4, c. 82, is not admissible as a witness in criminal cases upon making the affirmation according to 9 G. 4, c. 32.

THIS was an indictment for a highway robbery, tried before Mr. Justice PATTESON at the Spring assizes, 1838, for South Lancashire.

The prosecutor, John Atkinson Simpson, being called, it was proposed to him to make the affirmation usually made by Quakers, under the statute 9 G. 4, c. 32.

The counsel for the prisoners interposed and questioned the witness, who said as follows:-"I was a member of the Society of Friends until within fifteen months. Then there was a difference amongst us on points of doctrine. I am one of those who separated. I am still of the same opinion with the Friends as to taking an oath or making an affirmation, and on many other points. I am not now a Quaker. We have taken the name of Evangelical Friends. They call themselves Friends. I am not now a member of the Society of Quakers. The world, I believe, calls us Quakers; but I have a difficulty in saying that I am *a Quaker after the difference of doctrine and separation. There are many doctrines in which I with the Friends: in some particular doctrines, which are distinguishing ones, I differ; one is, as to the rite of baptism: they do not hold it a sacrament, I do. The great point of difference is, the influence of the Spirit, the inward light; that is a leading doctrine. They hold that every man has sufficient in himself: we, that the Bible is the guide; that is a leading doctrine. Also,

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agree

we differ as to reading the Scriptures in our meetings. We are generally addressed as if we were Quakers: still I cannot say that I am a Quaker at all; I am but a Moravian."

It was contended by the counsel for the prosecution, that the witness might affirm, either under 9 G. 4, c. 32, or under 3 & 4 W. 4, c. 49. That the question under the former act is not whether the witness considers himself a Quaker, but whether he is in fact a Quaker; and that in this case it was sufficiently shown that he was in fact a Quaker. That under the latter act two forms are given,

"I, A. B. being one of the people called Quakers, &c."

Or,

"I, A. B. being one of the persuasion of the people called Quakers,"

And that the latter form being different from the former, probably meant to include all persons who hold the same opinion with regard to the lawfulness of an oath and the obligation of an affirmation, as the Quakers, and that the witness professed to hold the same opinion.

The learned Judge put it to the witness, whether he would affirm in the form first given by 3 & 4 W. 4, *c. 49, viz. "I, A. B., being one of the people called, Quakers." The witness refused.

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The learned Judge put it to him, whether he would affirm in the form secondly given, viz., "I, A. B., being one of the persuasion of the people called Quakers." The witness refused, saying, that he could not see the difference; that he considered the word persuasion to mean "sect."

The learned Judge put it to the witness, whether he would make the affirmation in the form given by 3 & 4 W. 4, c. 82, touching separatists. The witness said, "I am not of that sect," and refused.

The learned Judge asked him whether he would take an oath. The witness refused.

The witness then said, "I am not a Quaker, but I have no objection whatever to make the affirmation in the terms, 'I, A. B., do solemnly, sincerely, and truly affirm and declare,' &c.; and if I do so affirm, I hold it binding upon my conscience."

The learned Judge admitted the witness, and upon his evidence the prisoners were convicted; but judgment was respited, in order to take the opinion of the Judges, whether, under these circumstances, the witness ought to be considered a Quaker within the meaning of the statute 9 G. 4, c. 32.

The case was considered in Easter term, 1838, by all the Judges, except VAUGHAN, J., GURNEY, B., and WILLIAMS, J., and they were unanimously of opinion that the witness was not admissible, and that the conviction was therefore wrong.

Under 1 Vict. c. 85, it is no defence to a charge for maliciously wounding, &c., that the offence would not have been murder if death had ensued. Sentence of hard labor may be pronounced on all persons convicted of assaults under 1 Vict. c. 85, s. 11, upon indictments for felonies.

THE opinion of the Judges was requested by Mr. BARON PARKE and Mr. BARON BOLLAND upon two questions which arose on the Norfolk Spring circuit, 1838.

By 9 G. 4, c. 31, s. 11, the offences of attempts to poison, or unlawful and malicious shooting at, and wounding with intent to murder, are made capital.

By section 12, the offences of unlawful and malicious shooting, attempting to discharge loaded arms, and wounding with intent to maim, disfigure, or disable, or do grievous bodily harm, are also made capital, with a proviso, that in case it shall appear on the trial that such acts of shooting, &c., were committed under such circumstances as that, if death had ensued therefrom, the same would not have amounted to the crime of murder, in every such case the person indicted shall be acquitted of felony.

The 1 Vict. c. 85, recites that it is expedient to amend so much of 9 G. 4, c. 31, as relates to (not as relates to the punishment of) any person who shall unlawfully and maliciously administer, or attempt to administer, poison, &c., or who shall unlawfully and

maliciously shoot at any person, or attempt to discharge loaded arms, or wound any person, and so much as relates to the punishment of accessories after the fact, enacts that so much of the said act therein before referred to shall continue in force till the 30th of September, 1837, and be then repealed, &c.; and then proceeds to enact, that persons guilty of attempting to administer poison, or that shall shoot at any person, &c., with intent to murder, shall be transported *for life; and whosoever shall unlawfully and maliciously shoot at any person, &c., or cut or wound, &c., with intent to maim, disfigure, or do some grievous bodily harm, shall be guilty of felony, and be transported for life.

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The stat. 1 Vict. c. 85, does not contain the proviso in the stat. 9 G. 4, c. 31, s. 12.

Is it now a defence to an indictment for wounding with intent to maim, &c., that if death had ensued, the offence would not have been murder but manslaughter?

By section 8 of 1 Vict. c. 85, it is enacted, that when any one shall be convicted of an offence punishable under this act, for which imprisonment shall be awarded, the Court may sentence the prisoner to be kept to hard labor.

By section 11, it is enacted, that on the trial of any person for any of the offences before mentioned in that act, or for any felony whatever, when the crime charged shall include an assault against the person, it