c. 86.

correct ?” the defendant answered in the affirmative, and for that REG. answer he is arraigned. How could that answer have been given for the purpose of being inserted ? The act does not say “with a view to its being entered” or “ for the purpose of being 6 & 7 Will. 4, registered,” but “for the purpose of being inserted.” It was never contemplated by the act, nor intended by the defendant, that such an answer should be inserted in the register. Suppose this case: there is an indictment for obtaining goods under false pretences, and it turns out that the accused is already in possession of the goods, but he tells a falsehood for the purpose of retaining the possession. Surely such an indictment would not lie. So the defendant here knows that the entry is already made, and, therefore, his object is, not that it should be made, but merely that it should be retained. The simple question is, whether this false statement can be said to have been made for the purpose of being inserted in the register, when the insertion has taken place before, and where the motive for perpetrating a fraud was entirely gone.

LORD DENMAN, °C. J.- Mr Attorney-General, we do not think it necessary to hear you.

The Judges held the conviction to be right.


(Before Moore, J.)

Evidence-Statute 27 Geo. 3, c. 15—Assault to deter party from giving

evidence-Common assault-1 Vict. c. 85, 8. 10.
The prisoners were indicted for an assault under the statute 27 Geo. 3, c. 15,
which makes it felony to make use of any force, or inflict any manner of
bodily harm or punishment whatsoever, to deter any person from giving
evidence; the evidence was, that the prosecutor, while detained in gaol as a
witness against certain persons, was frequently spoken to on the subject by
the prisoners, called a spy and informer, and told not to prosecute, and
two days after was assaulted and beaten by them, no allusion being made to
the subject during the assault.
Held, that the charge of felony under the statute was not sustained.
THE prisoners were indicted for assaulting the prosecutor, for
T the purpose of deterring him from giving evidence on a criminal*
charge then pending against two persons named Maher and

(a) Reported by W. St. LEGER BABINGTON, Esq., Barrister-at-Law.


ANONYMOUS. McMahon. The indictment was framed under the statute 27

Geo. 3, c. 15, which makes the offence felony.(a)

The case mainly rested on the testimony of the prosecutor, who stated that while he was detained in gaol as a witness against the above-mentioned persons, the prisoners asked him, was he turned informer, and told him not to do any such thing, as to be prosecuting boys, mentioning the names of Maher and McMahon, and called him a spy, and two days after beat him severely, but did not say anything to him on the subject at the time they were beating him, but did continually before.

This being the only evidence to show that the assault was committed for the purpose of deterring the prosecutor from giving evidence, MOORE, J.—Thought the prosecution could not be sustained.

John Plunket. It is a question for the jury; they can, under
the 1 Vict. c. 85, s. 10, convict the prisoners of an assault, for the
felony charged in the indictment includes an assault against the
The case was left to the jury as one of assault.

Verdict, Guilty.
For the crown,
Bennett, Q.C., and The Honourable J. Plunket, Q. C.
The prisoners were undefended.

(a) The 8th section of the stat. 27 Geo. 3, c. 15, enacts that if any person or persons “shall make use of any manner of force, or inflict or threaten to inflict any manner of bodily pain or punishment whatsoever," to deter or prevent any person from giving evidence in any case, civil or criminal, or on account of any person having declined or refused to enter into any unlawful combination or agreement, or on account of any person having given evidence in any action or prosecution, civil or criminal, every such person and all persons aiding, abetting, and assisting therein, being thereof by due course of law convicted, shall be adjudged guilty of felony, without benefit of clergy, &c., &c.





August 9, 1848.
(Before Pigot, C.B., AND PENNEFATHER, B.)

Practice. ProsecutionCalling witnesses on back of bill.
A judge ought not to have imposed upon him the appearance of acting as

the witnesses who have been examined before the grand jury ought to be

called by the prosecutor. Counsel ought to be employed to prosecute. In cases of felony, the prosecutor will be allowed the expenses of the pro

secution, where it has been properly conducted. NATHARINE FARRELL and Jane Moore were given in REG.

U charge to the jury upon an indictment charging them with having unlawfully received certain articles, the goods of Patrick F Brophy, well knowing them to be stolen. The prosecution was Moor conducted by the clerk of the crown. J. A. Curran defended the prisoners.

Practice The prosecutor and his servant-maid were examined in support

mont Grand jury. of the charge, and stated that they believed the articles produced, and which were found by a serjeant of the detective police in the house of the prisoner Catharine Farrall, to be the property of the prosecutor, but would not swear positively to their identity.

Curran addressed the jury, who, after a brief charge from Mr Baron Pennefather, at once acquitted both prisoners. Upon which the prosecutor said that he had not hitherto made any observation, being unwilling to prejudice the prisoners, but that he now wished to state that one of the witnesses, who had been examined before the grand jury, had not been produced, although his testimony would have been most important on the trial, as he had been concerned in the robbery, and had since become an approver.

PENNEFATHER, B.-If the fact is as you state it, there has been great negligence somewhere.

The clerk of the crown, in answer to the court, stated that the name of the witness in question appeared on the back of the bill.

(a) Reported by W. St. LEGER BABINGTON, Esq., Barrister-at-Law.




PracticeGrand jury.

PENNEFATHER, B.—Then it was very wrong not to have called him, and examined him at the trial. It is the duty of the clerk of the crown, where counsel are not employed to prosecute, to conduct the prosecution generally, and examine the witnesses; and where the names of witnesses are on the back of the bill, it is his duty, it is incumbent on him to call them; it is not only due to the public, but also due to the prisoner, that every one produced before the grand jury should be called. (a)

Curran.-It would be very desirable if your lordships would make a rule that has been made in England, that where there is no counsel employed by the prosecutor, the prosecution should be given to one of the junior counsel present, for the assistance of the clerk of the crown, who has a great deal of other business to attend to.

PENNEFATHER, B.—I disapprove of employing counsel on the moment, as I do not think a prosecution can be properly carried on in that way; I will say that in many instances cases are very imperfectly prosecuted by the clerk of the crown. But in this instance Mr Brophy, the prosecutor, ought to have attended to the case : he might have employed counsel. If parties do employ counsel to prosecute, it is in the power of the court to order them the expenses of the prosecution; and where it has been properly carried on, I have never omitted to do it: really, the not having counsel employed to prosecute, does impose, or appear to impose, on the judge, a duty which he ought not to have the appearance of discharging.

Ourran.-In two cases reported in Cox's Criminal Law Cases, an opinion has been expressed by judges in England, which coincides with your lordship’s. (Šee Reg. v. - -, 1 Cox's Crim. Cas. 48; The Queen 1. Hezel, ib. 348 ; and also Reg. v. Page, 2 Cox's Crim. Cas. 221.)

PENNEFATHER, B.—I have not seen those cases, and was not aware of them, but I am very glad to have been corroborated by them in my own opinion. Where a prosecutor is of ability to do it, he ought to employ counsel, and in most cases of felony the court will give him the expenses where the prosecution has been. properly conducted.

(a) See The Queen v. Barley, 2 Cox's Crim. Cas. 191; R. v. Carpenter, 1 Cox's Crim. Cas. 72 ; and R. v. Holden, 8 C. & P. 606, in favour of the necessity of all the witnesses ou the back of the bill being called by the prosecutor ; but see the latter case of Reg. v. Edwards, Underwood, and Edwards, p. 82, supra, per ERLE, J., contra.

Easter TERM, 1848.—May 5 and 6.


Indictment, sufficiency of-Stat. 1 Vict. C. 85, s. 2-Wounding by fire-

arms with intent to murder Non-averment of infliction of injury
dangerous to life - Capital sentence - Several counts Judgment on

one count not vitiated by discharge of jury from finding on the others. An indictment, in the first count, charged that T. S., with a leaden ball and shot, out of a gun by force of gunpowder shot and sent forth, S. D. feloniously did strike, penetrate, and wound, with intent, in so doing, the said S. D. feloniously to kill and murder; and that W. D. was present, aiding and abetting. Another count charged W. D. as principal, and T. S. as present, aiding and abetting; and in other counts they were charged as principals and accessaries respectively in the like wounding of S. D. with intent to disable him, and to do him grievous bodily harm. The record stated that the prisoners were found guilty upon the first count, and sentenced to death ; and that the jury were discharged from giving any verdict upon the other counts. Held, that the first count sufficiently charged a wounding within the mean

ing of the stat. 1 Vict. c. 85, s. 2, and warranted the judgment pronounced upon it, notwithstanding the non-averment of the infliction of

bodily injury dangerous to life. Held also, that the discharge of the jury from giving any verdict upon

the issues joined on the other counts did not render the judgment upon the first count erroneous. THE prisoners Thomas Shea and William Dwyer were tried SHEA 1 and convicted at the Spring Assizes of 1848 for the King's

THE QUEEN. County, before the Lord Chief Justice, upon an indictment framed

DWYER under the provisions of the statute 7 Will. 4 & 1 Vict. c. 85, the first count of which was as follows:

THE QUEEN. King's County, to wit:—The jurors for our lady the Queen, Wonin upon their oath, do say and present that Thomas Shea, late of fire-arms. Laughton, in the King's County, labourer, William Dwyer, late of i Vict. c. 85. same place, labourer, and a certain person to the jurors aforesaid unknown, being evil disposed persons, and not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the 5th day of November, in the 11th year of the reign of our sovereign lady Queen Victoria, with force and arms, at Laughton aforesaid, in the King's County aforesaid, in and upon Stephen Dobbyn, in the peace of God and our lady the Queen, then and there being, feloniously did make an assanlt; and that the said Thomas Shea, a certain gun then and

(a) Reported by W. St. LEGER BABINGTON, Esq., Barrister-at-Law. VOL. III.



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