0.

Κχος.

THE QUEEN wilfully, wittingly, falsely, and unlawfully make and give the false and unlawful answer following; that is to say, "On the 28th of January, 1847, I got intoxicated and lost my ticket at North Shields," he, the said Dixon Knox, then and there well knowing the said last-mentioned answer to be false and unlawful, and contrary to the truth and the statute in this behalf.

And the jurors aforesaid do further present, that the said Dixon Knox at the time of the taking of this inquisition, and preferring and finding this indictment, happened to be and now is within the jurisdiction of the said Court, and that the offence herein before in this count charged and stated was by him, the said Dixon Knox, done and committed within the jurisdiction of the said Court, against the form of the statute in such case made and provided, and against the peace of our Sovereign Lady the Queen, her crown and dignity.

The prosecutor abandoned the first count, and called a clerk from the Custom House at Newcastle, who proved that he put certain printed questions to the prisoner (which he put in), in a room where the collector sat, but not in such a position that he (the collector) could give attention to what was going on. The prisoner's answer to the question in the second count, "When and where did you lose or how did you dispose of your former ticket ?" as written in the paper put in was, "The bearer got intoxicated," &c., instead of "I got intoxicated," as alleged in the indictment.

Otter then, for the prisoner, objected that the variance between the answer and indictment was fatal; that the questions should have been put by the collector according to the Act; that the indictment should have alleged that the prisoner appeared before the collector at the Custom House (as required in the Act), and that the allegation in the indictment, "not being a master, physician, surgeon, or apothecary," was insufficient, as it should have been alleged that he did not "intend to serve" in any of those capacities on board the said vessel. He also pointed out a variance between the word "Burlington" in written answers to queries, and " Bridlington" in the indictment.

Thompson and Taylor, for the prosecution, urged that as the questions were put in the presence of the collector, it was quite sufficient, and referred to the practice of swearing affidavits at judges' chambers.

ALDERSON, B., after looking at the indictment and Act of Parliament, held that the questions were not properly put, and that although he did not consider it necessary for the collector himself to put the questions, yet he should at least be giving some attention and recognise the proceeding. He also held the other variances named to be fatal, and said there were "as many blots in the indictment as spots in the sun," and recommended that in framing such indictments in future, strict attention should be paid to the words of the Act. Prisoner was acquitted.

OXFORD CIRCUIT.

BERKSHIRE SPRING ASSIZES, 1847.
(Before Mr. Justice MAULE.)

Reading, March 2.

THE QUEEN V. BOURDON. (a)

Evidence-Practice.

The written list of sentences passed upon the prisoners given to the gaoler by the clerk of the assize, and which is his only authority for their detention, is not evidence that they are in legal custody on an indictment for assaulting the turnkey in the execution of his duty.

v.

BOURDON.

JOHN BOURDON was indicted with having, while in the gaol THE QUEEN of Abingdon, in the county of Berks, on the 5th of August last, while in lawful custody, unlawfully and feloniously assaulted and wounded one James Didcock, a turnkey, while in the execution of his duty, and with having unlawfully attempted to escape from the said prison. There were other counts laying different intents under 7 Wm. 4 & 1 Vict. c. 95.

Skinner, for the prosecution, having examined the prosecutor in support of his case, called one of the officers of the gaol, and, for the purpose of shewing that the prisoner, at the time of the commission of the offence, was in legal custody, put into his hand a book containing a written calendar, signed by John Bellamy, Esq., the late clerk of assize for the Oxford circuit, on the termination of the Summer Assizes for the county. It was stated that this was the only authority given to the gaoler, in any case, to detain a prisoner, or to cause him to suffer any punishment orally directed by the Court, and that the same rule prevailed throughout all the circuits.

MAULE, J. refused to admit the book as evidence; saying, that where it was necessary to prove a fact against a man, it must be done by legal evidence: the legal evidence was the record of the conviction, which should be produced.

The prisoner was convicted under the second count of the
indictment for wounding with intent to maim, and the
previous conviction for felony being proved, he was
transported for ten years.

(a) Reported by WM. A. HILL, Esq., Barrister-at-law.

THE QUEEN

v.

REYNOLDS.

OXFORD CIRCUIT.

MONMOUTHSHIRE SPRING ASSIZES, 1847.

Monmouth, April 3.

(Before Mr. Justice MAULE.)

THE QUEEN V. REYNOLDS. (a)

Larceny-Lawful possession-Conversion.

Where money is delivered to a party for the purpose of obtaining change for it, and he converts it to his own use, he is not guilty of larceny.

It

THE prisoner was indicted for larceny of a half-crown piece. THE appeared that the prosecutor went into a public house, called for something to drink, and held out the half-crown in his hand to pay for it. The landlord said he could not give any change. The prisoner was standing near, and offered to go out and get change, upon which the prisoner gave him the half-crown. The prisoner went away with it, and did not return.

At the close of the case for the prosecution, MAULE, J. intimated a doubt whether the facts made out a case of larceny; and after considerable deliberation, and referring to the cases collected in Greave's Russell on Crimes, vol. 2, pp. 22-44, his Lordship said, "The prisoner must be acquitted. The case of Reg. v. Thomas (9 C. & P. 741) is directly in point. I felt some doubt on the subject, on the ground that a party who delivers over money to another for the purpose of obtaining change, does not part with the absolute possession of it, but with the expectation of receiving change in a reasonable time, or, if change cannot be obtained, then of receiving back the identical coin; but the case of Reg. v. Edwards was a precisely similar case to the present, and was decided by Mr. Justice Coleridge, after consulting with Baron Gurney, and it was there held that the prosecutor had divested himself, at the time of the taking, of the entire possession of the money, and that consequently there was not a sufficient trespass to constitute a larceny; and I feel myself bound by that decision."

The prisoner was accordingly acquitted.

Richards, for the prosecution.

The prisoner was undefended.

(a) Reported by JAS. E. DAVIS, Esq., Barrister-at-law.

OXFORD CIRCUIT.

MONMOUTHSHIRE SPRING ASSIZES, 1847.

Monmouth, April 3.

(Before Mr. Justice MAULE.)

THE QUEEN V. KELLY and M'CARTHY. (a)

Larceny-Principal-Evidence-Continuing offence.

Where the evidence against two prisoners, indicted for stealing oats, was that one of them took the oats from the prosecutor's sacks, and placed them under a cart, and the other prisoner came up a few minutes after and said, "It is all right," and put the oats in a cart, and took them to his house; on the objection that there was no evidence to connect the latter with the original taking,—

Held, that the evidence shewed one transaction in which both prisoners concurred.

THE

V.

KELLY and M'CARTHY.

HE prisoners were indicted for stealing oats. The prisoner THE QUEEN M'Carthy was seen to take the oats from out of the prosecutor's sacks, and put them in a nosebag, which he placed under a loaded tram on a tram-road. After the lapse of a few minutes, Kelly came up with an empty tram, and said to the other prisoner, "It is all right;" he then took the nosebag from under the one tram and put it in the other, and drove off with it to his own house.

Huddleston, for Kelly, submitted that there was no evidence to connect him with the larceny, as a principal, as it did not appear that he was within sight or hearing at the time M'Carthy took the oats from the sacks.

Greaves, for the prosecution, argued that this was a continuing offence, until the deposit of the oats by Kelly in his house.

MAULE, J.-The evidence shews that it was one transaction, and that both prisoners concurred in the act. His Lordship refused to reserve the point.

Both the prisoners were convicted.

MUNSTER CIRCUIT.

LIMERICK SPRING ASSIZES.

February 27, and March 1 and 9.

(Before BARON RICHARDS.)

THE QUEEN V. MOLONY. (b)

False pretences-Indictment-Practice.

The indictment charged that one M. M. unlawfully, &c. did falsely pretend, &c. that he then had an account with a certain bank, &c., and that a sum of 341. 2s. 10d. was then due to him on the said account, and that a certain book which he, the said M. M., delivered to one D. O'B. was the genuine pass-book in which the account of him, the said M. M., with the said bank was kept, and that the said book truly shewed the state of the account, &c.: by means of which said false pretences the said M. M. did, &c.

(a) Reported by E. DAVIS, Esq. Barrister-at-Law.

(b) Reported by W. ST. LEGER BABINGTON, Esq., Barrister-at-law.

THE QUEEN

v.

MOLONY.

unlawfully, &c. obtain ten yards of cloth, &c., with intent, &c. to defraud, &c. one M. H. The indictment then negatived the truth of all of the above pretences.

Whether, in arrest of judgment, that this was a good indictment, and sufficiently disclosed a legal offence within the statute 9 Geo. 4, c. 55, s. 46 (analogous to 7 & 8 Geo. 4, c. 29, s. 53), quære?

But as the objections appeared upon the record, the prisoner should be left to his writ of

error.

NDICTMENT.-The jurors, &c. do say and present, that Michael Molony, &c., on the 17th day of February, &c., unlawfully, knowingly, and designedly, did falsely pretend to one Daniel O'Brien, that he, the said M. M., then had an account with a certain bank, called, &c., situate, &c., and that a sum of 347. 2s. 10d. was then due to him on the said account, and that a certain book which he, the said M. M., then and there delivered to the said D. O'B., was the genuine pass-book in which the account of him, the said M. M., with the said bank, was kept; and that said book shewed truly the state of the account of him, the said M. M., with the said bank, upon the said 17th day of February, by means of which said false pretences the said M. M. did then and there unlawfully obtain from the said D. O'B. ten yards of cloth, &c. &c., of the goods and chattels of one M. H., with intent then and there to cheat and defraud her, &c. &c., the said M. H., of the same. Whereas, in truth, and in fact, he, the said M. M., had not, on the said 17th day of February, any account with the said bank; and whereas, in truth and in fact, there was not, on the said 17th day of February, a sum of 341. 2s. 10d., or any sum of money whatsoever, due to him by the said bank, on the said alleged account, or on any account; and whereas, in truth and in fact, the said book so delivered as aforesaid by him, the said M. M., to the said D. O'B., was not a genuine pass-book, in which the account of him, the said M. M., with said bank was then kept; and whereas, in truth and in fact, the said book did not then truly shew the state of the said alleged account, or of any account of him, the said M. M., with the said bank, on the said 17th day of February aforesaid, to the great damage, &c. &c.

In support of this indictment evidence was given that the prisoner had gone into the shop of one Margaret Humphreys and obtained the goods specified in the indictment, stating that he had no money about him, and shewing a book which purported to be a pass-b -book between the prisoner and the Limerick Savings Bank, from which there appeared to be a balance of 341. 2s. 10d. in the bank, in the prisoner's favour. The prisoner deposited the book, and at the same time gave a letter stating that he would pay for the goods within six weeks, or else forfeit a discount, which otherwise he was to obtain upon the price. It appeared also that the entries in the book were false, and that there was no balance due to the prisoner by the bank in question, but that his account there had been closed, and a letter of credit for 37., dated the day his account was closed, was found on the prisoner.

It was objected by Michael Barry, on behalf of the prisoner, that the indictment disclosed no legal offence; that the false pretence alleged was a mere lie, and did not come within the statute; and that the indictment was defective in not having averred that by reason of