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1833.

REX v. FINACANE and WILLIAMS.

night poaching with a count on stat. 9 Geo. 4,

may be joined

sect. 2 of the

NIGHT poaching. The first count of the indictment A count for was on the stat. 9 Geo. 4, c. 64, s. 9, for entering inclosed land with another person armed, for the purpose of killing game. The second count was framed on sect. 2 of the same statute, for assaulting gamekeepers authorized to apprehend. The third count was for assaulting the gamekeepers in the execution of their duty. The fourth count, for a common assault.

c. 69, for as

saulting a gamerized to apprehend, and

keeper, autho

with counts for assaulting a gamekeeper in the execution

for a common assault.

Greaves, for the defendants.-I submit that the counsel of his duty, and for the prosecution ought to be put to their election as to which count they will go upon. The judgment in the first count is different from that on the last; indeed, the offences are triable by different Courts; one may be tried at the sessions, whereas the other must be tried at the assizes.

Mr. Justice J. PARKE.-I do not see any reason why these counts should not be joined. It is like the case of an assault upon a constable being joined with a common assault.

Verdict-Guilty.

Whateley and Kinnersley, for the prosecution.
Greaves, for the defendants.

[Attornies-A. Flint, and Jones.]

In the books it is laid down, that several misdemeanors may be included in the same indictment, "provided the judgment upon each be the same." However, in practice, the latter part of the rule has not been adhered to. A count for an assault with intent to commit a rape is continually put in the same indictment with a count for

a common assault. Counts for
conspiracy and false pretences are
often to be found in the same in-
dictment; and in the case of Rex
v. Collier, ante, p. 160, counts for
false pretences and forgery at com-
mon law were joined in the same
indictment, without any objection
being made.

1833.

BEFORE MR. JUSTICE TAUNTON.

March 9th.

A prosecutor

and his witnesses

were bound by recognizance to prosecute and

give evidence at the assizes; they

attended there

and preferred an indictment, which was

found. The prisoner had been

by mistake dis

charged by pro

clamation at an adjourned sessions, which had preceded the

assizes, and had

absconded. The Judge allowed

the expenses;

if the prosecutor and witnesses

had merely appeared at the assizes, and had not preferred any indictment,

the Judge would

REX v. JOHN ROBEY.

HOUSEBREAKING. The prisoner had been committed by a magistrate, who had taken the recognizances of the prosecutor and witnesses to prosecute and give evidence at these assizes. By a mistake, the prisoner had been discharged by proclamation at the adjourned sessions which had preceded the assizes. The prosecutor and his witnesses had appeared at the assizes, and had preferred an indictment against the prisoner, which had been returned a true bill by the grand jury.

F. V. Lee applied for the expenses of the prosecutor and witnesses, under sect. 22 of the stat. 7 Geo. 4, c. 64, by which it is enacted, "that the Court before which any perbut, semble, that son shall be prosecuted or tried for any felony," shall be empowered, at the request of the prosecutor, or of any other person who shall appear on recognizance or subpœna to prosecute or give evidence against any person accused of any felony, to order payment unto the prosecutor of the costs and expenses which such prosecutor shall incur in preferring the indictment; and also payment, to the prosecutor and witnesses for the prosecution, of such sums of money as to the Court shall seem reasonable, and sufficient to reimburse such prosecutor and witnesses for the expenses they shall severally have incurred in attending before the examining magistrate or magistrates and the grand jury, and in otherwise carrying on such prosecution; and also to compensate them for their trouble and loss of time therein."

have had no

power to allow

any expenses.

Mr. Justice TAUNTON.-The usual course, where a bill is found and the party is not in custody, is, that no expenses

should be allowed till after the party is taken and brought to his trial (a).

F. V. Lee.-I am informed, that since his discharge the prisoner is not to be found. Here, theprosecutor has preferred his indictment, and has done all that he could do; and for the discharge of the prisoner he is in no way to blame.

Mr. Justice TAUNTON.-I think that, as the bill has been preferred and found, I may, under the word "prosecuted" in the section you refer to, order the expenses. But, if the witnesses had merely appeared here according to their recognizances,and no bill had been preferred, I think that I should have had no authority.

F. V. Lee, for the prosecution.

Expenses allowed.

[Attorney-Bugshawe.]

(a) See the case of Rex v. Hunter, ante, Vol. 3, p. 591.

See the stat. 7 Geo. 4, c. 64, ss.

22 to 30, respecting the allowance
of expenses and rewards, set forth
Carr. Supp. p. 106 et seq.

1833.

REX

บ.

ROBEY.

FALSE pretence.

REX v. EVANS.

The indictment charged that B. E. on &c., at &c., a certain counterfeit letter in writing, in the name of one John Roe, as a true letter of the proper handwriting of the said John Roe, falsely, fraudulently, and deceitfully, to one John Brooks did deliver, and also did then and there falsely pretend to the said John Brooks, that he had brought the same from the said John Roe for

A person who obtained goods on delivering a

forged letter,

"Please to let

the bearer W.T.

have for J. R.

four yards of
J. R., is not in-
linen," signed
dictable for ob-
taining goods by
false pretence,
as this is an ut-

tering a forged request for the delivery of goods, which is a felony under sect. 10 of the stat. 1 Will. 4, c. 66.

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1833.

REX

บ.

EVANS.

the articles specified therein; and by which false and coun-
terfeit letter it was mentioned, that the said John Roe de-
sired the said John Brooks to supply the bearer thereof
with four yards of Irish linen and a waistcoat; and which
said false and counterfeit letter is as follows, that is to
say:-
:-

"Mr. Brooks-Please to let the bearer, William Turton, have for J. Roe four yards of Irish linen and a waist

coat.

"Jan. 6, 1833.

"John Roe."

By means of which counterfeit letter and of the said false pretences, the said B. E. did obtain &c.

Mr. Justice TAUNTON.-This is a forged request for the delivery of goods. This case comes within the 10th sect. of the stat. 11 Geo. 4 &1 Will. 4, c. 66 (a). It is clearly an uttering of a forged request for the delivery of goods.

W. J. Alexander, for the prosecution.-I submit that it is still a false pretence within the stat. 7 & 8 Geo. 4, c. 29, s. 53.

Mr. Justice TAUNTON.-No; it is uttering a forged re

(a) By which it is enacted, "that if any person shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any deed, bond, or writing obligatory, or any court roll, or copy of any court roll relating to any copyhold or customary estate, or any acquittance or receipt either for money or goods, or any accountable receipt either for money or goods, or for any note, bill, or other security for payment of money, or any warrant, order,

or request for the delivery or transfer of goods, or for the delivery of any note, bill, or other security for payment of money, with intent to defraud any person whatsoever, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years or less than two years."

quest for the delivery of goods. It is a felony, and not a misdemeanor. The prisoner must be acquitted.

1833.

REX

บ.

Verdict-Not guilty.

EVANS.

W. J. Alexander, for the prosecution.

F. V. Lee, for the prisoner.

REX v. HAUGHTON.

ARSON. The prisoner was charged with setting fire

to an

66

outhouse;" and in another count with setting fire

to a "stable," the property of Joseph Owen. In other counts, the outhouse and stable were stated to be the property of John Sparrow.

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put to it.
this place the
prosecutor kept
a cow; adjoin-

ing to it, but

not under the

same roof, was

a lean-to, in

which another person kept a

It appeared that the place burnt had been an oven to bake bricks, and that the prosecutor had made a door-way (with a door) into it, and had put boards and turf over the vent-hole at the top. It also appeared that two poles had been fixed across it at about half its height, on which boards had been laid, so as to make a loft-floor. In this place, the prosecutor kept a cow; and adjoining to it, but not under the same roof, was a lean-to, in which person named Cope kept a horse; but this latter building any house or was not injured by the fire.

a

C. Phillips, for the prisoner. I submit that this indictment must fail. This was a building for burning bricks, which has latterly been used as a cow-house, but never as a stable. It is not a stable, as it was only used for cows; indeed, the witness calls it a cow-house.

The prosecutor being recalled, said, that the building was about one hundred yards from any dwelling-house, and that the owner of the nearest dwelling-house had no

horse. Neither the prosecutor nor the person

of whom he

rented this building had

farm-yard near it, nor did any wall connect it with any dwell

ing-house, the

nearest dwelling being one hundred yards off,

and not belong

ing to either the
prosecutor or
his landlord:-
Held, that the
building was

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lean-to not being burnt), he was not indictable for arson.

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