offence was larceny at common law, as in Eeg. v. Watts. (1) So in this case the money, while in the prisoner's hands, was clearly his master's money at the time of the mis- appropriation, and it was in the constructive possession of the master. The misappropriation of it was, therefore, larceny. Even if the prisoner had anything more than the bare custody of the money as a servant, it is difficult to see why he did not hold it as a bailee within the meaning of the section which has been referred to. But this it is unnecessary to decide. The decision in Eeg. v. Thompson (2) went entirely upon the question whether there was a larceny in the obtaining of the money in the first instance. The point was not considered whether the subsequent misappropriation was larceny, nor was any question raised as to the Act relating to fraudulent bailees. The present case is not governed by it, but falls within the decision in Reg. v. Goode (3), and other similar cases. WILLES and HANNEN, JJ., CHANNELL and PIGOTT, BB., con- curred. Conviction affirmed. Attorney for prosecution : B. Hunt, for Miller Corbet, Kidder- minster. Attorney for prisoner: Dimsdale, for H. Saunders, Kidder- minster. (1) 2 Den. C. C. H. (2) Leigh & Cave, C. C. 233 ; 32 L. J. (M. C.) 57. (3) Car. & M. 582. TOL. I.] BILAEY TEEM, XXXIV VICT. 301 THE QUEEN v. JOHN AEDLEY. 1871 Cltaining Money under False Pretences Misrepresentation of Quality Specific ^ an - 31 - Fact. The prisoner induced the prosecutor to purchase a chain from him by fraudu- lently representing that it was 15-carat gold, when, in fact, it was only of a quality a trifle better than 6-carat, knowing at the time that he was falsely representing the quality of the chain as 15-carat gold : Held, that the statement that the chain was 15-carat gold, not being mere exaggerated praise, nor relating to a mere matter of opinion, but a statement as to a specific fact within the knowledge of the prisoner, was a sufficient false pretence to sustain an indictment for obtaining money under false pretences. Reg. v. Bryan (Dears. & B. C. C. 265) distinguished. CASE stated by the Chairman of Quarter Sessions for the County Palatine of Durham. Indictment for obtaining 51. and an Albert chain of tho value of 7s. 6d. by false pretences. The prisoner was tried on the 2nd of January, 1871. The material facts were as follows : The prisoner went into the shop of the prosecutor, who was a watchmaker and jeweller, and stated that he was a draper, and was 51. short of the money required to make up a bill, and asked the prosecutor to buy an Albert chain which he (the prisoner) was then wearing. The prisoner said, "It is 15-carat fine gold, and you will see it stamped on every link. It was made for me, and I paid nine guineas for it. The maker told me it was worth 51. to sell as old gold." The prosecutor bought the chain, relying, as he said, on the prisoner's statement, but also examining the chain, and paid 51. for it, and gave also to the prisoner in part payment a gold Albert chain valued at 7s. 6d. The prisoner's chain was marked " 15 ct." on every link, and in a very short time after- wards he (the prisoner) was apprehended, and then wore another Albert chain of a character similar to that sold to the prosecutor, this also being marked "15 ct." on every link. It was proved that " 15 ct." was a Hall-mark used in certain towns in England, and placed on articles made of gold of that quality, and that chains when assayed are generally found to be one grain less than the mark, exceptionally two grains. The chain bought by the VOL. I. 2 T 4 302 C1JQWN CASES RESERVED. [L. R. 1871 prosecutor was assayed and found to be of a quality a trifle better THE QUEEN than 6-carat gold, and of the value in gold of 21. 2s. 9d. It was ABDLET proved that had it been 15-carat gold it would have been worth 51. 10s. Adding the charge for what is called " fashion " or " make," and the price of a locket attached, the chain bought by the prosecutor would be sold for 31. Os. 3d., but had it been 15-carat it would have been sold for 9?. There were no drapery goods or anything connected with such trade found on the prisoner, but when arrested he had in his possession a licence to sell plate, two watches, two white metal watch-guards, and the chain obtained from the prosecutor. The chairman was asked by the counsel for the prisoner to stop the case, on the authority of Reg. v. Bryan (1), but declined to do so, and left the case to the jury, who found the prisoner guilty, and said they found that the prisoner knew he was falsely repre- senting the quality of the chain as 15-carat gold. The question was, whether or not the prisoner was rightly convicted of obtaining money under false pretences. The case was argued before Bovill, C.J., Willes and Byles, JJ., Channell and Pigott, BB. John Edge, for the prosecution. The contention for the prisoner is, that the representation that the chain was 15-carat gold was a mere representation of quality, and that, on the authority of Reg. v. Bryan (1), such a representation cannot be the subject of an indict- ment. But the representation here was not one merely as to quality ; it was as to the species of the article. In Reg. v. Dundas (2) blacking of inferior quality was represented to be "Everett's Premier " blacking ; and, that being a well-known article of com- merce, it was held that the misrepresentation was indictable. The present case is exactly similar ; 15-carat gold is a known and specific article. Even if this be not so, Reg. v. Bryan (1) is not an authority for any proposition so wide as that a misrepresenta- tion of quality cannot be indictable. In that case the prisoner represented certain plated spoons to be equal to "Elkington's A.," when in fact they were of inferior quality ; and it was held that the conviction could not be supported. But the ground was that (1) Dears. & B. C. C. 265. (2) 6 Cox Crim. C. 380. VOL. I.] HILARY TERM, XXXIV VICT. 303 the representation was not of any specific fact, but mere puffing 1871 and statement of matter of opinion : per Erie, J. (1) The dis- THE QCEEH tinction between knowledge and opinion is fully pointed out in 2 Kussell on Crimes, p. 664-5, 4th ed., editor's note. And wherever there is a misrepresentation of a specific fact within the knowledge of the maker, there is a criminal offence : Eeg. v. Goss (2) ; Reg. v. Woolley. (3) Thus in Eeg. v. Jessop (4) the prisoner was con- victed for representing a II. note to be a 51. note. In Eeg. v. Roebuck (5) the fraud consisted in representing a chain to be of silver when, in fact, it was base metal. In Eeg. v. Stevens (6) bars of worthless metal were represented to be ingots of silver. In Reg. v. Abbott (7) and Reg. v. Goss (2) the fraud consisted in shew- ing false tasters, representing them to have been taken from cheeses which the prisoners were selling, though really taken from other cheeses. In almost all of these cases the representations related to the quality of goods. The fact that the representations were made in the course of a bargain for sale does not make them the less a criminal offence : Eeg. v. Kenrick (8) ; Eeg. v. Bryan, per Crowder, J. (9) No counsel appeared for the prisoner. Greenhow, amicus curia?, referred to Eeg. v. Eidgway. (10) BOVILL, C.J. The question which we have to consider in this case is, whether there was evidence to go to the jury on which they could find the prisoner guilty of obtaining money under false pretences. I think there clearly was evidence ; and that it would have been quite impossible for the learned chairman with any propriety to stop the case. There were, in addition to the repre- sentations as to the quality of the gold, distinct statements of matters of fact, and there was evidence of the falsehood of these statements. The prisoner stated that he was a draper, and was 51. short of the money required to make up a bill. But there were no drapery goods, nor anything connected with such trade, found on (1) Dears. & B. C. C. at p. 278. (6) 1 Cox Grim. C. 83. (2) Bell C. C. 208 ; 29 L. J. (M.C.) (7) 1 Den. C. C. 273. 86. (8) 5 Q. B. 49. (3) 1 Den. C. C. 559. (9) Dears. & B. C. C. 265, at p. 279. (4) Dears. & B. C. C. 442. (10) 3 F. & F. 838. (5) Dears. & B. C. C. 24. 304 CROWN CASES RESERVED. [L. R. 1871 the prisoner, but when arrested he had in his possession a licence THE QCEEN to sell plate, two watches, two white metal watch-guards, and the ARDLEY chain obtained from the prisoner ; and he wore another Albert chain of a character similar to that sold to the prosecutor, this also being marked 15-carat gold on every link. Looking, therefore, at the whole of the evidence, there is sufficient ground on which the finding of the jury may be supported and the conviction sustained. But the jury have further found that the prisoner, when he represented the chain to be 15-carat gold, knew this representation to be false. And the question whether the conviction can be sup- ported upon that finding alone stands upon a somewhat different footing. The cases have drawn nice distinctions between matters of fact and matters of opinion, statements of specific facts and mere exaggerated praise. It is difficult for us, sitting here as a Court, to determine conclusively what is fact and what is opinion, what is a specific statement and what exaggerated praise. These are questions for the jury to decide. And the prisoner has this addi- tional security, that the jury have to consider not only whether the statements made are statements of fact, but also whether they are made with the intention to defraud. The case which has been most pressed upon us is Reg. v. "Bryan. (1) The representation in that case was, that certain plated spoons were " equal to Elkington's A." Prima facie, that representation would seem to be a mere matter of opinion, and the Court held that it was not sufficient to support the conviction. But many of the judges expressed the opinion that there might well be cases in which misrepresentations, though as to quality, would be within the statute. Cockburn, C. J., says (2) : " If the person had represented these articles as being of Elkington's manufacture, when in point of fact they were not, and he knew it, that would be an entirely different thing." Pollock, C.B , says (3) : ' I think if a tradesman or a merchant were to concoct an article of merchandise expressly for the purpose of deceit, and were to sell it as and for something very different even in quality from what it was, the statute would apply." It is plain that these learned judges considered that a specific representation of quality, (1) Dears. & B. C. C. 265. (2) Dears. & B. C. C. at p. 271. (3) Dears. & B. C. C. at p. 272. VOL. I.] HILARY TEEM, XXXIV VICT. 305 if known to be false, would be within the statute. Coleridge, J. (1 ), 1871 expressly concurs in the observations of Pollock, C.B. Erie, J., at THEQCEEN the close of his judgment (2), says : " No doubt it is difficult to draw the line between the substance of the contract and the praise of an article in respect of a matter of opinion; still it must be done, and the present case appears to me not to support a convic- tion, upon the ground that there is no affirmation of a definite triable fact in saying the goods were equal to Elkington's A., but the affirmation is of .what is mere matter of opinion, and falls within the category of untrue praise in the course of a contract of sale, where the vendor has in substance the article contracted for, namely, plated spoons/' Crompton, J. (2), also considered that the statute applies " when the thing sold is of an entirely different description from what it is represented to be." Willes, J., who dissented from the judgment of the Court, goes the whole length of saying that a representation as to quality, if known to be false, is enough to support a conviction. And Bramwell, B., leans to the same opinion. Applying these observations to the present case, the statement here made is not in form an expression of opinion or mere praise. It is a distinct statement, accompanied by other circumstances, that the chain was 15-carat gold. That statement was untrue, was known to be untrue, and was made with intent to defraud. How does that differ from the case of a man who makes a chain of one material and fraudulently represents it to be of another ? There- fore, whether we look at the whole of the evidence, or only at that which goes to the quality of the chain, the conviction is good. The case differs from Reg. v. Bnjan (3), because here there was a statement as to a specific fact within the actual knowledge of the prisoner, namely, the proportion of pure gold in the chain. WILLES, J. I am of the same opinion. In Reg. v. Bryan (3) Erie, J., and several other judges said that if the prisoner had said that the spoons were Elkington's A., instead of that they were equal to Elkington's A., the conviction would have been good. Here the prisoner stated that the chain was 15-carat gold. (1) Dears. & B. C. C. at p. 273. (2) Dears. & B. C. C. at p. 278. (3) Dears. & B. C. C. 265. VOL, I. 2 U 4 306 CEOWN CASES EESEEVED. [L. K. 1871 BYLES, J. I am of the same opinion. In so deciding we do "THE QUEEN llot at a ^ infringe the principle acted upon in Eeg. v. Bryan. (1) . v - That case was governed by the maxim, " Simplex commendatio non obligat." In this case there was a specific statement that the buyer was getting 15 carats of pure gold when in fact he was only getting six. CHANNELL, B. I am of the same opinion. And I so decide on the ground that the chairman was not bound by the authority of Eeg. v. Bryan (1) to withdraw the case from the jury. PIGOTT, B. I am of the same opinion. I, too, do not wish to bring mere exaggerated commendation within the criminal law. Conviction affirmed. Attorneys for prosecution : Shum & Grossman. (1) Dears. & B. C. C. 265. END OF HILAEY TERM, 1871. VOL. H 307 CASES DETERMINED BY THE COUKT FOR CROWN CASES RESERVED IX EASTEE TEEM, XXXIV VICTOEIA. THE QUEEN v. JOHN CHILD. 1871 Malicious Injury to Property Setting Fire to Goods in a Building 24 & 25 -^" Viet. c. 97, s. 7. By 24 & 25 Viet. c. 97, s. 7, whosoever shall unlawfully and maliciously set fire to any matter or thing being in, against, or under any building, under such circumstances that if the building were thereby set fire to the offence would amount to felony, is guilty of felony. The prisoner, from illwill and malice against a person lodging in a house, made a pile of her goods on the stone floor of the kitchen, and set fire to them, under such circumstances that the house would almost certainly have been burned had not the police extinguished the fire before the house was actually ignited. The judge at the trial told the jury, that if the house had caught fire from the burn- ing goods, the question whether the offence would have amounted to felony, would have depended upon whether such a setting-fire to the house would have been malicious and with intent to injure, so as to bring the case within 24 & 25 Viet. c. 97, s. 3 ; and that, though the prisoner's object was only to destroy the goods and injure the owner of them, and not to destroy the house or injure the land- lord, yet if they thought he was aware that what he was doing would probably set the house on fire, and so necessarily injure the owner, and was at best reckless whether it did so or not, they ought to find that if the building had caught fire from the setting fire to the goods, the offence would have been felony, otherwise not. The jury found that the prisoner was guilty, but not so that if the house had caught fire the setting fire to the house would have been wilful and malicious : Held, that upon the finding of the jury the prisoner was not guilty of felony. CASE stated by BLACKBURN, J. Indictment containing two counts : the first, " that the prisoner unlawfully, maliciously, and feloniously did set fire to divers goods VOL. L 2 X 4 308 CROWN CASES RESERVED. [L. R. 1871 and chattels, the property of Fanny Goldsmith, then and there being in a building, to wit a dwelling-house, with intent thereby to The second count alleged, that it was " under such circumstances that if the building had been thereby set fire to, the offence would have amounted to felony." The prisoner was tried at the Norfolk Spring Circuit. The evidence was, that the prisoner, from illwill and malice against the prosecutrix, broke up her chairs, tables, and other fur- niture, made a pile of them and her clothes on the stone floor of the kitchen of her lodgings, and lit them at the four corners, so as to make a bonfire of them. The building would almost certainly have been burned in consequence, had not the police, who were sent for, succeeded in extinguishing the bonfire which the prisoner had kindled before the house was actually ignited. For the prosecution, 24 & 25 Yict. c. 97, s. 7 (1), was cited. The learned judge held that the true construction of that enactment was not such as to make it felony maliciously to set fire to goods in a dwelling-house, per se, and consequently that the first count, though it was proved, was not good in law ; and on the second count, that if the dwelling-house in which the goods were had caught fire from the burning goods, the question whether the offence would have amounted to felony depended upon a further question viz., whether such a setting fire to the dwelling-house would have been malicious and with intent to injure, so as to bring the case within 24 & 25 Viet. c. 97, s. 3 (2). As to this, he explained to the jury, that though the prisoner's object was only to destroy the furniture and injure the owner of it, and not to destroy the house or injure the landlord, yet if the jury thought that he was aware that what he was doing would probably set the building on fire, and so necessarily injure the owner, and was at best reckless whether it did so or not, they ought to find that if the building (1) 24 & 25 Viet. c. 97, s. 7, enacts, shall be guilty of felony. . . ." that "whosoever shall unlawfully and (2) 24 & 25 Viet. c. 97, s. 3, enacts, maliciously set fire to any matter or that " whosoever shall unlawfully and thing being in, against, or under any maliciously set fire to any house . . ., building, under such circumstances that with intent thereby to injure or de- if the building were thereby set fire to, fraud any person, shall be guilty of the offence would amount to felony, felony. . . ." VOL. L] EASTEE TEEM, XXXIV VICT. 399 had caught fire from the setting fire to the goods, the offence would 1871 have been felony, otherwise not. J-HE . - The jury found that the prisoner was guilty, but not so that if c the house had caught fire the setting fire to the house would have been wilful and malicious. The question for the Court was, whether, on the evidence and finding of the jury, the prisoner was properly convicted upon either count. April 22. No counsel appeared. BOVILL, C.J. The question reserved in this case is as to the construction of 24 and 25 Viet. c. 97, s. 7, which enacts, that " who- soever shall unlawfully and maliciously set fire to any matter or thing being in, against, or under any building, under such cir- cumstances that, if the building were thereby set fire to, the offence would amount to felony, shall be guilty of felony." The indict- ment was framed in the terms of this section. The evidence was that the prisoner, from illwill and malice against the owner of goods in a house, set fire to those goods, under such circumstances that the house would almost certainly have been burned if the fire had not been extinguished. But, in fact, the house was not set on fire. '^Upon these facts the learned judge left it to the jury to say whether, if the house had caught fire, the setting fire to it would have been malicious and with intent to injure. And he told them that if they thought the prisoner was aware that what he was doing would probably set the building on fire, and so necessarily injure the owner, and was at best reckless whether it did so or not, they ought to find that if the house had caught fire the offence would have been felony. The jury found the prisoner guilty, but not so that if the house had caught fire the setting fire to it would have been wilful and malicious. By that finding, I think they negatived the whole of what the learned judge left to them, and found, in effect, that the prisoner was not aware that what he was doing would probably set fire to the house, and so injure the owner, and was not reckless whether it did so or not. The only finding of the jury, therefore, is that the goods were set on fire with intent to injure the owner of the goods. Now, there is no section in the 310 CROWN CASES RESERVED. [L. B. 1871 Act which makes the wilful and malicious setting fire to goods THE QUEEN felony. The only section which could be applicable to the case _* is s. 7 : and if we were to hold the case to be within that section, CHILD. we should be rejecting the words, " under such circumstances that if the building were thereby set fire to the offence would amount to felony." I think that, to come within those words, the facts must have some relation to the house ; and that they point to cir- cumstances under which, if the house caught fire, the offence would fall within some of the earlier sections of the Act. But the case does not fall within any of them. It is a simple case of wilfully and maliciously setting fire to goods, and no more felony than setting fire to a box of matches on a stone floor. MAETIN, B. I am of the same opinion. The first count is bad in law. As to the second, the jury have negatived a material averment. BEAMWELL, B. I am of the same opinion. I think, if the house had caught fire in this case, the prisoner ought to have been acquitted upon a charge of wilfully and maliciously setting fire to the house. I understand the jury to have found not only that the prisoner did not intend to set fire to the house, but that he thought what he was doing would not do so. BYLES, J. I am of the same opinion. The jury have negatived even recklessness on the part of the prisoner. BLACKBUBN, J. I am of the same opinion. I reserved the question for this Court, because I thought the framers of the section in question intended to include this case. But they have failed to express their intention. The earlier enactment, 14 & 15 Viet. c. 19, s. 8, made it felony wilfully and maliciously to set fire to goods " being in any building the setting fire to which is made felony, &c." And under those words the prisoner might have been convicted of felony under both counts. But the Con- solidating Act uses different words. It speaks of setting fire to goods in a building " under such circumstances that if the building were thereby set fire to, the offence would amount to felony." It VOL. I.] EASTEK TERM, XXXIV VICT. 31 1 appears from Mr. Greaves' note, in his edition of the Consolidation 1871 Acts (p. 165), that this change of language was deliberate. His opinion is, that if you set fire to one thing under such circumstances f , v - that you are likely thereby to set fire to another thing, then if the setting fire to the one is malicious, the setting fire to the other is so too : Eussell on Crimes, vol. i. p. 742, note (&), 4th edition. If that is good law, then the setting fire to the house here, if it had caught fire, would have been felony. But it is not law, and the framers of the Act have failed to express the meaning that they intended to express. Conviction quashed. THE QUEEN v. JOHN WHITE, WILLIAM WHITE, AND MARIA May 6. WHITE. Abandoning and Exposing Child under Two Years, whereby its Life is Endangered -24 & 25 Viet. c. 100, s. 27 Duty of Father. A woman who was living apart from her husband, and who had the actual custody of their child, under two years of age, brought the child, on the 19th of October, and left it at the father's door, telling him she had done so. He knowingly allowed it to remain lying outside his door, and subsequently in the roadway, from about 7 P.M. till 1 A.M., when it was removed by a constable, the child then being cold and stiff: Held, that though the father had not had the actual custody and posses- sion of the child, yet, as he was by law bound to provide for it, his allowing it to remain where he did was an abandonment and exposure of the child by him, whereby its life was endangered, within the meaning of 24 & 25 Viet. c. 100, s. 27. CASE stated by the Chairman of the Hants Quarter Sessions. Indictment under 24 & 25 Viet, c. 100, s. 27 (1), for unlawfully and wilfully abandoning and exposing a child under the age of two years, whereby the life of the child was endangered. At the trial at Winchester, it appeared from the evidence that Emily White (the wife of William White), who was not included in the indictment, was the mother of the child, which was about nine (1) 24 & 25 Viet. c. 100, s. 27, whereby the life of such child shall be enacts that, " Whosoever shall unlaw- endangered, . . . shall be guilty of a fully abandon or expose any child, misdemeanour." . . . being under the age of two years, 312 CROWN CASES RESERVED. [L. B, 1871 months old at the time mentioned in the indictment. On the 19th THEQCEKN of October, 1870, she had an interview with her husband, from WHIT whom she had been living apart since the 1 1th of August of the same year, and asked him if he intended to give her money or victuals ; he passed by her without answering, and went into his house ; this was about 7 P.M. His mother, the prisoner Maria White, shut the wicket of the garden, and forbade his wife from coming in ; the wife then went to the door of the house, laid the child down close to the door, and called out, " Bill, here's your child, I can't keep it I am gone." She left, and was seen no more that night. Shortly after, William White came out of the house, stepped over the child, and went away. About 8.30 P.M. two witnesses found the child lying in the road outside the wicket of the garden, which was a few yards from the house-door ; it was dressed in short clothes, with nothing on its head ; they remained at the spot till about 10 P.M., when William White came home. They told him that his child was lying in the road ; his answer was, " It must bide there for what he knew, and then the mother ought to be taken up for the murder of it." Another witness, Maria Thorn (the mother of his wife), deposed also to the fact that about the same time, in answer to her observation that he ought to take the child in, he said, " He should not touch it those that put it there must come and take it." She then went into the house. About 11 P.M., one of the two witnesses went for a police constable, and returned with him to the place about 1 A.M., when the child was found lying on its face in the road, with its clothes blown over its waist, and cold and stiff. The constable took charge of it, and by his care it was restored to animation. At 4.30 A.M. the constable went to the house, and asked William White if he knew where his child was ; he said, " No." On being asked if he knew it was in the road, he answered, " Yes." It appeared that, during the time which elapsed between William White leaving his house, about 7 P.M., and his return, about 10 P.M., he had been to the police constable stationed at Beaulieu, and told him that there had been a disturbance between him and his wife, and wished him to come up and settle it, but he did not say anything about the child. The prisoner's counsel objected that upon these facts there was VOL. I.] EASTEE TERM, XXXIV VICT. 313 no evidence of abandonment or exposure, under the Act, by 1871 William White. "THE QDXEK~ He also objected that there was no evidence against John White and Maria White. The Court -were of opinion that there was no evidence against the two last-named prisoners, but overruled the objection as to William White, as to whom the case was left to the jury, who found him guilty. The question for the Court was, whether the prisoner, William White, was properly convicted upon the facts as above stated. April 29. No counsel appeared. Cur. adv. vult. May 6. BOVILL, C. J. We have considered this case, and we are of opinion that the conviction was right, and ought to be affirmed. The prisoner was indicted, under 24 & 25 Viet. c. 100, s. 27, for unlawfully abandoning and exposing a child, under the age of two years, whereby its life was endangered. On the facts stated in the case the objection was taken that there was no evidence of aban- donment or exposure. Now, the prisoner was the father of the child, and as such was entitled to the custody and control of it, and was not only morally but legally bound to provide for it. Then it appears that when the child was lying at the door he saw it, stepped over it, and left it there. Afterwards, when the child was in the road, he knew it was there. I am clearly of opinion that there was evidence here upon which the jury might and ought to convict the prisoner. Instead of protecting and providing for the child, as it was his duty to do, he allowed it to remain lying, first at his door, and afterwards in the road, insufficiently clothed, and at a time of year when the result was likely to be the child's death. I think, therefore, he was guilty both of abandonment and exposure. MARTIN, B. I am of the same opinion, though I have enter- tained some doubt upon the question. The statute makes it an offence unlawfully to abandon or expose a child, and, construing these words according to their natural meaning, I thought at first that they could only apply to persons who had had the actual 314 CROWN CASES RESERVED. [L. R. 1871 custody and possession of the child. But as the prisoner here was THE QUEEN the father of the child, entitled to its custody and legally bound to WHITE. ^8 protection, I do not differ from the rest of the Court. BRAMWELL, B. I am of the same opinion. If the person who had had the actual custody of the child, and who left it at its father's door, had been a stranger with whom it had been left at nurse, there could, I think, have been no doubt about the case ; and I do not think the fact that it was the mother makes any difference. BLACKBURN, J. I am of the same opinion. The question turns upon the meaning of the words "abandon or expose " in the statute. The Court before whom the prisoner was tried were right in direct- ing the acquittal of the two other persons accused, because there was no legal duty upon them to protect the child, but only a duty of imperfect obligation. But the father's case is different ; for upon him there is a strict legal duty to protect the child. And when the child is left in a position of danger of which he knows, and from which he has full power to remove it, and he neglects his duty of protection, and lets the child remain in danger, I think this is an exposure and abandonment by him. If the child had died, the facts were such that a jury might have convicted him of murder, though they might have taken a more merciful view, and found him guilty only of manslaughter ; and as the child, though its life was endangered, did not die, the case is within the section. CHANNELL, B. My Brother Byles, who was a member of the Court when the case was first before the Court, concurs in the judg- ment ; and, having had an opportunity of considering the case this morning, I am of the same opinion. Conviction affirmed. VOL. I.] EASTEE TEEM, XXXIV VICT. 315 THE QUEEN v. LEWIS TOWNLEY. 1870 Larceny Animals ferss natural Kitting and Eemoval after an Interval of P r Time Continuous Act. Poachers, of whom the prisoner was one, wrongfully killed a number of rabbits upon land belonging to the Crown. They placed the rabbits in a ditch upon the same land, some of the rabbits in bags, and some strapped together. They had no intention to abandon the wrongful possession of the rabbits which they had acquired by taking them, but placed them in the ditch as a place of deposit till they could conveniently remove them. About three hours afterwards the prisoner came back, and began to remove the rabbits : Held, that the taking of the rabbits and the removal of them were one continuous act, and that the removal was therefore not larceny. CASE stated by Blackburn, J. The prisoner and one George Dunkley were indicted at the Northampton Spring Assizes for stealing 126 dead rabbits. In one count they were laid as the property of William Hollis, in another as being the property of the Queen. There were also counts for receiving. It was proved that Selsey Forest is the property of Her Majesty. An agreement between Mr. Hollis and the Commissioners of the Woods and Forests on behalf of Her Majesty was given in evidence, which the learned judge thought amounted in legal effect merely to a licerce to Mr. Hollis to kill and take away the game, and that the occupation of the soil, and all rights incident thereto, remained in the Queen. No point, however, was reserved as to the proof of the property as laid in the indictment. The evidence shewed that Mr. Hollis' keepers, about eight in the morning on the 23rd of September, discovered 126 dead and newly-killed rabbits and about 400 yards of net concealed in a ditch in the forest, behind a hedge close to a road passing through the forest. The rabbits were some in bags, and some in bundles strapped together by the legs, and had evidently been placed there as a place of deposit by those who had netted the rabbits. The keepers lay in wait, and at about a quarter to eleven on the same day Townley, and a man who escaped, came in a cab driven VOL. I. 2 Y 4 316 CROWN CASES RESERVED. [L. R. 1871 by Dunkley along the road, Townley and the man who escaped THE QUEEN left tne ca ^ m cnar g e f Dunkley, and came into the forest, and , v - went straight to the ditch where the rabbits were concealed, and TOWNLEY. began to remove them. The prisoners were not defended by counsel. It was contended by the counsel for the prosecution that the rabbits on being killed and reduced into possession by a wrong- doer became the property of the owner of the soil, in this case the Queen : Blade v. Siggs (1) ; and that even if it was not larceny to kill and carry away the game at once, it was so here, because the killing and carrying away was not one continued act. Hale's Pleas of the Crown, vol. i., p. 510, and Lee v. Eisdon (2), were cited, The jury, in answer to questions from the learned judge, found that the rabbits had been killed by poachers in Selsey Forest, on land in the same occupation and ownership as the spot where they were found hidden. That Townley removed them knowing that they had been so killed, but that it was not proved that Dunkley had any such knowledge. The learned judge thereupon directed a verdict of not guilty to be entered as regarded Dunkley, and a verdict of guilty as to Townley, subject to a case for the Court of Criminal Appeal. It was to be taken as a fact that the poachers had no intention to abandon the wrongful possession of the rabbits which they had acquired by taking them, but placed them in the ditch as a place of deposit till they could conveniently remove them. (3) The question for the Court was, whether on these facts the prisoner was properly convicted of larceny. April 22. No counsel appeared. BOVILL, C.J. The prisoner in this case has been convicted of felony in stealing rabbits, and the question is, whether he has been properly convicted. The facts are, that the rabbits, 126 in number, (1) 11 H. L. C. 621 ; 34 L. J. (C. P.) though the fact did not appear upon the 286. case, that the prisoner Townley was (2) 7 Taunt. 189, at p. 191. one of the poachers who killed the (3) It was stated by Blackburn, J., rabbits. YOL. I.] EASTEE TEEM, XXXIV VICT. 317 were taken and killed upon land the property of the Crown. The 1871 rabbits were then, together with 400 yards of net, placed in a ditch THE QUEEN on the same land on which they had been taken ; some of them being in bags, and some in bundles strapped together by the legs. They were placed there by the poachers, who in so placing them had no intention to abandon the wrongful possession which they had acquired by taking them, but placed them in the ditch as a place of deposit till they could conveniently remove them. Here they were found by the keepers at about eight in the morning. At about a quarter to eleven the prisoner arrived, went straight to the place where the rabbits were concealed, and began to remove them. Now, the first question is as to the nature of the property in these rabbits. In animals ferae nature there is no absolute property. There is only a special or qualified right of property a right ratione soli to take and kill them. When killed upon the soil they become the absolute property of the owner of the soil. This was decided in the case of rabbits by the House of Lords in Blade v. Higgs' (1). And the same principle was applied in the case of grouse in Lord Lonsdale v. Eigg (2). In this case therefore the rabbits, being started and killed on land belonging to the Crown, might, if there were no other circumstance in the case, become the property of the Crown. But before there can be a conviction for larceny for taking anything not capable in its original state of being the subject of larceny, as for instance, things fixed to the soil, it is necessary that the act of taking away should not be one continuous act with the act of severance or other act by which the thing becomes a chattel, and so is brought within the law of larceny. This doctrine has been applied to stripping lead from the roof of a church, and in other cases of things affixed to the soil. And the present case must be governed by, the same principle. It is not stated in the case whether or not the prisoner was one of the poachers who killed the rabbits. But my Brother Blackburn says that such must be taken to be the fact. Under all the circumstances of the case I think a jury ought to have found that the whole transaction was a continuous one ; and the conviction must be quashed. (1) 11 H. L. C. 621 ; 34 L. J. (C.P.) 286. (2) 1 H. & N. 923; 26 L. J. (Ex.) 196. 318 CROWN CASES RESERVED. [L. R. 1871 MARTIN, B. I am of the same opinion. I think it is of the " THE QUEEN utmost importance that the criminal law should rest upon plain and TOWNLEY s i m pl e principles. Now if a man kills a rabbit and carries it away at once it is clearly not larceny. But it is said that if he leaves it for a little time before carrying it away, it is. And in support of this view a passage from Hale's Pleas of the Crown, p. 510, is relied on, where he says, " If a man come to steal trees, or the lead of a church or house, and sever it, and after about an hour's time or s0 come and fetch it away, this hath been held felony, because the act is not continuated but interpolated, and so it was agreed by the Court of King's Bench, 9 Car. 2, upon an indictment for stealing the lead of Westminster Abbey." A dictum of Gibbs, C.J. in Lee v. Risdon(\) to the same effect is also cited. Those statements may be perfectly correct, and ought perhaps to be followed in cases exactly similar in their facts, where there has been an actual abandonment of possession of the things taken. But here it is expressly found that there was no abandonment. And where the act is merely interrupted I think it more reasonable to hold that there is no larceny. BKAMWELL, B. I am of the same opinion. And I think our decision is consistent with the passage cited from Hale, and the dictum of Gibbs, C. J., referred to, which appear to me quite correct. If a man were unlawfully to dig his neighbour's potatoes, and from being disturbed in his work, or any other cause, were to abandon them at the place where he had dug them, and were afterwards with a fresh intention to come back and take them away, I think the case would be the same as if during this interval of time the potatoes had been locked in a cupboard by the true owner. Wherever, in such cases, the goods may be said to have been in the possession of the true owner in the interval between the severance and the removal, I think the removal is larceny. But is that so in this case ? If the poachers had taken these rabbits to their own house, or to a public-house, can it be supposed that the subsequent removal of them from there would have been larceny? And if the case be varied by supposing them to have placed them upon land adjoining that on which they were killed, can that make any (1) TTaimt. 188, at p. 191. VOL. L] EASTEE TEEM, XXXIV VICT. 319 difference ? And if so, how can it be otherwise, because the place of 1871 deposit chosen is upon the land of the same owner on whose THE QUEEN grounds the rabbits were killed. The case seems to me not to fall within the rule laid down by Hale, for, to use his words, the act here was " continuated." BYLES, J. I am of the same opinion, though I have entertained some doubts. It is here proved as a fact that the possession of the poachers was never abandoned ; and, in fact, the rabbits from the time they were taken remained, in part at least, in the bags of the poachers. I think, therefore, the whole transaction must be regarded as one continuous transaction. BLACKBURN J. I am of the same opinion. To constitute larceny at common law it was necessary that the thief should both take and carry away. And it was early settled that in the case of a thing like a tree, for instance, when the very act which converted it into a chattel was accompanied by the taking of it away, there was no larceny. Almost all the cases falling within this rule have since been made larceny by statute ; but the common law rule remains the same. Even in the case of Blades v. Siggs (1), in which it was held that game when killed becomes the property of the owner of the land upon which it was raised and killed, it was expressly pointed out that it by no means followed that an indictment for larceny would lie. The doctrine is a very early one ; see Book of Assizes, 12th year, par 32, where it was applied to the case of trees. The result is, that while taking away dead game is larceny, it is otherwise where the killing and taking away are one con- tinuous act. Now, to apply these principles to the present case, I do not think it makes any great difference that the prisoner was himself one of the poachers ; I think the result would be the same if he had been the servant of a dealer with knowledge of the circumstances under which the rabbits had been killed. But then there is the fact that the rabbits after being killed were left hidden in a ditch upon the land for nearly three hours. I should myself have thought that that made no difference in the case ; but a passage has been cited from (1) 11 H. L. C. 621 ; 34 L. J. (C.P.) 286. VOL. I. 2 Z 4 320 CROWN CASES RESERVED. [L. R. 1871 Lord Hale in which he says, that if you strip lead from a church, "THE QUEEN" "and after about an hour or so come and fetch it away," this is T * larceny ; and he speaks of this as decided law, citing Dalton as his authority. A dictum of Gibbs, C.J,, to the same effect has also been referred to. If we are to understand these passages in the sense put upon them by my Brother Bramwell, as applying only to a ' case in which the wrongdoer has abandoned and lost all property and possession in the things in question, I have no quarrel with them, and they do not apply to the present case. But if those passages mean that the mere cessation of physical possession is sufficient to make the subsequent act of removal larceny, then they do apply to the present case. And in that case, great as is my respect for Lord Hale, I cannot follow him. I cannot see that it makes any difference whether those who have taken game hide it in one place or hide it in another. Conviction quashed. A 7 29 THE QUEEN v. THOMAS FLETCHER. Perjury Jurisdiction Bastardy Summons Application before Birth of Child Deposition 1 & 8 Viet. c. 101, s. 2 8 Viet. c. 10, s. 1. Section 2 of 7 & 8 Viet. c. 101, enacts that where application for a bastardy summons is made before the birth of the child, " the woman shall make a deposi- tion upon oath." The prisoner was convicted of perjury, alleged to have been committed on the hearing of a bastardy summons. . It appeared that the summons had been issued against the prisoner before the birth of the child. Upon the application for it no written deposition was made, but only a verbal statement upon oath by the woman. The prisoner appeared to the summons, and made no objection to its validity or to the jurisdiction of the Court : Held that, the Court had jurisdiction to hear the summons, and that the con- viction for perjury was right. Per Martin, B., Byles, and Blackburn, JJ. : The word " deposition " in the above section means evidence taken down in writing. Per Blackburn, J. : The enactment is only directory, and the absence of a deposition could not oust the jurisdiction. Per totam Vuriam: The irregularity was waived by the prisoner's appearing to the summons and not objecting. CASE stated by Cleasby, B. The prisoner was tried at the Spring Assizes for the county of VOL. I] TEINITY TEEM, XXXIV VICT. 321 Derby, for perjury alleged to have been committed by him at the 1871 hearing of an affiliation summons. THE QUEEN The following is a copy of the summons : FLETCHER " Derbyshire to wit. " To Thomas Fletcher, of Heanor, in the County of Derby. "Whereas, application hath this day been made to me, the undersigned, one of Her Majesty's Justices of the Peace for the County of Derby, by Jane Beswick, single woman, residing at Heanor, in the petty sessional division of the said county for which I act, now with child, of which child she hath this day duly sworn on oath before me, the said justice, that you are the father, for a summons to be served on you to appear at a petty session of the peace, according to the form of the statute in such case made and provided. "These are therefore to require you to appear at the petty session of the justices, holden at the justice room in Heanor, in the said county, being the petty session for the division in which I usually act, on Monday, the first day of August, in the year of our Lord one thousand eight hundred and seventy, at eleven o'clock in the forenoon, to answer any complaint which she shall then and there make against you touching the premises. Herein fail you not. " Given under my hand at Heanor, in the said county of Derby, this twenty-fifth day of April, one thousand eight hundred and seventy. "M. MUNDY. "NoTE. If you neglect to appear at the petty sessions, as above stated, the justices, upon proof that this summons has been duly served upon you, or left at your last place of abode, may proceed, if they think fit, at the petty sessions therein named, to make an order upon you, as the putative father of the child above referred to, to pay a weekly sum to the said mother for its main- tenance, and other sums for costs and expenses. " Summons on application before birth." The application for the summons was made before the birth of the child, and the magistrate's clerk, who was called as a witness on the trial of the indictment, stated that no written deposition 322 CROWN CASES RESERVED. [L. R. 1871 was made upon the application. He also stated that when the THB QUEEN application was made the complainant was sworn, and verbally FLKTCHEB nmde a statement to the effect stated in the summons. The counsel for the prisoner referred to the statutes 7 & 8 Viet. c. 101 ; 8 Viet. c. 10 (1), and contended that it was essential that there should be a deposition in writing upon oath to give the magistrate jurisdiction to hear the case. The prisoner was convicted. The question for the Court was, whether it is essential to give the magistrate jurisdiction to hear the application summons, that there should have been a written deposition upon oath by the complainant when the application for the summons was made. April 29. Bristow for the prisoner. The summons in this case was issued before the birth of the child, and in such case 7 & 8 Viet. c. 101, s. 2 expressly requires that there shall be a deposition on oath by the woman. "Deposition" always means evidence either given in writing, or at least reduced to writing at the time. In Bouvier's Law Dictionary, " deposition " is defined as "the testimony of a witness reduced to writing, in due form of law, by virtue of a commission or other authority of a competent tribunal ; or, according to the provisions of some statute law, to be used on the trial of some question of fact in a court of justice." (1) 7 & 8 Viet. c. 101, s. 2, enacts and such justice of the peace shall that " any single woman who may be thereupon issue his summons to the with child, or who may be delivered of person alleged to be father of such a bastard child .... may either be- child, to appear at a petty session . . . ." fore the birth, or at any time within 8 Viet. c. 10, s. 1, enacts that, " where twelve months from the birth of such any proceedings have been had or taken child, or at any time thereafter, upon before the passing of this Act, or shall proof that the man alleged to be the hereafter be had or taken in bastardy, father of such child has within the under the provisions of 7 & 8 Viet, twelve months next after the birth of c. 101, and shall have been set forth such child paid money for its main- according to the forms in the schedule tenance, make application to any one hereunto annexed, or to the like tenor justice of the peace .... for a and effect, the same shall be taken summons to be served on the man respectively to have been and to be alleged by her to be the father of such valid and sufficient in law " child; and if such application be made The schedule to this Act contains, before the birth of the child, the woman with other forms, a form of application shall make a dej>osition upon oath, by a woman with child, stating who is the father of such child, VOL. I.] TRINITY TERM, XXXIV VICT. 323 Webster's Dictionary defines depose, " to give testimony on oath, 1871 especially to give testimony which is committed to writing." THE QUEEN So in Tomlin's Law Dictionary, several kinds of depositions are described, but all have to be taken down in writing. And the later Act (8 Viet. c. 10, s. 1), though it is not in express terms incor- porated with the earlier Act, shews what kind of deposition upon oath ought to be made. A form is given ; and that being so, the whole foundation of the proceedings fails. In this respect the case differs from Reg. v. Berry (1); Reg. v. Smith (2); Reg. v. Shaw (3). In those cases the objection was to the absence of a summons or to some defect in the summons. Here the objection is that there never was any jurisdiction to issue a summons or entertain the case at all. Reg. v. Simmons (4) ; Reg. v. Millard (5) ; and Reg. v. Pearce (6), were also referred to. No counsel appeared for the prosecution. BOVILL, C.J. Mr. Bristow has argued this case extremely well, and said all that could be said on behalf of the prisoner ; but I think the conviction must be affirmed. The jurisdiction of the magistrates to hear the case depends on 7 & 8 Viet. c. 101, s. 3, which says, on appearance of the person summoned, " the justices in such petty sessions shall hear the evidence of such woman, and such other evidence as she may produce, and shall also hear any evidence tendered by or on behalf of the person alleged to be the father ; and if the evidence of the mother be corroborated in some material particular by other testimony, to the satisfaction of the said justices, they may adjudge the man to be the putative father of such bastard child ; and they may also, if they see fit, having regard to all the circumstances of the case, proceed to make an order on the putative father " for the payment of money. In this case there was such a hearing of a summons against the prisoner. The prisoner was examined on that hearing, and swore falsely. For that he is indicted for perjury. The objection now taken is (1) Bell C. C. 46 ; 28 L. J. (M.C.) (4) Bell C. C. 168 ; 28 L. J. (M.C.) 86. 183. (2) Ante, p. 110. (5) 1 Dears. & P. C. C. 166 ; 22 L. J. (3) Leigh & Cave C. C. 579 ; 34 L. J. (M.C.) 108. (M.C.) 169. (6) 3 B. & S. 531 ; 32 L. J. (M.C.) 75. t CROWN CASES RESERVED. [L. R. 1871 that the Bummons was irregularly issued, because there was no sufficient deposition on oath before it was issued. It has been suggested that under the section in question there must be a written statement on oath in fact, an affidavit by the woman ; but I think at any rate an oral statement, taken down in writing in the usual way in which depositions are taken, must be sufficient. Jervis's Act, being later in time, cannot apply here ; but certainly more than that Act prescribes cannot be required. The second Act referred to (8 Viet. c. 10, s. 1) does not affect the case. That Act only says that proceedings according to the forms in the schedule, or to the like tenor and effect, shall be valid and sufficient; it does not say that those forms must be used. Then, if all that the Act requires be that the magistrate shall make a record of the evidence orally given, the summons itself seems to me very like a writing to the same tenor and effect with the form of deposition in the schedule to the second Act. But supposing the irregularity to have been ever so great, even if there had been no statement on oath at all, how would the law be then ? In that case Reg. v. Berry (I) is a decision in point. The 7 & 8 Viet. c. 104, s. 2, authorizes the issue of the summons in several different cases. One is after the lapse of twelve months from the birth, in which case a summons may issue upon proof of payment of money by the alleged father during the twelve months next after the birth. Another is before birth, in which case the summons is to issue upon the woman making a deposition on oath. In Reg. v. Berry (1) the question arose as to the first of these two cases. That was an indictment for perjury committed on the hearing of an affiliation summons. It appeared that the summons had been issued more than twelve months after the birth of the child, and that there had been no proof no proof within the meaning of that word in law of the payment of money within twelve months after birth. The case was, therefore, precisely the same as the present ; and all the judges composing the Court, except my Brother Martin, after taking time to consider, held that the conviction ought to be affirmed, on the ground that the de- fendant, by appearing and not objecting, had waived any irregu- larity in the issue of the summons. Lord Campbell there said (2) : (1) Bell C. C. 46 ; 28 L. J. (M.C.) 86. (2) Bell C. C. at p. 59. VOL. I.] TRINITY TERM, XXXIV VICT. 325 " The proceeding against the putative father of a bastard child, to 1871 obtain an order of affiliation and maintenance, is not a proceeding -f HE Q UEEN in poanam to punish for a crime, bat merely to impose a pecuniary obligation, and is a civil suit within the meaning of 14 & 15 Viet. c. 99, ss. 2, 3 : Reg. v. Lightfoot. (1) For this reason the defendant was admitted as a witness on his own behalf. Then what is the summons which we have to consider ? Mere process to bring the defendant into court in a civil suit. I incline to think that, ac- cording to strict regularity, before the summons issued, there ought to have been evidence on oath of the payment of the money, although it is not expressly required by the statute to be on oath, as is the case where the complaint is made before the birth of the child. Further, it would have been proper that the summons should have been in the form given by the Act of Parliament. But supposing that, if the defendant had not appeared, the petty sessions could not lawfully have proceeded to hear evidence of the paternity ; or that, if he had appeared arid objected to the regu- larity of the summons, the objection ought to have prevailed, I am of opinion that when he actually appeared, and instead of objecting to the regularity of the summons, he asked the Court to give judgment in his favour, on the merits, he waived any irregularity there might be in the process ; and that, when he had thus submitted himself to the jurisdiction of the Court, the Court had jurisdiction to hear and decide the suit." Here there was a summons and a statement on oath. But even if there had been no such statement, and no summons, still the defendant was before the magistrates, and they had jurisdiction to hear the case. The conviction must, therefore, be affirmed. MARTIN B. I am of the same opinion. Section 2 of 7 & 8 Viet. c. 101, enacts that, if the application for a bastardy summons be made before the birth of the child, the woman shall make a de- position upon oath stating who is the father. I agree with Mr. Bristow that the word deposition requires something in writing. Webster's Dictionary defines " depose " as " to give testimony on oath, especially to give testimony which is committed to writing." Here I think the meaning of deposition is an oral statement taken (1) 6 E. & B. 822 ; 25 L. J. (M.O.) 115. 326 CROWN CASES RESERVED. [L. R. 1871 down in writing, and as the section referred to contains a positive enactment that when the application is before birth there shall F v - be a deposition upon oath, there was an irregularity committed in the present case. But the prisoner by appearing to the summons waived the objection, and that being so, the justices before whom the summons was heard had power to proceed with the case, not as mere arbitrators, but in a judicial capacity. The proceeding was therefore a valid judicial proceeding sufficient to make the prisoner's false swearing in the course of it perjury, although there had been a defect of which he might have taken advantage. BRAMWELL, B. I am of the same opinion. BYLES, J. I am of the same opinion. I agree that deposition means a statement of evidence reduced to writing. I think that is the only meaning of the word. And when, in s. 3 of the Act referred to, a different thing is intended, different words are used, namely, " hear the evidence." The ground of my decision is that the summons is only a process to bring the defendant before the Court. Once before the Court, the proceeding is a judicial pro- ceeding, and an indictment for perjury lies. BLACKBURN, J. I am at present of opinion though, perhaps, it is not strictly necessary to decide the point that deposition means such a deposition as is described in Jervis's Act (11 & 12 Viet. c. 42). Jervis's Act is no doubt later in date than the Act with which we have now to deal, but it is in this respect mainly a continuation and re-enactment of earlier Acts. I think, therefore, that a deposition must, in the section now in question, mean evidence taken down in writing, though whether signature is necessary I do not say. But I do not think that any of the matters mentioned in s. 2 are more than directory. If the application be made more than twelve months after the birth of the child, it is to be upon proof that the man alleged to be the father has within twelve months after birth of the child paid money for its maintenance. If the application is before birth the woman is to make a deposition upon oath. If either of these things be omitted it is an irregularity for which the magistrate or his clerk VOL. L] TRINITY TERM, XXXIV VICT. 327 is blameable ; but it does not oust the jurisdiction. I think if these 1871 things were left out altogether the proceedings upon the summons THE QUEEN would none the less be good, But however this may be, the irregularity may be and was waived by the defendant's appearing and not objecting. In Eeg. v. Berry (1) this was expressly held to be so in the case of an application more than twelve months after birth where no proof had been given of payment of money within twelve months after birth. And I can see no distinction between the two cases. Conviction affirmed. Attorney for prisoner : S. Leech, Derby. (1) Bell C. C. 46 ; 28 L. J. (M.C.) 86. END OF EASTER TERM, 1871. VOL. I. SA 328 CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED TRINITY TEEM, XXXIV VICTORIA. 1871 THE QUEEN v. EDMUND BALLS. June 3. Embezzlement Indictment Evidence Three Acts of Embezzlement in One Indictment 24: & 25 Viet. c. 96, s. 7131 & 32 Viet. c. 116, s. 1. The prisoner was a member of a co-partnership. It was his duty to receive money for the co-partnership, and once a week to render an account and pay over the gross amount received during the previous week. During each of three several weeks, within six months, the prisoner received various small sums, and failed to account for them at the end of the week, or to pay over the gross amount, but embezzled the money : Held, that he might properly be charged with embezzling the weekly aggregates ; that three acts of embezzlement of such weekly aggregates within six months might be charged and proved under one indictment ; and that evidence of the small sums received during each week was admissible to shew how these aggre- gates were made up. CASE stated by Mr. Commissioner Kerr. Indictment, charging in the 1st count that the prisoner being a member of a certain co-partnership of persons trading under the name, style and title of the Alliance Industrial and Provi- dent Coal Society, Limited, did on the 5th of December, 1870, receive into his possession the sum of 1Z. Is. in money, for and on the account of the said co-partnership, and fraudulently and feloniously did embezzle the said sum of money. The 2nd count charged him with having within six months from the offence in the first count, that is to say, on the 12th of VOL. I.] TKINITY TEEM, XXXIV VICT. 329 December, while he was a member of the said co-partnership, 1871 received on account of the said co-partnership the further sum of THE QUEEN 17. Is., and with having embezzled that sum. BALLS The 3rd count charged him with having within six months from the offences in the 1st and 2nd counts, that is to say, on the 19th of December, while he was a member of the said co-partnership, received on account of the said co-partnership the further sum of 1?. 5s., and with having embezzled that sum. At the trial at the Central Criminal Court on the 2nd of May, 1871, it was proved that the prisoner was a shareholder in the society named ; that he received dividends on his shares therein, and that he was also duly appointed an agent of the society, in which capacity it was part of his duty to collect moneys for the society in the manner hereinafter mentioned. He gave a bond for the faithful performance of his duties. It was his duty as such agent and collector to receive payments from numerous persons who bought coals from the society, for which they were to pay by weekly instalments. Of these payments, which were to be made weekly, it was his duty to send in weekly accounts on the Tuesday of every week. And it was his duty on the Tuesday of every week to pay the gross amount received by him in the course of the preceding week into a bank to the credit of the society. The prisoner did, in fact, pay money into the bank to the credit of the society, every week, both before, during, and after the time covered by the three several counts of the indictment. On some occasions he paid into the bank a larger sum than by his account of the previous week's collection he ought to have done. To prove the allegation in the 1st count of the embezzlement of the sum of II. Is. on the 5th of December, it was proposed by the counsel for the prosecution to give evidence of ten different pay- ments in the course of the week ending on such 5th of December, that these payments were made to the prisoner by ten different persons, and that the several small sums so paid to him amounted in the whole to 1?. Is. It was also proposed to prove that neither in the prisoner's account sent in by him on the 5th of December, when he ought to have accounted for the previous week's collec- 330 CROWN CASES RESERVED. [L. R. 1871 tion, nor in any subsequent account did the prisoner account for THE QVEEN those several sums, or any of them, nor for any specific sum of U ! To prove the allegation in the 2nd count of the embezzlement of the sum of 1Z. 7s. on the 12th of December, it was proposed also to prove by ten different witnesses ten different payments in the course of the week ending on that day, that the several small sums so paid amounted in the whole to 1?. 7s., and that neither in the prisoner's account sent in by him on the said 12th of De- cember, nor in any subsequent accounts did the prisoner account for those several sums, or any of them, nor for any specific sum of II. 7s. To prove the allegation in the 3rd count of the embezzlement of the sum of 11. 5s. on the 19th of December, it was proposed in like manner to prove by eleven different witnesses eleven different payments in the course of the week ending on that day, that the several small sums so paid amounted on the whole to II. 5s., and that neither in the prisoner's account sent in by him on the said 19th of December, nor in any subsequent accounts did the prisoner account for those several sums, or any of them, nor for any specific sum of 11. 5s. The prisoner's counsel who was absent while the case was being opened to the jury, objected that the course proposed to be taken would be admitting evidence of thirty-one different acts of embezzle- ment upon one indictment, whereas the statute only permitted evidence to be given of three. He contended that the non- accounting for each of these thirty-one sums was a separate and distinct act of embezzlement, and that only three of those acts could properly be included in one indictment. On the other hand, the counsel for the prosecution contended that as it was the prisoner's duty to account once a week only for what he had received during the preceding week, there were only three distinct non accountings, and therefore only three distinct acts of embezzlement. That the act of embezzlement was not committed upon receipt of the money, but upon the non-accounting and non-payment of it, if the jury should find such non-accounting and non-payment to be fraudulent. VOL. I ] TRINITY TEEM, XXXIV VICT. 331 The learned commissoner expressed his intention to confine the 1871 evidence to three separate and distinct receipts of three of the THE QIEEN small sums so received by the prisoner as aforesaid, and to the non- BALLS accounting for the same; but being pressed by counsel for the prosecution, he admitted the evidence so proposed to be given of the receipt by the prisoner of the thirty-one different sums, and of his non-accounting for the same. This evidence was accordingly given ; and the jury found that in not paying over on the 5th, 12th, and 19th days of December respectively, each and every of the several sums received by him, in each and every of the several weeks ending on those days re- spectively, the prisoner did fraudulently embezzle each and every of the said several sums, and that those sums collectively amounted in each of those weeks respectively to the several sums named in the 1st, 2nd, and 3rd counts of the indictment. Thereupon, the learned commissioner directed a verdict of " guilty " to be recorded against the prisoner on each of these counts, subject to the opinion of the justices of either bench and Barons of the Exchequer whether the evidence on which the pri- soner was so convicted was properly admissible. If such evidence was not admissible in point of law, then the conviction of the prisoner was to be quashed. If properly admitted, then the con- viction was to stand. June 3. Collins, for the prisoner. This indictment is under 31 & 32 Viet. c. 116, s. 1. But as to the number of acts of em- bezzlement which may be charged and proved, it is subject to the same rule as any other indictment for embezzlement. Before 24 & 25 Viet. c. 96, s. 71, only one act of embezzlement could be charged or proved under one indictment. That section allows three to be charged and proved if committed within six months. But the rule as to what is an act of embezzlement is not changed. "Where a number of small sums are separately embezzled, you can- not add them all together and treat it as one embezzlement of the whole : Reg. v. Williams (1), 1 Taylor on Evidence, 346, 5th ed. Here the jury have expressly found that what the prisoner em- (1) 6 C. & P. 626. VOL. I. 3 B 4 332 CROWN CASES RESERVED. [L. R. 1871 bezzled was, each and every of the small suras received by him in THE QUEEN the course of each week. This distinguishes the case from Eeg. v. BA'LU, Lamleri [WiLLES, J., referred to Eeg. v. Richardson (2), and Eeg. v. Proud (3)]. In those cases, evidence of numerous acts of embezzlement was admitted, not as substantive offences, but to shew the motive, and prove that the default charged as embezzlement was not accidental but wilful. That is not the object here. Besley, for the prosecution, was not called upon. COCKBURN, C.J. I am of opinion that this conviction is right, and must be affirmed. It is quite true that if a man receives a number of separate sums and has to account for each of them separately, only three instances of failure to account can be proved under one indictment. Thus, if there were to be one accounting on Monday, and one on Tuesday, and one on Wednesday, and so on, only three defaults could be charged and proved ; though even in such a case, evidence of other instances might be given in order to shew that the instances charged were not merely acci- dental, but that what was done was done intentionally and fraudu- lently. But here no difficulty of this nature arises. I agree that the prisoner might have been indicted for embezzling any of the separate small sums received by him. But it appears upon the case that his duty was to receive the small sums from time to time ; to send in the weekly accounts every Tuesday ; and every Tuesday to pay the gross amount received by him during the preceding week into a bank. It is true that each of the small sums received had to be accounted for ; but he might well be charged with em- bezzling the aggregate amount. And evidence of the individual items was admissible to shew how this aggregate was made up. It would be very mischievous if, in such cases as these, servants could not be indicted for embezzling the aggregate amounts for which they fail to account. No doubt, in such cases, there is an embezzlement of each of the smaller sums going to make up the (1) 2 Cox. Cr. C. 309. (2) 2 F. & F. 343. (3) Leigh & Cave, C. C. 97; 31 L. J. (M.C.) 71. VOL. L] TRINITY TEEM, XXXIV VICT. 333 total not accounted for ; but there is not the less an embezzlement 1871 of the whole. THE QUEEN v. BALLS. WILLES, MELLOR, and MONTAGUE SMITH, JJ., and CHANNELL, B., concurred. Conviction affirmed. Attorney for prisoner : J. H. B. Wakeling. Attorney for prosecution : W. T. Ricketts. END OF TRINITY TERM, 1871. VOL. I. 3 C 334 [L. B. CASES DETERMINED BY THE COURT FOR ROWN CASES RESERVED nr 1871 THE QUEEN v. HOLMES AND FUKNESS. Nov. 18. Indecent Assault Attempt at Eape Cross-examination of Prosecutrix Previous Connection with other Men Contradiction Evidence. The prosecutrix in an indictment for an indecent assault, which on the facts alleged amounted, in substance, to an attempt at rape, was asked in cross-exami- nation whether she had not previously had connection with a man other than the prisoner, and denied it: ;. .'.". Held, that she could nfi|;be contradicted. CASE stated by the Chairman of Quarter Sessions for the county of Surrey. At the general quarter sessions, holden at Kingston-upon- Thames, for the county of Surrey, on the 17th of October, 1871, Henry Holmes and Joseph Frederick Furness were tried upon an indictment charging them with indecently assaulting one Sarah Palmer. It appeared from the evidence taken at the trial, the whole of which was set out, that the indecent assault charged amounted to an attempt at rape ; and that for the defence consent was alleged. The prosecutrix, in her cross-examination, was asked by the prisoner's counsel if she had had connection with Robert Sharp, and she denied it. The prisoners' counsel called Eobert Sharp, and asked him if the prooecutrix had ever had connection with him, but the counsel VOL. I.] MICH. TEEM, XXXV VICT. 335 for the prosecution objected to the question on the authority of 1871 Reg. v. Cockroft (1), and the Court refused to allow the question THE QuBEiT to be answered, but reserved the point, whether such answer ought HOLMES to have been allowed to be given, for the decision of the Court for Crown Cases Reserved. The jury found both prisoners guilty. Straight, for the prisoners. The issue in this case being sub- stantially one of consent or no consent, the evidence tendered was strictly relevant to the issue, as having a material bearing upon the probability of the prosecutrix' consent. Rex v. Hodgson (2), which may be relied on upon the other side, is not in point. In that case it was held that the prosecutrix was not bound to answer a question as to previous connection with another man; a rule which may be doubted in the present day. And, inasmuch as the question was not answered by the proscutrix, the evidence on the other side was not, as here, called in contradiction. Reg. v. Robins (3) is an express decision by Coleridge, J., with the con- currence of Erskine, J., that the evidence is admissible. In Rex v. Martin (4), the same rule was laid down as to evidence of previous connection with the prisoner. And there is no reason for any distinction between the two cases. Rex v. Barker (5), and Reg. v. Clay (6), shew that evidence of previous immorality is material to the issue. He also referred to Reg. v. Arnall (7), and Reg. v. Eyre. (8) Oppenheim for the prosecution. The evidence was properly excluded. The question put to the prisoner was not relevant to the issue, it only went to credit. Upon principle, therefore, her answer is binding. And Rex v. Hodgson (2) is a decision of all the judges against the admission of the evidence. Rex v. Clarke (9) is to the same effect. The ruling in Reg. v. Robins (3) was wrong. And in Reg. v. Cockroft (1), Martin, B., and Willes, J., refused to follow it, and laid down the contrary rule. He also referred to a ruling of Keating, J., in a case not reported, to the same effect. (1) 11 Cox, Cr. C. 410. (6) 5 Cox, Cr. C. 146. (2) R. & R. 211. (7) 8 Cox, Cr. C. 439. (3) 2 Moo. & R. 512. (8) 2 F. & F. 579. (4) 6 C. & P. 562. (9) 2 Stark. N. P. C. 241. (5) 3 C. & P. 589. CROWN CASES RESERVED. [L. R. 1871 KELLY, C.B. The question raised in this case is one of very THE QUEEN great importance ; and if we had entertained any substantial HOLMES doubt "P on i*> we should have thought it right to submit it for the opinion of all the judges. But when we look, first, at the principles applicable to the case, and, secondly, at authority, we think it is impossible to doubt what the decision ought to be. The question is, whether on an indictment for rape, or for attempt at rape, or for an indecent assault, amounting in substance to an attempt at rape, if the prosecutrix is asked in cross-examination whether she has had connection with another person not the prisoner, and denies it, evidence can be called to contradict her. We are all of opinion that it cannot. In the first place, the general rule of evidence is that if a question be put in cross- examination as to a collateral point, the answer must be taken for better or for worse. And the reason is obvious. If such evidence as that here proposed were admitted, the whole history of the prosecutrix's life might be gone into ; if a charge might be made as to one man, it might be made as to fifty, and that without notice to the prosecutrix. It would not only involve a multitude of collateral issues, but an inquiry into matters as to which the prosecutrix might be wholly unprepared, and so work great in- justice. Upon principle, therefore, we must hold that the answer is binding. When we look at the authorities the case is still clearer. The first case on the subject is Bex v. Hodgson. (1) That case was heard first before eight of the judges, and afterwards before the whole number. It was an actual decision that the prose- cutrix on a charge of rape was not bound to answer such a question as that here put. That seems, as a matter of principle, to involve that, if the question had been answered, the answer would have been binding. But, further, the second objection taken in that case seems to raise the very point ; and upon that the judges lay down the law distinctly, in accordance with the view which we take. That case is therefore an actual decision involving in principle the point now in question, and a dictum, at the least, by some of the most learned judges who ever sat, upon the very point. Reg. v. Cockroft (2) was an indictment for (1) R. & R. 211. (2) 11 Cox, Cr. C. 410. VOL. I.] MICH. TEEM, XXXV VICT. 337 rape, and was tried first before Martin, B., and again before 1871 Willes, J., and both of those learned judges held that such evidence THE QUEEN as that here tendered was inadmissible. So far all the decisions * HOLMES. entirely support that view which we think to follow clearly from the settled principles of the law of evidence. We are asked to abandon that view upon the authority of Reg. v. Robins. (1) That was no doubt a decision of Coleridge, J., after consulting Erskine, J., upon the very point now in dispute. But we cannot follow that ruling in opposition to the whole current of authority upon the question. In Rex v. Barker (2) the question was as to evidence shewing the prosecutrix to be a common prostitute ; and such evidence has long been held material. In Rex v. Martin (3) the evidence was as to the prosecutrix having previously had connection with the prisoner. And such evidence is undoubtedly admissible, for it has a direct bearing upon the question of consent. These are really all the cases upon the subject. But from Rex v. Clarke (4) it may be collected that Holroyd, J., held the same view in the case of an indictment for an attempt at rape. We have, therefore, a deliberate judgment of the twelve judges, the decisions of Martin, B., and Willes, J., and the opinion of Holroyd, J., against the ruling of Coleridge, J. BYLES, J . I think it quite clear that the prosecutrix in a charge of rape, or attempt at rape, cannot be contradicted by persons who swear that they have had connection with her, for a rape may be committed upon a prostitute. Then we have the authority of all the judges in Rex v. Hodgson (5) ; and of Martin, B., and Willes, J., in Reg v. Cockroft. (6) A ruling of Keating, J., to the same effect has been referred to. And I have had an oppor- tunity of speaking both to him and to Willes, J., who are still of the same opinion. PIGOTT, B. I think the evidence proposed to be given is not relevant to the issue ; and its admission might lead to great in- justice. (1) 2 Moo. & K. 512. (4) 2 Stark. N. P. C. 241. (2) 3 C. & P. 589. (5) B. & R. 211. (3) 6 C. & P. 562. (6) 11 Cox, Cr. C. 410. 338 GROWN CASES EESERVED. [L. R. 1871 LUSH, J. I was for a time of a different opinion. But I am THK QUEEN now quite convinced that the evidence in question was too remote HOLIES. from the issue ' HANNEN, J. I think no distinction can be drawn between a case of rape and a case of indecent assault, when the offence charged is in substance an attempt at rape. Then Rex v. Hodgson (1) is a decision that such evidence as this cannot be given as substantial evidence in the cause, that is, cannot be regarded as relevant to the issue, but only as going to the credit of the witness. The witness's answer is therefore binding. And the reason is that the prosecutrix cannot come prepared to try all the issues which would be thus raised. The case is clear in prin- ciple, and it is also governed by authority. Conviction affirmed. Attorneys for prosecution : J. C. & W. Rogers. Attorney for prisoners : T. W. Bilton. THE QUEEN v. MANNING AND ROGERS. Malicious Injury to Property Arson 24 & 25 Viet. c. 97, s. 6 Building Unfinished House. A building, in 24 & 25 Viet. 97, s. 6, is not necessarily a finished structure. An unfinished house, of which the walls were built and finished, the roof on and finished, a considerable part of the flooring laid, and the internal walls and ceilings prepared ready for plastering, held, to be a building within the meaning of the section. CASE stated by Martin, B. The prisoners were tried upon an indictment, which charged that they "feloniously, unlawfully, and maliciously did set fire to a certain building of one John Rhodes, there situate, against the form of the statute in such case made and provided." It was framed upon 24 & 25 Viet. c. 97, s. 6. (2) The prisoners (1) R. & R. 211. building, other than such as are in this (2) Sect. 6 of 24 & 25 Viet. c. 97, Act before mentioned, shall be guilty enacts that, " Whosoever shall unlaw- of felony . . . ." fully and maliciously set fire to any VOL. L] ; MICH. TEEM, XXXV VICT. 339 were members of a society, or union, of Hand-made Brick Makers. 1871 The building set fire to was one of seven built in a row, and in- THE QCEEK tended for dwelling-houses, and built in part of machine-made M v - bricks. On the night of the 25th of June, 1871, the prisoners (and some others who escaped) set fire to it by means of paraffin oil. All the walls, external and internal, of the house were built and finished. The roof was on and finished. A considerable part of the flooring was laid. The internal walls and ceilings were prepared ready for plastering. The house was in a forward state towards completion, but was not completed. At the conclusion of the case for the prosecution, it was objected by the counsel for the prisoners that the erection set fire to was not a building within the meaning of the statute, because it was not completely finished. The learned judge was against the objection, but it was stated that Lush, J., in a similar case, had expressed his intention to reserve the point for the opinion of the Court of Criminal Appeal, and, at the request of the counsel, the learned judge assented to take the same course. The learned judge took the opinion of the jury, whether, as a question of fact, the erection was a building, and they found that it was. The prisoners were found guilty. The questions for the opinion of the Court were : First: Was the question concluded by the finding of the jury? Secondly : If it was not, was the objection made by the learned counsel for the prisoners a valid one ? No counsel appeared. KELLY, C.B. It is to be regretted that we have not had the assistance of counsel in this case, because the point raised is both new and important. We are of opinion that the question having been properly left to the jury, their finding upon it is conclusive. The building in question, though not completed, was in- tended to be a house. It was one of a row of seven houses, un- finished it is true, but in a forward state towards completion. Then the question arises whether this is a building within s. 6 of 24 & 25 Viet c. 97, which makes it felony unlawfully and maliciously to set fire to " any building other than such as are in 310 CROWN CASES RESERVED. [L. R. 1871 this Act before mentioned." As the buildings mentioned in the THE QUEEN earlier sections are here referred to, it may be well to see what some f those buildings are. Sect. 3 throws light upon the case. By that section : " Whosoever shall unlawfully and maliciously set fire to any house, stable, coach-house, out-house, warehouse, office, shop, mill, malthouse, hopoast, barn, storehouse, granary, hovel, shed, or fold, or to any farm building, or to any building or erection used in farming land, or in carrying on any trade or manufacture, or any branch thereof .... shall be guilty of felony." Now the argument may be urged that these several kinds of buildings enumerated in s. 3 are all necessarily com- pleted buildings, but that is not so. Take for example the term "office." That may form only a part of a house; and an office may be completed on the ground floor, while the house above it is not completed. So again with the term " shop." There may well be a shop on the ground floor, with floors above it for lodgings or other purposes. In such a case the office or shop, though only part of a house, could be within s. 3. There is nothing in that section to limit its operation to completed buildings. Still less is there in s. 6. The words of that section are not " any other building," but the larger words, " any building other than such as are in this Act before mentioned." I think, therefore, the ruling of the learned judge and the finding of the jury were right ; this was a building fairly and substantially within the Act of Parliament. I say nothing as to what extent of partial completion in an un- finished building may be necessary to bring it within the section. I do not say that two or three yards of wall would be a build- ing. But when a house is in the state in which this was, I think it is within the Act. BYLES, J. I also think the conviction should be affirmed. It is not necessary to lay down a definition of what is a building. It is sufficient to say that the erection in this case was properly found to be one. Such words as those in the section must be in- terpreted in their ordinary sense. And it would certainly not have been a departure from ordinary language to have asked, " Who built that structure?" The judge considered it to be a building, and the j ury found so ; and the decision was right. VOL. L] MICH. TEEM, XXXV VICT. 341 PIGOTT, B. I am of the same opinion. This was not, I think, 1371 a house, but it was a building. ^THB QUEEN V. LUSH, J. I am of the same opinion. A building need not MANNING - necessarily be a completed structure ; it is sufficient that it should be a connected and entire structure. I do not think four walls erected a foot high would be a building. And my impression is that in the case referred to, tried before me, there were only four walls unconnected, and not advanced further than a short distance towards completion. HANNEN, J. I am of the same opinion. It is very likely that a house can only mean a structure designed and sufficiently ad- vanced for the habitation of man. But I think the structure in the present case was a building other than a house, and therefore within s. 6. Conviction affirmed. THE QUEEN v. CHAMBEKS. Nov. 11. Forgery 24: & 25 Viet. c. 98, s. 23" Undertaking" The prisoner, being pressed for payment of a debt, obtained further time to pay, by giving, as security, an I. 0. U., purporting to be signed by himself and another, the signature of the latter being forged by the prisoner : Held, that the instrument was an " undertaking for the payment of money " within the meaning of 24 & 25 Viet. c. 98, s. 23. CASE stated by Blackburn, J. The prisoner was tried on an indictment for feloniously forging an instrument which was set out in the indictment in the words and figures following : " November 21st, 1870. I. 0. U. thirty-five pounds 35Z. Arthur Chambers, George Wickham." It was described in one count as an undertaking for the payment of money, and in another as a security. On the trial, evidence was given that the prisoner having ob- tained a loan of 35?., and being pressed for payment, obtained VOL. I. 3D 4 342 CROWN CASES RESERVED. [L. R. 1871 further time by giving as a security tlie instrument which pur- THE QUEEN ported to he signed by his brother-in-law, George Wickham. * It was objected that, though, if the instrument had been genuine, it might have been evidence of an account stated by Wickham, from which the law would have implied a promise on his part to pay the money ; and so would in effect operate as an undertaking to pay the money, and as a security for its payment, yet it was not in itself either one or other. The learned judge reserved the point, and left to the jury whether the instrument was forged by the prisoner with intent to defraud. The verdict was " Guilty." The question was, whether the instrument in question was either an undertaking or a security within the meaning of 24 & 25 Viet. c. 98, s. 23. (1) No counsel appeared. KELLY, C.B. . The question in this case is, whether the instru- ment forged by the prisoner is an " undertaking for the payment of money " within the meaning of 24 & 25 Viet. c. 92, s. 23, so as to make the forgery of it an offence within that section. Now the instrument is in form an I. 0. U. for thirty-five pounds, purporting to be signed by the prisoner and his brother-in-law, George Wick- ham. And it appears from the case that the prisoner, being pressed for repayment of a loan, obtained further time by giving this instrument as a security. I am clearly of opinion that such a (1) Sect. 23 of 24 & 25 Viet. c. 98, or for goods, or for any note, bill, or enacts that: "Whosoever shall forge other security for the payment of or alter, or shall offer, utter, dispose money, or any indorsement on or as- of, or put off, knowing the same to be signment of any such accountable re- forged or altered, any undertaking, ceipt, with intent, in any of the cases warrant, order, authority, or request, aforesaid, to defraud, shall be guilty of for the payment of money, or for the felony ..... " It will be observed delivery or transfer of any goods or that this section does not make it an chattels, or of any note, bill, or other offence to forge a " security for money," security for the payment of money, or but only to forge "an undertaking, &c., for procuring or giving credit, or any for the delivery, &c., of a security for indorsement on, or assignment of, any mon ey." It would appear, therefore, such undertaking, warrant, order, autho- tna t the second count was not a good rity, or request, or any accountable re- count uu dcr the section, ceipt, acquittance, or receipt for money VOL. I] MICH. TEEM, XXXV VICT. 343 \ security is an undertaking for the payment of money within the 1871 meaning of the Act. It may be argued that there was no con- THE QUEEN sideration for such an undertaking. But there was consideration CHA BEUS for it. There was the giving of further time to the prisoner to pay the debt, for the payment of which he was being pressed. The instrument is therefore an undertaking for the payment of money given for sufficient consideration. If any doubt could formerly have existed, it has been removed by the Mercantile Law Amend- ment Act, which makes it unnecessary that the consideration for a guarantee should appear in writing. BYLES, J. I am of the same opinion. PIGOTT, B. I think the instrument in question was an under- taking for the payment of money. It does not shew the considera- tion ; but that is not necessary. It is a guarantee by Wickham of the prisoner's debt. LUSH, J. I am of the same opinion. It appears that the pri- soner was indebted, and being pressed for payment, obtained further time to pay by giving this instrument as a security. If Wickham had signed it, I think he would have been bound by it, for the consideration need not now appear in writing. HANNEN, J. I am of the same opinion. Conviction affirmed. , END OF MICHAELMAS TEEM, 1871. VOL. I. 3 E 344 [L. E. CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN HILAEY TEEM, XXXV VICTOEIA. 1872 THE QUEEN v. JOSEPH NEWBOULT AND BENJAMIN Jan. 20. HOLDSWORTH. Arson Indictment Immaterial Averment Statement of Ownership 24 & 25 Viet. 97, ss. 3, 60. Two prisoners were indicted, under 24 & 25 Viet. c. 97, s. 3, for feloniously setting fire to a shop " of and belonging to " one of the prisoners : Held, that the averment of property in the prisoner was an immaterial aver- ment, which need not be proved ; and that an intent to injure another person as owner might be proved in support of the indictment. CASE stated by Pigott, B. The prisoners were tried at the last winter assizes for the West Eiding of Yorkshire, holden at Leeds, on the charge of arson. The substance of the indictment was as follows : First count. That Joseph Newboult and Benjamin Holdsworth maliciously and feloniously did set fire to a shop of and belonging to the said Joseph Newboult, and then being in the possession of the said Joseph Newboult, with intent thereby to injure, against the form of the statute. (1) The second count was in the same form, except that the intent laid was to defraud. The third count stated that the said Joseph Newboult and (1) 24 & 25 Viet. c. 97, s. 3, en- same shall then be in the possession acts that " whosoever shall unlawfully of the offender, or in the possession of and maliciously set fire to any house, any other person, with intent thereby stable, coach-house, outhouse, ware- to injure or defraud any person, shall house, office, shop . . . whether the be guilty of felony." YOL. I.] HILARY TEEM, XXXV VICT. 345 Benjamin Holdsworth unlawfully, maliciously, and feloniously did 1872 set fire to divers matters and things then being in and under a THE QUEEN certain shop there of and belonging to the said Joseph Newbouit, and then being in the possession of the said Joseph Newboult, with intent thereby and by means thereof unlawfully, maliciously, and feloniously to set fire to the said shop, and thereby to injure and defraud, and the said Joseph Newboult and Benjamin Holds- worth by the overt acts in this count mentioned unlawfully, maliciously, and feloniously did attempt to set fire to the said building in this count mentioned under such circumstances that if the same had thereby been set fire to they would have been guilty of felony against the form of the statute. At the conclusion of the case for the prosecution it was objected on behalf of the prisoners that as no policy of insurance upon the premises was produced, there was no evidence from which the jury could infer an intent to injure the insurance office. And, secondly, that upon the counts of this indictment it was not open to the jury to convict of an intent to defraud or injure the owner of the premises, inasmuch as the premises were in the indictment alleged to be " of and belonging to Joseph Newboult " himself, and must hence be taken to be his property. The learned judge refused to stop the case, but reserved the questions for this Court. The prisoner Newboult was the master and Holdsworth was his servant at the shop in Leeds Koad, Bradford, where a general grocery business was carried on, and where a fire occurred on the 5th of October last. The material evidence on which the counsel for the prosecution relied to shew the intent to injure or defraud was, as to the ownership of the premises, as follows : John Hey stated that he was a trustee of the premises for the landlady, and that Joseph Newboult was under notice to leave, and should have left on the 5th of September last, and that the witness a week 'before the clay of the fire had asked him to leave the premises, which he had not done. And as to the other objection, evidence was given that a notice to produce a policy of insurance (effected by the prisoner Newboult on his stock) was served on him, but too late to be complied with, and the learned judge held it was insufficient on that ground. The counsel then called a witness 3 E 2 4 346 CROWN CASES RESERVED. [L. R~ 1872 from the insurance office, who said, "Newboult came to me in THE QUEEN- May, 1867, about effecting an insurance, and on the 30th of NEWBOCLT. August of the present year (1871) he came again, and said he wished to renew his policy in Leeds Koad for 500Z. (the sanif amount), and he then paid me ten shillings." The stock of good? on the premises at the time of the fire was of the value of 211. Both prisoners were found guilty. And the learned judge asked the jury if they believed that Newboult was tenant of the premises ; and further, whether both prisoners had an intent to injure the landlady ? And also whether they believed they had an intent to defraud the insurance office ? The jury answered that they found both intents. The questions for this Court were, whether first, there was sufficient evidence of the existence of an insurance to support the finding by the jury of an intent to defraud the office; and, secondly, whether on these counts it was competent for the jury to- find that there was an intent to injure the owner of the premises. The case was argued before Cockburn, C.J., Martin, and Chan- nell, BB., and Keating and Lush, JJ. Waddy, for the prisoners. There is no sufficient evidence of the existence of a policy to support the finding of an intent to defraud the company. And the indictment alleges the shop set on fire to- be " of and belonging to the said Joseph Newboult," the prisoner himself; whereas the evidence is that the house was the land- lady's, and the finding is that the intent was to injure the owner. It is necessary to allege the ownership of the house : Riekman's- Case (1) ; 2 Kussell on Crimes, 4th ed., by Greaves, 1046. [CocKBUEN, CJ. By s. 60 of this Act, 24 & 25 Viet. c. 97, it is sufficient in any indictment for any offence under the Act, when it shall be necessary to allege an intent to injure or defraud, to allege that the party accused did the act with intent to injure or defraud (as the case may be) without alleging an intent to- injure or defraud any particular person.] That only refers to alleging the intent ; it leaves the law as it was as to alleging the ownership. [MARTIN, B. The rule referred to applied to an indictment at (1) 2 East. P. C. 1034. VOL. I.] HILAEY TEEM, XXXV VICT. 347 common law. This is an offence against s. 3 of 24 & 25 Viet. c. 97. 1872 The averment of ownership is an immaterial averment, and might be THE QUEEN struck out. Were it not so, there would, no doubt, be a variance. COCKBURN, C.J. The statement of ownership was necessary at common law, because it was not arson for a man to set fire to his own house. But under the statute it is otherwise ; and therefore the averment of ownership is an immaterial averment ; so that there is nothing to prevent the jury under this indictment finding an intent to injure the landlady, the real owner.] Campbell Foster, for the prosecution, was not called upon. Conviction affirmed. Attorneys for prosecution : Terry & Robinson, Bradford. Attorney for prisoner : Fluker, for J. W. Berry, Bradford. THE QUEEN v. THOMAS BAILEY. Jan. 20. Larceny Process of Court Taking with Fraudulent Purpose 24 & 25 Viet. c. 96, s. 30. The prisoner's goods having been seized under warrants of execution of a county court, and being in the possession of the bailiff, the prisoner, with intent to deprive the bailiff, as he supposed, of his authority, and so defeat the execution, forcibly took the warrants from him : Held, that the prisoner was not guilty of larceny, but that he was guilty of taking the warrants for a fraudulent purpose within the meaning of 24 & 25 Viet, c. 96, s. 30. CASE stated by Lush, J. The prisoner was indicted at Oxford at the summer assizes 1871, under the 30th section of the Larceny Act, 24 & 25 Viet. c. 96. (1) (1) 24 & 25 Viet. c. 96, s. 30, enacts process, interrogatory, deposition, affi- that, " Whosoever shall steal, or shall davit, rule, order, or Avarrant of attorney, for any fraudulent purpose take from or of any original document whatsoever its place of deposit for the time being, of or belonging to any court of record, or from any person having the lawful or relating to any matter, civil or custody thereof, or shall unlawfully criminal, begun, depending, or ter- and maliciously cancel, obliterate, in- minated in any such court, . . . shall jure, or destroy the whole, or any be guilty of felony." ,part of any record, writ, return, panel, 348 CROWN CASES RESERVED. [L. E. 1872 The first count of the indictment charged the prisoner with THE QUEEN stealing certain process of a court of record, to wit, a certain BAILEY warrant of execution issued out of the county court of Berkshire, in an action wherein one Arthur was plaintiff, and the prisoner defendant ; also another warrant of execution out of the same court in an action, Halcombe & Co. against the prisoner. The second count stated that at the time of committing the- offence hereinafter mentioned, one Brooker had the lawful custody of certain process of a court of record, to wit, a warrant of execu- tion out of the county court of Berkshire in an action between Arthur and the defendant ; that defendant intending to prevent the- due course of law, and to deprive Arthur of the rights, benefits, and advantages from the lawful execution of the warrant, did take- from Brooker the said warrant, he Brooker having then the legal custody of it. It was proved that two actions had been brought in the county court against the prisoner, in each of which judgment had been given against him, and a warrant of execution issued against his- goods. The" high bailiff of the court made the levy under these warrants, and having done so, he handed the warrants over to his- deputy bailiff, and left him in possession of the goods. The prisoner, a day or two afterwards, forcibly took the warrants- out of the bailiff's hands and kept them. He then ordered him away as having no authority to remain there any longer, and on his refusal to go forcibly turned him out. The prisoner was convicted ; but as the learned judge enter- tained a doubt whether these facts supported the count for larceny,, and whether, as the prisoner's intention in taking the warrants v> as not to make use of them but merely to deprive the bailiff, as he supposed, of his authority, and as the validity of the execution was not affected by his taking the warrants, he was guilty of taking them for a fraudulent purpose within the meaning of the statute,, he forbore to pass sentence, and admitted the prisoner to bail till the opinion of this Court should have been taken upon the above- points. No counsel appeared. COCKBURN, C.J. I think the first count, charging larceny, will VOL. I.] HILAKY TEEM, XXXV VICT. 349 not hold. It is clear that the prisoner took the warrants from the 1872 bailiff thinking that his authority depended on his possession of TUE Qi EEN the warrants, and that by taking them away he would put an end to the authority. But this was not done animo furandi ; it was not done lucri causa. It was no more stealing than it would be to take a stick out of a man's hand to beat him with it. Under the second count, the question is whether what was done was done with a fraudulent purpose. I think it was so. The pur- pose was to deprive the officer of the power to execute process, and so to defeat the execution. MAKTIN and CHANNELL, BB., and KEATING, J., concurred. LUSH, J. I quite concur, on consideration, in the judgment of the Court. I thought at first that what the statute meant was an intention to use the documents for a fraudulent purpose. Conviction affirmed. THE QUEEN v. PAYNE AND OTHERS. Jant 27. Evidence Competence Joint Indictment and Trial One Prisoner called as Witness for Another. Where two prisoners are indicted and tried together, one is not a competent witness for the other. t CASE stated by Keating, J. John Payne, George Owen, Isaac Owen, and Joseph Curtis, were indicted at the winter assizes for the county of Worcester, 1871, for that they, to the number of three or more, armed with offensive weapons, by night, did enter and move on land belonging to Earl Dudley, for the purpose of taking or destroying game. It appeared that at one o'clock on the morning of the 4th of October, 1871, the keepers of Earl Dudley discovered a number of poachers upon the earl's lands taking game. They were armed with stones, bludgeons, &c., and advanced upon the keepers, with whom they had a desperate struggle. Ultimately the keepers were forced to retire, one keeper being dangerously, and another severely wounded. CROWN CASES RESERVED. [L. R. 1872 The prisoner Payne, and the two Owens, were first apprehended, HE QcEEjT an( l on being brought before the magistrates, each set up an alibi v. by wft y o f defence, and called witnesses in support ; amongst the witnesses called by Payne was the prisoner Curtis, not then in custody, and he proved having been with Payne at the time in question at a place so distant from the scene of the affray as to render it impossible he could have been one of the poachers. Curtis, with the other witnesses for the prisoners, were bound over by the magistrates under 30 & 31 Yict. c. 35 ; but having been afterwards identified as one of the party of poachers, he was com- mitted and indicted with the other three prisoners. On the trial all four prisoners were sworn to by various witnesses as having formed part of the gang of poachers on the night in question ; the defence by each was, as before the magistrates, an alibi, and the counsel for Payne proposed to call the prisoner Curtis to prove what he had deposed to before the justices. The learned judge held that he was incompetent, and could not be called. All the prisoners were convicted, and sentence passed. The questions for the opinion of the Court were : First, Whether a prisoner, jointly indicted with another, can, after they have been given in charge to the jury, be called as a witness for the other, without having been either acquitted or convicted, or a nolle prosequi entered : Winsor v. The Queen (1), Reg. v. Deeley. (2) Second, Whether upon the present form of indictment, and under the circumstances of the case, the prisoner Curtis was com- petent and ought to have been called as a witness for the prisoner Payne : see Russell on Crimes, 4th ed., by Greaves, pp. 626-7 ; Taylor on Evidence, 5th ed., pp. 1178-9. Jan. 20. The Court (Cockburn, C.J., Martin and Channell, BB., Keating and Lush, JJ.), reserved the case for the consideration of all the judges. Jan. 27. The case was argued before Cockburn, C. J., Kelly, C.B., Martin, Brauiwell, Channell, Pigott, and Cleasby, BB., Willes, (1) 6 B. & S. 143 ; 35 L. J. (M.C.) 121 ; S. C. in Ex. Ch. ; 7 B. & S. 490 ; 35 L. J. (M.C.) 161. (2) 11 Cox, Cr. C. 607. VOL.L] HILARY TERM, XXXV VICT. 351 Byles, Keating, Blackburn, Mellor, Lush, Brett, Grove, and Quain, JJ. T. S. Pritchard (Selfe with him), for the prisoner. The reason why at common law a party to any proceeding, whether civil or criminal, was not admissible as a witness, was on the ground of interest : Worrall v. Jones. (1) In Phillips on Evidence, 8th ed., p. 68, it is expressly so stated as to criminal proceedings : " With regard to the competency of defendants in criminal prosecutions, it is scarcely necessary to observe, that as they are in general im- mediately interested in the event, it does not often happen that they can be called as witnesses." Then 6 & 7 Viet. c. 85, s. 1 (2) abolished in general terms incapacity from crime or interest, and that would have admitted the testimony of the parties to any proceeding, civil or criminal, including a prisoner under such circumstances as the present, had it not been for the proviso which excludes "any party individually named in the record." Then came 14 & 15 Viet. c. 99 (3), s. 1 of which repealed the above 1872 THE QUEEN v. PAYNE. (1) 7 Bing. 395. (2) 6 & 7 Viet. c. 85, s. 1, enacts that "no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, either in person or by deposition, according to the prac- tice of the Court, on the trial of any issue joined, or of any matter or ques- tion, or on any inquiry arising in any suit, action, or proceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magistrate, officer, or person having by law, or by consent of parties, authority to hear, receive, and examine evidence ; but that every person so offered may and shall be admitted to give evidence on oath, or solemn affirmation in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, ques- tion, or injury [sic], or of the suit, action, or proceeding in which he is offered as a witness, and notwithstand- ing that such person offered as a wit- ness may have been previously con- victed of any crime or offence : Pro- vided that this Act shall not render competent any party to any suit, action, or proceeding individually named in the record, or any lessor of the plaintiff or tenant of premises sought to be re- covered in ejectment, or the landlord or other person in whose right any de- fendant in replevin may make cogni- zance, or any person in whose imme- diate and individual behalf, any action may be brought or defended, either wholly or in part, or the husband or wife of such persons respectively. . ." (3) 14 & 15 Viet. c. 99, s. 1, enacts that, "So much of s. 1 of 6 & 7 Viet. c. 85, as provides that the said. Act shall not render competent any party to any suit, action, or proceeding individually named on the record, or any lessor of the plaintiff, or tenant of premises sought to be recovered in ejectment, or the landlord or other 3J2 CROWN CASES RESERVED. [L.B. 1872 proviso in the earlier Act. Section 2 makes the parties to any V. PAYNE. THE QUEEN proceeding competent witnesses, " except as hereinafter excepted." And s. 3 gives the exceptions, viz., that a person charged in any criminal proceeding shall not be a witness for or against himself, and that the husband or wife of a party charged shall not be admissible for or against the wife or husband. Therefore, the old incapacity on the ground of interest having been swept away by the earlier Act, and the excluding proviso in that Act repealed by s. 1 of the later Act, and parties expressly made competent by s. 2, the only witnesses whose testimony is excluded are those excepted in s. 3, viz., a prisoner called on his own behalf, and the husband or wife of a prisoner called for or against the wife or husband. [BLACKBURN, J. By s. 3, a prisoner cannot give evidence for or against himself. But if a prisoner on his trial is examined, he must be cross-examined; and that can hardly be without his giving evidence against himself. COCKBUKN, C. J. Is s. 3 an exception to s. 2 at all ? Must not the proceeding in s. 2 mean proceeding ejusdem generis with the person in whose right any defendant in replevin may make cognizance, or any person in whose immediate and individual behalf any action may he brought or defended, either wholly or in part, is hereby repealed." S. 2: "On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding, in any court of justice, or before any person having by law, or by consent of par- ties, authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action, or other proceeding may be brought or defended shall, ex- cept as hereinafter excepted, be compe- tent and compellable to give evidence, either viva voce or by deposition, according to the practice of the Court, on behalf of either or any of the parties to the said suit, action, or other pro- ceeding." S. 3 : " But nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to an- swer any question tending to criminate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evi- dence for or against his wife, or any wife competent or compellable to give evidence for or against her husband." S. 4 : " Nothing herein contained shall apply to any action, suit, proceed- ing, or bill, in any court of common law, or in any ecclesiastical court, or in either house of parliament, instituted in consequence of adultery, or to any action for breach of promise of mar- riage." VOL. L] HILARY TERM, XXXV VICT. 353 suit or action specifically mentioned ? And if so, can the section 1872 apply to criminal proceedings at all ? The words " civil or *THE QUEEN criminal," used in the older Act, are omitted in this section.] PAYNE. Section 2 expressly refers to s. 3 by the words, " except as here- inafter excepted." [BKAMWELL, B. Those words may well apply to s. 4, which excepts proceedings founded upon adultery, and for breach of promise of marriage. LUSH, J. Section 3 speaks also of the case of the husband or wife of a person accused ; and that cannot be an exception to s. 2, for s. 2 would not apply to the case.] There is authority for the admissibility of this evidence. In Eeg. v. Deeley[(l), Mellor, J., admitted similar evidence. And that ruling has been followed by Pigott, B., in Eeg. v. Parry and Allman (2), and by Lush, J. [KEATING, J., referred to Eeg. v. Stevenson and Coulter, before Ball, J., at the Armagh Spring Assizes, 1851, cited 3 Kussell on Crimes, 4th ed., by Greaves, 627, n.] The law is so laid down in 2 Taylor on Evidence, 5th ed. 1179: "If, therefore, several persons be jointly indicted, any one of them may, under s. 2, be called as a witness either for or against his confederates, excepting only in those few cases where the in- dictment is so framed as to give him a direct interest in obtaining their discharge," such as those in which the offence can only be committed by a certain number of persons ; and the writer treats Eeg. v. Jackson (3), to the contrary effect, as overruled. And this passage is cited without disapproval in 3 Eussell on Crimes, 4th ed. by Greaves, p. 625. Upon the analogous question, as to the ad- missibility of the evidence of the wife of one prisoner as a witness for another tried jointly with him, there has been some conflict of authority ; but the later cases are in favour of its admissibility. In Bex ]v. Smith (4) such evidence was held inadmissible by all the judges except Graham, B., and Littledale, J. But in Eeg. v. Moore (5), though Bex v. Smith (4) was cited, Maule, J., admitted such evidence. And in Eeg. v. Bartlett (6), Wightman, J., after (1) 11 Cox, Cr. C. 607. (4) 1 Moo. Cr. C. 269. (2) Not reported. (5) 1 Cox, Cr. C. 59. (3) 6 Cox, Cr. C. 525. (6) 1 Cox, Cr. C. 105. CROWN CASES RESERVED. [L. R. 1872 consulting Cresswell, J., took the same course. In the present THE QCEEN * case it appears that the prisoner whom it was proposed to call had * actually been examined before the magistrates ; and he had been f AYK E. ' bound over to appear and give evidence under 30 & 31 Yict. c. 35, s. 3. It cannot have been intended that a prisoner should be deprived of the benefit of that section by the witness being sub- sequently included in the indictment. [COCKBURN, C.J. The remedy for that is to apply to have the prisoners tried separately. And if the witness were improperly included in the indictment, the judge would, no doubt, grant such an application.] The fact of the proposed witness having been given in charge to the jury does not affect the case. There is no giving in charge in misdemeanour ; and in felony its only effect is to identify the prisoner whom the jury have to try. [BLACKBURN, J. It is much more than that. It fixes irrevo- cably that the particular jury to whom he is given in charge is the one to decide his guilt or innocence. Can it be that the jury which has to do this may first hear him examined and cross-examined ?] In Winsor v. The Queen (1) the witness was jointly indicted with the prisoner, and had been given in charge, and no verdict had been taken as to her, nor a nolle prosequi entered. But it was the opinion of all the judges that her evidence was properly received. (2) [BLACKBURN, J. The witness was a party to the record ; but had not been given in charge to the same jury.] It is true that in that case Cockburn, C. J., says (3), that " in all cases where persons are jointly indicted, and it is thought neces- sary to have the evidence of one against the other, it is better, in order to insure the greatest amount of truthfulness of the testi- mony, that a verdict of not guilty should be taken, or, if the circumstances admit of it, a plea of guilty should be taken, and sentence passed." But that is only a suggestion of convenience, not a binding rule. [COCKBURN, C.J. A notion has gone abroad that I laid down (1) 6 B. & S. 143 ; 35 L. J. (M. C.) (2) 7 B. & S. at pp. 494, 503. 121 ; S. C. in Ex, Ch. 7 B. & S. 490 ; (3) 6 B. & S. at p. 178. 35 L. J. (M.C.) 161. VOL. I.] HILARY TERM, XXXV VICT. 355 that oiie of these courses must be taken. That is very different 1872 from what I did say ; I only spoke of what is convenient.] THE QUEEN F. T. Streeten (Jelf with him), for the prosecution. The common law principle is correctly stated in Haivkesworth v. Showier (1), by Lord Abinger, C.B., viz., that a party to the record, and affected by the issue, was incompetent. And the statutes cited have not altered it in the case of a prisoner on his trial. The first Act, 3 & 4 Wm. 4, c. 42, s. 26, was limited to actions. 6 & 7 Viet. c. 85, s. 1, applied to criminal proceedings as well, so far as to remove the incapacity from crime or interest. But the proviso excluding parties does not mention criminal proceedings. This shews that the person jointly indicted with another was not ex- cluded on the ground merely of interest. [BLACKBURN, J. What interest can one person be said to have in getting off another ? BRETT, J. Is not the true ground the broad one that no one on his trial for a criminal offence can be examined or cross-examined, because no one is bound to criminate himself ?] 14 & 15 Viet. c. 99, s. 2, does not apply to criminal cases at all ; and s. 3 is only introduced ex majore cautela. It was introduced in the House of Lords against Lord Campbell's protest. But even if that section did apply, still by s. 3 a man cannot give evidence for or against himself ; and if he is put in the witness-box while on his trial there is no drawing the line, and he must give evidence ' against himself. The cases to the contrary which have been cited are mere rulings at the assizes, and cannot weigh with this Court against clear principles ; and the rule cited from Taylor on Evidence is not law. Pritchard, in reply, referred to Eeg. v. Stewart. (2) COCKBURN, C.J. We are all of opinion that the evidence re- jected was properly rejected. We are all agreed that the exception in 14 & 15 Viet. c. 99, s. 3, was introduced to prevent any possi- bility of its being thought that the law as it had existed from the earliest times was altered by the Act. By that law it was a dis- tinguishing characteristic of our criminal system that a prisoner on his trial could neither be examined nor cross-examined. We (1) 12 M. & W. 45, at p. 47. (2) 1 Cox, Or. C. 174. 356 CEOWN CASES RESERVED. [L. R. is:-.: think it is impossible to suppose that it could have been intended THE QCKEK to change this rule by a mere sidewind by means of this exception. Conviction affirmed. Attorney for prosecution : E. Saunders, Jun., Kidderminster. Attorney for the prisoner : Miller Corbett, Kidderminster. fa". 30- THE QUEEN v. SAMUEL SMITH WARD. Wounding Indictment for Felony 24 & 25 Viet. c. 100, s. 18 Conviction for Misdemeanour 14 & 15 Viet. c. 19, s. 5 Malice Intent to Frighten Evidence. The prosecutor and prisoner were out at night in separate punts, on a creek, in pursuit of wild fowl. The prisoner, who was jealous of any one going there to shoot, and had threatened to fire at birds notwithstanding other persons might be between him and them, discharged his gun from a distance of twenty-five yards towards the punt in which the prosecutor lay paddling. At that moment the pro- secutor's punt slewed round, and the prosecutor was struck by some of the shot and seriously wounded, whereupon the prisoner rendered him help, assuring him that the injury was an accidental result of the slewing round of the punt. The night was light and the boat visible- fifty yards off. No birds were in view. The two men had always been on good terms, and the gun was fired apparently with the intention of frightening the prosecutor away rather than that of hurting him. The prisoner was indicted for the felony of wounding with intent to do grievous bodily harm ; but the jury, under 14 & 15 Viet. c. 19, s. 5, found him guilty of the misdemeanour of unlawfully wounding : Held, that "unlawful wounding" within the meaning of that section must be " malicious ;" and that there was proof of malice, which justified the conviction of the prisoner. CASE stated by Cockburn, C.J. The prisoner was tried before me at the last assizes for the comity of Suffolk, on a charge of unlawfully, maliciously, and feloniously wounding one William Job Chatten, with intent to do him grievous bodily harm. The prosecutor, Chatten, and the prisoner were both fishermen, living at Aldebury, in Suffolk, and both were in the habit of going out in punts to shoot wild fowl, in a creek of the Eiver Aide. The manner of using a punt for the purpose of shooting wild fowl is that the gunner lies with his face downwards in the boat, extending his arms over the sides, and propelling the boat by VOL. I.] HILAEY TEEM, XXXV VICT. 357 means of a pair of short paddles, so as to avoid, as much as possi- 1872 ble, being seen by the birds on the water. THE QOEEX~ On the evening of the 30th of January, 1871, the prosecutor, Chatten, was on the water in his punt, in pursuit of wild fowl. Having been out some time, and finding no birds about, he deter- mined to return, and having put his arm out was using the paddle to slew the punt round for that purpose, when he suddenly heard the report of a gun, and at the same time found himself struck by several shots in the left arm and eye, the effect of which was seriously to injure his arm, and so to damage his eye as to render its total extraction necessary a few days after. There was no doubt that the shot by which the prosecutor was injured was fired by the prisoner. On the prosecutor calling out on being struck, and asking who had fired the shot, the prisoner, who was in his punt, about twenty-five yards off, came forward, and said he had fired it, adding that, if Chatten had not turned his boat round as he, prisoner, was in the act of firing, the shot would not have struck him. This being so, the question in the case was under what circumstances and with what intention prisoner had fired off the gun. It was proved that the night was light, so that birds and, a for- tiori, a punt on the water could have been plainly seen at a distance of fifty to sixty yards ; and it was positively sworn by the prose- cutor that there were no birds about on that evening, certainly none in the neighbourhood of his boat. It was plain, therefore, that the prisoner had not fired for the purpose of killing wild fowl. Evidence was given from which it appeared that the prisoner was extremely jealous of persons going in pursuit of wild fowl on the water where the event took place, and had on different occasions used threatening language to the effect that he should shoot at birds if occasion offered, notwithstanding other persons might be between him and them ; and it was suggested by the prosecution that the prisoner had intentionally shot at the prosecutor with the intent to injure him, and thereby to prevent him pursuing wild fowl on the water in question in future. On the other hand it appeared that the prosecutor and the prisoner had always been on good terms, having formerly been shipmates on board the same pilot vessel. It was admitted by the 3jS CROWN CASES EESERVED. [L. K. 1872 prosecutor that, on his calling out, the prisoner at once came THE QUEEN forward, and ascribed the fact of the shot having taken effect to the sudden change of the position of the prosecutor's boat a change of position which was an admitted fact and assured the prosecutor that the result was purely accidental. It appeared that the prisoner had towed the prosecutor's punt into the harbour, and rendered him every assistance in getting on shore. The prisoner received an excellent character for good conduct and humanity. Under these circumstances it seemed to be more probable that the prisoner shot off his gun in the direction of the prosecutor's boat, with the intention of frightening him, and so deterring him from again coming into the creek for the purpose of fowling, rather than that he shot with the intent of doing him bodily harm. While, therefore, the learned judge left the question of the intent charged in the indictment to the jury, he directed them that, it they took the more favourable view of the case, they should find the prisoner guilty of unlawfully wounding. This they accordingly did ; but thinking it deserving of consideration whether a wounding occasioned by an act done without any actual malice or intention of offering violence to the prosecutor, would be sufficient to con- stitute an " unlawful wounding " within the meaning of the statute 24 & 25 Viet. c. 100, s. 20, the learned judge reserved that ques- tion for the consideration of this Court, and requested their judgment thereupon. 1871. Nov. 18. The Court (Kelly, C.B., Byles, Lush, and Hannen, J J., and Pigott, B.) reserved the case for the considera tion of all the judges. Jan. 30. The case was argued before Cockburn, C.J., Kelly, C.B., Martin, Channell, Bramwell, Pigott, and Cleasby, BB., Willes, Byles, Blackburn, Mellor, Lush, Brett, Grove, and Quain, JJ. [COCKBURN, C.J. The statement of the statute in this case is wrong, the question before us really arises on s. 5 of 14 & 15 Yict. c. 19. (1)] (1) 14 & 15 Viet. c. 19, s. 5, enacts shall allege that the defendant did cut, that " if upon the trial of any indict- stab, or wound any person, the jury ment for any felony, except murder or shall be satisfied that the defendant is manslaughter, where the indictment guilty of the cutting, stabbing, or VOL. I.] HILAEY TERM, XXXV VICT. 359 Metcalfe, for the prisoner. The indictment is under 24 & 25 1872 Viet. c. 100, s. 18, which provides for the felony of wounding with ~ TJIE Q UEEN intent to do grievous bodily harm. Section 20, enacting that * whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person shall be guilty of a misdemeanour, takes the place of the repealed 4th section of 14 & 15 Viet. c. 19. But s. 5 of the last-mentioned statute is still in operation. [COCKBUEN, C.J. And, strange to say, was omitted from the Consolidated Act, 24 & 25 Viet. c. 100.] It enables the jury trying a prisoner upon an indictment for felonious wounding to acquit him of the felony, and find him guilty of the misdemeanour of unlawful wounding only. But if they do so they must find him guilty of unlawfully and maliciously wound- ing, although the word maliciously is not in s. 5. [CoCKBUEN, C.J. The wounding stated in the indictment minus the intent there charged ?] Yes ; the offence provided for by s. 4 of the same Act or the equivalent section of the recent statute. Secondly. Malice is essential, either actual or such as the law would imply. There must be an unlawful act done with intention to assault. If a man fired at another even from so great a distance that the shot would not reach him, still there would be an intention to hit him. But the prisoner did not aim at the prosecutor. [MAETIN, B. Is not careless firing which causes a wound sufficient ?] ( It is not ; and were death to ensue the person wounding would wounding, charged in such indictment, 24 & 25 Viet. c. 100, s. 18, enacts but are not satisfied that the defendant that " whosoever shall unlawfully and is guilty of the felony charged in such maliciously wound any person with in- indictment, then and in every such tent to do grievous bodily harm, shall case the jury may acquit the defendant be guilty of felony." of such felony, and find him guilty of Sect. 20 enacts that " whosoever unlawfully cutting, stabbing, or wound- shall unlawfully and maliciously wound ing, and thereupon such defendant shall or inflict any grievous bodily harm be liable to be punished in the same man- upon any other person, either with or ner as if he had been convicted upon without any weapon or instrument, an indictment for the misdemeanour shall be guilty of a misdemeanour. . ." of cutting, stabbing, or wounding." VOL. I. 3 F 4 3G3 CROWN CASES RESERVED. [L. B. 1872 be guilty of manslaughter, but not of murder, because he had no THj^QrEKJr malice. The question is whether " maliciously " means " iiiten- * tionally." Suppose one to fire from his own land across a highway and to shoot a passer-by : although it is unlawful to fire on the highway, yet could it be said that the injury to the person was a malicious wounding? Or again, if a bonfire were made near a public road, which would be an illegal act, and the flame, blown by the wind, ignited a haystack, could the offender be convicted nnder 24 & 25 Viet. c. 97 of unlawfully and maliciously setting fire to the hay ? BLACKBURN, J., referred to Reg. v. Child. (1)] The jury have found no intent to injure. "Malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse," per Littledale, J., in McPherson v. Daniels. (2) [BLACKBUUN, J. I have always thought a man acts maliciously when he wilfully does that which he knows will injure another in person or property.] It will suffice for the present argument to treat the word " maliciously " as synonymous with " intentionally :" Reg. v. Noon (3) ; Reg. v. Sparrow. (4) Some meaning and effect must be given to the word. [MELLOR, J. Was there not mains animus in the prisoner who intended to frighten the prosecutor away ?] lie had no evil mind to wound. [COCKBURN, C.J. When a man does an act malicious of itself, but without intending larger consequences, are not the limitel results sufficient to make him responsible for all ? To support an indictment for murder it is enough to prove that the act causing death was done maliciously, and it is not necessary to shew an intention to kill] Then if this act of which the prisoner has been convicted had caused death, his offence would have been murder. Firing a gun to frighten was unlawful, but the wound not having been given intentionally the act was not malicious, and therefore not within the terms of the statute. [MELLOR, J. In the introduction to the Discourse of Homicide (1) Law Rep. 1 Or. C. 307. (3) 6 Cox, Cr. C. 137. 0>) 10 15. & (I at i>. Ii72. (4) Bell, Cr. C. 298. VOL. I] HILARY TERM, XXXV VICT. 301 by Foster, p. 257, we read that the legislature has frequently used 1872 the terms malice and maliciously in a general sense, " as denoting THE QDEEN a wicked, perverse, and incorrigible disposition."] No counsel appeared for the prosecution. COCKBURN, C.J. We have considered this case v and are all agreed that in construing s. 5 of 14 & 15 Viet. c. 19 we should read that section as though the term malicious had been introduced, and that it is an essential element in a conviction under that section that the act which caused the unlawful wounding should have been done maliciously as well as unlawfully; With respect to whether the facts of the present case as stated amount to proof of the necessary malice or not, the Court has been divided, twelve out of fifteen judges being of opinion that there was proof of malice. The conviction must, therefore, be affirmed. Conviction affirmed. Attorney for prisoner : Storey, for Chamberlain, Yarmouth. OP HILAEt TERM, VOL. r.. 3 a 362 CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN EASTER TERM, XXXV VICTORIA. 1872 THE QUEEN v. REEVE AXD HANCOCK. Evidence Confession Admissibility . The prisoners, two children, one aged eight and the other a little older, were tried for attempting to obstruct a railway train. It was proved that, the mothers of the prisoners and a policeman being present, after they had been appre- hended, the mother of one of the prisoners said : " You had better, as good boys, tell the truth ;" whereupon both the prisoners confessed : Held, that this confession was admissible in evidence against the prisoners. CASE stated by Byles, J. The prisoners were children. One was eight years of age and the other a little older. They were convicted at the Worcester Assizes of an attempt to commit a misdemeanour by obstructing a railway train. The evidence was, that Hancock's mother, Reeve's mother, and a policeman being present, after they had been apprehended on suspicion, Mrs. Hancock said, " You had better, as good boys, tell the truth ;" whereupon both the prisoners confessed, and on this confession were both convicted. The question for the opinion of the Court was, whether the confession was admissible against both the prisoners, or either. No counsel appeared for the prisoners. F. T. Streeten, for the prosecution, cited Reg. v. Jarvis. (1) He was stopped by the Court. (1) Ante, p. 96, VOL. I.] EASTEE TERM, XXXV VICT. 368 KELLY, C.B. We need not hear you further. The cases had 1872 no doubt at one time gone a great deal too far in the exclusion of THE QCEMT such evidence as that now in question. But the case cited is binding upon us; and it is a much stronger case than the present. WILLES, J. I am. of the same opinion. It seems to have been supposed, at one time, that saying "Tell the truth" meant, in effect, Tell a lie." CLEASBY, B., GROVE, and QUAIN, JJ., concurred. Conviction affirmed. Attorneys for prosecution : Young, Maples, & Co. THE QUEEN v. WILLIS. Ma * * Penal Servitude Previous Conviction of Felony not charged in Indictment 27 & 28 Viet. c. 47, s. 2. By 27 & 28 Viet. c. 47, s. 2, " Where any person shall on indictment be con- victed of any crime or offence punishable with penal servitude, after having been previously convicted of felony, the least sentence of penal servitude that can be awarded in such case shall be a period of seven years." The prisoner was convicted of a crime punishable with penal servitude, and it was proved that he had been previously convicted of felony ; but the previous conviction was not stated in the indictment : Held, that the above section did not apply. CASE stated by Bramwell, B. This case was tried at the last assizes for the city of Exeter. It was an indictment for wounding with intent to do grievous bodily harm, and the prisoner was found guilty of unlawfully wounding. It was proved, though not stated in the indictment, that he had been before convicted of felony. Indeed he had been three times so convicted, "and sentenced on each occasion to long periods of transportation. The case was a very bad one, and the learned judge sentenced him to seven years' penal servitude, which was not more than an adequate sentence. If he sentenced him to penal servitude, and had power to do so for more than five years, 3 G 2 4 3Gi CBOWN CASES RESERVED. [L. R. 1872 he was bound to sentence him for seven. (1) If he had not such TIIK QUEEN P wer > th sentence should not have exceeded five years. On this , * the learned judge desired the opinion of the Court, and according to that the sentence was to stand or be reduced to five years. Cur. adv. vult. April 27. No counsel appeared. May 4. The judgment of the Court (Kelly, C.B., Willes, Grove, and Quain, JJ., and Cleasby, B.) was delivered by KELLY, C.B. In this case we are of opinion that, inasmuch as the previous conviction was not mentioned w in the indictment, the statute requiring a minimum sentence of seven years' penal servi- tude did not apply. Consequently, to the question whether the judge was bound to pass a sentence of seven years' penal servitude, we must answer that he was not so bound. The prisoner was entitled to have his identity tried by a jury, which could not be, as the previous conviction was not upon the record. The case of Reg. v. Summers (2) is an authority to this effect. In thus giving effect to the sentence of five years' penal servitude instead of seven, we give effect to the learned judge's sentence, and are not passing a sentence of our own. The judgment will be amended into a sentence of five years, pursuant to the statute 11 & 12 Viet. c. 78, s. 2. Sentence amended accordingly. (1) By 27 & 28 Viet. c. 47, s. 2, victed of felony, .... the least ". . . . Where any person shall on sentence of penal servitude that can indictment be convicted of any crime be awarded in such a case shall be or offence punishable with penal servi- a period of seven years. " tude, after having been previously con- (2) Ante, p. 182. VOL. I] EASTER TERM, XXXV VICT. 305 THE QUEEN v. EDWARD REA. 1872 Jj'ujnmy Marriage Irfure Registrar Misnomer 6 & 7 W m. 4, c. 85, ss. 4, 42. The prisoner, having a wife living, was married to another woman in the pre- sence of the registrar, describing himself not as E. R., his true name, but as B. R. There was no evidence to shew that the second wife knew that his Christian name was misdescribed : Held, that the prisoner was guilty of bigamy. CASE stated by Byles, J. The prisoner was indicted at Shrewsbury Assizes for bigamy. He was married in 1866, by the name of Edward Eea, to his first wife, now living, who refused to cohabit with him, and told him he might go and marry any other woman. In 1872 he, accord- ingly, married another woman in the presence of the registrar, describing himself not as Edward Rea, his true name, but as Benjamin Eea. There was no evidence to shew whether the second wife, at the time of her marriage, knew or did not know that his Christian name was' misdescribed. He was convicted of bigamy, subject to the opinion of this Court whether on these facts the felony was proved. April 27. No counsel appeared. Car. adv. vult. May 4. The judgment of the Court (Kelly, C.B., Willes, Grove, and Quain, JJ., and Cleasby, B.) was delivered by KELLY, C.13. This case must be decided upon the same prin- ciples which applied to the case of marrying by banns, because the language of the statute for marriage before a registrar, 6 & 7 Win. 4, c. 85, ss. 4, 42, follows the provisions as to banns, and ought to receive the same construction. As to banns, it is clear that, to render a marriage invalid, it must be contracted with a knowledge by both parties that no true publi- cation of banns had taken place : Eex v. Wroxton (1) ; Tongue v. Tongue. (2) In this case the map pnly appears to have known of (1) 4 B. & Ad. 640. (2) 1 Moo. P. C. 90. CBOWN CASES BESEBVED. [L. B. 1872 the misnomer ; and the presumptions in favour of marriage clearly THE QUEEN throw the burden of proof of invalidity upon the party alleging * it. This was assumed in Tongue v. Tongue (1) ; otherwise the state- ment of Parke, B,'s dissent would have been superfluous. There- fore, without saying that if both parties knew of the misnomer there would have been no offence against the statute of bigamy (2), the conviction ought to be affirmed. Conviction affirmed. (1) 1 Moo. P. C. 90. (2) See Reg. v. Allen, post, p. 367. END OF EASTEB TEBM, 1872. VOL. t] 367 CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN TRINITY TERM, XXXV VICTORIA. THE QUEEN v. HENRY ALLEN. 1872 Bigamy Second Marriage invalid independently of the First 24 & 25 Viet. May 23. c. 100, s. 57. Where a person, already bound by an existing marriage, goes through with another person a form of marriage known to and recognized by the law as capable of producing a valid marriage, for the purpose of a pretended and fictitious marriage, such person is guilty of bigamy, notwithstanding any special circumstances which, independently of the bigamous character of the marriage, may constitute a legal disability in the parties, or make the form of marriage resorted to inapplicable to their case. The prisoner, having a wife living, went through the ceremony of marriage with another woman, who was within the prohibited degrees of affinity ; so that the second marriage, even if not bigamous, would have been void under 5 & 6 Wm. 4, c. 54, s. 2 : Held, that the prisoner was guilty of bigamy. Reg. v. Fanning (17 Ir. 0. L. 289; 10 Cox Cr. C. 411) disapproved. CASE stated by Martin, B. Indictment for bigamy. At the trial before Martin, B., at the Manchester Spring Assizes, 1872, it was proved that on the 24th of February, 1853, the prisoner married one Sarah Cunningham. She died in August, 1866, leaving a niece named Harriet Crouch. On the 30th of November, 1867, he married one Ann Pearson Gutteridge, and on the 2nd of December, 1871, and in the lifetime of Ann Pearson Gutteridge, he married the above-named Harriet Crouch. 368 CROWN CASES EESEEVED. [L. B. 1872 It was objected by the learned counsel for the prisoner that the THE QCFEN marriage with Harriet Crouch, his first wife's niece, was void, and / that the crime of bigamy was not committed. It was stated that the Court of Criminal Appeal in Ireland had so decided, and in deference to this decision, at the request of the prisoner's counsel, the learned Judge stated this case. The question for the Court was, whether the prisoner was guilty of bigamy. (1) April 27. THE COURT (Kelly, C.B., Willes, Grove, and Quain, JJ., and Cleasby, B.) reserved the case for the consideration of all the Judges. May 4. The case was argued before Cockburn, C.J., Bovill, C.J., Kelly, C.B. ; Martin, Bramwell, Channel!, Pigott, and Cleasby, B.B. ; Willes, Byles, Blackburn, Mellor, Lush, Hannen, Grove, and Quain, JJ. E. U. Bullen appeared for the prisoner. Warnj for the prosecution. The following authorities were cited : Reg. v. Fanning (2) ; Reg. v. Brawn (3) ; Burt v. Burt (4) ; Reg. v. Millis (5) ; Reg. v. Allison (6) ; 1 Kussell on Crimes, 4th cd. by Greaves, p. 307. Cur, adv. vult. May 23. The judgment of the Court was delivered by Cock- burn, C.J. : This case came before us on a point reserved by Martin, B., at the last assizes for the county of Hants. The prisoner was in- dicted for having married one Harriet Crouch, his first wife being still alive. The indictment was framed upon the statute 24 & 25 Viet. c. 100, s. 57, which enacts that " whosoever being married (1) By 24 & 25 Viet. c. 100, s. 57 : affinity shall be absolutely null and void "Whosoever, being married, shall marry to all intents and purposes whatsoever." any other person during the life of the (2) 17 Ir.C. L. 289 ; 10 Cox Cr. C. 411. former husband or wife .... shall be (3) 1 C. & K. 141. guilty of felony." (4) 2 Sw. & Tr. 88 ; 29 L. J. (P. M. By 5 & 6 Wra. 4, c. 54, s. 2 : " All & A.) 133. marriages between persons within the (5) 10 Cl. & F. at p. 689, prohibited degrees of consanguinity or (6) R. & R. C. C. 109. VOL. L] TRINITY TERM, XXXV VICT. 309 shall marry any other person during the life of the former husband 1572 or wife shall be guilty of felony." The facts of the case were THE QI-EEH" clear. The prisoner had first married one Sarah Cunningham, . * A LI EN f # and on her death he had married his present wife, Ann Parson Gutteridge. The second wife being still living, he, on the 2nd of December, 1871, married one Harriet Crouch. So far the case would appear to be clearly one of bigamy within the statute ; but, it appearing that Harriet Crouch was a niece of the prisoner's first wife, it was objected, on his behalf, that since the passing of 5 & 6 Wm. 4, c. 54, s. 2, such a marriage was in itself void, and that to constitute an offence, within 24 & 25 Viet. c. 100, s. 57, the second marriage must be one which, independently of its bigamous character, would be valid, and, consequently, that the indictment could not be sustained. For the proposition that, to support an indictment for bigamy, the second marriage must be one which would have been otherwise valid, the case of Reg. v. Fanning (1), decided in the Court of Criminal Appeal in Ireland, was cited, and, in deference to the authority of the majority of the judges in that Court, Martin, B., has stated this case for our decision. It is clear that, but for the statutory inability of the parties to marry one another if free, the marriage of the prisoner with Harriet Crouch would have been within the 57th section of tlie Act. The question is, whether that circumstance alters the effect of the prisoner's conduct in going through the ceremony of marriage with Harriet Crouch while his former wife was still living. The same question arose in the case of Reg. v. Braim (2), which was tried before Lord Denman on the earlier statute of 9 Geo. 4, c. 31, s. 22, the language of which was precisely the same as that of the present. In that h case the prisoner, a married woman, had, during her husband's lifetime, married a man who had been the husband of her deceased sister. The same point as is now raised being taken on behalf of the prisoner, Lord Denman overruled the objection. " I am of opinion," said his Lordship, "that the validity of the second marriage does not affect the ques- tion. It is the appearing to contract a second marriage, and the going through the ceremony, which constitutes the crime of bigamy ; otherwise it could never exist in the ordinary cases, as (1) 17 Ir. C. L. 289 ; 10 Cox, Cr. C. 411. (2) 1 C. & K. 144. 370 CROWN CASES RESERVED. [L. R. 1872 a previous marriage always renders null and void a marriage that r/HEQt-EEN is ceK'lu-ated afterwards by either of the parties during the lif'e- ALLEN ^ me ^ *^ e ^ er * Whether, therefore, the marriage of the two prisoners " the male prisoner had been included in the indictment as an accessory " was or was not in itself prohibited, and therefore null and void, does not signify ; for the woman, having a husband then alive, has committed the crime of bigamy by doing all that in her lay by entering into marriage with another man." In the earlier and analogous case of Eeg. v. Penson (1), a similar objec- tion had been taken, on the ground that the second marriage was invalid, by reason that the woman whom the prisoner was charged witli having married whilst his first wife was alive, had, for the purpose of concealing her identity, been described as Eliza Thick, her true name being Eliza Brown. But Gurney, B., who tried the case, overruled the objection, being of opinion " that the parties could not be allowed to evade the punishment for such an offence by contracting a concertedly invalid marriage." We should have acted without hesitation on these authorities had it not been for the case, already referred to, of Reg. v. Fan- ning (2), decided in the Court of Criminal Appeal in Ireland, a case which, if not on all fours with the present, is still closely ana- logous to it, and which, from the high authority of the Court by which it was decided, was entitled to our most attentive consider- ation. We therefore took time to consider our judgment. The facts in Eeg. v. Fanning (2) were shortly these. The pri- soner, being a Protestant, and having within twelve months been a professing Protestant, was married, having a wife then living, to another woman, who was a Koman Catholic, the marriage being solemnized by a Roman Catholic priest. Independently of the second marriage being bad as bigamous, it would have been void under the unrepealed statute of the 19 Geo. 2, c. 13, which prohibits the solemnization of marriage by a Eoman Catholic priest where either of the parties is a Protestant, and declares a marriage so solemnized null and void to all intents and purposes. On an indictment against the prisoner for bigamy, the invalidity of the second marriage was insisted on as fatal to the prosecution. (1) 5 C. & P. 412. (2) 17 Ir. C. L. 289 ; 10 Cox, Cr. C. 411. . I.] TEINITY TEEM, XXXV VICT. 371 The point having been reserved, seven judges against four in the 1872 Court of Criminal Appeal held the objection to be fatal, and quashed THE QUEEN the conviction. After giving our best consideration to the reason- ALLEN ing of the learned judges who constituted the majority of that Court, we find ourselves unable to concur with them, being unani- mously of opinion that the view taken by the four dissentient judges was the right one. The reasoning of the majority of the Court in Eeg. v. Fanning (1) is founded mainly on the verbal criticism 'of the language of the 24 & 25 Viet. c. 100, s. 57 ; and the words being that " if any person, being married, shall marry any other person," it was insisted that whatever sense is to be given to the term " being married," the same must be given to the term " marry " in the subsequent part of the sentence, and that consequently, it being admitted that the term " being married" implies a perfect and binding marriage, the second marriage must also be one which, but for the prohibition of the statute, would j be whether as regards capacity to contract marriage or the manner in which the marriage is solemnized binding on the parties. Two authorities were relied on in support of this reading of the statute, namely, the language of Tindal, C.J., in delivering the opinion of the judges in the House of Lords in the well-known case of Eeg. v. Millis (2), and the decision of the Judge Ordinary of the Divorce Court in the case of Burt v. Burt. (3) In the first of these cases Tindal, C. J., undoubtedly says that the words " being married" in the first part of the sentence, and the words " marry any other person," in the second, must of necessity point at and denote " marriage of the same kind and obligation." But it must be borne in mind that the question before the House of Lords was, whether the first marriage, not the second, was valid, the invalidity of the second not being in question at all. In order to shew that the first marriage, which had been solemnized by a Presbyterian minister, at his own house, between a member of the Established Church in Ireland and a Presbyterian, amounted to no more than a contract per verba de prsesenti, and had failed to constitute a (1) 17 Ir. C. L. 289 ; 10 Cox, Cr. C. (3) 2 Sw. & Tr. 88; 29 L. J. (P. M. 411. & A.) 133. (2) 10 Cl. & F. at p. 689. 372 CROWN CASES RESERVED. [L. R. J872 valid marriage, the Chief Justice of the Common Pleas insists that, THE QCEEN if such a marriage had occurred in the second instance instead of ALLEN the ^ rs ^> ^ won ^ not have been held sufficient to support an indict- ment for bigamy. The case put by the Chief Justice was not the point to be decided ; it was only used for the purpose of argument and illustration. Whether the incapacity of the parties to contract a binding marriage independently of the bigamy would take a case like that of Reg. v. Fanning (1) out of the statute, was not present to his mind or involved in the decision of the case before the House. And the Chief Justice expressly states that, though the conclusion he had arrived at was concurred in by the rest of the judges, his reasoning was entirely his own. The language of the learned Chief Justice must therefore be taken as extra-judicial, and cannot bind us in expounding the statute now under consideration. The case of Burt v. Burt (2), in like manner, falls altogether short of the question we have now to decide. It was a suit for a divorce instituted by a married woman against her husband on the ground of bigamy, adultery, and desertion. To establish the bigamy, evidence was given that the husband had married a woman in Australia according to the form of the Kirk of Scotland, but there was no proof that the form in question was recognized as legal by the local law. Upon this latter ground the Judge Ordi- nary held that a second marriage was not proved so as to make good the allegation of bigamy. All, therefore, that this case shews is, that a second marriage by a form not recognized by law will not amount to bigamy under the Divorce Act. Admitting, as we are disposed to do, that the construction of the two statutes should be the same, the decision in Burt v. Burt (2) will not, as will presently appear, be found to conflict with our judgment in the present case, the second marriage having here been celebrated according to a form fully recognized by the law. We may, therefore, proceed to consider what is the proper con- struction of the statutory enactment in question, unfettered by these authorities. Before doing so it should, however, be observed, that there is this difference between the case of Reg. v. Fanning (1) and the present, that the form of marriage there resorted to was (1) 17 Ir. C. L. 289 ; 10 Cox, Cr. C. (2) 2 Sw. & Tr. 88 j 29 L. J. (P. M. 411. & A). 133. VOL. I.] tRttflTY THEM, XXXV VICT. 373 one which, independently of the bigamous character of the marriage, 1872 was, by reason of the statutory prohibition, inapplicable to the TUB QUEEN special circumstances of the parties, and ineffectual to create a valid marriage, whereas, in the case before us, independently of the in- capacity, the form would have been good and binding in law. This distinction is expressly adverted to by Christian, J., in his judgment as distinguishing the case before the Irish judges from that of Reg. v. Brawn (1), and it may be doubted whether, but for this distinction, the learned judge would not have come to a different conclusion. The other judges, constituting the majority, do not, however, rest their judgment on this distinction, but plainly go the length of overruling the decision of Lord Denman in Reg. v. Brawn. (1) Their judgments proceed on the broad in- telligible ground, that to come within the statutes against bigamy the second marriage must be such as that, but for its bigamous character, it would have been in all respects, both as to the capacity of the parties and the ceremonial adopted, as binding as the first. Differing altogether from this view, and being prepared to hold that, so long as a form of marriage has been used which the law recognizes as binding, whether applicable to the particular parties or not and further than this it is not necessary to go the offence of bigamy is committed, we have only adverted to the distinction referred to in order to point out that our decision in no degree turns upon it, but rests on the broader ground taken by the dis- sentient judges in the Irish court. When it is said that, in construing the statute in question, the same effect must be given to the term " marry " in both parts of the sentence, and that, consequently, as the first marriage must necessarily be a perfect and binding one, the second must be of equal efficacy in order to constitute bigamy, it is at once self- evident that the proposition as thus stated cannot possibly hold good ; for if the first marriage be good, the second, entered into while the first is subsisting, must of necessity be bad. It becomes necessary, therefore, to engraft a qualification on the proposition just stated, and to read the words " shall marry," in the latter part of the sentence, as meaning " shall marry " under sr.ch circum- stances as that the second marriage would be good but for the (1) 1 0. & K. 144. 374 CROWN CASES EESERVED. [L. R. 1872 existence of the first. But it is plain that those who so read the THE QCEEN statute are introducing into it words which are not to be found in r - it, and are obviously departing from the sense in which the term " being married " must be construed in the earlier part of the sentence. But when once it becomes necessary to seek the meaning of a term occurring in a statute, the true rule of construction appears to us to be, not to limit the latitude of departure so as to adhere to the nearest possible approximation to the ordinary meaning of the term, or to the sense in which it may have been used before, but to look to the purpose of the enactment, the mischief to be prevented, and the remedy which the legislature intended to apply. Now, we cannot agree either with Fitzgerald, B., in his judgment in Reg. v. Fanning (1), that the purpose of the statutes against bigamy was simply to make polygamous marriages penal, and that, consequently, it was only intended to consti- tute the offence of bigamy where the second marriage would, but for the existence of the first, be a valid one ; or with those judges who, in Reg. v. Fanning (1), found their judgments on the assumption that, in applying the statute against bigamy, the second marriage must be one which, but for the first, would be binding. Polygamy, in the sense of having two wives or two husbands, at one and the same time, for the purpose of cohabitation, is a thing altogether foreign to our ideas, and which may be said to be prac- tically unknown ; while bigamy, in the modern acceptation of the term, namely, that of a second marriage consequent on an abandon- ment of the first while the latter still subsists, is unfortunately of too frequent occurrence. It takes place, as we all know, more frequently where one of the married parties has deserted the other ; sometimes where both have voluntarily separated. It is always resorted to by one of the parties in fraud of the law ; sometimes by both, in order to give the colour and pretence of marriage where the reality does not exist. Too often it is re- sorted to for the purpose of villainous fraud. The ground on which such a marriage is very properly made penal is, that it involves an outrage on public decency and morals, and creates a public scandal by the prostitution of a solemn ceremony, which the law allows to be applied only to a legitimate union, to a marriage (1) 17 Ir. C. L. 289 ; 10 Cox, Cr. C. 411. VOL. I] TRINITY TERM, XXXV VICT. 375 at best but colourable and fictitious, and which may be made, and 1872 too often is made, the means of the most cruel and wicked de- THE QUEEN ception. It is obvious that the outrage and scandal involved in such a proceeding will not be less, because the parties to the second marriage may be under some special incapacity to contract mar- riage. The deception will not be the less atrocious, because the one party may have induced the other to go through a form of mar- riage known to be generally binding, but inapplicable to their particular case. Is the scandal or the villany the less because the man, having represented to the woman, who is his dupe, and to the priest, that he is a Konian Catholic, turns out afterwards to be a Protestant ? Such instances as those we have referred to, thus involving public scandal or deception, being plainly within the mischief which we may reasonably assume it must have been the purpose of the legislature to prevent, we are of opinion that we ought not to frustrate the operation of a very salutary statute, by putting so narrow a construction on it as would exclude such a case as the present, if the words are legitimately capable of such a con- struction as would embrace it Now the words " shall marry another person " may well be taken to mean shall " go through the form and ceremony of marriage with another person." The words are fully capable of being so construed, without being forced or strained ; and as a narrower construction would have the effect of leaving a portion of the mischief untouched, which it must have been the intention of the legislature to provide against, and thereby, as is fully admitted by those who contend for it, of bring- ing a grave reproach on the law, we think we are warranted in inferring that the words were used in the sense we have referred to, and that we shall best give effect to the legislative intention by holding such a case as the present to be within their meaning. To assume that the words must have such a construction as would exclude it, because the second marriage must be one which, but for the bigamy, would have been as binding as the first, appears to us to be begging the entire question, and to be running directly counter to the wholesome canon of construction, which prescribes that, where the language will admit of it, a statutory .enactment shall be so construed as to make the remedy co-extensive with the mischief it is intended to prevent. 376* CROWN CASES RESERVED. [L. B. 1872 In thus holding it is not at all necessary to say that forms of THE QUEEN" marriage unknown to the law, as was the case in Burt v. Burt (1), r> . would suffice to bring a case within the operation of the statute. A I.LKN. We must not ba understood to mean that every fantastic form of marriage to which parties might think proper to resort, or that a marriage ceremony performed by an unauthorized person, or in an unauthorized place, would be a marrying within the meaning of the 57th section of 24 & 25 Viet. c. 100. It will be time enough to deal with a case of this description when it arises. It is sufficient for the present purpose to hold, as we do, that where a person already bound by an existing marriage goes througli a form of marriage known to and recognized by the law as capable of producing a valid marriage, for the purpose of a pretended and fictitious marriage, the case is not the less within the statute by reason of any special circumstances, which, independently of the bigamous character of the marriage, may constitute a legal dis- ability in the particular parties, or make the form of marriage resorted to specially inapplicable to their individual case. After giving the case of Reg. v. Fanning (2) our best considera- tion, we are unanimous in holding that the conviction in the case before us was right, and that the verdict must stand good. Conviction affirmed* Attorneys for prosecution : Lamb & Son, Andover. Attorneys for prisoner : Footner & Son, Andover. (1) 2 Sw. & Tr. 88 ; 29 L. J. (P. M. (2) 17 Ir. C. L. 289 ; 10 Cor, Cr. C. & A.) 133. 411. VOL L] TRINITY TEBM, XXXV VIQT, 317 THE QUEEN v. JAMES THOMPSON, WILLIAM DANZEY, AND 1872 ABRAHAM HIDE, Jmel. Evidence- Competence Joint Indictment and Trial Wife, of One Prisoner called as Witness for Another, Where two prisoners are indicted and tried together, the wife of one is not a competent witness for the other. CASE stated by the chairman of quarter sessions for the county of Essex. This was a joint indictment, tried at the Easter quarter sessions for the county of Essex, against Thompson and Danzey, for steal- ing fifty-six pounds of onions, the property of their master, and against Hide for receiving the same, knowing them to be stolen. The charge was that the two first, being sent with two carts of vegetables to Covent Garden, stopped on the road at Hide's house, and there disposed to him of this bag of onions, stolen by the two conjointly from one of the carts. The prisoners did not ask to be tried separately, but the two first retained one counsel and Hide retained another. The case depended mainly on what had been done and said at the door of Hide's house, and in his kitchen, by Thompson, Danzey, Hide, and his wife Elizabeth, and a maid servant Eliza, sister of the prisoner Thompson. After the speech of the counsel for Thompson and Danzey, he tendered as a witness for his clients Elizabeth, the wife of the prisoner Hide. This was objected to by counsel for the prosecution, on the ground that her evidence must directly affect the case against her husband, inasmuch as the acquittal of the two would necessarily entail the acquittal of Hide, and, moreover, that anything tending to strengthen or weaken the evidence against them must have a similar effect on the evidence as regarded Hide. The following cases were referred to: Reg. v. Smith (1); Eeg. v. Moore (2) ; Eeg. v. Bartlett (3) ; Eeg. v. Deeley (4) ; Eeg. v. Payne. (5) (1) 1 Moo. C. C. 289. (3) 1 Cox, Cr. C. 105. (2) 1 Cox, Cr. C. 59. (4) 11 Cox. Cr. C. GOT. (5) Ante, r. 349. VOL. T, 3 H 4 378 CROWN CASES RESERVED. [L. R. v. THOMPSON. 1872 Under these circumstances, and considering the general policy x QuEEN of the law as rejecting the evidence of a wife for or against her husband in criminal cases, the Court refused to admit the evidence of the wife, subject to a case to be submitted to the Court for Crown Cases Eeserved. Thompson and Danzey were convicted and Hide was acquitted. No counsel appeared. BOVILL, C. J. We have considered the point in this case reserved for our decision, and we are of opinion that the wife of any one of the three prisoners stands in the same position with respect to the admissibility of her evidence as her husband. The three prisoners were all indicted in one indictment, though there were counts charging different offences ; and being indicted together, and tried together, and in charge of the jury, one of them could not be called as a witness for the others. This was so decided in "Reg. v. Payne (1) in January last. And as the wife stands in the same position as the husband, the present case cannot be dis- tinguished from that. BYLES, BLACKBURN, and MELLOR, JJ., and BRAMWELL, B., con- curred. Conviction affirmed. June 8. THE QUEEN v. HENRY MARTIN AND WILLIAM WEBB. View Mistrial Evidence heard by Jury out of Court Practice Juris- diction, It is no irregularity to allow the jury to have a view of premises after the judge has summed up the case. Where it is alleged that the jury have received evidence in the absence of the judge and of the prisoners, it is for the Court, before which the trial takes place, to investigate the facts, and ascertain whether the alleged irregularity has oc- curred. Quasre, whether, if such irregularity be so found to have occurred, this Court has jurisdiction to order a venire de novo, as for a mistrial. CASE stated by the Deputy- Assistant Judge for the Middlesex cessions. (1) Ante, p. 349. VOL. IJ . TRINITY TERM, XXXV VIOT. 379 The prisoners were indicted at the quarter sessions for the 1872 the county of Middlesex, held on the 6th of May, 1872, 1st, for THBQUEES~ indecent exposure in a public place ; and 2nd, for inciting each other to sodomy. The case for the prosecution was proved by t\vo policemen, John Tunbridge and Thomas Hunt. At 6 o'clock in the evening of tha 23rd of April, Tunbridge was on duty in St. James' Park. He saw the prisoner Webb (who was well known to him as a frequenter of urinals) lurking about one of the urinals in the park, and going in and out of it repeatedly. His suspicions being roused, he hid him self and watched. Soon afterwards he saw the prisoner Martin go in, upon which he crept up behind the urinal, and looking through the bars in the back of the wall he saw the prisoners in the act of exposing and handling the private parts of each other. He beckoned to Hunt, who came to the spot, and witnessed the same proceeding on the part of the prisoners. The defence was, that from the position in which the witnesses stood, and that in which the prisoners were described as standing, it was impossible for the witnesses looking through the bars of the urinal to have seen so far down the persons of the prisoners as to have beheld the filthy act and exposure which they had described. The prisoner Martin was defended by counsel. The prisoner Webb was undefended. After I had summed up the case, and while the jury were deliberating, they put some further questions to the witnesses as to their respective positions, and then the jury stated that it was very difficult to come to a decision without viewing the urinal and ascertaining by personal inspection if the witnesses could have seen what they had asserted, and they asked permission to view the locus in quo. Martin's counsel had then left the court. No objection to compliance with this request of the jury was made by either of the prisoners or on their behalf. In the absence of Martin's counsel I requested that his solicitor would accompany the jury on the view, and he also being absent, the view was attended by the solicitor's clerk. f The jury inspected the urinal, and there, as I am informed, asked the witnesses to point out the precise spot in which they had stood, and the place and the position in which the prisoners were 'standing, and then ;;$0 CROWN CASES RESERVED. [L. R. 1872 the jury placed themselves in the same position and looked through THE QUEEN the bars. MARTIN n tne re t urn of the jury to the court the counsel for the pri- soner Martin had left the court, but the solicitor or the clerk who had attended the view, or both, were present. No application was made by either of the prisoners, or on behalf of either of them, to be allowed to make any further comments to the jury on the pro- ceedings at the view. I asked the jury if they required any further observations or information from me. On their answering in the negative, I directed them to retire and consider their verdict. After a short consultation they found both the prisoners guilty, and they were sentenced severally to nine months' imprisonment with hard labour. The counsel for the prisoner Martin has applied for a case for the opinion of this honourable Court, on the ground that there had been mistrial : 1st, by reason of the view having been permitted to the jury after the summing up by the judge ; and, 2nd, by reason of the jury having at such view put some questions to the witnesses which were not heard by the judge or by the prisoners, and upon which the undefended prisoner and the counsel for the defended prisoner had not been expressly called upon to comment to the jury. The question for the opinion of this honourable Court is, Whether, under the circumstances above stated, there has been a mistrial. If it be the opinion of the Court that there has been a mistrial, then that a venire de novo should issue, or such other judgment be given as the Court may determine. , No counsel appeared for the prisoner. Harris, for the prosecution, cited Rex v. Hatchley FradgeUy (1) ; Witham v. Lewis (2) ; Reg. v. Yeadon (3) ; Gray v. Reg. (4) ; Rex v. Day (5) ; 13 East, 416, note (b) ; 2 Tidd's Practice, p. 905, 9th ed. BOVILL, C.J. The first objection made to the conviction in this case is, that the jury were permitted to view the urinal, in which the offence was alleged to have been committed, after the summing (1) 1 Sess. Ca. 180. (3) Leigh & Cave, C. C. 81 ; 31 L. J (2) 1 Wils. 48. (M.C.) 70. (4) 11 Cl. & F. 427, (5) Sayer, 202. YOL I.] TEINITY TERM, XXXV VICT. 381 up of the learned judge. We are unanimously of opinion that 1872 there was no irregularity in allowing such a view. It is always entirely in the discretion of the Court to allow a view or not ; . v - J MARTIN. though such precautions, as may seem to the Court necessary, ought to be taken to secure that the jury shall not improperly re- ceive evidence out of court. As to the second point, the alleged reception of evidence by the jury in the absence of the judge and of the prisoners, it does not appear that any examination into the facts was made in the court below. And in the absence of such examination, it is impossible for this Court to reverse the conviction, on the ground of a mere statement of what the learned judge was informed, which may be a mere rumour without any foundation. If such an examination into the facts had been made in the court below, and it had been found that the irregularity alleged had taken place, a very serious question would then have arisen, whether a venire de novo could have been awarded on the ground of mistrial, or whether the only remedy would have been by an application to the Crown through the Secretary of State. Upon this view the case of Reg. v. Murphy (1) would have had an important bearing upon the question. It would also have been necessary carefully to examine all the authorities ; two of which, Vicary v. Farthing (2) and Graves v. Short (3), do not appear to have been cited in Eeg. v. Murphy. (1) A further serious question would have arisen, whether, if the facts were thus tried and found to be as alleged, they ought to be entered on the record so as to give an opportunity of taking advantage of the defect by writ of error, or whether the question could properly be raised by a case stated for this Court. And upon this point the case of Eeg. v. Mellor(4) would have a material bearing. But, upon the case as it stands, we have no alternative but to affirm the conviction. Our decision does not prevent the prisoner from having recourse to a writ of error if such a writ will lie under the circumstances. Nor does it prevent an application to the Secretary of State. But (1) Law Rep. 2 P. C. 535. (4) Dears & B. C. C. 468 ; 27 L. J. (2) Cro. Eliz. 411. (M.C.) 121. (3) Cro. Eliz. 616. VOL. I. 31 4 382 CKOWN CASES RESERVED. [L. R. 1872 if the case came before the Court of Queen's Bench upon writ of THB QVEEN error as & * 8 stated before us, that Court could only deal with the case in the same way as we do : for, as is pointed out by * Popham, C.J., in Groves v. Short (1), the examination into the facts can only take place in the court below. BYLES, BLACKBUEN, MELLOB, JJ., and BKAMWELI^ B., concurred. Conviction affirmed. Attorneys for prosecution : Allen & Son. (I) Cro. Eliz. 616. END OF TRINITY TERM, 1872. INDEX. ABANDONMENT OF 1ST AST Child under Two Tears, whereby its Life is Endangered 24 & 25 Viet. c. 100, s. 27 Duty of Father.'] A woman who was living apart from her husband, and who had the actual custody of their child, under two years of age, brought the child, on the 19th of October, and left it at the father's door, telling him she had done so. He knowingly allowed it to remain lying outside his door, and subsequently in the roadway, from about 7 P.M. till 1 A.M., when it was removed by a constable, the child then being cold and stiff: Held, that though the father had not had the actual custody and pos- session of the child, yet, as he was by law bound to provide for it, his allowing it to remain where he did was an abandonment and exposure of the child by him, whereby its life was endangered, within the meaning of 24 & 25 Viet. c. 100, s. 27. THE QUEEN v. WHITE - 311 2. Evidence 24 & 25 Viet. c. 100, 8. 27.] A. and B. were indicted under s. 27 of 24 & 25 Viet. c. 100, for that they "did abandon and expose a certain child then being under the age of two years, whereby the life of the said child was endangered." A., the mother of a child five weeks old, and B., put the child into a hamper, wrapped up in a shawl and packed with shavings and cotton wool, and A., with the connivance of B., took the hamper to M., about four or five miles off, to the booking office of the railway station there. She there paid for the carriage of the hamper, and told the clerk to be very careful of it, and to send it to G. by the next train, which would leave M. in ten minutes from that time. She said nothing as to the contents of the hamper, which was addressed, " Mr. Oarr's, Northoutgatc, Gisbro., with care, to be delivered immediately," at which address the father of the child was then living. The hamper was carried by the ordinary passenger train from M. to G., leaving M. at 7.45 P.M., and arriving at G. at 8'15 P.M. At 8.40 P.M. the hamper was delivered at its address. The child died, three weeks afterwards, from causes not attributable to the conduct of the prisoners. On proof of these facts at the trial, it was objected for the prisoners that there was no evidence to go to the jury that the life of the child was endangered, and that there was no abandonment and no exposure of the child within the meaning of the statute. The objections were overruled, and the prisoners found guilty : VOL. I. 0. C. B. 3 ABANDONMENT OF INFANT continued. Held, by the majority of the fifteen judges, that the conviction should be affirmed. THE QUEEN v. FALKINGHAM - ' - 222 ABDUCTION Taking Girl under Sixteen out of Possession of her Father 24 & 25 Viet. c. 100, s. 55.] 24 & 25 Viet. c. 100, s. 55, enacts that " whosoever shall take an unmarried girl, under the age of sixteen, out of the possession and against the will of her father or mother, or of any other person having the lawful care and charge of her, shall be guilty of a misdemeanour." A. met a girl in the street going to school, and induced her to go with him to a town some miles distant, where he seduced her. They returned together, and he left her where he met her. The girl then went to her home, where she lived with her father and mother, having been absent some hours longer than would have been the. case if she had not met A. A. made no inquiry and did not know who the girl was, or whether she had a father or mother living or not, but he had no reason to and did not believe that she was a girl of the town : Held, that A. was not guilty of having unlawfully taken the girl out of the possession of her father under s. 55 of 24 & 25 Viet. c. 100. THE QUEEN V. HlBBEKT - - - 184 ABSENCE DTTBING SEVEN YEABS - 1 See PRESUMPTION OF DEATH. 1. ABSENCE FOB LESS THAN SEVEN YEABS 196 See PRESUMPTION OF DEATH. 2. ABSTBACTION OF GAS Larceny Continuous taking - - - 172 See LAKCENT. 3. ACCESSOBY What sufficient to render a person party to a felony - - 77 See FELONY. " ACQUITTANCE OB BECEIPT "Forgery 217 See FORGERY. 1. ADMIBALTY COUBT JTJBISDICTION Man- slaughter International Law Merchant Shipping Act, 1854 (17 & 18 Viet. c. 104), s. 267.] The Admiralty jurisdiction of England extends over British vessels, not only when they are sailing on the high seas, but also when they are in the rivers of a foreign territory at a place below bridges, where the tide ebbs and flows, and where great ships go. All seamen, whatever their nationality, K 4 384 INDEX. [C. C. R. VOL. I. ADMIRALTY COURT JURISDICTION continued. serving on board British vessels, are amenable to the provisions of British law. An American citizen, serving on board a British ship, caused the death of another American citizen, serving on board the same ship, under circumstances amount- ing to manslaughter, the ship at the time being in the river Garonne, within French territory, at a place below bridges where the tide ebbed and flowed and great ships went : Held, that the ship was within the Admiralty jurisdiction, and that the prisoner was rightly tried and convicted at the Central Criminal Court. Qusere, as to the effect of the Merchant Shipping Act (17 & 18 Viet. c. 104), s. 267. THE QUEEN v. ANDERSON 161 AFFIDAVIT OF BANKER How sworn - 65 See PEKJUKY. 1. AFFIDAVIT WITH BUI OF SALE 17 & 18 Viet. c. 36 Perjury False Oath Misdemeanour at Common Law Practice.'] A. was indicted for perjury in an affidavit made under the Bills of Sale Act for the purpose of getting a bill of sale filed. The indictment was in the ordinary form. The affidavit was sworn before a commissioner for taking affidavits in the Court of Queen's Bench. A. was found guilty : Held, that A.'s offence did not constitute perjury, but that nevertheless the conviction should be affirmed, because A. was guilty of taking a false oath, which offence was sufficiently charged in the indictment, and was under the circumstances a common law misde- meanour, to the punishment for which he might be sentenced. THE QUEEN v. HODGKISS - 212 AGREEMENT TO COMMIT CIVIL WEONG 274 See CONSPIRACY. AIDING AND ABETTING Attempt Practice See ATTEMPT TO COMMIT CKIME. [221 AMENDMENT OF INDICTMENT 14 & 15 Viet, c. 100, s. 1 Information Game 9 Geo. 4, c. 69, . 1.] The judge has power, under the 14 & 15 Viet. c. 100, s. 1, to amend an indictment for perjury, describing the justices before whom the perjury was committed as justices for a county, where they are proved to be justices for a borough only. An information, under the 9 Geo. 4, c. 69, s. 1, for entering land for the purpose of taking game, is sufficient to give the justices before whom it is laid jurisdiction to hear the charge, although it does not allege that the entry was for the purpose of taking game there. THE QUEEN v. WESTERN - 122 ANIMALS FER.E NATURE Larceny 158, 315 See LARCENY. 1, 2. ANTEDATED DEED Forgery - - 200 See FORGERY. 2. APPRENTICE Perjury - - 49 See PERJURY. 5. ARREST Assault Resistance."] The prisoner assaulted a police qpnstable in the execution of his duty. The constable went for assistance, and after an interval of an hour returned with three other constables, when he found that the prisoner had retired into his house, the door of which was closed and fastened; after another interval of fifteen minutes the constables forced open the door, entered, and arrested the prisoner, who wounded one of them in resisting his apprehen- sion : Held, that, as there was no danger of any ARREST continued. renewal of the original assault, and as the facts of the case did not constitute a frc.sh pursuit, the arrest was illegal. THE QUEEN v. MARSUEX 131 2. Resistance 11 & 12 Viet. c. 43, schedule (0. 1).] A magistrate's warrant of commitment upon a conviction for a penalty, following the form given in the 11 & 12 Viet. c. 43, schedule (O. 1), and addressed "to the constable of" A., can only be executed by the parish constable, and not by a county police constable stationed at A. THE QUEEN v. SANDERS - - 75 ARSON Indictment Averment of ownership See MALICIOUS INJURY. 2. [344 Malicious injury - 307, 338 See MALICIOUS INJURY. 1, 4. ASSAULT Arrest Resistance - 75, 131 See ARREST. 1,2. Effect of conviction for assault when person assaulted ultimately dies - - 90 See AUTREFOIS CONVICT. Pleading Conviction - 241 See CRIMINAL ASSAULT. Practice Indictment - - 194 See UNLAWFUL WOUNDING. 1. ASSISTANT OVERSEER Embezzlement - 29 See EMBEZZLEMENT. 1. ATTEMPT AT RAPE Evidence Contradiction See CONTRADICTION OF WITNESS. [334 ATTEMPT TO COMMIT CRIME Indictment for Felony Aiding and Abetting Conviction for an Attempt 14 * 15 Viet. c. 100, . 9.] An indict- ment charged H. with rape, and W. with aiding and abetting in the rape. The jury found H. and W. guilty of misdemeanour ; H. of attempting to commit a rape, and W. of aiding H. in the attempt. It was contended that this verdict amounted to an acquittal of W., as the case did not fall within s. 9 of 14 & 15 Viet. c. 100, by which a person indicted for a crime may be found guilty of an attempt to commit the crime. The objection was overruled : Held, that the convic- tion should be affirmed. THE QUEEN v. HAPGOOD [221 ATTEMPT TO HAVE CARNAL KNOWLEDGE Consent Attempt to hare carnal Knowledge of a Girl under the Age of 10.] The offence of at- tempting to have carnal knowledge of a girl under the age of ten years may be committed, notwithstanding the girl consents to the acts done. THE QUEEN v. FREDERICK BEALE - 10 AUCTION Taking Payment under fear - 205 See LARCENY. 9. AUTHORITY Master and servant Larceny See LARCENY. 5, 6. [150. 295 Payment of money Forgery - - 257 See FORGERY. 4. AUTREFOIS CONVICT Assault 24 & 25 Viet. c. 100, . 45.] A conviction for assault by justices in petty sessions, at the instance of the person assaulted, and imprisonment consequent thereon, are not, either at common law or under the 24 & 25 Viet. c. 100, s. 45, a bar to an indictment for manslaughter of the person assaulted, should he subsequently die from the effects of the assault (Kelly, C.B., dissenting). THE QUEEN v. MORRIS [90 C. C. R. VOL. L] INDEX. 385 AVERMENT Jurisdiction Perjury See PERJURY. 2. - 290 BANKER'S AFFIDAVIT, HOW SWORN - 65 See PERJURY. 1. BANK NOTES, FORGERY OF 133 See FORGERY. 3. BANKRUPT .Feme Covert Husband and Wife Evidence 12 & 13 Viet. c. 106, s. 233.] A married woman having been adjudicated a bank- rupt upon her own petition, in which she de- scribed herself as a widow, was afterwards convicted under the 24 & 25 Viet. c. 134, s. 221, of having embezzled her property : Held, that the convic- tion was wrong, as the property was her husband's. JTeM.also, by Kelly, C.B., Martin, B., and Shoe, J., that examinations taken before a commissioner in bankruptcy are admissible as evidence against the persons examined upon a criminal charge. THE QUEEN v. KOBINSON - 80 BASTARDY SUMMONS Jurisdiction 119, 320 See PERJURY. 3, 4. BIGAMY Marriage before Registrar Misnomer 6&1 Wm. 4, c. 85, ss. 4, 42.] The prisoner, having a wife living, was married to another woman in the presence of the registrar, describing j himself not as E. R., his true name, but as B. R. There was no evidence to shew that the second wife knew that his Christian name was mis- described : Held, that the prisoner was guilty of bigamy. THE QUEEN v. EDWARD REA - 365 2. Second Marriage invalid independently of the first 2 & 25 Viet. c. 100, s. 57.] Where a person, already bound by an existing marriage, goes through with another person a form of marriage known to and recognized by the law as capable of producing a valid marriage, for the purpose of a pretended and fictitious marriage, such person is guilty of bigamy, notwithstanding any special circumstances which, independently of the bigamous character of the marriage, may constitute a legal disability in the parties, or make the form of marriage resorted to inappli- cable to their case. The prisoner, having a wife living, went through the ceremony of marriage with another woman, who was within the pro- hibited degrees of affinity; so that the second marriage, even if not bigamous, would have been void under 5 & 6 Wm. 4, c. 54, s. 2 : Held, that the prisoner was guilty of bigamy. Eeg. v. Fan- ning (17 Ir. C. L. 289 ; 10 Cox, Cr. C. 411) dis- approved. THE QUEEN v. HENRY ALLEN 367 3. Absence for seven years - 1, 196 See PRESUMPTION OF DEATH. 1, 2. BILLS OF SALE ACT, 17 & 18 Viet. c. 36 Affidavit Perjury - - 212 See AFFIDAVIT WITH BILL OF SALE. BIRTH Concealment Evidence - - 244 See CONCEALMENT OF BIRTH. BRIDGE, REPAIR OF Repair by Hundred Highway Act, 1835 (5 & 6 Wm. 4, c. 50), s. 5 Construction " Highways " " County Bridge " " Hundred Bridge."] The Highway Act, 1835, provides for the repair of highways in a specified manner not at the expense of the hundreds. By s. 5, " highways," in the construction of the statute, " shall be understood to mean all roads, bridges (except county bridges), carriageways, 3 K BRIDGE, REPAIR OF continued. cartways," &c., &c. : Held, that " county bridges" includes hundred bridges, and consequently that hundred bridges are not highways under the Highway Act, 1835, and therefore that hundreds are not relieved by that Act from liability to repair hundred bridges. Semhle, that even if hundred bridges were not included in " county bridges," hundreds would not be relieved by the Highway Act, 1835, from their liability to repair hundred bridges, as there are no negative words in the statute to relieve hundreds from that liability. THE QUEEN v. THE UPPER HALF HUNDRED OF CHART AND LONGBRIDGE - 237 "BUILDING"- - 338 See MALICIOUS INJURY. 1. BURDEN OF PROOF Receiving stolen goods- Habitual Criminals Act - - 272 See RECEIV^G STOLEN GOODS. 2. CARNAL KNOWLEDGE Attempt 10 . See ATTEMPT TO HAVE CARNAL KNOW- LEDGE. CASES Reg. v. Bryan (Dears. & B. Cr. C. 263) distinguished - 301 See FALSE PRETENCES. Reg. v. Cory (10 Cox, Cr. C. 23) followed See LARCENY. 2. [158 Reg. v. Fanning (17 Ir. C. L. 289; 10 Cox, Cr. C.) 411) disapproved - - 367 See BIGAMY. 2. Reg. v. Goodwin (10 Cox, Cr. C. 534) over- ruled - - 214 See PREVIOUS CONVICTION. 3. Reg. v. Orchard (3 Cox, Cr. C. 248) observed upon - - 282 See NUISANCE. Reg. v. Richards (4 F. & F. 860) overruled See DEPOSITION BEFORE JUSTICE. 225 Reg. v. Thurborn (1 Den. Cr. C. 387 ; 18 L. J. (M.C.) 140) observed upon, but fol- lowed - 139 See LARCENY. 8. CATTLE Wounding - - 115 See MALICIOUS INJURY. 5. CERTIFICATE OF PREVIOUS CONVICTION 21 See PREVIOUS CONVICTION. 4. CHEQUE Embezzlement - - 113 See EMBEZZLEMENT. 2. CHILD Secret disposition of dead body - 244 See CONCEALMENT OF BIRTH. CIVIL WRONG, AGREEMENT TO COMMIT 274 See CONSPIRACY. CLERK OR SERVANT Embezzlement See EMBEZZLEMENT. 1, 3, 4. [29, 41, 177 COIN Proof of previous conviction - - 214 See PREVIOUS CONVICTION. 3. COINING Having possession of Coining Tools Lawful Authority or Excuse 24 & 25 Viet. c. 99, s. 24 Felony Guilty Intent.'] 24 & 25 Viet. c. 99, s. 24, enacts, that " whosoever without lawful authority or excuse (the proof whereof shall lie on the party accused), shall knowingly make or mend, or begin or proceed to make or mend, or buy, or sell, or have in his custody or possession," any die impressed with the re- 2 4 386 INDEX. [C. C. II. VOL. I. COINING continued. semblance of eithor 'side of any current coin, shall be guilty of felony. Indictment under this section that the prisoner " knowingly and without lawful excuse feloniously" had in his possession dies impressed with the resemblance of the sides of a sovereign. The prisoner ordered dies, im- pressed with the resemblance of the sides of a sovereign, of the maker. The maker gave in- formation to the police, who communicated with the authorities of the Mint. The latter autho- rities, through the police, gave the maker permis- sion to give them to the prisoner. He did so, and they were found in the prisoner's possession : Held, first, that it was necessary in the indictment to negative lawful authority or excuse, notwith- standing that the burden of proof lay upon the accused : secondly, that the word " excuse " in- cludes " authority," and therefore the indictment was good : thirdly, that there was no evidence to go to the jury of lawful authority or excuse; fourthly, t that the prisoner being knowingly in possession of the dies, had a sufficient guilty knowledge to constitute felony, whatever his in- tention as to their use might be. THE QUEEN v. HARVEY - 284 COINING TOOLS Possession of - - 284 See COINING. COMMISSION Corrupt practices at elections Perjury Evidence - - 218 See STATEMENT BEFORE ELECTION COM- MISSIONERS. COMMON ASSAULT Criminal assault - 211 See CRIMINAL ASSAULT. COMPETENCE OF WITNESS Evidence Joint Indictment and Trial One Prisoner called as Witness for Another.] Where two prisoners are indicted and tried together, one is not a com- petent witness for the other. THE QUEEN v. PAYNE - - 319 2. Joint Indictment and Trial Wife of One Prisoner called as Witness for Another.'] Where two prisoners are indicted and tried to- gether, the wile of one is not a competent witness for the other. THE QCEEN v. JAMES THOMPSON, WILLIAM DANZEY, AND ABRAHAM HIDE - 377 3. Incompetence/ Withdrawal of Evi- dence from Jury.'] Tho evidence of an incom- petent witness may be withdrawn from the jury upon the infompt.-tfncy appearing during his examinatioh-in-chief, although he has been ex- amined previously on the voirdire and pronounced to be competent. THE QUEEX v. WHITEHEAD 33 CONCEALMENT OF BIETH Evidence 24 & 25 Viet. c. 100, s. 60" Secret Disposition of Dead Body of Child."] Indictment for endeavouring to conceal the birth of a child by secretly dis- posing of the dead body thereof. S. 60 of 24 & 25 Viet c. 100, enacts that " if any woman shall be delivered of a child, every person who shall by any secret disposition of the dead body of the chUd, . . . endeavour to conceal the birth thereof, shall be guilty of a misdemeanour . . ." The prisoner put the dead body of her child over a wall 4 feet high, which divided a yard from a field. The yard was at the back of a public CONCEALMENT OF BIETH continued. house, and was used by the occupiers of that and three other houses. There was no thoroughfare into or through the yard, and no entrance into it except by a narrow passage from the street. The prisoner did not live in any of the four houses that had the use of tiie yard, and she must have passed from the street into the yard in order to throw the body over the wall. A person looking over the wall from the yard would see the body, but persons going through the yard, or using it in the ordinary way, would not see the body. The field was a grass-field used by a butcher for grazing. The field had no gate except from the butcher's yard, and there was no public path through the field, nor any path in the field that would take any one within sight of the body. Persons going into the field in their ordinary occupation, would not go near the body or see it, nor would they see it unless they went up to the part of the wall where the body lay. The body was found by chance by a child. There was no- thing on or over the body, and nothing to conceal it except its situation : Held, that there was evidence to go to the jury of a " secret dispo- sition " of the body under s. 60 of 24 & 25 Viet, c. 100. THE QUEEN v. BROWN - - 244 CONFESSION Evidence Admissibility.] The prisoner was called up by his master, and told : " You are in the presence of two police officers ; and I should advise you that to any question that may be put to you you will answer truth- fully, so that, if you have committed a fault, you may not add to it by stating what is untrue." The master afterwards added ; " Take care ; we know more than you think." The prisoner there- upon made a statement : Held, that such state- ment was admissible against him on his trial for larceny. THE QUEEN v, JARVIS - 93 2. Evidence Admissibility.] The pri- soners, two children, one aged eight and the other a little older, were tried for attempting to obstruct a railway train. It was proved that, the mother of the prisoners and a policeman being present, after they had been apprehended, the mother of one of the prisoners said : " You had better, as good boys, tell the truth ;" whereupon both the prisoners confessed : Held, thut this confession was admissible in evidence against the prisoners. THE QUEEN v. REEVE AND HANCOCK 362 CONSENT Fraud Rape - 156 See RAPE. 1. Girl under ten Carnal knowledge - 10 See ATTEMPT TO HAVE CARNAL KNOW- LEDGE. Idiot Rape See RAPE. 2. 39 CONSPIRACY Agreement to commit Civil Wrong Fraud on Partner in taking Accounts on Disso- lution of Partnership.] A fraudulent agreement by a member of a partnership with third persons, wrongfully. to deprive his partner by false entries and by false documents of all interest in some of the partnership property on taking accounts for the division of the property on the dissolution of the partnership, is a conspiracy, although the offence was completed before the passing of 31 & C. C. R. VOL. I.] INDEX. 387 CONSPIRACY continued. 32 Viet. c. 1 10, by which a partner can bo cri- minally convicted for feloniously stealing partner- , ship property. THE QUEEN v. WARBURTOX 274 CONSTABLE Refusal to aid in the Execution of Ms Duty Indictment.] An indictment for re- fusing to aid a constable in the execution of his duty, and to prevent an assault made upon him by persons in his custody with intent to resist their lawful apprehension, need not shew that the apprehension was lawful, nor aver that the refusal was on the same day and year as the assault, or that 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. THE QUEEN v. CALEB SHERLOCK - 20 CONSTRUCTIVE POSSESSION - - 136 See LARCEXY. 4. CONTINUANCE OF LIFE Presumption - 1, 196 See PRESUMPTION OF DEATH. 1, 2. CONTINUOUS ACT Larceny - 315 See LARCEXY. 1. CONTINUOUS TAKING Larceny - - 172 See LARCENY. 3. CONTKADICTION OF WITNESS -Indecent Assault Attempt at. Rape Cross-examination of Prosecu- trix Previous Connection with other Men Evi- dence.'] The prosecutrix in an indictment for an indecent assault, which on the facts alleged amounted, in substance, to an attempt at rape, was asked in cross-examination whether she had not previously had connection with a man other than the prisoner, and denied it : Held, that she could not be contradicted. THE QUEEN v. HOLMES AND FURXESS - - 334 CONVICTION, PREVIOUS - 24, 182, 241, 363 See PREVIOUS CONVICTION. COUNTY BRIDGE Repair by hundred - 237 See BRIDGE, REPAIR OF. COURT FOR CROWN CASES RESERVED Juris- diction 17 & IS Viet. c. 78, s. 1.] No case can be stated for the opinion of this Court except upon some question of law arising on the trial. Where, therefore, the prisoner had pleaded guilty, and the question asked was whether the prisoner's act as described in the depositions supported the in- dictment, the Court held that they had no juris- diction to consider the case. THE QUEEN v. CLARK 54 CREDIT Impeaching witness - 70 See DISCREDITING WITNESS. CRIMINAL ASSAULT Indictments-Charge in one Count of assaulting and also of carnally knowing a Girl between the Age of Ten and Twelve Years Verdict of Common Assault Practice Duplicity.] Indictment, that the prisoner '' in and upon one D., a girl above the age of ten years and under the age of twelve years . . . unlawfully did make an assault, and her, the said D., did then unlawfully and carnally know and abuse, against the form of the statute," &c., &c. The offence of carnally knowing the girl was disproved, but the jury found the prisoner guilty of a common assault : CRIMINAL ASSAULT continued. Held, that the prisoner might be properly con- victed of a common assault, on the ground that the indictment charged two distinct misdemean- ours, viz., of assaulting and also of carnally know- ing D., and that the prisoner might be found guilty of either of them. THE QUEEN v. GCTHRIE 241 CROSS-EXAMINATION Witness Contradiction See CONTRADICTION OF WITNESS. [334 DAMAGING ENGINE - 7 See MALICIOUS INJURY. 3. DEATH Presumption after absence of seven years - 1, 196 See PRESUMPTION OF DEATH. 1, 2. DEED Forgery Antedating - 200 See FORGERY. 2. DELIVERY BY OWNER OF STOLEN GOODS 15 See RECEIVING STOLEN GOODS. 1. DEPOSITION Bastary summons - - 320 See PERJURY. 2. DEPOSITION BEFORE JUSTICE Evidence Ad- mission, after Death of Witness, of Deposition taken before Justice Signature by Justice 11 & 12 Viet, c. 42, 8. 17 Form of Indictment Uncertainty Surplusage.'] Section 17 of 11 & 12 Viet. c. 42, enacts that justices, before they commit an accused person, shall " take the statement (M.) ... of those who shall know the facts of the. case, and shall put the same into writing, and such deposi- tions shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same . . . and if, upon the trial of the person so accused, it shall be proved . . . that any person whose deposition shall have been taken as aforesaid, is dead . . . then, if such de- position purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution, without further proof thereof." The reference (M.) is to a schedule of the Act where there is a form for these deposi- tions, commencing with a heading containing the ' names of the witnesses examined, and concludes j " the above depositions of C. D. and E. F. were i taken and [sworn] before me at , on the day and year first above mentioned," and then follows immediately the signature of the justice : Held, overruling Reg. v. Eichards (4 F. & F. 860), that it is not necessary that each deposition should bo signed by the justice taking it; and therefore ; where a number of depositions taken at the same S hearing on several sheets of paper were fastened ! together and signed by the justices taking them, j once only at the end of all the depositions in the j form given in the schedule, that one of these de- ! positions was inadmissible in evidence under s. 17 after the death of the witness making it, although no part of it was on the sheet signed by the jus- tice. An indictment charged A. with having made a false declaration before a justice that he \ had lost a pawnbroker's ticket, whereas he had not lost the ticket, " but had sold, lent, or de- posited it with one " C. : Held, that the indict- 388 INDEX. [C. C. R. VOL. DEPOSITION BEFORE JUSTICE continued. merit was not bad for uncertainty, because the words "had sold, lent, or deposited it" were mere surplusage, and therefore an error in them did not affect the indictment. THE QUEEN v. PARKER - 225 DISCREDITING WITNESS Evidence Witnesses Impeaching Credit.'] In order to impeach the character of a witness for veracity, witnesses may be called to prove that his general reputation is such that they would not believe him upon his oath. THE QUEEN v. BROWN AND HEDLEY 70 DISORDERLY HOUSE.] The defendants, as master and mistress, resided in a house to which men and women resorted for the purpose of prostitu- tion, but no indecency or disorderly conduct was perceptible from the exterior of the house : Held, that the defendants were guilty of keeping a dis- orderly house. THE QUEEN v. PETER RICE AND MARY WILTON - 21 DOCUMENTS Notice to produce - - 103 See NOTICE TO PRODUCE. DUPLICITY Pleading Assault - - 241 See CRIMINAL ASSAULT. DUTY OF FATHER - - 311 See ABANDONMENT OF INFANT. 1. DYING DECLARATION Evidence" No present hope of recovery."] On a trial for murder a written declaration of the deceased was put in evidence for the prosecution. The declaration was made on oath to a magistrate's clerk, about thirteen hours before death. The clerk asked the de- ceased before he took down her statement, whether she felt she was likely to die ? She said, " I think so, from the shortness of my breath." Her breath was then extremely short. The clerk said, " Is it with the fear of death before you that you make these statements, and have you any present hope of your recovery r' She said, " None." The clerk then wrote out her statement, and added to it the above conversation, in the form of a state- ment by the deceased, but he omitted the word "present" before "hope." He then read over to the deceased what he had written, and she then added the words " at present " before " hope," and signed the declaration : Held, that the statement j was not admissible in evidence, as it did not ap- | pear to have been made under a settled hopeless expectation of death, inasmuch as the deceased had expressly qualified the words " no hope," by inserting before them the words " at present." THE QUEEN v. JENKINS - 187 ELECTION Corrupt practices Commissioners Perjury - - 248 See STATEMENT BEFORE ELECTION COM- MISSIONERS. EMBEZZLEMENT Assistant Overseer.'] A person who is nominated and elected assistant overseer under the 59 Geo. 3, c. 12, s. 7, by the inhabitants of a parish in vestry, and who is afterwards ap- pointed assistant overseer by the warrant of two justices, and performs the duties of an overseer, is well described in an indictment for embezzlement as the servant of the inhabitants of the parish. THE QUEEN v. CARPENTER 29 2. Cheque Jndi tment 24 & 25 Viet. o. 96, *. 71.] The 24 & 25 Viet. c. 26, s. 71, enacts EMBEZZLEMENT continued. that, where the offence shall relate to any money or any valuable security, it shall be sufficient to allege the embezzlement, &c., to be of money, without specifying any particular coin or valuable security, and that such allegation so far as reg:irds the description of the property, shall be sustained, if the offender shall be proved to have embezzled, or fraudulently applied or disposed of, any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved, or if he shall be proved to have .embezzled, or fraudulently applied or dis- posed of, any piece of coin, or any valuable secu- rity, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, or to some other person, and such part shall have been returned accordingly : Held, that this enactment did not justify an alle- gation in an indictment of the embezzlement of money, where a cheque only had been embezzled, and there was no proof that the prisoner had ever cashed it. THE QUEEN v. KEENA - - 113 3. Ckrlc, or Servant.] A person who is employed to get orders for goods, and to receive payment for them, but who is at liberty to get the orders and receive the money where and when he thinks proper, being paid by a commission on the goods sold, is not a clerk or servant within the meaning of the 24 & 25 Viet. c. 96, s. 68. THE QUEEN v. BOWERS - - 41 4. " Clerk or Servant " Treasurer of Friendly Society 24 & 25 Viet. c. 96, . 68.] A. was treasurer of a friendly society, whose rules directed that all the moneys of the society should be paid to the treasurer, and that he should make no payments except on an order signed by the secretary, and countersigned by the chairman, or a trustee, and that he should give security. By another rule, all the moneys of the society were vested in trustees. A. was a member of the so- ciety, but received no payment for filling the office of treasurer : Held, on an indictment against A., as clerk and servant of the trustees of the society, for embezzling money which he had received us treasurer, that A. was not the " clerk or servant " of the trustees within s. 68 of 24 & 25 Viet. c. 96. THE QUEEN v. TRYEE - 177 5. Indictment Evidence Three Acts of Embezzlement in one Indictment 24 & 25 Viet, c. 96, . 7131 & 32 Viet. c. 116, s. 1.] The pri- soner was a member of a co-partnership. It was his duty to receive money for the co-partnership, and once a week to render an account and pay over the gross amount received during the previous week. During each of three several weeks, within six months, the prisoner received various small sums, and failed to account for them at the end of the week, or to pay over the gross amount, but embezzled the money : Held, that he might pro- perly be charged with embezzling the weekly ag- gregates ; that three acts of embezzlement of such weekly aggregates within six months might be charged and proved under one indictment ; and that evidence of the smalls sums received during each week was admissible to shew how these aggre- gates were made up. THE QUEEN v. BALLS 328 C. 0. K. VOL. I.] INDEX. 383 96, 356 - 244 - 70 hope of - 187 - 248 EMB EZZLEMENT con tinned. Friendly society Rules in restraint of trade See RESTRAINT OF TKADE. [230 ENGINE Damaging - 7 See MALICIOUS INJURY. 3. EVIDENCE Confession Admissibility See CONFESSION. 1, 2. Concealment of birth - See CONCEALMENT OF BIETH. Discrediting witness See DISCREDITING WITNESS. Dying declaration No present recovery - See DYING DECLARATION. Election commissioners Perjury See STATEMENT BEFORE ELECTION COM- MISSIONERS. Embezzlement - 328 See EMBEZZLEMENT. 5. Examinations in bankruptcy Admissibility in criminal case - - - 80 See BANKRUPT. Exposure of infant - 222 See ABANDONMENT OF INFANT. Notice to produce - 103 See NOTICE TO PRODUCE. Presumption of death Absence for seven years - - 1, 196 See PRESUMPTION OF DEATH. 1, 2. Proof of previous conviction - See PREVIOUS CONVICTION. 3. Signature of justice See DEPOSITION BEFORE JUSTICE. Unregistered ship Jurisdiction See UNREGISTERED SHIP. Witness Contradiction See CONTRADICTION OF WITNESS. Witness Fellow-prisoner See COMPETENCE OF WITNESS. Witness Wife of fellow-prisoner See COMPETENCE OF WITNESS, Withdrawal of, from jury See COMPETENCE OF WITNESS. - 214 - 225 - 234 - 334 - 349 1. - 377 2. 33 3. EVIDENCE HE ARD OUT OF COUET Mistrial 378 See VIEW. EXPOSING THE PERSON - - 282 See NUISANCE. EXPOSURE Infant - - 222, 311 See ABANDONMENT OF INFANT. 1, 2. FALSE OATH Perjury Affidavit - - 212 See AFFIDAVIT WITH BILL OF SALE. FALSE PRETENCES Intent.'] The crime of ob- taining goods by false pretences is complete, al- though, at the time when the prisoner made the pretence and obtained the goods, he intended to pay for them when it should be in his power to do so. THE QUEEN v. FRANCIS NAYLOR - 4 2. Misrepresentation of Quality Specific Fact.'] The prisoner induced the prosecutor to purchase a chain from him by fraudulently repre- senting that it was 15-carat gold, when, in fact, it was only of a quality a trifle better than 6-carat, knowing at the time that he was falsely repre- senting the quality of the chain as 15-carat gold : FALSE PRETENCES continued. Held, that the statement that the chain was 15-carat gold, not being mere exaggerated praise, nor relating to a mere matter of opinion, but a statement as to a specific fact within the know- ledge of the prisoner, was a sufficient false pre- tence to sustain an indictment for obtaining money under false pretences. Reg. v. Bryan (Dears. & B. Cr. C. 265) distinguished. THE QUEEN v. ARD- LEY - - 301 3. 24 & 25 Viet. c. 96, . 88 Temporary use of Chattel.'] Section 88 of 24 & 25 Viet. c. 96, enacts that '' whosoever shall, by any false pre- tence, obtain from any other person any chattel, money, or valuable security, with intent to de- fraud, shall be guilty of a misdemeanour . . ." : Held, that " obtain " does not mean obtain the loan of, but obtain the property in, any chattel, &c., and that to constitute an obtaining by false pretences, it is essential that there should be an intention to deprive the owner wholly of the property in the chattel, and, consequently, that obtaining by false pretences the use of a chattel for a limited time only, without an intention to deprive the owner wholly of the chattel, is not an obtaining by false pretences within s. 88 of 24 & 25 Viet. c. 96. THE QUEEN v. KILHAM - 261 4. Remoteness.'] A conviction for obtain- ing a chattel by false pretences is good, although the chattel is not in existence at the time the pretence is made, provided the subsequent delivery of the chattel is directly connected with the false pretence. Whether or not there is such a direct connection is a question for a jury. THE QUEEN v. MARTIN - - - 56 Master and servant Authority 150, 295 See LARCENY. 5, 6. FATHER Abduction Possession - - 184 See ABDUCTION. Duty of - - 311 See ABANDONMENT OF INFANT. 1. FELONY Soliciting and inciting to commit Ac- cessory 2-1 & 25 Viet. c. 94, s. 2.J The offence 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 Viet. c. 94, s. 2, which only applies tr> cases wl>ere a felony is committed as the result of the counselling and procuring therein mentioned. THE QUEEN v. GREGORY - - 77 Previous conviction Coin - - 214 See PREVIOUS CONVICTION. 3. Previous conviction Indictment Felony [182, 363 See PREVIOUS CONVICTION. 1, 2. FEME COVERT Bankruptcy 80 See BANKRUPT. FER.E NATURE Animals - 158, 315 See LARCENY. 1, 2. FORGERY "Acquittance or Receipt for Money " 24 & 25 Viet. c. 98, s. 23.] Section 23 of 24 & 25 Viet. c. 98, enacts that " whosoever shall forge . . . any acquittance or receipt for money . . . shall be guilty of felony." A. was secretary of a friendly society which had branches in various towns. Any member, who had paid all his dues, on going from one of these towns to another, was 390 INDEX. [C. C. R. VOL. L FORGERY continued. entitled to a document called a " clearance," which admitted him to membership at any place where a branch of the society existed. The qualifications for membership were the payment of an entrance fee, a time of probation, and certain general pay- ments which were made to the secretary, whose duty it was at once to hand them over to the treasurer. A clearance had to be signed by the secretary and by two other officers of the society. Neither of these two officers received or was re- sponsible for any of these payments, nor were their signatures to a clearance understood as importing that any money had been received by them. C., a member of the society, was entitled to a clear- ance, having paid A. all his dues, but the money he had so paid had not been accounted for by A. to the treasurer. A. sent C. a clearance to which he had forged the names of the two officers whose signatures besides his own were necessary for the validity of the clearance. The clearance certified that the bearer C. was a member of the branch of the society granting it, and had paid all dues and demands, and it then authorized any other branch to receive C. as a clearance member : Held; that the clearance was not an " acquittance or receipt for money within s. 23 of 24 & 25 Viet. c. 98. THE QUEEN v. FRENCH - - 217 2. Antedated Deed " Forge " 24 & 25 Viet. c. 98, s. 20.] It is forgery to make a deed fraudulently with a false date, when the date is a material part of the deed, although the deed is in fact made and executed by and between the per- sons by and between whom it purports to be made and executed. THE QUEEN v. RITSON - 200 3. Hank-notes Scotch Banl: 24 & 25 Viet. c. 98, 88. 16, 55.] The 24 & 25 Viet. c. 98, s. 16, extends to the engraving in England with- out authority of notes purporting to be notes of a banking company carrying on business in Scotland only; notwithstanding that s. 55 enacts that nothing in the Act contained shall extend to Scotland. THE QUEEN v. BRACKENRIDGE AND KING - - 133 4. " Warrant," "Authority" "Bequest," "for the Payment of Money" Receipt 24 & 25 Viet. c. 98, s. 24.] Section 24 of 24 & 25 Viet. c. 98, enacts that " whosoever, with intent to defraud, shall make . . . any warrant, order, au- thority, or request for the payment of money . . . for, in the name, or on the account, of any other person, without lawful authority or excuse, . . . shall be guilty of felony :" Held, that a docu- ment, in form a mere receipt given by a depositor to a building society that received money on de- posit, might properly be described in an indict- ment as a " warrant," "authority," or "request" " for the payment of money," if, by the custom of the society, such receipts were in. fact treated as warrants, authorities, and requests for the pay- ment of money ; and, therefore, that a person forging such a receipt might be properly con- victed under s. 24 of 24 & 25 Viet. c. 98, upon an indictment so describing the document as a " war- rant," " authority," or " request," " for the pay- ment of money." THE QUEEN v. KAY - 257 5. 24 & 25 Viet. c. 98, s. 23" Under- taking.''] The prisoner, being pressed for pay- FORGERY continued. ment of a debt, obtained further time to pay, by giving, as security, an I. O. U., purporting to be feigned by himself and another, the signature of the latter being forged by the prisoner : Held, that the instrument was an " undertaking for the payment of money " within the meaning of 24 & 25 Viet. c. 98, s. 23. THE QUEEN v. CHAMBERS 341 FRAUD Consent Rape - - 156 See RAPE. Partnership - - 274 See CONSPIRACY. Possession of goods obtained by - 125 See LARCENY. 10. "FRAUDULENT PURPOSE" - 347 See LARCENY. 11. FRIENDLY SOCIETY Restraint of trade Ille- gality - 230 See RESTRAINT OF TRADE. Treasurer " Clerk or servant " - 177 See EMBEZZLEMENT. 4. GAME Larceny See LARCENY, 1,2. 158, 315 - 172 GAS Larceny Continuous taking See LARCENY. 3. GOODS IN BUILDING Setting fire to - 307 See MALICIOUS INJURY. 4. HABITUAL CRIMINALS ACT (32 & 33 Viet. c. 99), s. 11 - - 266 See RECEIVING STOLEN GOODS. 4. HIGHWAY ACT, 1835 (5 & 6 Wm. 4, c. 50), s. 5 See BRIDGE, REPAIR OF. [237 HOUSE - - 21 See DISORDERLY HOUSE. HUNDRED Liability to repair bridge - 23T See BRIDGE, REPAIR or. HUNDRED BRIDGE Repair by hundred 237 See BRIDGE, REE-AIR OP. HUSBAND AND WIFE Effect of conviction of wife for embezzlement under 24 fe 25 Viet. c. 134, s. 221 - 80 See BANKRUPT. Witness Fellow-prisoner - - 377 See COMPETENCE OF WITNESS. 2. IDIOT Consent Rape - 39 See RAPE. 2. ILLEGALITY Restraint of trade - - 230 See RESTRAINT OF TRADE. IMMATERIAL AVERMENT Arson Owner- ship - - 344 See MALICIOUS INJURY. 2. IMPEACHING CREDIT OF WITNESS Evidence See DISCREDITING WITNESS. [70 INCITING TO COMMIT A FELONY What amount to - - 77 See FELONY. INCOMPETENCE OF WITNESS - - 3S See WITNESS, COMPETENCE OF 3. C. C. R. VOL. I.] INDEX. 391 INDECENT ASSAULT Evidence Eelevancc 334 JURISDICTION Justices Apprentice See CONTRADICTION OF WITNESS. See PERJURY. 5. INDECENTLY EXPOSING THE PEESON - 282 Justices Bastardy - See NUISANCE. See PERJURY. 3, 4. INDICTMENT Amendment - 122 See AMENDMENT OF INDICTMENT. Arson Averment of ownership - 344 See MALICIOUS INJURY. 2. Assault - - 241 See CRIMINAL ASSAULT. Attempt - - 221 See ATTEMPT TO COMMIT CRIME. Constable Refusal to aid - 20 See CONSTABLE. Embezzlement - - 113, 328 See EMBEZZLEMENT. 2, 5. Joint Receiving stolen goods - 31 See RECEIVING STOLEN GOODS. 3. - Neglect Infant - - 99 See NEGLECT OF INFANT. Perjury - - 290 See PERJURY. Previous conviction - - 182, 363 See PREVIOUS CONVICTION. 1, 2. Stealing valuable securities - - 61 See LARCENY. 12. Uncertainty Surplusage - - 225 See DEPOSITION BEFORE JUSTICE. Unlawful wounding Assault - 194 See UNLAWFUL WOUNDING. 1. INFAMOUS CRIME Threat to accuse of - 12 See THREAT TO ACCUSE OF INFAMOUS CRIME. INFANT Abandonment - - 222, 311 See ABANDONMENT OF INFANT. 1, 2. Neglect of - 99 See NEGLECT OF INFANT. INFLICTING GRIEVOUS BODILY HARM Prac- tice Indictment - - 194 See UNLAWFUL WOUNDING. 1. INFORMATION under 9 Geo. 6, c. 69, s. 1 122 See AMENDMENT OF INDICTMENT. 1. INTENT False pretences - 4 See FALSE PRETENCES. Felony - - 284 See COINING. INTERNATIONAL LAW Jurisdiction of Admi- ralty Court Manslaughter - 161 See ADMIRALTY COURT JURISDICTION. INVALID MARRIAGE Bigamy - - 367 See BIGAMY. 2. JOINT INDICTMENT Receiving stolen goods 31 See RECEIVING STOLEN GOODS. 3. JOINT TRIAL Witness Fellow-prisoner 349, See COMPETENCE OF WITNESS. 1, 2. [377 JURISDICTION Admiralty Court - - 161 See ADMIRALTY COURT JURISDICTION. Averment Perjury - 290 See PERJURY. 1. Court for Crown Cases Reserved 54, 378 See COURT FOR CROWN CASES RESERVED VIEW. Justices Larceny See LARCENY. 4. Local marine board See PERJUKY. 6. Unregistered ship Evidence - See UNREGISTERED SHIP. 71 110, 320 - 136 - 264 JURY Evidence heard out of court Mistrial See VIEW. [378, Withdrawal of evidence from - 33 See COMPETENCE OF WITNESS. 3. JUSTICE Depositions Signature of justice 225- See DEPOSITION BEFORE JUSTICE. JUSTICES' JURISDICTION Apprentice - 136 See PERJURY. 5. Larceny - 71 See LARCENY. 4. Bastardy - 110, 320 See PERJURY. 3, 4. LARCENY Animals ferae Naturse Killing and Removal after an Interval of Time Continuous Act.] Poachers, of whom the prisoner was one, wrongfully killed a number of rabbits upon land belongin g to the Crown . T hey placed the rabbits in a ditch upon the same land, some of the rabbits in bags, and some strapped together. They had no intention to abandon the wrongful possession of the rabbits which they had acquired by taking them, but placed them in the ditch as a place of deposit till they could conveniently remove them. About three hours afterwards the prisoner came back, and began to remove the rabbits : Held* that the taking of the rabbits and the removal of them were one continuous act, and that the re- moval was therefore not larceny. THE QUEEN v. TOWNLEY _____ 315, 2. Animals ferse Naturse Young Par- tridges reared under a common Sen.'] Partridges, hatched and reared by a common hen, while they remain with her, and from their inability to escape are practically under the dominion and in the power of the owner of the hen, may be the subject of larceny, though the hen is not con- fined in a coop or otherwise, but allowed to wander with her brood about the premises of her owner. Reg. v. Cory (10 Cox, Cr. C. 23) followed. THE QUEEN v. SHICKLE - - 15S 3. Continuous Taking Abstraction of Gas.] A . stole gas for the use of a manufactory by means of a pipe which drew off the gas from the maiu without allowing it to pass through the meter. The gas from this pipe was burnt every day, and turned oft' at night. The pipe was never closed at its junction with the main, and consequently always remained full of gas : Held, that as the pipe always remained full, there was, in fact, a continuous taking of the gas, and not a series of separate takings ; but held, further, that, even if the pipe had not been thus kept full, the taking would have been continuous, as it was sub- stantially all one transaction. THE QUEEN v. FIRTH ------ 172 392 INDEX. [C. C. E. VOL. L LAECENY continued. 4. Constructive Possession Jurisdiction 24 & 25 Viet. c. 90, s. 114.] The prisoner stole ft watch at Liverpool, and sent it by railway to a confederate in. London : Held, that the con- structive possession still remained in the pri- soner, and that he was triable at the Middlesex Sessions. THE QUEEN v. BOGERS - - 136 5. False Pretences Master and Servant Distinction between general and limited Autho- rity of Servant.] Where a servant is entrusted with his master's property with a general autho- rity to act for his master in his business, and is induced by fraud to part with liis master's pro- perty, the person who is guilty of the fraud and so obtains the property, is guilty of obtaining it by false pretences, and not of larceny, because to constitute larceny there must be a taking against the will of the owner, or of the owner's servant duly authorized to act generally for the owner. But where a servant has no such general autho- rity from his master, but is merely entrusted with the possession of his goods for a special purpose, find is tricked out of that possession by fraud, the person who is guilty of the fraud and so obtains the property, is guilty of larceny, because the servant has no authority to part with the pro- perty in the goods except to fulfil the special purpose for which they were entrusted to him. The cashier of a bank is a servant having a general authority to conduct the business of the bank, and to part with its property on the pre- sentation of a genuine order from a customer ; and if he is deceived by a forged order, and parts with the money of the bank, he parts, intending so to do, with the property in the money, and the person knowingly presenting such forged order is guilty of obtaining the money by false pretences, and not of larceny. THE QUEEN v. PBINCE - 150 6. False Pretences Master and Servant Misappropriation of Money by Servant.'] A servant, whose duty it was to pay his master's workmen, and for this purpose to obtain the necessary money from his master's cashier, fraudu- lently represented to the cashier that the wages due to one of the workmen were larger than they really were, and so obtained from him a larger sum than was in fact necessary to pay the work- men. He did this intending at the time to ap- propriate the balance to his own use. Out of the sum so received he paid the workmen the wages really due to them, and appropriated the balance to his own use : Held, that whether the obtain- ing of the money in the first in&tance was larceny or obtainiug money by false pretences, the money while it remained in the prisoner's custody was the property and in the possession of the master, and therefore the misappropriation of it by the servant was larceny. THE QUEEN v. COOKE 295 7. Indictment Property.] The prisoner was sent by his fellow-workmen to their common employer, to get the wages due to all of them. He received the money in a lump sum, wrapped up in paper, witli the names of the workmen and the sum due to each written inside : Held, that he received the money as the agent of his fellow- workmen, and not as the si-rvaut of the employer, LABCENY continued. and that, in an indictment against him for steal- ing it, the money was wrongly described as the property of the employer. THE QUEEN v. BAICNKS [45 8, Lost Property.] The prisoner found a sovereign on a highway, believing at the time that it had been accidentally lost ; but, nevertheless, with a knowledge that he was doing wrong, he at once determined to appropriate it, notwithstanding it should afterwards become known to him who the owner was. There was no evidence to shew that the prisoner believed he could ascertain who the true owner was at the time he found the sovereign: Held, on the authority of Eeg. v. Thurborn (1 Den. Cr. C. 387 ; 18 L. J. (M.C.) 140), that the prisoner was not guilty of larceny. THE QUEEN v. GLYDE - - 139 9. Modi Auction " Taking" Payment made under Fear] A. acted as auctioneer at a mock auction. He knocked down some cloth for 26s. to B., who had not hid for it, as A. knew. B. refused to take the cloth or to pay for it ; A. re- fused to allow her to leave the room unless she paid. Ultimately, she paid the 26s. to A., and took the cloth. She paid the 26s. because she was afraid. A. was indicted for, and convicted of, feloniously stealing these 2Gs. : Held, that the conviction was right, because if the force used to B. made the taking a robbery, larceny was in- cluded in that crime ; if the force was not suf- ficient to constitute a robbery, the taking of the money nevertheless amounted to larceny, as B. paid the money to A. against her will, and because she was afraid. Held, further, that, under the circumstances, it was not necessary that the jury should be asked whether B. paid the money against her will, as from the evidence stated in the case it was clear that there could have been no doubt in the minds of the jury that the money was so paid. THE QUEEN v. McGuATH - 205 10. Possession obtained by Fraud.] The prisoner with another man went into the shop of the prosecutrix and asked for a pennyworth of sweetmeats, for which he put down a florin. The prosecutrix put it into the money-drawer, and put down one shilling and sixpence in silver and five- pence in copper in change, which the prisoner took up. The other man said, " you need not have changed," and threw down a penny, which the prisoner took up ; and the latter then put down a sixpence in silver and sixpence in copper on the counter, saying, " Here, mistress, give me a shil- ling for this." The prosecutrix took a shilling out of the money-drawer and put it on the counter, when the prisoner said to her, " You may as well give me the two-shilling-piece and take it all." The prosecutrix took from the money-drawer the florin she had received from the prisoner, and put that on the counter, expecting she was to receive two shillings of the prisoner's money in exchange for it. The prisoner took up the florin ; and the prosecutrix took up the silver sixpence and the sixpence in copper put down by the prisoner, and also the shilling put down by herself, and was putting them into the money-drawer, when she saw she had only got one shilling's worth of the prisoner's money ; but at that moment the prisoner's companion drew away her attention, and, before C. C. K. VOL. L] INDEX. 393 LARCENY continued. she could speak, the prisoner pushed his com- panion by the shoulder, and botli went out of the shop : Held, that the property in the florin had not passed to the prisoner, and that he was rightly convicted of larceny. THE QUEEN v. McKALE 125 11. - Process of Court Taking with frau- dulent Purpose 24 & 25 Viet. c. 96, 8. 30.> The prisoner's goods having been seized under war- rants of execution of a county court, and being in possession of the bailiff, the prisoner, with in- tent to deprive the bailiff, as he supposed, of his authority, and so defeat the execution, forcibly took the warrants from him : Held, that the prisoner was not guilty of larceny, but that he was guilty of taking the warrants for a fraudu- lent purpose within the meaning of 24 & 25 Viet. c, 96, s. 30. THE QUEEN v. THOMAS BAILEY 347 12. Valuable Security 24 & 25 Vict.c. 96, ss. 1, 27 Indictment.] An indictment under 24 & 25 Vicf. c. 96, s. 27, for stealing a valuable security, must particularize the kind of valuable security stolen ; and any material variance be- tween the description in the indictment and the evidence, if not amended, will be fatal. THE QUEEN v. LOWIIIE - - 61 - Partner receiving stolen goods - 266 See EECEIVING STOLEN GOODS. 4. LAWFUL AUTHORITY OE EXCUSE - 284 See COINING. LOCAL MARINE BOARD Jurisdiction - 49 See PEEJUEY. 6. LOST PROPERTY -Larceny - - 139 See LABCENY. 8. LUNATIC 8 & 9 Viet. c. 100, ss. 90, 114.] Im- becility and loss of mental power, whether arising from natural decay or from paralysis, softening of the brain or other natural cause, and although unaccompanied by frenzy or delusion of any kind, constitute unsoundness of mind amounting to lunacy within the meaning of S & 9 Viet. c. 100. THE QUEEN v. SHAW - - 145 MALICE Unlawfully wounding - - 356 See UNLAWFUL WOUNDING. 2. MALICIOUS INJURY Arson 24 & 25 Viet, c.97, s. 6 Building Unfinished House.] A building in 24 & 25 Viet. c. 97, s. 6, is not necessarily a finished structure. An unfinished house, of which the walls were built and finished, the roof on and finished, a considerable part of the flooring laid, and the internal walls and ceilings prepared ready for plastering, held, to be a building within the meaning of the section. THE QUEEN v. MAN- NING AND KOGEKS - - - 338 2. - Arson Indictment Immaterial Aver- ment Statement of Ownership 24 & 25 Vict.c. 97, ss. 3, t>0.] Two prisoners were indicted under 24 & 25 Viet. c. 97, a. 3, for feloniously setting fire to a shop " of and belonging to " one of the prisoners :Held, that the averment of property in the prisoner was an immaterial averment, which need not be proved; and that an intent to injure another person as owner might be proved in sup- port of the indictment. THE QUEEN v. JOSEPH NEWBOULT AND BENJAMIN HOLDSWOETH - 344 MALICIOUS INJURY continued. 3. Damaging Engine 24 & 25 Viet. c. 97, s. 15.] The prisoner plugged up the feed-pipe of a steam-engine, and displaced other parts of the engine in such a way as rendered it temporarily useless, and would have caused an explosion, if the obstruction had not been discovered, and, with some labour, removed : Held, that he was guilty of damaging the engine with intent to render it useless, within the meaning of the 24 & 25 Viet. c. 97, s. 15. THE QUEEN v. WILLIAM FISHER - 7 4. Setting Fire to Goods in a Building 24 & 25 Viet. c. 97, s. 7.] By 24 & 25 Viet. c. 97, s. 7, whosoever shall unlawfully and maliciously set fire to any matter or thing being in, against, or under any building, under such, circumstances that if the building were thereby set fire to the offence would amount to felony, is guilty of felony. The prisoner, from ill-will and malice against a person lodging in a house, made a pile of her goods on the stone floor of the kitchen, and set fire to them, under such circumstances that the house would almost certainly have been burned had not the police extinguished the fire before the house was actually ignited. The judge at the trial told the jury, that if the house had caught fire from the burning goods, the question, whether the offence would have amounted to felony would have depended upon whether such a setting fire to the house would have been mali- cious and with intent to injure, so as to bring the case within 24 & 25 Viet. c. 97, s. 3 ; and that, though the prisoner's object was only to destroy the goods, and injure the owner of them, and not to destroy the house, or injure the landlord, yet if they thought he was aware that what he was doing would probably set the house on. fire, and so necessarily injure the owner, and was at best reckless whether it did so or not, they ought to find that if the building had caught fire from the setting fire to the goods, the offence would have been felony, otherwise not. The jury found that the prisoner was guilty, but not so that if the house had caught fire the setting fire to the house would have been wilful and malicious : Held, that upon the finding of the jury the prisoner was not guilty of felony. THE QCEEN v. CHILD 307 5. Wounding Cattle 24 & 25 Viet, c.97, s. 40.] Upon an indictment under 24 & 25 Viet. c. 97, s. 40, for maliciously wounding a horse, it is not necessary to prove that any instrument was used to inflict the wound. THE QUEEN v. BULLOCK [115 Trees - - - - 118 See TEEES. MANSLAUGHTER Jurisdiction Admiralty Court - 161 See ADMIRALTY COUET. MARINE BOARD, LOCAL -Jurisdiction - 49 See PERJURY. 6. MARRIAGE Before registrar Misnomer 365 See BIGAMY. 1. Invalidity Bigamy - - - 367 See BIGAMY. 2. MARRIED WOMAN Bankruptcy 80 See BANKRUPT. 394 INDEX. [C. C. R. VOL. L MASTER AND APPRENTICE Jurisdiction Perjury - - 71 See PERJURY. 5. MASTER AND SERVANT Larceny Authority See LARCENY. 5, 6, 7. [45, 150, 295 MATERIALITY Perjury 107 See PERJURY, 7. MERCHANT SHIPPING ACT, 1854 (17 & 18 Viet. c. 104) s. 106 - - 264 See UNREGISTERED SHIP. . s. 267 - - 161 See ADMIRALTY COURT JURISDICTION. MISDEMEANOUR INCLUDING LESSER MISDE- MEANOUR - - 194 See UNLAWFUL WOUNDING. 1 . MISNOMER Marriage before registrar - 265 See BIGAMY. 1. MISREPRESENTATION OF QUALITY - 301 See FALSE PRETENCES. 2. MISTRIAL Evidence heard out of court - 378 See VIEW. MOCK AUCTION Taking Payment under fear See LARCENY. 9. [205 NEGLECT, meaning of, in an indictment - 99 See NEGLECT OF INFANT. NEGLECT OF INFANT Neglect to provide for Infant Indictment.'] The prisoner was convicted on an indictment which charged him with neg- lecting to provide food and clothing for his child, but omitted specifically to allege his ability to do so: Held, that tlie ability to provide was im- plied, and therefore sufficiently averred, in the use of the word " neglect." THE QUEEN v. RYLAND 99 NEGLIGENCE IN PROVIDING FOOD FOR AN INFANT CHILD - 99 See NEGLECT OF INFANT. NO PRESENT HOPE OF RECOVERY - 187 See DYING DECLARATION. NOTICE TO PRODUCE Evidence.'] The pri- soner, a solicitor, was indicted for perjury in having sworn that there was no draft of a certain statutory declaration made by a client. No notice to produce the draft had been given to the prisoner ; and upon his trial it was proved to have been last seen in his possession. Secondary evidence having been given of its contents : Held, that, in the absence of such notice, secondary evidence was inadmissible. THE QIEEN v. ELWORTHY - 103 NUISANCE Indecently exposing the Person Public Place Urinal.} The prisoners were con- victed of indecently exposing their persons in a urinal, open to the public, which stood on a public footpath in Hyde Park, and the entrance to which was from the footpath : Held, that the jury might well find the urinal to be a public place, and that, therefore, the conviction was good. Reg. \. Orchard (3 Cox, Cr. O. 248), observed upon. THE QUEEN v. HARRIS AND COCKS - - 282 OBSTRUCTION OF TRAIN 24 & 25 Viet. c. 97, s. 36 Altering Signals.'] 24 & 25 Viet. c. 97, s. 36, enacts that, " whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct, or caxise to be obstructed, any engine or carriage using any railway, . . . shall be guilty of a misdemeanour." The prisoner unlawfully OBSTRUCTION OF TRAIN continued. altered some railway signals at a railway station. The alteration caused a train, which would have passed the station without slackening speed, to slacken speed, and to come nearly to a stand. Another train going in the same direction, and on the same rails, was due at the station in half an hour : Held (Martin, B., dissenting), that the prisoner had " obstructed " a train within the meaning of s. 36 of 24 & 25 Viet. c. 07. THE QUEEN v. HADFIELD - --253 2. 24 that officer is therein described as the deputy clerk of the peace of a borough. The certificate need not aver that the quarter sessions at which the prisoner was convicted were held by the recorder. THE QUEEN v. JOHN PARSONS - - 24 Assault - - 90 See AUTREFOIS CONVICT. Receiving stolen goods Habitual Criminals Act (32 & 33 Viet. c. 99) - - 272 See RECEIVING STOLEN GOODS. 2. PRISON ACT, 1865 - 27 See PRISON BREACH. PRISON BREACH Tlie Prison Act, 1865 (28 29 Viet. c. 126), s. 37.] The prison Act, 1865 (28 & 29 Viet. c. 126), s. 37, which forbids the convey- ance into any prison, with intent to facilitate the escape of a prisoner, of any mask, dress, or other disguise, or of any letter, or of any other article or thing, includes a crowbar. THE QUEEN v. PAYNE - - 27 PROCESS OP COURT Taking for fraudulent pur- pose - - 347 See LARCENY. 11. PROHIBITED DEGREES Marriage Bigamy See BIGAMY. 2. [367 PROPERTY Larceny - - 45 See LABCENY. 7. PUBLIC PLACE Exposing the person - 282 See NUISANCE. QUALITY, MISREPRESENTATION OF - 301 See FALSE PRETENCES. RAILWAY Obstruction of train - 253,278 See OBSTRUCTION TO TRAIN. 1, 2. C. C. K. VOL. I.] INDEX. 307 EAPE Woman's Consent obtained by Fraud.'} Where a woman consents to the act of connection, even though her consent is obtained by fraud, the act does not amount to rape. A woman while in bed with her husband permitted the prisoner, tinder the belief that he was her husband, to have connection with her; Held, that, in the absence of proof that she was asleep or uncon- scious at the time the act of connection com- menced, it must be taken that her consent was obtained by fraud, and that the prisoner's act did not amount to rape. THE QUEEN v. BAKROW 156 2. Idiot Consent.'] Upon an indictment for rape there must be some evidence that the act was without the consent of the woman, even where she is an idiot. In such a case, where there were no appearances of force having been used to the woman, and the only evidence of the connection was the prisoner's own admission, coupled with the statement that it was done with her consent, the Court held that there was no evidence for the jury. THE QUEEN v. FLETCHER [39 Attempt Aiding and abetting - 221 See ATTEMPT TO COMMIT CKIME. Evidence Kelevance - 334 See CONTRADICTION OF WITNESS. RECEIPT Forgery - - 217 See FORGERY. 1. RECEIVING STOLEN GOODS Delivery by Oicner.'] Four thieves stole goods from the custody of a railway company, and afterwards sent them in a parcel by the same company's line addressed to the prisoner. During the transit the theft was discovered ; and, on the arrival of the parcel at the station for its delivery, a policeman in the employ of the company opened it, and then re- turned it to the porter whose duty it was to deliver it, with instructions to keep it until further orders. On the following day the policeman di- rected the porter to take the parcel to its address, when it was received by the prisoner, who was afterwards convicted of receiving the goods know- ing them to be stolen, upon an indictment which laid the property in the goods in the railway company : Held, by Martin, B., and Keating and Lush, JJ. (dissentientibus, Erie, C.J., and Mellor, J.), that the goods had got back into the possession of the owner, so as to be no longer stolen goods, and that the conviction was wrong. THE QUEEN v. FANNY SCHMIDT - 15 2. ! Evidence Onus of Proof Previous Conviction Habitual Criminals Act (32