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impression was so defective (a). No entry of the issuing of this summons appeared in the books of the county court. This paper had been served on the prosecutor, and he had paid the defendant the costs, as if it had been a genuine summons, and also the debt which Allen claimed of him. It appeared, from the evidence of the county court clerk, that, when he was absent, the clerks in the office, if they were busy, sometimes gave out blank summonses to the attornies, who filled them up for themselves.

Mr. Justice PATTESON.- I do not see that there is any evidence of an intent to defraud the prosecutor. He would have had just the same costs to pay if this summons had been sued out in the most regular manner.

Curwood.-In cases of forgery at common law, there need be no intent to defraud any particular person (6).

Mr. Justice Patteson. It is highly irregular; but I know that these summonses are sometimes given out in blank. I am not prepared to say, that, after the notice that this trial will give parties as to the impropriety of the practice, I should not hold, that this mode of filling up a summons, or of altering a distringas into a summons, was not forgery.

Verdict-Not guilty.

Curwood and Carrington, for the prosecution.
Justice and Busby, for the defence.

[Attornies—Ward, and Collier.]

(a) Seals are affixed to many sel objected, that this was not a public documents in a very slo- commission of bankrupt under the venly manner. The Great Seal Great Seal. The prisoner was acaffixed to a commission of bank- quitted on the merits, and this rupt, which was given in evidence objection was therefore not furin a case of felony tried before Mr. ther considered. Justice Patteson, at the Hereford (6) For the law respecting forgSum. Ass. 1831, was a mere lump ery at common law, see 1 Curw. of wax, which had no impression Hawk. 263. upon it; and the prisoner's counVOL. V.






(Crown Side.)



July 29th.

Rex v. BELL. On the trial of a THE prisoner was indicted for the murder of Richard prisoner who has made before Taylor. a magistrate a voluntary con

It appeared, that, on the 21st May, the prisoner and his fession of his

younger brother were brought up to be examined before guilt, previous to the conclusion the magistrates at Rochester. They had both been in of the evidence against him, custody since the 17th, and various depositions had been which confession taken between that day and the 21st. On the 21st, seveis taken down in writing, and ral depositions were taken in the presence of the prisoner, signed by the prisoner, and at- and the younger brother was about to state a confession tested by the magistrate's

made to him by the prisoner on the previous evening, when clerk; the pro- the prisoner interrupted him, and made a full confession of per course is, for the clerk to give his guilt. This confession, the magistrate's clerk immedievidence of the prisoner's state

ately reduced into writing, and it was read over to the priments, refresh- soner, who put his mark to it. It was attested by the maing his memory by the written gistrate's clerk thus:--" Taken and signed by the said paper.

John Heneker Bell, in the presence of " On the 23rd and two following days, other depositions were taken



v. BELL.

in the presence of the prisoner; and, on the 25th, he was fully committed for trial. Some additional depositions were subsequently taken in the absence of the prisoner; some of them as late as the 6th of July. All these latter depositions were duly returned to the Court, including the prisoner's confession, but not the earlier depositions of the 21st of May and previously. It was proposed, on the part of the prosecution, to read the confession in evidence.

Clarkson, for the prisoner, objected to its admissibility, on the following grounds-First, that it was made by the prisoner before the evidence against him had been gone through. On this point he referred to Rex v. Fagg (a), in which Garrow, B., expressed his opinion, that nothing which a prisoner stated before he knew what the evidence against him was, ought to be used to criminate him. Secondly, that some of the depositions were taken in the absence of the prisoner. Thirdly, that there were interlineations and erasures. And, fourthly, that there was a false attestation.

GASELEE, J., after consulting Lord Tenterden, C. J., upon the objections, said—My Lord Tenterden agrees with me that the opinion of Mr. Baron Garrow in Rex v. Fagg is much too general, as it would go to exclude any acknowledgment of guilt made by a prisoner to a constable. He also agrees with me, that the interlineations and erasures are cured by the attestation, which cannot be called a false attestation, though it would have been more regular to have said, that the prisoner put his mark, as is customary in affidavits in the superior Courts. We are both of opinion, that it is no objection that some of the depositions were taken in the absence of the prisoner. We are also both of opinion, that the confession may be repeated by the ma

(a) Vol. 4 of these Reports, p. 566.


gistrate's clerk who heard it, and that he may refresh his memory by the aid of the written paper.



Clarkson then further objected, that, as the rules of law required that the best evidence should be given, the parol statement of the clerk was not receivable. The

paper ought to be used as a confession, or the evidence should not be received at all.

GASELEE, J.-After again consulting with Lord Tenterden, C. J., said, we are still of opinion that the clerk may give the whole in evidence, refreshing his memory by the written paper.

The confession was then read by the magistrate's clerk in the third person, and the prisoner was convicted and executed.

Walsh and Brett, for the prosecution.
Clarkson, for the prisoner.

In a case which occurred on the that they had been drawn up as if Norfolk Circuit, where a state- the whole evidence had been taken ment made by a prisoner, which before the confession was made. was proved to have been taken un- Lord Lyndhurst, C.B., rejected the der similar circumstances, as far evidence, on the ground that the as regarded the completion of the document was false; but intimatevidence against him, was offered ed, that he did not consider the obin evidence.--Sydney Taylor, for jection as tenable, upon the ground the prisoner, objected, and cited mentioned in the authority referRex v. Fagg. The depositions red to. were produced, and it appeared







es, &c.



July 15th. THE prisoners were indicted for burglary in the dwell- A counsel for ing-house of John Bull, and stealing a quantity of watch- the prosecution,

on opening a case
of felony, has
in strictness a
right to state in

his own way a Austin, for the prosecution, stated that he should call

conversation person named Westwood, who had been lately discharged supposed to have

passed between from Cambridge gaol, and who would depose to a conver- the prisoner and

a witness whom sation between himself and the prisoner Atkinson relating he intends to to the robbery in question. He was proceeding to state call; but, in cor

, the conversation to the Jury, when

statement ought to be confined

to the general Smith, for the prisoners, objected, on the ground that versation.

effect of the convarious circumstances might arise in the progress of the

A person in

dicted with cause, rendering the conversation inadmissible in evidence; others for an and he submitted that it was better that the Jury should not against whom

offence, but hear that in statement, which they could not afterwards the bill has been

, act upon as evidence.

may, if he be in custody at the time of the

trial of the others, be placed at the bar to be identified as one who was in their company.

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