No. 4. Act of Parl. 12 & 13 Vic. c. 96. suffer the like murder and manslaughter, where the death only happens in the Colony or upon so convicted shall be subject and liable to and shall suffer all such and the same pains, penalties, and forfeitures as by any law or laws now in force persons convicted of the same respectively would be subject and liable to in case such offence had been committed, and were inquired of, tried, heard, determined, and adjudged, in England, any law, statute, or usage to the contrary notwith- punishments standing. as on conviction of like offences in England. III. And be it enacted, That where any person shall die in any Provision for colony, of any stroke, poisoning, or hurt, such person having been the trial of feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the Admiral or Admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessary before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished in such colony in the same manner in all respects as if such offence had been wholly committed in that colony; and that if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the Admiral or Admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea. IV. Provided also, and be it enacted, That nothing in this Act contained shall in any way affect or abridge the jurisdiction of the Supreme Courts of New South Wales and Van Diemen's Land, as established by an Act passed in the ninth year of the reign of King George the Fourth, entitled "An Act to provide for the Administration of Justice in New South Wales and Van Diemen's Land, and for the more effectual Government thereof, and for other purposes relating thereto. the Sea. Jurisdiction of Courts of New and Van Diemen's Land preserved. 9 G. 4, c. 83. V. And be it enacted, That for the purposes of this Act the Interpretation word "Colony" shall mean any island, plantation, colony, domi- of terms. nion, fort, or factory of Her Majesty, except any island within the United Kingdom, and the Islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent thereto respectively, and except also all such parts and places as are under the Government of the East India Company; and the word "President" shall mean the officer for the time being administering the Government of any colony. VI. And be it enacted, That this Act may be amended or re- Act may be pealed by any Act to be passed during this present Session of amended, &c. Parliament. No. 5.-ORDINANCE No. 13 of 1852. No. 5. 1852. An Ordinance for further improving the administration of Criminal Ord. No. 13 WE HEREAS offenders frequently escape conviction on their PREAMBLE. trials by reason of the technical strictness of criminal pro No. 5. Ord. No. 13, 1852. Criminal information may be amended at time of trial in certain cases, ceedings in matters not material to the merits of the case; and, whereas, such technical strictness may safely be relaxed in many instances, so as to insure the punishment of the guilty without depriving the accused of any just means of defence;-and whereas, a failure of justice often takes place on the trial of persons charged with felony and misdemeanour, by reason of variances between the statement in the information on which the trial is had and the proof of names, dates, matters, and circumstances therein mentioned not material to the merits of the case, and by the misstatement whereof the person on trial cannot have been prejudiced in his defence; May it, &c. I. That whenever, on the trial of any information for any felony or misdemeanour, there shall appear to be any variance between the statement in such information and the evidence offered in proof thereof, in the name of any island, parish, township, or place mentioned or described in any such information, or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein; or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged, by the commission of such offence, or in the Christian name or surname, or both Christian name and surname, or other description whatsoever of any person or persons whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, it shall and may be lawful for the Court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order such information to be amended according to the proof, by some officer of the Court, or other person, both in that part of the information where such variance occurs, and in every other part of the information which it may become necessary to And trial post- amend on such terms, as to postponing the trial to be had by the poned. same or another jury as such Court shall think reasonable; and after any such amendment, the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects, and with the same consequences, both with respect to the liability of witnesses to be prosecuted for perjury and otherwise, as if no such variance had occurred, and the order for the amendment shall be either endorsed on the information, or shall be engrossed on a separate piece of paper, and filed, together with the information Proviso respect among the records of the Court: Provided that in all such cases, where the trial shall be so postponed, as aforesaid, it shall be lawful for the Court to respite the recognizances of the prosecutor and witnesses, and of the defendant, and his surety or sureties, if any, accordingly; in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence, respectively, and the defendant shall be bound to attend to be tried, at the time and place to which such trial shall be postponed, without entering into any fresh recognizances for that purpose, in such and the same manner as if they were originally bound by their recognizances to appear and prosecute, or give evidence at the time and ing recogni Zances. No. 5. 1852. place to which such trial shall have been postponed: Provided, also, that where any such trial shall be to be had before another Ord. No. 13, jury, the Crown and the defendant shall respectively be entitled to the same challenges as they were respectively entitled to before the first jury were sworn. meut. II. That every verdict and judgment which shall be given Effect of verdict after the making of any amendment under the provisions of this after amendOrdinance, shall be of the same force and effect in all respects as if the information had originally been in the same form in which it was after such amendment was made. such case. III. That if it shall become necessary at any time, for any pur- As to form pose whatsoever, to draw up a formal record in any case where of Record in any amendment shall have been made under the provisions of this Ordinance, such record shall be drawn up in the form in which the information was, after such amendment was made, without taking any notice of the fact of such amendment having been made. IV. That in any information for murder or manslaughter, pre- Unnecessary in ferred after the coming of this Ordinance into operation, it shall information for not be necessary to set forth the manner in which, or the means Murder, &c., to whereby, the death of the deceased was caused; but it shall be state how sufficient in every information for murder, to charge that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased; and it shall be sufficient in every information for manslaughter, to charge that the defendant did feloniously kill and slay the deceased. effected, &c. V. That in any information for forging, uttering, stealing, em- In cases of bezzling, destroying, or concealing, or for obtaining by false pre- Forgery, &c., tences any instrument, it shall be sufficient to describe such how the instrument may instrument by any name or designation by which the same may be be described. usually known, or by the purport thereof, without setting out any copy or fac-simile thereof, or otherwise describing the same, or the value thereof. VI. That in any information for engraving, or making the whole Proceedings or any part of any instrument, matter, or thing whatsoever, or for on informa rising, or having the unlawful possession of any plate or other tions for enmaterial upon which the whole or any part of any instrument, graving, &c. matter, or thing whatsoever shall have been engraved or made, or for having the unlawful possession of any paper upon which the whole or any part of any matter, instrument, or thing whatsoever shall have been made or printed, it shall be sufficient to describe such instrument, matter, or thing by any name or designation by which the same may be usually known, without setting out any copy or fac-simile of the whole, or any part of such instrument, matter, or thing. VII. That in all other cases, wherever it shall be necessary to make any averment, in any information as to any instrument, whether the same consists wholly or in part of writing, print, or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile of the whole, or any part thereof. How any in strument of writing may be described. In cases of sufficient to aver that VIII. That from and after the coming of this Ordinance into Forgery, &c. operation, it shall be sufficient in any information for forging, uttering, offering, disposing of, or putting off any instrument whatsoever, or for obtaining, or attempting to obtain any property Defendant did so with intent to defraud. No. 5. 1852. by false pretences, to allege that the defendant did the act with inOrd. No. 13, tent to defraud, without alleging the intent of the defendant to be to defraud any particular person; and on the trial of any of the offences in this section mentioned, it shall not be necessary to prove an intent on the part of the defendant to defraud any particular person, but it shall be sufficient to prove that the defendant did the act charged with intent to defraud. On information changing the actual commission of Crime, the convicted of the attempt to commit the offence charged. IX. And whereas offenders often escape conviction, by reason that such parties ought to have been charged with attempting to commit offences, and not with the actual commission thereof; for remedy thereof, be it ordained that, if on the trial of any person cffender may be charged with any felony or misdemeanour, it shall appear to the jury, upon the evidence, that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not, by reason thereof, be entitled to be acquitted; but the jury shall be at liberty to return, as their verdict, that the defendant is not guilty of the felony or misdemeanour charged, but is guilty of an attempt to commit the same; and, thereupon, such person shall be liable to be punished in the same manner as if he had been convicted upon an information for attempting to commit the particular felony or misdemeanour charged in the said information; and no person, so tried, as herein lastly mentioned, shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanour for which he was so tried. On information for Robbery, the jury may find a verdict for assault with intent to Rob. If on information for misdemeanour, it appear that the defendant is guilty of a Felony, he shall not be acquitted of nour, bu liable the Misdeinea to be tried for Felony. On information for Embezzle ment, defendant may be found guilty of Larceny. X. That if upon the trial of any person, upon an information for robbery, it shall appear to the jury upon the evidence that the defendant did not commit the crime of robbery, but that he did commit an assault with intent to rob, the defendant shall not, by reason thereof, be entitled to be acquitted; but the jury shall be at liberty to return as their verdict, that the defendant is guilty of an assault with intent to rob; and thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an information for feloniously assaulting with intent to rob; and no person so tried, as is herein lastly mentioned, shall be liable to be afterwards prosecuted for an assault with intent to commit the robbery for which he was so tried. XI. That if upon the trial of any person for any misdemeanour, it shall appear that the facts given in evidence amount in law to a felony, such person shall not, by reason thereof, be entitled to be acquitted of such misdemeanour; and no person tried for such misdemeanour shall be liable to be afterwards prosecuted for felony on the same facts, unless the Court before which such trial may be had shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be prosecuted for felony; in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanour. XII. That if upon the trial of any person, upon any information for embezzlement, as a clerk, servant, or person employed for the purpose, or in the capacity of a clerk or servant, it shall be proved that he took the property in question, in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted; but the jury shall be at liberty to return as their verdict, that such person is not guilty of embezzlement, but is guilty of simple larceny, or of larceny as a clerk, servant, or person employed for the purpose, or in the capacity of a clerk or servant, as the case may be; and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an information for such larceny; and if upon the trial of any person for larceny it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, he shall not, by reason thereof, be entitled to be acquitted, but the jury shall be at liberty to return as their verdict, that such person is not guilty of larceny, but is guilty of embezzlement, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an information for such embezzlement; and no person so tried for embezzlement or larceny, as aforesaid, shall be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts. No. 5. Ord. No. 13, 1852. XIII. That if upon the trial of two or more persons prosecuted Persons charged for jointly receiving any property, it shall be proved that one or with jointly more of such persons separately received any part of such pro- receiving perty, it shall be lawful for the jury to convict such of the said property. persons as shall be proved to have received any part of such property. XIV. And whereas it frequently happens that the principal in a felony is not in custody, or amenable to justice, although several accessaries to such felony, or receivers at different times of stolen property, the subject of such felony may be in custody, or amenable to justice, for the prevention of several trials; be it ordained, that any number of such accessaries or receivers may be charged with substantive felonies, in the same information, notwithstanding the principal felon shall not be included in the same information, or shall not be in custody, or amenable to justice. Several accessaries may be charged in the same in formation. Three acts of stealing from one person may] be included in one information, if committed within six months. Information for Larceny of property stolen at several times, XV. That it shall be lawful to insert several counts in the same information against the same person, for any number of distinct acts of stealing, not exceeding three, which may have been comImitted by him against the same person within the space of six calendar months from the first to the last of such acts, and to proceed thereon for all or any of them. XVI. That if upon the trial of any information for larceny, it shall appear that the property alleged in such information to have been stolen at one time was taken at different times, the prosecutor shall not, by reason thereof, be required to elect upon which taking he will proceed, unless it shall appear that there were more than three takings, or that more than the space of six calendar months elapsed between the first and last of such takings; and in either of such last-mentioned cases, the prosecutor shall be required to elect to proceed for such number of takings, not exceeding three, as appear to have taken place within the period of six calendar months from the first to the last of such takings. XVII. That in every information in which it shall be neces- Mode of desary to make any avowment as to any money, or any note of the scribing money, Bank of England, or any other bank, it shall be sufficient to de- &c., in an incribe such money or bank-note, simply as money, without specifying any particular coin or bank-note; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank-note, although the particular species of coin of which such amount was composed, formation. |