1842.

REGINA V. SIMPSON, ELLIS, and Sixteen Others.

INDICTMENT on the stat. 7 & 8 Geo. 4, c. 30, s. 8, for A prisoner had

feloniously demolishing a house,

The prisoners were charged in the first count of the indictment with having feloniously demolished and destroyed the house of the Rev. Robert Ellis Aitkins; second count, for having feloniously begun to demolish and destroy the house.

As soon as the prisoner Ellis had pleaded to the indictment, Allen, for the prisoner Ellis, applied that he should be tried separately and after the other prisoners who were included in the same indictment with him, on the ground that the prisoner Ellis had been originally charged with high treason, and not with the offence which was the subject of the present indictment, and also because only four witnesses had been examined before the magistrates of whose depositions the prisoner had been furnished with copies, and there were the names of thirty-two witnesses on the back of the indictment, of the nature of whose evidence the prisoner was unaware.

TINDAL, C. J.-I cannot take this prisoner out of a joint indictment to which he has pleaded not guilty. It is one mode, and a constitutional mode, of commencing a prosecution, that the witnesses should go at once before the grand jury, and that is what they have done on the present occasion, and whenever that is so, it is impossible to give copies of the depositions, because none are taken.

a

been omitted on a charge of high treason,

and afterwards the grand jury

returned a true bill against him with others,

bill

for feloniously demolishing a house, under

the stat. 7 & 8

Geo. 4, c. 30,

s. 8. He plead

ed to that in

dictment, and

wished to be

tried after the the other priwere indicted feloniously de

soners, who

with him for

rioters by means of fire, one of the rioters who is

present while the fire is burning, may be convicted for demolition under the stat. 7

the felonious

The case proceeded against all the prisoners, and it appeared that about midnight on the 15th August, 1842, mob of persons, some being armed with cutlasses, staves, and bludgeons, came to the house of the Rev. R. E. Aitkins, and having burst open the front door and entered the house, they destroyed the furniture, and at about twenty 30, s. 8, although he is

& 8 Geo. 4, c.

not proved to have been present when the house was originally set on fire.

1842.

REGINA

v.

SIMPSON.

minutes before one o'clock set the house on fire. It was proved by a witness named Goodwin, that between two and three o'clock on the morning of the 16th of August, he saw the prisoner Ellis standing within the railing in front of the house, which was then on fire; and to shew that the prisoner Ellis was not innocently present, evidence was given of what he had said at several times on the subject of the riots, and of a speech which he addressed to the populace on the afternoon of the 16th of August, at a place about a minute's walk from Mr. Aitkin's house, at which this fire took place. With respect to some of the other prisoners, evidence was given that they applied lighted torches to the house and set it on fire.

The defence of Ellis was an alibi.

TINDAL, C. J., (in summing up the case as to the prisoner Ellis), said-If you are dissatisfied with the testimony which he has produced, and you think that he is attempting to prove that which is not true, you have then to consider whether Goodwin has proved that he was there, and next whether he was there with the guilty intention of aiding and assisting the mob.

The jury found the prisoner Ellis and sixteen of the other prisoners guilty.

Allen, for the prisoner Ellis.—I wish to mention a point in this case, which I ought to have made at an earlier stage of it. This is an indictment for demolishing and for beginning to demolish a house-the mean of destruction being that of fire. And I believe that, in cases where the offence charged has been the "setting fire" to a house, it has been held that persons who have come up after the fire has commenced are not principals in the crime of arson, however they may have aided in the transaction by feeding the fire afterwards. Now, the prisoner Ellis is, I admit, tried under a different enactment; but I would

suggest that the same exactitude is required on the one enactment and on the other. There was, in this case, no evidence that the prisoner Ellis was present till long after the demolition had begun, and there is nothing from which the jury could infer that he was at this house at the time of the commencement of the fire; and it is, I apprehend, a general rule that persons, who come up after the completion of a felony, cannot, in law, be held to be principals, however they may be accessories after the fact.

TINDAL, C. J.-If I felt the force of the objection, I would certainly reserve the point; but it appears to me that your argument fails on the main ground on which you put it forward. You are comparing this to the case of an indictment for arson. It is possible that, if this had been an indictment for burning the house, the objection might have been valid; but this is an offence under an enactment that makes it a felony, if persons riotously and tumultuously assemble together to the disturbance of the public peace, and, when so assembled, destroy a house, therefore it is not simply the fact of destroying a house by fire, but it is the combined fact of riotously assembling together and, whilst the riot continues, demolishing the house. Now, to make a party guilty of that, he must be shewn to be one of those who were present at the offence, or he could not be aiding and abetting. But as it was not only the burning, but also the riotously assembling together, the whole of the prisoner's conduct on that day was before the jury. It was distinctly left to them, that, unless they thought that the prisoner Ellis had, by his language, excited this mob to the act which was the subject-matter of the inquiry, and afterwards been present at it, he was not guilty.

The prisoner Ellis was sentenced to be transported for twenty-one years.

1842.

REGINA

v.

SIMPSON.

1842.

REGINA

v.

SIMPSON.

Follett, S. G., and Waddington, for the Crown.

F. V. Lee, Meteyard, E. Yardley, W. Johnstone Neale, and Huddleston, for the respective prisoners.

[Attornies-Solicitors for the Treasury, for the prosecution; and Williams, Bowen, Brown, Whalley, and Roberts, for the respective prisoners.]

REGINA V. GIBSON.

A witness for INDICTMENT on the stat. 7 & 8 Geo. 4, c. 30, s. 8, for demolishing an office, the property of Lord Granville.

the prosecution in a case of

felony may be asked in crossexamination whether he has not stated certain facts before

In cross-examining one of the witnesses for the prosecution, Huddleston, for the prisoner, proposed to ask the witness whether he had not stated certain facts to the

the grand jury, grand jury.

and the witness is bound to answer that question.

Godson, for the prosecution.-I submit that the witness cannot be asked as to what he said before the grand jury.

PARKE, B.-I see no objection to the question, and I think that the witness is bound to answer it.

The question was put.

Verdict-Not guilty.

Ludlow, Serjt., and Godson, for the prosecution.

Huddleston, for the prisoner.

[Attornies-Solicitors for the Treasury, and Bowen.]

INDEX

TO THE

PRINCIPAL MATTERS.