1833. REX V. WARNER. saulting Thomas Perkins on the 3rd of December, and unlawfully cutting and wounding him on the left leg, with an intent feloniously &c., to kill and murder him, against the statute; and William Albone, John Butler, and James Chesham, with being present, aiding, abetting, and assisting the said James Warner to commit the said felony. The like with intent to disfigure Thomas Perkins. The like with intent to disable him. The like with intent to do him some grievous bodily harm. A second set of similar counts charged Wm. Albone as principal, and the other prisoners with aiding, abetting, and assisting him. A third set charged John Butler as principal, and the other prisoners as aiders and abettors. Thomas Perkins, the prosecutor, was head gamekeeper to Francis Pym, Esq., and was out on duty with his brother, George Perkins, who was his assistant. On the night of the 3rd of December, they heard a gun towards Biggin wood, the property of Mr. Thornton. At that time they were near Everton wood; they shortly after heard another gun towards Biggin wood, and then went into the Everton road. They saw four people coming along the road in the direction of Biggin wood. One of the four men had a gun, another a gun-barrel, and the other two had bludgeons. The men stopped when they saw the prosecutor and his brother. It was then about half-past ten, and a light night. The prosecutor and his brother advanced towards the men, when the former said, "So, you have been knocking them down: you are a pretty set of people to be out so late at night." This was said loud. The men said something, which was not heard by the prosecutor. They were then about three yards off. The prosecutor said to his brother, sufficiently loud for the prisoners to hear, "Mind the gun." His brother caught hold of it, his hands being close to the lock. The prosecutor saw Chesham, and advanced to look at the faces of the other two, but they bounced off. Chesham had the gun-barrel. The prosecutor then turned back towards his brother and the man who had the gun, and called out as loud as he could, "Forward Giggles." Giggles was the keeper of Mr. Thornton, but was not there. Three of the men (who had not the gun), ran in upon the prosecutor, knocked him down, and stunned him; when he recovered himself he saw all the men coming by him; and one said, "Damn 'em, we've done 'em both." They had got two or three paces beyond him, when one of them turned back. The prosecutor saw what he thought was a stick, and was struck with it a violent blow on the left leg. When he got home he examined his leg, and found a hole had been cut through his leather gaiter and stocking, and that he was wounded in the leg. The wound was about an inch long. After he was so struck on the leg, the men set off and ran away. The prosecutor then got up, and saw his brother lying by the side of the road, and groaning. He helped him up, and they went towards home. The prosecutor had committed no assault on either of the four men. When the prosecutor said, "Mind the gun," he made no gesture. The prosecutor was smothered with blood in his mouth, and could not move hand or foot after he was knocked down. He could not tell how long he lost his senses. George Perkins said, he and his brother were on the road leading from Templeford; and when about two hundred or three hundred yards from Biggin wood, he saw four men coming, about one hundred yards off. They moved on, and when they were within twenty yards, he saw that one had a gun; they came closer, within about seven yards, and he then saw that one had a gun-barrel, and that the other two had bludgeons. Prosecutor said," Hollo! my lads, you been knocking 'em down?" He was then thirty yards from them. He spoke loud. They said something loud, which witness could not understand. When they got close to them, prosecutor said, "Mind him with the gun." Witness took hold of the gun gently; placing one hand on the stock, and the 1833. REX บ. WARNER. 1833. REX V. WARNER. other on the barrel. It was a detonator, and witness took off the cap gently. The man did nothing. When the witness laid hold of the gun, one of the others came up within a yard of him, and said, " This is not his manor." That man had the gun barrel. It was Chesham. The man who had the gun was Warner. Witness had had hold of the gun two minutes, and his brother called out, "Forward Giggles," quite loud. Witness also hallo'd "Forward Giggles;" when one of the four men said, "Damn it, we wont stand this." It was not the man with the gun. The three then stepped up to his brother, and witness saw them strike him. Witness turned the man round who had the gun, by turning the barrel. At this time the prosecutor and the three men were about seven yards off. One of the three came running to witness (he had a stick), and knocked him down. As he was striking at witness, the man who had the gun rather drew back to avoid the blows, and said three times "Don't hit me." Witness was stunned on the head, fell down, and remembered nothing further. Witness did nothing but lay hold of the gun. When they first saw the men, they did not shew any desire to avoid witness and his brother, or prevent them going on. Witness took hold of the gun to prevent the man's running away, but did not tell him so. He took hold of it gently, to let his brother see if he knew them. There was no struggle. The man did not say any thing. No name had been used when the man said, "This is not his manor." It was Mr. Thornton's manor. Up to that time nobody had been assaulted. The man with the gun did not seem angry at witness's holding it. It was a public road. Mr. Thornton's manor extends more than two or three hundred yards beyond where witness and his brother saw the men. The man did not attempt to wrench the gun from witness when he took off the cap. The two men who had bludgeons were afterwards proved to be the other two prisoners, Butler and Albone, Praed and Byles, for the prisoners, objected that the blow on the leg, under the circumstances proved, was the act of one alone; and there was no evidence which of the prisoners inflicted it. Secondly, that, before the blow was given, one of the prisoners said, "Damn 'em we've done 'em both." And it must be taken, therefore, that it was supposed both men were dead; and, however the party giving the blow might have intended to inflict insult on the body, he could not have had any such intention to murder, &c., as was charged in the indictment. Thirdly, that the prisoners were on the high road, and the prosecutor and his brother had no right to obstruct them. They cited Rex v. Hawkins (a). BOLLAND, B., told the jury, that it was proved that George Perkins had taken hold of Warner's gun, but that the prosecutor had done nothing to justify the assault upon him; and that, as to the infliction of the wound in the leg, if they thought the prisoners were acting in concert, they were are all equally guilty. The jury convicted the prisoners, but recommended them to mercy on two grounds-first, because the provocation was first given by the prosecutor's brother; secondly, because it happened off the prosecutor's manor. The case was afterwards submitted to the consideration of the Judges; who, after hearing the counsel on both sides, certified that they were of opinion that the conviction was right. Storks, Serjt., and Smith, for the prosecution. Praed and Byles, for the prisoners. [Attornies-Chapman, and Rogers-Hankin.] (a) Ante, Vol. 3, p. 392. That case decides, that if a gang of poachers attack a gamekeeper and leave him senseless on the ground, and one of them return and steal his money, &c.; that one only can be convicted of the robbery, as it mon intent. See the cases of Rex v. Edmeads, ante, Vol. 3, p. 390, and Rex v. Whitehorne, Id. p. 394. 1833. REX v. WARNER. 1833; BURY ASSIZES. BEFORE MR. BARON VAUGHAN. March 17th. A statement relating to an offence made upon oath by a person not at the time under suspicion, is ad missible in evidence against him, if he be afterwards charged with the commission of it. REX v. TUBBY. THE prisoner was indicted for burglary. B. Andrews, for the prosecution, proposed to read a statement made upon oath by the prisoner, at a time when he was not under any suspicion. Prendergast, for the prisoner, objected that it was a violation of that rule of law, which held, that a prisoner should not be sworn. VAUGHAN, B.-I do not see any objection to its being read, as no suspicion attached to the party at the time. The question is, is it the statement of a prisoner upon oath? Clearly it is not, for he was not a prisoner at the time when he made it. Andrews stated, that, having read through the paper, he did not find any thing material in it, and therefore would withdraw it, although he had no doubt of its being evidence. VAUGHAN, B.-Very well; otherwise I should certainly have received it. I have no doubt upon the subject. The prisoner was convicted. B. Andrews, for the prosecution. Prendergast, for the prisoner. |
