Any person's telling a prisoner that it will be better for him to confess, will exclude a confession made to that person, although that person was not in any authority as prosecutor, constable, or the like.

LARCENY. The prisoner was indicted for stealing a hymn-book, the property of Eliza Thompson.(a)

A witness, named Fieldhouse, proved, that the prisoner wished to sell the book to him, and that he told the prisoner he had better tell where he got it. Mr. Justice BOSANQUET. You must not tell us what he said.

Scott, for the prosecution. This witness was not a person in any authority. Mr. Justice BOSANQUET. Any person telling a prisoner that it will be better for him to confess, will always exclude any confession made to that person. Whether a prisoner's having been told by one person, that it will be better for

*544] him to confess, will exclude a confession subsequently made *to another person, is very often a nice question; but it will always exclude a statement made to the same person.(b)

The evidence was rejected.

Scott, for the prosecution.

Verdict-Guilty.

[Attorneys for the prosecution-Roberts & Son.]

(a) The hymn-book was stolen from a dissenting chapel, which was broken into, but the offence was not laid as sacrilege, it being considered by the prosecutor, that the stat. 7 & 8 Gen 4, c. 29, s. 10, did not extend to dissenting chapels. In the stat. 7 & 8 Geo. 4, c. 30, s. 8, where the Legislature intended to include dissenting chapels, they have used different words. See those sections in Carr. Supp. p. 209, and p. 289.

(b) In the case of Rex v Slaughter, for arson, tried on the same day, Mr. Justice Bosanquet rejected a confession made by the prisoner to one of his fellow workmen, who had told him it would be better for him to confess. See the cases of Rex v. Gibbons, 1 C. & P. 97, and Rex v. Tyler, 1 C. & P. 129.

A person who was told by the surgeon that she would never recover, said, that she " hoped he would do what he could for her, for the sake of her family." He again told her that there was no chance of her recovery:-Held, that this showed such a degree of hope in her mind, as to render a statement she then made inadmissible as a declaration in articulo mortis. MURDER. The prisoner was indicted for the murder of Jane White, by administering corrosive sublimate to her.

It was proposed to give in evidence a declaration of the deceased, as a declaration in articulo mortis. With a view of showing the state of the deceased, Mr. Sheward, a surgeon, who was called as a witness, said, "I had told the deceased she would not recover, and she was perfectly aware of her danger; I told her I understood she had taken something, she said she had, and that damned man had poisoned her. I asked her what man, and she said Crockett. She said, she hoped I would do what I could for her for the sake of her family. I told her there was no chance of her recovery."

Mr. Justice BOSANQUET. This shows a degree of hope in her mind. To render a declaration of this kind admissible, the deceased must have had the impression on her *mind of an almost immediate dissolution. This will not do, I must strike the whole of this evidence out of my notes. Verdict-Not guilty.

*545]

Godson, and Lee, for the prosecution.

[Attorney-Parker.]

See the cases cited in Carr. Supp. p. 232, and the cases of Rex v. Pike, 3 C. & P. 598; Rex v. Van Butchell, 3 C. & P. 629; and Rex v. Lloyd, ante, p. 233.

VOL. XIX.-81

3 H 2

STAFFORD ASSIZES.

BEFORE MR. JUSTICE PATTESON.

REX v. FLETCHER and Others.

If one employed to carry goods for hire, appropriate them to his own use, but does not break Julk, this is no larceny, although the person so employed were not a common carrier, but was only employed in this particular instance.

THE indictment charged two of the prisoners, named Fletcher and Mellor, with stealing various articles of wearing apparel, books, &c., the property of Gilbert Hordern; and a third prisoner, whose name was Beardmore, was charged with receiving the articles, knowing them to have been stolen.

The prosecutor stated that the goods were in packages, and that he had directed the two prisoners, Fletcher and Mellor, to carry them to the house of the father of the prisoner, Fletcher, who was to keep them safely. The prosecutor also stated that the goods were to be conveyed in his cart, but that the horse belonged to Fletcher and Mellor, who were to be paid for what they did. It was proved that the goods were not taken to the house of Fletcher's father, but were found at the house of Beardmore, having been taken out of the packages in which they had been packed by the prosecutor.

*Meeson, for the prisoners, objected that this was not a larceny. Greaves, for the prosecution. These goods were delivered to the prisoners, Fletcher and Mellor, for a special purpose.

[*546

Mr. Justice PATTESON. There is no evidence that the packages were opened while the goods were in the possession of the two prisoners, who are charged as principals; and a carrier cannot be guilty of larceny, unless he breaks bulk. Greaves. These persons were not common carriers, they were merely employed in this particular instance.

Mr. Justice PATTESON. They carried for hire. to be paid for taking these goods. There is the which is a very strong authority on this point. (a) quitted.

It is proved that they were case of a captain of a ship, The prisoners must be acVerdict-Not guilty.

(a) Rex v. Madox, R. & R. C. C. R. 92. In that case the captain of a ship disposed of several casks of butter, which formed part of his cargo, for his own benefit; and afterwards pretended to the consignees that he had been obliged to throw them overboard. This was held no larceny. In 1 Curw. Hawk. p. 143, it is said "It has been resolved that even those who have the possession of goods by the delivery of the party, may be guilty of felony, by taking away part thereof with an intent to steal it, as if a carrier open a pack, and take out part of the goods.'

*REX v. WESTWOOD and Others. March 15.

[*547

A prisoner was indicted for night poaching, and it was proposed to show that, on the occasion in question, one of the prosecutor's game-keepers had lost his coat, and that it was found in the prisoner's house. There was another indictment against the prisoner for stealing the coat-Held, that this evidence was inadmissible, unless the prosecutor consented to an acquittal on the indictment for the larceny.

INDICTMENT on the stat. 9 Geo. 4, c. 69, s. 9, for poaching in the night, with other persons armed, to the number of more than three, in certain inclosed land of Edward John Littleton, Esq.

To prove the identity of the prisoner Westwood, Talbot, for the prosecution, proposed to show, that one of the game-keepers of Mr. Littleton lost his cost

during an affray which occurred on the occasion in question, and that this coat was found in the prisoner Westwood's house.

Greaves, for the prisoners, objected to the reception of this evidence, as there was a separate indictment against the prisoner Westwood for the stealing of this coat. And he cited the case of Rex v. Smith, 2 C. & P. 633.

Mr. Justice PATTESON. In the case of Rex v. Ellis, 9 D. & R. 174, it was held that where several felonies form parts of one transaction you may give evidence of them all.

Greaves. In that case there was only one indictment.

Mr. Justice PATTESON. That distinguishes the two cases; and I therefore shall not receive the evidence, unless the prosecutor consents to an acquittal on the indictment for larceny.

The evidence was rejected.
Talbot, for the prosecution.
Greaves, for the prisoners.

[Attorneys-Kean and Jones.]

Verdict Guilty.

*REX v. SWATKINS and Others.

March 16.

[*548

In opening a case of felony the counsel for the prosecution ought not to state any particular expressions supposed to have been used by the prisoner, nor the precise words of any confession, but he may state the general effect of what the prisoner said.

A prisoner was in the custody of A., a constable; B., another constable, coming into the room, A. left it, and the prisoner immediately made a confession to B.:-Held, that if the prisoner was in custody as an accused party, that A. must be called to prove that he had held out no inducement to the prisoner to confess, before the confession made to B. is receivable in evidence; but if it appear that the prisoner was not then in custody on any charge, but merely detained as an unwilling witness, it will not be necessary to call A. If a prisoner makes a confession to a constable, who takes down what he says, and the prisoner signs it, this paper will be read by the officer of the Court.

An indictment, on the stat. 7 & 8 Geo. 4, c. 30, s. 17, charged a party with setting fire to a "stack of barley, of the value of 100l. of R. P. W:"-Held good, although the words of the statute creating the offence are “ any stack of corn or grain:"-Held also, that the words "of R. P. W." sufficiently stated the property:-Held also, that if the indictment state that the prisoner, on, &c., at, &c., feloniously, unlawfully, and maliciously did set fire to a certain stack of barley of the value of 100l. of R. P. W. then and there being," this is sufficient, without stating that the prisoner, on, &c., at, &c., feloniously, unlawfully, and maliciously did then and there set fire to the stack.

INDICTMENT on the stat. 7 & 8 Geo. 4, c. 30, s. 17, for maliciously setting fire to "one stack of barley, of the value of 1007., of Richard Powell Williams."(a)

C. Phillips, for the prosecution, in opening the case, was proceeding to state certain expressions used by the prisoners.

Godson, Carrington, and F. V. Lee, objected, that, in opening a case of felony, confessions ought not to be stated; because it often turned out, that the words, as proved by the witness, materially differed from those put into the brief; and it also frequently happened, that, from something which had previously occurred, the statement was rendered inadmissible altogether.

C. Phillips, contrà. If the counsel for the prosecution has a right to open a case, I know of no law which prevents him from stating any evidence, that he is instructed that he shall have to lay before the Jury.

Godson, in reply. We do not put it as a matter of strict law; but, what I submit is, that, in practice, confessions ought never to be opened.

Mr. Justice PATTESON (having conferred with Mr. *Justice Bosanquet). *549] My learned Brother and myself are of opinion, that the correct practice is for the counsel for a prosecution, in a case of felony, not to state any expressions that are supposed to have been made use of by a prisoner, or the exact

(a) The indictment was in the form given in Jerv. ed. of Arch. C. L. p. 262.

words of any supposed confession; but we think that he may state their general effect.

A constable was called, to prove a confession made to him by the prisoner Swatkins. This constable stated, that he went into a room in a public-house, at Imley, where he found the prisoner Swatkins, in the custody of another constable; and that, as soon as he (the witness) went into the room, the other constable left it, and the prisoner immediately made a statement.

Godson and Carrington, for the prisoner Swatkins, objected, that, before this statement was receivable, the other constable must be called, to prove whether he had held out any inducement to the prisoner to make this statement; and that if, without calling that constable, the evidence were receivable, the most dangerous consequences would ensue, as nothing would be more easy than for one constable to hold out the inducement to confess, and another to come into the room and receive the confession.

C. Phillips and Talbot, contrà. If we call the person to whom the confession is made, and he did not hold out any inducement to the prisoner to confess, that is all that is necessary on the part of the prosecution; and if it is to be suggested, that any one else held out any such inducement, it is incumbent on the prisoner to show that. If it were not so, it would never be possible to prove a confession, without calling every constable in whose custody the prisoner had

been.

Mr. Justice PATTESON. It appears, that the constable, who had this prisoner in custody, left the room *immediately on this person's coming in, and [*550 that the prisoner at once began to make a statement. Now, I think, as the witness did not caution the prisoner not to confess, it would be unsafe to receive such evidence. It would lead to collusion between constables. .Another witness was called, who stated, that, at the time of the confession before mentioned, the prisoner was not kept in custody as an accused party; that all the servants of Mr. Williams had gone to Imley, to be examined as witnesses respecting this fire; and that the prisoner Swatkins having attempted to run away, the constable had caught him, and was detaining him as an unwilling witness.

but

Mr. Justice PATTESON. If he was not under any charge, that varies the case. As he was at the time attending there as a witness, and was not in custody on any charge, I shall receive the statement in evidence, without putting the prosecutor to call the other constable.

The constable to whom the confession was made was recalled. He said, that he had held out no inducement to the prisoner, to confess, and that he wrote down what the prisoner said, and having read it over to the prisoner, the latter put his mark to the paper.

This paper was put in, and read by Mr. Bellamy, the Clerk of Assize.(a) *Godson and Carrington, for the prisoner Swatkins. This indictment is not good. It charges the prisoner with setting fire to a "stack of bar- [*551 ley," which is not the offence created by the statute 7 & 8 Geo. 4, c. 30, s. 17, that being the setting fire to any stack of grain, the word barley not occurring in that act. It must appear on the face of the record, that the prisoners have committed the offence created by the statute, and this can only be done by fol lowing the words of the statute. It is not enough to use terms that would be commonly understood. In an indictment for horse-stealing, it would not be enough to charge the stealing of a hunter or a racer, nor would it be sufficient, in an indictment for sheep-stealing, to call the animal stolen, a teg, or to call an ewe and lamb, a couple; which are names well understood; it being necessary to describe the offence in the terms of the statute creating it. There is (a) Where a confession has been signed by a prisoner, it is read by the officer of the Court; but, where the examination is taken down by some person, and not signed by the prisoner, the person who took it down is called as a witness, and he states what the prisoner said, refreshing his memory from the paper. This was done by a magistrate, in the case of Rex Jones, Carr. Supp. 13; and by a magistrate's clerk, who had taken down what a prisoner said before the committing magistrate, in the case of Rex v. Watkins, tried before Mr. Justice Bosanquet, at the Oxford Spring Assizes, 1831.

also another objection, which is, that the stack is neither stated to be "of the goods and chattels" of the prosecutor, nor "the property" of the prosecutor, which ought to have been done; it is merely stated to be a "stack of barley of Richard Powell Williams."

F. V. Lee, for the other prisoners. In this indictment, there is an omission. of the words "then and there." It states, that they, on such a day and at such a place, "feloniously, unlawfully, and maliciously, did set fire to a certain stack of barley, of Richard Powell Williams, then and there being." Now it ought to charge, that the prisoners, " feloniously, unlawfully, and maliciously, did then and there set fire to a certain stack of barley."

C. Phillips, and Talbot, contrà. With respect to the last objection, of the omission of the words "then and there;" that, if it ever was an objection, is aided by the stat. 7 Geo. 4, c. 64, s. 20, which relates to defects in the statement of the time and the venue. And with respect to the stack being described as a stack of barley, that is stating the offence with a sufficient certainty, to *552] inform the prisoner what he is charged with. The question is, whether barley is grain, which it undoubtedly is. It is said, that the offence must be charged in the words of the statute creating it. It is not, however, in all cases sufficient to follow the words of the statute; for, where the words are general, the species must be specified, as was held in a case of maiming cattle ;(a) and if we had charged this as a setting fire to a stack of grain, it would have been objected, that the species of grain ought to have been specified. With respect to the remaining point, the statement that it is the stack of Richard Powell Williams, that is tantamount to alleging it to be his property.

Mr. Justice PATTESON. The only question is, whether I am bound to take judicial notice that barley is either corn or grain. (b)

His Lordship having conferred with Mr. Justice Bosanquet, said I do not think that the objection respecting the *omission of the words "then and *553] there," is tenable; and I think that the statement of the property is sufficient. I also think that the charging the offence as the setting fire to a stack of barley, is likewise sufficient; but if, on further consideration, I should think that there is any weight in that objection, I will reserve it for the consideration of the Judges.(e)

The Jury found the prisoners Swatkins and Lloyd-Guilty, and
Timmins-Not guilty.

C. Phillips, and Talbot, for the prosecution.

Godson, and Carrington, for the prisoner Swatkins.

F. V. Lee, for the prisoners Lloyd and Timmins.

[Attorneys-Bourne, for the prosecution; Barber, and Passman, for the respective prisoners.]

The prisoners Swatkins and Lloyd were afterwards executed.

(a) Rex v. Chalkley, R. & R. C. C. R. 258.

(b) It may be proper to observe, that barley is mentioned as corn, in several acts of parlia ment, which relate to the importation of corn; for example, by the stat. 55 Geo. 3, c. 26, s. 3, it is enacted, that foreign corn, meal, or flour, may be imported for home consumption, "whenever the average prices of the several sorts of British corn made up and published in the manner now by law required shall be at or above the prices hereafter mentioned, that is to say, whenever wheat shall be at or above the price of eighty shillings per quarter; whenever rye, peas, and beans, shall be at or above the price of fifty-three shillings per quarter; whenever barley, beer, or bigg, shall be at or above the price of forty shillings per quarter; and whenever oats shall be at or above the price of twenty-seven shillings per quarter." It should also be observed, that, in indictments for maiming cattle, the indictment always charges the maiming to be of a certain cow," or the like, and never uses the word "cattle;" and, in the case of Rex v. Chalkley, before cited, it was held, that the charging of the party with maiming "certain cattle," without specifying what species of cattle, would not be sufficient.

(c) At the Reading Spring Assizes, 1831, William Brown was charged with having maliciously set fire to a stack of straw. It appeared that the wheat had been cut and carried, and that the stubble had been mown off, and made into the rick in question; and this was called by the witnesses, a haulm rick. It was objected, that this was not a stack of straw, as the material of which it was made was not straw. Mr. Justice Patteson said, he would not stop the case, as it might be argued that every part of the stalk of the corn, when cut, was straw; but that, if the prisoner was convicted, he would reserve the point, as he considered it of great importance, that it should be decided whethe. stacks of this kind were within the act of par liament or not.