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v. FLAVELL AND ANOTHER.

before the justices; but I think the moment he gives evidence, REG. he puts himself within the power of the justices to treat him in the same way for refusing to answer questions as those who have been summoned are subject to. I am therefore of opinion that the justices were right, and that this rule must be discharged.

1884. GROVE, J.-I am also of opinion that the justices were right, Justices though I must at the same time admit that the matter is not powers of comaltogether free from doubt. It seems to me the words of the mittal-Wit.

ness refusing section are to be read in their popular, natural, and ordinary to answer sense, and that we should give them a meaning to their full extent Bastardy proand capacity, unless there is reason on their face to believe that

ceedings. they were not intended to bear that construction because of some inconvenience, which could not have been absent from the mind of the framers of the Act, which must arise from the giving them such large sense. I think the words “coming or brought” were clearly intended to include those persons who might happen to be in court and who volunteered to give their evidence, as well as those who were brought there in obedience to the order of the court. Had the words been “and if any person so coming or so brought before any such justice,” it might reasonably be said that the persons over whom the Legislature intended that the justices should have power to commit would be only those who had been previously summoned. On the other hand, if the words had been put in a separate section, it could hardly be doubted, I should think, that they would include voluntary witnessess. The refusal of a voluntary witness is, as it seems to me, to be treated in the same way as a witness who has been summoned. If the voluntary witness is to be held exempt from this part of the section, it would follow that he might withdraw his evidence or give so much evidence as he pleased, and refuse to answer all the questions that might tell against him, and the justices would have no power to compel him to answer. Of course, a person is not obliged to go into the witness-box unless he has been previously summoned; but the magistrates have to get at the truth in the cases before them, and it seems to me the Legislature never intended that they should not have the same power to compel a person to give evidence who has volunteered to go into the witness-box as they have over a person who has been summoned. There is nothing in the words“ coming or brought” to limit them to the words used in the previous part of the section. It cannot be said, as it seems to me, that coming” is to be read as 'coming in obedience to a summons." With regard to the contention that this Act ought to be read by the light of sect. 7 of Jervis's Act, I think the intention of the Legislature was rather to extend the power of the justices to voluntary witnesses, and there seems to be reason for such an intention. The Act under consideration relates to bastardy proceedings, and in such proceedings the alleged putative father is very often a witness in support of his own case. If he does not dispute the case set up by the mother and duly corroborated, an order is made against him.

REG.

V. FLAVELL AND

ANOTHER.

It may be said, therefore, that in bastardy cases, more than in any other, the defendant offers himself as a witness. Upon a grammatical construction of this section, therefore, I am of opinion this rule should be discharged.

Rule discharged. Solicitor for the applicant, N. C. Barker, for Crowther Davies, powers of com- Leamington. mittal Wit.

Solicitor for the justices, H. O. Passman, Leamington. ness refusing

1884.

Justices'

to answer

Bastardy pro

ceedings.

QUEEN'S BENCH DIVISION.

Nov. 24 and Dec. 1. 1884.

(Before GROVE and HAWKINS, JJ.)

CLARK (app.) v. THE QUEEN (resp.). (a)
Rogue and vagabond— Frequenting highway with intent to commit

felony5 Geo. 4, c. 83, s. 4–34 8. 35 Vict. c. 12, s. 15.
By 5 Geo. 4, c. 83, s. 4, and 34 8. 35 Vict. c. 112, s. 15, every

suspected person or reputed thief frequenting any street, or any highway, or any place adjacent to a street or highway, with intent to commit felony, shall be deemed a rogue and vaga

bond, &c. A man who frequents a public street, having in his mind the

intent to commit a felony when and wheresoever opportunity arises, comes within these sections, even though no opportunity arises, and may be committed as a rogue and vagabond if the justices are satisfied on sufficient evidence, first, that he

frequentedthe street, according to the ordinary meaning of the word " frequent ;secondly, that he did so with intent to commit felony. The overt act, or attempt to carry out the intent, is not an essential part of the offence; and it is not necessary that the intent should be to commit a felony in the street frequented. C., a suspected person and reputed thief, was found in a street at

about 1.50 a.m., having in his possession part of a brass pump, which had the appearance of having been wrenched off, and thereupon gave a false name and an untrue account of the

article in his possession. Held, on case stated, that there was evidence of the intent to commit

(a) Reported by JOSEPH SMITH, Esq., Barrister-at-Law.

CLARK

v.

THE QUEEN.

1884.

a felony, but that, there being no evidence of O.'s having been previously in that or any adjacent street on any other occasion with intent to commit a felony or at all, he could not be convicted under the section of " frequenting" the street with intent to

commit a felony. Re Thomas Cross (1 H. & N. 651 ; 26 L. J. 28, M. C.) discussed. vagabond

Rogue and

Frequenting THIS THIS was a case stated by the justices of South Shields under highway

Intent to com20 & 21 Vict. c. 43.

mit felony. The case was, so far as material, as follows :

Upon the hearing of a certain complaint preferred against the appellant under the Acts 5 Geo. 4, c. 83, s. 4, and 34 & 35 Vict. c. 112, s. 15, for that he, the appellant, on the 5th day of March 1884, at and in the borough of South Shields, then being a suspected person and reputed thief, unlawfully did frequent a certain street there, called Victoria-road, for a certain unlawful purpose, to wit, with intent to commit a felony, contrary to the statute, we convicted the appellant of the said offence and adjudged him to be committed to Her Majesty's prison at Durbam, and there kept to hard labour for the space of one calendar month.

The following facts were proved before us, viz.: That the appellant was found in Victoria-road, in the borough of South Shields, by two constables at about ten minutes to two o'clock in the morning on the 5th day of March, 1884, having in his possession part of a brass pump, the chamber part, or that portion which is usually exposed above the ground for use. It appeared as if it had been torn or wrenched off from a continuation pipe. The appellant was stopped on the suspicion of the constables, and was asked to give an account of how he became possessed of it, and where he was taking it to. The appellant stated that he had got it from a Mr. Johnstone, an engineer, who resided at No. 40, Meldon-terrace, in this town, and that he had just left Johnstone, who was well known to him, at the door of that place, and that he was taking it to a Mr. Hepples, an engineer in the Low-street, to be repaired, and that his name was George Wilson, and that he resided at 32, Adelaide-street. The appellant was not known to the two officers, but the latter, having their suspicions aroused, took the appellant to the police station, and on their way they met other constables to whom the prisoner was known as a convicted thief, and that he was not George Wilson but William Clark. The prisoner was locked up and inquiries made, but no such person as Mr. Johnstone could be found at No. 40, Meldon-terrace, or at any other place. The appellant was then informed of the inquiries made by the police, and of their inability to verify his statement as to the alleged ownership of the pump by Mr. Johnstone, and that no such number existed in Meldon-terrace and no such person lived there, and that an owner for the pump had not been found. It was further discovered and the appellant was informed

» the

CLARK of it, that Mr. Hepple had removed some time ago to North V.

Shields, on the other side of the river Tyne, and he was also THE QUEEN.

reminded that he, the prisoner, having been a constable in the 1884. South Shields police force, well knew what his duty was, and

what it was requisite he should do to satisfy the police, but this Rogue and vagabond

he refused to do. The prisoner was then charged by the police, Frequenting under the statutes named, with being in Victoria-road, in this

highway borough, on the morning in question, with intent to commit a Intent to como mit felony.

felony. To this charge he pleaded not guilty.

In addition to the facts above stated, it was proved on the hearing before us, on the evidence of two constables, that the prisoner was tried and convicted at the Durham Quarter Sessions on the 25th day of February, 1876, for stealing rope, and by that court sentenced to six months' imprisonment with hard labour, and that since then he had been seen in the company of convicted thieves, and was known to the police as an associate of thieves.

It was contended before us, on the part of the appellant, that there was no evidence of the appellant being a suspected person or reputed thief; that the appellant did not “frequent street called Victoria-road ; that the appellant was not there for an unlawful purpose, or with intent to commit a felony; and, lastly, that the circumstances showed (if anything) that a felony had been committed, and that the lesser offence of vagrancy merged in the greater charge of felony, and that the appellant could not therefore be convicted under the statutes above named.

We, however, being of opinion that the facts as proved before us clearly brought the appellant within the sections of the Acts of Parliament named, gave our determination against the appellant in the manner before stated.

The question of law upon which this case is stated for the opinion of the court, therefore, is whether the appellant was rightly convicted under the statutes named on the facts proved before us. If the court should be of opinion that the said conviction was legally and properly made, and the appellant is liable as aforesaid,

then the said conviction is to stand; but if the court should be of opinion otherwise, then the said complaint is to be dismissed.

The 4th section of 5 Geo. 4, c. 83, is as follows:
And be it further enacted that

every person having in his or her custody or possession any picklock, key, crow, jack, bit, or other implement with intent feloniously to break into any dwelling-house, warehouse, coach-house, stable or outbuilding, or being armed with any gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon, or having upon him or her any instrument with intent to commit any felonious act; every person being found in or upon any dwelling-house, warehouse, coalhouse, stable or outhouse, or in any inclosed yard, garden, or area for any unlawful purpose ; every suspected person or reputed thief frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any street, highway, or place adjacent, with intent to commit felony; and every person apprehended as an idle and disorderly person and violently resisting any constable or other peace officer so apprehending him or her, and being subsequently convicted

v.

of the offence for which he or she shall have been so apprehended, shall be deemed a CLARK rogue and vagabond within the true intent and meaning of this Act; and it shall be lawful for any justice of the peace to commit such offender (being thereof convicted THE QUEEN. before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses) to the House of Correction, there to be kept to 1884. hard labour for any time not exceeding three calendar months.

Rogue and The 15th section of the Prevention of Crimes Act, 1871 vagabond (34 & 35 Vict. c. 112), after reciting, so far as material, the above frequenting

highway section, provides as follows:

Intent to comWhereas doubts are entertained as to the construction of the said provision, and as

mit felony. to the nature of the evidence required to prove the intent to commit a felony: Bo it onacted, firstly, the said section shall be constructed as if instead of the words "highway or place adjacent," there were inserted the words " highway or any place adjacent to a stroot or highway," and, secondly, that in proving the intent to commit a felony, It shall not be necessary to show that the person suspected was guilty of any particular aot or acts tending to show his purpose or intent, and he may be convicted if from the circumstances of the case, and from his known character as proved to the justice of the peace or court before whom or which he is brought, it appears to such justice or court that his intent was to commit a felony.

John Edge for the appellant. There is no evidence on which the justices could rightly find that the appellant was " frequenting a public thoroughfare within the meaning of the statute. There is a distinction drawn in the section itself between a person found in or upon any dwelling-house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area," and a person frequenting any street, highway, or place adjacent.” The appellant was simply found in this street, and there is no evidence of " frequenting." [GROVE, J.-Do you contend that, however clear the intention to commit a felony may be, the conviction cannot be upheld unless the accused has been seen in the street before ?] That is so; and also that there was no evidence of the intention to commit a felony, the evidence given pointing, if to anything, to the supposition that a felony had been committed. As to the first point, the judgment of Pollock, C.B. in Re Thomas Cross (1 H. & N. 651; 26 L. J. 28, M. C.) shows that the word “frequenting" is used in its ordinary sense. "I am of opinion," he says, "that a party attempting to steal in a street which is near to and connected with one that he frequents, renders himself liable to the provisions of the section.” . It is clear that the court would, in that case, have held the averment, that he was found in a particular street with intent to commit a felony, bad, had it not been also averred that he frequented the adjoining public streets. Here there is no evidence that the appellant frequented any of the streets of the town, construing the word, as the court must, in the ordinary meaning of the term. Secondly, there was no evidence of an intent to commit a felony. The possession of the pump showed if anything that he had committed a felony. [GROVE, J.-The asportavit was not completed, and he intended to complete it.] The possession of it was either a part of a felony, and should have been charged as such, or nothing. It is not evidence of an intent to commit a felony.

Walton for the respondents. The possession of a portion

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