Witnesses, how compelled to attend.] The witnesses for the prosecution, who attend before the magistrate at the time the prisoner is committed, are usually bound over by recognizance to attend and give evidence; and, for non-attendance, they may be punished, by their recognizance being estreated. All other witnesses, on the one side or the other, may be compelled to attend by subpoena, issued either from the Crown Office in London, or by the Clerk of the Peace at Sessions: if it issue from the Crown Office, the remedy for non-attendance is by application to the Court of King's Bench for an attachment; R. v. Ring, 8 T. R. 585; if issued by the Clerk of the Peace, the remedy or punishment for non attendance is, not by attachment, R. v. Brownall, 1 Ad. & E. 598, but by indictment. By stat. 45 G. 3, c. 92, s. 3, the service of a subpoena or other process upon any person in one part of the United Kingdom, requiring his appearance to give evidence in any criminal prosecution in any other part of the same, shall be as good and effectual as if it were served in that part of the United Kingdom in which he is required to appear; and in case he do not attend, then upon a certificate thereof being sent by the Court in which his attendance was required, to the Court of King's Bench in England, if the service were in England, or the Court of Justiciary in Scotland, if the service were in Scotland, or to the Court of King's Bench in Ireland, if the service were in Ireland; and these Courts respectively shall thereupon proceed against the person so making default, in such manner as if the subpoena, &c. had been issued from such Courts respectively. This statute applies only where the party is served in Scotland or Ireland with a subpoena to give evidence in England, or in England to give evidence in Scotland or Ireland, or the like.

If the witness be in custody on civil process, he must be brought up by writ of Habeas Corpus.

Witnesses' Expenses.] In what cases and how the expenses of witnesses are allowed and paid out of the County Rate in cases of felony, see 7 G. 4, c. 64, s. 22, 24-30. 1 Arch. P. A. 212, 213, 215-220; in certain cases of misdemeanor, see 7 G. 4, c. 64, s. 23. 1 Arch. P. A. 214. The witness cannot refuse to give his testimony in a criminal case, until his expenses have been paid to him, even although subpoenaed on the part of a defendant; R. v. James et al. 1 Car. & P. 322; and the indictment having been removed by certiorari, and the trial being of course in the Nisi Prius Court at the assizes, makes no difference. Id.

SECTION 6.

Indictments and Evidence in particular Cases.

UNDER this head, I mean to give the indictments and evidence in those cases only which usually occur at Sessions. The reader will find, in the list of offences punishable upon indictment, already given ante, p. 84, et seq., references to books, where precedents of indictments for other offences, and the evidence necessary to support them, will be found.

1. Indictment for simple Larceny.

Berkshire to wit: The jurors for our Lord the King upon their oath present, that A. B., late of the parish of in the county aforesaid, labourer, on the third day of November, in the seventh year of the reign of our Sovereign Lord William the Fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland King, defender of the faith, with force and arms, at the parish aforesaid, in the county aforesaid, [ten pieces of the current gold coin of the realm called sovereigns, of the value of ten pounds, one woollen cloth coat of the value of ten shillings, and one linen shirt of the value of five shillings], of the monies, goods and chattels of one C. D., then and there being found, feloniously did steal, take, and carry away, against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. 1 Arch. P. A. 269, 270.

Transportation for seven years; or imprisonment not exceeding two years, and once, twice, or thrice public whipping, if the Court shall think fit; 7 & 8 G. 4, c. 29, s. 3; such imprisonment may be with or without hard labour, and all or any portion of it may be in solitary confinement. Id. s. 4.

Evidence.

This is proved, either by direct evidence of the taking, &c., or by proof of facts and circumstances from which the jury may fairly presume it.

Larceny is a felonious taking and carrying away of the personal goods of another. Where goods are stolen, and are very shortly afterwards found in the possession of a person, who is unable satisfactorily to shew by evidence in what manner he came by them, the presumption is that he is the person who stole them. It is therefore a very usual way of proving a larceny, first to call the prosecutor or other person, in whose possession the goods were at the time they were stolen, to prove when he last saw them in his possession, and when he missed them; then to call some person who can prove that they were

in the possession of the prisoner very shortly after they were stolen; and lastly, to call some person to indentify and prove the property in the goods. This is deemed good prima facie evidence of the larceny, and has the effect of throwing the onus upon the prisoner, of proving that he honestly came by them. The presumption also may be very much strengthened by proof of any circumstances of suspicion in the conduct of the defendant, with relation to the goods in question: such as his selling them at an undervalue; his pawning them, or getting some other person to pawn them for him, in a feigned name; his denying their being or having been in his possession; his being near the place where, and about the time, they were stolen; or the like. The possession of the goods by the prisoner, however, must be proved to have been very recent after the felony committed. Where the goods were found in the prisoner's possession sixteen months after they were stolen, this was holden to be no evidence that he stole them. Anon. 2 Car. & P. 459. And in another case, where the stolen property was found in the prisoner's possession three months after they were stolen, J. Parke, J. ordered the prisoner to be acquitted, without putting him upon his defence. R. v. Adams, 3 Car. & P. 600. There may be cases in which, from circumstances, it may appear doubtful whether the possession of the goods by the prisoner does not prove, rather that he received them from another who stole them, than that he stole them himself: and the indictment should be drawn accordingly. However, the circumstances must amount to strong proof of the receiving, to be sufficient to rebut the presumption of the prisoner's being the person who stole the goods. Where goods stolen were shortly afterwards found concealed in an old engine-house, and the place being watched, the prisoners were observed to go there and take them away: the prisoners being indicted as receivers, there being no evidence of the goods having been stolen by any of them, Patteson, J. after remarking that this seemed to be evidence more of stealing than receiving, told the jury that if they were of opinion that the prisoners stole the goods, they must be acquitted on the present indictment; and the jury being of opinion that the prisoners stole them, they were accordingly acquitted. R. v. Dursley and others, 6 Car. & P. 399. So, in order to raise this presumption from the prisoner's possession of the goods, the previous possession of them by the prosecutor oi his bailee, or the loss of them, must be clearly proved. Where upon an indictment for horse stealing, the prosecutor proved that he put the horse to agist with a person at a distance; that hav ing heard from that person of the loss of the horse, he went to the field where it had been put to feed, and discovered it was gone; but the agister or his servant was not called, nor was any other evidence given of the loss of the horse: Gurney, B. held this to be insufficient, for it was consistent with all this that the

prisoners might have obtained the horse honestly from the agister, and not by felony. R. v. Yend and Haines, 6 Car. & P. 176.

It is only in the absence of direct evidence of the larceny, or where there is such evidence but it cannot prudently be depended upon, that the above mode of proving it by circumstantial evidence is resorted to. Where there is direct evidence, however, the larceny of course is proved by the persons who actually saw the prisoner commit it; and if there be at all a doubt whether their testimony will be believed by the jury, such part of the above circumstantial evidence may be given, as may be necessary to strengthen and confirm it. In treating of the direct evidence of larceny, it is necessary to consider what is a taking, a carrying away, and a felonious intent, within the definition of larceny.

1. As to the Taking The taking, in larceny, is either actual or constructive actual where the party actually takes the goods out of the possession of the owner or his bailee, invito domino, by force or by stealth, or the like, upon which it is not necessary to make any further observation. A constructive taking, is where the possession of the goods is obtained by some trick or artifice, or the like, with intent at the time to convert them to the party's own use, but which has not the effect of transferring any right of property in the goods from the owner to the party who has thus obtained possession of them; if a right of property pass, the offence is not larceny, but an obtaining of goods under false pretences. A few cases will sufficiently illustrate this. Davenport was indicted for larceny, in stealing two silver cream ewers from the prosecutor, a silversmith; he was formerly servant to a gentleman who dealt with the prosecutor; some time after he left this gentleman's service, he called at the prosecutor's shop, saying that his master (meaning the gentleman whose service he had left) wanted a silver cream ewer, desired the prosecutor to give it to him, and put it down to his master's account; the prosecutor gave him two ewers, in order that his master might select that which he liked best; the prisoner took both, sold them, and absconded: the prosecutor at the trial swore that he did not charge his customer with these cream ewers, nor did he intend to charge him with either, until he should have first ascertained which of them he would have chosen it was objected for the prisoner, that this amounted merely to the obtaining of goods under false pretences, and not to larceny; but Bayley, J. held, that as the prosecutor had parted with the possession only, and not the right of property, the offence was larceny; if indeed he had sent but one cream ewer, in execution of the pretended order, and had charged the customer with it, it would have been otherwise. R. v. Davenport, cor. Bayley, J. Newcastle Spring Assizes, 1826. In a case similarly circumstanced, but where the

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person in whose name the goods were obtained was not called as a witness, nor was there any evidence that she had not sent the prisoner for the goods: Patteson, J. held, that on that account the prisoner should be acquitted; for non constat but that the prisoner had been sent for the goods, as she had stated, and had delivered them to the person who sent her. R. v. Ann Savage, 5 Car. & P. 143. The substance of this last decision is, that the pretence by means of which the goods have been obtained, must be proved to be false, in larceny, in the same manner as upon an indictment for obtaining goods under false pretences. So, where it appeared that a servant of the prosecutor being sent to a fair with some oxen, to sell them for ready money, the prisoner bargained with him, and desired him to go to the inn and he would pay him for them; he went accordingly to the inn, but the prisoner never came; and upon his going back to the fair, he found that the oxen were gone; the prisoner had taken them, and sold some of them upon the trial of the prisoner as for larceny, these facts were proved, and the servant in his evidence said that he would not have delivered the oxen until he was paid; the jury being of opinion that the prisoner never meant to have paid for the oxen, found him guilty; and the judges afterwards held the conviction to be right. R. v. Gilbert, Ry. & M. 185. see R. v. Harvey, 1 Leach, 467. see also R. v. John Campbell, Ry. & M. 179. R. v. Pratt, Ry. & M. 250, S. P. and see 1 Arch. P. A. 272, 273. So, where the prisoner went to a shop and asked for change of half-a-crown, and the person attending gave him two shillings and six pennypieces; he then held out the half-crown, and the other just took hold of it by the edge, but never actually got it into his custody; the prisoner immediately ran away both with the halfcrown and the change: being indicted for stealing the two shilling and six pennies, Park, J. held that it was larceny, but said, that if he had been indicted for stealing the half-crown, he should have entertained great doubt whether the indictment would lie. R. v. Williams, 6 Car. & P. 390. see R. v. Coleman, 2 East, P. C. 672. R. v. Oliver, 4 Taunt. 274, cit. R. v. Aickles, 2 East, P. C. 675. On the other hand, where, upon an in. dictment for stealing in the house of a pawnbroker a diamond broach and other articles, it appeared that the prisoner called at the shop of the pawnbroker with duplicates of the broach, &c., mentioned in the indictment, which he had before then pawned there for £34, and desired to redeem them; he, at the same time, shewed the pawnbroker's shopman a parcel of loose diamonds which he wished to pawn, and the shopman agreed to lend £160 upon them; he sealed the parcel of diamonds in the shopman's presence, and gave him what he believed, at that time, to be the same parcel; the shopman then gave him the broach, &c. mentioned in the indictment, and the balance of the £160, after de