assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding:" and whereas great difficulties have arisen in the construction of such enactment: for remedy thereof be it enacted, that the said enactment shall be and the same is hereby repealed (h).

XI. If, upon the trial of any person upon any in- On the trial dictment for robbery, it shall appear to the jury upon

of an indictment for robbery the

convict of an

assault with

intent to rob.

the evidence that the defendant did not commit the jury may crime of robbery, but that he did commit an assault with intent to rob, the defendant shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is guilty of an assault with intent to rob (i), and

(h) The case of Reg. v. Bird, 2 Den. C. C. 94, is of too recent occurrence to render it necessary for me to make any remarks on the conflicting views that prevailed respecting the interpretation of 1 Vict. c. 85. On an indictment for felony it will be no longer competent for the jury to acquit of the felony and find the prisoner guilty of a common assault; but by the 9th sect. of the present act it is provided, that a party indicted for a felony or misdemeanor may be found guilty of an attempt to commit the same, and be liable to the same consequences as if charged and convicted of the attempt only. This sect. will, in the cases of manslaughter, rape, sodomy, bestiality, &c., enable the jury, if the evidence point to such a conclusion, to acquit the prisoner of the felony, but find him guilty of an attempt to commit it. Sect. 11 further provides, that on the trial of an indictment for robbery the jury may convict of an assault with intent to rob; and by sect. 5 of 14 & 15 Vict. c. 19, post, p. 48, on the trial of any indictment for feloniously cutting, stabbing or wounding, the jury may acquit of the felony and convict of unlawfully cutting, &c. (i) This clause is framed to meet the difficulty which arose in the case of Reg. v. Reid, Ackroyd and another, 2 Den. C. C. 88,

thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for feloniously assaulting with intent to rob; and no person so tried as is herein lastly mentioned shall be liable to be afterwards prosecuted for for the same. an assault with intent to commit the robbery for which he was so tried.

No person
so tried to be
afterwards

prosecuted

Person tried for misde

XII. If, upon the trial of any person for any misdeit shall appear that the facts given in evidence quitted if the amount in law to a felony, such person shall not by

meanor not

to be ac

offence turn

out to be

felony, un.. less the court so direct.

meanor,

reason thereof be entitled to be acquitted of such misdemeanor (k); and no person tried for such misdemeanor

tried before Martin, B., at the York Winter Gaol Delivery, 1850. The prisoners were indicted for robbery; the jury acquitted them of the robbery, but found that the prisoners were guilty of assaulting and beating the prosecutor with intent to rob him. It was thereupon submitted by the counsel for the prisoners, that this verdict amounted to an acquittal; for the jury had acquitted the prisoners of the felony of which they were charged, and found them guilty of a felony of which they were not charged. The 11th sect. of 1 Vict. c. 85 was relied upon by the counsel for the prosecution. It was replied, that that statute merely enabled a jury to find the prisoners guilty of a common assaulta misdemeanor, and of this opinion was the Court of Criminal Appeal, and the conviction was quashed. By the above sect. in future it will be lawful for the jury, on an indictment for robbery, to convict of an assault with intent to rob, and thereupon the defendant will be liable to be punished in the same manner as if he had been indicted for feloniously assaulting with intent to rob; but the jury cannot now find the prisoner guilty of a common assault as the 11th sect. of 1 Vict. c. 85, is wholly repealed.

(k) This important provision puts an end to the doctrine of merger, which frequently led to the escape of criminals. In cases of indictment for assault on a woman, if a rape were proved, it was ruled that the misdemeanor had merged in the felony, and the prisoner was acquitted of the assault, although, generally, in such cases, the motive for charging an assault, and not a rape,

shall be liable to be afterwards prosecuted for felony on the same facts, unless the court before which such trial may be had shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for felony, in which case such person shall be dealt with in all respects as if he had not been put upon his trial for such misdemeanor.

dicted for

ment as a

not to be ac

offence turn

out to be lar

ceny, and vice versa.

XIII. If upon the trial of any person indicted for Person inembezzlement as a clerk, servant, or person employed embezzlefor the purpose or in the capacity of a clerk or servant, clerk, &c., it shall be proved that he took the property in question quitted if the in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of embezzlement, but is guilty of simple larceny, or of larceny as a clerk, servant, or person employed for the purpose or in the capacity of a clerk or servant, as the case may be (1),

was a fear that the graver offence could not be fully proved (see R. v. Harmwood, 1 East, P. C. 411); and on an indictment for a misdemeanor under 9 Geo. 4, c. 31, s. 25, if felony were proved the defendant must have been acquitted. The doctrine of merger was impliedly condemned in the case of Reg. v. Neale, 1 Den. C. C. 36, argued before all the judges; and in future, if, on an indictment for misdemeanor, the facts proved should establish a case of felony, the prisoner may, nevertheless, be convicted. (Reg. v. Case, 1 Den. C C. 580.)

(1) The distinctions between larceny and embezzlement are occasionally so subtle that, till the whole facts of a case are disclosed on the trial, it is often difficult to say confidently that the offence is one and not the other. There are numerous cases where indictments for embezzlement have failed, because, after conviction, the judges have been of opinion that a larceny, and not embezzlement, was proved. (Reg. v. Wilson, 9 Car. & P. 27.) In

and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such larceny; and if upon the trial of any person indicted for larceny it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of larceny, but is guilty of embezzlement, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such embezzlement; and no person so tried for embezzle

a recent case before the Court of Criminal Appeal, June 1, 1850 (Reg. v. Hawkins, 1 Den. C. C. 589), the prisoner, who had been entrusted by his master with a number of articles of soldiers' clothing for the purpose of selling them, and 101. in silver to enable him to give change, set sail in a ship for the coast of Africa, was indicted both for embezzlement and larceny in separate counts of the same indictment. The jury found the prisoner guilty of embezzlement, acquitting him of the larceny. A case was reserved for the consideration of the judges, and they held that the offence did not amount to embezzlement, but that he ought to have been convicted of larceny. The result was, that the indictment was quashed, and the criminal, who was guilty of robbing his master under aggravated circumstances, escaped altogether, although the pleader who drew the indictment had taken the precaution of charging the offence both as an embezzlement and as a larceny, simply because the jury were under the impression that it fell under the first and not under the second class. In the same way it was held, that if, on an indictment for larceny, an embezzlement were proved, the prisoner must be acquitted. (Rex v. Sullens, 1 Mood. C. C. 129.) In future if, on an indictment for embezzlement, a larceny be proved, that will be no ground for an acquittal, and so vice versa. It will still be the most advisable course to follow the established practice of framing the indictment for embezzlement, and adding a count for larceny at common law.

ment or larceny as aforesaid shall be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts.

dictment for

jointly re

ceiving, persons guilty of separately

XIV. If, upon the trial of two or more persons in- Upon an indicted for jointly (m) receiving any property, it shall be proved that one or more of such persons separately received any part of such property, it shall be lawful receiving for the jury to convict upon such indictment such of victed. the said persons as shall be proved to have received any part of such property.

may be con

cessaries and

may be in

the same in

the absence

of the prin

cipal felon.

XV. And whereas it frequently happens that the Separate acprincipal in a felony is not in custody or amenable to receivers justice, although several accessaries to such felony or cluded in receivers at different times of stolen property the sub- dictment in ject of such felony may be in custody or amenable to justice for the prevention of several trials be it enacted, that any number of such accessaries or receivers may be charged with substantive felonies in the same indictment, notwithstanding the principal felon shall not be included in the same indictment, or shall not be in custody or amenable to justice (n).

XVI. It shall be lawful to insert several counts (0) Three lar

(m) And see 11 & 12 Vict. c. 46, s. 4. In R. v. Messingham (1 Mood. C. C. 257), it was decided that if two were charged jointly with receiving stolen goods, a joint receiving must be proved, and proof that one received in the absence of the other, and afterwards delivered to him, was held not to suffice.

(n) See 11 & 12 Vict. c. 46, ss. 1, 2.

(0) The principle of this section has been already recognized in the cases of embezzlement, and offences relating to coin. By 7 & 8 Geo. 4, c. 29, s. 48, it is enacted, that it shall be lawful to charge in the indictment and proceed against the offender for any number of distinct acts of embezzlement, not exceeding three, which may have been committed by him against the same master within the space of six calendar months from the first to the last of such acts. The different offences must be laid in separate counts.