1833. REX บ. BOULTON. Shutt, for the prosecution, cited the case of Rex v. Hutchinson (a). Mr. Justice J. PARKE.-I think, as Mr. Bennett is one of the society, the property in the books is well laid in him and others. Shutt, for the prosecution. (a) R. & R. C. C. R. 412. In that case it was held, that the goods in a dissenting chapel, vested in trustees, cannot be described as the goods of a servant, who has merely the custody of the chapel and things in it to clean and keep in order, though he has the key of the chapel, and no other person but the minister has another key. (b) By the stat. 7 & 8 Geo. 4, c. 29, s. 10, it is enacted, " that if any person shall break and enter any church or chapel, and steal therein any chattel, or, having stolen any chattel in any church or chapel, shall break out of the same, every such offender, being convicted thereof, shall suffer death as a felon." However, it seems, that in this enactment the legis Verdict-Guilty (b). lature did not intend to include the chapels of dissenters; because, in the stat. 7 & 8 Geo. 4, c. 30, ss. 2, 8; and in the stat. 7 & 8 Geo. 4, c. 31, s. 2, in which they are meant to be included, the words are any church or chapel, or any chapel for the religious worship of persons dissenting from the united Church of England and Ireland, duly registered or recorded." Those statutes received the royal assent on the same day as the stat. 7 & 8 Geo. 4, c. 29. It is also worthy of observation, that the words "church or chapel," are to be found in the 1 Edw. 6, c. 12, s. 10, which related to the offence of sacrilege, there being then no chapels of dissenters in existence. REX v. RICHARD ENOCH and MARY PULLEY. MURDER. The first count of the indictment charged Mr. Justice J. PARKE.-The child might breathe before it was born; but its having breathed is not sufficiently life to make the killing of the child murder. Godson.-The wound might have been given before the child was born, and the child might have lived afterwards. Mr. Justice J. PARKE.-Yes, but there must have been an independent circulation in the child, or the child cannot be considered as alive for this purpose. It was proposed to give in evidence a declaration of the female prisoner; the witness called to prove it, whose name was Abigail Commander, said "I was placed by the constable with the prisoner Mary Pulley, while he went to the inquest. I was placed with her to prevent her from laying violent hands on herself, and to prevent her from going away. I told her to the effect, that she had better tell the truth or it would lie upon her, and the man would go free." is born, this is not sufficiently life to make the killing of such There must be child murder. an independent circulation in the child, or the child cannot be considered as alive for this purpose. A man and woman being apprehended on a charge of mur der, another wo man, who had the female prisoner in custody, told her that she "had better tell the truth, or it would lie upon her, and the man would free."go Held, that a declaration of the female prisoner, made to this woman after wards was not receivable in evidence. 1833. REX v. ENOCH, Curwood, for the prisoner Mary Pulley.-I submit that any thing the prisoner said after this cannot be received in evidence; a confession ought to be perfectly voluntary. Here there was an allurement held out to her to make a statement; and a statement after that cannot be considered as made voluntarily. Whateley. This is in effect an inducement to make the prisoner criminate herself; because, in attempting to charge another person, she may shew her own connexion with a felonious transaction. Godson, contra.-It has never been held that a prisoner's being induced to free himself from the charge, is a ground for rejecting what he has said. Mr. Justice J. PARKE, (having conferred with Mr. Justice TAUNTON).-I have conferred with my learned brother on this point; and as this declaration of the female prisoner can only be legitimately received in evidence to affect her and no one else, we think that it is not receivable, as it was made after an inducement held out by a person who had her in custody. If it were to be used at all, it could only be used to criminate her; and then it would be evidence obtained to criminate her by means of an inducement. which would rather lead to an inference, that while it is undivided, some, at least, of the blood circulates through it. With respect to the killing of a child en ventre sa mere, Lord Coke lays down, that, "if a woman be quick with child, and by a potion or otherwise killeth it in her womb, or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child, this is a great misprision, and no murder. But, if the child be born alive, and dieth of the potion, battery, or other cause, this is murder." In support of this position, he cites the following passage from Bracton, (lib. 3, fol. 21). "Si aliquis qui mulierem pregnantem percusserit, vel ei venenum dederit per quod facerit abortivum, si puerperium jam formatum fuerit, et maxime si fuerit animatum, facit homocidium.” -And he also cites Fleta as confirming this doctrine. 3 Inst. 50. In 1 Curw. Hawk. book 1, ch. 13, s. 16; 1 Ea. P. C. 227, and 1 Russ. Cr. & Misd. 424, the same doctrine is laid down. However, Lord Hale (1 H. P. C. 433), lays down, that if a woman is quick, or great with child, if she take, or another give her, any potion to make an abortion; or if a man strike her, whereby the child within her is killed, it is not murder, nor manslaughter, by the law of England. So it is, if after such child were born alive and baptized, and after die of the stroke given to the mother, this is not homieide. And Staun. 21 acc. The only case on this point that we are aware of, is to be found in the Year Book, 1 Edw. 3, p. 23, pl. 18, which is as follows: "Brief issist al vic. de Glouc. de prendr', un D. q' p. tesmoign. de Sir G. Scrop duist aver batu un feme grosse ensient de deux enfants issint q' maintenant apres l'un enfant morust et fuit del alter deliver q' fuit baptise John p. nosme et deux jours apres p. le male q'l'enfant avoit il morust: et le indictme't fuit returne devant Sir G. Scrop et D veign' et pled de rien culp et p' ceo q' les Justices ne fuerent my en volunte de adjudge cest chose felonie l'endictee fuit lesse a inainprise e puis la parol demurra sans jour issint q' brief issust come devant et dit q' Sir G. Scrop rehersa tout le case et coment il venit et pledHerle au vic' faits vener son corps etc. et le vic' returne le br'e al bailie de la franchise de tiel lieu q' disoyent q' mesme celvy fuist pris p' le Major de Brist, mes la cause de l'a prisel penitus ignorumus, &c." Lord Coke, 3 Inst. 51, denies this case to be law; but Lord Hale cites it as authority. The stat. 9 Geo. 4, c. 31, s. 13, makes it a capital offence to procure the miscarriage of a woman quick with child, and a transportable offence to procure the miscarriage of any woman not quick with child. And the same stat. s. 13, makes the concealment of the birth of a dead child a misdemeanor; but it seems, that the first and second of these offences must be committed by some person other than the woman herself; and it also seems that the third can only be committed by the woman herself. As to whether the birth of a dead child can be considered a miscarriage or abortion, after the seventh month of pregnancy, see Carr. Supp. App. xxx. 1833. REX V. ENOCH. 1833. STAFFORD ASSIZES. (Civil Side.) BEFORE MR. JUSTICE J. PARKE. March 13th. What a party says is evidence EARLE and Wife v. PICKEN. ISSUE from the Court of Chancery to try at what period against himself a certain conversation occurred, with a view of determining as an admission, whether or not it operated as notice. notwithstanding it may relate to the contents of a written paper. The plaintiff's counsel wished to ask a witness for the defendant, whether he had not heard the defendant say, that Mr. Symonds had agreed to give 14,000l. for the estate in question. Maule, for the defendant.-I submit that this cannot be asked. It is giving evidence of the contents of a written agreement. Mr. Justice J. PARKE.-What a party says is evidence against himself, as an admission, whether it relate to the contents of a written paper, or to any thing else. The question was put. Verdict for the defendant. Jervis, R. V. Richards, and Bishton, for the plaintiffs. [Attornies-Stanley, and Corser.] In the course of this circuit, Mr. Justice J. Parke several times observed, that too great weight ought not to be attached to evidence of what a party has been supposed to have said; as it very frequently happens, not only that the witness has misunderstood what the party has said, but that, by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say. |