1831. REX V. JAMES. mitted, that riot must be charged in the indictment with legal technicality; and not being so here, I submit, that, by reason of the omission of the terrorem populi, this indictment cannot be supported. Mr. Justice PATTESON.-This indictment pursues the words of the act on which it is framed. The charge here is, for keeping together after being riotously assembled. There is a distinction between an indictment for a riot, and an indictment framed on this act. I think the indictment is sufficient. Verdict-Guilty. Jervis, Campbell, W. J. Alexander, and Talbot, for the prosecution. C. Phillips and Phillpotts, for the defence. [Attornies-Green, Pemberton, & Co., and Chadborn.] Aug. 13th. If parties assem REX v. BIRT and Others. INDICTMENT for a riot, with a second count for an ble together for unlawful assembly. Each count concluded in terrorem a purpose, which, if executed, would make them rioters; but, having assembled, they do nothing, and separate without carrying their purpose into effect, this is an unlawful assembly. populi. It appeared that the prisoners, and a large number of persons, assembled to cut down the fences of the inclosures of the forest of Dean; and that the surveyor-general of the forest, and his woodmen, did not think themselves strong enough to resist them; and that inclosure fences to the extent of a mile and more were destroyed. Mr. Justice PATTESON.-The difference between a riot and an unlawful assembly is this: If the parties assemble (a) See the case of Rex v. Cox, Vol. 4, p. 538. in a tumultuous manner, and actually execute their purpose with violence, it is a riot; but if they merely meet upon a purpose, which, if executed, would make them rioters, and, having done nothing, they separate without carrying their purpose into effect, it is an unlawful assembly. Verdict-Guilty. Jervis, Campbell, W. J. Alexander, and Talbot, for the prosecution. C. Phillips and Phillpotts, for the defence. [Attornies-Green, Pemberton, & Co., and Chadborn.] 1831. REX บ. BIRT. REX v. SALISBURY. Aug. 15th. S. was employ ed by a post mistress to carry letters from Dursley to Berkeley, at a weekly salary paid him by the post-mistress, but which was INDICTMENT for stealing a letter from the post-office, containing bank-notes. The first eight counts of the indictment were framed on sect. 2 of the stat. 52 Geo. 3, c. 143 (a). The first count charged, that the prisoner was employed in the post-office at Dursley, in the opening of the mail bag, and sorting of letters; that a letter, directed to Messrs. Joseph Cox & Sons, came by the post, containing certain bank-notes of 10%. each, and that the prisoner stole the notes. The next seven counts varied this, by its being stated in some of them, that the notes were in a packet, and in others, that the prisoner secreted the letter; and the property was also laid to be in different persons. The 9th, 10th, 11th, 12th, and 13th counts were framed diff to Dudley, repaid to her by the post-office: -Held, that S. employed by the post-office, was a person within the stat. 52 Geo. 3, c. 143, s. 2. But a letter sent from Car but which, it was alleged, was mis-sent to Dursley, if stolen by S., would not be a letter which came to his hands " in consequence of his employment." Semble That the words, "whilst employed," in sect. 2 of the stat. 52 Geo. 3, c. 143, relative to stealing letters, merely mean that the party should be then in the employ of the post-office; and not that the letter, when stolen, was in the party's hands in the course of his duty. On an indictment for felony, a matter, which was the subject of another indictment for felony, was material to be given in evidence; as it formed a part of the facts of the case. The Judge received the evidence, and did not direct the second prosecution to be abandoned. (a) Set forth ante, Vol. 4, p. 572, n. (a). 1831. REX V. SALISBURY. on sect. 3 of the act (a). The ninth count charged, that the prisoner stole a letter from the post-office at Dursley, containing the bank-notes; and the other counts varied the charge, by laying the property differently, and by stating the letter to be a packet. The last count charged the prisoner with stealing the notes in the dwelling-house of Mrs. Baldwin, the post-mistress of Dursley. Jervis, for the prosecution, opened. That the prisoner was a letter-carrier from Dursley to Berkeley, and that his wife was the sister of Mrs. Baldwin, who was the postmistress of Dursley, where he sometimes opened the mailbags and sorted the letters. That a letter, sent by Mr. Joseph Cox from Cardiff, and directed to Dudley, containing the notes in question, had been mis-sent to Dursley, from which place the letter and its contents had been stolen. He also stated, that a person named Baller had sent a letter, containing other bank-notes, from Lostwithiel to Uley, which would have to pass through the Dursley post-office; and that the notes sent in Mr. Baller's letter were taken out, and Mr. Cox's notes, to an equal amount, put into Mr. Baller's letter in their stead. He was proceeding to shew how Mr. Baller's notes would be traced to the possession of the prisoner. Curwood, for the prisoner, objected to this being stated, as there was another indictment against the prisoner for stealing the notes out of Mr. Baller's letter. And he cited the cases of Rex v. Smith (b), and Rex v. Westwood (c), and a case in which the same point was decided by Mr. Baron Bolland. Mr. Justice PATTESON.-On the part of the prosecution, they put it in this way:-they propose to shew, that the prisoner stole Mr. Cox's notes, because they were put into (a) Set forth ante, Vol. 4, p. 573, n. (b) Ante, Vol. 2, p. 633. Mr. Baller's letter in exchange for his notes, which must have been taken out by some one, and are to be traced to the prisoner's possession. In the case of Rex v. Ellis (a), it was held, that evidence of other felonies was receivable, where they were all parts of one transaction. I see, that in that case there was only one indictment; but still, I think that the evidence respecting Mr. Baller's notes is essential to the chain of facts necessary to make out the case. Curwood. I hope that your Lordship will direct the other prosecution to be abandoned. Mr. Justice PATTESON.-I will see about that. It appeared from the evidence of Mrs. Baldwin, the post-mistress of Dursley, that she employed the prisoner, at a salary of 14s. a-week, to carry the letter-bag from Dursley to Berkeley; and that she was allowed by the Postoffice, in her quarterly account, the sums she paid him; but she stated, that the prisoner never sorted the letters, or opened any mail-bag. There was no very distinct evidence to shew that Mr. Cox's letter ever was in the Dursley post-office; but the notes contained in it were distinctly shewn to have been put into Mr. Baller's letter, notes to an equal amount having been taken out; and evidence was adduced, with a view of tracing some of these notes to the prisoner; but the statements of some of the witnesses was by no means positive. Mr. Justice PATTESON, (in summing up).—I think that the prisoner was a person in the employ of the Post-office, as his sister-in-law paid him 14s. a-week, which the Postoffice allowed her again. The evidence is, that he was not employed as a sorter, but as a letter-carrier from (a) 9 D. & R. 174. 1831. REX v. SALISBURY. Dursley to Berkeley. I think also, that this letter cannot be said to have come to his hands "in consequence of his employment;" because he, as a letter-carrier from Dursley to Berkeley, would not have a letter addressed from Cardiff to Dudley come to his hands in the course of his duty. However, the 2nd section of the act of Parliament goes on "whilst so employed." The question, then, is, whether those words relate to time only, or whether they make it essential that the letter should come to his hands in the course of his duty. I am inclined to think that they relate merely to time; because the words "by virtue of his employment" are used in another part of the section. However, this is less material, as there is a count for stealing the letter out of the post-office at Dursley; and also a count for stealing in a dwelling-house, to the value of more than 57.; and if the letter was stolen out of the postoffice, the prisoner may be convicted on either of those counts; and if he merely stole the notes, he may be convicted of larceny. If the prisoner took the letter containing these notes from the post-office at Dursley, he will come within one of the capital charges; and, as they are all capital, it will not be very material to determine which. Verdict-Not guilty (a). Jervis, Campbell, Ludlow, Serjt., and Maule, for the prosecution. Curwood and Justice, for the defence. [Attornies-Peacock, and Bloxsome & Co.] (a) See the case of Rer v. Pear son, ante, Vol. 4, p. 572. The prisoner was afterwards tried on the indictment charging him with stealing the notes from Mr. Baller's letter, and acquitted. |