On two counts charging ings on the same day, one judgment of On a conviction of two separate utterings, in two counts, one distinct utter judgment of two years' imprisonment under s. 7, of the 2 Wm. 4, c. 34, is bad. The first count charged the prisoner with uttering on the 2nd of December a counterfeit shilling; the second count charged him with uttering another counterfeit shilling on the same day and at the same place, and he was convicted of both utterings, and sentenced to two years' imprisonment, and, upon a case reserved, the judges were of opinion that the sentence was incorrect, and that there should have been consecutive judgments of one year's imprisonment each. (u) two years' imprisonment under 2 W. 4, c. 34, s. 7, can not be given. Indictment upon s. 2, of 15 Geo. 2, for have set out the former convictions and judgments with a prout patet per recordum. An indictment upon s. 2 of the 15 Geo. 2, for feloniously uttering counterfeit after two convictions for misdemeanors on the money the felony must same statute, must have set out the former convictions, and judgments, with a prout patet per recordum; and judgment for a misdemeanor could not be given upon an indictment for felony, bad for want of such an averment. The prisoner was convicted before Holroyd, J., for feloniously uttering a counterfeit shilling, well knowing the same to be counterfeit, having been twice before convicted of similar utterings, as misdemeanors. It was objected in arrest of judgment, that the present indictment, in setting forth the trial, conviction, and judgment, upon the second indictment for the second offence, (and which were essential to constitute the crime a felony as charged in the present indictment,) was defective in not stating or alleging a prout patet per recordum in respect of those proceedings, as appeared to have been done in the second indictment, in stating the proceedings had under the first indictment. It was also objected that there ought to have been an allegation that the former convictions and judgments remained in force unreversed, &c. And further, it was objected that the present indictment did not allege as facts the actual committing of the two former offences, or even the trials, convictions, and judgments upon both of them, but only the trial, conviction, and judgment, upon the second indictment, whereas the second indictment appeared to have alleged a trial, conviction, and judgment, upon the first. Upon these objections judgment was respited by the learned judge, who submitted to the judges whether the judgment should be arrested, or whether, in case the indictment should be deemed defective, as an indictment for felony, it would warrant a judgment for the offence as for a misdemeanor. The judges held that the indictment was bad for want of a prout patet per recordum in the statement of the conviction and judgment for the second offence; and that no judgment could be given for the misdemeanor upon this record. (v) Evidence of a guilty knowledge. Other utterings of base coin. For the purpose of proving the act charged in the indictment to have been done knowingly, it is the practice to receive proof of more than one uttering committed by the party about the same time, though only one uttering be charged in the indictment. This is in conformity with the practice upon indictments for disposing of and putting away forged bank notes, knowing them to be forged; (x) (u) Rex v. Robinson, R. & M. C. R. C. 413. (v) Rex v. Turner, Mich. T., 1824. Ry. & Mood. C. C. R. 47. And see Rex v. Smith, Russ. & Ry. 5. 1 East, P. C. 183. 2 Leach, 858. Rex v. Booth, Russ. & Ry. 7. (1) Rex v. Whiley & Haines, 2 Leach, 983. 1 New R. 92. Tattershall's case, cited in Whiley & Haines. And see Ball's case, 1 Campb. 325, where upon an indictment at Lewes, Sum. Assizes, 1807, against upon one of which, the counsel for the prisoners, objecting to such evidence, contended that it would not be allowed upon an indictment for uttering bad money; and stated that the proof in such case was always exclusively confined to the particular uttering charged in the indictment. But Mr. B. Thomson said, that he by no means agreed in the conclusion of the prisoner's counsel, that the prosecutor could not give evidence of another uttering on the same day to prove the guilty knowledge. "Such other uttering," he observed, "cannot be punished until it has become the subject of a distinct and separate charge; but it affords strong evidence of the knowledge of the prisoner that the money he uttered was bad. If a man utter a bad shilling, and fifty other bad shillings are found upon him, this would bring him within the description of a common utterer: (xx) but if the indictment do not contain that charge, yet Possession of these circumstances may be given in evidence on any other charge of other base coin. uttering, to shew that he uttered the money with a knowledge of its being bad." (y) So upon an indictment for uttering a counterfeit shilling, the fact of five other counterfeit shillings having been found in the prisoner's possession five days afterwards, has been held admissible in order to show guilty knowledge. (2) An associate, not present nor co-operating at an uttering of bad Associate not money, is not liable to be convicted with the actual utterer, merely co-operating, on the ground that he is an utterer also, and has other bad money about him for the purpose of uttering. And it appears not to be a sufficient ground for convicting a person of the second offence, of having other bad money in possession at the time, that such person was associating with another, not present at the uttering, who had large quantities of bad money about him for circulation; or that such person on the day after the uttering had in possession a small number of pieces of bad money. The prisoners, Job and Sarah Else, were indicted for uttering a bad shilling, having other bad shillings in their possession at the time. Upon the evidence it appeared that the uttering was by the woman alone, on the 30th of January, in the absence of the man; that they both slept together on the 29th and 31st; and that on the 30th the man offered for sale a large quantity of bad shillings and sixpences; and also that they were both searched on the 31st; when upon the man was found a large quantity of bad shillings, and upon the woman were found six bad shillings. The prisoners were upon this evidence both convicted of the double offence, on the ground that both being engaged in the same illegal traffic, the act of one was the act of both: but, upon the case being reserved, the judges held the woman alone liable to be convicted, and that of the single offence only. (a) the prisoner for knowingly uttering a forged bank note, the note in question was proved to have been uttered by the prisoner on the 17th of June; and evidence was then given of his having uttered another forged note of the same manufacture on the 20th March preceding; and that there had been paid into the bank of England various forged notes, dated between December 1806, and March 1807, all of the same manufacture, and having different indorsements upon them in the handwriting of the prisoner; but it did not appear at what times the bank of England had received VOL. I. G these notes. The indorsements, however, (xx) That is, within the repealed act, 15 (y) Rex v. Whiley & Haines, 2 Leach, 983. (z) Harrison's case, 2 Lewin, 118, Taunton, J., and Alderson, B. (a) Rex v. Else, East. T. 1808. MS. Associate must be so near as to help to get rid of the money. So where Page and Jones were indicted under the 2 Wm. 4, c. 34, s. 7, for uttering counterfeit halfcrowns, twice on the same day; and it appeared that they were seen at different times in the morning together, and that Page went into an inn, leaving Jones about twelve yards off in the street, whilst Page passed one halfcrown in a room, which was out of the sight of Jones; Page then came out, joined Jones, and they went together to another inn, where Jones went in, and passed another halfcrown, leaving Page standing about twelve yards off in the street, and out of sight of where Jones passed the halfcrown; Mr. J. Coleridge said he thought the true principle was whether the one prisoner was so near to the other as to help the other to get rid of the money, which he did not think the evidence proved in this case. (b) But where two prisoners were jointly indicted for uttering a counterfeit shilling, having other counterfeit shillings in their possession, and it appeared that both went to a shop, into which the one entered and uttered a bad shilling, having no more in her possession, and the other stayed outside the shop, having other bad pieces of money, it was held that both might be convicted, the uttering and possession being both joint. (c) So where two women were indicted for two utterings of forged sovereigns on the same day, and it was proved that they were together in the morning, at a public house, about nine o'clock, and together again about two o'clock; and several utterings by each were proved, and one of the prisoners uttered a sovereign to one person very near the place, in a market, where the other prisoner at the same time uttered a sovereign to another person; it was held that if they were acting concurrently, and were near enough to be assisting at the time of the uttering, that would be sufficient; but if there was only a general community of purpose in the morning, and each separated Bayley, J., and Russ. & Ry. 142. And see (b) Reg. v. Page & Jones, Hereford Sp. so, the indictments charging with the actual uttering were right, because that is charg. ing according to the legal effect of the offence. In 12 Co. 81, it was held that if one, before the act done, procure another to counterfeit the great seal, in the indictment he may be charged with the fact, viz., the counterfeiting. Unless, therefore, the misdemeanor of uttering base coin is to be distinguished from all other misdemeanors, these cases deserve re-consideration, and the more so, because if they are good law the utterer alone can be convicted, while the party in the distance, who generally is the more guilty, will altogether escape. He cannot be convicted as principal, because he is absent, nor as accessory, because in misdemeanors there are no accessories. In Rex v. Roderick, 7 C. & P. 795, Mr. B. Parke expressly declared that when an offence was made a misdemeanor by statute, it was made so for all purposes; and surely there can be no good reason for introducing an exception, the effect of which is to give perfect impunity to guilty parties. The only cases referred to in Rex v. Else were Rex v Soares, R. & R. C. C. R. 25, and Rex v. Davis, ibid. 113; both cases of felony. C. S. G. (c) Rex v. Skerrit, 2 C. & P. 427, Garrow, B. to do their respective acts in the course of the day, so that one was not present or within a reasonable distance to assist the other, both could not be found guilty. (d) company of the other, 34, the in law. point of Where one of two persons in company utters base coin, and other Where two base coin is found on the other, they are jointly guilty of the persons are in aggravated offence under sec. 8 of the 2 Wm. 4, c. 34, if they are acting in acting in concert, and both know of the possession of the base coin. concert and The prisoner was tried under the 2 Wm. 4, c. 34, s. 8, for having one knows of the possession in his possession three pieces of counterfeit coin, knowing the same of counterfeit to be counterfeit, with intent to utter them. The prisoner was coin, which is taken in company with one Large; only two bad shillings were on the person found on the prisoner, but upon Large were found sixteen bad they are both shillings. The jury found that the prisoner knew that Large had within s. 7 & the sixteen bad shillings in his possession; that he knew that of 2 W. 4, c. all the shillings found both on Large and on himself were counter- possession of feit, and that the prisoner and Large had the common purpose the one being of uttering them. Mr. B. Alderson thought, and so directed the in that case the possession jury, that under these circumstances the possession of Large was in of the other law the possession of the prisoner, and if so that the prisoner had three counterfeit pieces in his possession; but a difficulty arose out of the interpretation clause, (e) which rendered it doubtful whether he could be said to be in possession of what was with his knowledge in the personal possession of another man, even though he were in company, and acted in concert with such other man. Upon a case reserved, the judges were of opinion that the possession was joint, both being cognizant of it, and having the same intent of uttering.(ƒ) So where the prisoners were indicted for passing a counterfeit halfcrown, under sec. 7 of the same act, they at the same time having in their possession other counterfeit coin; the female prisoner, in the presence of, and in concert with the other prisoner, passed a bad halfcrown, and shortly afterwards they were taken together, and searched, and on the female was found only good money, and on the male a bag containing nine other bad halfcrowns; and, upon the authority of the preceding case, the facts were left to the jury to say how far the possession of the bad money was brought home to the knowledge of both. (g) The word "knowing" in indictments for uttering coin sufficiently Form of applies to the time and place of uttering, and no addition of time indictment. or place is necessary. The word "knowing" refers to the prisoner, and not to the person, to whom the coin was uttered, although that person's name immediately precedes the word "knowing." It is sufficient, in an indictment for a felony, for uttering base coin after a previous conviction, to state that the prisoner was in due form of law tried and convicted by a jury. It is no objection that an indictment for felony, for uttering base Variance. coin after a previous conviction, states that the prisoner, together with another person, was tried and convicted; and the record of the former trial shows the conviction of the prisoner and the acquittal of the other person. Where a prisoner was indicted under the 3 Wm. 4, c. 34, s. 7, (d) Rex v. Manners, 7 C. & P. 801, Ludlow, Serjt., after consulting Bolland, B. (e) Supra, p. 70. (f) Reg. v. Rogers, 2 M. C. C. R. 85, S. C. 2 Lewin, 118, 297. (g) Reg. v. Gerrish, 2 M. & Rob. 219. Maule & Gurney, Bs. 37 G. 3, c. 126. Six months' imprisonment, and sureties for six months. for uttering counterfeit money after a previous conviction, and the indictment alleged that the prisoner, " together with one T. P., was in due form of law tried and convicted" by a jury upon an indictment against them, for that they did unlawfully utter a shilling "to A. W., knowing the same to be false," and thereupon it was considered that the prisoner should be imprisoned for two years; and that the prisoner afterwards feloniously did utter a halfcrown" to T. H., knowing the same to be false." The copy of the record of the former trial stated the conviction of the prisoner and the acquittal of T. P.: it was objected, 1st. That the indictment was bad for want of an addition of time and place to the allegation of knowledge, which was to be found neither in the recital of the former indictment, nor in the substantive charge on the face of the present indictment; but the learned judge thought that the former indictment was good, being in the words of the statute and after verdict; and that "knowing" in the present indictment, being a participle in the present tense, must import knowledge at the time of the uttering. 2ndly. That the word "knowing" did not refer to the prisoner, but to A. W. and T. H.; but the learned judge thought that "knowing" did refer to the prisoner, as all that was alleged to be done was alleged to be done by him. 3rdly. That the indictment did not state any former conviction, because neither the plea nor the verdict of the jury were recited; but the learned judge thought the allegation that he had been in due course of law tried and convicted, together with a statement of the judgment, was sufficient. 4thly. That the recital of the former record showed a conviction of the prisoner and T. P., whereas the record produced showed that the prisoner alone had been convicted and T. P. acquitted, and therefore there was a variance; the learned judge overruled this objection also, but entertaining some doubt upon the point, he reserved the case for the opinion of the judges, who held the conviction right. (g) SECT. II. Of Uttering, Tendering, &c., Foreign Counterfeit Coin. THIS offence, particularly with respect to the gold coin called Louis d'Or, and silver dollars, is stated in the statute 37 Geo. 3, c. 126, (h) to have greatly increased; and the third section of that statute makes the following provision against it :-" That if any person or persons shall, from and after the passing of this act, utter, or tender in payment, or give in exchange, or pay or put off to any person or persons, any such false or counterfeit coin as aforesaid (namely, by the second section, coin not the proper coin of this realm, nor permitted to be current within the same) resembling, or made with intent to resemble or look like any gold or silver coin of any foreign prince, state, or country, or to pass as such foreign coin, knowing the same to be false or counterfeit, and shall be thereof convicted, every person so offending shall suffer six months' imprisonment, and find sureties for his or her good behaviour for six months more, to (g) Reg. v. Page, Hereford Spr. Ass. 1841, Coleridge, J., MSS. C. S. G., and Easter Term, 1841. The learned judge only reserved the last point, but he stated the others to the judges, that the prisoner might have the benefit of them, if he had been wrong in overruling them. (h) Repealed as far as relates to copper money, by the 2 W. 4, c. 34, s. 1. |