in Scotland of a crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.' (j)

Sec. 12. Whosoever having Uttering after a previous conviction. been convicted, (k) either before or after the passing of this Act, of any such misdemeanor or crime and offence as in any of the last three preceding sections mentioned, or of any felony or high crime and offence against this or any former Act relating to the coin, shall afterwards commit any of the misdemeanors or crimes and offences in any of the said sections mentioned, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.'

This clause is taken from the 2 Will. 4, c. 34, ss, 7, 8, but those sections only applied to offences committed after a conviction for a misdemeanor: but it was expedient to extend the clause to convictions after a previous conviction for felony; for such previous conviction rendered the offender deserving of at least as high a punishment as if he had been previously convicted of any misdemeanor mentioned in any of the three preceding sections, and it sometimes happened that it was easier to prove a previous conviction for felony than for such a misdemeanor; as the former might have taken place in the same county where the subsequent offence was committed, but not the latter.

Evidence of previous conviction. Sec. 37. 'Where any person shall have been convicted of any offence against this Act, or any former Act relating to the coin, and shall afterwards be indicted for any offence against this Act committed subsequent to such conviction, it shall be sufficient in any such indictment, after charging such subsequent offence, to state the substance and effect only (omitting the formal part) of the indictment and conviction for the previous offence; and a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction for the previous offence, purporting to be signed by the clerk of the court or other officer having or purporting to have the custody of the records of the court where the offender was first convicted, or by the deputy of such clerk or officer, shall, upon proof of the identity of the person of the offender, be sufficient evidence of the previous conviction, without proof of the signature or official character or authority of the person appearing to have signed the same, or of his custody or right to the custody of the records of the court, and for every such certificate a fee of six shillings and eightpence, and no more, shall be demanded or taken; and the

(j) This clause is taken from the 2 Will. 4, c. 34, s. 8, with the addition of the words in italics.

(k) The expression "convicted" is satisfied by a plea or finding of "guilty," and does not mean "sentenced." So where a

prisoner had been found guilty, and released on recognizance to come up for judgment when called upon, it was held that this was a conviction within the meaning of the section. R. v. Blaby (1894), 1 Q. B. 170.

proceedings upon any indictment for committing any offence after a previous conviction or convictions shall be as follows; (that is to say), the offender shall, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence, and if he plead not guilty, or if the Court order a plea of not guilty to be entered on his behalf, the jury shall be charged, in the first instance, to inquire concern. ing such subsequent offence only; and if they find him guilty, or if on arraignment he plead guilty, he shall then, and not before, be asked whether he had been previously convicted as alleged in the indictment, and if he answer that he had been so previously convicted, the Court may proceed to sentence him accordingly, but if he deny that he had been so previously convicted, or stand mute of malice, or will not answer directly to such question, the jury shall then be charged to inquire concerning such previous conviction or convictions, and in such case it shall not be necessary to swear the jury again, but the oath already taken by them shall for all purposes be deemed to extend to such last-mentioned inquiry; Provided that if upon the trial of any person for any such subsequent offence such person shall give evidence of his good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the conviction of such person for the previous offence or offences, before such verdict of guilty shall be returned, and the jury shall inquire concerning such previous conviction or convictions at the same time that they inquire concerning such subsequent offence.' This clause is principally new. Under the 2 Will. 4, c. 34, it was necessary in an indictment for a subsequent offence, to set out at length the previous indictment, &c., and to give in evidence a copy of that indictment, &c.; this was very objectionable, and therefore this clause has provided for a short statement in the indictment, and for a certificate containing the substance and effect of the former indictment, &c.; it has also provided for the proceedings on the arraignment, and in the same manner as on an indictment for larceny after a previous conviction for felony.

The words after charging the subsequent offence' were inserted in order to render it absolutely necessary always to charge the subsequent offence or offences first in the indictment, and after so doing to allege the previous conviction or convictions. This was the invariable practice on the Oxford Circuit, and the Select Committee of the Commons were clear that it ought to be universally followed, so that the previous conviction should not be mentioned, even by accident, before a verdict of guilty of the subsequent offence had been delivered.

Mode of proceeding. The proceedings on the arraignment and trial are now to be as follows:

The defendant is first to be arraigned on that part only of the indictment which charges the subsequent offence; that is to say, he is to be asked whether he be guilty or not guilty of that offence. If he plead not guilty, or if the Court order a plea of not guilty to be entered for him under the 7 & 8 Geo. 4, c. 28, s. 2, or 9 Geo. 4, c. 54, s. 8, (I), where he stands mute or will not answer directly to the charge, then the jury are to be charged in the first instance to try the subsequent offence only. If they acquit of that offence, the case

is at an end; but if they find him guilty of the subsequent offence, or if he plead guilty to it on arraignment, then the defendant is to be asked whether he has been previously convicted as alleged, and if he admit that he has, he may be sentenced accordingly, but if he deny it, or stand mute of malice, or will not answer directly to such question, then the jury are to be charged to try whether he has been so previously convicted, and this may be done without swearing them again, and then the previous conviction is to be proved in the same manner as before this Act passed. (1)

Where the indictment charged a felonious uttering after a previous conviction, the jury found the prisoner guilty of the uttering but not guilty of the previous conviction, it was held that this was a verdict of not guilty of the felony charged, and that the prisoner could not be convicted of the misdemeanor of uttering upon that indictment. (m)

A doubt has been raised as to the mode of proceeding where a prisoner is indicted after this Act came into operation for an offence against the former Act. Where the prisoner was indicted for feloniously uttering counterfeit coin on the 19th of October, 1861, after a previous conviction, and tried in the November following, the Recorder and Common Serjeant held that the proceedings at the trial must be as before the new Act passed. (n) But where the same question arose in an ordinary case of felony, Byles, J., was of opinion that, as far as the offence was concerned, the offence was governed by the former statute; but as to the procedure at the trial, that was to be regulated by the Act which was in force at the time of the trial. (0) But Martin, B., is said to have subsequently held that the former view was correct. (p)

It is clear from the terms of the clause that the certificate is admissible, if it be apparently regularly framed, without any additional evidence.

Two cases are reported, in which it is said that Cresswell, J., held that, where a certificate was produced purporting to be signed by a clerk of the peace, there must be some evidence in addition that the certificate is genuine and comes from the proper custody, as by proof of the handwriting, or that the document came from the office of the clerk of the peace. (q)

(7) See also the note, Greaves' Cr. Acts, 199 (2nd edit.) And this has now been decided to be the correct mode of proceeding, although the general practice appeared to be to prove the previous conviction in the first instance, in order to prove the offence to be a felony. R. v. Martin, L. R. 1 C. C. R. 214; 39 L. J. M. C. 31. R. v. Goodwin, 10 Cox, C. C. 534.

(m) R. v. Thomas, 44 L. J. M. C. 42. L. R. 2 C. C. R. 141. 13 Cox, C. C. 52. The prisoner was in fact charged with and tried for a felony, and the jury found him guilty of a misdemeanor only.

(n) R. r. Montrion, 9 Cox, C. C. 27. (0) Anonymous, 9 Cox, C. C. 28. (p) Anonymous, ibid. It seems quite clear that Byles, J., fell into a misapprehension. The old Acts are all kept alive by

sec. 3 of 24 and 25 Vict. c. 95, as to all offences committed before the 1st of Nov. 1861, and that section, in addition, expressly provides that every such offence shall be dealt with, tried,' &c., in the same manner as if the repealing Act had not passed; and sec. 37 of the Coin Act and sec. 116 of the Larceny Act provide in the commencement for the indictment for offences against those Acts, and the subsequent parts of those sections ought to be held to apply to those cases only. See the note, Greaves' Cr. Acts, 199, (2nd ed.). C. S. G.

(q) R. v. Whale, 1 Cox, C. C. 69. R. v. Stone, ibid. 70. These cases are very probably misreported, as it is quite clear that no such evidence is required, and the universal practice has been to the contrary. vol. iii. Evidence.

See

The proviso as to giving evidence of the previous conviction, if the prisoner give evidence of his good character, remains unaltered.

If the prisoner, whether by himself or his counsel, attempts to prove a good character for honesty, either directly, by calling witnesses, or indirectly, by cross-examining the witnesses for the Crown, the prosecution may give the previous conviction in evidence against the prisoner. (r) If, however, a witness for the prosecution were asked by the prisoner's counsel some question, which has no reference to character, and he happened to say something favourable to the prisoner's character, the prisoner would not be said to give evidence as to his character, and the previous conviction ought not to be admitted. (s)

Uttering base copper coin. Sec. 15. Whosoever shall tender, utter, or put off any false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current copper coin, knowing the same to be false or counterfeit, or shall have in his custody or possession three or more pieces of false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current copper coin, knowing the same to be false or counterfeit, and with intent to utter or put off the same or any of them, shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term. not exceeding one year, with or without hard labour, and with or without solitary confinement.' (t)

Decisions on repealed statutes. The prisoner was indicted for uttering a counterfeit coin intended to resemble a piece of the current coin called a groat. All the witnesses called the coin a fourpenny-piece, except the Inspector for the Mint, who called it at groat, and said it had had that name, he believed, from the earliest period. It had the word 'fourpence' upon it, but the original name. was groat in the time of Edward III. They were not then the same size and weight as this. He had heard them called groats; they were called groats as well as fourpenny pieces in the proclamation. It was contended for the prisoner that the coin was not proved by legal evidence to be a groat, the proclamation not having been produced. Maule, J., (Erskine, J., being present,) in summing up, said: A groat is a common word belonging to our own mother tongue, such as "uttering," "public-house," "half-pint," and many other expressions; and you are here as Englishmen to use your own knowledge of your own language; and if, understanding the matter without any evidence, you are satisfied that a fourpenny-piece and a groat are the same thing, then the prisoner is rightly indicted. It is very true that a groat in Edward the Third's time weighed a great deal more than a fourpenny-piece does now; and so it is with respect to other coins. Things have kept their names, though they have changed their value.' (u)

(r) R. v. Shrimpton, 2 Den. C. C. 319. R. v. Gadbury, 8 C. & P. 676.

(s) Per Lord Campbell, R. v. Shrimpton, supra. So if a witness were to volunteer any evidence of the prisoner's good charac

ter, it clearly would not render the conviction admissible. See ante, p. 72.

(t) This clause is taken from the 2 Will. 4, c. 34, s. 12.

(u) R. v. Connell, 1 C. & K. 190. See ante, p. 25.

Under the 8 & 9 Will. 3, c. 26, s. 6, which had only the words 'take, receive, pay, or put off,' there must have been an actual passing or getting rid of the money, and not merely an attempt to do so. The prisoner had carried a large quantity of counterfeit shillings to the house of a Mrs. Levey, which she agreed to receive from him, and which he agreed to put off to her at the rate of twenty-nine shillings for every guinea. In pursuance of this bargain, the prisoner laid a heap of counterfeit shillings on a table, and Mrs. Levey proceeded to count them out at the rate before-mentioned; and had counted out three parcels, containing eighty-seven counterfeit shillings, for which she was to pay the prisoner three guineas; but before she had paid him, and while the counterfeit money lay upon the table, the officers entered the room and apprehended them. Mrs. Levey swore that she had bought the three parcels of shillings, and was going to pay the prisoner three guineas for them at the moment they were detected. This was ruled not to be a completion of the offence charged, and the prisoner was acquitted. (v) But this case would clearly be within the new Act, which has the word 'tender' in it.

Upon an indictment under the 2 Will. 4, c. 34, s. 7, for uttering and putting off' a counterfeit shilling, it appeared that the prisoner went into a shop and asked to purchase some coffee and sugar, and in payment of the same he put on the counter the coin in question, when the shopkeeper took up the coin and told the prisoner it was a bad one. The prisoner then left the shop, leaving the shilling behind him, but without the coffee and sugar, and it was held that the charge of uttering and putting off was proved by the evidence. (w)

If the names of the persons to whom the money was put off can be ascertained, they ought to be mentioned, and laid severally in the indictment but if they cannot be ascertained, the same rule will apply which prevails in the case of stealing the property of persons unknown. (x)

The words of the 15 Geo. 2, c. 28, s. 2, utter or tender in payment being in the disjunctive, were held to apply to an uttering of counterfeit money, though not tendered in payment, but passed by the common trick called ringing the changes. The prosecutor having bargained with the prisoner, who was selling fruit about the streets, to have five apricots for sixpence, gave him a good shilling to change. The prisoner put the shilling into his mouth, as if to bite it in order to try its goodness; and returning a shilling to the prosecutor, told him it was a bad one. The prosecutor gave him another good shilling, which he also affected to bite, and then returned another shilling, saying it was not a good one. The prosecutor gave him another good shilling, with which he practised this trick a third time; the shillings returned by him being in every instance bad. The Court held that the words of

(v) Wooldridge's case, 1 Leach, 307. 1 East, P. C. c. 4, s. 27, p. 179. I have left this case, as it might be useful if an indictment omitted the word tender.' C. S. G. (w) R. v. Welch, 2 D. C. C. R. 78. See R. v. Ion, 2 Den. C. C. 475.

(x) 1 East, P. C. c. 4. s. 27, p. 180, citing a case from MS. Tracy, of a woman who was indicted at the Old Bailey, 1702, for

putting off ten pieces of counterfeit gilt money like guineas, to divers persons unknown; Holt, C. J., said, that the names of the persons ought to be mentioned and laid severally; yet he tried the prisoner, and she was convicted. Probably the names of the persons to whom the money was put off could not be ascertained.