Page images
PDF
EPUB

Misdemeanor merges in a felony.

When offences created by sta. tute are not indictable.

ment will lie for disobeying the injunction of the Legislature. (9) And this mode of proceeding in such case is not taken away by a subsequent statute pointing out a particular mode of punishment for such disobedience. (r) Where the same statute which enjoins an act to be done contains also an enactment providing for a particular mode of proceeding, as commitment, in case of neglect or refusal, it has been doubted whether an indictment will lie. (s) But where a statute only adds a further penalty to an offence prohibited by the common law, there is no doubt but that the offender may still be indicted, if the prosecutor think fit, at the common law. (t) Where a statute makes that felony which before was a misdemeanor only, the misdemeanor is merged, and there can be no prosecution afterwards for the misdemeanor : but if it gives a new punishment or new mode of proceeding for what before was a misdemeanor, without altering the class or character of the offence, the new punishment or new mode of proceeding is cumulative only, and the offender may be proceeded against as before for the common law misdemeanor. Therefore, notwithstanding the provisions of 9 & 10 Wm. 3, c. 32, against blasphemy, it was held that a blasphemous libel might be prosecuted as a common law offence. (u) It may be observed also, that it is an offence at common law to obstruct the execution of powers granted by statute. (v) But where a public act regulates rights which are merely private, an indictment will not lie for the infringement of those rights : as if a statute empowers the setting out of private roads and the directing their repairs, an indictment does not lie for not repairing them. (w)

Where the statute making a new offence only inflicts a forfeiture and specifies the remedy, an indictment will not lie. (x) The true rule is stated to be this: Where the offence was punishable by a common law proceeding, before the passing of a statute which prescribes a particular remedy by a summary proceeding, then either

be pursued, as the particular remedy is cumulative, and does not exclude the common law punishment: but where the statute creates a new offence by prohibiting and making unlawful anything which was lawful before, and appoints a particular remedy against such new offence by a particular sanction and particular method of proceeding, such method of proceeding must be pursued and no other. (y) The mention of other methods of proceeding impliedly excludes that of indictment; (z) unless such methods of pro(9) Rex v. Davis, Say. 133.

method may

(t) 2 Hawk. P. C. c. 25, s. 4. Rex t. (i) Rex v. Boyal, 2 Burr, 832. Rex v. Wigg, Lord Raym. 1163. 2 Salk. 460. Balme, Cowp. 648, cited in the notes to 2 And see the cases collected in Rex t. Hawk. P. C. c. 25, s. 4. And, gene- Dickenson, 1 Saund 135, a, note (4). rally speaking, the Court of King's Bench (u) Rex v. Carlisle. 3 B. & A. 161, 164. cannot be ousted of its jurisdiction but by (o) Rex v. Smith and others. Dougl. express words, or by necessary implication. 441. And an indictment for such offence By Ashurst, J., in Cates v. Knight, 3 T. R. need not, and ought not, to conclude contra

formam statuti. (s) Rex r. Commings and another, 5 (w) Rex v. Richards, 8 T. R. 637. Mod. 179. Rex v. King, 2 Str. 1268 : () Rex v. Wright, 1 Burr. 543. Rex Cases of indictments against overseers for o. Douse, 1 Lord Raym. 672. neglecting to account, and for not paying (y) Rex”. Robinson, 2 Burr. 805. Rex over the balance within the time limited by v. Carlisle, 3 B. & A. 163. Rex v. Boyal, the statute. But see the authorities: and, 2 Burr. 832. See also Hartley » Hooker, in 2 Nol. P. L. 453, it is stated that an in- Cowp. 524. Rex v. Wright, 1 Burr. 543. dictment will lie in these cases, though the Rex v. Balme, Cowp. 650. And see statute provides another remedy by com- Faulkner's case, 1 Saund. 250, note (3). mitment. See cases there cited.

(z) 2 Hawk, c. 25, s. 4.

415.

ceeding are given by a separate and substantive clause. (a) Thus it has been held, (6) and seems now to be settled, (c) that where a statute making a new offence, not prohibited by the common law, appoints in the same clause a particular manner of proceeding against the offender, as by commitment or action of debt or information, without mentioning an indictment, no indictment can be maintained. By 21 Hen. 8, c. 13, s. 1, no spiritual person shall take land to farm on pain to forfeit 10l. per month ; and it was decided on this statute, that as the clause prohibiting the act specified the punishment, the defendant was not liable to be indicted. (d) And it was held not to be an indictable offence to keep an alehouse without a license, because a particular punishment, namely, that the party be committed by two justices, was provided by the statute. (e) And an indictment for assaulting and beating a custom-house officer in the execution of his office was quashed, because the 13 & 14 Car. 2, c. ll, s. 6, appointed a particular mode of punishment for that offence. (f) So an indictment for killing a hare was quashed, on the ground that it was not indictable; the statute 5 Anne, c. 14, having appointed a summary mode of proceeding before justices. (g) In one case, where no appropriation of the penalty, nor mode of recovering it, was pointed out by the statute, the Court held that it could not be recovered by indictment; but it was in the nature of a debt to the crown, and suable for in a Court of revenue only. (h)

Amongst other decisions as to cases which cannot be made the Cases not subject of indictment, it appears to have been ruled that an indict- indictable. ment will not lie for setting a person on the footway in a street to distribute handbills whereby the footway was impeded and obstructed; (i) nor for throwing down skins into a public way, by which a personal injury is accidentally occasioned ; (j) nor for acting, not being qualified, as a justice of peace; (k) nor for selling short measure; () nor for excluding commoners by enclosing ; (m) nor for an attempt to defraud, if neither by false tokens or conspiracy; (n) (a) Ante, p. 49.

(j) Rex v. Gill, 1 Stra. 190. (6) Glass's case, 3 Salk, 350.

(k) Castle's case, Cro. Jac. 643. (c) 2 Hawk. c. 25, s. 4.

(1) Rex v. Osborn, 3 Burr. 1697 ; but (d) Rex c. Wright, 1 Burr. 543.

selling by false measure is indictable. Ibid. (e) Anon. 3 Salk. 25. S. P. Watson's (m) Willoughby's case, Cro. Eliz. 90. case, 1 Salk. 45, and Rex v. Edwards, 3 (n) Rex v. Channell, 2 Stra. 793. InSalk, 27. And see Faulkner's case, 1 dictment against a miller for taking and Saund. 248, and Mr. Serj. Williams's note detaining part of the corn sent to him ; and (3) at page 250 e.

Rex v. Bryan, 2 Stra. 866. Anon. 6 Mod. (f) Anon. 2 Lord Raym. 991. 3 Salk. 105. Rex v. Wheatley, 2 Burr. 1125. Rex 189. So an indictment for keeping an ale- v. Wilders, cited 2 Burr. 1128, and Rex v. house was quashed, because the 3 Car. 1, Haynes, 4 M. & S. 214. This last case C3, had directed a particular remedy. Rex was an indictment against a miller, for re6. James, cited in Rex v. Buck, 1 Stra. ceiving good barley to grind at his mill, 679.

and delivering a mixture of oat and barley (g) Rex v. Buck, 1 Stra. 679.

meal, different from the produce of the (k) Rex o. Malland, 2 Stra. 828, a case barley, and which was musty and unwholeupon the 12th Geo. 1, c. 25, which imposes some. On the part of the prosecution, a a penalty of twenty shillings per thousand note in 1 Hawk. P. C. c. 71, s. 1, referring for burning place bricks and stock bricks to 1 Sess. Ca. 217, was cited, where it is togetber.

laid down, “ that changing corn by a miller, (1) Rex v. Sermon, 1 Burr. 516. But it " and returning bad corn instead of it, is was beld by Lord Ellenborough that every punishable by indictment ; for, being in manthorised obstruction of a highway, to “ the way of trade, it is deemed an offence the annoyance of the King's subjects, is an " against the public :" but it was held that indictable offence in Rex o. Cross, 3 Campb. the indictment would not lie. Lord Ellen227, wbere it was held to be an indictable borough, in giving judgment, said, that if offence for stage coaches to stand plying the allegation had been that the miller depassengers in the public streets.

livered the mixture as an article for the food

for

nor for secreting another; (c) nor for bringing a bastard child into a parish ; (p) nor for entertaining idle and vagrant persons in the defendant's house ; (9) nor for keeping a house to receive women with child, and deliver them. (r) And cases of non-feasance and particular wrong done to another are not in general the subject of indictment: but we have seen that circumstances may exist of mere non-feasance towards a child of tender years (such as the neglect or refusal of a master to provide sufficient food and sustenance for such a child, being his servant and under his dominion and control), which may amount to an indictable offence. (s)

It has been held, that where a mayor of a city, being a justice, made an order that a company in the city should admit one to be a freeman of that corporation, and the master of the company, being served with the order, refused to obey it, such refusal was not the subject of indictment. (t) And an indictment will not lie for not curing a person of a disease according to promise, for it is not a public offence, and no more in effect than a ground for an action on the case. (u) To keep an open shop in a city, not being free of the city, contrary to the immemorial custom there, has been held not to be indictable. (v) of man, it might possibly have sustained the law for the crime aforesaid. But qu. the indictment, but that he could not say (p) Rex o. Warne, 1 Stra. 644, it apthat its being musty and unwholesome pearing that the parish could not be busnecessarily and ex vi termini imported, that thened, the child being born out of it. But it was for the food of man; and it was not see a precedent of an indictment for a misstated that it was to be used for the susten- demeanor at common law, in lodging an tation of man, but only that it was a mix- inmate, who was delivered of a bastard child, ture of oat and barley meal. His Lordship which became chargeable to the liberty. ? then proceeds : “ As to the other point, Chit. Crim. Law, 700. And see also id. “that this is not an indictable offence, 699, and 4 Wentw. 353. Cro. Circ. Comp. " because it respects a matter transacted in (7th ed.) 648, precedents of indictments “ the course of trade, and where no tokens for misdemeanors at common law, in bring

were exhibited by which the party ac- ing such persons into parishes in which they “quired any greater degree of credit, if the had no settlements, and in which they

case had been that this miller was owner shortly died, whereby the parishioners were “ of a soke-mill, to which the inhabitants

put to expense. In a late case it is stated of the vicinage were bound to resort, in to have been held, that no indictment will “ order to get their corn ground, and that lie for procuring the marriage of a female “ the miller, abusing the confidence of this pauper with a labouring man of another “bis situation, had made it a colour for parish, who is not actually chargeable. Rex

practising a fraud, this might have pre- v. Tanner and Another, 1 Esp. 304. But * sented a different aspect ; but as it now if the facts of the case will warrant a charge “ is, it seems to be no more than the case of of conspiracy, the offence would be sub

a common tradesman, who is guilty of a stantiated, if under the circumstances the “ fraud in a matter of trade or dealing ; parish might possibly be put to expense. “ such as is adverted to in Rex v. Wheat. See 1 Nol. P. L. Settlement by Marriage, • ley, and the other cases, as not being in

Sect. I. in the notes. Rex v. Seward, 1 “ dictable." And see also Rex v. Bower, A. & E. 706. 3 N. & M. 557. Cowp. 323, as to the point that for an im- (9) Rex 0. Langley, 1 Lord Raym. position, which a man's own prudence ought 790. to guard him against, an indictment does (r) Rex v. Macdonald, 2 Burr. 1646. not lie, but he is left to his civil remedy. (8) Ante, p. 46. But in Rex v. Dixon, 3 M. & S. 11, it was (t) Rex v. Atkinson, 3 Salk. 188. held, that a baker who sells bread contain- (u) Rex v. Bradford, 1 Lord Raym. ing alum, in a shape which renders it 366. 3 Salk. 189. In an Anon. case, 2 noxious, is guilty of an indictable offence, Salk, 522, it appears to have been held. if he ordered the alum to be introduced into that if a pawnbroker refuses, upon tender the bread, although he gave directions for of the money, to deliver the goods pledged, mixing it up in the manner which would he may be indicted. But Rex v. Jones, 1 have rendered it harmless. See Post, Book Salk. 379, is contra. II. Chap. ix., s. 2.

(v) Rex v. George, 3 Salk. 188. Nor (0) Rex v. Chaundler, 2 Lord Raym. is it an indictable offence to exercise trade 1368 : an indictment for secreting A., who in a borough contrary to the bye-laws of was with child by the defendant, to hinder that borough. Rex v. Sharpless, 4 T. R. her evidence, and to elude the execution of 777.

[ocr errors]

With regard to trespasses, it has been held that a mere act of Trespasses not trespass (such as entering a yard and digging the ground, and indictable. erecting a shed or cutting a stable), committed by one person, unaccompanied by any circumstances constituting a breach of the peace, is not indictable; and the Court quashed such indictment on motion. (w) And an indictment against one person for pulling off the thatch' of a man's house, who was in the peaceable possession of it

, was also quashed on motion. (x) So an indictment for taking away chattels must import that such a degree of force was used as made the taking an offence against the public. An indictment averred that the defendant with force and arms unlawfully, forcibly, and injuriously seized, took, and carried away, of and from J. S., and against his will, a paper-writing purporting to be a warrant to apprehend the defendant for forgery; and, after a conviction, a motion was made in arrest of judgment on the ground that the charge did not amount to an indictable offence. Perryn, B., took time to consider to the subsequent assizes, and had the case argued before him; and then held the objection valid, as the indictment charged nothing but a mere private trespass, and neither the king nor the public appeared to have any interest therein. (y)

But where the indictment stated the entering a dwelling house, and vi et armis and with strong hand turning out the prosecutor, the Court refused to quash it. (2) And an indictment will lie for taking goods forcibly, if such taking be proved to be a breach of the peace : (a) and though such goods are the prosecutor's own property, yet, if he take them in that manner, he will be guilty. (b)

(r) Rex o. Stort, 3 Burr. 1699.
(*) Rex v. Atkins, 3 Burr. 1706.

(y) Rex o. Gardiner, Salisbury, 1780, MS. Bayley, J.

(z) Rex v. Storr, 3 Burr. 1699.
(a) Anon. 3 Salk. 187.
(6) Ibid.

BOOK THE SECOND.

OF OFFENCES PRINCIPALLY AFFECTING THE
GOVERNMENT, THE PUBLIC PEACE, OR

THE PUBLIC RIGHTS.

CHAPTER THE FIRST.

OF COUNTERFEITING OR IMPAIRING COIN-OF IMPORTING INTO THE

KINGDOM COUNTERFEIT OR LIGHT MONEY-AND OF EXPORTING
COUNTERFEIT MONEY,

SECT. I.

coin.

Of Counterfeiting Coin. The legislature has made provision against the counterfeiting of the following descriptions of coin, namely :--I. The king's current gold or silver coin. — II. Foreign gold, silver, or copper coin.—And,

III. The copper money of this realm. Of counterfeit

I. The first of these, usually called the king's money, was protected ing the king's by enactments, which placed the offence of counterfeiting it in the gold and silver

highest class of crimes, upon the ground that the royal majesty of the
crown was affected by such offence in a great prerogative of govern-
ment; the coining and legitimation of money, and the giving it its
current value, being the unquestionable prerogatives of the crown. (a)
But these enactments are repealed by the 2 Wm. 4, c. 34, s. 1.
It

appears that the coin or money of this kingdom consists proking's money. perly of gold or silver only, with a certain alloy, constituting what

is called sterling, coined and issued by the king's authority: and therefore such money is supposed to be referred to by any statute naming“ money.” generally. (b). The weight, alloy, impression, and denomination, of money made in this kingdom are generally settled by indenture between the king and the master of the mint; but the statute, 56 Geo. 3, c. 68, provided, with respect to the new silver coinage, that the bullion shall be coined into silver coins of a standard and fineness of eleven ounces two pennyweights of fine silver, and eighteen pennyweights of alloy in the pound troy, and in weight after the rate of sixty-six shillings to every pound troy, whether the same be coined in crowns, half-crowns, shillings, or sixpences, or pieces of a lower denomination. A proclamation has in some cases been

What is the

(a) 1 Hale, 188. 1 East, P. C. 148.
(b) 1 East, P. C. 147. And see 1 Hale,

chap. 17, 18, 19, and 20,

« PreviousContinue »