no defence in this action; indeed, I think, that even a di ploma from one of the English Universities would not exempt a party from the penalties of this act (a). However, I will give you leave to move to enter a nonsuit. Verdict for the plaintiffs for one penalty, Coleridge, Serjt., and Gambier, for the plaintiffs. Barstow, for the defendant. In the ensuing term, Barstow moved, pursuant to the leave given; but the Court of King's Bench refused a rule. (a) By stat. 55 Geo. 3, c. 194, s. 29, there is a saving of the rights heretofore vested in, exercised, and enjoyed by the English Universities, and the Colleges of Phy sicians and Surgeons; but we be- 1833. АРОТН. СОМР. v. COLLINS. REX v. PEGler. an indictment for arson, a wit INDICTMENT for arson. A witness for the prosecu- On the trial of tion, who was in custody on a charge of felony, to be tried at these Assizes, was asked by the counsel for the pri"Have you not said that you committed the of soner fence for which you are now in custody?" Mr. Justice PARK (having conferred with Mr. Justice LITTLEDALE).—My learned brother is clearly of opinion that the question ought not to be put; and I am, myself, entirely of the same opinion. Verdict-Not Guilty. Bingham and Erle, for the prosecution. Coleridge, Serjt., and Crowder, for the prisoner. ness for the prohimself in custody on a charge of felony. The counsel for the prisoner wished secution was to ask him, said that you committed the "Have you not offence for which you are now in custody?"Held, that this question ought not to be put. 1833. EXETER ASSIZES. BEFORE MR. JUSTICE LITTLEDALE. March 20th. at the assizes for arson on Wed REX v. ELLICOMBE. A prisoner, tried ARSON.—The prisoner was charged with setting fire to his own house in which he lived. The first count charged the offence to have been committed with intent to defraud the Sun Fire-office; and a second count charged an intent to defraud John Tothil, who had a mortgage on the house. The commission day at Exeter was on Friday the 15th of March, and this case came on to be tried on Wednesday, the 20th. nesday the 20th day was Friday, the 15th, and the prisoner's home was ten miles from the assize town:Held, that the notice was served too late. Held also, that the intent to defraud an insur ance office being charged in the indictment, was not such notice to the prisoner as would make a notice to pro The counsel for the prosecution called for the policy of insurance under a notice to produce, which had been served on the prisoner at the gaol on Monday, the 18th of March. The prisoner's home was ten miles from Exeter. Moody, for the prisoner, objected that this service was too late; and that the notice ought to have been served before the commission day. John Greenwood and Sewell, contrà.-As the prisoner's duce the policy residence is only ten miles distant, there was ample time to have procured the policy. unnecessary. Mr. Justice LITTLEDALE (having conferred with Mr. Justice PARK).-Both my learned brother and myself are of opinion, that the notice was served too late. It cannot be presumed that the prisoner had the policy with him when in custody; and the trial might have come on at an earlier period of the assize. We therefore think, that secondary evidence of the policy cannot be received (a). (a) See the case of Hargest v. Fothergill, ante, p. 303. The counsel for the prosecution submitted, that the intent laid in the indictment to defraud the Sun Fire-office was such a notice in pleading as to dispense with the necessity of a notice to produce. Mr. Justice LITTLEDALE.-I think not (a). You must confine yourselves to the second count. (a) In the case of How v. Wall, 14 East, 274, it was held, that in an action of trover for a bond, the plaintiff might give parol evidence of it to support the general description of it in the declaration, without having given the defendant notice to produce it, as the nature of the action gave sufficient notice to the defendant of the sub ject of the inquiry, to prepare himself to produce it, if necessary for his defence; and in that case Mr. Justice Le Blanc said, "where the contents of a written instrument may be proved as evidence in a cause, and it is uncertain before hand whether such evidence will be brought forward at the trial, we see the good sense of the rule which requires previous notice to be given to the adverse party to produce it, if it be in his possession, before secondary evidence of its contents can be received, that he may not be taken by surprise. But where the nature of the action gives the defendant notice that the plaintiff means to charge him with the possession of such an instrument, there can be no necessity for giving him any other notice." This applies to actions where the adverse party must know what is contained in the declaration; but in many of the most important cases of felony, the prisoner is wholly unacquainted with the contents of the indictment till it is read over to him when he pleads, that being immediately before the commencement of the trial. In the case of Rex v. Moors, 6 East, 421, n., which was an indictment for administering an unlawful oath, a witness swore to certain words spoken by the prisoner, by way of administering an oath, and stated, that the prisoner held a paper in his hand, from which it was supposed that he read the words. Lord Alvanley held, that this evidence was receivable, without giving the prisoner notice to produce the paper; and the Court of K. B. afterwards concurred in that opinion. In the case of Rex v. Hunt, 3 B. & A. 566, it was held, that a copy of resolutions delivered by the defendant to a witness as resolutions intended to be proposed, and which corresponded with those that the witness heard read from a written paper, was admissible, without a notice to produce the original; and in the same case it was also held, that parol evidence of inscriptions and devices on banners and flags, displayed at a meeting, was admissible without notice 1833. REX v. ELLICOMBE. BEFORE MR. BARON VAUGHAN AND MR. BARON BOLLAND. AYLESBURY ASSIZES. BEFORE MR. BARON VAUGHAN. Feb. 27th. If a poacher take a gun by force from a gamekeeper, under the impression that it may be used REX v. HOLLOWAY. THE prisoner was indicted for stealing a gun from the prosecutor, who was one of the gamekeepers of the manor of Beaconsfield. The prosecutor met the prisoner and another man, whom he knew to be poachers, on a part of the manor, and seized the prisoner; his companion came up and resafterwards that cued him. The prisoner, on getting free, wrested the against him, it is not felony, though he state he will sell the gun, and it be not subsequently heard of. gun from the prosecutor, and ran off with it. It was proved that the next day the prisoner said he should sell the gun. It was not afterwards found. VAUGHAN, B., in summing up, said, that the prisoner might have imagined that the prosecutor would use the gun so as to endanger his life; and, if so, his taking it under that impression would not be felony; but if he took it, intending at the time to dispose of it, it would be felony. The jury said, that they did not think that the prisoner, at the time he took the gun, had any intention of appropriating it to his own use. VAUGHAN, B.-Then you must acquit him. It is a question peculiarly for your consideration. If he did not, when he took it, intend its appropriation, it is not a felony; and his resolving afterwards to dispose of it will not make it such. 1833. REX HOLLOWAY. Verdict-Not guilty. BEDFORD ASSIZES. BEFORE MR. BARON BOLLAND. REX V. JAMES WARNER, WILLIAM ALBONE, JOHN BUTLER, March 6th. and JOHN CHESHAM. THE first set of counts in the indictment charged James A gamekeeper, accompanied by his assistant, met four poachers on the highThere had been way, one carrying a gun, another a gun-barrel, and the other two bludgeons. previously two shots fired. The gamekeeper said to his assistant, "Mind the gun;" and the assistant laid hold of it, and then the gamekeeper called to another person. Upon this three of the poachers knocked him down and stunned him; and when he came to himself, he saw all of them near him, and one said, as they passed, "Damn them, we have done them both," and one turned back and cut him on the left leg, and all then ran away. It was objected, first, that the wounding in the leg was the act of one alone; and there was no evidence to shew which of them it was. Secondly, that, from the expressions used, it was evident that both were thought to be dead; and that there could be no intent to murder, &c. Thirdly, that the prisoners being on the highway, the gamekeeper and his assistant had no right to interfere with them. The prisoners were convicted, and the Judges held the conviction right. |
