OXFORD CIRCUIT. Worcester, July 16, 1853. (Before Mr. JUSTICE CROMPTON.) REG. v. COURT.(a) Maliciously throwing stones, &c., against railway carriages-Construction of the statute 14 & 15 Vict. c. 19, s. 5. To constitute a felony under the statute 14 & 15 Vict. c. 19, s. 7, which enacts that "if any person shall wilfully and maliciously cast, throw, or cause to fall or strike against, into or upon any engine, tender, carriage, or truck used upon any railway, any wood, stone, or other matter or thing, with intent to endanger the safety of any person being in or upon such engine, tender, carriage, or truck, every such offender shall be guilty of felony," it is necessary that the stone or other thing used should be thrown against and strike an engine, tender, carriage, or truck, having a person or persons in or upon it; and, therefore, although a stone may be thrown at a train with intent to injure persons being therein, yet, if it strikes a carriage or tender not having any person in or upon it at the time, the felony is not proved. THE HE prisoner was indicted for feloniously, wilfully, and maliciously casting and throwing a stone against, into, at, and upon a certain tender, then being used upon the Midland Railway, with intent to endanger the safety of certain persons then being upon such engine and tender; against the form of the statute in such case made and provided. There were other counts in the indictment, charging the prisoner with throwing the stone against, &c., a certain " tender and engine,” and against "certain carriages.' The evidence was, that the prisoner, while standing on a bridge, threw a stone over the parapet wall, while a train was passing underneath. The stone fell upon the tender of the engine. It appeared that there was no person on the tender at the time-the engineer and stoker being upon the engine. At the close of the case for the prosecution, Rupert Kettle, for the prisoner, objected that no offence had been proved within the terms of the statute under which the prisoner was indicted. The statute (14 & 15 Vict. c. 19, s. 7) enacts that "if any person shall wilfully and maliciously cast, throw, or cause (a) Reported by J. E. DAVIS, Esq, Barrister-at-Law. to fall or strike against, into, or upon any engine, tender, carriage, or truck used upon any railway, any wood, stone, or other matter or thing, with intent to endanger the safety of any person being in or upon such engine, tender, carriage, or truck, every such offender shall be guilty of felony." The statute, therefore, contemplates a state of facts where a stone or other thing is thrown against any engine, tender, carriage, or truck, and strikes it, and where, at the time it so strikes, there is some person or persons upon the engine, tender, or other carriage so struck. Here the tender was the carriage struck, and there was no person upon it at the time, the engineer and stoker being upon the engine. It could not be said, therefore, that the prisoner had struck the tender with intent to endanger the safety of any person being in or upon such tender. The offence, therefore, does not fall within the act. Huddleston and Scotland, for the prosecution, contended that the words "cast" and "throw against" met the present case, and it was not necessary, in order to be within the words of the statute, that the stone or other implement used should actually come in collision with the part of the train in which any persons were. The word "against must be taken to include "at." It was sufficient if the stone was cast or thrown at the time with intent to endanger the safety of any person in the train, although it actually struck the tender or other part of the train in which no person happened to be at the time. The intent was a question for the jury. Even if, to satisfy the statute, it was necessary that the stone should actually strike the train, it was immaterial whether the persons in the train, to endanger whose safety the act was done, were on the engine, tender, carriage, or truck. Kettle, in reply. The words "cast," "throw," and "against " were not capable of the construction contended for, as the subsequent words, "into" or "upon," clearly limited the section to the case of an actual striking. And to say that the statute applied to the case of striking a tender, no person being thereon, was directly in the teeth of the words of the section. CROMPTON, J., said that he thought the objection must prevail, as, whatever might be the intention of the Legislature, the words of the section were clearly limited to the case of anything thrown upon an engine or carriage containing persons therein. He would, however, consult Mr. Justice Coleridge sitting in the other court. The learned judge, having retired for that purpose, said, on his return, that Mr. Justice Coleridge agreed with him in opinion that the objection was well sustained, and that no offence within the statute being established, the prisoner was entitled to an acquittal. Verdict-Not guilty. [There cannot be any doubt of the correctness of this decision with regard to the section in question, but the attention of the learned judges does not appear to have been directed to the statute of the same session, 14 & 15 Vict. c. 100, s. 9, of which is as follows:-"And whereas offenders often escape conviction by reason that such persons ought to have been charged with attempting to commit offences, and not with the actual commission thereof; for remedy thereof be it enacted, that if, on the trial of any person charged with any felony or REG. v. Court. 1853. Maliciously impeding a railway. REG. V. 1853. misdemeanor, 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 LALLEMENT. 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 misdemeanor 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 indictment for attempting to commit the particular felony or misdemeanor charged in the said indictment; and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was tried." It seems to be beyond doubt, that the jury in this particular case might have convicted the prisoner of the attempt to commit the statutable offence charged in the indictment.-J. E. D.] CENTRAL CRIMINAL COURT. MAY SESSION, 1853. May 12. (Before JERVIS, C. J. and ALDERSON, B.) REG. v. LALLEMENT. (a) Shooting, with intent to murder-Intent-Amending indictment. Upon the trial of an indictment for shooting, with intent to murder a person unknown, it must be proved that there was an intent on the part of the prisoner to murder some particular person. The court will not amend an indictment after plea, where, in its amended form, it might be demurrable for generality. THE prisoner was indicted for feloniously shooting at a person unknown, with intent to murder him. The evidence for the prosecution was to the effect that the prisoner, being irritated by a crowd of boys who were following him, discharged a loaded pistol among them and thereby wounded a person who was passing along the street. There was nothing to show any intent on the part of the prisoner to shoot at any particular person, nor was the individual injured one of those who were teasing him. JERVIS, C. J. (at the close of the case for the prosecution.)-I do not think that the charge contained in this indictment is proved. Doubtless, at common law, if the person wounded had been killed, (a) Reported by B. C. ROBINSON, Esq., Barrister-at-Law. it would have been murder. But this is an offence under the statute, and must be proved strictly in its very terms. Bodkin (for the prosecution) assented to this view of the case, but applied to the court to amend the indictment in accordance with the fact, by charging the prisoner with an intent to murder in the words of the 1 Vict. c. 85, s. 2. JERVIS, C. J.-That would, no doubt, be a good indictment after verdict, under the 7 Geo. 4, c. 64, s. 20, being in the words of the statute; but it may be a question whether it would not be demurrable for generality. We think that if we amend, we ought to do it in such a manner as that the indictment shall not be in any way defective. The prisoner has pleaded, and he ought to have an opportunity of demurring, which now, of course, he cannot do. We must, therefore, refuse the application. ALDERSON, B., concurred. Bodkin (for the prosecution.) Verdict-Not guilty. [In R. v. Mary Ann Ryan (2 Moo. & Rob. 213), the prisoner was charged with causing poison to be taken by A. B., and the evidence was, that the poison, although taken by A. B., was intended for another person, and the prisoner was convicted. Baron Parke, however, who tried the case, having consulted with Baron Alderson, doubted whether the verdict could be supported, the intent not having been proved as laid, and his lordship ordered a fresh indictment to be preferred, alleging the intent, in the words of the 1 Vict. c. 85, s. 2, to have been to commit murder generally. On that indictment the prisoner was tried and was convicted.— REPORTER.] REG. v. COURT. 1853. Shooting with intent Practice. COURT OF CRIMINAL APPEAL. June 4, 1853. REG. v. GOODENOUGH. (a) Larceny-Embezzlement-Evidence. Upon an indictment for embezzlement, the evidence of dishonest dealing with the money of the prosecutor was, that the defendant, who was in his service, had received a cheque which he was to get cashed, and lay out the proceeds in the market; that he did cash it, but did not lay out the proceeds as he ought to have done, and that in the prosecutor's books he gave a wrong account of the manner in which the money had been expended. The jury found the defendant guilty of larceny, and acquitted him of the embezzlement: Held, that the prisoner had been improperly convicted of larceny, and that a conviction for embezzlement might have been sustained. ENRY HARRIS GOODENOUGH was tried upon the following indictment: (The indictment, which was set out at length in the case, contained three counts in the ordinary form for embezzlement, of three separate sums within six months.) The following was the case proved in evidence in support of the indictment, so far as is material to the question reserved. The prosecutor, Joseph Hamlyn, is a woolstapler, carrying on business in co-partnership with John Hamlyn, at Horrabridge, in the parish of Sampford Spinely, in the county of Devon. The prisoner had been for many years last past in his employment as a clerk and general servant, his duties being to keep the books, viz.: the day cash book or market book, the cash book and ledger, and to attend the neighbouring markets, viz., Tavistock and Callington markets, both towns being within a few miles of prosecutor's place of business, for the purpose of buying skins and whatsoever else his employer might require. Before going to market, the prosecutor was in the habit of giving the prisoner either money or a cheque on his banker's, to defray the expenses of the day, and it was the prisoner's duty to deliver what goods he purchased, and to account for the moneys so received the same evening or the next morning, in a book kept for that purpose, and to pay over to the prosecutor the surplus of the money so received, and not expended. This was not, however, always strictly done. It was his duty to enter all payments or receipts made and received by him in the course of his said employment in his day cash book, or market book, thence carrying them into a book called the cash book, and thence into a book called the ledger. It was the prisoner's duty, in the course of his employment, to pay ready money for the skins, and all articles he purchased, and he had not the prosecutor's authority to buy any skin or skins on credit. On Friday the 8th October, 1852, the prisoner, having an (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. |