SECTION X. CRUELTY TO CHILDREN, SERVANTS, OR PAUPERS. As to the law upon this subject, see ante, pp. 291, 301. It has been held that a married woman living with her husband is not indictable for not supplying her illegitimate child with sufficient food, unless her husband had supplied her with food to give to it, and she neglected doing so, for in these cases she is in the nature of servant to him, and nothing turns on her character as mother (y). Indictment against a Mistress for not providing sufficient Food for a Servant, keeping her without proper Warmth, &c. (z). That one E. R. late of, &c., the wife of S. R., unlawfully and maliciously contriving and intending to hurt and injure one E. W., being a servant to her the said E. R., and an infant of tender years, to wit, of the age of - years, under the dominion and control of the said E. R., and unable to provide for herself, heretofore, to wit, on, &c., and on divers other days and times as well before as after that day, with force and arms, at, &c., unlawfully, wilfully, and maliciously did omit, neglect, and refuse to provide for and give and administer to the said E. W. sufficient meat and drink necessary for sustenance, support, and nourishment of the body of her the said E. W., and did then and there expose the said E. W. to the cold and inclemency of the weather (a), as well within as without the house wherein the said E. R. then dwelt, and keep the said E. W. without sufficient and proper warmth necessary for the health of her the said E. W., to wit, at, &c., [the said E. R. on the several days and times, and during all the times aforesaid, living separately and apart from the said S. R. her husband, to wit, at, &c.] (b), contrary to the duty of her the said (y) R. v. Saunders, 7 C. & P. 277, Alderson, B. (z) This is the indictment against Elizabeth Ridley, 2 Camp. 650, but with the additions suggested by Lawrence, J., as necessary to sustain it. See 3 Ch. Cr. L. 1st Ed. 861, and R. v. Friend, Russ. & Ry. C. C. 20. Unless the child be of tender years, unable to provide for itself, and is under the controul of the de fendant, so as to be unable to take any steps by leaving the service, or remonstrating or complaining to a magistrate, mere nonfeasance respecting her would be a mere breach of contract, and not indictable, see R. v. Ridley, and R. v. Friend. (a) As to this part of the charge, see ante, p. 291, 301. (b) Where the offender is a married woman, living with her husband, it is necessary to state (and prove) instead of the matter above placed within brackets, either that the child was imprisoned by and covering the same from the cold and inclemency of the weather," S. C.; for her crime is the wilfully neglecting to deliver the food to the child after the husband had provided it (R. v. Saunders, 7 C. & P. 279, Alderson B). A mother would be liable for the A A E. R., as the mistress of the said E. W. in that behalf, by reason of all which premises she the said E. W. afterwards, to wit, on, &c., became and was, and for a long time, to wit, the space of six months then next following, continued to be very weak, sick, and ill, and greatly consumed and emaciated in her body, to wit, at, &c. aforesaid, to the great damage of the said E. W., and against the peace, &c. Indictment for neglecting to provide an Apprentice of tender Years with sufficient Food, Clothing, Bedding, and other Necessaries. That one T. F., late of, &c., at, &c., did take and receive one S. Q. into the dwelling-house of the said T. F. as an apprentice of the said T. F. to be by him treated, maintained, and supported as an apprentice of him the said T. F., and did for a long time have and keep her in the said house as such apprentice as aforesaid, and that afterwards, to wit, on, &c., and on divers other days and times as well before as after that day, and during the said time he so had and kept her in the said house as such apprentice, the said T. F. did with force and arms unlawfully and injuriously, and without the consent of the said S. Q. and against her will, and maliciously and unlawfully intending to hurt and injure the said S. Q., she the said S. Q. being such apprentice to the said T. F. as aforesaid, and then and there being an infant of tender years, to wit, of the age of years, and under the dominion and controul of the said T. F., and unable to provide for herself, did neglect and refuse to find and provide for and to give and administer to her, being so had and kept as such apprentice as aforesaid, sufficient meat, drink, victuals, wearing apparel, bedding, and other necessaries proper and requisite for the sustenance, support, maintenance, clothing, covering, and resting the body of the said S. Q., by means whereof she became emaciated and nearly starved to death, and the constitution and frame of her body was greatly hurt and impaired, to the great damage, &c. and against the peace, &c. (c). consequences of not suckling her unweaned infant if she is able to do so; though if she be married, her husband would be bound to provide food for an older child. See per Patteson, J., Reg. v. Edwards. (c) See R. v. Friend, cor. Le Blanc, J. Exeter Ass. 1801; R. & Ry. 20, cited by Lawrence, J., in 2 Camp. 651. There were two indictments for ill usage of two female apprentices of the respective ages of 12 and 14. The wife of Friend was indicted with him, and the offences were charged against both prisoners" and each of them;" the indentures of apprenticeship and assignment of them were given in evidence. Each apprentice was to serve during the term, and the master during that term was to "find, provide, and allow to the said apprentice meet, competent, and sufficient meat, drink, apparel, lodging, washing, and other things necessary and fit for an apprentice, that she be not any way a charge" to the party binding her, "and to instruct her in housewifery." The wife was acquitted, and the male prisoner convicted and imprisoned. After two meetings of all the judges, and some difference of opinion, the general opinion was that it was an indictable misdemeanour to refuse or neglect to provide sufficient food, bedding, &c., to any infant of tender years, whether child, apprentice, or servant, unable to provide for and take care of itself, whom a man was obliged by duty or contract to provide for, so as thereby to injure its health; but that the indictment was defective in not stating the child to be of tender years, and unable to provide for itself. However, as at the trial objection was taken not so much to the indictment itself, as to the evidence ad Indictment against Overseers for Cruelty to a Pauper. That on, &c. one M. S., single woman, was a poor, weak, impotent, and infirm person, wholly unable to maintain herself, and legally settled within the township of B. in the W. R. of the county of Y., and justly entitled by the laws and statutes of this realm to have reasonable and necessary support, and relief found and provided for her by the overseers of the poor of the said township, and that J. B. late of B. aforesaid, in the said R., yeoman, then overseer of the poor of the township of B. aforesaid, well knowing the premises, and having the said M. S. under his care, as a poor person of and belonging to the said township, but wilfully and maliciously intending to injure and oppress the said M. S., on the day and year aforesaid, and continually afterwards until the day of the death of the said M. S., which happened on, &c. at B. in the said R., his duty in this behalf in nowise regarding, wilfully, maliciously, and unjustly neglected and refused to find and provide for the said M. S. reasonable and necessary meat, drink, clothing, bed and bedding, whereby the said M. S. was reduced to a state of extreme weakness and infirmity; and afterwards on, &c. at, &c. through the want of such reasonable and necessary meat, drink, clothing, and bed and bedding, died, to the great damage, injury, and oppression of the said M. S. and to the shortening of her life, to the evil example, &c. and against the peace, &c. (d). SECTION XI. EMBEZZLEMENT NOT AMOUNTING TO FELONY. 1. Embezzlement being a Misdemeanour at Common Law. 1. Embezzlement at Common Law.]-In general an indictment for a mere breach of trust, not amounting to larceny, will not lie at common law. But where this breach of trust is committed by a public officer misapplying the funds with which he is entrusted for the benefit of the public, he may be indicted for a misdemeanour in respect of his public duced in its support, it was thought right that the prisoner should suffer his whole imprisonment. See R. v. Meredith, and R. v. Booth, R. & Ry. 47, cruelty by overseers. (d) This was the indictment in R. v. Booth (Hil. 1796). The prisoner was convicted and imprisoned. However, in 1803, six judges were of opinion that an overseer is not indictable for the consequences of not relieving a pauper, unless an order of justices for his relief is stated and proved (except in case of urgent necessity where no such order could be had in time): five judges thought the overseer so indictable, as he had taken the pauper under his care without such order, R. v. Meredith and Turner, R. & Ry. 46. In R. v. Warren (1820), R. & Ry. 48, n., an overseer was indicted for neglecting to supply medical aid when required to a pauper labouring under dangerous illness, and Holroyd, J., held the offence sufficiently charged and proved, though the pauper was not in the workhouse, or before his illness needed parish relief. See Hays v. Bryant, post. duty. Thus an indictment will lie against overseers for embezzlement, giving false accounts, or not accounting (e), and the precedent inserted below, of an indictment against a surveyor of highways, is stated by Mr. Chitty in his excellent work on Criminal Law, from which it is taken, to have been obtained from the Crown Office, having been used in the prosecution of a person named Robinson. Indictment for Embezzlement of Gravel by a Surveyor at Common Law. That W. R., late of, &c., at the several times of the committing of the several offences hereinafter mentioned, was one of the surveyors of the highways of the parish of aforesaid, in the county aforesaid, to wit, at, &c. aforesaid, and that the said W. R., so being such surveyor of the highways as aforesaid, not regarding his duty in that behalf, but minding and intending to promote his own private gain and emolument, at the expense of the inhabitants of the said parish, on, &c. and so forth, and on sixty other days and times then next following, at, &c., aforesaid, unlawfully, wilfully, and corruptly, by colour of his said office of surveyor of the highways as aforesaid, did cause and procure divers, to wit, fifty cartloads of gravel, and other materials which had been then and there dug and got at the costs and charges of the inhabitants of the said parish, for the purpose of repairing the public common highways of the said parish, and which ought then and there to have been laid upon and used in the repairs of such highways, to be carried and conveyed to certain gardens, lands, and grounds of the said W. R., within the said parish, and there to be laid, spread, and used for his own private gain and emolument, and did then and there unlawfully, wilfully, and corruptly, by colour of his said office, cause and procure divers labourers, to wit, &c. [naming them] then and there hired and retained at the costs and charges of the said inhabitants of the said parish, to get and carry gravel and materials for the purpose of repairing and to repair the highways of the said parish, under the direction of the surveyors of the highways of the said parish, to be employed in the carrying and conveying the said gravel and other materials to the said gardens, lands, and grounds of the said W. R., and in there laying, spreading, and using the same for the private gain and emolument of the said W. R., when such labourers ought to have been then and there employed, getting gravel and other materials for the purpose of repairing, and in the repairing such highways; and also did then and there unlawfully, wilfully, and corruptly, by colour of his said office, cause and procure divers teams furnished with horses and other cattle, and with men to attend the same, which had been then and there duly sent by divers inhabitants and occupiers of lands, tenements, and hereditaments within the said parish, to wit, by, &c. [naming them] to perform statute duty for and in the repair of the said highways under the direction of the surveyors of the highways of the said parish, to be employed in the carrying and conveying of the said gravel and other materials to the said lands, gardens, and ground of the said W. R., and in there laying, spreading, and using the same for the private gain and emolument of the said W. R., when such teams and men attending the same ought to have been (e) See forms, 3 Chit. Cr. Law, 701, et seq. then and there employed in getting, loading, and conveying gravel and other materials, for the purpose of repairing, and in the repairing such highways, contrary to the duty of the said W. R., as such surveyor of the highways as aforesaid, and against the peace, &c. [Second count only for procuring gravel dug, for the purposes of repairing, to be taken to his own premises. Third count for procuring the public labourers to carry gravel for him. Fourth count employing the teams sent to perform statute duty to carry gravel for him. Fifth count for employing the public labourers to dig muck and dirt, and convey it for himself. Sixth count, for employing teams for the same purpose. Seventh count as follows;— And the jurors, &c., that the said W. R., so being such surveyor of the highways as aforesaid, not regarding his duty in that behalf, but minding and intending as aforesaid, on the said, &c. and on sixty other days and times then next following, at, &c. aforesaid, unlawfully, wilfully, and corruptly, by colour of his said office, did cause and procure divers others, to wit, one hundred other loads of gravel and other materials, which had been then and there dug and got at the costs and charges of the inhabitants of the said parish, for the purpose of repairing the public common highways of the said parish, and which then and there ought to have been laid upon and used in the repairs of such highways as aforesaid, to be carried and conveyed to a certain place, called Queen-street, within the said parish, not being one of the public highways of the said parish, and there to be laid, spread, and used for his own private accommodation, gain, and emolument, contrary to the duty of the said W. R. as such surveyor of the highways as aforesaid, to the evil example, &c. and against the peace, &c. 2. Embezzlement made a Misdemeanour by Statute.-As to felonious embezzling, see Ch. V. s. 10, ante. By s. 49 of 7 & 8 G. IV. c. 29, particular embezzlements by agents (ƒ) are made indictable as misdemeanours, and punishable severely: viz. "If any money, or security for the payment of money, shall be entrusted to any banker, merchant, broker, attorney, or other agent, with any direction in writing (g), to apply such money or any part thereof, or the proceeds or any part of the proceeds of such security, for any purpose specified in such direction, and he shall, in violation of good faith, and contrary to the purpose so specified, in anywise convert to his own use or benefit such money, security, or proceeds, or any part thereof respectively, every such offender shall be guilty of a misdemeanour; and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years nor less than seven years, or to suffer such other (f) See R. v. Walsh, 2 Leach, 1054; 4 Taunt. 258; R. & Ry. 215, S. C. which occasioned 52 G. III. c. 63, repealed by 7 & 8 G. IV. c. 27, and replaced as above. (g) R. v. Grove, 1 Mood. C. C. 447, ante. |