WESTERN CIRCUIT. CORNWALL SUMMER ASSIZES, 1844. (Before Mr. Justice WIGHTMAN.) THE QUEEN v. SANDYS and ANOTHER. (a) Assault with intent to rob. On an indictment for an assault with intent to rob, the prisoner cannot be convicted of a common assault for an assault committed subsequently to that in which the felonious intent is charged. RISONERS were indicted for feloniously assaulting the prosecutor with intent to rob him. It appeared that the prisoners had met the prosecutor upon the road, and, as it seemed, for a frolic, demanded his money or his life. The prosecutor recognized them, and some words passed, and the prisoners offered a shilling to make it up. They tried to thrust the shilling into the prosecutor's hand, and in doing so it fell to the ground: they then insisted in his getting off his horse to pick it up. He complied; then they struck him three times against his horse, and gave him a black eye. One of the prisoners was drunk, the other was not. On these facts being proved, WIGHTMAN, J. suggested that the transaction was more of a frolic than a felony. Merivale, for the prosecution, admitted this, but contended that the prisoners might be convicted of a common assault. Cornish, for the prisoners, contended that the assault proved, being subsequent to the act charged as felonious, was an after-thought-a distinct transaction-and in no way connected with the original felony. Assuming that there had ever been a felonious intent, it had ceased before the assault was committed. Watkins's case (2 Moody's C. C.), and Phelps's case (ibid.) were cited. WIGHTMAN, J. (after consulting Patteson, J.)-My brother Patteson is clearly of opinion with me that, assuming that the assault proved was not committed with a felonious intent, it was not so connected with the original transaction as to be the subject of felony under this indictment. His lordship then directed the acquittal of the prisoners. Merivale, for the prosecution. OXFORD CIRCUIT. GLOUCESTERSHIRE WINTER ASSIZES, 1843. THE QUEEN V. TRIGG and ANOTHER. (b) Indictment-Assault. Where the indictment charges the prisoner with assaulting and stealing from the prosecutor's person, the assault of which, on such indictment, the jury may find the prisoner guilty, is a common assault only, and not an assault with intent, &c. The indictment should allege, that the prisoner assaulted the prosecutor with intent to steal, and actually did steal, from his person; and then the jury might find him guilty of an assault with the felonious intent. THE HE prisoners were indicted for assaulting Charles Fraser, and stealing from his person five half-crown pieces, his property. The jury returned a verdict of guilty of an assault. (a) Reported by E. W. Cox, Esq., Barrister-at-law. (b) Reported by J. LANE, Esq., Barrister-at-law. ROLFE, B.-The assault of which the prisoners have been found guilty is a common assault only; the finding of the jury having expressly negatived the felony. I should recommend that, for the future, indictments of this nature should allege that the prisoner feloniously assaulted the prosecutor with intent to rob, and, then and there, actually did rob him; which allegation would warrant the jury in finding a verdict of guilty of an assault, with intent to commit the felony. Greaves, for the prosecution. OXFORD CIRCUIT. GLOUCESTERSHIRE WINTER ASSIZES, 1843. Gloucester, Friday, December 15. THE QUEEN v. PAUL RICHMOND. (a) An indictment alleging that the prisoner had in his possession a mould for coining, is bad for uncertainty, unless it expressly states that at the time it was in his possession it was impressed with the stamp of a current coin of the realm. HE indictment alleged that the prisoner the one mould, in and upon which Queen's current coin of the realm called a sixpence, knowingly and without lawful excuse, feloniously had in the custody and possession of him, the said Paul Richmond." To this indictment there was a demurrer. Greaves, for the prisoner, in support of the demurrer.-The indictment is obviously uncertain, as it does not allege that the mould in question was impressed with the resemblance of any coin when it was in the prisoner's possession. ROLFE, B.-The indictment does not state the impression to have been on the mould while the prisoner had it in his possession. The impression may, consistently with the allegation in the indictment, have been made after the prisoner had ceased to have it in his custody; and as the possession of the mould, with the impression on it while possessed, is the gist of the offence, this indictment is clearly insufficient. Judgment accordingly. Daniel and Keating, for the prosecution. OXFORD CIRCUIT. GLOUCESTERSHIRE WINTER ASSIZES, 1843. Gloucester, Friday, December 15. (Before Mr. Baron ROLFE.) THE QUEEN v. HOLMES. (a) Evidence-Statement by prisoner. A statement made by a prisoner to the committing magistrate is not inadmissible, because the magistrate advised him to tell the truth, and said that, whatever statement he made might be taken against him. N order to prove a statement made by the prisoner, when before the magistrate, expressed a wish to make a statement, whereupon the witness said to him, "Be sure it is nothing but the truth, or it may be taken against you." (a) Reported by J. LANE, Esq., Barrister-at-law. Huddleston, for the prisoner, objected to the statement being received. An inducement was here held forth, as the prisoner might possibly be led to believe that whatever statement he then made would be considered as the truth. In a case tried before Mr. Justice Maule, at the last Summer Assizes at Gloucester, a statement made after the prisoner had been told, that whatever he said would be taken down and used against him, was held inadmissible. The case of Reg. v. Drew (8 C. & P. 140) was also in point. Greaves. In the case before Mr. Justice Maule, the prisoner was told that what he said would-not, as in the present instance, might-be used against him at his trial; so that these cases are clearly distinguishable. The same observations apply to the case of Reg. v. Drew, where the magistrate's clerk told the prisoner that what he said would be used for or against him at his trial. The case of R. v. Court (7 C. & P. 486) was in point. ROLFE, B.-I think the evidence is admissible; it cannot be said that advising a prisoner to tell the truth is such an inducement as to render his statement inadmissible. Greaves, for the prosecution. Huddleston, for the prisoner. OXFORD CIRCUIT. SHROPSHIRE WINTER ASSIZES, 1843. THE QUEEN v. SMITH. (a) Larceny. Corn taken by the prisoner for his master's horses possibly not a felony. N this case, Phillimore, for the prosecution, declined to offer any evidence against the prisoner. ROLFE, B.-Why so? the witnesses are here. Phillimore. Yes, my lord; but the offence with which the prisoner is charged is that of stealing his master's corn, which he gave to his master's horses. My Lord Abinger, not very long ago, directed an acquittal in such a case; and I own, to punish such an offence as a felony has always appeared to me revolting to common sense. ROLFE, B.-Let me see the depositions. After reading the depositions, the learned judge directed the jury to acquit the prisoner, saying that, in his opinion, the counsel for the prosecution had exercised a very sound discretion in abstaining from giving evidence, especially as it might well be that the prisoner at the time did not know he was committing a felony. Prisoner was then acquitted. NORTHERN CIRCUIT. York, Monday, December 18. THE QUEEN D. Crosby. (b) False pretences. The prisoner having entered into an agreement to act as captain of a certain vessel belonging to the prosecutor, upon receiving two-thirds of the net profits of the vessel, delivered in a bill for repairs to a larger amount than he had actually paid, and was allowed the amount in the settlement of accounts: Held, that an indictment for obtaining money under false pretences would not lie, since the prisoner did not by the false pretence obtain that amount of money, but only credit for the difference between the amount actually paid and the amount which he charged. THE HE prisoner was indicted for obtaining money under false pretences. It appeared that he had been in the prosecutor's employment under the following (a) Reported by J. LANE, Esq., Barrister-at-law. agreement:::-" Memorandum of agreement between Joshua Bower and Co., of Allerton Colliery, and Captain William Crosby, who agrees to go captain and take charge of the vessel Richard, and to work her by the thirds, as is customary; and also agrees, whenever Messrs. Joshua Bower and Co. want him, that he will leave their service, and deliver up the vessel at the Allerton coal-staith, with all her stores and papers entire, in the same order and condition as when he took charge of the vessel." Evidence was given to shew that the meaning of the expression "working by thirds" was, that the prisoner was to have two-thirds of the net profits of the vessel. On the 10th of June, the vessel then being in the prisoner's care, at Hull, and requiring certain repairs to be done to her, he applied to a person of the name of Clarke, who did the repairs, amounting to 11. 2s. 2d., and gave the prisoner a bill and receipt for the amount. Upon the prisoner's return to the colliery, he presented to the book-keeper an account and receipt, purporting to be in Clarke's hand-writing, amounting to 1. 19s. 10d., and that account was accordingly allowed to the prisoner on the settlement of the vessel's accounts. MAULE, J.-How can it be said that the prisoner obtained any money by this false pretence? I have no doubt at all about the pretence, or the falsity of it; but my difficulty is, that he obtained no money by it, but only credit on account; it is only a non-payment of the 17s. 8d. It is like Wavell's case (1 Moo. C. C. 224), and there must be an acquittal. Prisoner acquitted. Middleton, for the prosecution. H. Wood, attorney for the prosecution. THE OXFORD CIRCUIT. GLOUCESTERSHIRE WINTER ASSIZES, 1843. THE QUEEN v. JONES and BICK. (a) Manslaughter-Inquisition. Inquisition stating that J. with a stick, &c. assaulted L. A., and that B. with a stick, &c. assaulted the said L. A., thereby giving him, &c. bruises, &c. of which he died: Held, bad for uncertainty. THE inquisition stated, that Jones, with a stick or staff, which he held in his right hand, assaulted L. Alley, and that Bick, with a stick, which he held in his right hand, assaulted the said L. Alley, thereby giving him, the said L. Alley, bruises, of which he died. Greaves, for the prisoners, applied to quash the inquisition on the ground of uncertainty. ROLFE, B.-The inquisition is bad; it is uncertain, for it is not clear whether the death was caused by the blows given by one of the prisoners or by the other. It is essential that it should always clearly appear on the face of the inquisition, whether both, or if not both, then which of two, persons caused the death of the party. The inquisition is bad on other grounds as well, but this is sufficient. Keating and Skinner, for prosecution. Greaves, for the prisoners. Inquisition quashed. (a) Reported by J. LANE, Esq., Barrister-at-law. NORTHERN CIRCUIT. YORKSHIRE WINTER ASSIZES, 1843. (Before Mr. Justice MAULE.) THE QUEEN v. George HinLEY, the Elder. THE QUEEN V. GEORGE HINLEY, the Younger.(a) Principal and Receiver-Indictment-Evidence-Variance—Arrest of judgment. Upon an indictment against principal and receiver, where it appears that goods are found on the receiver's premises, which have been taken from the prosecutor's premises, it is competent to the prosecutor to give evidence of the finding of other goods at the house of the principal, notwithstanding there is no evidence to connect the receiver with them, and the judge will not, under such circumstances, put the prosecutor to his election, either at the opening or the close of his case. In such a case, letters between the parties are admissible in evidence for the purpose of shewing guilty knowledge, notwithstanding they are not directly connected with the charge in question. Semble, that it is not competent to the prosecutor, in such a case, to give parol evidence of the directions upon certain hampers sent by the principal to the receiver, who lived at a distance, and which it was alleged contained a part of the stolen property, without having given notice to produce them; unless from the facts of the case the presumption is stronger that they are destroyed than that they are in existence. Upon an indictment against a principal and receiver in respect of goods stolen in one county and received in another, although the case is tried in the county in which the property was stolen, it is not necessary to allege in the indictment that the receipt took place in the other county; and the want of such averment is neither available in arrest of judgment, nor on the ground of variance. HE younger prisoner was indicted for having, on the 2nd October, 1843, at Leeds, then being servant in the employ of Edmund Stead and others, feloniously stolen certain articles, the property of the said Edmund Stead and others. The elder prisoner was charged with having, on the said 2nd of October, at same time and place aforesaid, feloniously received the said goods, well knowing them to have been stolen. One part of the goods was found at the son's lodgings at Kirksdale, near Leeds, the other part at the father's shop at Preston, in Lancashire. Ellis, for the prosecution, proposed to put in certain letters which had passed between the father and son, not connected directly with the charge against either prisoner, but for the purpose of shewing that the father must have known at that time that the son was carrying on a system of stealing the prosecutor's property, citing Dunn's case (1 Moo. C.C. 150); and then proposed to give evidence of goods having been found at the father's shop at Preston, alleged to have been stolen from the prosecutor by the son. Bliss objected that the letters were inadmissible, as being collateral to the charge, and not within Dunn's case. The other evidence is also inadmissible, because that will shew that these goods came at different times; and having given evidence of goods being found at the prisoner's lodgings, of which the father was not shewn to be cognizant, that being a distinct transaction, the prosecutor must be taken to have made his election, and cannot therefore give evidence of any other transaction. MAULE, J.-That does not exclude it; it may throw some light on this transaction; it must be taken to be something of which the prisoner was cognizant. I do not think it would be at all incompetent for the prosecutor to give in evidence a great number of stealings, for there is nothing bad in the indictment containing a number of stealings; if it contains a number of counts, there can be no doubt they may be joined. In point of practice, the Court sometimes puts the prosecutor to the election of some particular case, to the exclusion of the others; but that is only where the convenience of the case requires it, and the prisoner is not warned beforehand that such a line will be pursued. But where he commits a great number of larcenies of the same kind, it is absurd to say that the prosecutor may not give evidence of them. There was a case on the Western Circuit last year, where a man (a) Reported by J. A. Foor, Esq., Barrister-at-law. |