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1831.

Rex

V.

Smith.

or pack of playing cards, or any jesty's plantations beyond the seas,
part thereof, with intent to use for a term not exceeding seven
such stamp or mark for any other years, according to the laws in
writing, matter, or thing, in re- force for the transportation of fe-
spect whereof
any such duty is or

lons: and if any such person or
shall be payable, or denoted to be persons so convicted or transport-
paid or payable as aforesaid; then, ed shall voluntarily escape or break
so often, and in every such case, prison, or return from transpor-
every person so offending in any tation before the expiration of the
of the particulars before mention- time for which he, she, or they
ed, and every person knowingly shall be so transported as afore-
and wilfully aiding, abetting, or said, such person or persons, being
assisting any person or persons to thereof lawfully convicted, shall
commit any such offence or of- suffer death as felon, without
fences, as aforesaid, shall be deem- benefit of clergy, and shall be tried
ed and construed to be guilty of for such felony in the county where
felony; and, being thereof con- be, she, or they shall be appre-
victed by due course of law, shall hended."
be transported to some of his Ma-

BEFORE THE HON. CHARLES EWAN LAW, COMMON

SERJEANT.

Dec, 11th.

Rex v. CULLEN.

fine counter

panes. T. Da

A forged paper THE prisoner was indicted for that he, on &c., at &c., lowing form— feloniously did utter, dispose of, and put off to one John "Per bearer two Smith, a certain forged request for the delivery of goods, 11—4 super

which is as follows :-.Per bearer, two 11—4 suvis, E. Twell.” perfine counterpanes. T. Davis, E. Twell,” with intent

to defraud John Lainson and others, he the said Charles person :--Held Cullen well knowing the said request to be forged. The bythe 15Judges, that it was nei. indictment also contained a count, calling the instrument nor a request

It was not addressed to any

a forged order. within the stat. 1 Will. 4, c. 66, s. 10, (the forgery consolidation act).

ther an order

1831.

The prisoner having been found guilty on this and on other charges of the same description, which, by the 1 Will. 4, c. 66, s. 10 (a), the act upon which the indictment was framed, rendered him liable to be transported for life.

Rex

v. CULLEN.

P. V.Lee, for the prisoner, objected, in arrest of judgment, that the instrument set out in the indictment was neither an “order” nor "request," within the terms of the act of Parliament. First, it was not an order, because it was not directed to any person; and to be so, it ought not only to purport to be signed by some person who might command the delivery of the goods; but it ought also to be directed to a person who was compellable to obey it. And he cited Rex v. Clinch (6), Rex v. Williams (c), Rex v. Mitchell (d). Secondly, it was not a request, for a request was the act of asking something from another, which, in this case, was not done, for although the act of presenting the paper, in effect, might be so, yet in words it was not; and he, therefore, submitted it fell within the principle of the above decisions.

The prosecutor stated, that such orders were common in the trade.

(a) By which it is enacted, livery of any note, bill, or other s. That if any person shall forge security for payment of money, or alter, or shall offer, utter, dis- with intent to defraud any perpose of, or put off, knowing the son whatsoever, every such ofsame to be forged or altered, any fender shall be guilty of felony, deed, bond, or writing obliga- and, being convicted thereof, shall tory, or any court-roll or copy be liable, at the discretion of the of any court-roll relating to any Court, to be transported beyond copyhhold or customary estate, or the seas for life, or for any term any acquittance or receipt either not less than seven years, or to be for money or goods, or any ac- imprisoned for any term not excountable receipt either for money ceeding four years or less than or goods, or for any note, bill, or two years." other security for payment of (6) 2 East, P. C. 938. money, or any warrant, order, (c) 1 Leach, 114. or request for the delivery or (d) Fost. 119. transfer of goods, or for the de.

1831.

REX

ULLEN

The Common SERJEANT thought, upon the authority of the cases cited, that it was not an order; but he had some doubts whether it was not a request; and, as the point was new, and of some importance to commercial men, he said he would submit it to the Fifteen Judges; which he did, and they were of opinion that the conviction was improper, as the instrument was neither an order nor request within the 1 Will. 4, c. 60, s. 10.

The prisoner was discharged.

OLD BAILEY JULY SESSION, 1831,

BEFORE MR. JUSTICE GASELEE AND MR. JUSTICE

J. PARKE,

July 2nd.

Rex v. BACKLER. On an indict

FORGERY. The first count of the indictment charged ment for forging the prisoner with forging a check, with intent to defraud porting to be

Thomas Blackwell and another. There was a second count drawn by G. A. upon Messrs. for uttering with the like intent; and two similar counts, J. L. & Co. proof that no charging the forgery and uttering to be with intent to deperson named G. A. keeps an

fraud Samuel Jones Loyd and others. account with or has any right to draw on Messrs.

The check was as follows:J. L. & Co., is

“ No. 24. prima facie evi

No. 23, Lothbury, London, May 24, 1831. dence that G. A. Messrs. Jones Loyd & Company, is a fictitious person,

Pay to - Newman, Esq. or bearer, ten pounds. £10 0 0

G. Andrewes."

It appeared that the prisoner went to Mr. Blackwell, and asked change for the check for Mr. Newman of Soho Squarė, in whose service he stated himself to have been for three months. The prisoner also said, that Mr. New

1831.

REX

v. ВАС LER.

man had

put his name on the check. Mr. Newman was not called as a witness; but it was proved, that the name on the check was not of his hand-writing, and that the prisoner had never been in his service. It was also proved, by a clerk of Messrs. Jones Loyd & Co., that No. 43, Lothbury, was their banking house, and that no person of the initial and name G. Andrewes kept any account there, or had any right to draw checks on their house.

Mr. Justice J. Parke (in summing up).—You must be satisfied not only that the prisoner uttered this check, but also that it is a forgery, and that he knew it to be so. Now, we find that he stated that he was a servant of Mr. Newman, and that Mr. Newman had put his name on the back of the check: but it is shewn, not only that the name is not of Mr. Newman's hand-writing, but that the prisoner never was in his service. There is no proof as to who this G. Andrewes is, and the question therefore is, whether there is evidence sufficient to satisfy you that Andrewes is a fictitious person. That being a negative, it is not easy to prove, and the evidence from which you are asked to infer it, is that this check is drawn upon Jones Loyd & Co., no person of that initial and name having any right to draw on them. My learned brother and myself, after conferring, think that this is sufficient prima facie evidence that he is a fictitious person; and if there was any such real person either keeping cash at this banking house or not, the prisoner might have produced him or have given some evidence on the subject. If it had turned out that a person named Andrewes had drawn upon Jones Loyd & Co., without funds, that would have been a fraud and not a forgery; but, we think, in point of law, that there is sufficient evidence of Andrewes being a fictitious person, more especially as the prisoner does not produce any evidence, nor even make any statement as to who Andrewes is.

Verdict-Guilty, on the second count.
See the case of Rex v. King, post, p. 123.

1831.

were, but struck no blow. A. stabbed B.:

more than was

July 2nd.

Rex v. BOURNE. A. was fighting INDICTMENT on the stat. 9 Geo. 4, c. 31, ss. 11, 12, with his brother for stabbing and wounding James Lightfoot, with intent to this B. laid hold murder him. There were two other counts, laying the inof A., and held him down upon tent to be to disable him, and to do him some grievous a locker on board the barge bodily harm. in which they

The prosecutor stated that the prisoner and his brother,

who was a boy about six years younger than himself, were Held, that if B. fighting on board the barge Alfred, which was lying in the did nothing

West India Docks, and in which he (the prosecutor) als sufficient to pre- worked; that he laid hold of the prisoner to prevent him vent A. from beating his bro- from beating his brother, and held him down on a locker, ther, and had died of this stab, but did not strike him; and that the prisoner stabbed him the offence of A, with a knife just above the knee. would have been murder; but that if B. did more than was neces- The prisoner in his defence said, that the prosecutor sary to prevent had knocked him down. the beating of A.'s brother, it would have been manslaughter Mr. Justice J. PARKE (in summing up).- The prosecuonly.

tor states that he was merely restraining the prisoner from beating his brother, which was quite proper on his part; and he says, that he did not strike any blow. If you are of opinion that the prosecutor did nothing more than was necessary to prevent the prisoner from beating his brother, the crime of the prisoner, if death had ensued, would not have been reduced to manslaughter; but if you think that the prosecutor did more than was necessary to prevent the prisoner from beating his brother, or that he struck any blows, then I think that it would. You will, therefore, consider whether any thing was done by the prosecutor more than was necessary, or whether he gave any blows before he was cut.

Verdict-Guilty, on the third count.

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