1841.

WOOD

v.

THOMPSON.

eleven special jurymen. And assuming that a tales were taken from the common jury panel, am I to inquire whether a common juryman lives twelve miles from Gloucester? What right have I, either at common law or otherwise, to challenge him on the ground that he resides within twelve miles of this city? The order of the Master of the Rolls says nothing about the common jurors. If my learned friends had wished to have the power to pray a tales, they should have asked the Master of the Rolls what was to be done in case there were not a sufficient number of special jurymen, but they have neglected to do this. I submit, therefore, that the plaintiffs have no right to pray a tales.

COLERIDGE, J., (having conferred with COLTMAN, J.).— This is a case of extreme importance both as regards the feelings that prevail upon the cause, and the property which is at stake, and I therefore come to the conclusion at which I have arrived with very great regret. It seems to me, that, in deciding this case, I ought to look to the justice and injustice which would result from my decision; and though it is impossible not to feel the force of the argument which points to the inconveniences of delay, I think that, in determining the real point of the case,namely, whether the trial, if it now took place, would be valid or not, the hinge of the question is, whether I am, or am not, to take notice of the order of the Master of the Rolls? On the one side, it is said, that this is a record, which, on the face of it, has all the incidents of a special jury cause, and that I must look at it as such; while, on the other side, it is said, "You must look at the order of the Master of the Rolls;" and it seems to me that I cannot but look at it. In point of form, it is not before me; but I think I must consider it as if it were. Now, I find the order says, that the cause is to be tried by a special jury of the county, to be nominated from the special jurors resident in the county, and not less than twelve miles from Gloucester. What would be the effect, if common

jurymen were to be called upon to serve on this jury, who resided within one mile of Gloucester? This is not a cause of challenge independently of the order; and I think, therefore, that I could not advance a step without taking notice of the order. If, then, I am to take notice of the order, is the grant of a tales in strict compliance with its terms? I am not acquainted with the intentions of the Master of the Rolls in directing this issue to be tried; and I am not merely ignorant of them in point of form, but I actually do not know what they were. How, then, can I tell what objects his Lordship may have had in view when he directed this cause to be tried by a special jury composed of persons resident not less than twelve miles from the city of Gloucester? If a tales were granted at all, it might just as well be granted where but one special juror had appeared, and the jury would be composed of him and eleven common jurors, as where there were eight special to four common jurymen. It appears to me, therefore, that I have no right to go beyond the terms of the order. My Brother Coltman, with whom I have had as much consultation as the time would permit, says, that, in his opinion, the trial, if it now proceeded, would go for nothing, and that the Master of the Rolls would order a new trial. If so, I should be accessory to an act of great injustice, if I allowed it to go on. It occasionally happens that the facts of a case are so little known, that the first trial does not elicit the whole truth, but, ordinarily speaking, I have long thought that a second trial is not satisfactory. It appears to me, therefore, that the ends of justice would be best answered by postponing this trial till the next assizes, however much I may regret the expense which has been incurred in preparing for it.

Kelly applied for a postponement of the cause for a few hours, as coaches were shortly expected from Bristol, which might bring a few special jurymen.

COLERIDGE, J.-I think that I cannot grant the applica

tion.

1841.

WOOD

v.

THOMPSON.

1841.

Kelly offered to try the case by the eight special jurors who appeared; but Sir F. Pollock not consenting, the

WOOD
V.

case was

THOMPSON.

Postponed to the next assizes (b).

Kelly, Austin, Cripps, and Butt, for the plaintiffs.

Sir F. Pollock, Talfourd, Serjt., C. Phillips, Whitmore, and J. W. Smith, for the defendants.

[Attornies-Fyson & Meredith, and Reeve.]

(b) The absent jurors were each fined £50.

REGINA V. TOWNSEND.

It was proved EMBEZZLEMENT. The prisoner was indicted, under

that a post-office letter-car

rier was in the daily habit of calling at the lodge of the G. Infirmary, and

letters, with a

penny on each

to prepay the postage; and that he took

the stat. 2 Will. 4, c. 4, s. 1 (a), for embezzling money received by him, by virtue of his employment as a letter

carrier.

It appeared that the prisoner was a letter-carrier emthere receiving ployed by the post-office to deliver letters about Gloucester, and that he had been in the habit of calling at the lodge of the county of Gloucester Infirmary, and receiving letters them, with the there, and a penny upon each to pre-pay their postage, that his practice was to deliver these letters at the Gloucester post-office. It also appeared that he sometimes omitted to call at the lodge, and then the letters were taken by some

penny, to the
G. post-office;
and that, during

his illess, a per-
son who had
performed his

duties did the

no evidence of

any appointment:-Held,

in an indictment under the stat.

and

person and put in the post; and that during the time he had like. There was been ill, another person who performed his duties had also called at the lodge and received the letters and the pennies, and delivered them at the post-office in the same way as the prisoner. No evidence was given of the prisoner's appointment, or of the terms of it. Evidence was given with a view of shewing that the prisoner had received letters and the penny postage at the lodge of the Infirmary, and had put obliterated stamps upon the letters and embezzled the pence.

2 Will. 4, c. 4,

s. 1, for embezzling some of

the pence thus

received, that this was evi

dence to go to the jury, that the pence were

received by the prisoner by virtue of his employment as a letter-carrier.

(a) Set out 6 C. & P. 124, n. (a).

Greaves, for the prisoner.-There is no evidence that the money was received by the prisoner by virtue of his employment. It was the mere voluntary act of the prisoner to go and receive the letters and the postage; he was neither bound to go to the lodge nor to receive the letters; and, in order to prove that the money was received by virtue of the employment, it must be shewn that it was the duty of the prisoner to receive the money. Can it be contended, that every one has a right to insist upon a lettercarrier receiving letters in the street? And can it be said, that, if a letter were so received, and the postage for it, it was received by virtue of the employment, unless the carrier would be guilty of a breach of duty in not receiving. If, by refusing to receive it, he would not be guilty of a breach of duty, it would not be a receiving by virtue of the employment, if the money were received. I admit that it is sufficient, to show that the prisoner has acted as a lettercarrier, to prove that he holds that situation (b); but where the charge is of having embezzled money received by virtue of such employment, under circumstances out of the ordinary course, I submit, that such evidence as has been given in this case is insufficient.

COLERIDGE, J.-I think there is evidence to go to the jury. The case does not rest simply on what was done by the prisoner, but there is also the fact, that the person who performed his duties during his illness pursued the same course as the prisoner.

Verdict-Not guilty on the merits.

Ludlow, Serjt., and W. J. Alexander, for the prosecutor.

Greaves, for the prisoner.

[Attornies-Peacock, and Smallridge.]

(b) See the cases of Rex v. Borrett, 6 C. & P. 124, and Rex v. Rees,

Id. 606.

1841.

REGINA

บ.

TOWNSEND.

1841.

GLOUCESTER CITY ASSIZES.

(Crown Side.)

BEFORE MR. JUSTICE COLTMAN.

found N. with

potatoes under

his shirt, which had been very recently dug from the

ground, and ap

REGINA V. PHELPS, SOUTHAN, and SMITH.

A police-officer MURDER.-The first count of the indictment charged all the prisoners as principals, in the first degree, with the murder of John Overbury, by striking and beating him. The second and third counts charged the prisoner Phelps as a principal in the first degree, and the prisoners The policeman Southan and Smith as principals in the second degree, in sist him; O. did the following terms:-That the said Southan and Smith, "at the time of the felony and murder was committed, to wit, on &c., at &c., were feloniously present, then and there abetting, aiding, and assisting the said John Phelps, &c."

prehended him

called O. to as

so; and a rescue being attempted, O. was going away, and was struck by

A., who went away, and O.

killed by other persons, who attempted the

The coroner's inquisition charged Phelps as principal in was afterwards the first degree, and Southan and Smith as principals in the second degree, in the same terms as the second and rescue-Held, third counts in the indictment, omitting the word "was.” that the police The grand jury had found a true bill generally against

officer had no

right to appre- Phelps, but a true bill against Southan and Smith on the

hend N., and

that the killing second and third counts only.

of O., therefore,

did not amount

to murder; and that, on an indictment for murder, A. could not be convicted of an assault :Held, also, that a person charged to aid a constable, and who does so, is protected eundo, morando, et redeundo.

A., B., and C. were indicted for murder: in the first count, as principals in the first degree; and in the second count A. was indicted as a principal in the first degree, and B. and C. as principals in the second degree; and the grand jury ignored the first count as to B. and C., and found a true bill, on the second, against all. Semble, that B. and C. might be convicted on the second count as principals in the murder, although A. was acquitted.

A count charged A. with a murder, and charged that B. and C., " at the time of the felony and murder was committed, to wit, on &c., at &c., were feloniously present, then and there abetting, aiding, and assisting," &c. Semble, that the word "was" may be rejected as surplusage; but whether, even rejecting that word, this be a good form of charging aiders and abettors-Quære.

A prisoner, in a case of murder, may demur; and if his demurrer be overruled, he may still plead not guilty; and semble, that he may demur and plead over to the felony at the same time.