to kill and murder. No one who received it could have any doubt as to what the writer meant to threaten.

The prisoner was acquitted on the facts of the case.

Justice, and Busby, for the prosecution.

Curwood, and Carrington, for the defence.

[Attorneys-Collier, and Ward.]

*564]

*HOME SPRING CIRCUIT. 1831.

BEFORE MR. BARON BAYLEY AND MR. BARON GARROW.

A prisoner, when before the committing magistrate, was sworn by mistake, he being supposed to be a witness; as soon as the mistake was discovered, the deposition which was begun was destroyed and the prisoner cautioned. After this he made a statement:-Held, that such statement was receivable in evidence.

THE prisoners were indicted for arson. For the prosecution, a statement made by one of the prisoners before a magistrate was offered in evidence; and the committing magistrate was called to prove it. He stated upon cross-examination, that when this prisoner was first brought before the magistrate, it was thought he had appeared as a witness, and by mistake he was sworn; but it being discovered that he was one of the accused persons, the deposition which had been commenced was torn. The prisoner subsequently made a statement, after having been cautioned by the magistrate; and that statement was now offered in evidence. Ryland, for the prisoners, objected to this being received in evidence. The whole examination before the magistrate was but one transaction; and an oath having been administered to him, it was binding during the whole inquiry :— This statement, therefore, was to be considered as *having been made *565] upon oath, and consequent' was not receivable in evidence. GARROW, B. What was first taken down and afterwards destroyed does not prejudice the prisoner; we do not know what he said; it is as if it never had existed.

The evidence was received and the prisoners were convicted.

Adolphus, and Dowling, for the prosecution.

Ryland, and Robinson, for the prisoners.

MAIDSTONE ASSIZES.

BEFORE MR. BARON GARROW.

REX v. COLLISON. March 16.

Two private watchmen, seeing the prisoner and another person with two carts laden with apples, went up to them, intending, as soon as they could get assistance, to secure them; one of the watchmen walked beside the prisoner, and the other watchman beside the other person, at some distance from the prisoner. The other person wounded the watchman who was near him :-Held, that the prisoner could not be convicted of this wounding unless the Jury should be satisfied that the prisoner and the other person had not only gone out with a common purpose of stealing apples, but also had the common purpose of resisting, with extreme violence, any person who might attempt to apprehend them.

THE prisoner was indicted for an assault and wounding, with intent to murder. There were other counts in the indictment varying the intent, but no count charging it to have been with intent to resist apprehension.

It appeared, that the prosecutor and another man, on the night mentioned in the indictment, had been employed by a gentleman named Rider, as watchmen about his premises; and that, in the course of the night, they saw two carts driven by the prisoner and another man, which contained apples; and that, suspecting them to have been stolen, they walked on with the prisoner and his companion, intending to accompany them until they could obtain assistance to take them into custody. The prisoner and one of the watchmen walked at some distance from the others, and while they were so going along, the prisoner's companion stepped back, and with a bludgeon which he carried with him, struck and wounded the watchman with whom he had been walking, and inflicted on him several most severe bruises.

[*566

GARROW, B. To make the prisoner a principal, the Jury must be satisfied, that, when he and his companion went out with a common illegal purpose of committing the felony of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any persons who might endeavour to apprehend them; but if they had only the common purpose of stealing apples, and the violence of the prisoner's companion was merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert, the prisoner will be enti tled to an acquittal. Verdict-Not guilty.

Clarkson, and Rider, for the prosecution.

Espinasse, for the prisoner.

See the case of Rex v. Hawkins, 3 C. & P. 392, and the authorities there cited.

REX v. FAGG. March 17.

If a prisoner is brought before a magistrate, his statement ought not to be taken till the evidence against him is gone through, and he should be then asked, if he has anything to say in answer to the charge.

THE prisoner was indicted for arson.

The counsel for the prosecution offered in evidence a statement in writing made by the prisoner before the magistrates, and which it appeared he had made before the evidence in support of the charge had been gone through.

GARROW, B., inclined strongly to think that it was inadmissible. His Lordship observed, that nothing which a prisoner stated, before he knew what the evidence against him was, ought to be used to criminate him;

[*567

nd censured the practice of taking such a statement from a prisoner, who should
nly be asked, if he wished to say anything in answer to the charge, when he
ad heard all that the witnesses in support of it had to say against him.
His Lordship, however, admitted the evidence, but expressed his doubts as to
ts legality.
The prisoner was acquitted.

Adolphus, and Baker, for the prosecution.
Clarkson, for the prisoner.

*568] *NORFOLK SPRING CIRCUIT.

1831.

BEFORE MR. JUSTICE GASELEE AND MR. JUSTICE ALDERSON.

The owner of sheep in a field which had been worried by a dog, shot the dog when in another field at some distance off:-Held, in an action by the owner of the dog, that the defendant was not justified in the act of shooting, as it was not done in protection of his property.

ACTION for shooting the plaintiff's dog. It was proved, that the dog had worried some sheep belonging to the defendant; but it appeared that he had left the field in which the sheep were, had crossed an adjoining close, and was in a third when the defendant shot him.

ALDERSON, J., said, that whatever the provocation to shoot the dog might be, yet the verdict must pass for the plaintiff, for it was clear that the dog was not shot in protection of the defendant's property, as it was after he had left the field in which the sheep were. But, though there could not be a verdict for the defendant, the habits of the dog might be considered in mitigation of damages. Verdict for the plaintiff. Damages-One Guinea.

Storks, Serjt., and Bligh, for the plaintiff.
Kelly, and Praed, for the defendant.

[Attorneys-Parchell, and James.]

*569]

*CAMBRIDGE ASSIZES.

BEFORE MR. JUSTICE ALDERSON.

REX v. WILLIAM SMITH. March 15.

An indictment for setting fire to a barge, the property of another, ought to contain an aver ment that it was done with intent to injure the owner.

THE prisoner was indicted for having wilfully and maliciously set fire to a

barge, the property of Henry Stevens. did it with intent to prejudice, &c. (a)

There was no averment that the prisoner

ALDERSON, J., was of opinion that such an averment was necessary.

Gunning, for the prosecution, submitted that the indictment was sufficient without it, and referred, in support of his opinion, to the form in Archbold's Criminal Law, in which no such allegation was contained.(b)

ALDERSON, J., observed, that at least it would have been safer to have had it; but said, that he would confer with Mr. Justice Gaselee on the point, and if he agreed with him, he would reserve the case for the opinion of the Judges. Mr. Justice GASELEE, on being consulted, was of opinion that the indictment was insufficient. But the Jury *acquitted the prisoner upon the merits, and therefore, any further consideration of the point became unnecessary.(c)

Gunning, for the prosecution.
Smith, for the prisoner.

[*570

(a) By the stat. 7 & 8 Geo. 4, c. 30, s. 9, it is enacted, that "if any person shall unlawfully and maliciously set fire to, or in anywise destroy any ship or vessel, whether the same be complete or in an unfinished state, or shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, with intent thereby to prejudice any owner or part owner of such ship or vessel, or of any goods on board the same, or any person that hath underwritten or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or upon any goods on board the same, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon."

(b) See title Arson," p. 175; but see also Jervis's edit. p. 261.

(c) Mr. Justice Alderson intimated, that, if the prisoner had been convicted, he should have reserved, for the opinion of the Judges, the question whether a barge was a vessel within the meaning of the act of parliament. See Rex v. Bowyer, ante, p. 559.

NORFOLK ASSIZES.

BEFORE MR. JUSTICE ALDERSON.

REX v. PARRATT. Thetford, March 17.

The captain of a vessel said to one of his sailors suspected of having stolen a watch-" That unfortunate watch has been found, and if you do not tell me who your partner was, I will commit you to prison as soon as we get to Newcastle-You are a damned villain, and the gallows is painted in your face:"-Held, that a confession made by the sailor after this threat was not receivable in evidence on his trial for the felony.

THE prisoner was charged with having robbed John Field of his watch at Clay-next-the-sea. It appeared that he was a mariner on board a vessel called the Abeona, belonging to Newcastle. The watch was found by the mate of the vessel concealed in the cable, and given by him to the captain. Two hours after this, the captain said to the prisoner "Parratt, that unfortunate watch has been found, and if you do not tell me who your partner was, I will commit you to prison as soon as we get to Newcastle. You are a damned villain, and the gallows is painted in your face." Upon this the prisoner made a confession, which Preston, for the prosecution, proposed to offer in evidence.

Palmer, for the prisoner, submitted that, after such a threat, no statement of the prisoner's could be received.

ALDERSON, J., was of that opinion, and the confession was not admitted. Preston, for the prosecution.

Palmer, for the prisoner.

*571]

*REX v. ELIZABETH POWELS.

A prisoner was indicted for mixing sponge with milk, and administering it with intent to poison. The indictment was held insufficient, because it did not aver that the sponge was of a deleterious or poisonous nature.

THE prisoner was indicted for having mixed a quantity of sponge (cut into small pieces) with milk, and given it to her husband, with intent to poison him. An objection was taken to the indictment, on the ground that it did not set forth that the sponge was of a deleterious or poisonous nature.

The learned Judge was of opinion that the objection was good, and the prisoner was acquitted.

REX v. QUINCH.

It is the duty of a coroner in a case of death occurring in a pugilistic encounter, to examine a surgeon as to the cause of the death.

THE prisoner was indicted for the manslaughter of W. Abel. It appeared that the prisoner and the deceased quarrelled, and the deceased provoked the prisoner to fight. After they had fought several rounds, the deceased fell, was conveyed away, and soon after died, before any surgeon arrived to give him assistance. An inquest had been held upon the body, but no surgeon was examined before the coroner.

ALDERSON, J., animadverted on this omission on the part of the coroner, (a) and observed, that, in the absence of the testimony of the surgeon, it was impossible to say to what cause the death of the deceased was to be attributed. The prisoner was acquitted.

(a) We were subsequently informed that a surgeon was in attendance at the inquest, but, being anxious to be set at liberty, was allowed to depart to attend to his professional duties.

*572]

*OLD BAILEY MAY SESSION.

1831.

BEFORE MR. JUSTICE LITTLEDALE, AND MR. JUSTICE BOSANQUET.

REX v. WILLIAM PEARSON. May 17.

A person employed at a receiving-house of the General Post-Office, to clean boots, &c., and to assist in tying up the letter-bag, is not a servant of the post-office, within the stat. 52 Geo. 3, c. 143, s. 2.

A receiving house is not a post-office within that statute, but it is "a place for the receipt of letters;" and the whole shop is to be considered as the "place for the receipt of letters," and not the mere letter-box; and therefore, if a person take a letter and put it on the shop counter of the receiving house, or give it to one of the persons belonging to the shop there, that is putting the letter into the post.

In an indictment on this stat. it was alleged, that a letter was "to be delivered at T." The letter was addressed T. house," which was a house in the parish of T.:-Held, sufficient. To constitute the offence of stealing a letter from a place for the receipt of letters under sect. 3 of this act, it is essential that the letter should be carried out of the shop which was the place for the receipt of letters; and, therefore, if a person take a letter and steal its contents, without taking the letter out of the shop, that is not an offence within this section of the act of parliament.

INDICTMENT on the stat. 52 Geo. 3, c. 143. (a) The first count stated that (a) By the stat. 52 Geo. 3, c. 143, s. 2, it is enacted-"That if any deputy, clerk, agent, letter carrier, post-boy, or rider, or any other officer or person whatsoever, employed by or under the Post Office of Great Britain, in receiving, stamping, sorting, charging, carrying,