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1833.

Shutt, for the prosecution, cited the case of Rex v. Hutchinson (a).

Rex

BOULTON.

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.

Verdict-Guilty (6).

Shutt, for the prosecution.
Carrington, for the prisoner.

are

(a) R. & R. C. C. R. 412. In lature did not intend to include that case it was held, that the the chapels of dissenters; because, goods in a dissenting chapel, vested in the stat. 7 & 8 Geo. 4, c. 30, ss. in trustees, cannot be described as 2, 8; and in the stat. 7 & 8 Geo. the goods of a servant, who has 4, c. 31, s. 2, in which they are merely the custody of the chapel meant to be included, the words and things in it to clean and keep

any

church or chapel, or any in order, though he has the key chapel for the religious worship of of the chapel, and no other person persons dissenting from the united but the minister has another key. Church of Englund and Ireland, duly

(6) By the stat. 7 & 8 Geo. 4, c. registered or recorded.Those sta29,s.10, it is enacted,“ that if any tutes received the royal assent on person shall break and enter any the same day as the stat. 7 & 8 Geo. church or chapel, and steal there- 4, c. 29. It is also worthy of obserin any chattel, or, having stolen vation, that the words “ church any chattel in any church or cha- or chapel,” are to be found in the pel, shall break out of the saine,

1 Edw. 6, c. 12, s. 10, which reevery such offender, being con- lated to the offence of sacrilege, victed thereof, shall suffer death there being then no chapels of as a felon.” However, it seems, dissenters in existence. that in this enactment the legis

1833.

purpose.

Rex v. RICHARD ENOCH and MARY PULLEY.

March 6th. MURDER. The first count of the indictment charged 11 a civild has

breathed before the two prisoners with the wilful murder of the female bas- it is born, this tard child of the prisoner Mary Pulley, by stabbing it in life to make the the head with a fork. The second count charged that killing of such

child murder. they killed the child with their hands. The third count There must be charged, that, before the child was completely born, the an independent prisoners stabbed it with a fork, and that it was born, the child, or the

child cannot be and then died of the stab. The fourth count was similar considered as

alive for this to the third, except that it charged the child to have been killed by the hands of the prisoners, and not with a fork.

A man and

woman being A puncture was found in the child's skull; but, when the apprehended on

a charge of murinjury that had caused it was inflicted did not appear: der, another wosome questions were asked as to whether the child had the female pribreathed,

dy, told her that

she “had better Mr. Justice J. PARKE. -The child might breathe before or it would lie it was born; but its having breathed is not sufficiently life upon her, and to make the killing of the child murder.

Held, that a declaration of the

female prisoner, Godson.—The wound might have been given before the made to this child was born, and the child might have lived afterwards. wards was not

woman afterreceivable in

evidence. 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.

soner in custo

tell the truth,

go free."

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.”

1833.

Rex

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.

ENOCH,

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.

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1833.

Rex

ENOCH.

which would rather lead to an in- de prendr’, un D. q'p. tesmoign. ference, that while it is undivided, de Sir G. Scrop duist aver batu un some, at least, of the blood circu- feme grosse ensient de deux enlates through it. With respect to

fants issint q' maintenant apres the killing of a child en ventre sa l'un enfant morust et fuit del mere, Lord Coke lays down, that, alter deliver q' fuit baptise John “ if a woman be quick with child, p. nosme et deux jours apres p. le and by a potion or otherwise kill- male q' l'enfant avoit il morust : eth it in her womb, or if a man et le indictme't fuit returne devant beat her, whereby the child dieth Sir G. Scrop et D veign' et pled in her body, and she is delivered de rien culp et p'ceo q' les Jusof a dead child, this is a great mis- tices ne fuerent my en volunte de prision, and no murder. But, if adjudge cest chose felonie l'enthe child be born alive, and dieth dictee fuit lesse a inainprise e of the potion, battery, or other puis la parol demurra sans jour cause, this is murder.” In sup- issint q' brief issust come devant port of this position, he cites the et dit q' Sir G. Scrop rehersa tout following passage from Bracton, le case et coment il venit et pled(lib. 3, fol. 21). “Si aliquis qui Herle au vic' faits vener son corps mulierem pregnantem percusserit, etc. et le vic'returne le br'e al bailie vel ei venenum dederit per quod de la franchise de tiel lieu q' disoyfacerit abortivum, si puerperium jam ent q' mesme celvy fuist pris p’le formatum fuerit, et maxime si fue- Major de Brist, mes la cause de rit animatum, fucit homocidium.l'a prisel penitus ignorumus, &c." -And he also cites Fleta as con- Lord Coke, 3 Inst. 51, denies firming this doctrine. 3 Inst. 50. this case to be law; but Lord

In 1 Curw. Hawk. book l, ch. Hale cites it as authority. The 13, s. 16; 1 Ea. P. C. 227, and I stat. 9 Geo. 4, c.31, s. 13, makes Russ. Cr. & Misd. 424, the same it a capital offence to procure the doctrine is laid down. However, miscarriage of a woman quick with Lord Hale (1 H. P. C. 433), lays child, and a transportable offence down, that if a woman is quick, to procure the miscarriage of any or great with child, if she take, or

woman not quick with child. And another give her, any potion to the same stat. s. 13, makes the coninake an abortion; or if a man cealment of the birth of a dead strike her, whereby the child with- child a misdemeanor; but it seems, in her is killed, it is not murder, that the first and second of these nor manslaughter, by the law of offences must be committed by England. So it is, if after such

some person other thun the wochild were born alive and baptized, man herself; and it also seems, and after die of the stroke given that the third can only be comto the mother, this is not homi- mitted by the woman herself. As cide. And Staun. 21 acc.

to whether the birth of a dead The only case on this point that child can be considered a miscarwe are aware of, is to be found in riageor abortion, after the seventh the Year Book, 1 Edw. 3, p.23, pl. month of pregnancy, see Carr. 18, which is as follows:

Supp. App. xxx. “ Brief issist al vic. de Glouc.

1833.

STAFFORD ASSIZES.

( Civil Side.)

BEFORE MR. JUSTICE J. PARKE.

March 13th.

EARLE and Wife v. PICKEN. What a party ISSUE from the Court of Chancery to try at what period says is evidence 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 plaintiff's counsel wished to ask a witness for the the contents of a written paper. defendant, whether he had not heard the defendant say,

that Mr. Symonds had agreed to give 14,0001. for the estate in question.

Maule, for the defendant.—1 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.
Maule and Whateley, for the defendant.

[Attornies-Stanley, and Corser.]

In the course of this circuit, Mr. has misunderstood what the party Justice J. Parke several times ob- has said, but that, by unintentionserved, that too great weight ought ally altering a few of the expresnot to be attached to evidence of sions really used, he gives an efwhat a party has been supposed to fect to the statement completely have said; as it very frequently at variance with what the party happens, not only that the witness

really did say.

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