REG. v. KELLEHER 1877. Indictment verdict. means of which said false pretence he, the said Michael Kelleher, did then and there unlawfully obtain from the said Edmond James Julian the sum of 101. of the moneys of the said James Goulding with intent thereby them to defraud; whereas in truth and in fact the said Michael Kelleher was not the person so named in the said savings bank book, nor had he any authority False pretences then or at any other time from the said James Goulding to -Effect of present the said book at the savings bank for the purpose of drawing out money, neither had he, the said Michael Kelleher, any authority from the said James Goulding to draw money from the said bank to the great damage and deception of the said (blank) to the evil example," &c. The evidence, as appeared from the report of the learned recorder, which for the purposes of the present report it is not necessary to set out at length, went to show that the prisoner obtained possession of the bank book of James Goulding who had money lodged in the Cork Savings Bank, that he passed himself off as James Goulding to the book-keeper, who gave him a ticket which he presented to Mr. Julian, the cashier of the bank, who thereupon paid him 107. The jury convicted the prisoner. Counsel for the prisoner moved in arrest of judgment, first, that the pretences were according to the evidence incorrectly stated in the indictment; secondly, that the sum of 101. was not paid by E. J. Julian because of the false pretence alleged, but because the bookkeeper issued a tieket entitling the bearer to receive that sum from E. J. Julian; thirdly, that the money alleged to have been paid by the said E. J. Julian to the prisoner was not the money of James Goulding, but was the money of the trustees of the Cork Savings Bank; fourthly, that the averment of the false pretence in the indictment is uncertain, obscure, and unintelligible; fifthly, that the indictment does not contain a special averment showing in what respect the alleged false pretence or any part thereof is false, and that the special averment in the indictment does not negative the pretence as laid. The learned recorder declined to arrest judgment, but stated a case for this Court, virtually asking the Court to decide on the questions above stated. Lawrence for the prisoner.-The law on the subject of what the indictment must contain is thus laid down by Lord Ellenborough in Rex v. Perrott (2 M. & S. 379): "The convenience also of mankind demands, and in furtherance of that convenience, it is part of the duty of those who administer justice to require, that the charge should be specific, in order to give notice to the party of what he is to come prepared to defend and to prevent his being distracted amidst the confusion of a multifarious and complicated transaction, parts of which only are to be impeached for falsehood." The strict way in which these indictments are construed will be seen in Reg. v. Rouse (4 Cox C. C. 7), and Rex v. Hill (R. & R. 190.) The indictment here is bad, as the false pretences alleged have not been negatived. The prisoner might have had an account in the bank under the name of James VOL. XIV. E REG. V. KELLEHER. 1877. Indictment verdict. Goulding, that is perfectly consistent with the indictment, and its falseness has not been alleged. Holmes, Q.C., with him John G. Gibson for the Crown.-It must be remembered that this is a case after verdict. There is a sufficient false pretence stated on the face of the indictment in False pretences its first portion. The defect, if any, has been cured by verdict: -Effect of (Heymann v. The Queen, L. Rep. 8 Q. B. 102; The Queen v. Goldsmith, 12 Cox C. C. 594.) It is necessary to look at the entire indictment. The reason for setting out these false pretences is to enable the prisoner to raise the question on demurrer if the false pretence is insufficient in point of law. There are many statements of false pretences which do not require a subsequent denial, as if a man pretends he is another person. The judgment of the Court was delivered by MAY, C.J.-The Court are of opinion that the indictment cannot be sustained. The indictment states that "the prisoner knowingly and designedly did falsely pretend that he the said Michael Kelleher was one James Goulding, who had moneys deposited in the Cork Savings Bank and who had a book of the said bank with a statement of his account in it, which said book he, the said Michael Kelleher, presented to Edward Julian, the cashier of the bank, at the time he represented himself to be the said James Goulding, by means of which said false pretence the said Michael Kelleher obtained 107. of the moneys of the said James Goulding, with intent to defraud; whereas in truth and in fact the said Michael Kelleher was not the person so named in the said savings bank book, nor had he any authority then or at any other time from the said James Goulding to present the said book at the savings bank, nor had he any authority then or at any other time from the said James Goulding to present the said book at the savings bank for the purpose of drawing out money, neither had he, the said Michael Kelleher, any authority from the said James Goulding to draw money from the said bank." There is no averment in the indictment as to the person named in the bank book. It is clearly established that an indictment for obtaining money by false pretences should state the pretence, and should negative the truth of the matter so pretended with precision, so as to inform the prisoner with certainty of the charge made against him. The indictment does not contain any allegation that the prisoner pretended he was the person named in the bank book, nor that he pretended he had authority from Goulding to present the book or to draw money from the bank; and having omitted to allege any such pretences, as having been made by the prisoner, the indictment proceeds to negative their truth. The indictment does not negative the truth of averments which the prisoner is alleged to have made, but of others which he is not alleged to have made. It has been contended that these defects were cured by the verdict. But this not a case of matters of fact imperfectly stated, but which must have been sufficiently established in evidence in order to warrant a conviction, in which case the defect would be cured by verdict. But the matters alleged in the indictment are substantially insufficient, and if assumed to be true do not disclose a criminal offence. The Court, therefore, is of opinion that the indictment cannot be sustained, and the conviction must be set aside. Conviction quashed. COURT OF APPEAL. Thursday, Jan. 24, 1878. (Before BRAMWELL, BRETT, and COTTON, L.JJ.) Libel-Calling a man "a convicted felon" and " a felon editor"— Per Brett and Cotton, L.JJ.: 9 Geo. 4, c. 32, was passed, among other reasons, in order to restore convicts affected by it, after they had suffered the punishment awarded them, to their full civil rights and status. Also (per same judges), demurrers which do not apply to the whole of the opponent's case ought not to be used. Judgment of the Exchequer Division affirmed. Caddington v. Wilkins (Hob. Rep. 67, 81); and Hawkins P.C., bk. 2, c. 37, s. 48, approved. THIS HIS was an action for libel brought by the plaintiff, the proprietor and editor of a newspaper published at Dartmouth, called the Dartmouth Advertiser, against the defendants, (a) Reported by P. B. HUTCHINS, Esq., Barrister-at-Law. LEYMAN บ. LATIMER AND 1878. the proprietors, printers, and publishers of a newspaper published at Plymouth, called the Western Daily Mercury. The alleged libels, two in number, appeared in the latter paper, and were shortly as follows: "The history of the Advertiser too must stand over. Libel-"Con- its present editor is a convicted felon." This appeared in victed felon." defendants' paper of the 24th day of April, 1876. The second libel appeared on the 1st day of May, 1876 : "There still remain to be recorded Mr. Foster's controversies with the town council of Dartmouth . and the facts regarding his newspaper" (meaning the plaintiff's newspaper) "and its bankrupt and felon editor" (meaning the plaintiff). The statement of claim contained the usual allegations of falsity of the libels and damage. The material part of the statement of defence was as follows : 3. The defendants deny that the word "bankrupt " in the quotation from their said newspaper, in the fifth paragraph of the statement of claim set out, was intended to, or did refer to the plaintiff. 4. And the defendants further say that the plaintiff has been convicted of felony, and was sentenced to twelve months' hard labour for stealing feathers. 5. The words in the fourth and fifth paragraphs of the statement of claim complained of were and are part of certain articles printed and published in the defendants' said newspaper, each of which articles was and is a fair and bona fide comment upon the conduct of the plaintiff in his public character, and as the nominal editor and proprietor of the Dartmouth Advertiser, a public newspaper, and was printed and published by the defendants as and for such comment, and without any malicious motive or intent whatever. Plaintiff's reply and demurrer : 1. The plaintiff joins issue upon the first, second, and fifth paragraphs of the defendants' statement of defence. 2. As to the third paragraph of the statement of defence, the plaintiff admits the allegations in such third paragraph contained. 3. As to the fourth paragraph of the said statement of defence, the plaintiff (so that such admission be not in any way extended or taken to mean that he ever was, in fact, guilty of the offence referred to) admits the allegations contained in such fourth paragraph. But the plaintiff further says that he has never been convicted of felony save on that one occasion, which is the occasion mentioned in the said third paragraph of the statement of defence. On that occasion he was convicted of the supposed felony by a court duly having jurisdiction on that behalf, the Court of Quarter Sessions for the county of Cornwall; and the said court, having jurisdiction as aforesaid, in the exercise of such jurisdiction, adjudged that, as a punishment for the said supposed felony, the plaintiff should be imprisoned and kept LEYMAN v. LATIMER AND OTHERS. to hard labour for twelve calendar months. The said conviction took place several years ago, and the plaintiff, as the defendants very well knew, duly endured the punishment to which he was so adjudged as aforesaid, for the said supposed felony, and thereby became, and was, and has ever since been, and is, in the same situation as if a pardon under the Great Seal had been Libel —“ Congranted to him as to the said supposed felony whereof he was victed felon." convicted as aforesaid. 4. The plaintiff demurs to the said fourth paragraph of the statement of defence, on the ground that, while the statement of defence admits the publication of the whole of the libels alleged in the statement of claim, and the said paragraph is pleaded to the whole of the said libels, and a part of the libel charges that the plaintiff is a convicted felon, nevertheless the said fourth paragraph contains nothing which justifies, or is otherwise a defence to, that portion of the said libel; and the plaintiff also demurs upon other grounds sufficient in law to maintain this demurrer. Demurrer by the defendants to the third paragraph of the plaintiff's reply. This was an appeal from a decision of the Exchequer Division (consisting of Cleasby and Pollock, BB.), making absolute a rule for a new trial obtained by the plaintiff, and giving judgment for the plaintiff on the demurrers in the action. The case below is reported 37 L. T. Rep. N. S. 360, where the pleadings and facts in the case are very fully set out. The facts of the case, however, sufficiently appear from the above statement of the pleadings, and from the judgments which follow. Cole, Q.C. and Bullen for defendants, appellants. In addition to the arguments urged by them in the court below, they distinguished Cuddington v. Wilkins (1 Hob. 67) on the ground that, in that case, there had been no conviction, and also subsequently a general pardon, which had a different operation to a special pardon (Sir Henry Fine's case, Godbolt, 288.) In this case the statute 9 Geo. 4, c. 32, s. 3 (a) was equivalent, at most, to a special pardon. The definition of a "felon" in all the dictionaries seems to be the same, viz., "One who has committed a felony." Collins, Q.C. (Pitt Lewis with him), for the plaintiff, had proceeded but a very short way in his argument when, on saying he (a) 9 Geo. 4, c. 32, s. 3.—And whereas it is expedient to prevent all doubts respecting the civil rights of persons convicted of felonies not capital, who have undergone the punishment to which they were adjudged: Be it therefore enacted, that where any offender hath been or shall be convicted of any felony not punishable with death, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured hath and shall have the like effects and consequences as a pardon under the Great Seal as to the felony whereof the offender was so convicted: Provided always, that nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony. 1878. |