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INDEX.

ABDUCTION.

In order to constitute the offence of abduction within stat. 9 Geo. 4, c. 31, s. 20, it is not necessary that the girl should be taken by force, either actual or constructive, or be taken out of the actual possession of the parent or guardian. It is enough if she be persuaded by the prisoner to leave her home, and the control of the parent continues down to the time of the taking.

Where, therefore, the prisoner persuaded a girl under sixteen to meet him at a place two miles from her father's house, where she lived, for the purpose of going with him to America; and she did so voluntarily, leaving her home alone, then meeting the prisoner at the place appointed, and afterwards tra velling with him to London:

Held, that he was guilty of abduction. Reg. v. Manktelow, 143

ADMINISTERING.

What is an attempt to administer poison, 14

ARREST.

Unlawful, by a constable, 371

ASSAULT.

A schoolmaster who places his hands indecently on the person of a female pupil is guilty of an indecent assault, although the pupil is thirteen years of age, and does not make any actual resistance.

Letters relating to the charge, written by one of the scholars who is examined as a witness for the prosecution, may, on her denial of the handwriting, be proved and given in evidence on the part of the defendant for the purpose of affecting the witness's credit, and showing the capacity of the scholars to conspire to make a false charge against him, although the prosecutrix

VOL. VI.

is not proved to have received the letters, or had any knowledge of their contents.

To enable the Court to order the costs of such a prosecution to be allowed, it is necessary, under the stat. 14 & 15 Vict. c. 55, s. 3, to show that the case was originally brought before the justices for summary decision.

The production of the original summons to the defendant, setting out the complaint, and requiring him to appear before the justices to 66 answer the same information and complaint, and to be further dealt with according to law," is sufficient evidence of the fact required, to enable the Court to order payment of the costs of the prosecution. Reg. v. M'Gavuran, 64

A. committed an assault upon a constable, who, two hours afterwards, having obtained assistance, and when there was no danger of any renewal of the assault, attempted to apprehend him, and was wounded in the attempt:

Held, that his apprehension at that time was unlawful: and that he was improperly convicted of wounding the constable with intent to prevent his lawful apprehension. Reg. v. Walker, 371

AUTREFOIS ACQUIT. Plea of, in murder, 178

BAIL IN ERROR.

A defendant in misdemeanor having obtained a writ of error to the Exchequer Chamber, entered into a recognizance with two sureties approved by a judge, the condition of which was to prosecute the writ of error with effect; to surrender personally on the hearing of the writ of error; and, in case the judgment should be affirmed, to surrender himself to the Court of Exchequer Chamber to be further dealt with according to law:

2 a

Held, that this recognizance did not comply with the stat. 8 & 9 Vict. c. 68, s. 1, which requires that the recognizance shall be conditioned to prosecute the writ with effect; and in case the judgment should be affirmed, forthwith to render the defendant to prison, according to the judgment, where imprisonment has been adjudged. Reg. v. Dugdale, 161

BANKRUPTCY.

An indictment under the 12 & 13 Vict. c. 106, s. 254, contained the following allegation of materiality" And that at and upon the said examination of the said J. Legge, it then and there became and was material in and to the matter of the said bankruptcy, to inquire what was the nature and extent of the said J. Legge's connection and dealings with one Mr. Marshall, and how long he had known the said Mr. Marshall, and whe

ther the said Mr. Marshall was a relation of the said J. Legge?"

The following was the evidence given by the defendant before the Commissioners of Bankruptcy: "Mr. Marshail is not in trade; he is a speculator in anything and everything. I have known Mr. Marshall about two or three years (meaning that he the said Joseph Legge had not known the said Mr. Marshall more than two or three years.) I imagine he was always a speculator, and never in business."

CERTIORARI.

The defendant, having been convicted of misdemeanor upon an indictment which he had removed into this court by certiorari, the judgment was respited by consent, upon an agreement by the defendant to pay the taxed costs immediately. The costs were taxed at 2271.; the defendant became bankrupt, and the prosecutor proved for that amount under his bankruptcy. Judgment was afterwards entered up, and the costs of the prosecution again taxed under the 5 & 6 Will. & M. c. 11, at 2431. Upon a rule for an attachment against the defendant for nonpayment of that sum pursuant to the Master's allocatur, and to estreat the recognizances into which the bail had entered, the court es treated the recognizances, but discharged the rule for an attachment. Reg. v. Arthur Hills, 174

The Lord Mayor of London having committed

the defendant for trial at the Central Criminal Court upon a charge of misdemeanor, directed the city solicitor to conduct the prosecution, the expenses of which were defrayed out of the city funds. The defendant removed the indictment into this court by certiorari, and was convicted.

Held, that the Lord Mayor, not being personally liable for the expenses of the prose cution, was not entitled, as prosecutor, to recover the costs from the defendant under the provision of stat 5 & 6 Will. & M.

c. 11, s. 3.

The assignment of perjury was in these words: "Whereas in truth and in fact, the said person so described as Mr. Marshall aforesaid, was one and the same person as one S. Marshall Legge, and was and is the father of the said Joseph Legge; and whereas in truth and in fact, the said Joseph Legge had known the said Samuel Marshall Legge, so described as Mr. Marshall as aforesaid, for a longer period than two or three years, to Privileged communication to, 219 wit, for twenty years and upwards:"

In order to bring the case within that statute, there must be a prosecutor personally liable for the expenses. Reg. v. Archibald Wilson, 176. Practice as to, 345

Held, that there was no sufficient averment of materiality on the face of the indictReg. v. Legge, 220

ment.

BIGAMY.

On an indictment for bigamy, where it is necessary to prove a Scotch marriage, some witnesses conversant with the Scotch law on the subject of marriage must be called. Reg. v. Povey, 83

BURGLARY.

It is not sufficient that there was an entry without a breaking of the outer door and a breaking without an entry of an inner one. Reg. v. Davis, 369

CLERGYMAN.

CONCEALMENT OF BIRTH.

On an indictment against the mother for the murder of her illegitimate child, it appeared that the body of a child was found, a few hours after its birth, on the floor of an attic in a house where the prisoner lived as domestic servant, the head severed from the body, and both lying in sheets which had been removed from the bed-room below, which was occupied by the prisoner and her mistress, and where there was evidence to show that the birth had taken place, but it was doubtful whether the severance of the head from the body was effected there or in the attic:

Held, that there was no evidence to war

rant the jury in finding a verdict for the statutable misdemeanor of endeavouring to conceal the birth. Reg. v. Goode, 318

CONFESSION.

Upon the trial of an indictment for an unnatural crime with a mare, one of the witnesses, in the presence of T. the owner of the mare, threatened to give the prisoner in charge to the police if he did not tell what business he had in T.'s stable, where the inare was. At that moment the charge had not been made known to the prisoner, but it was immediately afterwards, and then he confessed.

Held, that this confession was inadmissible in evidence, having been made under the influence of a threat held out to him in the presence of one, who being the owner of the mare, was likely to prosecute for the offence. Reg. v. Luckhurst, 243

A maid-servant under a charge of setting fire to a farm building belonging to her master, was given into the temporary custody of a married daughter of her master, who did not live in the house, and had no control over her as her mistress. Whilst they were alone together, the daughter said to the prisoner, "I am sorry for you, you ought to have known better; tell the truth, whether you did it or no ;" and upon the prisoner replying, "I am innocent," added, "don't run your soul into more sin, but tell the truth." She then confessed.

Held that the confession was admissible, for that the words used did not amount to a threat or inducement, nor were they used by any person in authority. Reg. v. Jane Sleeman, 246

CONSPIRACY.

Practice where prisoners have severed in their challenges, 6.

1. An indictment alleged that the defendants I. W., C. W. and J. W., being persons in indigent circumstances, and intending to defraud tradesmen who should supply them with goods upon credit, conspired to cause J. W. to be reputed and believed to be a person of considerable property, and in opulent circumstances, for the purpose and with the intent of cheating and defrauding divers persons being tradesmen, who should bargain with them for the sale to the said I. W., of goods, &c. the property of such last-mentioned persons, of great quantities of such goods, without paying for the same, with intent to obtain to themselves money and other profits.

Held, that this indictment was not supported by proof that the defendants C. W. and J. W. being the wife and daughter of the other defendant I. W., represented that they were in independent circumstances, their income being interest of money received monthly; at another time, when engaging lodgings, that they were not in the habit of living in lodgings, and that they obtained various goods from tradesmen on credit, under circumstances that showed an intent to defraud, but no proof being adduced that those goods were obtained by reason of any of those general statements.

2. Another count alleged a similar conspiracy to represent I. W. to be a person of considerable property and fit to be trusted, and by means thereof to cheat and defraud persons who should let to the said I. W. lodgings for hire, of divers large sums of money, being the sums agreed to be paid for the hire of such lodgings.

Held, that this count was not supported by proof of the representations above mentioned, and that the defendants went to various houses taking lodgings, and quitting them without notice or payment; for, if an indictable offence at all, the object of the defendants was to obtain possession of the lodgings, and not to deprive him of the price or profits of the rooms.

3. A count charging, the defendants with conspiring, by divers subtle means and false pretences, to obtain goods and chattels from H. B., a tradesman, without paying for them, with intent to defraud him thereof, is supported by proof of overt acts, from which a conspiracy may be inferred, without proof of any such false pretence as is required in an ordinary indictment for obtaining goods by false pretences.

4. Quære, whether a count charging a conspiracy by divers subtle means and false pretences, to obtain goods and chattels from divers persons being tradesmen, without paying for them, with intent to defraud them of the same, is bad in arrest of judgment or otherwise, for not setting out the names of the parties defrauded or intended to be defrauded, or making excuse for not doing

So.

Semble, that the ordinary form of indictment for false pretences, which after stating the false pretence, alleges that, by means of which false pretence, the defendants obtained the goods or money, is sufficient, and that the substitution of the words "by reason of" for "by means of " is equally unobjectionable. Reg. v. Whitehouse, 38 Where an indictment for conspiracy charges the offence in general terms, the defendant is 2 a 2

entitled to particulars of the charge, although there has been a previous committal by a magistrate.

Therefore, where an indictment contained counts charging a conspiracy to cheat tradesmen of goods, without mentioning any specific case, or name, time, or place:

Held, that the defendant was entitled to such particulars. Reg. v. Rycroft and others, 76

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In support of an indictment charging the defendants with a conspiracy to defraud and deprive B. of certain leasehold messuages, whereof the said B. was lawfully possessed, and to cheat and defraud her of the rents and profits of the said messuages; the evidence as to B.'s title was, that F., before her death, directed S. her next-of-kin, to convey the messuages to B. on account of a supposed quitable claim of B. to money received by F. S., after the death of F., and before administration, executed an agreement to assign to B., and went with her to the houses, and pointed out the property, and said B. was landlady, and he hoped the tenants would not shuffle with her as they had with F. B. atterwards received a small sum as rent. There was no proof that F. or S. were ever in possession, and no other evidence of B.'s title.

Held, that there was some evidence of a possession by B. to support the averment in the indictment. Reg. v. Whitehouse and another, 129

On an indictment against A., B., C., D., E., F., G., and H., for conspiracy to cheat M. by selling a glandered horse as a sound horse, the evidence was, that A. having previously cheated M. by selling him a kicking horse, the defendants B., C., D., and E., obtained that horse from M. in exchange for a glandered horse, which he subsequently sold. A., accompanied by G., afterwards sold M. another horse, in which transaction the latter was again defrauded. Some evidence was given to show that A. was frequently in company with some of the other defendants, and that he was aware of a previous sale of the glandered horse by them, but there was no other evidence to connect him with its sale to M.

Held, that in the absence of any evidence clearly leading to the conclusion that A. was a party to that sale, there was no evidence of a conspiracy to go to the jury against him. Reg. v. Read, 134

An agreement with other persons by a witness who has been bound over to prosecute and give evidence on an indictable misdemeanor, not to appear on the trial, is an indictable offence, as being an agreement to obstruct

the due course of law and justice; and the indictment may allege that to have been the object of the defendants, although their immediate intention had no reference to the obstruction of justice; but was simply to extricate themselves from a scrape, and the defeat of justice was merely the effect of the conspiracy. Therefore, where H., having upon oath charged B. with fraud, and being bound over to prosecute, was subsequently induced to make an affidavit of B.'s innocence, and H. and his friends, in order to avoid the consequences of B.'s contradictory statements on oath, agreed, upon receiving a cheque from B.'s wife for a sum nearly equal to the amount of H.'s recognizances, to forfeit those recognizances by abstaining from prosecuting, and also to return the amount of the cheque if H. was not called upon his recognizances:

Held, that the facts supported an indictment charging H. and his friends with a conspiracy to obstruct and defeat the due course of law and justice; but

Held, that the facts did not support counts in the indictment, charging the conspiracy to be to obtain the money from the wife of B., and to cheat and defraud him of the

same.

Notice to produce the cheque served at the office of the London agents for the country attorney of the defendants at three p.m. the day before the commencement of the trial:

Held, sufficient to let in secondary evidence of its contents:

Held, also, that such secondary evidence was admissible, although it appeared that the cheque had been seized by the sheriff under a levy upon the effects of H. for the amount of the estreated recognizance.

B., having been admitted to bail to answer the charge of H., did not surrender to take his trial, but absconded:

Held, that his wife, who was examined as a witness on the indictment against H. and others for conspiracy, might refuse to answer a question whether she had not seen her husband at a particular time or place, she having assigned as a reason for not answer ing it, that her husband had not appeared upon his recognizance. Reg. v. Hamp, 167 The offence of conspiring may be committed by conspiracy to use unlawful means for the accomplishment of a lawful object; and where A. and B., by false representations made to C., respecting a horse which the latter has sold to A., induced him to accept a smaller sum in satisfaction of the agreed price:

Held, that, although C. would not be bound by his agreement to accept the smaller

sum, A. and B. were, nevertheless, properly convicted of a conspiracy. Reg. v. Carlisle and another, 366

CONSTABLES.

The right of searching persons in custody must depend on the circumstances of each particular case; and the mere fact of a person being drunk and disorderly will not justify a

rant the finding of the jury. In the Matter of the Six-Mile-Bridge Inquisition, 122

COSTS.

Of certiorari, 174, 176

COUNSEL.

police officer searching his person, although Opening statement of, 116
the officer may have received general orders
to search all persons in custody; but any
person, whatever may be the nature of the
charge, may so conduct himself, by reason
of violence of language or conduct, that it
may be prudent and right to search him, as
well for his own protection as for those in-
trusted with the duty.

The same rule applies to handcuffing persons in custody, and the right must depend on the circumstances of each particular case, as, for instance, the nature of the charge, and the conduct and temper of the person in custody. There cannot be any general rule that will justify a constable in resorting to the extreme measure of handcuffing a person in custody for a misdemeanor to a felon, and marching them through the public streets from the police station to the magistrate's office. Leigh v. Cole, 329

CONVICTION.

Although the entire period over which the assizes extend in one place is, by the contemplation of law, and for some purposes, one legal day, the particular day on which a prisoner's conviction took place may, when necessary, be shown; and the record does not operate as an estoppel so as to shut out evidence of the actual day on which the prisoner was convicted. Whitaker v. Wisbey, 109

CORONER'S INQUISITION.

Where, on a motion to quash the inquisition of a coroner's jury finding certain persons therein named guilty of wilful murder, the court has, for the purpose of hearing counsel on behalf of the next-of-kin of the deceased, granted a conditional order, the party showing cause is not entitled to begin, but the counsel for the Crown will move to make absolute the order as if moving an original motion on notice.

Though this court may quash an inquisition where a verdict has been found against a person confessedly innocent, yet it will not interfere when there has been any evidence, even though it may be insufficient to war

DEPOSITIONS.

Taken abroad, admissibility of, 60

DYING DECLARATIONS.
Practice as to receipt of, 120, 357

EMBEZZLEMENT.

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. Reg. v. Goodenough, 206 A contract had been entered into between W. and the Great Northern Railway Company, by which W. was to provide horses and carmen (the company providing carts) for the conveyance of the company's coals to their several customers. By the contract, W. stipulated that the carman should, in all things connected with the carrying and delivery of the coals and the receipt and payment of moneys, obey the orders and commands of the company's coal manager, and should be subject to the same rules and regulations as the servants of the company; and, in case of disobedience of orders, should be immediately discharged. It was also provided that W. or the said carmen should, day by day, pay and account for, to the company's coal manager, all moneys, cheques, &c., they should receive from the customers of the company.

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