REG. V. BIRCH. 1852. PracticePostponement of trial. or their stations. Again, he further states, as another reason for postponing his trial, that negotiations were pending, and that he had consequently not prepared for his defence, and would be taken unawares and off his guard if his case were not postponed. If this were so, it might be a fair ground for acceding to this application; but that statement is positively and with the utmost particularity contradicted by Mrs. French. Another ground suggested was, that the traverser was unable to undertake his own defence from recent indisposition. Now, no man is bound to be his own defender, and I cannot consider that as a sufficient reason for postponing this trial. I do not mean to say that Mr. Birch may not be able to make a case which would warrant this court in postponement; but we are all of opinion that, on the affidavit before us, he has failed in making out a case. Application accordingly refused. [On the following Thursday, the day fixed for the trial, the traverser appeared and withdrew his plea of not guilty, and, after apologizing by his counsel, pleaded guilty.-REP.] Freland. COMMISSION COURT, GREEN-STREET. (Before the LORD CHIEF BARON, and RICHARDS, B.) REG. v. THOMAS AND CATHERINE SARSFIELD. (a) Pleading-Indictment under 11 & 12 Vict. c. 46—Joinder of counts. Where, under the 11 & 12 Vict. c. 46, s. 3, a count for feloniously receiving property knowing it to be stolen is joined with a count for feloniously stealing, it must appear with sufficient certainty that the property is the same in each count. The prisoners were indicted for feloniously stealing 1001. in money, one purse, &c. the property of R. G. There was a second count for receiving 351. in money, one purse, &c. the property of R. G. aforesaid, then lately before feloniously stolen. Held, that it did not sufficiently appear that the last-mentioned property was part of, or the same as, that contained in the first count, and that consequently the prisoners were not bound to plead to both counts, and that the Crown should elect as to which count they would try the prisoners upon. THE HE prisoners were charged upon the following indictment :The first count was in the usual form, stealing, &c., from the dwelling-house of Rachel Gilbert, at, &c., 100%. in money, one (a) Reported by P. J. M'KENNA, Esq., Barrister-at-law. 66 purse, &c., of the said Rachel Gilbert. The second count was as follows: " and the jurors aforesaid, upon their oath aforesaid, do further present that the said Catherine Sarsfield and Thomas Sarsfield, on the said day and year aforesaid, at Bremon aforesaid, in the said county of Dublin, 351. in money, one smelling-box, one purse, one opera glass, and one bag, of the money, goods, and chattels of the said Rachel Gilbert, then lately before feloniously stolen, &c., feloniously did receive, &c., knowing, &c. J. A. Curran, for the prisoners, objected that he was not bound to plead to the indictment, as for all that appeared on the face of the indictment, there were two substantive different offences joined in the same indictment. The 11 & 12 Vict. c. 46, s. 3, allows, with a count for receiving stolen property, a count for feloniously stealing the same property to be joined, but it does not appear that the property in the second count is the same as that in the first. The Crown must, therefore, elect as to which count they will proceed on. Smyly, Q. C.-The words in the second count," then lately before feloniously stolen," sufficiently show the property to be the same as that in the first. Pigot, C. B.-The second count is a substantive indictment. The COURT, after looking into the statute, ruled that the Crown should elect. The Clerk of the Crown had another indictment ready, on which the prisoners were tried. The jury acquitted Thomas Sarsfield, and found the female prisoner guilty. The Honble. John Plunkett, Q. C., and Smyly, Q. C., for the Crown. J. A. Curran, for the prisoners. [The 11 & 12 Vict. c. 46, s. 3, after reciting that it is not permitted to join to a count for stealing property a count for receiving the same property, knowing it to be stolen, whereby justice is defeated, enacts, "that from and after the passing of this act, in every indictment for feloniously stealing property, it shall be lawful to add a count for feloniously receiving the same property, knowing it to have been stolen; and in any indictment for feloniously receiving property, knowing it to have been stolen, it shall be lawful to add a count for feloniously stealing the same property: and when any such indictment shall have been preferred and found against any person, the prosecutor shall not be put to his election, but it shall be lawful for the jury who shall try the same to find a verdict of guilty either of stealing the property or of receiving it, knowing it to have been stolen: and if such indictment shall have been found and preferred against two or more persons, it shall be lawful for the jury who shall try the same to find all or any of the said persons guilty either of stealing the property, or of receiving it, knowing it to have been stolen, or to find one or more of such persons guilty of stealing the property, and the other or others of them guilty of receiving it, knowing it to have been stolen."] OXFORD CIRCUIT. WORCESTER SPRING ASSIZES, 1852. March 6. (Before Mr. JUSTICE WIGHTMAN.) REG. v. DALE. (a) Attempt to administer poison, 7 Will. 4 & 1 Vict. c. 85, s. 3. Putting poison in a place where it is likely to be found and taken, if done with an intent to murder, is an attempt to administer poison within the statute 7 Will. 4 & 1 Vict. c. 85, s. 3. Therefore, when the prisoner purchased some "salts of sorrel," and put it in the prosecutor's sugar basin, mixing it with the sugar, and the prosecutor subsequently put some of the mixture into his tea, but on tasting it, discovered that there was something wrong, and on investigation the poison was discovered : Held, that this constituted an attempt to administer poison, and the only question for the jury, if the act was proved, was, whether it was done with intent to commit murder. THE prisoner, Sarah Dale, was indicted for having, on the 26th of February, 1852, at Dudley, attempted to administer to one William Lawson a large quantity of a certain deadly poison, called salts of sorrel (binoxide of potash), with intent to murder the said William Lawson. Streeten for the prosecution. Huddleston (at the request of the learned judge), undertook the defence. The prisoner and her husband lodged at the house of the prosecutor. On the 20th of February, a few days before the day of the alleged offence, a quarrel arose between the prosecutor and the prisoner's husband, and the latter was subsequently committed to prison for want of sureties to keep the peace. The prosecutor also, on the same day, gave the prisoner and her husband a week's notice to quit. On the 25th of February, the prisoner went to a chemist's shop, and asked for a pennyworth of salts of lemon, to clean bonnets. The shopman said, "What you want is salts of sorrel;" and the prisoner said "Yes." A pennyworth (a quarter of an ounce) was sold her, and she was told it was not a thing to (a) Reported by J. E. DAVIS, Esq., Barrister-at-law. be played with, and should be kept out of the children's way. On the following day the prosecutor and his wife had some tea with their dinner, and the prosecutor, finding something wrong in the taste, called out to a lodger who had previously used the teapot. At the same time the prisoner entered the room, and threw the tea away out of the cups, and cleaned them with hot water. The prosecutor observed, "There must be poison somewhere." The prisoner said, "It may be in the sugar," and, taking up the sugar basin, said, "It is in here." The basin was taken to a chemist's, where it was found to contain salts of sorrel. The sugar and all weighed two ounces. Evidence was adduced to show the character of the poison. It appeared that in one instance an ounce had failed to destroy life; in another, half-an-ounce had proved fatal in a debilitated subject. It would produce sickness and nausea. The prisoner made statements to the police constable. She said, "The man (the prosecutor) drove me to it. He sent my husband to gaol. I have not a friend in the world." Being told she must be taken to a druggist's shop to see where she purchased the poison, she said, "I bought it at Kendrick's;" and in answer to questions, said, "I put it in the sugar basin while the old woman was sitting by the fire." At the close of the case for the prosecution, Huddleston submitted that there was no evidence of any attempt to administer within the meaning of the statute 7 Will. 4 & 1 Vict. c. 85, s. 3, which defined the offence to be an attempt to administer to any person any poison, &c. (b) The question had been mooted on several occasions whether the mere placing of poison is an administering or an attempt to administer, but had not been expressly decided. In the case of Reg. v. Williams and another (1 C. & Kir. p. 589), the prisoners were indicted under this statute for attempting to administer to one Thomas Vaughan a large quantity of a certain deadly poison called white arsenic, with intent to kill and murder him. The facts of that case were these: -The two prisoners, Ann Williams and John Rees, who cohabited together, procured the arsenic and gave it in a paper to a man named Edwards, informing him it was poison, and that they wanted to kill Thomas and Mary Vaughan, the parents of the female prisoner. They directed Edwards to keep the arsenic in the palm of his hand, and go to Vaughan's house and call for a pint of beer, which Edwards and the Vaughans were to drink together, and after having done so Edwards was to call for another pint of beer, and take an opportunity of slipping the arsenic into (b) "Whosoever shall attempt to administer to any person any poison or other destructive thing, or shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall attempt to drown, suffocate, or strangle any person, with intent, in any of the cases aforesaid, to commit the crime of murder, shall, although no bodily injury shall be effected, be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years."-7 Will. 4 & 1 Vict. c. 85, s. 3. REG. v. DALE. 1852. Attempt to poison Evidence. REG. v. DALE. 1852. Attempt to poisonEvidence. it, undiscovered by the Vaughans, to whom he was to hand it, that they might drink it and be poisoned. Edwards, instead of obeying these instructions, told the Vaughans what had passed, and gave up the poison to them. The prisoners were convicted, but Mr. Baron Rolfe respited the judgment, in order to consult the judges on the point, whether the foregoing facts warranted the conviction of the prisoners for an attempt to administer poison; for if Edwards had administered the poison, he would have been the sole principal felon, and the prisoners would have been accessories before the fact. The question, therefore, was, whether the delivery of poison to an agent, with directions to him to cause it to be administered to another, under such circumstances that, if administered, the agent would be the sole principal felon, was an "attempt to adininister" within the 3rd section of the stat. 1 Vict. c. 85; and the fifteen judges held that the conviction was wrong. It makes no difference whether the person makes use of an individual as an agent, or an article as an agent. To administer is to do a positive act, and an attempt to administer requires an attempt to do the act directly. So also in Reg. v. Cadman (R. & M. 14), the prisoner was indicted, under the 43 Geo. 3, c. 58, for administering white arsenic and sulphate of copper, with intent to murder. It appeared that the prisoner pulled a white bread cake, containing the poison, out of his pocket, and pinched off a bit from the outside of it, and gave it to the prosecutrix to eat, and she took it and put it into her mouth, but spit it out again, and did not swallow any part,-the opinion of the twelve was taken upon the question whether, under the circumstances of the case, the offence was complete within the statute. The judges seemed to think swallowing not essential; but they were of opinion that a mere delivery to the woman did not constitute an administering, and that upon a statute so highly penal they ought not to go beyond what was meant by the word" administering; " and a pardon was therefore recommended. (c) So in Russell on Crimes, by Greaves, vol. 1, p. 733, it is laid down that a mere delivery into the hands did not constitute an administering of poison within the 43 Geo. 3, c. 58. (c) Such is the report of the case in Ryan v. Moody. But as reported in Carrington's Supplement, p 237, the decision of the judges was exactly the reverse, holding that the poison had not been administered because it had not been taken into the stomach, and this is the correct version of the case. See observations of Mr. J. James Allan Park, in Rex v. Harley (4 C. & P. 370.) Cadman's case is, therefore, of little value now, as attempting to administer poison has been made a felony, and Lord Campbell's act (14 & 15 Vict. c. 100, s. 9), enacts, "that if on the trial of any person charged with any felony or misdemeanor, it shall appear to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person 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 not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the said indictment; and no person so tried as herein lastly mentioned, shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried."-[J. E. D.] |