was employed in the Post Office, and his duty was to open the bags brought to the particular table at which he was placed, take out the letters, and separate them. The Scarborough bag, which contained amongst others the two letters described in the indictment, was brought to his table. He opened it, took out all the letters, and put them on the table before him. Twenty or thirty bags were opened on the same table by the prisoner at the same time, and the letter bills of the several bags were by him spread before him on the table. It then became his duty to separate the registered letters and unpaid letters from the unregistered paid letters, fold the registered letters in the bills, and place them in a drawer. In the course of this separation he put two of the unregistered letters on one of the letter bills, and some of the registered letters in their respective bills in the drawer, from which he afterwards gave them to the register clerk to check the bills containing them. He afterwards put the rest of the registered letters in the drawer, and carried them when collected to the register clerk. When he had done so, he returned towards his table and went to a water-closet; he was observed to hold in his hand what appeared to be a bill folded over letters, was followed, and after he had placed himself with his breeches down on the seat of the water-closet was observed to put his hands between his legs. He was immediately taken into custody. On his coming from the water-closet, the two letters sealed and unopened lay on the paper contained in the pan. It appeared in evidence that, if through neglect the letters were not accurately sorted, the person guilty of such neglect was liable to be punished.

The jury found that the prisoner, having committed a mistake in the sorting of the letters in question, secreted them in the water-closet in order to avoid the supposed penalty attached to such mistake. Upon this verdict the judgment has been respited.

Ballantine, for the prisoner.-The indictment is framed under the 7 Will. 4. & 1 Vict. c. 36. s. 26(1). It is not set out in

(1) That section is, "That every person employed under the Post Office, who shall steal, or shall for any purpose whatever embezzle, secrete, or destroy a post letter shall be guilty of felony, and shall, at the discretion of the Court, either be

the case, but there were two counts, one for stealing the letters, and the other for secreting them. Still it is necessary that the facts proved should support a charge of stealing, for the word "secreting" must relate to acts ejusdem generis as the previous words "steal or embezzle." Then could the act here described amount to a larceny? It cannot now be contended that in every case a taking lucri causá is essential to constitute the offence of larceny-The Queen v. Jones (2), The Queen v. Privett (3). But in those cases there was a clear and distinct taking, an actual severance of the property from the master's possession. Here there was no original taking, no trespass against the owner. The prisoner was in possession of the letter lawfully, and at no time had any intention of converting it to his own use. If a servant has used his master's book without permission, and then from fear of being discovered destroys it, or throws it into the street, he could not be indicted for larceny. There could be no intention to take the entire dominion of the chattel.

[PARKE, B.-But how can there be any doubt that this was a "secreting" within the act? The words are, "for any purpose whatever."]

Some limitation must be put on the word "secrete."

[LORD DENMAN, C.J.-We must construe it with reference to the Post Office, and the trusts imposed upon the persons employed about letters.]

[ALDERSON, B.-It is clear that the prisoner did not intend to give back the letters. Under the 42 Geo. 3. c. 3. s. 81. the offence must have been committed "in expectation of gain or reward;" but that is not so now, although I think that to avoid detection is a gain.]

[PARKE, B.-It is like the case of the man who backed the horse into a coalpit to prevent its being used for purposes of evidence.]

"Secreting" is no word of art, and the purpose should be stated, that the Court may see that it was felonious.

transported beyond the seas for the term of seven years, or be imprisoned for any term not exceeding three years," &c.

(2) Den. C.C. 188.

(3) Ibid. 193; s. c. 2 Car. & K. 114.

[PARKE, B.-There is no question on the record reserved. The only question is, whether it is larceny?]

Here there was no conversion. It is like the case of the servant already put.

[ALDERSON, B.-Would not that be larceny? If the master seeks to obtain possession of the book, and his servant had got rid of it, that would surely be larceny ?]

Here there was no asportavit. It is not said he intended to destroy it.

[ALDERSON, B.-I understand the verdict to mean that he intended to make away with it.

Clarkson and Bodkin, contrà, were not called upon.

LORD DENMAN, C.J.-In the first place, I have no doubt that this was a secreting within the statute. No purpose is indeed stated, nor is it necessary. The act of parliament is clear. It applies to a particular class of persons, who are dealing with Post Office letters. They fill an important office, and their offences cannot be treated like those of ordinary thieves and embezzlers, but with reference to the duties imposed upon them for the protection of the property intrusted to them. The statute therefore says, that persons are not to secrete letters for any purpose whatever; and upon general principles therefore it is not necessary to state the purpose, as any purpose will do. A similar decision was given in the case of The Queen v. Douglas (4). It is then said. that no larceny was committed. We must look at all the circumstances of the case, as found before the jury. Now the prisoner dropped the letters in such a manner that in all human probability they would in another moment disappear for ever, for a purpose of his own. If it is necessary that they should have been taken lucri causa, we cannot help seeing that the jury thought he intended to withdraw them entirely from his master, his object being that they should not be found again; for so only did he hope to escape the penalty. As to the asportavit, that took place when he parted with the actual hold of the letters. PARKE, B., ALDERSON, B., COLERIDGE, J., and COLTMAN, J. concurred.

The first count of an indictment for murdering a child described the infant as an infant female child born of the body of S. W. and of tender years, to wit, of about the age of two days, and not named." The second count described her as the "said infant female child so born of the body of the said S. W. as aforesaid, and not named." The count then charged that the said S. W. assaulted the said infant female child, and threw her in and upon a heap of dust and ashes, and left her there exposed to the cold air, and that by reason of such exposure the death was occasioned:-Held, first, that the word "said," in the second count, did not incorporate the averment as to the age of the child in the first count; secondly, that as the indictment charged the death to have been caused by the wrongful act of the prisoner, and the jury had found her guilty, the omission to state the age was immaterial, for it must be taken after verdict that the child was unable to take care of itself, and that the prisoner's act caused its death, and the count therefore was good; thirdly, that the description of the child as 66 not named" was sufficient.

The following CASE was reserved by Rolfe, B. at the December Sessions of the Central Criminal Court, 1848.

The prisoner was indicted on a charge of murder. The first count of the indictment charged that the prisoner "in and upon a certain infant female child, born of the body

of her, the said Sarah Waters, and of tender age, to wit, of about the age of two days and not named," feloniously and of malice aforethought, did make an assault; and it then went on to charge that she caused the child to take poison, and so murdered her. The second count of the indictment was as follows:-" And the jurors aforesaid, upon their oath aforesaid, do further present that the said Sarah Waters afterwards, to wit, &c., in and upon the said infant female child, so born of the body of her, the said S. W. and not named as aforesaid, in the peace of God and our Lady the Queen then and there being, feloniously, wilfully, and of her malice aforethought, did make an assault, and that she, the said S. W, with both her hands, the said infant female child, in and upon a certain heap of dust and ashes there situate, and being in the open air, there feloniously and wilfully of her malice aforethought, did cast and throw. And that the said S. W. feloniously, wilfully, and of her malice aforethought, did then and there leave the said infant female child in and upon the said heap of dust and ashes, in the open air there as aforesaid exposed to the cold air for a long space of time, to wit, for the space of twelve hours, by reason of which said exposure to the cold air as aforesaid, the said infant female child became mortally chilled, benumbed, and frozen in her body, of which said exposure to the cold air, and of the mortal chilling, benumbing, and freezing in her body thereby occasioned, the said infant female child then and there died. And so the jurors aforesaid, upon their oaths aforesaid, do say that the said S. W. the said infant female child, in manner and form last aforesaid, feloniously, wilfully, and of her malice aforethought, did kill and murder, against the peace," &c.

The prisoner was also charged on the coroner's inquisition as follows:-"That Sarah Waters, late of &c., the said female infant from her body, by the providence of God, did bring forth alive, and that the said S. W, not having the fear of God before her eyes, &c., afterwards, to wit, &c. at, &c. in and upon the said female child so alive and in the peace of God and of our said Lady the Queen then and there being, feloniously, wilfully, and of her malice aforethought, did make an assault, and that

the said S. W, the said female child so being alive, then and there did take and carry to a certain dung-hole in a certain mews there situate, and the said female child so being alive then and there feloniously, wilfully, and of her malice aforethought, in the said dung-hole did hide, secrete and conceal, the said female child so being alive, and so being hidden, secreted, and concealed, she, the said S. W, then and there feloniously, wilfully, and of her malice aforethought, did desert and leave exposed to the inclemency of the weather, and the said female child so being alive, and so being hidden, secreted, and concealed, to nourish, sustain, and support, she, the said S. W, feloniously, wilfully, and of her malice aforethought, did then and there wholly neglect and refuse, by means of which said hiding, secreting, concealing, deserting, and leaving exposed to the inclemency of the weather of the said female child by the said S. W. and also by reason of the said neglect of the said S. W. the said female child to nourish, sustain, and support, the said female child then and there instantly died. And so the jurors aforesaid, &c. do say that the said S. W. her, the said female child in manner and form, &c. feloniously, &c. did kill and murder, against the peace, &c.

At the trial, the jury found the prisoner guilty of manslaughter on the second count only of the indictment and also on the coroner's inquisition. A motion was made in arrest of judgment, on the ground that the second count of the indictment stated no crime; that, the age being laid under a videlicet, it was consistent with all that was stated in the count that the child might be of the age of twenty years, and capable of taking care of herself, and so able to have prevented the ill effects of the exposure, which was the sole cause of death alleged. Rolfe, B. thought the objection good; and did not think it safe to rely on the coroner's inquisition, because the name of the child was not there stated, nor any reason given for its omission; and even in the inquisition it seemed to him doubtfnl whether the statement that the child had not been named was sufficient to dispense with the statement of its name, for there was nothing to shew that it might not have acquired a name by reputation. [As to the necessity of stating the name see The Queen

v. Biss (1) and The Queen v. Stroud (2).] The learned Baron requested the opinion of the Judges whether either the second count of the indictment, or the coroner's inquisition, was sufficient to warrant a judgment of manslaughter.

Clerk appeared to support the conviction. -The first point is as to the name of the child.

[LORD DENMAN, C.J.-We have no doubt as to that being sufficient.]

[ALDERSON, B.-The difficulty is as to the age.]

The first count describes the child as of tender age, to wit, of about two days, and the second count refers to the first by the words 66 so born as aforesaid."

[PARKE, B.-That only imports that she was so born as aforesaid, and does not incorporate the description. "So being of tender age as aforesaid," should have been added.]

Then taking it to be described only as an infant child it is sufficient, because the cause of death is charged as an act done, which must be taken now to have been proved. The description in the inquisition is sufficient. The prisoner was a single woman, and the child was illegitimate, so that she would have no name-The Queen v. Willis (3). There is nothing to shew that the child had acquired any name, even if it cannot be taken to be illegitimate, because the case does not so state it. The allegation of the name being unknown, is therefore unnecessary.

[ALDERSON, B.-Is it clear that a legitimate child must have a name? It is only recently that the name of the father has been taken.]

Cur. adv. vult.

On a subsequent day (Jan. 30) the judgment of the Court (4) was delivered by

PARKE, B.-If the second count of the indictment had charged the prisoner with causing the death of the deceased by a mere nonfeasance, the neglect of her maternal duty towards her child, it would have been bad, because the indictment ought to have stated the child to be of such an age, or in

(1) 2 Moo. C.C. 93.

(2) Ibid. 270.

(3) 1 Car. & K. 722.

(4) Lord Denman, C.J., Parke, B., Alderson, B., Coleridge, J. and Coltman, J.

such a situation as to be unable to take care of itself. Supposing an averment that the child was of tender years would have imported such an inability, there is no averment in this count that the child was of tender years, for the reference in the commencement of it to the first count does not import that description; it contains no more than an averment that the child was an infant female born of the prisoner's body, and not named-See opinion of Mr. Justice Patteson in The Queen v. Martin (5). But this count charged the prisoner with a misfeasance, a wrongful act in assaulting the child, and casting and throwing her on a dust heap; and if the death of the child is traced to this act, the offence of manslaughter is complete. Is it then traced to this wrongful act? It is alleged that the prisoner having cast and thrown the deceased on the heap of dust, left her there, that is, permitted her to continue there, exposed to the cold air, by means of which exposure she was benumbed and died. The exposure, therefore, is charged against the prisoner; and the death is attributed to the exposure. It is not expressly averred in this case that the child was of such tender years, or so feeble that she could not walk away to take care of herself; but that is implied, for if she had been sufficiently old or strong to do so, the death would not have arisen from the exposure by the prisoner, but from the act of the child in not walking away, and taking care of herself. Thus it is established, that if in an action on the case, a neglect is charged against the defendant, by reason whereof the plaintiff had sustained damage, the question, whether the plaintiff could have avoided that damage by the exercise Guilty; and after verdict, it is presumed that of ordinary care is always open on Not the jury have found the fact of the neglect, and also found that the consequential damage was not caused by the want of ordinary care in the plaintiff-Bridge v. the Grand Junction Railway Company (6), Goldthorpe v. Hardman (7). In this case the jury could not have found the prisoner guilty without actually negativing the power of the child to take care of her

(5) 9 Car. & P. 217.

(6) 3 Mee. & W. 244.

(7) 13 Mee. & W. 377; s. c. 14 Law J. Rep. (N.S.) Exch. 61.

I

self, and escape the consequences of the unlawful act of the prisoner; and consequently, after verdict, that fact must be implied. think, therefore, that the count is good in this respect. A doubt occurred to the learned Judge, whether the description of the child as being “not named" was sufficient. 'Not baptized" would not have been enough; but" not named," which means that she had acquired no name, either by baptism or usage, appears to be quite sufficient. See The Queen v. Biss.

66

By 29 Car. 2. c. 7. a Justice is empowered, in case of a penalty not being paid, to levy it by distress of the offender's goods, or in default of distress to place him in the stocks for two hours, unless the penalty is sooner paid. The 11 & 12 Vict. c. 43. s. 18. enacts, that costs specified in convictions shall be recoverable in the same manner and under the same warrants as any penalty adjudged to be paid by such conviction is recoverable: -Held, that a conviction under the former act which adjudged the offender to pay 58. penalty, and 11s. costs, and if not paid to be levied by distress, and, in default of sufficient distress, adjudged him to be set in the stocks for two hours, unless the said several sums and all costs and charges of the distress be sooner paid, could not be supported.

A certiorari had issued to bring up a conviction, under 29 Car. 2. c. 7, by a Justice of the county of Oxford, whereby he convicted R. Barton of, &c., that he "being then and there above the age of fourteen years, and being then and there a dealer in fruit, did then and there do and exercise certain worldly labour, business and work of his ordinary calling of dealer in fruit aforesaid, upon the Lord's-day, to wit, &c., by then and there selling to one T. S. a certain quantity of fruit, to wit, &c., the same not being a work of necessity or charity, against the form of the statute, &c., and adjudged that the said R. Barton should pay

5s., to be applied according to law; and also should pay to the prosecutor 11s. for his costs; and if the said several sums be not paid forthwith, that the same be levied by distress and sale of the goods and chattels of the said R. Barton; and in default of sufficient distress adjudged the said R. Barton to be set publicly in the stocks in the said parish of, &c., by the space of two hours, unless the said several sums and all costs and charges of the said distress shall be sooner paid." The validity of the conviction was now argued upon a concilium, by

Gray, for the defendant.-There is no sufficient statement that the ordinary calling of the defendant was that of a dealer in fruit.

[COLERIDGE, J.-Surely "then and there being a dealer in fruit, did exercise his ordinary calling of dealer in fruit aforesaid" is enough.]

The

Then the Magistrate had no power to order the defendant to be put in the stocks till payment of the costs of the conviction and costs of distress. But section 18. of the 11 & 12 Vict. c. 43. will be relied on: that clause however only gives the same remedy for recovering costs as was before applicable to the recovery of the penalty. 29 Car. 2. c. 7. provides for the recovery of the penalty by distress, but allows the defaulter to be put in the stocks as a punishment, not as a mode of recovering the penalty. penalty. There might be a distress for the costs of the conviction, as well as for the penalty, but the punishment should be confined to the penalty only. But even supposing that the costs of the conviction can be enforced by putting the defendant into the stocks, there is nothing to authorize such a course to be taken on default of paying the costs of the distress. Section 19. is expressly confined to levying the costs of distress by a subsequent distress warrant ; or if there is no distress the party may be imprisoned under section 21.

Barstow, contrà.-The object of the 11 & 12 Vict. c. 43. was to put all costs precisely in the same situation as penalties, for all purposes of recovering or enforcing payment of them. The power of putting in the stocks, given by the 29 Car. 2. c. 7, is a means of enforcing the penalty, and is, therefore, now applied to the costs.

[WIGHTMAN, J.-Could the defendant get