1831.

REX

v.

DUNN.

to another person, is very often a nice question; but it will always exclude a statement made to the same person (b).

March 10th.

A person who

was told by the

REX V. THOMAS CROCKETT.

MURDER. The prisoner was indicted for the murder

surgeon that she of Jane White, by administering corrosive sublimate to

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:

her.

It was proposed to give in evidence a declaration of the deceased, as a declaration in articulo mortis. With a view of shewing 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 Held, that this 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."

shewed such a degree of hope in her mind, as

to render a statement she then made inadmissible as a declaration in articulo mortis.

Mr. Justice BOSANQUET.-This shews 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.

1831.

REX

v.

CROCKETT.

REX v. FLETCHER and Others.

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.

If one employed

for hire, appropriate them to

to carry goods

his own use, but

does not break larceny, although the person so employed

bulk, this is no

were not a common carrier, but

was only employed in this

particular in

stance.

1831.

REX

บ.

FLETCHER.

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.

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. It is proved that they were to be paid for taking these goods. There is the case of a captain of a ship, which is a very strong authority on this point (a). The prisoners must be acquitted.

Greaves, for the prosecution.

Meeson, for the defence.

(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 l

Verdict-Not guilty.

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.

1831.

REX v. WESTWOOD and Others.

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 shew, that one of the game keepers of Mr. Littleton lost his coat 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 (a).

Mr. Justice PATTESON.-In the case of Rex v. Ellis (b), larceny. 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.

1831.

March 16th.

In opening a case of felony the counsel for the prosecution ought not to

state any particular expressions supposed

to have been

REX v. SWATKINS and Others.

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 100%., of Richard Powell Williams (a)."

C. Phillips, for the prosecution, in opening the case,

used by the pri- was proceeding to state certain expressions used by the

soner, nor the

precise words of

any confession,

but he may state

the general ef

A prisoner was

in the custody

prisoners.

Godson, Carrington, and F. V. Lee, objected, that, in fect of what the opening a case of felony, confessions ought not to be statprisoner said. ed; 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.

of A., a constable; B., another

constable, coming into the room, A. left it, and the prisoner immediately made a confession to B.:

C. Phillips, contra.-If the counsel for the prosecution Held, that if the has a right to open a case, I know of no law which prevents him from stating any evidence, that he is instructed

prisoner was in custody as an

accused party,

that A. must be that he shall have to lay before the Jury.

called to prove that he had held out no induce

ment to the pri

soner to confess, fession made to

before the con

B. is receivable in evidence;

but if it appear that the prisoner was not then

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. Jus

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 1007. 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.

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