« PreviousContinue »
suance of a
But by g 25., " where any person shall be charged with and con- 9 G. 4. c. 31. victed of any of the following offences as misdemeanors ; that is to Assaults with say, of any assault with intent to commit felony; of any assault intent to comupon any peace officer or revenue officer in the due execution of saults on peace his duty, or upon any person acting in aid of such officer ; of any officers; or to assault upon any person with intent to resist or prevent the lawful prevent the arapprehension or detainer of the party so assaulting, or of any
rest of offen
ders ; or in purother person, for any offence for which he or they may be liable by law to be apprehended or detained ; or of any assault committed
conspiracy to in pursuance of any conspiracy to raise the rate of wages; in any raise wages; such case the court may sentence the offender to be imprisoned, punishable with or without hard labour, in the common gaol or house of with hard correction, for any term not exceeding two years, and may also (if it shall so think fit) fine the offender, and 'require him to find sureties for keeping the peace.”
By 7 & 8 G. 4. c. 28. § 8., “ Every person convicted of any 7 & 8 G. 4. felony pot punishable with death shall be punished in the manner prescribed by the statute or statutes specially relating to such lelonies not felony; and every person convicted of any felony for which capital punishno punishment hath been or hereafter may be specially provided, acts, if any, shall be deemed to be punishable under this act, and shall be liable, relating thereto; at the discretion of the court, to be transported beyond the seas otherwise, under for the term of seven years, or to be imprisoned for any term not this act. exceeding two years, and, if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall so think fit, in addition to such imprisonment.
9.“ Where any person shall be convicted of any offence punish- The court may able under this act, for which imprisonment may be awarded, it order hard lashall be lawful for the court to sentence the offender to be impri- bour or solitary soned, or to be imprisoned and kept to bard labour, in the common gaol or house of correction, and also to direct that the offender sentence of imshall be kept in solitary confinement for the whole or any portion or prisonment. portions of such imprisonment, or of such imprisonment with hard labour, as to the court in its discretion shall seem meet.”
$ 10. “Wherever sentence shall be passed for felony on a person If a person already imprisoned under sentence for another crime, it shall be under sentence lawful for the court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to victed of felony, which such person shall have been previously sentenced; and where the court may such person shall be already under sentence either of imprisonment pass a second or of transportation, the court, if empowered to pass sentence of sentence, to transportation, may award such sentence for the subsequent offence, commence after to commence at the expiration of the imprisonment or transport- of the first. ation to which such person shall have been previously sentenced, although the aggregate term of imprisonment or transportation respectively may exceed the term for which either of those punishments could be otherwise awarded."
$11. “If any person shall be convicted of any felony not punish- Punishment for able with death, committed after a previous conviction for felony, a subsequent such person shall, on such subsequent conviction, be liable, at the felony. discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment; and in an indict
part of the
for another crime is con
ment for the
7 & 8 G. 4. ment for any such felony committed after a previous conviction
for felony, it shall be sufficient to state that the offender was at a Form of indict- certain time and place convicted of felony, without otherwise de.
scribing the previous felony; and a certificate containing the subsequent felony.
substance and effect only (omitting the formal part) of the indict
ment and conviction for the previous felony, purporting to be What shall be sufficient proof
signed by the clerk of the court, or other officer having the cusof the first tody of the records of the court where the offender was first conviction. convicted, or by the deputy of such clerk or officer, (for which
certificate a fee of six shillings and eight-pence, and no more, shall be demanded or taken,) shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first con
viction, without proof of the signature or official character of the Ultering false person appearing to have signed the same; and if any such clerk, certiticate of officer, or deputy, shall utter a false certificate of any indictment conviction.
and conviction for a previous felony, or if any person other than such clerk, officer, or deputy, shall sign any such certificate as such clerk, officer, or deputy, or shall utter any such certificate with a false or counterfeit signature thereto, every such offender shall be guilty of felony, and being lawfully convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not excceding two years, and, if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall so
think fit, in addition to such imprisonment." 1 W. 4. c. 70. By the 1 W. 4. c. 70. § 9. it is enacted, “ that upon all trials for Judgments may felonies or misdemeanors upon any record of the court of King's De pronounced Bench, judgment may be pronounced during the sittings or assizes at the assizes on indictments
by the judge before whom the verdict shall be taken, as well upon out of K. B. the person who shall have suffered judgment by default or conexcept in pro- fession, upon the same record, as upon those who shall be tried secutions by and convicted, whether such persons be present or not in court, information,
excepting only where the prosecution shall be by information filed by leave of the court of King's Bench, or such cases of informations filed by his majesty's attorney-general, wherein the attorneygeneral shall pray that the judgment may be postponed ; and the judgment so pronounced shall be indorsed upon the record of nisi prius, and afterwards entered upon the record in court, and shall be of the same force and effect as a judgment of the court, unless the court shall, within six days after the commencement of the ensuing term, grant a rule to shew cause why a new trial should not be had or the judgment amended ; and it shall be lawful for the judge before whom the trial shall be had, either to issue an immediate order or warrant for committing the defendant in execution, or to respite the execution of the judgment, upon such terms as he shall think fit, until the sixth day of the ensuing term; and in case imprisonment shall be part of the sentence, to order the period of imprisonment to commence on the day on which the
party shall be actually taken to and confined in prison.” Motion for Defendants having been convicted on an indictment for a conamending judg- spiracy, which had been removed by certiorari, and sentence of ment under
imprisonment passed upon them under the above act at the same 1W. 4. c. 70.
assizes at which they were tried, a motion was afterwards made in B. R., on the ordinary affidavits in mitigation, to amend the judg. ment by diminishing the punishment: The court refused the appli
cation, holding, that a motion of this kind ought to point out some essential defect in the sentence, or to shew some reason why they did not suggest the same matter in mitigation of punishment at the assizes. R.v. Lloyd and another, 4 B. & Ad. 135.
On conviction at the assizes for an unlawful assembly, upon an Affidavits in indictment which had been found at the sessions, and removed into mitigation of B. R., it having been proposed to put in affidavits in mitigation, sentence passed Patteson J. is stated to have said, that after the trial of a traverse
under 1 W. 4. on the crown side of the assizes, affidavits are never put in, and he conceived that it was the intention of this act to put these cases in the same situation as traverses; but adding, that under very special circumstances affidavits might be received after the trial of a traverse. R. v. Cox and others, Oxford Spring Ass., 1831. 4 C. & P. 538.
By 7 G. 4. c. 64. § 20., that the punishment of offenders may be 7 G. 4. c. 64. less frequently intercepted in consequence of technical niceties, it What defects is enacted, “ that no judgment upon any indictment or information shall not vitiate
an indictment for any felony or misdemeanor, whether after verdict or outlawry,
or information. or by confession, default, or otherwise, shall be stayed or reversed for want of the averment of any matter unnecessary to be proved, nor for the omission of the words. as appears by the record,' or of the words with force and arms, or of the words against the peace,' nor for the insertion of the words ' against the form of the statute,' instead of the words against the form of the statutes,' or vice versa, nor for that any person or persons mentioned in the indictment or information is or are designated by a name of office or other descriptive appellation instead of his, her, or their proper name or names, nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment or exhibiting the information, or on an impossible day, or on a day that never happened, nor for want of a proper or perfect venue, where the court shall appear by the indictment or information to have had jurisdiction over the offence.”
$ 21. “ No judgment after verdict upon any indictment or in- What shall not formation for any felony or misdemeanor shall be stayed or reversed be sufficient to for want of a similiter, nor by reason that the jury process has been stay or reverse awarded to a wrong officer
judgment after an insufficient suggestion, nor for upon
verdict. any misnomer or misdescription of the officer returning such process, or of any of the jurors, nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer ; and where the offence charged has been created by any statute, or subjected to a greater degree of punishment, or excluded from the benefit of clergy, by any statute, the indictment or information shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute.”
See tit. 3ndictment.
tion, or rather abuse, larceny. 3 Inst. 107.
[7 & 8 G. 4. c. 29.]
[7 G. 4. c. 64. — 7 & 8 G. 4. c. 28. — c. 29.]
[7 & 8 G. 4. c. 29.]
[7 & 8 G. 4. c. 29.]
[7 & 8 G. 4. c. 29.]
or from Vessels worecked, &c.
[7 & 8 G. 4. c. 29.]
[7 & 8 G. 4. c. 29.]
[7 & 8 G. 4. c. 29.-2 W. 4. c. 4.]
[7 & 8 G.4. c. 29.] X. Of offering for Pawn or Sale Goods suspected to have
[30 G. 2. c. 24.]
I. Df Larceny in general.
Larceny is defined by Bracton, L.3. de Corona. c. 32. fol. 130. 6. “ Fraudulenta contrectatio rei alienæ cum animo furandi, invito domino cujus res illa fuerit ; animo dico, quia sine animo furandi non
No distinction as to grand or petty larceny.
Definition of larceny.
committitur.” By Ld. Coke (3 Inst. 107.) it is defined, " a felonious and fraudulent taking and carrying away by any man or woman of the mere personal goods of another, neither from the person, nor by night, nor in the house of the owner.” It is of the essence of robbery or larceny that the goods be taken against the will of the owner.” Fost. 123.
Larceny is a felonious and fraudulent taking and carrying away, by any person, of the mere personal goods of another: And has been well defined to be the wrongful taking of goods with intent to spoil the owner of them causâ lucri. 1 Haw. C. 33. § 1.
The true meaning of larceny is, “ The felonious taking the property of another without his consent, and against his will, with intent to convert it to the use of the taker." Per Grose J. in delivering the opinion of the judges in Hammond's case, 0.B. May Sess. 1812, 2 Leach, 1089.
It appears, however, from the following cases, that a larceny may Lucri causa. be committed, not strictly falling under the above definition, and that lucri causú may perhaps be construed to mean “ for any object or purpose which the person taking the property may have in view, though not falling within the ordinary acceptation of the
The prisoner and another broke open a stable of prosecutor's, Taking away a took out his horse, and led it along the road about a mile, till they ing it for the came to an old coal-pit, into which they backed it, and thereby
purpose of killed it; the object being, that the horse should not be forth- stifing evidcoming at the trial of one Howarth, who was under charge for ence. stealing it. The case being reserved, six of the judges held it not to be essential that the taking should be lucri causâ; they thought a taking fraudulently, with an intent wholly to deprive the owner of the property, sufficient: but some of the six learned judges thought, that in this case, the object of protecting Howarth by the destruction of the animal, might be deemed a benefit, or lucri causa: five judges thought the conviction wrong. R. v. Cabbage, C. C. R. 292.
In an old case, where the prisoner assaulted B. with a felonious intent, and searched his pockets for money, but finding none, pulled off the bridle of B.'s horse, and threw that and some bread, which B. had in pannels, about the highway, but did not take any thing from B., held to be no robbery; and semb., because the particular goods were not taken with a felonious intent. 2 East, P.C. c. 16. $ 98. p. 662.
Richard Morfit and Morris Conway were tried before Abbott J. Clandestinely at Maidstone Lent Assizes 1816, upon an indictment for feloni- taking a masously stealing two bushels of beans, value five shillings, the goods though to give of john Wimble. Upon the trial it was proved, that the prisoners the master's were servants in husbandry to Mr. Wimble, and had the care of horses, is larone of the teams; that Mr. Wimble's bailiff was in the habit of de- ceny; espelivering out to the prisoners, at stated periods, from a granary be- cially if by so longing to him, and of which his bailiff kept the key, such quan. the servant's tities of beans as Mr. Wimble thought fit to allow for the horses of labour is likely this team; the beans were to be split, and then given by the pri- to be diminishsoners to the horses ; that the granary door was opened by means ed. of a false key procured for the purpose, which was afterwards found hid in the stable; and that about two bushels of beans were taken away on the day after an allowance had been delivered out