who was present at the time and place at which the robbery was supposed to have been committed, proved an assault upon the prosecutor by Birch, one of the prisoners. The jury were directed by Mr. Armstrong, who was presiding, after consultation with my brother Patteson, to acquit the prisoner of the felony, but to find Birch guilty of a common assault, and on the point reserved for the opinion of the judges, the conviction was held to be right, on the ground that, under the 11th section of 1 Vict. c. 85, it was not necessary to show that the assault was made with the intention of committing the felony charged in the indictment; but it was enough if the assault charged in the indictment and the assault proved were the same. It appears from this that there are two requisites to sustain such a conviction; first, an assault must be included in the charge: secondly, it must be proved to be a part of the very act or transaction; and the question here, as in all similar cases, is, was the assault a part of the transaction? Now the facts are, that four persons engage in a common assault, then, being interrupted, Brown and the other three prisoners retreat and collect stones, of course with the purpose of throwing them; but before they execute this purpose, Brown repents and retreats, and the other three proceed to carry out the design and commit the felony in which Brown took no part. It was in truth an act commenced by the four, but which three executed. The case of Reg. v. Barnett and others (2 Car. & Kir. 595), cited by Mr. Saunders, differs from this; there the assault and the robbery were two distinct transactions. One man committed an assault and the other two took advantage of it to commit a robbery. No concert was shown between them, nor had they been engaged in any common design. As one mode of trying this, let us see whether they might be now indicted for a common assault. But certainly if they were to be so indicted they might successfully plead autrefois convict. Conviction affirmed. REG. v. PHILLIPS AND OTHERS. Assault. Judgment. REG. v. ARCHER. Witness. YORKSHIRE WINTER ASSIZE, 1848. York, December 9. REG. v. FANNY ARCHER.(a) Witness—Admissibility of evidence of a party to the record. A prisoner convicted of an offence, who was jointly indicted with another afterwards put upon his trial, is an admissible witness for the prisoner on trial, although individually named on the record. THE HE indictment, which was found at the last Summer Assizes, charged Eliza Lynch with robbery and Fanny Archer with aiding and assisting Eliza Lynch, who was tried, convicted, and sentenced at the former assizes; but Fanny Archer, not having been then apprehended, was not put upon her trial until the present gaol delivery. Travis, for the prosecution, proposed to call Eliza Lynch as a witness. J. H. Hill, for the prisoner, objected to this course, and contended that she was not admissible under 6 & 7 Vict. c. 85, s. 1, because it is thereby expressly provided, that that act shall not render competent any party to any suit, action, or proceeding individually named in the record. MAULE, J., held that she was admissible as a witness; and stated that in a case at the Old Bailey there was a great deal of talk about the matter, but no question on that point was subsequently raised. The prisoner was acquitted on the merits. (a) Reported by T. CAMPBELL FOSTER, Esq., Barrister-at-Law, Northern Circuit. COURT OF QUEEN'S BENCH. May 2, 1848. REG. v. JAMES BUTTON AND OTHERS. (a) Indictment for conspiracy-Merger of misdemeanor in felony. Upon an indictment for misdemeanor it is no ground for an acquittal, that the evidence necessary to prove the misdemeanor also shows that it is part of a felony, and that the felony has been completed. Thus upon an indictment for a conspiracy to commit larceny, and charging that in pursuance of that conspiracy the larceny had been committed, the defendant is not entitled to an acquittal, though the evidence proves that he was guilty of felony, the conspiracy proved making him an accessory before the fact to the crime of larceny. The indictment charged that one C. L.was a dyer, and had in his possession vats and dye; and that the defendants were employed by the said C. L. as his servants, &c., and that it was their duty to use the said vats and dye for the profit and advantage of the said C. L., and for the dyeing, &c. of such woollen, &c., and other materials as might belong to themselves, or be entrusted to them by the said C. L. for the purposes aforesaid, and to use the vats and dye for no other purpose, and upon no other materials; and that the defendants conspired fraudulently and without the consent of C. L. to use the said vats, &c. in the dyeing of materials not belonging to themselves, and not entrusted to them by C. L. for that purpose, and to obtain for themselves profits, and to deprive C. L. of the proper use of the said vats and dye; and that in pursuance of that conspiracy the defendants did wilfully, and without the consent of the said C. L., receive materials, and wilfully and without the consent of C. L., at his expense and with his dye, vats, &c. dye the said materials for their own profit. Held, good in arrest of judgment; and that as it was unnecessary to prove the overt act, the objection that the offence of conspiracy was merged in a felony did not arise upon the face of the indictment ; though, if it had arisen, it could not have been sustained. NDICTMENT for conspiracy. The third count stated, that before and at the time of the conspiracy hereinafter next mentioned, one Charles Lewis carried on the trade and business of a dyer, and had in his possession, and upon his premises, divers large vats, and large quantities of dye, and other implements necessary for the carrying on the trade and business last aforesaid, and that the defendants, James Button, George Button, William Welsford, and Thomas Cordery, were employed and retained by the said C. L. as his servants in and about the management of the said last-mentioned trade and business. And that it (a) Reported by A. BITTLESTON and E. WISE, Esqrs., Barristers-at-Law. REG. v. JAMES BUTTON AND OTHERS. Merger of Misdemeanor. REG. v. JAMES BUTTON AND OTHERS. Merger of Indictment 3rd count. was their duty as such servants to employ and use the last-mentioned vats, dye, and other implements in and for the benefit, profit, and advantage of the said C. L., and for the dyeing, preparing, and working up of such woollen, silken, cotton, and other materials as might belong to themselves, or be entrusted to them Misdemeanor. by the said C. L. for the purposes last aforesaid, and to employ and use the said last-mentioned vats, dye, and other implements for no other purposes, and upon no other material whatsoever. And the said J. B., G. B., W. W., and T. C., on, &c., did unlawfully conspire, combine, confederate, and agree, together and with other persons whose names are to the jurors unknown, fraudulently and without the consent of the said C. L., to use and employ the said vats, dye, and other implements in and about the dyeing, preparing, and getting up of divers large quantities of woollen, cotton, and silken materials not belonging to themselves, and not entrusted to them by the said C. L. for that purpose; and to obtain and acquire to themselves by the means last aforesaid, divers large profits and advantages, and to deprive the said C. L. of the proper use and benefit of the said last-mentioned vats, dye, and other implements. And that the said J. B., G. B., W. W., and T. C., did, in pursuance of the said last-mentioned combination, conspiracy, and agreement, on, &c., wilfully and without the consent of the said C. L. receive, and take into their possession, divers large quantities of material, that is to say, 1,000 yards of woollen materials, 1,000 yards of linen materials, 1,000 yards of fustian materials, 1,000 yards of cotton materials, 100 yards of leather, 100 yards of fur, 100 yards of mohair, and 1,000 yards of silken materials, and did wilfully and without the consent of the said C. L. at his expense, and with his aforesaid dye, vat, and other implements, dye and prepare, and cause, permit, and procure to be dyed and prepared, the said last-mentioned large quantities of materials, and for their own profit and advantage, to the great damage of the said C. L., and against the peace of our said lady the Queen, her crown and dignity. 4th count. Fourth Count.-Charged that before and at the time of the conspiracy hereinafter mentioned the said C. L. carried on the trade and business of a dyer, and that the said J. B., G. B., W. W., and T. C. had engaged themselves, and were employed and retained by the said C. L. as his servants in and about the management of the said trade and business on his behalf, and for certain wages to be paid to them, which had before that time been agreed upon. And that the said J. B., G. B., W. W., and T. C., on, &c., did amongst themselves and with divers other persons, whose names are to the jurors unknown, unlawfully conspire, combine, confederate, and agree, by artful means and devices, to obtain and acquire to themselves divers large sums of money, by fraudulently and without the consent of the said C. L., using the dye and implements of trade of the said C. L. in and upon the dying and otherwise preparing and working upon of divers large quantities of woollen, cotton, linen, and REG. v. JAMES BUTTON AND OTHERS. Merger of other materials, for their own use and benefit and to the injury and loss of the said C. L., in his last-mentioned trade and business. And that the said J. B., G. B., W. W., and T. C., in pursuance of the said last-mentioned conspiracy, combination, and agreement, to wit, on, &c., wilfully and without the consent of the said C. L., receive and take into their possession divers large Misdemeanor. quantities of materials, that is to say, 1,000 yards of woollen materials, 1,000 yards of linen materials, 1,000 yards of cotton materials, 100 yards of leather, 100 yards of fur, 100 yards of mohair, and 1,000 yards of silken materials, and did wilfully and without the consent of the said C. L., at his expense and with his dye-vat and other implements, dye and prepare, and cause, permit, and procure to be dyed and prepared the said lastmentioned large quantities of materials for their own profit and advantage, to the great damage of the said C. L., and against the peace of our lady the Queen, her crown and dignity. Plea, Not Guilty.-At the trial at the sittings after Michaelmas Term, 1846, before Mr. Justice Erle, it was proved that the defendants were in the employ of the prosecutor, who was a dyer, and had, with the dye and materials belonging to him, on various occasions dyed for persons who brought goods to be dyed, and received the money for their own use. It was then objected that the facts proved a felony, for that it was either a larceny of the dyeing materials, or an embezzlement of the money received for the dyeing; and that the misdemeanor charged was merged in the felony. His Lordship overruled the objection, and the jury returned a verdict of guilty. A rule was subsequently obtained on the ground of misdirection, and also in arrest of judgment-against which (January 12), the crown. Sir F. Thesiger, Ballantyne and Peacock, showed cause.-The Argument for objection is that, inasmuch as by the felony being afterwards committed in pursuance of the conspiracy the defendants became accessories before the fact and guilty of felony, the misdemeanor therefore merged in the felony. Even assuming that the evidence proved a felony, the objection cannot be maintained. The doctrine of merger is one for which little authority can be found at common law. The only way in which it could be solemnly decided would be in a plea of autrefois acquit, or autrefois convict; but there is no such authority. In Reg. v. Cross (1 Ld. Raym. 711), the question arose upon the effect of a statute creating an offence. It was an indictment for a misdemeanor for receiving stolen goods, and judgment was arrested on the ground that by 3 & 4 Will. & M. c. 9, s. 5, the offence had been declared a felony, and could no longer be treated as a misdemeanor. It is difficult to assign a reason for the doctrine. Was it supposed that the crown might lose the forfeiture? In Reg. v. Neale (2 Car. & K. 591), the prisoner was indicted for a misdemeanor in having carnally known a child under twelve years of age. The jury found that he effected his purpose by force and against the child's consent, but the fifteen judges held that he might be convicted of the statutable misdemeanor, although |