REG. V. KELLY. CAMPION AND 1854. Practice ance of public justice, and to punish violations of the peace, does not abate with the death of the prosecutor like a civil action, even though the injury be chiefly of a personal kind, as an assault or a libel. In Rex v. Ellers (1 Wilson, 222,) the defendant was indicted for insulting Mr. Burdry, a justice of the peace, in the execution of his office. Mr. Recorder of London moved that the defendant's recognizance might be discharged upon an affidavit, that Mr. Burdry was dead, and that the defendant had been in gaol ever since October last. The application was opposed by the Attorney-General, and the court said, "this is a matter well becoming the Government to prosecute, and the defendant must either plead not guilty, or confess the indictment." The informations here were reduced to writing, but not taken or signed. The magistrate said he did not think in point of law a sufficient case had been made, and refused to proceed on the summons. CRAMPTON, J.-Ought not the conditional order to have been for the magistrate to take the informations, and not to proceed on the summons? Ferguson. The magistrate thought there was a difference between a conspiracy for suppressing evidence in civil and criminal cases. The conspiracy that we charged was for making away with papers in issue in the will case of Kelly & Thewles. As to the objection that there is no person liable if this should turn out to be a malicious prosecution, Mr. Dease offered to go on with the case, and is ready to make himself liable. As to Mr. Dease taking out a fresh summons, which will put us to a very great expense in again bringing up witnesses from England and elsewhere, even if he did, the magistrate would again refuse on the same grounds as he had already refused to proceed on, and we should have to come to this court again for relief with the same case that we are now making. LEFROY, C. J.-If the magistrate had gone the length of taking the informations, you could get an order to make him return them. This is an inchoate proceeding, and we have no informations on which we could direct the magistrate to do the proper acts. Is there any case in which, at the instance of a dead person, the court has directed the magistrate to go on? CRAMPTON, J.-The husband, Mr. Dease, can take out a new summons, and proceed on it. Per Curiam.-Allow the cause shown without costs, however, as this was a fatality. Freland. COURT OF CRIMINAL APPEAL. (Before LEFROY, C. J., MONAHAN, C. J., TORRENS, BALL, and JACKSON, JJ.) November 22, 1853. REG. v. MILLER and Connors. (a) Receiving stolen goods—What amounts to-Directions as to disposing of. It is not necessary, to constitute a receiving of stolen goods, that the person indicted should have had manual possession of the goods; but directing a servant to dispose of them, as by pawning or otherwise, will be sufficient to support the charge. Stolen property is brought by the thief into A.'s shop; A. with guilty knowledge, calls her servant and directs her to take the stolen goods to the pawn office and "pawn them for the girl" (the thief.) A.'s servant does so accordingly, and brings back the money, which she hands to the thief in her mistress's presence. A. never had manual possession of either the goods or the money. Held, that this amounted to a receiving by A. of the stolen property, and that the conviction of A. for receiving should be affirmed. THE HE following case was stated for the opinion of the court by Walter Berwick, Esq., Assistant Barrister of the East Riding of the county of Cork. The prisoners were tried at the last general Court of Quarter Sessions for the East Riding of the county of Cork, holden at Fermoy, upon an indictment charging them in one count with stealing, and in another with receiving, five pieces of cotton, knowing them to have been stolen. From the evidence of the prosecutor, Michael Joseph Magnin, who kept a woollen and linen draper's shop in the town of Fermoy, and of his shopman, it appeared that they missed from his shop from time to time, between the 1st of January and 22nd of July in this year, a great number of pieces of printed cotton, and they identified five pieces produced as some of those thus missed, and they stated that none of those five pieces had been sold at their shop, and if sold, the labels would have been taken off and the folds altered, and that the prisoner, Ellen Connors, used to come into the shop, sometimes three or four times a day with a basket and a shawl, and on some occasions got patterns, and generally bought half a yard and sometimes bought a few yards, but never bought a whole piece, and certainly did not (a) Reported by P. J. M'KENNA, Esq., Barrister-at-Law. Case. REG. V. MILLER AND 1853. Evidence. purchase any of the five pieces of cotton then produced. The five pieces produced were proved by a pawnbroker to have been CONNORS. pawned in his office in Fermoy at several times in the present year in the month of April, and the rest in the month of June. They were entire pieces, made up in the manner in which whole Receiving pieces are kept in the shop, and had the shop labels upon them. Three of these pieces were proved to have been pawned by Ellen Connors, the prisoner. Another of these pieces, which was a piece of "pink cotton," had been pawned in the month of June by a person of the name of Margaret Geary. Margaret Geary was produced as a witness by the Crown, and proved that in the month of June she was in the employment of the other prisoner, Mary Miller, who kept a public-house in the town of Fermoy, and while in her service she pawned this piece of pink cotton in the pawn office in Fermoy; that she got it in her mistress's shop from Ellen Connors; that Ellen Connors came into the shop, and behind the counter, where her mistress was; that her mistress called witness into the shop, and Ellen Connors had then the piece of cotton in her hand; and her mistress then desired the witness "to take the piece of cotton to the pawn office, and to pawn it for the girl" (meaning Ellen Connors) and that she accordingly did so, and brought back the moneys received therein, and gave it, in Mrs. Miller's shop, and in her presence, to Ellen Connors, who was still remaining in the shop behind the counter with her mistress; but her mistress had not the cotton at any time in her own hands, nor did she receive any part of the money from her. This witness stated that on two other occasions she pawned two other pieces of cotton in the same manner by her mistress's directions, which she got from Ellen Connors in her mistress's shop, and in her presence; that Ellen Connors had a shawl over the pieces of cotton. These two latter pieces were not identified or shown to have been stolen. Catherine Higgins, another servant of Mrs. Miller's, was examined as a witness, and stated that she saw Ellen Connors, who was neither living with nor had been in the service of Mrs. Miller, bringing cottons to Mrs. Miller's house. That Ellen Connors got the loan of a cloak from Mrs. Miller, and used to go out and bring in cottons after taking out the cloak. These pieces of cotton used to be torn up by Mrs. Miller and Ellen Connors, and given to the witness to pawn. She used to give the money got at the pawn office for these cottons to Ellen Connors, and, if she was not there, to Mrs. Miller herself. There was no evidence to show that any of the cottons referred to by this witness were stolen, and no objection was made to the reception of any of this evidence. This was the case for the prosecution. Mr. Green, who appeared as counsel for the traverser, Mary Miller, called on me to tell the jury that they should acquit his client, as there was no evidence against her of a receipt of stolen goods, inasmuch as the only piece of goods identified with which she was connected, was the piece of pink cotton, and that it had not been proved to REG. v. MILLER AND 1853. Evidence. have been at any time in her possession. The evidence being that Ellen Connors had kept it in her possession till she delivered it to Margaret Geary, who had taken it to the pawn office, and that it had always continued to be in the possession of Ellen Connors till it had been pawned. He also called on me to tell the jury they must exclude from their consideration all the evidence respecting Receivingthe other pieces of cotton which had been from time to time shown to be brought into Mrs. Miller's house by Ellen Connors, inasmuch as none of these were identified as any part of the stolen property. I refused to withdraw the case of Mary Miller from the jury, but told Mr. Green_that I would reserve the case for the consideration of your Lordships in case of the conviction of his client, and he then went into evidence and produced several witnesses, and amongst others, a public constable, who proved that they had purchased from Ellen Connors, from time to time, pieces of cotton and shirting, which she carried about publicly in the town and sometimes to the police barracks; some of which she stated she had bought from Mr. Maguire, and that they had no idea she had stolen them, and that they had a good opinion of her character. This was the evidence given for the prisoner. I told the jury, that in considering the case of Mary Miller, they should confine their attention to the piece of pink cotton, which was the only one of the pieces of cotton taken into Mrs. Miller's house which had been identified; that they should first consider whether Ellen Connors was the thief, and if they were satisfied of that, then they were to consider whether Mary Miller received it from her knowing it to have been stolen; that I did not conceive it necessary, in order to constitute her a receiver, that she should actually have taken the goods into her own hands, but that if the servant, by her directions received it from the thief, and took it by her directions to the pawn office for the purpose of raising money thereon, the mistress intending thereby to make herself the agent for that purpose, it would be sufficient evidence of a receipt by the mistress; but I further told them, that even though they should be satisfied she had so received it, they must next consider whether at the time she did so receive it she knew it to have been stolen, and that although the evidence respecting the other pieces of cotton was no evidence whatever of any other receipt of stolen goods, or admissible for that purpose, yet, in my opinion, it was admissible for the purpose of showing the terms of the intimacy and dealing of the parties, and thus assisting the jury in coming to a conclusion how far the act of interference of Mary Miller, in desiring her servant to take the piece of pink cotton from Ellen Connors and to carry it to the pawn office, was to be considered as a taking of it into her control for the purpose of aiding the thief in raising money thereon, or was merely a direction to her servant to act in relation to it, as she, Ellen Connors, should desire. The jury found Ellen Connors guilty of stealing, and Mary Miller guilty of receiving, the piece of pink cotton, knowing it to REG. v. MILLER AND 1853. Receiving- have been stolen. As there was no doubt of the guilt of Ellen Connors, she was sentenced to six months' imprisonment, with hard labour. At my suggestion, the court postponed passing sentence on the other prisoner, Mary Miller, until your Lordships' opinion should be taken, whether under the circumstances stated, and the direction given by me, the conviction was correct. If the law was properly laid down by me, we were of opinion that the verdict of the jury was correct on the facts of the case as given in evidence. In this case I request your Lordships' opinion whether under the circumstances now stated, the conviction of Mary Miller was proper. Corballis, Q.C., appeared for the crown. J. S. Greene, for the prisoner. The following cases were cited in the course of the argument:Reg. v. Oddy, 5 Cox Crim. Cas. 210; Reg. v. Hill, 3 Cox Crim. Cas. 533; Reg. v. Wiley, 4 Cox Crim. Cas. 412; Reg. v. Carr, 2 M. & R. 346. January 18. LEFROY, C. J., now delivered the judgment of the court.-In this case two questions have been reserved for our consideration. First, whether there was sufficient evidence that Mary Miller had received the stolen property; and, secondly, whether certain evidence regarding the former dealings between the two prisoners, to the admissibility of which no objection had been originally offered, had been left to the jury with the proper view. The evidence in support of the charge of receiving was this: the servant maid of Mary Miller was produced as a witness, and stated that her mistress kept a public-house in the town of Fermoy. That Ellen Connors, the other prisoner, entered the shop, and went behind the counter where she was; that her mistress called her into the shop; that Connors had then the pieces of cotton in her hand, which Miller desired witness to take to the pawn office and pawn, and that she did so accordingly; that she brought back the money which she then received, and gave it, in the presence of her mistress, to Connors, who was then in the shop, but that her mistress had never, with her own hand, received any part of the money from her. The question was, whether this was a receiving of stolen goods by the mistress? It appears to us that it was virtually a receiving by Mary Miller, inasmuch as her servant, by her order and direction, received the goods from the thief, took them to the pawn office, and brought back the money to the thief. This, in our opinion, was virtually as much a receiving of stolen goods as if her own hand, and not that of her servant, had received them. No question can be raised in this case involving the necessity of those subtle distinctions taken on former occasions, with respect to the continuance of the possession of the goods in the thief, for the goods here were clearly transferred to hands which were virtually those of Mary Miller herself. No question has been reserved relative to the sufficiency of the |