REG. v. WHITEHOUSE AND OTHERS. the police station, but did not say where. She said, "there is enough coming in to keep us." George Cooper, the husband of the last witness, proved that Caroline Whitehouse said that he need not be afraid about the 1852. money, her husband was a clerk at the police station, and received Conspiracy- his salary monthly, and therefore did not like to be troubled False pretences oftener. In consequence of this, credit was given, but was after-Indictment-wards discontinued; witness had not received any part of the Evidence. 17. 13s. 9d. Colonel Hogg, superintendent of police at Wolverhampton, proved that the defendant Joseph Whitehouse, was not in any situation in, or connected with, the police. A number of tradespeople were examined, comprising drapers, dressmakers, hosiers, ironmongers, brokers, &c. In the majority of these cases the goods appeared to have been ordered by the mother or daughter, and supplied in the usual manner on credit, and booked by the tradesmen until the end of the half year. The false statements of the defendants were in general made as reasons for asking to have goods supplied on credit. In some instances the credit had not expired when the defendants were apprehended by the police. The only instance in which Joseph Whitehouse had ordered goods, was on the 10th of March, 1851, when he ordered two loads of coal, which were delivered at the house in St. Mark's Place. Mrs. Whitehouse had previously asked the coaldealer's terms, and it was agreed that the payment was to be made quarterly. The coal supplied on the 10th of March the witness understood was to be paid for on the 25th. They were not paid for, and another load was ordered on the 12th of April. The witness trusted them because Mrs. Whitehouse mentioned the names of some relatives of known respectability. In the course of the evidence, Mr. Baron Platt observed, that the statements were only excuses for non-payment. Greaves, Q. C., submitted, that if the defendants went to a tradesman with an intention to obtain goods without paying for them, that it constituted an indictable offence. PLATT, B.-If that be so, half the world may be indicted; you have only to place them in the dock instead of in the Insolvent Court. Greaves.-Yes. If there is a conspiracy to obtain goods in that way. Henry Banks, an ironmonger at Wolverhampton, proved that Jane Whitehouse, on the 20th of March, ordered a kitchen fender, door mat, brushes and other articles, which were sent to St. Mark's Place. On the 31st of March she ordered a pair of brass candlesticks, a copper tea-kettle, an enamelled iron saucepan, a broom, and other articles, to the amount of 31. 8s. 8d. The amount was booked in the ordinary way. The shopman stated, that Mrs. Whitehouse had previously called on the 12th of March, and ordered a few things to be sent to St. Mark's Place, stating that they would be paid for in the middle of April. On these occa sions the mother would sometimes go into the shop leaving the daughter outside, and sometimes the daughter went in, leaving the mother outside; at other times they both went in together. REG. น. WHITEHOUSE AND OTHERS. 1852. Evidence. It was proved that Jane Whitehouse, on the 18th of April, pawned the pair of brass candlesticks purchased on the 31st of March, for three shillings, and Mrs. Whitehouse, about the 3rd Conspiracyof April, sold the enamelled saucepan to a broker, for eightpence, False pretences stating that she had bought it in Birmingham for one shilling and Indictmentninepence. Between the 3rd and the 10th, she and Jane brought various other articles, such as tubs, bowls, and tin candlesticks for sale, and Mrs. Whitehouse said she should have a good deal of furniture for sale in a few days, and invited the broker to come to St. Mark's Place and look at it. Evidence was adduced to show that no goods arrived at, or were lying at the carriers' offices, according to the statement of the mother to the various lodging-house keepers and other persons. The defendants were apprehended on the 19th of April, at the house in St. Mark's Place. The furniture and articles purchased a short before, were found packed up, with direction cards to Birmingham on them. Joseph Whitehouse was in the act of tying up a hamper. When taken to the police station, he asked permission to give his son, who was with him, a tobacco box, saying, "He smokes as well as I do." The constable said, "I smoke too; let me look at your tobacco." On opening the box it was found to contain six sovereigns, and a great number of pawn tickets, some of which were identified as having been given to the wife and daughter for the articles purchased and pawned by them. At the close of the case for the prosecution, M'Mahon objected that none of the counts charging a conspiracy to cheat, had been made out to the extent of a primâ facie case. There was nothing but an ordinary case of credit. The only case in which credit had been shown to have been obtained by means of a false statement, was that of Cooper the baker, where it was certainly said that credit was given on account of the representation by Mrs. Whitehouse, that her husband was a clerk in a police station. That case was covered by the 7th count for false pretences, and that count was ignored by the grand jury as to the husband and daughter. He wished to know on what part of the indictment the prosecution relied. PLATT, B. after referring to the indictment, enquired from the counsel for the prosecution, what evidence there was on the 1st and 2nd counts, charging the defendants with a conspiracy, to cause the husband to be reputed and believed to be a person of considerable property. The 3rd count is the only one, as it appears to me, I can submit to the jury. That alleges a conspiracy to obtain goods by false pretences. The falsity of those pretences must be shown. That has been done in one instance. I can never hold that if parties conspire to tell the truth, and obtain goods or money, they are liable to be indicted if the goods are not paid for. Greaves, Q. C., submitted there was evidence on each count. REG. v. WHITEHOUSE AND OTHERS. 1852. -Indictment The crime charged is a conspiracy to obtain goods with intent to defraud, not a charge of obtaining them by false pretences. The crime consists of two branches, the conspiracy, and the unlawful means. The Berkshire robbery case is in point. There the offence was the conspiring to induce persons to part with their money, by Conspiracy going in a body from house to house. So here, the question for False pretences the jury is, whether there was a conspiracy to obtain the goods without paying for them, no matter what the means used. The conspiracy must be in all cases inferred from the acts; but suppose the defendants had entered into an agreement in writing in these terms, "We hereby agree to cheat and defraud the housekeepers and tradesmen of Wolverhampton, by obtaining possession of rooms, houses, and goods without paying for them," would not that be indictable? If so, the existence of a conspiracy for that purpose might be proved in this as in other cases, by overt acts. Evidence. Hodgson on the same side, referred to Reg. v. Rowlands and others. (b) M'Mahon in reply.-The counsel for the prosecution are rather trying the question, whether these counts are good in arrest of judgment, than the point now before the court as to the evidence. There is no evidence of anything like a conspiracy apart from the overt acts. With regard to the 1st count, there is no evidence even of any overt act. So with regard to the 2nd count. There is not a tittle of evidence that either of the defendants represented the husband as a man of property. With reference to the 3rd and 4th counts, there was no fact from which a conspiracy could be inferred. The acts of each defendant were distinct, for the attempt to prove a conspiracy from the fact that a daughter remained outside looking in at the window. while the mother did the errands, was absurd. The 5th and 6th counts also failed on the same ground: there is no evidence to show a conspiracy. The 7th count was ignored as to two of the defendants, and the only case to go to the jury was on that count against Caroline. Mr. BARON PLATT said, he should leave the case to the jury on the 3rd and 4th counts, and also on the 7th count as against Caroline. In summing up the case he said, "The 1st count charges the defendants, that they, being persons in indigent circumstances, and intending to defraud tradesmen who should supply them with goods upon credit, conspired together to cause Joseph Whitehouse to be reputed a person of considerable property, and in opulent circumstances, for the purpose of cheating and defrauding the tradesmen of their goods, without paying for them. Now there certainly is no evidence of any conspiracy to represent Joseph Whitehouse as a person of considerable property. So with respect to the 2nd count. The conspiracy is there laid to be, to cause Joseph Whitehouse to be reputed and to be believed to be a person of considerable property, and fit to be trusted, and by means thereof, to cheat and defraud persons who should let (b) See ante, vol. v. p. 437. REG. v. WHITEHOUSE AND OTHERS. 1852. -Indictment him lodgings, of the amount of the hire of such lodgings. There is no evidence of such a conspiracy. It is the first time I ever heard of such a count. It is impossible it can be maintained. That is my opinion. The object of the defendants was to obtain occupation and possession of the lodgings, and to deprive the landlord of the use of the rooms, not to deprive him of the price; Conspiracythat was only incidental to their occupation. They had no object False pretences in depriving him of the profits of the room apart from their own Evidence. occupation of them. With regard to the 3rd count, that charges the defendants with conspiring, by subtle means and devices, and false pretences, to obtain goods from tradesmen without paying for them, with intent to defraud them. This is a general count. The 4th count is confined to a particular transaction, and alleges a conspiracy to obtain goods in that way from Mr. Banks, and defraud him in that way. In these counts, although in form alleging false pretences, it is not necessary to prove a false pretence in law; those are general words of act-like subtle means and devices. The 5th and 6th counts relate to the lodgings, and you will dismiss them from your minds, on the grounds I have already stated with reference to the 2nd count. The 7th count, relating to Cooper the baker, although preferred against all three, is only to be considered by you with reference to Caroline Whitehouse. The grand jury have thought that there is no ground for including the husband and daughter. This is an important fact. Still the act by Caroline as to Cooper, might be the result of a conspiracy among all three. Commenting upon the evidence, the learned judge said, there is undoubtedly a great deal of difficulty thrown on the defendants to meet the charges against them. That which had been adduced with reference to transactions at Birkenhead, two years ago, had been given up. It would throw the onus unfairly on the prisoners, and therefore it had been very properly abandoned. No evidence had been adduced, on the part of the prosecution, to contradict the statements of the defendants, that they had friends and relatives at Dudley, Tipton, and other places. The prosecution ought to do this. It is like the case of a prisoner who says, "I bought this article from so and so, at such a place." It is then the duty of the prosecutor to prove that such a statement is untrue; but otherwise, where the prisoner says "I picked it up in the street." So in this case, where statements are made that the husband has property sufficient to pay, that interest is received monthly, and so on, there the prosecution cannot disprove it. If true, it lies on the defendants to prove it. The only evidence against Joseph Whitehouse is that of packing up the goods, and his possession of the pawn tickets and attempt to get rid of them. With respect to the daughter, it would be for the jury to say how far she might be acting under the control of her father or mother, or both of them. The question finally left to the jury was, whether the defen REG. v. WHITEHOUSE 1852. dants agreed together for the purpose of obtaining goods without paying for them. The jury found all the defendants guilty on the 3rd and 4th counts, and Caroline guilty on the 7th count. Huddleston and M'Mahon then moved in arrest of judgment on the 3rd count, on the authority of the case of King v. The Conspiracy Queen, 13 L. J. (N.S.) 172, M. Č. (c) which decided that it False pretences was necessary to set out the names of the parties defrauded, or -Indictment-else to make excuse, or account in some way for not mentioning Evidence. them. The 3rd count in this case was very general, and did not set out any names, nor allege that the names were unknown to (c) In that case, the indictment alleged "that the defendants did unlawfully combine, conspire, coufederate, and agree together, to cheat and defraud certain liege subjects of our Lady the Queen, being tradesmen, of divers large quantities of their goods and chattels." The indictment then alleged, that one of the defendants afterwards "in pursuance of the said conspiracy," fraudulently ordered and obtained upon credit, from W. A. W. and other tradesmen, whose names were set out, and others to the jurors unknown, divers goods of great value, and in order that the said goods might be taken in execution and sold as thereinafter mentioned, caused the same to be delivered at the said defendant's house, and that no payment was made for them. The indictment then alleged that all the defendants, in further pursuance of the said conspiracy, did cause collusive judgments to be signed by the other defendants, against the defendant who obtained the goods, in actions also collusively commenced in respect of fictitious debts, and collusively sued out writs of execution, by virtue of which the said goods, so fraudulently obtained as aforesaid, were taken in execution and sold to satisfy the fictitious debts, and so by the means aforesaid, the defendants cheated and defrauded the said tradesmen (repeating their names) of the said goods, &c. It was held upon error (reversing the judgment of the court below) that the indictment was bad, because it contained a defective statement of the crime of conspiracy. The charge that the defendants conspired to cheat and defraud certain liege subjects, being tradesmen, was insufficient, because, if a conspiracy to cheat certain persons, those persons should be named, or if the intention of the conspirators was to cheat a class of persons, the particular individuals not then ascertained, but to be thereafter selected, the indictment ought to have alleged the object of the conspiracy accordingly. It was also held, that this defective statement was not cured by referring to the whole of the count, none of the overt acts being shown, by proper averments, to be indictable in themselves. And although the overt acts were averred to have been done in pursuance of the conspiracy before mentioned, it did not necessarily follow that because the goods were obtained in pursu ance of a conspiracy to cheat some persons, the conspiracy was to cheat the persons from whom the goods were obtained; and moreover, that even if the averment was to be taken as equivalent to one that the goods were obtained from the named individuals, in pursuance of an illegal conspiracy to cheat and defraud those named individuals of their goods, it would still be defective, as not containing a direct and positive averment that the defendants did conspire to cheat and defraud those persons, which an indictment for a conspiracy, when a conspiracy itself is the crime, ought certainly to contain; and that the same objection applied to the other acts. (d) In that case, in addition to the general count, the indictment contained special counts, charging the conspiracy to be falsely exhibiting an information against certain persons, for an infringement of a statute respecting post-horse duties, but those counts were held insufficient on other grounds. |