REG.

บ.

LAWLOR.

1853.

Indictment

case most favourably for the prisoner, it would appear that the assistant-barrister did not think proper to commit him, or bind over witnesses to prosecute. If he had done so, it would then have been a prosecution under that (19th) section of Lord Campbell's Act, and the prisoner should have been sent to the next session of the Court Perjury of General Gaol Delivery. This must have been a prosecution Jurisdiction. under the 157th section of the Civil Bill Act, which provides that the assistant-barrister may, if he think proper, give a certificate that the case ought to be prosecuted, which will entitle the prosecutor to get his expenses from the county treasurer. In prosecutions under that (157th) section, where he leaves the party at liberty, if he pleases, to prosecute, any court having proper authority may try the case. Now, as to the last argument, that the indictment is bad because it does not allege in terms that the case in which the perjury was committed was one which the assistant-barrister had jurisdiction to try, and in support of which R. v. Overton has been cited, it seems to us that the case of Lavey v. The Queen is one which cannot be distinguished from the present. We have, in the present case, an allegation that there was a civil bill pending; that it came on to be tried, in due form of law, by the said Walter Berwick, assistant-barister for the Cork County, East Riding and division; that the oath was taken before him, the said Walter Berwick, assistant-barrister as aforesaid, having then and there sufficient and competent authority to administer the said oath. There is nothing in the indictment from which it follows that the case was not one which he had authority to try, and full evidence of its being such a case was given on the trial. We think it is impossible to distinguish the present case from Lavey v. The Queen; and if we were called on to decide between R. v. Överton and Lavey v. The Queen, we consider the last case comes within the spirit of Lord Campbell's Act, enabling the court to amend variances not material to the merits of the case. We think it was the object of that act, when the substance of an offence has been proved, to get rid of any technical objections which might be raised to the indictment. It is true that a writ of error had been brought to reverse the decision of the court in the case of Lavey v. The Queen, but we find in the note to the report of that case in Denison Crim. Cas. that it has not been followed up, and that, therefore, the authority of that case is in no way shaken. It is also right to remark that the Court of Exchequer distinguished Lavey v. The Queen from R. v. Overton. On the whole, we are of opinion that this case comes within the authority of Lavey v. The Queen, that that case is well decided, and that, therefore, the ruling of the court below should be affirmed.

Conviction affirmed.

COURT OF QUEEN'S BENCH.

May 24, 1853.

(Before CRAMPTON, PERRIN, and MOORE, JJ.)

REG. v. WALLACE. (a)

Relaxation of prison rules-Motion for, by editor convicted of libel— Form of application.

An application on behalf of a prisoner for a relaxation in his favour of the rules of the prison where he is confined, should be brought forward by way of petition, and not as a motion: and will not be heard unless a copy of the rules, properly verified, is before the court.

Semble, such applications should not be entertained at all. Per Crampton, J.

FITZGIBBON, Q.C., on behalf of the prisoner, moves for an

order that the rules of the prison may be relaxed in favour of the prisoner. From the affidavit filed by the prisoner, it appears that, having been convicted of a libel in his newspaper on the officers and men of the 31st regiment, he was sentenced to six months' imprisonment in the gaol of Cavan. The affidavit states that Mr. Wallace's wife was refused access to him except for three hours in the day and on but two days in the week; that his paper, if he is thus refused communication with people in his confidence and employment, will be entirely ruined.

CRAMPTON, J.-Is there any instance of such an application as the present?

Fitzgibbon, Q. C.-Yes; in Robert Caldwell's case.

CRAMPTON, J.-Every man in the prison might apply for the same privileges if we entertain this application.

Fitzgibbon, Q. C.-In Caldwell's case the prisoner was an attorney, and the court directed that his clerk should have access to him for the purpose of carrying on his business. Our affidavit states that Mr. Wallace is only allowed to take exercise along with the rest of the prisoners at an inconvenient hour, and that he is in a delicate state.

PERRIN, J.-Have you a copy of the bye-laws of the prison? If not, this case is imperfectly before the court. We should have

these.

CRAMPTON, J.-I cannot, for my part, conceive a more dan

REG.

V.

WALLACE.

1853.

Prisoner.

gerous rule than to interfere in such a case. Are we to confine our interference to cases of libel and to persons of the rank of gentlemen? If we give this indulgence to any, we must extend it to all.

PERRIN, J.-I do not wish to express any opinion at present on the subject. I should like to have the case properly before the court by a petition, with a copy of the prison bye-laws. I have now no matter before me on which to express an opinion.

[On inquiry in the Crown office, I was informed by Mr. Wilson that no such order was to be found in the Crown books, and consequently could not have been made. He supposed that the mistake into which Mr. Fitzgibbon fell was caused by the fact, that the application was made, and that an intimation was then given to the governor of the prison that Mr. Caldwell should be allowed to see his clerks. No order, however, was made on the subject.-REP.]

COMMISSION COURT, GREEN-STREET.

August 3, 1853.

(Before LEFROY, C.J. and MONAHAN, C.J.)

REG. v. FULLARTON and CROOKS. (a)

Indictment, amendment of-Owner of stolen goods.

Where stolen property has been laid in a wrong person, the indictment may be amended, even after the counsel for the prisoner has addressed the jury and closed. Reg. v. Rymes (3 Car. & Kir. 326) overruled. THE prisoners were indicted for that they on, &c., made an as

sault on Edward Critchley, &c.; and twenty-two rabbits, the goods and property of the said Edward Critchley, from the person and against the will of the said Edward Critchley, violently and feloniously did steal, take, and carry away contra pacem, &c.

From the evidence, it appeared that the rabbits had been shot by John Critchley and a gamekeeper of the Duke of Leinster on the duke's demesne, and that Edward was carrying the rabbits to market to sell them. Edward did not know what arrangement there was between his brother and the gamekeeper as to dividing the price of the rabbits, but he had no property in them.

J. A. Curran (for the prisoners) having addressed the jury, and, calling no witnesses, closed.

(a) Reported by P. J. M'KENNA, Esq., Barrister-at-Law.

As His Lordship was about charging the jury, the misnomer in the indictment was discovered, when

REG. v.

FULLARTON

Smyly, Q. C. (for the Crown), applied to the court for liberty AND CROOKS. to amend the indictment, by substituting the words " the property of John Critchley and another" for "the property of Edward Critchley."

J. A. Curran objected. In Reg. v. Rymes (3 Car. & Kir. 326), it was held that an application to amend should at latest be made before the prosecutor closes his case. That was an indictment for receiving goods, knowing them to have been unlawfully obtained from one James Pollard by false pretences. After the counsel for the defence had addressed the jury, an application was made to amend the indictment by striking out the words "one James Pollard by false pretences." But Williams, J., refused, saying, “I shall not consider whether the indictment, if amended, would be bad or not, as I shall lay it down as a general rule that I will not allow an indictment to be amended after the counsel for the defence has addressed the jury. The proper course is that, when the counsel for the prosecution has given all the evidence that he means to give, he should, if he wishes for an amendment, ask for it before he closes his case; and then, if the amendment is allowed, the counsel for the prisoner addresses the jury on the indictment as it is amended."

Smyly, Q. C.-It would entirely defeat the intention of Lord Campbell's Act if an amendment such as this, which can by no possibility prejudice the prisoner, should not be allowed. The words of the act can admit of no such interpretation as that case would put on them. Sect. I enacts, "that whenever, on the trial of any one for any felony or misdemeanor, there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof in the name of any county, &c., or in the name or description of any person, &c., stated or alleged to be the owner or owners of any."

Per curiam.-We will allow this amendment to be made now; and if we are wrong, it will be in the prisoners' favour.

The indictment was accordingly amended, as required by the Crown counsel.

The prisoners were found guilty.

Their Lordships refused to reserve the point as to the propriety of allowing the amendment, although pressed to do so by the counsel for the prisoners.

The court made a similar amendment in another case tried on the same day, where the property was wrongly laid; Monahan, C.J., remarking that R. v. Rymes was no authority.

1853.

Practice

Counsel.

COMMISSION COURT, GREEN-STREET.

August 4, 1853.

(Before LEFROY, C.J. and MONAHAN, C.J.)

REG. v. DANIEL RORKE. (a)

Evidence-Calling witness to discredit prosecutrix distinction between and calling witness to collateral issue.

A witness may be called to prove that, on a former trial, the prosecutrix made statements inconsistent with those made by her on the second trial of the case, and the admission of such evidence may be distinguished from allowing witnesses to be examined to disprove statements not relevant to the issue.

THE

HE prisoner was indicted for an attempt to murder Caroline Agnew. The entire case for the prosecution depended on the testimony of the prosecutrix, who stated that she had been thrown by the prisoner out of the top window of the house in which she was lodging with him, into the street, between the hours of eleven and and twelve at night. On her cross-examination she admitted that she had been in England, and had prosecuted there for a felony.

J. A. Curran (for theprisoner) in addressing the jury, stated that the prosecutrix was drunk at the time that she threw herself out of the window, so that this accusation was an after-thought. He proceeded to call, amongst other witnesses, one who had been present during the first trial (when the jury disagreed), to prove that on that occasion the prosecutrix had denied that she ever had been in England or had prosecuted there.

Corballis, Q.C. (with whom Smyly, Q.C. and the Hon. J. Plunket, Q.C. for the Crown), objected to this course, as raising an irrelevant issue, and calling witnesses to contradict the prosecutrix on matters not material or relevant to the issue.

MONAHAN, C.J.-We are only allowing him to prove a contradiction between her statements here and on the former trial. There is a distinction between this course and calling a witness to contradict the prosecutrix. We are not, however, to be understood as ruling this on argument. Counsel has often been allowed in crossexamination to ask this question. Did you say so and so on a former trial? This is a novel case certainly.

(a) Reported by P. J. M'KENNA, Esq., Barrister-at-Law.