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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 (b).

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 public documents in a very slovenly manner. The Great Seal affixed to a commission of bankrupt, which was given in evidence in a case of felony tried before Mr. Justice Patteson, at the Hereford Sum. Ass. 1831, was a mere lump of wax, which had no impression upon it; and the prisoner's coun

VOL. V.

sel objected, that this was not a
commission of bankrupt under the
Great Seal. The prisoner was ac-
quitted on the merits, and this
objection was therefore not fur-
ther considered.

(b) For the law respecting forg-
ery at common law, see 1 Curw.
Hawk. 263.

M

1831.

REX

บ.

COLLIER,

HOME SUMMER CIRCUIT.

1831.

BEFORE LORD TENTERDEN, C. J., AND MR. JUSTICE GASELEE.

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On the trial of a THE prisoner was indicted for the murder of Richard

prisoner who

has made before Taylor.

a magistrate a voluntary confession of his

guilt, previous to the conclusion of the evidence against him,

is taken down in

writing, and signed by the

It appeared, that, on the 21st May, the prisoner and his younger brother were brought up to be examined before the magistrates at Rochester. They had both been in custody since the 17th, and various depositions had been which confession taken between that day and the 21st. On the 21st, several depositions were taken in the presence of the prisoner, prisoner, and atand the younger brother was about to state a confession tested by the made to him by the prisoner on the previous evening, when magistrate's clerk; the pro- the prisoner interrupted him, and made a full confession of per course is, for his guilt. This confession, the magistrate's clerk immediately reduced into writing, and it was read over to the prisoner, who put his mark to it. It was attested by the maby the written gistrate's clerk thus:-"Taken and signed by the said John Heneker Bell, in the presence of." On the 23rd and two following days, other depositions were taken

the clerk to give

evidence of the prisoner's statements, refresh

ing his memory

paper.

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.

1831.

REX

v.

BELL.

1831.

REX

v.

BELL.

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 Norfolk Circuit, where a statement made by a prisoner, which was proved to have been taken under similar circumstances, as far as regarded the completion of the evidence against him, was offered in evidence. Sydney Taylor, for the prisoner, objected, and cited Rex v. Fagg. The depositions were produced, and it appeared

that they had been drawn up as if the whole evidence had been taken before the confession was made. Lord Lyndhurst, C. B., rejected the evidence, on the ground that the document was false; but intimated, that he did not consider the objection as tenable, upon the ground mentioned in the authority referred to.

165

NORFOLK SUMMER CIRCUIT.

1831.

BEFORE LORD LYNDHURST, C. B., AND MR. BARON GARROW.

BEDFORD ASSIZES.

BEFORE MR. BARON GARROW.

REX v. JAMES DEERING and JOHN ATKINSON.

THE prisoners were indicted for burglary in the dwelling-house of John Bull, and stealing a quantity of watches, &c.

Austin, for the prosecution, stated that he should call a person named Westwood, who had been lately discharged from Cambridge gaol, and who would depose to a conversation between himself and the prisoner Atkinson relating to the robbery in question. He was proceeding to state the conversation to the Jury, when

Smith, for the prisoners, objected, on the ground that various circumstances might arise in the progress of the cause, rendering the conversation inadmissible in evidence; and he submitted that it was better that the Jury should not hear that in statement, which they could not afterwards act upon as evidence.

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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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