told the jury: "If you think the death was caused in legitimate self-defence as distinguished from a fight, as I have already explained to you, acquit the prisoner; but if you find that he was engaged in a fight he is guilty. Verdict, Not Guilty. REG. v. BOND. 1877. Manslaughter excuse. OXFORD CIRCUIT. STAFFORD SUMMER ASSIZES, 1877. Thursday, July 12. (Before Mr. Justice LOPES.) REG. v. JONES and HAYES. (a) 34 & 35 Vict. c. 112, s. 19-Larceny-Evidence of previous acts of theft within six months-Subject of another indictment. Upon the trial of an indictment for larceny and receiving certain stolen goods, evidence may be given under 34 & 35 Vict. c. 112, 8. 19, that there was found in the possession of the prisoner other property stolen within the preceding period of twelve months, although such other property is the subject of another indictment against him, to be subsequently tried at the same assizes. PRISONERS were indicted for stealing and receiving, knowing to have been stolen, a quantity of brass. J. Underhill and Owen, for the prosecutors, proposed to give evidence under 34 & 35 Vict. c. 112, s. 19, of other property found in the possession of the prisoners, and alleged to have been stolen within the six months preceding the date of the commission of the offence charged. This other property was the subject of a second and similar indictment found against the prisoners and about to be tried at the same assizes. Powell, Q.C. for the prisoners.-The evidence is inadmissible. The prosecution seek to prove the second indictment on the trial (a) Reported by JOHN ROSE, Esq., Barrister-at-Law. REG. v. JONES AND HAYES. 1877. of the first, and the effect is to prejudice the prisoners in one or other of the trials. Underhill.-The Act does not exclude evidence on any such ground. LOPES, J.-My opinion is that the evidence is admissible; the Evidence statute contains no limitation of the kind suggested. Other larcenies within six months. OXFORD CIRCUIT. STAFFORD SUMMER ASSIZES, 1877. Saturday, July 14. (Before Mr. Justice LOPES.) REG. . THOMAS DILLON. (a) Perjury-Evidence-Practice. When perjury is alleged as having been committed before justices at petty sessions on the hearing of a charge contained in a written information, that information must be produced, or its loss or destruction proved before secondary evidence of its contents can be given at the trial of an indictment for the perjury. RISONER was indicted for perjury committed before justices in petty sessions, on the hearing of a charge of drunkenness preferred against one John Dillon. H. D. Greene prosecuted. The Clerk to the Justices, being called as a witness, stated that an information in writing had been laid before them and a summons issued thereon against John Dillon, but he, the Clerk, produced neither the information nor the copy of the summons. LOPES, J., said that as the charge upon the hearing of which perjury was alleged to have been committed was in writing, the document must be produced, or evidence given of its destruction or loss before secondary evidence of the contents could be admitted. Counsel for the prosecution submitted that as the charge was (a) Reported by JOHN ROSE, Esq., Barrister-at-law, orally made against the defendant before the justices, in the hearing of the witness, the oral evidence of the nature of the charge was sufficient. The learned Judge said that the point had frequently arisen, and he was clearly of opinion that the written information ought to be produced. This information not forthcoming, an acquittal was directed. REG. v. DILLON. 1877. Perjury- OXFORD CIRCUIT. GLOUCESTER SUMMER ASSIZES, 1876. Tuesday, August 7. (Before Mr. Justice BRETT.) REG. v. JOSHUA MATTHEWS and TIMOTHY TWIGG. (a) 24 & 25 Vict. c. 97, s. 28-Obstruction to air-way in mineMalicious damages. The provisions of 24 & 25 Vict. c. 97, ss. 28, 29, which enact that "whosoever shall unlawfully and maliciously" do certain acts therein specified "with intent" to damage or obstruct a mine, or the working or apparatus of a mine, shall be guilty of felony, do not render a person criminally liable for acts causing such damage, but done in bona-fide exercise of a supposed right, and without a wicked mind. NDICTMENT framed on 24 & 25 Vict. c. 97, ss. 28 and 29, charged in the 1st count that the prisoners feloniously. unlawfully, and maliciously did fill up a certain airway of a certain mine the property of one George Matthews, with intent in so doing to damage the said mine. 2nd count charged the act as done with intent to injure the workings. 3rd count, that the prisoners did obstruct the airway with intent to damage it. 4th count, that they did obstruct with intent to hinder the workings. (a) Reported by JOHN ROSE, Esq., Barrister-at-Law. REG. v. MATTHEWS AND TWIGG. 1877. Malicious injury-Mine. 5th, 6th, 7th, 8th counts varied the above charges by describing the airway as a pit. 9th count, that the prisoners feloniously, unlawfully, and maliciously did break and unfasten certain work, to wit, a certain fence appertaining to a certain mine. Alfred T. Lawrence prosecuted. Geo. Browne and Boddom defended the prisoners. "gale' From the opening speech for the prosecution it appeared that in 1865 the prosecutor obtained from the Crown a within the Hundred of St. Briavels, in the Forest of Dean, containing the "Invention" pit. One Elton obtained a neighbouring mine. In 1873 the prosecutor entered into an agreement with the prisoner Matthews, by which the latter was to work the gale and ultimately divide the profits. The working began and continued until 1874. In April 1874 the prisoner Matthews bought Elton's property. In June 1875 the prosecutor began to work the "Invention " pit, so as to connect his workings with an old pit in the neighbouring ground aforesaid. In May 1876 he heard from the prisoner Matthews that unless he, the prosecutor, bought the mine which had belonged to Elton, he the prisoner would stop up an air shaft on it. The prosecutor went on working and did not buy the property. By Rule 1 of those made by the Commissioners for the Forest of Dean, "All persons now or at any time hereafter holding one or more gale or gales of any mine or mines of coal within the Hundred of St. Briavels shall be entitled to the free and unrestricted use and enjoyment of all the levels, draughts, drains, cuts out, and watercourses, pits, shafts, and pit heads belonging or appertaining to the gale or gales so holden, with liberty to dig, sink, work, and drive, make and use, such levels, &c. On the 1st day of June, 1876, the prisoner Matthews and the prisoner Twigg, his workman, acting under his directions, stopped up the airway. On the 13th day of July, 1876, the prosecutor's solicitors wrote to the prisoner Matthews, "We have been consulted on the subject of your having stopped up the pit in your land, part and parcel of the Invention' Colliery, whereby you have stopped up the airway of the other pit being worked by Mr. Matthews, belonging to the same work; by which act you and those who assist you have rendered yourselves liable to severe punishment, and unless you remove the obstruction within forty-eight hours from the delivery of this letter to you, application will be made to the justices at Littledean on Monday next for a warrant against all parties concerned in stopping up the airway." The prisoners disregarded the letter and did not remove the obstruction; whereupon the prosecution was instituted. BRETT J., to the counsel for the prosecution, at the end of the opening speech.-There is no case against the prisoner Twigg. Let him stand aside. You say the prisoner Matthews has committed a felony. When? Lawrence. When he stopped up the airway. BRETT, J.—Then the letter of the solicitor either amounts to REG. v. MATTHEWS AND TWIGG. 1877. an attempt to compound a felony or treats the act of the prisoner Malicious as done in the exercise of an alleged right. But the act must be injury-Mine. done maliciously, wickedly. I am perfectly clear that the prisoner is not within the statute, if he did the act in bonâ fide exercise of an alleged right. Lawrence.-Where the act is wilfully done malice is presumed. As in cases of arson; even if a man by wilfully setting fire to his own house, burns also the house of one of his neighbours, it will be felony, see R. v. Probert (2 East, P. C. 1030, 1031), R. v. Isaac (Ib., 1031); for the law in such a case implies malice, particularly if the party's house were so situate that the probable consequence of its taking fire was that the fire would communicate to the houses in its neighbourhood; and generally, if the act be proved to have been done wilfully, it may be inferred to have been done maliciously unless the contrary be proved: (Bromage v. Prosser, 4 B. & C. 247, 255.) The absence of malice or spite to the owner is no answer to the charge: (Archbold's Cr. Pl. & Evid. 18th edit. p. 537.) [BRETT, J.-If, of course, you were able to prove that he intended to spite George Matthews, the case would be different.] He disregarded the notice. BRETT, J.-The case has been opened with perfect clearness, and I am of opinion that if every fact stated were proved there would be no case to go to the jury; because I think that the act charged must be done not only wilfully, but maliciously, that is to say, with a wicked mind, and if it is done under a bonâ fide claim of right it is not done maliciously according to our criminal law. The evidence to be adduced shows that the prisoner did the act after notice and openly, and it is proposterous to say that he did it otherwise than under a bona fide claim of right. Whether he had a right or not must be tried in a civil court. And indeed it is evident from the letter that the prosecutor considered that the prisoner was acting under such bonâ file claim of right. Both prisoners must be discharged. Verdict of Not Guilty entered. |