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WHERE a man was indicted for shooting at his wife with intent to Page 7. murder her, and, previous to the commencement of his trial, he applied to the Judge to know whether his wife was to be produced as a witness for the prosecution, stating that her presence was necessary for his interests ; the counsel for the prosecution stated that he should not call her; and the Judge told the prisoner that although she was a competent witness against him, yet her presence was not indispensable. The prisoper was defended by counsel, who set up for him the defence of insanity. The prisoner, however, objected to such a defence, asserting that he was not insane; and he was allowed by the Judge to suggest questions to be put by his Lordship to the witnesses for the prosecution to negative the supposition that he was insane ; and his Lordship also, at the request of the prisoner, allowed additional witnesses to be called on his behalf for the same purpose. They, however, failed in showing that the defence was an incorrect one, and, on the contrary, their evidence tended to establish it more clearly, and the prisoner was acquitted on the ground of insanity. (Res. v. Pearce, 9 C. & P. 667.) Note (a) for “Reg.” read “ Rex.”
Page 11. To note (k) add "see 1 Burr. R. 600.”
Page 20. If no adultery has actually been committed, but the goods of the hus. Page 23. band are removed from the house by the wife and the intended adulterer, with an intent that the wife should elope with him, this taking of the goods is, in point of law, a larceny. If a wife elope with an adulterer, who takes her clothes with them, it is a larceny ; and it is as much a larceny to steal her clothes, which are her husband's property, as it would be to steal anything else that is his property. If, on the trial of a man for larceny, the jury are satisfied that he took any of the prosecutor's goods, there then being a criminal intention, or there having been a criminal act between the prisoner and the prosecutor's wife, the jury ought to convict, even though the goods were delivered to the prisoner by the prosecutor's wife; but if the jury should think that the prisoner took away the goods merely to get away the wife from the husband as a friend only, and without any reference to any connexion between the prisoner and the wife, either actual or intended, they ought to acquit. (Reg. v. Tollett, 1 C. & Mars. 112, Coleridge, J.)
Where three persons were jointly indicted for maliciously wounding, Page 28. and it appeared that two of them first attacked and wounded the prosecutor, and the third did not come up until after one of the first two had gone away, and then kicked the prosecutor whilst he was on the ground struggling with the other; it was held that the two who jointly assaulted the prosecutor and wounded him, might be found guilty either of the felony or of an assault only, but that the third must, under the circumstances, be acquitted altogether. (Reg. v. M-Phane, 1 C. & Mars. 212, Tindal, C. J.)
Where, upon an indictment against Tuckwell for stealing thirty sove. Page 30. reigns in a dwelling-house, and against Perkins for inciting him so to do, it appeared that ins let Tuckwell into his master's house on a Saturday afternoon, and concealed him there during the night, in order that
he might rob the house; and on the Sunday morning Perkins left the house in pursuance of a previous arrangement, and Tuckwell in his absence stole the money out of the master's cash-box; it was held that Perkins was properly indicted as an accessory before the fact, as the crime was not commenced when he left the premises. (Reg. v. Tuckwell, 1 C. & Mars. 215, Coleridge, J.)
Where an indictment charged that Loose a certain vessel, on a certain voyage on the high seas being, feloniously did cast away, with intent to prejudice certain persons. And that the prisoner before the said felony was committed did feloniously incite, move, aid, counsel, hire, and command Loose the said felony in manner and form aforesaid to do and commit; and it was objected that the indictment was not properly framed as an indictment for a substantive offence within the 7 Geo. 4, c. 64, s. 9, and as the principal had not been convicted the accessory before the fact could not be tried; the Court overruled the objections, and, upon a case reserved, the Judges held the indictment sufficient. (Reg. v. Wallace, 1 C. & Mars. 200.)
To note (dd) add “ But this decision seems to be overruled by Rex v.
Note (n) dele “ Wickham ” and insert “Crossley."
Under the 6 & 7 Wm. 4, c. 86, s. 20, the father of a child, if required by the registrar within forty-two days after the birth is bound to inform the registrar of the particulars required by the act, and if he refuse such information he is indictable for a misdemeanor. (Reg. v. Price, 11 A. & E. 727.)
In the last marginal note for “imperfected ”read "perfected.”
The observations in note (6) are very much strengthened by the following case : -The first count charged the prisoners with uttering a counterfeit sixpence to A., and on the same day uttering another to B.; second count for uttering to C.; and third count for uttering to D. The prisoners were in a town together all the day in question, and in the evening quitted a public-house together, having first changed their clothes for the purpose of disguise. Each of them uttered three bad sixpences, made in the same mould, and of the same metal, to shopkeepers living within a short space of each other, and the prisoners were found together immediately afterwards with counterfeit money on their persons, but there was no proof that they were together at either of the utterings. There were other facts to show a community of purpose. On these facts, Erskine, J., at first called on the counsel for the prosecution to elect as to which of the prisoners he intended to proceed ; but it was contended that if the prisoners jointly provided themselves with the coin for uttering, and shared the proceeds afterwards, they were jointly guilty of each act of uttering ; that in misdemeanor there being no accessories, the acts which would make them accessories before the fact in felony made them principals on this charge, and that at all events one of them could be convicted of the two utterings on the same day, and the other for the single uttering, of which he was guilty, on one of the other counts. Erskine, J., then directed the trial to proceed, and in summing up told the jury that if two persons, having jointly prepared counterfeit coin, planned the uttering, and went on a joint expedition, and uttered, in concert, and by previous arrangement, the different pieces of coin, then the act of one would be the act of both, though they might not be proved to be actually together at each uttering. It might be different, if having possession of the counterfeit coin they shared it between them, and each went his own way, and acted independently of the other. If they thought they were acting in concert in the utterings charged, they should convict on the whole indictment. If they thought they were uttering indepen
dently of each other they might convict one of the two utterings on the
Page 83. An accessory before the fact to a felony committed on the high seas, Page 104. within the jurisdiction of the Admiralty, may be indicted and tried at the Central Criminal Court, by virtue of the 7 Geo. 4, c. 64, s. 9, and the 4 & 5 Wm. 4, c. 36, s. 22, although the person charged as the principal offender has not been “committed to or detained in” the gaol of Newgate for his offence. (Reg. v. Wallace, 1 C. & Mars. 200. All the Judges on a case reserved.) In note, for “& Tyrw.” read “ 2 Tyrw."
Page 110. Where a police officer was offered 1000l. to assist a party in obtaining Page 154. possession of a ward of the Court of Chancery, who had a fortune of 50001.
, and who afterwards married such party, Lord Eldon, C., said "the endeavour to bribe a man to commit an offence is itself a very serious offence, and the person who made that offer may not be aware of his danger.” (Wade v. Broughton, 3 Ves. & B. 172.)
Where, on the trial of an action brought to recover the amount of an Page 176. attorney's bill, in which there was a plea of maintenance, it appeared that Jesus College, Oxford, had given notice to set out tithes in kind to all the owners of old inclosures in the parish of Tredington, who had, as far as living memory went, paid certain sums of money in lieu of tithes for the old inclosures, and that at a meeting of the owners of such old inclosures, it was agreed by them that they should defend any suits, which should be instituted by Jesus College, to enforce the payment of tithes, and that the expenses of such defence should be paid by the owners in proportion to their interests, as ascertained by the poor rate; the owners considering that if Jesus College should succeed in one suit as to any part of the old inclosures, that would invalidate the payments as to all; and Jesus College afterwards filed seven bills in the Exchequer, and commissions were issued for the examination of witnesses in each suit, and depositions taken in all the suits ; but in one suit a greater number of depositions than in any other, and which related to there having been no payment of any tithe for the old inclosures, and there being a distinction in this respect, as far as living memory went, between the old and the new inclosures; and these depositions by consent had been used in all the suits; and nine issues having been directed to be tried, and the jury having retired to consider their verdict in the first, it was agreed that the verdicts in the other issues should be entered according to the finding of the jury in the first; but such jury was discharged without finding any verdict, and decrees were afterwards made, establishing some of the moduses and quashing others; it was held that the agreement to defend the suits was not maintenance; for, although the payments were not the same per acre, and although the interest in each payment was separate, yet all the owners of the old inclosures had an interest in supporting the moduses over all the old inclosures, and, consequently, the agreement was not officiously entered into in order to defend the suits. (Findon v. Parker, Worcester Spr. Ass. 1843, Wightman, J.) And the Court of Exchequer, in T. T., 1843, held, upon a rule to show cause why a nonsuit should not be entered, that this ruling was correct.
The true construction of the 9 Geo. 4, c. 31, s. 22, is not that the Page 187. party, in order to be deprived of the benefit of its provision, must have known at the time when he contracted the second marriage, that the first wife had been alive during the seven years preceding, but that to bring him within that provision, he must have been ignorant during the
whole of those seven years that she was alive. (Reg. v. Cullen, 9 C. &
P. 681, Patteson, J.) Page 187.
Where it appeared that the prisoner's first wife had left him sixteen years, and the second wife proved that she had known him for nine years living as a single man, and that she had never heard of the first wife, who appeared to have been living seventeen miles from where the prisoner resided, Cresswell, J., held that the prisoner was entitled to be acquitted under the proviso in sec. 22. (Reg. v. Jones, 1 C. & Mars.
614.) Page 213, Text, second line from the top, for “Anderson,” read “Alderson.”
See the 5 & 6 Vict. c. 113, which enacts, that all marriages theretofore had and celebrated in Ireland, by Presbyterian and other Protestant dissenting ministers and teachers, or those who, at the time of such marriage, had been such, shall be of the same force as if such marriages had been solemnized by clergymen of the United Church of England
and Ireland. Page 213.
Where in an action for criminal conversation, it appeared that the plaintiff had been married to his wife at the office of the British consulate at Beyrout, in Syria, in March, 1834, by a missionary clergyman of the United States, one attached to what in those States was known as the Episcopalian Sect—the Church of England in this country,--and the marriage was celebrated according to the forms of the Church of England, and the parties lived together for two years afterwards ; Lord Abinger, C. B., held the marriage sufficiently proved for the purpose of the cause; but the the Court of Exchequer have granted a rule, on the ground that the marriage was invalid, and suspended their judgment till the House of Lords have decided Reg. v. Carroll and Reg. v. Millis,
(Catherwood v. Caslon, 1 C. & Mars. 431.) Page 213. As to evidence of a marriage in Scotland, see Rex v. Dent, MSS.,
C. S. G., vol. 2, p. 811. Page 217. Where upon an indictment against the prisoner for bigamy, in marry
ing A. Taylor, his first wife, Ann Gooding, being then alive, an examined copy of the certificate of the marriage of the prisoner and Sarah Ann Gooding was produced ; Maule, J., held that the prisoner must be acquitted; there being no evidence to explain the circumstances of the difference in the name of the first wife, as described in the indictment, and in the certificate, and no evidence to show that the first wife was
known by both names. (Reg. v. Gooding, 1 C. & Mars. 297.) Page 257. Where in an action for libel, published in “ The Leicester Herald and
Midland Counties Advertiser,” a certified copy of the declaration from the stamp-office was put in, in which the title of the paper was stated to be “ The Leicester Herald and Midland Counties Advertiser," and the intended place of publication, “No. 23, Charles Street, in the parish of St. Margaret, in the borough of Leicester;" and a paper was offered in evidence, which agreed with that in the stamp-office declaration, but the place of publication was stated to be “at the corner of Charles Street and Hadfield Street, in the parish of St. Margaret, in the borough of Leicester;" Lord Denman, C. J., held that the evidence of identity was sufficient, and that the paper might be given in evidence. (Baker v. Wilkinson, 1 C. & Mars. 399.) It afterwards appeared that the house at which the paper was published, which was at the corner of Charles
Street and Hadfield Street, was No. 23, Charles Street. Page 253. Note (8) add, “ Baylis v. Lawrence, 11 A. & E. 920. S. P. and New
ton v. Rowe, in C. P., T. T., 1843. S. P.” Page 270. The 4 & 5 Vict. c. 56, s. 2, after reciting the 7 & 8 Geo. 4, c. 30, 4 & 5 Vict. s. 8, enacts, that “from and after the commencement of this act, if any c. 56, s. 2. person shall be convicted of any of the said offences hereinbefore last