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Full text of "Principles of the criminal law : A concise exposition of the nature of crime, the various offenses punishable by the English law, the law of criminal procedure, and the law of summary convictions. With table of offenses, their punishments and statutes ; tables of cases, statutes, &c."

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Cornell University Law Library 

The Moak Collection 

PURCHASED FOR 

The School of Law of Cornell University 

And Presented Pebr*i|ary 14, 1893 

IN nenoRiy op 

JUDGE DOUGLASS BOARDMAN 

FIRST DEAN OF THE SCHOOL 

By his Wife and Daughter 
A, M, BOARDMAN and EUl^EN D, WILLIAMS 



KD 7869?H3T ""'""■'"'y Library 
'"'iSM^'A&rSl^y!...^. cones 





Cornell University 
Library 



The original of tliis bool< is in 
tlie Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924021709815 



PEINCIPLES 



THE CEIMINAL LAW. 



A CONCISE EXPOSITION OF THE NATURE OP CRIME, 

THE VARIOUS OFFENCES PUNISHABLE BY THE ENGLISH LAW, 

THE LAW OP CRIMINAL PROCEDURE, 

AND THE LAW OF SUMMARY CONVICTIONS. 



TABLE OF OFFENCES, THEIR PUNISHMENTS AND STATUTES ; 
TABLES OF CASES, STATUTES, &o. 



BY 



SEYMOUE F. HABBIS. B.O.L., M.A. (Oxon.), 

BABKISTEK-AT-LAW OF THE INNER TEMPLE, AND OF THE 

NOKTHEBN CIHOUIT ; 

AUTHOR OF 'a CONCISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN.' 



LONDON : 

STEVENS AND HAYNES, 

BELL YARD, TEMPLE BAR. 
1877. 




PEINTED BY WILLIAM OLOWES AND SONS, 
8TA1IE0HD SIEEET AND CHAEIHa 0EOS8. 



PEE FACE. 



The appearance of a new work on tlie Criminal Law may 
demand a few words of explanation. Many treatises dealing 
with this subject are already in existence. Why another ? 
A mere enumeration of the modern standard authors will 
disclose the want of a manual which neither confines itself 
to the historical and philosophical view of the matter, nor 
descends into the minute particulars of the practice of the 
law. To mention those that are best known : — ' Eussell on 
Crimes ' is contained in three bulky volumes, and has little 
concern with criminal procedure. Archbold's and Eoscoe's 
Criminal Practice, entering into every detail, are designed 
for the reference of the practitioner, when points actually 
present themselves. The modern commentaries founded on 
those of Blackstone stray into historical disquisitions which 
are apt to envelop the existing law in obscurity ; and, be- 
sides, the Criminal Law is contained in one of four volumes. 
Sir James Fitzjames Stephen's 'Greneral View of Criminal 
Law ' does not profess to be an exposition of the offences 
and criminal procedure of our country : it has quite another 
object. 

It seems, then, that there is scope for a comparatively 
small treatise concerning itself with the nature of crimes, 
the various offences punished by the law, and the proceed- 
ings which are instituted to secure that punishment. Such 
a work is calculated to meet the requirements of the young 
practitioner, who, in the first instance, wants a general in- 
troduction to the subject. It is also designed for the use of 
students, especially those preparing for the final examination 
of the Incorporated Law Society. To such, as well as to 
the general reader, it is hoped that the present undertaking 
will commend itself. 

We have referred above to certain well-known works on 



VI PBEFAOE. 

Criminal Law. These, the reports, the older text-books, and 
other authorities haye been made to contribute information 
as the occasion required. Special acknowledgment is due, 
and is hereby rendered, to the ' General View ' of Sir James 
Fitzjames Stephen, from which frequent quotations have 
been made and matter borrowed, to an extent sufficient to 
lead to further perusal of that work. 

It is hoped that, while nothing useless and obsolete has 
been retained, there has not been any omission which will 
prevent the reader from obtaining a fair general view of the 
existing Criminal Law. 

S. F. H. 

Liverpool, Spring Assizes, 1877. 



An explanation must be given of the manner in which the 
punishments affixed to the various crimes are set forth in 
the body of the work. It was thought that much repetition 
might be avoided if attention were drawn to a few general 
rules. Only the maximum limit of penal servitude is noticed 
in the text, as, with very few exceptions which are specially 
pointed out, the minimum limit is five years. Where penal 
servitude may be awarded, almost without exception (any 
exception being mentioned), the court has the alternative of 
sentencing to imprisonment for a term not exceeding two 
years ; therefore such imprisonment has not generally been 
specified. The rules as to hard labour, whipping, and solitary 
confinement are adverted to in the chapter on Punishment. 
A reference to the Table of Ofi'ences at the end of the volume 
will clear up any difficulty which may arise. 



CONTENTS. 



. BOOK I. 

CHAP. 

Inthoductokt Chapter. Ceimb 
II. Divisions of Okimb . . . . 

III. Essentials of a Crime 

IV. Persons capable of committing Crimes 
V. Prdjcipals and Accessories . 



PAQB 

1 

7 
12 
19 
33 



BOOK II. 

PAET I. 

OFFENCES OP A PUBLIC NATURE. 

I. Offences against the Law of Nations ... 41 

Piracy ......... 41 

Offences as to Slaves ..... 44 

II. Offences against the Government and Sovereign . 45 

Treason 45 

Misprision of Treason 53 

Attempts to alarm or injtjre the Queen . . 53 

Trbason-Felont 54 

Sedition 55 

Unlawful Oaths and Societies .... 56 

Offences against the Foreign Enlistment Act . 58 



vm 



CONTENTS. 



Desertion, Mutiny, and inciting thbebto 

iLLBaAL TBAININa AND DkILLING . 

Unlawful Dealinos with Public Stoebs 
Offbnces by Members of thb Army and Navy 
Coinage Offences . 
Concealment of Treasure Trove 

III. Offences against Ebligion . 

Apostacy, Blasphemy . 
Disturbing Public Worship . 
Witchcraft, Sorcbky, &c. 

IV. Offences against Public Justice 

Escape ..... 

Breach of Prison 

Being at Large during Tebm of Penal Servitude 

Ebsoub ..... 

Obstructing lawful Arrest, &c. 

Perjury .... 

Subornation of Pbkjury 

Voluntary Oaths 

False Declarations 

Bribery .... 

Embracery, &c. 

Common Barratry 

Maintenance 

Champerty .... 

Compounding Offences . 

Misprision of Felony . 

Criminal Dealings with Eecords 

Extortion, &c. 

Contempt of Court 

V. Offences against the Public Peace 

Riot 

Affray .... 

Challenge to Fight 
Sending Threatening Letters 
Libel and Indictable Slander 
Forcible Entry and Detainer 



CONTENTS. 



IX 



CHAP. PAGE 

VI. Offences against Ptjblio Tkade ..... 113 

Smuggling 113 

Offences against the Bankrupt Lavs . . .115 
Counterfeiting Tbadb-Mabks ... . . 118 
Unlawful Inteeferencb with Tbadb by Combina- 
tions, &c 119 

VII. CONSPIBACT 123 

VIII. Offences against Public Morals, Health, and Good 

Order 127 

Bigamy 127 

Indecent Conduct ...... 129 

Gaming and Gaming Houses .... 129 

Common or Public Nuisances .... 131 

Adulteration and Unwholesome Provisions . . 135 

Wanton and Furious Driving .... 135 

Vagrancy ........ 136 

Sending Unseawoethy Ship to Sea . . . 138 

IX. Offences relating to Game 140 



PAET II. 

OFFENCES AGAINST INDIVIDUALS. 
THEIR PEESONS. 



Introduction ....... 


145 


I. Homicide ........ 


147 


Suicide or Self-Murdbr " . 


153 


Murder ... ... 


155 


Manslaughter .... 


160 


(Appendix) 


167 


II. Bapb, &c 


170 


Rape 


170 


Carnally Abusing Children 


172 


Unnatural Crimes 


172 


Attempts to procure Abortion 


173 


Concealment of Birth ..... 


174 


Abduction ....... 


174 


Child Stealing, Abandoning, &c. . 


176 



CONTENTS. 



CHAP. 

III. Assaults, &o. ...... 

Common Assault 

Actual and Geievous Bodily Harm 
Assault with Intent to commit a Felony 
Attempt to Choke, &c., with Intent, &c. 
Administeking Poison, &c. ... 

Explosive oe Cobbosive Substances 
ENDANGBEraa Safety of Railway Passbngebs 
Assaults, &c., connected with Webcks 
PoBciNG Seamen on Shobe 
Assaults on Officbes .... 

*ssaults on Othbbs in the Execution of 
Duty ...... 

Assaults on those in a Dbfencbless Position 
False Impeisonmbnt .... 



PAGE 

177 
177 
179 
181 
181 
181 
182 
183 
183 
184 
184 

184 
185 
186 



PAET ni. 

OFFENCES AGAINST INDIVIDUALS. 

THEIE PROPERTY. 

I. Laecent ......... 187 

Compound or Aggeavatbd Labcbny . . . 207 

Laecbny, &o., js eelation to the Post Office . 214 

Receiving Stolen Goods ..... 216 

II. Embezzlement ........ 221 

III. False Pbetbncbs ........ 230 

False Pebsonation 234 

Cheating 236 

iv. bueglaey, &0. ........ 238 

housebebaking ....... 244 

(Recapitulation) ........ 246 

y. foegeby 249 

Fbauds against Land Teansfeb, &c., Acts . . 259 

VI. Injueibs TO Peopbbty 261 

Aeson ......... 261 

Malicious Injuby 266 



CONTENTS. 



XI 



BOOK III. 

CRIMINAL PEOOEDUKE. 

CHAP. 

I. Prevention op Offences .... 
II. Courts of a Criminal Jurisdiction 

The High Court op Parliament . 

Court of the Lord High Steward 

Queen's Bench Division op the High Court 

Assizes 

Central Criminal Court 

Quarter Sessions 

Court op the Coroner . 

University Courts in Oxford and Cambridge 
(Sketch op a Criminal Trial) 

III. Arrest .... 

IV. Proceedings before the Magistrate 
V. Modes op Prosecution 

VI. Place op Trial 
VII. The Grand Jury 
VIII. Process 
IX. Certiorari 
X. Time op Trial, &o. 

Arraignment 

Confession 

XI. Pleas 
XII. Demurrer . 

XIII. The Petty Jury 

XIV. The Hearing 

(Appendix) 

XV. The Witnesses 

Credibility of Witnesses 
Number op Witnesses 

XVI, The Examination op Witnesses 
XVII. Evidence .... 

Circumstantial and Presumptive Evidence 
Written Evidence .... 



xu 


CONTENTS. 




CHAP. 




PAGE 


xvin. 


Vbkdict . . ..... 


424 


XIX. 


Jddqmbnt ........ 


429 


XX. 


Incidents of Trial 


431 


XXI. 


Punishment ....... 


435 


XXII. 


Pboceedisgs after Trial 


447 




New Trial ...... 


447 






448 




Court for Grown Cases Eeservbd 


450 


XXIII. 


Reprieve and Pardon ..... 


453 


XXIV. 


Execution 


457 




BOOK IV. 





SuMMABV Convictions .... 

Juvenile Oependbrs .... 
Proceedings upon Summary Conviction 



458 
465 
466 



ABBREVIATIONS 



Editions of Text-Books and Periods oompeised in Eeports. 



Addison 

A. &E. 
Arch. . 
Arch. Q. S. 

Austin 

Bac. Abr. 
Barn. K. B. 

B. & Aid. 
B. &C. 
Best, Ev. 
B. &S. 
Bing. . 
Bing. N. C. 
Bl. . 
Bl. W. 
Broom, C. L, 
Bull. N. P. 
Burn's 
Burr. . 

Camp. . 
0. &K. 
0. &M. 

0. &P. 
Chitty, Cr. 1 
Chitty, St. 

01. & Fin. 
0. B. . 
C. B. (N.S.) 
Comer's Cr. 
Cox . 
C. M. & R. 



. Addison on Torts, 1873. 

. Adolphus and Ellis's Reports, K. B., 1834-1841. 

. Archbold's Pleading and Evidence in Criminal Cases, 1875. 

. Archbold's Quarter Sessions, 1869. 

. Lectures on Jurisprudence, 1869. 

. Bacon's Abridgment. 

. Bamardiston's Reps., K. B., 1724-1734. 

. Barnewall and Alderson's Reps , K. B., 1818-1822. 

. Barnewall and Oresswell's Reps., K. B., 1823-1830. 

. Best on Evidence, 1870. 

. Best and Smith's Reps., Q. B., 1861-1870. 

. Bingham's Reps., C. P., 1822-1834. 

„ „ New Cases, 0. P., 1834-1840. 

. Blackstone's Commentaries. 

. Blackstone's (William) Reps., K. B., 1746-1749. 

. Broom's Common Law, 1875. 

. Buller's Nisi Prills. 

. Bum's Justice of the Peace, 1869. 

. Burrow's Reps., K. B., 1756-1772. 

. Campbell's Reps., Nisi Prius, 1807-1816. 

. Carrington's and Kirwin's Reps., N. P., 1843-1852. 

. Carrington and Marshman's Reps., N. P., 1842. 

. Carrington and Payne's Reps., N. P., 1823-1841. 

. Chitty's Criminal Law. 

. Chitty's Statutes, 1865. 

. Clark and Finnelly's Reps., H. of Lords, 1831-1846. 

. Common Bench Reps , 1845-1857. 

„ „ „ New Series, 1857-1865. 

Practice Comer's Crown Practice. 

. Cox's Criminal Cases, from 1843. 

. Crompton, Meeson, and Roscoe's Reps., Exch., 1834-1836. 



XIV 



ABBREVIATIONS. 



Dalton . . Dalton's Justice. 

Den. . . . Denison's Crown Cases, 1844. 

Dong. . . . Douglas Eeps., K. B., 1778-1785. 

D. & R. . . Dowling and Eyland's Eeps., K. B., 1822-1828. 

Dowl. P. C. . . Dowling's Practice Oases, K. B., 1830-1841. 

East . . . East's Eeps., K. B., 1801-1814. 

East, P. 0. . . East's Pleas of the Crown. 

Ell. & Bl. . . Ellis and Blackburn's Eeps., Q. B., 1851-1858. 

Esp. . . . Espinasse's Eeps., N. P., 1793-1807. 

Exch. . . . Exchequer Eeps., 1847-1857. 

Fitz. St. . . Stephen's General View of Criminal Law, 1863. 

Post. . . . Foster's Eeps., Crown Law, 1743-1 T61. 

F. & F. . . Foster and Finlason's Eeps., N. P., 1858-1865. 

Hale, P. C. . . Hale's Pleas of the Crown. 

Hal. Sum. . . Hale's Summary. 

Hawk. . . Hawkins' Pleas of the Crown. 

How. St. Tr. . Howell's State Trials. 

H. & C. . . Hurlstone and Coltman's Eeps., Exch., 1862-1867. 

Inst. . . . Coke's Institutes. 

Jur. . . . Jurist Reps , 1837-1854. 

Jur. (N.S.) . . „ „ New Series, 1855-1865. 

Kel. . . .Sir John Kelyng's Eeps., K. B., 1673-1706. 

L. J. . . . Law Journal Reps, in all the Courts, from 1831 

(thus, L. J. (Q.B.), Queen's Bench Reps. ; L. J. (M.O.), 
Magistrates' Cases). 

L. E. . . . Law Reps, in all the Courts, from 1865. 

L. T. (N.S.) . . Law Times Reps., New Series, from 1859. 

Leach . . . Leach's Crown Cases, 1730-1788. 

L. & C. . . Leigh and Care's Crown Cases, 1861-1865. 

Lew. CO.. . Lewin's Crown Cases, 1822-1833. 

Lord Raym. . . Lord Raymond's Reps., K. B., 1694-1734. 

M. & S. . . Maule and Selwyn's Reps., K. B., 1813-1817. 

May . . . May's Parliamentary Practice, 1874. 

Mood. CO.. . Moody's Crown Cases, 1824-1844. 

Moo. & M. . . Moody and Malkin's Reps., N. P., 1826-1830. 

M. & R. . . Moody and Robinson's Reps., N. P., 1830-1844. 

Oke, Mag. Form. . Oke's Magisterial Formulist, 1868. 

Oke, Mag. Syn. . „ „ Synopsis, 1868. 



ABEEEVIATIONS. 



XV 



Paley, Sum. Con. . Paley's Summary Convictions, 1861. 

Peake . . . Peake's Eeps., N. P., 1790-1812. 

Ph. Ev. . . Phillips' Evidence. 

Q. B. . . . Queen's Bench Reps. (Adolphus and Ellis), 1841-1852. 

Rose. . . . Roscoe's Evidence in Criminal Cases, 1874 

Euss. . . . Russell on Crimes, by Greaves, 186.5. 

R. & R. . . Russell and Ryan's Criminal Cases, 1799-1824 

Ry. & M. . . Ryan and Moody's Reps., N. P., 1823-1826. 

Sm. L. C. . . Smith's Leading Cases, 1875. 

Stark. N. P. C. . Starkie's Reps., N. P., 1815-1823. 

St. Tr. . . State Trials. 

St. Bl. . . . Stephen's Commentaries, 1874. 

Str. . . . Strange's Reps., K. B., 1716-1747. 

Tayl. Bv. . . Taylor's Evidence, 1872. 

T. E. . . . Term Reps. (Dumford and Bast), 1785-1800. 

T. Eaym. . . Sir Thomas Eaymond's Reps., K. B., 1660-1684. 



Willes 



. Willes Eeps., C. P., 1734-1758. 



TABLE OF CASES. 



PAGE 

ALLEN, R. V. (L. R. 1 0. C. R. 376 ; 41 L. J. (M.O.) 101) . 128 

Almond, E. v. (5 Burr. 2686) 110 

Arnold, E. v. (16 St. Tr. 764) 21 

Ashford v. Thornton (1 B. & Aid. 405) . . . 336, 369 

Ashman, E. v. (1 P. & P. 88) 180 

Astley, E. v. (2 Bast, P. 0. 729) 211 

(L. R. 1 C. C. R. 301 ; 40 L. J. (M.O.) 85) . 232 

Aston, R. V. (1 Russ. 407) 257 

Atkinson, R. v. (2 Mood. C. C. 278) 222 

Attorney-General v, Eadloff (10 Exch. 84) ... 4 

•V. Sillem (2 H. & 0. 526) ... 5 

Aveson v. Lord Kinnaird (6 Bast, 198) .... 414 

Aylett, R. v. (1 T. R. 69) 78 

BADGER, R. ■«. (12 L. J. (M.C.) 66) . , . .318 

Bailey, E. v. (12 Cox, 56) 222 

Barker, Omichund v. (Willes, 538) 390 

Barnard, E. ■;;. (7 0. & P. 784) 232 

Barronet, In re (22 L. J. (M.C.) 25) 317 

Barton, E. v. (3 Cox, 275) 23 

Beardmore, E. v. (7 0. & P. 497) 354 

Beezlen, E. v. (4 C. & P. 220) 401 

Bellingham, E. «. (Coll. 636) 22 

Berry, E. t;. (34 L. T. (N.S.) 590) 357 

Bertrand, E. v. (L. E. 1 Priv. Counc. 520) . . . .448 

Best, E. V. (9 C. & P. 368) 94 

Bird, E. v. (2 Den. 94, 98) 364 

Birmingham and Gloucester Ry. Co. v. R. (9 0. & P. 469 ; 

2Q. B. 47) 31 

Boulter, R. v. (21 L. J. (M.C.) 57 ; 5 Cox, 543) ... 82 

Bowden, E. v. (1 0, & K. 147) 246 

Boyce, R. v. (1 Mood. 0. C. 29) 180 

Boyes, B. ■». (30 L. J. (Q.B.) 301) 393 

Brawn, B. v. (1 C. & K. 144) 128 

Brice, E. «. (R. & E. 450) 242 

Briggs, E. V. (1 Mood. C. 0. 318) 180 

Brighton Aquarium Co., Terry v. (L. E. 10 Q. B. 306) . . 73 



XVlll 



TABLE OF CASES, 



(M.O. 



Bromage v. Prosser (4 B. & 0. 247) . 
Broom v. Eastern Counties Co. (6 Exch. 314) 
Brown, R. v. (0. & Mar. 314) . 

(17 L. J. (M.C.) 145) . 

Bryan, R. v. (26 L. J. (M.C.) 84) . 
Bull, R. V. (9 C. & P. 22) 

(2 Leach, 841) 

Bulmer, R. ■;;. (33 L. J. (M.C.) 171) . 
Burdett, B. v. (4 B. & Aid. 95) 

CABBAGE, R. v. (E. & R. 292) 
Castro, E. «. . 

V. Murray (32 L. T. (N.S.) 675) 

Cattell V. Ireson (27 L. J. (M.C.) 167) 

Chappie, R. v. (9 C. & P. 355) . 

Chinn v. Morris (2 0. & P. 361) 

Chorley, R. v. (12 Q. B. 515) . 

Clark, R. v. (1 Barn. K. B. 304) 

Cleaver v. Senande (1 Camp. 268, n.) 

Closs, R. •». (27 L. J. (M.C ) 54) 

Coal Consumers' Association, Rawlings v. (43 L. J. 

Codrington, R. v. (1 0. & P. 661) . 

CoUey, R. v. (Moo. & M. 329) . 

Collicott, R. V. (R. & R. 212) . 

Collins, R. V. (5 C. & P. 305) . 

(33 L. J. (M.C.) 177) . 

Commonwealth v. Magee (12 Cox, 549) 

Corporation of London, R. v. (27 L. J. (M.C.) 231) 

Crahb, E. V. (11 Cox, 85) 

Cross, R. V. (2 C. & P. 483) . 

Cruse, R. v. (8 C. & P. 541) . 

CuUum, R. V. (L. R. 2 C. C. E. 28 ; 42 L. J. (M.C.) 64) 

DADSON, R. V. (20 L. J. (M.C.) 57) 

Dammaree, R. v. (8 St. Tr. 218) 

Danby's Case (Lords' Journal, 1679) 

Dawson and Others, Trial of (13 How. St. Tr. 456) 

Deer, R. v. (32 L. J. (M.C.) 33) 

Delaney v. Jones (4 Esp. 191) . 

Denton B. v. (21 L. J. (M.C.) 207) . 

Dixon, R. V. (3 M. & Sel. 15) . 

Donnally, E. v. (2 East, P. C. 713) . 

Duffy, E. V. (2 Cox, 45) . 

Dugdale, E. v. (Corner's Cr. Prac. 167) 

Dunn, E. v. (1 Leach, 57) 

Dyson, E. v. (E. & E. 523) . 



)111) 



PAGE 

265 

31 

78 

358 

232 

150 

201 

233 

56 

205 

358 

449 

4 

37 
186 
448 
110 
108 
254 
432 
231 
401 
254 

52 
17, 204 
384 
433 
231 
133 

29 
223 

149 

49 
285 

42 

220 

108 

8 

15 
211 

56 
431 
254 
154 



TABLE OF CASES. 



XIX 



PAOB 

EASTERN COUNTIES Co. v. Broom (6 Exoh. 314) . . 31 

Eaton, E. v. (2 T. E. 89) 351 

Edmonson v. Stevenson (Bull. N. P. 8) . . . . 108 

Edwards, E. «. (4 T. E. 440) 317 

(3 Cox, 82) 401 

Bgglngton, E. v. (2 Leach, 913) . . . .197, 212 

Elsworth, E. V. (2 East, P. C. 986) 255 

Esop, E. V. (7 0. & P. 456) 28, 31 

Evans, E. v. (1 Euss. 426) 157 



PADBRMAN, E. v. (1 Den. 569 ; 3 C. & K. 353) 

Falkingham, R. v. (L. E. 1 C. C. E. 222 ; 39 L. J. (M.O.) 47) 

Earler, E. v. (8 0. & P. 106) . 

Ferguson, E. v. (24 L. J. (M.O.) 61) 

Fitzroy, Linford v. (18 L. J. (M.C.) 108) 

Flannagan, E. v. (E. & E. 187) 

Flower v. Shaw (2 C. & K. 703) 

Foster, E. v. (E. & E. 459) 

Frances, E. v. (4 Cox, 57) 

Francis, R. v. (L. E. 2 0. C. E. 128 ; 43 L. J. (M.O.) 97) 

Friend, R. v. (E. & R. 20) 

Frost, R. V. (9 C. & P. 129) . 



GARDEN, White v. (10 C. B. 927) 230 

Gardner, E. v. (1 0. & P. 479) 105 

Garside, E. v. (2 A. & E. 266) 351 

Gaylor, E. v. (7 Cox, 253) 35, 163 

Gibbons, E. v. (12 Cox, 237) 128 

Giles, R. ■y. (34 L. J. (M.C.) 50) 231 

Gill, R. V. (2 B. & Aid. 204) 124 

Goldsmith, R. v. (L. R. 2 0. C. R. 74 ; 42 L. J. (M.C.) 94) . 368 

Gordon, R. v. (Doug. 593) 48 

Graham, Solomon v. (5 Ell. & Bl. 320) . . . .349 

Greenwood, R. v. (21 L. J. (M.C.) 127) .... 38 

Griggs, R. V. (T. Raym. 1) 388 

Gutch, R. V. (Moo. & M. 433) ... . . Ill 



HANDLEY, E. v. (1 F. & F. 648) 
Hardy, R. v. (1 East, P. C. 60) 

-(24 How. St. Tr. 753) 

Harvey, R. v. (1 Leach, 467) . 
Hassell, R. v. (30 L. J. (M.C.) 175) 
Easting's Case 

Haynes, R. v. (1 F. & F. 666) . 
Hayward, E. v. (6 C. & P. 157) 
Hazleton, E. v. (L. E. 2 C. C. R. 134 
Heymann, v. R. (L. E. 8 Q. B, 102, 105) 



368 

176 

395 

. 330 

. 318 

. 240 

. 254 

. 79 

. 24 

233, 410 

. 157 

. 49 



. 176 

. 48 

390, 405 

. 198 

. 201 

. 284 

. 23 

. 161 

44 L. J. (M.C.) 11) . 232 

. 325, 368 

C 2 



XX 



TABLE OF CASES. 



Hibbert, E. ■;;. (L. E. 1 0. 0. E. 184; 38 L. J. (M.O.) 61) 
Hill, E. V. (B. & E. 190) 
Hodgkins, E. ■;;. (7 C. & P. 298) 
Hodgson, E. v. (3 0. & P. 422) 

(1 Leach, 6) . 

Holland, E. v. (2 M. & E. 351) 146^ 

Holman, E. v. (3 Jur. (N.S.) 722) 

Holmes, E. v. (L. E. 1 0. C. E. 334; 41 L. J. (M.O.) 12) 

Holt, E. V. (30 L. J. (M.C.) 11) 

Hornby, Weld v. (7 East, 199) 

Hughes, E. V. (1 Mood. C. C. 370) 

Hunt, E. V. (3 B. & Aid. 566) . 

Hurley, E. v. (2 M. & Eob. 473) 

I' ANSON V. Stuart (1 T. E. 748) 
Ion, E. V. (21 L. J. (M.O.) 166) 
Ireson, Oattell v. (27 L. J. (M.O.) 167) 

JACKSON, E. V. (3 Oamp. 370) 

(1 0. & K. 384) 

Jacobs, E. V. (1 Mood. 0; 0. 140) 
Jarrald, E. ■;;. (32 L. J. (M.O.) 258) 
Jenkins, E. •;;. (E. & E. 224) . 
Johnson, E. v. (2 East, P. 0. 488) 

, E. V. (3 M. & Sel. 566) 

Jones, E. v. (8 0. & P. 288) . 

(2 0. & K. 236) . 

(11 Cox, 544) 

, Delaney v. (4 Esp. 191) 

, Stanley v. (7 Bing. 369) 

, State V. (50 New Hamp. Eep. 369) 

Jordan, E. v. (9 0. & P. 118) . 

KBIE V. Leeman (6 Q. B. 308; 9 Q. B. 371) 
Keyn, E. v. (46 L. J. (M.O.) 17) 
Kinnaird, Aveson v. (6 East, 198) 
Knill, E. V. (5 B. & Aid. 929, n.) 
Knox, Miller v. (4 Bing. (N.O.) 574) 

LAKE, E. V. (11 Cox, 333) . 

Langmead, E. v (L. & 0. 427). 

Lapier, E. v. (1 Leach, 320) 

Leach, Money i.. (1 Bl. W. 555) 

Lee, E. v. (9 Oox, 304) . 

Leeman, Keir v. (6 Q. B. 308; 9 Q. B. 371) 

Lewis, E. V. (1 Str. 70) . 

Linford v. Pitzroy (18 L. J. (M.O.) 108) 



PARE 

176 
233 
405 
224 
152 
,157 
382 
171 
233 
133 
222 
410 
255 

108 

257 

4 

232 

224 

128 

243 

239 

241 

9 

224 

205 

163 

108 

91 

23 

382 

93 

341 

414 

82 

98 

235 
220 
212 
307 
231 
93 
79 
318 



TABLE OP OASES. 



XXI 



Lister, B. v. (26 L. J. (M.C.) 26) 
Lockett, E. V. (1 Leach, 94) . 
Long, E. V. (4 C. & P. 398), . 
Lovelass, E. v. (6 C. & P. 596) 
Lovett, R. V. (9 0. & P. 462) . 

MACDANIEL, E. v. (1 Leach, 45) 

(Post. 131) . 

(Fost. 121) . 

McGrath, E. v. (L. E. 1 C. 0. E. 205 ; 39 L 
McGrowther, E. v. (Fost. 13 ; 9 St, 



J.( 



Tr. 566) 
Macleod v. Wakeley (3 C. & P. 311) . 
McNaughlen, E. v. (10 01. & Fin. 200 ; 1 0. & K, 
Magee, Commonwealth v. (12 Cox, 549) 
Mahon, E. v. (4 A. & E. 575) . 
Manning, E. v. (2 C. & K. 903) 
Mansell, E. v. (27 L. J. (M.C.) 4) 
March, E. v. (1 C. & K. 496) . 
Marks, E. v. (3 East, 157) 
Martin, E. v. (5 0. & P. 130) . 

(E. & E. 108) . 

(L. E. 1 C. C. E. 378 ; 41 L. J. (M.C.) 113) 

Mead, E. v. (4 C. & P. 535) . 

(3 D. & E. 301) . 

Meadows, E. v. (2 Jur. (N.S.) 718) 

Middleton, R. v. (L. R. 2 C. C. E. 38 ; 42 L. J. (M.C.) 73) 

Miller v. Knox (4 Bing. N. 0. 574) 

Money v. Leach (1 Bl. W. 555) 

Moore, E. v. (3 C. & K. 319) . 

Morris, E. v. (9 C. & P. 349) . 

(E. & E. 270) 

Morris, Chinn v. (2 C. & P. 361) 
Mulcahy v. R. (L. E. 3 H. L. Ap. Ca. 306) 
Mullany, E. v. (34 L. J. (M.C.) Ill) 
Murray, Castro v. (32 L. T. (N.S.) 675) 



NASH, E. V. (21 L. J. (M.C.) 147) 
Negus, R. V. (L. R. 2 C. C. E. 34 ; 42 L. J. 
Neil, E. V. (2 C. & P. 485) 
Neville, E. v. (Peake, 91) 
Noakes, E. v. (4 P. & P. 921, n.) 
Norman, E. v. (C. & Mar. 501) 
Nott, E. V. (12 L. J. (M.C.; 143) 

OLIPIEE, E. V. (10 Cox, 402) 
Omichund v. Barker (Willes, 538) 
Osborn, E. v. (1 Barn. K. B. 138, 166) 



(M.C. 



M, 



.0.) 7) 
130) 



)62) 



PAGE 

224 
254 
163 
57 
356 

125 
155 
212 
200 

29 
107 

22 
384 
178 

29 
376 
177 

57 
157 
240 
432 
192 
352 
382 
•199 

98 
307 

26 
197 

29 
186 
124 

81 
449 

256 
222 
133 
133 
153 
224 
84 

175 
390 
107 



XXll 



TABLE OF CASES. 



PARTRIDGE, R. v. (7 0. & P. 551) 

Pater, ExpaHe (5 B. & S. 299) 

Patch, R. V. (1 Leach, 238) . 

Pateman, E. v. (R. & E. 455) . 

Pearoe, R. v. (Peake, 75) 

Pearson's Case (2 Lew. 0. 0. 144) . 

Pedley, E. v. (1 Leach, 327) . 

Pemhliton, E. v. (L. R. 2 0. 0. E. 119 ; 43 L. J. (M.O.) 91) , 

Pigott, R. V. (11 Cox, 45) 

Pike, State v. (49 New Hamp. Rep. 399) 

Price, R. V. (8 0. & P. 19) 

Prince, E. V. (L. R. 2 0. 0. R. 154 ; 44 L. J. (M.O.) 122) 

Pritchard, E. v. (7 0. & P. 303) 

Privett, R. v. (2 0. & K. 114) . 

Prosser, Bromage v. (4 B. & 0. 247) . 



EADLOPF, Attorney-General v. (10 Exch 

Eagg, E. V. (29 L. J. (M.O.) 86) 

Eawlings v. Coal Consumers' Association (43 

Eeed, R. v. (23 L. J. (M.C.) 25) 

Rhodes, R. v. (2 Lord Raym. 886) 

Rice, R. V. (3 Bast, 581) . 

Eidgway, R. v. (3 P. & P. 838) 

Riley, R. v. (22 L. J. (M.C.) 48) 

Eitson, R. V. (L. E. 1 C. C. E. 200 ; 39 L. 

Eoherts, E. v. (25 L. J. (M.C.) 17) 

Eobinson, R. v. (2 Burr. 799) . 

( 4 P. & F. 43) 

Eobinson, In re (23 L. J. (Q.B.) 286) 
Eobson, R. V. (R. & E. 413) . 
Rogers, E. v. (1 Leach, 89) 
Eourke, E. v. (E. & E. 386) . 
Rowland, E. v. (Ry. & M. 401) 
Eowton, E. V. (34 L. J. (M.O.) 57) 
Roxburgh, R. v. (12 Cox, 8) . 
Eudd, E. V. (1 Leach, 115) 
Russell, R. V. (C. & Mar. 541) 
(1 Mood. 0. C. 377) 

SAINSBURT, R. v. (4 T. E. 451) 
Salisbury, E. v. (5 C. & P. 155) 
Sansome, E. v. (19 L. J. (M.O.) 143) 
Savage, R. v. (5 C. & P. 143) . 
Scaife, E. v. (5 Jur. 700) 

(2 Den. 281) 

Scattergood v. Sylvester (15 Q. B. 506) 



84) . 

L.J. (M.C.) Ill) 



J. (M.O.) 10) 



PAGE 

220 

97 

200 

254 

410 

25 

80 

272 

55 

24 

30 

176 

357 

206 

265 

4 
231 
432 
. 188 
. 82 
. 104 
. 232 
. 200 
. 254 
. 17 
. 322 
. 217 
. 317 
. 200 
. 240 
. 245 
359, 388 
. 409 
. 178 
. 359 
. 265 
. 241 

. 95 

. 410 

. 415 

. 199 

. 317 

. 414 

. 434 



TABLE OF CASES. 



XXUl 



Sell, E. V. (9 0. & B. 346) 
Senande, Cleaver v. (1 Camp. 268, n.) 
Shaman, E. v. (23 L. J. (M.C.) 51) . 
Sharpe, E. v. (26 L. J. (M.C.) 47) . 
Shaw, Flower v. (2 0. & K. 703) 
Sherwood, E. v. (26 L. J. (M.C.) '81) 
Sillem, Attorney-General v. (2 H. & C. 
Smith, E. V. (1 Mood. C. C. 289) 

(E. & E. 267) 

(E. & E. 417) . 

■ (24 L. J. (M.O.) 135) 

(L. E. 1 0. 0. E. 266 ; 39 L. 

Smyth, E. v. (5 0. & P. 201) . 
Solomon v Graham (5 Ell. & Bl. 320) 
Spanner, E. v. (12 Cox, 155) . 
Spencer, E. v. (E. & E. 299) . 
Squire, E. v. (E. & E. 349) 
Stanley v. Jones (7 Bing. 369) 
Steadman, E. v. (Post. 292) 
Stevenson, E. -e. (2 Leach, 546) 

, Edmonson v. (Bull. N. P. 8) 

Steward, E. v. (2 Bast, P. C. 702) 
Stone, E. v. (4 C. & P. 379) . 
Stopford, E. V. (11 Cox, 643) . 
Stuart, I'Anson v. (1 T. E. 748) 
SuUivan, E. o. (11 Cox, 44) . 
Swindall, E. v. (2 C. & K. 230) 
Sylvester, Scattergood v. (15 Q. B. 506) 

TAYLOE, E. V. (1 P. & P. 511) 

Terry v. Brighton Aquarium Co. (L. E. 10 

Thomas, E. v. (Car. Sup. 295) . 

(7 C. & P. 817) . 

(33 L. J. (M.C.) 22) . 

Thompson, E. v. (1 Mood. C. C. 78) . 

(32 L. J. (M.C.) 53) 

(L. E. 1 C. C. E. 377 ; 41 

Thornton, Ashford v. (1 B. & Aid. 405) 
Thurbom, E. v. (11 L. J. (M.C.) 140; 2 C, 
Tite, E. V. (30 L. J. (M.C.) 142) 
Tivnan, In re (5 B. & S. 645) . 
Toakley, E. v. (10 Cox, 406) . 
Tolfree, E. v. (1 Mood. C. 0. 243) 
Topham, E. v. (4 T. E. 126) . 
Torpey, E. v. (12 Cox, 45) 
Townley, E. v. (L. E. 1 C. 0. E. 315 ; 41 L, 



FA&B 

. 358 
. 108 
. 253 

5 
. 254 

4 
626) ... 5 



. 223 

. 239 

. 217 

J. (M.C.) 112) . 216 

. 112 

. 349 

. 242 

. 222 

. 222 

. 91 

. 162 

. 432 

. 108 

. Sll 

. 92 

. 181 

. 108 
55,56 

. 163 

. 434 

. 17 

Q. B. 306) . . 73 

. 246 

. 26 

. 68 
203, 212 

. 202 

L. J. (M.C.) 112) 388 
336, 369 

& K. 831) . 203 

. 222 

. 42 

. 382 

. 203 

. 107 

. 30 

J. (M.C.) 144) 189, 193 



XXIV 



TABLE OF OASES. 



Trenfleld, E. v. (1 F. & P. 43) . 
Turner, E. v. (8 C. & P. 755) . 
(13 East, 228) . 

VAMPLEW, E. 0. (3 F. & F. 520) 
Vandercomb, E. v. (2 Leaoh, 708) 
Vane, E. i;. (Kel. 15) 
Vaughan, E. v. (4 Burr. 2494) . 
Vincent, E. v. (9 0. & P. 91) . 

WAKELBY, Macleod v. (3 0. & P. 311) 
Walker, E. v. (1 0. & P. 320) . 
Ward, E. v. (5 L. J. (K.B.) 221) 
Watkins, E. ■;;. (1 Leach, 520) . 
Watson, E. v. (2 Starkie N. P. 0. 128) 
Webb, E. V. (11 Cox, 133) . 
Weld V. Hornby (7 East, 199) 
Wenbom, E. v. (6 Jur. 267) . 
Westwood, E. v. (E. & E. 495) 
Wheatley, E. v. (2 Burr. 1125) 
White, E. V. (1 Burr. 333) 

(3 Oamp. 97) 

White V. Garden (10 0. B. 927) 
Wilkins, E. v. (1 Dowl. P. C. 536) 

(1 Leach, 520) . 

Wilkinson, E. v. (E. & E. 470) 
WilUams, E. v. (1 0. & K. 195) 

(8 0. & P. 286) 

(11 Oox, 684) . 

Williamson, E. v. (11 Cox, 328) 
Wolstenholme, E. v. (11 Cox, 313) 
Wood, B. V. (1 Mood. C. C. 278) 

(10 Cox, 573) 

Woodgate, Wright v. (2 C. M. & E. 573) 
Woodhall, E. V. (12 Cox. 240) . 
Wright, E. V. (2 F. & F. 320) . 

(B. & E. 456) . 

(27 L. J. (M.C.) 65) 

Wright V. Woodgate (2 C. M. & E. 573) 

YEWIN'S CASE (2 Camp. 638) . 
York's Case (Fost. 70) . 
Young v. E. (3 T. E. 105) 

ZULUETA, E. V. (1 C. & K. 215) . 



PAGE 

256 
174 
126 

156 

363 

48 

86 

100 

107 
163 
,133 
230 
403 
386 
133 
432 
240 
4 
132 
383 
230 
432 
200 
202 
212 
170 
174 
231 
224 
180 
378 
108 
214 
327 
404 
223 
108 

394 

27 

330 

44 



TABLE OF STATUTES. 



3Bdw. 1,0. 15 . . . 
23 Bdw. 1 {Stat, defromg 
1 Edw. 2, St. 2, c. 1 
25 Edw. 3, St. 5, o. 5 
5 Eich. 2, c. 8 . 
13 Hen. 4, c. 7 . 

28 Hen. 8, c. 15 . 
33 Hen. 8, c. 9, s. 11 
35 Hen. 8, c. 2, s. 1 
1 Edw. 6, 0. 1 . 
5 & 6 Edw. 6, c. 16, s. 2 
1 & 2 Mary, c. 10 
1 Eliz. c. 2 . 
8 Eliz. c. 2 . 
13 Eliz. 0. 5 . 
18 Eliz. c. 5 . 
27 Eliz. c. 4 . 
31Eliz. c. 5 . 

-,s.4 

4 Jac. 1, 0. 5 . 
21 Jac. 1, c. 7, s. 

,c. 8 

,0.15 

16 Car. 1, c. 21 

29 Car. 2, o. 7 
. (,_ 9 

31 Car. 2, a. 2 



,5 

^;s.7 

, s. 12 

1 Wm. & M. St. 2, 0. 

4 & 5 Wm. 3, 0. 18 

5 & 6 Wm. 3, 0. 11 
7&8 Wm. 3, o. 3 



2,4 



, s. 5 

; a. 11 

9 & 10 Wm. 3, 0.32(0.35) 

10 & 11 Wm. 3, 0. 17 

11 & 12 Wm. 3, c. 7, ss. 8 

12 & 13 Wm. 3, c. 2 



pris, 
46 



1-3 



FAOE 

317 

76 

76 

ii seq. 

112 

102 

42 

130 

341 

73 

86 

53 

73 

90 

237 

94 

237 

332 

337 

138 

138 

276 

112 

69 

73 

73 

317 

315 

319 

454 

317 

349 

353 

51 

52,395 

331 

286 

71 

134 

43 

454 



1 Anne, st. 2, c. 17, s. 3 

6 Anne, o. 7 . 

7 Anne, c. 21, s. 11 
9 Anne, o. 14 . 

1 Geo. 1, St. 2, 0. 5, ss. 1, 5, 8 
6 Geo. 1, c. 19 . 

8 Geo. 1, c. 24, s. 1 

11 Geo. 1, c. 4 . 

12 Geo. 1, 0. 29, s. 4 

2 Geo. 2, 0. 25, s. 2 
, c. 28 . 

9 Geo. 2, c. 5 . . 

11 Geo. 2, c. 19 . 

12 Geo. 2, c. 28 . 

13 Geo. 2, 0. 19 . 

16 Geo. 2, c. 31, s. 3 

18 Geo. 2, 0. 30 . 
,0.34 . 

19 Geo. 2, c. 21 . 

24 Geo. 2, c. 44 . 

25 Geo. 2, o. 37, s. 9 
6 Geo. 3, 0. 50, s. 61 
12 Geo. 3, 0. 20 . 
, 0. 24, s. 1 

17 Geo. 3, 0. 54, s. 26 
21 Geo. 3, c. 49 

25 Geo. 3, o. 18 

26 Geo. 3, c. S6 
32 Geo. 3, c. 48 
, c. 60 

36 Geo. 3, c. 7, s. 

37 Geo. 3, c. 70 



,s.2 
, c. 123, ss. 



1,2 



38 Geo. 3, c. 52 _ 

39 Geo. 3, o. 69, s. 1 
(,_ 79 

39 & 40 Geo. 3, c. 93 

, c. 94, s. 1 

, s. 2 

45 Geo. 3, c. 125 . . ; 



PAGE 

51 

51 

52 

130 

102, 148 

43 

43 

96 

90 

83,440 

43 

72 

459 

130 

130 

75 

43 

130 

72 

307 

77 

89 

356 

264 

472 

73 

288 

283 

288 

110 

51,54 

60 

337 

57 

338 

264 

58 

52, 377 

24, 426 

25, 357 
. 283 



XXVI 



TABLE OF STATtTTES. 



48 Geo. 3, 0. 58, s. 1 . . 

49 Geo. 3, c. 126, ss. 1, 3, 4 
5-1 Geo. 3, c. 100 . . . 
52 Geo. 3, o. 104, ss. 1, 2 

, c. 155, B. 12 . 

, c. 156 . . . 

54 Geo; 3, c. 146 . . . 

56 Geo. 3, c. 138, s. 2 . 

57 Geo. 3, c. 6, s. 1 . . 

. ,0.7 . . . 

0. 19 . 

59 Geo. 3^ o'. 46 '. '. '. 

-r-- , c. 69 . . . 

60 Geo. 3 & 1 Geo.4,c.l,ss 

_ : . , S 

1 Geo. '4, c. 67, s. 2 . 
1 &'2 Geo. 4, 0. 88, s. 
3 Geo. 4, c. 114 . . 
4Geo..4, c. 48, s. 1 . 

, c. 52, s. 1 . 

, c. 76, s. 21 . 

5 Geo. 4, c. 83 

, B. 

, s. 



,0.84 



,3 
.4 
.5 
.15 



,22 



, c. 113, ss. 9-11 

6Geo.4, 0. 50 . 

-, s. 1 

, ss. 20, 29 

, s, 42 

. — . , s. 62 

7 Geo, 4, c. 16, s. 38 

■ , 0. 64, s. 4 

, s. 9 

. , s. 12 

, s. 13 

. -, s. 14 

, s, 19 

— , s. 21 

= ■ — -, s. 22 

r , s. 23 

, ss. 24, 25 

, s. 27 . 

, ss. 28, 30 

7 & 8 Geo. 4, o. 28. s. 2 



,0.29 



s. 3 

S.4 
ss. 8, 9 
s. 10 



PAGE 

304, 347 
. 86 
. 338 
. 57 
. 72 
. 75 
. 52 
. 94 
. 51 
60, 337 
. 58 

336, 369 
. 58 



1,2 

7 . 



61 
. 331 
. 441 
. 77 
. 440 
. 430 
. 154 
. 129 
. 136 
. 136 
72, 137 
. 138 
. 137 
. 454 
76, 77, 340 
. 44 
370, 372 
342, 371 
. 377 
. 372 
. 52 
. 235 
. 335 
. 324 
338, 339 
. 340 
. 324 
. 362 
. 368 
. 397 
. 398 
. 397 
. 341 
. 312 
. 357 
. 377 
. 364 
436, 442 
437 

s. 11. 420, 436, 442 
s. 2 . . . 197 



7 & 8 Geo. 4, c. 53 



9 Geo. 4, c. 31, s. 2 

, s. 10 . 

,0.32 . . 

, c. 69, B. 1 . 

,s.2 . 

,s.4 . 

• , s. 9 . 

, s. 12 . 



-, s. 43 



140, 



11 Geo. 4 & 1 Wm. 4, c. 70, 

1 & 2 Wm. 4, c. 32 

2 Wm. 4, c. 34 . 

2 & 3 Wm. 4, c. 53, s. 49 

3 & 4 Wm. 4, c, 49 
' — , c. 82 

4 & 5 Wtd. 4, 0. 36 



, s. 22 



0.47 
c. 67 



5 & 6 Wm. 4, 0. 33 



6&7 



, e. 62, ss. 13, 18 

, c. 63 

, 0. 76 

' — -, s. 34 

■ , s. 103 

: — •—, ss. 105, 

, s. 121 

Wm. 4, c. 30, s. 2 . 



7Wm, 



,c. 85, ss. 38,39,41 
, 0. 86, B. 41 

, 0.111. . 

, 0. 114, ss. 3, 4 



4&1 Vict. 0.36 



, s. 25 
,8.26 
, ss. 27- 
, s. 30 
, s. 31 
, s. 32 
, s. 36 
, s. 37 
, s. 40 
, s. 41 
, s. 42 



141, 



PAGE 

458 

337 

45 

150 

255 

465 

. 141 

142, 331 

141, 297 

. 140 

35 294 

. 465 

. 63 

. 235 

. 391 

. 391 

. 292 

42, 288 

. 294 

. 76 

352, 353 

352 



84 

300 

236 

84 

299 

&c.. 298 

342, 371 

. 430 



129 
84 
. 411 
. 319 
. 214 
. 214 

214, 440 
■29. 215 

. 218 
. 215 
. 214 
. 215 

215, 338 
. 215 

215, 218 
440 



0.88,88.2,3 . 43 

0.90,8.5 . . 443 

• — — c. 91, s. 1 44, 57, 60, 

77 
1 & 2 Vict. 0. 38 136 

c. 45 318 

— c. 77 391 

c. 94, s. 19 . . . 95 



TABLE OF STATUTES. 



XXVU 



2 & 3 Viot. c. 82, s. 1 

3 & 4 Vict. o. 54, s. 3 

4 & 5 Vict. c. 36, ss. 16- 

5 & 6 Vict. c. 38 . . 
c. 51 . . 



21 



6 Vict. c. 18 . . 

, s. 81 

6 & 7 Vict. c. 34 . 

c. 85; 

0. 94 . . 

c. 96, s. 3 

, ss. 4, 5 



s. 1 



7 & 8 Vict. c. 2 

, s, 

0.29 



,7 
-,s.8 



c. 71 

8 & 9 Vict. c. 68, s. 
c. 109 



9 & 10 Vict. c. 24 



-, ss. 4, 
-, s. 17 



,s.4 

c. 33 . 

c. 95, s. Ill 

10 & 11 Viot. c. 82 



c. 89 

11 & 12 Vict. c. 12, 



0.42 



1 

3 

12 

14 



s. 1 

ss. 3, 4 
s. 6 . 
s. 7 . 

ss. l", 2 
s. 3 
s. 4 
ss. 8, 9 
s. 10 

S.11 

ss. 12-15 
s. 16 
s. 17 
s. 18 
s. 19 
s. 20 
s. 21 
s. 23 



PAGE 

. 341 
24, 426 
293 



295 

53 

52 

236 

84 

306 

386 

289 

112 

111 

56, 106 

. Ill 

111, 399 

288, 341 

. 42 

140, 465 

. 140 

. 298 

. 450 

. 130 

. 131 

129, 233 

. 435 

. 450 

. 58 

. 421 

. 465 

. 466 

364, 466 

434, 466 

. 398 

. 138 

. 51 

. 54 

. 50 

. 55 

304, 466 

. 304 

305, 346, 347 

. 306 

. 305 

. 306 

306, 347 

. 306 

. 313 

313,414 

314,415 

. 313 

314, 320 

. 314 

316, 318 



11 & 12 Vict. 0. 42, s. 25 
-, S.27 



43 



23, 24, 26 



-, s. 1 

-, s. 2 

-, s. 3 

-,s.7 

-, ss. 10, 11 . 

-, ss. 12-16 . 

-, ss. 18, 19, 21, 



FAGE 

. 315 
. 319 

. 466 

. 468 

467, 468 

. 468 

469 



-, s. 35 



0.44 . . 

c. 78, s. 1 . 

, s. 2 . 

, s. 3 . 

, s. 4 . 

, s. 5 



12 & 13 Vict, c. 45, s. 11 
0. 96 . . 

13 & 14 Vict. c. 21, ss. 7, 8 

c. 25 . . 

c. 37 . . 

, ss. 1, 2 

14&15 Viot. o. ]9, s. 11 

0. 55, ss. 2, 3 

, ss. 5, 8 

, s. 14 

, s. 18 

, ss. 19, 21, 23, 



24 



c. 99 



,13 
, s. 16 



467 
469 

471 
467 
466 
451 
452 
451 
452 
449 
473 
289 
419 
291 
465 
466 
310 
398 
312 
298 
306 



338 
. 95 
364,420 
. 80 
0. 100, s. 1 . . . 326 

, s. 9 17, 204, 425 

,s.l2 126,232,425 

, s. 19 . . 82 

•, s. 23 323, 325, 338 

, s. 24 . 196, 325, 

327, 362, 368 
■,B.25 326,368,449 



-, s. 27 
,29 



15 & 16 Vict. 0. 26 
c. 61 . , 

16 & 17 Vict. c. 30, s. 2 . 

. , s. 3 , 

, s. 4 , 

, s. 5 , 

, s. 7 , 

, s. 9 , 

— > 0. 32, s. 1 

. s. 4 



355 

129, 440 

. 472 

. 458 

. 278 

. 277 

287, 352 

287, 353 

. 353 

. 397 

. 450 

. 449 



XXVlll 



TABLE OF STATUTES. 



16 & 17 Vict. 0. 96, s. 9 . . 

c. 97, s. 123 . 

c. 99 . . . 

, s. 6 . . 

, ss. 9-11 



c. 107 



-, s. 198 
-, s. 209 
-, ss. 218-223 
-, ss. 232, 235 
-, s. 244 . . 
-, s 245 . . 
-, ss. 248-251 
-, s. 275 
-, s. 303 
-, s. 304 



c. 118 
c. 119 



17 & 18 Vict. 0. 38 



c. 102 



, s. 5 



-,s.2 
-, ss. 3-1 
-, s. 10 
-, s. 14 



c. 104, s. 206 . 
-, s. 207 . 
-, s. 520 . 



PAGE 

185 
185 
438 
439 
455 
113 
84 
113 
115 
113 
114 
408 
114 
. 339 
114, 331 
. 337 
. 306 
. 131 
130, 131 
. 387 
. 86 
. 87 
. 88 
. 297 
88, 331 
. 184 
184, 339 
. 339 
289, 341 
. 84 



18 & 19 Vict. c. 91, s. 21 

c. 96, s. 38 

c. 126 . 225, 462, 472 

, s. 1 196, 463, 471 



-, s. 2 . 
-, ss. 3, 4 
-, s. 8 . 
-, s. 11 . 

-, s. 12 . 
- s. 14 . 



19 Vict. c. 16 . . 

, ss. 1, 3 

c. 17, s. 18 . 

c. 54, s. 1 . 

20 & 21 Vict. c. 3 . 

, s. 2 

, s. 3 

; S. 5 

— c. 43, SS. 1, 



14 



c. 83 . 

c. 85, ss. 21, 25 

21 & 22,Vict.c.73, ss. 9-11 . 
c. 87 . . . 

22 Vict. c. 32 .... 
c. 33, s. 1 . . . 



463 
. 464 
434, 464 
. 464 
463, 464 
. . 398 
. . 288 
. . 353 
. . 299 
. . 343 
76, 438, 454 
. 436,439 
. 340,439 
. . 455 
2, 4, 5, 

473 
129 
324 
294 



454 
319 



22 & 23 Vict. c. 4 . 

, ss. 3, 

c. 17 . 

(._ 35 g_ 24 

23 & 24 Vict. c. 32, s. 2 
c. 75, s. 13 

0.66 

c. 94, ss. 1 

, s. 3 

,s.4 

, s. 7 

, s. 8 

9 



24 & 25 Vict. 



. s, 



95 



s. 1 
s. 2 
s. 3 
s. 4 
s. 5 
s. 6 
s. 7 
s. 8 
s. 9 

ss. 10, 11 
s. 12 

S.13. 



PAGE 

298 

298 

344 

191 

72 

185 

391 

36 

37 

38 

340 

38 

289 

430 

187 

192, 227, 239 

196 

201 

207 

206, 328, 329 

. 206 

. 437 

. 437 

437,462 

. 196 

142, 194, 

461, 462 

142,194 



ss.14,15 194,461 
s. 17.142, 194, 461 
ss. 18, 19 . 195, 
461, 462 



S.20. 

S.21. 

S.22. 

S.23 

S.24. 

S.26. 

SS. 27, 28 

S.29. 

s. 30. 

S.31. 

s. 32. 

S.33 

S.34. 
S.35. 



195, 462 

461,462 

195,461 

. 461 

195. 461 
. 195 
. 191 

192, 197 
95, 193 
. 190 

190, 196 
190, 196, 

461, 462 

461. 462 
461 



=.36.191,461,462 
S.37. . 461,462 
ss. 38, 39 . 190 

5.40. . 212,213 

5.41. . 214,425 

5.42. . . 213 

5.43. . . 212 



TABLE OF STATUTES. 



XXIX 



24 & 25 Vict. c. 96, 



ss. 44, 45 


. 104 


as. 46-48 


. 105 


S.50. . 


. 245 


S.51. . 


238, 242 


S.52. . 


. 243 


S.53. . 


. 239 


S.54. . 


. 243 


ss. 55, 56 


. 244 


S.57. . 


244,245 


S.58. . 


243, 443 


S.59. . 


. 243 


ss. 60, 61 


. 245 


ss. 62, 63 


. 209 


s.64. . 


209,338 


S.67. . 


. 207 


S.68. . 


. 225 


s.69. . 


. 210 


s. 70.210,223,338 


S.71. . 


224,328 


s. 72.206,224,425 


S.74. . 


. 207 


ss. 75-77 


226, 297 


ss. 78, 80 


227, 297 


ss. 81-84 


228, 297 


ss. 85, 86 


229, 297 


S.87. . 


. 297 


s. 88.230, 233, 426 


s. 90. . 


. 234 


s. 91 . 


37, 38, 




216, 218 


S.92. . 


219, 329 


S.93. . 


. 219 


S.94. . 


219, 425 


S.95. . 


. 218 


S.96. . 


. 340 


S.97. . 


218, 462 


S.100 . 


. 433 


8. 101 . 


93, 441 


s. 102 . 


. 93 


S.103 . 


308, 310 


s. 104 . 


. 309 


s. 108 . 


. 471 


s. 109 . 


. 454 


s. 110 . 


. 472 


8. 114 . 


207, 339 


s. 115 . 


289, 341 


8.116 . 


330,411, 




420, 427 


S.117 . 


280,440, 




444 


s. 118 . 


. 440 


S.119 . 


441, 443 


s. 121 . 


. 398 



c. 97 



261, 266 



24 & 25 Vict. 0. 97, 



c. 98 



17,18 



ss. 1-4 . 


PAGE 

261 


ss. 5-8 . 


262 


ss. 9-11. 


266 


ss. 12-15 


267 


ss. 16, 17 


262 


S.18. . 


263 


S.19. . 


272 


ss. 20, 21 


271 


ss. 22-24 271, 465 


8.25. . 269,465 


ss. 26, 27 


263 


S.28. . 


267 


S.29. . 


268 


SS. 30, 31 


269 


S.32 . 


270 


SS. 33-35 


269 


8.36. . 


270 


S.37 270,4 


27,465 


s.38. . 2 


(0,465 


S.39. . 


272 


S.40. . 


270 


8.41. . 2 


?1,465 


S.42. . 2 


33, 268 


8.43. . 


268 


8.44. . 2( 


54, 268 


ss. 45-49 


268 


8. 50. . 


104 


ss.51,52 2' 


72, 464 


s.54. . 


273 


8.57. . 


309 


s.58. . 2f 


)5, 273 


s.59. . 2( 


)6, 273 


8.60. . 2 


35,273 


S.61. . 


310 


s.66. . 


471 


8.67. . 


454 


8.68. . 


472 


S.70. . 


420 


8.72. . 2g 


9,341 


s. 73. 280, 4^ 


10,444 


8.74. . . 


440 


8.75. . 4^ 


1,443 


8.77. . 


398 


. 


249 


S.1 . . 6 


0,250 


8.2 . . . 


250 


8.3 . . . 


235 


ss.4^8 . . 


251 


ss. 9, 10 . . 


257 


s. 11 . . 


440 


S.12 . 2£ 


1,258 


88.13,14,16 




■ ■ ■ ■ 


258 


s. 19 . . 


259 



XXX 



TABLE OF STATUTES. 



24 & 25 Vict. c. 98. 



■ c. 99. 



■ 0. 100, 



ss. 20-23 


PAGE 

. 251 


s. 24 . 


251, n. 


as. 25, 26 


. 251 


s. 27 . 


95, 251 


ss. 28-31 


95, 252 


ss. 32, 33 


. 252 


s. 34 . 


. 236 


ss. 35-37 


. 252 


s. 38 . 


. 259 


s. 41 . 


. 338 


s. 44 . 


. 256 


s. 50 . 


289,341 


s. 51 . 280, 440, 




444 



s. 52 
s. 53 
s. 54 
S.2 . 
ss. 3-5 
SS. 6-10 
s. 11 
s. 12 
s. 13 
s. 14 . 
s. 15 . 
ss. 16, 17 
s. 18 . 
s. 19 . 
ss. 20, 21 
s. 22 . 
s. 23 . 
s. 24 . 
ss. 25-27 
s. 28 . 
ss. 29, 30 
s. 31 . 
s. 36 . 
s. 37 



64 



440 
443 
398 
64 
65 
C6 
67 
67, 437 
67 
66,68 
67 
65 
64 



s. 38 

s. 39 
s. 40 
s. 42 
s. 1 
s.2 
s. 4 
s. 5 
s. 7 
s. 9 
s. 10 
s. 11 



67 

64 

67 

1,408 

68 

339 

64 

310 

289, 341 

330,411, 

420 

280, 440, 

444 

. 440 

. 443 

. 398 

. 160 

. 430 

. 124 

164,440 

. 150 

. 341 

. 340 

17,166 



ss. 12-14 17,167 
S.15 17,155,167 



24 & 25 Vict. 0. 100. 



, c. 134, 

25 & 26 Vict. c. 18 

■■ c. 65 

^ — c. 67 



s. 16 . 
s. 17 . 
s. 18 . 
s. 20 . 
ss. 21, 22 
ss. 23-25 
s. 26 . 
8.27 . 
ss. 28-30 
s. 31 . 
ss. 32-34 
s. 35 . 
s. 36 . 
s. 37 . 
s. 38 



, 39, 40 , 
42, 43 , 



PAGE 

. 104 

. 184 
78, 180 

. 180 

. 181 

. 182 

. 185 

. 176 

. 182 

. 148 

. 183 

. 136 

. 185 

. 183 
78, 184 



s. 44 
s. 45 

s. 46 

s. 47 



■0.88 



122 
178, 
460 
179, 364, 
460, 471 
179, 364, 
460 
179, 461 
178, 179 
88.48,49,52 172 
ss. 53-55 . 175 
8. 56 . . 176 
8.57 . 128,338 
8S. 58, 59 . 173 
s. 60 . . 174 
s. 61 , . 172 
8. 62 . . 173 
s. 63 . . 171 
s. 66 . . 309 
8. 67 . 38, 160 
s. 68 . 289, 341 
s. 69 . . 440 
8. 70 . 441, 443 
8. 71 . 280, 440, 
444 
s. 77 . . 398 
8. 221 . . 440 
.... 442 
.... 293 
. . . 253, 259 
88.44,45,47 260 
. . . 118,253 



8s. 2, 3 . 

s. 4 . . 

8. 5 . 

-, ss. 14, 18 



• 0. 89, s. 166 

■ 0. 107 

■ c. 114 



118 
119 
118 
119 
229 
372 
140 



TABLE OF STATUTES. 



XXXI 



28 Viot. c. 



-, s. 6 . . 
-, ss. 4-10 



18, s. 2 . 
— , s. 3 . 

-^, ss. 4, 5 



Ties 

25 & 26 Vict. c. 114, s. 2 . 142, 465 

26Vict. c. 29 86 

, ss. 2, 4 . . . 88 

, s. 5 . . .88, 331 

-, s. 7 . . . .416 

26 «& 27 Viot. 0. 44 . 181,212,442 

c. 73, s. 14 . . 235 

c. 87, s. 9 . . . 229 

• 0. 103, s. 1 . 206, 471 

27 & 28 Vict. 0. 47, s. 2 38, 243, 330, 
436, 439 

. 309 

. 455 

381, 382 

. 404 

. 393 

. 394 

. 422 

255, 422 

. 234 

. 441 

. 75 

315, 441 

. 459 

. 251 

. 258 

. 398 

229 

63 

60 

264 

444 

445 

345 

345 

314, 320, 414 

. 319 

. 398 

. 421 

. 380 

433, 434 

. 346 

86,87 

. 3^1 



, B. 7 . 

■ , s. 8 . 

28 & 29 Vict. c. 124, ss. 8, 9 

c. 126, s. 19 

, s. 37 

-, sched. 1, 



■ c. 127 



29 & soviet, c. 25, s. 15 

, ss. 20, 2 



C.52 

c. 108, ss. 15- 

c. 109 . . 

, s. 10 

, s. 34 



17 



0. 117, s. 14 
c. 118 . 



30 & 31 Vict. c. 35 



,s.2 

, s. 3 

-,8.4 

, s. 5 

, s. 6 

, s. 8 

, s. 9 

, s: 10 

■ c. 102, s. 49 
c. 124, s. 11 
0. 131, s. 35 



235 
31 Vict. c. 24, s. 2 . . . ." 457 
31 & 32 Vict. c. 45, part 3, ss. 28, 
42, 43. 51, 52, 55 . . . . 195 

c. 110, s. 20 . . 216 

c. 116 . . . . 462 

'■ , s. 1 . 202, 216 

■ , s. 2 . 225, 398 

c. 119, s. 5 . . 229 

c. 125, ss. 43-47 86, 88 



32 & 33 Vict. 0. 49, s. 
c. 62 . 

s. 



c. 68 
0. 71 



c. 73. 



33 & 34 Vict. c. 14 
c. 23, s, 



11 
12 
13 
14 
16 
18 
20 
4. 
10 
86 
23 
5. 
1 



-, s, 



■ c. 58, s. 



, 3, 

■ 0. 65, s. 
■c. 76 . 
• c. 77 . 



2 
3 
4 
5 

i. 9, 18 
31 
3 
4 
6 
3 



. 259 
. 115 
. 115 
. 116 
. 117 
84,117 
. 117 

117, 345 
. 296 
. 390 
. 421 
. 118 
. 215 
379 
10, 53, 154, 

349, 445 
. 446 

399, 446 
. 446 



, s. 6 



s. 8, 9 
.10 
. 12 
. 20 
.23 



■0. 90 



21 



ss. 



c. 93, s. 

c. 98, s. 

34 & 35 Vict. c. 31, s. 

c. 32 . 

c. 78, s. 

c. 86 . 

c. 87 . 

c. 103, s, 

c. 108, s, 

0. 112 



4-11 . 

17, 18, 20 
11. 
18 
2 . 



10 



1.30 
7 



s. 3-5 
. 6 . 
. 7 . 
.8. 
3. 10, 11 
,12 
. 13 



445 
446 
. 53 
. 252 
. 235 
. 252 
. 93 
. 118 

370, 372 
. 379 
. 371 

371, 375 
. 371 
. 372 
. 378 
. 58 

59 

60 

324 

252, 259 

. 120 



. 120 

. 229 

. 86 

. 73 

. 371 

. 136 

. 280 

280, 455 

. 280 

. 281 

281, 443 

219, 281 

184, 281 

. 281 



XXXll 



TABLE OF STATUTES. 



34 & 35 Vict. c. 112, s. 16 

, s. 18 

, s. 19 



35 & 36 Vict. c. 33 



,3.20 



PAGE 

219, 281 
420, 427 
217, 281, 
410 
. 427 
84, 236 
. 252 
, 252 
. 287 
89, 236 
. 434 
. 220 
138 
36&37 Vict. C.38, s. 3~. .130,137 

c. 66, s. 11 . . 292 

, ss. 18, 19 . 450 

, ss. 29, 37 . 291 



, s. 3 . 

- c. 42, s. 12 

- 0. 52 . . 

- c. 60, s. 3 . 

- c. 93, s. 30 
, s. 38 

- c. 94, s. 12 



, s. 45 

, s. 47 

c. 71, s. 13 

0.88 



37 & 38 Vict. c. 36, ss. 1, 2 



450 

450-452 

. 270 

. 44 

. 235 



TAOS 

37 & 38 Vict. c. 36, s. 3 . . . 297 
c. 88, ss. 40, 46 . 84 

38 & 39 Vict. c. 24 . . . 225, 253 



27 



11 



0.25 



-,s.4 
-, ss. 5 



.7-11 
0.55 
c. 63, ss. 4, 5, 25, 



- c. 77, s. 8 

- c. 80 . 

- c. 86 . 
, s. 3 

, ss. 4, 



c. 87 



61,408 
61 
62 
132 



5, 7, 9, 



, ss, 99-101 



135 
291 
73 
120 
122 

121 
253 
259 



0. 88, s. 4 139, 387, 408 

c. 91 . . . . 253 

39 & 40 Vict. 0. 57 '. '. ". '. 289 



PEINCIPLES 



THE CRIMINAL LAW. 

BOOK I. 
INTEODUCTOEY CHAPTEE. 

CEIME. 

The term " erime " admits of description rather than Ciimo. 
definition. There are no certain and universal intrinsic 
qualities which at once stamp an act with the character 
of a crime. We term a flagitious act a crime rather on 
account of its consequences than from regard to any- 
such intrinsic characteristics. Thus, turning to one of 
the most satisfactory explanations of the term under 
consideration, we learn that it is " an act of disobe- 
dience to a law forbidden under pain of punish- 
ment" (a). 

The question at once presents itself. What are the Puuishments. 
distinguishing marks of " punishments ?" This will, 
perhaps, be seen most clearly by a contrast. Sanctions 
(that is, evils incurred by a person in consequence of 
disobedience to a command, and thus enforcing that 
command) fall under two heads : — 

1. Those which consist in the wrongdoer being 
obliged to indemnify the injured party, either in the 
way of damages or of specific performance. 

2. Some sufferings experienced by the wrongdoer. 

(a) Fitz, St. 1. 



A CBIME. 

In the first case the enforcement of the sanction is 
in the discretion of the injured party (or his repre- 
sentative), and its object is his advantage. 

In the second case the sanction is imposed for the 
public benefit, and is enforced or remitted at the dis- 
cretion of the sovereign body (&) as the representative 
of the public, such discretion being exercised according 
to law (c). 

Crimes and Here wc arrive at the true ground of distinction (or 

contlis'ted^''^ rather difference, inasmuch as the two terms do not 
exclude each other, and therefore cannot be distin- 
guished (ti)) between Crimes and Civil Injuries or Torts. 
The difference is not a difference between the tendencies 
of the two classes of wrongs, but a difference between 
the modes in which they are respectively pursued; 
that is, whether as in the first or second of the cases 
mentioned above (e). 

That there is nothing in the nature of a crime 
which, fer se, determines that a particular wrongful 
act should be necessarily relegated to the category of 
crime, two considerations will suffice to shew. First. 
In different countries and at different eras in the 
history of the same country the line between civU and 
criminal is, and has been, utterly different. For ex- 
ample, at Eome theft was regarded as a civil injury, 
for which pecuniary redress had to be made. And we 
have only to point back to the Anglo-Saxon system to 
illustrate the narrowness of the domain of criminal 



(6) Sometimes the exercise of this discretion is deputed to some member 
of the sovereign body — e.g., in England, to the king or queen. 

(c) Fitz. St. 4; Austin, 518. 

(d) " To ask whether an act is a crime or a tort is like asking whether 
a man is a husband or a brother." — Fitz. St. 7. 

(e) Austin, 417. A good description of crimes having in view the true 
ground of difference is given in Bishop, 1 Cr. L. § 43. " Those wrongs 
which the government notices as injurious to the public, and punishes in 
what is called a criminal proceeding, in its own name." 



CEIME. 3 

law in rude societies. The second consideration is, 
that the same wrongful act is regarded as a crime or a 
civil injury according as it is viewed and proceedings 
are taken with reference to the one or the other sanc- 
tion. In the English law the best examples of this 
are lihels and assaults. The same writings, or the 
same actions, may be made the subject of civil or of 
criminal proceedings. If A. write of B. that he is a 
swindler, B. may either indict A. for the crime, or 
bring an action against him for the civil injury (/). 

It may be well to interpose an explanation of the The same act 
courses open to the injured person when the same ttth^wn Ind 
wrong is both a crime and a civil injury. He has not criminal pro- 
always the power of choosing in which way he will "^^ '°^^' 
proceed. The rule is based on the distinction of crimes 
into felonies and misdemeanors (gi). In the case of 
felonies the crime must be prosecuted before civil 
redress can be sought from the wrongdoer. In mis- 
demeanors there is no such distinction ; either pro- 
ceeding may be taken first, or both may be pursued 
concurrently (h). 

Before leaving the subject of the difference between 
crimes and civil injuries two other false and groundless 
distinctions may be adverted to. Firstly. The dis- 
tinction does not consist in this, that the mischief of 
crimes (as a class) is more extensive than that of civil 
injuries (as a class) ; nor, secondly, in this, that the 
end of the sanction in the case of crimes is prevention, 
in the case of civil injuries redress to the injured 
party (i). 

How nearly the two classes are related, even when the 



(/) Austin, 417, 518. 
(ff) V. p. 8. 

(A) Addison on Torts, 31, 33. 
(i) Austin, 417, 520. 

B 2 



CEIME. 



act cannot be regarded as common to both, an example 
will serve to shew. A. knowingly, fraudulently, and 
with intent to deqeive B., sells him a quantity of beer 
short of the just measure. This was held to be only an 
inconvenience and injury to a private person, which 
might have been guarded against with due caution {h). 
But if the defect in the amount had been owing to 
a false vessel for measuring, A. would have been indict- 
able. So was S., who delivered a quantity of coals, to 
his knowledge weighing 14 cwt., — he falsely and fraudu- 
lently representing that the quantity he had delivered 
weighed 18 cwt., and thereby obtaining the price of 
18 cwt. (I). 



Proceedings, 
civil or 
criminal ? 



It is often of the utmost importance to determine 
whether a particular proceeding is a criminal or a civil 
proceeding. Thus, the evidence of the defendant may 
be required; and this is not allowed to be given in 
criminal, though of course it is in civil trials. The 
question arose on an information for the recovery of 
penalties for smuggling, under a particular statute (m). 
The true test is whether or not the infliction of punish- 
ment follows on the result being unfavourable to the 
defendant. If the end of the proceeding is that the 
defendant is required to pay a sum of money, the 
question will resolve itself into the form, whether the 
fine is a debt or a punishment (n). 



Morality and 
Crime. 



The moral nature of an act is an element of no value 
in determining whether it is criminal or not. On the 
one hand, an act may be grossly immoral, and yet it 
may not bring its agent within the pale of the criminal 
law — as in the case of adultery. "Human laws are 
made, not to punish sin, but to prevent crime and 



(K) S. V. Wheatlen, 2 Burr. 1125. 
(I) B. V. Sherwood, 26 L. J. (M.C.) 81. 
(m) Attorney-General v. Eadloff, 10 Exch. 84. 
(n) Cattell r. Ireson, 27 L. J. (M.C.) 167. 



CBIME. 



mischief" (o). On the other hand, an act perfectly 
innocent, from a moral point of view, may render the 
doer amenable to punishment as a criminal. To take 
an extreme example — W. was convicted on an indict- 
ment for a common nuisance, for erecting an embank- 
ment which, although it was in some degree a hindrance 
to navigation, was advantageous in a greater degree 
to the users of the port (p). Here the motive, if not 
praiseworthy, was at least innocent. The fact that the 
motive of the defendant was positively pious and laud- 
able has not prevented a conviction (q). 

This forces upon our notice a division of crimes into Mala in se 
mala in se and mala quia proMbita ; a distinction which ^gjin^ta. ^""' 
is of little practical importance in our English system, 
and which must necessarily vary with the standard of 
good and bad (r). There will always be some crimes 
which naturally take their place in the one class or the 
other — for example, no one will hesitate to say that 
murder is malum in se, or that the secret importation 
of articles liable to custom is merely malum quia 
prohibitum; but between these offences there are 
many acts which it is difficult to assign to their proper 
class. 



Some acts have been recognized as crimes in the Crimes at 
English Law from time immemorial, though their ™"by°tatute. 
punishment and incidents may have been affected by 
legislation. Thus murder and rape are crimes at 
common law. In other cases, acts have been pro- 
nounced crimes by particular statutes, which have also 
provided for their punishment — e.g., offences under the 
Bankruptcy Laws. 



(o) Attorney-General v. Sillem, 2 H. & C. 526. 
(p) R. <r. Ward, 5 L. J. (K.B.) 221. 
(?) B. y. Skarpe, 26 L. J. (M.C.) 47. 
(r) Austin, 590. 



CEIME. 



Division of the In treating of the Criminal Law, or the Pleas of 
su jeot. ^j^^ Crown (s), the subject naturally divides itself into 

two portions. The first, dealing with crimes generally, 
and the rarious individual crimes, their constituents, 
their differences, appropriate punishments, and other 
incidents, may be termed — The Law of Crimes. The 
second, dealing with the machinery by means of which 
these crimes are prevented, or, if committed, by means 
of which they meet with their punishment, may be 
termed — The Law of Criminal Procedure. 



(s) So called because the king is supposed by the law to be the person 
injured by every infraction of the public rights belonging to that com- 
munity, and is, therefore, in all cases the proper prosecutor for every 
public offence. 4 Bl. 2. 



( 7 ,) 



CHAPTER II. 

DIVISIONS OF CRIME. 

Crime. — Offence. — These terms are sometimes used Explanation of 
synonymously of the whole of illegal acts which entail l^^^'^s }^™^ 

•1 i-niPi 1 • '" Criminal 

punishment. Jbach of them, however, has sometimes a Law. 
narrower signification ; and in this sense they are op- 
posed to each other, and divide between them the whole 
field of acts which each in its wider sense covers. The 
latter use is that which confines the term " offence " 
to acts which are not indictable, but which are punished 
on summary conviction ; while " crime " is restricted 
to those which are the subjects of indictment. 

Indictable Crimes.- — All treasons, felonies, and mis- 
demeanors, misprisions of treason and felony {t), 
whether existing at common law or created by statute, 
are the subjects of indictment. So also are all attempts 
to commit any of these acts (m) ; and even an intention 
to commit high treason is indictable. Further, if a 
statute prohibits a matter of public grievance, or com- 
mands a matter of public convenience (such as the 
repairing of highways or the like), all acts or omissions 
contrary to the prohibition or command of the statute, 
being misdemeanors at common law, are punishable 
by indictment, if the statute does not manifestly seem 
to exclude this mode of proceeding {v). But it is other- 
wise if the rights which are regulated are merely 
private. If the statute on which the indictment is 



(0 V. p. 8. 

(m) v. p. 16. 

(») 2 Hawk. c. 25, s. 4. 



DIVISIONS OF CRIME. 



framed is repealed, no proceedings can be taken provided 
at least the prisoner has not pleaded (x). 



.. — In general this term signifies some 
neglect or contempt, especially when a person, with- 
out assenting thereto, knows of any treason or felony 
and conceals it {y). But it is also applied to every 
great misdemeanor which has no certain name given 
to it in the law ; for example, the maladministration of 
public officers. The former kind is sometimes termed 
negative, the latter positive misprision. 

The main classification of indictable crimes is three- 
fold — Treason, Felony, Misdemeanor — though "trea- 
son " is strictly included in the term " felony.'' 

Felony. — Misdemeanor. — It will be remembered that 
in contrasting crimes and civil injuries, we found that 
there were no intrinsic qualities the possession of 
which assigned an act to either class. In distinguish- 
ing felony from misdemeanor we shall also find that 
the difference is only one founded on the consequences 
of each. But the latter classification is exhaustive, 
and not a cross-division, as in the case of crimes and 
civil injuries, inasmuch as the same act cannot be both 
a felony and a misdemeanor. 

It is a popular idea, which to a certain extent the 
law has countenanced, that the distinction into felonies 
and misdemeanors is one founded on the degree of 
enormity of the crime. That this is not the case neces- 
sarily will be seen when we consider what offences 
belong to the one class and what to the other. No one 
will maintain that perjury, which is a misdemeanor, is 
of less gravity than simple larceny, which is a felony. 



(«) R. T. Denton, 21 L. J. (M.C.) 207. 
(y) V. pp. 53, 94. 



DIVISIONS OF CEIME. 

As a rule, however, the more serious crimes are 
felonies. 

What, then, is the origin and force of this distinction. Origin of 
a distinction attended with important consequences ? " ^^^"^y- 
To obtain an answer we must look back to the period 
of feudal law. The term "felony " is derived from two 
words (z), the one signifying a fief or feud, the other 
price or value. Thus the term was applied to those 
offences which resulted in the tenant's forfeiture of his 
land to the lord of the fee ; though primarily it signi- 
fied the penal consequences, i.e., the forfeiture, of these 
offences. By another slight deflexion the term was 
extended to offences which involved forfeiture of goods. 
Blackstone thus defines a felony to be "an offence 
which occasions a total forfeiture of either lands or 
goods, or both, at the common law; and to which 
capital or other punishment may be superadded accord- 
ing to the degree of guilt " (a). Capital punishment, 
associated in the popular mind with felony, was an 
usual, though not a necessary, incident. Petit-larceny 
was a felony, but not capitally punished; standing 
mute at a trial was punished with death, though not a 
felony. Though the ground of distinction into felony 
and misdemeanor was the consequence of the crime, 
of course originally there must have been some reason 
for attaching the graver consequences to one act and 
not to another. This was furnished by a consideration 
of the gravity and commonness of the offence, a con- 
sideration not attended to in later periods (6). 

It may be noticed that where a statute declares that 
an offender against its provisions shall be deemed to 
have feloniously committed the act, the offence is 
thereby made a felony (e). 



(z) Fee-Ion. For some conjectural derivations, v. 4 St. Bl. 7. 

(a) 4 Bl. 95. 

(6) Fitz. St. 57. 

(c) B. V. Johnson, 3 M. & Sel. 556. 



10 



DIVISIONS Olf CKIME. 



Abolition of 
forl'eitui'e. 



" Misdemeanor " is to be regarded as a negative 
expression; being applied to indictable crimes not 
falling within the class of felonies {d). In a wide and 
general sense, the term is also used synonymously with 
" crime." 

Kecently (1870) the legislature struck at the root of 
the distinction we have been treating of; but the 
terms " felony " and " misdemeanor," having become 
firmly attached to the various indictable offences, still 
remain. It was provided that no confession, verdict, 
inquest, conviction, or judgment of or for any treason, 
or felony, or felo de se shall cause any attainder or 
corruption of blood, or a,nj forfeiture or escheat (e). 

lacidents of In addition to the distinction as to forfeiture, which 

misdemoaDOT-s '^^ ^^'^^ j^^^ ^^^^ *'° ^® ^ thing of the past, there are 
contrasted. other poiuts, somo nominal, others real, which distin- 
guish felonies from misdemeanors : — 

i. As to arrest. — It will suffice here to state generally 
that an arrest is justifiable in certain cases of supposed 
felony, where it would not be in cases of supposed mis- 
' demeanor (/). 

ii. As to the trial. — Misdemeanors may be tried 
upon an indictment, inquisition, or information; felonies 
upon the first two only. 

The right of peremptory challenge is confined to 
those charged with felony. 



(d) "Their general name — misdemeanors — bad behaviour^happily de- 
scribes their general character. The principal offences included under this 
head are libel, conspiracy, and nuisance. The connection between them 
may not, at first sight, be apparent ; but a comparison of their definitions 
will shew that though, in some respects, they are dissimilar, the essence 
of all these offences is the same. . . . Each of these offences is based 
upon the notion of a normal state of repose and general order, which it is 
criminal to disturb either by writing, by any combination, or by any 
wilful act or omission." — Fitz. St. 145. 

^e) 33 k 34 Vict. c. 23, s. 1. 

(/) V. p. 308 ct soq. 



DIVISIONS OF CKIME. 

The legislature requires that certain terms of penal 
servitude should be inflicted on those convicted of 
felony after a previous conviction for felony, or for 
certain misdemeanors : whereas there is no such pro- 
vision with regard to misdemeanors committed after a 
previous conviction. 

On minor points there is also a difference, e.ff., the 
form of oath taken by the jury (<?) ; the mode of 
swearing the jury ; again, in misdemeanors the defen- 
dant is not given in charge to the jury (/(). 

iii. As to the civil remedy. — As we have seen («'), the 
felony raust be prosecuted before a civil action is com- 
menced with reference to the same act ; in misde- 
meanor there is no such necessity. 



(3) V. p. 380. 
(A) V. p. 381. 
(0 V. p. 3. 



( 12 ) 



CHAPTEE III. 

ESSENTIALS OF A CRIME. 

In order to ascertain wto are and who are not capable 
of committing crimes, it will be necessary to examine 
certain terms which are liable to confusion. 

In the first place we must deal with those elements 
which occur in every case of crime ; and the absence of 
either of which excludes the act from the category of 
crimes, viz.. Will, Criminal Intention, or Malice. It will 
be more convenient to treat of them in this order, 
though obviously the reverse of the actual sequence of 
events. 

To will an act is " to go through that inward state 
which, as experience informs us, is always succeeded 
by motion " (k) ; that is, unless the body be physically 
incapable. And will is to be distinguished from those 
wishes which are not carried into execution; for 
example, excited by jealousy, I wish to kill B., but 
fear of the law prevents me from willing that act. If 
the act be not willed, it is said to be involwntary, and 
of course does not render its doer amenable to the 
criminal law. 

Intention is the " fixing the mind upon the act, and 
thinking of it as of one which will be performed when 
the time comes " Q), and when the time comes (if it 
ever does) the act is willed. The willing may succeed 



(4) Fitz. St. 77. 
(0 Ibid. 



ESSENTIALS OF A CRIME. 13 

the intention instantaneously, or years may intervene 
between the formation of the intention and the exercise 
of the will. An example will explain the relation of 
the two terms more clearly. A. hates B. In conse- 
quence of this hatred A., on meeting B., shoots him 
dead. Here A. makes up his mind to shoot B. when he 
meets him j up to this point, as long as the two are 
separated, A.'s intention only is formed. He meets B. 
in the road, and carries out his design or intention by 
pulling the trigger. Now he wills the act ; that is, he 
wishes it in such a way as to cause the motion of his 
arm and finger (m). 

In this example a third element appears. The Motive. 
motive of the act is the deadly hatred. Motive may be 
defined as "that which incites and stimulates to 
action." It may serve as a clue to the intention ; but 
it is the intention which determines the quality, 
criminal or innocent, of the act (w). 



So much for intention generally. But to make a Malice, or 

criminal '" 
■ tention. 



person a criminal, the intention must be a state of mind "■'™'°^^ '"' 



forbidden by the law. I utter a forged note, not know- 
ing it to be such, and therefore not intending to 
defraud. No crime is committed. But if I have such 
intention, this criminal intention stamps the act with 
the character of crime (o). The guilty state of mind, 
or criminal intention, is generally known by the term 
"Malice;" a term which is truly a legal enigma, on 
account of' the many and conflicting senses in which it 
is used. As synonymous with criminal intention, it is 
thus necessary to the legal conception of crime. To 
secure a conviction, as a general rule, malice of this 



(m) "Though usually both intention and will are found in an act, 
either or both may be absent. Both are wanting when a man in a convul- 
sive fit striljes and kills another. Intention is absent in the case of an 
infant."— V. Fitz. St. 78. 

(n) Broom, C. L. 851. 

(o) V. Fitz. St. 81. 



14 ESSENTIALS OF A CEIME, 

kind must be directly proved. But when the law ex- 
pressly declares an act to be criminal, the question of 
intention or malice need not be considered j at least, 
except by the judge in estimating the amount of 
punishment {p). Again, in some cases, this intention 
is presumed from a circumstance, and it lies on the 
accused to shew that his intention was innocent, e.g., 
in the case of possession of recently stolen goods (q). 

Malice, active This malicc is found not only in cases 

or passive. 

I. Where the mind is actively or positively in fault, 
as where there is a deliberate design to defraud, but 
also 

II. Where the mind is passively or negatively to blame, 
that is, where there is culpable or criminal inattention 
or negligence. A common example of this is man- 
slaughter by a surgeon who has shewn gross incom- 
petence in the treatment of the deceased. But here 
the criminality consists in the wilfully incurring the 
risk of causing loss or suffering to others (r). So that, 
in fact, the malice is only traced one stage further 
back. An extreme case of this negative malice is where 
there is merely the absence of a thought which ought 
to have been there, as in the non-repair of roads 
through forgetfulness. 

Malice, express It is usual to lay dowu that malice is either 

or implied. 

1. Express, or in fact, as where a person with a 
deliberate mind and formed design kills another. 

2. Implied, or in law, as where one wilfully poisons 
another, though no particular enmity can be proved ; 



(p) Broom, C. L, 852. 

Iq) V. p. 220. 

(r) Broom, C. L. 854. 



ESSENTIALS OE A CRIME. 15 

or where one gives a perfect stranger a blow likely to 
produce death. Here there is a wilful doing of a 
wrongful act without lawful excuse ; and the intention 
is an inference of law resulting from the doing the 
act (s). The law infers that every man must contem- 
plate the necessary consequences of his own act (t). 

Here, and everywhere in dealing with malice, there 
is great danger of deflexion into malice with its moral 
signification, as denoting ill-will or malevolence. In 
other words, of confounding motive with intention. 
Malice, in the sense of malevolence, is not essential to 
a crime ; malice, in its legal signification of criminal 
intention, is (u). 

As we have seen, it is the character of the intention intention, 
that determines the character of the act ; though other crimTnaiity 
considerations, for example, motives, are taken into 
account in order to discover the intention. The same 
act may be wholly innocent, a civil injury, or a crime, 
according to the intention. For example, A. takes a 
horse from the owner's stable without his consent. If 
he intend to fraudulently deprive the owner of the 
property and appropriate the horse to himself, he is 
guilty of the crime of larceny. If he intend to use it 
for a time and then return it, it is a trespass or civil 
injury only. If he take it in due course as distress for 
rent, he is justified and not exposed to any ill conse- 
quences (x). 

But a naked intention is not criminally punishable, 
except, as it is said, in treason. There must be some 



(s) 4 Bl. 199, V. p. 155. 

(<) S. V. Dixon, 3 M. & Sel. 15. 

(«) " In the use of the word ' malice,' in all cases there is undoubtedly 
always a lurking reference to some sort of moral depravity, though per- 
haps only of a temporary sort. But the intangible nature of such an element 
compels the legislature and the judge to select certain determinate signs 
as essential characteristics of this depravity." — Amos, Jurisprudence, 305; 

(«) Broom, C. L. 851. 



16 ESSENTIALS OF A CRIME. 

carrying out, or attempt to carry out, that intention 
into action. In other words, the intention is to be 
inferred from some overt act, or in the case of a crime 
of omission, from the absence of some overt act. Thus, 
although A. has resolutely made up his mind to shoot 
B. when next he meets him, and confesses this resolu- 
tion, the law is powerless to deal with him; but 
directly he does anything in pursuance of that design, 
he is within the grasp of the law. The reason for this 
rule is obvious, namely, the difficulty, or rather impos- 
sibility of proving a mere intention. 

If there be present a criminal intention, the prisoner 
is not exculpated because the results of the steps he 
takes to carry out that intention are other than those 
he anticipated or intended. For example, if A., intend- 
ing to shoot B., shoots C, mistaking C. for B-. To such 
a length is this doctrine extended, that if A. shoots at 
B.'s poultry and by accident kills a man, if his intention 
be to steal the poultry, he will be guilty of murder. 
The act, viz., the shooting, is willed, and the intention 
is criminal (and felonious) ; therefore the essentials of 
a crime are furnished, and the result determines what 
the crime is. This is not the only respect in which the 
gravity and nature of the crime are determined by cir- 
cumstances over which he has not control. Thus, if B. 
receives a blow from A., and, through the unskilful 
treatment of the wound by the surgeon, dies, A. will be 
guilty of murder or manslaughter. The intention is, 
then, not the sole gauge of criminal liability. 

Attempts. Though a mere intention is not punishable, an 

attempt to commit a crime is itself a crime, and there- 
fore the subject of punishment. That which the law 
wishes to discover is the intention, and an attempt 
equally with a completion of the offence will be evi- 
dence of this. What is sufficient to constitute an 
attempt ? An attempt may be said to be the doing of 
any of the acts which must be done in succession before 



ESSENTIALS OF A CRIME. 17 

the desired object can be accomplished; or rather, with 
the limitation that the attempt must be an act directly 
approximating to the commission of the offence. Thus 
procuring a die for coining was held an act in further- 
ance of the criminal purpose sufficiently proximate to 
the offence (y) ; but not so the buying a box of matches 
for setting a stack of corn on fire (z). But the act 
must have been such that, if no interruption had taken 
place, the principal offence would have been success- 
fully committed ; so that if a person puts his hand into 
a pocket with intent to steal what is there, and the 
pocket is empty, he cannot be convicted of an attempt 
to steal (a). 

Every attempt to commit a crime is itself an indict- 
able misdemeanor at common law. In some cases, it 
is specially provided that it shall amount to a felony, 
e.ff., attempt to murder (b). 

If on the trial of a person charged with felony or Verdict of 
misdemeanor, the jury do not think that the offence fndS*ent for 
was completed, but, nevertheless, are of the opinion that the complete 
an attempt was made, they may express this in their ™™°' 
verdict. The prisoner is then dealt with as if he had 
been convicted on an indictment for the attempt. But 
of course he is not liable to be prosecuted afterwards 
for the attempt (c). 

As a rule, attempts are punished less severely than Punishment of 
the corresponding consummate crimes, though the mis- ^"^""P*^' 
chief may be as great in the one case as the other. It 
is with a view to cases in which the complete offence is 



()/) B. V. Boberts, 25 L. J. (M.C.) 17. 
(2) B. V. Taylor, 1 F. & F. 511. 
(a) B. V. Collins, 33 L. J. (]«.C.) 177. 
(6) 24 & 25 Vict. c. 100, ss. 11-15. 
(0) 14 & 15 Vict. c. 100, s. 9. 



18 ESSENTIALS OF A OEIME. 

more mischievous that the distinction is made, so as to 
give the person a locus penitentise before the consum- 
mation. It may be noticed that this consummation is 
prevented sometimes by the penitence of the party, 
sometimes by extrinsic causes (d). 



(d) Austin, 1098. 



( 19 ) 



CHAPTEE IV. 

PEESONS CAPABLE OF COMMITTING CEIMES. 

Eyeey man mtist be presumed to be responsible for his Exemptions 
acts until the contrary is clearly shewn. If an act ^™™ *'"™'."''' 

y •' , responsibility. 

ordinarily falling within the scope of the criminal law 
be committed, the law presumes that it was done wil- 
fully and with malicious intent. Therefore it lies on 
the accused to rebut this presumption. 

There are certain exemptions from criminal respon- 
sibility, or rather, under certain circumstances, acts 
which would otherwise be criminal, on some special 
ground are not deemed so. The foregoing examination 
of the essential elements of crime enables us to deter- 
mine what is the nature of these exemptions ; inasmuch 
as they are founded, as a rule, on the absence of one of 
those essentials. In one or two instances, however, 
other considerations, either of policy or well-advised 
lenity, are entertained, e.g., in the case of crimes com- 
mitted by ambassadors. 

The several instances of irresponsibility may be classification 
reduced to the following classes :— of exemptions. 

1. Absence of criminal intention or malice, includ- 
ing:— 

Insanity : Infancy : Ignorance (mistake). 

2. Absence of will, i.e., the act is purely involun- 
tary :— 

Misfortune^ &c. : Physical compulsion. 

2 



20 PEESONS CAPABLE OF COMMITTING CBIMES. 

3. Instant and well-grounded fear, stronger than the 
fear naturally inspired by the law (e) : — 

Fear of excessive unlawful harm. Coercion of 
married women. 

In each of these cases (!•— 3) the fear of punishment 
is not calculated to act upon the person so as to deter 
him, or to deter others by making him an example ; 
therefore the punishment would be inoperative and 
worse than useless. 

4. When an act, under ordinary circumstances 
criminal, is denuded of that character, inasmuch as it 
is directly authorized by the law : — 

In pursuance of legal duty; e.g , the sheriff hanging 
a criminal. 

In pursuance of legal right ; e.g., slaying in self- 
defence. 

Here, as in the first class, there is no criminal 
intention. 

Each of these grounds of exemption must now be 
dealt with. 

lo. Insanity. Insanity. — With regard to no subject in criminal law 
is there so much obscurity and uncertainty as on the 
question of the responsibility or irresponsibility of a 
prisoner when the state of his mind at the time of the 
commission of the act is the point at issue. It has 
often been asserted, and not without a considerable 
degree of truth, that the acquittal or conviction of 
a prisoner, when insanity is alleged, is more or less 
a matter of chance. The subject is one on which 
the views taken by medical men differ most widely 
from those taken by lawyers; and as the former 



(e) Austin, 1092, &c. 



PEKSONS CAPABLE OF COMMITTING CKIMES. 21 

are generally the most important witnesses in cases 
of alleged insanity, the confusion is by no means 
diminished (/). 

Two classes of mental alienation are usually recog- idiocy and 

nized :— insanity. 

1. Dementia natv/ralis, or a nativitate — in other words, 
idiocy, or continuous weakness of mind from birth, 
without lucid intervals : a person deaf and dumb from 
birth is by presumption of law an idiot, but it may be 
shewn that he has the use of his understanding. 

2. Dementia aceidentalis, or adventitia — usually 
termed insanity, in the narrower signification. The 
mind is not naturally wanting or weak, but is deranged 
from some cause or other. It is either partial (insanity 
upon one or more subjects, the party being sane upon 
all others) or total. It is also either permanent (usually 
termed madness) or temporary (the object of it being 
afflicted with his disorder at certain periods only, 
with lucid intervals), which is usually denominated 
lunacy {g). 

Three stages in the history of the law of insanity History of 
may be discerned. The first, outrageous as it was, may f'^* '^^^ "^ 
be illustrated by the following dictum of an English 
judge : — A man who is to be exempted from punish- 
ment " must be a man that is totally deprived of his 
understanding and memory, and doth not know what 
he is doing, no more than an infant, than a brute, or a 
wild beast Qi)." The second stage regarded as the test 



(/) " There is great difference of opinion as to tlie cause of the uncer- 
tainty ; the lawyers asserting that it is owing to the fanciful theories of 
medical men, who never fail to find insanity when they earnestly look for 
it, the latter protesting that it is owing to the unjust and absurd criterion 
of responsibility which is sanctioned by the law." — Maudsley's Kesponsi- 
bility in Mental Disease (1874), 101. 

((/) V. Bac. Abr. Idiots. ■ As to dementia affectata, or drunkenness, 
V. p. 2.5. 

(/•) S. V. Ai-nold, 16 St. Tr. 764. 



22 



PERSONS CAPABLE OF COMMITTING CRIMES. 



M'JSTaughten's 
Case. 



Partial 
insanity. 



of responsibility the power of distinguishing right from 
wrong in the abstract (i). The third stage, unhappily, 
is that in which we live ; though common sense may 
soon inaugurate a fourth. The existing state of 
doctrines dates from the trial of M'Naughten in the 
year 1843 (k). 

Certain questions were propounded by the House of 
Lords to the judges. The substance of their answers 
was to the following effect : — " To establish a defence 
on the ground of insanity, it must be clearly proved 
that, at the time of the committing of the act, the party 
accused was labouring under such a defect of reason, 
from disease of the mind, as not to know the nature and 
quality of the act he was doing, or, if he did know it, 
that he did not know he was doing what was wrong " (I). 
Thus the question of knowledge of right or wrong, 
instead of being put generally and indefinitely, is put 
in reference to the partieular act at the particular time 
of committing it. 

As to partial insanity, that is, when a person is sane 
on all matters except one or more, the judges declared 
that " he must be considered in the same situation as 
to responsibility as if the facts with respect to which 
the delusion exists were real. For example, if, under 
the influence of his delusion, he supposes another man 
to be in the act of attempting to take away his life, 
and he kills that man, as he supposes, in self-defence, 
he would be exempt from punishment. If his delusion 
was that the deceased had inflicted a serious injury to 
his character and fortune, and he killed him in revenge 
for such supposed injury, he would be liable to punish- 



(j) R. T. Bellingham, Coll. 636. 

Ik) 10 CI. & Fin. 200 ; 1 C. & K. 130. 

(l) Cf. Alison's Principles of Criminal Law of Scotland, pp. 645 654. 
" The insanity must have, been of such a kind as entirely to deprive the 
prisoner of the use of reason, as applied to the act in qmstion, and of the 
knowledge that he was doing wrong in committing it." 



PERSONS CAPABLE OP COMMITTING CEIMES. 23 

merit " (m). After laying down, as above, what may- 
be called the " particular right and wrong theory," they 
abandon it here, and also in another answer, whpre, still 
dealing with partial delusions, they express their 
opinion that "notwithstanding the party accused did 
the act complained of with a view, under the influence 
of insane delusion, of redressing or revenging some 
supposed grievance or injury, or of producing some 
public benefit, he is nevertheless punishable if he knew 
at the time of committing such crime that he was 
acting contrary to the law of the land " (n). 

It has been held that an apparent absence of motive Absence of 
for the deed is not any ground for inferring an irresist- ™°'''7!'.J'°^ 

. 1 11 1 1 irresistible 

ible and insane impulse ; and that though there be an impulses, 
irresistible impulse, if there be no real delusion as to 
any fact, it affords no defence (o). Why a man should 
be punished for what he cannot resist, it is, perhaps, 
hard to comprehend. 

As to medical evidence on the question pf insanity — Evidence of 
a witness of medical skill may be asked whether, as- ™^'^"=''i ^''" 
suming certain facts, proved by other witnesses, to be 
true, they, in his opinion, indicate insanity. But he 
cannot be asked, although present in Court during the 
whole trial, whether from the evidence he has heard 
he is of opinion that the prisoner, at the time he com- 
mitted the alleged act, was of unsound mind ; for such 
a question, unlike the previous one, involves the deter- 



(m) " Here is an unhesitating assumption that a man, having an insane 
delusion, has the power to think and act in regard to it reasonably ; that, 
at the time of the oiience, he ought to have and exercise the knowledge 
and self-control which a sane man would have and exercise, were the facts 
with respect to which the delusion exists real ; that he is, in fact, bound 
to be reasonable in his unreason, sane in his insanity." — Maudsley, 97. 

(re) For strictures on these principles of " exquisite inhumanity,", see 
remarks of Judge Ladd in State v. Jones, 50 New Hampshire Reports, 
369. 

(o) S. V. Haynes, 1 F. & F. 666. B. v. Barton, 3 Cox, 275. 



nesses. 



24 



Trial, when 
insanity is 
pleaded. 



PEESONS CAPABLE OF COMMITIING CRIMES. 

mination of the truth of the evidence, which it is for 
the jury to determine (jp). 

The law presumes sanity ; and, therefore, the burden 
of the proof of insanity lies on the defence. Even 
in the case of an acknowledged lunatic, the offence 
is presumed to have been committed in a lucid in- 
terval, unless the contrary be shewn. It is for the 
petty jury to decide whether a case of insanity, recog- 
nized as such by the law, has been made out. The 
grand jury have no right to ignore a bill on the ground 
of insanity. The jury are obliged to attend to the 
directions of the judge as to what is called the law on 
the subject, but which is rather an erroneous opinion 
as to a matter of fact. There seems to be no sound 
reason for withdrawing any part of the question of 
insanity from the jury — a thing which is done when 
the artificial test of responsibility is propounded to 
them {q). When, on the part of the defence, the in- 
sanity of the prisoner at the time of the commission of 
the offence is given in evidence, and the jury acquit 
him, they must find specially whether he was insane at 
the time of the commission of the offence, and declare 
whether they acquit him on that ground. If they so 
acquit him on the ground of insanity, the court will 
order him to be kept in proper custody till the Queen's 
pleasure be known ; and the Queen may order the con- 
finement of such person during her pleasure (»). So if 
a person indicted is insane, and upon arraignment is 
found insane by a jury impanelled to discover his state 
of mind, so that he cannot be tried; or if on his 
trial, or when brought up to be discharged for want 



{p) R. V. Frances, 4 Cox, .')7. See also M'Naughten's Case. 

((jt) " If the tests of insanity are matters of law, the practice of allowing 
experts to testify what they are should be discontinued ; if they are matters 
of fact, the judge should no longer testify without being sworn as a witness 
and showing himself qualified to testify as an expert." — Judge Doe in 
State V. Pike, 49 New Hamp. Kep. 399. 

(r) 39 & 40 Geo. 3, c. 94, b. 1 ; 3 & 4 Vict. c. 54,. ». 3. 



PEKSONS CAPABLE OF COMMITTING CRIMES. 25 

of prosecution, he appears to the jury to be insane, 
the court may record such finding, and order him 
to be kept in custody till the Queen's pleasure be 
known (s). 

In accordance with the dictates of humanity no 
criminal proceedings can be taken against a man while 
he is non compos mentis. Thus, if a man commit 
murder and become insane before arraignment, he 
cannot be arraigned; if after trial before judgment, 
judgment cannot be pronounced; if after judgment 
before execution, execution will be stayed (t). 

Drunkenness. — Drunkenness is sometimes termed Drunkenness 
d&mentia affectata — acquired madness. A state of '"'' ''"' '''"="^^- 
voluntary intoxication is not any excuse for crime (m). 
It is true that the sanctions of the law cannot be sup- 
posed to exert an equal influence on the mind and con- 
duct of a person in this state ; but the initiation of the 
crime may be said to date back to the time when the 
offender took steps to deprive himself of his reason. It 
is evident that if drunkenness were allowed to excuse, 
the gravest crimes might be committed with impunity 
by those who either counterfeited the state or actually 
assumed it. 

It would be incorrect to say that the consideration When to be 
of drunkenness is never entertained in the criminal ™"'"'i«'^'«'*- 
law. Though it is no excuse for crime, yet it is some- 
times an index of the quality of an act. Thus, it may 
be taken into account by the jury when considering 
the motive or intent of a person acting under its influ- 
ence ; for example, on the question whether a person 
who struck a blow was excited by passion, or acted 
from ill-will; whether expressions used by the pri- 



(s) 39 & 40 Geo. 3, u. 94, s. 2. 

(0 1 Hale, P. C. 34. 

(«) V. Pearson's Case, 2 lew. 0. C. 144. 



26 PEHSONS CAPABLE OF COMMITTING CRIMES. 

soner were uttered with a deliberate purpose, or were 
merely the idle expressions of a drunken man (aj). So 
M. could not have intended suicide if she were so 
drunk that she did not know what she was doing («/). 

Of course if the drunkenness be involuntary, as for 
example, if it be by the contrivance of the prisoner's 
enemies, he will not be accountable for his action while 
under that influence. Also, if drunkenness has become 
habitual and confirmed, so as to produce the disease of 
insanity, this insanity, equally with other kinds of 
mental disease, may be pleaded in defence. 

16. Infancy, as Infancy. — Infancy can be used in defence only as 
CTime™^* *^°' evidence of the absence of criminal intention, though 
there are certain presumptions of the law on the sub- 
ject, some of which may, some of which may not, be 
rebutted. 

The age of discretion, and therefore of responsibility, 
varies according to the nature of the crime. What the 
law technically terms "infancy" does not terminate 
till the age of twenty-one is reached ; but this is not 
the " infancy " which is the criterion in the criminal 
law. Two other ages have been fixed as points with 
reference to which the criminality of an act is to be 
considered. 

Fust period. Under the age of seven, an infant cannot be con- 
victed of a felony ; for until he reaches that age he is 
presumed to be doli incapax; and this presumption 
cannot be rebutted by the clearest evidence of a mis- 
chievous discretion (z). 

Seeond period. Between se?;ew z.ndi fourteen, he is still, frima facie, 



(k) R. r. Thomas, 7 C. & P. 817. 

(I/) R. V. Moore, 3 C. & K. 319. 

(e) A prcesumptio juris et de jure, v. p. 418. 



PEESONS CAPABLE OF COMMITTING CRIMES. 27 

deemed by law to be doli incajoax ; but this presump- 
tion may be rebutted by clear and strong evidence of 
such mischievous discretion (a), the principle of the 
law being malitia supplet setatem. Thus, a boy of the 
age of ten years was hanged for killing his companion ; 
he having manifested a consciousness of guilt, and a 
discretion to discern between good and evil, by hiding 
the body (h). There is one exception to this rule, 
grounded on presumed physical reasons. A boy under 
the age of fourteen cannot be convicted of rape or 
similar offences, even though he has arrived at the 
full state of puberty. He may, however, be convicted 
as principal in the second degree. 

Between fourteen and twenty-one, an infant is pre- Third period 
sumed to be doli oaf ax, and accordingly, as a rule, may 
be convicted of any crime, felony or misdemeanor. 
But this rule is subject to exceptions, notably in the 
case of offences consisting of mere non-feazance ; as, for 
example, negligently permitting felons to escape, not 
repairing highways, &c. It is given as a reason for 
the exemption in cases of the latter character that, not 
having the command of his fortune till twenty-one, the 
person wants the capacity to do those things which the 
law requires (e). 

Though, as we have seen, infants who have arrived Juvenile 
at years of discretion are not to be allowed to commit 
crimes with impunity, we shall find that in certain 
cases the law deals with juvenile offenders in an ex- 
ceptional way, in order, if possible, to prevent their 
becoming confirmed criminals {d). 

Ignorance (including mistake). — Two kinds of igno- lo. ignorance, 
ranee must be distinguished — Ignorance of Law — fo/crime?^^ 

(a) A prasumptio juris, v. p. 418. 

(6) 1 Hale, P. C. 26, 27 ; v. Tories Case, Fost. 70. 

(c) 4 Bl. 22. 

Id) V. p. 465. 



28 PEBSONS CAPABLE OF COMMITTING CEIMES. 

Ignorance of Ignorance of Fact, It is a leading principle of Eng- 
^^' lish law that ignorance of law in itself will never 

excuse. Though it is implied in some of the excuses 
of which we have treated, e.g., infancy, the ignorance 
of the law is not the ground of exemption (e). It is no 
defence for a foreigner charged with a crime committed 
in England that he did not know he was doing wrong, 
the act not being an offence in his own country (/). 

Ignorance of Ignorance or mistake of fact will or will not excuse, 
'"°'" according as the original intention was or was not 

lawful. For example, if a man, intending to kill a 
burglar in his house, kill his servant, he will not be 
guilty of an offence. But if intending to do grievous 
bodily harm to A., he, in the dark, kill B., he will be 
guilty of murder. 

The cases we have been noticing are those in which 
the exemption from the normal liability is grounded on 
the absence of criminal intention or malice. Those in 
which the ground of exemption is absence of will, or, in 
other words, involuntary acts, require very little con- 
sideration. 

2a. Accident, Aecident (including misfortune, mishap, &c.). — To 
exxuse for ^® Valid as an excuse, the accident must have happened 
crime. in the performance of a lawful act with due caution. 

For example, A., properly pursuing his work as a slater, 
lets fall a slate on B.'s head ; B. dies in consequence of 
the injury. Here B. will not be liable ; but it would 
have been otherwise had he at the time been engaged 
in some criminal act ; or if he had not exercised proper 
skill or care. We shall find cases of this description 
most frequently in drawing the line between culpable 
and excusable homicide. 



(e) V. Austin, 496. 

(/) B. V. Bsop, 7 C. & P. 4.50. 



PERSONS CAPABLE OF COMMITTING CEIMES. " 29 

.Physical Compulsion — as if A, kills B. with C.'s 26. Physical 

hand. ~ compulsion. 

The third division comprises cases where the act is 
done under a fear stronger than that which the law 
inspires. 

Fear of Excessive and Unlawful Harm, — ^When a 3a. Duress per 
person is driven to commit an offence by such threats ™"'''- 
and menaces of personal violence from others as induce 
a well-grounded apprehension of present death or 
grievous bodily harm, in some cases he is excused. 
The danger must threaten his person ; it will not be 
sufficient if it only endangers his property. And this 
plea of duress per minas will not be of avail in every 
crime. Thus, though a man be violently assaulted, 
and has no other possible means of escaping death but 
by killing an innocent person, if he commit the act he 
will be guilty of murder ; for he ought rather to. die 
himself than escape by the murder of an innocent man. 
But in such case he may kill his assailant (g). Ques- 
tions of this sort are especially likely to occur when 
persons are compelled to join in a rebellion or riot (h). 

State of Married Women. — In cases of felony, if a 36. Married 
married woman commits the crime in the presence of ^"J"™' "'''° 

^ . not respon- 

her husband, the law presumes that she acts under his sibie. 
coercion, and therefore excuses her from punishment. 
But this exemption is not allowed in all felonies, though 
it seems unsettled where the line is drawn. It appears 
that the wife is liable in treason, murder, manslaughter, 
and robbery («'). In no case is she excused if her hus- 
band be not present, not even if the act be done by his 
order (/r). The presumption of law may be rebutted 



(g) 1 Hale, P. C. 51. 

(A) S. T. M'Growther, Fost. 13 ; 9 St. Tr. 566. 
» (0 B. T. Manning, 2 C. & K. 903 ; S. v. Cruse, 8 C. & P. 541 ; 1 Hale, 
P. C. 45-48; 1 Hawk. u. i. s. 11 ; 1 Russ. 33; Stai-kie on Evidence, tit. 
Husband and Wife. 

Qk) B. T. Morris, R. & R. 270. 



30 PEESONS CAPABLE OF COMMITTING CRIMES. 

by evidence. Thus, if it can be shewn that she acted 
voluntarily, at least if she took a principal part in the 
commission of the crime, she will be convicted, although 
her husband were present (I). 

In cases of misdemeanor, the prevailing opinion 
seems to have been that the wife is responsible for her 
acts, although her husband be present at the commis- 
sion. However, in recent cases, this has been doubted, 
and the rule prevailing in felony applied (m). At any 
rate, the exemption does not extend to those offences 
relating to domestic matters and the government of 
the house, in which the wife may be supposed to have 
a principal share, as for keeping a disorderly or gaming- 
house. 

It requires the co-operation of two, at least, to con- 
stitute a conspiracy. Of this crime, therefore, a hus- 
band and wife cannot by themselves be convicted, 
inasmuch as in the eye of the law they are regarded 
as one person. So a wife cannot be convicted of steal- 
ing her husband's goods ; nor of harbouring him when 
he has committed a crime. 

No other This relation of wife to the husband is the only one 

which the law recognizes as a shield from criminal 
punishment. The other private relations, parent and 
child, master and servant, will not excuse nor extenu- 
ate the commission of any crime ; either child or ser- 
vant being liable notwithstanding the command or 
coercion of the parent or master. 

Certain exceptional cases, where the ordinary rules 
as to capability of committing crime do not entirely 
prevail, require a brief notice. 



(0 S. V. Torpey, 12 Cox, 45. 

(m) B. V. Price, 8 C. & P. 19 ; S. v. Torpey, supra. 



relation an 
excuse. 



PBBSONS CAPABLE OF COMMITTING OEIMES. 31 

The Sovereign. — The sovereign can do no wrong : The sovereign 
therefore he is not amenable to the ordinary criminal ^""^ "'""''■ 
courts of his kingdom. Blackstone forbids us even to 
imagine such delinquency on the part of the soTereign. 
" He is not under the coercive power of the law ; which 
will not suppose him capable of committing a folly, 
much less a crime. We are, therefore, out of reve- 
rence and decency, to forbear any idle inquiries of 
what would be the consequence if the king were to act 
thus and thus ; since the law deems so highly of his 
wisdom and virtue, as not even to presume it possible 
for him to do anything inconsistent with his station 
and dignity ; and therefore has made no provision to 
remedy such a grievance " (n). Inasmuch as it is pre- 
sumed that he can do no wrong, although he com- 
mands an unlawful act to be done, e.gi., an unlawful 
arrest, the instrument is not indemnified, but is 
punishable. 

Corporations. — Even corporations aggregate, such as Corporations 
railway companies, may be indicted by their corporate ^""^ "'™^' 
names for breaches of duty; whether such breaches 
consist of wrongful acts, e.g., obstructing highways ; 
or wrongful omissions, e.g., neglecting to repair 
bridges (o). A corporation may also be indicted by 
its corporate name and fined for an assault committed 
or a libel published by its order (p). 

Aliens. — Foreigners who commit crimes in England Aliens and 
are punishable exactly as if they were natural-born "'^^^■ 
subjects. It is no defence on behalf of a foreigner 
that he did not know he was doing wrong, the act not 
being an offence in his own country. Though this is 
no defence, it may mitigate the punishment (q). 



(rt) 4 Bl. 33. 

(p) E. V. Birmingham and Gloucester Railway Co., 9 C. & P. 469 ; 
2 Q. B. 47. 

(p) Eastern Counties Co. v. Broom, 6 Exch. 314. 
(7) B. V. Esop, 7 C. & P. 456. 



32 PERSONS CAPABLE OF COMMITTING CRIMES. 

Ambassadors Ambassadors. — Different views, materially conflicting 
and crime. ^.^.j^ ^^^j^ ^^-^g^,^ j^^^^ ^^^^^ j^^j^ ^^ ^^ ^j^g Criminal 

liability of ambassadors and tbeir suites. Some writers 
maintain that for no offence, whether it be against the 
life, person, or property of an individual, is an ambas- 
sador amenable to the criminal law of the country to 
which he is sent (r). Others assert that though he is 
not punishable for crimes made such by the laws of the 
particular country ; he is so for any great crimes which 
must be such in any system. Or, as it is- sometimes 
expressed, he is punishable for mala in se, but not for 
acts which are merely mala qma prohibita. Thus, an 
ambassador might be convicted for murder or rape, but 
not for smuggling. The more probable and reasonable 
course seems to be to request the recall of the offender 
by his own state, with or without an expression of 
opinion that the offender should be punished in his 
own country. If this be refused, the ambassador might 
be dismissed, and pressure brought to bear on the 
other state to induce the latter to put him on his trial. 
There is one class of offences which stand on a 
different footing, namely, offences affecting the exist- 
ence and safety of the state. For a direct attempt 
against the life of -the sovereign, it is said that the 
offender would be directly punishable by the state (s). 
But, at any rate, in this and other offences against 
the government, the state might demand the punish- 
ment of the offender by the foreign state ; and if this 
demand were not complied with might treat him as a 
public enemy, and demand satisfaction from that foreign 
state. The matter would then pass from the province 
of law to that of politics. 



(r) Phillimore's International Law, vol. ii. c. vii. 
(s) 1 Hale, P. C. 96-99 ; Fost. 187, 188. 



( 33 ) 



CHAPTEE V. 

PRINCIPALS AND ACCESSOEIES. 



Those who are implicated in the commission of crimes Principals and 

aocessori 
felonies. 



are either Principals or Accessories. This distinction *<='=«s'''"«^ '° 



is based on the consideration whether the party was 
present or absent at the commission. It is recognized 
in felonies alone. 

Principals {i.e., those present) are either 

Principals in the first degree, or Principals in the 
second degree. 

Accessories are either 

Accessories before the fact, or Accessories after the 
fact. 

Of these in their order : — 

Principal in the first degree. — He who is the actor or what con- 
actual perpetrator of the deed. It is not necessary ^j''^"'?^ tife"°' 
that he should be actually present when the offence is first degree ; 
consummated ; thus, one who lays poison or a trap for 
another is a principal in the first degree. Nor need 
the deed be done by the principal's own hands ; for it 
will suffice if it is done through an innocent agent, as, 
for instance, if one incites a child or a madman to 
murder. 



Principal in the second degree. — One who is present, in the second 

n degree. 



34 PRINCIPALS AND ACCESSOKIBS. 

aiding and abetting at tlie commission of the deed (t). 
This presence need not he actual ; it may he construc- 
tive. That is, it will suffice if the party has the inten- 
tion of giving assistance, and is sufficiently near to 
give the assistance ; as when one is watching outside, 
while others are committing a 'felony inside, the house. 
There must be both a participation in the act and a 
community of purpose (which must be an unlawful 
one) at the time of the commission of the crime. So 
that, as to the first point, mere presence or mere neg- 
lect to endeavour to prevent a felony will not make a 
man a principal ; as to the second, acts done by one of 
the party, but not in pursuance of the arrangement, 
will not render the others liable. 

The distinction between principals of the first and 
of the second degree is not a practically material one, 
inasmuch as the punishment of offenders of either class 
is generally the same. 

Accessories are those who are not (a) the chief actors 
in the ofi'ence, nor (b) present at its performance, but 
are someway concerned therein, either before or after 
the fact committed (m). 



What con- 
stitutes an 
accessory 
before the 
fact. 



Accessory before the fact. — One who, being absent at 
the time when the felony is committed, yet procures, 
counsels, commands, or abets another to commit a 
felony (x). This may be done not only by direct com- 
mand or counsel, but also by expressing assent or 
approbation of the felonious design of another. But 
the bare concealment of a felony about to be com- 
mitted does not make an accessory. It is not necessary 



(f) Principals in the second degree are frequently termed aiders and 
abettors; sometimes also accomplices. The latter term, however, may 
include all participes criminis. 

(m) 4 Bl. 35. 

(ic) 1 Hale, P. C. 615. 



PBINCIPALS AND ACCESSOEIES. 35 

that there should be any direct commtmication between 
the accused and the principal ; as if A", requests B. to 
procure the services of C. in order to murder D. 

The accessory will be answerable for all that ensues what such 
upon the execution of the unlawful act commanded, at answerabie^for. 
least for all probable consequences ; as, for instance, if 
A. commands B. to beat C, and he beats him so that he 
die, A. is accessory to the murder. But if the prin- 
cipal intentionally commits a crime essentially diffe- 
rent from that commanded, the person commanding 
will not be answerable as accessory for what he did 
not command. Thus, if A. commands B. to break into 
C.'s house, and B. sets fire to the house, A. cannot be 
convicted of the arson. But a mere difference in the 
mode of effecting the deed, or in some other collateral 
matter, will not divest the commander of the character 
of accessory if the felony is the same in substance. 
Thus, if A. commands B. to kill C. by poison, and he 
kills him with a sword, A.'s command suflSces to make 
him an accessory. 

With regard to manslaughter — As a rule the offence Accessories 
is sudden and unpremeditated, and this view of the fa^t 'in man- 
nature of the crime having been taken, it has been slaughter. 
said that there can be no accessory before the fact in 
manslaughter. But in many cases there is deliberation, 
though it is not accompanied by an intention to take 
away life. It is easy to present a case in which there 
may be an accessory before the fact to manslaughter. 
A. counsels B. to mischievously give C. a dose of medi- 
cine merely to make him sick, and C. dies in conse- 
quence ; A. is guilty as an accessory before the fact to 
the manslaughter (y). 

As to the trial of those who command, counsel, or Trial of acces- 
procure the commission of a felony. — Until a recent the'fect! "^^ 



((/) S. V. Gaylor, 7 Cox, 253. 

D 2 



36 PBINCIPALS AND ACCESSORIES. 

date it was the rule that such a person could not be 
tried without his own consent, except at the same time 
with the principal, or after the principal had been tried 
and found guilty. He was merely an accessory, and 
therefore he could not be tried before the fact of the 
crime was established. Now two courses' are open to 
the prosecution; either (a) to proceed, as formerly, 
against the person who counsels, &c., as an accessory 
before the fact with the principal felon, or after his 
conviction ; or (b) to indict the counsellor for a sub- 
stantive felony (for to that his offence is declared by 
the statute to amount), and this may be done whether 
the principal has or has not been convicted, and al- 
though he is not amenable to justice. The punishment 
in either case is the same. If one of these two modes 
has been adopted, of course the offender cannot be 
afterwards prosecuted in the other (z). It is also pro- 
vided that an accessory before the fact may be indicted, 
tried, convicted, and punished in all respects as if he 
were a principal felon (a). To convict of the sub- 
stantive felony under this- Act, it is still necessary to 
prove that the principal deed has actually been com- 
mitted. Soliciting and inciting to the commission, if 
the deed is not committed, is only a misdemeanor. 

What con- Accessory after the fact. — One who, knowing a felony 

stitutcs an ^0 havo been committed by another, receives, relieves, 
thrfact^ * ^' comforts, or assists the felon (6). What is required to 
make a person an accessory after the fact ? (a) There 
must have been some felony committed and completed ; 
(b) the party charged must have had notice, direct or 
implied, at the time he assists, &c., the felon, that he 
had committed a felony ; (c) he must have done some act 
to assist the felon personally. It will suffice if there 
has been any assistance given in order to hinder the 
felon's apprehension, trial, or punishment ; for example, 

(z) 24 & 25 Vict. ^. 94. ». 2. 

(a) Ibid. s. 1. 

(6) 1 Hale, P. C. 618. 



PEINCIPALS AND . ACCESSORIES. 37 

concealing him in the house, supplying him with horse 
or money to facilitate his escape. But merely suffering 
the principal to escape will not make the party an 
accessory after the fact (e). 

Eeceiving stolen goods, knowing them to have been Receivers, 
stolen, is generally treated as a separate offence ; the ^""^ *™'*- 
receiver being convicted of a felony, misdemeanor, or 
summary offence, according as the stealing of the pro- 
perty is a felony, misdemeanor, or offence punishable 
on summary conviction (c?). If, however, the stealing, 
obtaining, &c., is a felony, the receiver may be indicted 
either as an accessory after the fact, or for a substan- 
tive felony (e). 

We have noticed (/) that, as a rule, the wife is pro- Wife not an 
tected from criminal liability for acts committed in the thrfact^^"" 
presence of her husband. Much more, then, can she 
claim this immunity when the offence with which she 
is charged is that of receiving and assisting her hus- 
band. There is no exemption in respect of any other 
relation. Even the husband may be convicted for 
assisting his wife. 

An accessory after the fact to a felony may be tried Accessory after 
in the same manner as an accessory before the fact ; tried!"'' "^ 
that is, either as an accessory with the principal, or 
after his conviction, or as for a substantive felony, 
independently of the principal ■(^). He is, in general, 
punishable with imprisonment for any term not ex- 
ceeding two years (with or without hard labour), and 
may also be required to find security for keeping the 
peace, or, in default, to suffer additional imprisonment 



(c) 1 Hale, P. C. 618, &c. ; S. v. Chappie, 9 C. & P. 355. 

(d) V. p. 218. 

(«) 24 & 25 Vict. c. 96, s. 91. 

(/) y- p. 29- 

(g) 24 & 25 Vict. o. 94, s. 3. 



38 PBINCIPALS AMD ACCESSOKIES. 

for a period not exceeding one year (h). But an acces- 
sory after the fact to murder may receive sentence of 
penal servitude for life, or for any less term to five 
years, or imprisonment not exceeding two years (i). A 
receiver of stolen goods is liable to a maximum punish- 
ment of penal servitude for fourteen years (J). 

It has been observed that the distinction of prin- 
cipals and accessories is found only in the case of 
felonies. 

In treason, all As to treason — Both every kind of incitement which 
are puncipa s. -^^ ^ felony would make a man an accessory before the 
fact, and every kind of assistance which would make 
him an accessory after the fact, in treason will make 
the offender a principal traitor. This rule is said to 
exist propter odium delicti. 

In misde- As to misdemeanors — Those who aid or counsel the 

commission of the crime are dealt with as principals (k); 
those who merely assist after the misdemeanor has 
been committed are not punishable, unless indeed the 
act amount to the misdemeanor of rescue, obstructing 
the officer, or the like (l). 

Recapitulation. The following Outline of the present state of the 
law on the subject of degrees of guilt may serve to 
place the matter in a- clearer light : — 

There are no accessories in treason or misdemeanors, 
only in felonies. 

Principals, whether of the first or second degree, 
are virtually dealt with in the same way. 



(A) 24 & 25 Vict. c. 94, s. 4. 

(!) 24 & 25 Vict. c. 100, s. 67 ; 27 & 28 Vict. c. 47, s. 2. 

0) 24 & 25 Vict. c. 96, s. 91. 

14 24 & 25 Vict. c. 94, s. 8. 

(0 B. V. Greenwood, 21 L. J. (M. C.) 127. 



meanors, no 
accessories. 



PRINCIPALS AND ACCESSORIES. 39 

Accessories, whether before or after the fact, may be 
treated as such, or as charged with a substantiye felony; 
but if once tried in either of these capacities, the other 
may not be afterwards resorted to. 

Accessories before the fact receive the same punish- 
ment as principals ; accessories after the fact'generally 
imprisonment not exceeding two years. 

In the following imaginary case examples of each of 
the four kinds of participation in a crime will be found. 

A. incites B. and C. to murder a person. B. enters 
the house and cuts the man's throat, while C. waits 
outside to give warning in case anyone should approach. 

B. and C. flee to D., who, knowing that the murder has 
been completed, lends horses to facilitate their escape. 
Here B. is principal in the first degree, 0. in the second 
degree, A. is accessory before the fact, D. after the 
fact. 



( 40 ) 



BOOK II. 

Plan of the Cleakly it wiU be advisable to adopt some logical plan 
^''°^' in treating of the various offences which come under 

the cognizance of tribunals of criminal jurisdiction. 
Though, of course, crimes which primarily affect the 
state or the public also affect the individuals who con- 
stitute that state or public ; and crimes which in their 
immediate effect wrong individuals indirectly are pro- 
ductive of public evil, yet the division of crimes into 
Offences of a PuUio Nature and Offences of a Private 
Nature or against Individuals, may be resorted to with- 
out fear of confusion. There are other possible modes 
of arrangement ; for example, according to the different 
tribunals before which, or the different processes by 
which, the crimes are prosecuted (as in the French 
Penal Code), according to the punishments with which 
the crimes are visited, &c. 

Taking as the main division that indicated above, 
the general order will be determined, as far as possible, 
by the wideness of the province of the various crimes, 
thus commencing with offences against the law of 
nations. For the present no notice other than that 
which is merely incidental will be taken of offences 
which are merely punishable on summary conviction. 
A special chapter will be devoted to this subject. 



( 41 ) 



PART I. 

OFFENCES OF A PUBLIC NATURE. 



CHAPTEE I. 

OFFENCES AGAINST THE LAW OF NATIONS. 

Cektain offences are regarded as yiolating 'those un- what offences 
written laws which are admitted by nations in general, are punishable 

,... 1/. 1? under the law 

and which it is their duty to have enforced. It must of nations. 
not be assumed that any state is at liberty to take 
upon itself the punishment of an offence against the 
law of nations, if such offence is committed within the 
territories of a foreign jurisdiction. The most that it 
can do in such case is to demand that justice be done 
by the foreign state ; and if such state implicates itself 
in the offence by neglecting to proceed against the 
offender, then to put on pressure to enforce its require- 
ments. But the case is otherwise if the offence is 
committed in parts which are considered extraterritorial, 
such as the high seas. In these all nations equally 
have an interest, and will proceed against individuals 
who are there guilty of offences against the law of 
nations. 

PIBACY. 

The term includes both the common law offence, and 
also certain offences which have been provided against 
by particular statutes. 

Piracy at Common Law (a). — The offence consists in 

(a) Y. Phillimore, vol. i. c. xx. 



42 



OFFENCES AGAINST THE LAW OF NATIONS. 



Piracy at Committing those acts of robbery and depredation upon 
common law— ^j^g j^-gj^ ggg^g^ which, if Committed upon land, would 
what It IS. ^^^^ amounted to felony there (b). Each state is en- 
titled to visit the crime with the penalties which its 
own laws may determine (e). In England, formerly the 
Where tried, proper courts for the trial of piracy were the Admiralty 
Courts; but later, the trial was by commissioners 
nominated by the Lord Chancellor, in whose number 
were always found some common law judges (d). Now, 
the judges sitting at the Central Criminal Court 
and at the assizes are empowered to try cases of 
piracy (e). 



Essentials of 
the crime. 



The robbery must be proved as in ordinary cases of 
that crime committed on land. The taking must be 
without authority from any prince or state, for a nation 
cannot be deemed guilty of piracy. If the subjects of 
the same state commit robbery upon each other it is 
piracy. If the injur er and the injured be of different 
states the nature of the act will depend on the relation 
of those states. If in amity it is piracy ; if at enmity 
it is not, for it is a general rule that enemies can never 
commit piracy on each other, their depredations being 
deemed mere acts of hostility (/). 



The gist of the offence is the place where it is com- 



(b) 1 Russ. 144. V. Trial of Joseph Dawson and others, 13 Howell's 
State Trials (1696), 456. 

(c) T. Manning's Law of Nations, by Amos, 121. The crime has been 
thus defined by text writers on international law : " The offence of depre- 
dating on the seas without being authorized by any sovereign state, or with 
commissions from different sovereigns at war with each other " (Lawrence's 
Wheaton's Elements of International Law, 1863, p. 246). The definition is 
framed to exclude depredations by lawfully authorized privateers, &c. 

(d) 28 Hen. 8, c. 15. 

(e) 4 & 5 Wm. 4, o. 36, s. 22 ; 7 & 8 Vict. c. 2, s. 1. 

(/) V. In re Tivnan, 5 B. & S. 645 ; 2 Sir L. Jenk. 790 ; 1 Sir L. Jenk. 
xciv. 

It should be remembered that the Declaration of Paris (1856) contained 
a provision that privateering should be abolished, binding on the coun- 
tries parties to that declaration — Russia, Turkey, England, France, Italy, 
Austria, and Prussia. 



OFFENCES AGAINST THE LAW OF NATIONS. 43 

mittedj viz., the high seas, and within the jurisdiction 
of the Admiralty (gi). 

Piracy hy Statute. — By particular statutes certain Acts made 
acts are made piracy. Such are the following : — statute''^ 

For any natural born subject to commit an act of 
hostility upon the high seas against another of Her 
Majesty's subjects under colour of a commission from 
a foreign power (A), or, in time of war, to assist an 
enemy on the sea {i). 

For any commander, master of a ship, or any seaman 
or marine, to run away with the ship or cargo, or to 
yield them up Toluntarily to any pirate ; or to consult 
or endeavour to corrupt any such person to the com- 
mission of such acts ; or to bring any seducing message 
from any pirate, enemy or rebel ; or to put force upon 
the commander so that he cannot fight ; or to make, or 
endeavour to make, a revolt in the ship (A). 

For any person to have dealings with, or render any 
assistance to, a pirate (I). 

For any person to board a merchant ship and throw 
overboard or destroy any of the ship's goods (m). 

The punishment for piracy was formerly death. Punishment 
Now the offender is liable to penal servitude to the "^ P'™*!?- 
extent of life, or to imprisonment not exceeding three 
years. But piracy accompanied with an assault with 
intent to murder, or with wounding or endangering 
the life of any person on board of, or belonging to, the 
vessel, is still punishable with death {n). 



(g) As to the jurisdiction of the Admiralty, v. Archbold's Crim. Cases, 
452. 

(A) 11 & 12 Wm. 3, 0. 7, o. 8, made perpetual by 6 Geo. 1, c. 19. 

(0 18 Geo. 2, c. 30. 

Ik) 11 & 12 Wm. 3, 0. 7, s. 9. 

(0 8 Geo. 1, c. 24, s. 1, perpetual by 2 Geo. 2, u. 28. 

(m)Ibid. 

(n) 7 Wm. 4 & 1 Vict. c. 88, ss. 2, 3. 



44 OFFENCES AGAINST THE LAW OF NATIONS. 



OFFENCES AS TO SLAVES. 

Slave trade. This class of offences is connected with the last, 
inasmuch as the first and chief crime which we shall 
notice is declared to be piracy, felony, and robbery— 
viz., for any British subject, or person within British 
territory, to conyey away, or assist in conveying away, 
any person on the high seas as slaves, or ship them 
for such purpose (o). The punishment formerly was 
death, but now it is penal servitude to the extent of 
life, or imprisonment not exceeding three years (jp). 

Dealing in slaves and certain other offences are made 
felonies. And it is a misdemeanor for a seaman to 
serve on board a ship engaged in the slave trade {q). 

A recent statute consolidates the law on the subject 
of trading in slaves ; but it preserves the provisions 
noticed above (r). 

It will not be necessary to discuss any of the more 
obscure offences against the law of nations (s). 



(o) 5 Geo. 4, c. 113, s. 9. 
ip) 7 Wm. 4 & 1 Vict. c. 91, s. 1. 
(?) 5 Geo. 4, 0. 113, ss. 10, 11. 

(_f) 36 & 37 Vict. c. 88. v. R. v. Zuluda, 1 C. & K. 215. 
(s) As to the Violation of Safe Conducts and Passports, v. 4 St. Bl. 217. 
Violation of the Rights of Ambassadors, 4 St. Bl. 219 ; 1 Russ. 1024. 



( 45 ) 



CHAPTEE II. 

OFFENCES AGAINST THE GOVEENMENT AND 
SOVEREIGN. 

We now have to deal with offences committed by- 
members of the community in violation of their duties 
as subjects ; these offences for the most part also in- 
cidentally causing injury to individuals. The full 
treatment which the gravity of this class of crimes 
would demand is happily in many cases rendered un- 
necessary by the rarity of their occurrence. This is 
especially true of the crime of treason. 

TEEASON (t). 

The ordinary popular conception of treason, or, what Moral view 
is the same thing, the offence of a traitor, is something °^ 'i'^*^''"- 
of this sort, " armed resistance, justified on principle, 
to the established law of the land " (u). This is the 
most favourable view of the offence, the notion of 
"principle" obscuring its gravity. But the true 
conception of the crime includes acts which will be 
admitted on all hands to be highly morally heinous, 
far removed from justifiable and conscientious efforts 
for revolution. 



(i) Treason against the government was termed " high " treason to dis- 
tinguish it from "petit " treason, which consisted in the murder of a supe- 
rior by an inferior in natural, civil, or spiritual relation j " and therefore 
for a wife to kill her lord or husband, a servant his lord or master, and an 
ecclesiastic his lord or ordinary ; these, being breaches of the lower alle- 
giance of private and domestic faith, are denominated peat treason" 
(4 Bl. 75). But every offence which would previously have amounted to 
petit treason is now regarded simply as murder (9 Geo. 4, v;. 31, s. 2), 
therefore there is no longer any reason for distinguishing the graver offence 
by the epithet " high." 

(«) Fitz. St. 36. 



46 



OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 



Classification 
of treasonable 
acts. 



History of 
the law of 
treason. 



The crime comprises the three following classes of 
acts (x) : — 

" 1. Execution or contrivance of acts of violence 
against the person of the sovereign. 

2. Acts of treachery against* the state in favour of a 
foreign enemy. 

3. Acts of violence against the internal government of 
the country." 

In addition to these branches, the law includes a few 
acts which are of the rarest occurrence, and at the pre- 
sent day hardly demand any notice. 

In order to ascertain what constitutes treason, it will 
be necessary to glance at the early history of the crime. 
For a long period there was great vagueness and un- 
certainty as to what acts were treasonable, the conse- 
quence being that any deed which appeared to infringe 
the royal rights or to interfere with the royal autho- 
rity was construed into treason, though it lacked the 
essentials of that crime. Thus we are told (y) that un- 
lawfully taking the royal venison, fish, or goods, had 
the effect of making the taker a traitor. To remedy 
this evil, and to provide certainty in a matter of so great 
moment, an Act was passed in the reign of Edward III. (z). 
It will be well to give the actual words of the statute, 
and then to consider individually the offences with which 
it deals. 



25 Edw. 3. Treason is committed " when a man doth compass or 

imagine the death of our lord the king, or of our lady 



(ic) Fitz. St. 113. 

()/) Mirror, c. i. s. 4. 

(z) 25 Edw. 3, St. 5, c. 2. " This statute is memorable, not only on 
account of its vast direct importance at many periods of our history but 
also because it is almost the only instance which the statute book affords 
of a statutory definition of a crime, laid down in such a manner as to 

supersede the whole common law or unwritten doctrine on the subject " 

Fitz. St, 36. 



OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN, 47 

his queen, or of their eldest son and heir ; or if a man 
do violate the king's companion, or the king's eldest 
daughter unmarried, or the wife of the king's eldest son 
and heir ; or if a man do levy war against our lord the 
king in his realm, or be adherent to the king's enemies 
in his realm, giving them aid or comfort in our realm 
or elsewhere, and thereof be probably (or proveably, 
' provdblement ') attainted of open deed by people of 
their condition." So much for the political or quasi- 
political offences provided against; the statute pro- 
ceeds to define certain other acts of treason : " And if 
a man counterfeit the king's great or privy seal, or his 
money ; and if a man bring false money into this 
realm, counterfeit to the money of England, as the 
money called Lushburg, or other like to the said money 
of England, knowing the money to be false, to mer- 
chandize or make payment, in deceit of our said lord 
the king and his people ; and if a man slea the chan- 
cellor, treasurer, or the king's justices of the one bench, 
or the other justices in eyre, or justices of assize, and 
all other justices assigned to hear and determine being 
in their places, doing their offices." It is also provided 
that the judges shall not give judgment in any case 
which is supposed to be treason till it has been deter- 
mined by the king and parliament whether it ought to 
be treason or felony. 

As he glances through the acts here enumerated, the change in the 
reader will not fail to notice that treason was regarded §'?' °^ *•>' 

11* crime. 

as an offence rather against the person of the king 
than against the state. But in later times, with an 
altered state of circumstances, when the person of the 
king comparatively had been lost sight of in the 
consideration of the interests of the public, though 
the letter of the old law was preserved, by liberal 
construction it had been adapted to the new state of 
affairs. For example, levying war against the king was 
construed to include almost any act which was calcu- 
lated to tend towards the subverting of the constitution. 



48 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 

25 Edw. 3. (a.) Compassing or imagining the death of the Idng, 

queen, or eldest son and heir. — Here the " king " is to be 
understood to mean the king de facto, though he be not 
the king dejure. On the other hand, the person right- 
fully entitled to the crown, if not in possession, is not 
within the statute. The " queen " referred to is the 
queen consort, the queen regnant being included in the 
term " king." But against the husband of the queen 
regnant treason cannot be committed. 

It is the designing that constitutes the offence. But 
this design must be evidenced by some overt act, so 
that if there be wanting either the design, as in the 
case of killing the king by accident, or the overt act, 
as when the design has been formed, but laid aside 
before being put into execution, there is no treason. 

Overt act. "What will constituto an overt act ? Anything wil- 

fully done or attempted by which the sovereign's life 
may be endangered ; for example, conspirators meeting 
to consult on the means of killing the sovereign {a), or 
of usurping the powers of government (&) ; writings, if 
published, importing a compassing of the sovereign's 
death, and even words advising what would be an overt 
act will suffice as evidence of the design ; but not so 
loose words which have no reference to any designed 
act (c). 

25 Edw. 3. (b.) Violating the Icing's wife, the king's eldest daughter 

wnmarried, or the wife of the king's eldest son and heir. 
— By " violating " of course carnal knowledge is to be 
understood. The act is not divested of its treasonable 
character by the fact that the woman consents. In 
such a case both parties are guilty of treason. It has 
been said that the reason for making the violation of 



(n) R. V. Vane, Kel. 15. 

(6) B. V. Hardy, 1 East, P. C. 60. 

(c) y. R. V. Gordon, Doug. 593. 



OFFENCES A&AINST THE GOTEKNMENT AND SOVEREiaN. 49 

these particular persons treason, was to guard the blood 
royal from any suspicion of bastardy, whereby the suc- 
cession to the crown might be rendered dubious (d). 
But obviously this explanation is not supported by all 
the instances chosen. 

(c.) Levying! War against the Sovereign. — To constitute 25 Edw. 3. 
a levying there must be an insurrection, there must be ^^e*s\'^ievyi'ng 
force accompanying that insurrection, and it must be war. 
for an object of a general nature (e). But there need 
not be actual fighting : nor is the number of persons 
taking part in the movement material. 



The levying is either direct or eonstr'uetive. It is Levying, direct 

or coi 
tive. 



direct " when the war is levied directly against the °'' <='>°'t'""'^- 



Queen or her forces, with intent to do some injury to 
her person, to imprison her, or the like " (/) ; for ex- 
ample, a rebellion to depose her, delivering up the 
sovereign's castle to the enemy. Constructive treason 
is of a very different character, the end of the move- 
ment being rather the purification of the government 
than its overthrow. It is committed for the purpose 
of effecting innovations of a public and general nature 
by an armed force. Thus, it is treason to attempt by 
force to alter the religion of the state, or to obtain the 
repeal of its laws. So it is treason to throw down all 
enclosures, open all prisons ; but not if the attempt be 
to break down a particular enclosure, or deliver a par- 
ticular person from prison, because in these latter cases 
the design is particular and not general (g). 

(d.) Adhering to the Sovereign's enemies. — As in the 25 Edw. 
three former cases, this offence must be evidenced by 
some overt act, for example, to raise troops for the 
enemy, or to send them money, arms, or intelligence. 



(d) 3 Inst. 9. 

(<,') £. V. Frost, 9 C. & P. 129. 

(/) 1 Hale, P. C. 131, 132. 

(^) iJ. V. Oammaree, 8 St. Tr. 218. 



60 OFFENCES AGAINST THE GOVERNMENT AND SOVEEEIGN. 

By the " sovereign's enemies " are meant the subjects 
of foreign powers with which he is at war. It appears, 
therefore, that a Btitish subject, though in open re- 
bellion, can never be deemed an enemy of the sovereign, 
so as to make assistance rendered to him treason within 
this branch of the statute (h). 

25 Edw. 3. (e.) Slaying the] GhaneeUor, &e. — It will be observed 

that the statute applies only to the actual killing, not 
a mere attempt: to those judges only when actually 
acting in that capacity, and not at other times, and not 
to barons of the exchequer. 

Acts no longer Counterfeiting the great or privy seal is no longer 
treason. treason, but simple felony (i). It will be treated of 

under the title " Forgery " {j). So, also, coining 

offences are not now treason {It). 

Thus was the common law of treason declared by 
the statute of Edward III. This statute, with certain 
qualifications, is still in force ; in certain cases new 
statutes specially declaring that their provisions shall 
not affect anything contained in the statute (Z). 

Subsequent Subsequently, from time to time, parliament made 

number of° ^^^ <^*^®^ offences treason — notably several in the reign of 
treasonable Henry YIII., in the matter of religion. It also took 
upon itself the authority to declare certain acts, after 
they had been committed, to be treason (thus tres- 
passing into the province of the judge (m)); as, for 
example, stealing cattle by "Welshmen. AH these new 
treasons, however, were abrogated in the reign of 
Edward YI._ and Mary. Then, again, the statute of 
Edward Ill.'was restored to its place as the standard of 



(h) 1 Hale, P.O. 159; 3 Inst. 11. 

(i) 24 & 25 Vict. .;. 98, s. 1. 

ij) T. p. 250. 

(A) 24 & 25 Vict. c. 99, passim, v. p. 63. 

(0 v. 11 & 12 Vict. c. 12, s. 6. 

(m) Fitz. St. 36. 



OFFENCES AGAINST THE GOVERNMENT AND SOVEEEIGN. 51 

treason ; but additions to the number of treasonable 
offences have since been made by the legislature. The 
following still remain : — 

i. Endeavouring (to be evidenced by some overt act) 
to prevent the person entitled under the Act of Settle- 
ment from succeeding to the crown («). 

ii. Maliciously, advisedly, and directly, by writing 
or printing, maintaining that any other person has any 
right or title to the crown, otherwise than according to 
the Act of Settlement, or that the sovereign with the 
authority of parliament may not make laws and statutes 
to bind the Crown and descent thereof (o). 

iii. Compassing, imagining, inventing, devising, or 
intending death or destruction, or any harm tending to 
death or destruction, maim or wounding, imprisonment, 
or restraint of the person of the sovereign (p). 

There are some points in connection with the pro- Procedure m 
cedure in prosecutions for treason, which may be noticed fo™ tTeason'^ 
here more conveniently than in the second part. 

In the first place, no prosecution for treason can Limitation as 
take place after three years from the commission of *" *""^' 
the offence, if it be committed within the realm, unless 
the treason consist of a designed assassination of the 
sovereign (q). 

The prisoner indicted for treason (or misprision of Copy of indi.ct- 
treason) is entitled to have delivered to him, ten days ™°° ' ''' 
^ before the trial, a copy of the indictment, and a list of 
the witnesses to be called, and of the petty jurors, to 

(n) 1 Anne, st. 2, u. 17, ». 3, 

(o) 6 Anne, c. 7. 

(p) 36 Geo. 3, c. 7, s. 1, confirmed by 57 Geo. 3, v. 6, ». 1. The former 
statute also denominated certain other acts treason ; but all these oifences, 
with the exception of those against the person of the sovereign noticed 
abore, were converted into felonies by 11 & 12 Vict. u. 12, s. 1. v. Treason- 
Felonv, p. .'i4. 

(q) 7 & 8 Wm. 3, c. 3. 

E 2 



52 



OFFENCES AaAINST THE GOVERNMENT AND SOTEKEIGN. 



Overt act. 



Prisoner's" 
defence. 



Punishment for 
treason. 



enable him the better to make his defence (r). But 
the provision does not apply to cases of treason in 
compassing and imagining the death of the sovereign 
(or misprision of such treason) where the overt act is an 
act against the life or person of the sovereign. In such 
cases the prisoner is indicted, arraigned, and tried in 
the same manner and upon like evidence as if he stood 
charged with murder, though, if he is found guilty, the 
consequences are those of treagon (s). 

One overt act is sufficient to prove the treason, but 
any number may be mentioned in the indictment. To 
this overt act, or else to it and another of the same 
treason, there must be two witnesses, unless the accused 
confesses willingly (t). 

The prisoner may make his defence by counsel, not 
more than two, to be named by him, and assigned by 
the court or judge. He has the exceptional privilege 
of addressing the jury, notwithstanding that his counsel 
have delivered their speeches (m). ' 

Formerly the punishment for treason was of a most 
barbarous character. Males were drawn on a hurdle to 
the place of execution, and hanged, and cut down while 
alive ; afterwards they were disembowelled, the head 
was severed from the body, the body quartered, and 
the quarters placed at the disposal of the sovereign. 
By a wholesome statute, this proceeding was deprived 
of its more outrageous features, it being provided that 
beheading might be substituted by the sovereign, or 
the capital sentence might be altogether remitted (x). 
By the same Act the punishment of females, formerly 
burning alive, was changed to hanging. Now, by the 



(r) 7 Anne, c. 21, s. 11 ; 6 Geo. 4, c. 50, s. 62. 
(s) 39 & 40 Geo. 3, c. 93 : 5 & 6 Vict. c. 51, b. 1. 

(t) 7 & 8 Wm. 3, c. 3, ss. 2, 4 ; except in cases tried, as above, as for 
murder. 

(m) S. v. Collins, 5 C. & P. 305. 
(a;) 54 Geo. 3, o. 146. 



OFFENCES AGAINST THE GOVEBNMENT AND SOVEREIGN. 53 

Felony Act, 1870 (y), the only part of the sentence , 
which is retained in any case is the hanging. 

Certain additional consequences of conviction and 
attainder (z), viz., forfeiture of lands and goods, and 
corruption of blood, were abolished by the statute just 
mentioned (a), but certain incapacities were at the 
same time attached to convictions for treason or 
felony (b). 

MISPRISION OF TREASON. 

Misprision of treason consists in the bare knowledge Concealment of 
and concealment of treason, any degree of assent '''**^™- 
making the party a principal. At common law this 
mere concealment, being construed as aiding and 
abetting, was regarded as treason, inasmuch as, it will 
be remembered, there is no distinction into principals 
and accessories in treason (c). It was specially enacted 
that a bare concealment of treason should be held a 
misprision only (d). The only punishment now is im- 
prisonment. The party knowing of any treason must, 
as soon as possible, reveal it to some judge of assize, or 
justice of the peace. 

ATTEMPTS TO ALARM OR INJURE THE QUEEN. 

It will be remembered that at the beginning of the Acts tending to 
reign of Her Majesty a morbid desire for notoriety q^^ "'^ 
induced certain youths to annoy, her by discharging 
fire-arms at her person, or in her presence. To put an 
end to this, the legislature provided that deeds of this 
kind should be regarded as high misdemeanors (e). 
The acts enumerated are — To discharge, point, aim, or 



Cy) 33 & 34 Vict. c. 23, ». 31. 

(z) N.B. — A man is convicted when found guilty ; he was said to be 
attainted when judgment had been given, 
(a) 33 & 34 Vict. <;. 23, ». 1. 
(6) V. p. 445. 
(c) V. p. 38. 

Id) 1 & 2 Phil. & Mary, c. 10. 
(«) 5 & 6 Vict. c. 51. 



54 



OFFENCES AGAIlSrST THE GOVBENMENT AND SOTEKEIGN. 



Felonious com- 
passing to 
depose, levy 
war, induce 
invasion. 



present at the person of the Queen any gun or other 
arms, whether containing any explosive or destructive 
material or not ; to discharge any explosive substance 
near her; to strike or throw anything at her with 
intent to injure or alarm her, or break the public 
peace ; or in her presence to produce any arms or de- 
structive matter with like intent. The punishment is 
penal servitude to the extent of seven years, or im- 
prisonment not exceeding three years. To this, very 
appropriately, the court may add that the offender be 
whipped, publicly or privately, once, twice, or thrice 
during the term of imprisonment. 

TKEASON-PELONYj Or FELONIOUS COMPASSING TO LEVY 
WAE, ETC. 

Certain offences which had been declared treason by 
statute (/) were, by a later statute (ff), made felonies. 
To these, on account of their treasonable character, 
the name " treason-felony " is sometimes given. The 
acts enumerated are — Compassing, &c., to deprive or 
depose the sovereign from the style, honour, or name 
of the Crown of the United Kingdom, or other of her 
dominions ; (b) to levy war against the sovereign 
within the United Kingdom, in order by force or con- 
straint to compel her to change her measures or coun- 
cils, or to put force or constraint upon, or intimidate 
or overcome both Houses, or either House of Parlia- 
ment; (c) to move or to stir any foreigner or stranger 
with force to invade the United Kingdom, or any other 
of the sovereign's dominions. 

This compassing, &c., must be evidenced by some 
overt act, or by something published in printing or 
writing (A). Though the facts alleged in the indict- 



(/) 36 Geo. 3, c. 7, s. 1. 

(g) 11 & 12 Vict. c. 12, s. 3. 

(A) A third mode was mentioned — by open and advised speaking. But 
prosecutions for the prohibited practice, if they were expressed merely in 
this manner, were not to be had beyond two years from the passing of the 
Act (1848-1850), s. 4. 



OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 55 

ment, or pursued on the trial of any person indicted 
under this Act for felony, amount to treason, the 
person is not by reason thereof entitled to be acquitted 
of such felony ; but if tried for the felony he cannot 
afterwards be prosecuted for treason upon the same 
facts (i). The punishment may extend to penal servi- 
tude for life. 

SEDITION. 

Sedition is a comprehensive term, embracing all Sedition, wiiat 
those practices, whether by word, deed, or writing, '' ™°^'''' '°- 
which are calculated to disturb the tranquillity of the 
state, and lead ignorant persons to endeavour to sub- 
vert the government and the laws of the empire. The 
objects generally are to excite discontent or dissatis- 
faction, to stir up opposition to the government, and 
to bring the administration of justice into contempt (j). 

This description is somewhat vague; but in that 
respect it only resembles the offence itself. It is hard 
to lay down any decisive line, on one side of which acts 
are seditious, and on the other innocent. The term 
" sedition " is commonly used in connection with words 
written or spoken. It includes, however, many other 
acts, some of which are treated of separately ; for ex- 
ample, training to arms, unlawful secret societies or 
meetings, &c. 

What is sufficient to constitute seditious libels or Seditious libels 
words ? It may be answered generally — such political " ^^"^ 
writings or words as do not amount to treason (k), but 
which are not innocent. We have already seen what 
constitute treason. As to what are innocent : it is the 
right of a free subject to criticise and censure freely 
the conduct of the servants of the Crown, whether 
ministerial or judicial, and the acts of the government 



(i) 11 & 12 Vict. c. 12, s. 7. 

0) B. V. Sullivan, B. v. Pigott, 11 Cox, 44, 45. 

(/f) Though treason itself may be said to be a kind of sedition. 



56 OFFENCES AGAINST THE GOVEBNMENT AND SOVEBEIGN. 

and proceedings in courts of justice, so long as he does 
it not with malignity nor imputes corrupt or malicious 
motives (Z). The test proposed by an eminent autho- 
rity is the following : " Has the communication a plain 
tendency to produce public mischief by perverting the 
mind of the subject and creating a general dissatisfac- 
tion towards government " (m). 

Truth of Proving the truth of a seditious libel is no excuse 

seditious libel £qj, ^.jjg publishing it : nor will it extenuate the punish- 
no extenuation. ,^ 11 /\i*in 

ment, inasmuch as the statute (n), which allows the 

defendant charged with libel to plead the truth under 

certain conditions, does not apply to seditious libels (o). 

The punishment for seditious libels or words is fine 
and imprisonment. Punishable in the same way are 
slanderous words uttered to a magistrate. 

UNLAWFUL OATHS AND SOCIETIES. 

Unlawful Oaths. — At the end of the last century, in conse- 

caths. quence of sedition and mutiny having been promoted 

by persons banding themselves together under the 
obligation of an oath, an Act was passed to make 
criminally punishable those who took oaths of a certain 
character : — Any person administering or causing to 
be administered, or aiding in or being present at and 
consenting to such administering, any oath or engage- 
ment intended to .bind any person to engage in any 
mutinous or seditious purpose ; or to disturb the . 
peace; or to be of any society formed for such pur- 
pose ; or to obey the orders of a committee or body of 
men not lawfully constituted, or of any leader or com- 
mander or other person not having authority by law 
for that purpose ; or not to inform and give evidence 
against any associate or other person ; or not to dis- 



(?) S. V. Sullivan, &o., supra. 

(m) V. 1 Russ. 339. 

(n) 6 & 7 Vict. c. 96, s. 6. 

(o) £. v.-Duffy, 2 Co.x, 45 ; S. ,. Burdett, 4 B. & Aid. 95. 



OFFENCES AGAINST THE GOTEKNMENT AND SOVEREIGN. 57 

cover an unlawful combination, or illegal act, or illegal 
oath or engagement — is guilty of felony. The punish- 
ment is penal servitude from five to seven years. The 
same consequences also attend taking such an oath 
when not compelled to {jp). It will be observed that 
this statute is not confined to oaths administered for 
seditious and mutinous purposes, but applies to other 
unlawful combinations, e.g., to raise wages {q). 

A later statute {r) declares to be felony the taking 
part in administering any oath intended to bind a 
person to commit any treason, or murder, or any felony 
punishable with death. The punishment for such 
offence is penal servitude to the extent of life, or im- 
prisonment not exceeding three years. The punish- 
ment for taking such an oath is penal servitude for the 
same term (s). 

Persons taking these oaths by compulsion are not Oaths taken by 
excused on that account unless they disclose the cir- compulsion. 
cumstance to a justice of the peace, one of the secre- 
taries of state, or the privy council within, under the 
first statute, four days ; under the second statute, four- 
teen days {t). The oath need not be in any precise Form of oath. 
form so long as the parties understood it to have the 
force and obligation of an oath ; therefore, of course, it 
is not necessary that it should be taken on the 
Bible (m). 

Societies. — Societies are deemed unlawful combi- Unlawful 
nations if their members are required to take any ^°'='*''^'- 
oath or engagement which is unlawful under the two 
above-mentioned statutes of Greorge III., or is not 
required or authorized by law, or of which the mem- 

(p) 37 Geo. 3, c. 123, s. 1. 

((/) S. V. Marks, 3 East, 157. 

(r) 52 Geo. 3, o. 104, s. 1. 

(s) 7 Wm. 4 & 1 Vict. c. 91, s. 1. 

(i) s. 2 of each statute. 

(m) £. V. Lmelass, 6 C. & P. 596. 



58 OFFENCES AGAINST THE GOTEENMENT AND SOVEREIGN. 

bers subscribe any unauthorized test or declaration. 
Also societies the names of whose members or officers 
are kept secret; or which, consisting of different 
branches, elect committees or delegates to communi- 
cate with other societies {v). Exceptions are made in 
favour of societies for religious and charitable purposes 
and freemasons' lodges ; also as to declarations ap- 
proved of by two justices and registered according to 
the provisions of the Act. 

Proceedings may be taken against persons connected 
with such societies, either by way of summary con- 
viction before justices, or by indictment. In the latter 
case penal servitude to the extent of seven years may 
be awarded. The proceedings must be commenced in 
the name of the law officers of the Crown. 



OFFENCES AGAINST THE FOREIGN ENLISTMENT ACT. 

Foreign Enlist- The objcct of this statute (x) is to regulate the con- 
mo ^''*^' ^^'^^ °^ Majesty's subjects during the existence of 
hostilities between foreign states with which Her 
Majesty is at peace. The necessity for some regulations 
is obvious. Were English subjects allowed to inter- 
fere as they thought proper in foreign wars, the state 
would inevitably be involved in misunderstandings 
with the foreign powers. 

Two classes of criminal acts are dealt with : — 

Illegal enlistment. Illegal ship-building and ex- 
peditions. 

Offences cou- Illegal Enlistment — Doing any of the following acts 
neoted with -yyithout the Sovereign's licence is prohibited : (a) En- 

illegal enlist- . ...° ,, '^ , ,.,.', 

ment. listing, or mducmg any other person to enlist, m the 



(m) 39 Geo. 3, c. 79 ; 57 Geo. 3, o. 19 ; 9 & 10 Vict. c. 33. 
(») 33 & 34 Vict. li. 90, repealing 59 Geo. 3, c. 69. 



OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 59 

service of a foreign state at war with a friendly state ; 
(b) leaving Her Majesty's dominions (or inducing, &c.) 
with intent to serve such foreign state ; (o) embarking 
persons under false representations in order that they 
may be led to enter into such service ; (d) the master 
or owner of a ship taking illegally enlisted persons on 
board ship. In each case the offender may be punished 
by fine, or imprisonment not exceeding two years, or 
both. And in the case of illegally taking on board, 
the ship is detained until satisfaction is given; and 
illegally enlisted persons are put on shore and not 
allowed to return to the ship (y). 

Illegal Shijp-building, &c. — Building, (b) commission- illegally build- 
ing, (c) equipping, or (d) despatching a ship, knowing ^^' shhjT''"'"' 
or having reasonable cause to believe (the burden of 
proof lying on the builder that it is not illegal) that 
the ship is to be employed in the service of such a 
state, if done without licence, is punishable in the 
same way, and the ship and her equipments are for- 
feited to the Queen. If the contract for building the 
ship has been made before the beginning of the war, 
the builder or equipper is not punishable if he gives 
due notice to the Secretary of State, and insures that 
the ship will not be despatched until the termination 
of the war without the licence of the Queen (z). 

Augmenting, without licence, the warlike force of a other illegal 
ship in such service by adding to the number of guns, *'^'°' 
&c., is punishable in the same way (a). So, also, 
fitting out without licence a naval or military expe- 
dition against a friendly state, with the additional 
consequence that the ships, arms, &c., are forfeited (6). 

The offender may be tried within the jurisdiction Trial. 

(!/) 33 & 34 Vict. c. 90, ss. 4-7. 
{z) Ibid. ss. 8, 9. 
(a) Ibid. s. 10. 
lb) Ibid. s. 11. 



60 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN, 

where the oifence was committed, or where the offender 
may be (c). 

A judge of a superior court in the United Kingdom, 
or elsewhere of the highest British Court of criminal 
jurisdiction, may order the trial to be had at any place, 
the removal to which may be conducive to the interests 
of justice (d). If thought proper, proceedings may be 
taken contemporaneously against the offender and 
against the ship for forfeiture (e). 

DESERTION, MUTINY, AND INCITING THERETO. 

Inciting to Any person who maliciously endeavours to seduce a 

desertion or person Serving in Her Majesty's sea or land forces from 
his duty or allegiance, or incites him to any mutiny or 
mutinous practice, is guilty of felony. It is punishable 
with penal servitude to the extent of life, or imprison- 
ment not exceeding three years. The trial may be had 
at the assizes for any county in England (/). 

Desertion, &c., The above is the provision for punishment in the 

puni^ed under- Qj,^^^j^j.y gj-iminal courts. But it must be remembered 

Acts. that annually Mutiny Acts (one for the army and one 

for the marines) are passed. These regulate, among 

other things, the proceedings and punishments of courts 

martial. They declare that any person who, directly 

or indirectly, induces a soldier to desert is guilty of a 

misdemeanor, and, on conviction before two magistrates, 

may be imprisoned to the extent of six months. The 

deserter himself is punished with death, or such other 

punishment as shall be awarded by court martial. The 

Naval Disci- Naval Discipline Act (1866) (y) provides for the 

phne Act. punishment by court martial of mutiny and other 



(c) 33 & 34 Vict. c. 90, s. 17. 
Id) Ibid. s. 18. 
(e) Ibid. s. 20. 

If) 37 Geo. 3, c. 70, perpetual by 67 Geo. 3, c. 7. v. 7 Wm. 4 & 1 Vict 
c. 91, s. 1. 

(3) 29 & 30 Vict. c. 109, s. 10. 



OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 61 

offences committed by persons subject to that Act; 
mutiny with violence being made punishable with 
death. Punishments are also set forth for those who 
endeavour to seduce those subject to the Act from their 
allegiance (h). 

ILLEGAL TRAINING AND DRILLING. 

Meetings for the purpose of training or drilling to illegal training 
the use of arms without authority from the sovereign, *'"' drilling. 
or the lieutenant, or two justices of the peace of the 
county, are illegal. Any person who is present for the 
purpose of training or assisting in training is guilty of 
a misdemeanor, and is liable to penal servitude to the 
extent of seven years. If he is present for the purpose 
of being himself trained, he is punishable with fine 
and imprisonment not exceeding two years. The pro- 
secution must be commenced within six months after 
the offence committed. Any magistrate, constable, or 
peace officer may disperse such meetings, and arrest 
and detain any person present (i). 

UNLAWFUL DEALINGS WITH PUBLIC STORES. 

The law on this subject is consolidated by the Public Offences re- 
Stores Act, 1875 (k). Certain marks are appropriated p^^*i?f„ '."J,'^'. 
by the Grovernment for the distinguishing of naval 
stores, certain dealings with these marks are criminal. 
If any one without lawful authority, which he must 
prove, applies any of these marks in or on any such 
stores, he is guilty of a misdemeanor, and may be im- 
prisoned for a term not exceeding two years (l). If 
any one, with intent to conceal Her Majesty's property 
in such stores, obliterates these marks, wholly or in 



(h) See next page for general remarks as to the punishment of offences 
by those in the army or navy. 

(0 eOGeo. 3 & 1 Geo. 4, c. 1, ss. 1, 2. 
(A) 38 & 39 Vict. c. 25. 
(I) Ibid. s. 4. 



62 



OFFENCES AGAINST THE GOVEENMENT AND SOVEREIGN. 



part, he is guilty of felony, and is punishable with 
penal servitude to the extent of seven years (m). The 
unlawful possession of public stores is punishable on 
summary conviction (n). 



APPENDIX. 
OFFENCES BY MEMBEBS OF THE AEMY AND NAVY. 

Offences in the It will be Convenient here to see on what footing the 
navy ^""^ army and navy are with regard to proceedings and 
punishment for crime. 



Mutiny Acts, 
their punish- 
ments, &c. 



As to the army. — We have already noticed that 
Mutiny Acts are annually published for the govern- 
ment of the military forces. These Acts are substan- 
tially the same from year to year, though, of course, 
they may vary in their details and figures. Provision 
is made for the trial of military offenders by court 
martial. It is provided that every officer or private 
who shall incite or join any mutiny, or knowing of it 
shall not give notice to the commanding officer, or shall 
desert, or enlist in any other regiment, or sleep upon 
his post, or leave it before he is relieved, or hold cor- 
respondence with a rebel or enemy, or strike or use 
insolence to his superior officer; or disobey his lawful 
commands, shall suffer death or such other punishment 
as the court martial may inflict. Other offences are 
set forth and their punishments prescribed. The court 
martial may sentence any officer or soldier to de9,th, 
penal servitude, imprisonment, forfeiture of pay or 
pension, or any other punishment which shall accord 
with the usage of the service. No person acquitted or 
convicted by a civil magistrate or by a jury is to be 
tried by court martial for the same offence. 

The Mutiny Act does not, however, exempt soldiers 



(m) 38 & 39 Vict. c. 25, 
(n) Ibid. ss. 7-11. 



OFFENOES AGAINST THE GOVEBNMENT AND SOVEEEIGN. 63 

from being punishable by the ordinary criminal courts. Soldiers not 
It expressly proTides that nothing therein is to be con- ordinary'""' 
strued to extend to exempt any officer or soldier from criminal pro- 
being proceeded against by the ordinary courts of law, "'^ '°^'" 
when accused of felony or misdemeanor, or of any crime 
or offence other than the misdemeanors and offences 
mentioned in the Act. 

As to the navy. — The NaTal Discipline Act (1866) (o) Naval Disci- 
makes similar provisions for the navy as to courts 
martial, the trial of offences, no exemption from ordi- 
nary criminal jurisdiction, &c. 

COINAGE OFFENCES. 

So decidedly were offences relating to the coin re- Certain coinage 
garded as offences against the government, inasmuch ^™!.'treason 
as they not only infringed the royal prerogative, but 
also were calculated to make the public faith suspected, 
that in the statute of Edward III. two of them were 
declared treason, viz., (a) the actual counterfeiting the 
gold and silver coin of the realm, and (b) the import- 
ing such counterfeit money with intent to utter it, 
knowing it to be false {p). These offences were, how- 
ever, made felonies by a later statute {g). 

It may be noticed that at least one class of coinage 
offences, viz., uttering counterfeit money, might be 
dealt with as a particular case of obtaining goods or 
money by false pretences (r). 

The law on the subject under consideration has been 
consolidated by a recent statute (s). It will be our 
task to present its matter under several heads. 



(o) 29 & 30 Vict. c. 109. 
(p) V. p. 47. 
(?) 2 Wm. 4, c. 34. 
(f) Fitz. St. 141. 

{s) 24 & 25 Vict. c. 99. In the present division the quoting of a section 
must be understood to refer to this Act. 



64 OFFENCES AGAINST THE GOVERNMENT AND SOTEREIGN. 

Counterfeiting. A. Cowtiterfeiting Coin.— A distinction is made as to 
the kind of coin. Whosoever falsely makes or counter- 
feits any coin resembling, or apparently intended to 
resemhle or pass for 

i. The current gold or silver coin of this realm, com- 
monly called the Queen's money (t), 

ii. Foreign gold or silver coin (u), 

iii. The Queen's current copper coin (x), 

is guilty of felony, and is punishable, in the case of 
gold and silver coin of the realm, with penal servitude 
to the extent of life ; in the other cases, to the extent 
of seven years. 

Counterfeiting 

iv. Foreign coin other than gold or silver coin is a 
misdemeanor, punishable for the first offence with im- 
prisonment not exceeding one year; for the second 
offence with penal servitude to the extent of seven 
years (y). 

The offence is complete although the false coin has not 
been finished, or is not in a fit state to be uttered (z) ; 
much less is any attempt to utter necessary. Any one, 
not necessarily an of&cer from the mint, may at the 
trial prove the falseness (a). In this offence is included 
that committed by persons lawfully engaged in coining, 
who make the coin lighter or of baser alloy. The 
counterfeiting can generally only be proved by circum- 
stantial evidence; for example, by proof of finding 
coining tools in working order, and pieces of the money, 
some in a finished, some in an unfinished state. 

Colouring. B. Colouring Coin. — Colouring, washing, &c., coun- 



(f) s. 2. 
(») s. 18. 
{x) s. 14. 
(y) s. 22. 
iz) s. 30. 
(o) =. 29. 



OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 65 

terfeit coin, or any piece of metal with intent to make 
it pass for gold or silver coin ; or colouring, filing, or 
otherwise altering genuine coin with intent to make it 
pass for coin of a higher degree, is a felony punishable 
with penal servitude to the extent of life (6). 

C. Impairing, &c., Gold and Silver Coin. — Impairing, impairing. 
diminishing, or lightening any of the Queen's gold or 

silver coin, with the intent that it shall pass for gold 
or silver coin, is felony, punishable with penal servitude 
to the extent of fourteen years (c). 

Having in possession any filings, clippings, dust, 
&c., obtained by the above-mentioned process, is a 
felony, the limit of penal servitude for which is seven 
years (d). 

D. Defacing Coin. — Defacing the Queen's gold, silver, Defacing, 
or copper coin, by stamping thereon any names or 
words, although the coin be not thereby lightened, is a 
misdemeanor, punishable with imprisonment not ex- 
ceeding one year (e). It should be added that coin so 
defaced is not legal tender; and by the permission of 

the Attorney-General or Lord Advocate, any person 
who tenders or puts off coin so defaced may be brought 
before two magistrates, and on conviction be fined not 
exceeding forty shillings (/). 

E. Bwying or Selling, &c., Counterfeit Coin at lower Dealing in 
value. — Any person, without lawful authority or excuse coin°under its 
(the proof whereof lies on the accused), buying, selling, ^aiue. 
receiving, or putting off any counterfeit coin for a lower 

rate or value than it imports, is guilty of felony. If 



(6) s. 3. 

(c) ».4. 

{d) s. 5. 

(e) s. Iti. 

(/) s- 17. 



66 OFFENCES AGAIKST THE GOVERNMENT AND SOVEKBIGN. 

the counterfeit be of gold or silver the extent of penal 
servitude is life {g) ; if copper, the limit is seven 
years Qi). 

Importing. p. Importing and Exporting Counterfeit Coin. — Im- 

porting or receiving into the United Kingdom from 
beyond the seas, without lawful authority, &c., counter- 
feit gold or silver coin, knowing the same to be false 
and counterfeit, is a felony, punishable with penal 
servitude to the extent of life (i). It is said that im- 
porting the coin from the Queen's dominions beyond 
the seas does not fall within this section, because the 
counterfeiting there is punishable by the laws of Eng- 
land (y). Importing foreign counterfeit coin is a felony, 
the limit of the penal servitude for which is seven 
years (&). 

Exporting. Exporting, or putting on board any vessel for the 

purpose of being exported from the United Kingdom 
any coin counterfeit of the Queen's current coin, with- 
out lawful authority, &c., is a misdemeanor punishable 
with imprisonment not exceeding two years (T). 

uttering. G". Uttering Counterfeit Coin. — Tendering, uttering, 

or putting off counterfeit gold or silver coin, knowing 
the same to be false and counterfeit, is a misdemeanor 
punishable with imprisonment not exceeding one 
year (m). If at the time of uttering the offender has 
any other counterfeit coin in his possession, or if he 
within ten days utters another coin, knowing it to be 
counterfeit, the punishment may extend to two years (n). 
If the uttering is after a previous conviction for either 
of these offences, or for having in possession three or 



(a) S.6. 

(A) s. 14. 

(0 S.7. 

if) T. Arch. 788. 

(A) s. 19. 

(0 s. 8. 

(m) s. 9. 

In) ». 10. 



OFFENCES AGAINST THE GOTEENMENT AND SOVEEEIGN. 67 

more pieces of counterfeit, or for any felony relating 
to the coin, the utterer is guilty of felony, and may be 
sentenced to penal servitude for life (o). 

Uttering counterfeit coin meant to resemble a foreign 
gold or silver coin, is punishable for the first offence 
with imprisonment not exceeding six months ; for the 
second not exceeding two years. The third offence is 
a felony punishable with penal servitude to the extent 
of life (p). 

Uttering spurious coin, e.g., foreign coin, medals, 
pieces of metal, &c., as current gold or silver coin, with 
intent to defraud, is a misdemeanor punishable with 
imprisonment to the extent of one year (q). 

H. Having Counterfeit Coin in Possession. — Having Having in 
three or more counterfeit gold or silver coins in posses- possession. 
sion, knowing them to be counterfeit, and intending to 
utter or put off them, or any of them, is a misdemeanor 
punishable with penal servitude limited to five years (r). 
If after previous conviction for either of the misde- 
meanors mentioned in sects. 9 and 10, or any felony 
relating to the coin, the crime is a felony, and may be 
punished with penal servitude to the extent of life (s). 
If the coin is the Queen's copper coin the limit of the 
punishment is imprisonment for one year (t). Having 
in possession without lawful excuse more than five 
pieces of foreign counterfeit coin renders the possessor 
liable to a penalty on conviction before a justice (m). 

I. Making, &c., Coining Tools. — Knowingly and with- Making, &c., 
out lawful authority, &c., making or mending, buying *''°'^' 



(o) s. 12. 
Ip) ss. 20, 21. 
(?) s. 13. 
(r) s. 11. 
(s) s. 12. 
(0 s. 15. 
(k) s. 23. 

F 2 



68 



Trial whether 
coin is 

diminished or 
couDterfeit. 



OFFENCES AGAINST THE GOVERNMENT AND SOVEKEIGN. 

or selling, or having in custody or possession any coin- 
ing instrument or apparatus adapted and intended to 
make any gold or silver coin or foreign coin, is a felony 
punishable with penal servitude for life {x). If the 
instruments, &c., are designed for coining the Queen's 
copper coin, the limit of the penal servitude is seven 
years («/). 

Conveying out of the Mint, without lawful authority, 
&c., any coining instrument, or any coin, bullion, metal, 
or mixture of metals, is a felony punishable with penal 
servitude for life («). 

If in any case coin is suspected to be diminished or 
counterfeited, it may be cut, bent, &c., by any person 
to whom it is tendered ; the loss to fall on the deliverer 
if the coin is found to be counterfeit or unreasonably 
diminished ; on the person to whom tendered, if found 
correct (a). Provision is also made for the seizure by 
any one finding them of counterfeit coin or tools ; for 
the search for the same ; and for their ultimate delivery 
to the officers of the Mint or other persons duly autho- 
rized to receive them (h). 



CONCEALMENT OF TREASUEE TEOVE. 

Treasure trove. Treasure trove, that is, treasure found hid in (not 
upon) the earth, belongs to the sovereign or his gran- 
tees. The offence of concealing it was formerly punish- 
able by death ; now by fine and imprisonment (c). 

Other offences ^ variety of other offences affecting the sovereign 
government and government, and thence called contempts or high 
and sovereign. misdemeanoTS, might be noticed, but it will suffice here 



(») s. 24. 
(y) s. 14. 
(«) s. 25. 
(a) s. 26. 
lb) s. 27. 
(c) B. V. I'liomas, .S3 L. J. (M.C.) 22. 



OFFEKCES AGAINST THE GOVERNMENT AND SOVEEEIGN. 

merely to mention them, referring for a fuller notice 
to Blackstone's Commentaries. Contempts against the 
sovereign's title, as the denial of his right to the 
crown ; against his person and government, as drink- 
ing to the pious memory of a traitor; against his 
prerogative, as by disobeying his lawful commands; 
against his palaces or courts of justice, as by fighting 
in either ; maladministration of high offices ; embezzling 
the public money; selling public offices. These are 
generally punishable by fine and imprisonment, but 
are rarely made the subject of indictment, unless they 
fall within the province of some other crime. 

The subject of Prmmunire may also be dismissed Pi-fflmuniie, 
very summarily. The offence originally consisted in 
introducing a foreign power into the land, through 
obeying papal bulls and processes. The punishment 
for this was considered something terrible, the offender 
being put out of the king's laws and protection, his lands 
and goods forfeited, and himself imprisoned during the 
king's pleasure. These penalties of praemunire were 
afterwards by different statutes applied to other great 
offences, some having no connection with the original 
crime, for example, to restrain the importation or 
making of gunpowder (d). But, some of the statutes 
having become obsolete and others having been re- 
pealed, prosecutions of this nature are never now heard 
of. The reader will find a discursive treatment of the 
subject in Blackstone, or his modern editors (e). 



(li) 16 Car. 1, c. 21. 

(e) 4 Bl. 103 ; 4 St. Bl. 168. 



( 70 ) 



CHAPTER III. 

OFFENCES AGAINST RELIGION. 

Grounds on On what grounds does the state arrogate to itself the 
which the • j^^ q£ pimishing ofifences against Eeligion ? Cer- 

state punishes o -r , ° . . /./-iimiij.!. 1, 

oifenoes against tainly not as the minister oi trod, ihe state nas oD- 
leligion. served that certain acts or courses of conduct, which 

are forhidden by religion, are also productive of dis- 
order and mischief to the community. It has therefore 
provided for the punishment of those that offend, not 
in consequence of the breach of the law of God, hut 
as the result of the breach of the law of the country. 
That the state does not consider itself under an obliga- 
tion to enforce the law of morality, as such, is obvious 
from the fact that mere lying and other acts of im- 
morality are not within the pale of the criminal law. 
This violation of human law is the true ground of 
interference, though in some of the offences we shall 
notice it is impossible to shut our eyes to the fact 
that in early times the legislators did to some extent 
consider themselves authorized to punish mere ir- 
religion. 

APOSTACY BLASPHEMT. 

Apostacy. Apostacy, or the total remmciation of Christianity, 

was for a long period punished by the ecclesiastical 
courts only, at one time the punishment they awarded 
being death. Later, however, the civil power thought 
it necessary to interfere, " by not admitting those 
miscreants to the privilege of society who maintained 
such principles as destroyed all moral obligations " (/). 

(/) 4 Bl. 44. 



OFFENCES AGAINST BELIGION. 71 

It was provided that if any one educated in, or having 
made profession of the Christian religion, by writing, 
printing, teaching, or advised speaking, maintains that 
there are more Gods than one, or denies the Christian 
religion to be true, or the Holy Scripture to be of 
divine authority, for the second offence, besides being 
incapable of bringing an action, or being guardian, 
executor, legatee, or grantee, must suffer imprison- 
ment for three years without bail (ff). There shall be 
no prosecution for such words spoken, unless informa- 
tion of such words be given on oath before a justice 
within four days after they are spoken, and the pro- 
secution be within three months after such informa- 
tion (h). The offender is to be discharged, if, within 
four months after his first conviction, he renounces 
his error («). 

Blasphemy is also punishable at conlmon law by fine Blasphemy. 
and imprisonment. Christianity, as it is said, is a 
part of the law of England, and a gross outrage against 
it is to be punished by the state. The offences include 
not only the blasphemous libels by one who has been 
attached to the Christian religion and has apostatized, 
as to which we have seen particular provisions have 
been made, but also denying, whether orally or by 
writing, the being or providence of the Almighty, con- 
tumelious reproaches of our Lord and Saviour Christ, 
profane scoffing at the Holy Scriptures, or exposing 
any part thereof to contempt or ridicule (k). But the 
disputes of learned men upon particular points of reli- 
gion are not punished as blasphemy (T). It remains 
merely to add that the law is rarely put in force, and 
then only because the libel is of a most extravagant 
nature. 



(g) 9 & 10 Wm. 3, c. 32. s. 1 ; in the Revised Statutes, u. 35. 

(A) Ibid. s. 2. 

(j) Ibid. s. 3. 

Ik) V. 1 Russ. 332, 333. 

(T) For cases v. Arch. 814. 



72 



OPffBNCBS AGAINST RELIGION. 



Offences 
relating to 
public worship. 



DISTUEBING PUBLIC WOESHIP. 

Any person wilfully and maliciously or contemptu- 
ously disturbing any lawful meeting of persons as- 
sembled for public worship, or molesting the person 
officiating or any of those assembled, upon proof by 
two or more credible witnesses before a magistrate, 
must answer for such offence at the sessions, and upon 
conviction is fined forty pounds (m). Eiotous, violent, 
or indecent behaviour is also punishable on summary 
conviction (n). 



WITCHOEAFT, SOEOEBY, ETC. 

Witchcraft, &c. Punishment (generally death) for these supposed 
evil practices belonged to a state of society different 
from ours. It is only about a century and a half, how- 
ever, since an Act was passed to the effect that pro- 
secutions for such practices should cease ; at the same 
time making punishable by imprisonment persons pre- 
tending to use witchcraft, tell fortunes, or discover 
stolen goods by skill in any occult or crafty science (o). 

Palmistry, &c. By a later statute, persons using any subtle craft, 
means, or device, by palmistry, or otherwise to deceive 
Her Majesty's subjects, are dealt with in their true 
character, namely, as rogues and vagabonds, and are 
punishable by imprisonment (p). 

Under this head may be noticed the case of Eeligious 
Impostors, who are punishable by fine and imprison- 
ment. 

Two offences dealt with by the magistrates may be 
noticed here briefly : — 

Swearing. Profane swearing is punishable on summary con- 

viction by fine (cj). 



(m) 52 Geo. 3, c. 155, s. 12. 

(«) V. 23 & 24 Vict. c. 32, s. 2. 

(o) 9 Geo. 2, c. 5. 

ip) 5 Geo. 4, c. 83, s. 4. 

(?) V. 19 Geo. 2, o. 21. 



OFFENCES AOAINST EBLIGION. 73 

Profanation of the Sabbath is an offence which has Profanation of 
been brought into prominence through recent pro- "'^ Sabbath. 
secutions. The statute of Charles H. provides that no 
person may do any work of his ordinary calling upon 
the Lord's Day, works of necessity and charity only 
excepted, under penalty of five shillings. Nor may 
any one expose to sale any wares, on penalty of for- 
feiting his goods ; nor may drovers, &c., travel, under a 
penalty of forty shillings (r). But no prosecution for 
such offence may be commenced without the consent of 
the chief officer of the district, or of two justices, or of 
a stipendiary magistrate (s). 

Places of amusement, debate, &c., open on Sunday, 
admission to which is paid for, are to be deemed dis- 
orderly houses, and as such may be suppressed, and 
the keeper fined or imprisoned {t). The Crown has, 
however, recently been empowered to remit the penal- 
ties (m). 

Certain practices which were at one time criminally Heresy, and 
punishable, are now no longer so. Heresy which con- "^^^^ ^"^'^ 
gists not in a total denial of Christianity, but in an punishable 
open denial of some of its principal doctrines, as held ciminaiiy. 
by the church, has been again subjected only to eccle- 
siastical correction, pro salute animas (x). Offences 
against the National Church which are either negative, 
that is. Nonconformity, or positive, by reviling its 
ordinances, &c. {y), though nominally liable to legal 
penalties, are never practically made the subjects of 
prosecution (z). 



(r) 29 Car. 2, c. 7. 

(s) 34 & 35 Vict. o. 87, continued by subsequent statutes. 
(t) 21 Geo. 3, c. 49 ; v. p. 133. 

(m) 38 & 39 Vict. 0. 80; v. Terry v. Brighton Aquarium Co., L. R. 10 
Q. B. 306. 

(») 29 Car. 2, c. 9 ; 4 Bl. 49. 
(«/) v. 1 Edw. 6, u. 1 ; 1 Eliz. c. 2. 
(4 As to Simmy v. i St. Bl. 212. 



( 74 ) 



CHAPTEK IV. 

OFFENCES AGAINST PUBLIC JUSTICE. 

In the first place we shall treat of that class of offences 
against public justice which consist in avoiding oneself, 
or assisting another to avoid, the punishments awarded 
by a court of justice. 

Escape ; Breach of Prison ; Being at large during 
a term of Penal Servitude ; Eescue ; Obstruct- 
ing Lawful Arrest. 

ESCAPE. 

Escape, breach The distinction between the first two and fourth 
of prison, and offences has been thus put : — Where the liberation of 
tingulshed. the party is effected either by himself or others, with- 
out force, it is more properly called an escape; where 
it is effected by the party himself, with force, it is 
called prison hreaking ; where it is effected by others, 
with force, it is commonly termed a rescue (a). We 
have to consider the cases of delinquents in three posi- 
tions : the prisoner who escapes ; the person who aids 
him ; those in whose custody he is, whether officers of 
the law or private individuals. 

If a prisoner escapes out of the custody of the con- 
stable, before he is imprisoned, he is punishable with 
fine and imprisonment. 



Escape from 
officers. 



Officers who, after an arrest, negligently allow a 
prisoner to escape are punishable with fine ; if they 



(a) V. 1 Russ. 581 ; 1 Hale, P. C. 590. 



OFFENCES AGAINST PUBLIC JUSTICE. 75 

voluntarily permit it, they are deemed guilty of the 
same offence and are liable to the same punishment as 
the prisoner who escapes from their custody ; and this 
whether the latter has been committed to gaol, or is 
only under bare arrest. But the officer cannot be thus 
punished for a felony until after the original offender 
has been convicted. Before the conviction, however, 
he may be fined and imprisoned as for a misdemeanor. 
The allowing the escape is punishable criminally only 
if the original imprisonment were for some criminal 
matter. 

Private individuals having persons lawfully in their Escape from 
custody, who negligently allow an escape, are punishable P"™'® 
by fine or imprisonment, or both ; if volvmtarily, they 
are punishable as an officer would be under the same 
circumstances. Of course at any -time they may 
deliver the person in charge over to an officer. 

Aiding in the escape of a prisoner from a prison, Aiding to 
other than a convict, military, or naval prison (i), or, «=<=*?«• 
with intent so to aid, conveying to him a mask, disguise, 
instrument, or any other thing, is a felony punishable 
with imprisonment to the extent of two years (c). 
Aiding a prisoner in custody for treason or felony to 
make his escape from the constable or officer convey- 
ing him under a warrant to prison is a felony punish- 
able with penal servitude to the extent of seven 
years {d). Aiding a prisoner of war to escape is a 
felony punishable with penal servitude for life (e). 

BREACH OF PEISON. 



rison. 



The consequences of breach of prison vary according Breach of 
to the crime for which the prisoner is in custody. If P''" 



(6) As to these see the statutes quoted in Arch, 838-9. 
(o) 28 & 29 Vict. c. 126, ». 37. 
((/) 16 Geo. 2, c. 31, s. 3. 
(e) 52 Geo. 3, c. 156. 



76 OFFENCES AGAINST PUBLIC JUSTICE. 

he ia in custody for treason or felony, the breach is also 
felony and punishable by penal servitude to the extent 
of seven years ; and in the case of a man also by whip- 
ping once, twice, or thrice (/). If he is in custody for 
any other offence, the breach is a misdemeanor and 
punishable by fine and imprisonment. There seems 
also to be this difference between the two cases — in 
the first, it must be proved that the prisoner escaped ; 
in the second, this is not necessary. 

To constitute this offence there must be an actual 
breaking, though it need not be intentional. Merely 
getting over the wall and the like is an escape only. 
It will be a sufficient defence to prove that the prisoner 
has been indicted for the original offence and acquitted ; 
otherwise it is not material whether the accused was 
guilty of the original offence or not. 

" Prison " here includes any place where one is law- 
fully imprisoned, whether upon accusation or after con- 
viction ; for example, in the gaol or constable's house. 

BEING AT LARGE DTTRING TEEM OF PENAL SERVITUDE. 

Penal servitude was substituted for transportation in 
the year 1857 (g) ; but the incidents of the latter attach 
to the former. 

Escape from For a convict to be at large without lawful authority, 
servitude. which it lies on him to prove, before the expiration of 
"the term of transportation or penal servitude to which 
he was sentenced, is a felony punishable by penal servi- 
tude even to the extent of life, and previous imprison- 
ment not exceeding four years; or else by imprison- 
ment not exceeding two years (h). 



(/) 1 Edw. 2, St. 2, c. 1, in Revised Statutes 23 Edw. 1. Stat, de frang. 
pris. 

(3) 20 & 21 Vict. c. 3. 

(A) 5 Geo. i, 0. 84, s. 22 ; 4 & 5 Wm. 4, c. 67. 



OFFENCES AGAINST PUBLIC JUSTICE. 77 



EESCUE. 

Kescue is the forcibly and knowingly freeing another Rescue. 
from arrest or imprisonment. If the original offender 
is convicted, the rescuer is guilty of the same offence as 
such original, whether it be treason, felony, or misde- 
meanor. If the rescuer is thus convicted of felony, the 
punishment is penal servitude to the extent of seven 
years, or imprisonment from one to three years («') ; if 
of misdemeanor, fine or imprisonment, or both. If the 
original is not convicted, nevertheless the rescuer may 
be punished by fine and imprisonment as for a mis- 
demeanor (j). 

Eescuing or attempting to rescue a person convicted 
of murder, whilst proceeding to execution ; or rescuing 
out of prison a person committed for or convicted of 
murder, is a felony punishable with penal servitude to 
the extent of life, or imprisonment not exceeding three 
years (k). 

Eescuing or attempting to rescue an offender sen- 
tenced to penal servitude from a person charged with 
his removal, is a felony punishable in the same way as 
if the party had been in gaol (T). 

Another offence somewhat of the same character. Poundbreach, 
cattle instead of persons being rescued from the custody 
of the law, is Poundbreach. To rescue cattle distrained 
for rent or for damage feasant is a misdemeanor at 
common law, punishable by fine and imprisonment, or 
both. 

OBSTKUOTING LAVWUL AEEEST, ETC. 

To prevent the execution of lawful process is at all Obstructing 
times an offence, but more especially so when the '*'^^"' *''''*^'- 



(0 1 & 2 Geo. 4, c. 88, ». 1. 

If) 2 Hawk. c. 21, ,. 8. 

(4) 25 Geo. 2, c. 37. s. 9 ; 7 Wm. 4 & 1 Vict. c. 91, .-.. 1. 

(0 5 Geo. 4, c. 84, s. 22. 



78 OFFENCES AGAINST PUBLIC JUSTICE. 

object is to prevent the arrest of a criminal. It has 
been held that the party opposing such an arrest 
becomes thereby pariieeps criminis, that is, an accessory 
in felony, otherwise a principal {m). The statutes 
abolishing so-called sanctuaries or privileged places 
make opposition in those places a felony. 

An assault upon, resistance to, or wiKul obstructipn 
of, a peace officer in the execution of his duty, or any 
person acting in his aid ; or an assault upon any person 
with intent to resist or prevent the lawful apprehension 
or detainer of himself or of any other person for any 
offence, is a misdemeanor, punishable with imprison- 
ment to the extent of two years (w). Wounding, doing 
grievous bodily harm to, shooting at, or attempting to 
shoot at, any person with such intent, is punishable 
with penal servitude to the extent of life (o). 

Refusing to aid Not Only positively obstructing an officer, but also 
an officer. refusing to aid him in the execution of his duty in 
order to preserve the peace, is a crime. The latter 
offence is a misdemeanor at common law {p). 

PEEJUEY. 

Definition. The Crime committed by one who, when a lawful 

oath is administered to him in some proceeding in 
a court of justice of competent jwrisdiction, swears 
wilfully, absolutely, and falsely in a matter material to 
the issue or point in question (cj). 

False oaths not Such is the definition of perjury at common law. 
amounting to rjij^g qualification with which it must be taken will 

P6ritirv. 

appear below. Certain other false oaths are attended 



(m) 2 Hawk. c. 17, s. 1. 

(») 24 & 25 Vict. c. 100, s. 38. 

(o) Ibid. ». 18. 

ip) T. R. V. Brown, C. & M. 314. 

(?) 3 Inst. 164 ; t. E. t. Aylett, 1 T. R. 69. 



OFFENCES AOAINST PUBLIC JUSTICE. 79 

by the punishments of perjury, though they are not 
known by that name. And whenever an Act of Parlia- 
ment requires an oath to be taken, but does not make 
it perjury to take a false oath, though not perjury, the 
taking such oath is a misdemeanor (r) ; for example, the 
oath required to be taken before a surrogate in order 
to obtain a marriage licence (s). 

It may be necessary to remind the reader that the False affirma- 
false affirmation of a Quaker, Moravian, Separatist, or of *"'°^' 
any other person who is by law authorized to make an 
affirmation or declaration in lieu of an oath, is on the 
same footing, and visited with the same consequences, as 
perjury. 

The nature of the oath must first be considered : Nature of the 
a lawful oath taken in a judicial proceeding, adminis- '"'*''' 
tered within the authority of the tribunal &c., ad- 
ministering. As a rule it must be taken in a court of 
justice, but there are apparent exceptions ; for example, 
it has been held perjury for a clergyman to take a false 
oath against simony at the time of his institution {{). 
It is immaterial whether the oath be taken in the face 
of the court, or out of it by a person authorized to 
examine matters depending in it, as in the case of affi- 
davits ; or whether it be taken in relation to the 
merits of the cause, or in a collateral matter, for ex- 
ample, on inquiring into the sufficiency of bail (m). 
The oath must be taken before a person who has^Mm- 
diction of the cause, and lawful authority to administer 
the oath. Thus, in the case of a trial taking place 
where the court has no jurisdiction, a witness cannot 
be indicted for perjury thereat. Nor if the court, &c., 
has authority to administer some oath, but not that 
which is the foundation of the charge. Every court. 



(r) Fitz. St. 277. 
(s) B. V. Foster, R. & R. 459. 
(0 B. V. Lewis, 1 Str. 70. 
(w) 3 Russ. 3. 



80 OFFENCES AGAINST PUBLIC JUSTICE. 

judge, justice, officer, commissioner, arbitrator, or other 
person now or hereafter having, by law or by consent 
of parties, authority to hear, receive, and examine 
evidence, is empowered to administer an oath to all 
witnesses legally called (x). 

The taking of The oath must be taken falsely, wilfully, and ahso- 
theoath. lutely; "falsely" refers to the taking of the oath, 
not to the truth of what is sworn It is immaterial 
whether the fact which is sworn to be in itself true or 
false. The question is. Did the defendant believe 
what he said to be true ? If not, he is guilty of perjury. 
It is not necessary that he should know that it was 
untrue ; for he will be guilty if he swears to the truth, 
not knowing anything about the matter ; much moj^e if 
he swears to the truth, thinking what he swears is 
untrue. In other words, he is guilty if his intention 
can be proved to be to deceive. Thus he will not be 
innocent, though he swears that he only believes such 
and such to be the case, if he knows it to be not so. 
Of course it will be more difficult in such cases to 
establish the guilt of the defendant (y). As we have 
just seen, the answer must be given intentionally or 
wilfully ; it must also be given with some degree of 
deliberation. Mere inadvertence or mistake will not 
support the charge, as, if the witness is bewildered on 
cross-examination. Of course prevarication, though 
the actual words used are true, will not shield the 
defendant ; as when a witness assured the court that a 
man could not live for two hours longer if he went on 
as he (the witness) left him ; the fact being that at the 
time he was very well, but had got a bottle of gin to 
his mouth («). 

Materiality of The matter sworn to must be material to the cause 
the oath. depending in the court. If the matter is wholly 

(«) 14 & 15 Vict. c. 99, s. 16. 
ly) R. V. Pedley, 1 Leach, 327. 
(«) Loft's Gilb. Ev. 662. 



OFFENCES AGAINST PUBLIC JUSTICE. 81 

foreign to the purpose, or altogether immaterial, and 
neither any way pertinent to the matter in question, 
nor tending to aggravate or extenuate the damages, 
nor likely to induce the jury to give a readier credit to 
the substantial part of the evidence, it cannot be per- 
jury (a). Thus, if on a trial to determine whether a 
person is sane or not a witness introduces his evi- 
dence by giving an account of a journey which he 
took to see the party, and swears falsely in relation 
to some of the circumstances of the journey, this 
would not be sufficient to support an indictment for 
perjury (b). 

It is not necessary to constitute perjury that the 
false oath be believed, or that any person be damaged 
by it; for the prosecution is grounded, not on the 
damage to the party, but on the abuse of public justice. 
A false verdict is not regarded as perjury, because it is Acts not 
said the jurors do not swear to depose the truth, but jraoun'iig 

to pBriury. 

only to judge of the depositions of others. So the 



(a) 1 Hawk. u. 69, s. 8. 

(6) It is suggested that there is no solid ground for this rule as to 
materiality ; that it originated in a misapprehension. The authorities on 
which it is based " appear to be cases in which the witness misunderstood 
the gist of the question, and so- was rather mistaken than perjured. If 
this were so, the inference drawn from the cases ought to be, not that the 
circumstances must be material, but that the witness must understand that 
the court requires him to answer specifically upon these points. It ' is 
obviously a very diflFerent thing to give an answer circumstantially in- 
correct under a misapprehension of the point of the question asked, and 
wilfully to swear falsely on some circumstance collateral to the principal 
point at issue. It clearly ought to be the duty of the witness to give true 
answers to every question asked by the court. To allow him to answer 
immaterial questions falsely is to extend an arbitrary impunity to a certain 
number of perjuries, for it cannot be supposed that any witness knows at 
the time of swearing whether the question which he answers is material 
or not."— Kitz. St. 279. 

The groundlessness of this rule was adverted to by Erie, C.J., in the 
following terms : " Whenever the question arises whether a person may 
not be guilty of perjury, who, with intent to mislead the court, wilfully 
swears falsely on a matter which, in the opinion of the judge, is of doubtful 
admissibility, or immaterial to the inquiry, it will be one well worthy of 
the careful consideration of all the judges." — £. v. Mullany, 34 1. J. (M.C.) 
111. 



82 OTPBNCBS AGAINST PUBLIC JUSTICE. 

breaking of their oaths by interpreters, officers in 
charge of the jury, &c., does not amount to perjury ; 
inasmuch as it is an essential of perjury that the 
accused has been sworn to depose to the truth. 

Upon an indictment for perjury, it is sufficient if any 
one of the assignments of perjury be proTed (e). 

Procedure. Perjury is one of the offences included under the 

Vexatious Indictments Act ; and, therefore, no bill of 
indictment can be presented to or found by the grand 
jury unless one of the preliminary steps indicated in 
the Act has been taken (d). 

Any Judge (e) may direct the prosecution of a person 
who appears to have been guilty of perjury in his 
evidence given before him, and may commit the accused 
to gaol unless he gives sufficient security for his ap- 
pearance at the assizes (/). 

There must be It is a well-known rule that the testimony of a 
two witnesses giggle witness is not sufficient to convict on a charge 
of perjury. Two witnesses at least must contradict 
what the accused has sworn ; or, at any rate, one must 
so contradict, and other evidence must materially cor- 
roborate that contradiction (g). But this rule does not 
apply when the perjury consists in the defendant's 
having contradicted what he swore on a former occa- 
sion ; in this case the testimony of a single witness in 
support of the defendant's own original statement will 
suffice (h). The reason usually assigned for the rule is, 
that if one witness were allowed to suffice to prove 
perjury, it would only be oath against oath. But other 



(o) S. V. Rhodes, 2 Lord Eaym. 886. 

(d) V. p. 344. 

(e) As to who are comprised in this term, see the Act. 
If) 14 & 15 Vict. c. 100, s. 19. 

(3) T. R. V. Boviter, 21 L. J. (M.C.) 57 ; 5 Cox, 543. 
(/i) B. V. Knill, 5 B. & Aid. 929, n. 



OFFENCES AGAINST PtTBLIO JUSTICE. 83 

considerations, such as the great necessity for the pro- 
tection of witnesses, also have weight (i). 

Perjury is a misdemeanor. At one time it was Punishment, 
punished with death; afterwards with fine and im- 
prisonment. Now the punishment is again more severe, 
namely, penal servitude to the extent of seven years, or 
imprisonment to the same extent Qc). 

STJBOKNATION OF PEKJUEY. 

The procuring another to take such a false oath as Subornation, 
constitutes perjury in the principal (Z). The offence 
does not amount to subornation if that other does not 
actually take the false oath; hut it is nevertheless 
punishable. 

The punishment for subornation is the same as for 
perjury itself; and the same course has to be taken 
under the Vexatious Indictments Act (m). 

VOIiUNTAKY OATHS. 

It will be remembered that in a former chapter (w) it Administering 
was shewn that administerinar or taking certain oaths o^' t*i^i°g 

•Ti 1 T (V • I ^ m-i • voluntary 

was illegal and an ofience against G-overnment. This oaths. 
section deals with quite another matter. The evil to 
be guarded against in this case is the misuse of a valu- 
able engine of the law, and the consequent weakening 
of its effect when resorted to on proper occasions. 

It is unlawful for a justice of the peace or other 



(i) T. Best, Et. 751. This rule seems to be a second instance (v. p. 24) 
of the law's interference with the province of the jury. It should always be 
a part of their duty to estimate the credibility of witnesses. 

(^) 2 Geo. 2, c. 25, s. 2. In cases where another's life is wilfully " sworn 
away " by a perjurer, it is hard to see why the latter should not be regarded 
as guilty of murder. The punishment foi' the crime is by no means 
excessive. 

(0 4 Bl. 138. 

(m) For a list of statutes applicable to perjury, &c., v. Arch. 866. 

(n) V. p. 56. 

G 2 



84 OFFENCES AGAINST PUBLIC JUSTICE. 

person to administer or receive, or cause or allow to be 
administered or received, any oath, affidavit or solemn 
affirmation touching any matter whereof he has not 
jurisdiction or cognizance by some statute in force (o). 
The olBfenee is a misdemeanor, punishable by fine or 
imprisonment, or both. The administering, &c., is 
punishable, although the person did not act wilfully in 
contravention of the statute, but only inadvertently (jo). 

FALSE DECLAEATIONS. 

Statutes • A great number of statutes declare punishable false 
declarations* ^* declarations with regard to the subjects with which 

such statutes deal. We will merely mention a few of 

the chief (q) : — 

Parliamentary elections : 6 Vict. c. 18, s. 81 ; 35 & 36 
Vict. c. 33. 

Municipal elections: 5 & 6 Wm. 4, c. 76, s. 34; 
35 & 36 Vict. c. 33. 

Under the Bankruptcy Act, 1869 : 32 & 33 Vict, 
c. 62, s. 14. 

In matters relating to the Customs, Excise, &c : 
16 & 17 Vict. c. 107, s. 198 ; 18 & 19 Vict. c. 96, s. 38. 

Before Eegistrars as to Births, Marriages, or Deaths: 
6 & 7 Wm. 4, c. 86, s. 41 ; 37 & 38 Vict. c. 88, ss. 40, 46. 

Before Magistrates : 5 & 6 Wm. 4, c. 62, s. 18. 

BEIBEKY. 

The corrupt treatment of one intrusted with a public 
charge, to influence him in the discharge of his duty in 
that character. 



(o) 5 & 6 Wm. 4, c. 62, s. 13. 

(p) B. V. Nott, 12 L. J. (M.C.) 143. 

(?) ^ /'^ll list ^ill be found in Arch. 866, and with more detailed 
treatment m Rose. 465. 



OFFENCES AGAINST PUBLIC JUSTICE. 85 

The offence, -which may be thus generally defined, Bribery a wide 
comprises acts differing considerably from each other. *'''™" 
They may be divided into two classes : — 

1. Where some person concerned in the administra- 
tion of public justice (r) is approached by one bringing 
him a reward, in order to influence his conduct in his 
office. 

2. Where some person having it in his power to pro- 
cure, or aid in procuring, for another a public place or 
appointment, is so approached (s). 

1. The offence of offering to, or receiving by, an officer. Bribery to 
judicial or ministerial (t), an undue reward to influence ^l^T^f^^"'^' 
his behaviour in his office, is a misdemeanor punishable in office. 

by fine and imprisonment. Both the giver and the 
taker are guilty. And though the reward be refused, 
the offerer is equally punishable for the attempt. The 
offence is not restricted to the case of influencing the 
higher officers, such as judges or members of the 
Government ; but extends to those in a subordinate 
position, for example, constables, as if one bribe a 
constable to refrain from executing a warrant. A par- 
ticular species of bribery, viz., corruptly influencing 
jurymen, will be treated of hereafter under the title 
embracery (m) 

2. For the sake of convenience we may distinguish Bribery to pro- 
two varieties of this offence :— ™''" ^^''' *'• 

i. When the place or appointment is in the gift of 
some public officer. 

ii. When it is determined by public election. 

i. This offence may also be regarded as following 

(r) V. infra, as to ministerial officers. 

(s) y. 1 Hawk. c. 67, ss. 1-3. 

(i) The text books, in general, confine the offence of bribery to a bribery 
of judicial officers ; but this definition of the offence seems too narrow. 
Arch. 870. 

(m) v. p. 89. 



86 OFFENCES AGAINST PUBLIC JUSTICE. 

under the first class (1), inasmuch as the presentation 
to the place by the public officer is one of the duties of 
his office. The offence is a misdemeanor. Even the 
attempt to procure an appointment by offering a sum 
of money to a cabinet minister was punished as a mis- 
demeanor («). 

Consequences By particular statutes it has also been provided that 
°n puHif'"^ persons selling public offices shall lose all right to the 
offices. appointment, and the buyers shall not only be ejected, 

but also be disabled from ever holding such office («/). 
Those buying or selling, or receiving or paying money 
or rewards for offices, are guilty of a misdemeanor (z). 
So also are persons who do not thus directly buy or sell, 
but who pay money for soliciting or obtaining offices, 
or any negotiations or pretended negotiations relating 
thereto (a). Certain other offences in connection with 
the traffic in offices (b) are dealt with ; and certain excep- 
tions are made, for example, the sale of commissions in 
the army (c). 

ii. Bribery at elections. 

Bribery at As to parliamentary elections. — The law on this sub- 

eil^rtfons™'"^ ject is contained chiefly in the Corrupt Practices Pre- 
vention Act, 1854 (d), amended by later statutes. 

On the part of The offences declared to be bribery on the part of the 
the candidate, (.g^^^^g^ate or his agents are the following : — 

(a.) To, directly or indirectly, by himself, or by any 

(») R. v. Vaughan, 4 Burr. 2494. 

(i/) 5 & 6 Edw. 6, c. 16, s. 2 ; 49 Geo. 3, c. 126, s. 1. 

{z) 49 Geo. 3, c. 126, s. 3. 

(a) Ibid. s. 4. 

(6) As to what offices are within the statute, v. 1 Russ. 216 ; 3 Chittv 
St. 465. ■" 

(o) It is almost needless to remind the reader that the force of this 
exception was taken away be the Royal Warrant of July, 1871 abolishing 
purchase, v. 34 & 35 Vict. c. 86. " 

{d) 17 & 18 Vict. c. 102, amended by 21 & 22 Vict. u. 87 ■ 26 Vict 
u. 29 ; 30 & 31 Vict. c. 102, s. 49 ; 31 & 32 Vict. c. 125, ss. 43-47. 



OFFENCES AGAINST PUBLIC JUSTICE. 87 

other person on his behalf, giye, lend, or agree to give 
or lend ; or offer, promise, or promise to procure, or to 
endeavour to procure, any money, or valuable considera- 
tion (e), to or for any voter, or to or for any person on 
behalf of any voter, or to or for any other person, in 
order to induce any voter to vote, or refrain from voting, 
or to corruptly do any such act as aforesaid on account 
of such voter having voted or refrained from voting at 
any election. 

(b.) To give, &c., any office, plaee, or employment, under 
the same circumstances. 

(c.) To do any of the things mentioned above, in order 
to induce the person benefited to procure, or endeavour 
to procure, the return of any person, or any vote. 

(d.) The act of the person so procuring, &c. 

(e.) To pay, &c., money, with the intent that it shall 
be expended in bribery ; or knowingly to pay it in dis- 
charge of what has been so expended. 

The offender is guilty of a misdemeanor, and is 
punishable by fine and imprisonment. He is also 
liable to forfeit £100 to any one who shall sue for the 
same (/). 

The following are offences on the part of the voter. On the part of 
and are punishable in the same way, except that the ^^^ ^°''^''' 
sum to be forfeited is only £10 : — 

(a.) Before or during the election, directly or indi- 
rectly, to receive, agree, or contract for any of the 
above-mentioned benefits, for voting or refraining from 
voting. 

(b.) After an election to receive any money or valuable 
consideration on account of having voted or refrained 



(e) Including paying the voter's rates, &c., 30 & 31 Vict. u. 102, ». 49, 
If) 17 & 18 Vict. c. 102, 5. 2. 



88 



Treating. 



Undue 
influence. 



Further 
offences. 



OFFENCES AGAINST PUBLIC JUSTICE. 

from voting, or having induced any other person so 
to do (ff). 

Treaiing — Defined to be, giving, ~&c., meat, drink, 
or entertainment to any person, to influence his vote — 
subjects the ofi'ender to a penalty of £50 (h). 

Undue influence — Defined to be, threats of any force, 
violence, or restraint; or intimidation by menace of 
injury, harm, or loss ; or any abduction or fraudulent 
device, by which the exercise of the electoral franchise 
is impeded or prevented — is a misdemeanor, punishable 
by fine and imprisonment, and forfeiture of £50 as 
above (»'). 

By a later statute {j) it is a misdemeanor, punishable 
by fine and imprisonment, for any candidate to mate 
any payment except through authorized agents ; or for 
a candidate or his agent to furnish an untrue statement 
of expenses. 

Proceedings on the above ofiences must be commenced 
within a year from the time of the ofi'ence com- 
mitted Qt). 



Disquaiifioa- Certain disqualifications also attach to candidates and 
to" tho^se'guiity others who have been found guilty of bribery. Among 
of bribery. other things, the candidate is rendered incapable of 

sitting in the House of Commons within seven years 

after the offence Q). 

As to municipal elections. — Any person who is guilty 
of a corrupt practice at such an election is liable to the 



((/) 17 & 18 Vict. u. 102, s. 3. 

(A) Ibid. s. 4. 

(0 Ibid. s. 5. 

O') 26 Vict. c. 29, ss. 2, 4. 

(/t) 17 & 18 Vict. c. 102, s. 14; 26 Vict. >;, 29, s. 5 

(0 31 & 32 Vict. c. 125, ss. 43^7. 



OFFENCES AGAINST PUBLIC JUSTICE. 89 

like actions, prosecutions, penalties, forfeitures, and 
punishments, as if the corrupt practices had been com- 
mitted at a parliamentary election (m). 

EMBKACEBY, ETC. 

Embracery is an attempt to influence a jury cor- Embracery. 
ruptly to give a verdict in favour of one side or party, 
by promises, persuasions, entreaties, money, entertain- 
ments, and the like. Thus it appears to be a particular 
kind of bribery. A juryman himself may be guilty of 
this ofi'ence by corruptly endeavouring to bring over 
his fellows to his view. The offence is a misdemeanor, 
both in the person making the attempt, and also in 
those of the jury who consent. The punishment— both 
at common law and by statute — is fine and imprison- 
ment (n). 

There are certain other acts interfering with the free Other offences 
administration of justice at a trial, which are considered "f^^J^ili^ * 
as high misprisions and contempts, and are punishable 
by fine and imprisonment. Such are the following : — 

Intimidating the parties or witnesses. 

Endeavouring to dissuade a witness from giving evi- 
dence, though it be without success. 

Advising a prisoner to stand mute. 

Assaulting or threatening an opponent for suing 
him ; a counsel or attorney for being employed against 
him ; a juror for his verdict ; a gaoler or other minis- 
terial officer for what he does in the discharge of his 
duty. 

For one of the grand jury to disclose to the prisoner 
the evidence against him. 



(m) 35 &36 Vict. c. 60, b. 3. 
(n) 6 Geo. 3. c.^0, s. 61. 



90 OFFENCES AGAIKST PUBLIC JUSTICE. 

There are three offences, somewhat liable to con- 
fusion, which consist in an unlawful interference in 
another's suit, or in stirring up such suits : — 

Common Barratry ; Maintenance ; Champerty. 

COMMON BABBATBY. 

Common The offence of frequently inciting and stirring up 

barratry. ^^j^^ ^^^ quarrels between Her Majesty's subjects, 
either at law or otherwise (o). It is insufficient to 
prove a single act, inasmuch as it is of the essence of 
the offence that the offender should be a common bar- 
retor. Of course it is no crime for a man frequently to 
bring actions in his own right, though he be unsuccess- 
ful, unless they are purely groundless and yexatious. 

The offence is a misdemeanor, punishable by fine 
and imprisonment. If the offender is connected with 
the legal profession, he is disabled from practising for 
the future. If, having been convicted of this offence, 
he afterwards practises, the court may inquire into the 
matter in a summary way ; and on the subsequent 
practising being proved, the offender may be sentenced 
to penal servitude to the extent of seven years (p). 

Suing in name Another offence of a like nature may be noticed, 
pMntiff""^ namely, suing in the name of a fictitious plaintiff. If 
committed in the superior courts it is a high contempt, 
punishable at their discretion. If in the inferior courts, 
it is punished by imprisonment for six months, and 
treble damages to the person injured {q). 

MAINTENANCE. 

Maintenance. The officious intermeddling in a suit that in no way 
belongs to one, by maintaining or assisting either 



(o) 4 Bl. 134. 

ip) 12. Geo. 1, c. 29, s. 4, made perpetual. 

(<7) 8 Eliz. 0. 2. 



OFFENCES AGAINST PUBLIC JUSTICE. 91 

party with money or otherwise, to prosecute or defend 
it {r). It is a misdemeanor punishable by fine and 
imprisonment (s). 

It has been declared to be maintenance to bear the 
whole or part of the expenses of the suit for another, or 
to retain a solicitor or counsel for him. But acts of 
this kind are justifiable in respect of an interest in 
the thing in variance, as that of a reversioner; of 
kindred or affinity; of other relations, e.g., landlord and 
tenant, master and servant; of charity, e.g., to enable a 
poor man to carry on his suit ; of the profession of the 
law, e.g., to act as counsel or solicitor. And it may be 
said generally, that the courts would be very loth at 
the present day to declare an act of this kind to be an 
offence criminally indictable, unless some corrupt 
motive were manifestly present. This remark also 
applies to the next ofience. 

CHAMPERTY. 

Champerty is a species of maintenance. The dis- Champerty, 
tinguishing feature is, that the bargain is made with 
the plaintiff or defendant campum partire, that is, in 
the event of success to divide the land or other subject- 
matter of the suit with the champertor in consideration 
of his carrying on the party's suit at his own expense. 
Thus it has been held punishable as champerty to com- 
municate such information as will enable a party to 
recover a sum of money by action, and to exert influ- 
ence in procuring evidence to substantiate the claim, 
upon condition of receiving a portion of the sum 
recovered (t). 



(r) 1 Hawk. c. 83, s. 23. 

(s) This maintenance is sometimes termed euralis, to distinguish it from 
another species — ruralis, which latter consists in assisting another to his 
pretensions to lands, or holding them for him by force or subtility, or 
stirring up quarrels or suits in the county, in relation to matters wherein 
he is no way concerned. (Bac. Abr.) This seems to approach the crime 
of barratry. 

(t) Stanley v. Jones, 7 Bing. 869. 



92 OFFENCES AGAINST PUBLIO JUSTICE. 



COMPOUNDING OFFENCES. 

Mere forbear- Fortunately, or unfortunately, in England, there is 
ance to prose- j^ official as a public prosecutor. Moreover, a 

cute, no crime. -t ,%. , , j. xt. i • 

private individual is not obliged to set the law m 
motion for the prosecution of a criminal, though, as we 
shall see, he is punishable for the concealment of 
treason or felony (m). Thus, merely to forbear to pro- 
secute is no offence ; there is wanting something else 
to constitute a crime, and this essential is the taking 
some reward or advantage. 

Under this title we shall treat of compounding 
(a) felonies J (b) misdemeanors; (c) informations on 
penal statutes; noticing also the offence of taking 
rewards for helping to recover stolen goods. 

Compounding (a.) Compounding felony, or forbearing to prosecute 
felony. ^ felou ou accouut of somc reward received, is a misde- 

meanor, punishable by fine and imprisonment {y). Of 
course the reward need not be of a monetary nature, 
but may be any advantage proceeding from or on 
behalf of the felon and accruing to the person who for- 
bears. The most common form of this crime is what 
was anciently known as theft-bote, that is, the forbear- 
ing to prosecute a thief, on consideration of receiving 
one's stolen goods back again, or other advantage. But 
the mere taking back stolen goods, without shewing any- 
favour to the thief, is no crime. After the compound- 
ing, the compounder having prosecuted the felon to 
conviction, the judge directs an acquittal for the com- 
pounding (w). 

To corruptly take any reward for helping a person 

(«) T. p. 94. 

(«) It must be confessed that the English system, by leaving prosecutions 
to so great an extent in private hands, does its best to encourage this class 
of offence. 

(w) B. V. Stone, 4 C. & P. 379. 



OFFENCES AGAINST PUBLIC JUSTICE. 



93 



to property stolen or obtained, &c., by any felony or Taking reward 
misdemeanor (unless all due diligence to bring the 3^^,^° pj"." 
offender to trial has been used), is a felony punishable perty, &o. 
by penal servitude to the extent of seven years (a;). An 
advertisement offering a reward for the return of stolen 
or lost property, using words purporting that no ques- 
tions will be asked, or seizure or inquiry made after the 
person producing the property, or that return will be 
made to any pawnbroker or other person who has 
bought or made advances on such property — renders the 
advertiser, printer, and publisher liable to forfeit £50 
each (j/). But an action cannot be brought to recover 
the forfeiture from the printer or publisher except 
within six months after the forfeiture is incurred ; nor 
at all without the consent of the Attorney or Solicitor 
General (z). 

(b.) Compounding misdemeanors seems strictly to be Compounding 
illegal, as impeding the course of public justice. But ™'' emeanor,',. 
after conviction, the court not uncommonly allows a 
course to be adopted which comes to the same thing. 
If the misdemeanor principally and more immediately 
affects an individual (such as one for which he might 
sue and recover in a civil action), as a battery, impri- 
sonment, or the like, the court sometimes permits the 
defendant to speak with the prosecutor, before any judg- 
ment is pronounced ; and if the prosecutor declares him- 
self satisfied, inflicts but a trivial punishment {a). But 
this will not be allowed if the offence is of a more 
public nature (fc). 

(c.) Compounding informations upon penal statutes. — 
In order to promote the discovery and punishment of 



(k) 24 & 25 Viot. 0. 96, s. 101. 

(!/■) Ibid. s. 102. 

(«) 33.& 34 Yiot. c. 65, s. 3. 

(a) This course is pursued to reimburse the prosecutor for his expenses, 
and make him some private amends without the trouble and circuity of a 
civil action. But it surely is a dangerous practice. 4 Bl. 363. 

(6) V. Keir v. Leeman, 6 Q. B. 308 ; 9 Q. B. 371. 



94 



OFFENCES AGAINST PUBLIC JUSTICE. 



Compounding Crime, many statutes imposing a penalty on the offender 
ii" ^'"enaT' ^™^^ *^® penalty, either in part or in whole, to any 
statutes. person who prosecutes, hence termed a common in- 

former. It is clearly a gross abuse of this arrangement, 
not only tending to "the escape of offenders, but also 
encouraging malicious threats of proceedings, for a 
person to take a reward on condition that he do not act 
as an informer. Accordingly it has been enacted that 
if any person informing, under pretence of any penal 
law, makes any composition without leave of the court, 
or takes any money or promise from the defendant to 
excuse him, he forfeits £10, and is liable to such im- 
prisonment and further fine as the court shall award, 
and is for ever disabled from suing on any popular 
or penal statute (c). A person may be thus convicted 
of taking a reward for forbearing to prosecute, although 
no offence liable to a penalty has been committed by 
the person from whom the money is taken (d). 



Misprision of 
felony. 



MISPRISION OF FELONY. 

Misprision of felony is the concealment of some 
felony (other than treason (e)) committed by another. 
There must be knowledge of the offence merely, with- 
out any assent ; for if a man assent, he will either be a 
principal or an accessory. Thus one will be guilty of 
misprision who sees a felony committed and takes no 
steps to secure the apprehension of the offender. The 
offence is a misdemeanor, punishable by fine and im- 
prisonment. 



CEDIINAL DEALINGS WITH EEOORDS. 

Records: steal- Certain offcnccs with regard to judicial records and 
ing, forging, documents are severely punished. They chiefly fall 
under the heads of " Larceny " and " Forgery." A mere 



&c 



(c) 18 Eliz. c. 5 ; 56 Geo. 3, c. 138, s. 2. 

(d) S. V. Best, 9 C. & P. 368. 

(e) Misprision of treason, v. p. 53. 



OFFEKCES AGAINST PUBLIC JUSTICE. 95 

enumeration of the chief of these offences will suffice 
here, more particulars being given under the titles 
referred to above : — 

Stealing, injuring, &c., records, &c. : 24 & 25 
Vict. c. 96, s. 30 (/). 

Forging, &c., records, &c : 24 & 25 Vict. c. 98, 
SB. 27-31 (g). 

For an employee in the Eecord Office to certify a 
writing as a true copy of a record knowing it to 
be false, is punishable by penal servitude to the 
extent of life, or imprisonment from two to four 
years (h). 

EXTORTION AND OTHER MISCONDUCT OF PUBLIC OFFICERS. 

Every malfeasance, or culpable . non-feasance of an Misconduct 
officer of justice, with relation to his office, is a misde- ™ °''''^^- 
meaner punishable by fine or imprisonment, or both. 
Forfeiture of his office, if a profitable one, will also 
generally ensue. Under the term "officers of justice" 
are included not only the higher officers, as judges, 
sheriffs, but also those of a lower rank, as constables, 
overseers, &c. 

As to malfeasance (i). — In cases of oppression and Malfeasance. 
partiality the officers are clearly punishable : and 
not only when they act from corrupt motives, but even 
when this element is wanting, if the act is clearly 
illegal (k), for example, for a magistrate to commit in 
a case in which he has no jurisdiction. The proceed- 
ings will generally be by impeachment, or information 
in the Queen's Bench, according to the rank of the 
offender ; but an indictment will also lie. 



(/) V. p. 192. 

(<7) V. p. 251. 

(A) 1 & 2 Vict. c. 94, s. 19. See also Evidence Amendment Act, 14 & 
15 Vict. c. 99. For a full list of offences of the nature of forgeries of 
records, v. Arch. 631. 

(j) Bribery, v. p. 84. 

(k) S. V. Sainsbury, 4 T. R. 451. 



96 OFFENCES AGAINST PUBLIC JUSTICE. 

Extortion. Extprtion, in the more strict sense of the word, 

consists in an officer's unlawfully taking, by colour of 
his office, from any man, any money or thing of value 
that is not due to him, or more than is due, or before 
it is due (I). But it is not criminal to take a reward, 
voluntarily given, and which has been usual in the 
case, for the more diligent or more expeditious per- 
formance of his duty. 

Non-feasance. As to non-feasance. — An officer is equally liable for 
neglect of his duty as for active misconduct. Thus an 
-overseer is indictable for not providing for the poor (m). 
A refusal by any person to serve an office to which he 
has been duly appointed, and from which he has no 
ground of exemption, is an indictable offence. 



Contempt of 
court. 



CONTEMPT OF COUET. 

A contempt of court is a disobedience to the rules, 
orders, process, or dignity of a court which has power 
to punish such offences. It is only courts of record 
that have power to fine and imprison for contempt of 
their authority (w). The offence is by no means con- 
fined to what is popularly known as "contempt of 
court " : it includes a variety of acts, some of which 
appear to have only a remote connection with the 
courts. 



Contempts may be divided into two classes : — 

1. Direct, "which openly insult or resist the powers 
of the courts, or the persons of the judges who preside 
there." 



(0 4 Bl. 141. 

(m) V. also 11 Geo. 1, c. 4. 

(ra) Courts of Record are those whose judicial acts and proceedings are 
enrolled in -parchment for a perpetual memorial and testimony; which 
rolls are called the records of the court, and their truth cannot be ques- 
tioned. This power to fine and imprison is one of their chief distinguishing 
marks; and the yery erection of a new jurisdiction with power of fine and 
imprisonment, makes it instantly a court of record, v. 3 St. Bl. 269. 



OFFENCES AGAINST PUBLIC JUSTICE. 97 

2. Consequential, " which (without such gross inso- 
lence or direct opposition) plainly tend to create an 
nniyersal disregard of their authority." 

They may be also thus classified : — 

1. Those committed in the court itself — for example, 
by persistently applauding during a trial, or any other 
wilful disturbance. 

2. Those committed out of court — for example, by 
tampering with witnesses, jurors, &c. 

The following are the chief instances (o) : — Chief cases of 

contempts. 

(a.) By inferior judges and magistrates — by acting 
unjustly, oppressiTely, or irregularly in their admi- 
nistration; or by disobeying writs issued out of the 
superior courts ; by proceeding in a cause after it has 
been put a stop to or remoyed by writ of prohibition, 
certiorari, error, supersedeas, and the like. These are 
regarded as contempts of the superior courts (and 
especially the Queen's Bench Division), which have a 
general superintendence over all inferior jurisdictions. 

(b.) By sheriffs, bailiff's, gaolers, and other officers of 
the court — by abusing the process of the law, or deceiv- 
ing the parties by any acts of oppression, extortion, 
collusive behaviour, or culpable neglect of duty. 

(c.) By solicitors, who are also officers of the courts 
by gross instances of fraud and corruption, injustice to 
clients, or other dishonest practices (p). 

(d.) By jurymen — in collateral matters relating to 
the discharge of their office, as by making default when 
summoned ; refusing to be sworn or to give any ver- 
dict ; eating or drinking without the leave of the 
court — especially at the cost of either party; and 



(o) 2 Hawk. c. 22. 

If)) As to a barrister, v. Fx parte Pater, 5 B. & .S. 'A'J'J. 

H 



98 OFFENCES AGAINST PUBLIC JUSTICE, 

other misbehaviour of a similar kind ; but not in the 
mere exercise of their judicial capacities, as by giving 
a false or erroneous verdict. 

(e.) By witnesses — by making default when sum- 
moned ; refusing to be sworn or examined, or prevari- 
cating in their evidence when sworn. 

(f.) By the parties to any suit or proceeding before 
the court, who by force or fraud wilfully prevent or 
obstruct the course of justice ; also by disobedience to 
any rule or order, made in the progress of a cause ; by 
non-payment of costs, or by non-observance of awards 
which have been made rules of court. 

(g.) By any persons — including a great variety of 
acts which imply disrespect to the court's authority. 
Any riotous, noisy, or indecent conduct in court, calcu- 
lated to interrupt the proceedings, or to bring discredit 
upon the court. 

Contempts Of another class are those committed by the offender 

of"ourL^ °"' ^°* present in court — for example, by disobeying or 
treating with disrespect the Queen's writ, or the rules 
or process of the court; by perverting such writ or 
process to the purposes of private malice, extortion, or 
injustice; by speaking or writing contemptuously of 
the court or judges, acting in their judicial capacity ; 
by printing false accounts of causes then depending in 
judgment ; and by anything, in short, that demonstrates 
a gross want of that regard and respect, which when 
once courts of justice are deprived of, their authority 
is entirely lost among the people (q). 

Proceedings. The proceedings on a contempt of court are of two 
kinds : — 

1. If the contempt is committed in the face of the 
court — the offender may be instantly apprehended and 

(([) As to contempt in general, see Miller v. Knox, 4 Bing. N. C. 574. 



OFFENCES AGAINST PUBLIC JUSTICE. 99 

imprisoned at the discretion of the judges, -without any- 
further proof or examination. 

2. In the case of contempts committed out of court — 
if the judges see sufficient ground to suspect that a 
contempt has been committed, they either make a rule 
on the suspected party to she-w cause -why an attach- 
ment should not issue against him ; or in very flagrant 
cases, the attachment issues in the first instance. 



H 



( 100 ) 



CHAPTEE V. 



Offences more 
particularly 
against the 
public peace. 



OFFENCES AGAINST THE PUBLIC PEACE. 

Many of the crimes mentioned in other chapters in- 
volve a breach of the peace. But the offences now to 
be dealt with are those in which the breach of the 
peace is the prominent feature. In some, for example 
in libel, at first sight the injury done to the individual 
appears to be the principal point ; but a consideration 
of the way in which the law deals with the offence 
shews that it is otherwise. Thus, proof of the truth of 
a libel will not amount to a defence, unless it was for 
the public benefit that the matter should be published. 



Unlawful 
assembly. 



Eout. 



EIOTS (f). 

There are two minor offences, which, as steps to the 
graver crime of riot, must first be noticed. 

An unlawful assembly is any meeting of three or more 
persons under such circumstances of alarm, either from 
the large numbers, the mode or time of the assembly, 
&c., as in the opinion of firm and rational men are 
likely to endanger the peace ; there being no aggressive 
act actually done (s). All parties joining in and 
countenancing the proceedings are criminally liable. 
It is generally considered that the intention must be 
to do something which, if actually executed, would 
amount to a riot if). 

A rcut is said to be the disturbance of the peace 



(r) For riotous destruction of churches and other buildings, t. p. 266. 

(s) R. V. Vincent, 9 C. & P. 91 

(i) For unlawful assemblies of another nature, v. p. 57. 



OFFENCES AGAINST THE PUBLIC PEACE. 101 

caused by those who, after assembling together to do a 
thing which, if executed, would amount to a riot, pro- 
ceed to execute that act, but do not actually execute it. 
It differs from a riot only in the circumstance that the 
enterprise is not actually executed. 

A riot is a tumultuous disturbance of the peace by Riot. 
three or more persons, assembling together of their own 
authority, with an intent mutually to assist one another 
against any who oppose them in the execution of some 
enterprise of a private nature, and afterwards actually 
executing the same, in a violent and turbulent manner, 
to the terror of the people, and this whether the act 
intended be of itself lawful or unlawful (u). 

An example will more clearly shew the difference 
between these three crimes. A hundred men armed 
with sticks meet together at night to consult about the 
destruction of a fence which their landlord has erected : 
this is an unlawful assembly. They march out together 
from the place of meeting in the direction of the fence : 
this amounts to a rout. They arrive at the fence and, 
amid great confusion, violently pull it down : this is a 
riot. 

To constitute a riot, the object need not be unlawful, E.ssentiais of a 
if the acts are done in a manner calculated to inspire '^"*'" 
terror. But there must be an unlawful assembling : 
therefore a disturbance arising among people already 
met together will be a mere affray ; unless, indeed, 
there be a deliberate forming into parties. The object 
must be of a local or private nature ; otherwise, as if to 
redress a public grievance, it amounts to treason (x). 

The gist of the offence is the unlawful manner of 
proceeding, that is, with circumstances of force or 



(u) 1 Hawk. c. G5j 
(/) V. p. 49. 



102 OFFENCES AGAINST THE PUBLIC PEACE. 

Tiolence. Therefore assemWing for the purpose of an 
unlawful object, and actually executing it, is not a riot, 
if it is done peaceably (y). 

These three offences are misdemeanors, punishable 
by fine or imprisonment, or both. 

Eiot Act. For the case of riots which assume a more formid- 

able aspect further provision is made by statute (z). If 
twelve or more persons are unlawfully assembled to 
the disturbance of the peace, and being required by 
proclamation (a), by a justice of the peace, sheriff, or 
under-sheriff, mayor, or other head officer of a town, 
to disperse, they then continue together for an hour 
after, they are guilty of felony, and liable to penal 
servitude to the extent of life, or imprisonment not 
exceeding three years (6). It is a felony attended by 
the same punishment to oppose the reading of the pro- 
clamation ; and this opposition will not excuse those 
who know that the proclamation would have been read, 
had it not been for this hindrance (c). Prosecutions 
under this Act must be commenced within twelve 
months after the commission of the offence (d). 

A course of proceeding founded on an old statute (e), 
still unrepealed, is provided for offences of this character. 
Any two justices, together with the sheriff or under- 
sheriff of the county, may come with the posse comi- 
tatus {i.e., a force consisting of all able-bodied men 
except clergymen) and suppress a riot, rout, or unlaw- 



(i/) V. 1 Hawk. c. 65. 

(z) Riot Act, 1 Geo. 1, st. 2, c. 5. 

(a) " Reading the Eiot Act." 

(b) 1 Geo. t, St. 2, u. 5, b. 1. The form of proclamation is prescribed by 
the statute, " Our sovereign lord the king chargeth and commandeth all 
persons being assembled, immediately to disperse themselves, and peaceably 
to depart to their habitations, or to their lawful business, upon the pains 
contained in the Act made in the first year of King George, for preventing 
tumults and riotous assemblies — God save the King." 

(o) Ibid. 5. 5. 
Id) Ibid. b. 8. 
(e) 13 Hen. 4, u. 7. 



coTnitatus. 



OFFENCES AGAINST THE PUBLIC PEACE. 103 

ful assembly; may arrest the rioters; and make a 
record of the circumstances on the spot, which will be 
sufficient evidence of the conviction of the offenders. 
Any battery, wounding, or killing that may happen in 
suppressing the riot is justifiable. 



AFFEAT. 

A fighting between two or more persons in some Affray. 
fulMo place, to the terror of Her Majesty's subjects ; 
for example, a prize fight. If it takes place in private, 
it will be an assault. It differs from a riot, inasmuch 
as there must be three persons to constitute the latter, 
and also in not being premeditated. 

Mere quarrelsome or threatening words do not 
amount to an affray; though of course, according to 
first principles (/), a person may be guilty of an affray, 
though he uses no actual force himself; for example, 
by assisting at a prize fight. The offence may be aggra- Aggravations. 
vated in several ways ; for example, on account of its 
dangerous tendency, e.g., a duel ; on account of the 
position of the person against whom it is committed, 
e.g., an arresting officer ; on account of the place where 
it happens, e.g., in a church or churchyard. In the last 
case even quarrelsome words are punishable. 

An affray may be suppressed and the parties sepa- Suppression 
rated by a private person who is present; and of ^"'^ P"°'^''" 
course a peace officer is bound to interfere. The 
offence is a misdemeanor, punishable by fine or im- 
prisonment, or both. 

CHALLENGE TO FIGHT. 

To challenge to fight, either by word or letter ; or challenge to 
(b) to be the bearer of such challenge ; or (c) to pro- ''§''*■ 

(/) ,. p, 33. 



104 



OFFENCES AGAINST THE PUBLIC PEACE. 



voke another to send a challenge, is a misdemeanor 
punishable by fine or imprisonment, or both It is not 
necessary that actual fighting should follow. Provoca- 
tion, however great, is no justification {g), though it 
may mitigate the sentence of the court. 



Threatening 
letters. 



E-xtoi'tiun by 
means of 
threats. 



SENDING THREATENING LETTERS. 

It is very obvious that the receipt of- a threatening 
letter is not unlikely to lead to a breach of the peace 
on the part of the receiver. Therefore to prevent such 
breach, and at the same time to punish what is an 
ofi'ence against the security of the subject, it has been 
provided that, if any person, knowing the contents, 
sends or delivers any letter or writing threatening to 
burn or destroy any house, barn, or other building, or 
grain or other agricultural produce in a building, or 
any ship ; or to kill, maim, or wound any. cattle, he is 
guilty of felony, and may be punished by penal servi- 
tude to the extent of ten years Qi). The same conse- 
quences are attached to sending letters threatening to 
murder («). 

J It will be convenient to notice here certain other cases 
of sending threatening letters, though their nature 
admits also of their being treated of under the title 
"Larceny." If any person, knowing the contents, sends 
or delivers any letter or writing, demanding with menaces 
and without reasonable cause any chattels, money, or 
other property, he is punishable for the felony by penal 
servitude to the extent of life (/«). If the threaten- 
ing be otherwise than by letter, the limit of the penal 
servitude is five years (l). Sending a letter or writing 
containing to the knowledge of the sender accusations 
or threats to accuse any person of a crime punishable by 



((/) E. V. Sice, 3 East, 581. 
(A) 24 & 25 Vict. c. 97, =. 50. 
(j) Ibid. c. 100, s. 16. 
(*) Ibid. c. 96, s. 44. 
(0 Ibid. ». 45. 



OFl'BNOES AGAINST THE PUBLIC PEACE. 105 

law with death or penal servitude for not less than 
seren years, or of an assault with intent to commit 
a rape, or of an attempt to commit a rape or an 
unnatural crime — is a felony punishable by penal 
servitude to the extent of life (m). The punishment is 
the same though the threat to accuse of any of these 
crimes be not by letter (n). It is immaterial whether 
the person threatened be innocent or guilty of the 
offence imputed to him (o), inasmuch as the gist of the 
offence is the extortion. The same punishment is 
awarded in the case of one inducing another by 
violence or threats to execute a deed, &c., with intent 
to defraud (jp). 

LIBEL AND INDICTABLE SLANDER. 

Offences of this class are rightly considered as 
affecting the public peace, inasmuch as their tendency 
is directly to provoke breaches of the peace. This will 
appear from the definition of a libel. 

A libel is a malicious defamation made public either Definition of 
by printing, writing, signs, pictures, or the like, tend- ' '^ ■ 
ing either to blacken the memory of one who is dead, 
or the reputation of one who is alive, by exposing 
him (or his memory) to public hatred, contempt, or 
ridicule (q). 

To those who are aggrieved by a libel two courses 
are open, either to prosecute the offender criminally by 



(m) 24 & 25 Vict. c. 96, ». 46. 

In) Ibid. 3. 47. 

(o) S. r. Gardner, ) C. & P. 479. 

Ip) 24 & 25 Vict. c. 96, s. 48. 

(q) V. 1 Hawk. u. 73, This definition refers only to private libels, and 
not to those, already noticed, of a seditious, blasphemous, or indecent 
nature (v. pp. 55, 71). But in all cases of libel the ground of criminal 
proceedings is the same, namely, "the public mischief which libels are 
calculated to create, in alienating the minds of the people from religion 
and good morals, rendering them hostile to the government and magistracy 
of the country, and where particular individuals are attacked, in causing 
such irritation in their minds as may induce them to commit a breach of 
the peace." 1 Russ. 321. 



106 



OFFENCES AGAINST THE PUBLIC PEACE. 



Civil and 
criminal pro- 
ceedings in 
libel. 



indictmeiit or information, or to seek redress by a civil 
action. This is the general rule, but there are cases 
where the injured party has a remedy by action, though 
the wrongdoer is not criminally punishable. The 
principle is that whenever an action will lie for a libel 
without shewing special damage (in other words, where 
the particular injury to the individual is not the 
prominent feature, but the incitement to a breach of 
the peace is) an indictment will also lie. While, on 
the one hand, there are cases (the gist of which is the 
loss to the person libelled and not the public offence) 
which are the subject of civil but not of criminal 
proceedings ; on the other hand, sometimes a person is 
criminally, though not civilly, liable for what he has 
written. This is frequently the case when the matter 
of the libel is true. It is a clearly established rule, 
that in a civil action the truth of the matter is a good 
defence ; whereas in a criminal proceeding it does not 
amount to a defence unless it be proved that it was 
for the public benefit that the matter should be pub- 
lished. The gist of the crime is the provocation to 
a breach of the peace by exciting feelings of revenge, 
&c. And the libel is not divested of this character- 
istic on account of its being founded on truth. How- 
ever, even in a criminal proceeding, the truth may be 
inquired into, and the court in pronouncing sentence 
may consider whether the guilt of the defendant is 
aggravated or mitigated by the plea and evidence of 
the truth (r). 



When an in- 
dictment will 
lie. 



We have just remarked that whenever an action 
will lie for a libel without laying special damage, an 
indictment will also lie. We may add that whenever 
an action will lie for verbal slander without laying 
special damage, an indictment will lie for the same 
words if reduced to writing and published. Thus, to 
see what writings are indictable, we may first enumerate 



(r) 6 & 7 Vict. c. 96, s. 6. 



OFFENCES AGAINST THE PUBLIC PEACE. 107 

the cases in which an action will lie without laying 
special damage (s) : — 

i. For all words spoken of another which impute to 
him the commission of a crime punishable by law. 

ii. For all words spoken of another which may have 
the effect of excluding him from society ; for example, 
to say that he has the leprosy. 

iii. For writing and publishing anything which 
renders another ridiculous or contemptible. But this 
must be taken with a certain amount of qualification ; 
for a person will not be indictable for a literary criti- 
cism, though it makes the author appear ridiculous, 
if it does not exceed the limits of a fair and candid 
criticism by attacking the personal character of the 
author (f). 

It. For words used of a man which may impair or 
hurt his trade or livelihood; for example, to call a 
physician a quack. 

Certain other writings are libellous. Such are those 
which vilify the character of deceased persons, if the 
intention has been to bring contempt on the families, 
or to stir up hatred against them, or to excite them 
to a breach of the peace (m). So also writings tend- 
ing to defame persons of position in foreign countries. 
Writings, though they do not reflect on the character 
of any particular individual, as, for example, on bodies 
of men, may be libellous if they tend to a breach of 
the peace, or to stir up hatred towards a class gene- 
rally (x). 



There are certain exemptions from the criminal lia- when an in- 

I dictmenf 
not lie. 



bility which attaches to matter which is prima facie ^"^'"'^n' ^^'" 



libellous. We have already seen that a fair literary 



(s) Arch. 897. 

(0 Macleod v. WaMey,-^ C. & P. 311. 

(m) R. 7. Topham, i T. R. 126. 

Ix) R. T. Osborn, 1 Barn. K. B. 138, 166. 



108 



OFFENCES AGAINST THE PUBLIC PEACE. 



Privileged 
communica- 
tions. 



criticism, however iincompliineiitary and unpalatable, 
is not a libel. Confidential communications are also 
in some cases privileged ; for example, by or to those 
occupying fiduciary positions, as vyhere the defendant 
vrrote to the employees of the plaintiff to inform them 
of the malpractices of the latter (2/), or when a master 
gives what he believes to be a correct character of his 
servant (z). Communications made hona fide, with a 
view of investigating a fact, though injurious to a 
person's character, are not libellous; for example, an 
advertisement to ascertain whether the plaintiff had 
another wife living (a). The meaning in law of a 
privileged communication is, a communication made on 
such an occasion as rebuts the prima facie inference of 
malice arising from the publication of matter preju- 
dicial to the character of the plaintiff. But he may 
answer by proving malice in fact (h). 



Indictable 
slander. 



It constitutes a more serious offence to embody the 
objectionable matter in writing, than merely to give 
verbal utterance to it. So that an indictment (so 
also an action) may be maintained for words written, 
for which an indictment could not be maintained if 
they were merely spoken ; for example, to write that 
a man is a swindler (c). It may be stated generally 
on the subject of indictable slander (d), that no words 
spoken, however scurrilous, even though spoken per- 
sonally to an individual, are the subject of indictment 
unless they directly tend to a breach of the peace ; for 
example, by inciting to a challenge. We must here 
except words seditious, blasphemous, grossly immoral, 
or uttered to a magistrate while in the execution of his 
duty. 



(i/) Cleaver v. Senande, 1 Camp. 268, n. 
(z) Edmonson v. Stevenson, Bull. N. P. 8. 
(a) Delaney v. Jones, 4 Esp. 191. 
(6) Wright v. Woodgate, 2 C. M. & R. 573. 

(c) r Anson V. Stuart, 1 T. E. 748. 

(d) " Libel " is the term applied to words written, 
merely spoken. 



' Slander " to those 



OFFENCES AGAINST THE PUBLIC PEACE. 109 

As to the form in which the libel is expressed, of Form of a 
course it will be none the less an offence because ''''*'^' 
the libellous imputation is conveyed indirectly ; for 
example, by a hint, question, exclamation, irony, &c. 
And a mere subterfuge, as by writing only a letter or 
two of the name, will not avail if there be satisfactory 
evidence of what person is meant. The words used are 
to be taken in the sense ordinarily understood. Where 
the libellous signification of the words does not appear 
on the face of the libel, innuendoes are inserted in the 
indictment, and proved by the evidence shewing the 
intended application of the words. 

As to the publication, or making public of the libel. Publication. 
To make a writing a libel it must be published : for 
the mere writing or composing of a defamatory paper 
which is never read or divulged to others, or which is 
delivered simply by mistake, will not amount to a libel. 
But, on the other hand, a slight circumstance will be 
sufficient to constitute a publication. Thus communi- 
cation, though only to a single person, is a publication ; 
and though it be contained in a private letter. We 
have only to recur to the gist of the offence to under- 
stand the reason of this ; for in each case the act tends 
to a breach of the peace. 

The mere publication of matter which on the face of Criminal 
it is libellous is presumptive evidence of the malice '°'^°''°°- 
which is necessary to constitute a crime ; and therefore 
the proof of innocence of intention lies on the defendant. 
But if the writing is prima faeie innocent, malice may 
be proved from special circumstances which may be 
laid before the jury. 

The facts to be established by the prosecution are : — 
(a.) The making and publishing of the writing, 
(b.) That the writing is libellous in its nature. 



110 OFFENCES AGAINST THE PUBLIC PEACE. 

Fox's Act. For a long period it was maintained by the judges 

and others that it was the province of the jury to deal 
with the first of these questions only, and that the 
second was to be determined by the court. But the 
controversy was settled by Fox's Act (e), which declared 
and enacted that it was for the jury to determine both 
questions. So that the jury now give a verdict of Guilty 
and Not Guilty on the whole matter in issue, and are 
not, as formerly, directed by the court to find the 
defendant guilty if they are satisfied that the writing 
was published and bore the meaning ascribed to it in 
the indictment (/). But of course the court may state 
its opinion to the jury, though they are not bound to 
act upon it. 

Who are' Everyone who is concerned in the writing or pub- 

respons'bL listiing IS Hable to conviction for the libel. This 
doctrine has been carried to an absurd extent; so 
much so that it was held that a mere servant of the 
printer of a libel, who clapped down the press, was 
punishable, though it did not at all clearly appear that 
he knew the import of the paper, or that he was con- 
scious he was doing anything illegal {g). But this 
rule has been doubted, though it shews that the court 
is prepared to go a long way. 

The proprietor of a newspaper, or other principal, 
is answerable criminally as well as civilly for the acts 
of his servant in the publication of a libel (A). It 
would be exceedingly dangerous to hold otherwise ; for 
then an irresponsible person might be put forward, 
and the person really producing the publication, and 
without whom it could not be published, might re- 



(c) 32 Geo. 3. c. 60. 

(/) As the law is now administered, it is a system of ex post facto legis- 
lation, applied by the jury to each particular case. A libel considered as 
a crime has been well described as anything for having written which a 
jury thinks a man ought to be punished. Fitz. St. 147. 

{g) B. T. Clark, 1 Barn K. B. 304. 

(A) E. V. Mmond, 5 Burr. 2686. 



OFFENCES AGAINST THE PUBLIC PEACE. Ill 

main behind and escape altogether (i). However, it is 
now provided that the defendant, principal or agent, 
may prove that the publication was made without his 
authority, consent, or knowledge, and that the said 
publication did not arise from want of due care or 
caution on his part (Jc). Though the statute does not 
expressly say whether this is a complete defence, or 
only serves to mitigate punishment, it seems that it 
will completely rebut the jarimd facie presumption of 
publication. 

Libel is a misdemeanor, punishable in the case of Punishment. 
one who publishes a defamatory libel, knowing it to be 
false, by imprisonment not exceeding two years, and 
fine (T). But if the prosecution do not prove that 
the defendant knew it to be false, the punishment is 
fine or imprisonment not exceeding one year, or 
both (m). 

In case of private prosecutions, if judgment is given Costs. 
for the defendant, he is entitled to recover his costs from 
the prosecutor. And if the defendant has pleaded a 
justification of the libel (on the ground of truth, &c.), 
and so has put the prosecutor to extra expense, on 
his (the defendant) failing to establish his plea, the 
prosecutor can recover from him the cost occasioned by 
such plea (n). 

An ofi'ence which may be regarded as a particular Hanging, &c., 
form of libel is punishable in the same way, namely, ™ ^^^y- 
hanging a person in effigy. The object is to bring 
contempt upon, or excite indignation against, an indi- 
vidual, and so to incite to a breach of the peace. 

Another ofi'ence connected with libel may be noticed : 



(0 Per Tenterden, C.J., R v. Gutch, Moo. & M. 433. 
(A) 6 & 7 Vict. 0. 96, s. 7. 
(0 Ibid. =. 4. 
(m) Ibid. s. 5. 
(n) Ibid. s. 8. 



112 OFFENCES AGAINST THE PUBLIC PEACE. 

Publishing, or threatening to publish, or proposing 
to abstain or prevent from publishing, a libel in order 
to extort money or some other valuable thing, is a 
misdemeanor punishable by imprisonment not exceeding 
three years (o). 

FORCIBLE ENTEY OE DETAINEE. 

Forcible entry The violcut taking, or, after unlawful taking, the 
or detainer. violent keeping possession of lands and tenements with 
menaces, force, and arms, and without the authority of 
the law. It is no defence to a charge of forcible entry 
that the accused has been unjustly turned out of pos- 
session (p), inasmuch as he has his remedy at law, and 
the fact of his right does not diminish the breach of 
the peace. If there be not employed such force as is 
calculated to prevent resistance, it is a mere tres- 
pass (q). 

The offence is a misdemeanor, punishable by fine and 
imprisonment. The court may summarily restore 
possession to the person entitled, by a writ of resti- 
tution (r). 

Other offences Blackstonc notices certain other offences which are 
i'face!' *' punishable by fine and imprisonment as misdemeanors 
against the peace : Eiding or going armed with dan- 
gerous or unusual weapons — spreading false news — 
false and pretended prophecies, with intent to disturb 
the peace. 



(o) 6 & 7 Vict. u. 96, s. 3. 
(p) 5 Rich. 2, c. 8. 
(g) S. T. Smyth, 5 C. & P. 201. 
(»•) V. 21 Jac. 1, u. 15. 



( 113 ) 



CHAPTER VI. 

OFFENCES AGAINST PUBLIC TRADE. 

It is in subjects treated of in this chapter, perhaps, Nature of 

that there is found the chief ground for the distinction tfade.''^^^'"'' 

between mala in se and mala quia prohibita. Certain of 

the offences, free from any tinge of immorality, appear 

in the category of crimes only inasmuch as they have 

been forbidden by human laws. But, of course, in any 

case, an act is punishable by the law only in virtue of 

its being a breach of that law, and not on account of its 

moral quality. 

SMUGGLING. 

Smuggling is the importing or exporting either Definition of 

(a) goods without paying the legal duties thereon ; or ^"""Sg''"?- 

(b) prohibited goods. The existing law on the subject 
is contained chiefly in the Customs Consolidation Act, 
1853 (s). 

The statute subjects to forfeiture the goods which Forfeiture, &o. 
have in any way been the subjects of smuggling prac- 
tices (i). It also imposes certain pecuniary penalties (m), 
and renders liable to imprisonment for specified periods, 
on summary conviction before a justice, every person 
found on board a ship liable to forfeiture by any Act 
relating to the customs (v). The following offences are 
declared felonies : — 

(a.) Being armed and assembled, to the number of 



(s) 16 & 17 Vict. c. 107. 
(0 Ibid. s. 209. 
(«) Ibid. s. 232. 
(») Ibid. s. 235. 



114 OrFENOES AGAINST PUBLIC TEADE. 

Acts of three or more, for the purpose of aiding in the illegal 

smuggling landing, running, or carrying away of prohihited goods, 

Mllr or goods liable to duties not paid or secured; or m 

rescuing such goods after seizure; or m rescuing a 

person apprehended for a felony against the customs.; 

or in preventing the apprehension of such person (x). 

(b.) Shooting at vessels belonging to the navy or 
revenue service within a hundred leagues of any part 
of the United Kingdom, or shooting at or vyounding an 
officer engaged in the prevention of smuggling (y). 

The punishment for these felonies is penal servitude 
from fifteen years to life, or imprisonment not exceed- 
ing three years. 

(c.) Being found in company with more than four 
others, with prohibited goods ; or in company with one 
other person, within five miles of the sea coast or of 
any navigable river, carrying offensive arms, or dis- 
guised in any way — is punishable by penal servitude to 
the extent of seven years (2). 

Misdemeanors. The foUowing ofienccs are misdemeanors : — 

(a.) Assaulting or opposing an officer engaged in 
the prevention of smuggling in the execution of his 
duty, is punishable by penal servitude to the extent of 
seven years (a). 

(b.) Making signals, under certain circumstances, to 
smuggling vessels, is punishable by fine of £100, or 
imprisonment not exceeding one year (b). 

Proceedings. AH proceedings for offences against Acts relating to 
the customs must be commenced within three years 
after the date of the offence (e). 

(a) 16 & 17 Vict. 0. 107, ». 248. 

(y) Ibid. ». 249. 

(z) Ibid. s. 250. 

(a) Ibid. s. 251. 

(6) Ibid. s. 244. 

(c) Ibid. s. 303. 



OFrBNOES AGAINST PUBLIC TBADE. 115 

The Act also contains provisions for facilitating the 
discovery of smuggled goods by searching suspected 
ships, carts, houses, &c. ; it being lawful for the revenue 
authorities to fire on a ship which, when chased, does 
not bring to {d). 

OFFENCES AGAINST THE BANKRUPT LAWS. 

The Debtors Act, 1869 (e), enumerates several acts Offences by 
which, if done by persons adjudged bankrupt, or whose '>^°''™P'^' *•=■ 
afi'airs are liquidated by arrangement, are misdemeanors 
punishable by imprisonment not exceeding two years. 
The following acts, if done fraudulently, are the 
chief (/):- 

i. Not to best of belief making full discovery of his 
estate to the administering trustee. 

ii. Neglecting to deliver up property under his 
control. 

iii. Neglecting to deliver up books, papers, &c., re- 
lating to his property. 

iv. Within four months before commencement of 
bankruptcy or liquidation, or thereafter, concealing 
property to the value of £10. 

V. Wiihin the same time, or thereafter, removing 
property to the value of £10. 

vi. Making material omissions in statements relating 
to his affairs. 

vii. Failing for a month to inform the trustee of any 
false debt which he knows to have been proved. 

viii. After the commencement of bankruptcy or liqui- 
dation proceedings preventing the production of papers, 



(d) 16 & 17 Vict. c. 107, ss. 218-223. 

(e) 32 & 33 Vict. c. 62. 
(/) Ibid. ». 11. 

I 2 



116 OFFENCES AGAINST PUBLIC TKADE. 

&c., relating to his affairs, with intent to conceal the 
state of his affairs, or to defeat the law. 

ix. After such commencement, or within four months 
before, destroying, falsifying, &c., such documents. 

X. Within the same limits of time making false 
entries in such documents, &c. 

xi. Within the same limits parting with, altering; or 
making omissions in such documents. 

xii. Within the same limits attempting to account 
for any part of his property by fictitious losses or 
expenses. 

xiii. Within four months before the commencement 
of proceedings obtaining, by false representation or 
other fraud, any property on credit without paying 
for it. 

xiT. Within the same time, as a trader, so obtaining 
property on credit under the false pretence of carrying 
on his business. 

XT. Within the same time pawning or disposing of, 
otherwise than in the ordinary way of trade, property 
obtained on credit and not paid for. 

xvi. Any false representation or other fraud in order 
to obtain the consent of any of his creditors to an agree- 
ment with reference to his affairs, or his bankruptcy or 
liquidation. 

Abscouding, One offencc is a felony, punishable by imprison- 
&o., a felony, ment not exceeding two years, namely, after the com- 
mencement of bankruptcy or liquidation, or within four 
months before, fraudulently absconding or attempting 
to abscond from England with property of his own to 
the value of £20 (p). 



(g) 32 & 33 Vict. c. 62, ». 12. 



OFFENCES AGAINST PUBLIC TBADE. 117 

Certain other offences are misdemeanors, punishable Offences tend- 
by imprisonment not exceeding one year : — creditors 

For any person — 

i. In incurring a debt or liability, to obtain credit 
under false pretences, or by means of any other fraud. 

ii. With intent to defraud any creditor, to make 
any gift, delivery or transfer of, or any charge on his 
property. 

iii. With like intent to conceal or remove any part of 
his property since or within tvyo months before the date 
of any unsatisfied judgment or order for money obtained 
against him (%). 

It is also a misdemeanor, punishable in the same way, 
for a creditor wilfully and fraudulently to make a false 
claim («). 

All these misdemeanors fall within the provisions of 
the Vexatious Indictments Act (k). 

Any court exercising jurisdiction in bankruptcy, on Prosecution 
receiving the opinion of a trustee that the bankrupt has tjjg^j^urt^ 
been guilty of an offence under the Act (the Debtors 
Act, 1869), or on the representation of a creditor or 
member of the committee of inspection that there is 
reasonable ground to believe him so guilty, shall, if 
there is reasonable probability of the bankrupt being 
convicted, order the trustee to prosecute (I). 

It may not be out of place to mention the cases in Arrest of a 
which a debtor may be arrested. The court may order ^ '*"' 
such arrest, and the seizure of any books, papers, moneys, 



(Ji) 32 & 33 Vict. c. 62, ». 13. 
(0 Ibid. ». 14. 
(/e) Ibid. b. 18, T. p. 344. 
(0 Ibid. s. 16. 



118 OFFENCES AGAINST PUBLIC TEADB. 

goods, and chattels in his possession under the follow- 
ing circumstances : — 

i. If, after petition of bankruptcy, there is probable 
reason to belieye that he is about to go abroad, or quit 
his residence, with a view to avoid service of the peti- 
tion or otherwise to delay proceedings ; 

ii. Or that he is about to remove or conceal his 
goods. 

iii. If, after adjudication in bankruptcy, he removes 
goods above the value of £5, or fails to attend any 
examination ordered by the court (m). 

And now, even before a petition of bankruptcy has 
been presented, as soon as a debtor's summons has 
been served he may be arrested if he is about to go 
abroad so as to avoid payment, or avoid proceedings (re). 

COUNTBKFEITINa TKADE-MABKS. 

Offences This subject seems peculiarly to fall within a chapter 

trade-matks dealing with offences against trade, though it would 

also find a place under the heading " Forgery." The 

law as to offences relating to trade-marks is contained 

in the Merchandise Marks Act, 1862-(o). 

Forging (additions to, and alterations of trade-marks, 
with intent to defraud, a*s well as fresh fabrications, 
being deemed forgeries) (p) a trade-mark, or falsely 
applying any trade-mark with intent to defraud (^), 
or (ii), with like intent, applying a forged trade-mark 
to any bottle, case, wrapper, ticket, &c., in which any 
article is intended to be sold (r), is a misdemeanor, 



(m) 32 & 33 Vict. u. 71, s. 86. 
(n) 33 & 34 Vict. u. 76. 
(o) 25 & 26 Vict. u. 88. 
Ip) Ibid. s. 5. 
(<?) Ibid. =. 2. 
(»■) Ibid. ». .3. 



OFFENCES AGAINST PUBLIC TEADE, 119 

punishable by imprisonment not exceeding two years, 
or by fine, or both (s). 

The articles to which the trade-mark is applied, and 
the instruments by which applied, are to be forfeited. 
No proceedings are to be taken after three years from 
the offence, or one from the first discovery (i). 

Selling goods haying forged trade-marks thereon, 
knowing them to be forged, is an offence punished by a 
pecuniary penalty (m). 

Other offences against trade, e.y., False Pretences, 
Embezzlement, Cheating, &c., may more conyeniently 
be treated of under the title " Offences against Pro- 
perty." One class only of offences remains to be noticed 
here, and that a somewhat complex and comprehensive 
one. 



UNLAWFUL INTEBFEBENCE WITH TEADE BY COMBINA- 
TIONS, &C, 

It is perfectly legal for workmen to protect their Eight of com- 
interests by meeting or combining together, or forming ^inatiop, how 
unions, in order to determine and stipulate with their exercised. 
employers the terms on which only they will consent 
to work for them. But this right to combine must not 
be allowed to interfere with the right of those work- 
men who desire to keep aloof from the combination, to 
dispose of their labour with perfect freedom as they 
think fit (x). Nor must it interfere with the right of 



(s) 25 & 26 Vict. c. 88, s. 14. 

(0 Ibid, s. 18. 

(«) Ibid. s. 4. 
■ (») " The workmen who think it for their advantage to combine together 
in the disposal of their labour are no more justified in constraining any 
other workman, who does not desire such association, to combine with 
them — to bring his labour into common stock, as it were, with theirs — 
than an association of capitalists in constraining an individual capitalist 
to bring his capital into common stock with theirs." — Eeport of the Roy. 
Com. on Labour Laws, 1867. 



120 OFFENCES AGAINST PUBLIC TEADE. 

the masters to have their contracts duly carried out. 
Infraction of such rights will bring the wrongdoer 
within the pale of the criminal law of conspiracy. 

The law on this subject is principally contained in 
the Conspiracy and Protection of Property Act, 1875 (y). 
It will be well to prefix a proTision of the Trades Union 
Act, 1871 («). The purposes of any trade union shall 
not, by reason merely that they are in restraint of 
trade, be deemed to be unlawful so as to render any 
member of such trade union liable to criminal prosecu- 
tion for conspiracy or otherwise. 

Acts of unlaw- The following acts are forbidden, and are punishable, 
ence"which'are ^^ Summary couvictiou or indictment, by imprisonment 
punishable. not exceeding three months, or penalty not exceeding 
£20. 

i. For any (a) person, with a view to compel any 
other person to abstain from doing or to do any act 
which such other person has a legal right to do or 
abstain from doing — to wrongfully and without autho- 
rity 

(a.) Use violence to, or intimidate, such other person, 
or his wife, or children, or injure his property. 

(b.) Persistently follow him about from place to 
place. 

(c.) Hide his tools, clothes, or other property, or 
hinder him in the use thereof. 

(d.) Watch or beset his house, or other place where 
he resides, or works, or carries on business, 
or happens to be, or the approach thereto 
(commonly tnown as " picketing "), but not if 



(J/) 38 & 39 Vict. c. 86, repealing 34 & 35 Vict. c. 32 and other Acts. 

(«) 34 & 85 Vict. c. 31, s. 2. 

(a) This word makes the law of general application, and not restricted 
to trade disputes, though, of course, practically the oafence will most 
frequently occur in connection therewith. 



OITENCBS AGAINST 'public TKADE. 121 

the object be merely to obtain or commtinicate 
information. 

(e.) Follow him, with two or more other persons 
in a disorderly manner in or through any street 
or road (b). 

ii. For a person employed by the municipal autho- Acts causing 
rities, public companies, contractors, or others who f^^^'^^^°J ^"'' 
have undertaken to supply gas or water, either alone or 
with others, wilfully and maliciously to break his con- 
tract of service, knowing or having reasonable cause to 
believe that the probable consequence will be to deprive 
the inhabitants wholly or to a great extent of gas or 
water (e). 

iii. For a person wilfully and maliciously to break Acts endanger- 
his contract of service, knowing or having reason to '°^ ' "' "' 
believe that the probable consequence will be to 
endanger human life, or cause serious bodily injury, 
or expose valuable property to destruction or serious 
injury (d). 

An exceptional course in criminal procedure is Procedure. 
allowed in the case of the last two offences, namely, 
that on the hearing of an indictment or information 
for such offences, the respective parties to the contract 
of service, their husbands or wives, are considered 
competent witnesses (e). There is also another pecu- 
liarity with regard to the proceedings. Power is given 
to the offender to elect to have the case tried on in- 
dictment, and not by a court of summary jurisdic- 
tion (/). 



(6) 38 & 39 Vict. u. 86, s. 7. 

(c) Ibid. s. 4. 

(d) Ibid. s. 5. 

(e) Ibid. s. 11. For another instance of this innovation, v. p. 139. 

(/) Ibid. s.-^9. " Making the fact of whether a particular offence is 
indictable or not depend on the will of the accused person, is a novelty 
in our jurisprudence, and, to say the least, productive of considerable 
practical inconvenience." — Davis' Labour Laws, p. 99. 



122 OFFENCES AGAINST PUBLIC TRADE. 

Trade disputes Trade disputes now form an exception to the general 
and conspiracy, jg^.^ q£ conspiracy in one point. If, in connection with 
such dispute, two or more combine to do something 
which if done by one person is not punishable as a 
crime, they will not, on account of their number, be 
indictable for the conspiracy at common law (gi). 

Obstructing It may be mentioned that assaults with intent to 
^a^ie of grain, o]bstruct the sale of grain, or its free passage, or with 
force hindering any seaman, keelman, or caster from 
working at his lawful occupation, or beating or using 
violence with such intent, is punishable, on summary 
conviction, by imprisonment not exceeding three 
months (h). 



(g) 38 & 39 Vict. u. 86, s. 3. 

(A) 24 & 25 Vict. c. 100, ss. 39, 40. 



( 123 ) 



CHAPTEE VII. 

CONSPIEAOY. 

OoNSPiEACY is a combination of two or more persons to Definition of 
do an unlawful act, wtether that act be the final object conspiracy. 
of the combination, or only a means to the final end, — • 
and whether that act be a crime, or an act hurtful to 
the public, a class of persons, or an indiyidual. 

The gist of the offence is the comhination (i). Of The agreement 
this offence a single person cannot be convicted, unless, the™"^ 'of th™ 
indeed, he is indicted with others, who may, however, be offence. 
dead or unknown to the jurors (j). And, on the same 
ground, man and wife cannot by themselves be con- 
victed, for they are one person. Many acts, innocent 
if done by one person, become criminal if they are the 
result of agreement by two or more persons. Thus A. 
and B. each commit adultery under the same circum- 
stances, the most aggravated and cruel. B.'s conduct 
differs from A.'s only in the fact that he gets C. to lend 
him a carriage for the purpose of elopement. A. is 
not, B. is, within the grasp of the criminal law (k). We 
have just remarked that the gist of the offence is 
the agreement. A mere intention will not suffice to 



(i) The law of conspiracy is the most complete illustration of the fiction 
consisting in treating as a crime not the very acts which are intended to 
be punished, but certain ways of doing them. — Fitz, St. 62. 

0) 1 Hawk. c. 72. s. 8. 

(A) "It is not apparent, at first sight, why conspiracy, which is one 
out of many possible aggravations of an act, should have been selected as 

the one by which its criminal character should be determined The 

probable explanation is, that in early times the most prominent conspiracies 
were usually attended with great violence, and that, in defining the crime, 
words were used which included offences of much less importance than 
those which were originally contemplated." — Fitz. St. 62. 



124 



CONSPIBACY. 



constitute the crime (Z). But if the agreement (the 
conspiracy itself) can be proved, there is no need to 
prove that anything has been done in pursuance of it. 
Of course, the existence of the unlawful agreement is 
generally evidenced by some overt acts, but these are 
evidence merely, and not material if the agreement can 
be proved otherwise (m). 



Indefinite 
nature of the 
crime. 



Conspiracies 
classified 
according to 
their objects. 



The definition shews a conspiracy to be an agree- 
ment to do an unlawful act. It is the indefinite mean- 
ing of this word " unlawful" that gives to the crime of 
conspiracy its wide extent. The widest discretion is 
intrusted to the judges, in whose power it seems to be 
thus to declare criminal combinations to do almost any- 
thing which they regard as morally wrong, politically 
or socially dangerous, or otherwise objectionable (w). 
Three classes of conspiracy may be distinguished (o) : — 

1. When the end to be accomplished would be a 
crime in each of the conspiring parties ; in other words, 
a conspiracy to commit a crime. The case of murder is 
specially provided for by statute; the person con- 
spiring being liable to penal servitude to the extent of 
ten years (p). 

2. When the ultimate purpose of the conspiracy is 
lawful, but the means to be resorted to are criminal, or 
at the least, illegal ; in other words, to effect a legal 
purpose with a corrupt intent or by improper means — 
for example, to support a cause believed to be just by 



(0 Mulcahy v. S., L. E. 3 H. L. Ap. Ca. 306. 

(m) B. V. Gill, 2 B. & Aid. 204. 

(n) " It is not altogether inconyenient to have a branch of the law which 
enables the Courts, by a sort of ostracism, tO punish people who malce them- 
selves dangerous or obnoxious to society at large, and the necessity for 
quoting precedents — the publicity of the proceedings — and the general in- 
tegrity of the judges, are probably sufficient safeguards against its abuse, 
but it would be idle to deny thai the power is dangerous, and ought to 
be watched with jealousy." — Fitz. St. 149. 

(o) See Final Report of Roy. Com. on Labour Laws 

Ip) 24 & 25 Vict. c. 100, s. 4. 



OONSPIEACY. 125 

perjured evidence ; to break into another's house, in 
order to obtain one's own property. 

We have already- noticed the case of trade conspira- 
cies, and referred to an exception to the common law 
doctrine in such matters (q). 

3. Where, with a malicious design to do an injury, 
the purpose is to effect a wrong, though not such a 
wrong as when perpetrated by a single individual would 
amount to an offence against the criminal law. We 
may distinguish the following cases : — 

(a.) Falsely to charge another with a crime — whether 
from malicious and vindictive motives, or ' to extort 
money from him. But, of course, two or more per- 
sons may agree to prosecute a person against whom 
there are reasonable grounds of suspicion. 

(b.) To do an act with intent to pervert the course 
of justice, for this is an injury to the public at large — 
for example, when two or more agree together that one 
of them shall be robbed by the others, in order that they 
may obtain the statutory reward for conviction (r). 

(c.) Generally — ^Wrongfully to injure or prejudice 
others, whether an individual, a body of men, or the 
public, in any other manner. The varieties of this 
offence are innumerable, but two or three examples 
will suffice : To injure a man in his trade ; to raise the 
price of the public funds by false rumours ; to violate 
morality and public decency by inducing a woman to 
, become a common prostitute (s). But it is said that 
not every combination to effect a tort is criminal ; that 
wherever a combination to commit a civil injury has 
been held criminal, the injury has been malicious (using 
the term in the non-technical sense) — for example, a 



(?) V. pp. 119, 122. 

(r) B. y. Macdaniel, 1 Leach, 45. 

(s) V. Ai-ch. 980 for other instances. 



126 CONSPIEACY. 

combination to pull down a fence would not be criminal, 
if the only object of the act were to try a question 
as to the right of way {t). 

Conspiracy is a misdemeanor, punishable by fine or 
imprisonment, or both ; in the case of conspiracy to 
murder, by penal servitude to the extent of ten 
years (m). This crime falls under the provision of the 
Vexatious Indictments Act {x). 

Merger of coa- If the purposo of the Conspiracy is a felonious one 
feior^ '° ^^^ and actually carried out, the conspiracy is merged in 
the felony ; so that after a conviction for the felony 
the defendant cannot be tried for the conspiracy. But 
if the defendant is indicted for the conspiracy, he is not 
entitled to an acquittal, because the facts shew a 
felony. Under such circumstances, however, he cannot 
be subsequently tried for the felony unless the court 
has discharged the jury from giving a verdict on the 
misdemeanor {y). 



(f) Rose. 410 ; B. v. Turner, 13 East, 228. 

(u) V. supra. 

(x) V. p. 344. 

(</) 14 & 15 Vict. 0. 100, s. 12. 



( 127 ) 



CHAPTEE VIII. 

OFPESrOES AGAINST PUBLIC MORALS, HEALTH, 
AND GOOD OEDBE. 

« 

Unbeb this head will be noticed a somewhat miscella- Morality and 
neous class of oflfences which are considered to affect l^^ criminal 
the pnhlic rather than the indiTidual ; though some of 
them at first sight appear rather to concern particular 
persons, e.ff., bigamy. Throughout the whole of the 
criminal law there can be traced an unwillingness to 
resort to anything characteristic of paternal govern- 
ment. As a rule, mere immorality is not punished 
until it invades the rights of others than those who par- 
ticipate in it, whether by public evil example or other- 
wise. Thus a mere falsehood is not punishable ; but if 
it involves a fraud on another, then the law steps in 
with its punishments. 

BIGAMY. 

The offence consists in marrying a second time, Bigamy, 
while the defendant has a former husband or wife still 
living. 

N'ot only is the second marriage void, but it also 
constitutes a felony ; and this whether the second mar- 
riage took place in the United Kingdom or elsewhere. 
There are 'certain cases which are excepted by the Where the 
statute which declares the second marriage generally ri^s'^isToT 

felonious : — felonious. 

i. A second marriage contracted elsewhere than in 
England or Ireland by any other than one of Her 
Majesty's subjects. 



128 OFFENCES AGAINST PUBLIC MORALS, 

ii. A second marriage by one whose husband or wife 
has been continually absent from such person for the 
last seven years, and has not been known by such 
person to be living within that time. 

iii. A second marriage by one who, at the time of 
such second marriage, was divorced from the bond of 
the first marriage. 

iv. A second marriage by a person whose former 
marriage has been declared void by the sentence of any 
court of competent jurisdiction (z). 

In none of these cases is the second marriage a 
felony ; but in the second case it is a mere nullity. 

It is no defence to the charge of bigamy that the 
subsequent marriage would in any case have been void, 
as for consanguinity and the like (a). But if the first 
marriage is void, the second will not be bigamous; 
otherwise if voidable only (6). It has been recently 
settled that a lond fide belief by the prisoner at the 
time of the second marriage that her husband was then 
dead is no defence (e). 

The first {i.e., the real) wife or husband is not a com- 
petent witness either for or against her or his consort ; 
but of course the (so-called) second wife or husband is. 

Punishment. This felony is punishable by penal servitude to the 
extent of seven years. The man (or woman) who goes 
through the form of marriage with the bigamist does 
not altogether escape. He may be indicted as principal 
in the second degree, having been present aiding and 
assisting the woman in committing the felony ; or at 
any rate as an accessory before the fact for counselling 
her to commit the crime (d) (e). 

(«) 24 & 25 Vict. c. 100, s. 57. 

(a) S. V. Allen, L. R. 1 C. C. R. 376 ; 41 L. J. (M.C.) 101. 

(6) S. V. Jacobs, 1 Mood. C. C. 140. 

(o) S. V. Gibbms, 12 Cox, 237. 

((0 S- V. Brawn, 1 C. & K. 144. 

(e) There are certain other offences connected with marriage. By 



HEALTH, AND GOOD OEDEE. 129 



INDECENT CONDUCT. 

To this head may be referred the public and indecent indecent con- 
exposure of the person, which may be treated as a criminal ™ 
common nuisance. Also the exposing for public sale 
or view any obscene book, print, picture, or other in- 
decent exhibition. Both of these offences are misde- 
meanors, and punishable by fine or imprisonment, or 
both (/). Power is given. to magistrates, under certain 
circumstances, to authorize the searching of houses and 
other places in which obscene books, &c., are suspected 
to be sold or otherwise published for gain, and to autho- 
rize their seizure and destruction {g). 



GAMING AND GAMING HOUSES. 

The law does not deem it within its province to 
punish such practices as gaming, unless either some 
fraud is resorted to, or regular institutions are esta- 
blished for the purpose, so as to amount to a public 
nuisance. 

As to Gaming. — If any person by fraud or unlawful Gaming, 
device, or ill practice, in playing, betting, or wagering, 
win any sum of money or valuable thing, he is deemed 
guilty of obtaining money by false pretences, and 
punished accordingly (A). 

Playing or betting by way of wagering or gaming 
in any street, road, highway, or other open and publie 
place, or in any open place to which the public have 

4 Geo. 4, i;. 76, s. 21, and 6 & 7 Wm. 4, c. 85, ss. 39, 41, persons unduly 
solemnizing marriages are guilty of felony, v. 1 Euss. 959. Making false 
declarations, signing false notices or certificates of marriage, &c., are 
offences attended by the penalties of perjury, 6 & 7 Wm. 4, c. 85, s. 38. 
As to forging marriage licences, v. " Forgery." As to Abduction, &c., r. 
p. 174. 

(/) 14 & 15 Vict. c. 100, s. 29. 

(9) 20 & 21 Vict. c. 83. As to Indecent Assaults, v. p. 172. Disorderly 
Houses, &c., T. p. 134. 
^ (/j) 8 & 9 Vict. u. 109, s. 17. 

K 



130 OFFENCES AGAINST PUBLIC MOEALS, 

access, at or with any table or instruinent of gaming, 
or any card, token, or otter article used as an instru- 
ment of wagering at any game or pretended game of 
chance, subjects the player to the punishments of 5 
G-eo. 4, c. 83 (i), as a rogue and vagabond ; or else, at 
the discretion of the magistrate, to a penalty not 
exceeding 40s. for the first offence, and £5 for any 
subsequent offence (k). 

The subject of Lotteries will be considered under the 
head " Nuisances." 



Gaming 
houses. , 



Legislation as 
to gaming 
houses. 



As to Oaming Houses. — Houses of this description 
are regarded as so detrimental to public morality and 
good order, that they are classed among public nuisances. 
As such, the keepers are guilty of a common law mis- 
demeanor, and liable to fine or imprisonment, or both. 

The chief steps taken by the legislature to suppress 
the evils of gaming houses are the following. An early 
statute prohibited the keeping of any common house 
for dice, cards, or other unlawful games, under a penalty 
of forty shillings for every day and six and eightpence 
for every time of playing {I). Subsequent statutes 
included other games under heavier penalties (m). By 
a later statute (n) the statute of Henry VHI. is re-^ 
pealed as far as it prohibited bowling, tennis, or other 
games of mere skill. Further provision was also made 
by the Act of this reign against those who own or 
keep common gaming houses. The owner or keeper, 
and every person having the care and management of 
such house, and also every banker, croupier, and other 
person in any manner conducting the business of the 
house, is liable, on conviction before two justices, to a 



(i) V. p. 137. 

(A) 36 & 37 Vict. c. 38, s. 3. 
Q) 33 Hen. 8. c. 9, s. 11. 

(m) V. 9 Anne, c. 14; 12 Geo. 2, c. 28 ; 13 Geo. 2, c. 19 ; 18 Geo. 2, c 34. 
■ («) 8 & 9 Vict. 0. 109, amended by 17 &.18 Vict. o. 38. 



HEALTH, AND GOOD ORDER. 131 

penalty not exceeding £500, in addition to the penalty 
under 33 Hen. 8 ; or may be committed to prison for 
a period not exceeding six months (o). 

If any person who has been concerned in the un- 
lawful gaming, on his examination as witness, makes 
true disclosure to the best of his knowledge, he is 
entitled to receive a certificate, and is free from all 
consequences of his unlawful act up to that time (p). 

Betting houses, rooms, offices, or places, are deemed Betting houses. 
gaming houses within this statute. Persons receiving 
deposits on bets in such houses incur a penalty of £30, 
or imprisonment for three months. Exhibiting placards 
or handbills, or otherwise advertising betting houses, 
is punished by a penalty of £30, or imprisonment for 
two months (q). 

The fact that the entrance of a peace officer is 
obstructed or delayed, or that the place is found pro- 
vided with means of gaming, or of concealing instru- 
ments of gaming, is evidence that the house is a common 
gaminghouse. Penalties are imposed for such obstruc- 
tions and for certain other ofiences (r). 

COMMON OR PUBLIC NUISANCES. 

Another offence of wide and vaguely-defined limits Nuisance, the 
is now to be considered. In its definition its extent is i^^^nite 
indefinite, but in practice it is confined to certain 
classes of acts which interfere with the normal state 
of order and comfort. 

Common nuisances are such annoyances as are liable Public and 
to affect all persons who come within the range of their ^^i^^nces 

distinguished. 

(o) 8 & 9 Vict. u. 109, s. 4. 
Ip) Ibid. s. 9. 
Iq) 16 & 17 Vict. u. 119. 
(r) 17 & 18 Vict. u. 38. 

K 2 



132 OFFENCES AGAINST PUBLIC MOKALS, 

operation. They consist of acts either of commission 
or of omission, that is,, causing something to be done 
which annoys the community generally, or neglecting 
to do something which the common good requires. 
Public nuisances are opposed to private nuisances, which 
annoy particular individuals only, that is, to which all 
persons are not liable to be exposed. The distinction 
is one based on the extent of the operation of the evil, 
and not one relating to the class of evil ; inasmuch as 
all kinds of nuisances which, when injurious to private 
persons,- are actionable as private nuisances, when 
detrimental to the public welfare, are punishable on 
prosecution as public nuisances. It is for the jury to 
determine whether a sufficiently large number of per- 
sons are or may be affected so as to make the nuisance 
" common " or " public " (s). 



Common 
nuisances not 
actionable. 



Common nuisances are indictable as misdemeanors. 
They do not give rise to civil action by everyone who 
is subjected to the common annoyance. But if anyone 
can prove special damage, that is, that he is affected in 
some respect in a way in which the public generally 
are not, he may pursue his civil remedy and obtain 
damages. 



Abatement. Another course of proceeding is sometimes available 

in nuisances, namely, abatement or removal of the 
nuisance by the party's own act. In private nuisances 
this is commonly allowed to be done by the party 
aggrieved ; but in public nuisances the right is more 
confined. They may be abated by boards of health and 
other public bodies specially authorized under various 
public Acts (t) ; but private individuals cannot resort 
to this course if the abatement involves a breach of the 
peace ; and in any case they can only interfere so far 
as is necessary to exercise the right of passing, &c. 



(s) H. V. White, 1 Burr. 333. 
(i) V. 38 & 39 Vict. c. 55. 



HEALTH, AND GOOD OBDER. 133 

The principal classes of public nuisances will be 
briefly noticed : — 

i. Nuisances to highways, hridges, and puhlio rivers. — Nuisances to 
These annoyances may be either positive, by actual ob- l^'giiways, &c. 
struction ; or negative, by want of reparation. In the 
latter case, only those persons are liable whose duty it 
is to keep the roads, &c., in repair. The former class 
consists of a variety of offences, for example, laying 
rubbish on the road, digging trenches in it, diverting 
part of a public river, &c. 

ii. Carrying on offensive or dangerous trades or manu- Offensive 
factures. — Manufactures which are injurious to the *'''"'*^' **"• 
health or merely offensive to the senses are nuisances ; 
and it is no defence that the public benefit outweighs 
the public annoyance (m). But if a noxious trade is 
already established in a place remote from habitations 
and public roads, and persons come and build near, or 
a new road is made, the trade may be continued («). 
The presence of other nuisances will not justify any 
one of them ; but a person cannot be indicted for 
setting up a noxious manufacture in a neighbourhood 
in which other offensive pursuits have long been borne 
with, unless the inconvenience to the public is greatly 
increased (y). No length of time will legitimate this 
or other kinds of nuisances, but the consideration of 
time may sometimes concur with other circumstances 
to prevent the character of nuisance from attach- 
ing (2). 

Nuisances which affect the public health are dealt 
with in the numerous statutes which treat of that 
subject. 

iii. Houses, &c., which interfere with publie order and Houses, as 



(m) £. y. Ward, 5 L. J. (K.B.) 221. 

Ix) R. V. Gross, 2 C. & P. 483. 

(_y) E. V. Neil, 2 C. & P. 485 ; t. E. v. NeviUe, Peake, 91. 

(2) Weld T. Hornby, 7 East, 199. 



Lotteries.' 



134 OFFENCES AGAINST PUBLIC MORALS, 

decency. — The following places are nuisances, and, upon 
indictment, may be suppressed, and their owners, 
keepers, or ostensible managers punished by fine or im- 
prisonment, or both — Disorderly inns (a) or alehouses ; 
bawdy houses ; gaming and betting houses (b) ; un- 
licensed or improperly conducted playhouses, booths, 
stages for dancers, and the like. 

Prosecutions for keeping a bawdy house or gaming 
house fall within the proyisions of the Vexatious 
Indictments Act (c). 

iv. Lotteries. — All lotteries were declared by statute (ci) 
public nuisances. State lotteries were, however, autho- 
rized by successive Acts of Parliament until 1824, 
when they were discontinued, the State being thus 
enabled without inconsistency to enforce the already- 
existing law against other lotteries. 

V. A vast number of other acts, &c., have been de- 
clared public nuisances; for example, exposing in a 
public thoroughfare persons afflicted with infectious 
disease ; allowing mischievous dogs to go abroad un- 
muzzled, provided that, if they were not of a description 
to be generally dangerous, the owner was aware of 
their nature ; keeping fierce animals in places open to 
the public ; keeping hogs near a public street ; keep- 
ing a corpse unburied; making great noises in the 
street at night; eavesdropping, that is, "listening 
under walls or windows, or the eaves of a house, to 
hearken after discourse, and thereby to frame slanderous 
and mischievous tales ;" common scolds; and in gene- 
ral anything which is an appreciable grievance to the 
public at large. 

Who is liable. There are two cases at least where there might be a 



Miscellaneous 
nuisances. 



(a) If a traveller is refused entertainment without sufficient cause, the 
inn is liable to be treated as a disorderly inn. 
(6) V. p. 130. 
(c) V. p. 344. 
Id) 10 & U Wm. 3, 0. 17. 



HEALTH, AND GOOD OKDEK. 135 

doubt as to the person who is criminally responsible 
for a nuisance. The landlord is liable if he erects a 
building which is a nuisance, or the occupation of which 
is likely to produce a nuisance. The master or em- 
ployer is liable for a nuisance caused by the acts of his 
seryants if done in the course of their employment. 

ADULTBEATION AND UNWHOLESOME PROVISIONS. 

Obviously there is no undue interference on the part 
of the State, when it characterizes as a crime the adul- 
terating food or dealing in unwholesome provisions. 

The law as to adulteration is contained chiefly in the Adulteration, 
Sale of Food and Drugs Act, 1875 (e). Mixing, or ^°- 
ordering, or permitting other persons to mix, colour, 
&c., any article of food with any material injurious to 
health, with intent that the same may be sold in that 
state, is punishable for the first ofi'ence by a penalty of 
£50 ; the second offence is a misdemeanor, punishable 
by imprisonment not exceeding six months (/). The 
same consequences attend the adulteration of drugs, so 
as to afl'ect injuriously the quality or potency of such 
drugs (ff). In either case the person is excused if he 
can prove absence of knowledge. The defendant is 
discharged if he can prove that he bought the article 
in the same state as he sold it, with a warranty (h). 
Other punishments are prescribed for giving false 
warranties, false labels, forging certificates, or war- 
ranties, &c. (i). 

WANTON AND FUEIOUS DBIVING. 

Anyone having the charge of any carriage or vehicle, Furious 
who, by wanton or furious driving or racing, or by <i'''T'°g- 



(e) 38 & 39 Vict. u. 63. 
(/) Ibid. s. 4, 
((/) Ibid. s. 5. 
(A) Ibid. s. 25 
(0 Ibid. s. 27. 



136 OFFENCES AGAINST PUBLIC MOKALS, 

wilful misconduct, or by wilful neglect, does or causes 
to be done any bodily barm to anotber, is guilty of a 
misdemeanor, and is liable to imprisonment not exceed- 
ing two years, or fine, or botb (k). 

TAGKANCY. 

Vagrancy. There are always in tbis country a great number of 

persons, belonging to tbe criminal class, against wbom 
no particular offence can be proved, but whose conduct 
demands correction. The law punishes such as vag- 
rants; taking care that mere misfortune or poverty 
does not place an innocent person in this class. The 
chief statute on the subject is 5 Geo. 4, c. 83, amended 
by 1 & 2 Yict. c. 38 ; other Acts rendering liable to 
the punishments of these statutes those who evidence 
their culpability by certain kinds of conduct. 

Persons of this character are divided into three 
classes : — 1. Idle and disorderly persons ; 2. Eogues 
and vagabonds ; 3. Incorrigible rogues. 



pen 



'sons. 



Idle and dis- 1. Idle and Disorderly Persons. — This class consists 
"vQol,^ of such characters as the following : — Persons becom- 

ng chargeable to the parish though able to work; 
(b) Those returning to a parish from which they have 
been removed; (c) Hawkers and pedlars wandering 
about and trading without licence ; (d) Prostitutes be- 
having in public places in a riotous or indecent man- 
ner ; (e) Beggars asking alms or causing or encouraging 
others to do so (l) ; (f) Insubordinate or disobedient 
paupers (m). 

The punishment, on conviction before a magistrate, 
is imprisonment for not exceeding one month {n). 



(k) 24 & 25 Vict. c. 100, ». 35. 
(0 5 Geo. 4, c. 83, s. 3. 
(m) 34 & 35 Vict. c. 108, ». 7. 
(n) 5 Geo. 4, c, 83, s. 3. 



HEALTH, AND GOOD OKDEE. 137 

2. Rogues and Vagabonds. — Under this designation Eogues and 
fall (a) those who commit any of the above offences a '^'^g*^™^^- 
second time. Also the following: (h) Persons pre- 
tending to tell fortunes, &c. ; (c) Wandering about, 
lodging in a barn, in the open air, &c., not having 
any visible means of subsistence, and not giving a good 
account of themselves ; (d) Publicly exposing to view 
obscene prints, &c. ; (e) Publicly exposing their per- 
sons ; (f) Exposing wounds or deformities in order to 
obtain alms ; (g) Collecting alms or contributions 
under false pretences ; -(h) Kunning away and leaving 
wife or children chargeable to the parish ; (i) Playing 
or betting in public (o) ; (k) Having in possession one 
or more of certain instruments with intent to commit 
a felonious act ; (1) Being found in a dwelling-house, 
&c., for an unlawful purpose ; (m) Suspected or re- 
puted thieves visiting public places with intent to 
commit a felony ; (n) Making violent resistance when 
apprehended by a peace of&cer as an idle, disorderly 
person, provided there be a conviction; (o) Acting 
contrary to directions of certificates given to persons 
discharged from prison under 5 Geo. 4, c. 83, s. 15 (p). 

The punishment awarded by the magistrate is im- 
prisonment not exceeding three months. In this case, 
and that of imprisonment as an idle and disorderly 
person, there is an appeal to the sessions {q). 

3. Incorrigible Eogues. — To be dealt with as such are incorrigible 
(a) Those who are convicted a second time of an act ™S"es. 
which makes the doer a rogue and vagabond j (b) Es- 
caping out of a place of confinement before the expira- 
tion of the time for which they were committed under 
this Act ; (c) Making violent resistance when appre- 



(o) 36 & 37 Vict. c. 38, v. p. 129. 
Ip) 5 Geo. 4, c. 83, s. 4. 
(?) Ibid. 



138 OFFENCES AGAINST PUBLIC MORALS, 

bended by a peace officer as a rogue and vagabond, 
if subsequently convicted of tbe offence for wbicb tbey 
were apprebended (r). 

Tbe magistrate may commit a person convicted as 
an incorrigible rogue to bard labour in tbe bouse of 
correction until tbe next sessions. By tbat court be 
may be imprisoned for a period not exceeding one year, 
witb or witbout wbipping, if a male (s). 

SENDING UNSEAWOBTHY SHIP a?0 SEA. 

Sending unsea- If a sbip is Sent to Sea in sucb unseawortby state 
Tsea^ '""'P tbat tbe life of any person is likely to be tbereby en- 
dangered, tbe following persons are guilty of a mis- 
demeanor : — 

(a.) Tbe person sending it ; (b) tbe managing owner 
of any Britisb sbip so sent to sea from any port in tbe 
United Kingdom ; (c) tbe person attempting to send it 
to sea; (d) tbe master of a Britisb sbip knowingly 
taking it to sea. 

Defence. But tbe accused will not be deemed guilty if be 

proves in tbe former cases tbat be bas used all reason- 
able means to ensure tbe sbip being sent to sea in 
a seawortby state, or proves tbat ber going to sea in 
sucb unseawortby state was, under tbe circumstances. 



(r) 5 Geo. 4, u. 83, s, 5. 

(s) Ibid. Though Drwnkenness is not an indictable offence, but only 
punishable on summary conviction, the subject may have a passing notice 
here. The mere fact of drunkenness is punishable by forfeiture of 5s. 
for the first offence ; for the second the offender may be bound with two 
sureties in £10 for good behaviour (4 Jac. 1, c. 5 ; 21 Jac. 1, c. 7, s. 3). 
Persons found drunk in any street or public thoroughfare, building, or 
other place, or on any licensed premises, are liable to a penalty of 10s. for 
the first offence ; 20s. and 40s. for the second and third within the twelve 
months. If, whilst drunk, a person is guilty of riotous or disorderly 
behaviour, or is in charge of any carriage, horse, cattle, or steam-engine, 
or is in possession ol any loaded fire-arms, the penalty is 40s., or imprison- 
ment for a month (35 & 36 Vict. c. 94, s. 12). The same Act contains 
penalties for permitting drunken conduct (v. 10 & 11 Vict. u. 89). 



HEALTH, AND GOOD OEDER. 

reasonable and justifiable ; in the last case, if lie proves 
the latter of these points. 

In each case the accused may give evidence in the 
same manner as any other witness (t). 



(t) 38 & 39 Vict. u. 38, s. 4; t. p. 387. The first trial at which the 
defendant was examined took place at the Liverpool Spring Assizes, 1876. 



139 



( 140 ) 



CHAPTEE IX. 

OFFENCES RELATING TO GAME. 

Ground of WITHOUT entering into a discussion as to the sufficiency 
special legisia- £ ^-^ ground on which the game laws are based, we 

tioa as to game & n n xx 3 j. a- 

offences. proceed to treat of poaching and the attendant onences. 

We shall find hereafter that animals /er« naturm (in- 
cluding game) in their lire state are not the property 
of any one, and on this account are not the subjects of 
larceny. Therefore the legislature has made special 
provisions, in some cases more stringent than in the 
case of ordinary articles. 

The principal statute on the subject is 9 Geo. 4, 
c. 69, amended by 7 & 8 Vict. c. 29 and 25 & 26 Yict. 
c. 114. The following are the chief offences : — 

Taking, &c., i. Any person by night (declared to commence one 
game by night, j^^^^, ^^^^^ sunset, and to conclude at the beginning of 
the last hour before sunrise) (u) unlawfully tahing or 
destroying any game (hares, pheasants, partridges, 
grouse, heath or moor game, black game and bustards) 
or rabbits, in any land open or inclosed (x), or on 
public roads, highways, gates, outlets, openings between 
such lands and roads {y). 

Entering, &c., ii. Any persou entering or heing by night in such 
for purpose of places, with any gun, net, engine, or other instrument 
for the purpose of taking or destroying game (z). 



(m) 9 Geo. 4, c. 69, s. 12. 

(a;) Ibid. s. 1. 

(i/) 7 & 8 Vict. c. 29, s. 1. 

(2) 9 Geo. 4, c. 69, s. 1. 



OFFENCES BELATING TO GAME. 141 

The punishment for the first offence in each case Punishment, 
is imprisonment not exceeding three months, and at 
the expiration of such period to be bound over to 
good behaviour for a year, or, in default of sureties, 
further imprisonment not exceeding six months, or 
until such sureties be found. For the second, like- 
wise summarily dealt with, each of the above periods 
is doubled. The third offence is a misdemeanor, 
punishable by penal servitude to the extent of seven 
years (a). 

When any person is found committing such offence, Apprehension 
it is lawful for the owner or occupier of the land (or in °^ "lender. 
the case of a public road, &c., of the adjoining land), or 
for any person having a right of free warren or free 
chase therein, or for the lord of the manor, or for the 
gamekeeper or servant of such persons, or for any one 
assisting them, to apprehend the poacher. If the 
latter assaults or offers any violence with an offensive 
weapon to such persons, he is punishable for the mis- 
demeanor with penal servitude to the extent of seven 
years (6). 

A graver offence is dealt with in a later section of the Three or more 
same statute. For three or more persons, by night, to ''™'''^se"of 
unlawfully enter, or be in any land (or road, &c., 7 & 8 talcing game. 
Vict. c. 29), for the purpose of taking or destroying 
game or rabbits, any of the party being armed with 
firearms or other offensive weapons, is a misdemeanor 
in each, punishable by penal servitude to the extent of 
fourteen years (c). 

The prosecution for every offence within this Act, if 
punishable on summary conviction, must be commenced 



(o) 9 Geo. 4, c. 69, s. 1. 
(5) Ibid. s. 2. 
(c) Ibid. s. 9. 



142 OFFENCES RELATING TO GAME. 

within six montlia after the offence; if punishable by 
indictment or otherwise than by summary conviction, 
within twelve months (d). 

Search for Power is given to the police to search in public 

game, guns, &c.p^g^^gg persons suspected on reasonable grounds of 
coming from lands where they have been unlawfully 
in pursuit of game, and their carts, and to seize any 
game, guns, &c., which they may have in their posses- 
sion. The persons so searched are to be brought before 
two magistrates assembled in petty sessions, and, if they 
are convicted, forfeit the goods and are fined not ex- 
ceeding £5 (e). 

Hares and Unlawfully taking or killing hares or rahlits in 

rabbits. warren by night, is a misdemeanor ; by day, an 

offence punishable on summary conviction (/). 

Deer. By the same statute, hunting, killing, &c., deer 

in an uninclosed part of a forest is punishable on the 
first offence by penalty not exceeding £50 ; on the 
second, which is a felony, by imprisonment not ex- 
ceeding two years. The latter punishment applies 
to even a first offence, if committed in an inclosed 
part {g). 

Spring-guns, In connection with this subject we may notice that, 
although any innocent means may be employed to 
prevent game from being taken, and land from being 
trespassed on, it is criminal to adopt certain extreme 
measures. Setting a spring-gun, man-trap, or other 
engine calculated to destroy life or inflict grievous 
bodily harm, with intent that the same, or whereby 
the same, may destroy or inflict grievous bodily harm 



(S) 9 Geo. 4, c. 69, s. 4. 
(e) 25 & 26 Vict. c. 114, s. 2. 
(/)24&25 Vict. c. 96, s. 17. 
(<;) Ibid. ss. 12, 13. 



&c. 



OFFENCES EELATING TO GAME. 143 

upon a trespasser or other person coming in contact 
therewith, is a misdemeanor punishable by penal ser- 
vitude to the extent of five years. But this does not 
prevent setting a man-trap, &c., to protect a dwelling- 
house from sunset to sunrise (h). 

(A) 24 & 25 Vict. .;. 100. s. 31. 



( 144 ) 



Offences 
against indi- 
viduals, why 
crimes. 



OFFENCES AGAINST INDIVIDUALS. 

Offences which immediately affect individuals are re- 
garded as crimes, and not merely as violations of private 
rights, on several grounds. First, because they are 
considered as contempts of public justice and the 
Crown; secondly, because they almost always include 
in them a breach of the public peace ; thirdly, because, 
by their example and evil tendency, they threaten and 
endanger the subversion of all civil society (i). 

Offences against individuals may be divided into two 
classes — those 

Against their Persons. 
Against their Property. 



(0 4 Bl. 176. 



,( 145 ) 



PART II. 

OFFENCES AGAINST INDIVIDUALS. 

THEIR PERSONS. 

It is needless to remark that offences against the in offences 
person vary considerably in their enormity and in pfrsofthe'' 
their consequences. In this department especially degree of 
anomalies occur, which are apparently productive of °fJ"Q"^^tg?-'^ 
great inequality. It is here perhaps more than else- mined by 
where that the interference of what may be termed drcumstances. 
" extraneous circumstances " determines the character 
and gravity of the offence. We have seen that the 
intent is the index to the quality of the act ; and if 
the intent could always be correctly arrived at, of course 
such circumstances would be left out of consideration. 
And even as it is, it is difficult to see why certain 
contingencies, entirely out of the control of the 
accused, should affect his position in the most vital 
manner. For example, the same intent may result in 
murder, or wounding with intent to murder, according 
to the skilfulness of the surgeon who treats the 
wounded man. It is, however, obviously expedient, 
with our defective means of gauging the intent, to 
punish more seriously the completed crime, so that in 
cases where this consideration would have any effect 
the criminal may be induced to stop short or to resort 
to the less serious deed. 

Again, it is the law that a person cannot be convicted 
of murder if the death does not ensue within a year 
and a day from the date of the blow or wound. It 
seems hard to explain why there should still be an 
arbitrary line thus drawn ; and why it should not be 



146 OFFENCES AGAINST INDITIDUALS. 

left to the jury to decide wtether the death was the 
direct result of the wound. This seems to he another 
case of interference with the province of the jury. 
Again, it is plain that a surgeon's still has yery much 
to do with the recovery of the injured person (Jt). 



(k) V. S. V. Holland, 2 M. & R. 351. 



( 147 ) 



CHAPTEE I. 

HOMICIDE. 

HoMiciBE — the destroying of the life of a human being Homicide. . 
— includes acts varying from those which imply no 
guilt at all to those which constitute the greatest crime 
and meet with the extreme punishment of the law. 
Three kinds of homicide are usually distinguished, 
each class admitting of subdivision : — 

Justifiable: Excusable: Felonious. 

It may be stated at the outset that if the mere fact Presumed to be 
of the homicide is proved, the law presumes the malice ''*'"'"°"^- 
which is necessary to make it felonious ; and, therefore, 
it lies on the accused to shew that it was justifiable or 
excusable. 

Justifiable Homicide, that is, where no guilt, nor JustiBable 
even fault attaches to the slayer. — For one species of '^°™"^"'^- 
homicide the term "justifiable " seems almost too weak, 
inasmuch as not only is the deed justifiable, but also 
obligatory. Three cases of justifiable homicide are 
recognized : — 

i. Where the proper officer executes a criminal in Execution of a 
strict conformity with his legal sentence. A person """"°'' • 
other than the proper officer (i.e., the sheriff or his 
deputy) who performs the part of an executioner is 
guilty of murder. The criminal must have been found 
guilty by a competent tribunal ; so that it would be 
murder otherwise to kill the greatest of malefactors. 
The sentence must have been legally given ; .that is, 
by a court or judge who has authority to deal with 

L 2 



148 HOMICIDE. 

the crime. If judgment of death is given by a judge 
who has not authority, and the accused is executed, 
the judge is guilty of murder. The sentence must be 
strictly carried out by the officer (i.e., the sentence as 
it stands after the remission of any part which the 
sovereign thinks fit), so that if he beheads a criminal 
whose sentence is hanging or viee versa, he is guilty of 
murder. Though the sovereign may remit a part of 
the sentence, he may not change it. 

The two following instances of justifiable homicide 
are permitted by the law as necessary ; and the first, 
at least, as for the advancement of public justice. 

Homicide by ii. Where an officer of justice, or other person acting 
the execut? '" ^^ ^^^ ^^^' ™ *^® legal excrcise of a particular duty, 
of his duty, kills a pcrson who resists or prevents him from execut- 
ing it. Homicide is justifiable on this ground in the 
following cases (Z) : (a) When a peace officer or his 
assistant in the due execution of his office, whether in 
a civil or criminal case, kills oAe who is resisting his 
arrest-or attempt to arrest, (b) When the prisoners 
in gaol, or going to gaol, assault the gaoler or officer,^ 
and he, in his defence, to prevent an escape, kills any of 
them, (c) When an officer, or private person, having 
legal authority to arrest, attempts to do so, and the 
other flies, and is killed in the pursuit. But here the 
ground of the arrest must be either a felony, or the 
infliction of a dangerous wound, (d) When an officer, 
in endeavouring to disperse the mob in a riot or 
rebellious assembly, kills one or more of them, he not 
being able otherwise to suppress the riot. In this 
case the homicide is justifiable both at common law and 
by the Kiot Act (m). 

In all these cases, however, it must be shewn that 
the killing was apparently a necessity. 



(0 V. 4 Bl. 179. 

(m) 1 Geo. 1, St. 2, c. 5. 



HOMICIDE. 1 49 

' But it is not difficult to instance cases in which the 
officer would be guilty, (a) of murder, for example, if 
the killing in pursuit as above were in case of one 
charged with a misdemeanor only, or of one required 
merely in a civil suit (w) ; (b) of manslaughter, for 
example, if the killing in case of one so charged with 
a misdemeanor were occasioned by means not likely to 
kill, as by tripping up the fugitive's heels. 

iii. When the homicide is committed in prevention of Homicide in 
a forcible and atrocious crime. Such crimes, it is said, '^^ preTcntion 
are the following : Attempting to rob or murder an- 
other in or near the highway, or in a dwelling-house ; 
or attempting burglariously to break a dwelling- 
house in the night-time. In such cases, not only the 
owner, his servants and members of his family, but 
also any strangers present are justified in killing the 
assailant. But this justification does not apply to 
felonies without force, e.g., pocket-picking ; nor to 
misdemeanors of any kind. 

A woman is justified in killing one who attempts to 
ravish her ; and so, too, the husband or father may kill 
a man who attempts a rape on his wife or daughter, if 
she do not consent. And even if the adultery is by 
the consent of the wife, the husband taking the ofi'ender 
in the act and killing him, is guilty of manslaughter 
only. 

It is said that the party whose person or property is 
attacked is not obliged to retreat, as in other cases of 
self-defence, but he may even pursue the assailant 
until he finds himself or his property out of danger (o). 
But this will not justify a person firing upon everyone 
who forcibly enters his house, even at night. He ought 
not to proceed to the last extremity until he has taken 



(«) T. R. T. Dadson, 20 L. J. (M.C.) 57. 
(o) Fost. 273 ; 1 Uawk. c. 28, ss. 21, 24 



HOMICIDE, 

all other possible steps. In fact, the conduct of the 
other must be such as to render it necessary on the 
part of the one killing to do the act in self-defence (p). 
This brings us very near to the line which separates 
justifiable from excusable homicide ; in fact it is diffi- 
cult to distinguish between this and excusable homi- 
cide se de/endendo. It may be questioned whether the 
distinction between justifiable and excusable is a sub- 
stantial one ; whether the cases under the former are 
not extreme cases of se de/endendo. 

Excusalle Eomicide. — We have just intimated that 
there is little if any ground for the distinction between 
justifiable and excusable homicide. Perhaps there may 
be something in this, that in the former case the killer 
is engaged in an act which the law enjoins or allows 
positively, while in the latter he is about something 
which the law negatively does not prohibit {q). In 
neither case is there the malice which is an essential of 
a crime. In former times, a yery substantial difi'erence 
was made between the two kinds of homicide. That 
styled " excusable " did not imply that the party was 
altogether excused; so much so that Coke says (r) 
that the penalty was death. But the earliest informa- 
tion which the records supply shews that the defendant 
was entitled to a complete pardon, and the restitution 
of his goods ; but he had to pay a sum of money to 
procure this award. Now it is expressly declared by 
statute (s) that no forfeiture or punishment shall be 
incurred by any person who kills another by misfortune 
or in self-defence, or in any other manner without 
felony. 



(p) E. T. Bull, 9 C. & P. 22. 

(?) The reason usually given is that in both the forms of excusable 
homicide there may be some degree of blame attributable. In the first 
case, i.e., self-defence, inasmuch as in quarrels usually both parties are to 
some extent in fault ; in the second, i.e., accident, the party may not have 
used sufficient caution. But to visit the act under all circumstances with 
the punishments due to what may have happened is obviously unjust. 

(r) 2 Inst. 148, 315. 

(s) 24 & 25 Vict. c. 100, s. 7, re-enacting 9 Geo. 4, u. 31, =. 10. 



HOMICIDE. 151 

The two kinds of so called excusable homicide are 
homicide in self-defence ; homicide by accident or mis- 
fortune. 

i. 8e defendendo, upon sudden affray. — We have Homicide se 
noticed above the case of a man killing another when ''«/«"*^<'°- 
the latter is engaged in the performance of some 
forcible crime. What we have now to deal with is a 
kind of self-defence, the occasion of which is more un- 
certain in its origin, and in which it seems natural to 
impute some moral blame to both parties. It happens 
when a man kills another, upon a sudden affray, in his 
own defence, or in defence of his wife, child, parent, or 
seryant, and not from any vindictive feeling. This is 
one species of what is called chanoe (casual) or chaud 
(in heat) medley {t). 

To bring the killing within this excuse, the accused What is soir- 
must shew that he endeavoured to avoid any further ^ ^'^'^^' 
struggle, and retreated as far as he could, until no 
possible, or at least probable, means of escaping re- 
mained'; that then, and not until then, he killed the 
other in order to escape destruction. It matters not 
that the defendant gave the first blow, if he has termi- 
nated his connection with the affray by declining further 
struggle before the mortal wound is given. Of course 
the defence must be made by the person assaulted, 
while the danger is imminent ; for if the struggle is 
over, or the other is running away, this is revenge and 
not self-defence. Nor will a retreat of the nature in- 
dicated avail if the blow is the result of a concerted 
design ; as in the case of a duel, where the two parties 
have agreed to meet each other, and one, having retreated 
as far as he can, kills the other in protection of himself. 
Nor will it avail if there has been a blow from malice 



(i) The term is sometimes applied to the liilling of a person by onv 
engaged in the commission of an unlawful act, without any deliiieratc 
intention of doing any mischief; also to any manner of homicide by mis- 
adventure. 



152 HOMICIDE. 

prepense, and the striker has retreated and then killed 
the other in his own defence. 

As the definition shews, the killing in defence of 
those standing in the relation of husband and wife, 
parent and child, master and servant,- is excused ; the 
act of such person who interferes heing construed as the 
act of the party himself. 

Distinction The distinction between this kind of homicide and 

between ^j^ Clime known as manslaughter is sometimes very 

homicide se ^ o ^ , . _ 

defendmdo and subtle. It may be stated in this form : that m the 
manslaughter, f^j-^gj. ^jjg slayer could not otherwise escape, if he 
would ; in manslaughter, he would not escape if he 
could. In other words, in the former case the accused 
has done all that he can to avoid the struggle or its 
continuation ; in the latter the killing is done in the 
actual combat (m). 

Homicide per ij- P^^ infortunium, by misadventure. — When a per- 

in/ortunium. goQ doing a lawful act, without any intention of hurt, 

by accident kills another : as, for example, a man is at 

work with a hatchet, the head flies off by accident, and 

kills a bystander. 

The act must To bring the slaying within the protection of the 

be i.iwfui, excuse, the act about which the slayer is engaged must 

be (a) a lawful one. For if the slaying happen in the 

performance of an illegal act it is manslaughter at 

least ; and murder, if such act is a felony (v). It must 

done in a also (b) be doue in a proper manner. Thus it is a 

proper manner, la-^yf^j act for a parent to chastise his child, and there- - 

fore if the parent happen to occasion the death of the 

(«) The books notice one species of homicide se defendendo, in which it 
is said that the party slain and the party slaying are equally innocent, 
though the act is deliberately done, and there is no actual combat. The 
instance usually given is that of two shipwrecked persons clinging to a 
plank which is capable of holding one only. One thrusts the other oif, 
causing him to be drowned. This is justifiable, or, at least, excusable, 
homicide. 

(v) Y. H. V. Hodgson, 1 Leach, 6. 



HOMICIDE. 153 

other, if the punishment be moderate, the parent will 
be innocent as j^er infortunium. But if the correction 
exceeds the bounds of moderation, either in the manner, 
the instrument, or the quantity of the punishment, and 
death ensues, it is manslaughter at the least, and in 
some cases murder. Thus it will, as a rule, be murder 
if the instrument used is one likely to cause death ; 
manslaughter, if the instrument is not of such a cha- 
racter, though an improper one. 

The act must also (c) be done with due caution to with due 
prevent danger ; and therefore with more caution by o^"'"""- 
those using dangerous instruments or articles. Due 
caution is such as to make it improbable that any 
danger or injury should arise from the act to others. 
Thus throwing stones from a house, whereby the death 
of some one is caused may be murder, manslaughter, or 
homicide by misadventure : murder, if the thrower 
knew that people were passing, and gave no notice ; 
manslaughter, if a time when it was not likely that any 
people were passing ; excusable homicide if in a retired 
place, where persons were not in the habit of passing 
or likely to pass (x). It has been said that to be 
criminal, the negligence must be so gross as to be reck- 
less {y), but it is impossible to define culpable or 
criminal negligence. 

Felonious homicide, or homicide coupled with a Felonious 
felonious intention, is capable only of a negative de- '"""'"'^'^ 

/ -^ •/ o negatively 

scription — the killing of a human creature of any age described. 
or sex without justification or excuse. The human 
creature killed may be either one's self or another. 

SUICIDE OE SELF-MURDEK. 

Suicide is the felony of murder, inasmuch as it is the Suieide. 
murder of one of the sovereign's subjects. To be such 



(a;) Fost. 262. 

(,y) E. V. Soakcs, 4 F. & F. 921, ii. 



HOMICIDE 

offence, the act must be committed deliberately, and by 
one who has arrived at years of discretion, and is in his 
right mind. The supposed absence of the last requisite 
is often taken advantage of by a jury guilty of " an 
amiable perjury," in order to save the reputation of the 
deceased. In fact sometimes their verdicts shew they 
deem the very act of suicide evidence of insanity. 

Not only is he guilty of suicide who, in pursuance of 
a fixed intention, takes away his life, but also he who, 
maliciously attempting to kill another, occasions his 
own death ; as where a man shoots at another, and, the 
gun bursting, he kills himself. But if a man is killed 
at his own request by the hand of another, the former 
is not deemed in law a felo de se, though the latter is a 
murderer. 

If one persuades another to kill himself, and he does 
so, the adviser is guilty of murder. So, also, if two 
persons agree to commit suicide together, if one escapes 
and the other dies, the survivor is guilty of murder (2), 
though it is extremely doubtful whether he would be 
executed. 

Formerly the punishment for this crime was an 
ignominious burial in the highway, without Christian 
rites, with a stake driven through the body ; and the 
vicarious punishment of his friends by the forfeiture of 
all his goods and chattels to the Crown. But now the 
only consequence is the denial of Christian burial, the 
feh de se being buried in the churchyard or other bury- 
ing ground, within twenty-four hours after the inquest, 
between the hours of nine and twelve at night (a). 
The forfeiture has been done away with in this as well 
as in other kinds of felony (b). 

(2) S. V. Lysm, E. & E. 523. "" ' 

(a) 4 Geo. 4, c. 52, s. 1. 

(6) 33 & 34 Vict. c. 23. "Suicide may he wicked, and is certainly 
injurious to society, but it is so in a much less degree than murder. The 



HOMICIDE. 155 

An attempt to commit suicide is not an attempt Attempted 
to commit murder within the Offences against the ^"'"'''-'• 
Person Act (e), but still remains a common law misde- 
meanor. 

The felonious killing of another is either murder or Felonious 
manslaughter. In dealing with the crime of murder, ''"4?^ "^ 

i ,,...,, ° , , , another. 

we snail anticipate, to some extent, the law of man- 
slaughter, a great part of the law on the subject con- 
sisting in a distinction of the two crimes. 

MUEDEE. 

Murder is popularly regarded as the gravest crime Murder, vanes 
known to the law. As a rule it would occupy the '? ''^ '"°''*^ 
same position, regarded both from a moral and from a 
legal point of view. But that this is not always the 
case an example will serve to shew. Both of the follow- 
ing acts are murder, and punishable by death. A man, 
having received a slight insult from another, dogs his 
path for six months, and, with all circumstances of 
aggravation, kills him in cold blood. A man carrying 
a gun sees a hen and resolves to shoot and then appro- 
priate it ; he shoots, and by accident wounds a person 
who has come upon the scene ; the wounded man dies' 
nine months afterwards, though his life might have 
been saved if he had submitted to an operation, or if 
the physician had been more skilful. But, on the other 
hand, there is one mode of depriving of life which is at 
least equally culpable, viewing the matter morally, 
but which is not regarded as murder, namely, taking 
away a man's life by perjury {d). 



injury to the person killed can neither be estimated nor taken into account. 
The injury to survivors is generally small. It is a crime which produces 
no alarm, and which cannot be repeated. It would, therefore, be better 
to cease altogether to regard it as a crime, and to provide that anyone 
who attempted to kill himself, or who assisted any other person to do so, 
should be liable to secondary punishment." — Fitz. St. 121. 

(c) 24 & 25 Vict. 0. 100, s. 15. 

(d) B. V. Macdanicl, Post.- 131. 



156 HOMICIDE. 

Definition of We may adopt Coke's definition of murder for the 
murder. purpose of explaining the crime. " When a person of 

sound memory and discretion unlawfully killeth any 
reasonable creature in being and under the king's 
peace with malice aforethought, either express or im- 
plied" (e). 

Tiie sanity, &c., (a.) The offender must he of sound memory and dis- 
ci the ofifender. cretion. — Thus are excluded all idiots, lunatics, and 
infants, in accordance with the rules as to capability 
of committing crimes which have already been set 
forth (/). To which we may add, that a person 
would be guilty of manslaughter at the most if he 
were not conscious that the act done was one which 
would be likely to cause death (g). Of course the 
person procuring an idiot to. commit murder, or, indeed, 
any crime, is guilty himself of the crime. 

The unlawful (b.) Unlawfully Mlleth, that is, kills without justifi- 

kiiiing. cation or excuse. — As we have seen, the presumption is 

against the accused, and it is for him to purge the act 

of its felonious character by proving such justification 

or excuse. 

The form of It is perfectly immaterial what may be the particular 
^^' ■ form of death, whether poisoning, striking, starving, 

drowning, or any other (h). Any act, the probable 
consequence of which may be, and eventually is, death, 
is murder, though no stroke be struck, and, what is 
more noticeable, though the killing be not primarily 
intended ; for example, when a mother hid her child in 
a pig- stye, where it was devoured (t). So if one, under 
a well-grounded apprehension of personal violence, 
does an act which causes his death, as for instance, 



(e) 3 Inst. 47. 

(/) V. p. 19. 

(a) H. V. Vamplew, 3 F. & F. 520. 

(A) As to swearing away a man's life, r. p. 83, u. 

(0 1 Hale, P. C. 433. 



HOMICIDE. 157 

jumps out of a window, he who threatens is answer- 
able for the consequences (h). A person may also be 
guilty through mere nonfeasance ; as if it was his duty 
and in his power to supply food to a child unable to 
provide for itself, and the child died because no food 
was supplied (I). 

It is no defence to shew that the deceased was in ill- The cause of 
health and likely to die when the wound was given (m). ''^*"'- 
Nor is it a defence that the immediate cause of death 
was neglect on the part of the doctor, or the refusal 
of the party to submit to an operation; though it 
would be otherwise if the death were caused by impro- 
per applications to the wound, and not the wound 
itself (n). To make the killing murder the death The time of 
must follow within a year and a day after the stroke '^'**''' 
or other cause; for if the death is deferred for that 
length of time, the law will presume that it arose from 
some other cause. 

If a person is indicted for one species of killing, e.g., Variance as to 
poisoning, he cannot be convicted by evidence of a j''^.?'™ "^ 
totally diflferent species of death, e.g., starving. But if 
the difference consists only in a detail, e.g., whether 
the instrument was a sword or an axe, this is im- 
material. 

As a general rule, proof is required of the finding of Finding of the 
the body of the deceased. But this rule is not in- ^°^7- 
flexible, as where the direct evidence brought before 
the jury is sufficiently strong to satisfy them that a 
murder has really been committed. 

(c.) Any reasonable creature in heing and under the The person 
king's feace. — 'Therefore killing a child in its mother's '''"^'^• 



(k) B. V. Evans, 1 Kuss. 426. 
(0 S. r. Friend, E. & E. 20. 
(m) S. V. Martin, 5 C. & P. 130. 
(n) B. V. Holland, 2 M. & R. 351. 



158 HOMICIDE. 

womb is no murder (o), but it is otherwise if the child 
is born alive and dies from wounds or drugs received 
in the womb. " Under the king's peace " excludes only- 
alien enemies who are actually engaged in the exercise 

of war (p). 

* 
Murder- (d.) With molice aforethought. — The term " malice " 

malice. jg g^ jj^^gj. ^i^jguit one. It is used in various and 

conflicting senses, and the mind is apt to slide from the 
one to the other. The simple etymological significa- 
tion of " wickedness " may generally be disregarded. In 
another sense, as we have seen (q), malice, taken as equal 
to criminal intention, is of the essence of every crime. 
Therefore this view of the word will not serve to dis- 
tinguish one crime from another. The murder-malice 
is usually described as " aforethought " or "prepense," 
but this addition, in itself, will not help us to any better 
understanding of the state of mind required to consti- 
tute murder (*•). 

That this malice aforethought is not what its name 
seems to imply — malevolence or ill-will towards the 
deceased — is manifest, when we consider that perhaps 
the majority of murders are committed with a view to 
robbery ; or, again, when we remember that murder 
can be committed though the murderer has not the 
slightest wish to injure, or has not the slightest know- 
ledge of the deceased, as in the case mentioned above 
of shooting at the fowl ; nay more, we can conceive of 
the case of a person being convicted of the murder 
of his dearest friend or relative. "What, then, is this 

(o) But V. p. 173. 

(p) 1 Hale, P. C. 433. 

(2) v. p. 13. 

(r) " The word ' aforethought ' is unfortunate ; ' wilful and malicious ' 
homicide would be better. The word 'aforethought' countenances the 
popular error that a deliberate premeditated intent to kill is required in 
order to constitute the guilt of murder, whereas it is only one out of 
several states of mind which hare that effect. It is, moreover, an un- 
meaning word, for the thought, the state of mind, whatever it is, must 
precede the act; and it precedes it equally, whether the interval is a 
second, or twenty years."— Fitz. St. 118. 



HOMICIDE. 159 

superior degree of malice ? It may be said to be a 
felonious design or intention in general. This inten- 
tion may be sometimes regarded as unfixed or floating 
(as in the fowl case). The deed causing death is done, 
and at the same time to it is attached this moveable 
quality. It must be noticed that this murder-malice 
is not a motive. The motive is to get the gold, hatred, 
&c. It is a difficult matter to give a description of 
malice which will apply to all cases of murder, of 
so various character are they, and so built up on in- 
dividual decisions. 

At the risk of confusing our idea of this essential Malice, express 
of murder, we must mention the ordinary distinction ""^ ™^ '^^' 
between express and implied malice. But here it will 
be no easy matter to suppress the tendency to revert 
to the moral view of malice, which is always lurking 
about ready to make its appearance. 

The true ground of distinction, if it is necessary to 
make one, seems to have been apprehended in the 
Indian Penal Code (s). 

Express malice may be said to be the jposifoVe Express malice. 
possession of an intention : — 

i. Of causing death. 

ii. Of causing such bodily injury as the offender 
knows is likely to cause death, e.gi., beating with an iron 
bar. 

iii. Of causing bodily injury, and the bodily injury 
intended to be inflicted is sufficient in the ordinary 
course of nature to cause death (t). 



(s) Article 300. 

(t) Express malice is generally described as that "When one with a 
sedate and deliberate mind, and formed design, doth kill another ; which 
formed design is evidenced by external circumstances discovering that in- 
ward intention ; as lying in wait, antecedent menaces, former grudges, and 
concerted schemes to do him some bodily harm " (1 Hale, P. C. 451). But 
this does not at all square with the legal idea of malice. 



160 HOMICIDE. 

Implied malice. Implied malice may be said to be the possession of a 
general intention of such a nature implied from the 
acts of the offender, or the wanton running of a risk 
by a person committing an act, who knows that it will 
probably cause death, or bodily injury which may cause 
death, without any excuse for incurring such risk (m). 

Punishment. As to the punishment of murder, nothing further 
need be said here than that the sentence is death (x) ; 
with regard to which, and its execution, particulars 
will be given in a later chapter. Accessories after the 
fact to murder are liable to penal servitude to the 
extent of life (y). 

On an indictment for murder, the jury may convict 
the prisoner of manslaughter, or, of course, of an attempt 
to murder ; but not of an assault {z). 

MANSLAUGHTBE. 

Manslaughter. The Unlawful killing of another without malice, 
either express or implied. The malice referred to here 
is the murder-malice, at the meaning of which we have 
been endeavouring to arrive. 

Moral cha- In this Crime, again, we shall find acts varying to the 

racter of the utmost in their moral gravity and offensiveness. Per- 

r.rimfi varies. ^ ** 

haps on no other charge do persons more often appear 
in the dock and leave it without a stain on their cha- 
racters. To take one class of examples — it constantly 
happens after an accident in a mine or on a railway 
that some of those engaged in the management of the 



(«) The example usually given of implied malice, namely, that of a man 
wilfully poisoning another, seems, indeed, to be a case of express malice, as 
there most certainly is an evil intention present. The truth is, that in 
this example also there is a recurrence, to the motive view of malice; in 
fact, the authority (1 Hale, P. C. 455) proceeds, " In such a deliberate act 
the law presumes malice, though no particular enmity can be proved." 

(ic) 24 & 25 Vict. c. 100, ». 1. 

ly) Ibid. s. 67. 

(«) As to conspiracy to murder, v. p. 124. 



crime varies. 



HOMICIDE 161 

one or the other are required to meet a charge of man- 
slaughter which is preferred against them. 

Two kinds of manslaughter are distinguished : — 

i. Upon a sudden heat (termed voluntary). 

ii. In the commission of an unlawful act (termed 
involuntary) , (a). 

i. Voluntary (so-called).— The distinguishing mark Voluntary 
of this sort of manslaughter is the provocation giving manslaughter, 
rise to sudden anger, during which the deed causing 
death is done. If upon a sudden quarrel two persons 
fight and one of them kills the other, the former will 
be guilty of manslaughter only, unless there are special 
circumstances which indicate evil design. But the act 
will be viewed in the less serious light of manslaughter 
only as long as the outburst of passion continues ; not 
that the struggle need take place on the spot, for if 
the two at once adjourn to another place to fight, it 
will still be only manslaughter. So, also, in other cases 
of grave provocation, as if one man pulls- another's 
nose, or is taken in adultery with another's wife. But 
here again, on the same grounds, to reduce the homi- 
cide to manslaughter, the cause of death must be 
inflicted at once, whilst the provocation is still exer- 
cising its full influence. Otherwise the slaying will be 
regarded as a deliberate act of revenge (6). It is need- 
less to add that the plea of provocation will not avail if 
the provocation was sought for and induced by the 
slayer. 

The instrument used when the person is acting under The instru- 
provocation is also a material consideration. It may be materia?'^ oTnt 

(a) The objectlonableness of the term " roluntary " and " inroluntary," 
as opposed to each other, to denote varieties of the same crime, is obvious. 
There is no such thing as an involuntary crime. If the action be not a 
voluntary one it is not criminal (v. p. 12). What seems to be meant is 
that in the one case death is anticipated, in the other it is not. 

(6) S. V. Hayward, 6 C. & P. 157. 

M 



1"62 HOMICIDE. 

said that the proToeation must be of the gravest nature 
to render guilty of manslaughter only one who uses a 
deadly weapon, or otherwise shews an intention to do 
the deceased grievous bodily harm. But a slighter 
provocation will suffice if the instrument used is one 
not likely to cause death, as a stick, or a blow with 
the fist. In fact the mode of resentment must bear a 
reasonable proportion to the provocation to reduce the 
offence to manslaughter (e). 

Manslaughter Manslaughter is to be distinguished from homicide 
from homi'dde ^^ self-defcnce on sudden affray. In the latter, the 
in self-defence, ground for the blow, &c., is the necessity to take such 
a step for self-preservation ; in the former, this neces- 
sity does not exist, but its place is taken by a sudden 
accession of ill-will. 

Involuntary ii. Involuntary (so-called) when the death, not being 
manslaughter, intended, is causod in the commission of an unlawful 
act. By this is meant that the unlawfulness of the 
act in which the accused is engaged is the ground 
of the homicide being regarded as manslaughter, and 
not homicide by misadventure merely. In the cases 
mentioned above under voluntary manslaughter, the 
death is caused by an unlawful act, but there that is 
not the distinguishing mark of the manslaughter. By 
" unlawful " here must be understood what is malum 
in se, and not what is merely malum quia prohibitum. 
Thus, then, if a man shooting at game by accident kills 
another, it is homicide by misadventure only, even 
although the party is not qualified (d). 

Tbf. unlawful Here, again, we may observe that it is immaterial 

"*''■ whether the unlawfulness is in the act itself or (that 

which comes to the same thing) in the mode in which 

it is carried out. It must also be borne in mind that 



(c) S. V. Steadman, Fost. 292. 

(d) Fost. 259. 



HOMICIDE. 163 

if the unlawful act is a felony, the homicide amounts 
to murder. An instance of manslaughter in the com- 
mission of an unlawful act is furnished when one person 
kills another while the two are playing at an unlawful 
game ; of manslaughter in doing a lawful act in an un- 
lawful manner, — when a workman throws down stones 
into a street where persons may but are not likely to 
he passing. 

One form of doing an act in an unlawful manner is Manslaughter 
negligence. This consideration very frequently presents negligence, 
itself in manslaughter. It may be said generally that 
whatever constitutes murder when done by fixed design, 
constitutes manslaughter when it arises from culpable 
negligence ; for example, when a near-sighted m|in 
drives at a rapid rate, sitting at the bottom of his cart, 
and thereby causes the death of a foot-passenger (e). 
A large class of cases is that in which the death ensues 
from the treatment of disease. The man, whether a 
medical practitioner or not, is not indictable unless his 
conduct is marked by gross ignorance or gross in- 
attention (/). With regard to negligence, there is a 
great difference between criminal and civil proceedings. 
The criminal law does not recognize the defence of 
contributory negligence in manslaughter {g). 

It is commonly said that in manslaughter there can Accessories 
be no accessories before the fact, because the act ''^^™^ ""' ''*°*' 
causing death is done without premeditation. But 
though this may be true in cases the gist of which 
is the sudden heat, it is easy to imagine cases in which 
this principle could not be maintained (h). 

Manslaughter is a felony, punishable by penal servi- ^Punishment. 



(e) V. S. V. Walker, 1 C. & P. 320. 

(/) B. T. Long, 4 C. & P. 398. 

(g) R. V. Smndall, 2 C. & K. 230; S. v. Jones, 11 Cox, 544. For other 
classes of acts which amount to manslaughter, the reader is referred to 
the classitication of intents given below. 

(A) V. Jt, T. Gaylor, cited above, p. 35. 

M 2 



164 HOMICIDE. 

tude to the extent of life— or in lieu of, or in addition 
to, the penal servitude or imprisonment, a fine may- 
be imposed (i). Cases of mere carelessness, &c., legally 
amounting to manslaughter, are often more appro- 
priately punished by pecuniary fine than by the indig- 
nity of imprisonment. 

Having inquired into the nature of the crimes of 
murder and manslaughter, we are now in a position to 
examine certain classes of acts, and determine by the 
circumstances whether they fall under the head of 
murder, manslaughter, or excusable homicide. 

Fighting. Killing by Fighting : — 

i. Murder — Deliberately fighting a duel — or after 
time for cooling— or under any other circumstances 
indicating deliberate ill-will. 

ii. Manslaughter — In a sudden quarrel where the 
parties immediately fight — or where, the parties are 
fighting in an unlawful amusement. 

iii. Excusable — In a sparring match with gloves, or 
other lawful amusement, fairly conducted in a private 
room. 

Correction. Killing by Correction : — 

i. Murder — With weapon likely to cause death, e.g., 
an iron bar. 

ii. Manslaughter — With an instrument not lijiely to 
kill, though improper for use in correction — or where 
the quantity of punishment exceeds the bounds of 
moderation. 

iii. Excusable — Correcting in moderation a child, 
servant, scholar, or criminal intrusted to one's charge. 



(0 24 & 25 Vict. Q. 100, s. 5. 



HOMICIDE. 165 

Killing without intending! to kill whilst doing another in doing an 

J . unlawful act. 

i. Murder — If that other act is a felony. 

ii. Manslaughter — If that other act is unlawful, i.e., 
malum in se. ^ 

iii. Excusable — If that other act is lawful, i.e., not 
malum, in se. 

[But see next paragraph.] 

Killing whilst doing a lawful but dangerous act,, e.g., in doing a 

driving :— ^ dangerous act. 

i. Murder — If he perceives the probability of the 
mischief, and yet proceeds with his act, 

ii, Manslaughter — If he might have seen the danger 
if, as he ought to have done, he had looked before 
him — or if, though he previously gave warning, this 
warning was not likely to prove entirely effectual, e.g., 
driving in a crowded street. 

iii. Excusable — If he uses such a degree of caution 
as to make it improbable that any danger or injury 
will arise to others. 

Killing officers or others engaged in effecting the ends Homicide of 

of justice:— officers, &c. 

i. Murder — If the officer or other person is acting 
with due legal authority, and executing such authority • 
in a legal manner, the defendant knowing that autho- 
rity — or, in the case of a private person interfering, the 
intention of such person being intimated expressly. 

ii. Manslaughter — If any one of these requisites is 
absent (Jc). 



(A) " The guilt of the offender may thus depend entirely upon nice and 
difficult questions belonging to the civil branch of the law, such as the 
technical regularity of civil process, or the precise duty of a minister of 
justice in its execution." — Broom, C. L. 908. 



166 HOMICIDE. 

By officers, &c. Killing by officers and others in the nominal execution 
of their duty : — 

i. Murder — ^If the killing happens in the pursuit of 
a person not resisting, but fleeing, such person being 
charged with a misdemeanor only, or the arrest being 
only in a civil suit. 

ii. Manslaughter — As above, if the death is caused 
by means not likely or intended to. kill — or if, in an 
apprehension for felony, there is no need for the violence 
used by the officer. 

iii. Justifiable — If the officer or other is resisted in 
the legal execution of his duty, and this in civil as 
well as in criminal cases — if a felon or giver of a 
dangerous wound cannot be otherwise apprehended, 
though he does not resist but only flees (I). 

ATTEMPT TO MUEDER. 

Attempt to This Crime is frequently described by the judges as 

murder. ^^^^ ^^ actual completed murder, the most serious crime 

known to the law. The Ofi'ences against the Person 
Act, 1861, deals in several sections with attempts to 
murder effected in various ways. The punishment in 
every case is the same, namely, penal servitude to the 
extent of life. Why the last and general section would 
not suffice if it stood alone, inasmuch as it compre- 
hends all the others, and awards the same punishment, 
it is hard to conceive (m). The various attempts 
specified are the following : — 

Administering poison,, wounding, or causing grievous 
bodily harm, with intent to murder (w). 



(T) V. Appendix at end of chiipter. 

(m) "The subdivision of the enactments is highly characteristic of 
English law, and is not without interest as a memorandum of the suc- 
cessive steps by which the law was brought into the present shape." 
— Fitz. St. 48. 

(n) 24 & 25 Vict. vj. 100, =,. 11. 



HOMICIDE. 167 

Attempting to poison, shoot, drown, suffocate, or 
strangle, with like intent, whether any bodily injury 
be effected or not (o). 

Destroying or damaging any building by gunpowder 
or other explosive substance, with like intent (p). 

Setting fire to any vessel or its belongings, or casting 
away or destroying any vessel, with like intent (q). 

Attempting to murder in any other way (r). 



APPENDIX. 

The importance of a clear apprehension of the state Becapituiation 
of the law as to what acts are murder, manslaughter, betwten'^''™^ 
and non-felonious homicide respectively, makes it not murder, man- 
impertinent to insert the following compilation of dis- noT-feionious 
tinctions judicially laid down on the subject, made by homicide. 
Sir James Stephen (Gren. View of Orim. Law, 116) : — 

" The following states of mind have been specifically Murder. 
determined to be wicked or malicious in the degree 
necessary to constitute murder : 

" (a.) An intent to kill, whether directed against the 
person killed or not, or against any specific person or 
not. 

" (b.) An intent to commit felony. 

" (c.) An intent illegally to do great bodily harm. 

" (d.) Wanton indifference to life in the performance 
of an act likely to cause death, whether lawful or not. 

" (e.) A deliberate intent to fight with deadly 
weapons. 



(o) 24 & 25 Vict. u. 100, s. 14. 
(p) Ibid. =,. 12. 
(?) Ibid. s. 13. 
(r) Ibid. s. 15. 



168 HOMICIDE. 

"(f.) An intent to resist a lawful apprehension by 
any person legally authorized to apprehend. 

Manslaughter. " The following states of mind have been determined 
to constitute that lighter degree of malice which is 
necessary to the crime of manslaughter •: 

" (a.) An intent to kill under the recent provocation, 
either of considerable personal violence inflicted on the 
prisoner by the deceased, or of the sight of the act of 
adultery committed by the deceased with the prisoner's 
wife. 

" (b.) An intent to inflict bodily injury not likely to 
cause death under a slight provocation, as when a man 
striking a trespasser with a slight stick kills him. 

" (c.) A deliberate intent to fight in a manner not 
likely to cause death, or an intent to use a deadly 
weapon in a fight begun without the intention to use 

it. 

" (d.) An intent to resist an unlawful apprehension, 
or an apprehension of the lawfulness of which the 
prisoner had no notice. 

" (e.) An intent to apprehend, or otherwise to exe- 
cute legal process executed with unnecessary violence. 

" (f.) Negligence in doing a lawful act, or an unlaw- 
ful act not amounting to felony. 

Non-felonious " The following states of mind have been held not to 
homicide. ^g malicious or wicked at all, and when any of them 

exist at the time when death is caused no crime is 

committed : 

" (a.) An intent to execute sentence of death. 

" (b.) An intent to defend person, habitation, or pro- 
perty against one who manifestly intends, or endeavours 
by violence or surprise, to commit a known {i.e., appa- 
rent) felony, such as rape, robbery, arson, burglary, &c. 



HOMICIDE. 169 

" (c.) An intent lawfully to apprehend or keep in 
custody a felon who cannot otherwise be apprehended 
or kept in custody, or to keep the peace if it cannot 
otherwise be kept. 

" (d.) Absence of all unlawful or malicious intents 
or states of mind. (This is the case of accident)." 



( 170 ) 



Definition of 
rapa. 



Persons who 
cannot be con- 
victed of the 



Essentials of 
the crime. 



CHAPTEE II. 

EAPE, ETC. 
EAPE. 

The offence of having carnal knowledge of a woman by 
force against her will. 

Certain persons cannot be convicted of this crime. 
An infant under the age of fourteen is deemed in law 
to be incapable of committing this offence, on account 
of his presumed physical incapacity. And this is a 
presumption which cannot be rebutted by evidence of 
capacity in the particular case. Neither can a husband 
be guilty of a rape upon his wife. But both a husband 
and a boy under fourteen may be convicted as prin- 
cipals in the second degree, and may be punished for 
being present aiding and abetting. 

To constitute the offence, the act must be committed 
by force, and without the consent of the female. If, 
however, she yielded through fear of death or duress, 
it is nevertheless rape ; for here the consent is at most 
imperfect. But the crime is not committed if she is 
beguiled into consent by some fraud or artifice; for 
example, under the representation that the offender 
was her husband. In such case the proper course is to 
indict the offender for an assault (s). It is equally 
rape though the female is a common prostitute or the 
concubine of the prisoner ; but circumstances of this 
nature will probably operate with the jury in their 
consideration as to whether there was consent. It is 



(s) B. V. ■Williams, 8 C. & 1'. 



RAPE, ETC. 171 

necessary to prove penetration, but not anything 
further {t). If the prosecution fail to prove this, the 
prisoner may nevertheless be convicted of the attempt. 

At almost every trial for this crime the words of Sir Credibility of 
Matthew Hale are recalled : " It is an accusation easy of^thrwrman. 
to be made and hard to be proved, but harder to be 
defended by the party accused, though innocent." It 
will be well to estimate the degree of credibility of the 
testimony of the woman, for of course she is a compe- 
tent witness. On this point we cannot do better than 
remember the words of Blackstone (m). The credi- 
bility of her testimony, and how far she is to be 
believed, must be left to the jury upon the circum- 
stances of fact that concur in that testimony. For 
instance, if the witness be of good fame ; if she pre- 
sently discovered the offence and made search for the 
offender; if the party accused fled for it; these and 
the like are concurring circumstances, which give 
greater probability to her evidence. But, on the other 
side, if she be of evil fame, and stand unsupported by 
the testimony of others ; if she concealed the injury 
for any considerable time after she had opportunity to 
complain ; if the place where the fact was alleged to 
have been committed was where it was possible she 
might have been heard, and she made no outcry ; these 
and the like circumstances carry a strong, but not 
conclusive, presumption that her testimony is false or 
feigned. The prisoner may call evidence to her gene- 
rally bad character for want of chastity or indecency, 
and of her having had connection with him previously, 
but not of her having had connection with others. As 
to the last point she may be asked the question, but is 
not compelled to answer it ; if she denies it, the person 
referred to cannot be called to contradict her (x). 



(t) 24 & 25 Vict. i;. 100, s. 63. 

(m) 4 Bl. 213. 

(a) R. V. Holmes, L, R. 1 C. C. R. 334; 41 L. J. (M.C.) 12. 



172 



BAPE, ETC. 



The punishment for this crime, which is a felony, 
is penal servitude to the extent of life (y). 



CABNALLY ABUSING OHIIDBEN. 

Carnally To Unlawfully and carnally know and abuse any girl, 

chUdrfn. if she is under the age of twelve years, is a felony, 
punishable by penal servitude to the extent of life ; if 
between twelve and thirteen, it is a misdemeanor, pun- 
ishable by imprisonment not exceeding two years {z). 

In this oflFence it is immaterial whether the act were 
done with or without the consent of the child. She 
may be a witness on her oath if she appears sufSciently 
to understand the nature and obligation of an oath. 

Procuring Another offence may be noticed here : — By false pre- 

toVa vl™n-''^ tences, false representations, or other fraudulent means, 
nection, &c. to procure any female under the age of twenty-one 
years to have illicit carnal connection with any man is 
a misdemeanor, punishable by imprisonment not exceed- 
ing two years (a). 



Indecent 
assault, &c. 



To commit an indecent assault upon any female, or 
to attempt to have carnal knowledge of a girl under 
twelve years of age, is a misdemeanor, punishable by 
penal servitude not exceeding two years (b). 



Sodomy and 
beastiality. 



UNNATUBAL CEIMES. 



To commit the crime against nature, with mankind 
or with any animal, is a felony, punishable by penal 
servitude ; the penal servitude may extend to life, but 
may not be less" than ten years (c). The evidence is 



(i/) 24 & 25 Vict. c. 100, s. 48. 
(z) 38 & 39 Vict. c. 94. 

(a) 24 & 25 Vict. o. 100, s. 49. 

(b) Ibid. s. 52. ' 

(c) Ibid. s. 61. 



EAPE, ETC. 173 

the same as in rape, with two exceptions : (a) It is not 
necessary to prove the offence to have been committed 
without the consent of the person upon whom it was 
perpetrated, (b) Both parties, if consenting, are 
equally guilty ; but if one of the parties is a boy under 
the age of fourteen years, it is felony in the other only. 

-To attempt to commit the said crime, or to make Attempt, &c. 
an assault with intent to commit the same, or to make 
any indecent assault upon a male person, is a misde- 
meanor, punishable by penal servitude to the extent of 
ten years {d). 

ATTEMPTS TO PKOOTJEE ABORTION. 

Three classes of persons may be guilty of crimes Attempt to 
under this heading. The woman herself — the person ^bortUm 
who procures or supplies the drug, &c. — some other 
person. 

For a woman being with child, with intent to pro- by the woman, 
cure her own miscarriage, to administer to herself 
any poison or other noxious drug, or to use any instru- 
ment or other means ; or 

For any person to do the same with intent to procure by some other 
the miscarriage of any woman, whether she be with P^"""' 
child or not, is a felony, punishable by penal servitude 
to the extent of life (e). 

For any person to procure or supply poison or other Supplying the 
noxious thing, or any instrument or other thing, know- ™^'"'^' 
ing that the same is intended to be unlawfully used 
with intent to procure the miscarriage of a woman, is 
a misdemeanor, punishable by penal servitude to the 
extent of five years (/). 



(d) 24 & 25 Vict. c. 100, s. 62. As to obtaining money by threatening 
to accuse of this crime, v. p. 104. 

(e) Ibid. s. 58. 
(/) Ibid. s. 59. 



174 



BAPE, ETC. 



Concealment of 
birth. 



What must be 
proved. 



CONCEALMENT OF BIRTH. 

If a woman is delivered of a child, every person who 
by any secret disposition of the dead body of the child, 
whether it died before, at, or after its birth, endeavours 
to conceal the birth thereof, is gailty of a misdemeanor, 
punishable by imprisonment not exceeding two years. 
A person tried for and acquitted of murder may be 
sentenced for concealment of birth, if the facts justify 
that conclusion {g). 

The denial of the birth only is not sufficient. There 
must be some act of disposal of the body after the child 
is dead (h). In order to convict a woman of attempting 
to conceal the birth of her child, a dead body must be 
found and identified as that of the child of which she 
is alleged to have been delivered (i). It will be noticed 
that the offence may be committed by others, and not 
only by the mother. 



ABDUCTION. 



Abduction. We may distinguish three classes of cases : — 

i. Of a woman on account of her/or<Mwe. 



On account of 
the woman's 
fortune. 



Where a woman of any age has any interest (legal 
or equitable, present or future, absolute, conditional, or 
contingent) in any real or personal estate, or is a pre- 
sumptive heiress or co-heiress, or presumptive next of 
kin to anyone having such interest — (a) whosoever, 
from motives of lucre, takes away or detains such woman 
against her will, with intent himself, or to cause some 
other, person, to marry her, or have carnal knowledge 
of her — or (b) whosoever ' fraudulently allures, takes 
away, or detains such woman, being under the age of 



((/) 24 & 25 Vict. c. 100, s. 60. 
(A) R. V. Turner, 8 C. & P. 755. 
(i) B. V, Williams, 11 Cox, 684. 



RAPE, ETC. 175 

twenty-one, out of the possession or against the will of 
her father or mother, or other person having the lawful 
care or charge of her, with like intent, is guilty of a 
felony, punishable by penal servitude to the extent of 
fourteen years. The convicted person is also rendered 
incapable of taking any interest in her property ; and 
if he is married to her, the property will be settled as 
the Chancery Division, upon an information at the 
suit of the Attorney-General, appoints (k). The intent 
to marry or have carnal knowledge need only be proved, 
not the carrying out of that intent. The wife is a 
competent witness either for or against the prisoner. 

ii. By /orce with intent to marry. 

The same punishment attends the forcible taking By force, with 
away or detaining against her will a woman of any age, '°'*°* *" 
with intent to marry or carnally know her, or cause 
her to be married or carnally known by any other 
person (I). 

iii. Of a girl under sixteen years of age. 

To unlawfully take or cause to be taken any unmarried Of girl under 
girl under the age of sixteen out of the possession and ^"^'■**°- 
against the will of her father or mother, or of any other 
person having the lawful care or charge of her, is a 
misdemeanor, punishable by imprisonment not exceed- 
ing two years (m). 

If the girl leaves her father, &c., without any induce- Who are within 
ment on the part of the defendant, and then goes to him, ^"^'^ provision. 
he is not within the statute (w). Nor is he, if he did not 
know, and had no reason to know, that she was under 



(*) 24 & 25 Vict. c. 100, s. 53. 

(0 Ibid. s. 54. 

(m) Ibid. s. 55. 

(») S. V. Olifier, 10 Cox, 402. 



176 EAPE, ETC. 

the lawful charge of the father or other person (o). 
Of course mere absence for a temporary purpose and 
with intention of returning does not interrupt the 
possession of the father, &Ci It is no defence that the 
defendant did not know her to be under sixteen, or 
might suppose from her appearance that she was older, 
or even that he believed that he knew she was over 
that age (p). A taking by force is not necessary to 
constitute the offence. It is immaterial whether there 
be any corrupt motive, whether the girl consent, and 
whether the defendant be a male or female (q). 

CHILD-STEALING, ABANDONING, ETC. 

Child-stealing. To unlawfully, either by force or fraud, lead or take 
away, or decoy or entice away, or detain a child under 
the age of fourteen years, with intent to deprive the 
parent, or other person having lawful care or charge, 
of the possession of the child, or with intent to steal 
any article upon or about the child ; or, with any such 
intent, to receive or harbour any such child, knowing 
the same to have been so led away, &c., is a felony, 
punishable by penal servitude to the extent of seven 
years. But persons claiming any right to the posses- 
sion of the child do not fall within the statute {r). 

Child-abandon- To Unlawfully abandon or expose any child under 
mg, or ex- ^j^^ ^^^ ^^ j^^^ years in such manner that its life is 
endangered or its health is, or is likely to be, perma- 
nently injured, is a misdemeanor, punishable by penal 
servitude to the extent of five years (s). 



(o) S. V. Hibbert, L. R. 1 C. C. R. 184; 38 L. J. (M.C.) 61. 
(p) S. V. Prince, L. K. 2 C. C. K. 154 ; 44 L. J. (M.C.) 122. 
(?) iJ. T. Handley, 1 K. & F. 648. 
(r) 24 & 25 Viet. c. 100, s. 56. 

(s) Ibid. s. 27 ; v. S. v. Falkmgham, L. R. 1 C. C. R. 222 ; 39 L. J. 
(M.C.) 47, shewing how little will warrant a conviction. 



( 177 ) 



CHAPTEE III. 

ASSAULTS, ETC. 

Undeb this head we shall consider all the remaining 
offences against the person. 

COMMON ASSAULT. 

An assault is an attempt or offer to commit a forcible Assault. 
crime against the person of another ; for example, pre- 
senting a loaded gun at a person. It will be noticed 
that there need not be an actual touching of the per- 
son assaulted. But mere words neTer amount to an 
assault (t). 

The unlimited character of this crime makes it a Comprehen- 
conyenient means of punishing a variety of crimes sireness of the 
which do not at first sight seem to be assaults, at least 
not in the popular signification of the term ; for ex- 
ample, putting a child into a bag, hanging it on some 
palings, and there leaying it (m). 

A hattery is not necessarily a forcible striking with Battery. 
the hand or stick or the like, but includes eyery touch- 
ing or laying hold (howeyer trifling) of another person, 
or his clothes, in an angry, reyengeful, rude, insolent, 
or hostile manner ; for example, jostling another out 
of the way. Thus, if a man strikes at another with a 
cane or fist, or throws a bottle at him, if he miss, it is 
an assault ; if he hit, it is a hattery. 



(t) 1 Hawk. li. 62, s. 1. 

(m) E. v. March, 1 C. & K. 496. 



178 



ASSAULTS, ETC. 



Effect of 
consent. 



Assault the 
subject also of 
civil proceed- 
ings. 



As a rule, consent on the part of the complainant 
deprives the act of the character of an assault, unless, 
indeed, non-resistance has been brought about by- 
fraud. But the fact of consent will in general be 
immaterial when an actual battery or breach of the 
peace has been committed (x). 

A common assault is also the subject of a civil action 
for damages ; and the party injured may either prose- 
cute or bring his action first. The court will not, 
however, pass judgment during the pendency of a civil 
action for the same assault («/), the reason obviously 
being that otherwise the issue of the civil action might 
be prejudiced. 



Punishment, or 
compensation. 



A common assault, that is, a mere assault which may 
or may not have proceeded to a battery, is a misde- 
meanor, punishable by imprisonment not exceeding 
one year (z). But the justice of the case is often more 
adequately met by compensation to the person injured. 
Therefore, with the assent of the prosecution, if the 
circumstances appear to warrant that course, the court 
may allow the defendant to plead guilty, and inflict 
upon him a merely nominal fine, on the understanding 
that he shall make a compensation to the prose- 
cutor (a). 



Summary 
proceedings. 



Common assaults are usually disposed of by the 
magistrates assembled at petty sessions. The limit of 
punishment in ordinary cases of such summary con- 
viction is a fine of £5 or imprisonment not exceeding 
two months ; but in some more serious cases of assault 
upon females or boys whose age does not exceed four- 
teen years, the limits are £20 and six months (6). The 



(x) Broom, 917. 

(y) B. Y. Mahon, 4 A. & E. 575. 

(!> 24 & 25 Vict. c. 100, s. 47. 

(a) E, V. Roxburgh, 12 Cox, 8. 

(6) 24 & 25 Vict. c. 100, ss. 42, 43. 



ASSAULTS, ETC. • 179 

magistrates have not power to hear and determine any 
assault involying a question of title to lands, tene- 
ments, or hereditaments, or any interest therein or 
accruing therefrom, or as to any bankruptcy or insol- 
vency, or any execution under the process of any court 
of justice. And if the assault is accompanied by an 
attempt to commit a felony, or, in the opinion of the 
magistrates, is a fit subject for prosecution by indict- 
ment, they may abstain from any adjudication and 
leave the case to be prosecuted by indictment (c). 

As to the evidence on the part of the accused, it Defence, 
may be stated generally that the same facts which 
would reduce a hoinicide to misadventure are a good 
defence upon an indictment for a battery (d). Other 
defences are, that it was committed merely in self- 
defence, or in the proper administration of moderate 
correction, or in the execution of public justice, or in 
some lawful game. Inasmuch as it would not be right 
that the defendant should be punished twice for the 
same offence, it is a good defence that the matter has 
been disposed of by two justices : provided that if the 
defendant has been convicted he has paid the penalty 
and suffered the imprisonment awarded ; if dismissed, 
it does not matter whether it was on the ground of 
justification, the trifling character of the offence, or 
because it was not proved (e). 

So much for common assaults ; we have now to deal 
with those of an aggravated character. 

ACTUAL AND GRIEVOUS BODILY HABM. 

If the assault occasions actual hodily harm the Actual bodily 
punishment is penal servitude to the extent of five ''^'™' 
years (/) for the misdemeanor. Actual bodily harm 

(c) 24 & 25 Vict. c. 100, s. 46. 
Id) Arch. 695. 

(e) 24 & 25 Vict. c. 100, ss. 44, 45. 
(/) Ibid. s. 47. 

N 2 



180 ASSAULTS, ETC. 

would include any hurt or injury calculated to inter- 
fere with the health or comfort of the prosecutor ; it 
need not be an injury of a permanent character (g). 

Wounding and Unlawfully and maliciously wounding or inflicting 
ha TO°"^ ''"'^''y any grievous bodily harm upon any other person, with 
or without any weapon or instrument, is a misde- 
meanor, punishable by penal servitude to the extent of 
five years Qi). If any person (a) wound, (b) cause 
grievous bodily harm, (c) shoot at, or (d) attempt to 
shoot at any other, person, with intent to (a) maim, 
(b) disfigure, or (c) disable any person, or (d) to do 
some other grievous bodily harm to him, or (e) to resist 
or prevent the lawful apprehension of any one, he is 
guilty of a felony, punishable by .penal servitude to the 
extent of life (i). 

Wound. To constitute a wou'hding, the continuity of the skin 

must be broken. The nature of the instrument is im- 
material, whether it be a stab by a knife, a kick, or a 
gunshot wound, &c. iji). 

Maim. Ilo' maim is to injure any part of a man's body, 

which may render him less capable of fighting. The 
injury is termed mayhem. 



Disfigure, 
disable. 



The- term "disfigure" explains itself. To disable, 
refers to the causing of a permanent, and not merely a 
temporary disablement Q). 



The grievous bodily harm need not be either per- 
manent or dangerous, so long as it seriously interferes 
with health or comfort (m). 



(tj) Arch. 694. 

(h) 24 & 25 Vict. c. 100, s. 20. 

(i) Ibid. ». 18. 

(A) JR. ». Wood, 1 Mood. C. C. 278; R. v. Briggs, Ibid. 318. 

Q) M. V. Boyce, 1 Mood. C. C. 29. 

(m) V. R. T. Ashman, 1 F. & F. 88. 



ASSAULTS, ETC. 181 

The intent can of course only be proved by presump- The intent. 
tiye eyidence gathered from the facts of the case. The 
intent need not be to maim, &c., the particular person 
who is injured ; thus, if a person intending to inflict 
■grievous bodily harm on A., wounds B., he is guilty of 
wounding with intent, &c. (n). 

ASSAULT WITH INTENT TO COMMIT A FELONY. 

This crime is a misdemeanor, punishable with im- Assault with 
prisonment not exceeding two years. If the intent f^j™'""^^ 
cannot be proved, the defendant may be convicted of 
a common assault (o). 

ATTEMPT TO CHOKE, ETC., WITH INTENT, ETC. 

Whosoever attempts to choke, suffocate, or strangle any Attempt to 
other person, or by any means calculated to choke, &c., ^'^"^^^fgat &<, 
renders any other person insensible, unconscious, or 
incapable of resistance, with intent to enable himself or 
any other person to commit, or assist in committing, 
any indictable offence, is guilty of felony, and punish- 
able with penal servitude to the extent of life, with or 
without whipping in addition (js). 

With like intent, to apply, or administer, or cause to To drug, &o., 
be taken, or to attempt to administer, &c., or to attempt ^'"'i'^'™*' <=• 
to cause to be administered, &c., any chloroform, laud- 
anum, or other stupefying or overpowering drug, matter, 
or thing, is a felony, punishable in the same way, with 
the exception of the whipping (q). 

ADMINISTEBING POISON, ETC. 

To administer, &c., any poison, or other destructive Administering 
or noxious thing, so as thereby to endanger life or to P"'*""' "■ 



(n) R. V. Stopford, 11 Cox, 643. 

(o) 24 & 25 Vict. c. 100, s. 38. 

(p) 24 & 25 Vict. c. 100, s. 21 ; 26 & 27 Vict, c. 44. 

(q^ 24 & 25 Vict. c. 100, s. 22. 



182 



ASSAULTS, ETC. 



inflict grievous bodily harm, is a felony, punishable by 
penal servitude to the extent of ten years (r). If the 
administering, though it does not so endanger life or 
inflict harm, is with intent to injure, aggrieve, or 
annoy the person, the offence is a misdemeanor, 
punishable by penal servitude to the extent of five 
years (s). A person indicted for the first offence may 
be found guilty of the second (i). 



Injuring by 
explosive, 
corrosive, or 
other destruc- 
tive sub- 
stances. 



EXPLOSIVE OR COKEOSIVB SUBSTANCES. 

By explosion of gunpowder or other explosive sub- 
stance, to burn, maim, disfigure, disable, or do any 
grievous bodily harm to any person, is a felony, punish- 
able by penal servitude to the extent of life (u). The 
same punishment is awarded for causing any gun- 
powder, or other explosive substance, to explode, or 
sending or delivering to, or causing to be taken or re- 
ceived by, any person, any explosive or other dangerous 
or noxious thing, or putting or laying at any place, or 
throwing at or upon, or otherwise applying to any 
person any corrosive fluid or any destructive or ex- 
plosive substance, with intent to burn, maim, disfigure, 
or disable, or do any grievous bodily harm to any 
person, and this whether any bodily injury be effected 
or not (x). If the gunpowder or other explosive sub- 
stance is placed in, thrown in, into, upon, against, or 
near any building, ship, or vessel, with intent to do 
any bodily injury to any person, whether such purpose 
be effected or not, the offender is guilty of a felony, 
punishable by penal servitude to the extent of fourteen 
years (y). 



(r) 24 & 25 Vict. c. 100, s. 23. 

(s) Ibid. 5. 24. 

(0 Ibid. s. 25. 

(m) Ibid, s. 28. 

Ix) Ibid. s. 29. 

()/) Ibid. a. 30. 



ASSAULTS, ETC. 



ENDANGERING SAFETY OF RAILWAY PASSENGERS. 



183 



The following acts are felonious, punishable by penal Acts endanger- 
servitude to the extent of life :— >"?. '^^"^^ "^ 

railway 

To put or throw upon or across any railway any ^lon^s"^ ' 
wood, stone, or other thing ; (ii.) to take up, remove, 
or displace any rail, sleeper, or other thing belonging 
to a railway ; (iii.) to moTe or divert any points or other 
machinery belonging to any railway ; (iv.) to make, or 
shew, hide, or remove any signal or light upon or 
near to any railway; (v.) to do or cause any other 
thing to be done with intent to endanger the safety of 
passengers (a) ; or (vi.) to throw against or into any 
railway engine, carriage, or truck, any wood, stone, or 
other thing, with intent to injure or endanger the 
safety of any person in the train (a). 

It is a misdemeanor, punishable with imprisonment misdemeanor, 
not exceeding two years, by any unlawful act, or by 
any wilful omission or neglect, to endanger the safety 
of any person conveyed or being in or upon a railway, 
or to aid or assist therein (h). 

As to injuries from Furious Driving, v. p. 135. 



ASSAULTS, ETC., CONNECTED WITH WRECKS. 

To assault, and strike or wound any magistrate, Assaulting 
officer, or other person lawfully authorized in, or on i^"^ ^e"^^^^'^' 
account of his exercising his duty in the preservation wrecks. 
of any vessel in distress, or any wrecked vessel or 
goods, is a misdemeanor, punishable by penal servi- 
tude to the extent of seven years (e). 

To impede any person endeavouring to escape from impeding 

escape. 

(z) 24 & 25 Vict. u. 100, ». 32. 
(a) Ibid. s. 33. 
(6) Ibid, =. 34. 
(c) Ibid. s. 37. 



184 ASSAULTS, ETC. 

a wreck or vessel in distress, or endeavouring to save 
another, is a felony, punishable by penal servitude to 
the extent of life (d). 



Forcing 
seamen on 
shore. 



FOBOraa SEAMEN ON SHOBE. 

For a master or other person belonging to a British 
ship wrongfully to force on shore and leave behind, or 
otherwise wilfully and wrongfully to leave on shore or 
at sea, any seaman or apprentice, before the completion 
of the voyage for which he is engaged, or the return of 
the ship to the United Kingdom, is a misdemeanor (e). 
So also is it to discharge or leave behind any seaman 
behiiTcf ^'^'""^'' or apprentice in any place abroad, without obtaining 
the proper sanction specified in the Act (/). Each of 
these misdemeanors is punishable by fine and im- 
prisonment, or may be dealt with on summary convic- 
tion, and, in that case, is punishable by imprisonment 
not exceeding six months, or a penalty not exceeding 
£100 (g). 



Unlawfully 



Assaults on 
peace officers. 



ASSAULTS ON OEPICEKS. 

To assault, resist, or wilfully obstruct any peace 
officer in the due execution of his duty, or any person 
acting in aid of such officer, or to assault any person 
with intent to resist or prevent the lawful apprehension 
of oneself or of any other person for any offence, is a 
misdemeanor punishable by imprisonment not exceed- 
ing two years (h). 



ASSAULTS ON OTHERS IN THE EXECUTION OE THEIK DUTY. 

Assaults, &o., Clergymen. — By threats or force to obstruct or 
on clergymen, prevent a clergyman or other minister in or from exer- 



(d) 24 & 25 Vict. 0. 100, s. 17. 

(e) 17 & 18 Vict. c. 104. s. 206. 
(/) Ibid. s. 207. 

(y) Ibid. s. 518. 

(A) 24 & 25 Vict. c. 100, s. 38. 



For assaulting, &c., officers of the customs, y. p. 114. 



V. also 34 & 35 Vict. c. 112, b. 12. 



ASSAULTS, ETC. 185 

cising his functions, or (b) to strike, or offer violence 
to one so engaged, or (c) to arrest, even upon civil 
process, one so engaged, to the knowledge of the 
accused, going to or coming from such performance, 
is a misdemeanor, punishable by imprisonment not 
exceeding two years («). 

Gamekeeper, v. p. 141. 



ASSAULTS ON THOSE IN A DEFENCELESS POSITION. 

Apprentioes or Servants. — Whosoever, being legally Assaults on, 
liable either as master or mistress to provide for any i^gifct °f, 
apprentice or servant necessary food, clothing, or lodg- s^iTants."^^ ™ 
ing, wilfully and without lawful excuse refuses or 
neglects to do so, or (b) unlawfully and maliciously 
does or causes to be done any bodily harm, so that the 
life of the apprentice or servant is likely to be per- 
manently injured, is guilty of a misdemeanor, and is 
punishable by penal servitude to the extent of five 
years (k). 

Lunatics. — Abusing, ill-treating, or wilfully neglect- Neglecting or 
ing a patient in a private asylum, by any person em- j'^"^i°g 
ployed therein, or any single patient by anyone having 
charge of or attending upon such lunatic, is a mis- 
demeanor, or punishable on summary conviction by 
forfeiture not exceeding £20 (Z). So, also, is the strik- 
ing, wounding, ill-treating, or wilful neglect of any 
lunatic confined in a county or public asylum by any 
person employed therein (m). A similar provision is 
made with regard to persons confined in asylums for 
criminal lunatics (n). 



(0 24 & 25 Vict. li. 100, h. 36. 
(i) Ibid. s. 26. 
(0 16 & 17 Vict. u. 96, s. 9. 
(m) 16 & 17 Vict. c. 97, s. 12.3. 
(re) 23 & 24 Vict. c. 75, s. 13. 



186 



ASSAULTS, ETC. 



FALSE IMPKISONMENT. 



False imprison- False imprisonment is a misdemeanor at common 

™*'' ■ law, punishable by fine or imprisonment, or both. All 

that the prosecntor has to prove is. the imprisonment ; 

it is for the defendant to justify what he did (o). A 

count for a common assault is usually added. 

wiiat amounts Every confinement or restraint of the liberty of a 
to an im- persou is an imprisonment ; for example, by detaining a 
man in the streets. Though a party, on being shewn 
a magistrate's warrant, goes willingly at the desire of 
a constable, this is an imprisonment which the constable 
may be called upon to justify (p). 

We shall see under the title " Arrest " in what cases 
one person is justified in detaining another (q). 



(o) Arch. 728. 

Ip) Chirm r. Morris, 2 C. & P. 361. 

(g) As to Indecent Assault, v. p. 172 ; Assaults in Violation of Trade, 
V. p. 122 ; Spring Guns, &c., v, p. 142. 



( 187 ) 



PAET III. 

OFFENCES AGAINST INDIVIDUALS— THEIR 
PEOPBETT. 



OHAPTEE I. 

LAECENY. 

Labcent or. theft may be defined as " the wilfully wrong- Definition of 
fill taking possession of the goods of another with intent ^^'^<^^7- 
to deprive the owner of his j^roperty in them " (r). 

Larceny is either Simple or Compound. Compound, Larceny, 
or as it is termed " mixed " or " complicated " larceny, ^3^^^^^ 
differs from simple larceny merely in that the former is 
accompanied with circumstances of aggravation. We 
shall defer the consideration of these aggravated cases 
until the simple crime has been dealt with. 

The existing statute law on the subject of larceny 
and kindred offences is contained in one of the Criminal 
Consolidation Acts, 1861 (s). 



(r) Rose. 622; Fitz. St. 126. This definition, taken from Eosooe's 
Evidence in Criminal Cases, with a modification suggested by Sir James 
Stephen, may not at first sight appear to indicate all the elements of 
larceny. An ordinary definition is something of this sort : " A taking 
and carrying away of the personal goods of another of any value, against 
the will or without the consent of the owner, without any bonS, fide claim 
of right, with a felonious intent." — Arch. Quarter Sessions. But the defi- 
nition in the text, besides avoiding certain defects, contains all the essen- 
tials set out in the second definition. Thus " without any claim of right by 
the taker " is included in the part relating to the intent ; " against the will 
of the owner " in " wrongful " ; " carrying away " in " taking possession." 

(s) 24 & 25 Vict. 0. 96. In the present chapter the quotation merely 
of a section must be understood to refer to that act. 



188 



LARCENY. 



Possession. 



Property. 



Property 
which may be 
the subject of 
larceny. 



To understand the definition we have given, and to 
be prepared to distinguish the offences of larceny, em- 
bezzlement, and obtaining by false pretences, the line 
between which is very finely drawn, it will be necessary 
to inquire what is signified by " possession," what by 
" property." 

Possession extends not only to those things of which 
we have manual prehension, but those which are in our 
house, on our land, or in the possession of those under 
our control, as our servants, children, &c. (t). Property, 
in the sense of the definition, is " the right to the 
possession, coupled with an ability to exercise that 
right '' (m). 

To explain the nature of the crime it will be con- 
venient to consider separately the component parts of 
the definition under the following heads :-^ 

i. What kinds of property may be the subjects of 
larceny. 

ii. What constitutes a wilfully wrongful taking 
possession of another's goods. 

iii. What must be the intent. 

i. The subjects of larceny. 

Though it may be said that there is not any tenable 
ground for making some kinds of property incapable 
of being the subjects of larceny, for a long time there 
were many of such serious exceptions. Some still 
continue, while in other cases the stealing is dealt 
with in an exceptional way (x). The goods must, in 



(«) Eosc. 622; v. iJ. v. Seed, 23 L. J. (M.C.) 25. 

(u) Rose. 622. 

(a) " There can be no good reason why stealing a dog, worth perhaps 
many pounds, and regarded by his owner with strong personal regard, 
should be less criminal than stealing the dog's collar, worth perhaps half 
a crown, and regarded with no feeling whatever." — Fitz. St. 138. Yet 
we shall find that the treatment of the two cases is quite diffei-ent, and 
the punishment disproportionate. 



LARCENY. 189 

the absence of any express statutory enactment, be 
personal goods. This is the only kind of property 
which can be the subject of larceny at common law. 
As to other kinds : — 

(a.) The first and chief example of the common law First exclusion 
exclusion is — Things real, as lands and houses ; and ^' '"^^ ''^^ ' 
things attached or belonging to the realty, as trees, 
grass, the stones or lead of a house ; also title deeds and 
other writings relating to real estate, inasmuch as they 
savour of the realty, and pass like real property to the 
heir or devisee. If the rights of the owner of such 
property are violated, he must seek a remedy in a civil 
action of trespass. He cannot, as a rule (see exceptions 
below), appeal to the criminal law for the punishment 
of the offender. But if the things are severed from 
the land, &c., e.g., mown grass, and then feloniously 
taken away, these may be made the subjects of an in- 
dictment for larceny, inasmuch as by the severance they 
have become personal goods. However, to give them 
this quality an interval must • have elapsed between 
the severance and the removal, so that the acts be 
perfectly distinct. And in this interval the wrong- 
doer must have intended to have abandoned the wrongful 
possession begun at the time of the severance ; for ex- 
ample, it will not be larceny to sever and then conceal 
till one can conveniently return and carry away, how- 
ever long the interval may be, for the whole is 
regarded as one continuous act (y). 

The following are the statutory modifications of the 
rule excluding this class of property (z) : — 

a. Materials of buildings, fixtures, &c. —To steal or to Materials, 

fixtures, &c. 

(i/) R. V. TowrOey, L. K. 1 C. C. R. 315 ; 40 L. J. (M.C) 144. 

(z) "The law, as now regulated by 24 & 25 Vict. c. 96, excepts from 
the rule that real property cannot be the subject of larceny every sort of 
real property likely to be stolen, such as fixtures, trees, fences, vegetable 
productions, and minerals " — but still land itself continues to be incapable 
of being stolen, though for no valid reason — " suppose that a man unlaw- 
fully, and with intent to defraud, builds a wall in such a manner as to 



190 LARCENY. 

rip, cut, sever, or break, with intent to steal, any glass 
or wood work belonging to any building whatsoever ; 
or any lead, iron, copper, brass, or other metal j or any 
utensil or fixture respectively fixed in or to any build- 
ing whatsoever ; or anything made of metal or fixed in 
any land, being private property, or in any square or 
street, or in any place dedicated to the public use or 
ornament, or in any burial-ground, is punishable as 
simple larceny (a). 

Ore, coal. /3. Mines, &G. — To steal, or sever with intent to steal, 

the ore of any metal, or any manganese"^ black lead, &c., 
or any coal from any mine, bed, or vein, is a felony, 
punishable by imprisonment not exceeding-two years (6). 

The same consequences attend frauds of a similar 
nature by any one employed about the mine (c). 

Trees. ; 7. Trees. — To steal, or destroy, or damage with intent 

to steal, any tree, sapling, shrub, or underwood growing 
in a park, pleasure-ground, garden, orchard, or avenue, 
or in any ground adjoining or belonging to a dwelling- 
house, if the injury amounts to the value of £1 ; or, if 
growing elsewhere, to the value of £5, is a felony 
punishable as simple larceny (d). If the injury is to 
the value of Is., wherever the tree, &c., maybe growing, 
the case may be dealt with summarily, and punished 
for the first ofi'ence, by fine not exceeding £5 above the 
injury done ; for the second, imprisonment not exceed- 
ing twelve months ; on a third conviction, the offence 
is a felony, punishable as simple larceny (e). 

Plants, fruit, S. Plants, &c. — To steal, or destroy, or damage with 
*'°" intent to steal, any plant, root, fruit, or vegetable pro- 



inclose a strip of land to which he knows he has no right, "why should he 
not be indicted for stealing the land ?" — Fitz. St. 55, 132. 

(a) s. 31. 

(h) s. 38. 

(c) s. 39. 

(rf) s. 32. 

(e) s. 33. 



LABCENY. 191 

duction growing in any garden, orchard, hothouse, 
&c., is punishable on summary conyiction by punish- 
ment not exceeding six months, or fine hot exceed- 
ing £20. The second ofi'ence is punishable as simple 
larceny (/). 

e. Deeds, &c. — To steal, or for any fraudulent purpose Deeds, &c. 
to destroy, cancel, obliterate, or conceal any or part of 
any documents {g) of title to lands, is punishable by 
penal seryitude to the extent of five years Qi). 



(b.) A second 'exclusion by the common law is oichoses Second exdu- 

, sion — Cho: 
in action. 



in action (i.e., mere rights to demand, by action or other ^^™ ^'^"^^^ 



proceedings, property ; or evidence of such rights). 

But without delaying at the common law view of This exclusion 
the matter, it may be stated that the statutory excep- I^''"^''/*? 
tions to it include " every chose of action that has past. 
ever been known to be stolen, or which occurred to the 
mind of the draftsman as capable of being stolen " {i). 
Thus, to steal, or for any fraudulent purpose to 
destroy, cancel, or obliterate the whole or any part 
of any valuable security, other than a document of title 
to lands, is a felony, of the same nature and degree, 
and punishable in the same manner, as if the offender 
had stolen any chattel of like value with the sum re- 
presented by the security (h). The term "valuable 
security " is declared to include any order, exchequer, 
admittance, or other security whatsoever entitling or 
evidencing the title of any person or body corporate to 
any share or interest in any public stock or fund, 
whether of the United Kingdom, or of' Great Britain, 
or of Ireland, or of any foreign state, or in any fund of 



(/) s. 36. 

(3) As to Wills, T. p. 192. 

(A) s. 28. As to concealment of instruments of title, or falsification of 
pedigree by vendor or mortgagor, or his solicitor or agent, v. 22 & 23 
Vict. c. 35, s. 24. 

(i-) Fitz. St. 55. 

(*) s. 27. 



192 LAECBNY. 

any body corporate, company, or society, whether 
within the United Kingdom or in any foreign state or 
country, or to any deposit in any bank ; and also any 
debenture, deed, bond, bill, note, warrant, order, or 
other security whatsoever for money or for payment of 
money, whether of the United Kingdom, or of Great 
Britain, or of Ireland, or of any foreign state; and 
any document of title to (lands y. supra) goods (l). 
Of course under these terms will be included all ordi- 
nary cheques, promissory notes, money orders, &c. 

Notes, &c., Notwithstanding the comprehensiveness of this pro- - 

sometimes to yig^Qn j^ yf{i\ })q better in some cases to describe the 

be described as ' 

paper. property stolen as so much paper, &c. ; for example, if 

only half a note is stolen (m). 

It will be convenient to notice here the other excep- 
tional cases of stealing written instruments. 

Wills. Wills. — To steal, or for any fraudulent purpose 

destroy, cancel, obliterate, or conceal, either during 
the life or after the death of the testator, any will, 
codicil, or other testamentary instrument, whether of 
real or personal property, is a felony, punishable by 
penal servitude to the extent of life. The criminal^ 
proceeding does not affect the civil remedy; and no 
person is liable to be convicted if, before he is charged 
with the offence, he has first disclosed such act on oath 
in consequence of the compulsory process of a court of 
law or equity, or in compulsory examination or deposi- 
tion in bankruptcy or insolvency (n). 

Records. Becords. — To steal, or for any fraudulent purpose to 

remove, injure, obliterate, &c., records, or other docu- 
ments belonging or relating to a court of record or 



(0 s. 1. 

(m) S. T. Mead, 4 C. & V. 535. 

(n) s. 29. This provision as to non-liability refers also to the case of 
documents of title to lands, v. p. 191. 



LAEOENY. 193 

equity, or of a public office, is a felony punishable by 
penal servitude to the extent of five years (o). 

(c.) A third exclusion of the common law is of A third 
things which are not the subjects of 'property at all. exclusion. 

The chief example of this is in the case of certain *„ 
animals. But, in addition to these, in ^certain other 
things there is no property, as a corpse. So it was 
said of treasure trove, waifs, &c, {p). 

Ammals. — At common law there can be no larceny of Animals, when 
animals in which there is no property. Such are beasts faroeny^'^''''' "^ 
that are ferse naturse and unreclaimed, e.g., deer, hares, 
or conies in a forest, chase, or warren ; fish in an open 
river or pond; or wild fowls, rooks for instance, at 
their natural liberty; and this notwithstanding that 
the right to take the animals in the particular place is 
enjoyed exclusively by one or more persons. Thus it 
is not larceny to shoot and take a hare on B.'s land ; 
the offence will be one against the game laws. On the 
other hand, dead animals, whether to be used for food 
or not, may be the subjects of larceny. But here, with 
regard to shooting and taking by the same person, the 
rule noticed above as to a break in the proceedings by 
abandoning possession must be observed {q). 

Again, if the animals are evidently reclaimed, or are 
practically under the care and dominion of any person, 
and may serve for food, they may be the subjects of 
larceny. So, also, may be valuable domestic animals, as 
horses ; and all animals domitse natures which serve for 
food, as swine, poultry, and the like ; and the product 
of any of them, as eggs, milk, wool, &c. But other 
animals which do not serve for food are not the sub- 



Co) s. 30. 

Ip) But V. p. 68. 

Iq) V. p. 189. B. V. Townleij. 



194 



LABCENY. 



jects of larceny, e.g., dogs, bears, foxes, &c., though 
they may be recovered in a civil action. 

Such is the common lavr ; it has thus been modified 
by statute : — 

Deer. a. Deer. — To unlawfully and wilfully course, hiint, 

snare, or carry away, or till or wound, or attempt to 
kill or wound, any deer kept in an uninclosed part of 
a forest, chase, or purlieu is punishable, on summary 
conviction, by penalty not exceeding £50. The second 
offence is a felony, punishable by imprisonment not 
exceeding two years (r). If the deed is done in an 
inclosed place, the first or any offence is a felony, 
punishable by imprisonment not exceeding two years (s). 
To have in possession, without satisfactorily accounting 
for the same, any deer, or the head, skin, or other part 
thereof, or a snare or engine for taking deer {f), or 
(b) to set or use any such snare, or destroy any part of 
the fence of any land where any deer are kept (m), is 
punishable on summary conviction. 

Hares, &c. /8. Hares, &e. — To unlawfully and wilfully, between 

the expiration of the first hour after sunset and the 
beginning of the last hour before sunrise, take or kill 
any hare or rabbit in a warren or ground (whether in- 
closed or not) lawfully used for the breeding or keeping 
of hares or rabbits is a misdemeanor. To do the above 
at any other time, or at any time to set a snare, is 
punishable, on summary conviction, by a penalty not 
exceeding £5 {x). 

Fish. 7. Fish, &c. — To unlawfully and wilfully take or 

destroy any fish in any water adjoining or belonging 
to the dwelling-house of the owner of such water is a 



(f) s. 12. 

(s) s. 13. 
It) a. 14. 
(m) s. 15. 
Ix) s. 17. 



LABCBNY. 195 

misdemeanor ; in water not so situated, but which is 
private property, or in which there is any private right 
of fishery, is punishable, on summary conviction, by 
a penalty not exceeding £5 above the value of the 
fish (y). 

To steal any oysters or oyster brood, layer, or Oysters. 
fishery, being the property of any other person, and 
sufficiently marked out, or known as such, is a felony, 
punishable as in the case of simple larceny. To use 
any net, instrument, &c., for taking oysters, or to drag 
upon the ground of such fishery, is a misdemeanor, 
punishable by imprisonment not exceeding three 
months (z). 

5. Dogs. — Stealing a dog is punishable, on summary Bogs. 
conviction, by imprisonment not exceeding six months, 

or with a penalty not exceeding £20 above the value 
of the dog. A second ofi'ence is a misdemeanor, 
punishable by imprisonment not exceeding eighteen 
months (a). The same consequences, without the 
alternative of imprisonment for the first offence, attend 
the unlawfully having possession of a stolen dog or its 
skin, knowing it to have been stolen (h). To corruptly 
take money for aiding any person to recover a dog 
stolen, or in the possession of any person not the 
owner thereof, is a misdemeanor, punishable by impri- 
sonment not exceeding eighteen months (e). 

6. Horses, Cows, Sheep, &c. — One reason for in- Horses and 
creasing the severity of the punishment is the ease ''*"'*• 
with which the crime can be committed, so that the 
deterrent effect of the consequences may be propor- 
tioned to the inducements to commit it. On this 
account the punishment imposed by statute for steal- 



(</) s. 24. 

(«) s. 26 ; dee also 31 & 32 Vict. .;. 45, pt. 3, ss. 28, 42, 43, 51, 52, 55. 

(a) s. 18. 

(6) s, 19 ; see also s. 22. 

(o) s. 20. 

O 2 



196 



LARCENY. 



ing any of these animals exceeds that for simple 
larceny at common law. 

To steal a horse, mare, gelding, colt, filly ; bull, cow, 
ox, heifer, calf ; ram, ewe, sheep, or lamb, is a felony, 
punishable by penal servitude to the extent of fourteen 
years (d). 

Killing with To wilfully kill any animal, with intent to steal the 

intent to steal garcase, stin, or any part, is a felony, punishable as if 

the offender had been convicted of feloniously stealing 

the same, provided the offence of stealing the animal 

so killed would have been felony (e). 

Value of the Further with regard to the goods. — As a rule, the 
goods stolen, ^^j^g q£ ^]^g thing stolcn is no longer of any moment 
in larceny. Except, indeed, where some amount is 
specially mentioned in the statute as of the essence 
of the crime, for example, in the case of trees (/) ; or 
where the value of the thing determines whether the 
case may be dealt with in a summary way (g). And, 
of course, if it appears at" the trial that the theft was of 
considerable extent, this will be one element which 
will make the offence more serious, and will therefore 
influence the court in its judgment. But now in ordi- 
nary cases no statement of value or price is necessary 
■ in the indictment (h). Formerly it was otherwise. 
There was a division into grand and petty larceny : 
the former comprising cases of larceny of goods of the 
value of twelve pence and upwards; such offences 
being attended with more serious punishment than 
petty larcenies, which comprised cases of theft where 
the value did not reach that sum. But now the dis- 
tinction is abolished, and every simple larceny is of 



(d) s. 10. 

(e) a. 11. 

(/) ss. 32, 33 ; v. supra. 

Ig) V. 18 & 19 Vict. c. 126, s. 1. 

(/i) 14 & 15 Vict. .;. 100, s. 24. 



lABCENY. 197 

the same nature and subject to the same incidents as 
grand larceny was formerly (i). Though to make a 
thing the subject of an indictment for larceny, it must 
be of some value, and stated to be so in the indictment, 
yet it need not be of the value of some coin known to 
the law, that is to say, of a farthing at the least (k). 

As to the description of the ownership of the goods. Ownership of 
— The name of the owner must be given in the indict- "'^ ^oods. 
ment, unless it be one of those cases in which the 
statute expressly declares this unnecessary, e.g., of 
wills (Z). In other than these exceptional cases it 
must be proved that the goods stolen are the abso- 
lute or special property of the person named in the 
indictment (m). 

ii. The wilfully wrongful tahing possession. 

The object of inserting " wilfully " before the The wrongful 
"wrongful taking" is to distinguish the wrongful Jf^'.^s^™"^"' ^^ 
taking which constitutes larceny from the wrongful 
taking which merely affords ground for a civil action. 
Thus a person, imagining that he has the right, taking 
the goods of another under an illegal distress is liable 
to civil but not to criminal proceedings. In any case, 
if the taking is under colour of right, though the 
supposed right be without foundation, there is no 
larceny (n). 



The taking is either actual or constructive : — Actual, The taking, 

I actual or i 
' structive. 



when the thief directly takes the goods out of the ^"'"^^ °'' '^™- 



possession of the owner or his bailee, invito domino (o). 



(b) 7 & 8 Geo. 4, c. 29, s. 2, re-enacted by 24 & 25 Vict. c. 96, s. 2. 

Qt) a V. Morris, 9 C. & P. 349. 

(0 s. 29. 

(m) As to the person in whom the ownership must be laid, v. p. 323. 

In) T. p. 204. 

(o) A slight apparent exception to the rule that the taking must be 
invito domino, occurs in the case of the owner receiving intimation of the 
proposed theft and resolving to allow it to be carried out in order to 
convict the thief. S. v. Eggington, 2 Leach, 913. 



198 



LARCENY. 



Constructive 
taking. 



by force or by stealth, or the like : Constructive, when 
the owner delivers the goods, but either does not 
thereby divest himself of the legal possession, or the 
possession of the goods has been obtained from him by 
fraud and in pursuance of a previous intent to steal 
them (ji). 

The law on constructive tahing may be considered 
under the following heads : — 

(a.) Where, by the delivery, the owner of the goods 
passes not only the possession, but the right of pro- 
perty also. 

(b.) Where the possession has been obtained animo 
furandi. 

(c.) Where the possession was originally obtained 
bond fide, and without a felonious intent. 

(d.) Where the delivery does not alter the possession 
in law. 



Property as (a.) Where the right of property as well as the pos- 

weii as posses- gession is parted with hy the delivery, there can be no 

sion parted -^ nni i 

with. larceny, however fraudulent are the means by which 

the delivery of the goods is procured. Of course, the 
person who committed the fraud is open to a charge 
for another offence, namely, obtaining goods by false 
pretences. If the property has once passed, no sub- 
sequent act by the person in whom the right of pro- 
perty has vested can be construed into larceny, whatever 
the intent of that person may be. Thus A. buys a 
horse from B., mounts it, says he will return imme- 
diately and pay. B. says, "Very well." A. rides away 
and never returns. There is no larceny, because the 
property as well as the possession is parted with {q). 



(p) Arch. 353. From this work is also taken the immediately following 
classification of cases. 

((/) E. V. Harvey, 1 Leach, 467. 



LARCENY. 199 

So in all cases of selling on credit; intrusting with 
money to get change, &c. 

It is the same if the property is passed by the servant Authority of 
of the owner, provided that the servant has authority parrwith 
to part with the property ; but not if he has authority property and 
to part merely with the possession. Thus, if the ser- P"^^**"""- 
vant of B. is authorized only to let out horses on hire, 
and he, in the case given above, parts with the property 
in the animal to A., it is larceny in A. (r). 

(b.) Where the possession of goods is obtained animo Possession 
fv/randi (s), by the offender employing some device ; ^'''*!°?'^ ''"™'' 
the owner not intending to part with the property in 
the goods, though he does with the temporary posses- 
sion. This is larceny, though there be a delivery in 
fact. Thus A. goes to B.'s shop, and says that C. wants 
some shawls to look at. B. gives A. some shawls for C. 
to select from. A. converts them to her own use. This 
is larceny in A., because, until the selection is made, 
only the possession and not the property is parted 
with. It is larceny, if the design of so converting to 
the accused's own use is present when possession is 
obtained ; but it is not larceny if such design is con- 
ceived only subsequently to the rightfully obtaining 
possession (t). 

An example of larceny of this class is the practice Ring-dropping. 
of ring-dropping. The prisoner pretends to find a ring 
wrapped in paper appearing to be a jeweller's receipt 
for a "rich brilliant diamond ring." He, with his 
accomplices, offers to leave the ring with the victim if 
the latter will deposit his watch or some money as 
security for the return of the ring. The watch or 
money is taken away by the prisoner's party, and the 
victim finds that the value of the ring is much below 



(r) V. R. w. Middleton, L. E. 2 C. C. R. 38; 42 L. J. (M.C.) 73. 

(s) As to what constitutes animus furandi, or felonious intent, v. p. 204. 

(0 iJ. T. Saioge, 5 C. & P. 143. 



200 



LARCENY. 



Larceny some- 
times 

approaches 
obtaining by 
false pretences. 



Possession at 
first obtained 
bond jide and 
lawfully. 



that of the goods lie has parted with (m). The fact 
that there is an actual delivery of goods does not divest 
the deed of the character of larceny, if the defendant 
having the animus furandi obtains them by frightening 
or threatening the owner, as, for example, in mocli 
auctions (a;). 

Some of the cases under this head which have been 
decided to be larceny shew how very narrow the line is 
between larceny and non-larceny or false pretences. 
Thus, when A. obtained from B. a sum of money under 
the false colour of winning a bet, it was held to be 
larceny, because at the time the defendant obtained the 
money from the prosecutor he parted with the possession 
only, and the property was to pass eventually only if 
the other party really won the wager {y). 

(c.) Where the possession of the goods is obtained law- 
fully and' bond fide, without any fraudulent intention in 
the first instance. — Though the person thus obtaining 
possession afterwards fraudulently appropriated .the 
goods to his own use, he would not be guilty of larceny 
at common law. However, it would be otherwise if the 
possession was obtained by trespass, and then there 
was a subsequent fraudulent appropriation, though 
there were no fraudulent intention at first (2). 



Bailment. In accordance with the above rule, in no case of bail- 

ment where the possession was at first obtained inno- 
cently, could the bailee be found guilty of larceny. But 
the legislature has interfered, and enacted that the 
fraudulent taking or converting any chattel, money, or 
valuable security by the bailee of such property to his 
own use, or to the use of some other person than the 
owner, although he do not break bulk or otherwise 



(m) S. y. Patch, 1 Leach, 238. 

(a;) R. V. M'Grath, L. R. 1 C. C. E. 205 1 39 L. J. (M.C.) 7. 
ly) R. v. Rohson, R. & R. 413; v. R. t. Wil/tins, 1 Leach, 520. 
(«) R. V. Riley, 22 L. J. (M.C.) 48. 



LABCENY. 201 

determine the bailment, is larceny (a). But a person 
cannot be convicted of larceny as a bailee unless the 
bailment be to re-deliver the very same chattel or 
money (b). 

As we shall see, the Larceny Act deals specifically 
with the cases of certain persons who are intrusted 
with money or goods, e.ff., banker, broker, &c. The 
crime of embezzlement is also concerned with appro- 
priations by those to whom property has been delivered, 
though not by the person who is wrongfully de- 
prived (c). 

(d.) Where the delivery does not alter the possession in Possession not 
law : in other words, where, although there is a delivery f^-^^^^y^ 
of the goods by the owner, yet the possession in law 
remains in him, the goods may be stolen by the person 
to whom they are thus delivered. Thus it is larceny 
at common law for a servant who has merely the care 
and oversight of the goods of his master, as the butler 
of the plate, to appropriate those goods. And here 
the felonious intention need not exist at the time of 
the delivery, inasmuch as the delivery is merely for 
custody, the possession legally remaining in the master. 
The master must have been in possession; for if the 
goods are delivered to the servant for the master's use, 
and the servant does not deliver, but converts them to 
his own use, this is not larceny, but embezzlement ; as 
if a shopman receives money from one of his master's 
customers, and, instead of putting it into the till, secretes 
it (d). 

There are other cases in which the possession, though 
physically parted with, still remains unmoved in the 
eye of the law. For example, when the owner is 



(o) s. 3. 

(6) B. V. ffassell, 30 L. J. (M.C.) 175. 

(c) As to larceny by tenants or lodgers, v. p. 207. 

(d) S. V. Bull, 2 Leach, 841. 



202 



LAKOENY. 



present all the time the goods are in the physical pos- 
session of the accused, and has no intention of relin- 
quishing his dominion, as when a lady handed a sove- 
reign to the prisoner, asking him to procure her a 
ticket, and he ran off with it: he was convicted of 
larceny (e). 

So a hare use of the goods of another does not divest 
the owner of his possession in law. Thus it is larceny 
for a person to fraudulently convert to his own use the 
plate which he is using at an inn (/). 



Taking one's 
own goods, 



The taking must be of another's goods. Therefore 
a person cannot steal his own goods, if they are in his 
own possession, though he defraud his creditors by the 
removal ; but otherwise, if they are in the hands of a 
bailee, and the taking of them has the effect of charging 
the bailee {g). 



So, also, if one of several joint tenants or tenants in 
common of personal goods disposed of them, it was not 
larceny at common law, for the disposer was already 
in possession (Ji). But it has been enacted that if any 
member of a co-partnership, or one of two or more 
beneficial owners of property, steals any such property, 
he is liable to be dealt with as if he had not been in 
such position (t). 



or those of 
one's consort. 



Husband and wife being one in law, they cannot steal 
each other's goods. And if the goods of the husband 
are taken with the consent or privity of the wife, it is 



(e) S. v. T/tompson, 32 L. J. (M.C.) 53. 

(/) A reference to the explanation of the term " possession " (p. 188) 
will shew that in the above cases the owner in strictness has not parted 
with the possession. 

(g) V. JR. T. Wilkinson, R. & E. 470. 

(A) This does not apply to corporations, because there individual members 
have not the right of possession or property. 

(i) 31 &32 Vict. c. 116, s. 1. 



LABOENY. 203 

not larceny, unless the taker be the avowterer of the 
woman (k). 

When does the appropriation of things found amount Appropriation 
to an unlawful and felonious taking ? The true rule found^when 
was laid down in R. v. Thurhorn (I). " If a man find larceny, 
goods that have been actually lost, and appropriate 
them, with intent to take the entire dominion over 
them, really believing when he takes them that the 
owner cannot be found, it is not larceny. But if he 
takes them with the like intent, though lost, or reason- 
ably supposed to be lost, but reasonably believing that 
the owner can be found, it is larceny." Thus to make 
finding larceny, there must be on the part of the finder 
both this belief and this intention at the time of the 
finding. 

As to the taking physically regarded. — In the Asportation. 
" taking " we have included what is frequently con- 
sidered as a separate ingredient of larceny — carrying 
away or asportation. This asportation must be proved, 
as well as a bare taking. Thus, to handle a bale of 
goods is not larceny; but the slightest removal will 
suffice; it is not necessary that the prisoner should 
succeed in carrying the goods away. Thus, removing 
the gooAa from the head to the tail of a waggon, with 
intent to steal ; or, with like intent, drawing a book 
from a coat an inch above the pocket, though it fall 
back again, is enough to constitute an asportation (m). 
But there must be some severance ; and, therefore, where 
the goods could not be carried off because of a string 
attaching them to the counter, the prisoner was ac- 
quitted (w). 

Not that in such cases the offender will be altogether 



(^k) B. V. Tolfree, 1 Mood. C. C. 243. 
(0 18 L. J. (M.C.) 140; 2 C. & K. 831. 
(m) H. V. Thompson, 1 Mood. C. C. 78. 
(re) 2 East, P. C. 556. 



204 



LAKCENY. 



Attempt to 
steal. 



out of the reach of the criminal law : he may be in- 
dicted for an attempt to steal ; or upon the indictment 
for larceny he may be found guilty of, and punished 
for, an attempt (o). But he can be convicted of an 
attempt only where, if no interruption had taken 
place, the design would have been carried out success- 
fully; therefore, putting one's hand into an empty 
pocket with intent to steal, will not constitute an 
attempt (p). Here again, however, though the prisoner 
cannot be convicted of the attempt, he is guilty of 
a common law misdemeanor. 



iii. The intent permanently to deprive the owner of his 
property — the animus furandi — the felonious intent. 



The felonious 
intent. 



This is an essential constituent of larceny, and there- 
fore are excepted from criminal liability those who 
are merely trespassers. Thus, if I take my neighbour's 
horse out of his stables, and ride it in open day for a 
few miles, where I am well known, there would be a 
mere trespass, and no ground for a charge of larceny, 
however much I may be at enmity with my neighbour. 
So, also, are exempted those who take goods under a 
hand fide claim of right, however unfounded that 
claim may be ; as if, under colour of arrears of rent, 
although none is actually due, I distrain or seize 
my tenant's cattle ; this may be a trespass, but is no 
felony. 



As we have already noticed {q), the felonious intent 
must exist at the time of taking. The intent must, of 
course, be inferred from the circumstances of the case : 
among the more common indicia of this felonious 
intent being the doing the act clandestinely, the deny- 
ing it when charged, &c. It will be for the jury to 



(o) f. p. 17 ; 14 & 15 Vict, c- 100, s. 9. 
(p) S. V. Collins, 33 L. J. (M.C.) 177. 
(?) V. p. 199. 



LARCENY. 205 

decide whether the felonious intent has been proved ; 
or, rather, whether the prisoner has established the 
absence of such intent ; for it is a general presumption 
of the law that when a party takes wrongful possession 
of goods belonging to another, his intent is to deprive 
the owner of them, that is, to steal them. Eeturning 
the goods is strong evidence that the intent was not 
felonious, though it is not conclusive evidence, inas- 
much as the prisoner would be convicted if from other 
circumstances it is proved that the felonious intent was 
present at the time of taking, though it was afterwards 
abandoned. 

It is not necessary that the talking should be liiori Taking lucH 
causa, or with the object of gain of a pecuniary cha- """*"■ 
racter. For example, it was held to be larceny for a man 
to take another's horse, back it into a pit, and thereby 
kill it, the object here being to screen an accomplice (r). 
And so a person was convicted of larceny who de- 
stroyed a letter in order to suppress inquiries as to 
behaviour supposed to be contained therein (s). But in 
such cases as these it is perhaps possible to extend 
the meaning of Ivori causa to any advantage to be 
obtained by the prisoner on the commission of the 
crime; and then this term could be applied to any 
case of larceny. An extreme example of this kind of 
advantage derived from the wrongful dealing with the 
goods of another is one which was formerly suf&cient 
to constitute larceny, but which now is specially pro- 
vided for by statute, namely, the case of servants 
supplying their master's horses, &c., with food addi- 
tional to the quantity usually allowed. The later 
cases on the subject went so far as to establish that it 
was larceny, even if the intent of obtaining a private 
benefit (e.gr., ease in looking after the horses) was nega- 



(>■) S. V. CatAage, E. & R. 292. 
(s) E. y. Jones, 2 C. & K. 236. 



206 



LARCENY. 



tived (t). The statute (u) enacts that such conduct shall 
be punished, on summary couYiction, by imprisonment 
not exceeding three months, or fine not exceeding £5 ; 
and that the magistrate may dismiss the case if he 
think it too trifling. 

More than one In the Same indictment against the same person 
i'ndiotment^ there may be inserted several counts for any number of 
when allowed, distinct acts of stealing, not exceeding three, which 
may have been committed by him against the same 
person within the space of six months from the first to 
the last of such acts; and it is lawful to proceed 
thereon for all or any of them {v). If, at a trial for 
larceny, it appears that the property alleged to have 
been stolen at one time was taken at different times, 
the prosecution is not required to elect upon which 
taking he will proceed, unless it appears that there 
were more than three takings, or that more than the 
space of six months elapsed between the first and last 
of such takings. In either of such last-mentioned 
cases the prosecution is required to elect to proceed 
for such number of takings, not exceeding three, as 
appear to liaye taken place within the period of six 
months from the first to the last of such takings (a;). 

Conviction for A person indicted for larceny is not to be acquitted 

raStment bccause it is proTcd that he is guilty of embezzlement, 

for larceny, ^ and vice versd ; so that the prisoner will be punished 

BMK versa. £^^ -vvhichcTer of these crimes he is found guilty of by 

the jury, although he may have been indicted for the 

other (y). 

Place of trial. As to the p^ci-cs of trial. — The thief may be tried in 
any county of the United Kingdom in which he has 



(0 S. V. Privett, 2 C. & K. 114. 
(m) 26 & 27 Vict. u. 103, s. 1. 
(k) s. 5. 
(x) ». 6. 
(3/) s. 72. 



LAKCENY. 



207 



any of the stolen or feloniously taken property, and 
this irrespective 'of the length of time since the commis- 
sion of the larceny (z), for in the eyes of the law he is 
guilty of a taking in every county through or in which 
the goods have heen taken hy him (a). 

The punishment for simple larceny, or for any felony Punishment. 
made punishable as simple larceny, is — except in cases 
specially provided for in the Act, or provided for there- 
after — penal servitude to the extent of five years (h). 
Additional punishment is awarded in most instances 
where the offender has been previously convicted, 
according to rules to be subsequently mentioned (c). 

The punishment for stealing by any tenant or lodger 
any chattel or fixture let to be used in or with the 
house or lodging, is imprisonment not exceeding two 
years. If the value of the property exceeds £5, 
penal servitude to the extent of seven years may be 
awarded {d). 

Larceny by clerks or servants of goods belonging to, 
or in the possession or power of, their master or em- 
ployer, is punishable by penal servitude to the extent 
of fourteen years (e). 

COMPOUND OK AGGBAVATED LAECBNY. 

Larceny attended by circumstances of aggravation Larceny, 
is punished more severely than simple larceny. This ™"^a™°ed" 
increased severity is the test to indicate what the 
law regards as aggravations. In compound larceny 
all the elements of simple larceny are present ; and, in 



(z) s. 114. 

(a) See further as to place of trial, p. 337 ; restitution of property, 
p. 433 ; apprehension of offenders, p. 309 ; costs, p. 446 ; summary jurisdic- 
tion in certain larcenies, p. 461. 

(6) s. 4. 

(c) T. p. 436. 

(d) s. 74. 

(e) s. 67. 



208 LARCENY. 

addition to these, the special features which constitute 
the aggravation. If the prosecution fail to prove such 
additional circumstances, the prisoner may be found 
guilty of simple larceny. 

Aggravations " The principal aggravations now in force are either 
enumerated. ^^ respect of the nature of the thing stolen, as in the case 
of cattle (/), goods in the process of manufacture [g), 
and wills Qi) ; or in respect of the manner in which 
they are stolen, as with or without arms and violence (i) ; 
or in respect of the place from which they are stolen, as 
from the person (k), in a dwelling house to the value of 
£5 (Z), in a church or chapel {m), from a ship in har- 
bour (w), and from a ship in distress (o) ; or in respect 
of the person by whom they are stolen, as in the case of 
agents (p), bankers {q), and fraudulent trustees (r), 
servants (s), public officers {t), and persons previously 
convicted (m)." 

Some of these have already been noticed ; the others 
now demand our consideration. 

(a.) Goods in process of manufactwe. 

Larceny of The goods which are under the protection of the 

rfmaiu?"'''' severer penalties are the following :— Woollen, linen, 
facture. hempen or cotton yarn, or any goods or articles of silk. 



(/) ^- V- 195. 

{g) V. p. 208. 
(A) V. p. 192. 
(0 V. p. 210. 
(A) V. p. 213. 
(0 T. p. 245. 
(m) V. p. 244. 
(«) V. p. 209. 
(o) Ibid. 
(j)) T. p. 225. 
(?) Ibid, 
(r) Ibid, 
(s) V. p. 207 



(0 T. p. 209. 

(«) V. p. 436 ; Fitz. St. 138, 



LARCENY. 209 

woollen, linen, cotton, alpaca, or mohair, or of any of 
these materials mixed with each other or with some 
other material. The stealing of any of these whilst 
laid, placed, or exposed during any stage, process, or 
progress of manufacture, in any building, field or other 
place, is punishable by penal servitude to the extent of 
fourteen years (x). 

(Jo.) From Vessels, Docks, &o. 

Stealing from vessels, barges, or boats of any descrip- Larceny from 
tion, in a haven, port of entry or discharge, or upon a ^^^^^^'^' ^'"'^^' 
navigable river or canal, or in a creek or basin com- 
municating with any of the foregoing, is punishable by 
penal servitude to the extent of fourteen years. The 
same punishment attends stealing from a dock, wharf, 
or quay adjacent to any such haven, port, river, canal, 
creek or basin (y). 

(c.) From Vessels in Distress, or Wrecked. 

It is said that at common law there could be no Larceny from 
larceny of wrecks, inasmuch as in such a person could ^'^^ ^' 
not have determinate property. The state of affairs is 
now completely altered. The law, taking into con- 
sideration the gravity of the offence of stealing from 
those in a defenceless and distressed state, visits such 
conduct with more severe punishment. To plunder or 
steal any part of a ship or vessel in distress, or wrecked, 
stranded, or cast on shore, or any goods, merchandise, 
or articles of any kind belonging to such ship or vessel, 
is punishable by penal servitude to the extent of four- 
teen years (z). 

(d.) By those in the Public Service, or Police Constables. 
The nature of their position considerably aggravates 



(x) s. 62. 
(y) s. 63. 
(z) s. 64. 



210 LARCENY. 

Larceny by the offence of persons who are expected to take the 
pu 10 cers. j^^^ ^^ ^-^^ prevention of crime. For any one employed 
in the public service of Her Majesty, or in the police, 
to steal any chattels, money, or valuable security, 
belonging to, or in possession or power of Her Majesty, 
or intrusted to, or received or taken' into possession by 
him by virtue of his employment, is punishable by 
penal servitude to the extent of fourteen years (a). 

(e.) Robbery (b). 

Larceny from the person is either by privately steal- 
ing, or by open and violent assault. The latter, usually 
termed " Eobbery," will be treated of first, the former 
comprising all other cases of stealing from the person. 

Definition of Eobbcry is the felonious and forcible taking from 
robbery. ^j^^ person of another, or in his presence, against his 

will, of any money or goods to any value, by violence, 
or putting him to fear. The rules of larceny in general 
apply, and therefore the prosecution must prove the 
same points as in larceny, and certain others in addi- 
tion. 

The force or The gist of this Crime is the force or bodily fear. It 
bodily fear. j^ ^^^^ neccssary to shew that both were present. 
Though no violence was used, it will suffice if it can 
be proved that the goods were delivered to the prisoner 
by the party robbed under the impression of a certain 
The fear. degree of /ear and apprehension. What is that degree 

of fear ? On the one hand, the fear is not confined to 
an apprehension of bodily injury, and, on the other 
hand, it must be of such a nature as in reason and 
common experience is likely to induce a person to part 
with his property against his will, and to put him, as it 
were, under a temporary suspension of the power of 

(a) s. 69. As to the venue, t. s. 70. Larceny by agents, banlters, 
trustees, &c., will be noticed under the' title " Embezzlement." 
(6) As to piracy or robbery on the high seas, v. p. 41. 



LAEOENY. 211 

exercising it througli the influence of the terror im- 
pressed (e). It is not necessary that the danger should 
be impending on the person of the party robbed; it 
may be on those dear to him, as his children, or on his 
house (d). There is no reason why the personal cha- 
racter of the person robbed should lighten the offence 
of the robber ; therefore it is not necessary to prove 
that the fear actually existed, if it be shewn that the 
circumstances are such as are calculated to create a fear 
of the nature indicated. And if this be shewn, the 
resort to some pretence by the offender will not divest 
the act of the character of robbery ; as if a person with 
a sword begs alms ; by the same means compels some 
one to swear that he will return with money, the fear 
of the menaces still continuing to operate when the 
money is delivered. 

Though there be no fear, yet if there is actual force The force or 
or violence, it is a robbery ; as where the prisoner knocks ^'^ ^°'^^' 
down the proseciitor from behind, and steals from him 
his property while he is insensible on the ground. But 
the rule appears to be well established that no sudden 
taking or snatching of property unawares from a person 
is sufficient to constitute robbery unless some injury be 
done to the person, or there be a previous struggle for 
the possession of the property, or some force used to 
obtain it (e). 

The force or fear must precede or accompany the The force, &c., 
takine:, so that a subsequent scuffle or puttina; to fear ""V*' °°'^ ^^, 

o' n r o _ subsequent to 

in order to keep the property will not constitute a the taking. 
robbery. 

To constitute a taking, the robber must actually Possession ot 
obtain possession of the goods ; so that it would not be must be'takeu 



(c) S. V. Donnally, 2 East, P. C. 713. 

(d) B. T. Astley, 2 East, P. C. 729. 

(e) Arch. 438 ; B. v. Steward, 2 East, P. C. 702. 



212 LARCENY. 

robbery to cut a man's girdle in order to get his purse, 
the purse thereby falling to the ground, if the robber 
was compelled to run off before he could take it up. 

The taking The taking must be from the person, or in the -pre- 

re'perso?" ^ewce of the party robbed. Thus it is robbery to put a 
in the presence, man in fear, and then in his presence to drive away hia 
"■ cattle. So also by threats to compel him to deliver up 

his property, though the robber never touch his person. 
In the case of simple larceny, there must be some seve- 
rance of the property. In robbery there must be some- 
thing more, namely, a complete removal from the person 
of the party robbed. Eemoval from the place where it 
is, if it remains throughout with the person, is not suf- 
ficient (/). 

Against the The taking must be against the will of the person 

^' ■ robbed. Therefore when he, through a third party, 

procured others to commit the robbery in order that he 

might get the reward upon the conviction, it was held 

not to be robbery {g). 

Punishment. Eobbery may be punished by penal servitude to the 
extent of fourteen years Qi). If the robbery is accom- 
panied by violence, either at the time of, or immediately 
before, or immediately after such robbery; or if the 
robbery, or assault with intent to rob, is by a person 
armed with any offensive weapon or instrument ; or if 
the robbery or assault with intent to rob is by two or 
more persons, penal servitude to the extent of life may 
be awarded (*'). By a later statute, in the case of a male, 
sentence of private whipping once, twice, or thrice, may 
be added {j). 



(/) R. V. Thompson, 1 Mood. C. C. 78 ; but see E. t. Lapier, 1 Leach, 
320. 

(S) E. V. Macdaniel, Fost. 121, 128. Cf. E. t. Eqqinqton, p. 197- E 
V. WillJams, 1 C. & K. 195. 

(A) s. 40. 

(0 s. 43. 

0') 26 & 27 Vict. c. 44. 



LARCENY. 213 

(f.) Stealing from the Person. 

Under this head fall all other cases of stealing from stealing from 
the person, not attended by violence or putting to "^® P«ison- 
bodily fear. Of this nature is pocket-picking when the 
offence is committed privily. An actual taking must 
be proved, inasmuch as the nature of the case precludes 
there being anything like a constructive taking, such 
as the delivery, &c., in robbery. 

The principles of robbery as to the severance, taking, 
intent, &c., generally apply. The punishment is the 
same as for simple robbery, namely, penal servitude to 
the extent of fourteen years (A;). 

Assault with intent to rob. 

It seems convenient to notice this offence here, seeing Assault witii 
that the evidence upon an indictment for such assault '°'^''' '° '■"''• 
usually proves a robbery with the exception of a taking 
and carrying away, which for some reason are not 
effected. No actual violence need be done, but anything 
done in the presence of the party intended to be robbed, 
with reference to him, in furtherance of the intent to 
rob him, will constitute the assault {l). Nor need there 
be any demand of money. 

The punishment for this felony (save and except 
where a greater punishment is provided by the Act (m) ) 
is penal servitude to the extent of five years («). 

If on an indictment for robbery the jury are of Verdict of 
opinion that the prisoner did not commit robbery, but diotmen°°for' 
did commit an assault with intent to rob, they may find robbery. 
him guilty of the latter offence, and he will be punished 



(k) s. 40. 

(0 Arcli. 445. 

(m) Tliese cases are noticed above. 

(n) =. 42. 



214 



LAKOENY. 



accordingly (o). But on an indictment for assault with 
intent to rob, the defendant cannot be convicted of a 
common assault (p). 



Post Office 
offences. 



Offences by 
Post Office 
employes. 



Offences by 
any person. 



LAEOBNY, ETC., IN RELATION TO THE POST OPriOB. 

The law on this subject is contained chiefly in the 
Post Office Act (q). Two classes of offences may be 
distinguished, according as the offenders are (a) Post 
Office employes; (b) Persons generally, whether so 
employed or not. 

(a.) For a person employed under the Post Office 

To steal, or for any purpose whatever embezzle, 
secrete, or destroy a post-letter, is a felony, punishable 
by penal servitude not exceeding seven years, or im- 
prisonment not exceeding three years. If the letter 
contains any chattel, money, or valuable security, the 
punishment is penal servitude to the extent of life, or 
imprisonment not exceeding four years (r). If the 
thing stolen, embezzled, &c., is any printed matter ; or 
if such printed matter is wilfully detained or delayed, 
the offence is a misdemeanor, punishable by fine or 
imprisonment, or both (s). 

Contrary to his duty, to open or procure or suffer to 
be opened a post-letter, or to detain, delay, or procure 
to be detained, &c., a post-letter, is a misdemeanor, 
punishable by fine or imprisonment, or both (t). 

(b.) For any person 

To steal from a post-letter any chattel, money, or 
valuable security; or to steal a post letter-bag, or a 



(o) s. 41. 

(p) R. V. Woodhall, 12 Cox, 240. 

(?) 7 Wm. 4 and 1 Vict. c. 36. 

(r) Ibid. s. 26. 

(s) Ibiil. s. 32. 

(0 Ibid. s. 25. 



LABOENY. 215 

post-letter from a post letter-bag, or from a post office, 
or from any officer of the post office, or from a mail ; or 
to stop a mail with intent to rob or search the same, 
is a felony, punishable with penal servitude to the 
extent of life, or imprisonment not exceeding four 
years (u). 

To steal or unlawfully take away a post letter-bag 
sent by a post office packet ; or to steal or unlawfully 
take a letter out of any such bag ; or to unlawfully 
open any such bag, is a felony, punishable with penal 
servitude to the extent of fourteen years, or imprison- 
ment not exceeding two years (a;). 

To fraudulently retain, or wilfully secrete, keep, or 
detain, or neglect or refuse to deliver up when required 
by an officer of the post office, a letter after it has been 
delivered by mistake or found, is a misdemeanor, pun- 
ishable by fine and imprisonment (y). 

To solicit or endeavour to procure any other person 
to commit a felony or misdemeanor punishable by the 
Post Office Acts is guilty of a misdemeanor, and is 
liable to imprisonment not exceeding two years (z). 

The property in the article stolen, whether it be Property laid 
bag, letter, or money, or other goods contained therein, '"„ "jf*™^^*^"^' 
is to be laid in the postmaster-general (a). 

In connection with this subject, it should be noticed Telegrams, 
that written or printed messages delivered at a post 
office for the purpose of being transmitted by a postal 
telegraph, and every transcript thereof officially made, 
are deemed post-letters within the above Act (b). For 



(m) ss. 27, 28, 41. 

(a) ss. 29, 41. 

(2/) s. 31. 

(2) s. 36. 

(a) s. 40. As to venue, see s. 37. 

(6) 32 & 33 Vict. c. 73, s. 23. 



216 LABOBNY. 

officials of the post office to disclose or intercept tele- 
graphic messages is a misdemeanor, punishable by im- 
prisonment not exceeding twelve months (e). 

BEOEIVING STOLEN GOODS. 

Receiving The offence of receiying stolen property, knowing it 

stoiett goods, |.Q jjg^^g \^QQjx stolen, was at common law a misdemeanor 

WI16I1 £1 Tslonv 

whenamisde- Only. By the Larceny Act, 1861, it is made a felony 
meanor. •£ ^j^^^ principal Crime (stealing, &c.) amounts to a 

felony at common law or by that Act. So that the 
only case in which receiving still continues a misde- 
meanor is where the principal crime is not a felony 
either at common law or by that Act ; for example, re- 
ceiving goods obtained by false pretences, or obtained 
by means of the felony established by 31 & 32 Vict, 
c. 116, s. 1 (d). 

How a receiver Eeceivers, where the principal crime amounts to a 
may be tried felonv at commou law or by the Larceny Act, may be 

for the felony, . J. f j. -j.- J ' J 

&o. tried m either one ot two capacities : — 

(i.) As accessories after the fact (i.e., of larceny, &c.). 

(ii.) As committers of a distinct or substantive 
felony — and in this case, whether the principal has or 
has not been previously convicted, or even if he is not 
amenable to the criminal law. 

The statute (e) establishing this optional mode of 
proceeding, enumerates the offenders subject thereto as 
— those who receive any chattel, money, valuable secu- 
rity, or other property whatsoever, the stealing, taking, 
extorting, obtaining, embezzling, or otherwise dis- 
posing whereof amounts to a felony either at common 
law or by virtue of that Act, knowing the same to 
have been feloniously stolen, taken, &c. 



(c) 31 & 32 Vict. c. 110, s. 20. 

(d) R. V. Smith, L. E. 1 C. C. K. 266 ; 39 L. J. (M.C.) 1X2. 

(e) 24 & 25 Vict. c. 96, s. 91. 



LARCENY. 217 

The larceny or other felonious taking must be proved. The larceny, 
For this and every other purpose the principal felon is *"'• 
a competent witness ; but of course the jury will form 
their own opinion as to the weight of his testimony ; 
and if the thief is the only witness, the judge will 
advise an acquittal (/). 

Next, it must be proved that the goods were received The receiving. 
by the prisoner into his actual possession ; though a 
manual possession is not necessary {g). The goods 
being found in his possession is good presumptive evi- 
dence of his having received them. 

The knowledge of the prisoner at the time he received The guilty 
the goods that they were stolen, is proved either directly, knowledge. 
by the evidence of the principal felon, or circumstan- 
tially, as by shewing that the prisoner bought them much 
under their value, denied that he had them in his pos- 
session, &c. Evidence may also be given that there 
was found in his possession other property stolen 
within the preceding twelve months. And again, if 
evidence has been given that the stolen property has 
been found in his possession, at any stage of the pro- 
ceedings evidence may be given of a conviction within 
the five years immediately preceding of any ofi'ence in- 
volving fraud or dishonesty. But in this last case 
seven days' notice in writing must be given to the 
accused that proof is intended to be given of such 
previous conviction Qi). 

The allowing evidence of a previous conviction to be Evidence of 
given during the course of a trial, so that it may affect conviction 
the minds of the jury, is an exception to the usual 
policy and practice of our criminal law. As a rule, the 
only influence which a previous conviction is allowed 



(/) R. V. Robinson, 4 F. & F. 43. 
Ig) R. V. Smith, 24 L. J. (M.C.) 135. 
(A) 34 & 35 Vict. c. 112, s. 19. 



218 



LABOBNY. 



to exert is, after the verdict has been given, on the 
judge in determining the sentence. 

Punishment The punishment for the felonious receiving is penal 

.for the felony, gervitude to the extent of fourteen years (i). But re- 
ceiving a post -letter, a post letter-bag, or any chattel, 
or money, or valuable security, the stealing, or taking, 
or embezzling, or secreting whereof amounts to a 
felony under the Post Office Acts, knowing the same to 
have been feloniously stolen, &c., and to have been sent 
or to have been intended to be sent by post, is punish- 
able by penal servitude to the extent of life, or impri- 
sonment not exceeding four years {k). 

for the misde- Where the principal offence is a misdemeanor by the 
meauor, Larceny Act, e.g., if the property has been obtained by 

false pretences, the receiver, knowing that the property 
has been unlawfully stolen, taken, obtained, converted 
or disposed of, is also guilty of a misdemeanor, punish- 
able by penal servitude to the extent of seven years (I). 

for the offence Where the principal offence is punishable on sum- 
mary conviction, the receiver is liable, on summary 
conviction, to the same punishment to which the prin- 
cipal is liable for stealing or taking such property on 
the same conviction (i.e., the first, second, or sub- 
sequent) (m). 

Contrary to the general rule, which does not admit 
of different felonies being charged in different counts 
of the indictment (w), in an indictment for stealing any 
property it is lawful to add a count or counts for felo- 
niously receiving the same or any part or parts thereof. 
And conversely, in an indictment for receiving it is 
lawful to add a count for feloniously stealing the same. 



punishable ou 

summary 

conviction. 



Count for 
receiving in 
indictment for 
stealing and 
vice versa. 



(0 s. 91. 

(A) 7 Wm. 4, and 1 Vict. c. 36, ss. 30, 41. 

(0 5. 95. 

(m) s. 97. 

(«) V. p. 329. 



LABOBNY. 219 

It is for the jury to say of which offence they find the 
prisoner guilty ; or if there are more prisoners than 
one, it is for the jury to say which are guilty of each 
offence (o). 

Any numher of receivers, though they received at dif- Trial of several 
ferent times, of the property which has been stolen or '■''<='^'^"'^- 
otherwise disposed of in such manner as to amount to a 
felony at common law or by the Larceny Act, may be 
charged with substantive felonies (i.e., of receiving) 
in the same indictment, and tried together (p). And, in 
any case, upon the trial of two or more indicted for 
jointly receiving, the jury may convict one or more of 
separately receiving (q). 

With a view to the prevention of crimes of this and Penalties on 
similar descriptions, it has been provided that any one p^bHc'^^^ac'es^ 
who keeps a lodging, public, beer, or other house or who harbour 
place where intoxicating liquors are sold, or any place stoUu^go^odT' 
of public entertainment or public resort, or a brothel, &c. 
and knowingly lodges or harbours thieves or reputed 
thieves, or allows the deposit of goods therein, having 
reasonable cause for believing them to be stolen, is 
liable to a penalty not exceeding £10, or, in default of 
payment, imprisonment not exceeding four months ; or 
instead, or in addition to such punishment, the court 
may require him to enter into recognizances for keep- 
ing the peace or being of good behaviour. There are 
also provisions for the forfeiture of licences on such 
conduct (r). Power is given under certain circum- 
stances to search for stolen property, even without a 
search warrant (s). 

If a pawnbroker is convicted of receiving stolen Pawnbroker 

receiving. 



(0) 


s. 92. 












(/-) 


s. 93. 












(?) 


s. 94. 












« 


34 & 35 Vict. u. 


112, 


ss. 


10, 


11. 


w 


Ibid. s. 


16. 











sion. 



220 LAKCENY. 

goods knowing them to be stolen (or of any fraud in 
his business), the court may direct that his licence 
shall cease to have effect (t). 

Recent posses- We frequently hear of the so-called doctrine of 
Recent Possession, that is, of the possession of property 
within a short time after it has been stolen. Why a 
matter of mere common sense should be elevated to 
the style of a " doctrine," it is not easy to see. What 
is meant is only that, according to the circumstances 
of the case, the recent possession is evidence that the 
person in possession stole the property, or received it 
knowing it to have been stolen. This evidence may be 
of the strongest, or of hardly any weight at all. It 
will vary not only according to the length of time, but 
also according to other considerations, one of the chief 
of which is the nature of the property, whether it be 
of a description which can easily pass from one person 
to another. Thus the possession of a diamond ring a 
year after the theft would be more indicative of a 
felonious intent than the possession of a pound of 
cheese after the lapse of a week (m). 



(i) 35 & 36 Vict. c. 93, s. 38. 

(m) M. v. 'Partridge, 7 C. & P. 551 ; S. v. Langmead, L. & C. 427 ; B. v. 
Veer, 32 L. J. (M.C.) 33. 



( 221 ) 



CHAPTER II. 

EMBEZZLEMENT. 

Embezzlement may be defined as the unlawful appro- Embezzlement 
priation to Lis own use by a servant or clerk of money ^fftin'^ufshed 
or chattels received by him for and on account of his from larceny. 
master or employer. It differs from larceny by clerks 
or servants in this respect : embezzlement is committed 
in respect of property which is not at the time in the 
actual or legal possession of the owner, whilst in 
larceny it is. An example will illustrate the dis- 
tinction. A clerk receives £20 from a person in pay- 
ment for some goods sold by his master ; he at once 
puts it into his pocket, appropriating it to his own use ; 
this is embezzlement. The clerk appropriates to his 
own use £20 which he takes from the till; this is 
larceny. The line of demarcation between the two 
offences appears sometimes to be very finely drawn (x). 
This would be liable to work injustice, were it not for 
, a provision to which we shall shortly have to refer (y). 

The principal points to be noticed are the follow- 
ing:— 

(i.) Proof that the prisoner was employed as clerk 
or servant. 

(ii.) Proof of his receipt for, or in the name of, or on 
account of, the employer or master. 

(iii.) Proof of the unlawful appropriation. 

(it) It is urged that there is no ground for preserving the distinction. 
This would especially be the case if the principle of possession of the servant 
being the possession of the master had been interpreted with the same 
latitude in criminal and civil cases. — Rose. 453. 

(y) v. p. 224. 



clerk or 
servant. 



222 EMBEZZLEMENT. 

(i.) Proof of the Employment as Clerk or Servant. 

Employment as It IS for the jury to determine whether the prisoner 
is a clerk or servant within the meaning of the statute, 
the court explaining what is necessary to constitute 
such a relation. 

The clerks or servants need not he in the employ- 
ment of those in trade. The particular name hy which 
they are called, as accountant, collector, overseer, &c., 
is not material if the general relationship can be 
proved (z). It is a very difficult matter to determine 
whether the required relationship exists. The various 
tests which have been suggested all appear in turn to 
have been overruled. The employment need not be 
continuous, for it was held to be embezzlement though 
the prisoner was employed to receive in a single instance 
only (a). The mode of remuneration for service is not 
decisive, that is, whether by commission or by salary. 
This will not distinguish an agent from a servant (h). 
Nor will a participation in the profits of the sale pre- 
vent the character of servant from arising (c). The 
question is not decided by the consideration whether 
the whole or only a part of a man's time is devoted to 
the other's business {d), nor whether he is bound to 
obey the latter's directions (e). A person who is em- 
ployed as servant by several is considered the indi- 
vidual servant of each (/). 

Embezzlement Embezzlement by persons employed in the public 
offiJers^"' service, or by police constables, of any chattel, money. 



(2) V. B. V. Squire, E & E. 349. 

(a) S. V. Hughes, 1 Mood. C. C. 370. 

(6) S. V. Bailey, 12 Cox, 56. 

(c) S. V Atkinson, 2 Mood. C. C. 278. 

((f) B. V. Tite, 30 L. J. (M.C.) 142. 

(«) V. E. V. Spencer, E. & E. 299. 

(/) 3 Stark. N. P. 70. The reader is referred to the cases given by 
Archbold, Eoscoe, &o., for a fuller examination of this difficult point, 
whether the relationship required by the statute exists ; v. especially 
B. V. Negus, L. K. 2 C. C. R. 34 ; 42 L. J. (M.C ) 62. 



EMBEZZLEMENT. 223 

or valuable security, which is intrusted to, or received, 
or taken into possession by virtue of their employment, 
is subjected to generally the same consequences as if 
the embezzlement were from an ordinary master {g). 

(ii.) The Receipt for, &c., the Master. 

The mere fact of receipt is usually proved by the What will 
person who gave the money, &c., to the prisoner, or by rece^'lfoi- &c 
his own admission. That he received it for, in the the master. 
name of, or on account of his master, the jury may 
infer from the circumstances of the case. But it will 
not be embezzlement if the prisoner . received the 
money from his master in order to pay to a third 
person (h). Nor if the money is already constructively 
in the possession of the master by the hands of any 
other clerk or servant (i). It is immaterial that the 
money was not really due to the master. The receipt 
need not now be by virtue of his employment in order 
to constitute embezzlement ; and therefore it may be 
■embezzlement, though the servant had no authority to 
receive. But it is necessary that the money, &c., 
should be the property of the master when received by 
the servant, and therefore money appropriated by a 
servant in consideration of work which the prisoner 
did by the unauthorized use of his master's tools, the 
payer contracting with the servant only, does not 
constitute embezzlement (k). 

(iii.) The unlawful Apjoropriation. 

The usual evidence given of the appropriation is. The appi-o- 
that having received the money, &c., the prisoner P''"i'i<»>- 
denied the receipt, or accounted for other moneys 
received at the same time, or after, and not for it, or 



(g) 24 & 25 Vict. c. 96, s. 70. Larceny by the abore, f. p. 209. 

(A) B. r. Smith, E. & R. 267. 

(.■) S. Y. Wrii/ht, 27 L. J. (M.C.) 65. 

(/i) S. V. Cullum, L. R. 2 C. C. R. 28 ; 42 L. J. (M.C.) 64. 



224 



EMBEZZLEMENT. 



rendered a false account, or practised some other deceit 
in order to preyent detection (m). 

The mere non-payment to the master of money 
which the prisoner has charged himself in his master's 
book with receiving is not embezzlement (n). But, on 
the other hand, it is no defence to merely shew that he 
entered the receipt correctly in the master's book (o). 
If, instead of denying the appropriation of property, 
the prisoner, in rendering his account, admits the 
appropriation, alleging a right in himself, no matter 
how unfounded, or setting up an excuse, no matter 
how frivolous, his offence in taking and keeping is no 
embezzlement (p). But where it is the prisoner's 
duty, at stated times, to account for and pay over to 
his employer the money received during those intervals, 
his wilfully omitting to do so is embezzlement and 
equivalent to a denial of the receipt of them (q). 

Specific sum to It appears that now some specific sum must be 

be proTsd. proved to havc been embezzled. It will not suffice to 

prove a general deficiency in the prisoner's accounts {r). 

Three acts of There may be charged in the same indictment, and 
^y"e ™°°* ^^^ defendant may be tried at the same time for, 
charged. any number of distinct acts of embezzlement, not 

exceeding three, which may have been committed by 
him against Her Majesty, or against the same master 
or employer, within six months from the first to the 
last of such acts (s). As we have already seen, a 
person indicted for embezzlement may be found guilty 
of, and punished for, larceny, and vice versa (t). 



(m) Arch. Q. S. 540. 
(n) £. V. Hodgson, 3 C. & P. 422. 
(o) B. V. Lister, 26 L. J. (M.C.) 26. 
(p) B. V. Norman, C. & Mar. 501. 
(g) B. T. Jackson, 1 C. & K. 384. 

(r) B. V. Lloyd Jones, 8 C. & P. 288 ; B. y. WolstenMme, 11 Cox, 313 ; 
see Rose. 457. 

(s) 24 & 25 Vict. c. 96, s. 71. 
(0 Ibid. a. 72, V. p. 206. 



EMBEZZLEMENT. 225 

The punishment for embezzlement is penal servitude Punishment, 
to the extent of fourteen years (m). 

The summary jurisdiction given by 18 & 19 Vict. Summary 
c. 126, to justices assembled at petty sessions (x) in J"i"'«'i'<'''°"- 
certain cases of larceny is extended to similar cases of 
embezzlement (y). 

Falsification of Accounts. 

An offence of a kindred nature may be noticed here. Falsification of 
For a clerk, officer, servant, or other employee to wil- ''™°"°**- 
fully and with intent to defraud, destroy, alter, 
mutilate, or falsify any of his employer's books, papers, 
accounts, &c., or make false entries therein, is punish- 
able by penal servitude to the extent of seven years («). 

Embezzlement hy Bankers, Merchants, Brokers, Attorneys, 
Agents, or Factors. 

If any such person is intrusted with any money or Embezzlement 
security, with a direction in writing to apply the same aud'otws 
for any specified purpose, or to any specified person, intrusted with 
and he, in violation of good faith, and contrary to the special purpose, 
terms of such direction, converts the same to his own 
use, or the use of any person other than the one by 
whom he is so intrusted ; or (b) if, having been in- 
trusted as one of the above with any chattel or valuable 
security, or any power of attorney for the sale or 
transfer of any share or interest in any stock or fund, 
for safe custody or for any special purpose, without 
authority to sell, negotiate, transfer, or pledge, he, in 
violation of good faith and contrary to the object or 
purpose specified, sells, negotiates, transfers, pledges, 
or in any manner converts to his own use, or that of 



(m) 24 & 25 Vict. 0. 96, s. 68. 
(») T. p. 462. 

(j/) 31 & 32 Vict. c. 116, s. 2. 
(«) 38 & 39 Vict. c. 24. 



226 



EMBEZZLEMENT. 



some other person than the one hy whom he is in- 
trusted, such chattel or security or the proceeds thereof, 
or the share or interest to which the power of attorney 
relates, he is guilty of a misdemeanor, and is liahle to 
penal seryitude to the extent of seven years (a). There 
is a saying in this section exempting from such liability 
trustees and mortgagees ; also bankers, &c., in receiv- 
ing money due on securities, or disposing of securities 
on which they have a lien. 



Bankers, &c., 
dealing with 
property 
intrusted to 
them. 



It is a misdemeanor, attended with the same punish- 
ment, for a banker, merchant, broker, attorney, or agent, 
with intent to defraud, to sell, negotiate, &c., any pro- 
perty with which he is intrusted for safe custody (b). 
So also for any person intrusted with a power of attor- 
ney for the sale or transfer of any property, to fraudu- 
lently sell, transfer, or otherwise convert it to his own 
use, or that of any person other than the one by whom 
he is intrusted (c). 



Factors or 
agents charg- 
ing property 
intrusted to 
them. 



Factors or agents intrusted, for the purpose of sale 
or otherwise, with the possession of any goods or of 
any document of title to goods, who, without the 
authority of the principal, for their own use or that of 
any person other than the one by whom they are so 
intrusted, and in violation of good faith, make any con- 
signment, deposit, transfer, or delivery of any such 
goods or document, by way of pledge, lien, or security 
for any money or valuable security, borrowed by them 
(the factors, &c.); or (b), without authority, &c., ac- 
cept any^ advance of any money or valuable security on 
the faith of any contract or agreement to consign, &c., 
such goods or document, are guilty of a misdemeanor, 
and punished as above. So also are clerks or others 
knowingly and wilfully assisting in carrying out the 



(<i) 24 & 25 Vict. c. 93, s. 75. 
(6) Ibid. s. 76. 
(0 Ibid. =, 77. 



EMBEZZLEMENT. 227 

aforesaid measures. A saving clause is added that the Suving clause. 

factor or agent will not be liable for consigning, &c., 

if the property is not made a security for or subject to 

the payment of any greater sum of money than the 

amount which, at the time of the consignment, was due 

and owing to such agent from his principal, together 

with the amount of any bill of exchange drawn by or 

on account of such principal, and accepted by the 

factor or agent {d). 

Embezzlement by Trustees. 

For a trustee (or his representative, s. 1) of pro- Embezzlement 
perty for the use of some other person, or for any ^^ '™st°"- 
public or charitable purpose, with intent to defraud, to 
convert, or appropriate the same to his own use, or that 
of any other person than the person aforesaid, or for 
any purpose other than such public or charitable pur- 
pose; or (b), to otherwise dispose of or destroy the 
property, is a misdemeanor, punishable by penal servi- 
tude to the extent of seven years. But no criminal 
proceedings may be taken without the sanction of the 
Attorney-G-eneral. And, if civil proceedings have been 
taken against the trustee, the person who has taken 
such proceedings may not commence any prosecution 
under this section without the sanction of the court or 
judge of such civil proceedings (e). 

Embezzlement by Directors, Officers, and Members of Public 
Companies and Corporate Bodies. 

The following offences are misdemeanors, punishable Offences by 
by penal servitude to the extent of seven years : — directors, &c. 

For a director, member, or public officer of a body Appropriating 
corporate or public company, to fraudulently take or '^^ ""T™"" 
apply to his own use, or any use or purpose other than 



(d) 24 & 25 Vict. c. 96, s. 78. 

(e) Ibid. s. 80. 

o 2 



228 EMBEZZLEMENT. 

the uses or purposes of such body or company, any of 
the property of the body or company (/). 

Receiving 'Foi a director, public officer, or manager of such 

without enter- ]^,Q^y qj. company, to receive or possess himself of any 
b°ooks. ^ of the property of the company, &c., otherwise than in 
payment of a just debt or demand, and, with intent to 
defraud, to omit to make or have made a full and true 
entry thereof in the books and accounts of the com- 
pany {9). 

Fraudulent For a director, manager, public officer, or member, 

faisiBcation of j^]^ intent to defraud, to destroy, alter, mutilate, or 

the books. . •' ,ii ., 

falsify any book, paper, writing, or valuable security, 
belonging to the body or company ; or (b) to make or 
concur in making any false entry, or to omit or concur 
in omitting any material particular in any book of 
account or other document (h). 

Making false For a director, manager, or public officer to make, 
statements, &c. circulate, or publish, or concur in making, &c., any 
written statement or account which he knows to be 
false in any material particular, with intent to deceive 
or defraud any member, shareholder, or creditor of 
such body or company, or with intent to induce any 
person to become a shareholder or partner therein, or 
to intrust or advance any property to such body or 
company, or to enter into any security for the benefit 
thereof («"). 

No prosecution "With regard to these cases of embezzlement by 

if there has ■, ■, i. j. j.j. i_ r l 

been a dis- bankers, merchants, attorneys, agents, or factors, 
closure in a trustees, dircctors, officers, or members of bodies cor- 

civil action. , ... -n •• , ■, • 1 

porate or public companies, the provisions as to which 
are contained in sects. 75 to 84 of the Larceny Act, it 
is enacted that no person shall be con-victed of any of 
these misdemeanors if he shall, at any time previously 

(/) 24 & 25 Vict. .-. 96, s. 81 
(gr) Ibid. =. 82. 
(A) Ibid. s. 83. 
(0 Ibid. s. 8i. 



EMBEZZLEMENT. 229 

to his being charged with such misdemeanor, have dis- 
closed the act on oath, in consequence of any action 
which shall hare heen bond fide instituted by any party 
aggrieyed ; or if he shall have first disclosed the same 
in any compulsory examination or deposition before any 
court upon the hearing of any matter in bankruptcy 
or insolvency (k). 

For a director, officer, or contributory of a company Falsification in 
wound up under the Companies Act, 1862, to destroy, "'^^ "^ '^°™: 

•11 i>i-(. .. pany wound 

mutilate, alter, or falsify any books, papers, writings, up. 
or securities, or to make or be privy to making any 
false or fraudulent entry in any book or other docu- 
ment of the company, with intent to defraud or deceive 
any person, is a misdemeanor, punishable by imprison- 
ment not exceeding two years Q). 

For an officer of a savings bank to receive any de- Savings baniis. 
posit and not pay over the same is a misdemeanor, 
punishable by fine or imprisonment, or both (m). 



(4) 24 & 25 Vict. i;. 96, s. 85. And also nothing in these sections shall 
entitle any person to refuse to answer a question in a civil proceeding on 
the ground that it tends to criminate himself. — s. 85. The criminal pro- 
ceeding is not to deprive any party of his civil remedy, but the conviction 
is not to be evidence in such civil suit. — s. 86. 

(0 25 & 26 Vict. li. 89, s. 166. 

(m) 26 & 27 Vict. c. 87, s. 9. False statements, returns, &c., by railway 
companies, v. 29 & 30 Vict. .;. 108, ss. 15-17 ; 31 & 32 Vict. c. 119, s. 5 ; 
34 & 35 Vict. K,. 78, ». 10. 



( 230 ) 



CHAPTEE III. 

FALSE PKETENCES. 

False pretences It is difficult to correctly define the offence of obtain- 
fromTarce'^ny ^^S property by false pretences. In some cases, on 
the one hand, there seems little to distinguish it from 
larceny ; and in others, to distinguish it from a mere 
non-criminal lie. The most intelligible distinction 
between false pretences and larceny has been thus set 
forth (n): " In larceny the owner of the thing stolen 
has no intention to part with his property therein to 
the person taking it, although he may intend to part 
with the possession ; in false pretences the owner does 
intend to part with his property in the money or 
chattel, but it is obtained from him by fraud." The 
line between the two crimes is very narrow. Thus, A. 
intrusts B. with a parcel to carry to C. D. meets B. 
and alleges that he is C, whereupon B. giyes him the 
parcel. It will be larceny if B. had not authority to 
pass the property ; false pretences if he had (o). The 
difficulty of discriminating arises chiefly where there 
has been a constructive taking only, where the owner 
delivers the property, though the possession is obtained 
by fraud. The evil which might arise from this state 
of things is to some extent obviated by a provision 
that if upon an indictment for false pretences it is 
proved that the defendant obtained the property in 
such manner as to amount in law to larceny, he is not 
on that account to be acquitted (p). Therefore in 
cases of doubt it is better to indict for false pretences. 



(n) Arch. 362 ; v. White v. Garden, 10 C. B. 927. 
(o) V. B. V. Wutkins, 1 Leach, 520. 
Ip) 24 & 25 Vict. c. 96, 5. 88. 



EALSE PRETENCES. 231 

Tte points to be proved on an indictment for false 
pretences are the following : — 

i. The pretence and its falsity. 

ii. That the property or some part thereof was 
obtained by means of the pretence. 

iii. The intent to defraud. 

i. The pretence must be wholly or in part of an Pretence must 
existing! fact (q) ; for example, a false statement of one's ]'" °^ *° *^'^'' 
name and circumstances in a begging letter. But a 
mere exaggeration will not suffice, as if a person 
actually in business pretends that he is doing a very 
good business (r) ; otherwise, if he were not doing any 
business at all (s). The fact must be an existing fact ; 
therefore it is not within the act for a person to pre- 
tend that he will do something which he does not 
mean to do (t). But a promise to do a thing may 
involve a false pretence that the promisor has the 
power to do that thing; and for this an indictment 
will lie (m). 

Obtaining additional money by stating that a larger 
amount of goods is delivered than is known to be the 
case, is within the statute (x). But of course not 
every breach of warranty or false assertion at the time 
of a bargain will be treated as a false pretence (y) ; 
for example, if, in selling an article for a lump sum, 
the vendor makes a false representation as to the 
weight in order to induce the purchaser to conclude 



(^) "It may be laid down as a general rule of interpretation of the 
statute, that wherever a person fraudulently represents as an existing fact 
that which is not an existing fact, and so gets money, &c., that U an offence 
within the Act."— Arch. 497. 

(r) B. V. Williamson, 11 Cox, 328. 

(s) S.r. Crabb, 11 Cox, 85. 

It) B. V. Lee, 9 Cox, 304. 

00 JJ. V. Giles, 34 L. J. (M.C.) 50. 

(:!;) B. V. Bagg, 29 L. J. (M.C.) 86. 

ly) S. V. Gudrington, 1 C. &. P. 661. 



232 FALSE PRETENCES. 

the bargain (z). However, it seems clear that a false 
representation respecting an alleged matter of definite 
fact knowingly made is a false pretence within the 
statute ; even although the representation is merely as 
to the quality of the goods sold ; as when the prosecu- 
tor was induced to purchase a chain on the repre- 
sentation that it was fifteen carat gold, whereas it was 
only six carat (a). But if the representation is only 
what is matter of opinion, and amounts merely to ex- 
aggerated praise, the party is not criminally liable ; 
as where the defendant said his spoons were equal to 
Elkington's (b). 

The pretence, The false pretence need not be expressed in words ; 
how expressed. -^ ^-^ ^^^^^ jf ^j^^ pretence is signified in the conduct 

and acts of the party; for example, by obtaining 
goods upon giving in payment a cheque upon a banker 
with whom the defendant has no account, he believing 
that it would not be paid on presentation (c) ; or by a 
person, who was not a member of the university, 
obtaining goods fraudulently at Oxford through wear- • 
ing a commoner's cap and gown (d). A false pretence 
made through an innocent agent is, of course, the 
same as if made by the defendant himself. 

indictmeat for If the goods are obtained by means of a forged 
forgery. order, note, or other document, the party should be in- 

dicted for forgery, seeing that the punishment for 
that offence is much more severe. But the pri- 
soner will not be acquitted for the false pretence on 
the ground that he might have been indicted for 
forgery (e). 



(«) B. V. Midgway, 3 F. & F. 838. 

(a) R. V. Astley, L. E. 1 C. C. R. 301 ; 40 L. J. (M.C.) 85. 
(6) S. V. Bryan, 26 L. J. (M.C.) 8+. 

(o) R. V. Jackson, 3 Camp. 370; v. R. v. Hazelton, L. E. 2 C. C. R. 134; 
44 L. J. (M.C.) 11. 

(d) R. V. Barnard, 7 C. & P. 784. 
(c) 14 & 15 Vict. 0. 100, s. 12, 



FALSE PEETENCES. 



233 



• It will suffice if the falsity of the substance of the 
pretence is proyed, although every particular is not 
established (/). 

ii. The intent to defraud. 

As in other cases, the intent is generally to be The intent to 
gathered from the facts of the case. It is sufficient ^^ ^^^^' 
to allege in the indictment, and to prove at the trial, 
an intent to defraud generally, vyithout alleging or 
proving an intent to defraud any particular person {g). 

It has been held that to support the evidence of Evidence of 
intent to defraud proof that the defendant has svhse- °y^^^ ^^'^' 

^ tences. 

quently obtained other property from some other person 
by the same pretence is not admissible (h) ; but that 
evidence of similar false pretence on a prior occasion is 
admissible (i). 

Obtaining property by false pretences is a mis- Punishment, 
demeanor, punishable by penal servitude to the extent 
of five years (h). It is subject to the provisions of the 
Vexatious Indictments Act (T). As we have seen, the 
defendant is not entitled to be acquitted for the mis- 
demeanor because the facts shew that the offence 
amounts to larceny ; but no person tried for such 
misdemeanor is liable to be afterwards prosecuted for 
larceny upon the same facts (m). 

Winning at play by fraud is punishable as for 
obtaining money by false pretences (w). 

Closely allied to the offence of false pretences is that 



(/) E. V. mil, R. & R. 190. 

(^) 24 & 25 Vict. c. 96, s. 88. 

(A) R. V. ITolt, 30 L. J. (M.C.) 11. 

(!-) S. V. Francis, h. R. 2 C. C. R. 128; 43 L. J. (M.C.) 97. 

(It) 24 & 25 Vict. u. 96, ». 88. 

(l) V. p. 344 

(m) 24 & 25 Vict. c. 96, s. 88; v. S. v. Bulmcr, 33 L. J. (M.C.) 171. 

(k) 8 & 9 Vict. c. 109, s. 17. 



234 FALSE PEETENCES. 

Inducing exe- of inducing persons hy fraud to execute valuable 
able™ curitiir Securities. For any person, with intent to defraud or 
by fraud. injure another, by any false pretence to fraudulently 
cause or induce any person to execute, make, accept, 
indorse, or destroy the whole or any part of any valu- 
able security; or (b) to write, impress, or affix his 
name, or the name of any other person, or of any 
company, firm, or co-partnership, or the seal of any 
body corporate, company, or society, upon any paper or 
parchment, in order that the same may be afterwards 
made, or converted into, or used, or dealt with as a 
valuable security, is a misdemeanor, punishable as ob- 
taining by false pretences (o). 

FALSE PEESONATION 

False perso- The obtaining goods, money, or other advantage 

nation ^^ ^^^^^ persouation is a crime similar to false pre- 

tences. At common law false personation is punishable 
as a cheat or fraud; but certain particular cases are 
dealt with by statute. This crime is also closely con- 
nected with forgery ; and many statutes providing 
against forgery at the same time provide against false 
personation, 

of seamen, Of Seamen, soldiers, &c. — For a person, in order to 

receive any pay, wages, prize money, &c., payable, or 
supposed to be payable, or any effects or money in 
charge, or supposed to be in charge, of the Admiralty, 
falsely and deceitfully to personate any person entitled, 
or supposed to be entitled, to receive the same, is 
a misdemeanor, punishable by penal servitude to the 
extent of five years; or, on summary conviction, by 
imprisonment not exceeding six months ( p). 

of soldiers, To knowingly and wilfully personate or falsely 

assume the name or character of, or to procure others 



(o) 24 & 25 Vict. c. 96, s. 90. 

Ip) 28 & 29 Vict. c. 124, s. 8 ; v. s. 9. 



FALSE PRETENCES. 235 

to personate, &o., a soldier or other person who shall 
have really served, or be supposed to have served, in 
Her Majesty's army or in any other military service, or 
his representatives, in order to receive his vyages, prize 
money, &c., due or payable, or supposed to be due or 
payable, for service performed, or supposed to be per- 
formed, is a felony, punishable by penal servitude to 
the extent of life {q). It is no defence to an indict- 
ment under section 49 that the person was authorized 
to personate the soldier ; or that he had bought from 
him the prize money to which the latter was entitled (r). 

Owners of Stock, &c. — To falsely and deceitfully of owners of 
personate the owner of any share or interest in any ^'°''''' 
stock, annuity, or public fund, which is transferable 
at the Bank of England or Bank of Ireland ; or (b) the 
owner of any share or interest in any capital stock of 
any body corporate, company, or society established by 
charter or Act of Parliament ; or (c) the owner of any 
dividend or money payable in respect of any such share 
or interest, and thereby to transfer, or endeavour to 
transfer, any such share or interest, or receive, or endea- 
vour to receive, any money so due, as if the offender 
were the true and lawful owner, is a felony, punishable 
by penal servitude to the extent of life (s). 

To obtain property in general. — By the False Per- of owners of 
sonation Act, 1874, it is provided that, for any person ^n°^i^^*^ "^ 
to falsely and deceitfully personate any person, or the 
heir, executor, or administrator, wife, widow, next of 
kin, or relation of any person, with intent fraudu- 
lently to obtain any land, chattel, money, valuable 
security, or property, is a felony, punishable by penal 
servitude to the extent of life (t). 

(7) 2 & 3 Wm. 4, c. 53, s. 49 ; 7 Geo. 4, u. 16, ». 38. 

(>•) R. V. Lake, 11 Cox, 333. 

(s) 24 & 25, Vict. u. 98, s. 3 ; v. also National Debt Act, 1870 QV.i k 34 
Vict. c. 58, s. 4); India Stock (26 & 27 Vict. c. 73, s. 14); Companies 
Act, 1867 (30 & 31 Vict. c. 131, s. 35). 

(«) 37 & 38 Vict. 0. 36, a. 1 ; v. also s. 2. 



236 



FALSE PRETENCES. 



Personating 
bail. ' 



Bail. — Without lawful authority or excuse (which it 
lies on the accused to prove), in the name of another 
person to acknowledge any recognizance or bail, or 
any cognovit actionem, or judgment, or any deed or 
other instrument, before any court, judge, or other 
person lawfully authorized in that behalf, is a felony, 
punishable by penal servitude to the extent of seven 
years («). 



What cheats 
are indictable. 



CHEATING. 

Cheating is a comprehensive term, including in its 
wider signification False Pretences, False Personation, 
and other crimes which are specially provided for. A 
cheat at common law is the fraudulent obtaining the 
property of another by any deceitful and illegal practice 
or token which affects or may affect the public (x). 
Thus, the leading characteristic of such a cheat is 
the publicity of its effects. Therefore, a cheat or 
fraud effected by an unfair dealing and imposition on 
an individual is not the subject of an indictment at 
common law. Of course many acts of cheating are 
not punishable at all by the criminal law ; the person 
wronged being left to his remedy by civil action. 



Cheats at The chief classes of offences regarded as cheats at 

common law. common law are the following : — 

Against public justice, e.g., counterfeiting a dis- 
charge. 

Against public health, e.g., selling unwholesome 
provisions. 

Against public economy, e.g., by using false 
weights or measures. 



(u) 24 & 25 Vict. c. 98, s. o-i. Voters at elections, parliamentary and 
municipal, 35 & 36 Vict. cc. 33, 60 ; 5 & 6 Wm. 4, c. 76 : 6 & 7 \'ict. 
c. 18. 

(*■) V. 2 Kuss. 604. 



FALSE PBETENOES. 237 

There must be a plausible contrivance, as in the 
last instance, against which common prudence could 
not have guarded. Thus, though selling by false 
weights or measures is a misdemeanor, selling under 
weight is merely actionable. 

Apart from the common law crime, a great multitude Deceits 
of statutes are designed to restrain and punish parti- g^'^tute^'^ ^ 
cular deceits, or deceits in particular trades. Amongst 
the more general we may notice the laws preventing 
cheating by : — 

Counterfeit trade-marks (y). 

Fraudulent conveyances (z). 

The general punishment for this misdemeanor is fine I'unishment 
or imprisonment, or both. 



(y) V. p. 118. 

(«) 13 Eliz. c. 5 ; 27 Eliz. c. 4. For other common law cheats, v. 2 Russ. 
604, et sej. 



( 238 ) 



CHAPTEE IV. 

BUEGLAEY, ETC. 

Burglary, The offence of Burglary (in the strict signification of 

defiDition at ^j^g term) is thus defined at common law : The break- 
common law, . ^ ^ . 

ing and entering of the dwelling or mansion-house of 

another in the night time with intent to commit a 
felony (a). The limits of burglary proper have been 
extended ; and the punishment of other crimes closely 
connected with burglary has been also separately pro- 
vided for by statute. The crime is thus described in 
by the Larceny the Larceny Act : " Whosoever shall enter the dwell- 
Act. ing-house of another with intent to commit any felony 

therein, or being in such dwelling-house shall commit 
any felony therein, and shall in either case break out 
of the said dwelling-house in the night, shall be deemed 
guilty of burglary " (6). 

Four points present themselves for consideration : 
the time, place, manner, and intent. 

The time. i. Time. — Formerly great uncertainty existed as to 

what constituted night — whether it was the interval 
between sunset and sunrise, whether it included twi- 
light, &c. The matter has been settled by statute'. 
As far as, regards burglary and other offences treated 



(a) 3 Inst. 63. 

(6) 24 & 25 Vict. c. 96, s. 51. "This is an excellent instance of the 
way in which, by the combined operation of common and statute law, 
definitions are made, as it were, to stand on their heads. The common law 
being a very rude system, involving great severity of punishment, affixed 
special names to complications of crimes. The statute law look up the 
complicated definition as the starting point, and inserted minor offences to 
fill up the gap left by the common law." — Fitz. St. 139. 



BURGLABY, ETC. 239 

of in the Larceny Act the night is deemed to commence 
at nine o'clock in the evening, and to conclude at six 
o'clock on the following morning (c). 

Both the breaking and the entering must take place 
at night. If either he in the daytime, it is not burglary. 
But the breaking may take place on one night and the 
entering on another, provided that the breaking is with 
intent to enter, and the entering is with intent to 
commit a felony (d). 

ii. Place. — It must be the dwelling-house of another. The place. 
To constitute a dwelling-house for the purposes of the 
statute dealing with burglary and similar offences (the 
Larceny Act), the house must be either the place where 
one is in the habit of residing, or some building between 
which and the dwelling-house there is a communica- 
tion, either immediate or by means of a covered and 
inclosed passage leading from the one to the other ; 
the two buildings being occupied in the same right (e). , 
It must be the house of another; therefore a person 
cannot be indicted for a burglary in his own house, 
though he" breaks and enters the room of his lodger 
and steals his goods. 

The decisions as to what places satisfy the require- 
ments of burglary have been numerous, and, to some 
extent, conflicting. We may gather the following 
facts : — 

The building must be of a permanent character ; The nature of 
therefore a tent or booth will not suffice, although the ^^^ building:. 
owner lodge there. The tenement need not be a dis- 
tinct building; thus chambers in a college or inn of 
court will suffice. 

As to the nature of the residence which is necessary. — 



(c) 24 & 25 Vict. c. 96, i. 1. 

yt) E. T. Smith, R. & R. 417. 

(e) E. T. Jenkins, R. & R. 224 ; 24 & 25 Vict. c. 96, s, 53. 



240 



BUBGLAEY, ETC. 



Where part of 
the house is 
let. 



What amounts The temporary absence of the tenant is not material 
to resi ence. •£ j^^ ^^^ ^^ intention of returning, though no one be 
in during the interyal. It will suffice if any of the 
family reside in the house, even a servant (f ), unless 
the servant is there merely for the purpose of pro- 
tecting the premises (^). It seems that sleeping is 
necessary to constitute residence (h). 

In the case of hiring a part of a house, the part let 
off may be considered as the dwelling-house of the 
hirer if the owner does not himself dwell in the house, 
or if he and the hirer enter by different doors; that 
is, of course, provided that the hirer satisfies the other 
requirements of residence given above. If he does not, 
the place cannot be the subject of burglary at all ; it 
is not the dwelling-house of the lodger or tenant, 
because there is no residence; nor of the owner, be- 
cause it is severed by the letting («'). But if the owner 
himself, or any of his family, lie in the house, and 
there is only one outward door at which they and the 
lodger enter, the lodger is regarded as an inmate; and 
therefore the house must be described as that of the 
owner (k). 



At common law a church might be the subject of 
burglary ; but this case is now specially provided for 
by statute (l). 



The manner. 



iii. Manner. - 
entering. 



-There must be both a breaking and an 



The breaking. As to the hreahiug. — It must be of part of the house ; 
therefore it will not suffice if only a gate admitting 



(/) iJ. V. Westwood, R. & R. 495. 

(g) R. T. Flannagan, E. & R. 187. 

(A) R. V. Martin, R. & R. 108. 

(i) T. Arch. 523, 524, and cases quoted there. 

(A) T. R. T. Rogers, 1 Leach, 89. 

(0 V. p. 244. 



BUBGLAUY, ETC. 241 

into the yard is broken. But the breaking is not 
restricted to the breaking of the outer wall, or doors, 
or windows ; if the thief gains admission by the outer 
door or window being open, and' afterwards breaks or 
unlocks an inner door for the purpose of plundering 
one of the rooms, it is burglary (m). This will apply 
especially to the case of servants, lodgers, &c., who are 
lawfully in the house. Breaking chests or cupboards 
does not satisfy the requirements of burglary. 

The breaking is either actual or constructiye. Actual, Actual break- 
when the offender, for the purpose of getting admission '°^' 
for any part of his body, or for a weapon or other 
instrument, in order to effect his felonious intention, 
breaks a hole in the wall of a house, breaks a door or 
window, picks the lock of a door, or opens it with a 
key, or even by lifting the latch, or unlooses any 
other fastening to doors or windows which the owner 
has provided (n). It is not burglary if the entry is 
made through an open window or door, or through an 
aperture (other than a chimney), provided that the 
thief does not break any inner door. Nor is raising a 
window which is already partly open ; but it has been 
decided that lifting the flap of a cellar which was kept 
down by its own weight was burglary (o). 

The breaking is constructive, where admission is Constructive 
gained by some device, there being no actual breaking. '"'^^ "''=■ 
As, for example, to knock at the door and then rush in 
under pretence of taking lodgings, and fall on and rob 
the landlord ; or to procure a constable to gain admit- 
tance in order to search for traitors, and then to bind 
the constable and rob the house. These are breaches 
sufficient to constitute burglary, for the law will not 
suffer itself to be trifled with by such evasions (p). So 



(m) B. V. Johnson, 2 East, P. C. 488. 
(n) 3 Inst. 64 ; 1 Hale, P. C. 552. 
(o) S. V. Russell, 1 Mood. C. C. 377. 
(p) 4 Bl. 220. 



242 BUEGLAET, ETC. 

for servants to conspire with a robber, and let him into 
the house at nighty is a burglary in both. To obtain 
admission to a house by coming down the chimney is 
sufficient, for the chimney is as much closed as the 
nature of things will admit ; but getting through a 
hole in the roof left to admit light is not (q). 

Entry. As to the entry. — The least degree of entry with any 

part of the body, or with any instrument held in the 
hand, will suffice ; for example, stepping over the 
threshold, putting a finger or hook in at the open 
window in order to abstract goods. 

Breaking out. Though formerly there were doubts on the subject, 
it is now provided by statute that it is burglary for a 
person who has entered the dwelling-house of another 
with intent to commit a felony therein, or for a person 
who in such dwelling house {e.gi., a servant) has com- 
mitted a felony therein, to hreak out (r). 

Attempt. When the breaking with intent to commit a felony is 

proved, but there is no proof of entry, the jury may 
convict the prisoner of an attempt to commit bur- 
glary (s). 



The intent to 
commit a 
felony. 



IV. 



The Intent. — To constitute a burglary, there must 
be an intent to commit some felony in the dwelling- 
house, otherwise the breaking and entry will only 
amount to a trespass (t). It must be either proved from 
evidence of the actual commission of the felony, or im- 
plied from some overt act if the felony is not actually 
carried out. For it is none the less burglary because 
the felony which is intended is not perpetrated. 



(?) S. V. Brice, E. & R. 450. 
(r) 24 & 25 Vict. c. 96, s. 51. 
(s) M. V. Spanner, 12 Cox, 155. 
(<) 1 Hale, P. C. 561. 



BURGLARY, ETC. 243 

Burglary is a felony, punishable by penal servitude Punishment. 
to the extent of life (w). 

Two or three crimes connected with the subject of 
burglary remain to be considered : — 

Entering a dwelling-house in the night, with intent to Entering 
commit a felony— the offence differing from burglary at''nighfw™h° 
inasmuch as there is no breaking — is a felony, punish- intent, &c. 
able by penal servitude to the extent of seven 
years {x). 

Being found hy night armed with any dangerous or Armed at 
offensive weapon -or instrument, with intent to break "nt^'nt^^,!' 
or enter into any dwelling-house, or other huilding 
whatsoever, and to commit a felony therein ; (N.B. An 
intent either to break or to enter will suffice, also that 
the offence is not confined to dwelling -houses. Proof 
must be given of an intent to break into or enter a 
particular building ; proof of a general intent will not 
suffice) («/) ; 

or, being found by night in possession, without law- Possession of 
ful excuse, of any house-breaking implement, or being house-brealtmg 
found with the face blackened or otherwise disfigured, night. 
with intent to commit a felony ; 

or, being found by night in any dwelling-house or Being in 
other building, with intent to commit a felony therein, h^use "Ic 

is a misdemeanor, punishable by penal servitude to 
the extent of five years (z). If any of the above mis- 
demeanors be committed after a previous conviction for 
felony, the penal servitude is from seven to ten years ; 
if after a previous conviction for one of such mis- 
demeanors, the penal servitude is from five to ten 
years (a). 



(m) 24 & 25 Vict. c. 96, s. 52. 

{x) Ibid. s. 54. 

(j/) R. r. Jarrald, 32 L. J. (M.C.) 258. 

(«) 24 & 25 Vict. c. 96, s. 58. 

(o) Ibid. s. 59; 27 & 28 Viot. c. 47, s. 2. 

R 2 



244 



BURGLARY, ETC. 



HOTTSEBBBAXnSTG. 



Housebreaking The chief distinction between this crime and burglary 

distinguished 
from burglary. 



distinguisiied jg ^jjg^j. ^]^g former may be committed by day, the latter 



Nature of the 
the crime. 



by night only. There is also a difference to be noticed 
as to the structure which may be the subject of the 
crimes. Housebreaking extends to school-houses, shops, 
warehouses, and counting-houses, as well as dwelling- 
houses, also any building within the curtilage of a 
dwelling-house and occupied therewith, but not being 
part thereof according to the provision of section 53, 
noticed aboye (6). 

This crime consists in the breaking and entering any 
such house with the intention of committing a crime 
therein, or in the case of one being in such house, com- 
mitting a felony therein, and breaking out of the same. 
The breaking and entering will be proTed as in 
burglary. 

The punishment for this felony varies according to 
whether the projected felony, the object of the breaking, 
is actually committed, or there is only an intention ; in 
the former case the extent of the penal servitude being 
fourteen years, in the latter seven years (e). On an in- 
dictment for the former, the prisoner may be convicted 
of the latter. Also, if the indictment charges the 
breaking and stealing, if the prosecution fail to prove 
the breaking, the prisoner may be convicted of larceny 
in a dwelling-house (d), or of simple larceny. 

Sacrilege. 

Breaking, &c., Breaking and entering a church, chapel, meeting- 

ciiurch, chapel, j^g^gg^ qj. other place of divine worship, and committing 

a felony therein, or, if already therein, committing a 



Punishment. 



(6) 24 & 25 Vict. c. 96, s. 55 ; t. p. 239. 
(o) Ibid. ss. 56, 57. 
(cf) V. p. 245. 



BUBGLAEY, ETC. 245 

fBlbny and breaking out, is a felony, punishable by 
penal servitude to the extent of life (e). If the pro- 
jected felony is not actually committed, but the intent 
to commit is proved, the limit of the penal servitude is 
seven years (/). 

The proof is generally the same as that in house- 
breaking. It seems that the articles stolen need not be 
such as are used for divine service (gi). 

Larceny in a Dwelling-house. 

This crime differs from housebreaking inasmuch as Larceny in a 
there need not be any breaking, nor any entry with a dwelling- 
view to the commission of the larceny. As in burglary, 
the building must be proved to be a dwelling-house, or 
some building occupied therewith or communicating in 
the manner before described (A). 

Stealing in such dwelling-house any chattel, money, Punishment. 
or valuable security to the value in the whole of £5 or 
more, is a felony, punishable by penal servitude to the 
extent of fourteen years (i). And although the value 
does not amount- to £5, the punishment is the same if 
the thief by any menace or threat puts any one in the 
dwelling-house in bodily fear {k). 

The goods must be under the protection of the Goods to be 
house, and not in the personal care of the owner, ""^f"^ ^^t p'"" 

„ „ , . tection of the 

ihus, to steal a sum or money from a person s pocket house. 
while he is in the house, is not within the statute, 
unless, indeed, the clothes containing such pocket had 
been put off, in which case they would be under the 



(«) 24 & 25 Vict. c. 96, ». 50. 

(/) Ibid. s. 57. 

(jf) Arch. 420; B. v. Eourhe, K. & R. 386. 

(A) V. p. 239. 

(»•) 24 & 25 Vict. u. 96, ». 60. 

l/i) Ibid. s. 61. 



246 BURGLARY, ETC. 

protection of the house (l). It was decided in the same 
case that it is a question for the court, and not for the 
jury, whether the goods are under the protection of the 
house or in the personal care of the owner (m). It 
appears now to be settled that the fact that the larceny 
was committed in the thief's own house does not take 
the case out of the statute (w). 



EECAPITULATION. 

Inasmuch as there is great danger of confusion and 
considerable intricacy in the definitions, it will be well 
to recapitulate tTie distinctions between certain crimes 
partaking of the general character of fraud. A few 
general remarks on the class as a whole will be added. 

Larceny and First, as to Larceny and Embezzlement. The gist of 
embezzlement, ^.j^g Jitter offeuce is that, in the case of appropriation by 
a servant or clerk of money or chattels received by him 
for his master or employer, such money or chattels are 
not at the time of appropriation in the actual or con- 
structive possession of the master or employer ; or, in 
other words, the prisoner intercepts the property on its 
way to the possession of the master or employer. In 
more than one direction does this crime very closely 
border on larceny. Thus difficult points may arise on 
the questions — whether the appropriator were a serv- 
ant; whether the master were in possession of the 
property, &c. 

Larceny and Between Larceny and False Pretences the main dis- 

false pretences. tJuction is, that in the former the property is not 

passed by the owner to the thief (and generally the 

possession is not intended to be passed) ; while in the 



(J) B. V. Thomas, Car. Sup. 295. 

(m) This seems to be another invasion of the province of the jnry. 

(n) S. V. Bowden, 1 C. & K. 147. 



BUEGIiAKY, ETO 247 

latter, the property is passed to the defendaflt, but this 
is brought about by fraud. Here, again, subtle questions 
arise as to the authority to pass the property, &c. 

The distinction of Robbery from other kinds of larceny Robbej-y. 
is, that in the former case there must have been a felo- 
nious taking from the person, or in the presence of 
another, accompanied either by violence or a putting to 
fear. 

In Burglary there is a limitation in certain respects Burglary, 
not necessary in simple larceny : as to the time, viz., at 
night ; as to the place, viz., a dwelling-house ; as to the 
manner, viz., the breaking and entering, or breaking 
out. In one point burglary is wider in its scope — there 
need not be an actual larceny ; it will suffice if there is 
an intent to commit a felony. 

Between Burglary and Househreahing the distinction Burglary aud 
is that the former must be committed at night, and is housebreaking. 
more limited with respect to the buildings which are 
its subjects. 

Between Househreahing and Larceny in a dwelling- Housebreaking 
house there is the distinction as to the breaking, and a'dwdUng- '" 
also as to the building, as to which the latter crime is house. 
on the same footing as burglary. 

Sir James Stephen (o) proposes a comprehensive de- Proposed defi- 
finition of theft, to include not only all that usually °''''""''' *''"f*- 
now goes by the name of Larceny, but also Embezzle- 
ment, Obtaining by False Pretences, and other " illegal 
and malicious transfers of any of the advantages, 
derived from property, from the person entitled to 
them to some other person ;" thereby abolishing " five 
or six useless and intricate distinctions between cognate 
crimes," and doing away with " all the technicalities 

(o) Gen. View of Crim. Law, 129. 



248 



BURGLAEY, ETC. 



about the kinds of property which are the subjects of 
larceny, and with those which arise out of the obscure 
doctrine of possession. 

The definition'. The definition is — " To steal is unlawfully, and with 
intent to defraud, by takitfg, by embezzlement, by 
obtaining by false pretences, or in any other manner 
whatever to appropriate to the use of any person any 
property whatever, real or personal, in possession or in 
action, so as to deprive any other person of the advan- 
tage of any beneficial interest at law, or in equity, 
which he may have therein.". 



Its innova- 
tions. 



This definition " would include a great variety of 
fraudulent breaches of trust, many of which are now 
unpunished, or are punished, if at all, by special enact- 
ments, the construction of which is doubtful." The 
chief points in which it difi'ers from the existing law 
are two : (a) " It takes, as the test of criminality, an 
intention to defraud at the time of appropriation of the 
property, and not at the time of its asportation." It is 
obvious that the moment of appropriation is the really 
critical time, (b) " It views, as the subject-matter of 
larceny, the beneficial interest of the proprietor, and 
not his specific right of possessing a specific thing." 
Thus the temporary use of an article would be as much 
the subject of larceny, if obtained with the intent to 
defraud, as the absolute permanent deprivation. 



( 249 ) 



CHAPTER V. 

FORGERY. 

FoEGBRY may be described, in general terms, 'as the Forgery 
false making (or alteration) of an instrument (or part ^^'^^ ^ ' 
thereof) which purports on the face of it to be good 
and valid for the purposes for which it was created, 
with a design to defraud {p). 

The statute law on this subject is chiefly contained 
in one of the Consolidated Acts of 1861 — The Forgery 
and False Personation Act (q). These laws are not 
careful to bring themselves within the compass -of any 
definition; and they frequently deal with offences 
which do not strictly fall under the principal heading. 
Thus, in the Forgery Act we shall find noticed many 
oflfences which, " though not amounting to forgery, faci- 
litate, or are steps towards the commission of that 
crime, or are of a somewhat similar nature." 

It may be premised that forgery is very closely allied Forgery and 
to obtaining by false pretences (r). Indeed, " if there ^^''' P'-^'^'«^es. 
were no special provisions on the subject, many cases of 
forgery would be punishable as cases of obtaining goods 
or money by false pretences" (s). It is needless to say 
that forgery is treated as a much more serious crime 
than false pretences. 

We shall in the first place notice with what instru- 



(p) V. 2 East, p. C. 991 ; 4 Bl. 247. 

(q) 24 & 25 Vict. c. 98. When merely a section is quoted in this 
chapter it must be understood to be a section of this statute. 
(r) V. p. 232. 
(5) Fitz. St. 141. 



250 



FOEGEBY. 



ments the statute deals, and what are left to the 
punishment at common law; and then examine the 
nature of the crimes which may be committed with 
regard to these instruments. 



Needless 
verbosity of 
the Forgery 
Act. 



The statute is a model of excessive and needless intri- 
cacy. It consists of fifty-six sections, of which about 
half are merely enumerations of particular classes of 
instruments which it is felony to forge. Inasmuch as 
in almost every case the punishment is the same " the 
greater part of the law is perfectly needless, and might 
be condensed into one section as follows : ' Whosoever 
maliciously, and for the purpose of fraud or deceit, shall 
forge anything written, printed, or otherwise made 
capable of being read, or utter any such forged thing, 
knowing the same to be forged, shall, upon conviction, 
be sentenced to penal servitude for life, or for any term 
not less than three (t) years, or to imprisonment, with 
or without hard labour, for any term not exceeding two 
jeats ' " (u). 



Instruments 
dealt with in 
the Forgery 
Act enume- 
rated. 



But as we are concerned with the law as it is, not as 
it might be, it will be our task to enumerate the classes 
of instruments, the forgingr, or altering, or the offering, 
uttering, disposing of, or putting off (knowing the same 
to be forged or altered) of which is a felony. In each 
case, unless otherwise specified, the punishment is that 
indicated above, viz., penal servitude from five years to 
life, or imprisonment not exceeding two years. 



The Great Seal of the United Kingdom ; the Queen's 
Privy Seal ; her Eoyal Sign Manual, &c. ; and docu- 
ments to which any of these are attached (sect. 1). 

Transfer of stock, power of attorney, &c. (sect. 2). 



(Q Now five. 
00 Fitz. St. U2. 



POEGERT. 251 

Attestation to a power of attorney, &c. Maximum 
of penal servitude, seven years (sect. 4). 

False entry or alteration in the books of the public 
funds (sect. 5). 

False dividend-warrant by employees of Bank of 
England or Bank of Ireland. Maximum, seven years 
(sect. 6). 

East India bonds (v) (sect. 7). 

Exchequer bills, bonds, or debentures (x) (sect. 8). 

Bank notes, bills, &c., or indorser's assignment 
thereof (sect. 12). 

Deeds, bonds, assignments of bonds, or names of 
attesting witnesses (sect. 20). 

Wills, codicils, &c. (sect. 21). 

Bills of exchange, or any acceptance, indorsement, 
or assignment thereof; promissory notes, or any in- 
dorsement or assignment thereof (y) (sect. 22). 

Undertakings, warrants, orders, receipts, &c., for 
payment of money, delivery or transfer of goods, &c. 
(sect. 23). 

Obliterating or altering crossings on cheques (sect. 
25). 

Debentures. Maximum, fourteen years (sect. 26). 

Proceedings of courts of record or equity, &c. Maxi- 
mum, seven years (sect. 27). 

False copies or certificates of record by an officer of 



(«) For statutes dealing with forgery of other East India Securities, v . 
Ai-ch. 634. 

(a;) See also 29 & 30 Vict. c. 25, s. 15. 

(y) V. s. 24'as to making, accepting, &c., any bill, note, &o., by procura- 
tion or otherwise, for any other person, without authority ; or uttering 
the same knowing it to have been so made, &c. The punishment is penal 
servitude to the extent of fourteen years. 



252 FOEGEEY. 

the court; so also for any other person to use such 
false process. Maximum, seven years (sect. 28). 

Instruments made evidence by statute. Maximum, 
seven years (sect. 29). 

Court roll, or copy thereof, relating to copyhold 
estates (sect. 30). 

Certificates and other writings relating to the regis- 
try of deeds. Maximum, fourteen years (sect. 31). 

Summons, conviction, order, or warrant of magis- 
trates. Maximum, five years (sect. 32.) 

Name of Accountant-General of Chancery (a). Maxi- 
mum, fourteen years (sect. 33). 

Licence or certificate of marriage. Maximum, seven 
years (sect. 35). 

Eegister of births, baptism, deaths, marriages, 
burials (a), &c. (sect. 36.) 

Making false entries in copies of registers sent to 
registrars (sect. 87). 



Forgeries dealt In addition to the above-mentioned instruments, &c., 
with in other ^j^g forgery of which is dealt with in the Forgery Con- 
statutes. T n ■ » • n n V. 1 

solidation Act, there are other cases provided for by 
many statutes too numerous to notice. One or two of 
the more important are the following : — 

Stock certificates or coupons, &c., issued by the Bank 
of England for the payment of interest of national 
debt (33 & 34 Yict. c. 58, s. 3, v. also sect. 6). 

Inland Eevenue stamps (33 & 34 Yict. c. 98, s. 18). 

Election documents (35 & 36 Vict. c. 38, s. 3). 



(z) Now Paymaster-General, 35 & 36 Vict. c. 42, s. 12. 
(a) Destroying, injuring the above, and other offences connected with 
the same subject are also dealt with in this section. 



FOEGERX. 



253 



Trade-marks (25 & 26 Vict. c. 88 ; 38 & 39 Vict. 
c. 91) (b). 

Falsification of accounts by clerks, officers, servants, 
and other employees (38 & 39 Vict. c. 24) (e). 

Under Land Transfer and Declaration of Title Acts 
(25 & 26 Vict. c. 67 ; 38 & 39 Vict. c. 87) (d). 

So much for forgeries provided against by particular Forgery at 
statutes. Forgery at common law is a misdemeanor, '=°™™°° '*w. 
punishable by fine or imprisonment, o'r both. It is only 
in virtue of the particular statute that any forgery is 
made a felony; the facility with which certain forgeries 
can be perpetrated, and the dangerousness of their 
tendency, necessitating this course. Cases of forgery 
which have not been specially dealt with by statute 
are nevertheless crimes, and left to their punishment 
at common law ; for example, forging a testimonial to 
character in order to obtain an appointment (e). 

In viewing the crime generally, we shall have to 
treat of two classes of acts, each entailing the same 
consequences, and both usually appearing in different 
counts of the same indictment. 

i. The actual forgery. 

ii. The knowingly uttering the forged instrument. 

i. The Forgery. — As to the instrument itself. It The iastru- 
must have some apparent validity, that is, it must ™™'" 
purport on the face of it to be good and valid for the 
purpose for which it is created. So that a bill of ex- 
change which, for want of signature, is incomplete, 
cannot be the subject of forgery, because the defect is 

(6) V. p. 118. 
(o) V. p. 225. 

(d) V. p. 259. 

(e) S. V. Sharman, 23 L. J. (M.C.) 51. 



254 



FOBGERY. 



on the face of the instrument (/). But there need not 
be an exact resemblance; it will be sufficient if it 
is capable of deceiying persons of ordinary observa- 
tion {g). The forgery must be of some document or 
writing ; therefore the painting an artist's name in the 
corner of a picture, in order topass it off as an original 
picture by that artist, is not forgery Qi). 



Nature of the 
fabrication. 



As to -whsA, fabrication will constitute a forgery. — It 
need not be of the whole instrument. Very frequently 
the only false statement is the use of a name to which 
the defendant is not entitled. It does not matter 
whether the name wrongly applied be a real or a 
fictitious one (i). And a person may be guilty of 
forgery by making a false deed in his own name, as 
when a person has made a conveyance in fee of land to 
A., and afterwards makes a lease for 999 years of the 
same land to B. of a date prior to that of the convey- 
ance to A., for the purpose of defrauding A., the latter 
deed is a forgery (Ic). Even to make a mark in the 
name of another person, with intent to defraud that 
person, is forgery (J). Of course, the forgery need 
not be in the name ; it may equally be in some other 
part of the instrument. For example, it is forgery 
to fill in without authority a form of cheque already 
signed, with blanks left for the insertion of the 
sum (m). 



An alteration 
will suffice. 



Not only a fabrication, but even an alteration, how- 
ever slight, if material, will constitute a forgery ; for 
-example, making a lease oi the manor of Dale appear to 
be a lease of the manor of Sale by changing the D to 



(/) B. V. Pateman, E. & R. 455. 

ig) S. V. CoUicott, R. & R. 212. 

(A) B. V. Class, 27 L. J. (M.C.) 54. 

(0 B. V. Lockett, 1 Leach, 94. 

(k) B. V. Bilton, L. R. 1 C. C. R. 200 ; 39 L. J. (M.C.) 10. 

(l) B. V. Dunn, 1 Leach, 57. 

(m) Flower v. Shaw, 2 C. & K. 703. 



FOEGERY. 255 

S (n) ; mating a bill of exchange for £8 appear to be 
for £80 by adding a cipher (o). 

It must be proved that the alleged forgery was in- Evidence as to 
tended to represent the handwriting of the person "'^ w''''">g- 
whose handwriting it appears to be and is proved not 
to be, or that of a person who never existed. How is 
it to be proved that it is not the handwriting of the 
person of whom it purports to be ? The most natural 
evidence is the denial of such person on his being pro- 
duced as a witness. Even before the change in the 
law, which made interested parties competent witnesses, 
it was allowable to call as a witness the party whose 
writing had been forged (p). Whether he be or be not 
called as a witness, the handwriting may be proved not 
to be his by any person acquainted with his hand- 
writing, either from having seen him write, or from 
being in the habit of corresponding with him (q). It 
is also provided by statute that comparison of a dis- 
puted writing with any writing proved to the satisfac- 
tion of the judge to be genuine, may be made by 
witnesses ; and that such writings and the evidence of 
witnesses concerning the same may be submitted to the 
court and jury as evidence of the genuineness, or other- 
wise, of the writing in dispute (r). It appears not to 
be settled whether an expert may give evidence as to 
whether the writing is in a feigned hand from its 
appearance (s). It is sufficient to disprove the .hand- 
writing of the person, and he need not be called to 
disprove an authority to others to use his name ; cir- 
cumstances shewing guilty knowledge are enough (t). 

As to the intent to defraud. — It is not necessary to 



(ri) 1 Hawk. c. 70, s. 2. 

(o) B. V. Elsworth, 2 East, P. C. 986. 

Ip) 9 Geo. 4, c. 32. 

(}) V. p. 422. 

(r) 28 Vict. c. 18, s. 8. 

(s) See cases in Arch. 593 ; Rose. 175. 

(0 E. T. Hurley, 2 M. & RoB. 473. 



256 



FOEGEKY. 



The intent to prove an intent to defraud any particular person ; it 
will suffice to prove generally an intent to defraud (u). 
So it need not appear that the prisoner had any inten- 
tion ultimately to defraud the person whose signature 
he had forged, he having defrauded the. person to vyhom 
he uttered the instrument (x). But it is not necessary 
that any person should be actually defrauded, or that 
any person should be in a situation to be defrauded by 
the Act (y). 

The uttering. ii. The TJttermg. — In an indictment for forgery it is 
usual to add a second count, charging the, prisoner with 
knowingly uttering the forged instrument. So that if 
the prosecution fail to prove the actual forgery, the 
prisoner may be convicted of the uttering. 

Under the The words of the Consolidation Act, which deals 

tender will '^Hl^ all instruments in ordinary use, are, "offer, utter, 
suffice. dispose of, and put off." Therefore, in cases falling 

within that statute, it will suffice if there be a tender, 
or attempt to pass off the instrument ; there need not 
be an acceptance by the other. Where such accept- 
ance is requisite in order to constitute the crime, there 
must be other words describing the offence, such as 
"'pay, and put off" (a). 

Object of the It is an uttering if the forged instrument is used in 
''^"'^' any way so as to get money or credit by it, or by 
means of it, though it is produced to the other party, 
not for his acceptance, but for some other purpose ; for 
example, for inspection, as where the prisoner placed ^ 
forged receipt for poor-rates in the hands of the prose- 
cution, for the purpose of inspection only, in order, by 
representing himself as a person who had paid his poor- 



(m) s. 44. 

(a;) R. V. Trenfleld, 1 F. & F. 43. 
ly) E. V. Nash, 21 L. J. (M.C.) 147. 
(«) V. Arch. 598. 



FOEGEEY. 257 

rates, fraudulently to induce the other to advance 
money to a third person (a). It is immaterial that the 
uttering was only conditional. 



Of course the forged character of the instrument, Guilty know- 
ledge of ■" 
utterer. 



and the intent to defraud, must be proved, as on the J***"^ °^ ^^^ 
first count for the forgery. It will be also necessary 
to prove that the defendant knew the instrument to be 
forged. This point is not capable of direct proof, but 
will be presumed from the facts of the case; for 
example, on its appearing that the prisoner had in his 
possession other forged notes of the same kind. To 
prove the scienter or guilty knowledge, evidence may 
be given that the defendant has passed other forged 
notes, &c. ; and it has been decided that evidence may 
be given of a subsequent uttering, even though that 
subsequent uttering be made the subject of a distinct 
indictment (h). 

As we have already observed, the Forgery Consolida- 
tion Act deals with other offences of a kindred nature. 
Of these the following are the chief: — 

Belating to Exchequer Bills, Bonds, Debentures, &e. — Exchequer 
Making, or knowingly having, without lawful authority ?j|'jf; ^'^'lates 
or excuse, plates, or other implements in imitation of &c. 
those peculiarly used for manufacturing such bills, &c., 
is a felony, punishable by penal servitude to the extent 
of seven years (e). 

Making or having paper in imitation of that used for Making paper, 
such bills, &c., or taking any impression from any ^°' 
plate, &c., mentioned in the last section, is a felony, 
punishable in the same way {d). 

Purchasing, receiving, or having in possession, paper Purchasing, 

&c., paper or 
— — — ■ plates. 

(a) B: Y. Ion, 21 L. J. (M.C.) 166. 
(6) R. V. Aston, 1 Russ. 407. 
(o) s. 9. 
(d) s. 10. 



258 



FOEGEEY. 



or plates made by authority for the purpose of such 
bills, &c., is a misdemeanor, punishable by imprisonment 
not exceeding three years (e). 



Bank notes. Belatmg to Bank Notes. — The following acts done 
without lawful authority or excuse, relating to bank 
notes, are felonies, punishable by penal servitude to the 
extent of fourteen years : — 

Purchasing, Purchasing, receiving, or having in possession, forged 

ban'/nXs. ^^^^ ^^^^^ 0^ ^^"^^ ^i^^^' knowing the same to be 
forged (/). 

Making paper. Making or having moulds for making paper with 
the words " Bank of England " or " Bank of Ireland " 
visible on the substance, or with curved or waving bar 
lines, &c., or making, selling, &c., such paper {g). 



Engraving. 



Making 
moulds. 



Foreign notes, 
&c. 



Engraving on a plate, &c., any bank iTote, &c. ; or 
using or having in possession any such plate ; or utter- 
ing^ or having paper upon which a blank bank note, 
&c., is printed Qi). 

Engraving on a plate, &c., any word or device 
resembling any part of a bank note, &c. ; or using or 
having such plate, &c. ; or uttering or having paper 
on which there is an impression of any such words, 
&c. {i). 

Making or having moulds for making paper with 
the name of any bankers appearing on the substance ; 
making, selling, having, &c., such paper {h). 

Engraving plates, &c., for foreign bills or notes; 



(«) 5. 12 ; V. 29 & 30 Vict. c. 25, ss. 20, 21. What is criminal posses- 
sion for the purposes of the Consolidation Act is defined in s. 45. 
(J) =,. 13. 
(?) s. 14. 
(A) s. 16. 
{%) s. 17. 
(k) s. 18. 



FORGERY. 259 

using or haTing such plates; or uttering paper on 
which any part of such bill, &c., may be printed (l). 

There is another offence dealt with by the Forgery obtaining 
Act. With intent to defraud, to demand, obtain, or P™P"''y ''y 

1 ^ means of 

hare deliyered to any person, or to endeavour so to do, forged instru- 
any property by virtue of a forged instrument, know- "^°*" 
ing the same to be forged, is a felony, punishable by 
penal servitude to the extent of fourteen years (ot). 

False personation, the other main topic of the 
Forgery and False Personation Act, has already been 
treated of (w). 

FRAUDS AGAINST LAND TRANSFER, ETC., ACTS. 

Certain frauds against the Land Transfer Act, Frauds against 
1875 (o), are punishable, as misdemeanors, by imprison- j^^. ^*°^ ^^ 
ment not exceeding two years, or fine not exceeding 
£500 :— 

Suppressing or attempting to suppress, or being 
privy thereto, any document or fact, with intent to 
conceal the title or claim of any person, or to substan- 
tiate a false claim, in proceedings under the Act (ji). 

Procuring, attempting, or being privy to the procure- 
ment of any entry on the register, or any alteration or 
erasure therein (q). 

False declarations under the Act (r). 

Offences against the Declaration of Title Act, 1862 (s), against Decia- 
are the following :— ^^*[°° "^ ™^ 

Making, &c., material false statements, or representa- 

(0 s. 19. As to instruments for forging inland revenue stamps, v. 33 & 
34- Vict. 0. 98, s. 18 ; local stamps, 32 & 33 Vict. c. 49, ». 8. 
(m) s. 38. 
In) T. p. 234. 
(o) 38 & 39 Vict. c. 87. 
Ip) Ibid. s. 99. 
(?) Ibid. s. 100. 
(r) Ibid. s. 101. 
(s) 25 & 26 Vict. c. 67. 

S 2 



260 FOEGBRT. 

tions, or suppressing, &c., material documents, facts, or 
matters of information, is a misdemeanor, punishable by 
penal servitude not exceeding three years, or such fine 
as may be thought fit (t). 

Forging or altering certificates or other documents 
relating to land or title under this Act, or uttering 
such forged matter, knowing the same to be forged, is 
a felony, punishable by penal servitude to the extent of 
life (w). 

A person may not refuse in a civil proceeding under 
this Act to give evidence on the ground that the 
answer will tend to criminate him ; but such evidence 
may not be used against him in a criminal proceed- 
ing (»). 



(0 25 & 26 Vict. u. 67, s. 44. 
(m) Ibid. s. 45. 
(») Ibid. s. 47. 



( 261 ) 



CHAPTEE VI. 

INJUEIES TO PEOPEKTY. 

One of the Criminal Consolidation Acts, 1861 {y), deals ' 
with Arson and Malicious Injuries to Property (2). Of 
these offences the present chapter will treat. 

AESON. 

Arson is the malicious and wilful setting fire to any Arson. 
building. The term does not strictly comprise cases of 
setting fire to other things, such as corn, ships, &c. ; 
but it will be conyenient to treat here of them also. 

The statute in different sections deals with setting Buildings 

fire to * ^ enumerated. 

Churches, chapels, and other places of diyine wor- 
ship (s. 1). 

Dwelling-house, any person being therein (s. 2). 

House, stable, coach-house, out-house, warehouse, 
office, shop, mill, malt-house, hop-oast, barn, store- 
house, granary, hovel, shed, or farm, or any farm build- 
ing, or any building or erection used in farming land, 
or in carrying on any trade or manufacture, with intent 
thereby to injure or defraud any person (s. 3). 

Station, warehouse, or other building belonging to 
any railway, port, dock, or harbour, or any canal or 
other navigation (s. 4). 



(t/) 24 & 25 Vict. c. 97. 

(z) When merely a section is quoted in this chapter it must be under- 
stood to refer to that statute. 



262 INJURIES TO PROPEKTY. 

Public building, as described in the Act (s. 5). 

All these cases of arson are felonies, punishable by 
penal servitude to the extent of life. Arson in the 
case of any other building is punishable by penal ser- 
vitude to the extent of fourteen years (a). 

Besides these enactments with regard to setting fire 
to buildings, there are others dealing with the burning 
of other kinds of property. 

Setting fire to Setting fire to any matter or thing, being in, against, 
anything in, under any building, under such circumstances that, 

&c., a building. •' ? ■, n i «< n 

if the building were thereby set fire to, the offence would 
amount to felony, is a felony, punishable by penal ser- 
vitude to the extent of fourteen years (fo). So, also, is 
attempting by any overt act to set fire to a building, or 
to any matter or thing mentioned in the last section, 
under such circumstances that, if the same were set fire 
to, the offender would be guilty of felony (c). 

Crops. Corn, &c. — Setting fire to any cro^ of hay, grass, 

corn, grain, or pulse, or of any cultivated vegetable 
produce, whether standing or cut down, or to any part 
of any wood, -coppice, or plantation of trees, or to any 
heath, gorse, furze, or fern, wheresover the same may 
be growing, is a felony, punishable by penal servitude 
to the extent of fourteen years (d), 

stacks. Setting fire to any stadi of corn, grain, pulse, tar«s, 

hay, straw, haulm, stubble, or of any cultivated vegetable 
produce, or of furze, gorse, heath, fern, turf, peat, coals, 
charcoal, wood, or bark, or to any steer of wood or bark, 
is a felony, punishable by penal servitude to the extent 
of life (e). 

(a) s. 6. 
(6) 5. 7. 
(c) s. 8. 
\d) s. 16. 
(e) 5. 17. 



INJURIES TO PEOPEETT. 263 

Attempting, by any overt act, to set fire to anything Attempt to set 
mentioned in the last two sections under such circum- ^^^2° ^^°^^ "'' 
stances that, if the same were set fire to, the ofi'ender 
would be guilty of felony under either of those sections, 
is a felony, punishable by penal servitude to the extent 
of seven years (/). ■' 

Mines. — Setting fire to any mine of cannel coal. Mines. 
anthracite, or other mineral fuel, is a felony, punishable 
by penal servitude to the extent of life (ff). Attempt- 
ing to do the same under such circumstances, &c. (v. 
above) is a felony, punishable by penal servitude to the 
extent of fourteen years Qi). 

It would be advantageous to have a definition of 
arson which would comprise all the afore-mentioned 
cases of setting fire to property (i). 

We may notice here certain provisions as to destroy- ships, setting 
ing ships, seeing that the most usual mode is by burn- ^'^'^ '"> ^°- 
ing them : — 

Setting fire to, casting away, or in anywise destroy- 
ing, any ship or vessel, whether the same be complete 
or in an unfinished state, is a felony, punishable by 
penal servitude to the extent of life (A;). 

The next section proceeds to subject to the same 
punishment the commission of any of the acts men- 
tioned in sect. 42, specifying certain intents : " with 
intent thereby to prejudice any owner or part owner of 



(/) ■s. 18. 

(3) s. 26. 

(A) s. 27. 

(i) Sir James Stephen proposes the following: — "Arson is the ma- 
licious and unlawful setting fire to any real property (this would include 
all buildings, mines, and growing crops), or to any vegetable produce, 
stacked, or otherwise stored for use ; or to any personal property so con- 
nected with, or adjacent to, any real property, that, by setting fire thereto, 
such real property would be endangered." — Crim. Law, 144. 

{k) s. 42. 



264 mjUKiES TO pkopekty. 

such ship or vessel, or of any goods on hoard the same, 
or any person that has underwritten, or shall under- 
write any policy of insurance upon such ship or vessel, 
or on the freight thereof, or upon any goods on hoard 
the same." It is difl&cult to see the ohject of this 
section. The general provision of the preceding sec- 
tion renders it unnecessary in any case to allege or 
prove the particular intent, seeing that no additional 
punishment is awarded if the particular intent is 
charged. This does not seem unlike first forhidding 
the stealing of a horse, and then of a brown horse. 

Attempt to set An attempt hy any overt act to commit any deed 
ships."' "' mentioned in these two sections, under such circum- 
stances that it would be a felony if actually committed, 
is a felony, punishable by penal servitude to the extent . 
of fourteen years (T). 

Cases of setting It appears to stiU remain a felony, punishable with 
^uDishibie death, to set fire to any of Her Majesty's ships of 
with death. wttT (m) ; or works, or vessels in the docks of the Port 

of London (n) ; hut sentence may be recorded instead 

of being given openly. 

In viewing the crime generally we may notice 

i. The character, moral and physical, of the setting 
fire ;1 

ii. The intent to defraud or injure (when that is 
an essential of the crime). 

The setting i. The act must be done wnlawfuUy and malieiously, 

fire, the inten- — Therefore no mere negligence or mischance will 

amount thereto. But it is not necessary that the 

off'ence should be committed from malice (o) conceived 

(0 s. 44. 

(m) 12 Geo. 3, c. 24, s. 1. 

(») 39 Geo. 3, c. 69, s. 1. See also Naval Discipline Act, 29 & 30 Vict. 
c. 109, s. 34. 

(o) Here again the signification of malice as a motive, equivalent to ill- 



INJURIES TO PROPERTY. 265 

against tlie owner of the property (p). For example, 
if the accused, intending to set fire to the house of A., 
accidentally sets fire to the house of B., it is equally 
arson. Nor is it necessary that he should have had any 
intention of setting fire to anyone's house ; he will be 
guilty of arson, if, intending to commit some felony of 
an entirely dififerent nature, he accidentally sets fire to 
another's house (q). So, also, will he be guilty, if, by 
wilfully setting fire to his own house, he burns that of 
his neighbour. If the act is proved to have been done 
wilfully, it may be inferred to have been done mali- 
ciously, unless the contrary be proved (r). 

As to the " setting fire " from a physical point of The physical 
view, there must be an actual burning of some part, ^^^"'^• 
however trifling, of the house, &c. To support an 
indictment for setting fire to a house, it will not 
suffice merely to prove that something in the house 
was burnt (s). 

ii. The intent to injure or defraud. — When it is The intent to 
necessary to allege this, there is no need to allege an ^"•'f"^^'' 
intent to injure or defraud any particular person (i). 

When a person wilfully sets fire to the house of 
another, the intent to injure that person is inferred 
from the act. But if the setting fire is the result of 
accident, though the accused be engaged in the com- 
mission of some other felony, there can be no intent to 
defraud. 

It is specially declared in the Arson and Malicious 



will, seems to have been present to the minds of the legislators. On the 
other hand, " maliciously " is to be taken in the technical sense of " with 
criminal intention." 

(j3) s. 68. This section applies to all offences coming within the Arson 
and Malicious Injuries Act. 

(9) r. p. 16. 

(r) Bromage v.. Prosser, 4 B. & C. 247. 

(s) B. T. Bussett, C. & Mar. 541. 

(<) s. 60. This section also applies to the Act generally. 



266 



INJUKIBS TO PEOPEKTT. 



Injuries Act that its prorisions apply to every person 
who, with intent to injure or defraud any other per- 
son, does any of the acts made penal, although the 
offender be in possession of the property in respect of 
which such act is done (m). 



Malicious 
injury 



MALICIOUS rNJTTRY. 

Haying noticed one of the most dangerous forms of 
malicious injury — arson — it remains to consider others, 
which are dealt with in the same Act (as). It will be 
remembered that here " malicious " is to be taken in 
its technical signification. To bring them within the 
pale of the criminal law, all the acts which we shall 
notice must be done maliciously and wilfully. 

It will be well to classify the different kinds of 
malicious injury, and then to consider certain points 
which are common to them all. 



to houses, by 
explosive 
substance ; 



Houses, &e. — To destroy or damage a dwelling-house 
by the explosion of gunpowder or other explosive sub- 
stance, whereby the life of some person is endangered, 
is a felony, punishable by penal servitude to the extent 
of life {y). To place or throw gunpowder, &c., in, 
into, upon, under, against, or near any building, with 
intent to destroy the same, any machinery or goods, is 
a felony, punishable by penal servitude to the extent of 
fourteen years (z). 



to buildings, To riotously and with force demolish, or begin to 

m '^^°!'^'^' demolish, buildings, machinery, mine bridges, ways, 

&c., is a felony, punishable by penal servitude to the 

extent of life (a). If the offender does not proceed 



(m) s. 59. 

{x) 24 & 25 Vict. 

(y) s. 9. 

(x) s. 10. 
(a) s. 11. 



97. 



mJUEIES TO PEOPEBTT. 267 

further than to injure or damage the above, he is 
guilty of a misdemeanor, punishable by penal servitude 
to the extent of seven years (6). If indicted under the 
former section, the defendant may be found guilty of 
the offence set out in the latter. 

For a tenant holding a dwelling-house or other to buildings, 
building for any term of years or other less term, or at ^^ t™*its ; 
will, or after the termination of any tenancy, to de- 
molish or begin to demolish the building of which he 
is tenant, or to sever any fixture, is a misdemeanor, 
punishable by fine or imprisonment, or both (c). 

Manufactiires and Machinery (d). — To break, destroy, to manufac- 
or damage with intent to destroy, certain goods, viz., ^^chirier 
silk, woollen, linen, cotton, hair, mohair, or alpaca, in 
process of manufacture, or the machinery employed in 
the manufacture ; or (b) by force to enter any place in 
order to commit such offence, is felony, punishable by 
penal servitude to the extent of life (e). In the case 
of machines used in agricultural operations, or in any 
manufacture other than those mentioned above, the 
extent of the penal servitude is seven years (/). 

Mines (ff). — To cause water to be conveyed into a to mines ; 
mine with intent to destroy or damage the mine, or 
hinder the working; or (b) with like intent to ob- 
struct an air-way, water-way, shafts, &c., is a felony, 
punishable by penal servitude to the extent of seven 
years (A). 

Subject to the same punishment is the offence of 
destroying, damaging with intent to destroy, or ob- 



(6) s. 12. 

(c) s. 13. 

(d) See also ss. 11 & 12, p. 266. 

(e) s. 14. 
(/) s. 15. 

(g) See also ss. 11 & 12, p. 266. 
(A) s. 28. 



268 mjuKiES TO peopebty. 

struct the engines, erections, ways, ropes, &c., used in 
mines (*). 

to vessels ; Vessels (k). — To throw in, against, or near a ship or 

vessel, any gunpowder or other explosive substance, 
with intent to destroy the vegsel, machinery, working 
tools, goods, or chattels, although the explosion does 
not take place and no injury is effected, is a felony, 
punishable by penal servitude to the extent of fourteen 
years (I). To damage, otherwise than by fire, gun- 
powder, or other explosive substance, any vessel, com- 
plete or unfinished, with intent to destroy the same, or 
render it useless, is a felony, punishable by penal 
servitude to the extent of seven years (m). 

endangering To make, alter, or remove any light or signal, or to 
vessels ; exhibit any false light or signal, with intent to bring a 

vessel into danger ; or (b) to do anything tending to 
its immediate loss or destruction, is a felony, punish- 
able by penal servitude to the extent of life (w). In 
case of cutting away or otherwise interfering with any 
buoy, &c., used or intended for the guidance of seamen 
or the purpose of navigation, the extent of the penal 
servitude is seven years (o). 

to wrecks ; To destroy any part of a vessel in distress, wrecked, 

stranded, or cast on shore, or any article belonging to 
such ship, is a felony, punishable by penal servitude to 
the extent of fourteen years (p). 

to banks, &c. ; Sea and Biver Banhs, &c. — To break down, or other- 
wise damage, banks, dams, walls, &c., so that land or 
buildings are, or are in danger of being, overflowed ; or 



(i) s. 29. 

(A) See also ss. 42-44, p. 263. 

(0 ». 45. 

(m) s. 46. 

(ra) s. 47. 

(o) ». 48. 

(J) s. 49. 



mJUEIES TO PKOPEBTY. 269 

(b) to destroy any quay, wharf, jetty, look, sluice, tow- 
ing path, drain, or other work belonging to any port, 
harbour, dock, reserToir, navigable river, or canal, is a 
felony, punishable by penal servitude to the extent of 
life (q). To remove, &c., piles, &c., used for securing 
such banks, &o. ; or (b) to open floodgates or sluices, or 
do any other injury to a navigable river or canal, with 
intent and effect to interfere with the navigation, is 
a felony, the extent of the penal servitude for which is 
seven years (r). 

Bridges, Viaducts, and Aqueducts. — To destroy any to bridges, 
bridge, viaduct, or aqueduct, over or under which any ™ educts*" 
highway, railway, or canal passes ; or (b) .to do anything 
so as to render either the bridge, &c., or the railway, 
&c., dangerous or impassable, is a felony, punishable by 
penal servitude to the extent of life (s). 

Turnpikes. — To destroy the gates, toll-bars, chains, to turnpikes; 
or houses thereof, is a misdemeanor, punishable by fine 
or imprisonment, or both {t). 

It may be noticed here, that to destroy any fences, to walls, gates, 
walls, stiles, or gates, is punishable on summary con- °' ' 
viction (u). 

Railway Trains and Telegraphs. — To put anything to railway 
upon or across any railway, or to displace any rail, *"'*"'* ' 
sleeper, &c. ; or (b) to interfere with the points or 
signals ; or (c) to do anything with intent to obstruct, 
upset, or injure any engine, tender, carriage, or truck 
using the railway, is a felony, punishable by penal ser- 
vitude to the extent of life (x). 



(?) s. 30. 
(r) s. 31. 
(s) s. 38. 
(i) s. 34. 
(m) s. 25. 
(«) s. 35. 



270 



■INJURIES TO PBOPEKTY. 



to telegraphs ; 



to ponds and 
fish; 



to cattle ; 



to other 
animals ; 



By any unlawful act, or wilful omission or neglect, 
to obstruct any engine or carriage using the railway, 
is a misdemeanor, punishable by imprisonment not ex- 
ceeding two years («/). 

To injure anything used m or about the telegraph, 
or in the working thereof; or (b) to obstruct the send- 
ing of any message by such telegraph, is a misdemeanor, 
punishable by, imprisonment not exceeding two years. 
But the magistrates, instead of sending the case for 
trial, may summarily dispose of it, awarding imprison- 
ment not exceeding three months, or fine (z). To 
attempt by an overt act any of the offences included in 
the last section, is also visited with the same punish- 
ment on summary conviction (a). 

Ponds and Fish. — To destroy the dam, flood-gate, or 
sluice of a fish-pond, or private water, with intent to 
take or destroy, or with result to cause loss or destruc- 
tion of any of the fish ; or (b) to put in lime, or other 
noxious material, with intent to destroy the fish ; or (c) 
to destroy the dam or flood-gate of any mill-pond, 
reservoir, or pool, is a misdemeanor, punishable by 
penal servitude not exceeding seven years (b). 

Animals. — To kill, maim, or wound any cattle, is a 
felony, punishable by penal servitude not exceeding 
fourteen years (c). 

To kill, maim, or wound any dog, bird, or beast, or 
other animal, not being cattle, but being either the 
subject of larceny at common law, or being ordinarily 
kept in a state of confinement, or for any domestic 
purpose, is punishable on summary conviction, for the 



(y) s. 36. For certain grayer offences, v. p. 183. 

(0) s. 37. 

(a) s. 38. 

(6) s. 32. v. 36 & 37 Vict. c. 71, s. 13. 

(c) s. 40. 



INJUBIES TO PROPERTY. 271 

first offence, by imprisonment not exceeding six months, 
or penalty not exceeding £20 above the injury ; for the 
second offence, imprisonment not exceeding twelve 
months {d). 

Trees, Plants, &c. — To destroy or damage any tree, to trees, &c. ; 
sapling, shrub, or underwood, growing in any park, 
pleasure-ground, garden, orchard, or avenue, or in any 
ground adjoining, or belonging to, any dwelling-house, 
provided that the amount of the injury done exceeds 
the sum of £1, or if the tree, &c., is growing else- 
where, provided that the amount exceeds £5, is a felony, 
punishable by penal servitude to the extent of five 
years (e). If the injury amounts to the value of one 
shilling at least, wheresoever the tree, &c., is growing, 
the offence is punishable, on summary conviction, by 
imprisonment not exceeding three months, or fine not 
exceeding £5 above the amount of the injury ; for the 
second offence, imprisonment not exceeding twelve 
months ; the third offence is a misdemeanor, punishable 
by imprisonment not exceeding two years (/). 

To destroy, or damage with intent to destroy, any to plants, &c. ; 
plant, root, fruit, or vegetable production growing in 
any garden, orchard, nursery-ground, hot-house, green- 
house, or conservatory, is punishable, on summary con- 
viction, by imprisonment not exceeding six months, or 
penalty not exceeding £20 above the amount of the 
injury ; the second offence is a felony, punishable by 
penal servitude to the extent of five years {g). If the 
plant, &c., does not grow in such place, the offence is 
punishable, on summary conviction, by imprisonment to 
the extent of a month, or fine of twenty shillings ; for 
the second offence, imprisonment not exceeding six 
months (h). 

(d) s. 41. 

(e) ss. 20, 21. 
(/) s. 22. 

(9) =.. 23. 
(A) s. 24. 



272 INJUEIES TO PEOPEBTT, 

to hopbinds ; To ciit, or otherwise destroy any hopbinds growing on 
poles in any plantation of hops, is a felony, punishable 
by penal servitude to the extent of fourteen years (i). 

to works of Works of AH, &c. — To destroy or damage works of art, 

'^^ ' &o., in public museums, &&. j or (b) pictures, statues, 

monuments belonging to places of worship, public 
bodies, or in public places, is a misdemeanor, punish- 
able by imprisonment not exceeding six months (k). 

General Such are the particular cases provided for by the 

proTisi . statute ; but in addition to these there are the follow- 
ing general provisions : — 

Where the Whosoever Unlawfully and maliciously commits any 

iniury exceeds ■■ ■ . ., . i i 

£5_ ' damage, injury, or spoil to or upon any real or personal 

property, either of a public or private nature, for which 
no punishment has been provided in the Act, the 
damage, injury, or spoil being to an amount exceeding 
£5, is guilty of a misdemeanor, punishable by imprison- 
ment not exceeding two years. If the offence is com- 
mitted at night {i.e., between the hours of nine in the 
evening and six in the morning), the offender is liable 
to penal servitude to the extent of five years (Z). 

Where the And in cases where the damage does not exceed £5, 

iniury does not __ ...• -i , , . 

exceed £5. ^^J persou committing damage to any property may 
be summarily convicted before a magistrate, and 
punished by imprisonment not exceeding two months, 
or fine not exceeding £5, and also a further sum not 
exceeding £5 as compensation. But this section does 
not extend to any case where the party acted under a 
fair and reasonable supposition that he had a right to 
do the thing complained of, nor to any trespass, not 
being wilful or malicious, committed in hunting, fish- 
ing, or in the pursuit of game (m). 

(i) s. 19. 

(A) s. 39. 

(0 s. 51. V. B. V. Pembliton, L. R. 2 C. C. R. 119 ; 43 L. J. (M.C.) 91. 

(m) s. 52. 



INJUKIES TO PROPERTY. 273 

Making, or knowingly having in possession, any gun- Making or 
powder, or any dangerous or noxious thing, or any daIg°TOus or 
instrument or thing, with intent thereby, or by means noxious thing 
thereof, to commit any of the felonies mentioned in ^^ '° *" ' 
the Act, is a misdemeanor, punishable by imprisonment 
not exceeding two years («). 

Certain general rules are appended to apply gene- 
rally to all the offences dealt with in the Act : — 

It is not necessary to prove that the defendant was Particular 
actuated by malice against the owner of the pro- "g^ghew^^*^ ""^ 
perty (o). 

If a person, with intent to injure or defraud any No defence that 
other person; does any of the prohibited acts, it is no °8'ender was m 

i ' J -t ^ ' possession of 

defence that he (the offender) was in possession of the the property. 
property against, or in respect of which such act was 
done (p) ; as, for example, if a tailor or carrier wilfully 
and maliciously destroys goods intrusted to him. 

When it is necessary to allege an intent to injure or Proof of 
defraud, it is not necessary to allege in the indictment, fo arfraud'&c 
or prove at the trial, an intent to injure or defraud any win suffice. 
particular person j proof of a general intent to injure 
or defraud will suffice (q). 



(re) 5. 54. 
(o) s. 58. 
(p) s. 59. 
(7) 5. 60. 



( 274 ) 



BOOK III. 

Criminal Hating Considered the essentials of crime in general, 

proce ure. ^^^ examined the character of particular crimes, a 
second portion of the matter with which the Criminal 
Law is concerned now presents itself to our notice, 
namely, the proceedings, which have for their object 
the conyiction of the guilty and the discharge of the 
innocent. But before entering upon the subject of 
Criminal Procedure, it will be well to inquire what 
measures the law has adopted in order to render those 
proceedings as far as possible unnecessary; in other 
words, to treat of the PreTcntion of Offences. 



( 275 ) 



CHAPTEE I. 

PEEVENTION OF OFFENCES. 

Undek this head fall two classes of measures, differing Two classes of 
considerably in their nature. The first is applicable ^e^preVention 
chiefly in the case of those who have to some extent of ofTences. 
erred, but whom it is not deemed advisable to visit 
with punishment in the strict sense of the term. The 
second consists of general measures and provisions for 
the prevention of the commission or repetition of 
offences. 

A. The first mode of preventing offences may be Finding 
generally said to consist in obliging those persons, ^«<='""'"^'- 
whom there is probable ground to suspect of future 
misbehaviour, to stipulate with and give full assurance 
to the public that the offences which are apprehended 
shall not happen. This is effected by their finding 
pledges or securities, which are of two kinds : — 

i. For Keeping the Peace, ii. For Good Behaviour. 
But in the first place we shall go over the ground 
which is common to both. 



, zance. 



Of what does this "giving security" consist? The The recogni- 
person of whose conduct the law is apprehensive is ' 
bound, with or without one or more securities, in a 
recognizance or obligation to the Crown. This is taken 
by some court or by some judicial officer. The recog- 
nizance is of the nature following : — The person bound 
acknowledges himself to be indebted to the Crown in 
the sum specially ordered, with a condition that it 

T 2 



276 



PBEVENTION OP OFFENCES. 



Forfeiture. 



shall be void if lie appear in court (a) on such a day, 
and in the meantime keep the peace either generally 
towards the sovereign and his people, or particularly 
also with regard to the person who seeks the security. 
Or, as is more usual, the recognizance may he to keep 
the peace for a certain period, an appearance in court 
not being required. If it be for good behaviour — then 
on condition that he demean and behave himself well, 
either generally or specially, for the time therein 
limited, as for one or more years, or for life. If the 
condition of the recognizance is broken, in "the one case 
by any breach of the peace, in the other by any 
misbehaviour, the recognizance becomes forfeited or 
absolute. It is estreated, or extracted from the other 
records, and sent up to the Exchequer; the party and 
his sureties becoming the Crown's absolute debtors for 
the sums in which they are respectively bound (6). 



Who may 

demand 

securities. 



Who may be 
bound. 



By whom may these securities be demanded? By 
any justice of the peace, and also by certain others 
who are regarded as conservators of the peace; for 
example, the judges of the Queen's Bench Division, the 
coroner, sheriff, &c. They may demand the security 
at their own discretion, or at the request of a subject, 
upon his shewing due cause. If the magistrate is un- 
willing to grant it, it may be obtained by a mandatory 
writ, called a swpplicavit, which will compel him to act 
as a ministerial and not as a judicial officer. But this 
writ is seldom used ; for when application is made to 
the superior courts, they usually take the recognizance 
there, as they are empowered to do by statute (c). 

Any person under the degree of nobility may be 
bound over either by a justice or at the quarter ses- 
sions. Wives may demand security against their hus- 



(o) V. Arch. Q. S. 269. 

(6) 4 Bl. 252. 

(c) V. 21 Jac. 1, c. 8. 



PREVENTION OF OFFENCES. 277 

bands, and vice versa. Infants may demand security, 
and may be compelled to find security by their next 
friend. 

The proceedings are the following in case of secu- 
rities granted (a) by a justice out of sessions ; (b) at 
the sessions. 

(a.) If no sessions are sitting, the person requiring Proceedings 
immediate security goes before a justice, and on oath j^^"". * "^S's- 
makes his complaint, which is usually, though not 
necessarily, in writing. If the person complained of 
is present, he may be required at once to enter into 
the required recognizance ; but if not present, the 
magistrate issues a warrant to bring him before him- 
self or some other magistrate. The warrant is exe- 
cuted by -the person to whom it is directed. If the 
delinquent refuses to go before the magistrate, he may 
be put into prison without any further warrant. "When 
he comes before the magistrate, he must offer sureties, or 
else he may be committed to prison for a term not 
exceeding twelve months (d). The form of the recog- 
nizance is chiefly in the discretion of the magistrate, 
both as to the number and the sufficiency of the sure- 
ties, the largeness of the sum, and the time for which 
the party shall be bound. 

(b.) By the sessions. Application may be made by at sessions. 
the party requiring security at once to the sessions. 
And this is the more usual course. It should be made 
upon articles verified on oath, shewing the facts to 
warrant it. If the person refuses, or is not prepared 
to enter into the recognizance, he may be committed. 

So far the two kinds of security are on the same 
footing. They must now be considered separately. 



(rf) 16 & 17 Vict. u. 30, ». 3. 



278 



PBEYENTION OP OFFENCES. 



Security for 
keeping the 
peace — gene- 
rally ; ■ 



specially. 



i. For the Peace. — This may be granted (a) gene- 
rally, on public grounds. Any justice may demand secu- 
rities from the following : those who in his presence 
make an affray, or threaten to kill or beat one another ; 
or who contend together with hot and angry words ; 
or go about with unusual weapons or attendance to the 
terror of the people ; also common barrators (e) ; and 
those who, haying been bound to the peace, have 
forfeited their recognizances by breaking it (/). 
(b) Specially, by demand of a private person (" swear- 
ing the peace " against another). This security may be 
demanded by a person when he fears that another will 
kill him, his wife or child, or do him other corporal 
injury ; or will burn his house ; or will procure others 
so to do. The fear must arise from a threat, though 
that threat need not be expressed in words. The 
magistrate is required to grant the security if the 
applicant swears that he is in fear of death or bodily 
harm, and shews that there is ground for his fear ; and 
swears that he is not acting out of malice or for mere 
vexation {g). 



Forfeiture. The recognizance is forfeited (a) if general, by any 

unlawful action which is or tends to a breach of the 
peace ; (b) if special, by any actual violence, or even 
terror or menace, to the person of the complainant, 
whether it be committed directly or indirectly by the 
person bound; (c) by default of appearance at the 
proper time, unless there be a valid excuse (h). A mere 
civil trespass, or words of anger not amounting to a 
challenge to fight, will not cause a forfeiture. 



Security for 
good beha- 
viour. 



ii. For Good Behaviour or Abearance. — This in- 
cludes a surety for keeping the peace and something 
more. A magistrate may bind over to good behaviour 



(c) V. p. 90. 

(/) 4 Bl. 254. 

(g) 4 Bl. 255. 

(A) V. 16 & 17 Vict. 0. 30, s. 2. 



PREVENTION OF OFFENCES. 279 

all those that he not of good fame. This general term 
includes not only those who act contra pacem, but also 
those who act contra lonos mores. It will comprise the 
following, among others (i) : — rioters, barrators ; those 
maintaining or constantly resorting to barrators ; sus- 
pected persons who cannot give good account of them- 
selves; those who are likely to commit any crime; 
drunkards ; cheats ; vagabonds, &c. (k). 

This kind of recognizance may be forfeited for the Forfeiture, 
same reasons as the former, and for others also, as by 
committing any of those acts of misbehaviour which 
the recognizance was intended to prevent, though there 
be no actual breach of the peace ; but not by barely 
giving fresh cause of suspicion. 

Security may be required in two classes of cases : Security either 
(a) where no actual crime has been committed ; (b) where ha''s''or\as™ot 
the party of whom security is taken has been convicted teen oom- 
of some crime. In the latter case, if punishment is ™'"° " 
awarded, the court of summary jurisdiction may order 
the offender, at the expiration of his term of punish- 
ment, or if the punishment consists of a fine, at once to 
•enter into a recognizance to keep the peace, or for good 
behaviour. Or again, instead of awarding any punish- 
ment, the court may order the defendant to enter into 
such recognizance. In certain cases where the defend- Criminal 
ant has been convicted of an indictable offence, namely, Consolidation' 
of an indictable offence punishable under one of the 
Criminal Consolidation Acts, 1861, he may be required 
to enter into his own recognizances and find sureties. 
In each of these Acts there is inserted a clause to the 
following effect : — On conviction of an indictable mis- 
demeanor punishable under one of those Acts, the court 
may, if it think fit, in addition to or in lieu of any 
of the punishments authorized in the Act, fine the 



(i) V. Burn's, 759 
(A) Dalton, c. 124. 



280 



PREVENTION OF OFFENCES. 



General 

measures for 
prevention of 



offender, and require him to enter into his own recogni- 
zances and to find sureties, both or either, for keeping 
the peace and being of good behaviour. And in case 
of any felony punishable under one of those Acts, the 
court may require the offender to enter into his own 
recognizances and to find sureties, both or either, for 
keeping the peace, in addition to any punishment 
authorized by the Act. But no person is to be im- 
prisoned under this clause for not finding sureties for 
any period exceeding one year {I). 

B. We have now to consider certain general measures 
for the prevention of the commission of crimes, or their 
repetition. Provisions having this object in view are 
contained in an Act for the more effectual Prevention 
of Crime (m). This statute deals with a variety of 
matters (the design of which principally is to prevent 
the repetition of crime), which may be thus classified : — 

i. As to holders of licences under the Penal Servi- 
tude Acts. — If, on their being brought by a constable 
before a court of summary jurisdiction, it appears that 
they are getting their living by dishonest means, their 
licences are forfeited. They are also punished on the 
breach of certain conditions. They are required to 
notify their residence to the police within forty eight 
hours of their arrival in any place (»). 

Identification ii. Identification of persons who have been convicted.. 

o en ers. — -p^^ provision is made for keeping the register of 
prisoners and making returns to the Home Secretary 
in England, the Lord Lieutenant in Ireland. The 
same authorities may make regulations for photograph- 
ing prisoners (o). 



Holders of 
licences. 



(0 24 & 25 Vict. c. 96, s. 117 ; c. 97, s. 73 ; t. 98, s. 51 ; u. 99, s. 38; 
.;. 100, s. 71. 

(m) 34 & 35 Vict. c. 112. 
(n) Ibid. ss. 3-5. v. p. 455. 
(o) Ibid. 5. 6. 



PREVENTION OF OFFENCES. 



281 



iii. Persons who have been twice convicted of crime Offences by 
mav be punished in certain cases, within seven years 'iiose who 

„T, ..,. . T have been 

from the last conviction, by imprisonment not exceeding twice con- 
one year, e.^., for appearing to obtain their livelihood ^"''^'^■ 
by dishonest means, refusing to give their names when 
asked by a court of summary jurisdiction. They may 
be subjected to police supervision for seven years or 
less (p). 

iv. Penalties are prescribed for harbouring thieves, Acts conduc- 
assaulting the police, purchasing less than specified '"^ ''"^''""^' 
quantities of old metal, &c. (^). 

V. Power is given to constables authorized by a Search for 
chief of&cer of the police to enter houses, &c., to search *'°'^'' , 

^ ' ' property. 

for stolen property in premises which, within the last 
twelve months, have been in the occupation of persons 
who have been convicted of receiving stolen property, 
or harbouring thieves ; or are in occupation of persons 
who have been convicted of offences involving fraud or 
dishonesty and punishable by penal servitude or im- 
prisonment (r). 

vi. At a trial for receiving stolen goods certain evi- Evidence in 
dence, not usually allowed, may be given (s). *"*l *!"^ 

' ■' ' J o \ / receiving. 

(j>) 34 & 35 Vict. u. 112, ss. 7, 8. 

(if) Ibid. ss. 10-13. 

(r) Ibid. s. 16. 

(s) Ibid. s. 19. V. p. 217. 



( 282 ) 



CHAPTEE II. 

COURTS OP A CRIMINAL JURISDICTION. 

Courts dealing In this chapter we shall treat of courts taking cog- 
with indictable njaance of indictable crimes, reserving for a subse- 

crimes. . , . „ „ 

quent chapter the consideration of courts oi a summary 
jurisdiction (t). These courts are either of general, or 
of local and special jurisdiction. We are concerned 
chiefly with the former, and to them we now turn, and 
notice the several tribunals as far as possible in the 
order of their dignity. 

THE HIGH COUKT OF PABLIAMENT. 

Court of This assembly proceeds to the punishment of offenders 

ar lamen . either in a legislative or a, judicial capacity. 

Bills of When acting in the former of these capacities it 

pains°and°'^° caunot strictly be termed a court. It does not then 
penalties. git to execute existing laws, but to make new ones. 
The occasions when its legislative functions are exer- 
cised to punish offenders are when hiUs of attainder or 
hills of pains and penalties are passed to punish par- 
ticular persons for treason or felony, beyond and 
contrary to the common law, to serve a special pur- 
pose. They pass through the same stages as any 
other bill, though usually commencing with the Lords. 

When sitting in a Judicial capacity the jurisdiction 



(t) V. p. 458. As to Court of Crown Cases Reserved, v. p. 450. 



COUBXS OF A CBIMINAL JURISDICTION. 283 

of this, the highest court of the kingdom, is exercised 
in one of two modes : — 

i. Impeachment. 

ii. Indictment. 

i. Impeachment before the Lords by the Commons.— impeachment. 
The Commons act as prosecutors, inasmuch as it is the 
people, whom they represent, who are injured ; the 
Lords form the tribunal. In place of an ordinary bill of 
indictment the charge against the offender is contained 
in the articles of impeachment. A peer may be im- 
peached for any crime ; a commoner may be impeached, 
at any rate for a misdemeanor, and, according to the 
better authorities, for any crime (w). 

It should be remembered that it was provided by Pardon cannot 
the Act of Settlement that no pardon under the Great j'^P^achment 
Seal is pleadable to an impeachment by the Commons 
in Parliament. That is, the proceedings cannot be 
suppressed by the Sorereign interfering with a pardon ; 
though, when the matter has been inquired into, and 
judgment given, he may then exercise his royal pre- 
rogatiye of pardon. The proceedings on an impeach- 
ment are not brought to a termination by the proroga- 
tion or dissolution of Parliament (x). 

The proceedings are shortly the following (y). A Proceedings on 
member of the House of Commons charges the accused ™P«achment. 
with the offence, and moves that he be impeached. On 
the House agreeing, the member is sent up to the bar 
of the House of Lords to impeach the accused in the 
name of the House of Commons and the Commons of 
the United Kingdom. A committee is appointed to 
draw up articles, which, on being agreed to, are de- 



(u) May, 658. 

(ic) V. 26 Geo. 3, c. 96; 45 Geo. 3, c. 125, 

(y) May, 660. 



284 



COURTS OF A CRIMINAL JURISDICTION. 



liyered to the Lords. The accused makes answer to 
these articles, and to his answer, which is commnni- 
cated by the Lords to the -Gommons, replication, if 
necessary, is returned. The Lords then appoint a day 
for trial, the accused meanwhile being retained in 
custody, unless admitted to bail by the House of Lords. 
The Commons desire the Lords to summon witnesses, 
and they (the Commons) appoint managers to conduct 
The trial. the proceedings. The trial usually takes place in 
Westminster Hall, under the presidency of the Lord 
High Steward. But in cases other than impeachment 
of peers for high treason the Lord Chancellor or Lord 
Speaker presides. The president is not a judge, but 
only chairman, and has a vote with the rest in right of 
his peerage. The collective body of peers are the 
judges both of law and of fact. The Commons attend 
with the managers as a committee of the whole house. 
When the managers have made their charge they 
adduce evidence ; and as to this, though a doubt was 
raised on the trial of Warren Hastings whether the 
Lords were bound by the same rules of evidence which 
prevail in ordinary criminal tribunals, that they are so 
bound is now established. The accused, who may be 
defended by counsel, answers the charge, and the 
managers reply. The president then puts to each 
peer, beginning with the junior baron, the question 
upon the first article, whether the accused be guilty of 
the crime charged therein. The peers in succession 
rise in their places when the question is put, and 
standing uncovered, and laying their right hands upon 
their breast, answer " Gruilty," or " Not guilty, upon 
my honour." Each article is proceeded with separately ; 
the president giving his opinion last. The numbers 
being ascertained, are delivered by the president. The 
Commons demand judgment, and this is pronounced 
by the president. 

Indictment. ii. Indictment before the House of Peers. — In this court 

are tried peers and peeresses against whom an indictment 



COURTS OF A CRIMINAL JURISDICTION. 285 

for treason or felony, or for misprision of either, is found 
during a session of Parliament. Tlie indictment, that 
is, a true bill, is found in the ordinary way by a grand 
jury in the Queen's Bench Division, or at the assizes ; 
the indictment being removed to the House of Peers 
by writ of certiorari (z). The peer may plead a pardon 
before the Queen's Bench Division, so as to avoid the 
trouble of appointing a high steward, &c., merely to 
receive that plea ; but no other plea, as " guilty " or 
" not guilty," can be pleaded in the inferior court. 

The court is presided over by a Lord High Steward, The trial. 
appointed by commission under the great seal. He 
is not a judge, hut chairman, and votes with the other 
peers. The privilege of being tried by this court 
depends upon nobility of blood, rather than upon the 
right to a seat in the House, as will appear from the 
considerations following. This kind of trial might 
have been claimed by a popish peer at a time when he 
was incapable of sitting in the House ; by a peer 
under age ; by Scotch and Irish peers, though they be 
no representative ; by females, namely, peeresses by 
birth, and those by marriage, unless when dowagers 
they have disparaged themselves by taking a com- 
moner for a second husband {a). Also the bishops are 
not tried in this court, but in courts which have juris- 
diction over commoners. As to the right of bishops to 
to take part in the trials in the House of Peers, a resolu- 
tion of the House in Danby's case has ever since been 
adhered to, " that the lords spiritual have a right to 
stay and sit in court in capital cases till the court pro- 
ceeds to the vote of guilty or not guilty " (h). They then 
retire voluntarily, but not without entering a protest 
declaring their right to stay. 



(«) T. p. 351. 
(a) 4 Bl. 265. 
(6) Lords' Journal, May 15th, 1679. 



286 COURTS OF A CRIMINAL JURISDICTION. 

COURT OF THE LORD HIGH STEWARD OF GREAT 
BRITAIN. 

Court of Lord The trial by the House of Peers, as we have seen, 

High Steward. ^^^ ^^jy ^g ^^^A during the sitting of Parliament. 

During a recess this court»takes its place. 

The trial. Here, Unlike the former tribunal, the Lord Steward 

is not merely chairman of the court, giving his vote 
with the rest. He is judge of matters of law, as the 
Lords triors are of matters of fact. Therefore, as a 
judge, he has no right to vote. A commission under 
the great seal confers the office of Lord High Steward 
for the particular occasion on some member of the 
House of Lords. When the indictment has been found, 
and removed by writ of certiorari, the steward directs 
a precept to the serjeant-at-arms to summon the Lords 
to attend the trial. In cases of treason, or misprision 
thereof, there must be summoned all the peers who 
have a right to sit and vote in Parliament (c). The 
decision is by the majority, which must consist of 
twelve at the least. Bishops cannot be summoned to 
this court, nor have they the right of being tried there. 

queen's bench DIVISION OF THE HIGH COURT. 

Queen's Bench This court has jurisdiction both in criminal and in 
Division. ^|.yjj ^g^ggg . ^jjg former on the Crown side, the latter on 

the Plea side. On the Crown side it takes cognizance 
of criminal causes from high treason down to the most 
trivial misdemeanor or breach of the peace. But its 
criminal jurisdiction is rarely exercised, unless the cir- 
cumstances of the case are of an extraordinary cha- 
racter and demand an investigation which could not be 
had in the ordinary course of things. 

Original Its original jurisdiction includes all offences com- 

jurisdiction. 

(o) 7 & 8 Wm. 3, u. 3, s. H. 



287 



COURTS OF A CRIMINAL JURISDICTION. 

mitted in Middlesex, which may be prosecuted in this 
court by indictment ; and misdemeanors committed in 
any county of England may be prosecuted herein by 
information filed by the Attorney-General ex officio, or 
at the instance of a private individual prosecuting in 
the Crown Office by leave of the court. But this juris- 
diction is very rarely exercised ; crimes committed in 
Middlesex being tried at the Central Criminal Court. 
The grand jury are summoned only when the Master 
of the Crown Office has received due notice of some 
■business to be brought before the court (d). 

Its transferred jurisdiction is much more extensive. Transferred 
To it indictments from all inferior courts may be re- J'»i''»<i"=tion. 
moved by writ of certiorari ; but (unless it be an in- 
dictment against a body corporate not authorized to 
appear by attorney in the court in which the indict- 
ment is preferred, or unless it be at the instance of 
the Attorney-General acting on behalf of the Crown) 
only under one of the following circumstances : that 
it has been made clear by the party applying for the 
writ to the court from which the writ is to issue 
{i.e., the Queen's Bench), (a) that a fair and impartial 
trial cannot be had in the court below ; or (b) that 
some question of law of more than usual difficulty and 
importance is likely to arise upon the trial ; or (c) that 
a view of the premises in respect whereof any indict- 
ment is preferred, or a special jury, may be required 
for the satisfactory trial of the same (e). And the 
same statute, still further to prevent the vexatious re- 
moval of indictments into the Queen's Bench, enacts 
that no certiorari is to issue to remove an indictment 
unless recognizances be given for the payment of 
costs in case of failure by the party applying for the 
removal (/). 



(d) 35 & 36 Vict. u. 52. 
(c) 16 & 17 Vict. u. 30, s. 4. 
(/) Ibid. 5. 5. 



288 



COURTS OF A OEIMINAL JURISDICTION. 



Trial at bar or 
at nisi prius. 



Inferior courts 
superseded by 
the Queen's 
Bench. 



As to the mode of trial in this court. In cases of 
felony or treason the trial is at bar, that is, before the 
judges of the court sitting in banc. In misdemeanors 
the trial, if of sufficient importance, is at bar ; other- 
wise at nisi prius. There are certain differences, ac- 
cording as the trial is in the one or the other way ; 
but into these we need not enter. The Queen's Bench 
Diyision is empowered to order certain offenders to be 
tried at the Central Criminal Court ((/). 

On account of the dignity of the Queen's Bench 
Division, as the highest court of criminal jurisdiction 
over ordinary offenders, if that court comes into any 
county Qi), all former commissions of oyer and ter- 
miner and general gaol delivery are at once if so facto 
absorbed and determined. But this does not apply to 
the Central Criminal Court, which is held without 
regard to whether the Queen's Bench Division is 
sitting or not («) ; nor does it apply to the Middlesex 
Sessions {j). 

The tribunals hitherto noticed, as a rule, exercise 
their jurisdiction irrespective of place ; those to which 
we now turn are general but local, that is, found all 
over the kingdom, but each attached to a particular 
district ik). 



(g) 19 Vict. c. 16. 

(A) As it was removed to Oxford on account of the plague of 1665. 

(i) 25 Geo. 3, c. 18 ; 32 Geo. 3, o. 48. 

(J) This court, however, is not in strictness a court of oyer and 
terminer. — Hal. Sum. 165. 

{k) Formerly the High Court of Admiralty (now with another court 
forming the Probate, Divorce, and Admiralty Division of the High Court) 
had a limited criminal jurisdiction. But such jurisdicdon seems to have 
been altogether superseded by certain statutes, chiefly the following : 
4 & 5 Wm. 4, c. 36, s. 22. When the Central Criminal Court was con- 
stituted, the judge of the Admiralty Court was placed amongst its judges ; 
and it was provided that under the Central Criminal Court commission 
of oyer and terminer and gaol delivery, two or more judges of that court 
might hear and determine any offences committed on the high seas and 
other places within the jurisdiction of the Admiralty ; and might deliver 
the gaol of that court of any person detained therein for such offence. 

7 & 8 Vict. c. 2. Similar power was given to the justices of assize. 

Each of the Criminal Consolidation Acts, 1861, contains a clause to the 



COURTS OF A CEIMINAL JURISDICTION. 289 



ASSIZES. 

The heading we have just prefixed to a description Assizes, where 

and w' 
held. 



of this class of tribunals is the popular, but not the *°^ ™^'^*'' 



technical, designation of the courts of Oyer and Ter- 
miner and General Gaol Delivery, which are periodically 
held in every county in the kingdom. We may anti- 
cipate by noticing that for ofifenoes committed in Lon- 
don, Middlesex, and certain suburbs in Essex, Kent, 
and Surrey, the Central Criminal Court has been estab- 
lished ; and that, though assizes have been abolished 
for the rest of Surrey, judges have been sent there in 
virtue of a special commission. The assizes are held 
twice in the year, at least, in each county, namely, in 
the spring and summer; and in some places in the 
winter also (I). 

For the-purposes of the assizes the country is divided circuits. 
into eight circuits, over each of which the judges travel, 
holding courts at all the county and other assize towns. 
In the spring and summer two judges are assigned to 
each circuit, except the Welsh circuits, to which only 
one is sent, the judges of the two Welsh circuits meet- 
ing and sitting together in the counties of Cheshire 
and Glamorgan. In the winter the arrangements are 



effect that all indictable offences included in those acts, which have been 
committed within the Admiralty jurisdiction, are to be deemed to be 
oiFences of the same nature, and liable to the same punishment as if they 
had been committed on land in England or Ireland ; and may be dealt with 
and tried in any place in which the offender is apprehended or is in 
custody : c. 96, s. 115 ; c. 97, s. 72 ; c. 98, s. 50 ; c. 99, s. 36 ; c. 100, s. 68 ; 
see also c. 94, s. 9. 

It should be remembered that the courts in the colonies have also cog- 
nizance of offences committed within the Admiralty jurisdiction : v. 6 & 7 
Vict, c. 94; 12 & 13 Vict. .;. 96 ; 18 & 19 Vict. u. 9], ». 21. 

(V) The places which have usually had winter assizes are the follow- 
ing :— Chelmsford, Lewes, Maidstone, Warwick, Derby, Lincoln, Leeds, 
Leicester, Durham, Newcastle, Carlisle, Manchester, Liverpool, Gloucester, 
and Cardiff. But by a recent Act (39 & 40 Vict. c. 57) power is given to 
the Queen by order in council to unite counties for the purpose of the 
Winter Assizes, and to appoint places of trial, &c. This course was adopted 
for the first time in the winter of 1876. 



290 COURTS OF A CRIMINAL JURISDICTION. 

irregular. The circuits as at present constituted are 
the following : — 

i. Northern (Westmoreland, Cumherland, and Lan- 
caster). 

ii. North-Eastern (Northumberland, Durham, and 
York). 

iii. Midland (Lincoln, Derby, Nottingham, "Warwick, 
Leicester, Northampton, Eutland, Buckingham, and 
Bedford). 

iv. South -Eastern (Norfolk, Suffolk, Huntingdon, 
Cambridge, Hertford, Essex, Kent, and Sussex). 

V. Oxford (Berkshire, Oxford, Worcester, Stafford, 
Salop, Hereford, Monmouth, and Gloucester). 

vi. Western (Hants, Wilts, Dorset, Devon, Corn- 
wall and Somerset), 

vii. North Wales and Chester (Montgomery, Merio- 
neth, Carnarvon, Anglesey, Denbigh, Flint, and Ches- 
ter) (m). 

viii. South Wales (Pembroke, Cardigan, Carmarthen, 
Brecknock, Eadnor, and Glamorgan) (w). 

Commissions It will bc Well to explain in virtue of what authority 
nndev which ^]^g judgcs preside at the assizes, as there is commonly 
e ju ges SI . ^ misconception in the matter. This authority is 
fourfold, consisting of the following commissions: — 
(a.) Of Oyer and Terminer. This commission, empower- 
ing to try treasons, felonies, and misdemeanors, is 
directed to certain judges and others. But only the 
judges, serjeants-at-law. Queen's counsel, and barristers 
with patents of precedence are of the quorum ; so that 
the others cannot act without the presence of one of 
them. Under this commission persons may be tried 



(m) V. supra. 
(n) V. supra. 



COUBTS OF A CRIMINAL JURISDICTION. 291 

whether in custody or on bail ; but as the words of the 
commission are " to inquire, hear and determine," they 
can only proceed upon an indictment found at the same 
assizes ; for they must first inquire by means Of the 
grand jury before they are empowered to hear and 
determine by the help of the petty jury. Therefore, a 
further commission is necessary (o). (b.) Of Gaol 
Delivery, directed to the judges, Serjeants and Queen's 
counsel, the clerk of the assize and associate, empower- 
ing them to try every prisoner in the gaol committed 
for any offence whatever, so that the gaols may be 
cleared of those awaiting trial, (c.) Of Nisi Prius (for 
the trial of civil causes), (d.) Of the Peaee, by which 
all justices are bound, under pain of fine, upon notice 
to attend the judges, and to assist them, if required, in 
such matters as lie within their knowledge and juris- 
diction, for example, to return recognizances, &c. ( p). 

It will be noticed that the judges do not sit in virtue 
of their position as judges of the High Court at West- 
minster; but} as commissioners specially sent down. 

When the state of business requires it, they are often Commissioners, 
assisted by Queen's counsel or Serjeants, so that some- 
times as many as four or five commissioners are sitting 
at the same time (q). 

In this way there is a general clearance of prisoners 



(o) V. 4 Bl. 270. 

{p) i Bl. 278. 

(g) It is provided by the Supreme Court of Judicature Act, 1873 (36 & 
37 Vict. c. 66, s. 37), that the sittings of the Judges of the High Court 
under commissions of assize, oyer and terminer, and gaol delivery, shall 
be held by or before judges of the Queen's Bench, Common Pleas, or 
Exchequer Divisions of the High Court; provided that the Queen may 
include in such commission any ordinary judge of the Court of Appeal, or 
any judge of the Chancery Division to be appointed after the commence- 
ment of the Act, or any Serjeant at law, or any Queen's counsel, who shall 
then have the power, authority, and jurisdiction of a judge of the said 
High Court. By the Act of 1875 (38 & 39 Vict. c. 77, s. 8), future judges 
of the Probate, Divorce, and Admiralty Division are to share in this work, 
Se« also s. 29 of the Act of 1873, and 13 & 14 Vict. c. 25. 

u 2 



292 COURTS OF A CRIMINAL JURISDICTION. 

awaiting their trial at least twice (practically, now, 
three times) a year. On urgent occasions, as of offences 
demanding immediate inquiry and punishment, the 
sovereign issues a special or extraordinary commission 
of oyer and terminer and gaol delivery for the special 
trial of such offences, and those only. The proceedings 
are generally the same as on ordinary commissions. 



CENTRAL CRIMINAL COURT. 

Central Cvimi- This court has generally the same jurisdiction as the 
nal Court. assizes. It was established in 1834 for the trial of 
treasons, felonies and misdemeanors, committed within 
the city of London and county of Middlesex, and in 
certain specified parts of the counties of Essex, Kent, 
and Surrey; such district for this purpose being re- 
garded as one county (r). The judges sit under com- 
missions of oyer and terminer and gaol delivery. The 
sessions of the court are required to be holden at least 
twelve times a year, and oftener if need be ; the par- 
ticular dates being fixed each year at a meeting of the 
judges. 



The commis- 
sioners. 



The commissioners or judges of the court are the 
Lord Mayor, Lord Chancellor or Lord Keeper, the 
Judges of the High Court (except those who were not 
in office, and not liable before the commencement of the 
Judicature Act) (s), the Dean of the Arches, the Aldermen 
of London, the Kecorder and Common Serjeant of Lon- 
don, the Judge of the City of London court, any person 
who has been Lord Chancellor, Lord Keeper, or a Judge 
of the High Court, and such others as the Crown from 
time to time may appoint. Usually at each session the 
recorder and common Serjeant, and if the number of 
prisoners requires it, the judge of the City of London 
court, sit on the first two days ; after which they are 



(r) i&5 Wm. 4, c. 36. 

(s) 36 & 37 Vict. 0. 66, =,. H. 



COURTS OP A CRIMINAL JURISDICTION. 293 

joined by the Westminster judges on the rota, who 
come down to try the more serious cases. On the bench 
there is also always either the lord mayor or one of 
the aldermen, who lends the" dignity of his presence to 
the proceedings, but does not take any actiye part 
therein. 

We have already seen (t) that offences committed Cases which 
within the jurisdiction of the Admiralty may be tried ™Yhe Ce™* 
here ; also that certain cases may be sent by the Queen's tral Criminal 
Bench Division to this court (u). Here also may be °^^ ' 
tried persons subject to the Mutiny Acts for the murder 
or manslaughter in England or Wales of any person 
subject to those Acts (x). 

The Central Criminal Court has also a transferred Its transferred 
jurisdiction. Indictments found at the various sessions •'""^ "'*"'°' 
of the peace within the district of its jurisdiction may 
be removed to it by certiorari (y), and justices of the 
peace may deliver over indictments found at the 
sessions to this court, as to the judges on circuit (2). 



The sitting of the Central Criminal Court does not Sessions not 

interfe 
with. 



interfere with the sessions of the peace held within the "''"f"'^'! 



district, that is, the latter may be held notwithstanding 
that the former tribunal is sitting (a). 

QUARTER SESSIONS. 

These courts, which are held for the trial of criminals Sessions, 
as well as for other objects, are of two kinds : — 

i. The General (Quarter) Sessions of the Peace 
for the County. 

ii. The Borough Sessions. 



(0 V. p. 288, n. 

(m) v. p. 288. 

(ic) 25 & 26 Vict. c. 65. 

(i/) 4 & 5 Vict. .>. 36, s. 16. 

14 Ibid. ». 19. 

(a) Ibid. ». 21. 



294 



COUETS OF A CRIMINAL JURISDICTION. 



County quar- 
ter sessions. 



Time of 
holding. 



i. The General County Sessions must be held in every 
county once every quarter at stated times, in which 
case they are termed the general quarter sessions of 
the peace. And if, on account of the amount of busi- 
ness, it is necessary that courts of this description 
should be held intermediately, they are termed general 
sessions of the peace. The authority and jurisdiction 
of the court under either title is the same, except where 
the jurisdiction is given by statute expressly to the 
court of quarter sessions. 

The dates fixed by statute for the holding of the 
county quarter sessions are the first weeks after each 
of the following days — October 11th, December 28th, 
March 31st, June 24th (b). But the date of the April 
quarter sessions may be altered by the justices to any 
time between March 7th and April 22nd, in order that 
the sessions may not clash with the assizes (e). In 
addition to the sessions at these regular intervals, the 
justices may hold general sessions of the peace at such 
other times as they think fit, when the state of the 
business requires this to be done. If the sessions last 
more than one day, they must be adjourned to another 
(not necessarily the next), and so on until the work is 
finished. 



Who compose 
the court. 



The court is held before two or more justices of the 
peace, one of whom must be of the quorum {d). When 
the number of prisoners is large, a second court may be 
formed with the same authority as the first (e). In 



(6) 11 Geo. 4 & 1 Wm. 4, o. 70, s. 35. 

(c) 4 & 5 Wm. 4, c. 47. 

(d) The force of this limitation is, however, obsolete. In the commis- 
sion of peace to inquire of and determine felonies and misdemeanors com- 
mitted in the county, a clause is inserted directing some particular justices, 
or one of them, to be always included, so that no business may be done 
without their presence. The clause runs thus : " Quorum aliqtiem vestrum 
A., B., C, D., uwwm esse volumus;" whence the justices so named were 
usually termed "justices of the quorum." But now the practice is to 
make all of the justices of the quorimi. 

(«) 21 & 22 Vict. c. 73, ss. 9-11. 



COURTS OF A OEIMINAL JtTRISDICTION. 295 

each court a chairman presides, and acts in general as 
a judge, consulting the other justices present when he 
thinks fit. 

Formerly this court had the power of trying any Jurisdiction of 
felony or misdemeanor committed in the county, and ' ^ sessions. 
the commission in its present form does not limit their 
jurisdiction (/). But the justices usually remitted the 
more serious felonies to the assizes ; a clause in the 
commission providing that if any difficulty should arise, 
the justices of the peace should not give judgment 
unless in the presence of the justices of the one or the 
other bench {i.e., Queen's Bench or Common Pleas), or 
of one of the justices appointed to hold the assizes in 
the aforesaid county. But now the criminal jurisdiction 
of the sessions is expressly by statute confined to the 
trial of small felonies and misdemeanors. And it is to 
be noticed that the justices in sessions cannot try any 
newly created ofi'ence, unless the statute which creates 
it expressly gives them power. The chief statute Crimes not 
limiting their jurisdiction {g) precludes them from j^ggfy^/' 
trying any of the following crimes : — 

1. Treason, murder, or any capital felony. 

2. Any felony which, when committed by a person 
not previously convicted of felony, is punishable by 
penal servitude for life. 

3. Misprision of treason. 

4. Offences against the Queen's title, prerogative, 
person, or government, or against either House of 
Parliament. 

5. Offences subject to the penalties oi prmrmmire. 

6. Blasphemy and offences against religion. 

7. Administering and taking unlawful oaths, 

(/) As to Forgery and Perjury, v. Arch. Q. S. 6, 7. 
((/) 5 & 6 Vict. c. 38. 



296 COURTS OP A CKIMINAL JUKISDICTION. 

8. Perjury and subornation of perjury. 

9. Making, or suborning any other person to make, a 
false oath, affirmation, or declaration, punishable as 
perjury or as a misdemeanor. 

10. Forgery. 

11. Unlawfully and maliciously setting fire to crops 
of corn, grain, or pulse,' or to any part of a wood, 
coppice, or plantation of trees, or to any heath, gorse, 
furze, or fern. 

12. Bigamy and offences against the laws relating to 
marriage. 

13. Abduction of women and girls. 

14. Endeavouring to conceal the birth of a child. 

15. Offences against any provision of the laws relating 
to insolvents (offences against any provision of the law 
relating to bankrupts may be tried at the Quarter 
Sessions since 32 & 33 "Vict. c. 62, s. 20). 

16. Composing, printing, or publishing blasphemous, 
seditious, or defamatory libels. 

17. Bribery. 

18. Unlawful combinations and conspiracies, except 
conspiracies and combinations to commit any offence 
which the justices or recorder have or has jurisdiction 
to try when committed by one person. 

19. Stealing, or fraudulently taking, or injuring, or 
destroying, records or documents belonging to any 
court of law or equity, or relating to any proceeding 
therein. 

20. Stealing, or fraudulently destroying or conceal- 
ing, wills or testamentary papers, or any document or 
written instrument being or containing evidence of 
the title to any real estate, or any interest in lands, 
tenements, or hereditaments. 



COURTS OF A CRIMINAL JURISDICTION. 297 

By other statutes their jurisdiction does not extend 
to the trial of : — 

21. The misdemeanor of three or more persons pur- 
suing game hy night (9 Geo. 4, c. 69, s. 9). 

22. Brihery or undue influence at parliamentary 
elections (17 & 18 Vict. c. 102. s. 10). 

23. Fraudulent misdemeanors, as agents, trustees, 
bankers, factors, &c., provided against by the Larceny 
Act, 1861, sections 75-86 (24 & 25 Vict. c. 96, s. 87). 

24. Offences against the False Personation Act, 1874 
(37 & 38 Vict. c. 36, s. 3). 

The court also hears appeals against summary con- Appeals heard 
yictions, in cases where the right of appeal is expressly *' s^^^""'^- 
given by statute to the person convicted. Under 
certain circumstances already noticed (Ji) an indictment 
may be removed from the sessions to the Queen's 
Bench by writ of certiorari. 

In appeals and other cases where the justices in Eeriew of 
sessions are made judges of the fact as well as of the P™<=«^;i'°g^ 

_ _ J _ o of sessions. 

law, their decision is final, and cannot be reversed by 
any court without their consent. But if they have a 
difficulty, they may put the facts in the form of a 
special case for the opinion of the Queen's Bench Divi- 
sion, meanwhile confirming or quashing the order be- 
fore them. Their action will then be confirmed or 
quashed by the superior court. In ordinary criminal 
cases the only way in which the proceedings can be 
inquired into after judgment is by writ of error, &c. ; a 
subject which will be treated of hereafter (*). 

The Middlesex Sessions require a separate notice. By Middlesex 

Sessions. 



(A) V. p. 287. 
(0 V. p. 448. 



298 COURTS OF A OEIMINAL JUKISDICTION. 

statute (/c) two sessions or adjourned sessions of the 
peace are to be held eyery calendar month. The first 
sessions in January, April, July, and October are the 
general quarter sessions of the county ; and the second 
in those months are the adjournments of the general 
quarter sessions. So that others are styled general 
sessions of the county. But the distinction is rendered 
unimportant by a provision that every general sessions 
of the county of Middlesex and adjournments thereof, 
shall have the power, &c., of a general quarter sessions 
of that county (Z). There are usually sitting at the 
Middlesex Sessions held at Clerkenwell Green two 
judges. In one court is the assistant judge, appointed 
by the Queen, being a barrister of ten years standing 
and in the commission of the peace for the county. 
In the other court sits the deputy assistant judge, 
appointed by the assistant judge (m). A temporary 
assistant judge may be appointed under certain circum- 
stances (w). 



sessions. 



Borough ii. Borough Sessions. — Many corporate towns or 

boroughs have quarter sessions of their own. This 
exempts them in almost every matter from the juris- 
diction of the county sessions. The borough sessions 
have, in general, the same jurisdiction as the county 
sessions (o), being subject to the same limitations as to 
the trial of certain offences. The court is held at least 
once in every quarter of a year ; or at such other and 
more frequent times as the recorder may think fit, or as 
the Queen may be pleased to direct (p). The recorder 
of the borough, who must be a barrister of five years' 
standing, is the sole judge, though he may be assisted 
in the trial of criminals by some other barrister ; and 
in case of his absence may appoint a deputy. 

(A) 7 & 8 Vict. 0. 71 ; 22 & 23 Vict. c. 4. 

(0 22 & 23 Vict. 0. 4, s. 4. 

(m) 7 & 8 Vict. c. 71 ; 14 & 15 Vict. c. 55, s. 14. 

In) 22 & 23 Vict. c. 4, b. 3. 

(o) 5&6 Wm. 4, c. 76, s. 105, &c. 

(p) Ibid. 



COURTS OF A CRIMINAL JURISDICTION. 299 

The coiincil of any borough may obtain a grant 
of a separate court of quarter sessions by petitioning 
the Queen in council, and setting forth satisfactory 
grounds to substantiate the application. Two or more 
boroughs conjointly may have such a court {q). 

COURT OF THE CORONER. 

The business of this court is to inquire when any Coroner's 
one dies in prison, or comes to a violent or sudden ™"'^'' 
death, by what means he came to his end. If the 
verdict in this inquisition is murder or manslaughter, 
the coroner must commit the prisoner for trial. But, 
as we shall see in a subsequent chapter, the finding of 
the coroner's jury is practically unimportant (r). 

There have been certain criminal courts of a private 
or special jurisdiction, which are restricted both in 
respect of the place and of the cause. One example 
alone of this class remains, and it is not of any great 
importance (s). 

UNIVERSITY COURTS IN OXFORD AND CAMBRIDGE. 

Both universities enjoy a certain exemption from University 
the ordinary criminal tribunals ; but at Cambridge the ™"i''^- 
privilege cannot be claimed if any person not a member 
of the University is a party (i). In order to take 
advantage of this immunity, the proper course is, 
after the indictment has been found by the grand jury 
at the assizes or elsewhere against a scholar or other 
privileged person, for the Vice-Chanoellor to claim the 



(5) 5 & 6 Wra. 4, c. 76, s. 103. 

(r) V. p. 334. 

(s) The court of the Lord Steward, Treasurer, or Comptroller of the 
King's Household, to inquire if anyone in the household imagined, &c., 
the death or destruction of the king, his privy councillors, or certain other 
officers ; and the court of the Lord Steward of the King's Household, to 
inquire of murders and other crimes whereby blood has been shed in the 
king's palaces or abodes, are both obsolete. 

(i) 19 & 20 Vict. c. 17, ». 18. 



300 COUKTS OF A CRIMINAL JURISDICTION. 

cognizance of the matter, and then it will be sent to one 
of the following courts : — 

High Steypard's High Steward's Cowrt. — It has jurisdiction over 
™"' ■ cases of treason, felony, or mayhem committed by a 

privileged person. The process at Oxford is as fol- 
lows : — A special commission is issued to the high 
steward and others to try the particular case. The 
high steward issues one precept to the sheriff of the 
county, who returns a panel of eighteen freeholders, 
and another to the university bedels, who return a 
panel of eighteen matriculated laymen. The indict- 
ment is then tried in the Oxford Guildhall by a jury 
de medietate, half of freeholders and half of such matri- 
culated laymen. If the accused is found guilty of a 
capital offence, the sheriff must execute the university 
process, to which he is bound by an oath (m). 

Vice-Chan- Vice- Chancellor's Court. — This court has authority to 

ce or s court. ^^ ^y[ misdemeauors committed by privileged members 
of the university. The judge is the Vice-Chancellor. 

This exceptional jurisdiction is rarely, if ever, exer- 
cised, the Yice-Chancellor's court meeting for other 
purposes. Formerly, however, on several occasions 
cases of murder and other crimes were tried in the high 
steward's court. 

Petty sessions and summary proceedings before 
single magistrates will be noticed hereafter (x). 

(u) 4 Bl. 277. 

(a) V. p. 458. We may mention two courts which, as far as criminal 
matters are concerned, have totally fallen into desuetude — ^the Sheriff's 
Tourn and the Court Leet, or View of Frank Pledge. They had the same 
jurisdiction, namely, the trial of trivial misdemeanors ; that of the former 
extending to the whole county, that of the latter to a particular hundred, 
lordship, or manor. Another court may be said to be virtually super- 
seded — the court of the Clerk of the Market. Its chief business was to 
test the weights and measures, and to punish by fine if they were not 
according to the standard. Now an inspector of weights and measures, or 
a magistrate, may enter any place where goods are exposed for sale, and if 
the weights and measures are found incorrect, may seize and forfeit them ; 
and the party in whose 'possession they are found, or who obstructs the 
examination, is fined a sum not exceeding '£5. S & 6 Wm. 4, s. 63. 



COURTS OP A CRIMINAL JURISDICTION. 



301 



SKETCH OF A CRIMINAL TRIAL. 

We propose now to discuss in their proper order the 
various steps taken to secure the punishment of a 
criminal who is guilty of a felony or misdemeanor, in 
other words, to examine the proceedings in any ordinary 
criminal ease (y). But before doing this, it will he 
well to sketch a rough outline or map of the whole 
ground to be trayersed before the offender suffers his 
punishment. 

The first thing to be done is to lay hold of the Outline of 
prisoner, or to arrest him. "When he is arrested and a^Tminaf' '° 
brought before the magistrates, if they think the case case. 
ought to sent on to trial, he is committed for trial ; the 
magistrates either at once committing him to prison to 
await the trial, or allowing him to remain at large on 
his finding sufficient hail to ensure his appearance when 
he is wanted. What particular mode of prosecution is 
to be adopted must be considered, as there are several 
ways of formal accusation. In most cases the prisoner 
will now be forthcoming to take his trial ; but either 
on account of his having avoided the warrant of arrest, 
or because he has been admitted to bail and does not 
surrender, process must issue to bring him into court. 
For some good reason it may be desirable to remove 
the trial to the supreme criming,! court by a writ of 
certiorari. The day of trial having arrived, the prisoner 
is arraigned, or called to the bar of the court to answer 
the charge against him. If he does not confess, or. 
stand mute, he will then shew in what way he proposes 
to meet the charge, whether by demurring to the suffi- 
ciency in point of law of the charge ; or by pleading 
some particular obstacle to his being convicted; or, 
generally, that he is not guilty. Issue is then joined. 



(i/) That is, a case which is not dealt with summarily before the magis- 
trates, or specially before some exceptional tribunal, as the House of Lords. 



302 COUETS OF A CBIMINAL JURISDICTION. 

and the trial of the question in point takes place. The 
prisoner is said to be convicted on the jury finding a 
verdict of guilty ; and judgment, and the other conse- 
quences of this conviction, follow. The effects of this 
judgment will, however, be avoided by its being 
reversed, or by the prisoner being reprieved ox pardoned. 
Lastly, if the prisoner has been convicted of a capital 
crime, he must suffer execution. 



• ( 303 ) 



CHAPTER III. 

AEEEST. 

The apprehending or restraining of a man's person, in Anest, defin 
order to insure his being forthcoming to answer an ''°° " ■ 
alleged or suspected crime (z). Any person is liable to 
an arrest on a criminal charge, provided he is charged 
with such a crime as will at least justify holding him 
to bail when taken. 

An arrest may be made either : — 

A. By warrant. 

B. Without warrant. Here we shall have to 

distinguish three cases. Where the arrest is 
(a) by an officer ; (b) by a private person ; 
(c) by hue and cry. 

A. A warrant is a precept under hand and seal to Warrant. 
some officer to arrest an offender, that he may be dealt 
with according to due course of law. 

A warrant may, under certain circumstances, be By whom 
granted by the speaker of the House of Lords or House S'*"*^"*- 
of Commons ; or by the privy council ; or by one of 
the secretaries of state. A judge of the Queen's Bench 
Division may issue a warrant to bring before him for 
examination any person charged with felony. He may 
also issue his warrant for apprehending and holding to 
bail any person, upon affidavit or certificate of the fact 

(«) It is almost unnecessary to remind the reader that a person may 
under certain circumstances be arrested in a civil proceeding, and not only 
for a crime. 



warrant will 
be issued. 



304 AEBEST. 

that an indictment has been found, or information filed 
in that court against any such person for a misde- 
meanor (a). Courts of oyer and terminer (i.e., in general 
the assizes and Central Criminal Court) and the jus- 
tices at sessions may also issue warrants against those 
against whom indictments for felony or misdemeanor 
have been found within their jurisdiction. 

w;arrants usu- The abovo casos are of an exceptional character. 
by'nfagCtrates Warrants are ordinarily issued by justices of the peace, 
out of sessions, not sitting in sessions. The law on this subject was 
consolidated by 11 & 12 Vict. c. 42 (b). 

When a In what cases may it be issued. — When a charge or 

complaint has been made before one or more justices 
that a person has committed or is suspected to have 
committed any treason, felony, or indictable misde- 
meanor, or other indictable offence, within his or their 
jurisdiction ; or that, having committed it elsewhere 
(even within the Admiralty jurisdiction or on land 
beyond the seas (c) ), he resides within his or their juris- 
diction; then, if the accused is not in custody, two 
courses are open to the justice ; (a) to issue a warrant 
to apprehend and bring the accused specially before 
himself, or, generally, before other justices of the 
jurisdiction; or (b) to issue, in the first place, a 
summons directed to the accused, requiring him to 
appear before himself, or other justices of the jurisdic- 
tion ; and then, only if the summons is disobeyed by 
non-appearance, to issue a warrant (d). 

A justice will also issue a warrant to apprehend a 
person against whom an indictment has been found, on 
the production to him of the certificate of the clerk of 



(a) 48 Geo. 3, c. 58, s. 1. 

(6) This statute does not affect the Metropolitan Police, or the London 
Police Acts. 

(c) 11 & 12 Vict. c. 42, s. 2. 

(d) Ibid. =. 1. 



ATJEEST. 305 

indictments at the assizes, of the peace at the sessions. 
If the party indicted is already in custody for some 
other offence, the justice may issue his warrant to the 
gaoler, commanding him to detain the accused until 
he shall be removed by habeas corpus for the purpose of 
being tried on the indictment, or until he shall other- 
wise be removed or discharged out of his custody^in due 
course of law (e). 

To enable a justice to issue a warrant in the first The informa- 
instance (i.e., as in (a) above), it is necessary that an ''°°' 
information and complaint in writing, on the oath 
or affirmation of the informant, or of some other 
witness on his behalf, should be laid before the justice. 
But if a summons only is to be issued in the first 
instance, the information may be by parol and without 
oath (/). 

The summons is directed to the accused. It states The summons, 
shortly the charge, and orders him to appear before the 
justice issuing it, or some other justice of the jurisdic- 
tion, at a certain time and place. It is served by a 
constable on the accused personally, or at his last and 
usual place of abode (g). 

The warrant is directed to a particular constable, or The warrant, 
to the constables of the district where it is to be exe- 
cuted, or generally to the constables of the jurisdiction 



(e) 11 & 12 Vict. 0. 42, ». 3. 

(/) Ibid. s. 8. 

(3) Ibid. s. 9. The following is an example of a summons : — 

"To John Styles, of, &c., labourer. Whereas you have this day been 
charged before the undersigned, one of Her Majesty's justices of the peace 
in and for the said county of * * * *, for that you on, &c. (the offence 
stated shortly) : These are therefore to command you, in Her Majesty's 
name, to be and appear before me on Thursday, the 15th day of June, at 
eleven o'clock in the forenoon at * * * * or before such other justice or 
justices of the peace for the said county as may then be there, to answer 
to the said charge, and to be further dealt with according to law. Herein 
fail not. 

" Given under my hand and seal, this 13th day of June, in the year of 
our Lord 1876, at * * * *, in the county aforesaid. 

"J. H. (L. S)." 



306 



ABREST. 



of the issuing justice. It states shortly the offence, 
and indicates the offender, ordering the constable to 
bring him before the issuing justice, or other justices 
of the same jurisdiction. It remains in force until 
executed, the execution being effected by the due 
apprehension of the accused Qi). It may be issued on 
Sunday as well as on any other day («). 



Backing the 
warrant. 



A warrant from the chief or other justice of the 
Queen's Bench Division extends all over the kingdom, 
and is tested, or dated, England, not Oxfordshire, Berks, 
or other particular county. But the warrant of a 
justice of the peace in one county, as Yorkshire, must 
be hacked, that is, signed by a justice of the peace in 
another, as Middlesex, before it can be executed in the 
latter (k). But the justice backing, in certain cases, 
may require the accused to be brought before him, or 
some other justice of the jurisdiction (/). A warrant 
issued in England may be backed not only in another 
jurisdiction in England, but also in Scotland, Ireland, . 
or the Channel Islands, and vice versa (m). 



Executing 
the warrant. 



When a warrant is received by the officer, he is 
bound to execute it, so far as the jurisdiction of the 
justice and himself extends. And a warrant drawn up 
according to the statutory form will (even though the 
magistrate who issued it has exceeded his jurisdiction). 



(A) 11 & 12 Vict. i;. 42, s. 10. An example of a warrant : — 

" To the constable of * * * * and to all other peace officers in the said 
county of * * * *^ Whereas A. B. of * * * *, labourer, hath this day 
been charged upon oath before the undersigned, one of Her Majesty's, 
justices of the peace in and for the said county of * * * *, for that he 
gjj****^^.**** ^y^ jjo. (^silting shortly the offence): These are there- 
fore to command you, in Her Majesty's name, forthwith to apprehend the 
said A. B., and to bring him before me, or some other of Her Majesty's 
justices in and for the said county, to answer unto the said charge, and to 
be further dealt with according to law. 

" Given under my hand, &c." (as in the case of a summons). 

(.) Ibid. s. 4. 

(k) 4 Bl. 2<11. 

(0 Ibid. ». 11. 

(m) Ibid. ss. 12-15. See also 14 & 15 Vict. c. 55, s. 18. As to the 
colonies, 6 & 7 Vict, u, 34, and 16 & 17 Vict. c. 118. 



ABEEST. 307 

at ail events, indemnify the officer wlio executes tiie 
same ministerially (w). The officer in his own jurisdic- 
tion need not shew his warrant if he tells the substance 
of it. Bare words will not constitute an arrest without 
laying hold of the accused, or otherwise restraining his 
liberty. The officer may break open doors to execute 
a warrant for treason or other felony, or a breach of 
the peace, if upon demand of admittance it cannot 
otherwise be obtained (o). An arrest for any indictable 
offence may be made on Sunday ; and, for felonies or 
breaches of the peace, in the night-time as well as the 
day. 

If there is just cause, any justice or the sheriff may Po$se comi- 
take of the county any number he thinks proper to *"*"*■ 
pursue, arrest, and imprison traitors, felons, and 
breakers of the peace (raising the jposse comitatus) ; 
persons refusing to aid may be fined and imprisoned {jp). 

A general warrant to apprehend aU persons suspected General 
of a crime is void. So is a warrant to apprehend the '^^"^'^'^^■ 
authors, printers, and publishers of a libel, without 
naming them (§'). General warrants to take up loose, 
idle, and disorderly people, and search warrants are 
perhaps the only exceptions to this rule (r). 

Though not strictly belonging to the subject in hand, Search 
namely, the arrest of criminals, it may be convenient ^*'''''"'*^' 
here to notice search warrants. On the oath of a com- 
plainant that he has probable cause to suspect that his 
property has been stolen, reason for his suspicion being 
shewn, a justice may issue a warrant to search the 
premises of a person suspected of the felony. And as to 



(n) 24 Geo. 2, c. 44. 

(o) As to killing a constable in the execution of his duty, v. p. ] 65 ; as to 
when he is justified in killing the accused, v. pp 148, 166. 
(p) Dalton, u. 171. 
(q) Money v. Leach, 1 Bl. W. 555. 
(r) 5 Burn's, 1131. 

X 2 



308 



AEREST. 



Arrests with- 
out warrant, 
by officers ; 



property otherwise the subject of fraudulent practices, 
it is proTided that if any credible witness proves upon 
oath before a justice a reasonable ground for suspecting- 
that any person has in his possession, or on his premises, 
any property with respect to which an offence punish- 
able under the Larceny Aet, 1861, has been committed, 
he may grant a warrant to search for such property, as 
in the case of stolen goods (s). 

B. Arrests without warrant. 

As to arrests by officers, they may be made by 

i. Justices of the Peace, who may themselyes appre- 
hend, or cause to be apprehended, by words only, i.e., 
without warrant, any person committing a felony or 
breach of peace in their presence (t). 

ii. The sheriff may apprehend any felon or breaker of 
the peace within the county. 

iii. The coroner, any felon within the county. 

by constables. It. A constalle may arrest, without warrant, any one 
for treason, felony, or breach of the peace committed 
in his view, within his jurisdiction, and carry him 
before a magistrate. So, also, on reasonable charge of 
felony, or of having given a dangerous wound ; or upon 
reasonable suspicion that one of the above offences has 
been committed, though it should afterwards appear 
that no felony or wounding had been committed. But, 
as a rule, he may not arrest without warrant in a mis- 
demeanor, though he may interpose to prevent a breach 
of the peace, and to accomplish this object he may 
arrest the person menacing, and detain him in custody 
till the chance of the threat being executed is over («). 
Also he may arrest without warrant, and then must 



(s) 24 & 25 Vict. c. 96, s. 103. 

(«) As to apprehension, &c., for contempt' in face of court, v. p. 98. 

(m) v. 2 Hale, P. C. 88. 



ARREST, 



309 



take before a justice of the peace as soon as reasonably 
may be, any person whom he finds lying or loitering in 
any highway, yard, or otljer place, during the night, 
and whom he has good cause to suspect of having com- 
mitted, or of being about to commit, any felony against 
the Larceny, Arson and Malicious Injuries to Property, 
or Offences against the Person Acts respectively (x). 
Also he may take into custody any holder of a licence 
granted under the Penal Servitude Acts, who is reason- 
ably suspected of having committed any offence or 
broken any of the conditions of his licence (j/). 

If, upon a reasonable charge for which he may arrest 
without warrant, the constable refuses, he may be in- 
dicted and fined. When he acts without a warrant, by 
virtue of his office as constable, he should, unless the 
party is previously acquainted with the fact, or can 
plainly see it, notify that he is a constable, or that he 
arrests in the Queen's name, and for what. 

The constable's right to break open doors, his justi- 
fication in killing in the execution of his duty, and the 
consequences of his being killed, are generally the same 
as if he had proceeded upon a warrant (z). 

V. Arrests by private persons. — Any person who is Arrest by pri- 
present when a felony is committed, not only may, but ™'^ persons, 
is bound, without warrant, to arrest the offender. And 
a private person is bound to assist an officer who 
demands his aid in the lawful taking of a felon, or the 
suppression of an affray. If in any case the felon 
escapes through his negligence to assist, for which 
there is no good excuse, he is liable to fine and im- 
prisonment. A private person also may arrest (a) any 



(a) 24 & 25 Vict. u. 96, s. 104; c. 97, s. 57; c. 100, ». 66. 

(i/) 27 & 28 Vict. li. 47, s. 6. As to arrest of persons likely to commit 
crimes under the Prevention of Crime Act, v. p. 281. Special Acts regulate 
the powers of constables within the Metropolitan Police District. 

(«) V. pp. 165, 166, 307. 



310 AKKEST. 

one whom he finds committing an indictable offence by 
night {i.e., 9 p.m. to 6 a.m) {a) ; or (b) a person com- 
mitting any offence (except angling in the daytime) 
punishable under the Larceny Act (b) ; or (c) a person 
committing an offence against the Coinage Act (c). 
Also the owner of the property injured, or his servant, 
or any other person authorized by him, may apprehend 
a person committing any offence against the Malicious 
Injuries to Property Act {d). Anj person to whom 
property is offered to be sold, pawned, or delirered, if 
he has reasonable cause to suspect that any offence 
punishable under the Larceny Act has been committed 
with respect to such property, is authorized and re- 
quired to forthwith take the party offering and the 
property offered before a magistrate (e). 

Arrest by pri- A private person may also arrest, without warrant, 
lu'saspicion °^ reasonable suspieion of felony. But he does so at 
his peril, and is liable to the coiisequences of false im- 
prisonment, unless he can afterwards prove that a 
felony has actually been committed by some one, and 
that there was reasonable ground to suspect the person 
apprehended. (It will be remembered that a peace 
officer is not liable, although no crime has been com- 
mitted, if there were reasonable grounds for suspicion.) 
Not that the private person has no course left open to 
him; he is justified in requiring a constable to do 
whatever the constable by virtue of his office is justified 
in doing. 

Points in There is this distinction between arrests in view of 

Tn suspicion*^ *^® Crime and on suspicion by private persons. In the 
and in view former cESo he may break open doors to effect the 
differ! """"^ arrest ; and the consequences of his killing or being 
killed are generally the same as if an officer were 

(a) 14 & 15 Vict. u. 19, s. 11. 
(6) 24 & 25 Vict. u. 96, s. 103. 

(c) 24 & 25 Vict. u. 99, s. 31. 

(d) 24 & 25 Vict. <;. 97, s. 61. 

(«) 24 & 25 Vict. u. 96, o. 103. As to arrest in game offences, v. p. 141. 



AKBBST. 



311 



arresting. But if the arrest by a private person is 
merely on suspicion, he is not justified in breaking 
open doors; and if either party kills the other, it is 
said to amount to manslaughter at the least. 

A private person may arrest another for the purpose 
of putting a stop to a breach of the peace committed 
in his presence. 

Arrest upon Hue and Cry. — The old common law Hue and cry. 
process of pursuing with horn and with voice all felons 
and such as have dangerously wounded others. The 
hue and cry may be raised by constables, private per- 
sons, or both. The constable and his assistants have 
the same powers, protection, and indemnification as if 
acting under the warrant of a magistrate ; and if they 
have obtained a warrant, they may foUow by hue and 
cry into a different county from that in which the war- 
rant was granted, without getting it backed. Private 
persons who join are justified, even though it should 
turn out that no felony has been committed. But if a 
person wantonly, and maliciously, and without cause 
raises the hue and cry, he is liable to punishment as a 
disturber of the peace (/). 

Rewards for the Apprehension of Offenders. 

In connection with the subject of arrest, we may Eewards for 
notice some encouragements which the law holds out of oriminair 
for exertions in bringing certain classes of criminals to 
justice. When any person appears to a court of oyer 
and terminer and gaol delivery to have been active in 
the apprehension of any person charged with any of 
the following offences, viz., murder, feloniously and 
maliciously shooting, &c., at any person, stabbing, 
cutting, poisoning, administering anything to procure 



(/) For punishment of assaults committed on officers and persons acting 
in their aid, or on any other person lawfully authorized to apprehend or 
detain an offender, v, p. 184-. 



312 



AEKEST. 



miscarriage, rape, burglary or felonious housebreaking, 
robbery from tbe person, arson, horse, bullock (includ- 
ing ox, cow, &c.), or sheep-stealing ; or with being 
accessory before the fact to any of the offences afore- 
said ; or with receiving stolen property knowing the 
same to have been stolen, the court is authorized to 
order the sheriff to pay to • such person such sum of 
money as it thinks proper to compensate for his ex- 
pense, exertion, and loss of time in the apprehension. 
This reward is to be over and above the ordinary pay- 
ments to prosecutors and witnesses (g). By a later 
Rewards statute, at the sessions the court may order such com- 

pensation to be paid in case of any of the above offences 
which they have jurisdiction to try ; but the payment 
to one person must not exceed £5 (h). If any one is 
killed in endeavouring to apprehend a person charged 
with one of these offences, the court may order com- 
pensation to be made to the family (i). The amount 
to be paid in all such cases is subject to regulations 
which may be made from time to time by the secretary 
of state (k). 



allowed at 
sessions. 



((/) 7 Geo. 4, c. 64, s. 28. 
(A) 14 & 15 Vict. c. 55, s. 8. 
(0 7 Geo. 4, c. 64, s. 30. 
(/;) 14 & 15 Vict. c. 55, s. 5. 



( 313 ) 



CHAPTEE IV. 

PROCEEDINGS BEFORE THE MAGISTRATE. 

"When an arrest has been made the accused should be Accused to be 
taken before a magistrate or magistrates with all the magistrate. 
reasonably possible speed. When arrested on suspicion 
he should not be detained before he is so taken, in 
order that evidence may first be collected. 

The magistrate is bound to forthwith examine into Proceedings 
the circumstances of the charge. In order to secure magistrat^e. 
the attendance of witnesses to the fact, they may be 
served with a summons or warrant in a manner similar 
to that in which the presence of the accused is insured. 
If a witness refuses to be examined, he is liable to im- 
prisonment for seven days (T). The room in which the 
examination is held is not to be deemed an open court ; 
and the magistrate may exclude any person if he 
thinks fit (m). When the witnesses are in attendance, 
the magistrate takes, in the presence of the accused, 
(who is at liberty by himself or his counsel to put 
questions to any witness produced against him), the 
statement on oath or affirmation of those who know the 
facts of the case, and puts the same in writing. These The deposi- 
statements (technically termed depositions) are then ''°°^' 
read over to and signed respectively by the witnesses 
who have been examined, and by the magistrate taking 
such statements (n). The magistrate reads, or causes 



(Q 11 & 12 Vict. c. 42, 5. 16. As this is the chief Act dealing with the 
subject of this chapter, reference merely to a section must be understood of 
that statute. 

(m) s. 19. 

(n) s. 17. 



314 



PBOCEEDINGS BEFORE THE MAGISTKATE. 



Witnesses for 
the accused.- 



Binding over 
tlie witnesses. 



Bemand. 



to be read OTer to the accused these depositions ; and 
asks him if he wishes to say anything in answer to the 
charge ; cautioning him that he is not obliged to say 
anything, but that whatever he does say will be taken 
down in writing, and may be used in evidence against 
him at his trial ; at the same time explaining that he 
has nothing to hope from any threat which may have 
been holden out to him to induce him to make any 
admission or confession of guilt. Whatever the accused 
then says is taken down in writing, and signed by the 
magistrate (o). 

The magistrate then asks the accused whether he 
desires to call any witnesses. If he does, the magis- 
trate, in the presence of the accused, takes their state- 
ment on o^th or affirmation, whether such statement is 
given on examination or cross-examination, for they 
may be submitted to both. These statements, in the 
same way as those on the part of the prosecution, are 
read to and signed by the witnesses and by the magis- 
trate. And the same rules apply to witnesses both for 
the prosecution and for the defence (other than those 
merely to character), as to being bound over by recog- 
nizance to appear and give evidence at the trial (p). 
If a witness refuses to enter into such recognizance, he 
may be committed to prison until the trial. The re- 
cognizances, depositions, &c., are transmitted to the 
court in which the trial is to take place (^). 

If the investigation before the magistrate cannot be 
completed at a single hearing, he may from time to 
time remand the accused to gaol for any period not 
exceeding eight days ; or may allow him his liberty in 
the interval upon his entering into recognizances, with 
or without sureties, for re-appearance (r). 



(o) s. 18. 

(p) 30 & 31 Vict. i;. 35, 

(?) 5. 20. 

(r) 8. 21.. 



PROCEEDINGS BEFOBE THE MAGISTRATE. 315 

If, when all the evidence against the accused has Discharge. 
been heard, the magistrate does not think that it is 
sufficient to put the accused on his trial for an indict- 
able offence, he is forthwith discharged. But if he Committal 
thinks otherwise, or the evidence raises a strong or 
probable presumption against the accused, he commits 
him for trial, either at once sending him to gaol so as 
to be forthcoming for trial, or admitting him to bail (s). 
Under certain circumstances a third course is open to 
the magistrate ; he may dispose of the ease and punish 
the offender himself (<). 

It will be noticed that there are two forms of com- The accused 

/ \ /. /» .7 n \ ' committed 

mitment to prison : (a) for safe custody ; (b) m execu- f^^. ^^■^^l_ 
tion, either as an original punishment, or as a means of 
enforcing payment of a pecuniary fine, or of enforcing 
obedience to the sentence or order of a magistrate or 
the sessions. The warrant of commitment under the 
hand and seal of the committing magistrate, directed 
to the gaoler, contains a concise statement of the cause 
of commitment. By the Habeas Corpus Act (u) the 
gaoler is required, under heavy penalties, to deliver 
to the prisoner, or other person on his behalf, a copy 
of the warrant of commitment or detainer within six 
hours after demand. The imprisonment of which we Imprisonment 
are now speaking is merely for safe custody and not P™ '"^ 
for punishment ; therefore, those imprisoned are treated 
with much less rigour than those who have been con- 
victed. Thus, they may have sent to them food, 
clothing, &c., subject to examination and the rules 
made by the visiting magistrates. They have the 
option of employment, but are not compelled to perform 
any hard labour ; and if they choose to be employed, 
and are acquitted, or no bill is found against them, an 
allowance is paid for the work (x). 

(s) s. 25. 

(i) V. p. 458. 

(m) 31 Car. 2, c. 2, s. 5. 

(i) 28 & 29 Vict. c. 126, sched. i. ss. 19, 20, 32, 33. 



316 PEOOEBDINGS BEFOEB THE MAGISTEATE. 

.) 

Bail. Bail. — This admitting to bail consists in the delivery 

(or bailment) of a person to his sureties, on their giving 
security (he also entering into his own recognizances) 
for his appearance at the time and place of trial, there 
to surrender and take his trial. In the meantime, he 
is allowed to be at large ; being supposed to remain in 
their friendly custody. 

We shall, in the first place, treat of the law of bail 
by the magistrate, and then of bail by the Queen's 
Bench Division and other exceptional cases. 

In what cases In what cases may, and in what cases may not a 
m^Tafi™'^ magistrate take bail ? Not if the prisoner is accused 
of treason. In that case it is allowed only by order of 
a secretary of state, or by the Queen's Bench Division, 
or a judge thereof in vacation. If the prisoner is, 
charged with some other felony, or one of the mis- 
demeanors enumerated below, the magistrate may, in 
his discretion, but is not obliged to, admit to bail. 
These misdemeanors are : — Obtaining, or attempting to 
obtain, property by false pretences ; receiving property 
stolen or obtained by false pretences ; perjury or sub- 
ornation of perjury ; concealing the birth of a child by 
secret burying or otherwise ; wilful or indecent expo- 
sure of the person ; riot ; assault in pursuance of a 
conspiracy to raise wages ; assault upon a peace officer 
in the execution of his duty or upon any person acting 
in his aid ; neglect or breach of duty as a peace officer, 
or any misdemeanor for the prosecution of which the 
costs may be allowed out of the county rate. In other 
misdemeanors it is imperative on the magistrate to 
admit to bail («/). 

Principles In cases where, in the exercise of their discretion, the 

trafes%'hef '" ^^gis*^**®^ ^^"^^ *^^ power of admitting to bail or 
they may refusing it, the principle which is to guide them is the 

exercise their 



discretion as 
to bail. 



(I/) s. 23. 



PROCEEDINGS BEFORE THE MAGISTRATE. 317 

probability of the accused appearing to take his trial, 
and not his supposed guilt or innocence (z). Though 
this latter point may be one element to be considered 
in applying the test. Thus it has been laid down that 
the points which the court will consider in exercising 
their discretion include the seriousness of the charge, 
the evidence in support of it, and the punishment which 
the law awards for the offence (a). Practically in 
charges of murder, bail is never allowed. And when a 
bill has been found against the accused, naturally more 
caution will be exercised. 

Who may be bail ? The magistrate (or court, v. The sureties. 
infra) will act according to his discretion as to the 
sufficiency of the bail. The proposed bail may be exa- 
mined upon oath as to their means, though in criminal 
cases no justification of bail is required. A married 
woman, an infant, or a prisoner in custody, cannot be 
bail ; nor can a person who has been convicted of an 
infamous crime, as perjury (J). The usual number of 
bail is two ; but sometimes only one is required, and 
sometimes three or more. The sureties or bail are not 
compelled to act as such for a longer time than they 
wish. If they surrender the accused before the magis- 
trate or court by whom he has been bailed, he will be 
committed to prison, and they will be discharged of 
their obligation. But the accused may then find fresh 
sureties. 

Both at common law and by statute (c), to refuse or Refusing or 
delay to bail any person bailable is a misdemeanor in '^«'*y'''g i^^''- 
the magistrate. But it has been held that the duty 
of a magistrate in respect of admitting to bail is a 



(z) M. V. Scaife, 5 Jur. 700. 

(a) In re Barronet, 22 L. J. (M.C.) 25 ; In re Robinson, 23 L. J. (Q.B.) 
286. 

(b) r. S. V. Edwards, 4 T. R. 440. 

(c) 3 Edw. 1, c. 15 ; 31 Car. 2, u. 2 (Habeas Corpus) ; 1 Wm. & M. st 2 
<j. 1 (Bill of Rights). ' 



318 PROCEEDINGS BEFORE THE MAGISTRATE. 

judicial duty ; and therefore that not even an action can 
be maintained against him for refusing to admit to bail, 
where the matter is one as to which he may exercise 
his discretion {d). It is provided by the Bill of Eights 
Excessive bail, that excessivo bail ought not to be required ; though 
what is excessive must be left to be determined by the 
court in considering the circumstances of the case. If 
the magistrate or other authority admits to bail where 
this is not allowable, or if he takes insufficient bail, he 
is liable to punishment on the non-appearance of the 
accused (e). 

Bail after The stage in the proceedings where the question of 

for"ti-iar' bail usually arises is when the accused is before the 
magistrates. But when a person charged with an 
indictable offence has been committed to prison to await 
his trial, it ia lawful at any time afterwards, before the 
first day of the sessions or assizes at which he' is to be 
tried, for the magistrate who signed the warrant for 
his commitment to admit him to bail (/). 

As to bail in other cases than in proceedings before 
the magistrates : — • 

Bail by The Queen's Bench Division, or, in vacation time, a 

w'Ts^on^^"'^'' judge thereof {g), has a discretionary power of admitting 
to bail a prisoner charged with any indictable offence, or 
on suspicion thereof; and this whether he is brought 
before the court by a writ of habeas corpus or otherwise. 
It may bail as well in cases where bail has been refused 
by the magistrate, as when the charge has been origi- 
nally brought before the Division. It may order the 
accused to be admitted to bail before a magistrate 
wlien it is inconvenient to bring him and his bail up to 
town. 



(,i) Linfo.d V. FiUroy, 18 L. J. (M.C.) 108; M. v. £ad[/er, 12 L. J. 
(1I.C.)66. 

(c) Hal. Sum. 97. 

(//) 11 & 12 Vict. c. 42, =. 23. 

(ly) I & 2 Vi<-t. >,. 4'.. 



PROCEEDINGS BEFOEE THE MAaiSTEATE. 319 

It seems to be a good general rule that so far as any Bail by judi- 
persons are judges of any crime, so far they have the "* 
power of bailing a person indicted before them of such 
crime Qi) : so that :— 

Justices in Sessions may bail persons indicted at the 
sessions. 

Judges of Oaol Delivery, &c., may bail those indicted 
at the assizes or Central Criminal Court when they are 
sitting. If one accused of treason or felony is not tried 
at the first sessions of gaol delivery after commitment, 
he may demand to be released or bailed, unless it 
appears on oath that the witnesses for the prosecution 
could not be present at those sessions. If he is not 
tried at the second sessions, he must be discharged 
from imprisonment (i). 

Coroners are authorized to admit to bail persons 
charged with manslaughter by verdict of the coroner's 
jury (Jc). 

It may be noticed here that at any time between the The accused 
conclusion of the examination before the magistrate ™ ^^^^ oFthe 
and the first day of the trial at the assizes or sessions, depositions. 
the accused, whether held to bail or committed to 
prison for trial, may have on demand copies of the 
examination of the witnesses upon whose depositions he 
has been so held to bail or committed, on payment of a 
reasonable sum for the same, not exceeding three half- 
pence for each folio of ninety words (T). And at the 
time of trial he may inspect the depositions without any 
fee (m). The same rules apply also to depositions on 
behalf of the prisoner (m). 



(A) 2 Hawk. c. 15, s. 54. 

(0 31 Car. 2, c. 2, s. 7. 

(A) 22 Vict. c. 33, s. 1. As to personating bail, v. p. 236. 

(0 6 & 7 Wm. i, c. 114, s. 3 ; 11 & 12 Vict. u. 42. s. 27. 

(m) 6 & 7 Wm. 4, c. 114, s. 4. 

(«) 30 & 31 Vict. c. 35, s. 4. 



320 



PROCEEDINGS BEFOBE THE MAGISTKATE. 



Delivery of 
recognizances, 
&c., to the 
court. 



The recognizances whereby the prosecutor and wit- 
nesses are bound over to appear at the trial, together 
with the written information (if any) ; the depositions ; 
the statement of the accused ; the recognizances of bail 
(if any) ; are to be delivered to the proper officer of the 
court where the trial is'to be had (o). 



(o) 11 & 12 Vict. c. 42, s. 20 ; 30 & 31 Vict. u. 35, ». 3, 



( 321 ) 



CHAPTEE V. 

MODES OF PEOSECUTION. 

The accused lias either been committed to prison for Modes of 
safe custody, or has been left at liberty in virtue of his P™secution. 
having found sureties for his appearance. The next 
point to be considered is the prosecution (p), or manner 
of formal accusation. This may be either (q) : — 

A. Upon a previous finding of the fact by an 

inquest or grand jury. 

B. Without such previous finding. 

A. The most usual mode is by indictment, though After a finding 
it will be necessary in the first place to say a few ^^ ''"^ ^''^"'^ 
words on — 

Presmtment.— This term, taken in a wide sense, Presentment, 
includes both indictments by a grand jury and inquisi- 
tions of office. In a narrow sense it refers to the former 
only, and is the notice taken by a grand jury of any 
matter or offence from their own knowledge or observa- 
tions, without any bill of indictment laid before them 
at the suit of the Crown, as the presentment of a 
libel, &c , upon which the officer of the court must 
afterwards frame an indictment before the party prose- 
cuted can be put to answer it (r). So that it differs from 



(p) In-a wide sense tlie term "prosecution" is applied to tlie wliolc of 
tlie proceedings for bringing tlie offender to justice, 
(r?) 4 Bl. 301. 
(/•) Ibid. 



322 MODES OP PROSECUTION. 

the ordinary proceedings merely inasmuch as no bill is 
deliyered by an individual prosecutor, but the grand 
jury initiate the proceedings. 

Inquisition. ^^ Inquisition of office is the act of a jury summoned 

to inquire of matters relating to the Crown upon evi- 
dence laid before them. The most common kind of 
inquisition is that of the coroner, which is held with a 
view to find out the cause of death. The accused is 
arraigned upon the inquisition (s). 



Indictment, 
when it lies. 



An Indictment is a written accusation of one or more 
persons of a crime, preferred to, and presented on oath 
by, a grand jury. It lies for all treasons and felonies, 
for misprisions of either, and for all misdemeanors of a 
public nature at common law (t). If a statute pro- 
hibits a matter of public grievance, or commands a 
matter of public convenience (such as the repairing of 
highways, or the like), all acts or omissions contrary 
to the prohibition or command of the statute, being 
misdemeanors at common law, are punishable by indict- 
ment if the statute specifies no other mode of pro- 
ceeding (u). If the statute specifies a mode of pro- 
ceeding different from that by indictment, then, if the 
matter was already an indictable ofience at common 
law, and the statute introduces merely a different mode 
of prosecution and punishment, the remedy is cumu- 
lative, and the prosecutor has still the option of pro- 
ceeding by indictment at common law, or by the mode 
pointed out by the statute (x). 



Indictment, 
its form. 



We shall presently deal with the preferment of an 
indictment to the grand jury; but first we must 
examine into the nature of such form of accusation. 



(s) V. p. 334. 

(0 2 Hawk. c. 25, s. 4. 

(m) Ibid. 

(jj) S. V. Bubinson, 2 Burr. 799. 



MODES OF PROSEOTFTION. 



323 



An.d for this purpose it will lie well to give an example 
of an indictment, say for larceny at common law : — 

"Suffolk, to wit: The jurors for our lady the Queen 
upon their oath present that ^ John Styles, on 
the 1st day of June, in the year of our Lord 
1876, three pairs of shoes, and one waistcoat, of 
the goods and chattels of John Br own, feloniously 
did steal, take, and carry away ; IT against the 
peace of ou/r lady the Queen, her crown and 
dignity." 

Three parts, marked off in the above form, are to be 
distinguished : (a) the Commencement ; (b) the State- 
ment ; (c) the Conclusion. 

(a.) The Commencement. — In this the only part which Thecommence- 
requires comment is the venue, or the statement of the j^dLtment. 
county or other division from which the grand jury by 
whom ^the indictment was found have come. In other 
words, it is the index of the place where, in regular 
course, the trial is to be had (y). The consideration of 
this matter will be reserved for a separate chapter. 

(b.) The Statement. — This, the principal part of the The statement. 
indictment, must set forth with certainty all the facts 
and circumstances essential to constitute the crime; 
and must directly charge the accused with having com- 
mitted it. 

The defendant's name must be given correctly ; or if Name of 
it is not known, he must be described as a person un- •^^f'^^'i^n'- 
known. So also with regard to the name of the person 
against whom the crime has been committed. 

The ownership of any property in respect of which Ownership of 
the offence was committed must be rightly laid. The P^'^P^'^y- 



(y) V. 14 & 15 Vict. c. 100, s. 23. 

y 2 



324 MODES OF PKOSECTJTION. 

property in goods (a) of a deceased person must be laid 
in the executors or administrators; (b) of a married 
woman in her husband, unless there is separate pro- 
perty under the Married "Women's Property Act, 
1870 (z), or there has been a judicial separation, or a 
protection order (a). If" the goods belong to partners 
or joint owners, one only need be named, and " another " 
or " others " added, as the case may be (b). So pro- 
perty vested in a body of persons must not be described 
as the property of the body, but of all or some indivi- 
duals of the body, unless it is incorporated. The pro- 
perty of joint-stock banking co-partnerships may be 
laid in any one of the public officers (c). Bridges, 
asylums, &c., must be described as the property of the 
inhabitants of the county, without specifying any 
names. If goods are stolen, &c., from a bailee, they 
should be described as the property either of the bailor 
or of the bailee, unless they were stolen by the bailor 
himself. If at the trial it appears that the property 
has been incorrectly laid, or the person against whom 
the offence was committed misnamed, unless such error 
be amended, the defendant must be acq[uitted. But, 
as we shall see (d), the court has extensive powers of 
ordering amendment in case of such variance between 
the indictment and the evidence. 

Time of oifence. As to the statement of time. — No indictment will be 
held insufficient because it omits to state the time at 
which the offence was committed in any case where 
time is not of the essence of the offence ; nor because 
it states the time imperfectly, or states the offence to 
have been committed on a day subsequent to the find- 
ing of the indictment, or on an impossible day, or on a 



(«) 33 & 34 Vict. 0. 93, see s. 11. 
(o) 20 & 21 Vict. c. 85, ss. 21, 25. 
(6) 7 Geo. 4, ^. 64, ». 14. 
(c) Ibid. s. 9. 
Id) V. p. 3^6. 



MODES OF PHOSECUTION. 



325 



day that never happened (e). The time is of import- 
ance in seyeral crimes, as in murder, bigamy, and 
burglary, and in cases where the time within which 
the 'prosecution must be commenced is limited. 

As io jplaee. — The nature of the crime in some cases Place of offence. 
requires this to be stated ; otherwise the venue in the 
margin, that is, the county or other division, is taken as 
the venue for all facts in the indictment (/). The 
following are the most common cases in which a local 
description is required : burglary, housebreaking, steal- 
ing in a dwelling-house, sacrilege, nuisances to high- 
ways, &c. 

The facts, circumstances, and intent, which are the Description of 
ingredients of the offence, must be given with certainty, '"''^' *"■ 
so that the defendant may be able to perceive what 
charge he has to meet, the court may know what 
sentence should be given, and that on future reference 
to the conviction or acquittal it may be known exactly 
what was the alleged offence {g). In indictments for Technical 
certain crimes particular technical words must be used, ^°be^'„se[j'^° 
namely, in murder, murdravit ; in rape, rapuit ^ in 
larceny, felonice cejoit ei asportavit. Again, as to the 
intent, treason must be laid to have been done " trai- 
torously;" a felony, "feloniously;" burglary, "felo- 
niously and burglariously ;" murder, " feloniously and 
of his malice aforethought." 

If any essential ingredient of the offence is omitted. Consequences 
or not stated with sufficient certainty, the defendant "' defects. 
may move to quash the indictment, or may demur, or, 
if the defect is not one which is cured by verdict Qi), 
he may move in arrest of judgment, or bring a writ of 
error. All objections to formal defects must be taken 



(e) 14 & 15 Vict. ^. 100, s. 24. 
(/) Ibid. s. 23. 
0;) Arcli. 54. 

(A) As to what defects are cured by verdict, see Hcymann v. R., L. R. 
8 Q. B. 102. 



326 MODES OF PBOSEOUTION. 

before the jury are sworn ; and they may then be 
amended by the court (i). 

Amendment The law as to the amendment of defects in the indict- 
of defects. ment is now on a much more reasonable footing than it 
was at one time. Instead of requiring the evidence 
rigorously and servilely to correspond with the indict- 
ment as it stands when drawn up, extensive powers of 
amendment are given to the court. Whenever there is 
a variance in certain points between the indictment 
and the evidence, it is lawful for the court before which 
the trial is had, if it considers that the variance is not 
material to the merits of the case, and that the defen- 
dant cannot be prejudiced thereby in his defence on 
such merits, to order the indictment to be amended on 
such terms as to postponing the trial, as the court 
thinks reasonable. The points mentioned in the 
statute are the following: (a) in the name of any 
county, riding, division, city, borough, town corporate, 
parish, township, or place mentioned or described in 
such indictment ; or (b) in the name or description of 
any person or persons, or body politic or corporate, 
therein stated or alleged to be the owner or owners of 
any property, real or personal, which shall form the 
subject of any offence charged therein; or (c) in the 
name or description of any person or persons, body 
politic or corporate, therein stated or alleged to be 
injwred or damaged, or intended to be injured or 
damaged, by the commission of such offence ; or (d) in 
the Christian name or surname, or both Christian name 
and surname, or other description whatsoever, of any 
person or person whomsoever therein named or de- 
scribed J or (e) in the name or description of any 
matter or thing whatsoever therein named or described ; 
or (f) in the ownership of any property named or 
described therein (Jc). But in no case will an amend- 



(0 14 & 15 Vict. c. 100, s. 25. 
(Ji) Ibid. s. 1. 



MODES OF PROSECUTION. 



327 



ment which alters the nature or quality of the offence 
be allowed (1). The amendment must be made before 
verdict; and when it is once made there can be no 
amending the amendment, or reverting to the indict- 
ment in its original form. 

(c.) The Conclusion. — The conclusion given in the The conclusion 
foregoing example of an indictment is that which ^^^j° ''"^"''' 
occurs in an indictment for an offence at common law. 
An indictment for an offence created by statute con- 
cludes thus : " against the form of the statute in such 
case made and provided, and against the peace, &c." 
But an error in the form of the conclusion is not now 
material, inasmuch as it has been enacted that no in- 
dictment shall be held insufficient for the omission of 
the words " against the peace," nor for the insertion of 
the words " against the form of the statute," instead of 
" against the form of the statutes," or vice versa ; nor 
for want of a proper or formal conclusion (m). 

Counts. — An indictment very frequently contains Counts, when 
more than one count or charge. The object of the in- inserted '^'^ """^ 
sertion of more than one count is either to charge the 
defendant with different offences, or with a previous 
conviction ; or to describe the single offence in other 
terms, so that proof of one description failing, he may 
be convicted under another. Thus, an indictment for 
wounding generally contains a count for doing grievous 
bodily harm. Again, an indictment for obtaining goods 
by false pretences must state the false pretence cor- 
rectly ; therefore, in order to prevent a failure of 



(0 R. y. Wright, 2 F. & F. 320. 

(m) 14 & 15 Vict. c. 100, s. 24. The same section also provides that no 
indictment shall be insufficient for want of the averment of any matter 
unnecessary to be proved, nor for the omission of the words " as appears 
by the record," nor for that any person is designated by a name of office or 
other descriptive appellation, instead of his proper name ; nor for want of, 
or imperfection in, the addition of any defendant ; nor for the want of the 
statement of the value or price of any matter or thing, or of the amount 
of damage, injury, or spoil, in any case where the value or price, or the 
amount of damage, injury, or spoil, is not of the essence of the offence. 



328 MODES OF PEOSEOUTION. 

justice in consequence of the false pretence not being 
properly stated, it is often necessary to insert different 
counts laying the pretence in different ways. The 
different counts are tacked on hy the insertion of " and 
the jurors aforesaid, upon their oath aforesaid, do say, 
that, &c." 

Charging more As a rule, more than one offence cannot he charged 
fence ^n\hl' ^^ ^^^ Same couut. This is commonly expressed by 
same count, saying that a count must not be doubk, or is had for 
duflieity. Thus one count cannot charge the prisoner 
with having committed a murder and a robbery. There 
are two exceptions to the rule : An indictment for 
burglary usually charges the defendant with having 
broken and entered the house with intent to commit a 
felony, and also with having committed the felony in- 
tended. And in indictments for embezzlement by 
clerks, or servants, or persons employed in the public 
service, or in the police, the prosecution may charge 
any number of distinct acts of embezzlement, not ex- 
ceeding three, which may have been committed against 
the same master within six months inclusive («). But 
even here it is usual to charge the different acts in 
different counts. 

Charging dif- So much for charging different offences in one count. 
in^ different" ■'•* remains to be seen what are the rules as to charging 
counts, a defendant with different offences in different counts 

of the same indictment : — 

in treason, In an indictment for treason, there may be different 

counts, each charging the defendant with different 
species of treason ; for example, compassing the Queen's 
death; levying war, &c. 

in felony. In an indictment ion: felony, there is no objection in 

point of law to charging several different felonies in 



(») 24 & 25 Vict. c. 96, =. 71 ; see also s. 5. 



MODES OF PEOSEOUTION. 329 

different counts, whetlier such felonies be of a different 
character or distinct cases of the same sort of felony ; 
for example, whether they be a burglary and a murder, 
or two cases of murder. But in 'practice, as this course 
would embarrass the prisoner in his defence, it is not 
adopted, and it will be ground for quashing the indict- 
ment, though not for demurrer or arrest of judgment. 
If it is discovered, before the jury are charged, that it 
has been done, the judge may quash the indictment ; 
if after, he may put the prosecutor to his election on 
which charge he will proceed. The same felony may, 
however, be charged in different ways in different 
counts ; as if there is a doubt whether the goods stolen 
are the property of A. or of B., they may be stated in 
one count as the goods of A., in another as the goods of 
B. There are certain exceptions to the rule forbidding 
the charging of distinct- felonies in different counts. 
In an indictment for feloniously stealing any property, 
it is expressly declared lawful to add a count or several 
counts for feloniously receiving the same property, 
knowing it to have been stolen, and vice versa ; and the 
prosecutor is not put to any election, but the jury may 
find a verdict of guilty on either count, against all or 
any of the persons charged (o). Also, in an indictment 
for larceny, it is lawful to insert several counts against 
the same person for any number of distinct acts of 
stealing not exceeding three which may have been com- 
mitted by him against the same person within the 
space of six calendar months from the first to the last 
of such acts, and to proceed thereon for all or any of 
them (p). We have already noticed a similar rule with 
regard to embezzlement (cj). 

If a count for a felony is joined with a count for a Joinder of ;i 
misdemeanor, the indictment will be held bad. if de- mlsdJmeanon 



(o) 24 & 25 Vict. u. 96, ». 92. 
( p) Ibid. s. 5. 
(j) V. p. 328. 



330 



MODES OF PKOSECUTION. 



murred to, or judgment may be arrested if tte verdict 
has been general {i.e., guilty, or not guilty on the 
■whole indictment), but not if the prisoner is convicted 
of the felony alone (r). 



Charging dif- 
ferent mis- 
demeanors in 
different 
counts. 



An indictment for misdemeanor may contain several 
counts for different offences, even though the judgments 
upon each be different, so that the legal character of 
the substantive offences charged be the same (s). Thus, 
evidence of several assaults or several libels will be 
received on the several counts of the same indictment. 
But there are limits, not precisely defined, to this rule ; 
when convenience and justice demands it, the judge 
compelling the prosecution to elect upon which charge 
they will proceed.. In all cases of this character, the 
important consideration is, whether all the acts were 
substantially one transaction. 



Previous con- 
viction, when 
count for. 



In certain cases if the prisoner has been -previously 
convicted, a count is inserted in the indictment charging 
him with such previous conviction. He will have to 
plead to this, and proof may be given, if he denies it, 
as on any other count. The object of putting in this 
count is that the prisoner may have his identity with 
the person so previously convicted proved before the 
severer punishment consequent on a previous conviction 
is awarded. The cases in which such a count may be 
inserted are indictments for (a) felonies (not misde- 
meanors) mentioned in the Larceny Act (<), or (b) for 
offences under the Coinage Act, provided that the pre- 
vious conviction be for some offence against that or 
some other coinage Act (m). 



(r) R. V. Ferguson, 24 L. J. (M.C.) 61. 

(s) V. Younq v. B., 3 T. E. 105. 

(Q 24 & 25 Vict. c. 96, =. 116. 

(m) 24 & 25 Vict. c. 99, s. 37. 27 & 28 Vict. c. 47, ». 2, seems to imply 
that a count for previous conviction of felony may be inserted in an indict- 
jneut for any crime punishable with penal servitude. Rose. 190. 



MODES OF PKOSEOUTION. 



331 



It should be noticed that in some cases the necessity Verdict of 
for adding a second count, or preferring a second in- £\\°f "' 
dictment is obviated by the power which is given to charged in the 
the jury to find the defendant guilty of certain other '" "^ """" ' 
offences than those named in the indictment (as). 

As to the joinder of two or more defendants in one joinder of 
indictment. — When several persons take part in the 'l<=*'™'l«"*s. 
commission of an offence, they may all be indicted 
together, or any number of them together, or each 
separately ; and, of course, some may be convicted and 
others acquitted. But certain offences do not admit 
of a joint commission, for example, perjury. This 
joinder of defendants may be made the subject of de- 
murrer, motion in arrest of judgment, or writ of error ; 
or the court will in general quash the indictment. 

As a rule, there is no time limited after the commis- Cases in which 
sion of a crime within which the indictment must be ""^ time for 

prosecution is 

preferred. The offender is continually liable to be ap- limited. 
prehended and visited with the penalties of the criminal 
law. By particular statutes, however, there are excep- 
tions to this rule; a stated time being fixed after 
which criminal proceedings cannot be commenced. The 
chief cases, times, and the statutes regulating them, 
are the following : — 

Treason, in general, if committed in Great Britain, 
three years, 7 & 8 Wm. 3, c. 3, s. 5. 

Training to arms and military practice, six months, 
60 Geo. 3 & 1 Geo. 4, c. 1, s. 7. 

Gaming offences under the statute, twelve months, 
9 Geo. 4, c. 69, s. 4. 

Offences under the Customs Act, three years, 16 & 

17 Vict. c. 107, s. 303. 

Bribery at parliamentary elections, one year, 17 & 

18 Yict. c. 102, s. 14 ; 26 Vict. c. 29, s. 5. 

Qc) V. p. 425. 



332 



MODES OF PBOSECUTION. 



Indictment 
drawn up and 
indorsed. 



Indictments or informations upon any statute penal, 
whereby the forfeiture is limited to the Sovereign, two 
years, 31 Eliz. c. 5. 

The above where the forfeiture is limited to the 
Sovereign and prosecutor, one year, 31 Eliz. c. 5. 

The indictment is usually drawn up by an officer of 
the court ; the clerk of arraigns or the clerk of indict- 
ments at the assizes, the clerk of the peace at the 
sessions ; but in cases of difficulty the assistance of 
counsel is obtained. On the indictment are indorsed 
the names of the witnesses intended to be examined 
before the grand jury. Here we must leave it for a 
time, merely adding that of course any number of in- 
dictments may be preferred against the same person at 
the same time for distinct offences. 



Information, 
definition of. 



Information ex 
officio. 



B. Information. 

A criminal information is a complaint by the Crown 
in the Queen's Bench Division in respect of some offence, 
not a felony, whereby the offender is brought to trial 
without the previous finding iy a grand jury (y). 

These criminal informations are of two kinds : — 
i. Informations ex officio. 
ii. Informations by the Master of the Crown Office. 

i. An information ex officio is a formal written sug- 



(j/) The term " information " is also used of (i.) the charge made to a 
magistrate of some offence punishable on summary conviction, (ii.) A 
complaint by one who is taking proceedings to recover a penalty, as where 
a statute awards a pecuniary penalty upon conviction for a given offence, 
and ii judicial proceeding is instituted against some offender to recover 
the penalty. Inasmuch as the penalty is generally divided between the 
sovereign and the informer, qui tarn pro domind regind, quam pro se ipso, 
sequitur, they are termed qui tarn actions, (iii.) A complaint of the Crown 
in the Chancery or Exchequer Division in respect of some civil claim, 
(iv.) An information 5110 warranto is a remedy in the Queen's Bench 
Division given to the Crown against such as have usurped or intruded 
into any office or franchise. 



MODES OF PKOSECUTION. 333 

gestion of an offence, filed by the Attorney-General in 
the Queen's Bench Division. It lies for misdemeanors 
only ; for in treason and other felonies it is the policy 
of the English law that a man should not be put upon 
his trial until the necessity for that course has been 
shewn by the oath of the grand jury. The reason for 
the exceptional proceeding without the grand jury is 
that some cases will not admit of the delay involved in 
the usual course of events. Thus, the proper objects 
of this kind of information are such enormous mis- 
demeanors as peculiarly tend to disturb or endanger 
the government, or to interfere with the course of 
public justice, or to molest public officers ; for example, 
seditious libels or riots, obstructing officers in the exe- 
cution of their duties, bribery, &c., by magistrates or 
officers (z). If the Attorney-General delays for twelve 
months to bring the case on for trial, after due notice 
the court may authorize the defendant to do so. An 
information ex officio is in the following form : — 

" Trinity Term, 25 Viet. 
"Middlesex. — Be it remembered that Sir William 
Atherton, Knight, Attorney- General of ow Sove- 
reign Lady the Qiieen, who for ow said Lady 
the Queen prosecutes in this behalf in his proper 
person comes into the court of ow said Lady the 
Queen before the Queen herself at Westminster^ 
in the county of Middlesex, on " &o., &e. (stating 
the facts, &c., and concluding as in an indict- 
ment.) 

ii. Information by the Master of the Crown Office.— Information ty 
A formal written suggestion of an offence, filed in the faster of the 

vJrown (JrncG. 

Queen's Bench Division at the instance of an individual, 
by the Master of the Crown Office, without the inter- 
vention of a grand jury. Here, a point in which this 
differs from the former kind of information, the leave 



(z) 4 Bl. 308. 



334 



MODES OF PROSECUTION. 



of the court has to be obtained. It lies only for mis- 
demeanors, usually those of a gross and notorious 
kind, which, on account of their magnitude or perni- 
cious example, deserve the most public animadversion 
(those peculiarly tending to disturb the government 
being usually left to the Attorney-G-eneral as above), 
for example, bribery at elections, aggravated libels, &c. 



Proceedings on TJig coursc of proceedings IS the following : - An ap- 

information by ,. ,. - -, j. i . i t 

Master of the plicatiou IS made tor a rule to shew cause why a 
Crown Office, criminal information should not be filed against the 
party complained of. This application must be founded 
upon an affidavit disclosing all the material facts of 
the case. If the court grants a rule nisi, it is after- 
wards, upon cause being shewn, discharged or made 
absolute as in ordinary cases. 

The form of this kind" of information is similar to 
that of an information ex officio, substituting the name 
of the Queen's coroner and attorney for that of the 
Attorney-General. 



Information, 
how tried. 



Coroner's 
inquisition. 



When a criminal information has been filed either 
by the Attorney-General ex officio or by the Master of 
the Crown Office, it must be tried in the usual manner 
by a petty jury of the county where the offence arose. 
For that purpose, unless the case is of such importance 
as to call for a trial at bar, it is sent down by writ of 
JVm Prius into that county and tried either by a com- 
mon or special jury like a civil action. If the defendant 
is found guilty, he must afterwards receive judgment 
from the Queen's Bench Division (a). 

Coroner's Inquisition (b). 

A coroner's inquisition is the record of the finding 
of the jury sworn to inquire, super visum corporis, con- 



(a) 4 Bl. 308. 
(6) V. p. 299. 



MODES OF PROSECUTION. 335 

cerning the death. On this a person may be prosecuted 
for murder or manslaughter without the intervention 
of a grand jury, for the finding of the coroner's jury is 
itself equivalent to the finding of a grand jury. The 
defendant is arraigned on the inquisition as on an in- 
dictment ; and the subsequent proceedings are the 
same. The practice is, when a prisoner stands charged 
on a coroner's inquisition with murder or manslaughter, 
to take him before the magistrate and to prefer also an 
indictment against him. Of course, he is tried both on 
the inquisition and the indictment at the same time. 
Thus, the sum of the whole matter is that the finding 
of the coroner's jury and the inquisition are practically 
disregarded and useless as far as criminal proceedings 
are concerned. 

The proceedings are shortly the following : — On re- Proceedings 
ceiving due notice of the sudden or violent death, the coronei*'' 
coroner issues his precept to the officers of the place 
where the body lies dead, requiring them to summon a 
jury (which must consist of twelve at least), and names 
the time and place of inquiry. At the court the jury 
are sworn, and then view the body. The witnesses are 
examined on oath, and their evidence is put into writ- 
ing by the coroner. He has authority to bind by 
recognizance all material witnesses to appear at the 
assizes to prosecute and give evidence ; and he must 
certify and subscribe the evidence and all such recog- 
nizances and the inquisition before him taken, and 
deliver the same to the proper officer of the court in 
which the trial is to be, before or at the opening of the 
court (e). 

The inquisition consists of three parts : the caption The inqnisi- 
or incipitw, the verdict of the jury, and the attesta- *''"'• 
tion {d). The rules as to certainty, description, &c.. 



(c) 7 Geo. 4, c. 64, s. 4. 

(d) For example, v. Arch. 126. 



336 



MODES OP PEOSECUTION. 



which prevail in the case of an indictment apply also 
to an inquisition. 



Committal for 
trial by 
coroner. 



Proceedings 
rarely other- 
wise than by 
indictment. 



When the jury have returned a verdict of murder or 
manslaughter against a person, the coroner must com- 
mit him for trial, if present. If not in custody, the 
coroner may issue a warrant for his apprehension, and 
order him to be brought before himself or some magis- 
trate of the jurisdiction (e). 

From the foregoing inquiry we find that, apart from 
proceedings by way of summary conviction, practically 
the only modes of criminal procedure are by way of 
indictment or information. Of these the former is 
much the inore common ; and, unless anything be 
stated to the contrary, it will be this mode that will be 
kept in view in the succeeding pages (/). 



(c) As to bail by coroners, t. p. 319. 

(/) The old mode of trial by appe-il, involving a trial by battle, abolished 
after Thornton's Case (1 B. & Aid. 405), by 59 Geo. 3, c. 46, may just be 
mentioned. 



( 337 ) 



CHAPTEE VI. 

PLACE OF TRIAL. 

We have already intimated (ff) that the venue in the Place of trial 
indictment, or place from which the grand jury who "ounty^ &a, in 
have found the bill have come, is also, in regular course, which the 
the place where the trial is had. It is now neces- cominitted. 
sary to ascertain what that place is. The general 
common law rule is, that the venue should be the juris- 
diction within which the offence was committed ; 
whether such jurisdiction be a county, a division of a 
county, a district including more than a county, as in 
the case of the Central Criminal Court, or a borough. 
To the general rule many exceptions have been made Exceptions. 
by statute; and these we now proceed to enumerate 
and classify : — 

i. The venue may be laid in any county (/;) for the in any county. 
following offences : — 

Extortion (i). 

Eesisting or assaulting officers of the excise (k). 

Offences against the revenue of the customs (Z). 

Endeavouring to seduce soldiers or sailors from their 
duty, or inciting them to mutiny (m). 

ii. The venue may be laid in the county where the in connty of 

crime, or 

where defen- 

, ^ „no dant is appre- 

((/) V. p. 323. ^^^^^^ ^,^.^ 

(A) By " county " in this chapter must be understood county, division of , , 

county, district, or borough, as the case may be. ' •'' 

(»■) V. 31 Eliz. c. 5, s. 4. 

(/i) 7 & 8 Geo. 4, c. 53, s. 43. 

(0 16 & 17 Vict. c. 107, s. 304. 

(m) 37 Geo. 3, c. 70, s. 2 ; 57 Geo. B, c. 7. 

Z 



338 PLACE OF TRIAL. 

offence was committed, or where the offender is appre- 
hended, or is in custody : — 

Forgery, or uttering forged notes (w). 

Bigamy (the second marriage being the offence) (o). 

Larceny or embezzlement by persons in the public 
service, or the police {f). 

Offences relating to the Post Office : (if committed 
upon a mail, or person conyeying letters, or in respect 
of a post-letter, chattel, money, &c., sent by post, the 
venue may be either as above, or any county through 
any part of which the mail, person, letter, chattel, &c., 
has passed in due course of conveyance by post) (g). 



county. 



In county of iii. Either where the offence was committed, or in 
adi^ning ^ny adjoining county :— 

Plundering a wrecked ship (r). 

Where the offence was committed within the county 
of a city or town corporate (except London, West- 
minster, or Southwark), e.g., Berwick, Newcastle, Bris- 
tol, Chester, Exeter, and Hull, it may be tried in the 
next adjoining county (s). 

Where a felony or misdemeanor is committed on the 
boundary of two or more counties, or within five hundred 
yards of the boundary, or is begun in one county and 
completed in another, the venue may be laid in either 
county (t). 



(j») 24 & 25 Vict. c. 98, s. 41. 
(o) 24 & 25 Vict. c. 100, s. 57. 
Ip) 24 & 25 Vict. c. 96, s. 70. 
Iq) 7 Wm. 4 & 1 Vict. c. 36, s. 37. 
(r) 24 & 25 Vict. c. 96, s. 64. 

(s) 38 Geo. 3, u. 52 ; 51 Geo. 8, c. 100 ; 14 & 15 Vict. c. 55, ss. 19, 21, 
23, 24 ; 0. 100, s. 23. 
(0 7 Geo. 4, K>. 64, s. 12. 



PLACE OF TRIAL. 339 

iv. Where the offender is or is brought : — County in 

which defen- 

Offences against the customs on the high seas, the ^aut is ov is 
offender coming to land (u). 

Forcing on shore, or leaving behind in any place out 
of the Queen's dominions any of the crew (x). 

V. In either county, where the offence was committed Where the 
partly in one, partly in another :— lommhJei 

Uttering counterfeit coin in one county and within county, partly 
ten days uttering in another ; or two persons acting in '" another. 
concert in two or more counties («/). 

Larceny, simple or compound, is committed in one 
county and the thief carries the goods into another ; 
he may be indicted for the simple or compound larceny 
in the county where he committed it ; or as for simple 
larceny in the county into which, or in any of the 
counties through which, he carried the goods (2). 

Conspiracy, &c., where acts are done in furtherance 
of the design in different counties. 

Libels, threatening letters, challenges, &c., either in 
the county from which sent, or where received. 

And, generally, where the offence is begun in one 
county and completed in another, the venue may be 
laid in either county (a). 

vi. In felonies or misdemeanors committed upon any Offences com- 
person, or on, or in respect of any property, in or upon ™"^^ °J^^ 
any coach, cart, or other carriage employed in any land or water. 
journey, or any vessel employed in river, canal, or 
inland navigation, the venue may be laid in any county 



(w) 16 & 17 Vict. c. 107, s. 275. 

(x) 17 & 18 Vict. c. 104, ss. 207, 520. 

((/) 2-t & 25 Vict. c. 99, s. 28. 

(^) 24 & 25 Vict. c. 96, s. 114; v. Arch. :J4. 

(a) 7 Geo. 4, c. 64, s. 12. 

z 2 



340 



PLACE OP TRIAL. 



Receivers, 
where tried. 



Accessories, 
where tried. 



Blow, &c., 
followed by 
death. 



Keturning ' 
from trans- 
portation, &c. 



througli which the coach, or through which or between 
which the vessel passed in the journey {b). 

vii. Eeceivers of stolen property whether charged as 
accessories after the fact, or with a substantive felony, 
or with a misdemeanor only, may be tried in the county 
in which they have or had the property in their pos- 
session, or in which the principal may be tried (c). 

viii. In the case of felonies wholly committed within 
England or Ireland, accessories before the fact (who, 
however, may now be tried in aZZ respects as if principal 
felons) ((£), and accessories after the fact, may be tried 
(a) by any court which has jurisdiction to try the prin- 
cipal ; or (b) in any county in which the act by reason 
of which such person is an accessory has been com- 
mitted. In other cases (i.e., when not wholly committed 
within England or Ireland), by any court having juris- 
diction to try the principal felony or any felonies 
committed in any county in which the accessory is 
apprehended or in custody (e). 

ix. "Where any person being feloniously striken, 
poisoned, or otherwise hurt upon the sea, or at any 
place out of England and Ireland, dies in England or 
Ireland, or vice versa, the offence may be dealt with in 
any county in England or Ireland in which the death, 
or the stroke, poisoning, or hurt happened (/). 

X. In indictments for being at large before the expira- 
tion of a sentence of transportation or penal servitude, 
the venue may be laid either in the county where the 
defendant is apprehended, or in that from which he was 
ordered to be transported, &c. (^). 



(6) 7 Geo. 4, c. 64, s. 13. 

(c) 24 & 25 Vict. c. 96, ». 96. 

Id) V. p. 36. 

(e) 24 & 25 Vict. c. 94, s. 7. 

(/) 24 & 25 Vict. c. 100, s. 10. 

{(j) 5 Geo. 4, c. 84, s. 22 ; 20 & 21 Vict. 



. 3, s. 3. 



PLACE OF TRIAL. 



341 



xi. As to offences committed abroad : — Offences com- 

mitted abroad. 

Wtere treason or misprision of treason is committed 
out of the realm (i.e., out of the United Kingdom of 
Great Britain and Ireland), the venue may be laid in 
Middlesex, if the trial is to be in the Queen's Bench 
DiTision, or in such county as the Queen names, if she 
appoints a commission to try the offence (h). 

When a subject of the Queen commits homicide on 
land out of the United Kingdom, he is tried in any 
county in England or Ireland where he is apprehended 
or is in custody (i). 

For offences committed on the high seas and other 
places within the jurisdiction of the Admiralty (Jc), the 
offender may be tried in any county where he is in 
custody ; or if the crime is an indictable offence men- 
tioned in one of the Consolidated Acts, also where he is 
apprehended (l). 

In the case of indictments preferred at the Central C c. c. 
Criminal Court, the district within its jurisdiction (m) 
is to be deemed as one county, and the venue is 
" Central Criminal Court, to wit." Offences committed Detached parts 
in detached parts of counties may be dealt with as if "^ ^^^t'^^- 
committed in the county wholly or in part surround- 
ing (m). 

(/.) 35 Hen. 8, c. 2, s. 1. 

(j) 24 & 25 Vict. c. 100, s. 9. 

(h) As to jurisdiction on the high seas, v. i2. v. Keyn, 46 L. J. (M.C.) 17. 

(0 T. 7 Geo. 4, c. 64, ». 27 ; 7 & 8 Vict. c. 2 ; 18 & 19 Vict. c. 91, s. 21 ; 
30 & 31 Vict. c. 124, s. 11 ; 24 & 25 Vict. c. 96, s. 115 ; .;. 97, s. 72 ; 
c. 98, s. 50 ; c. 99, o. 36 ; u. 100, s. 68. 

(m) V. p. 292. 

(») 2 & 3 Vict. li. 82, a. 1. 



( 342 ) 



CHAPTEE VII. 

THE GRAND JUEY. 

The bill of indictment (as yet it is only a " bill," and 
is not correctly termed an indictment until found true 
by the grand jury) baving been drawn up, tbe next 
step is to submit it to tbe grand jury. 

The grand Wbo are tbe grand jury ? Tbe sberiff of every 

jury, how countv is required to return to every sessions of tbe 

chosen. j ■ • r t . ■ i 

peace, and every commission oi oyer and terminer, and 
of gaol delivery, twenty -four good and loyal men of tbe 
county " to inquire into, present, do and execute all 
tbose tbings wbicb, on tbe part of our Lady tbe Queen, 
sball tben be commanded tbem." Grand jurors at tbe 
assizes, or at tbe borougb sessions (at tbe latter tbey 
must be burgesses, 5 & 6 Wm. 4, c. 76, s. 121), do not 
require any qualification by estate ; at tbe county 
sessions tbey must bave tbe qualification required of 
petty jurors (o). At tbe assizes, tbe grand jury gene- 
rally consists of gentlemen of tbe bigbest position in 
tbe county. 

The grand jury After tbe court bas been opened in tbe usual way by 
cha™ed'"^ tbe crier making proclamation, tbe names of tbose 
summoned on tbe grand jury are called. As many as 
appear upon tbis panel are sworn. Tbey must number 
twelve at least, but not more tban twenty-tbree, so 
tbat twelve may be a majority. Tbe usual proclama- 
tion against vice and profaneness is read; and tben 
tbe person presiding in tbe court — the judge at tbe 

(o) 6 Geo. 4, C..50, s. 1. 



THE OKAND JURY. 343 

assizes, the chairman at the county sessions, the 
recorder at the borough sessions^charges the grand 
jury. The object of this charge is to assist the grand 
jury in coming to a right conclusion, by directing their 
attention to points which require special attention. 
He explains the force of any recent enactments, or any 
not frequently applied, which bear upon the matters 
laid before them. He also draws their attention, if 
necessary, to crimes which are liable to be confused, 
for example, larceny and embezzlement ; and in general 
directs their inquiries to the proper channel. 

The charge haying been delivered, the grand jury Examination of 
withdraw to their own room, having received the bills ^'e^^ran^i''^ 
of indictment. The witnesses whose names are in-jm-y. 
dorsed on the bill are sworn as they come to be 
examined in the grand jury room ; the oath being ad- 
ministered by the foreman, who, as each witness is 
examined, writes his initials opposite to the name on 
the back of the bill (p). Only the witnesses for the 
prosecution are examined, seeing that the function of 
the grand jury is merely to inquire whether there is 
sufficient ground to put the accused on his trial. If The finding of 
the maiority of them think that the evidence adduced ^^^ ^^^'^^ 
makes out a sufficient case, the words " a true bill " are 
indorsed on the back of the bill ; if they are of the 
opposite opinion, the words " not a true bill " are so 
indorsed, and in this case the bill is said to be ignored. 
They may find a true bill as to the charge in one count, 
and ignore that in another ; or as to one defendant and 
not as to another ; but they cannot, like a petty jury, 
return a special or conditional finding, or select parts 
of the counts as true and reject the rest. When one 
or more bills are found, the grand jury come into 
court and hand the bills to the clerk of arraigns, or 
clerk of the peace, who states to the court the name of 
the prisoner, the charge, and the indorsement of the 



(/>) 19 & 20 Vict. c. 54, =. 1. 



344 



THE GBAND JUEY. 



grand jury. They then retire and consider other bills, 
until all are disposed of; after which they are dis- 
charged hy judge, chairman, or recorder, presiding. 

Consequences If the bill is thrown out or " cut," although it cannot 
thrown out°'°^ again be preferred to the grand jury during the same 
assizes or sessions, it may be preferred and found at 
subsequent assizes or sessions, of course within the 
time limited, if there be any time so limited (q). We 
may anticipate, by reminding the reader that this 
cannot be done in respect of the same offence if the 
petty jury have returned a verdict ; unless, indeed, the 
prisoner is acquitted, on a charge of felony, merely on 
the ground that the proof establishes an act short of 
the felony charged, but which amounts to a mis- 
demeanor, or another kind of felony. In such ease 
the court orders him to be detained ; and the proper 
course is to take him before the magistrate again. 



Bills preferred 

without 

previous 

examination 

before a 

magistrate. 



Vexatious 

Indictments 

Act. 



We have pursued the ordinary method of criminal 
procedure by supposing that, in the first instance, there 
has been an examination before the magistrate. But 
this does not always take place. With certain excep- 
tions, a person may prefer a bill of indictment against 
another before the grand jury without any previous 
inquiry into the truth of the accusation before a ma- 
gistrate. This general right was, at one time, an 
universal right, and was often the engine of tyranny 
and abuse. It is easy to conceive how an innocent 
man's character might be injured, or at least how he 
might be put to great expense and inconvenience in 
defending himself against a charge founded on a true 
bill returned by the grand jury, who have heard only 
the evidence for the prosecution. A substantial check 
was put upon this grievance by the Vexatious Indict- 
ments Act (r). It provides that no bill of indictment 



(?) Arch. 80. T. p. 331. 
(r) 22 & 23 Vict. c. 17. 



THE GKAND JTJEY. 



345 



for any of the offences enumerated below shall be pre- 
sented to or found by a grand jury unless one of the 
folio-wing steps has been taken :— (a) The prosecutor 
or other person presenting such indictment has been 
bound by recognizance to prosecute or give evidence 
against the accused ; or (b) the accused has been com- 
mitted to or detained in custody, or has been bound by 
recognizance to appear to answer an indictment for 
such offence (s) ; or (c) unless the indictment has been 
preferred by the direction, or with the consent in 
writing, of a judge of the High Court, or the Attorney 
or Solicitor-General of England, if the offence has been 
committed in England ; or of a judge of one of the 
superior courts of law in Dublin, or the Attorney or 
Solicitor-General of Ireland, if the offence has been 
committed in Ireland ; or (d) in case of an indictment 
for perjury, by the direction of any court, judge, or 
public functionary, authorized by 14 & 15 Vict. c. 100, 
to direct, a prosecution for perjury. The offences Offences dealt 
referred to are : — Perjury, subornation of perjury, ^J,* '" ' '^ 
conspiracy, obtaining money or property by false pre- 
tences, keeping a gambling house, keeping a disorderly 
house, indecent assault ; and now, by the Debtors Act, 
1869 (t), any misdemeanor under the second part of 
that Act. The object of this salutary provision was 
furthered by a subsequent statute (m), one section of 
which (sect. 2) allows the court trying an indictment 
for any of such offences, in its discretion, to order the 
prosecutor to pay costs and expenses to. the accused in 
the event of the latter's acquittal. 



(s) See s. 2 as to a justice refusing to commit or bail, 
(i) 32 & 33 Vict. c. 62, s. 18. 
(M) 30 & 31 Vict. c. 35. 



( 346 ) 



CHAPTER VIII. 

PKOCBSS. 

Process, The grand jury have found a true bill. The next point 

to be considered is the process (the writs or judicial 
means) issued, or made to proceed, to compel the atten- 
dance of the accused to answer the charge. Of course 
this is not required if he is in custody or surrenders to 
his bail ; in such case he may be tried as soon as is 
convenient. If he is in custody of another court for 
some other offence, the course is to remove him by a 
writ of habeas corpus, and bring him up to plead. But 
if he is already in the custody of the same court, there 
is no need for such writ (a;). 

wiien it issues. If, howcver, an indictment has been found in the 
absence of the accused, he having fled or secreted him- 
self so as to avoid the warrant of arrest, or has not 
been bound over to appear at the assizes or sessions, 
then process must issue to bring him into court. It is 
contrary to the policy and humanity of the English 
law to try an indictment in the absence of the 
accused (t/). 

Warrant Procoss in Ordinary cases is now regulated by 11 & 

issued by a 12 Vict. c. 42, s. 3. When an indictment has been 

magistrate. <. n , ,i • • • i 

found at the assizes or sessions against some person 
who is at large, the clerk of indictments, or clerk 
of the peace, after such assizes or sessions, upon the 
application of the prosecutor or any person on his 



{x) 30 & 31 Vict. u. 3j, ». 10. 
(i/) But V. p. 358. 



PEOCESS. 



347 



behalf, will grant a certificate of such indictment 
haTing been found. Upon production of this certifi- 
cate to any justice of the jurisdiction where the ofi'ence 
is alleged to have been committed, or in which the 
accused resides, or is, or is suspected of residing or 
being, such justice may and must issue his warrant to 
apprehend the person so indicted and bring him before 
some justice of the jurisdiction, who, upon proof by 
oath that the person present is the person indicted, 
will, without further inquiry or examination, commit 
him for trial or admit him to bail (z). Provision is 
also made for the bacting of such warrant if the 
accused is out of the above jurisdiction (a). If he is 
already in prison, the justice must issue his warrant 
to the gaoler ordering him to detain him until re- 
moved by habeas corpus or otherwise in due course of 
law (6). 

Another mode of proceeding is, for the court before Bench wiinunt. 
whom the indictment is found to issue a heneJi warrant 
for the arrest of the accused, and to bring him imme- 
diately before such court. At the assizes it is signed 
by the judge, at sessions by two justices of the peace. 
Any judge of the Queen's Bench Division, upon affi- 
davit or certificate that an indictment has been found, 
or information filed in that court, may issue his war- 
rant for apprehending and holding the accused to 
bail; and in default of bail he may commit him to 
prison (c). 

In cases not provided for as above, the following are Process in 
the steps. In misdemeanors, when the indictment is °'^'^^' ""'^'^''" 
found, a writ of venire facias ad respondendum (which 
may be issued by the Queen's Bench Division, a judge 
of assize, or a court of quarter sessions) is issued, its 



(z) 11 & 12 Vict. c. 42, s. 3. 

(a) Ibid. s. 11. 

(6) Ibid. s. 3. 

(c) 48 Geo. 3, c. 58, s. 1. 



348 PROCESS. 

nature being a summons to cause the party to appear. 
If he makes default in appearing to answer" to this 
writ, a writ of distringas may be issued from time to 
time. If he still fails to appear, and the sheriff makes 
return that he has no lands, a writ of capias ad respon- 
dendum, commanding the. sheriff to take his body to 
answer the charge, may be issued; and if he is not 
taken upon the first eapias, a second and a third, 
termed an alias and a pluries, may issue. Upon an 
indictment for felony a capias may issue in the first 
instance. 

Outlawry, If none of these modes of summary process are 

effectual, the accused is liable to outlavrry, the conse- 
quences differing according as the charge is one of 
misdemeanor or of felony. 



in misde- First, in the case of misdemeanors. — The proceedings 

"' are by venire facias, distringas, capias, alias capias, 

pluries eapias, as above. If none of these measures 
accomplish their object, a writ of exigent is awarded, 
by which the sheriff is required to proclaim or exact 
the defendant, and call him five successive county court 
days, charging him to appear upon pain of outlawry. 
The defendant still not appearing, on the fifth county 
court day judgment of outlawry is pronounced by one 
of the coroners for the county. The judgment of out- 
lawry in misdemeanors operates as a conviction of the 
contempt for not answering {d). 

in felonies. In felonies (including treason) the proceedings are 

more summary, though they are followed by graver 
consequences. The first process is a capias, and the 
other proceedings ensue as above. The outlawry 
amounts to a conviction or attainder of the offence 
charged in the indictment, as if the defendant had 
been found guilty by a jury. Formerly, an outlawed 

(rf) Arch. 86. 



PEOOESS. 



349 



felon was considered as literally out of the pale of the 
law, and might be killed by any one; but now, of 
course, it would be murder, unless the killing were 
caused in an endeavour to apprehend him. Any one 
may arrest an outlaw on a criminal prosecution, either 
of his own head, or by writ or warrant of capias utla- 
gatum, in order to give him up to the law (e). 

The general consequences of outlawry, both in Consequences 
felonies and misdemeanors, are the following: — The" ""''"^'y- 
person outlawed is civiliter mortuus. His goods are 
forfeited from the exigent, his lands from the outlawry, 
and the Act abolishing forfeiture in general does not 
interfere with this (/). He cannot hold property 
given or left to him. He cannot sue on his ov^n con- 
tract, nor can he sue for the redress of any injury. 
He may be a witness, but cannot be a juror {g). 

As to the reversal of the outlawry. — If there has Reversal nf 
been any mistake or omission in the proceedings, or •'""■'awry. 
for other cause — for example, if the defendant was in 
prison — the accused may have the benefit of this. In 
cases of felony he must render himself into custody 
and pay the allowance of the writ of error in person ; 
if it be reversed, he must still meet the indictment. 
In other cases he may appear by attorney (h). 

Process on informations is similar to that on indict- Process on 
ments. But the first process is by writ of svhpoena, infoim^tions- 
instead of venire ; and then, if this is not effectual, a 
capias. But if it is necessary to proceed to outlawry, 
the first process is by venire facias (as in an indictment 
for misdemeanor), and not by subpoena (i). 



(e) 4 Bl. 319. 

(/) 33 & 34 Vict. u. 23, s. 1. 

(^) r. Bac. Abr. 

(A) 4 & 5 Vfm. 3, c. 18. v. Solomon v. Graham, h Ell. & BI 320 

(0 V. 1 Chit. Cr. L. 86.5. 



350 



PROCESS. 

The appearance of the accused having been enforced 
in this way, or voluntarily made, the next step is to 
arraign him. But we must first treat of an excep- 
tional proceeding, which sometimes at this stage 
intervenes to remove the proceedings to a higher 
court. 



( 351 ) 



GHAPTEE IX. 

CEETIOEAUI. 

We have already ascertained where the trial of an Certiorari. 
offence will, in the regular course of things, take place. 
But any criminal proceeding may be removed by a writ 
of certiorari into the Queen's Bench Division, the 
supreme court of criminal jurisdiction. This writ is 
directed to the inferior court, requiring it to return 
the records of an indictment or inquisition depending 
before it, so that the party may have a trial in the 
Queen's Bench Division, or before such justices as the 
Queen shall assign to hear and determine the cause. 
The result is, that the jurisdiction of the inferior 
court is superseded j all proceedings there are illegal, 
unless the Queen's Bench remands the record back to 
the inferior court for trial. The proper time to apply when the writ 
for this writ is before issue is joined on the indictment, should be 
or at least before the jury are sworn ; but it has been 
allowed at any time before judgment, and even after- 
wards, when error does not lie. But applications at 
such a stage are discouraged, and special cause must be 
shewn (k). 

In what cases is it granted ? It is demandable as in what cases 
of right by the Crown, and issues as of course when S"'^"'*'''- 
the attorney-general or other officer of the crown 
applies for it, either as prosecutor or as conducting the 
defence on behalf the Crown (I). Formerly it was 
granted almost of course to private prosecutors ; but 



(A) 2 Hawk. o. 27, s. 28. v. S. v. Garside, 2 A. & E. 266. 
(0 £. V. Eaton, 2 T. R. 89. 



352 CERTIORARI. 

now by them, as by defendants, leave must be applied 
for, and this may be refused (m). It is also provided 
that no indictment (except indictments against bodies 
corporate not authorized to appear by attorney in the 
court in vrhich the indictment is preferred) shall be 
removed into the Queen's Bench Division or. Central 
Criminal Court by writ of certiorari, either at the 
instance of prosecutor or of defendant (except the 
attorney-general on behalf of the Crovm) unless it be 
made to appear to the court from which the writ is to 
issue, by the party applying the same, (a) that a fair 
and impartial trial of the case cannot be had in the 
court below ; or (b) that some question of law of more 
than usual difficulty and importance is likely to arise 
upon the trial ; or (c) that it may be necessary to have 
a view of the premises in respect whereof the indict- 
ment is preferred ; or (d) that a special jury may be 
required to insure a satisfactory trial (m). But, among 
other cases, an application by the defendant will not be 
granted for the removal of an indictment for perjury, 
forgery, or other heinous misdemeanors when the delay 
tends to defeat the prosecution (o), nor for murder {f). 
Nor in general will it be removed from a court of com- 
petent jurisdiction where one of the judges presides, 
except by consent of the prosecutor {q). 

Mode of obtain- The mode of obtaining the writ is the following: — 
ing e wri . rpj^g application must be founded on an affidavit sug- 
gesting adequate ground for the removal. Motion 
must be made in court, or to a judge in chambers, and 
leave obtained, and this whether the application is 
made on the part of the prosecution or of the defence (r). 
When it is granted at the instance of the defendant, 



(ni) 5 & 6 Wm. 4, c. 33. 

(ji) 16 & 17 Vict. 0. 30. ». 4. 

(o) 2 Hawk. c. 27, s. 28. 

Ip) R. t. Mead, 3 D. & R. 301. 

((/) Arch. 99, 

(r) 5 & 6 Wm. 4, u. 33, ». 1. 



CERTIOBAEI. 353 

the amount of recognizance to he entered into before a 
judge of the Queen's Bench Division, or a justice of 
the jurisdiction where the defendant resides, by the de- 
fendant and his bail, is ordered by the court and indorsed 
on the writ (s). Moreover, when at the instance of the Costs. 
defendant, this recognizance must contain the further 
provision that the defendant, if convicted, will pay to 
the prosecutor his costs incurred subsequent to the 
removal of the indictment ; and when at the instance 
of the prosecutor, he must enter into a recognizance 
with the condition that he will pay the defendant, if 
acquitted, the costs incurred subsequent to such re- 
moval (t). And if such recognizance be not entered 
into by the parties at whose instance the certiorari 
is awarded, the court proceeds to trial as if the writ 
had not been awarded (u). It is after this recogni- 
zance has been lodged with the clerk of assize or clerk 
of the peace that all proceedings in the court below are 
erroneous. 

Provision is made by statute (x) for the trial at the Trial at 
Central Criminal Court of indictments or inquisitions ^' 
for felonies or misdemeanors committed out of the 
jurisdiction of the Central Criminal Court, which have 
been removed by certiorari into the Queen's Bench 
Division; and for the removal of such indictment or 
inquisition by order of the Queen's Bench Division 
directly into the Central Criminal Court from an 
inferior court. 



(s) 5 & 6 Wm. & M. c. 11 ; 5 & 6 Wm. 4, u. 33. 

(0 16 & 17 Vict. e. 30, s. 5. 

(m) Ibid. s. 7. 

{x) 19 & 20 Vict. c. 16, ss. 1, 3. 



2 A 



( 354 ) 



Time of trial 



in felonies. 



in misde- 
meanors. 



CHAPTEE X. 

TIME OF TRIAL, ETC. 

A TETJE bill has been found against the defendant, and 
his attendance has been secured by one of the means 
indicated above. When will he take his trial at the 
hands of the petty jury ? 

Indictments for felony afe tried at the same assizes 
or sessions at which they are found by the grand jury. 
The trial may, however, be postponed to the next 
assizes or sessions, on the application of either the 
prosecutor or the defendant. But he must satisfy the 
court by affidavit that there is sufficient cause for the 
postponement, such as the illness or unavoidable 
absence of a material witness. The defendant will be 
detained in custody till the trial, or admitted to bail ; 
or, if the application for postponement is made by the 
prosecution, the defendant may be discharged on his 
own recognizances (y). 

In misdemeanors, formerly when the defendant was 
not in custody, it was the practice not to try him at 
the same assizes or sessions at which he pleaded not 
guilty to the indictment, but to require him to give 
security to appear at the next assizes or. sessions. But 
now it is provided generally that, — No person prose- 
cuted is entitled to traverse or postpone the trial of 
any indictment found against him at any session of the 
peace, session of oyer and terminer, or of gaol delivery : 
provided always, that if the court, upon the application 



(y) R. V. Beardmore, 7 C. & P. 497. 



TIME OF TRIAL, ETC. 355 

of the person so indicted or otherwise, be of opinion 
that he onght to be allowed a further time, either to 
prepare for his defence or otherwise, such court may 
adjourn his trial to the next subsequent session, upon 
such terms as to bail or otherwise as seem proper to the 
court, and may respite the recognizances of the prose- 
cutor and witnesses accordingly, in which case the 
prosecutor and witnesses are bound to prosecute and 
give evidence at such subsequent session without 
entering into any fresh recognizance for that pur- 
pose (z). 

As to the order of trial of prisoners at the same Order of trial, 
assizes or sessions, the indictments found are filed 
by the clerk of arraigns or clerk of the peace in the 
order in which they are received from the grand 
jury. And, roughly speaking, this is the order of trial, 
felonies, as a rule, being taken before misdemeanors, 
and cases in which the defendant is in custody before 
bail cases. But this arrangement is subject to the 
discretion of the judge, who constantly sets it aside to 
suit the convenience of counsel, and for other purposes. 

AREAIGNMENT (o). 

The arraignment, or requiring the prisoner to answer Arraignment, 
to the charge of an indictable offence, consists of three 
parts : — 

(a.) Calling the prisoner to the bar by name, 

(b.) Eeading the indictment to him. 

(c.) Asking him whether he is guilty or not of the 
offence charged. 

The former practice of requiring him to hold up his 
hand for the purpose of identification is now generally 



(2) 14 & 15 Vict. u. 100, =. 27. 
(a) Ad rationem — ad reson — a rean. 

2 A 2 



356 TIME OP TKIAL, ETC. 

disused, unless it be adopted in order to distinguish 
between two or more prisoners who are being arraigned 
at the same time. Nor is the prisoner now asked how 
he will be tried, it being taken for granted that he will 
be tried by a jury. He is to be brought to the- bar 
without irons, or any manner of shackles or bonds, 
unless there is evident danger of escape. In felonies 
he must be placed at the bar of the court, though in 
misdemeanors this does not seem necessary (b). If 
several defendants are charged in the same indictment, 
they ought all to be arraigned at the same time. It 
is usual, for convenience' sake, to arraign several 
prisoners immediately in succession, and then to pro- 
ceed to the trial of one, the rest being put down for the 
time. 

Taking the The indictment having been read to the prisoner, 

'' ''^' the clerk of arraigns, or clerk of the peace, or other 

proper officer of the court, demands of him, " How say 
you, John Styles, are you guilty or not guilty ?" One 
of three courses will then be taken by the prisoner. 
He will either 

(a.) Stand mute, (b.) Confess, or say that he is 
guilty, (c.) Plead. 

standing Standing mute, that is, not answering at all, or 

"""*"• answering irrelevantly. In former times, if, in cases 

of felony, this standing mute was obstinate, the sentence 
oi peine forte et dure followed (c); in treason and mis- 
demeanor the standing mute was equal to a conviction. 
Later, in every case it had the force of a conviction (c2). 
If the prisoner was dumb ex visitatione Dei, the trial 
proceeded as if he had pleaded not guilty. But now, if 
the prisoner stands mute of malice, or will not answer 
directly to the indictment or information, the court 



(6) S. V. Lovett, 9 C. & P. 462. 

(c) V. Reeves's Hist, of Eng. Law, ii. 134, iii. 133, 250, 418. 

(d) 12 Geo. 3, u. 20. 



TIME OF TRIAL, ETC. 357 

may order the proper officer to enter a plea of not 
guilty on behalf of such person ; and the plea so entered 
has the same force and effect as if the person had 
actually so pleaded (e). If it is doubtful whether the 
muteness be of malice or ex visitatione Dei, a jury of 
any twelve persons present may be sworn to discover 
this. If they find him mute of malice, 7 & 8 Geo. 4, 
c. 28, will apply ; if mute ex visitatione Dei, the court 
will use such means as may be sufficient to enable him 
to understand the charge and make his answer ; or if 
this be found impracticable, a plea of not guilty will 
be entered and the trial proceed. 

In the event of a doubt arising as to the sanity of a Doubt as to 
prisoner at the time of his arraignment, a jury will be pj^g'^^" ^j 
sworn to ascertain the state of his mind. If they find time of 
him insane, so that he cannot be tried on the indict- "'^'S"""^" • 
ment, it is lawful for the court before whom he is 
brought to be arraigned to direct such finding to be 
recorded ; and thereupon to order such person to be 
kept in strict custody until Her Majesty's pleasure be 
known. If he does not seem able to distinguish be- 
tween a plea of guilty and not guilty, this is enough to 
justify the jury in finding him of unsound mind. So- 
also if he has not sufficient intellect to comprehend the 
course of proceedings, so as to make a proper defence, 
and challenge jurors, and the like (/). It will be re- 
membered that although the prisoner was sane when 
the crime was committed, if he appears to be insane 
at the time of arraignment (or indeed at any subse- 
quent period), the trial will be deferred until he has 
recovered his reason (gi). 

We may notice here that no trial for felony can be Presence of 

accused at the 
■ trial. 

(c) 7 & 8 Geo. 4, v. 28, s. 2. 

(/) S. V. Pritchard, 7 C. & P. 303. 

Ig) V. 39 & 40 Geo. 3, u. 94, s. 2. B. v. Berry, 34 L. T. (N.S.) 590. 
Insanity at the time of the commission of the crime is quite another con- 
sideration, and is treated of elsewhere, v. p. 20. 



358 



TIME OF TKIAL, ETC. 



had except in the presence of the prisoner. But in 
cases of misdemeanor, after the defendant has pleaded, 
the trial may go on, though he is not present. Thus, 
in a recent case of perjury, when the defendant took 
ill, the trial proceeded during his temporary absence (h). 
In indictments or informations for misdemeanor in the 
Queen's Bench, the accused may appear by attorney. 



Confession, or 
answer of 
" Guilty." 



CONFESSION. 

If the accused mates a simple, unqualified confession 
that he is guilty of the offence charged in the indict- 
ment, if he adheres to this confession, the court has 
nothing to do but to award judgment, generally hear- 
ing the facts of the case from the prosecuting counsel. 
But the court usually shews reluctance to accept and 
record such confession in cases involving capital or 
other great punishment ; often it advises the prisoner 
to retract the confession and plead to the indictment. 
The reason of this is obvious, the defendant may not 
fully understand the nature of the charge, he may be 
actuated by a morbid desire for punishment, &c. When 
the prisoner has pleaded guilty, and sentence has been 
passed, he cannot retract his plea and plead not 
guilty (i). On the other hand, a prisoner who has 
pleaded not guilty may, by leave of the court, on the 
advice of his counsel or otherwise, withdraw that plea 
and plead guilty (j). 



Confession 
before the 
magistrate is 
merely 
evidence. 



A free and voluntary confession by the defendant 
before the magistrate, if duly made and satisfactorily 
proved, is sufficient to warrant a conviction without 
further corroboration ; but, of course, the whole of the 
confession must be taken into account, the part favour- 
able to the prisoner as well as that against him. This 
confession, as also any free or voluntary confession 



(A) -S. V, Castro. 

(i) S. V. Sell, 9 C. & P. 346. 

(i) V. S. V. Srown, 17 L. J. (M.C.) 145. 



TIME OF TRIAL, ETC, 359 

made to any otter person, is merely evidence (though 
if undisputed no other eyidence may be needed) ; and 
is to be widely distinguished from the confession in 
court or plea of guilty. 

In connection with this subject we must advert to Queen's 
the case of one of several co-defendants turning Queen's *" ^'^°*' 
evidence. When sufficient evidence of a felony cannot 
be obtained from other quarters, and when it is per- 
ceived that the testimony of one of the accused would 
supply this defect; it is usual for the committing 
magistrate to hold out hope to this one that if he will 
give evidence so as to bring the others to justice, he 
himself will escape punishment. The approval of the 
presiding judge will have to be obtained (k). Even 
during the trial it sometimes happens that the counsel 
for the prosecution, with the consent of the courts 
when such a course is necessary to secure a conviction, 
takes one of the defendants out of the dock and puts 
him in the witness-box; such prisoner, of course, ob- 
taining a verdict of acquittal [l). But, as we shall see 
hereafter more fully, the evidence of an accomplice is 
to be regarded with suspicion, and requires corrobora- 
tion (m). 



(/e) S. V. Sudd, 1 Leach, 115. 
(0 S. V. Bowland, Ry. & M. 401. 
(m) T. p. 395. 



( 360 ) 



CHAPTER XI. 

PLEAS. 

Pieaii. If the defendant neither stands mute nor confesses, he 

pleads, that is, he alleges some defensive matter. The 
learning on the subject of the different pleas has be- 
come to a great extent a matter of history rather than 
of practice, on account of the comprehensiye character 
of the plea of the general issue of not guilty, and also 
on account of the right to move in arrest of judgment. 

Their order. The following are the names of the pleas in the order 
in which they should be pleaded : — 

i.'Plea to the jurisdiction, | termed "dilatory 
ii. Plea in abatement, j pleas." 
iii. Special pleas in bar, 

(a.) Autrefois acquit. 

(b.) Autrefois convict. 

(c.) Autrefois attaint. 

(d.) Pardon, 
iv. General issue of not guilty. 

Each of these will be considered separately. In the 
next chapter Demurrers will be noticed. , These Black- 
stone treats' as pleas, whereas in truth they are rather 
in the nature of objections that there is not sufficient 
case in point of law to oblige the accused to plead. 

How many It is uot to be Understood that a defendant may in 

^^'^t^ilo^ turn go through the whole of these pleas, resorting to 



PLEAS. 361 

the subsequent plea as a previous one fails. The rule 
is that not more than one plea can be pleaded to an 
indictment for misdemeanor, or a criminal information. 
In felonies, if the accused pleads in abatement, he may 
afterwards, if the plea is adjudged against him, plead 
over to the felony, that is, plead the general issue of 
not guilty. 

i. Plea to the jwisdiction. — When an indictment is Plea to the 
taken before a court which has no cognizance of the J'^i''^'*'"''""- 
offence, the defendant may plead to the jurisdiction, 
without answeriiig at all to the crime alleged. This 
want of jurisdiction may arise either from the fact that 
the offence was not committed within the district of 
the jurisdiction, for example, if a person be indicted in 
Kent for stabbing a person in Sussex ; or because the 
tribunal in question has not cognizance of that class of 
crimes, for example, if a person be indicted at the 
sessions for murder. 

But this plea is very seldom resorted to, inasmuch as Why seldom 
relief can be obtained in other ways. Thus the objec- P'^''"*^'^- 
tion that the offence was committed out of the jurisdic- 
tion may generally be urged under the general issue, 
or, in certain cases, by demurrer, or by moving in arrest 
of judgment, or by writ of error. If the objection is 
that the crime is not cognizable in a court of that 
grade, though committed within the jurisdiction, the 
defendant may demur, or have advantage of it under 
the general issue, or by removing the indictment to the ^ 

Queen's Bench Division and there quashing it. 

The clerk of the peace or of the arraigns may make 
replication, shewing that the offence is triable by the 
court. And to this the defendant may rejoin (w). 



(n) This pleading is done out of court, and must be distinguished from 
the objections taken under the general issue by the prisoner in court. 



362 



PLEAS. 



I'lea in abate- ii. Plea in abatement. — This is another dilatory plea, 
formerly principally used in the case of the defendant 
being misnamed in the indictment ; for example, if a 
wrong Christian name or addition were given. But 
even if the defendant was successful on this plea, a new 
bill of indictment with the correction might at once be 
framed. The plea is now, however, virtually obsolete. 
It has been enacted that no indictment or information 
shall be abated by reason of any dilatory plea of mis- 
nomer, or of want of addition, or of wrong addition, if 
the court be satisfied of the truth of the plea. The 
court will cause the indictment or information to be 
amended, and will call upon the party to plead thereto, 
and will proceed as if no such dilatory plea had been 
pleaded (o). And no indictment is to be held insuf- 
ficient for want of, or imperfection in, the addition of 
any defendant (p). 



Special pleas 
in bar. 



iii. Special pJeas in iar. — These are termed " special " 
to distinguish them from the general issue; and "in 
bar " because they shew reason why the defendant ought 
not to answer at all, nor put himself upon his trial for 
the crime alleged, and thus they are distinguished from 
dilatory pleas which merely postpone the result. 



All matters of excuse and justification may be given 
in evidence under the general issue; therefore it is 
hardly ever necessary to resort to a special plea in bar, 
except in the four cases to be examined more in 
detail {q). 



Judgment ou 
such special 
pleas. 



If judgment on a special plea in bar is given against 



(o) 7 Geo. 4, 0. 64, ». 19. 

(jir) 14 & 15 Vict. c. 100, s. 24. We hare already adverted to the large 
powers of amendment which are given to the court by this statute. 

(i?) " In fact, the only instance in which a special plea in bar seems 
requisite in criminal cases is, where a parish or county is indicted for not 
repairing a road or bridge, &c., and wishes to throw the onus of repairing 
upon some person or persons not bound of common right to repair it." — 
Arch. 135. 



PLEAS. 



363 



the defendant in a felony, it is to the effect that he 
make further answer (respondeat ouster); but as he 
generally pleads at the same time the general issue, 
when Buch judgment is given against him the jury 
proceed to inquire into his guilt, as if the special plea 
had not been pleaded. If the plea is established in his 
favour, he is discharged. In misdemeanors the judg- 
ment is final, so that if it is against the defendant he 
is considered guilty of the offence ; if for him, he is 
discharged. 

(a.) Autrefois acquit. — ^When a person has been in- Plea of autre- 
dicted for an offence and regularly acquitted, he cannot •''"* ""*'" ' 
afterwards be indicted for the same offence, provided that 
the indictment were such that he could have been law- 
fully convicted on it. It is against the policy of the 
English law that a man should be put in peril more 
than once for the same offence. And therefore if he is 
indicted a second time, he may plead autrefois acquit, 
and thus bar the indictment. It is frequently a difficult 
matter to determine whether the second indictment 
bears such a relation to the first, that the latter is a 
bar to the former. The true test seems to be this — 
whether the facts charged in the second indictment 
would, if true, have sustained the first (*■). An ac- 
quittal for murder may be pleaded in bar of an indict- 
ment for manslaughter, and vice versa. So with larceny 
and embezzlement ; robbery, and assault with intent to 
rob ; felony, and an attempt to commit the felony. But 
an acquittal for larceny is no bar to an indictment for 
false pretences ; nor will an acquittal as accessory bar 
an indictment as principal, and vice versa. 

The prisoner must satisfy the court, first, that the What acquittal 
former indictment on which an acquittal took place !|',.oved.'^ 
was sufficient in point of law, so that he was in jeopardy 
upon it; secondly, that in the indictment the same 

(r) £. V. Vandercomb, 2 Leach, 708. 



364 



PLEAS. 



Plea o{ autre- 
fois convict. 



offence was charged, for the indictment is in such a 
form as- to apply equally to several different offences (s). 
To prove his acquittal he may obtain a certificate 
thereof from the officer or his deputy having custody 
of the records of the court where the acquittal took 
place (t). 

(b.) Autrefois convict. — A former conviction may be 
pleaded in bar of a subsequent indictment for the 
same offence; and this, whether judgment were given or 
not. The same rules as in the plea of autrefois acquit 
generally apply ; thus there is the same test as to the 
identity of the crime (m). 



Plea of autre- 
fois attaint. 



Pardon. 



(c.) Autrefois attaint. — Formerly when a person was 
attainted, as long as the attainder was in force he was 
considered legally dead. Therefore a plea of an already 
existing attainder was a bar to a subsequent indictment 
for the same or for any other felony, on the ground 
that such second prosecution of a person already dead, 
and whose property had been forfeited, would be useless. 
But now an attainder is no bar unless the attainder be 
for the same offence as that charged in the indict- 
ment (x), so that practically the plea of autrefois attaint 
is a thing of the past. 

(d.) Pardon. — A pardon may be pleaded not only in 
bar to the indictment (as in the case of the three pleas 
just noticed), but also after verdict in arrest of judg- 
ment ; or, after judgment, in bar of execution. But it 
must be pleaded as soon as the defendant has an oppor- 



(s) Parke, B., in S. v. Bird, 2 Den. 94, 98. 

(i) 14 & 15 Vict. c. 99, s. 13. 

(w) The reader should refer to the chapter on Summary Conviction, 
p. 4(50 ; where he will meet with defences similar to^ these pleas of autrefois 
acquit and autrefois convict, namely, a certificate of dismissal, or proof of 
having submitted to punishment, in cases of assault and battery under 
24 & 25 Vict. c. 100, ss. 44, 45. So also as to dismissal or conviction of 
juvenile offenders, v. 10 & 11 Vict. c. 82, s. 3. 

(x) 7 & 8 Geo. 4, c. 28, s. 4. 



PLEAS. 



365 



tunity of doing so ; otherwise he will be considered to 
have waived the benefit of it. The subject will find a 
more convenient place hereafter (y). 

iv. The general issue of not guilty. — When the The general 
prisoner, on being charged with the offence, answers '^^"^" 
viva voce at the bar " Not guilty," he is said to plead 
the general issue. The consequence is, that he is to be 
tried by a jury, or, as it is frequently stated, he puts 
himself upon the country for trial. The plea is recorded 
by the proper officer of the court, either by writing the 
words " po. se." (posuit se super patriam), or at the 
Central Criminal Court by the word "puts." 

This is much the most common and advantageous Advantages of 
course for the prisoner to take; unless, indeed, he P'^?.^'°i "^"^ 
pleads guilty, and thereby the court is induced to take 
a more lenient view of his case. Pleading the general 
issue does not necessarily imply that the prisoner con- 
tends that he did not do the actual deed in question, 
inasmuch as it does not prevent him from urging mat- 
ter in excuse or justification. More, this is practically 
the only way in which he can urge matter in excuse or 
justification. Thus, on an indictment for murder, a 
man cannot plead that the killing was done in his own 
defence against a burglar ; he must plead the general 
issue — not guilty — and give the special matter in evi- 
dence. The pleading of the general issue lays upon 
the prosecutor the task of proving every material fact 
alleged in the indictment or information ; while the 
accused may give in evidence anything of a defensive 
character. 

Issue. — When the prisoner has pleaded not guilty, issue. 
the record is made up, both parties being brought to 
an issue, and both putting themselves upon their trial 
by jury. The general issue appears on the record: 

(</) T. p. 453. 



866 



PLEAS. 

" And the said John Styles forthwith being/ demanded 
concerning the premises in the said indictment above 
specified and charged upon him, how he will acquit him- 
self thereof, saith, that he is not guilty thereof." And on 
the part of the prosecution the similiter is then added : 
" And John Brown (the clerk of the arraigns, or clerk 
of the peace) who prosecutes for our said lady the 
Queen in this behalf, doth the like. Therefore let a Jury 
come," &c. (z). 



(jEf) For other ceremonies formerly observed, and the origin of the term 
' culprit," &o., V. 4 Bl. 339, or 4 St. Bl. 406, n. 



( 367 ) 



CHAPTEE XII. 

DEMURREE. 

A Demueeee is an objection on the part of the defen- Demurrer, 
dant who admits the facts alleged in the indictment to 
be true, but insists that they do not in point of law 
amount to the crime with which he is charged. Thus, 
if a person is indicted for feloniously stealing goods 
which are not the subject of larceny at common law or 
by statute, he may demur to the indictment, denying 
it to be a felony. It is for the court, on hearing the 
arguments, to decide whether the objection be good. 
The following is the form of a demurrer : — 

" And the said John Styles in his own proper person 
Cometh into court here, and, having heard the 
said indictment (or information) read, saith, 
that the said indictment (or information) and 
the mutters therein contained, in manner and 
form as the same are above stated and set 
forth, are not sufficient in law, and that he the 
said J. 8. is not hound hy the law of the land 
to answer the same; and this he is ready to 
verify: wherefore, for want of a sufficient 
indictment (or information) in this behalf, the 
said J. 8. prays judgment, and that by the court 
he may he dismissed and discharged from the 
said premises in the said indictment (or in- 
formation) specified." 

If on the demurrer judgment is given for the defen- Judgment ou 
dant, it is to the effect that he be discharged, provided 'J«'""i'''=''- 
that the objection be a substantial one; that the 
indictment be quashed, if it is a merely formal one. 
If judgment is given against the defendant, in felonies 
the judgment is final; in misdemeanors it is final. 



368 



DBMURKEE. 



Demurrers, 
why seltlom 
resorted to. 



Demurrer in 
abatement. 



unless the court should afterwards permit the defen- 
dant to plead over (a). 

Demurrers in criminal cases seldom occur in practice. 
Not only is there the risk of having final judgment 
against the defendant, but the same objections may be 
brought forward in other and safer ways. In cases of 
defects in substance apparent on the face of the indict- 
ment, generally the defendant may, instead of demur- 
i^ing) plead not guilty, and then, if convicted, move in 
arrest of judgment. Thus he has a double chance of 
getting off, first on the facts of the case, then on the 
point of law. But this course cannot be taken when 
the defect in the indictment is cured by verdict (h). 

Formerly there was another kind of demurrer besides 
the general demurrer to which we have been referring, 
namely, a special demurrer, usually termed a " de- 
murrer in abatement." This was founded on some 
formal defect in the indictment, whereas a general 
demurrer is founded on some substantial defect. But 
now no demurrer lies in respect of the defects speci- 
fied in the 24th section of 14 & 15 Yict. c. 100 (c); 
and demurrers for other formal defects are practically 
rendered useless by sect. 25 of the same statute, which 
provides that every objection to an indictment for any 
formal defect apparent on the face thereof shall be 
taken by demurrer or motion to quash the indictment 
before the jury are sworn, and not afterwards ; and 
the court before which such objection is taken for any 
formal defect may, if it be thought necessary, cause 
the indictment to be forthwith amended in such parti- 
culars, and thereupon the trial will proceed as if no 
such defect had appeared. 



(a) This seems to be the state of the law as settled in iJ. y. Faderman, 
1 Den. 569 ; 3 C. & K. 353 ; though some still contend that in felonies, 
after judgment against the defendant, he may still plead not guilty ; and a 
defendant has been allowed to demur and plead not guilty at the same time. 

(6) V. 7 Geo. 4, c. 64, s. 21. Heymann v. R., L. R. 8 Q. B. 105. R. v. 
Goldsmith, L. R. 2 C. C. R. 74; 42 L. J. (M.C.) 94. 

(c) y. p. 326. 



( 369 ) 



TRIAL. 

It will not be necessary to describe the various modes Obsolete forms 
of trial which have long been abolished, namely, the °^ *''"''■ 
ordeal, the corsned, trial by battle {d). The last of 
these was suppressed by 59 Greo. 3, c. 46, in conse- 
quence of a case (e) in which the person accused 
demanded the settlement of the question by a fight. 

The only modes of trial which now remain are : — The existing 

forms. 

A. Trial of peers in the Court of Parliament or the 
Court of the Lord High Steward, of which enough has 
been said above. 

B. Trial by jury (or by the country — per patriam) — 
the trial by his peers which every Englishman is 
entitled to claim (/). This of course is the ordinary 
mode of trial, both at the sessions, the assizes, the 
Central Criminal Court, and the Queen's Bench Divi- 
sion. It is this with which we have now to deal, 
taking the various steps in their order. 



(cQ A full account will be found in the various editions of Blackstone, 
Hallam's Middle Ages, Eeeves's History of English Law, and the other 
works dealing with the history of the law. 

(e) Ashford v. Thornton, 1 B. & Aid. 405. 

(/) Nullus liber homo capiatur, vel imprisonetur, out exulet, aut aliquo 
alio modo destruafur, nisi per legale judicium parium suorum, vel per legem 
terrcB. — Magna Charta. 



2 B 



( 370 ) 



CHAPTEE XIII. 

THE PETTY JURY. 

When the prisoner has put himself upon the country, 
the petty jurors are called by the clerk to answer to 
their names. The list which is thus called over is the 
panel returned by the sheriff. 

Petty jurors, Who are liable to serve on the petty jury, and how are 
who are liable, ^j^^^ returned? The law on this subject is contained 
chiefly in two statutes, the Jury Act, 1826 (g), and 
the Juries Act, 1870 (h). The qualification of common 
jurors is the following : — Every man between the ages 
of twenty-one and sixty, residing in any county in 
England, who has in his own name, or in trust for 
him, within the same county, £10 by the year above 
reprises in lands or tenements, or in rents therefrom, 
or in such lands and rents taken together, in fee 
simple, fee tail, or for the life of himself or some other 
person — or lands to the value of £20 a year held by 
lease for twenty-one years or longer, or for a term 
of years determinable on any life or lives ; or who, 
being a householder, is rated or assessed to the poor- 
rate or to the inhabited house duty, in Middlesex to 
a value of not less than £30, or in any other 
county not less than £20 ; or who occupies a house 
containing not less than fifteen windows — is qualified 
to serve on petty juries at the courts at Westminster, 
in the counties palatine, and at the assizes, and also at 
both the grand and petty juries at the county 



(g) 6 Geo. 4, c. 50. 
(A) 33 & 34 Vict. ^. 77. 



THE PETTY JUBY. 



371 



sessions (i). Every burgess is qualified and liable 
to serve on tbe grand and petty juries at the borough 
quarter sessions {k). 

Certain exemptions from serving on juries are Exemptions 
enumerated by the Juries Act, 1870. The following ^;7,4';]i,"4, 
are amongst those exempted : — Peers, Members of Par- 
liament, clergymen, Eoman Catholic priests, ministers 
of any congregation of Protestant Dissenters or Jews 
whose place of meeting is duly registered, provided 
they follow no secular occupation except that of school- 
master ; those actually practising in the law as 
barristers, solicitors, managing clerks, &c ; officers of 
the law courts, and acting clerks of the peace or their 
deputies ; coroners ; gaolers and their subordinates, 
and keepers in public lunatic asylums; physicians, 
surgeons, apothecaries, pharmaceutical chemists actu- 
ally practising j officers of the navy, army, or militia, 
or yeomanry, if on full pay ; pilots ; certain persons 
engaged in the civil service ; officers of the police ; 
magistrates to a certain extent; burgesses as regards 
the sessions of the county in which their borough 
is situated (T). 

These exemptions must be claimed before the revi- 
sion of the list by the justices (to). Aliens domiciled 
in England or Wales for ten years or upwards may be 
jurors, if otherwise qualified (n). Convicts, unless 
pardoned, and outlaws are disqualified (o). 

The mode in which the sheriff's list of jurors is The jury list. 
prepared is the following : — The clerk of the peace of 
every county, riding, or division, on or before July 20th 



(0 6 Geo. 4, 0. 50, s. 1. 

(A) 5 & 6 Wm. 4, e. 76, s. 121. 

ll) 33 & 34 Vict, c. 77, s. 9. See also 34 & 35 Vict. c. 103, s. 30. 

(m)Ibid. s. 12. 

(n) Ibid, s. 8. 

(o) Ibid. s. 10. As to special jurors, v. p. 378. 

2 B 2 



•^'■^ THE PETTY JUBY. 

of each year, issues a precept to the churchwardens 
and overseers of the poor of the several parishes, and 
the overseers of the poor of the several townships, 
requiring them to make out before September 1st a list 
of persons within their jurisdiction qualified and liable 
to serve on juries as above. The churchwardens and 
overseers make out the lists, affixing a copy to every 
public place of worship on the first three Sundays 
in September. The justices correct these lists at a 
special petty sessions held in the last week of Septem- 
ber. The lists are then copied by the clerk of the 
peace into the jurors' book ; and this is delivered to 
the sheriff for use during the ensuing year (p). Before 
each assizes or sessions a precept issues to the sheriff, 
requiring him to return a competent number of jurors 
from those whose names appear in the current, jurors' 
The panel. book. The panel (an oblong piece of parchment) 
must contain the names of the competent number 
alphabetically arranged, with their places of abode 
and additions The jurors must be summoned six 
days at least before they are required to attend {q). 
The names of the petty jurors •who attend are re- 
gistered, and each juror may require from the clerk of 
Exemptions on the peace a certificate of his attendance. This exempts 
fervice " ^™ from liability to serve again as a petty juror at 

the assizes for one year after he has served as such 
in Wales, Hereford, Cambridge, Hunts, or Eutland, 
four years in York, and two years in any other county, 
and from liability to serve again as a grand or petty 
juror at the sessions for one year after he has served 
as such in Wales or one of the four above-named 
counties, or two years in any other county. In 
Middlesex a person is exempted from serving as a juror 
at any sessions of nisi frim or gaol delivery, if he has 
served as such in either of the two terms or vacations 
next immediately preceding (r). 

(p) T. 6 Geo. 4, c. 50 ; 25 & 26 Vict. c. 107 ; 33 & 34 Vict, c 77. 
(3) 33 & 34 Vict. c. 77, s. 20, 
(r) 6 Geo. 4, c. 50, s. 42. 



THE PETTY JUEY. 373 



Jurors who have been summoned not attending, and Fining jurors 

for non- 
attendance. 



not giving sufficient reason for their absence, and in ^°^' °''°' 



court having been three times ordered to appear and 
save their fines, may be fined. Of course, no person 
who was on the grand jury by which the bill was found 
can sit upon the petty jury by which it is tried. 

The names of the jurors summoned are written on Putting the 
tickets and put- into a box. The twelve first drawn {"J™"' '°'° """ 
are sworn on the jury, unless absent, excused, or 
challenged, or unless a previous view of some matter 
connected with the subject in issue has been ordered 
by the court, in which case the jurors who have had 
the view are sworn first. The remaining jurors are 
either ordered by the judge to remain in attendance in 
case their services should be required, or are allowed 
to retire until another day, or are released altogether, 
according to the discretion of the judge. 

The prisoner or prisoners, for usually a batch of Giving tiie 
them are brought up at the same time to appear before P'''^"°«'^^ *''«"■ 
the jury, are apprised of their right to object to or 
challenge any of the jurors by the clerk of the arraigns 
or other officer of the court in the following terms : — 
" Prisoners, these men that you shall now hear called are 
the jurors who are to pass between our sovereign lady 
the Queen and you upon your respective trials (or, in a 
capital case, upon your life and death); if, therefore, 
you, or any of you, will challenge them, or any of them, 
you must challenge them as they come to the book to be 
sworn, and before they are sworn, and you shall be 
heard." The twelve jurors are then called by the 
proper officer. Challenges may be made not only on 
behalf of the prisoner, but also on behalf of the 
Crown. They are of two kinds : (a.) For cause ; 
(b.) Peremptory. The former are either : — 

i. To the array, when exception is taken to the 
whole panel. 



374 



THE PETTY JUKY. 



ii. To the polls, when particular individuals are 
objected to. 



Challenge to 
the array : 



priacipal. 



for favour. 



i. The challenge to the array is an objection to the 
whole body of jurors returned by the sheriff, not on 
account of their individual defects, but for some par- 
tiality or default in the sheriff or his under-officer 
who arrayed the panel. It may be either (a.) A prin- 
cipal challenge, which is founded on some manifest 
partiality, as if the sheriff be the prosecutor or person 
injured, or be closely connected with such person, or 
if he have any pecuniary interest in the trial, or be 
influenced in his return of jurors by the prosecutor or 
defendant, or if he be counsel, attorney, &c., in the 
case ; or it may be founded on some error on the part 
of the sheriff. If the cause of challenge is substan- 
tiated the court will quash the array, (b.) Challenge 
iov favour, in cases where the ground of partiality is 
less apparent and direct, as when one of the parties is 
tenant to the sheriff. 



Trial of the 
challenge. 



The challenge to the array ought to be in writing, 
and must state specifically the ground of objection. 
How is it to be determined whether it shall tate effect? 
The other side, prosecution or defence, may either 
plead to the challenge, traversing or denying its cause, 
or may demur to it as insufficient. If it is demurred 
to, the court will decide the demurrer. If the other 
side pleads to the challenge, two triers are appointed 
by the court (generally from the jurymen returned), 
and are sworn and charged to try whether the array is 
ail impartial one. Sometimes it is tried by the coroners, 
or by others, the mode being left to the discretion 
of the court (s). If the challenge is found to be well- 
grounded, a new venire is awarded to the coroners ; or, 
if they are interested, to the elisors (two clerks of the 



(s) 4 Bl. 353. 



THE PETTY JUKY. 375 

court, or two persons named by the court and sworn). 
The return of these elisors cannot be questioned. 



Though the challenge to the array be determined 
against the party, he may still have — 

ii. A challenge to the 'polls. — This is also either challenge to 
(a) principal ; or (b) for favour. ^^^ P°"^ = 

Principal challenges may be subdivided into these : — principal. 

Propter honoris respecimn— -where a peer or lord of 
parliament is sworn on a jury for the trial of a com- 
moner. 

Propter defectvm — that is, on account of some per- 
sonal objection, as alienage, infancy, old age, or a want 
of the requisite qualification. 

Propter affectum — where there is supposed to be a 
bias or prospect of partiality, as on account of the 
relationship of a juror ; or where an actual partiality 
is manifested, or where a juror has expressed an opinion 
as to the result of the trial. 

Propter delictum — if a person has been convicted of 
an infamous crime (e.g., treason, felony, perjury, &c.), 
and has not been pardoned, or has been outlawed (t). 

Challenges for favour are made when there is reason- for favour. 
able ground for suspicion (as if a fellow-servant be one 
party), but there is not sufficient ground for a prin- 
cipal challenge propter affectum. 

The challenge to the polls is generally made orally. Trial ot the 
and must be made before the juror has kissed the challenge. 
book, though often the publicity of the matter is 
avoided by previous intimation of the objection being 

(0 34 & 35 Vict. c. 77, s. 10. 



376 



THE PETTY JUEY. 



Exclasion of 
jurors by the 
Crown. 



made to the proper officer, and in such case probably 
the juror objected to would not be called. How is the 
validity of the challenge to be determined ? If it is a 
principal challenge, by the court itself; if a challenge 
for favour, by two jurors who have already been sworn. 
But if the challenge for favour is of one of the first 
two jurors, the court appoints two indifferent persons, 
thence termed "triers," to try. the matter; but they 
are superseded as soon as two are sworn on the jury. 
Witnesses may be called to support or defeat the 
challenge, and the person objected to also may be 
examined, but not asked questions which tend to his 
discredit. It should be noticed that, as a rule, a person 
may challenge himself, upon which he may be ex- 
amined on oath as to the cause. So the sheriff may 
suggest the objection to his array on the ground of 
his relationship, &c. 

The Crown may order any number of persons called 
as jurors to stand by, and has not to shew any cause 
for excluding them, until the panel has been gone 
through and it appears that there will not be left 
enough jurors without those ordered to stand by (m). 

So much for challenges for cause, to the number of 
which there is no limit, and the rules as to which are 
generally alike, both in criminal and civil cases. But 
there is another kind of challenge known to the 
criminal law alone. 



Peremptory 
challenge. 



Peremptory Challenge. — In felonies the prisoner is 
allowed to arbitrarily challenge, and so exclude, a 
certain number of jurors without shewing any cause at 
all. He cannot claim this right in misdemeanors (a;) ; 



(ti) T. Mamell v. B., 27 L. J. (M.C.) 4. 

(ic) " It is equally absurd that in the case of a trifling theft the prisoner 
should have the right of peremptorily challenging twenty jurors, whilst a 
man accused of perjury might see his bitterest enemy in the jury box, and 
be unable to get rid of him as a juror, unless he could give judicial proof 
of his enmity."— Fitz. St. 106. 



THE PETTY JURY. 



377 



but it is usual, on application to the proper officer, for 
him to abstain from calling any name objected to by 
the prosecution or defendant within reasonable limits ; 
and this course has been sanctioned by the court («/). 

The defendant may peremptorily challenge to the Number of 
number of thirty-five in treason, except in that treason ^hSgesT 
which consists of compassing the Queen's death by a 
direct attempt against her life or person (z). In such 
excepted case, in murder, and all other felonies, the 
number is limited to twenty (a). If challenges are 
made beyond the number allowed, those above the 
number are entirely void, and the trial proceeds as if 
no such extra challenge had been made (h). 

The court itself may take out of the panel the 
names of any jurors and insert others where such a 
course is necessary (c). 

If a sufficient number of jurors do not appear, or if Tales. 
by means of challenges or exemptions a sufficient 
number of unexceptionable ones do not remain, either 
side may pray a tales, that is, a supply of smcA men as 
are summoned upon, the panel, in order to make up the 
deficiency (generally from the bystanders, tales de cir- 
cumstantibus) ; but this course seems to require a war- 
rant from the attorney-general (d). The usual course, 
however, at the assizes, is for the judge to order the 



(j/) The reasons which Blackstone assigns are (1) As every one must be 
sensible what sudden impressions and unaccountable prejudices we are 
apt to conceive upon the bare looks and gestures of another, and how 
necessary it is that a prisoner should have a good opinion of his jury, the 
want of which might totally disconcert him ; the law wills not that he 
should be tried by anyone against whom he has conceived a prejudice, even 
without being able to assign a reason for such dislike. (2) Because, upon 
challenges for cause shewn, if the reason assigned prove insufficient to set 
aside the juror, perhaps the bare questioning his indifference may sometimes 
provoke a- resentment. — 4 Bl. 353. 

(z) 39 & 40 Geo. 3, u. 93. 

(a) 6 Geo. 4, .;. 50, s. 29. 

(6) 7 & 8 Geo. 4, c. 28, s. 3. 

(o) 6 Geo. 4, i>. 50, s. 20. 

(d) 2 Hawk. c. 41, s. 18 ; 4 Bl. 355 : Arch. 164. 



378 



THE PETTY JURY. 



sheriff to return a new panel instanter, without further 
precept ; and at sessions, for the justices to issue a 
special precept commanding the sheriff to return a 
sufficient number of jurors immediately. 

Conduct of the When the jury have once been sworn they cannot 
^^^' leave the box without the leave of the court, and then 

' only in company with some officer of the court. If, in 
consequence of being unable at once to come to a 
conclusion, they obtain leave to withdraw in order to 
consider their verdict, they are kept apart from any 
one, under the charge of an officer, who is sworn not to 
speak to them (except to ask them whether they have 
agreed), or suffer any one else to do so. Their verdict 
will be set aside if they speak with any one interested, 
or cast lots as to which way they shall decide. In 
these and other cases of delinquency they may be 
fined. By leave of the court they may have reasonable 
refreshment (e). If the trial is adjourned over night 
in treason ot felonies, the jury retire in custody of the 
sheriff and his officer, who are sworn to keep them 
together. In misdemeanors they are allowed to go 
home on engaging not to listen to anything spoken to 
them as to the ease under trial. If during the trial, 
before verdict is given, one of the jury dies, or is taken 
so ill that he is not able to proceed with the trial, or 
without permission leaves the box (/), the jury is dis- 
charged and a new one sworn to try the case. Of 
course in such an event the remaining eleven may, and 
most frequently will, be in the new jury. 

Special juries. We havc been hitherto referring to common juries. 
But as in civil, so in criminal cases, special juries are 
sometimes summoned. But this is only in misde- 
meanors, where the record is in the Queen's Bench 
Division, and only by permission of the court on 



(e) V. 33 & 34 Vict. c. 77, s. 23. 
(/) £. V. Wood, 10 Cox, 573. 



THE PETTY JURY. 



379 



motion of either the prosecutor or the defendant. The 
party applying for a special jury must pay the extra 
fees and expenses, unless the court certifies that it was 
a proper case to he tried by a special jury. These 
jurors are taken from a higher class than common 
jurors, their qualifications being determined by sta- 
tute (g). The instances of the trial of a criminal case 
by a special jury are so rare, that we need not enter 
into further particulars. 

Another exceptional form of jury was, until lately. Jury de 
sometimes demanded ; a jury de medietate lingum, 1^'^^*^ 
Formerly, in cases of felony or misdemeanor, but not 
of treason, an alien might claim his right to be tried 
by a jury, half of whose number were aliens, or, at least, 
if not half, as many as the town or place could furnish. 
But this privilege was taken away by the Naturaliza- 
tion Act, 1870 (h) ; and now an alien is tried as if he 
were a natural born subject (*). 



((/) 33 & 34 Vict. c. 77, s. 6. 
(A) 33 & 34 Vict. c. 14, s. 5. 

(i) We hare already referred to another case of a so-called jury de 
medietate linguce, v. p. 300. 



( 380 ) 



CHAPTEE XIV. 

THE HEAEING. 

Swearing the Thb full Complement of jurors haying been obtained, 
•'"^^' they are sworn ; or, if any of them on conscientious 

grounds object to the oath, they make the statutory 
declaration (j). The oath, and mode of taking it, differ 
slightly in felonies and in misdemeanors. In felonies, 
each juror is sworn separately in the following terms : 
" You shall well and truly try, and true deliverance make, 
letween our sovereign lady the Queen and the prisoner 
at the iar, whom you shall have in charge, and a true 
verdict give according to the evidence. So help you 
God." In misdemeanors, four take hold of the book at 
the same time, and four, or sometimes all, are sworn 
together. The oath is : " You shall well and truly try 
the issue joined letween our sovereign lady the Queen 
and the defendant, and a true verdict give according to 
the evidence. So help you Qod " (k). 

Proceedings at After the jury are sworn, in cases of treason or 
the hearing, felony, the crier at the assizes makes the following 
proclamation : " If any one can inform m,y lords the 
Queen's justices, the Queen's attorney-general, or the 
Queen's serjeant, ere this inquest taken between owr sove- 
reign lady the Queen, and the prisoners at the Iar, of 
any treason, murder, felony, or misdemeanor, committed 



(f) 30 & 31 Vict. c. 35, s. 8. 

(/i) v. Fitz. St. p. 57, as to the historical cause of this distinction, the 
terms of the oath in a misdemeanor shewing the resemblance of procedure 
in a misdemeanor to that in a civil action ; that in felony reminding us of 
the days " when the jury were both judges and witnesses, who reported on 
the prisoner's guilt or innocence of their own knowledge." 



THE HEARING. 38-1 

or done hy them, or any of them, let him come forth, and 
he shall he heard ; for the prisoners stand at the har 
upon their deliverance." The clerk of arraigns or of the 
peace, having called the prisoner to the bar, says to 
the jury : " Gentleman of the jury, the prisoner stands 
indicted hy the name of John Styles, for that he on 
the (reciting the substance of the indictment). Upon 
this indictment he has heen arraigned, and upon his 
arraignment he has pleaded that he is not guilty ; your 
charge, therefore, is, to inquire whether he he guilty or 
not guilty, and to hearken to the evidence." In mis- 
demeanors, the jury are not thus charged. The counsel Course of 
for the prosecution now opens the case to the jury, ^^^amination 
stating the principal facts, which the prosecution intend 
to prove. He then calls his witnesses ; who, having 
been sworn, are examined by him, and then subjected 
to cross-examination by the counsel for the defence ; 
or, if the prisoner is not defended by counsel, to any 
questions which the prisoner may put to them. The 
counsel for the prosecution may re-examine on matters 
referred to in the cross-examination. The court also 
may, at any time, interpose, and ask questions of the 
witnesses. After the case for the prosecution is closed, 
it is ascertained whether the defence intend to call any 
witnesses. If they do not, the counsel for the prosecu- 
tion may address the jury a second time in support of 
his case, for the purpose of summing up the evidence 
against the prisoner (l) ; but this right will be exer- 
cised only in exceptional cases, as where the evidence 
materially differs from the counsel's instructions. But 
if the prisoner ha.s witnesses whom he wishes to call, 
his counsel opens the case for the defence, and calls 
these witnesses in support thereof. They also are 
subject to cross-examination by the counsel for the 
prosecution, and re-examination by the counsel for the 
defence on this cross-examination. The counsel for 



(0 28 Vict. c. 18, a 2. 



382 



THE HEARING. 

the prisoner is now entitled, at the close of the exami- 
nation of his witnesses, to sum up his evidence (?»). 

After this address by the counsel for the defence, the 
counsel for the prosecution has the right of reply. This 
is in consequence of the defence having adduced evi- 
dence, written or parol, in defence (but mere evidence 
to character has not,' in practice, this result) ; for if he 
has not done so, the address of the counsel for the 
defence is the last. There is, however, one exception. 
When the Attorney-General, or some one else as his 
representative, is prosecuting, he has the right of reply, 
although no evidence has been adduced for the de- 
fence (n). If two prisoners are jointly indicted for the 
same offence, and only one calls witnesses, the counsel 
for the prosecution has the right to reply generally ; 
but not if the offences are separate and the prisoners 
might have been separately indicted (o). If the pri- 
soner is not defended by counsel, he may cross-examine 
the witnesses for the prosecution and examine his own 
witnesses ; and, at the end of such examination, address 
the jury in his own defence (p). And if one only of 
two prisoners jointly indicted is defended by counsel, 
the undefended one may cross-examine and examine as 
above, and make his statement to the jury before or after 
the address of the counsel for the other, as the court 
thinks fit. If the prisoners jointly indicted are defended 
by different counsel, each counsel cross-examines, and 
addresses the jury in order of seniority at the bar ; or, 
if the judge thinks desirable, in order of the names of 
the prisoners on the indictment {q). If a prisoner 
defended by counsel wishes to address the jury and 
examine and cross-examine witnesses, he may do so ; 
and his counsel may argue points of law, and suggest 



(m) 28 Vict. c. 18, s. 2. 
(«) B. T. Toakley, 10 Cox, 406. 
(o) B. V. Jordan, 9 C. & P. 118. 
(p) See Appendix to this chapter. 

(d) Arch. 167. But this point does not seem to be clearly settled, 
B. V. Meadows,' 2 3m: (N.S.) 718. B. v. Holman, 3 Jur. (N.S.) 722. 



THE HEAEING. 383 

questions to him in cross-examination ; but he cannot 
have counsel to examine and cross-examine witnesses, 
and reserve to himself the right of addressing the 
jury {r). 

It will simplify matters if we tabulate the steps in Order of pro- 
the various cases which may occur. hearin^^ ** ^^^ 

i. The prisoner defended hy coimsel, and adducing 
evidence in defence. 

Counsel for prosecution opens his case. 

Counsel for prosecution examines his witnesses, 
who may be then cross-examined and re-exa- 
mined. 

Counsel for defence opens his case. 

Counsel for defence examines his witnesses, who 
may be then cross-examined and re-examined. 

Counsel for defence sums up his case. 

Counsel for prosecution replies. 

ii. Prisoner defended hy counsel, hut not adducing 
evidence. 

Counsel for prosecution opens his case. 

Counsel for prosecution examines his witnesses, 
who, &c. 

Counsel for prosecution sums up his case (s). 

Counsel for defence addresses the jury. 

iii. Prisoner not defended hy covmsel, hut adducing 
evidence. 

Counsel for prosecution opens his case. 

Counsel for prosecution examines his witnesses, 
who, &c. 



(r) B. V. White, 3 Camp. 97. 
(s) T. p. 381. 



384 



THE HEARING. 



Prisoner examines his witnesses, who, &c. 
Prisoner addresses the jury. 
Counsel for prosecution replies. 

iv. Prisoner not defended h/ counsel, and not ad- 
ducing evidence. 

Counsel for prosecution opens his case. 

Counsel for prosecution examines his witnesses, 
who, &c. 

Prisoner addresses the jury. 

The summing- The Only other proceeding before the jury consider 
"^' their verdict is the summing-up by the judge, or, at 

the sessions, by the chairman or recorder. The object 
of this is to explain the law as applicable to the case 
under trial, and to marshal the evidence so that it may 
be more readily understood and remembered by the 
jury. He first states to them the substance of the 
charge against the prisoner ; he then, if necessary, ex- 
plains to them the law upon the subject. ; he next reads 
the evidence which has been adduced in support of the 
charge, making occasionally such observations as may 
be necessary to connect the evidence, to apply it to the 
charge, and to render the whole plain and intelligible 
to the jury ; he then states the defence, and the evi- 
dence given on the part of the defendant; and he 
usually concludes by telling the jury that, if upon con- 
sidering the whole of the evidence they entertain a fair 
and reasonable doubt of the guilt of the prisoner, they 
should give the prisoner the benefit of that doubt, and 
acquit him (t). 



(f) Arch. Q. S. 619. In an American case it has been decided that a 
judge may, when the evidence is clear and uncontradicted, and the character 
of the witnesses unshaken, tell the jury that it is their duty to convict. 
Commonwealth v. Magee, 12 Cox, 549. 

The summing up of the judge " may, and generally does, indicate his 
opinion, but it is an opinion which is the result of the evidence laid before 
him, and not of an independent inquiry." — Fitz. St. 161. 



THE HEAEING. 385 



APPENDIX (Fitz. St. 196). 

" The common run of criminal trials passes some- Examination of 
what thus : Ten or twelve awkward clowns, ' looking,' ^"°«^f « ^Y 

' O! the prisoner, a 

as an eminent advocate once observed, ' like overdriven farce, 
cattle,' are crowded together in the dock. Their minds 
are confounded by formulas about challenging the jury, 
standing on their deliverance, and pleading to the in- 
dictment : the case is opened, and the witnesses called 
by a man to whom the whole process has become a 
mere routine, and whose very coolness must confuse 
and bewilder ignorant and interested hearers. After 
the witness has been examined, comes a scene which 
most lawyers know by heart, but which I can never 
hear without pain. It is something to the following 
effect :— 

" Judge. — ' Do you wish to ask the witness any 
questions ?' 

" Prisoner. — ' Yes, sir. I ask him this, my lord. I 
was walking down the lane with two other men, for I'd 
heard ' 

" Judge. — ' No, no, that's your defence. Ask him 
questions. You may say what you please to the jury 
afterwards ; but now you must ask him questions.' 

" In other words, the prisoner is called upon, with- 
out any previous practice, to throw his defence into a 
series of interrogatories, duly marshalled, both as to 
the persons to be asked and as to the subjects to be 
inquired into ; an accomplishment which trained law- 
yers often pass years in acquiring imperfectly. After 
this interruption has occurred three or four times in 
the course of a trial, the prisoner is not unfrequently 
reduced to utter perplexity and forgetfulness, and 
thinks it respectful to be silent." 



2 



( 386 ) 



CHAPTEE XV. 



THE WITNESSES. 



Grounds of 
incompetency 
now reduced. 



FoEMEELY many more classes of persons were excluded, 
as incompetent, from giving evidence, than are at the 
present day. An objection to the testimony of a wit- 
ness generally operates in another way now. Instead 
of excluding it altogether, the ohjection weakens the 
testimony and prevents the jury from placing ordinary 
credit in it ; at the same time giving them the oppor- 
tunity of gathering therefrom as much truth as possible. 
Thus, it has been provided by statute that no person 
offered as a witness shall be excluded by reason of in- 
capacity from crime or interest from giving evidence («) ; 
two grounds of incompetency which formerly prevailed. 
However, even now a person under sentence of death is 
incapable of giving evidence {x). 



Forms of in- The forms of incompetency at present existing 

competency. ^^^ . 

1. Incompetency of the accused, and the wife or 
husband. 

2. Incompetency from want of understanding. 

3. Incompetency on account of the relationship of 
legal adviser. 

Though incompetency from want of religious belief 
may be regarded as a thing of the past, it is important 
to notice it. 



(m) 6 & 7 Vict. c. 85, s. 1. 
(a;) S. V. Webb, 11 Cox, 133. 



THE WITNESSES. 387 

1. Incompetency of accused, and ihejwife or husband. 

It is a general principle of English law that no one incompetency 
is bound to criminate himself {nemo tenetur prodere f^^^^'f' """^ 
seipsum). In other words, the accused cannot be ex- consort. 
amined as a witness either for the prosecution or the 
defence. It is obTious that if he were examined as a 
witness in his own defence, being subjected also to 
cross-examination by the counsel for the prosecution, 
he might be compelled to answer questions which 
would criminate himself (y). There is at least one 
exception to this principle. The case referred to is 
under the Merchant Shipping Act, 1875 (z), where it is 
provided that one accused of sending an unseaworthy 
ship to sea may give evidence in the same manner as 
any other witness, for the purpose of shewing that he 
used all reasonable means to make and keep the ship 
seaworthy, &c. (a). 

In some cases a wrongdoer is not excused from 
answering questions on the ground that his answer 
may tend to criminate himself; but on his making full 
disclosure he is shielded from all ill consequences ; for 
example, 17 & 18 Yict. c. 38, s. 5. 

Defendants jointly indicted and given in charge to Fellow prisoner 
the jury, and being tried together, cannot be called as gaUed'as^ 
witnesses for or against each other. But, as we have witness. 
seen (6), the course is sometimes adopted of applying 
for an acquittal of one of the co-defendants, in order to 



(i/) The interrogation of prisoners, subject to certain provisions, is 
recommended by Sir James Stephen. See Gen. View Crim. Law, 189, 
where the whole subject is entered into, and where the system of non- 
interrogation is shewn to be of modern date. The reader will remember 
that the interrogation of prisoners is one great feature of French criminal 
procedure. 

(2) 38 & 39 Vict. c. 88, s. 4; v. p. 138. 

(a) The first instance in modern times oi a prisoner being examined 
occurred at the Liverpool Spring Assizes, 1876, when the innovation gave 
rise to some very severe condemnatory remarks by Mr. Justice Brett. 

(6) v. p. 359. 

2 2 



388 THE WITNESSES. 

make him a witness for the prosecution, and the other 
defendants cannot object to this (c). If a second person 
is indicted with the design of closing his mouth and 
preventing him from giving evidence, the court may- 
direct his acquittal, if there is no evidence to affect 
him, or may order him to be tried separately, so that 
his testimony may be admitted. A defendant who has 
pleaded guilty may be examined as a witness for or 
against his co-defendants, even before he has received 
sentence. 



Incompetency Husband and wife. — ^In treating of the evidence of a 
consorr^ ^ wife, it may be understood that the same rules, mutatis 
mutandis, apply to the evidence of a husband. 

The wife cannot be a witness for or against her 
husband. Not only this, but she cannot be a witness 
for any other person indicted jointly with her husband, 
where her testimony would tend to her husband's 
acquittal, though only remotely, as, for instance, 
merely by shaking the evidence of a witness {d). And 
if several prisoners, jointly indicted, are being tried 
together, the wife of one of them cannot be called as a 
witness for or against any of the prisoners (e). But to 
bring the case under this incompetency or exception, 
the parties must have been actually married; mere 
cohabitation will not suffice. 

Exceptions. There are two exceptions to this principle, one of 

which is doubtful. 

(a.) In high treason it is said that husband and wife 
may be witnesses against each other, but no instance 
can be given (/). 



(c) B. V. Rowland, Ry. & M. 401. 

(d) B. V. Smith, 1 Mood. C. C. 289. 

(e) B. V. Thompsm, h. E. 1 C. C. R. 377 ; 41 L. J. (M.C.) 112. 
(/) V. Rose. 129. B. V. Qriggs, T. Raym. 1 (an obiter dictum). 



THE WITNESSES. 389 

(b.) In cases of personal injury {e.gi., assault) by 
husband to wife, and vice versa. 

In bigamy, of course the so-called second wife is a 
competent witness ; also in forcible abduction and 
marriage, the marriage here being inyalid, the parties 
may give evidence against each other. 

No other relationship entitles to exemption. Parents 
and children, brothers and sisters, masters and servants 
may be, and constantly are, called to give evidence for 
or against each other. 

2. Incompetency from want of understanding. 

Generally the same rules which serve to render a incompetency 
person incapable of committing a crime, apply to ex- ° ' "''^' 
elude a person from being a witness. Thus an idiot or 
a lunatic, unless in an interval of sanity, is incom- 
petent, it being the province of the court to ascertain 
whether a person is able to understand the nature of 
an oath and to give evidence. Persons deaf and dumb, 
or dumb only, may give evidence through an in- 
terpreter. 

As to children, the rule is somewhat different from Children, 
that which prevails when the question is whether the 
child is responsible for its acts. An infant under the 
age of seven is incapable of committing a crime, but it 
is competent to give evidence at any age, if it satisfies 
the test, namely, if it has sufficient intelligence to 
understand the nature and obligation of an oath (ff). 
The judge frequently, before allowing a child to be 
sworn, questions it as to its belief in God, knowledge 
of the consequences of telling a lie, &c. 



(g) V. Fitz. St. 287, as to the evidence of children, though frequently 
based on imagination, having too much weisiht, on account of the sympa- 
thies of the jury. 



390 



THE WITNESSES. 



Incompetency 3. Ineompetency on aceount of the relationship of legal 

of legal 
adviser. 



adviser. 



Counsel, solicitors, and their agents are not obliged, 
nor are they allowed without the consent of their 
clients, to giye evidence of communications, written or 
parol, made to them by their clients in their pro- 
fessional capacity. And it is not material whether the 
communications were made in the case under trial, or 
not, nor whether the client he a party to the cause. 
But of course they may be witnesses on points which 
do not come within the sphere of professional confiden- 
tial communications ; for example, to prove their 
client's handwriting or his identity. This privilege 
does not apply to a medical attendant, a conveyancer, 
a priest, nor indeed to any others than those mentioned 
above. 

Certain facts In some cases the court will not compel or allow the 
not disclosed, ^igdosure of a particular fact, if such disclosure may 
be of detriment to the public service, and does not 
bear directly upon the matter in question, for example, 
evidence disclosing the channels through which infor- 
mation reaches the government Qi). 

Ineompeteney from want of religious lelief (i). 

Religious belief Formerly a person who had no religious belief which 
and incom- -j^g deemed binding upon his conscience to speak the 
truth upon oath could not be a witness. But now this 
incompetency appears to have been done away with by 
a recent statute (/<;), which provides that those who 
object to taking an oath, or are objected to as incom- 
petent to take an oath, the court being satisfied that 
the taking of an oath would have no binding effect on 
their conscience, shall make a promise and declaration 



(A) V. Hardy's Case, 24 How. St. Tr. 753. 

(«) For a full discussion of the question, v. Omiohund v. Barker, Willes, 
538 ; 1 Smith's Leading Cases. 
(/() 32 & 33 Vict. c. 68, s. 4. 



THE WITNESSES. 391 

in the prescribed form : — " I solemnly promise and 
declare that the evidence given hy me to the court shall he 
the truth, the whole truth, and nothing hut the truth." 
Any person who, having made this declaration, wil- 
fully and corruptly gives false evidence, is liable to be 
indicted, tried, and convicted as if he had taken an 
oath. For some time those who had some religious 
belief, but who conscientiously objected to oaths, such 
as Quakers, Moravians, and Separatists, had been ad- 
mitted as witnesses on their making the statutory form 
of solemn affirmation or declaration (Z). 

The form of oath varies according to the creed of the Forms of oath 
witness. In the case of an ordinary Christian, the ^™°5. '°^ 
witness, holding the New Testament in his bare right 
hand, is thus addressed by an officer of the court : — 
" The evidence you shall give to the court and jury, sworn 
hetween our sovereign lady the Queen and the prisoner at 
the har, shall he the truth, the whole truth, and nothing 
hut the truth. So help you God." He then kisses the 
book. Jews are sworn on the Pentateuch, keeping 
their hats on, the oath concluding with " So help you 
Jehovah." In the case of others, the form which they 
consider binding is resorted to ; thus a Chinese may be 
sworn by means of a cracked saucer (m). 

The objection to the competency of a witness should Objection to 
be made before he has been examined in chief, unless, of ™i^n^|^adl' 
course, the incompetency appears only on examination. 

CEEDIBILITY OF WITNESSES. 

As we have already seen, instead of altogether ex- Elements 
eluding a witness on account of some supposed bias, t^e*™™bifit 
the course generally adopted is to admit his evidence, of witnesses. 
allowing the circumstances causing suspicion to affect 



(0 V. 3 & 4 Wm. i, u. 49 ; 3 & 4 Wm. 4, u. 82 ; 1 & 2 Vict. c. 77 ; 
24 & 25 Vict. c. 66. 
(m) V. Best, Ev. 230. 



392 



IHE WITNESSES. 



his credibility. The great canon as to the credit of 
witnesses is, that it is for the jury to form their 
opinion thereon, as on any other fact. " The credi- 
bility of a witness is compounded of his knowledge of 
the facts he testifies, his disinterestedness, his in- 
tegrity, his veracity, and his being bound to speak the 
truth by such an oath as he deems obligatory. Pro- 
portioned to these is the degree of credit his testimony 
deserves from the court and jury " (n). 

We have just noticed the means taken to secure the 
most stringent obligation by oath or affirmation. 



Knowledge of 
witnesses. 



As to Ttnowledge. — It will be important to consider 
on what the witness bases his conclusion; what op- 
portunities he had of satisfying himself; what were 
the surrounding circumstances, whether they were 
such as to conduce to a correct opinion ; for example, 
whether it was light or dark, &c. 



Disinterested- 
ness of 
witnesses. 



As to disinterestedness. — Here should be considered 
the relationship of the prisoner and witness, natural or 
otherwise ; the advantage or disadvantage that would 
accrue to the witness on the prisoner's conviction ; 
prejudices, quarrels, &c. (o). 



Veracity of 
witnesses. 



As to veracity. — The chief mode in which the veracity 
of a witness is impeached is by shewing that at some 
former time he has said or written, or, what is more 
damaging, sworn, something not agreeing with or op- 
posed to that which he now swears. As to the manner in 
which he may thus be confronted with his former allega- 
tions, it is provided by 28 Yict. c. 18 that if, on cross- 
examination, a witness does not admit having made a 
former statement, proof may be given that he did make 
it; but before such proof can be given, the circumstances 



in) Arch. 296. 

(o) As to the evidence of accomplices, v. p. 395. 



THE WITNESSES. 393 

of the supposed statement, sufficient to designate the 
particular occasion, must be mentioned to the witness, 
and he must be asked whether or not he has made 
such a statement (p). If the statement has been in 
writing, he may be cross-examined as to it without 
the writing being shewn to him ; but if it is intended 
to contradict him by the writing, his attention must, 
before such contradictory proof can be gjven, be called 
to those parts of the writing which are to be used for 
the purpose of so contradicting him. But this does 
not prevent the judge from inspecting and making 
such use of the writings as he thinks proper (q). 
The writing most frequently used to impeach the 
testimony of a witness is his deposition taken before 
the magistrate. 

As to general character. — It has been noticed above Character of 
that a person is a competent witness although he has ™''°'===«^' 
been convicted of a crime ; but of course that fact will 
carry weight with the jury. To weaken the testimony 
of a witness, either one of two courses may be taken. 
The witness may be cross-examined as to his delin- 
quencies, or (b) other witnesses may be called to prove 
his generally bad reputation. After considerable con- 
flict between the authorities, it seems to be settled 
that a witness may be asked questions with regard 
to alleged crimes or other improper conduct; but 
that he is not compelled to answer them if such 
answer would tend to expose him to a criminal charge, 
or to a penalty or forfeiture of any kind (r). And the 
court will decide whether the witness has shewn 
reasonable grounds for believing that the answer will 
tend to criminate him (s). But all other questions 
must be answered, however strongly they may reflect 
on the witness's character. And a denial of improper 



(p) 28 Vict. c. 18, 3. 4. 

(?) Ibid. 5. 5. 

(r) V. 2 Taylor's Evidence, Part III. u 

(s) S. V. Boyes, 30 L. J. (Q.B.) 301. 



394 THE WITNESSES. 

conduct by the witness is conclusive, and he cannot be 
contradicted by calling other witnesses, unless of course 
the fact be relevant to the issue (t). A witness may be 
questioned as to whether he has been convicted of a 
felony or misdemeanor, and, if he does not admit it, the 
cross-examining party may prove the conviction (u). 
In order to shew the general bad character of the 
witness, almost any question may be asked as to his 
past life. It is left to the discretion and good feeling 
of the bar not to exceed the limits required by the 
necessities of the case, by wantonly taking away a 
person's character (so). When other witnesses are 
called to shew the bad character of the witness, the 
object is to shew that the former, from their acquaint- 
ances with the latter, are of the opinion that he is not 
to be believed on oath. But they may not be examined 
as to any particular offences which are alleged against 
the witness. On the other hand, witnesses may be 
called to testify to the general good character of the 
witness, if that is questioned. 



NUMBER OF WITNESSES. 

Cases where In all cases, both before the grand jury and at the 
wUnesi'u ™° *^^*^' ^^^ witnoss for the prosecution is sufficient, 
required. with the following exceptions :— 

1. In treason or misprision of treason (except where 
the overt act alleged is the assassination of the Queen, 
or any direct attempt against her life or person) two 
witnesses are required, unless the prisoner confesses. 
And both of the witnesses must testify to the same 
overt act of treason ; or one of them to one overt act, 
and another to an overt act of the same species of 



(f) Tewin's Case, 2 Camp. 638. It has heen doubted whether such dis- 
crediting questions must be answered, if they are not otherwise material 
to the issue. 

(m) 28 Vict. c. 18, s. 6. 

{x) V. Fitz. St. 296. 



THE WITNESSES. 395 

treason (y). But of course collateral facts may be 
proved by one witness. 

2. In perjury there must be two witnesses. Both 
need not necessarily directly contradict what the 
accused has sworn ; it will suffice if the second cor- 
roborates in any material circumstance, by circum- 
stantial evidence or otherwise, what' the first has 
said (z). The reason usually assigned for this excep- 
tion is that otherwise there would only be oath against 
oath ; but more probably the expediency of protecting 
witnesses, and thus furthering the ends of justice, is 
the true ground (a). 

It will be convenient here to notice the evidence of Evidence of 
accomplices. Naturally it is viewed with suspicion, ^°™™P "'°^' 
inasmuch as, on the one hand, the accomplice may 
hope to gain favour and leniency by assisting the 
prosecution ; on the other hand, he will often be 
anxious to shield his companions. In practice, though 
not in strict law, it is deemed essential that the evi- 
dence of the accomplice should be corroborated in some 
material part by other evidence, so that the jury may 
be led to presume that he has spoken the truth gene- 
rally. This confirmatory evidence must be unim- 
peachable ; so that the evidence of another accomplice 
or his wife will not suffice. And the confirmatory 
evidence should not be merely to the fact of the act 
having been committed, but should extend to the 
identification of the prisoner with the party con- 
cerned (b). 

How is the attendance of witnesses procured ? In Attendance oi 
both felonies and misdemeanors the witnesses examined ■^''''«=s«^- 
are usually bound over by recognizance by the com- 



(y) 7 & 8 Wm. 3, c. 3, ss. 2, 4. 
(») V. cases, &c., Best, Ev. 755. 
(a) Best, Ev. 752. 
(6) iJ. V. Farler, 8 C. & P. 106. 



396 



THE WITNESSES. 



mitting magistrate to appear at the trial and give 
evidence. If they do not appear, the recognizances 
may be estreated and the penalty levied. AH other 
witnesses may he compelled to attend by subpoena. 
This may be issued either at the Crown office in 
London, or by the clerk of assize, or clerk of the peace 
at sessions. A copy of the writ is served upon the 
witness personally, the original writ being shewn to 
him. 

Pioduction of If a Written instrument, required as evidence, is in 
witn^ses'.^ ^'^ the possession of some person, he is served with a 
subpoena duces tecum, ordering him to bring it with 
him to the trial. Unless he has some excuse, allowed 
to be valid by the court, he must produce it at the 
trial. Such lawful excuses are the following: that 
the instrument will tend to criminate the person pro- 
ducing it ; that it is his title-deed. 

Consequences In the evcut of the uou- appearance of a witness in 
tL°sM6°mM°^ answer to a subpoena, he incurs certain penalties. If 
the writ has been sued out of the Crown office, the 
Queen's Bench, upon application, will grant an attach- 
ment for the contempt of court. In other cases, the 
proceedings must be by way of indictment (e). But 
to render a witness subject to these penalties, he must 
have been served personally, and served a reasonable 
time before trial. If his expenses have not been 
tendered, and he is so poor as not to be able to go to 
the trial, this will probably be allowed by the court as 
a sufficient excuse. 

Attendance of If the witucss is in custody, the proceedings are 

isTn'cust'ody." different. If in criminal custody, a secretary of 

state, or any judge of the superior courts, may, on 

application by affidavit, issue a warrant or order under 

his hand for bringing up such person to be examined 

(c) V. Arch. 309. 



THE WITNESSES. 397 

as a witness (d) ; or his attendance may be secured by 
a writ of habeas corpus ad testificandum. If in civil 
custody, a writ of hob. corp. ad test, is obtained upon 
motion in court or application to a judge in chambers, 
founded upon an affidavit stating that he is a material 
witness. If the evidence of a person in court is re- 
quired, he is bound to give it, although he has not been 
subpoenaed. 

A witness, whether subpoenaed or bound over by Witnesses' 
recognizance, either to prosecute or give evidence, is ^^J.^j^^^ '^""" 
privileged from arrest whilst attending the trial on 
every day of the assizes or sessions until the case is 
tried ; also for a reasonable time before and after trial 
whilst coming to or returning from the place of trial. 

As we have seen, preventing a witness from attend- 
ing or giving evidence is a contempt of court; and 
intimidating a witness from giving evidence for the 
prosecution is a misdemeanor (e). 

As to witnesses' expenses. — In felonies, the court may Expenses of 
order the payment to the prosecutor and his witnesses Jhe" otoLctI- 
of a reasonable sum for expenses, trouble, and loss of tion. 
time; and this whether the result of the trial be a 
conviction, or acquittal, or no bill be found (/). And 
although no bill be preferred, a like reasonable sum 
may be ordered to be paid to those who iondfide attend 
the court in obedience to their recognizances or svh- 
poena. The amount to be paid for the attendance 
before the examining magistrate must be ascertained 
by the certificate of the magistrate granted before the 
trial {g). Further, if a charge is made hona fide on 
reasonable and probable cause, although there has been 
no commital for trial, the magistrate before whom the 



(d) 16 & 17 Vict. c. 30, s. 9. 
(«) V. p. 89. 

(/) 7 Geo. 4, c. 64, ss. 22, 24, 25. 
(3) Ibid. s. 22. 



398 



THE WITNESSES. 



accused was brought and examined may grant to any 
witness examined a certificate of his expenses (h). 

In very many cases of misdemeanor there is a like 
power of ordering payment of witnesses' expenses. 
The particular misdemeanors will he found mentioned 
in 7 Geo. 4, c. 64, s. 23 ; 14 & 15 Vict. c. 55, ss. 2, 3 ; 
and other statutes which deal with individual offences. 
Each of the Criminal Consolidation Acts provides that 
the court before whom any indictable misdemeanor, 
punishable under such Act, is prosecuted or tried, may 
allow the expenses of witnesses, as in felony ; and in 
prosecutions by the treasury in coinage offences shall 
allow such expenses (»). 

In a similar manner, in certain indictable .offences 
dealt with by the magistrates in the exercise of their 
summary jurisdiction, the magistrate may order the 
payment of witnesses' expenses (h). 



Expenses of 
witnesses for 
the defence. 



Payment of 
costs by the 
defendant. 



So much as to witnesses for the prosecution. The 
court has, however, also discretionary power to order 
the payment of the expenses of witnesses for the 
prisoner who appear after having been bound by 
recognizance by the examining magistrate to give 
evidence (l). 

In the event of a conviction for treason or felony, 
the court may order the prisoner to pay the whole or 
part of the costs of the trial ; and in cases of assault 
the defendant, on conviction, may be made to pay the 
prosecutor's costs and a reasonable allowance for loss 



(A) 29 & 30 Vict. 0. 52 (a temporary statute since continued yearly). 
This statute applies also to misdemeanors. 

(0 24 & 25 Vict. 0. 96, s. 121 ; u. 97, s. 77 ; c. 98, ». 54 ; u. 99, ». 42 ; 
c. 100, s. 77. 

(k) 10 & 11 Vict. c. 82, 3. 14 (juvenile offenders); 18 & 19 Vict. c. 126, 
s. 14 (small larcenies); 31 & 32 Vict. i;. 116, s. 2 (embezzlement). 

(0 30 & 31 Vict. c. 35, ». 5. 



THE WITNESSES. 399 

of time (m). It will be remembered that in cases 
under the Vexatious Indictments Act the prosecutor 
may, at the discretion of the court, be required to pay 
the defendant's costs on the acquittal of the latter («) ; 
and also that, in private prosecutions for the publish- 
ing of a defamatory libel, if judgment is given for 
the defendant, he may recover costs from the prose- 
cutor (o). 



(m) 33 & 34 Vict. c. 23, s. 3. 

(n) V. p. 345. 

(o) 6 & 7 Vict. c. 96, ». 8 ; v. p. 111. 



( 400 ) 



CHAPTEE XVI. 

THE EXAMINATION OF WITNESSES. 

This is a subject on which, though a wide latitude is 
allowed to counsel, some rules may be laid down as 
directly authorized, others as developed in and sanc- 
tioned by practice. 

General course We have already noticed the general course of the 
''^"™'°*'''"'- examination of witnesses (p) ; namely, that the wit- 
nesses for the prosecution are first examined in chief 
by the counsel for the prosecution, and then cross- 
examined by the counsel for the defence ; and after the 
case for the prosecution has closed, then the witnesses 
for the defence are examined by the counsel for the 
defence, and cross-examined by the counsel for the 
prosecution ; in each case the witness being re-examined 
by the party calling him, if it is thought desirable. It 
should also be reniembered that the court may at any 
time put such questions as it thinks fit to the witness, 
even after he has left the witness-box; and that if, 
after the counsel has finished his examination or cross- 
examination, he thinks of some other question which 
ought to have been asked, that question can be put 
only through or by leave of the court. Through the 
court, also, are asked questions which occur to the 
jury. 



What wit- All the witnesses whose names are on the back of 

nesses sho 
be called. 



nesses should ^j^^ indictment should be called by the counsel for the 



prosecution; and although he does not ask them any 



(p) v. p. 381. 



THE EXAMINATION OF WITNESSES. 401 

question, or even call them, the defence may have them 
called, so that they may be subjected to cross-exami- 
nation. But in such a case the counsel for the prose- 
cution may re-examine (q). 

When any collusion is suspected among the witnesses, Witnesses 
or it is thought that any of them will be influenced by "ft.'utt.""' 
what they hear from counsel or other witnesses, those 
who have not yet been examined are ordered to leave 
the court until they are wanted, and after examination 
they are required to remain in court. The judge will do 
this, either at his own instance, or on the application 
of the opposite party. If the order be disobeyed, the 
witness may be punished as for his contempt; but, 
though the disobedience will be matter of remark for 
the jury, the judge has no right to reject his testi- 
mony (r). 

At the outset it will be well to ascertain the position Functions, &c., 
of the counsel for the prosecution and for the defence foj.*the°pro-^' 
respectively, their functions and conduct, their respec- seoution ; 
tive parts, and the spirit in which they should conduct 
them. It is needless to observe that it is not the 
object of the counsel for the prosecution to get a con- 
viction at any price. It is his duty to see that the 
case against the prisoner is brought out in all its 
strength ; but it is not his duty to conceal, or in any 
way diminish the importance of, its weak points. His 
function is not to inquire into the truth, but to put 
forward, with all possible candour and temperance, 
that part of it which is unfavourable to the prisoner (s). 



On the other hand, the counsel for the prisoner has of the counsel 

for the 
prisoner. 



before him, as his object, the acquittal of the prisoner. 



His duty is to act as an advocate, and not to any 



(q) R. V. Edwards, 3 Cox, 82 ; B. v. JBeezlen, 4 C. & P. 220. 
(r) B. V. Colley, Moo. & M. .329. 
(s) Fitz. St. 160. 

2 D 



402 



THE EXAMINATION OF WITNESSES. 



extent as a, judge. He is to put himself in the place 
of the accused, and so is not under any obligations 
which the accused would not be under. Thus, he is 
not obliged to divulge facts with which he may be 
acquainted which are unfavourable to the prisoner (t). 

Witness The rules as to examination-in-chief and cross- 

favourabit°to^ examination are generally the same, whether the wit- 

the side ness be for the prosecution or the defence. They are 

ing im. ija^gg^ upon the supposition that the witness called and 

presented by the party examining him is favourable to 

his side, and therefore unfavourable to his opponent. 

If this should turn out not to be the case, the rules of 

cross-examination apply to the examination of one who 

thus proves hostile to the party producing him. 



Examination- 
in-cliief. 
Questions 
must be 
relevant. 



Examination-m- Chief. — What questions may be put 
to a witness ? In the first place, only such as are 
relevant to the matter in issue, and which, if answered 
in the way desired by the examiner, will tend to prove 
the offence or defence. Of course, if circumstantial 
evidence is resorted to, greater latitude will be allowed ; 
inasmuch as it is not so easy to estimate the relevancy 
of the question. 



Leading 
questions not 
allowed. 



The second great rule is, that leading quesiions may 
not be asked in examination-in-chief. What is a lead- 
ing question ? One which in any way suggests to the, 
witness the answer which the person asking requires. 
Thus, to ask a witness, " Had the prisoner a white hat 
on ?" would be a leading question ; but the question, 
" What sort of a hat had the prisoner on ?" would not 



(f) " The counsel for the Crown may not use arguments to prove the 
guilt of the prisoner which he does not himself believe to be just, and he 
is bound to warn the jury of objections which may diminish the weight of 
his arguments. In short, as far as regards his own evidence, his speech 
should as much as possible resemble the summing up of the judge. The 
counsel for the prisoner may use arguments which he does not believe to 
be just. It is the business of the jury, after hearing the judge, to say 
whether or not they are just.'' — Fitz. St. 168. 



THE EXAMINATION OP WITNESSES. 



403 



be. Unless, indeed, the point to be proved was 

whether he had or had not a hat on. It is often given 

as a test whether a question be leading or not, whether 

it might be answered by "Yes" or "No." But this test 

is by no means decisive ; all questions which may be thus 

answered not being leading, and other questions than 

those which may be so answered being equally leading. 

Thus the question, " Could the prisoner hear what he 

said ?" is not leading ; whereas " What did he do with 

the purse?" is leading, because it implies that the 

person to whom it relates dealt with the purse in some 

way or other (u). Though the rule is, that leading When leading 

questions may not be put in examination-in- chief, t^asked! ™*'' 

there are certain exceptions, some allowed as of right, 

others for convenience' sake. 

(a.) For the purpose of identifying persons or things 
which have already been described, the attention of the 
witness may be directly pointed to them (»). 

(b.) When a witness is called to contradict another, 
who has sworn to a certain fact, he may be asked in 
direct terms whether that fact ever took place. 

(c;) When the witness is, in the opinion of the 
judge, hostile to the party calling him. 

(d.) When the witness is unable to answer general 
questions from defective memory, or the complicated 
nature of the matter as to which he is interrogated (y). 

^ Leading questions are also not objected to — 

(a.) When merely introductory, so as to save time. 

(b.) When the particular matter is not disputed. 
Thus, where a witness having deposed to a fact has 
not been cross-examined on it, questions may be put 
which assume that fact. 



(w) Fitz. St. 280. 

(x) /?. V. Watsm, 2 Starkie, N. P. C. 128. 

(2/) Best, Et. 804. 

2 D 2 



404 



THE EXAMINATION OF WITNESSES. 



Witness must 
testify from 
his own 
knowledge. 



Refreshing 
his memory. 



A third general rule is, that the evidence of the 
witness must relate to what is immediately within his 
knowledge and recollection. But there is one exception 
to this rule. In matters of science, skill, travel, &c., 
the evidence of experts is allowed, that is, persons who 
have a special knowledge of the branch in question 
may be called to give their opinion as to the conse- 
quences, &c., of facts already proved. For example, if 
the wounds of a murdered person are described, a 
surgeon may be asked his opinion as to whether they 
caused the death ; but, of course, it will be for the 
jury to determine how far they will adopt this 
opinion (z). In accordance with the general rule, a 
witness is not allowed to read his evidence. But he is 
allowed to refresh his memory by referring to any 
writing made by himself, or examined by him, soon 
after the event to which it refers, provided that after 
he has thus refreshed his memory he can swear to the 
fact from his own recollection. 



Contents of 
a written 
document, 
how proved. 



A fourth general rule is, that the contents of a written 
document cannot be proved orally if the document is 
capable of being produced, but must be proved by the 
document itself. But if it be shewn that it is lost, 
destroyed, or in possession of the prisoner who has had 
notice to produce it, other evidence may be given of 
its contents (a). 



Consequences 
of witness 
proving 
hostile. 



Another matter to be noticed is the hostility of one's 
own witness. It is a rule that a counsel cannot dis- 
credit his own witness ; it is also, as we have seen, a 
rule that leading questions may not be put in examina- 
tion-in-chief. But it is provided by statute (h) that 
although a party producing a witness is not allowed to 
impeach his credit by general evidence of bad charac- 



(«) S. V. Wright, R. & R. 456. 

(a) V. p. 412. 

(b) 28 Vict. 0. 18, s. 3. 



THE EXAMINATION OP WITNESSES. 405 

ter, he may, in case the witness, in the opinion of the 
judge, proves adverse {i.e , hostile), contradict him by- 
other evidence, or, by leave of the judge, prove that at 
other times he has made a statement inconsistent with 
his present testimony ; but before such last-mentioned 
proof can be given, the circumstances of the supposed 
statement, sufficient to designate the particular occa- 
sion, must be mentioned to the witness, and he must 
be asked whether or not he has made such statement. 
So, also, if, in the opinion of the judge, the witness is 
keeping back some of the truth, iu order to favour the 
prisoner or otherwise, he may allow the cross-examin- 
ing counsel to ask leading questions, and generally io 
treat the witness as hostile. 

Gross-examination. — Inasmuch as a witness is sup- Cross- 
posed to be inclined to favour the party calling him, examination, 
greater powers are given to the cross-examining 
counsel. He may ask leading questions, and in this 
way remind the witness of anything which may tend 
to help the cause of the opposite party. But if the 
witness proves anything favourable to the cross-ex- 
aminer, the fact that the evidence was procured by 
leading questions will, of course, diminish its value. 
The counsel will not, however, be allowed to put into 
the witness's mouth the very words he is to echo back 
again (c). In cross-examination the questions will be 
of two classes : (a) Those which tend directly to refute 
or explain what has been given in evidence in the ex- 
amination-in-chief ; (b) Those whose object is to affect 
the credit of the witness. It is not usual to cross- 
examine witnesses to character except the counsel 
cross-examining has some distinct charge on which to 
cross-examine them (d). It is needless to add that a 
cross-examining counsel should avoid asking questions 
the answer to which, if unfavourable, would be condu- 



ce) B. V. Ifardy, 24 How. St. Tr. 765. 
Id) R. V. HodgMns, ■? C. & P. 298. 



406 



THE EXAMINATION OP WITNESSES. 



sive against him. And he should always remember 
that the story of the witness, if true, will be confirmed 
the more he is questioned about it ; and this although 
there may be slight discrepancies on immaterial points. 



Re-examina- 
tion. 



Be-examination. — The object of the re-examination, if 
it be judged expedient to have recourse to it, is to inquire 
into and explain what has transpired on cross-examina- 
tion. But it must be strictly confined to such matter ; 
the re-examiner may not ask questions which he might 
and ought to have put on examination-in-chief. 



- Questions put Any further questions after re-examination must be 
judge.^ ^ V^^ through the judge ; also through him any ques- 
tions which occur to counsel after they have finished 
their examination or cross-examination (e). 



Objections to 
questions, 
how made. 



If any improper question, e.gt., irrelevant or leading, 
in examination-in-chief be put, the counsel on the 
other side should immediately interpose and object to 
it before the witness has time to answer it. Though 
in the case of a leading question this will often be in- 
efiectual, inasmuch as the mischief has been done by 
the suggestion being made. The counsel in the same 
way should interpose if parol evidence is given when a 
document should be produced. 



(e) V. p. 381. 



( 407 ) 



CHAPTER XVII. 

EVIDENCE. 

" Eyidence includes all the legal means, exclusive of Definition of 
mere argument, which tend to prove or disprove any ^'^"^^°'=<'- 
matter of fact the truth of. which is submitted to 
judicial investigation " (/). 

In ascertaining the law on the subject of evidence 
in general, four or five heads present themselves under 
which may be ranged the chief principles which it is 
necessary to consider : — 

1. On whom the burden of proof lies. 

2. What must be proved, and what may not be 

proved. 

3. The best evidence must always be given. 

4. Hearsay is not evidence. 

5. Confessions, under certain circumstances, are 

not admitted as evidence. 

1. The lurden of proof is on the prosecution as a The burden 
rule. The prosecution must prove their case before °^j^^"° 'the* 
the prisoner is called upon for his defence ; and this, prosecution. 
although the offence alleged consists of an act of 
omission and not of commission, and therefore the pro- 
secution have to resort to negative evidence (^). The 
law considers a man innocent until he is shewn to be 



(/) 1 Tayl. Ev. 1. 

((/) There is an exception to this rule when the accused pleads specially, 
e.g., autrefois acquit. 



408 



EVIDENCE. 



Qualifications guilty. But the principle under discussion must not 
to the oreiM ^^ ^^ Understood with unlimited signification. Though 
prob^ndi. the burden of proof of the charge is in general on the 
prosecution, yet on particular points it is on the pri- 
soner. This is markedly the case in some offences. 
Thus, by various Acts of Parliament it is declared 
penal to do certain things, or possess certain articles, 
without lawful excuse or authority; such excuse or 
authority must be proved by the accused. For ex- 
ample, to possess public stores marked with the broad 
arrow {h) ; to possess coining tools («'). Again, it lies 
on the defendant to prove that signals to smuggling 
vessels were not made for the purpose of giving illegal 
notice (Jc) ; also to shew some justification for sending 
an unseaworthy ship to sea (I). But it will be noticed/ 
that in all these cases there is something to be proved 
in the first instance by the prosecution — either the 
possession of the goods, the unseaworthiness of the 
ship, &c. 

In some cases And not only in the particular cases of which we 
iTexS^d*"'" ^^^^ given examples, but in most cases of circum- 
stantial evidence " there is a point (though it is impos- 
sible to determine exactly where it lies) at which the 
prosecutor has done all that he can reasonably be 
expected to do, and at which it is reasonable to ask for 
evidence from the prisoner in explanation, and to draw 
inferences unfavourable to him from its absence " (m). 
Thus the court will naturally expect from the prisoner 
an explanation of the object for which poison was pur- 
chased ; so also in the case of recent possession of stolen 
goods. Killing is presumed to be murder until other- 
wise accounted for. 



from the 
prisoner. 



What must be 
proved. 



2. What must he proved?— All facts and circum- 



(A) V. 38 & 39 Vict. c. 25. 
(0 24 & 25 Vict. c.'99, s. 24. 
Ik) 16 & 17 Vict. c. 107, s. 245. 
(0 38 & 39 Vict. 0. 88, s. 4. 
(m) Fitz. St. 303. 



EVIDENCE. 409 

stances stated in the indictment which cannot be 
rejected as surplusage ; in other words, all the consti- 
tuents of the offence. Though, as we shall see here- 
after, if a more serious crime contains, as it were, a less 
serious one, the prisoner indicted for the former may 
sometimes be convicted of the latter, if the more serious 
circumstances cannot be established ; thus on an indict- 
ment for murder, if the malice prepense be not proved, 
the prisoner may be convicted of manslaughter. 

We have seen above (w) in what cases the time and As to time 
place must be correctly stated in the indictment (o) ; ^""^ P''"^"- 
and thus we now know when they must be correctly 
proved. But in any case the offence must be proved to 
have been committed within the extent of the court's 
jurisdiction. Any material variance between the fact Amendment 
laid in the indictment and the fact proved will be fatal, °f ™-'*'"=«- 
unless amended (p). 

Closely connected with the question " what must be Facts, &c., 
proved ?" is the question " what may not be given in ^^ given m °°* 
evidence ?" As a rule, nothing must be given in evi- evidence. 
dence which does not directly tend to prove or disprove 
the matter in issue. The previous or subsequent bad 
character of the prisoner may not be proved ; unless to 
rebut evidence of good character (g). Thus, also, if As to other 
other true bills are found against the prisoner, theoreti- °^^'^''^^- 
cally this is not supposed to influence the judge or 
jury (r). Nor may it be proved that he has a general 
disposition to commit the particular kind of offence. 
Again, it is not allowable to prove a man' guilty of one 
felony in order to prove him guilty of another uncon- 
nected with it. In other words, if the offences are 



(n) V. p. 324. 

(o) ». p. 325. 

(p) V. p. 326. 

(a) V. S. V. Eowton, 3i L. J. (M.C.) 57. 

M Howevev, as both the judge and jury are supplied with calendars, 
they cannot help noticing that there are other charges against the prisoner. 
It would be well if the jury, at least, were not so supplied ; they know 
perfectly well without a calendar what they are to give their verdict on. 



410 



EVIDENCE. 



When evidence 
of other 
offences may 
be given : 
In treason. 



To prove 

gnilty 

knowledge. 



In cases of 
receiving. 



distinct, evidence of one offence is, in general, inadmis- 
sible on the trial of the prisoner for another offence. 
But if they are connected, and form one entire transac- 
tion, other offences may be proved to shew the character 
of the transaction. If the evidence is admissible on 
general grounds as being relevant, it cannot be excluded 
merely because it discloses other offences (s). 

There are exceptions to the rule excluding evidence 
of other offences :— 

(a.) In treason, other overt acts may be given in evi- 
dence, if they directly prove any overt acts which are 
laid. And in conspiracy, sedition, libel, and similar 
offences, wide limits are given to the reception of evi- 
dence, inasmuch as the offence can only be estimated 
by the surrounding circumstances (i). 

(b.) When it is necessary to prove the guilty knowledge 
of the defendant, evidence may be given of his having 
committed the same offence before. Thus, on an indict- 
ment for uttering forged bank notes, or for uttering 
counterfeit coin, evidence may be given of the defen- 
dant's having at other times uttered or had in his 
possession other forged bank notes or counterfeit coin. 
So it seems that the guilty knowledge of the falsehood 
of a pretence may be shewn by evidence of a previous 
obtaining or attempting to obtain by false pretences (m). 
Under the Prevention of Crimes Act, 1871 (x), when 
proceedings are taken against a person for receiving or 
having in his possession stolen goods, evidence may be 
given at any stage of the proceedings of the defendant's 
having had in his possession, within the preceding 
twelve months, other stolen property; and evidence 
may also be given, under the same circumstances, of his 
previous conviction, within five years, of any offence 
involving fraud or dishonesty. 



(s) Rose. 90 ; v. R. v. Salisbury, 5 C. & P. 155. 
(t) V. R. V. Eunt, 3 B. & Aid. 566 ; R. v. Pearce, Peake, 75. 
(m) R. v. Francis, L. R. 2 C. C. R. 128 ; 43 L. J. (M.C.) 97. 
Xx) 34 & 35 Vict. 0. 112, s. 19. 



EVIDENCE. 411 

(c.) When it is necessary to prove malice or intent on To shew 
the part of the defendant, evidence of other offences may, '"'^°'- 
under some circumstances, be given. Thus, in a trial 
for murder, evidence of former unsuccessful attempts or 
threats to murder would be admissible. 

As to evidence of good character. — Witnesses may be Evidence 
called to speak generally to the good character of the °\^''°\ 
prisoner ; but they may not give evidence of particular 
acts, unless such evidence tends directly to the disprov- 
ing of some of the facts put in issue by the pleadings. 
The evidence must be to the general reputation for 
good character, and not to the witness's own opinion. 
The way in which the information is elicited is by 
questions of this sort: "How long have you known 
the prisoner ?" " During that time, what has been his 
general character for sobriety, honesty and industry ?" 

General evidence of good character may be disproved of bad 
by general evidence of bad character ; but not by '^''^»'^'='^''- 
particular cases of misconduct. However, for such pur- 
poses, previous convictions may as a rule be proved («/). 

It is important to notice in what way evidence of Effect of 
previous good character operates : " Judges frequently chlracter" 
tell juries that evidence of character cannot be of use 
when the case is clearly proved, except in mitigation 
(or, possibly, aggravation) of punishment ; but that, if 
they have any doubt, evidence of character is highly 
important " (2). 

(y) T. 6 & 7 Wm. 4, c. Ill ; 24 & 25 Vict. c. 96, s. 116 ; 24 & 25 Vict, 
c. 99, s. 37. 

(z) Fitz. St. 312. " This always seems to me to be equivalent to saying, 
' If you think the prisoner guilty, say so ; and if you think you ought to 
acquit him independently of the evidence of character, acquit him rather 
more readily because of it.* Evidence of character would thus be super- 
fluous in every case. The trne distinction is, that evidence of character 
may explain conduct, but cannot alter facts. I do not disbelieve a credible 
witness because the man whose hand he swears he saw in his neighbour's 
pocket has a very high character for honesty ; but 1 do not draw the in- 
ference from the fact which I should draw in most cases, namely, that there 
existed a felonious intent. 1 ascribe the act to some innocent motive." — Ibid. 



412 



EVIDENCE. 



Best evidence 
must be given. 



The case of 

written 

documents. 



Hearsay, 
no evidence. 



3. The best evidence must always be given. That is, 
if it is possible to be had ; if not, then inferior evidence 
will be admitted. But before this inferior (or secondary) 
evidence is let in, the absence of the better evidence 
must be accounted for. By this is meant that merely 
substitutionary evidence, that is, such as indicates more 
original sources of information, must not be received so 
long as the original evidence is attainable. It does not 
imply that weaker proofs (which are not substitutionary) 
may not be selected instead of stronger ones. Thus, an 
act may be equally proved by a written instrument, and 
also by some one who saw it ; both these modes of proof 
are primary. 

The most common application of this rule is in the 
case of written instruments. It is plain that the best 
evidence of the contents of a written document is the 
writing itself, and therefore before a copy, or parol 
evidence, of its contents can be received, the absence 
of the original instrument must be accounted for, by 
proving that it is lost or destroyed, or that it is in the 
possession of the opposite party, and that he has had 
reasonable notice to produce it. If once secondary 
evidence is admitted, any proof may be given, as there 
are no degrees of secondary evidence ; thus, if an ori- 
ginal deed cannot be produced, parol evidence of its 
contents may be given, although there is an attested 
copy in existence. But, for the sake of convenience, 
copies may be given, in evidence of all records, other 
than those of the court requiring proof of them, of 
journals of either House of Parliament, and generally 
of the official documents of other courts, and parish 
registers, entries in corporation books and books of 
public companies relating to things public and general. 

4. Hearsay is no evidence. 

Hearsay (derivative, or second hand, as opposed to 
secondary) evidence is that which is learnt from some 
one else, whether by word of mouth or otherwise ; in 



EVIDENCE. 413 

other words, it is anything which does not derive its 
value solely from the credit given to the witness him- 
self, but which rests also, in part, on the veracity and 
competence of some other person (a). 

The reasons usually assigned for the rejection of hear- Hearsay, 
say evidence are two : (a) that the original statement ™ ^ '^«jecte . 
or writing was not made on oath ; (b) that the party 
affected has not the opportunity of cross-examining the 
originator of it. Its reception would also have the 
effect of lengthening the proceedings without any cor- 
responding advantage. We have seen that secondary When it may 
evidence can be given only where there has been an ^^if^ng" '° 
explanation of the absence of the best evidence ; second- 
hand evidence cannot be given at all, subject to the 
following exceptions (6) : — 

i. To prove the death of a person beyond the sea. 

ii. To prove a prescription, a custom; matters of 
pedigree ; reputation on questions of public or general 
right. 

iii. When the hearsay is what the witness has been 
heard to say at another time, in order to invalidate or 
confirm his testimony given in court. 

iv. Declarations made by persons under the sensible 
conviction of their impending death. Such declara- 
tions are admitted only when the death of the deceased 
is the subject of the charge (that is, in cases of murder 
or manslaughter), and only if the declaration refers to 
the injury which is the cause of death. 

V. Statements made by deceased persons, if against 
their interest ; or entries made by them in the regular 
course of their duty or employment. 

(a) 1 Ph. Ev. 183. 

(b) " All the exceptions to the rule are based upon the principle that 
the special circumstances which establish them supply a sanction to the 
statement, and exclude the possibility of calling the person who made it." 
— Fitz. St. 319. 



414 EVIDENCE. 

vi. When the bodily or mental feelings of a person 
are material to be proved, the usual expressions of such 
feelings, made at the time in question, are admissible 
as original evidence (c) ; for example, what was said to 
a surgeon immediately after an assault (d). 

vii. When the sayings, &o'., of another are part of 
the res gestse, that is, of the general transaction, and 
are not merely a medium of proof of another fact. 
Thus, the cries of a person being stabbed, of a mob, 
are good evidence (e). In fact, these are not strictly 
instances of hearsay evidence at all, but the original 
proofs of what took place. 

Depositions of It will be Convenient here to notice the rule that if 
ill or deceased ^ witness is dead, or too ill to travel (or kept out of 

persons may ^ ' ^ \ r 

be read at the Way, as against the person so keeping him out) (/), 
the trial. j^^^ depositions may be read, provided that such depo- 
sitions were taken in the presence of the accused, and 
that he had an opportunity of cross-examining the 
witness (g). 

Confessions, 5. Confessions, under certain circumstances, are not 

admitted as evidence. 

when admitted Coufessions, if received at all in evidence, are re- 
in evidence, cgiyed. with great caution, not only from the considera- 
tion that, owing to insanity or other reason, they may be 
false, but also there is the danger of their not having 
been correctly reported. The general rule is, that to 
be admissible they must be free and voluntary. What 
amounts to a free and voluntary confession does not 
clearly appear. " Thus muck is certain, that no con- 
fession by the prisoner is admissible which is made in 
consequence of any inducement of a temporal nature, 

(c) 1 Tayl. Et. 630. 

(d) A veson v. Loj'd KinTiaird^ 6 East, 198. 

(e) V. 21 How. St. Tr. 514, 529. 
(/) R. V. Scaife, 2 Den. 281. 

(g) 11 & 12 Vict. c. 42, s. 17. So, also, as to depositions on behalf of 
the ac'iisi'd, 30 & 31 Vict. c. 35. s. 3. 



EVIDENCE. 



415 



having reference to the charge against the prisoner, 
held out by a person in authority ; and on the whole, 
the tendency of the present decisions seems to be to 
admit any confessions which do not come within this 
proposition" {h). 

Confessionary evidence is admissible only against the Against whom 
person who makes it, though, of course, if the jury admitted"hi^'^° 
hear anything in it against accomplices, it will be apt evidence. , 
to prejudice them against such co-defendants. In the 
same way, if a confession is improperly blurted out 
where it is not admissible, it cannot but have weight 
with the jury. 

With regard to confessions or statements before the Confessions 
magistrate, it is provided by statute (*) that after the „^aglstrates. 
examination of all the witnesses for the prosecution, 
one of the magistrates shall have all the depositions 
against the accused read to him, and shall then say to 
him these words, or words to the like effect : " Having 
heard the evidence, do you wish to say anything in 
answer to the charge ? You are not obliged to say 
anything unless you desire to do so, but whatever you 
say will be taken down in writing, and may be given 
in evidence against you upon your trial." The magis- 
trate gives a further caution that the accused has 
nothing to hope from any promise of favour, and nothing 
to fear from any threat which may have been holden 
out to induce him to make any confession or admission 
of his guilt. But this second caution is necessary only 
when it appears that some inducement has been holden 
out to the accused (h). The statement of the prisoner 
thus made before the magistrate is read at the trial 
from the depositions without further proof. 

It will be remembered that a witness is not com- witness not 

bound to 
' ' """" criminate 

(A) Rose. 40. himself, 

(i) 11 & 12 Vict. u. 42, s. 18. 
(k) R. V. Sansome, 19 L. J. (M.C.) 143. 



416 EVIDENCE. 

pelled to answer questions which tend to criminate 
himself. By several statutes, though they- are obliged 
to answer the questions, the evidence given by wit- 
nesses is expressly declared not available against them 
on a criminal charge, for example, under the Corrupt 
Practices Prevention Act, 1863 (Z). 

CIROUMSTANTIAL AND PRESUMPTIVE EVIDENCE. 

Circumstantial It is usual to distinguish two kinds of evidence, 
from'direct^ D«Veci or Positive, Gircumstantial or Presumptive. By 
evidence. the former we mean the evidence given by a person 
who testifies to having actually seen, &c., the act consti- 
tuting the crime committed; the proof applying im- 
mediately to the factum probandum, without any 
intervening process. All other evidence is termed 
indirect, presumptive or circumstantial; being evi- 
dence of facts from which the fact of the crime may be 
inferred ; it applies to collateral facts which contribute 
to the conclusion that the principal fact exists. Thus, 
if a witness proves that he saw the prisoner cut A.'s 
throat, or put his hand into B.'s pocket, draw out his 
purse, and run away, the evidence is direct. But if 
the witness proves that the prisoner was seen going to 
B.'s house at 4 o'clock, that there was no other person 
in the house at the time, that at 4.15 B.'s throat was 
found cut, and that a blood-stained knife was found 
concealed in B.'s locked box, the evidence is circum- 
stantial. 

Fineness of the It is di£&cult to draw the line between direct and 
distinction. circumstantial evidence. This will be seen more 
readily from an example. A. stabs B. in three places ; 
it is not known in consequence of which of the wounds 
death ensues. C. sees A.'s hand raised to strike one of 
these blows. Is his evidence to be regarded as direct 
or circumstantial as to the murder ? In other words, it 

(0 26 Vict. c. 29, s. 7. For other examples, v. Tayl. Ev. 1261. 



EVIDENCE. 

is often impossible to draw the line between the prin- 
cipal fact and subsidiary facts (m). And if it were 
possible clearly to distinguish, what would be the ad- 
vantage ? It is certainly incorrect to say that direct 
is stronger than circumstantial evidence. It may be 
that in the former there is not the danger involved in 
drawing the inferences which are incidental to the 
latter ; but, on the other hand, in the latter more facts 
are brought on the carpet by a greater number of 
witnesses, and thereby any mistake is much more 
likely to be exposed (n). 



417 



The so-called circumstantial evidence is said to be Circumstantial 

evidence, con- 
clusive or 
presumptive. 



Of two kinds:- ^:ir"'- 



Conclusive, when the connection between the prin- 
cipal and evidentiary facts is a necessary conseq^uence 
of the laws of nature ; as in an 



(m) " It is impossible to say specifically of any crime which is the prin- 
cipal fact. In murder, is the principal fact the conception of malice in the 
mind, or the infliction of bodily injury, or the death in consequence ? 
Unless all these take place there is no murder. These facts may occur at 
times and places remote from each other. Are there three principal 
facts ?"— Fitz. St. 267. 

(n) " There is no sort of difference between the cogency of the different 
liinds of evidence, whether the comparison is made between weak cases or 
strong ones. Compare two strong cases. How is it possible to say 
whether the evidence of several credible witnesses, who say they saw a 
man put his hand into another man's pocket, and take out his purse and 
run away, is stronger or weaker than that of the same number of equally 
respectable witnesses who ^jrove that the parse was taken, and that imme- 
diately afterwards the prisoner was seen running away, and on being 
stopped was found to have the purse in a, secret pocket, no explanation 
being given ? Or take too weak cases. A man swears that he was robbed 
on a dark night, and that the prisoner is the man who robbed him. The 
light by which he saw him was the reflection of a furnace a long way off, 
which would cast a light at once strong and unsteady, and the robber was 
exposed to it only for a moment. A sack is stolen, and is found three 
months afterwards, apparently concealed, in the house of a marine store 
dealer. He says something on the subject which may be, and probably is, 
a lie. Other people had access to the place when the sack was found. 
Which of these cases is the stronger of the two ? Their relative strength 
cannot be shewn to depend in any way on the properties of either direct or 
circumstantial evidence as such." . . . Circumstantial " is, in short, n 
word useful only for the sake of puzzling juries, and providing them 
with a loophole for avoiding" a painful but most important duty." — Fitz. 
St. 273. 

2 E 



418 EVIDENCE. 

Presumptive, when it only rests on a greater or less 
degree of probability (o). Such evidence is termed 
" presumptive," inasmuch as the fact of the crime is 
to be presumed from certain other facts. 

Presumptions Prcsumptions, or inferences of other facts from facts 
which are already admitted or proved, are sometimes 
divided into violent, probable, slight or rash, according 
as the facts presumed necessarily, usually, or otherwise 
attend the fact proved. A more scientific classification 
is into Presumptions : — 

i. Juris ei dejure, 

ii. Juris. 

iii. Facti or nominis. 

The last of these is the kind of presumption pro- 
duced by evidence in the way we have noticed. The 
other two must be explained : — 

Prcesumptio i. Juris et de jwe. — Presumptions of this character 
juris et dejure. ^j.^ absolute, Conclusive, and irrebutable. No evidence 
is allowed to be given to the contrary. For example, 
an infant under the age of seven is incapable of com- 
mitting a felony. Every person knows the law. 

Prcesumptio ii. Juris. — Presumptions which are conditional, in- 
juris. conclusive, and rebutable. They only hold good until 

the contrary is proved. For example, a child between 
the age of seven and fourteen is presumed to be in- 
capable of committing a felony ; but only till it is 
proved that he had a mischievous discretion. A person 
is presumed to be innocent till he is shewn to be 
guilty. Malice is presumed from the act of killing, 
unless its absence be shewn. 



(o) Best, Ev. 25, 400. 



EVIBENCE. 419 



WKITTEN EVIDENCE. 



Written documents may be divided into three Written 
classes ; differing as to the manner in which they ^^' *°°'^" 
must be given in evidence and proved : — 

i. Eecords. 

ii. Matters quasi of record. 

iii. Written documents of a private nature. 

i. Eecords.— 'E'usii, as to Acts of Parliament. Public Acts of 
statutes do not need any proof ; the court is bound Pa»''ia™e">t- 
judicially to take notice of them. And all Acts passed 
since February 4th, 1851, are to be taken as public 
Acts unless the contrary be expressly provided (p). 
Private Acts must be proved by an examined copy of 
the parliament roll; or by a copy purporting to be 
printed by the Queen's printers. As regards proof, 
general customs of the realm are on the footing of 
public Acts ; particular customs on that of private Acts. 

As to other records. — Inasmuch as the records of the other records. 
various courts are frequently required to be given in 
evidence, perhaps in two places at the same time, and 
thus inconvenience would arise, as well as the danger 
of destruction or loss ; and inasmuch as the whole com- 
munity is interested in their preservation, alteration 
is not to be feared, the production of the originals is 
not required {q). Their place is supplied by an ex- 
emplification of the record under the Great Seal, or 
under the seal of the court, or by a copy sworn to be 
true by a person who has compared it with the original. 
But a mere copy will not suffice if the matter of the 
record forms the gist of the pleading, e.g., on a plea of 
autrefois acquit. A copy of a copy will never suffice. 



(p) 13 & 14 Vict. c. 21, ss. 7, 8. 
(g) V. Best, Ev. 616. 

2 E 2 



420 



EVIDENCE. 



Previous 
conviction, 
how proTted, 



In certain cases not even a copy of the whole record 
is required. Thus, to prove a previous conviction or 
acquittal, it is sufficient that it be certified, or purport 
to be certified, under the hand of the clerk of the court, 
or other officer having the custody of the records of 
the court where such conviction or acquittal took 
place, or by the deputy of such clerk or officer, that 
the paper produced is a copy of the record of the 
indictment, trial, conviction, and judgment, or acquit- 
tal, as the ease may be, omitting the formal parts 
thereof (»•). And, further, it has been provided that a 
previous conviction may be proved in any legal pro- 
ceeding by producing a record or extract of such con- 
viction, and by giving proof of the identity of the 
person against whom the conviction is sought to be 
proved with the person appearing in the record or 
extract of conviction to have been convicted. A record 
or extract in the case of an indictable offence is ex- 
plained to be a certificate of the indictment and convic- 
tion of the nature of that described in 14 & 15 Vict. 
c. 99, s. 13 ; and in case of a summary conviction con- 
sists of a copy of the conviction, purporting to be 
signed by any justice of the peace having jurisdiction 
over the offence in respect of which such conviction was 
made, or to be signed by the proper officer of the 
court by which such conviction was made, or by the 
clerk or other officer of any court to which such con- 
viction has been returned. And there is no need to 
prove the signature or official character of the person 
whose signature appears (s). 



Matters ?«asi ii. Matters quasi of record. — "Without going into 

of record, detail, it may be said generally that the proceedings, 

not being records, of any of the divisions of the High 

Court, or of the ecclesiastical courts, may be proved by 



(r) 14 & 15 Vict. c. 99, s. 13. See also 7 & 8 Geo. 4, c. 28, 5. 11 ; 
24 & 25 Vict. c. 96, s. 116 ; u. 97, o. 70 ; c. 99, s. 37. 
(s) 34 & 35 Vict. .J. 112, ». 18. 



EVIDENCE. 421 

copies. In county courts the proceedings are to be 
proTed by an entry in the clerk's book, or a copy bear- 
ing the seal of the court, and purporting to be signed 
and certified as a true copy by the clerk of the 
court (t). In other inferior courts the proof is by 
producing the books in which the entry has been made, 
or by an examined copy. In bankruptcy, a copy of 
the Gazette containing an adjudication of bankruptcy 
is conclusive evidence of the bankruptcy (m). 

"We have already noticed the provision which is Perpetuating 
made for the reading of the depositions for or against *f ^ testimony 
the prisoner in the case of a witness who is dead or too ' 

ill to travel (as). To perpetuate the testimony which 
can be given by a person whose death is apprehended, 
it is provided that — if it appear to some justice of the 
peace, and in the opinion of a registered medical prac- 
titioner, that some person is not likely to recover, and 
is able to give material information relating to an 
indictable offence, and it be not practicable to take the 
depositions in the ordinary way — the justice may take 
in writing the statement on oath or affirmation of the 
person who is ill, opportunity being given to the other 
party (prosecution or accused) to cross-examine the 
deponent. Having observed the formalities prescribed 
by the statute, such depositions are transmitted to the 
proper quarter. And if on the trial of the offender it 
is proved that the deponent is dead, or will not in all 
probability ever be able to travel or give evidence, the 
statement may-be read in evidence {y). 

iii. Written documents of a private nature. — As to Deeds, &c., 
deeds. — As a general rule, if they are to be given in ^°^ p™ved. 
evidence, they must be produced themselves at the 
trial. But in cases of accidental loss, and others arising 



(0 9 & 10 Vict. c. 95, s. 111. 

(li) 32 & 33 Vict. u. 71, ». 10. See also Arch. 263-265. 

(a;) V. p. 414. 

(y) 30 &31 Vict. i;. 35, s. fi, 



422 



EVIDENCE, 



from necessity, the contents may be proved by copies 
or other secondary evidence. And so also if other 
written documents are lost, secondary evidence may be 
received, if the genuineness of the original instrument 
is proved at the same time (z). 

The manner of the proof of the execution of deeds 
and other written instruments is the same. If the 
instrument is one to the validity of which attestation 
is requisite, it must be proved by a subscribing witness. 
But to this rule there are several exceptions, for ex- 
ample, if the witnesses be dead, insane, &c. (a). But if 
the instrument is not one which requires attestation, 
even though it be actually attested, it need not be 
proved by the attesting witness (6), but may be proved 
by simple proof of the party's handwriting. 

Handwriting, Handwriting may be proved in several ways : — 

how proved. 

(a.) By one who has seen the party write (ex visu 



(b.) By one who has carried on a correspondence, or 
had other opportunities of getting acquainted with his 
writing {ex scriptis oUm visis). 

(c.) By comparison with documents known and ad- 
mitted to be in the handwriting of the party (ex scripfo 
nunc viso, or ex eomparatione scriptorum). It is pro- 
vided by statute that comparison of a disputed writing 
with any writing proved to the satisfaction of the 
judge to be genuine shall be permitted to be made by 
witnesses, and such writings, and the evidence of 
witnesses respecting the same, may be submitted to 
the court and jury as evidence of the genuineness or 
otherwise of the writing in dispute (c). 



(z) V. p. 412. 
(o) T. Arch. 283. 
(h) 28 Vict. c. 18, s. 7. 
(c) Ibid. s. 8. 



EVIDENCE. 423 

It may be useful to notice the chief points in which Points in 
differences exist between the rules of evidence in civil J^^^^^^^l^^ °^ 
and criminal cases (d) : — civil and in 

criminal cases 

1. In the latter in some cases more than one witness '^''^"■• 
is required (e). 

2. Confessions — when admitted — when conclu- 
sive (/). 

3. A party to a cause may be a witness, but a 
prisoner on his trial may not. 

4. The husband or wife of a party in a civil action 
may give evidence for or against his consort ; but, as a 
rule, such evidence is excluded in criminal cases (g). 

5. The use of the depositions of witnesses prevented 
from attending in person Qi) ; and their use to contra- 
dict the witness at the trial itself {i). 

6. In cases of homicide, the dying declaration of the 
deceased is admitted in evidence as to the cause of 
death (k). 

7. Witnesses to character are allowed in criminal 
cases. 

((f) v. 4 St. Bl. 426. 
(c) ,. p. 394. 
(/) V. p. 414. 
{g) T. p. 388. 
(A) V. p. 414. 
(0 V. p. 393. 
(4) T. p. 413. 



( 424 ) 



CHAPTEE XVIII. 

VEKDICT. 

Verdict, how We have already considered the province of the jury, 
how given. *° ^^^ ^^^ Opportunities afforded to them for considering 
their verdict. In order to clear up any difficulties, 
they may ask the opinion of the judge on any point 
vrhich is not exclusively for their determination; or 
may have read over to them by the judge any part of 
the evidence ; or through the judge, in court, may ask 
any additional question of any witness. If they can- 
not after a reasonable time agree upon their verdict, 
they are discharged (l) ; the prisoner,, of course, being 
liable to be tried again. Before finding the prisoner 
guilty, they must be unanimous in believing that there 
is no reasonable doubt of his guilt, not necessarily 
that there is no other possible explanation. If they 
do all agree, on coming into court again, if they have 
retired, they answer to their names. The clerk of the 
assize, clerk of the peace, or other officer, thus ad- 
dresses them—" Gentlemen, have you agreed upon 
your verdict ?" " How say you, do you find John 
Styles guilty or not guilty ?" They deliver their ver- 
dict through the foreman. In treason or felony the 
prisoner must be present when this is done; but not 
necessarily in misdemeanor. 

Verdicts, Vcrdicts in criminal cases may be distinguished 

general, ■ . . 

partial, or 1^^° • — 

specia . General — i.e., " guilty " or " not guilty " on the 

whole charge. 

(I) V. p. 378 as to discharge on account of death, &c., of juror. 



VERDICT. 425 

Partial — as when the jury convict on one or more 
counts of the indictment and acquit on the rest. 

Special — when the facts of the case as found by the 
jury are set forth, but the court is desired to draw the 
legal inference from the facts, for example, whether 
they amount to murder or manslaughter. 

The jury may acquit one of several co-defendants Vei-dict if 
who are joined in the same indictment and convict the ^^^^^ ^^ 

*> ^ ^ several 

others, and viee versa ; even though charged with jointly defendants. 
receiving (m). But in cases where to constitute the 
crime it is necessary that a certain number should join 
in it, if so many are acquitted that less than the requi- 
site number are left, these also must be acquitted — 
thus, three are necessary for a riot, two for a con- 
spiracy. 

A person charged with a felony or misdemeanor may Verdict of 
be found guilty of an attempt to commit the same ''''^"'P'- 
offence (w), the same consequences following as if he 
had been in the first instance charged with the attempt 
only. 

Upon an indictment for a misdemeanor, if the facts Verdict of 
given in evidence amount to a felony, the prisoner is ^ough facts' 
not on that account to be acquitted of the misde- amount to 
meaner, unless the court thinks fit to discharge the ^ °°^' 
jury and to order the defendant to be indicted for the 
felony (o). 

Upon an indictment for robbery, the prisoner may be Cases in whic& 
found guilty of an assault with intent to rob (y). IrTmfnot'^"' 

charged in 

Upon an indictment for larceny, the prisoner may be indictment. 
found guilty of embezzlement, and viee versa (q). 

(m) 24 & 25 Vict. u. 96, s. 94. 
(re) 14 & 15 Vict. u. 100, s. 9. 
(o) Ibid. s. 12. 

Ip) 24 & 25 Vict. t. 96, s. 41. 
(?) Ibid. ». 72. 



426 



VEBDICT. 



Upon an indictment for obtaining by false pretences, 
if the offence turns out to amount to larceny, the de- 
fendant may still be convicted of false pretences {r). 

And whenever a person is indicted for an offence 
which includes in it an offence of minor extent and 
gravity of the same class, the prisoner may be con- 
victed of such minor offence (s). Thus, on an indict- 
ment for murder, he may be convicted of manslaughter ; 
so of simple larceny, if indicted for stealing in a dwell- 
ing-house, or any other aggravated form of larceny (t). 

Verdict If the judge is dissatisfied with the verdict he may 

the^udge." ''^ direct the jury to reconsider it, and their subsequent 
verdict will stand as the true one. If, however, the 
jury insist upon having the first recorded, it must be 
recorded ; but if it be a verdict of guilty, and contrary 
to the evidence, it will be set aside and a new trial 
granted by the Queen's Bench Division (m). 

Acquittal, con- If a verdict of acquittal is returned, the prisoner is 
sequences o . ^^^ ^^^^ ^^^^ from the present accusation ; and he is 
discharged in due course, unless there is some other 
charge against him. If he is acquitted on account of 
some defect in the proceedings, or not, as above, on the 
merits of the case, he may be detained and indicted 
afresh. If he is acquitted on thjB ground of insanity 
at the time of the commission of the offence, whether 
such offence was a felony (a)) or misdemeanor {y), he 
must be kept in custody until the Queen's pleasure be 
known; and the Queen may order his confinement 
during her pleasure (z). 



(r) 24 & 25 Vict. v;. 96, s. 88 ; v. p. 230. 
(s) V. Rose. 81. 
(i) V. Arch. 223. 
(m) t. p. 447. 

Ix) 39 & 40 Geo. 3, c. 94, ». 1. 
(?/) 3 & 4 Vict. c. 54, s. 3. 

(sr) T. p. 357 as to insanity at time of trial and not of commission of 
offence. 



VERDICT. 427 

If a verdict of guilty is brought in, the accused is Coaviction. 
said to be convicted. The jury may annex to such 
verdict a recommendation to mercy on any grounds 
they think proper — which recommendation will usu- 
ally be taken into consideration by the judge (a). 
If there are several counts in the indictment the 
verdict specifies on which count the prisoner is con- 
victed. 

If there is a second indictment against a prisoner Second in- 
who has been found guilty, frequently it is not pro- 'J"=''"*°'- 
ceeded with if the charge is similar to that on which 
he has just been convicted. The counsel for the pro- 
secution often merely gives the court an outline of the 
case. If he is acquitted, the second indictment is then 
proceeded with, unless it is obvious that there is no 
more evidence than in the first case. 

If a prisoner indicted for any felony, or the offence Conviction 
of uttering false or counterfeit coin, or of possessing convi^io™"' 
counterfeit gold or silver coin, or of obtaining goods or 
money by false pretences, or of conspiracy to defraud, or 
of any misdemeanor under 24 & 25 Vict. c. 96, s. 58 (6), 
has been found guilty, then, if he has been previously 
convicted of any of the above crimes, he is asked 
whether he has been so previously convicted, the 
previous conviction being also alleged in the indict- 
ment. If he admits it, the court proceeds to sentence 
him. But if he denies it, or will not answer, the jury 
are then, without being again sworn, charged to inquire 
concerning such previous conviction; the point to be 
established being the identification of the accused with 
the person so convicted (c). The only case in which 



(a) Unless, indeed, as is not unfrequently the case, it appears that the 
recommendation is founded on some lingering doubt as to the sufficiency of 
the evidence. 

(6) V. p. 343. 

(c) 34 & 35 Vict. c. 112, ss. 18, 20 ; sec also 24 & 25 Vict. t. 96, ». 116 ; 
c. 97, s. 37. 



428 



VERDICT, 



evidence of a previous conviction may be given before 
the subsequent conviction is found is when the pri- 
soner gives evidence of character. In this case the jury 
are to inquire of the previous conviction and the sub- 
sequent offence at the same time (d). 



(d) Arch. 231. Though the preyious conviction does not fall within the 
scope of the aboye provision, the judge has before him a record of it and all 
other occasions on which the accused has been before a criminal court. See 
p. 217, as to evidence of certain previous convictions on an indictment for 
receivings, 



( 429 ) 



CHAPTEK XIX. 

JUDGMENT. 

Bbfoeb judgment in cases of treason and felony, the Judgment. 
prisoner is supposed to be asked whether he has any- 
thing to say why the court should not proceed to pass 
sentence upon him. But in actual practice this is not 
always done. 

The interval between conviction and judgment is the Arrest of 
time for the defendant to move the court in arrest of^^ ^"°° " 
judgment. This motion must be grounded on some 
defect apparent on the face of the record, and not on 
some irregularity in the proceedings. The objection 
must be a substantial one, such as want ,of suflS.cient 
certainty in the indictment as to the statement of facts, 
&c. But judgment will not be arrested if the defect 
has been amended during the trial, or is such an one 
as is aided by verdict. The court itself will arrest 
judgment if it is satisfied that the defendant has" not 
been found guilty of any offence in law. If judgment 
is arrested, the proceedings are set aside, no judgment 
is given, and the prisoner is discharged. But, unlike 
an ordinary acquittal, the defendant may be indicted 
again on the same facts. 

Judgment may be postponed if the court wishes to Judgment 
reserve any point of law for the consideration of the P"^*?™*^- 
Court for Crown Cases Keserved (e). 

If the defendant has been found guilty of a mis- Vei-dict in 

absence of 
prisoner, 
(e) V. p. 450. 



430 JUDGMENT. 

demeanor in his absence (in felonies he must be present), 
process issues to bring him to receive judgment ; and 
on non-appearance' he may be prosecuted to out- 
lawry (/). If he has been allowed to leave the court 
on entering into recognizances to come up for judgment 
when called upon, and he fails to come up, his recog- 
nizances will be forfeited and a warrant issued for his 
apprehension. 

Giving Judgment or sentence .is given by the court, the 

judgment. judge adding such remarks as he thinks proper. For- 
merly, in all capital felonies, when the court thought 
that the person convicted was a fit subject for royal 
mercy, it was lawful, instead of publicly giving sentence 
of death, to enter it on the record, the effect being the 
same {g). But it seems that now, by virtue of 24 & 25 
Yict. c. 100, s. 2, sentence of death must be pronounced 
on conviction for murder. 



(/) T. p. 346. 

(3) v. 4 Geo. 4, u. 48, ». 1 ; 6 & 7 Wm. 4, c. 30, s. 2 ; 24 & 25 Vict, 
c. 95. 



( 431 ) 



CHAPTEE XX. 

INCIDENTS OF TEIAL. 

Some miscellaneous points connected with a criminal 
trial remain to be noticed, now that we have viewed 
the general order of proceedings. 

Defence in forma pauperis. — In cases of extreme Defence in 
poverty (that is, when the defendant will swear that he ^''™"^''"^"'"- 
is not worth £5 in the world, besides his wearing 
apparel, after paying his debts) the defendant may 
petition the Queen's Bench Division to be allowed to 
defend himself as a pauper. His petition must be veri- 
fied at the same time by an affidavit. It (the petition) 
is presented either to a judge at chambers or in court. 
On the prayer of the petition being granted, a rule is 
drawn up by the judge's clerk, mentioning the name of 
the counsel and attorney assigned for the defence ; and 
this must be produced when the pauper requires any- 
thing to be done without payment of fees (h). 

There is also a custom of a similar nature. In cases Defence at the 
where there is a special difficulty, or where the con- l^^^^\ "J 
sequences are very serious, and therefore usually on 
indictments for murder, if the prisoner is not defended 
by counsel, the judge requests some barrister to give 
his honorary services to the prisoner. Of course, this 
request is always complied with. 

Sometimes a poor person is allowed to prosecute in Prosecution m 
forma pauperis, hut then, in addition to the petition ■^°™"^''"P^™' 

(A) Arch. 151. B. v. Dugdale, Corner's Cr. Prac. 167. 



432 



INCIDENTS OF TEIAL. 



View of locus 
in quo. 



Adjournment 
of trial. 



and affidavit, there must be special grounds shewn for 
allowing this irregularity (*'). 

View of locus in quo ly the jury. — The judge may 
allow the jury to view the scene of the crime, or other 
occurrence under investigaiion, at any time during the 
trial, even after the summing up. But care should be 
taken that no improper communications are made at the 
view ; and that no evidence is received in the absence 
of the judge and the prisoner (h). 

Adjournment of the trial. — If the trial is not con- 
cluded on the same day on which -it is commenced, the 
judge may adjourn from day to day (l). And a judge 
may adjourn a case and proceed with another if the 
emergency requires it, as, for example, to give time for 
the production of something essential to the proof, or 
for the witnesses to arrive (m). If the prisoner is taken 
so ill as to render him incapable of remaining at the 
bar, the jury is discharged, and the prisoner is after- 
wards tried by another jury (n). 



Withdrawal Withdrawal from prosecution. — Frequently the pro- 

from prosecu- gecutor is desirous of withdrawing from the prosecution, 
the accused engaging not to bring an action for tres- 
pass and false imprisonment or malicious prosecution. 
If the offence is a misdemeanor more immediately 
affecting the individual, e.ff., a battery, or, in other 
words, one which might be made the subject of civil 
action, this will be allowed, and the agreement will be 
enforced ; but not if the offence is a felony or a misde- 
meanor of a more public nature (o). Even after verdict, 
if the court deems such a course proper, the defendant 



Arch. 151. iJ. V. Wakins, 1 Dowl. P. C. 536. 

Ik) B. V. Martin, L. R. 1 C. C. E. 378; 41 L. J. (M.C.) 113. 

(I) As to what happens to the jury in the interval, v. p. 378. 

(m) -H. V. Wenborn, 6 Jur. 267. 

(n) B. V. Stevenson, 2 Leach, 546. 

(o) T. Rawlings v. Coal Consumers' Association, 43 L. J. (M.C.) 111. 



INCIDENTS OP TEIAL. 433 

is sometimes allowed to " talk with the prosecutor." 
Though one person is not obliged in the first instance 
to prosecute another whom he suspects of crime, that 
is, not until he has been bound over by the magistrate 
to prosecute and give evidence, it is a crime to take a 
reward not to prosecute a felony (p). 

Bestitution of goods. — If any person guilty of any Restitution of 
felony or misdemeanor mentioned in the Larceny Gon- ^°° ^' 
solidation Act, in stealing, taking, obtaining,. extorting, 
embezzling, converting, or disposing of, or in know- 
ingly receiving, any chattel, money, valuable security, 
or other property, is indicted for such offence by or on 
behalf of the owner of the property, or his executors, 
or administrators, and convicted thereof ; in such case 
the property is to be restored to the owner or his re- 
presentative. The court may order the restitution in 
a summary manner. But no such restitution is made 
if it appears that any valuable security has been hond 
fide paid or discharged by some person or body corpo- 
rate liable to the payment thereof, or, being a negotiable 
instrument, has been bona fide taken or received by 
transfer or delivery, by some person or body corporate, 
for a just and valuable consideration, without any 
notice or reasonable cause to suspect that the same had, 
by any felony or misdemeanor, been stolen, &c. But 
the above provisions as to restitution do not apply to 
the case of any prosecution of any trustee, banker, 
merchant, solicitor, factor, broker, or other agent in- 
trusted with the possession of goods or documents of 
title to goods, for any misdemeanor against the Larceny 
Act {q). But the court has not power, as a rule, to 
order property not forming part of the subject of the 
indictment, for example, property found on the pri- 
soner, to be disposed of in a particular manner (r). 

(p) T. compounding felony, p. 92. 
(<;) 24 & 25 Vict. c. 96, s. 100. 

(r) B. T. Corporation of Zondon, 27 L. J. (M.C.) 231. But an exception 
is introduced by statute 30 & 31 Vict. c. 35, s. 9. 

2 F 



434 



INCIDENTS OF TKIAL. 



Right of owner 
preferred to 
that of inno 



Remedy of 
innocent pur- 
chaser. 



The riglit to claim resbitution is not defeated by the 
fact that the goods haye been sold to an innocent 
cent purchaser, buyer in market overt. It is obvious that either the 
owner or the purchaser must suffer, and the lavf prefers 
the cause of the former, " who has done a meritorious 
act by pursuing a felon tq. condign punishment, to the 
right of the purchaser, whose merit is only nega- 
tive " (s). Not that the innocent purchaser is always 
a total loser ; for it is provided that money found on a 
prisoner, who has been convicted of an offence which in- 
cludes the stealing of any property, may be ordered by 
the court to be given to the purchaser of the property 
if he did not know that the same was stolen. This 
takes place only after he has restored the property to 
the owner ; and of course the amount so given must 
not exceed the amount of the proceeds of the sale (t). 
If the property has been pawned, the court may order 
the delivery thereof to the owner, either on payment 
to the pawnbroker of the amount of the loan or of any 
part thereof, or without payment of any part, as the 
court, according to the conduct of the owner and 
the other circumstances of the case, thinks just and 
fitting (u). 



Restitution Eestitution may be ordered in the same way by 

ordered by a magistrates convicting of larceny, &c., in the exercise 
of their summary jurisdiction (v). 



magistrate. 



Owner may re- Even without any -award of restitution, the owner 
take his goods. ^^^ peaceably retake his goods whenever he happens 

to find them, unless a new property has been fairly 

acquired therein (x). 



(s) i Bl. 363. 

(i) 30 & 31 Vict. c. 35, s. 9. 
(«) 35 & 36 Vict. u. 93, s. 30. 

(») 18 & 19 Vict. I}. 126, s. 8 ; so, also, in the case of juvenile offenders 
under 10 & 11 Vict. c. 82, s. 12. 

(a;) 4 Bl. 363. Scattergood v. Sylvester, 15 Q. B. 506. 



( 435 ) 



CHAPTER XXI. 

PUNISHMENT. 

The object of the sentence is to prescribe the punish- Punishment. 
ment. The law, whether common law or statute law, 
which assigns the punishment, almost nnexceptionally 
gives the judge a certain latitude as to the amount of 
punishment. Though he is restricted as to the maxi- Minimum 
mum, in almost CTery case he can give as little as he P^i'shments 
pleases, minimum punishments having been abolished 
by statute (y). On conviction for treason or murder, 
however, sentence of death must be passed (a). Crimes 
against nature must be punished by at least ten years 
penal servitude. Some crimes demand a wide limit of 
punishment ; for example, manslaughter, where it may 
range from penal servitude for life to a merely nominal 
punishment according to the circumstances. But 
practically this works well, as the judges are quite 
competent to apportion the punishment to the crime ; 
and the inconvenience of reposing that confidence in 
them is a less evil than the multiplication of technical 
distinctions which inevitably results from the multi- 
plication of the definitions of crime (a). 



The punishment prescribed by statute for felonies Usual punish- 
ment for 
felonies. 



is usually penal servitude for not less than five years, ™^''' ^°^ 



or imprisonment not exceeding two years with or with 
out hard labour. When the punishment is not pre- 
scribed by statute, the combined effect of several 



(y) 9 & 10 Vict. c. 24. 

(«) V. p. 264 for two offences anomalously capital- 

(u) Fitz. St. 143. 

2 F 2 



436 



PUNISHMENT. 



statutes (h) is, that such felonies may be punished by- 
penal servitude for not more than seven nor less than 
five years, or by imprisonment for any term not ex- 
ceeding two years ; and, if a male, the court may order 
the felon to be once, twice, or thrice publicly or 
privately whipped in additii5n to such punishment. 

Usual punish- The punishment prescribed by statute for mis- 
mMemeanors. *'we«'»<""s is Usually fine or imprisonment, or both; 
and it is also the same when it is not prescribed by 
s-tatute, but left to the common law (c). The court 
may also require the defendant to find sureties td 
keep the peace and be of good behaviour. 

Punishment The punishment for a felony (not punishable with 
ronviction!""' ^^^*^ ^^^ ^°* ^^^'^S simple larceny), after a previous 
conviction for felony, is penal servitude for life or for 
not less than seven years, or imprisonment not exceed- 
ing two years ; and in the case of a male, if the court 
thinks fit, whipping publicly or privately, once, twice, 
or thrice (d). To- a person convicted of a crime punish- 
able by penal servitude, after a previous conviction for 
felony, the least sentence of penal servitude that can 
be awarded is seven years (e). 

Simple larceny Special enactments impose certain terms of punish- 
after previous jj^gut iji the case of conviction for simple larceny after 

conviction. . . „ ■ «• mi 

previous conviction for certain offences. The punish- 
ment for simple larceny, after previous conviction for 
felony, is penal servitude from seven to ten years, or 
imprisonment not exceeding two years, with or without 
hard labour, or solitary confinement ; and in the case 
of a male under sixteen years of age, with or without 



(6) 7 & 8 Geo. 4, c. 28, s. 8 (see also s. 9) ; 20 & 21 Vict. c. 3, s. 2 ; 
27 & 28 Vict. ^. 47, s. 2. 

(c) As to hard labour, v. p. 440. 

(d) 7 & 8 Geo. 4, c. 28, s. 11 ; 20 & 21 Vict. c. 3, s. 2 ; 27 & 28 Vict, 
u. 47, s. 2. 

(e) 27 & 28 Vict. c. 47, s. 2. 



PUNISHMENT. 437 

■whipping (/). For simpla larceny, or any offence 
made punishable as simple larceny by the Larceny Act, 
after preyioua conviction for any indictable misde- 
meanor under the Larceny Act, the punishment is 
penal servitude from five to seven years, or imprison- 
ment as in the last case (g). The same limits of 
punishment apply to simple larceny, or an offence 
punishable as simple larceny, after two summary con- 
victions for offences punishable upon summary con- 
viction under certain enumerated Acts (A). 

For uttering, &c., counterfeit coin,, after previous uttering. &c., 
conviction for such crime, or previous conviction for °o™aft|,r ' 
a felony against a coinage Act, the punishment is previous con- 
penal servitude for life, or for not less than five years, ''"''^™- 
or imprisonment not exceeding two years, with or 
without hard labour, or solitary confinement («). 

We may notice here that if the prisoner is found several terms 
guilty of several distinct offences on different counts, °^ pumshment 

? , 1 , (. • 1 concurrent or 

he may be sentenced to several terms of punishment ; continuous. 
such terms to be concurrent, or the second to com- 
mence at the expiration of the first. When a. sentence 
for felony is passed on a person already suffering im- 
prisonment for another crime, the court may order the 
imprisonment for the subsequent offence to commence 
at the expiration of the former term ; so also the 
court may order a sentence of penal servitude to 
commence after the previous imprisonment or penal 
servitude, although the aggregate term of imprison- 
ment or penal servitude respectively may exceed the 
term for which either of these punishments could be 
otherwise awarded (k). 



(/) 24 & 25 Vict. 0. 96, s. 7. 

(3) Ibid. s. 8. 

(A) Ibid. 3. 9. 

(i) 24 & 25 Vict. c. 99, s. 12. 

(A) 7 & 8 Geo. 4, c. 28, s. 10. 



438 



PUNISHMENT. 



Sanctions of 
the law 
enumerated. 



the law following:— 



The punishments which the law prescribes are the 



Death. 



Penal servi- 
tude. 



Death ; Penal Servitude ; Imprisonment ; Fine. 

Incidental to the imprisonment are sometimes 
Hard Labour ; Whipping ; Solitary Confinement. 

In addition to other punishment there is often made 
an order that the person convicted be under police 
supervision for a certain time. 

Again, in some cases the ends of justice are at- 
tained by requiring the prisoner to enter into recog- 
nizances to come up for judgment if called for ; which 
generally means that if he conducts himself with pro- 
priety he will hear nothing more of the matter. 

The prisoner may also be required to find sureties to 
keep the peace, or to be of good behaviour. 

Youthful offenders, under certain circumstances, 
may be sent to reformatories or industrial schools. 

Each of the above named sanctions of the law will 
in turn receive a brief notice. 

Beath. — This is the only punishment which must b"e 
awarded in treason and murder. And it cannot be 
awarded in any other cases except piracy, or the two 
crimes of setting fire to Her Majesty's vessel of war or 
to ships, &c., in the port of London (?). 

Penal Servitude. — This mode of punishment was 
introduced in substitution for transportation beyond 
the seas in certain cases by 16 & 17 Vict. c. 99, and 
totally superseded transportation by 20 & 21 Yict. c. 3. 



(?) As to recording sentence, v. p. 430. As to mode of execution, v. p. 457. 



PUNISHMENT. 439 

It was placed generally on the same footing as the latter 
punishment : thus, any person who might formerly- 
have been sentenced to transportation is now liable to 
be kept in penal servitude for the same period ; and 
any person who might have been sentenced either to 
transportation or imprisonment may now be sentenced 
either to penal servitude or imprisonment. But in 
cases where before the Act sentence of seven years 
transportation might have been passed, the court may 
now pass sentence of not less than five years penal 
servitude (m). 

Persons sentenced to penal servitude may be con- Place of con- 
fined in any prison, or place of confinement in any part ''°«™«'it i"! 
of the United Kingdom, or in any river, port, or bar- vitude. 
hour of the United Kingdom, in which persons under 
sentence or order of transportation might formerly be 
confined, or in any other prisoii in the United Kingdom, 
or in Her Majesty's dominions beyond the sea, as one 
of Her Majesty's secretaries of state may direct. And 
in other respects, as to custody, hard labour, manage- 
ment, control, property in their services, and punish- 
ment for unlawfully being at large before the expira- 
tion of their term (n), they may be dealt with as 
persons sentenced to transportation i'ormerly were (o). 

The shortest term of penal servitude which can be 
awarded is five years ; or, after a previous conviction 
for felony, seven years (p). 

Imprisonment. — As a general rule, no longer sentence Imprisonment. 
of- imprisonment than for two years can be awarded. 
From that to penal servitude (if allowed in the par- 
ticular case) for five years there is a spring. But 
under some statutes still in force, imprisonment to the 

(m) 20 & 21 Vict. u. 3, s. 2 ; 27 & 28 Vict. u. 47, i. 2. 
(») T. p. 76. 

(o) 16 & 17 Vict. u. 99, s. 6 ; 20 & 21 Vict. c. 3, =. 3, 
(p) 27 & 28 Vict. c. 47, ». 2. 



440 



PUNISHMENT. 



extent of three or four or even more years may be 
awarded, for example, under 24 & 25 Vict. c. 134, 
s. 221 ; 24 & 25 Vict. c. 98, s. 11 ; 7 Wm. 4 and 1 Vict. 
c. 36, s. 26 ; 2 Geo. 2, c. 25, s. 2. 

Fine. Fine. — In offences punishable by fine usually the 

amount of the fine is not restricted by statute. The 
reason of this is obvious. Not only does the value of 
money change from time to time, but a fine which 
would be ruin to one man would be matter of indiffer- 
ence to another (^). The Bill of Eights provides that 
excessive fines shall not be imposed. It would be 
imprudent to hinder a man from getting his livelihood ; 
and if the crime demands more severe punishment, the 
court may award imprisonment, for it is generally em- 
powered to award either the one or the other, and 
frequently both. Felonies are very rarely punished by 
mere fine (r). Each of the Criminal Consolidation 
Acts, 1861, provides that a person convicted of a mis- 
demeanor under those Acts may be fined in addition to 
or in lieu of other punishment (s). 

Hard labour. Hard Lohow. — This punishment may be added in 
nearly all cases to imprisonment for felony. The mis- 
demeanors to the imprisonment for which hard labour 
may- be added are enumerated in 3 Geo. 4, c. 114, and 
14 & 15 Vict. c. 100, s. 29. Each of the Criminal 
Consolidation Acts, 1861, contains a clause to the effect 
that the court may add hard labour to imprisonment 
in case of indictable offences, felonies or misdemeanors, 
under those Acts it). Also in offences under the Post 
Office Acts for which imprisonment may be awarded, 
the court may add hard labour (m). So that in nearly 



(?) 4 Bl. 378. 

()•) T. 24 & 25 Vict. c. 100, s. 5. 

(s) 24 & 25 Vict. c. 96, s. 117 ; c. 97, s. 73 ; c. 98, ». 51 ; c. 99, s. 38 ; 
i;. 100, s. 71. 

(t) 24 & 25 Vict. c. 96, s. 118 ; c. 97, s. 74 ; c. 98, s. 52 ; o. 99, ». 39 ; 
u. 100, s. 69. 

(«) 7 Wm. 4 & 1 Vict. c. 36, s. 42. 



PUNISHMENT. 441 

every case now hard labour may accompany imprison- 
ment. 

Two classes of hard labour are distinguished — one 
for the employment of males above the age of sixteen; 
the other for that of males below that age and of 
females. Eegulations as to its nature and application 
are made by statute (a;). 

Whijpiping .—H^Q classes of cases in which whipping whipping: 
is allowed must be distinguished : — (i.) of males below 
the age of sixteen ; (ii.) of males of an age. It should 
be premised that a female can never be whipped. 
Where formerly sentence of whipping might be passed, 
the court or magistrate may now order the female to 
be kept to hard labour for a term not exceeding six 
months nor less than one month, in lieu of the whip- 

i. By three of the Consolidation Acts whipping may in caseof juve- 
be inflicted for a variety of specified offences committed °'^^ offenders : 
by males under the age of sixteen, and in one case, 
males under the age of eighteen (z). It is to take 
place once, and the number of strokes and the instru- 
ment with which they are to be inflicted are to be 
specified by the court in the sentence {a). 

When this punishment is awarded by the magistrates 
in the exercise of their summary jurisdiction, the 
sentence must specify the number of strokes and the 
instrument ; and in the case of an offender whose age 
does not exceed fourteen, the number of strokes must 
not exceed twelve, and the instrument used must be a 



(a) 28 & 29 Viot. u. 126, =. 19, and Part IV. sched. i. regs. 34-37. 
(!/) 1 Geo. 4, c. 57, i. 2. 

(z) 24 & 25 Vict. 0. 96, s. 101. Tills exception is probably a mere over- 
sight on the part of the legislature. 

(a) 24 & 25 Viot. ^. 96, s. 119 ; c. 97, s. 75 ; >;. 100, =. 70. 



442 



PUNISHMENT. 



birch rod. The offender must not be whipped more 
than once for the same offence (6). 

in case of males li. Whipping once, twice, or thrice, may be awarded 
any age. ^^ males of any age in case of : — 

(a.) Eobbery, &c., with violence — or an attempt to 
choke, suffocate, or strangle. The following regulations 
must be observed : — The whipping must be privately 
inflicted ; (^S) if the age of the offender does not exceed 
sixteen, the number of strokes at each whipping must 
not exceed twenty-five, and the instrument must be a 
birch rod ; (7) in other cases not more than fifty strokes 
at a whipping ; (8) the court must specify the number 
of strokes and the instrument ; (e) the whipping must 
not take place after six months from the sentence; 
(f) in the case of a person sentenced to penal servitude, 
the whipping must be inflicted before he is removed to 
a convict prison (c). 

(b.) Felony, after a previous conviction for felony ; and 
certain offences relating to the falsifying of certificates 
of previous conviction. The whipping is to be publicly 
or privately inflicted (d). 

(c.) Felony for which no particular punishment has 
been provided (e). 

Solitary con- Solitary Confinement. — This may be ordered in certain 
finement. specified cases mentioned in the Criminal Consolidation 
Acts. Also for felonies for which no particular punish- 
ment has been prescribed by statute (/) ; and for certain 
other offences which it is unnecessary to enumerate. 
But in no case may a prisoner be kept in solitary 
confinement for any longer period than one month at 



(6) 25 & 26 Vici,. c. 18. 

(c) 26 & 27 Vict. u. 44. 

(d) 7 & 8 Geo. 4, ^. 28, s. 11. 
(«) Ibid. ». 8. 

(/) Ibid. ». 9. 



PUNISHMENT. 443 

a time, or than three months in the space of one 
year {g). 

Police Supervision. — When any person is convicted Police super- 
on an indictment for a crime (explained by the Act to ^^^^°^' 
mean in England — any felony, or the offence of uttering 
false or counterfeit coin, or of possessing counterfeit 
gold or silver coin, or of obtaining by false pretences, 
or of conspiracy to defraud, or of any misdemeanor 
under 24 & 25 Vict. c. 96, s. 58), and a previous con- 
viction of a crime is proved against him, the court may, 
in addition to any other punishment, direct that he is 
to be subject to the supervision of the police for a 
period of seven years or less, commencing immediately 
after the expiration of the sentence passed on him for 
the last of such crimes (h). 

The consequence of such sentence is that the person what it con- 
to be supervised must notify the place of his residence ^'^*^ '"■ 
to the chief officer of police of the district in which 
his residence is situated, and also notify any change 
vrithin such district ; and if he goes out of the district, 
he must notify the change to the chief officer of the 
■district he is leaving, and also to the chief officer of 
the district to vrhich he is going. If a male, he must 
report himself personally or by letter, as required, once 
a month to the chief officer of the district. If he 
offends against these regulations, or is forty-eight 
hours in any place without notifying the place of his 
residence to the chief officer, he is subject to imprison- 
ment with or without hard labour for a term not 
exceeding one year (i). 

Recognizances and Sureties. — Under each of the Entering into 
Criminal Consolidation Acts, in case of conviction for 3^^°!°^™°''* 



sureties. 



{g) 7 Wjn. 4 and 1 Vict. c. 90, s. 5. 24 & 25 Vict. o. 96, s. 119 ; c. 97, 
s. 75 ; c. 98, s. 53 ; c. 99, s. 40 ; c. 100, s. 70. 
(A) 34 & 35 Vict. u. 112, s. 8. 
(0 Ibid. 



444 



PUNISHMENT, 



an indictable misdemeanor ■pvmisha.hle under those Acts, 
the court may fine the offender, and require him to enter 
into his own recognizances and to find sureties, both or 
either, for keeping the peace and being of good be- 
haviour, in addition to or in lieu of any other punish- 
ment. In'case of a felony punishable under the Acts, 
the court may order him to enter into his own recog- 
nizances and to find sureties, both or either, for keeping 
the peace, in addition to any other punishment. But 
under these clauses no one may be imprisoned for not 
finding sureties for any period exceeding one year (k). 

Reformatories. Beformatory and Industrial Schools. — When any 
ofi'ender who, in the judgment of the court or magis- 
trates, is under the age of sixteen years, is convicted 
of an ofi'ence punishable by penal servitude or im- 
prisonment, and is sentenced to imprisonment for ten 
days or more, the court or magistrates may also sentence 
him to be sent, after his imprisonment, to a certified 
reformatory school, to be there detained for a period of 
from two to five years. But if he is under the age of 
ten years he may not be sent to a reformatory unless 
he has been previously charged with some offence 
punishable by penal servitude or imprisonment ; or is 
sentenced by a judge of assize or a court of general 
or quarter sessions. The court sending such a youthful 
offender to a school will choose one of his apparent 
religious persuasion (Z). 



Industrial 
schools. 



Industrial schools meet the case of those who have 
not to so great an extent fallen into crime, but are on 
the highway to it. Thus, two magistrates may send 
the following, among others, to such schools : children 
apparently under the age of fourteen begging, having 
no home or visible means of existence, in the company 



(A) 24 & 25 Vict. 96, s. 117 ; u. 97, s. 73 ; c. 98, s. 51 ; c. 99, s. 38 i 
u. 100, s. 71. 

(0 29 & 30 Vict. c. 117, s. 14. 



PUNISHMENT, 445 

of reputed thieves ; destitute orphans, or having a 
surviving parent in penal servitude or imprisonment ; 
children apparently under the age of twelve charged 
with an offence punishable by imprisonment or less 
punishment, but not. having been convicted of felony, 
&c. No child is detained in such school a'fter he has 
attained the age of sixteen, unless with his own consent 
expressed in writing (m). 

Other Consequences of Conviction. 

Until recently certain forfeitures and other conse- Forfeiture, &c. 
quences followed on conviction for treason or felony. 
But by statute (n) it has been provided that from and 
after the passing of the Act (July 4, 1870) no confes- 
sion, verdict, inquest, conviction, or judgment of or for 
any treason, felony, or felo de se, shall cause any 
attainder or corruption of hlood, or any forfeiture, or 
escheat ; provided that nothing in the Act shall affect 
the law of forfeiture consequent upon outlawry. Of 
course this does not refer to, or interfere with, any fine 
or penalty imposed in the sentence (o). 

But a conviction for treason or felony for which the Deprivation of 
sentence is death, penal servitude, or imprisonment with ""''''' ^''■ 
hard labour, or exceeding twelve months, determines 
the tenure of any military or naval office, or any civil 
office under the Crown, or other public employment, or 
any ecclesiastical benefice, or any office or emolument in 
any university or other corporation, or any pension or 
superannuation allowance payable by the public, or out 
of the public funds, unless a pardon is received within 
two months after the conviction, or before the filling up 
of the office, place, &c., if given at a later period. It 
also disqualifies for the future, until the punishment 



(m) 29 & 30 Vict. c. 118. 
(n) 33 & 34 Vict. c. 23, s. 1. 
(o) Ibid. s. 5. 



446 



PUNISHMENT. 



has been suffered or pardon received, the felon from 
holding any military or naval office, or any civil 
office under the Crown, or other public employment, 
or any ecclesiastical benefice, or of being elected, or 
sitting, or voting as a member of either House of Par- 
liament, or of exercising any right of suffrage or other 
parliamentary or municipal franchise within England, 
Wales, or Ireland (p). 

Property of a As to the projoerty of the felon. — By the same 
vfcHon*^'^'^ °™" ^^^*^*® (?) i* i^ provided that this may be committed 
to the custody and management of an administrator, to 
be appointed by the Crown ; or, in default of such 
appointment, to the management of an interim curator, 
who may be appointed by the magistrates on an appli- 
cation made in the interest of the felon or his family. 
The administrator or curator must pay his debts and 
liabilities, and support his family, and preserve the 
residue of the property for the felon himself or his re- 
presentatives, on the completion of his punishment, his 
pardon, or his death. 

Costs and com- Porsons convicted of treason or felony may be con- 

-pensation. demned in costs; and if convicted of felony may be 

ordered to pay a sum of money, not exceeding £100, as 

compensation to the person defrauded or injured by the 

commission of the felony (r). 



(p) 33 & 34 Vict. c. 23, s. 2. 
(f) Ibid. ss. 9, 18, 21. 
(f) Ibid. ss. 3, 4. 



( 447 ) 



CHAPTEE XXII. 

PROCEEDINGS AETEE TRIAL. 

Thotjgh there is no appeal on the merits in a criminal Verdict, when 
case, the verdict of the jury does not always determine ''J^^f not take 
the conviction or acquittal of the prisoner. We have 
already seen (s) that judgment may be arrested on 
certain grounds. It remains to consider those cases in 
which the judgment, though actually given, is subse- 
quently affected. This matter will be treated of under 
the heads of New Trial, Eeversal of Judgment by Writ 
of Error, and the Court for Crown Cases Eeserved. The 
subject of Eeprieve and Pardon will form a separate 
chapter. 

NEW TBIAL. 

" Where an indictment has been preferred in the New' trial, 
Queen's Bench, or has been removed into that court by ^^"'^ ''"°'^"^- 
certiorari, a new trial may, after conviction, be moved 
for, on the ground that the prosecutor has omitted to 
give due notice of trial ; or that the verdict has been 
contrary to evidence, or to the direction of the judge ; 
or for the improper reception or rejection of evidence, 
or other mistake or misdirection of the judge ; or for 
any gross misbehaviour of the jury among themselves ; 
or for surprise ; or for any other cause where it shall 
appear to the court that a new trial will further the 
ends, of justice" (t). 

It is now settled that only in misdemeanors, and not 



(s) V. p. 429. 
(0 Arch. 188. 



448 



PEOCEEDINGS APTEB TRIAL. 



in felonies, can a new trial be granted (m). As a rule, 
after a verdict of acquittal, a new trial will not be 
granted ; but this rule is subject to qualifications, for 
example, where the defendant has kept back witnesses 
for the prosecution ; or where the object of the criminal 
proceeding is to try a right, as in the case of a prosecu- 
tion for the non-repair of roads (x). 

New trial, by Only in case of some irregularity in the proceedings, 
gianted. qj.^ j^ ^^j^gj, ^Qj,^g^ ^ mis-trial, can any other court 
than the Queen's Bench grant a new trial, the mis-trial 
being regarded as a mere nullity. 

New trial, how The motion for a new trial is made upon the judge's 
notes of the trial, or upon affidavit, the defendant 
being present in court. "When counsel have been 
heard on both sides, the court either makes the rule 
absolute or discharges it, with or without costs. If 
the new trial is granted, the effect of the former 
trial is completely swept away, and all the facts are 
re-heard. 



EETEESAL OP JTJDaMENT BY WRIT OP EEROR. 

Reversal of As a rulc, the Only way in which judgment can be 

ju gmcnt. reversed is by writ of error, though such writ is not 

necessary if the objection is to some matter dehors or 

foreign to the record, as if judgment be given by persons 

who have no authority, 

Writ of error. A Writ of crror is a writ directed to an inferior court 
which has given judgment against the defendant, re- 
quiring it to send up the record and proceedings of the 
indictment in question to the Queen's Bench Division, 
for that court to examine whether the errors alleged 
took place, and to affirm or reverse the judgment of the 



(m) S. t. Bcrtrand, L. E. 1 (Priv. Counc.) 520. 
(x) Y. S. T. Ckorley, 12 Q. B. 515. 



PROCEEDINGS AFTER TRIAL. 449 

inferior court. It must be grounded on some substan- 
tial defect apparent on the face -of the record, as if the 
indictment be bad in substance, or the sentence be 
illegal. It will never be allowed for a formal defect {y). 
The following are examples of cases where it has been 
held that a writ of error would He : in perjury, where 
the court has not competent authority to administer 
the oath ; in libel, if the words do not appeai; to be 
libellous ; in false pretences, if it is not shewn what the 
false pretences were (z). 

Before suing out the writ of error, it is necessary Proceedings on 
to obtain the fiat of the attorney-general, on shewing ^'''*' "^ "''°^' 
reasonable ground of error. This is at the discretion 
of the attorney-general, but is not generally refused ; 
indeed, in misdemeanors, it is granted as a matter of 
course. The writ is delivered to the clerk of the peace, 
or other officer of the court to which it is directed, who 
has the custody of the indictment. He makes up the 
record and makes out the return to the court. The 
party suing assigns his errors. The Crown joins in 
error. The case is argued, and judgment of affirmance 
or reversal given. The court of error may either pro- 
nounce the proper judgment itself, or remit the record 
back to the inferior court, in order that the latter may 
pronounce judgment {a). 

If judgment is affirmed, the defendant may be at once Jurigment 
committed to prison ; and if he does not surrender- *''''^'"^''" 
within four days, a judge may issue a warrant for his 
apprehension (6). 

If judgment is reversed, all the former proceedings are Judgment 
null and void, and the defendant is in the same position ''''^'*''^^ • 



{y) V. 14 & 15 Vict. c. 100, s. 25. 

(s) V. Castro v. Murray, 32 L. T. (N.S.) 675. ' 

(a) 11 & 12 Vict. c. 78, s. 5. 

(6) 16 & 17 Vict. c. 32, s. 4. 

2 



450 



PROCEEDINGS APTEB TRIAL. 



as if he had never been charged with the offence, there- 
fore he may be indicted, again on the same ground. 

Interval before In the interval before the result of the proceedings 
error. Ill error is known, in cases ol misdemeanor the de- 

fendant is discharged from custody on entering into 
the recognizances with sureties required by the Acts 
mentioned below ; in felonies he remains in custody (e). 

The Supreme The jurisdiction in error in criminal cases is thus 
Acts andMTor. regulated by the Supreme Court of Judicature Acts. 
On a judgment of the High Court of Justice (including 
the Queen's Bench Division, commissions of gaol deli- 
very and oyer and terminer), an appeal lies to the 
Court of Appeal, if there is some error of law apparent 
on the face of the record, as to which no question has 
been reserved under 11 & 12 Vict. c. 78 (d). And as to 
appeals from quarter sessions and other inferior courts, 
which might haye been brought to any court or judge 
whose jurisdiction is transferred to the High Court of 
Justice, it is provided that they may be heard and 
determined by divisional courts of the High Court con- 
sisting of judges who may be assigned for that purpose. 
The determination of such appeals respectively by these 
divisional courts is final, unless special leave to appeal 
to the Court of Appeal is given by the divisional court 
so hearing (e). 



COURT FOR CROWN CASES RESERVED. 

Crown cases If any question of law arises at a trial for treason, 

reserved. felony, or misdemeanor, which the court (whether a 

judge at the assizes, the justices or recorder at the 

quarter sessions) deems it inexpedient or impracticable 

(c) 8 & 9 Vict. c. 68, s. 1 ; 9 & 10 Vict. c. 24, s. 4 ; 16 & 17 Vict. c. 32, 
s. 1. 

(d) 36 & 37 Vict. c. 66, ss. 18, 19, 47. As to 11 & 12 Vict. i;. 78, 
V. p. 451. 

(e) 36 & 37 Vict. c. 66, s. 45. 



PROCEEDINGS AFTER TRIAIi. 451 

to decide at once and of itself, it reserves the point for 
the consideration of the Court for Crown Cases Eeserved ; 
provided, of course, a conviction takes place, for other- 
wise there would be no need for further considera- 
tion (/). Such court consists of the judges of the 
High Court of Justice, or five of them at least,, of whom 
the Lord Chief Justice of England, the Lord Chief 
Justice of the Common Pleas Division, or the Lord 
Chief Baron must be one {g). 

The court reserving the point may respite execution interval before 
of the judgment on such conviction, or postpone the ^'''^'°"' 
judgment until the question is decided. And in either 
case, to secure the appearance of the defendant when 
he is required, the court will, in its discretion, either 
commit him to prison or take a recognizance of bail 
with one or two sureties Qi). 

The Court for Crown Cases Eeserved hears counsel Proceedings in 
on either side, even though counsel do not appear on crawn'cLes' 
the other side. If they appear on both sides, the Reserved. 
counsel for the prisoner begins and has a reply. If 
counsel do not appear at all, the Lord Chief Justice or 
Lord Chief Baron presiding reads the case and then 
judgment is pronounced. The judgment is that the 
court reverses, affirms, or amends the judgment of the 
court reserving the point j or avoids such judgment 
and orders an entry to be made on the record that, in 
the opinion of the Court for Crown Cases Eeserved, the 
party convicted ought not to have been convicted ; or 
orders judgment to be given at some other assizes or 
, sessions if no judgment has been given up to that 
time ; or makes such other order as justice requires. 
The order of the court, whether for execution of judg- 
ment or discharge of the prisoner, is carried out by 



(/) 11 & 12 Vict. c. 78, s. 1. 

((/) Ibid. s. 3 ; 36 & 37 Vict. c. 66, s. 47. 

(A) 11 & 12 Vict. c. 78, 5. 1. 

2 G 2 



452 PE0CEEDING8 AFTEK TKIAL. 

the sheriff or gaoler in whose custody the person con- 
victed is ; to whom a certificate of such order is trans- 
mitted by the clerk of the assize, or of the peace («). 
The court may send the case back for amendment ; and 
after that has been effected, judgment will be deli- 
vered (k). 

No appeal. The determination of any such question in the 

manner indicated above is final and without appeal (l). 



(0 11 & 12 Vict. ^. 78, ». 2. 

{k) Ibid. s. 4. 

(0 36 & 37 Vict. c. 66, s. 47. 



( 453 ) 



CHAPTEK XXIII. 

REPRIEVE AND PARDON. 

A REPBiEVE (reprendre) is the withdrawing of a sentence Reprieve: 
for an interval of time; whereby the execution of a 
criminal ia suspended (m). 

Eeprieves may be granted either : — 

i. By the Crown {ex mandato regis) at its discretion ; by Crown ; 
its pleasure being signified to the court by which exe- 
cution is to be awarded. 

ii. By the court empowered to award execution, either by court. 
before or after verdict {ex arhitrio judicis). Generally 
it must be guided by its own discretion, as to whether 
substantial justice requires it, as for example, when it 
is not satisfied with the verdict. But in two cases the 
court is bound to grant a reprieve, (a.) When a woman 
sentenced to death is ascertained to be pregnant. To 
discover whether she is quick with child a jury of 
twelve matrons is empanelled. If so found, she is re- 
prieved until either she is delivered or proved by the 
course of nature not to have been with child at all. 
But after she has been once delivered, she cannot be 
reprieved on this ground a second time, (b.) When the 
prisoner becomes insane after judgment. We have 
already seen that the occurrence of insanity in the 
prisoner is a stay to proceedings at any stage. 

Pardon. — The exercise of the prerogative of pardon- pardon. 



(m) 4 Bl. 394. 



454 



REPEIEVE AND PABDON. 



ing is at the absolute discretion of the sovereign. If, 
either from the opinion of judges represented to him, 
or for any other reason, the Home Secretary thinks the 
case a fit one for the interposition of royal mercy, he 
recommends the same to the Queen, and she usually 
acts on the recommendation. 

Pardon, when The Sovereign cannot pardon where private interests 
granted!' ^ *^® principally concerned in the prosecution of offenders 
" non potest rex gratiam facere cum injwia et damno 
aliorum " — for example, a common nuisance cannot be 
pardoned while it remains unredressed. But a recent 
statute («.) enables the sovereign to remit penalties; 
although they may be wholly or in part payable to 
some other than the Crown (o). There is another case 
in which the offender cannot be pardoned, namely, when 
he is guilty of the offence of committing a man to 
prison out of the realm (p). It should also be noticed 
that a pardon cannot be pleaded to an impeach- 
ment so as to stifle the inquiry. But of course the 
person impeached and sentenced may be afterwards 
pardoned (g'). 

H6w made out A pardon must be by warrant under the great seal, 
and how con- ^j. ^j^^qj. ^]^q gign manual. As a rule, it is to be taken 

strued. *-' • n • i 

most beneficially for the subject and against the 
Queen (r). 

Conditional A pardon may be conditional — the most frequent 

pardon. example of which is when a person sentenced to 

death is pardoned on the condition that he submit 
to punishment either of penal servitude or imprison- 
ment (s). 



(») 22 Vict. c. 32. 

(o) See also 24 & 25 Vict. e. 96, s. 109 ; c. 97, ». 67. 

Ip) 31 Car. 2, c. 2. 

(g) 12 & 13 Wm. 3, c. 2, s. 12. 

(r) See further 4 St. Bl. bk. vi. c. 25. 

(s) V. 5 Geo. 4, 0. 84; 20 & 21 Vict. u. 3. 



BEPBIEVE AND PARDON. 455 

Ticket of Leave. 

In connection with the subject of pardon, it will be Ticket of leave. 
convenient to notice the case of those who are allowed 
to be at large before the expiration of their term of 
confinement. 

When any person is sentenced to penal servitude or 
imprisonment, the Queen, by order in writing under 
the hand and seal of the secretary of state, may grant 
him a licence to be at large in the United Kingdom and 
the Channel Islands, or in such part thereof respectively 
as in such licence shall be expressed, during such por- 
tion of the term of penal servitude or imprisonment, 
and upon such conditions as Her Majesty thinks fit. 
But the licence may be revoked or altered at the Queen's Forfeiture, &c. 
pleasure. It will be forfeited in the event of (a) a 
subsequent conviction, (b) of failure to report himself 
to the police unless prevented by unavoidable cause, 
(c) of changing residence without due notification. On 
the subsequent conviction the offender will first sufi'er 
the punishment attached to such offence, and then finish 
his original term. If the licence is revoked, the convict 
may be apprehended and sent back to the prison from 
which he came to undergo the residue of his sentence ; 
or he may be sent to any other prison wherein convicts 
under sentence of penal servitude may lawfully be 
confined. 

Certain offences connected with these licences sub- offences by 
ject the holders to imprisonment for a term not ex- holers. 
ceeding three months, on summary conviction. The 
holder of a licence suspected of committing an offence 
may be apprehended without a warrant (t). 

In the case of those sentenced to penal servitude, the Remission, how 

regulated. 

(i) 16 & 17 Vict. c. 99, ss. 9-11 ; 20 & 21 Vict. c. 3, ». S ; 27 & 28 
Vict, c. 47, ss. 4-10; 34 & 35 Vict. c. 112, ss. 3-5. 



456 EEPEIEVE AND PAEDON. 

remission of a part of the term, proportioned to the 
number of years contained in the sentence, follows as a 
matter of course if the convict conducts himself well. 
But if the sentence is penal servitude for life, the 
special order of one of the secretaires of state is 
required. 



( 457 ) 



CHAPTEK XXIV. 

EXECUTION. 

Execution is carried out by the sheriff or his deputy, Execution, 
thus giving effect to the sentence of the judge. It is 
the usage for the judge, at the end of the assizes, to 
sign the calendar containing the prisoners' names and 
sentences. This is left to the sheriff as his warrant 
and authority; and if he receive no special order to 
the contrary, he executes the judgment therein con- 
tained. 

The criminal is usually executed about a fortnight Time and place. 
or three weeks after his sentence An execution for 
murder must take place within the walls of the prison 
in which the offender is confined at the time (m). 

If the execution be not by the proper officer, or if Manner. 
not carried out in strict conformity with the sentence, 
as if the criminal is beheaded instead of hanged, the 
official is guilty of murder. If the criminal survives, 
he must be hanged again, inasmuch as the sentence is 
that he be hanged by the neck till he is dead. 

(w) 31 Vict. u. 24, ». 2. 



( 458 ) 



BOOK'IY. 



SUMMAEY CONVICTIONS. 



Summary con- A OEETAiN class of convictions are described as " sum- 
victions. j^g^j.y „ ^^ distinguish them from such as follow after a 

regular trial on an indictment or information. The 
essence of summary proceedings is the absence of the 
intervention of a jury; the person accused being 
acquitted or condemned by the decision of the person 
who is instituted judge. Blackstone viewed with ap- 
prehension the extension of this mode of proceeding, 
which threatened the disuse of trial by jury. The ten- 
dency still exists " to multiply classes of crimes which 
entail the lowest order of punishment, and require for 
investigation the lowest rank of judicial tribunals " (a). 

The only class of summary proceedings which is to 
be dealt with in this chapter is by far the most exten- 
sive and important — Svmmary convictions "before magis- 
trates out of Quarter Sessions (h). 

Jurisdiction of The Original functions of justices of the peace, when 
how'accmfrcd ^°* ^^ general or quarter sessions, were chiefly to 
prevent breaches of the peace and to cause offenders to 
be apprehended. But' their jurisdiction has been gra- 
dually extended. A great number of minor offences 
can be dealt with satisfactorily without the expense 
and delay of bringing them before the ordinary courts. 



(a) Amos' Jurisprudence, 303. 

(b) We have already noticed a form of summary proceeding in the event 
of contempt of court (v. p. 98). Another class comprises the proceedings 
before Commissioners of Inland Revenue ; but there is no need to enter 
into the details of this subject, v. 7 & 8 Geo. 4, c. 53 ; 15 & 16 Vict, 
u. 61. 



SUMMARY CONVICTIONS. 459 

Accordingly from time to time authority has been con- 
ferred by statute on the magistrates to examine into 
such offences and punish the offenders. It is only in 
virtue of legislative enactments that they act in this 
capacity. In some cases the offenders are punished Punishments. 
merely by the infliction of a pecuniary penalty. In 
other cases the magistrates are empowered to punish 
by a penalty or imprisonment with hard labour not 
exceeding six months ; or, if there has been a previous 
conviction, twelve months. And in any case where a 
person has been, on summary conviction, ordered to pay 
a penalty not exceeding £5, on his failure to do so, he 
may be committed to prison for a period not exceeding 
two months (c). 

Of course the jurisdiction of a magistrate is local, Local limita- 
and not personal; that is, he can exercise it only in Miction ^""*" 
his own county, borough, or other district. And, as a 
general rule, the jurisdiction is further limited to 
offences committed within such county, borough, or 
district. But, by some statutes, the magistrates have 
jurisdiction if the offender resides or is apprehended in, 
or the goods are found in, the county, &c. (d). 

In some cases one justice may act by himself, in How many 
others the statute requires the presence of more. But ^'Jfj^^'^j^^ ^^' 
metropolitan police magistrates, city of London magis- 
trates, and stipendiary magistrates have, within their 
jurisdiction, power in most cases to do alone whatever 
is authorized to be done by one or more justices (e). 

The magistrates have no jurisdiction to hear and No jurisdiction 
determine cases in a summary manner where property o^tithin^uel 
or title is in question, though, if it had not been tion. 
for such question, they would have had cognizance 
thereof. 



(c) 28 & 29 Vict. c. 127. 

(d) For example, 11 Geo. 2, c. 19 ; 17 & 18 Vict. c. Wi, s. 520. 

(e) Paley, Sum. Couv. 34. 



460 



SUMMAEY CONVICTIONS. 



We shall first notice some of the chief offences 
which have been made the subjects of summary pro- 
ceedings, and then inquire into the nature of such 
proceedings. 

Most import- Under the former branch of the subject the following 

ant offences i j^ re ' i. i. i. I'ii 

punishable on classcs 01 oflences require treatment, as being the 

summai-y con- most important : — Common Assaults ; Small Larcenies, 

&c. ; Small Wilful Injuries ; Offences relating to Game. 

Certain provisions for summary proceedings in the case 

of Juvenile Offenders also demand attention. 



Assaults, &c. 



Dismissal of 
the case. 



1. Common Assaults and Batteries. 

When any person unlawfully assaults or beats 
another, two magistrates, upon complaint of the party 
aggrieved, may hear and determine such offence, and 
may inflict a fine to the extent of £5 (and in default 
of payment, two months imprisonment), or may sen- 
tence to imprisonment not exceeding two months. If 
the person assaulted, &c., is a male child under the age 
of fourteen, or a female of any age, the offender may 
be fined to the extent of £20, or imprisoned for a term 
not exceeding six months. He may also be bound 
over to keep the peace for a further period of six 
months (/). 

If the magistrates, upon the hearing of any such 
case, deem the offence not proved, or find the assault or 
battery to have been justified, or so trifling as not to 
merit any punishment, and accordingly dismiss the 
complaint, they make out and deliver to the party 
charged a certificate stating the fact of such dis- 
missal (g). This certificate, or the conviction (if the 
punishment has been suffered), is a bar to any other 
proceedings, civil or criminal, for the same cause {h). 



(/) 24 & 25 Vict. c. 100, ss. 42, 43. 
((/) Ibid. o. 44. 
(A) Ibid. 5. 45. 



SUMMARY CONVICTIONS. 461 

But if the magistrates find that the assault or Committal for 
battery was accompaiiied by an attempt to commit a *"*'■ 
felony, or think, from any other circumstance, that it is 
a fit subject for prosecution by indictment, they abstain 
from adjudication, and send the case for trial. They 
may not determine any case of assault or battery in 
which a question arises as to the title to any lands, 
tenements, or hereditaments, or any interest therein or 
accruing therefrom, or as to any bankruptcy or insol- 
vency, or any execution under the process of a court of 
justice (i). 

2. Small Larcenies, &e. 

Under this head an important distinction is to be Two classes of 
made. We shall first treat of such unlawful takings J^'j^™^^^;°°°" 
of property as are punishable on summary conviction, indictable. 
but which do not amount to larceny in the strict sense 
of the term, inasmuch as they cannot be made the 
subject of indictment. In the second place, we shall 
consider the jurisdiction given to magistrates, in certain 
cases ^ and under certain circumstances, to hear and 
determine offences which might be made the subject of 
indictment as larcenies, but which, in virtue of the 
special statutory authority, may be disposed of by the 
magistrates. 

(a.) The taJcini/ of personal properly, trees, &e. — Al- Non-indictable 
most every possible injury in the nature of an illegal *^''='^"'^^- 
taking of personal property, or of things annexed to the 
realty, when not indictable, is punishable before one or 
more justices under the Larceny Consolidation Act, 
1861 {h). 

In some cases after one summary conviction, in some Subsequent 

offences. 

(i) 24 & 25 Vict. >;. 100, s. 46. 

(A) 24 & 25 Vict. t. 96; dogs, ss. 18, 19 ; deer, ss. 12, 14, 15 ; rabbits, 
s. 17 ; beasts or birds ordinarily kept in confinement, but not subjects of 
larceny, pigeons, fish, &c., ss. 21-24; trees, fences, vegetable productions, 
&c., ss. 33-37. 



462 



SUMMARY CONVICTIONS. 



Jurisdiction as 
to indictable 
larcenies, 



cases after two summary convictions for the offence, 
such offence amounts to a felony, and is indictahle as 
larceny (T). The punishment for receiving stolen pro- 
perty when the original offence is punishable on 
summary conviction is the same as for the original 
offence (m). 

(b.) Larcenies. — Arecent Act (n) has given to the jus- 
tices at petty sessions authority, under certain circum- 
stances, to hear and determine cases of larceny. The 
same authority has been extended to cases of embezzle- 
ment (o). Here, again, two classes must be distin- 
guished : — 

i. Where the ground of conferring the jurisdiction 
is the smallness of the extent of the crime. 

ii. Where the ground is the consent of the prisoner 
that the case should be so disposed of, he plead- 
ing guilty. 



on the grouni 
of the insigni- 
ficance of the 
crime. 



i. When the value of the property stolen or em- 
bezzled, in the judgment of the justices, does not exceed 
the sum of five shillings ; or when the charge is one of 
attempt to commit larceny from the person or simple 
larceny, the justices may deal with the case. 



Conviction. 



Dismissal. 



If the accused confesses, or if, after hearing the whole 
case for the prosecution and defence, the justices find 
the charge proved, they may convict the accused, and 
commit him to prison for a period not exceeding three 
months. If they consider it not proved, or deem it 
inexpedient to inflict any punishment, they dismiss the 
accused and give to him a certificate of such dismissal. 



(0 See 24 & 25 Vict. u. 96, ss. 9, 12, 18, 19, 20, 21, 33, 34, 36, 37. 

(m) Ibid. s. 97. 

(n) 18 & 19 Vict. ,;. 126. 

(o) 31 & 32 Vict. c. 116. 



SUMMARY CONVICTIONS. 463 

This certificate of dismissal or a conviction is a bar to 
further proceedings for the same cause (p). 

These summary proceedings will not be adopted, but When case 
the case will be sent for trial: (a) if the accused does ^^f^.;^^, '""* 
not consent to have the case so disposed of ; (b) if it 
appears that the offence is one which, owing to previous 
conviction, is punishable by penal servitude ; (c) if the 
magistrates are of opinion that on any other ground 
the charge is a fit subject for prosecution by indict- 
ment (q). 

In order to find out whether the accused consents to Consent of the 
the charge being thus summarily determined, one of p^'*'"'^'^ .''^'^"''^ 

_ , ^ l116 C3.S6 IS 

the magistrates, after the examination of all the wit- summarily dis- 
nesses for the prosecution, before calling on the accused ^"^^^ °^' 
for his defence, states to him the substance of the 
charge, and asks him whether he wishes it to be tried 
by .them or sent on to the sessions or assizes. If he 
consents, they then take his plea and determine the 
case in the ordinary summary way (r). 

ii. In cases of simple larceny or embezzlement (the Jurisdiction on 
property alleged to have been stolen or embezzled sent'and''con-" 
exceeding in value five shillings (s) ), or of stealing from fession of pri- 
the person, or of larceny as a clerk or servant, the ^°°^'^' 
justices at petty sessions have the following jurisdic- 
tion : — If, when the case on the part of the prosecution 
is completed, the evidence appears sufficient to put the 
person charged on his trial, the justices, if they think 
that the case is one which may be disposed of in a 
summary manner, aijd may be adequately punished 
under the power of this Act, reduce the charge to 
writing, and read it to the accused, and ask him whether 
he is guilty or not guilty. If he pleads guilty, they 



O) IS & 19 Vict. c. 126, ss. 1, 12. 

(?) Ibid. s. 1. 

(r) Ibid. s. 2. 

(s) Otherwise the charge would be dealt with as in the last section. 



464 SUMMARY CONVICTIONS. 

may convict, and commit him to prison for a term not 
exceeding six months ; if he pleads not guilty the case 
is sent on for trial. But, before asking him whether 
he is guilty or not guilty, the justices explain to him 
that he is not obliged to plead or answer before them 
at all, and that if he does not, he will be committed for 
trial in the usual course (f). 

Proceedings In proceedings under this Act the accused may make 

un er t is ct. ^ £^j^ defence and examine the witnesses by counsel or 
attorney (u). The justices may order the restitution 
of the property, as on a trial upon indictment («). 
The effect of a conviction under this Act is the same as 
of a conviction upon indictment for the same offence (y). 
Proceedings under this Act are a bar to any further 
proceedings for the same cause (2). 

3. Small wilful Injuries. 

Wilful injuries. Every possible injury to property, when not indict- 
able, is punishable on summary conviction under the 
Malicious Injuries to Property Act, 1861 (a). Thus, it 
is provided that any person committing damage to any 
property, in any case not previously provided for, may, 
on conviction before a justice of the peace, be imprisoned 
for a term not exceeding two months, or fined to the 
extent of £5, and also ordered to make compensation 
not exceeding £5. In default of payment of these 
sums the offender may be imprisoned for a term not 
exceeding two months (h). Particular sections also 
deal with certain cases of injury, which are thus ex- 



(i) 18 & 19 Vict. c. 126, s. 3. 

(m) Ibid. s. 4. This and the following matter relate to both divisions 
(i. and ii.) of this subject, 

(x) Ibid. s. 8. 

((/) Ibid. s. 11. 

(4 Ibid. s. 12. 

(a) 24 & 25 Vict. c. 97. 

(6) Ibid. s. 52. If the injury exceeds in amount £5 the ofFL'nce is, by 
s. 51, a misdemeanor. 



StTMMABY CONVICTIONS. 465 

eluded from the operation of the general clause (c). In 
some cases a second or third offence amounts to a felony 
or misdemeanor (d). 

4. Offences relating to Game. 

Among a great number of offences relating to game Game ofifences. 
punishable on summary conviction, the following may 
be noticed : — 

To obtain game by unlawfully going on any land in 
search for game, or to use guns, &c., for taking game, 
or to act as an accessory, is punishable by penalty to 
the extent of £5 ; the game and instruments being 
forfeited (e). 

By night unlawfully to take or destroy game or 
rabbits, or enter with gun, &c., for the purpose of 
taking or destroying game, is punishable for the first 
offence by imprisonment to the extent of three months, 
for the second to the extent of six months (/). 

JUVENILE OFFENDERS. 

Eecent legislation has had in view " the demoraliza- juvenile 
tion of juvenile delinquents from protracted imprison- ^"^'j^'^^ft],''""^ 
ment with older offenders before trial." Two Acts (g) 
have been passed to procure the more speedy trial and 
punishment of such youths who are charged .with 
larceny, or some similar crime. 

The effect of these two statutes construed together 
is, that any person who, in the opinion of the justices, 
does not exceed the age of sixteen years, who is 



(e) Trees, vegetable productions, &c., ss. 22-24 ; fences, walls, gates, 
s^ 25 ; telegraphs, ss. 37, 38 ; animals not cattle, s. 41 . 

(d) 24 & 25 Vict. 97, ss. 22, 23. 

(«) 25 & 26 Vict. c. 114, s. 2. 

(/) 9 Geo. 4, c. 69, ». 1. See also chapter on game, p. 140 ; 1 & 2 Wra. 
4, c. 32 ; 7 & 8 Vict. c. 29. 

((/) 10 & 11 Vict. u. 82 ; 13 & 14 Vict. u. 37. 

2 H 



4R6 



SUMMARY CONVICTIONS. 



charged with committing, attempting, or aiding to 
commit any offence which now is, or hereafter may be, 
hy law declared to be simple larceny, or punishable as 
simple larceny, may, on conviction before two or more 
justices of the peace assembled in open court in petty 
sessions, be imprisoned for a term not exceeding three 
months, with or without hard labour ; or may be fined 
to the extent of £3; or, if a male under the age of 
fourteen, may be whipped instead of, or in addition to, 
the other punishment {h). 

Dismissal. The justices may dismiss the accused if they deem 

the offence not proved, or that it is not expedient to 
inflict punishment ; with or without requiring sureties 
for good behaviour. The accused is furnished with a 
certificate of such dismissal (j). 

When such These summary proceedings will not be resorted 

ceeding7a?r' *° • (*) ^^ ^^^ justices are of opinion, before the accused 
not resorted to. has made his defence, that the charge is a fit subject 
for prosecution by indictment ; (b) if the accused, on 
being asked whether he wishes the charge to be tried by 
a jury (which question must always be put), objects, or 
one of his parents objects, to the case being summarily 
disposed of under the provisions of these Acts {k). 

Proceedings under these Acts are a bar to further 
proceedings for the same cause (J). The justices may 
order restitution of the stolen property (to). 



Summary 
proceedings. 



PKOOEEDINGS UPON SUMMARY CONVICTIONS. 

The law upon this subject was consolidated in one of 
Jervis's Acts (ra). It should be premised that the Act 



(h) 10 & 11 Vict. c. 82, s. 1 ; 13 & 14 Vict. c. 37, s. 1. 

(!) 10 & 11 Vict. c. 82, s. 1. 

(/j) Ibid. ; 13 & 14 Vict. c. 37, s. 2. 

(0 10 & 11 Vict. u. 82, 's. 3. 

(m) Ibid. s. 12. 

(n) 11 & 12 Vict. c. 43. The other two are chapters 42 and 44 of the 



SUMMARY CONVICTIONS. 467 

does not extend to informations, complaints, or other 
proceedings tinder any statute relating to the excise, 
customs, stamps, taxes, or post office, nor to convictions 
under the Factory Acts, nor to a few other matters 
specially mentioned (o). 

The following is an outline of the proceedings : — The informa- 
An information is laid before a justice of the peace ''""■ 
that a person has committed, or is suspected to have 
committed, an offence, for which he is liable on 
summary conviction to be imprisoned, fined, or other- 
wise punished. This information gives the justice 
jurisdiction, and limits his inquiry to the matter con- 
tained therein. It must be laid (unless a particular 
period is fixed by the statute on which it is founded) 
within six months from the time when the matter 
arose (p). It must be laid before a magistrate by the 
informant in person, or by his counsel or attorney, or 
other person authorized in that behalf (g-). It need 
not be in writing, unless it is directed so to be by 
the statute, though of course it usually is in writing, 
and 11 & 12 Vict. c. 43 seems to assume this (r). Nor, 
as a rule, need it be on oath, unless a warrant to ap- 
prehend the person charged is issued in the first 
instance instead of a summons, in which case the 
matter of the information must be substantiated by the 
oath or affirmation of the informant, or of some witness 
on his behalf before the warrant is issued (s). 

The next step is the issue of the summons, directed The summons. 
to the accused, and stating shortly the matter of the 



same year; the former dealing with the performance of the duties of jus- 
tices out of sessions with respect to persons charged with indictable oifences 
(v. p. 313) ; the latter is an Act to protect justices from vexatious actions 
for acts done by them in the execution of their office. 

(o) 11 & 12 Vict. c. 43, o. 35. 

Xp) Ibid. s. 11. 

((/) Ibid. s. 10. V. Paley, Sum. Con. 69. 

(r) Paley, Sum. Con. 73. Oke Mag. Syn. 107. 

(s) Ibid. s. 10 ; see also s. 2. For forms, v. Oke's Mag. Formulist, pp. 
7-10 ; see also Oke's Mag. Syn. pp. 108, ct seq. 

2 H 2 



468 



8UMMABY CONVICTIONS. 



information, and requiring him to appear at a certain 
time and place to answer the information, a^nd to be 
dealt with according to law. The summons is served 
by the proper officer on the party charged personally, 
or at his last or usual abode (f). 

-Issue of a If the pcrsou so served with a summons does not 

appear at the time and place specified, provided a rea- 
sonable time has intervened between the summons and 
the day appointed, the justice or justices may, upon the 
matter of the information being to their satisfaction 
substantiated by oath or affirmation, issue a warrant to 
apprehend the accused. Authority is given to them to 
issue a warrant in the first instance instead of issuing a 
summons, if they think fit, on the information being to 
their satisfaction substantiated by oath or affirma- 
tion (m) This warrant must state shortly the matter 
of the information, must be under the hand and seal 
of the justices issuing it, and be directed to the con- 
stable, in whose hands it remains in force until 
executed. It may be executed by apprehending the 
accused at any place within the jurisdiction of the 
issuing justice, or out of such jurisdiction on being 
indorsed or backed by a magistrate of the jurisdiction 
in which the defendant is (x). 

Hearing in tiie A second course may be pursued if the summons, 
accused "'^ '''^ having been duly served, is not obeyed. The justices 
may proceed ex farte to the hearing of the information, 
and may adjudicate thereon, as fully and effectually as 
if the party had personally appeared in obedience to 
the summons. But this does not dispense with the 
necessity for the due examination of the facts upon 
oath (?/). 



(0 11 & 12 Vict. c. 43, s. 1. 
(m) Ibid. s. 2. 
(x) Ibid. s. 3. 
(y) Ibid. s. 2. 



SUMMARY CONVICTIONS. 469 

To secure the attendance of witnesses for the pro- Attendance of 
sedition and for the accused they may be served with witnesses, how 

T •/> 1 ■ • T 1 1 • 1 secured. 

a summons, and, if this is disobeyed, with a warrant. 
Or, if the justice is satisfied on oath or affirmation 
that the witness will not attend to give evidence 
unless compelled, a warrant to secure such attendance 
may be issued in the first instance (2). 

The hearing takes place before one or more justices, The hearing. 
the number being determined by the particular Act 
making the offence subject to the summary proceed- 
ings, or, if there is no direction on this point, before 
one justice of the jurisdiction where the matter has 
arisen. The place of hearing is to be deemed an open 
court. The accused may make full defence and call 
witnesses, and either party may be represented by 
counsel or attorney (a). 

If the defendant fails to appear, the justice may Failure of 
proceed to hear and determine, or may adjourn. If °^^„^^y '" 
the defendant appears, and the prosecutor does not, 
the magistrate may dismiss the complaint or adjourn 
the hearing, and commit or discharge the defendant on 
his entering into due recognizances (b). The magis- Adjournment, 
trate has power to adjourn the hearing, and commit 
the defendant for the interval, or sufi'er him to go at 
large, or discharge him on his entering into recog- 
nizances with or without sureties. If he fails to re- 
appear the magistrate may transmit the recognizances 
to the clerk of the peace to be proceeded upon in like 
manner as other recognizances (c). 

But if both the parties appear, the following are the Proceedings at 
proceedings. The substance of the information is read *'^^ bearing, 
to the defendant, and he is asked if he has any cause 



(^z) 11 & 12 Vict. c. 43, s. 7, 
(a) Ibid. s. 12. 
(6) Ibid. s. 13. 
(c) Ibid. s. 16. . 



470 



StTMMAET CONVICTIONS. 



to shew why he should not be convicted. If he admits 
the truth of the information, and does not shew any 
cause why he should not be convicted, the justice 
proceeds to convict and pass judgment. If he does 
not admit the truth of the charge the magistrate pro- 
ceeds to hear the prosecutoi, and such witnesses as he 
may examine (every examination being on oath or 
affirmation (d) ), and such other evidence as he may 
adduce ; then to hear the defendant, and his witnesses, 
and other evidence ; after that to hear witnesses the 
prosecutor may examine in reply, if the defendant has 
examined any witnesses or given any evidence other 
than to his general character. But the prosecutor is 
not entitled to make any observations upon the evidence 
given by the defendant, nor the defendant to make any 
observations upon the evidence given by the prose- 
The decision, cutor in reply. The magistrate then considers the 
whole matter, and determines the same by convicting 
the defendant or dismissing the information. If there 
are more magistrates than one the result is deter- 
mined by the opinion of the majority ; if they are 
equally divided there may be a fresh information or 
adjournment to next sitting. If he (or they) convict, 
he makes a memorandum thereof, and the conviction 
being drawn up in proper form is lodged with the 
clerk of the peace to be filed among the records of the 
general quarter sessions. If the information is dis- 
missed, the magistrate must give a certificate of the 
order of dismissal to the defendant, and this will be a 
bar to a subsequent information or complaint for the 
same matter against the same person (e). 

The judgment. The judgment consists of two parts, namely, the ad- 
judication of conviction, and the sentence or award of 
punishment. This punishment may be either fine or 
imprisonment, or both, according to the direction of 



(d) 11 & I'-J Vict. c. 43, s. 15. 
(0 Ibid. p. 14. 



SUMMARY CONVICTIONS. 471 

the statute under which the offence falls, which statute 
also defines the limits of the punishment. Sometimes 
satisfaction to the wrongdoer may be ordered without 
the infliction of any other punishment (/). Again, 
sometimes the information may be dismissed without 
the infliction of any punishment, if it is inexpedient to 
inflict punishment {g), or the offence is too trifling (h). 

The mode of enforcing payment of pecuniary fines is Payment of 
by distress and sale of the goods and chattels of the ''''^^■ 
person convicted. For this purpose the justice issues 
a warrant of distress, which is executed by the con- 
stable. But if it appears that issuing a warrant of 
distress would be ruinous to the defendant, or if, by 
confession of the defendant or otherwise, there are 
manifestly no goods whereon to levy a distress, the 
defendant may be committed to prison at once. And, 
as a rule, in default of sufficiency of distress, he may be 
committed (t). Power is also given to the magistrate 
to order commitment in the first instance for non-pay- 
ment of a penalty or other sum ordered to be paid (Jc). 

As to costs. — On conviction, the magistrate may Costs. 
order the defendant to pay the prosecutor's costs. On 
dismissal, the magistrate may order the prosecutor to 
pay to the defendant such costs as seem reasonable, the 
amount to be specified in the order of dismissal, and 
recovered as penalties are (Z). 

As to appeal from the decision of the magistrate. — Appeal. 
Two kinds of appeal must be distinguished : (i.) the 
ordinary appeal to the quarter sessions ; (ii.) the appeal 
to a superior court on a case stated by the justices out 
of sessions. 

(/) V. 24 & 25 Vict. c. 96, s. 108 ; c. 97, s. 6H. 

(g) 18 & 19 Vict. c. 126, s. 1 ; 26 & 27 Vict. ». 103, s. 1. 

(A) 24 & 25 Vict. c. 100, s. 44. 

(i) 11 & 12 Vict. C.43, ss. 19, 21. 

(/4) Ibid. s. 23 ; see also s. 24. 

(/) Ibid. ss. 18, 26 ; see also s. 24. 



472 



SUMMARY CONVICTIONS. 



sions. 



Appeal to i. The ordinary appeal from a conviction by the 

quarter ses- magistrate is to the quarter sessions. But it is not a 
matter of common right ; it must be given by express 
enactment, and is confined to the cases referred to in 
such enactment. Two of the Criminal Consolidation 
Acts (the Larceny, and Malicious Injuries Acts) confer 
a right to appeal when, on summary conviction, the sum 
adjudged to be paid exceeds £5, or the imprisonment 
adjudged exceeds one month, or where the conviction 
has taken place before one justice only (m). 

Some statutes provide that the convicting magistrate, 
at the time of the conviction, shall make known to the 
party his right to appeal (n). 

In some cases execution is not stayed by the appeal j 
but it generally is. The statutes generally require 
that notice of appeal should be given to the magistrate, 
or prosecutor, or both, and that recognizances should 
be entered into to prosecute and pay costs. The usual 
time of appeal is the next quarter sessions of the 
county or borough, and if no limits are specified, the 
appeal must take place within a reasonable time. 
Fresh evidence may be given on the hearing of the 
appeal. The magistrates may without fee explain the 
facts and grounds of their decision to the court (o). 
The decision of the quarter sessions is by a majority of 
votes, and is pronounced by the chairman. Such 
decision is conclusive, though erroneous, unless a case 
is reserved for the consideration of the Queen's Bench 
Division. 

Case for Instead of the appeal of which notice has been 

opinion of 

superior court. — 

(m) 24 & 25 Vict. c. 96, s. 110 : c. 97, s. 68. A reference to the tables 
in Oke's Magisterial Synopsis will shew in what cases there is appeal. 
There is no appeal among other cases in common assaults, larcenies under 
18 & 19 Vict. c. 126, or the Juvenile Offenders' Act, drunkenness, &c. 

(re) e.g., 17 Geo. 3, c. 54, s. 26. 

(o) 15 & 16 Vict. c. 26. 



SUMMARY CONVIOTIONS. 473 

given being heard by tbe quarter sessions, the parties 
may, by consent and order of any jndge of the superior 
common law courts, state the facts of the case in the 
form of a special case for the opinion of the superior 
court, and agree to abide by its judgment, which will 
have the same effect as if given by the quarter sessions 
on appeal (p). 

ii. If a party to an information determinable by case submitted 
iustices in a summary way is dissatisfied with their *■" superior 

3 . . , . '' "" ■ -./.i 1 court on point 

decision as being erroneous m point or law, he may of law. 
obtain the opinion of a superior court of law thereon 
by means of a case stated and signed by the justices 
for that purpose {q). But if the magistrates think 
that the application for the case is frivolous, they may 
refuse to state it, unless the attorney-general directs 
them so to do (r). This resort to a superior court 
operates as an abandonment of the right of appeal to 
the quarter sessions (s). Certain conditions have also 
to be complied with. The application must be made 
within three days after the decision of the magistrates, 
and the case must be transmitted to the superior court 
within three days after the appellant has obtained it, 
he giving due notice to the respondent. He must also 
enter into recognizances to prosecute the appeal with- 
out delay, and to pay costs, and to appear to receive 
judgment, unless the decision is reversed {t). 

When there is any fault or illegality in the commit- irregular 
ment alone, the proper remedy is for the defendant to cmmitmeat. 
sue out a writ of habeas corpus, which will be directed 
to the gaoler in whose custody the defendant is. 

The proceedings may be removed from the justices Certiorari. 



{p) 12 & 13 Vict. u. 45, ». II. 
(?) 20 & 21 Vict. u. 4a, s. 1. 
If) Ibid. ss. 4, 5. 
(s) Ibid. s. 14. 
(i) Ibid. S3. 1, 2. 



474 



SUMMARY CONVICTIONS. 



to the Queen's Bench Division, for the purpose of being 
examined hy that court, by writ of certiorari. Unlike 
the qualified right of appeal, this right lies of course 
as a matter of common law, unless expressly taken 
away by statute. As no writ of error lies on summary 
convictions, this is the only mode in which a revision 
of these proceedings by the superior court can be 
obtained (m). 

Proceedings It will uot be uecessary to do more than mention 

against magis- ^^^ certain proceedings (in some cases civil, in some 

trates. .... ^ , ° ^ . . . . . 

criminal) may be taken against justices for any irregu- 
larity or excess in their measures. As to criminal 
steps, it may be stated generally that, " wherever the 
. powers vested in justices for the summary execution of 
penal laws are exerted from corrupt or personal 
motives," the delinquent may be proceeded against by 
criminal information, and punished accordingly ; but 
"an information is never granted for an irregularity 
arising merely from ignorance or mistake " {x). 



Summary 
jurisdiction 
depends 
entirely on 
statute. 



In conclusion, we may again draw attention to the 
fact that the examination and punishment of offences 
in a summary manner by justices of the peace, without 
the intervention of a jury, is founded entirely upon a 
special authority conferred and regulated by statute in 
the case of each offence. No new offence is cognizable 
in this manner, unless expressly made so by statute ; if 
some statute does not authorize the summary proceed- 
ing, the offence must be dealt with in the ordinary way 
by indictment or information (y). 



(u) Paley, Sum. Con. 402. 
{x) Ibid. 482, 483. 
(t/) Ibid. 16. 



TABLE OF OFFENCES. 



THEIE PUNISHMENTS, STATUTES, &o. 



476 



TABLE OP OFFENCES. 





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477 



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TABLE OF OFFENCES. 



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TABLE OF OFFENCES. 



479 



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480 



TABLE OF OrFENCES. 



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TABLE OF OFFENCES. 



481 



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482 



TABLE OF OFFENCES. 



o 

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TABLE OP OFFENCES. 



483 



t>050 o 1-1 rH >Hrt<NiNeq oq m nnm •* -iHTHrHin lo 

t^ l> CO 00 00 00 OO 00 00 00 00 00 CO 00 00 00 00 00 00 -vH 00 00 

i-trHiH r-i r-i r~t -Hi-HiHrHiH rH pH i-HiHpH i-H rHrHr-tiH i-( 

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2 I 2 



484 



TABLE OF OFFENCES. 



»>!> 


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TABLE OP OFFENCES. 



485 



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INDEX. 



A. 

Abandoning Childeen, 176 

Abatement, 

demurrer in, 368 

plea in, 362 
Abatement op Nuisance, 132 
Abduction, 174 

of woman on account of her fortune, 174 

by force witli intent to marry, 175 

of girl under sixteen, 175 - 

knowledge of age, 176 
Abettors, 34, n. 

Abominable : v. Unnatusal Crime. 
Abortion : v. Miscarriage. 
Absconding Bankrupt, 116 

acoessort, 

distinguished from principal, 34 

iefore the fact, 34 

what answerable for, 35 

in manslaughter, 35, 163 

trial of, 35 

after the fact, 36 

by receiving stolen goods, 37 

wife as, 37 

trial and punishment, 37 

no accessories in treason nor in misdemeanor, 38 

accessories, where tried, 340 
Accident, an exemption from criminal responsibility, 28 
Accidental Homicide, 152 

Accomplice, 34, n. 

turning Queen's evidence, 359 
evidence of, 395 



490 



INDEX. 



Account ant-General : v. Patmastbb-Gbnebal. 
AoooDNTS, falsification of, 225, 253 
Accusing oe Crime : v. Threatening. 
Acquittal, 

how proved, 420 

consequences of verdict of, 426 

Acts oe Parliament : v. Statutes. 

Actual Bodily Harm, 179 

Adhering to the Sovereign's Enemies, 49 

Adjournment, 
of trial, 432 
in summary proceedings, 469 : v. Eemand. 

Adjudication or Bankruptcy, how proved, 421 

Administering, 

chloroform, &c., 181 
poison, &c., 181 
voluntary oaths, 83 

Administration op Justice, Libels on : v. Sedition. 

Administration of Goods of Felon, 446 

Admiralty, 

robbery ■within the jurisdiction of, is piracy, 42 

crimiaal jurisdiction of Court of, transferred to the Central 
Criminal Court, 288, n. 

offences committed within jurisdiction of, where tried, 341 
Adulteration of Pood or Drugs, 135 
Advertising Ebward fob Ebtubn of Stolen Peopbety, 93 
Affidavit, administering voluntary, 84 
Affirmation, 

false, 79 

of those objecting to oath, 391 : v. Oath. 
Affbay, 103 

aggravations, 103 

suppression and punishment, 103 

Aggravated : v. Compound Larceny. 

Age of Discbbiion, 26 

Agent, 

embezzlement by, 225 

trafllcking in property intrusted to his care, 226 

charging property so intrusted, 226 



INDEX. 491 

Agebbment to withdraw feom Prosecution, 432 

Aider by Verdict, 325 

Aiders and Abettors, 34, n. 

Aiding Prisoner to Escape, 75 

Alarm the Queen, attempt to, 53 

Aliens : v. Foreigners. 

Allegiance, seducing soldier from, 60 

Alpaca, 

larceny of, &c., 209 

injuring machines or manufactures, 267 
Altering, in forgery, 254 

Ambassadors, how far amenable to the criminal law, 32 
Amendment of Defects, 326 

Animals, 

larceny of, 193 

killing in order to steal carcase, skin, &o., 196 

killing, maiming, wounding, &c., 270 

Animus Purandi, 

possession of goods obtained with, 199 

what it is, 204 

must exist at time of taking, 204 

Apostact, 70 

Appeal, 

none ordinarily in criminal cases, 447 
under the Supreme Court of Judicature Act, 450 
from summary conviction to quarter sessions, 297, 471 
to superior court on case, 472, 478 

Appeal, Trial bt, 369 

Apprehension oe OrPBNDERS, rewards for, 311 : v. Arrest. 

Apprentices, assaults on, 185 

Aqueducts, destroying, 269 

Armed : v. Boildinq ; Smuggling. 

Army, 

desertion, 60 

mutiny in, 60 

offences in, 62 
Arraignment, 355 

standing mute at, 356 

insanity at, 357 



492 



INDIX. 



Ahray, challenge to the, 374 
Akeest, 

obstructing lawful, 77 

of debtors, 117 

of clergymen engaged in their duty, 185 

defined, 303 

with warrant (2. v.), 303 

without warrant, 308 
by constable, 308 
by private person, 309 

on hue and cry, 311 

rewards for diligence in, 311 

prirQege of witness from, 397 
Aebbst of Judgment, 429 
Aeson, 

definition of, 261 

proposed definition, 263, n. 

of churches, &o., 261 

of dwelling-houses, 261 

of shops, &c., 261 

of stations, &c., 261 

of pubhc buildings, 262 

of things in, against, &c., buildings, 262 

of crops, 262 

of stacks, 262 

of mines, 263 

of ships, 263 

of ships of war, 264 

of ships in port of London, 264 

act must be done unlawfully and maliciously, 264 

what is a setting-fire, 265 

the intent to defraud, 265 
Art, destroying works ofi &c., 272 
Asportation, must be proved in larceny, 203 
Assault, 

both a crime and a civil injury, 3, 178 

common assault, 177 

wide scope of the crime, 177 

distinguished from battery, 177 

punishment or compensation, 178 

summary jurisdiction in, 178, 460 

defences, 179 

aggravated assault, 179 



INDEX. 493 

Assault — continued. 

actual bodily harm, 179 

■wounding, 180 

grievous bodily harm, 180 

with intent to commit a felony, 181 

with intent to rob, 213 

to obstruct sale of grain, &c., 122 

in connection with wrecks, 183 

on revenue of&cers, 114 

on peace officers, 78, 184 

on clergymen, 184 

on game-keepers, 141 

on apprentices, 185 

on servants, 185 

on lunatics, 185 : v. Indecent. 

Assembly, unlawful, 100 

Assizes, 289 

when and where held, 289 

winter, 289, n. 

commissions under which the judges sit at, 290 

commissioners at, 291 

judges regulated by Supreme Court of Judicature Acts, 291, n. 

special commission, 292 

Atheists, formerly could not be witnesses, 390 

Attachment, 99 

Attaindbe, 364. 

Attaindbk, Bill op, 282 

Attempt, 

punishable, 16 
what is an, 16 

sometimes a felony, always at least a common law misde- 
meanor, 17 
verdict of, on indictment for completed offence, 17, 425 
punishment of, 17 
to injure or alarm the Queen, 53 
to murder, 166 
to procure miscarriage, 173 
to choke, &c., 181 
to steal, 204 

Atteitoancb of Witnesses : v. Witness. 

Attorney : v. Poweb of Attoenby ; Solicitor. 



494 INDEX. 

AuTEEFOis Acquit, 

plea of, 363 

what acquittal must be proved, 363 
AuTEEFOis Attaint, 364 
AtiTKEFOis Convict, 36 1 

B. 

Backing a Warrant, 306 
Bail, 

false personation of, 236 

what it consists in, 316 

in what cases may be allowed by magistrates, 316 

number and sufficiency of, 317 

refusing or delaying, 317 

excessive, 318 

bail after committal for trial, 318 

bail by the Queen's Bench Division, 318 

by justices at quarter sessions, 319 

by judges of assize, 319 

by coroners, 319 

Bailee, 

larceny by, 200 

goods stolen from bailee, ownership, how laid, 324 
Bank : v. Joint Stock. 
Bank Bill, 

larceny of, 192 

forgery of, 251 

offences relating to, 258 
Bank of England, ob Ireland, 

false dividend warrant, 251 
Bank Notes, 

larceny of, 192 

sometimes to be described as paper, 192 

forgery of, 251 

offences relating to, 258 

Bank op Sea or Eivbr, damagi ng, 268 
Banker, 

embezzlement by, 225 

trafficking in property intrusted for safe custody, 226 

Bankrupt, 

offences by, 115 



INDEX. 495 



Bankrupt — continued. 
absconding, 116 
prosecution of, directed by the Court, 117 

Bankexjptct Act, 

false declarations under, 84 

Baptism : v. Eegistee. 

Bae, 

trial at, 288 
plea in, 362 

Baek, setting fire to, 262 
Barn, setting fire to, 261 
Baeeatey, 

common, 90 

by solicitor, &c., 90 
Bareistbe : v. Cototbel. 
Battery, 177 
Battle, trial by, 369 
Bawdt-hotjsb : v. Beothel. 
Beast : v. Animal. 
Bbastiality : v. Unnatueal Ceimb. 
Beating, killing by, 164 
Bench Waeeant, 347 
Best Evidence, 412 
Betiing-hotjse, 131 
Bigamy, 127 

when a second marriage is not felonious, 127 

defence and evidence, 128 

punishment, 128 
Bill of Attaindee, 282 
Bill of Pains and Penalties, 282 
Bill of Exchange, larceny of, 192 
Bill op Indictment, 

before the grand jury, 342 

found true, or thrown out, 343 

if thrown out, may be preferred again, 344 

BlED, 

larceny of, 193 

killing, maiming, &c., 270 

BlETH : V. CONOEAIMBNT ; EeGISTBE. 



496 INDEX. 

Blackened Face, with intent, &c., 243 

Blaoklead, larceny of, 190 

Blasphemy, 71 

Blood, corruption of, aboUshed, 445 

Boat : v. Vessel. 

Bodily Fear : v. Pbae. 

Bodily Haem, 

doing actual, 179 

grievous, 180 
Boiling Water : v. Coekosivb Fluid. 
Bond, 

larceny of, 192 

forgery of, 251 
BoEOUGH Sessions, 298 

gi-ant of, 299 

Boundary, crimes committed within five hundred yards of, where 
tried, 338 

Boxing, death by, 164 
Brass : v. Metal. 
Beeaoh oe Peison, 75 

when a felony, when a misdemeanor, 76 
Beeaoh oe Trust : v. Embezzlement. 

Breaking, 

in burglary, 240 

actual, Mh 

constructive, 241 

breaking out, 242 

breaking, but no entry, guilty of attempt, 242 : v. House- 
bebaking. 
Bribery, 84 

to influence the conduct of one in oflSce, 85 

to procure a place or appointment, 85 

at elections, 

parliamentary, 86 
municipal, 88 

treating, 88 

undue influence, 88 

subsequent disqualification of candidates, 88 

time limited for prosecution, 331 
Beidgb, 

nuisance to, 133 

destroying, 269 



INDEX. 497 

Brokee, 

embezzlement by, 225 

trafficking in property intrusted to, 226 
Brothel, 

keeping, 134 

lodging thieves therein, &c., 219 

BuiLDfNG, 

being found at night with intent to break into, 243 

being in, by night with intent, &o., 243 

setting fire to, 261 

setting fire to property in, against, &c., 262 

malicious injury to, by gunpowder, &c., 266 

demolishing, 266 

tenant demolishing, 267 
Bull : v. Cattle. 
Buoy, interfering with, 268 
Bu&den of Proof, 407 
Burglary, 238 

defined at common law, 238 

under the Larceny Act, 238 

the time, 238 

the place, 239 

what is a dwelling-house, 239 

the residence necessary, 239 

the manner, 240 

the breaking {q. v.), 240 

the entry, 242 

breaking out, 242 

breaking, but no entry, an attempt, 242 

the intent, 242 

punishment, 243 

burglary distinguished from housebreaking, 244, 247 
Burning: v. Arson. 
Buying counterfeit coin at lower value, 65 



C. 

Cambridge University Courts, 299 
Canal, 

setting fire to building belonging to, 261 

destroying works, 269 
Capias ad Eespondendum, 348 

2 K 



498 INDEX. 

Capital Punishment, 438 
execution, 457 

Cards : v. Gaming. 

Carnal Knowledge, 

of girls; under age of twelve, 172 

under age of thirteen, 172 
by false representations, &c., procuring female under age of 
twenty-one to have, 172 

Carriage : v. Journey. 

Carrier : v. Bailee. 

Carrying Away, must be proved in larceny, 203 

Case 

before magistrates stated to superior court, 472 
on point of law, 473 

Cattle, 

stealing, 195 

killing, maiming, &c., 270 

Central Criminal Court, 292 
jurisdiction, 292 
when held, 292 
commissioners or judges, 292 

trial of murder or manslaughter under the Mutiny Acts, 293 
transferred jurisdiction, 293, 353 
sessions not interfered with, 293 
regarded as one county, 341 

Certificate, 

forgery of, 251, 252 

certificate of dismissal by magistrate for assault, 460 
for larceny, 462 

Certiorari, 

removal of indictment from inferior courts to Queen's Bench 

Division, 287, 351 
under what circumstances, 287, 351 
removal to Central Criminal Court, 293 
when the writ should be applied for, 351 
how obtained, 352 
removal of proceedings before magistrates, 473 

Challenge oe Jurors, 373 
form of, 373 
for cause, 373 
to the array, principal, or for favour, 374 



INDEX. 499 

Challenge of JvnoRS— continued. 

how made and tried, 374 

to the polls, principal or for favour, 375 

how made and tried, 375 

jurors ordered by the Crown to stand by, 376 

peremptory challenge, 376 

number allowed, 377 

reasons assigned for allowing, 377, n. 
Challenge to Fight, 103 
Chance Medley, 151 
Chancellob, slaying the, 50 
Chapel : v. Chukch. 

Characteb of Peisonbr, 

evidence of good, 411 
of bad, 409,411 

effect of evidence as to, 411 
Chaeaoter of Witness, 393 

what questions may be asked, 393 

proof of former conviction, 394 
Charge to the Grand Jury, 342 
Chattels : v. Goods. 
Chaud Medley, 151 

Cheating, 

at common law, 236 

statutes punishing particular deceits, 237 

punishment, 237 

Cheque, 

larceny of, 192 

obliterating or altering crossing on, 251 

Child, stealing, abandoning, exposing, 176 

Chloroform, administering, &c., 181 

Choke, attempting to, with intent, &c., 181 

Choses in Action, larceny of, 191 

Christianity, a part of the law of England, 71 

Chdrch, Chapel, &c., 

at common law might be the subject of burglary, 240 

sacrilege, 244 

setting fire to, 261 : v. Public Worship. 

Circuits, 289 

2 K 2 



500 



INDEX. 



ClKCUMSTANTIAL EVIDENCE, 416 

distinguished from direct, 416 

conclusive or presumptive, 417 
Civil or Cbiminal, test whether proceeding is, 4 
Civil Injueies 

contrasted with crimes, 2 

course to he taken when the act is also a crime //y 

false distinctions pointed out, 3 

narrow line separating from crime, 3 
Claim op Eight : v. Eight. 
Cleegtman, 

assault on, 184 

arrest of, 185 
Clbek of the Market, Court of, 300, n. 
Clerks, 

larceny by, 207 

embezzlement, 221 

proof of employment as, 222 
Clipping Coin, 65 

Coach, offences committed on, where tried, 339 
Coach-house, setting fire to, 261. 
Coal, 

larceny of, 190 

setting fire to, 263 
Codicil : v. Will. 
Com, 

offences relating to the, 63 

certain offences formerly treason, 47, 63 

some offences might be dealt with as false pretences, 63 

counterfeiting, 64 

colouring, washing, &c., 64 

impairing, 65 

defacing, 65 

buying or selling counterfeit at lower value, 65 

importing and exporting, 66 

uttering, 66 

after previous conviction, 437 

having in possession, &c., 67 

making, &c., coining tools, 67 

conveying out of Mint instruments, bullion, &c., 68 

testing suspected coin, 68 

search for, and seizure of counterfeit coin and tools, 68 

expenses of witnesses, 898 



INDEX. 



501 



CoLouBiNG, &0., Coin, 64 
Combinations : v. Conspikacy ; Trade. 
Commencement op Indictment, 323 
Commissions, 

at assizes, 290 

special, 292 

at Central Criminal Court, 292 

commissionebs at assizbs, 291 
Committal 

for trial, 315 

forms of committal, 31.5 
Common Assault : v. Assault. 
Common Bareatey : v. Baeeatey. 
Common Law, crimes at, 5 
Common Infoemee, 94 
Common Nuisance : v. Nuisance. 

Companies, 

public, embezzlement by directors, &c., 227 

receiving property and not entering in books, 228 

falsifying books, 228 

making false statements, &c., 228 

falsifying books of company wound up, 229 

Companies Act, 1862 .. 229 

Compassing 

death of sovereign, queen, or eldest son and heir, 48 
death, destruction, harm, &c., of sovereign, 51 : v. Felonious 
Compassing. 

Compensation by Peisoneb, 446 

Competency op Witnesses : v. Witness. 

Compound Larceny, 

distinguished from simple, 187 
cases of, 207 

Compounding Felony, 92 
theft bote, 92 

reward for return of stolen property, 93 
advertising reward, &c., 93 

Compounding Misdembanoe, 93 

Compounding Information on Penal Statute, 93 

Compulsion, as an exemption from criminal responsibility, 29 



502 



INDEX. 



OONOBALMENT 

of birth, 174 

verdict of, on indictment for murder, 174 
Concealment by Bankrupt : v. Bankrupt. 
Concealment op Documents, Wills, &c., 191, 192 
Concealment of Treason : v. Misprision. 
Concealment op Teeasueb Trove, 68 
Conclusion of Indictment, 327 
Confession 

on arraignment, 358 

before magistrate is merely evidence, 358 

when admitted in evidence, 414 
against whom, 415 

before magistrate, 415 
Confinement : v. Solitary Confinement. 

CONSPIEAOT, 123 

the combination the gist of, 123 

wide nature of crime, 124 

objects enumerated, 124 

not every combination to effect a tort is criminal, 125 

punishment, 126 

merged in felony, if carried out, 126 

Conspiracy and Protection of Property Act, 1875 . . 120 

Constable: v. Officer. 

Constructive Taking, 198 

Contempts or High Misdemeanors against the Sovereign and 
Government, 68 

Contempt of Court, 96 

direct, 96 

consequential, 97 

by whom committed, 97 

proceedings, 98 
Contract of Service, 

wilfully breaking, so as to deprive of gas or water, 121 
so as to endanger life, 121 
Contributory Negligence, not recognised in manslaughter, 163 
Conveyances, fraudulent, 237 
Conviction, 

forgery of, 252 

how proved, 420 

verdict entailing, 427 



INDEX. 503 

Co-PARTNEESHip, larceny by members of, 202 
Copies, when allowed in evidence, 412, 419 
CoppEB : V. Metal. 
Corn, 

servants taking master's, &c., 205 

setting iire to crops or stacks, 262 

Coroner, 

comt of, 299 
arrest by, 308 
bail by, 319 
inquisition of, 334 
proceedings before, 335 
committal for trial by, 336 

Corporate Bodies : v. Companies. 

Corporations 

may be guilty of crime, 31 

larceny of property of, by members, 202, n. 

Correction, killing by, 164 

CoBEOsrvB FLtriD, throwing at any person, &c., 182 

CoRKtTPT Practices Prevention Act, 1854 . . 86 

Corruption : v. Blood ; Bribert. 

Costs, 

in certain cases of Kbel, paid by prisoner, 111, 399 
on acquittal of offence under Vexatious Indictments Act, prose- 
cutor may be ordered to pay, 345, 399 
on certiorari, 353 
when paid by prisoner, 398, 446 
on summary proceedings, 471 : v. Expenses. 

Cotton, 

larceny of, in process of manufacture, 208 
injury to manufactures or machines, 267 

Counsel, 

order of speeches and examination, 381 

when incompetent to give evidence against client, 390 

functions of counsel for prosecution, 401 

for defence, 401 
requested by judge to defend prisoner, 431 

Counterfeiting Coin, 64 : v. Coin. 

Counterfeiting Trade-marks, 118 



504 INDEX. 

Counts, 

for distinct acts of stealing, 206 

when more than one count may be inserted, 327 

more than one offence in same count, 328 

charging different offences in different counts, 328 
in treason, 328 
in felony, 328 

felony and misdemeanor, 329 
in misdemeanor, 330 

count charging previous conviction, 330 
County Quarter Sessions : v. Quarter Sessions. 
County Property, how described in indictment, 324 
Court, Contempt of : v. Contempt. 
Courts of a Criminal Jurisdiction, 282 
Court Leet, 300, n. 
Court Martial, 60, 62 
Court Roll, forgery of, 252 
Cow, 

stealing, 195 

killing, maiming, &c., 270 
Credibility of Witnesses, 891 : v. Witness. 
Credit, 

bankrupt fraudulently obtaining, 116 
any person, 117 
Creditors, 

defrauding of, 115, 117 

false claims by, 117 
Crime, 

description thereof, 1 

contrasted with civil injury, 2 

proof that an act does not become a crime on account of its in- 
trinsic qualities, 2 

courses open, when an act is both a crime and a civil injury, 3 

false distinctions from civil injury pointed out, 3 

narrow line between the two, 3 

morality and crime, 5 

crimes at common law, 5 

by statute, 5 ' 

crime contrasted with offence, 7 

what are indictable crimes, 7 

completed crime punished more severely than attempt, 17, 145 : 
V. Prevention of Crime. 



INDEX. 505 



Criminal or Civil, test whether a proceeding is, 4 
Criminal Intention : v. Intention. 
Criminal Ebsponsibility : v. Responsibility. 
Crops, setting fire to, 262 
Cross-Examination, 405 : v. Examination. 
Crossed Cheque : v. Cheque. 
Crown Cases Eeserved, 

court for, 450 

proceedings in, 451 
Cultivated Vegetable Produce : v. Plants, 
Customs, offences relating to, 113 
Customs, false declarations as to, 84 
Customs Consolidation Act, 1853 . . 113 
Customs, general or particular, how proved, 419 
Cutting : v. Wounding, 



D. 

Dam, 

damaging, 268 

of pond, destroying, 270 
Damaging : v. Malicious Injury. 
Dead Animals, subjectsof larceny, 193 

Deaf and Dumb Persons, by presumption of law, are idiots, 21 
Death, Eegisteb op : v. Ebgisteb. 
Death, Punishment of, 438 : v. Execution. 

Debentures, 

larceny of, 192 
forgery of, 251 

Debtors, 

offences by, 115 

arrest of, 117 
Debtors Act, 1869 . . 115 
Deceased, 

ownership of goods of, how laid, 324 

depositions of deceased witnesses, 414 
Declarations, False : v. False Declarations. 
Declaration of Title Act, 1862 .. 253, 259 
Declaration : v. Affirmation. 



506 



INDEX, 



Deed, 

stealing, destroying, obliterating, &c., 191 

forging, 251 

how proved, 421 
Deek, 

hunting, MUing, &c., 142, 194 

having in possession skin, &c., of, 194 

Defacing Coin, 65 

Defects 

in indictment, 325 
amendment of, 326 
formerly demurrer in abatement to formal, 368 

Defence 

in forma pauperis, 431 

by counsel at request of judge, 431 

Defendants, joinder of two or more, 331 

Defilement : v. Carnal Knowledge. 

Dbliveet : V. Labcbnt. 

Demanding Monet, by forged instrument, 259 : v. Thbeats. 

De Medietate LiNGua;, Juet, 
at University Courts, 800 
formerly on trial of alien, 379 

Dementia, 

naturalis, or a nativiiate, 21 
accidentalis, or adventitia, 21 
affectata, 25 

Demtibkeb, 

not strictly a plea, 360 

definition of, 367 

form of, 367 

judgment on, 367 

reason why it seldom occurs in practice, 368 

demurrer in abatement, 368 

Depose Sovereign, Compassing to : v. Felonious Compassing. 

Depositions 

tateeu before magistrates, 313 

accused may have copies, 319 

deposition of deceased or ill persons read at trial, 414 

of person whose death is apprehended, 421 

Dbeivativb Evidence, 412 : v. Hearsay. 



INDEX. 



507 



Dbsbktion, 60, 62 

inciting thereto, 60 

Desteoting : v. Machinbky ; Mines ; Ships'; Tbees ; Wills, &o. : v. 
Malicious Injuet. 

Detainee, forcible, 112 

Dilatory Pleas, 360 

DiEECTOES : V. Companies. 

Disable, -wounding, &c., with intent to, 180 

DiSOHAEGE BY MAGISTEATB, 315 

DiSCHAEGE OF JuEY ON NON-AGEBEMENT, 424 

DisFiGUEE, wounding, &c., with intent to, 180 

DiSOEDBELY HOUSB, 133 

Distringas, 348 

DisTUEBiNG Public Worship, 72 

Dividend Warrant, false, 251 

Dock, 

stealing from, 209 

setting fire to dock buildings, 261 

destroying works, 269 

Document, stealing, obliteratiag, &c., 191, 192 

Dog, 

stealing, 195 

kiUing, maiming, &c., 270 

DoLi Incapax, infant when presumed to be, 26 
DoMiT.a! Natue*, Ajstimals, larceny of, 193 
Dredging : v. Oysters. 
Drilling, 

illegal, 61 

time limited for prosecution, 331 
Driving, wanton and furious, 135 
Deown : V. Attempt to Murder. 
Drugs, 

adulteration of, 135 

administering stupefying, &c., drugs, with intent, &c., 181 

Drunkenness, 

no excuse for crime, 25 
when it is to be considered, 25 
involuntary, 26 



508 INDEX. 

DnVKKENNSsa— continued. 

a disease, 26 

punishable on summary conviction, 138, n. 
DoEii, killing in a, 164 
Dumb : v. Deaf. 
Duplicity, count bad for, 328 

DUKBSS PEE MiNAS, 29 

Dwelling-house, 

what is a, under the Larceny Act, 239 

part let off, 240 

entering at night with intent to commit felony, 243 

being found in, by night, armed, &c., 243 

being found in, by night, with intent to commit felony, 243 

housebreaking (q. v.), 244 

stealing in dwelling-house to amount of £5 . . 245 
with menaces, 245 

the goods must be under the protection of the house, 245 

setting fire to dwelling-house, 261 

damage, &c., by explosion, 266 

demolishing, 266 

tenant demolishing, 267 
Dying Declaration, when received in evidence, 421 

E. 

East India Bonds, forging, 251 

Effigy, hanging in. 111 

Election : v. Municipal, Paeliambntaey. 

Election, forging documents relating to, 252 

Election, if too many acts are alleged in indictment for larceny, 
206 

Elements of a Crime, 12 

Elisors, 374 

Embezzlement, 

definition of, 221 

distinguished from larceny by clerks or servants, 221, 246 

the employment as clerk or servant, 222 

the receipt for, &c., the master, 223 

the unlawful appropriation, 223 

three distinct acts within six months may be charged, 224, 
328 



INDEX. 509 

Embezzlement — continued. 

verdict of larceny on indictment for embezzlement, and vice 

versa, 206, 224 
punishment, 225 
summary jurisdiction, 225, 462 
embezzlement by public ofllcers, 222 

by bankers, mercbants, brokers, solicitors, agents, factors (j. v.) 

225 
by trustees, 227 
by directors, officers, and members of public companies (g. v.) 

and corporate bodies, 227 : v. Bankrupt ; Post Office. 

Embbaoert, 89 

Endangering safety of railway passengers, 183 

Enemies, adhering to the Sovereign's, 49 

England, Bank op : v. Bank of England. 

Enlistment : v. Foreign Enlistment Act. 

Entering, in burglary, 242 : v. Dwelling-house. 

Entry, forcible, 112 

Error, 

writ of, 448 

jurisdiction in error under Supreme Court of Judicature Acts, 
450 

Escape, 74 

distinguished from breach of prison and rescue, 74 
allowed by officers, 74 

by private individuals, 75 
aiding to, 75 : v. Penal Servitude. 

Essentials op a Crime, 12 

Estreat : v. Eecognizances. 

Evidence, 

definition of, 407 

burden of proof on prosecution, 407 

what must be proved, 408 

what may not be given in evidence, 409 

evidence as to other offences, 409 

when allowed, 410 

evidence of good character, 411 

of bad character, 411 

effect of evidence of character, 411 

best evidence must be given, 412 

as to written documents, 412 



510 



INDEX. 



Evidence — continued. 

hearsay no evideiice, 412 
why rejected, 413 
when it may be given, 413 
deposition of those ill or deceased given in evidence, 414 

confessions, 414 

confession before magistrates, 415 

circumstantial or presumptive evidence distinguished from 
direct, 416 

circumstantial evidence, conclusive or presumptive, 417 

presumptions classified, 418 

written evidence, 419 

records, 419 

Acts of Parliament, 419 

other records, 419 

previous conviction, how proved, 420 

matters quasi of record, 420 

perpetuating the testimony of witness whose death is appre- 
hended, 421 

written documents of private nature, as deeds, 421 

handwriting, how proved, 422 

points in which rules of evidence in civil and criminal cases 
differ, 423 
Examination 

of witnesses, by grand jury, 343 

order of examination by counsel, 381, 400 

what witnesses must be called, 400 

ordering witnesses out of court, 400 

functions of counsel for prosecution, 401 
for defence, 401 

rules founded on principle that witness is favourable to party 
calUng him, 402 

exanunation-in-chief, 402 

questions must be relevant, 402 

leading questions not allowed, 402 
exceptions, 403 

witness must testify from own knowledge, 404 

evidence of experts, 404 

contents of written documents, how proved, 404 

witness proving hostile, 404 

cross-examination, 405 

re-examination, 406 

questions put through judge, 406 

objections to questions, how made, 406 : v. Evidence. 



INDEX. 511 

Exchequer Bills, Bonds, and Dbbentubbs, 

forging, 251 

offences relating to, 257 
Excise, false declarations as to, 84 
Excusable Homicide, 150 

distinguislied from justifiable homicide, 150 

homicide in self-defence, 151 

by misadventure, 152 

in fighting, 164 

by correction, 164 

whilst doing another act, 165 
Execution op Ceiminal, 457 : v. Justifiable Homicide. 
Execution oe Deed, how proved, 422 
Exemptions from crinainal responsibility, 19 
Ex-Officio Infobmation : v. Infoemation. 
Expedition, Illegal : v. Foreign Enlistment Act. 
Expenses op Witnesses, 

for prosecution, in felony, 397 
in misdemeanor, 398 

on summary conviction, 398 

of witnesses for defence, 398 

where prisoner pays expenses, 398 : v. Costs. 
Expeets, 

evidence of, 404 

as to handwriting, 255 
Explosive Substances : v. Gunpowdee. 
Exporting Countbefeit Coin, 66 
Exposing Children, 176 
Express Malice, 14 

in murder, 159 
Extortion, 95 : ■;;. Threats. 
Extraneous Circumstances often determine the degree of guilt, 

145 



Fabrication, what will constitute in forgery, 254 

PACTI PRiESUMPTIO, 418 



Factor, 

embezzlement by, 225 
charging property intrusted, 226 



512 INDEX. 

False Declarations, 84 

under Land Transfer Act, 259 
under Declaration of Title Act, 259 

False Imprisonment, 186 

False Oaths and Affirmations, 78 : v. Perjury. 

False Personation : v. Personation. 

False Pretences, 

obtaining goods or money by means of, 230 

some coining offences might be dealt with as, 63 

hard to distinguish from larceny and from non-criminal lie, 

200, 230, 246 
on indictment for larceny not acquittal because it turns out to 

be false pretences, 230, 233 
the pretence must be of an existing fact, 231 
what misrepresentation amounts to, 231 
exaggeration, 231 
breach of warranty, &c., 231 
false pretence need not be expressed in words, 232 
when defendant should be indicted for forgery, 232 
the intent to defraud, 233 
need not be to defraud a particular person, 233 
evidence of subsequent or prior obtaining, 233 
punishment, 233 

fraudulent winning at play punished as, 233 
inducing by fraud the execution of valuable securities, 234 

False Signals : v. Signals. 

False Statements as to public companies, circulating, &c., 228 

False Weights and Measures : v. Weights and Measures. 

Falsification of Accounts, 225, 253 

Falsification of Books 
of public company, 228 
of company wound up, 229 

Farm, setting fire to, 261 

Fear of Excessive and Unlawful Harm, 

as an exemption from crimilial responsibility, 29 

bodily fear, in robbery, 210 

" FelonioiI; oepit et aspoetavit " to be used in indictment for 
larceny, 325 

Felonious Compassing to depose sovereign, levy war, procure 
foreign invasion, 54 

" Feloniously " applied by statute to an act makes it a felony, 9 



INDEX. 513 

Felony, 

distinguished from misdemeanor, 8 

origin of the term, 9 

further points in which it differs from misdemeanor, 10 

compounding, 92 

misprision of, 94 

general punishment for, by statute, 435 
otherwise, 435 

after previous conviction, 436 
Feme Covert : v. Wife. 
Pee« Natue^!, Amimals, larceny of, 193 
Fictitious Plaintiff, suing in name of, 90 
Fight, Challenge to, 103 
Finding, larceny on, 203 
Fine, 

punishment by, 440 

how enforced, when imposed by magistrate, 471 
Fire : v. Arson. 
Fish, 

taking or destroying, 194 

destroying in pond, 270 
Fishpond, malicious injury to, 270 
Fixtures, larceny of, 189 
Floodgate : v. Dam. 
Food, adulteration of, 135 
Force, in robbery, 211 
Forcible Abduction, 175 
Forcible Entry and Detainee, 112 
Forcing Seamen on Shore, 184 
Foebign Enlistment Act, 58 

illegal enlistment, 58 

illegal shipbuilding, 59 

illegal expeditions, 59 

trial, where, 59 

Foeeionbes, 

not exempt from criminal responsibility, 28, 31 

formerly might demand trial by jury de medietate linguse, 379 

FOEFEITUEE, 

abolition of, on conviction, 10, 445 

of oEBce, on conviction for treason or felony, 445 

2 L 



514 INDEX. 

FOEGBET, 

definition of, 249 

connection -with false pretences, 232, 249 

instruments dealt with in the Forgery Act enumerated 
(v. various titles), 250 

other cases provided for by statutes, 252 

forgery at common law only a misdemeanor, 253 

nature of the instrument forged, 253 

the fabrication necessary, 254 

alteration, 254 

proof of handwriting, 255 

the intent to defraud, 255 

no person need be defrauded, 256 

the uttering, 256 

when a tender will sufBce, 256 

kindred offences relating to Exchequer bills, &c., 257 
to bank notes, 258 

demanding, &c., by means of forged instrument, 259 
FoEMA Paupbeis : v. PaupeeiS. 
PoEMAL Defects : v. Defects. 
FoEMEE Conviction : v. Peeviotjs Conviction. 
Found, larceny of things, 203 
Fox's Act, 110 
Feamb : V. Machineet. 
Feank-plbdqe, view of, 300, n. 
Feadutjlbnt BANKEUPToy : v. Bankeupt. 
Feattdulbnt Conveyances, 237 
Feuit, 

larceny of, 190 

destroying, 271 
Funds, false entry, &c., in, 251 
FuEious Deiving, 135 
FuEZE, setting fire to, 262 



Q. 

Game, 

offences relating to, 140 

ground of special legislation, 140 

taking or destroying game or rabbits by night, 140, 194 

entering, &c., for purpose of taking, &c., 140 

punishment, 141 



INDEX. 515 

Game — continued. 

apprehension of oflfenders, 141 

three or more armed by night for purpose, &c., 141 

time limited for prosecution, 141, 331 

search for game, guns, &c., 142 

taking hares, &c., by night, 142 

summary convictions, 465 : v. Deee ; Spring Gun. 
Gaming, 129 

•winning by fraud, 129 

in public places, 129 
Gaming-house, 130 

steps taken by legislature to suppress, 130 

betting-house, 131 

evidence as to character of the house, 131 

Gaol Deliveey, 
court of, 289 
commission of, 291 

Gas, by wilful breaking contract of service, depriving of, 121 

Gate, destroying, 269 

General Issue, 

of not guilty,. 365 

advantage of pleading this, 365 

what the prosecutor must prove, and what may be urged by 

the prisoner, 365 
form of, on record, 366 

General Quarter Sessions : ■;;. Quarter Sessions. 

Girl : v. Abduction; Carnal Knowledge. 

Glass : v. Fixtures. 

Good Behaviour, 

security for, 276, 278 

forfeiture of recognizances, 276, 279 : v. Security. 

Good Character : v. Character. 

Goods, 

stolen, how disposed of by court, 433 
of felon, how administered, 446 

Government, 

offences against the sovereign and, 45 

various contempts and high misdemeanors against, 68 

Grain, assaults with intent to obstruct sale of, &c., 122 

2 L 2 



516 INDEX. 

Grand Jubt, 

cannot ignore bill on ground of insanity, 24 

disclosing evidence to prisoner, 89 

prosecution with or without previous finding by, 321 

how chosen, 342 

sworn and charged, 342 

examination of witnesses by, 343 ■ 

finding by, 343 

qualification at sessions, 370 
Grand distinguished from Petty Larceny, 196 
Grabs, setting fire to, 262 
Great Seal, forging, 250 
Grievous Bodily Habm, 180 
Guilty, Plea of : v. Confession. 
Guilty Knowledge, 

in receiving stolen goods, 217 

in uttering forged instrument, 257 

evidence of other offences allowed in proof of, 410 
Gunpowder, 

to harm, &c., any person by explosion of, 182 

to apply to any person with intent to burn, &o., 182 

placing in, &c., vessels with intent, &c., 182 

damaging houses by, 266 
vessels by, 268 

H. 

Habeas Corpus, removal of defendant to plead, 346 
Habeas Corpus ad Testificandum, 397 
Habeas Corpus Act, 

copy of warrant of commitment to accused, 315 

early trial, 319 
Habitual Criminals, 

acts for which punishable, 281 

police supervision, 281 
Hair, injury to machine, or manufactures, 267 
Handweiting, 

proof of, in forgery, 255 

how proved, 422 
Hanging in Effigy, 111 
Harbour : v. Dock. 



INDEX. 517 

Harbouring Thieves, 219, 281 
Hard Labour, 

punishment of, 440 

two classes, 441 

Habe : V. Game. 

Harm, fear of excessive and unlawful, an exemption from criminal 
responsibility, 29 : v. Bodily Harm. 

Hay, setting fire to, 262 

Health, offences against public, 127 

Hearing of the Case, 380 : v. Trial. 

Hearsay, 

no evidence, 412 

reason for rule, 413 

wben allowed, 413 
Heath, setting fire to, 262 
Heiress, abduction of, 174 
Hemp, larceny of, in process of manufacture, 208 
Heresy, 78 

High Court oe Justice: v. Supreme Court of Judicature Acts. 
High Court of Parliament, 282 

High Seas, 

offences against the law of nations committed on, 41 

robbery on, or piracy, 42 

offences committed on, where tried, 341 
High Treason, 45, n. : v. Treason. 
Highways, nuisances to, 133 
Homicide, 147 

malice presumed, 147 

justifiable (q. v.), 147 

excusable (q . v.), 150 

felonious, 153 

suicide, 153 

murder, 155 

manslaughter, 160 

whether murder, manslaughter, or non-felonious, distinguished 
in several cases, 164 

classification according to the various states of mind, 167 

HoPBiNDS, destroying, 272 

Horse, 

stealing, 195 

killing, maiming, &o, 270 



518 INDEX. 

Hostility of Witness, 404 

House, setting fire to, 261 : v. Dwelling-house. 

HOUSEBEEAKING, 

distinguislied from burglary, 244, 247 

definition, 244 

punislunent, 244 

on indictment for burglary', verdicifof, 244 

distinguished from larceny in dwelling-house, 245, 247 
Housebreaking Instrument, being found at night with, 243 
Hub and Get, arrest on, 311 
Husband 

cannot steal property of wife, 202 

cannot be witness against wife, 388 
except in two cases, 388 



Identification of Offender, 280 

Idiot, exempt from criminal responsibility, 21 

Idle and Disorderly Persons, 136 

Ignorance, 

sometimes amounts to malice, 14 

as an excuse for crime, 27 

of law never excuses, 28 

of fact, when it excuses, 28 
Ignoring the Bill, 343 
Illegal : v. Unlawful. 
Illegal Training and Drilling, 61 
Illness 

of juror, 378 

of witness, 414 

of prisoner, 432 
Imagining : v. Compassing. 

Immorality, not punished, as such, by the criminal law, 4, 70 
Impairing Coin, 65 
Impeachment, 283 

who are liable to, 283 

pardon not pleadable to, 283 

proceedings and trial, 283 
Impeding Escape from Wreck, 183 



INDEX. 519 

Implied Malice, 14 

in murder, 160 
Impoeting Counterfeit Coin, 66 
Impostors, religious, 72 
Imprisonment, 

punislunent of, 439 

usual limits of, 439 

pending trial, 815 : v. False Imprisonment. 
Inciting 

to commission of crime, 36 

to desertion or mutiny, 60 
Incompetency : v. Witness. 
Incorrigible Eogub, 137 
Indecent Assault, 

on females, 172 

on males, 173 
Indecent Conduct, &c., 129 : v. Obscene. 
India Bonds, forgery of, 251 
India Stock, personating owner of, 235, n. 
Indictable Chimes, 7 
Indictment, 

definition of, 322 

when it lies, 322 

form of, 322 

example of, 323 

the commencement, 323 

the statement, 323 

defendant's name, 323 

ownership of property, 323 

statement of time, 324 
of place, 325 
of facts, intent, &c., 325 

technical words, when to be used, 325 

defects ia, 325 

amendment of defects, 326 

the conclusion, 327 

insertion of more than one count, 327 

charging more than one offence in the same count, 328 

different offences in different counts, 328 
in treason, 328 
in felony, 328 

felony and misdemeanor 329 
in misdemeanor, 330 



520 INDEX. 

Indictment — coiMnued. 

count for previous conviction, 330 

joinder of defendants, 331 

cases in which time is limited for preferring, 331 

how drawn up and indorsed, 332 

before the grand jury, 342 

finding of grand jury, 343 

consequences of being thrown out, 344 

Vexatious Indictments Act, 344 

Indictment bbfoee House of Pebes, 284 

Individuals, offences against, 144 

Indorsement, 

fraudulently inducing, 234 
forging, 251 

Industrial School, 444 

Infancy, 

when exempts from criminal responsibility, 26 

three ages to be considered, 26 

infancy of witness as a ground of incompetency, 389 
Inpokmation, 

definition of criminal, 332 

other uses of the term, 332, n. 

information ex officio, 332 

example of, 333 

iaformation by Master of the Crown Ofiice, 333 

proceedings, 334 

how tried, 334 

process on, 349 
Information in Summary Proceedings, 467 
Information on Penal Statute, compounding, 93 
Injure, attempt to, the Queen, 53 
Injury to Property, 261 : v. Malicious Injury. 
Inland Revenue Stamps, forging, 252 
Inn, disorderly, 134 
Innuendo, in libel, 109 
Inquisition of Office, 322 : v. Coroner. 

Insanity, 

an exemption from criminal responsibility, 20 
medical and legal views difler, 20 
varieties of, 21 



INDEX. 521 

Insanity — continued. 

partial or total, 21 

permanent or temporary, 21 

three stages in the history of, 21 

the existing law as declared in M'Naughten's Case, 22 

medical eyidehce, 23 

trial in cases of, 24 

is a bar at any stage to further proceedings, 25 

appearing at arraignment, 357 

reprieve, if after judgment, 453 

insanity of witness, a ground of incompetency, 389 
Insurrection against the Sovereign, 49 
Intent 

in larceny, 204 

in false pretences, 233 

in forgery, 255 

in malicious injuries, 265 
Intention 

an essential of crime, 12 

what it is, 12 

contrasted with will, 12 

determines whether an act is criminal, 13, 15 
though not the sole gauge of liability, 16 

naked intention not punishable, except in treason, 15 

criminal intention, or malice : v. Malice. 
Interrogation of Prisoner, 387 
Intimidating Parties or Witnesses, 89 
Invasion, procuring foreign, 54 
Invito Domino, in larceny, taking, 197 

iNVOLTTNTARy, 

meaning of the term, 12 

acts not punishable, 19 
Irresistible Impulse, 23 
Iron : v. Metal. 
Issue : v. General Issue. 



Jervis's Acts, 466 
Joinder of Counts : v. Counts. 
Joinder oe Dependants, 331 
Joint Owner, larceny, &o., by, 20a 



522 



INDEX. 



Joint Stock Banking Company, goods of, ownership, how laid, 
324 

Joint Tenant, larceny by, 202 

Journey, offences committed on, where tried, 339 

Judges, 

slaying the, 50 

at assizes, 290 

at the Central Criminal Court, 292 

bail by, 319 
Judgment, 429 

arrest of, 429 

postponed, 429 

where defendant is not before the court, 429 

how given, 430 

reversal of: v. EbvbrsaIj. 
Judgment op Magistrate on summary conviction, 470 

JUKIS PEiBSUMPTIO, 418 

Juris et de Jure Pr«sumptio, 418 
Jurisdiction, plea to the, 361 
Jurors : v. Jury. 
Jury, 

contempt of court by, 97 

trial by, 369 : o. Embracery ; Grand Jury ; Petty Jury. 
Jury op Matrons, 453 
Justice, Public : v. Public Justice. 
Justice op Peace : v. Magistrate. 
Justipiable Homicide, 147 

in execution of criminal, 147 

by oflScer in execution of duty, 148, 166 

in prevention of crime, 149 

in cases of rape, &c., 149 

distinguished from excusable homicide, 150 
Juvenile Offenders, 465 

summary conviction in cases of simple larceny, 465 

dismissal of case, 466 

where summary proceedings cannot be resorted to, 466 

K. 

Keeping the Peace, 
security for, 275, 278 
forfeiture of recognizances, 276, 278 
recognizances, general or special, 278 : v. Security. 



INDEX. 523 

Killing, animals, 270 : v. Homioidb. 

Knowledge : v. Caknal Knowledge ; Guilty Knowledge. 

L. 
Laboue : V. Hard Labodb. 
Land : v. Eeal Peopeett. 
Land Transfer Act, 1875 

forgery against, 253 

offences against, 259 
Laeoent, 

definition of, 187 

simple and compound distinguished, 187 

what things may be the subjects of, 188 

at common law, only personal goods, 189 

law as to things real, 189 

severance, &c., makes personal goods, 189 

materials of buildings, fixtures, &c., 189 

ore or coal from mines, 190 

trees, 190 

plants, &c., 190 

deeds, &c., 191 

choses in action (including cheques, &c.), 191 

animals, 193 

deer, 194 

hares and rabbits, 194 

fish, 194 

oysters, 195 

dogs, 195 

horses, cows, sheep, &c., 195 

killing animals to steal carcase, skin, &c., 196 

the value of the thing stolen, 196 

grand and petty larceny, 196 

ownership of goods, how laid, 197 

the wilfully wrongful taking possession, 197 

if claim of right, no felony, 197, 204 

actual taking, 197 

constructive taking, 198 

where the right of property, as well as of possession, is parted 
with, 198 ~ 

authority of servant to part with property or possession, 199 

where the possession is obtained animo furandi, 199 

ring dropping, 199 

narrow line separating larceny from false pretences, 200, 230, 
246 



524 



INDEX. 



Lakceny — cont inued. 

where the possession is obtained lawfully and hona fide without 

any fraudulent intent in the first instance, 200 
in cases of bailment, 200 

where the delivery does not alter the possession in law, 201 
bare use does not divest of possession, 202 
the taking must be of another's goods, 202 
by joint tenant or tenant in common, 202 
by members of a corporation, 202, n. 
by husband or wife, 202 
larceny of things found, 203 
the taking physically regarded, 203 
asportation, 203 
attempt, 203 
animus farandi, 204 

larceny distinguished from trespass, 204 
need not be lucri causa, 205 
servants taking master's corn, &c., 2 '5 
counts for distinct acts of stealing, 206, 329 
verdict of embezzlement on indictment for larcenv, and oke 

versa, 206, 224 
place of trial, 206, 338, 339 
punishment, 207 

after previous conviction, 436 

in case of tenant or lodger, 207 

of clerks or servants, 207 
larceny distinguished from embezzlement, 221, 246 
Compound or aggravated larceny, 207 

of goods in process of manufacture, 208 

from vessels, docks, &c., 209 

from wrecks, 209 

by those in the public service, constables, &c., 209 

stealing from the person, 213 

in relation to post-ofSce, 214 : v. Dwelling-house ; 

BOBBEKT. 

verdict of larceny on indictment for embezzlement, and vice 

versa, 206, 224 
on indictment for false pretences not acquittal because it 

turns out to be larceny, 230 
count for receiving may be added, 219, 329 
Summary jurisdiction in larceny, 461 

where the taking is not indictable, 461 
where it is indictable, and the ground of the summary 
jurisdiction is the smallness of the extent of the crime, 
462 



INDEX. 525 

Larceny — continued. 

Summary jurisdiction in — continued. 
only by consent of accused, 463 

where the accused pleads guilty and consents to the sum- 
mary disposal of the case, 463 
proceedings arid effect of conviction, 464 
juvenile offenders, 465 

Laudanum, administering, &c., with intent, &c., 181 

Law op Ceimbs, 6 

' of Criminal Procedure, 6 
Law ov Nations, offences against, 41 
Lead : v. Metal. 

Leading Questions, rules as to, 402, 405 : v. ^Examination. 
Letter : v. Threatening. 

Levying War against the Sovereign, 49 

direct or constructive, 49 : v. Felonious Compassing. 
Lewdness : v. Indecency. 

Libel, 

both a crime and a civil injury, 3 
an offence against the public peace, 105 
definition of, 105 

civil and criminal proceedings, 105 
when an indictment will lie, 106 
when it will not, 107 
truth of the libel, 106 
privileged communications, 108 
form of libel, 109 
publication of, 109 
proof of malice, 109 
what must be proved, 109 
the province of the jury, 110 
Fox's Act, 110 

who are criminally liable, 110 
newspaper proprietors, &c., 110 
punishment, 111 
costs. 111, 399 

blasphemous libel : v. Blasphemy. Seditious Libel : v. Sedi- 
tion. 

Libel, threatening to publish^ &o., in order to extort, 112 
Licence op Marriage, forgery of, 252 
Licence under Penal Servitude Acts, 
regulations as to holders of, 280, 455 



526 INDEX. 

Licence undbk Penal SEEViTtTDB Acts — continued. 

for what forfeited, 455 

offences with regard, to, 455 

remission of part of sentence follows as a matter of course, 456 
Light : v. Signal. 

Limitation of Time foe Peosecution ; v. Time. 
Linen, 

larceny of, in process of mannfacture, 208 

injury to machines or manufactures, 267 
Liquidation : v. Bankeupt. 
Locus in quo, view of, by jury, 432 
Lock, destroying, 269 
LoEGEES, larceny by, 207 
Lodging Thieves, &c., 219 
Loom : v. Maohineet. 
LoED High Stewaed, 

court of, 286 

at Oxford or Cambridge, 300 

president on impeachment of peer for high treason, 284 
on indictment of peer, 285 : v. 299, n. 
LoEDS, House of : v. Pebes. 
Lost Goods, larceny of, 203 

LOTTEEIES, 134 

Lucei Causa, in what sense taking in larceny must be, 205 
Lunatics, 21 

assault on, 185 : v. Insanity. 



M. 

Machineey, 

demolishing, 266 

damaging, if used in certain manufactures, 267 
used in others, or in agriculture, 267 
Madness, 21 : v. Insanity. 
Magisteatb, 

slanderous words uttered to, 56 

false declarations before, 84 

contempt of court by, 97 

issue of warrant by, 304 

summons, 304 

information to, 305 



INDEX. 527 

Magistbatb — continued. 
arrest by, 308 
proceedings before, 313 
examination, 313 
depositions, 313 
binding over witness, 314 
remand, 314 

discharge or committal, 315 
bail, 316 
the sureties, 317 
refusing or delaying bail, 317 
excessive bail, 
proceedings against, 474 : v. Summary Conviction. 

Mail, offences with regard to, tried in any county through which it 
passed, 338 : v. Post Office. 

Maim, 

wounding, &c., with intent to, 180 
animals, 270 

Maintenance, 90 

what acts do not amount to, on account of relationship, 91 
curalis, ruralis, 91, n. : v. Champeetj. 

Mala in se and Mala quia Pkohibita, 5 

as a test of the responsibility of ambassadors, 32 

the distinction noticeable in offences against public trade, 113 

Malice, 

equals, in legal signification, criminal intention, 13 

when it must be. directly proved, 13 

when presumed, 14 

active or positive, passive or negative, 14 

express or implied, 14, 159 

danger of entertaining the moral signification, 15 

absence of, exempts from criminal responsibility, 19 

presumed in homicide, 147 

aforethought (^prepense), or murder malice, 158 

Malicious Injury : v. Arson. 
to houses by explosion, 266 

by demolishing, 266 

in the case of tenants, 267 
to manufactures and machinery, 267 
mines, 267 
vessels, 268 
wrecks, 268 



528 



INDEX. 



Malicious Injury — continued. 
sea and river banks, 268 
bridges, viaducts, and aqueducts, 269 
turnpikes, 269 
walls, gates, &c., 269 
railway trains and telegraphs, 269 
ponds and fish, 270 
animals, 270 
trees, 271 
plants, 271 
hopbinds, 272 
works of art, 272 
general provision, if damage exceeds £5 . . 272 

if it does not exceed £5 .. 272, 464 
making a dangerous or noxious thing with intent, &c., 273 
not necessary to prove malice against the owner of the pro- 
perty, 273 
no defence that the offender was in possession, 273 
general intent to defraud will suffice, 273 
summary jurisdiction, 464 

ManAGBE : V. COMPANIBS. 

Manganese, larceny of, 190 

Manslaughtbb, 160 

moral character varies widely, 160 

voluntary, 161 

the instrument used, 161 

distinguished from homicide se defendendo, 152, 162 

involuntary, 162 

negligence, 163 

accessories before the fact, 35, 163 

punishment, 163 

by fighting, 164 

by correction, 165 

while doing an unlawful act, 165 

a dangerous act, 165 
of oflcers of justice, 165 
by officers, 166 
states of mind constituting manslaughter, 168 

Man-teap, setting, 142 

Manufaotubes, 

offensive or dangerous, are nuisances, 133 
larceny of goods in process of, 208 
malicious injury to, 267 



INDEX, 529 

Marines : v. Aemy. 

Maebiage, 

offences connected with, 127, 128, n. 

forging licence or certificate, 252 : v. Rbgistek. 

Married Woman : v. Wife. 

Master, still in possession, though goods intrusted to servant, 201 

Materiality : v. Perjury. 

Matrons, jury of, 453 

Mayhem, 180 

Medical Evidence on Insanity, 23 

Meeting-house : v. Chapel. 

Menaces : v. Threats. 

Merchandise Marks Act, 1862 . . 118 

Merchant, 

embezzlement by, 225 

trafficking in property intrusted, 226 

Message : v. Telegraph. 

Metal, &c., 

belonging to house, larceny of, 190 

purchasing less than specified quantities of old, 281 

Middlesex, offences committed in, may be tried in Q. B. Division, 
but usually at sessions or C. C. C, 287, 292 

Middlesex Sessions, 297 

Mill, setting fire to, 261 

Mine, 

larceny from, 190 

setting fire to, 263 

malicious injury to, by conveying water, &c., 267 

obstructing ways, 267 

obstructing engines, &c,, 267 

Minimum Punishments, abolished, 435 

Misadventure, homicide by, 152 

Miscarriage, attempts to procure, 173 

Misdemeanor, 

distinguished from felony, 8 

meaning of the term, 10 

further points in which it differs from felony, 10 

compounding, 98 

2 M 



580 



INDEX. 



Misdemeanor — continued. 

verdict for, though facts shew felony, 425 
general punishment for, 436 

MisPOETUNE, OK MiSHAP, as an exemption from criminal responsi- 
bUity, 28 

Misjoinder of Counts : v. Codnts. 

Misnomer : v. Name. 

Misprision, 

meaning of, 8 

negative or positive, 8 

of treason, 53 

of felony, 94 

Mock Auction, larceny by means of, 200 

Mohair, 

larceny of, in process of manufacture, 209 

injury to manufactures or machinery, 267 

MoNETf : V. False Pretences. 

Moral Nature of an act does not determine whether it is criminal, 
4, 70, 127 

Morals, offences against public, 127 

Moravian: v. Quaker. 

Motive, 

may explain the intention, but does not determine the quality 
of an act, 13 

absence of, does not prove insanity, 23 
Moulds, making, &c., for producing bank-notes, &c., 258 
Municipal Election, 

false declarations as to, 84 

bribery, &c., at, 88 
Murder, 155 

varies in moral character, 155 

definition, 156 

the offender must be of sound memory and discretion, 156 

the unlawful kilKng, 156 

form of death, 156 

cause of death, 157 

time of death, 157 

variance as to the form of death, 157 

finding the body, 157 

the offender must be a reasonable creature, in being, and under 
the king's peace, 157 

the malice aforethought, 158 



INDEX. 531 

MuRDBE — conl inued. 

express and implied malice, 159 

punishment, 160 

accessories after the fact, 160 

on indictment for murder the jury may convict of certain 
other offences, 160, 426 

murder in fighting, 164 

in correction, 164 

whilst doing another act, 165 
a dangerous act, 165 

of ofacers of justice, 165 

by oflcers, 165 

states of mind constituting murder, 167 

attempt to murder, 166 
" MtJRDBATiT " to be used in indictment for murder, 325 
Mute, 

advising prisoner to stand, 89 

prisoner standing, 356 
Mutiny, 60, 62 

inciting to, 60 

Mutiny Acts, 60, 62 

murder and manslaughter under, dealt with at C. 0. C, 293 



N. 

Name of prisoner in indictment, 323 
National Church, offences against, 73 
Nations, offences against the law of, 41 
Naval Discipline Act, 60, 63 
Navioable : V. EiVEB. 

Navy, 

desertion and mutiny, 60 
offences in, 63 

Neglect to peovidb, &c., 

for apprentices or servants, 185 
lunatics, 185 

Negligence, 

sometimes amounts to malice,-14 

causing manslaughter, 163 
New Trial, 447 

when granted, 447 

2 M 2 



532 INDEX. 

New Trial — continvM. 
by what courts, 448 
how obtained, 448 

Nbwspapbbs and Libel, 110 
Night, under the Larceny Act, 238 
Nisi Pkius, commission of, 291 
NoMiNis Pe^sumptio, 418 

NONCONFOEMITY, 73 

NoN Compos Mentis : «. Insanity. 
Not Guilty : v. General Issue. 
Note : v. .Bank. 

Noxious Thing, 

administering, 181 

with intent to cause miscarriage, 173 
Nuisance, 

common or public, 181 

contrasted with priTate nuisance, 132 

when gives rise to civil action, 132 

abatement, 132 

to highways, &c., 133 

offensive trades, &c., 133 

houses as, 133 

lotteries, 134 

miscellaneous, 134 

who is liable for, 134 
Number op Witnesses, 

two in treason, 52, 394 

two in peijury, 82, 395 

0. 

Oath, 

nature of, in perjury, 79 

of juror in felonies, 380 
in misdemeanors, 380 

of witness, 391 
Oaths, false, 78 : v. Pbejuey. 
Oaths, Unlawful : v. Unlawful. 
Oaths, Voluntary : v. Voluntary. 
Obliterating Crossings on Cheques, 251 
Obscene Book, Print, &c., exposing to sale, 129 



INDEX. 533 

Obstructing Lawful Aeeest, &o., 77 
Obtaining Monet, &c., 

by means of forged irtstrument, 259 

by false pretences : v. False Pbbtbncbs. 
Offence, 

contrasted with crime, 7 

of a public nature, 41 

against the law of nations, 41 

against the Government and Sovereign, 45 

by members of the army and navy, 62 

against religion, 70 

against public justice, 74 

compounding, 92 

against the public peace, 100 

against public trade, 113 

against public morals, health, and good order, 127 

of a private nature, or against individuals, 144 

why regarded as crimes, 144 

against the person, 145 

against the property, 187 

prevention of, 275 : v. Prevention. 

Offenders, photographing, 280 : v. Habitual. 

Office, 

bribery of those in, 85 

trafiBcking in public, 86 
Office, setting fire to, 261 
Officer, Peace, 

allowing escape, 74 

assaulted in execution of duty, 78, 184 

refusing to aid, 78 

killing those resisting, &c., in execution of duty, 148 

when guilty of murder or manslaughter, 148 

larceny by, 209 

embezzlement by, 222 

executing warrant, 306 

arrest by, 308 

Officer, Public, 
misconduct of, 95 
malfeasance of, 95 
nonfeasanceof , 96 
larceny by, 209 
embezzlement by, 222 



534 



INDEX. 



Onus Pkobandt, 407 

Opinion Evidence, 404 

Order for Monet, &c., 
larceny of, 192 
forging, 251 

Order or Magistrate, forging, 252. 

Orb, larceny of, 190 

Outlawry, 

in misdemeanors, 348 

in felonies, 348 

consequences of, 349 

reversal of, 349 
OvEKT Act, 

in compassing, &c., death of Sovereign, 48 

in treason generally, 52 

Ownership of Stolen Goods, 
how described, 197 
indictment, how laid, 323 
of deceased, 324 
of married woman, 324 
of partner, 324 
of company, 324 
of county property, 324 
in cases of bailment, 324 
consequences of incorrectly laying, 324 

Oxford University Courts, 299 
Oyer and Tebminbe, 

courts of, 289 

commission of, 290 

Oysters, stealing, dragging for, &c., 195 



Pains and Penalties, bill of, 282 
Palmistry, 72 
Panel of Jurors, 372 

Paper, 

making, &c., in imitation of Exchequer bills, 257 

purchasing, &c., such paper, 257 

making, &c., in imitation of bank notes, 258 



INDEX. 535 

Pahdon, 

not pleadable to an impeachment, 283 
when may be pleaded, 364 
at the discretion of the Soyereign, 453 
when the Sovereign cannot pardon, 454 
how given and construed, 454 
conditional, 454 : v. Licence. 

Parent, killing by, in defence of child, 151 
Paeis, Dbclaeation op, 42, n. 
Paeliament, 

high court of, 282 

in legislative capacity proceeds against offenders by bills of 
attainder, or of pains and penalties, 282 

in judicial capacity, by impeachnient or indictment, 282 

proceedings on impeachment, 283 

on indictment, 284 : v. Lord High Stewaed. 
Paeliamentaky Election, 

false declarations as to, 84 

bribery, treating, undue influence, &c., at, 86 

Paeol : V. Evidence. 

Paetial Insanity, 22 

Paeticulae Eight and Weong Theoey in Insanity, 23 

Partners, goods of, ownership how laid, 324 : v. Joint Ownbe. 

Paety to Suit, contempt of court by, 98 

Passengee : V. Railway. 

Paupbeis, defence and prosecution infurmd, 431 

Pawnbeokee, 

receiving stolen property, 219 
compensation to, 434 

Paymastee, forging name of, 252, n. 

Peace, comnadssion of the, 291 

Peace, keeping the : v. Keeping. 

Peace Oppicbe : v. Opficee. 

Peace : v. Public Peace. 

Pedigeee, proof of, 413 

Peeks, 

house of, impeachment before, 283 

indictment before, 284 : o. Loed High Steward. 

Peine forte et dure, 356 



536 



INDEX. 



Penal Seevitude, 

being at large during term of, 76 

where tried, 340 
as a punishment, 438 
place, &o., 439 
shortest term, 439 

Penal Statute, time limited for information or indictment on, 
832 : V. Ineormation. 

Penetration, proof of, in rape will suffice, 171 

Per Infortunium, homicide, 152 

Peremptory Challenge : v. Challenge. 

Perjury, 

definition, 78 

punishments of, applied to other false oaths, 78 

false afBrmations, 79 

nature of the oath, 79 

it must be taken falsely, wilfully, and absolutely, bO 

materiality of matter sworn, 80 

the oath need not be believed, &c., 81 

false verdict, &c., not perjury, 81 

sufficient to prove one assignment, 82 

under Vexatious Indictments Act, 82 

judge may direct prosecution, 82 

'two witnesses must be called, 82 

punishment, 83 

subornation of, 83 

Perpetuation of Testimony, 421 

Person, stealing from the, 213 

Personation, False, 

punished at common law as a cheat, 234 

closely connected with forgery, 234 

of seamen, 234 

of soldiers, 234 

of owners of stock, &c., 235 

to obtain property generally, 235 

of bail, 236 

of voters, 236, n. 

Petty Treason, now regarded simply as murder, 45, n. 

Petty Jury, 

contempt of court by, 97 
who are liable to serve, 370 



INDEX. 537 

Petty Jvvct— continued. 

who exempt, 371 

list prepared by sheriff, 371 

exemptions after service, 372 

fining for non-attendance, 373 

putting into the box, 373 

challenge (q. v.), 373 

tales in case of insnfQcient number, 377 

conduct of, 378 

adjournment of trial, 378 

death, illness, &c., of, 378 

special jury, 378 

jury de medietate linguoe, 300, 379 

swearing the jury, 380 

view of locus in quo, 432 : v. Embeacbey ; Vbkdiot. 

Petty Laecbny, distinguished from grand, 196 

Petty Sessions : v. Magistrate. 

Photogeaphing Ofpendebs, 280 

Physical Compulsion, an exemption from criminal responsibility, 
29 

Pigeon : v. Bied. 

Piles, removing, 269 

Piracy, 41 

at common law, 41 

when tried in England, 42 

nation cannot be guilty of, 42 

enemies cannot commit, 42 

by statute, 43 

punishment, 43 

Place op Offence, when, must be specially stated in the indict- 
ment, 325 

Place op Teial, 337 
general rule, 337 
exceptions, 337 
if crime committed partly in one county, partly in another 

339 
upon journey, 339 
receivers, where tried, 340 
accessories, 340 
blow followed by death, 340 
return from transportation, &c., 340 
ofl'ences committed abroad, 341 

in detached parts of counties, 341 



538 



INDEX. 



Plant, 

larceny of, 190 
destroying, 271 

Plates, 

making, &c., to forge Exchequer bills, &e., 257 
bank notes, 258 

Pleading : v. Plea8. 
Pleas, 360 

names and order of, 360 

how many may be resorted to, 360 

to the jurisdiction, 361 

in abatement, 362 

special pleas in bar, 862 

judgment thereon, 362 

autrefois acquit, 363 

autrefois convict, 364 

autrefois attaint, 364 

pardon, 364 

general issue of not guilty, 365 

Pleas of the Crown, origin of the term, 6 

Pledge by Factor, &c., of Goods intrusted, 226 

Plundering Wrecks, 209 

Poaching : v. Game. 

Pocket-picking, 213 

Poison, administering, &c., 181 

Police Ofeiceb : v. Officer. 

Police Supervision : v. Supervision. 

Polls, challenge to the : v. Challenge. 

Pond, malicious injury to, 270 

Posse Comitatus, 102, 307. 

Possession, 

having counterfeit coin in, 67 

skins, &c., of deer, 194 

stolen dogs, 195 

instruments, &c., for forging, 257 : v. Eecent Possession ; 
Taking. 
Possession, distinguished from property, 188 

Pos* Office, 

larcehy, &c., in relation to, 214 
in case of employes, 214 
of any person, 214 
property laid in Postmaster-General, 215 



INDEX. 539 

Post Of fiob — continued. 

telegrams regarded as post letters, 215 
receiving, &c., post letters, &c., 218 
venue in robbery of mails, &e., 338 

Postponement of Trial, 354 
poundbbeach, 77 

POWEE OF AtTOENEY, 

embezzlement by persons intrusted with, 225, 226 

forgery of, 250 

forgery of attestation to, 251 

Practice (v. the various titles). 
Arrest, 303 

by warrant, 303 

without warrant, 308 

upon hue and cry, 311 

rewards for apprehension, 311 
Proceedings he/ore the magistrate, 313 

examination, 313 

bail, 316 
Modes of prosecution, 321 

upon previous finding, 321 

presentment, 321 

indictment, 322 

counts, 327 

joinder of defendants, 331 

time limited for prosecution, 331 

information, 332 

coroner's inquisition, 334 
flace of trial, 337 
Grand jury, 342 

the charge, 342 

examination before, 343 

Vexatious Indictments Act, 344 
Process, 346 

bench warrant, 347 

outlawry, 348 
Certiorari, 351 
Tinie of trial, 354 

arraignment, 355 

standing mute, 356 

confession, 358 
PUas, 360 

to jurisdiction, 361 

in abatement, 362 



540 



INDEX. 



Practice — con tinned. 
Fleas — continued. 

in bar, 362 

autrefois acquit, 363 ' 

autrefois convict, 364 ■ , 

autrefois attaint, 364 

pardon, 364 

the general issue, 365 
Demurrer, 367 
Petty jury, 370 

sununoning, 371 

fining for non-attendance, 373 

putting in box, 373 

challenging, 373 

tales, 377 

conduct of, &c., 378 

illness, death, 378 

special, 378 
Hearing, 380 

swearing the jury, 380 

giving the prisoner in charge, 381 

address and examination by counsel, 381 

summing-up, 384 

questions by prisoner, a farce, 385 
Witnesses, 386 

grounds of incompetency, 386 

tests of credibility, 391 

character of, 393 

number of, 394 

evidence of accomplices, 395 

attendance of, 395 

expenses of, 397 
Examination of witnesses, 400 

witnesses out of court, 401 

examination-in-chief, 402 

leading questions, 402 

evidence from own knowledge, 404 

of experts, &c., 404 

refreshing memory, 404 

contents of documents, how proved, 404 

witness proving hostile, 404 

cross-examination, 405 

re-examination, 406 

questions through the judge, 406 

objections to questions, 406. 



IHDEX. 541 

Practice — continued. 
Evidence, 407 

burden of proof, 407 
what must be proved, 408 
what may not be proved, 409 
evidence of other offences, 409 

when admitted, 410 
as to character, 411 
best evidence to be given, 412 
hearsay no evidence, 412 
when admitted, 413 
depositions of ill or deceased persons, 414 
confession, 414 
circumstantial evidence, 416 
written evidence, 419 
handwriting, 422 

differences between rules of civil and criminal evidence, 
423 
Verdict, 424 

for crime not charged in indictment, 425 
acquittal or conviction, 426 
second indictment, 427 
proof of previous conviction, 427 
Judgment, 429 

arrest of, 429 
Incidents of trial, 431 

defence, &c., in forma pauperis, 431 
view of locus, 432 
adjournment of trial, 432 • 

withdrawal from prosecution, 432 
restitution of goods, 483 
Punishment, 435 
death, 438 
penal servitude, 438 
imprisonment, 439 
fine, 440 
hard labour, 440 
whipping, 441 
solitary confinement, 442 
police supervision, 443 
recognizances and sureties, 443 
reformatory, 444 
industrial school, 444 
forfeiture of office, &c., 445 
costs, 446 



542 



INDEX. 



Practice — continnsd. 
. Proceedings after trial, 447 
new trial, 447 

reversal of judgment by writ of error, 448 
error under Supreme Court of Judicature Acts, 450 
Court for Crown Cases Eeserved, 450 
Keprieve and pardon, 453 ' 

ticket of leave, 455 
Execution, 457 : v. Summary Convictions. 

Pr«munibe, 69 

Pregnancy of woman sentenced to death, 453 

Presentment, 321 

Presumptions classified, 418 

Presumptive Evidence, distinguished from direct, 416: v. Cir- 
cumstantial. 

Pretences : v. False Pretences. 

Prevention op Crime, 275 

by giving security {q. v.), 275 

general measures for, 280 
Previous Conviction, 

evidence of, on indictment for receiving, 217 

when count may be added for, 330 

how proved, 4:20, 427 

when evidence of, may be given before subsequent conviction, 
427, 428, n. 

punishment for offences after, 436 
in simple larceny, 436 
in uttering coin, &c., 437 
Principal, 

distinguished from accessory, 38 

in the first degree, 33 

in the second degree, 33 

all are principals in treason, 38 

as to misdemeanor, 38 
Prison : v. Breach. 
Prisoner, 

allowing to escape, 74 

aiding to escape, 75 

presence of, at trial, 357 

interrogation of, 387 

Private Nature, offences of a, 144 
Privateering abolished, 42, n. 



INDEX. 543 

Peivilbgbd Communications, 

exempting from libel, 108 

between solicitor and client, 390 
Peivt Seal, forging, 250 
Process, 346 

warrant by magistrate, 346 

bench warrant, 347 

in misdemeanors, 347 

in felonies, 348 

outlawry, 348 

on information, 349 

Proclamation undee Riot Act, 102 

Phooueation, making, accepting bill, &c., by, for other person with- 
out authority, 251, n. 

Peofanation of the Sabbath, 73 

Peofanb Swbaeing, 72 

Peomissort Note, 

larceny of, 192 

forging, 251 

Pkopeett, distinguished from possession, 188 : v. Goods : Owner- 
ship. 

Peosbcution, modes of, 321 

Prosecutor, want of public, 92 

Peovooation, reducing homicide to manslaughter, 161 

Public Buildings, setting fire to, 262 

Public Company : v. Company. 

Public Health, morals, &c., offences against, 127 

Public-house, offences by keeper of, e.g., lodging thieves, 219 

Public Justice, offences against, 74 

Public Natueb, offences of a, 41 

Public Office, Offices : v. Office ; Oppicbe. 

Public Peace, offences against, 100 

Public Peosecutoe, want of, 92 

Public Stores, unlawful dealings with, 61 

Public Teade, offences against, 113 

Public Woeship, 

disturbing, &c., 72 

riotous or indecent behaviour in, 72 



544 



INDEX. 



Publication of Libel, 109 

Punishment, 

general nature of, 1 

the test whether a proceeding is civil or criminal, 4 

minimum punishments abolished, 435 

wide limits in some crimes, 435 

for felonies, 435 

after previous conviction, 436 
for misdemeanor, 436 
for larceny after previous conviction, 436 
for uttering, &c., coin after previous conviction, 437 
several terms, either concurrent or continuous, 437 
punishments enumerated, 438 
death, 438 
penal servitude, 438 
imprisonment, 439 
fine, 440 
hard labour, 440 
whipping, 441 
solitary confinement, 442 
police supervision, 443 
recognizances and sureties, 443 
reformatory, 444 
industrial school, 444 
forfeiture of property abolished, 445 

of office, 445 
property of felon taken care of, 446 
costs by prisoner, 446 

Purchaser or Stolen Goods, right of owner preferred to innocent, 
434 

Q. 

Quaker, 

false affirmation by, 79 
affirmation by, 391 

Quarrel, killing in sudden, 161 

Quarter Sessions foe the County, 294 
time of holding, 294 
adjournment, 294 
who compose the court, 294 
jurisdiction, 295 
crimes not triable at, 295 
appeals against summary convictions, 297 



INDEX. 545 

QuAETEB Sessions for the County— con iiw/eA 
review of proceedings, 297 
Middlesex, 297 
bail by, 319 
appeal from, 450 : v. Bokough Sessions. 

Quay, 

stealing from, 209 
destroying,'269 

Queen, 

compassing the death of, 48 

attempt to injure or alarm, 53 : v. Sovereign, 

Queen's Bench Division, 286 
Crown side and Plea side, 286 
original jurisdiction, 286 
transferred jurisdiction, 287 
mode of trial, 288 
may order trial at C. C. C, 288 
supersedes other courts, 288 
bail by, 318 

Queen's Evidence, 359 

Qui tam, 332, n. 

Quorum, justices of the, 294, n, 

K. 

Eabbits : V. Game. 
Eailway, 

offences endangering on, 183 

setting fire to buildings, 261 

malicious injury to train, 269 
to telegraphs, 270 

offences committed on, where tried, 339 
Eapb, 170 

who cannot be convicted of, 170 

essentials of the crime, 170 

credibility of testimony of the woman, 171 

Eapuit, must be used in indictment for rape, 325 

Ebal Pkopekty, at common law not the subject of larceny, 189 

Eboeipt, forging, 251 

Eeceiving stolen Goods, 216 

when a felony, when a misdemeanor, 216 

2 N 



546 



INDEX. 



Ebceiving stolen Goods — continued. 

if felony, offender tried as accessory, or as committer of a dis- 
tinct felony, 216 
evidence, 217 
guilty knowledge,[217 

evidence of previous conviction, 217, 281, 410 
post letters, &c., 218 
punishment, 218 

verdict of larceny or of receiving, 218 
any number of receivers may be tried for substantive felonies, 

219 
pawnbrokers, 219 

count for larceny may be added, 218, 329 
where tried, 340 

evidence of having had possession, or of previous conviction, 
410 
Eecent Possession, 220 
Eecognizancb, 
nature of, 275 
for keeping the peace, 276 
for good behaviour, 276 
forfeiture or estreat, 276 
of witness to appear at trial, 814 
in case of those convicted of crimes under the Consolidated 

Acts, 443 
delivery to court, 320 
Recommendation to Meboy, 427 
Eeooedeb 

of London, at 0. 0. C, 292 
judge at borough sessions, 298 
Record, 

courts of, 96, n. 
criminal dealings with, 94 
stealing, injuring, obliterating, &c., 192 
forging, &c., 251 
how proved, 419 
Re-bxamination, 406 : o. Examination. 
Ebfoematobt, 444 
Eepbeshing the Memoey, 404 

Registeb, 

of births, marriages, deaths, false declarations as to, 84 

forging, false entry, &c., 252 

of deeds, forging certificate relating to, 252 



INDEX. 



547 



RuLiaioN, 

offences against, 70 

want of, does not now render incompetent to give evidence, 390 
Eeligious Impostors, 72 
Remand, of accused by magistrate, 314 
Eeplioation to Plea, 361 
Reply, right of, by counsel for prosecution, 382 
Eepbievb, 453 
Rescue, 77 

distinguished from escape, &c., 74 

of person committed for, or convicted of, murder, 77 

of offender sentenced to penal servitude, 77 
Eesbbvoib, 

destroying works, 269 

damaging dams, &c., 270 

Ees Gests;, hearsay admitted as evidence if part of, 414 
Eesidenoe, in burglary, 239 
Responsibility, exemptions from criminal, 19 
Restitution, 

in forcible entry and detainer, 112 

of goods under the Larceny Act, 433 

Retubning feom Penal Seevitude : v. Penal Servitude. 

Reversal or Judgment, 448 : v. Writ of Beeoe. 

Reward to Witness, 311 

Reward, 

taking, for helping to property stolen, &c., 93 
advertising for return of such property, 93 
for helping to recover stolen dog, 195 

Right, claim of, no larceny where there is, 197, 204 

Eing-deopping, 199 

Riot, 100 

killing by ofiScers justifiable, 148 

Riot Act, 102 

EivBB, nuisance to, 133 
destroying works, 269 

Robbery, 

on high seas is piracy, 42 
definition, 210, 247 

2 N 2 



548 



INDEX. 



EOBBEEY — coritinued. 

gist is the force or bodily fear, 210 

possession of the property must be obtained, 211 

taking must be from the person, or in the presence, 212 

against the will, 212 
punishment, 212 
assault with intent to rob, 213 
verdict of assault with, &c., on indigtment for robbery and 

vice versa, 213 

EoGUE AND Vagabond, 137 
EouT, 100 

S. 

Sabbath, profanation of, 73 

Saceilbgb, 244 

Sailor : v. Navy ; Seaman. 

Sale of Tood and Drugs Act, 1875 .. 135 

Sanctions, 

attendant on civil injuries and on crimes, 1 
of the criminal law enumerated, 438 

Savings Bank, appropriation of money by oflScers, 229 

SCIBNTEK : V. GrUILTY KNOWLEDGE. 

Sea, sending unseaworthy ship to, 138 

Sea-wall, damaging, 268 

Seal, 

forging great, 250 
forging privy, 250 

Seaman, 

forcing on shore, 184 
leaving behind, &c., 184 
false personation of, 234 

Search, 

for game, 142 

for stolen property, 281 

Search Warrant, 307 

Second Indictment, 427 

Secondary Evidence, 412 

Second-hand Evidence : v. Hearsay. 



INDEX. 549 

Security, 

giTOig, 275 

of what it consists, 275 

nature of the recognizance, 275 

forfeiture, 276 

by whom and of whom demanded, 276 

proceedings if granted by justices out of sessions, 277 

at sessions, 277 

for keeping the peace (5. v.), 278 

for good behaviour (q. v.), 278 

Secueity, Valuable : v. Valuable Security. 

Se Defenbendo, 

homicide, 150, 151 

distinguished from manslaughter, 152, 162 

Sedition, 55 

what constitutes seditious libels or words, 55 
truth of, no defence, 56 

Sblf-defencb : v. Se Defendendo. 

Selling counterfeit coin at lower value, 65 

Sending Threatening Letters : v. Threatening. 

Sending unseaworthy ship to sea, 138 

Sentence : v. Judgment. 

Separatists : v. Quakers. 

Servant, 

assault on, 185 

authority of, to part with property or possession, 199 

having oversight of goods, master still in possession, 201 

taking master's com, &c., 205 

larceny by, 207 

proof of employment as, in embezzlement, 222 

Sessions : v. Borough Sessions ; Quarter Sessions. 

Setting Fire : v. Arson. 

Settlement, Act of, two forms of treason violating provisions of, 
51 

Severance, 

turning real into personal property, 189 
must take place, to constitute asportation, 203 

Sheep Stealing, 195 

killing, maiming, &o., 270 



550 INDEX. 

Sheriff, 

contempt of court by, 97 

arrest by, 308 
Sheriff's Tourn, 300, n. 

Ship, 

forfeiture of, for offence against Foreign Enlistment Act, 59 

sending to sea in unseaworthy state, 138 

stealing from vessel in harbour or on river or canal, 209 

stealing from vessel in distress or wrecked, 209 

setting fire to, casting away, destroying, 263 

attempt, 264 
setting fire to vessel of war, 264 

to vessel in docks of port of London, 264 
damaging vessel by explosion, 263 

otherwise, 268 
endangering, 268 

Shipbuilding, Illegal : v. Foreign Enlistment Act. 

Shipwreck : v. Wreck. 

Shooting, 

at revenue vessels or oflcers, 114 
at any person with intent, &c., 180 

Shop, 

breaking into, 244 
setting fire to, 261 

Sign Manual, forging, 250 

Signal, 

tampering with, with intent to endanger vessel, 268 

interfering with railway, 269 

Silk, 

larceny- of, in process of manufacture, 208 
injury to manufactures or machines, 267 

Similiter, 366 

Simple Larceny distinguished from compound, 187 : v. Larceny. 

Slander, indictable, 108 

Slaves, offences as to, 44 

Sluices, destroying or opening, 269 

Smuggling, 113 

forfeitures and penalties, 113 

three or more armed for purpose of, 113 

shooting at revenue vessels or officers, 114 



INDEX. 551 

Smuggling — continued. 

more than five armed, or with prohibited goods, 114 

assaulting officers, 114 

making signals to smuggling vessels, 114 

search for smuggled goods, 115 

time limited for prosecution, 331 

Societies, TJnlawftil : v. Unla-vwul. 

SoDOHTY : V. Unnattjbal Crime. 

SoLDiBK, false personation of, 234 : v. Abmy. 

Solicitor, 

embezzlement by, 225 

when incompetent to give evidence against client, 890 

Solitary Continbment, 442 

Sovereign, 

incapable of committing crime, 31 

offences against, 45 

compassing or imagining the death of, 48 

levying war against, 49 

compassing, &c., death, destruction, harm, &c., 51 

compassing to depose, &c., 54 

various contempts, and high misdemeanors against, 68 

" Speaking with the Pboseoutob," 93 

Special Commission, 292 

Special Jury, 378 

Special Plea : v. Plea. 

Spring-giw, setting, 142 

Stabbing : v. Wounding. 

Stable, setting fire to, 261 

Stack, setting fire to, 262 

Stamps, forging Inland Eevenue, 252 

Standing Mute : v. Mute. 

Starving, homicide by, 157 

Statement of Indictment, 328 

as to name, 323 

ownership, 323 

time, 324 

place, 325 

facts, &c., 325 



552 INDEX. 

Station, setting Are to, 261 

Statues, destroying, &c., 272 

Statute, 

Climes by, 5 

when makes an act an indictable crime, 7, 322 

how proved, 419 

Stealing, Children, 176 : v. Laeoeni. 

Stbwaed, Lord High : v. Lord High Steward. 

Stock, 

false personation of owners of, 235 
forging transfer of, 250 

forging stock certificates for pajrment of interest of national 
debt, 252 

Stolen Property, Eeceiving : v. Eeoeiving ; Search. 

Stores : v. Public Stores. 

Strangle, attempt to, with intent, &c., 181 

Straw, setting fire to, 262 

Subornation op Perjury, 83 

SuBPfflNA, 396 

consequence of not obeying, 396 

SuBP<ENA Duces Tecum, 396 

Suffocate, attempt to, with intent, &c., 181 

Suicide, 153 

advising to commit, 154 
consequences, 154 
attempt to commit, 155 

Suing in name of fictitious plaintiff, 90 

Summary Convictions, 458 

jurisdiction, &c., of magistrates, 458 

is local, 459 

how many required, 459 

cases beyond jurisdiction, 459 
common assaults and batteries, 178, 460 
small larcenies, &c., 461 
small wilful injuries, 464 
game offences, 465 
juvenile offenders, 465 
proceedings, 466 
the information, 467 



INDEX. 553 

Summary GoKViaTiONB— continued. 
summons, 467 
■warrant, 468 

examination in absence of accused, 468 
the hearing, 469 
one party not appearing, 469 
adjournment, 469 
proceedings at hearing, 469 
conyiction or dismissal, 470 
judgment, 470 
enforcing fines, 471 
costs, 471 
appeal, 471 

to quarter sessions, 297, 472 

case stated to superior court, 472 

on point of law, 473 
irregular commitment, 473 

removal to Queen's Bench DiTision by certiorari, 474 
proceedings against magistrates, 474 
summary jurisdiction depends entirely on statute, 474 
summino-dp of the judge, 384 

Summons, 

forgery of, 252 

issue of, 304 

contents of, 305 

form of, 305, n. 

to person charged with summary offence, 467 

to secure attendance of witness, 469 

Sunday : v. Sabbath. 

SuPBEYisioN OF Police, 281, 443 

SupptiCAViT, writ of, 276 

Supreme Court of Judicature Act, 
judges at assizes imder, 291, n. 
appeal under, 450 

Sureties : v. Bail ; Recognizance. 

Surrey, commission, &c., for, 289 

Suspicion, 

arrest by constable on, 308 

by private person, 310 
" Swearing the Peace," 278 
Swearing, profane, 72 



554 INDEX. 

T. 

Taking, 

wilfully wrongful, 197 

actual, 197 

constructive, 198 

what amounts to, 203 

liKri causa, 205 

in robbery, 211 : v. Labcbny. 
Tales db Ciroumstantibtjs, 377 
Tblbgbaph, 

stealing, &c., messages, 215 

disclosing or intercepting messages, 215 

injury to, 270 

Tenant, 

larceny by, 207 
demolishing buildings, 267 

Tenant in Common, larceny by, 202 

Theft, proposed definition of, 247 : v. Laeobnt. 

Theft Bote, 92 

Threatening Letter, 

sending, to burn, kill, &c., 104 

to murder, 104 
with intent to extort money, &c., 104 
accusing of crime, in order to extort, 104 

Threats, 

in order to extort money, 104 
in order to procure execution of deed, &c., 105 
to publish Ubel in order to extort, 112 
stealing in dwelling-house with, 245 

Ticket of Leave : v. Licence. 

Time, 

when of essence of crime, 324 

limited for prosecution in certain cases, 331 

of trial, 354 

Title-Dbeds, at common law not subjects of larceny, 189 

Tools, 

making coining, 67 
conveying out of Mint, 68 
search for, and seizure of, 68 

Torts contrasted with Crimes, 2 



INDEX. 555 

Trade, 

offences against public, 113 

unlawful interference with, by combinations, &c., 119 

trade union, 120 

acts criminally punishable, 120 

proceedings by indictment or summary conviction at option of 

offender, 121 
assault to obstruct sale of grain, &c., 122 

Tkades, offensive or dangerous, are nuisances, 133 
Trade-marks, 

counterfeiting and falsely applying, 118, 253 

seUing goods with forged, 119 

Trade Union, not to render liable to prosecution for conspiracy, 
merely because in restraint of trade, 120 : v. Trade. 

Training, illegal : v. Drilling. 

Transfer of Land Act, 1875, offences against, 253, 259 

Transportation : v. Penal Servitude. 

Treason, 

why termed " high," 45, n. 

popular conception of, 45 

classification of acts of, 46 

history of the law of, 46 

the statute 25 Edw. 3.. 46 

gist of the offence altered, 47 

compassing, &c., death of Sovereign, &c., if' 

violating King's wife; &c., 48 

levying war, 49 

adhering to Sovereign's enemies, 49 

slaying the Chancellor, &o., 51 

counterfeiting the Great Seal and coinage offences no longer 

treason, 50 
additions to the list of acts which are, 50 
time Kmited for prosecution, 51, 331 

prisoner may have copy of indictment and List of witnesses, 51 
the overt act, 52 
prisoner's defence, 52 
punishment, 52 
evidence of other acts may be given, 410 

Treason, Misprision of : v. Misprision. 

Treason-felony, 54 

Treasure Trove, concealment of, 68 



556 INDEX. 

Tebating at Elections, 88 
Tbebs, 

larceny of, 190 

setting fire to, 262 

damaging, &c., 271 
Trespass, larceny distinguished from, 204 
Tbial, 

offences interfering witli free administration of justice at, 89 

place of, 337 

time of, 354 

modes of, 369 : v. Peacticb. 
Triers, in case of challenge of jurors, 876 
Trustee, embezzlement by, 227 
Truth 

of seditious Libel, no extenuation, 56 

of defamatory Ubel, 106 
Turnpike, destroying gates, bars, &c., 269 



u. 

Undue Influence at Elections, 88 

TJniveebitt Courts, 299 

Unlaweul Assemblies, 100 

Unlawful Combination : v. Trade ; Unlawful Societies. 

Unlawful Oaths, 56 

voluntary oaths, 83 
Unlawful Societies, 57 
Unnatural Offence, 172 

attempt, 173 

assault with intent, 173 
Unseawobtht Ships, sending to sea, 138 
Uttering Counterfeit Coin, 66 
Uttering, 

in forgery, 256 

the guilty knowledge, 257 

Y. 

Vagrancy, 136 
Valuable Security, 

stealing, destroying, obliterating, &c., 191 

the term defined, 191 

inducing person by fraud to execute, 234 



INDEX. 557 

Value op Thing stolen, 196 

Vakianob between Indictment and Evidence, 326 

Vegetable : v. Plant. 

Vehicle : v. 1)eiving. 

Venire Facias ad Eespondbndum, 347 

Venue, 323 : v. Place. 

Vbbdict, 424 

how arrived at and given, 424 

general, partial, or special, 424 

in case of co-defendants, 425 

of attempt on indictment for complete crime, 425 

for crime other than that charged, 425 

objections to, 426 

of acquittal, what it implies, 426 

of guilty, 427 

on previous conviction, 427 
Vessel : v. Ship. 

Vexatious Indictments Act, 344 
Viaducts, destroying, &c., 269 

Viob-Chancellor's Court at Oxford and Cambridge, 300 
View of Frank Pledge, 300, n. 
View of Locus in Quo by Jury, 432 
Violation of King's Wife, &o., 48 
Violence, in robbery, 211 
Voluntary Oaths, 83 



W. 

Wall, 

destroying, 269 
damaging sea or river, 268 

War, levying against the Sovereign, 49 

War, Prisoner of, aiding to escape, 75 

Warehouse, 

breaking into, 244 
setting fire to, 261 

Warrant, 

larceny of, 192 



558 INDEX. 

Warrant — continued. 

forging, 251, 252 

definition, 303 

by whom granted, 303 

when issued, 304 

if indictment has been found, 304, 346 

if accused is in custody, 305 

construction of, 305 

form of, 306, n. 

backing, 306 

executing, 306 

general warrants, illegal, 307 

search warrants, 307 

bench warrant, 347 

in case of person charged with summary offence, 468 

to compel attendance of witness, 469 
Wateb, Depeiving of, by wilfully breaking contract of service, 121 
Wat : v. Highway. 

Weights and Measures, false, 236, 300, n. 
Wharf, 

stealing from, 209 

destroying, 269 

Whipping, 441 

Wife, 

when not criminally responsible, 29 

as accessory after the fact, 37 

cannot steal property of husband, 202 

goods of, ownership how laid, 324 

cannot be witness against her husband, except in two cases, 388 
Will, 

steaUng, destroying, &c., 192 

forging, 251 
Will, 

an essential of a crime, 12 

contrasted with intention, 12 

absence of, exempts from criminal responsibility, 19 
Witchcraft, 72 

Withdrawal from Prosbctttion, 432 
Witness, 

offences with regard to, 89, 397 

contempt of court by, 98 

before magistrates, 314 



INDEX. 559 

Witness — continued. 

binding oTer to appear at trial, 314 

examination by grand jury, 343 

grounds of incompetency fewer now than formerly, 386 

forms of incompetency, 386 

incompetency of accused, 387 

of accused's consort, 388 

on account of insanity, 389 

of infancy, 389 

of relation of legal adviser, 390 

of want of religious belief, 390 
objection to competency, when made, 391 
credibility of, 391 
knowledge of, 392 
disinterestedness of, 392 
veracity of, 392 
general character of, 393 

what questions witness may refuse to answer, 393, 415 
number of, 394 
accomplices as, 395 
attendance of, how secured, 395 
production of documents by, 396 
consequences of failure to appear, 396 
attendance of witness, who is in custody, 396 
privilege from arrest, 397 
expenses of, 397 
ordering out of court, 401 : v. Examination. 

Women : v. Giels. 

Wood, setting fire to, 262 : v. Fixtures. 

Woollen, 

larceny of, goods in process Of manufacture, 208 
injury to manufactures or maclunery, 267 

Words, technical, when to be used in indictment, 325 

Workmen : v. Trade. 

Works of Art, destroying, &c., 272 

Worship : u. Public Worship. 

Wounding, 180 
animals, 270 

WrecJk, 

assault upon those engaged in preservation of, 183 
impeding escape from, 183 



560 INDEX. 

Weeok — continued. 
stealing from, 209 
destroying, 268 

Writ of Eeeoe, 448 
when it lies, 449 
how obtained, 449 
judgment affirmed or reversed, 449' 

Wetting, 

how proved, 404 

best evidence as to, 412 

rules as to evidence of, 419 : v. Evidence. 



; rBIHIED JBT WILLIAM CLOWES AKD SONS, STAUFOIID STKEEI 
AXD CHABUfG C&OS& 



ijsii««a**e*3fc