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 In an indictment for murder, the 1st count
that conspiracy the larceny had been commit- ted, the defendant is not entitled to an acquit- tal, though the evidence proves that he was guilty of felony, the conspiracy proved mak- ing him an accessory before the fact of the crime of larceny. Reg. v. Button and others, 229
ATTEMPT TO DEFRAUD.
An indictment which merely charges that the defendant did unlawfully attempt and en- deavour fraudulently, falsely, and unlawfully to obtain from A. B. a large sum of money with intent to cheat and defraud him, is bad in arrest of judgment. Reg. v. Marsh and another, 570
INDICTMENT FOR DISOBEYING ORDER OF JUSTICES.
If two justices have made an order upon the putative father of a bastard child under 7 & 8 Vict. c. 101, which is invalid upon the face of it, it is competent to the same two justices, or to two other justices, having ju- risdiction in the case in other respects, to make upon the mother's application a second order upon the same person, as if there had been no previous application. Reg. v. Brisby, 476
"Misdemeanor" is nomen collectivum; and therefore where an indictment contained se- veral counts, and the venue was to try "whe- the said R. be guilty of the perjury and mis- demeanor aforesaid or not guilty;" and the verdict was "guilty of the perjury and mis- demeanor aforesaid, in manner and form as by the said indictment is supposed against him:"
Held, that they applied to all the counts, and that a general judgment of imprisonment was good. Ryalls v. The Queen, 254
Nomen collectivum, 36 Embezzlement by agents, 64
Notice of trial in, practice as to, 299
To what sessions traverse should be, 431
Practice in, as to entering an award of a new trial, 561
Of juryman not a mistrial, 220
Misnomer of juryman is not, 220
alleged, that the prisoner, "in and upon a certain infant female child, born of the body of her the said Sarah Waters, of tender age, to wit, of about the age of two days, did make an assault," &c., and went on to state a murder by poisoning.
The 2nd count charged an assault, “in and upon the said infant female child, so born of the body of her the said Sarah Waters," &c., and then set forth the cause of death to have been the exposing the child on a heap of ashes, leaving it there exposed to the inclemency of the weather. But there was no allegation in this count of the child's age, or that it was of tender years, so that the natural consequence of the exposure would be its death.
Held, nevertheless, that the 2nd count was good after verdict.
Held, also, that describing the child in the indictment as "not named," was not matter of objection. Reg. v. Waters, 300
An application was made before trial on the part of the accused, that a surgeon named by them should be permitted to inspect the stomach of the deceased person, which was then in the possession of a police officer. The application was granted, and an order made that the inspection should take place in the presence of the police officer, and of the me- dical persons who had examined it on the part of the prosecution, the expense to be borne by the prisoners, and the coroner to have notice of the time and place of the examination. Form of order. Reg. v. Spry and another, 221
Statement of name of murdered party in in- dictment, 72
Defence of insanity, principles of, 275
MERCHANT SEAMEN'S ACT.
A seaman engaged by the master of a vessel, and taken to sea without any such written agreement having been entered into between them as is rendered necessary by the 7 & 8 Vict. c. 112, s. 2, is not a seaman or a ma- riner within the 11 & 12 Will. 3, c. 7, s. 9, and therefore is not liable under that section for making a revolt, by deserting his vessel in port, and inducing the rest of the crew to do the same.
Semble, a merchant vessel is a ship within the meaning of that section. Reg. v. Smith and another, 443
Insertion of, in an indictment for inurder, 72
NAVAL STORES.
UNLAWFUL POSSESSION OF.
The bare possession of marked naval stores
the event of their being interrupted by keepers while in pursuit of game. Reg. v. Turner and others, 304
In misdemeanor, practice as to, 299
does not render a person liable to be con- In high treason, what is, 76 victed under 9 & 10 Will. 3, c. 41, if he be ignorant that the stores are so marked.
A defendant, charged with the possession of two lots of marked naval stores, produced at his trial two certificates in respect of the different lots, signed respectively by the Commodore Superintendent of the Woolwich Dockyard and the Secretary to the Board of Ordnance: the former having been granted to the person of whom the defendant pur- chased, the latter to the defendant himself.
Held, that these certificates, though not strictly in accordance with 9 & 10 Will. 3, c. 41, ss. 2, 4, were, nevertheless, an answer to the charge. Reg. v. Willmet, 281
In misdemeanor, practice as to entering an award for, 561
An indictment under the 9 Geo. 4, c. 69, charged, that the prisoners were in the Great Ground on the 11th February, armed with intent, then and there, to take game." The evidence showed that the prisoners were all seen, for the first time, in the Great Ground, employed in taking down two nets; after this was done they picked up some dead hares, which were lying on the ground near the nets, and hanging them on long sticks over their shoulders, walked homewards with them. It also appeared that they had dogs with them in the Great Ground.
Held, that the questions for the jury were -First, whether they were in the Great Ground with the intent to take game at that time, and that such intent might be inferred from the presence of the nets and dogs, though they might have taken the hares elsewhere.
Held also, that the allegation that they were "armed" could not be sustained, unless the jury should be of opinion that they took the sticks for the double purpose of carrying away the game, and of attack or defence in
PAWNBROKERS' ACT. Indictment for false declaration, under, 437
INDICTMENT-SEVERAL COUNTS.
In an indictment for perjury alleged to have been committed in an affidavit sworn, be- fore showing cause, in answer to an applica- tion by an attorney for taxation of his bill after the expiration of one "month" from its delivery, it is not necessary to negative any application by the party chargeable before the expiration of the month, inasmuch as the judge would have jurisdiction to issue the summons and commence the inquiry whether any such application had been made
The indictment used the word "month :" Held, that, as the stat. 6 & 7 Vict. c. 73, was expressly referred to in the indictment, the same construction must be given to that word in the indictment as in the statute; and that therefore it must be held to mean "calendar month."
A count of an indictment for perjury con- cluding thus, “And so the jurors, &c., did say that the said J. N. R., &c., did commit wilful and corrupt perjury," is not bad, be- cause the whole averment may be rejected as surplusage.
The affidavit denied the retainer:
Held, that the retainer was a material fact to be ascertained, and that therefore perjury might properly be assigned upon the state- ment denying it.
Misdemeanor" is nomen collectivum; and therefore where the venire was to try "whe- ther the said J. N. R. be guilty of the per- jury and misdemeanor aforesaid or not guilty;" and the verdict was "guilty of the perjury and misdemeanor aforesaid, in manner and form as by the said indictment is sup- posed against him :"
Held, that there was no uncertainty in either; that both the venire and the verdict applied to all the counts; and that a general judgment of imprisonment "upon the pre- mises," was good. Ryalls v. Reg., 36
IN THE COUNTY COURT.
An indictment for perjury before the Judge of the County Court alleged that a plaint being entered against the defendant in a certain County Court at W., duly constituted by order in council under the statute, he ap- pealed and was examined, and gave certain false evidence, &c.
Held, 1st. That the fact of the defendant's appearance might be proved by parol testi- mony, though it appeared that it was entered in a minute-book.
2nd. That the appearance of the defendant dispensed with the necessity of proving the
3rd. That the proceedings and evidence might be proved without the production of the minute-book, the judge having summary jurisdiction.
4th. That the allegation of the constitution of the court by an order in council might be proved by the judge himself by showing that the judge acted in that capacity, and in exa- mination of the act in question. Reg. v. Ward, 279
Where an indictment alleged that R. W. falsely swore that "he was in the bar of the house of J. B., on the 15th day of February last, from between the hours of six o'clock and seven o'clock in the evening of the said last-mentioned day, until nine o'clock in the evening of the said last-mentioned day, and that he the said R. W. did not then and there play at any game of cards at all:"
Held, that perjury was not sufficiently assigned by an averment that "the said R. W. did then and there (to wit) in the said bar of the said house and premises of the said J. B. on the said 15th day of February last and between the hours of six o'clock in the evening of the said last-mentioned day, and eight o'clock in the evening of the said last-mentioned day, play at a certain game of cards," &c. Reg. v. Whitehouse, 86 An indictment for perjury charged that the perjury was committed in an affidavit of debt filed in the Court of Bankruptcy, for the purpose of causing A. B. to be adjudged bankrupt, and sworn in the Court of Bank- ruptcy before a registrar thereof.
Held-1, that the 8th sect. of 1 & 2 Vict. c. 110, under which the affidavit was sworn, is not repealed by the 11th sect. of 5 & 6
Vict. c. 122; and that therefore the false statements therein were material to a judicial inquiry.
2. That the affidavit was made in a matter relating to bankrupts; and therefore pro- perly sworn before the registrar by virtue of sect. 67 of 5 & 6 Vict. c. 122
The affidavit, as set out in the indictment, stated that A. B. C. was indebted; but "A. B. C." was explained by an inuendo to mean "the said A. G. B. C." mentioned in the inducement; and the negative allegation was "Whereas in truth and in fact the said A. G. B. C. was not indebted."
Held, that the falsehood of the statement was sufficiently averred. Dunn v. The Queen,
An indictment for perjury committed in an affidavit sworn in answer to an application by an attorney for taxation of his bill of costs, averred that the application of the attorney was made after the expiration of" one month" from the delivery of the bill of costs-the dates of the application and of the delivery of the bill were laid under a videlicet; but if taken to be correct, they showed that more than a calendar month had elapsed between the delivery of the bill and the application.
Held, that (assuming month to mean lunar month, and that the judge would have no jurisdiction unless a calendar month had elapsed) in order to support the indictment the videlicet must be rejected, and the dates assumed to be correct.
But, semble, that the jurisdiction of the judge to issue the summons sufficiently ap peared, without showing that a calendar month had elapsed. Ryalls v. The Queen, 254
TO OBTAIN A MARRIAGE LICENCE. is a misdemeanor at common law to make a false statement upon oath before a surrogate in order to obtain a marriage licence. Quære, whether it is perjury.
An indictment charged that A. B. went be fore a surrogate, and with intent to deceive the surrogate, and obtain from him a marriage licence, swore (the said surrogate having au- thority to administer the said oath to the said A. B.), that his name was C. D., that he was a widower, and one of the parties for whom the licence was obtained, and that the woman had had her usual place of abode for the space of fifteen days within the parish in which the marriage was to be celebrated, whereas his name was not C. D., &c. (nega tiving all the statements); and that by the said false oath the said A. B. fraudulently obtained the marriage licence.
Held, that this was a good count for mis- demeanor, without averring a marriage had,
or intention to procure a marriage; that the allegation of authority in the surrogate to administer the oath did not mean authority to administer an oath upon which, if false, perjury could be assigned, but was supported by the general authority of the surrogate to administer the oath in such cases; and that the indictment was supported by proof that any one of the statements made on oath was false. Reg. v. Chapman, 467
PAWNBROKERS' ACT.
To prove the making of a false declaration under the Pawnbrokers' Act (39 & 40 Geo. 3, c. 99), it is not absolutely necessary to call the magistrate before whom it was made, or some one present at the time. It is sufficient to show such facts as necessarily lead to the conclusion that the defendant made it, and had a knowledge of the contents. Sed quære.
To prove that such a declaration is false in fact, it is necessary to negative the de- fendant's statement by the oath of two wit- nesses, in the same manner and to the same extent as the proof of an assignment for per- jury. Reg. v. Browning, 437
On an indictment for perjury alleged to have been committed in an answer to a certain interrogatory exhibited in a suit in the Ec- clesiastical Court, it appeared that a suit for divorce, on the ground of adultery, had been instituted against the prosecutor by his wife; that the defendant was a witness examined on behalf of the wife to prove her case; that cross-interrogatories were exhibited to him by the prosecutor by way of cross-examina- tion, one of which, put for the purpose of impeaching his character, was the following: "Have you not passed by the name of Abbott, and also of Johnson?" His answer was, "I have never passed by the assumed name of Abbott or Johnson." It was clearly proved that he had.
Held, that the question and answer were not sufficiently material to the issue to war- rant the case going to the jury. Reg. v. Worley, 535
Upon an indictment for perjury containing two counts, the entry of the final judgment was "It is considered, &c., by the court here, that he the said K., for the offence charged upon him, in and by each and every count of the indictment, be imprisoned," &c. Held sufficient.
An affidavit to hold to bail may be sworn before the issuing of the writ in the action; and, therefore, an indictment for perjury
committed in such an affidavit need not state that any action was pending. King v. The Queen, 561
Quare, whether a prisoner indicted for a felony not capital is not entitled to demur and plead over at the same time.
Semble, that Reg. v. Purchase (Car. & Marsh. 619), and Reg. v. Phelps (ib. 180), are in that respect overruled by Reg. v. Odgers (2 Moo. & Rob. 480), and can no longer be considered law; and that the judgment upon a demurrer in a criminal case, not capital, is final judgment, and not a respondeat ouster. The Queen v. John Mitchell, 1
Where a defendant had pleaded inadvertently to an indictment under circumstances which might show it to have been a mistake on his part, the court refused to allow him to withdraw his plea for the purpose of demur- ring, where the objection was one of a tech- nical character, not in any way affecting the merits of the case. Reg. v. Brown, 127
A count in an indictment, under the stat. 60 Geo. 3, c. 1, the first section of which pro- hibits assemblies of persons for the purpose of unlawfully" practising military exercise," and then goes on to impose a penalty on all persons who shall "train or drill" any other person, or who shall be trained or drilled, is not bad for duplicity, though it charges the offence which is prohibited, and the offence for which a penalty is imposed.
The omission of a prisoner's " addition" is not demurrable.
When the time for which an offence can be prosecuted is limited by statute, the omission to state the time of the commence- ment of the offence is not demurrable. Reg. v. Hunt, 215
An indictment found by a grand jury of Dorset- shire contained two counts, one (the 5th) charging A. with sheep stealing in Dorset- shire; and another charging B. with felo- niously receiving in Somersetshire, a sheep be- fore then feloniously stolen, &c., "being the same property as mentioned in the 5th count."
Held, that the 2nd count was bad, for not showing jurisdiction to try in Dorsetshire the words of reference to the 5th count not being sufficient for that purpose. Reg. v. Martin, 447
Indictment for perjury, 86 On seditious libel, 93 Indictment for sedition, 291 Caption of indictment, 318
Plea of non-delivery of list of witnesses and jurors in high treason, 360
In an indictment for felony, including an as- sault, 429
Prisoner cannot plead guilty of a common as-
sault to an indictment for maliciously A prisoner indicted for felony is not entitled to wounding, 441
Joinder of counts for receiving and stealing
in larceny, 451
Larceny of money, 460
Indictment for perjury and personation to ob- tain marriage licence, 467 Autrefois acquit, 544
Indictment for attempt to commit a fraud, 570 In larceny, description of a ham, 572
Under the 9th section of 9 Geo. 4, c. 69, if se- veral persons are indicted for entering en- closed land by night armed for the purpose of taking game, it is not necessary to prove that all entered the enclosed land; it is enough if some are proved to have entered the land, and the rest are shown to have been engaged with them in a common ob- ject, and to have been near enough to ren- der assistance. Reg. v. Whitaker and others,
To justify the apprehension of an offender,
under 1 & 2 Will. 4, c. 32, s. 31, it is only necessary that he should have been made to understand, by the person authorized under that section, that he is required to tell his Christian name, surname, and place of abode, and that he should have refused to comply with such requisition. It is not necessary that he should have been required both to quit the land and also to tell his name.
Damage done to a fence by a poacher's dog in pursuit of game, is not a "malicious" injury within the meaning of stat. 7 & 8 Geo. 4, c. 30, s. 23. Reg. v. Prestney, 505
Indictment for night poaching, evidence to sustain, 304
POST-OFFICE. EVIDENCE-VERDICT.
On an indictment under the 7 Will. 4 & 1 Vict. c. 36, s. 26, against a clerk in the Post-office, containing a count for stealing and another for secreting post-letters, the jury found that the prisoner, having committed a mistake in the sorting of the letters in question, secreted them in the water-closet, in order to avoid a
certain penalty with which such a mistake was usually visited by the authorities of the Post-office.
Held, that such finding amounted to a verdict of guilty on both counts. Reg. v. Wynn, 271
New statute as to (11 & 12 Vict. c. 88), App. lii
a copy of the indictment found against him, or to a copy of the jury panel, or to copies of the panels returned at former sessions of the
On the 13th May the prisoner was com mitted for trial at a session to commence on the 20th May, on which day a bill was sent up to the grand jury against him, which was on the 22nd found a true bill; and until the 23rd of May (when his trial was fixed for the 25th inst.), no attempt was made to secure the attendance at the trial of one S. M., who it then appeared had left Dublin on the 22nd. The court refused to postpone the trial, not- withstanding an affidavit, by the prisoner's attorney, that he believed sufficient grounds existed for challenging the array on the part of the prisoner, and that the said S. M. was "a most indispensable witness to sustain said challenge."
To induce a court to postpone a criminal trial on account of the absence of a witness, it must be shown, by affidavit, that the wit- ness is material—that due diligence has been used to secure his attendance-and that it can be obtained by the postponement. The Queen v. J. Mitchell, 1, 2
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