REG. v JAMES BUTTON the crown. another offence being a felony was also proved to have been committed. Isaac's case (2 East, P. C. c. 21, s. 8, p. 1031), will be cited on the other side, but that cannot be supported since Reg. v. Neale. There the prisoner was indicted for a misdemeanor in setting fire to a house in his own occupation contiguous to other Merger of houses. The evidence proved that he had set fire to his house Misdemeanor. for the purpose of defrauding an insurance company, and was therefore also guilty of a felony. Mr. Justice Buller held that the misdemeanor was merged in the felony, and directed an acquittal. In Rex. v. Storey (Russ. & Ry. 8), the prisoner was indicted for a misdemeanor in obtaining money under false pretences, and the evidence was, that he had pretended to the post-mistress, from whom he received the money, that he was John Storey, to whom a money order was payable, and that he signed a receipt in his own name. Chambre, J., doubted whether the signature amounted to a forgery, but said, that if it was, "the lesser offence would have been merged." The judges, however, held that there was no forgery, and the point therefore was not decided. In Rex. v. Evans (5 Car. & P. 333), the prisoner was indicted for obtaining goods under false pretences as a misdemeanor, and the evidence proved that he had uttered a forged request for the delivery of the goods; and Mr. Justice Taunton directed an acquittal on the ground of Argument for merger. But that case is distinguishable, as the offence was made a felony by 11 Geo. 4 & 1 Will. 4, c. 66, s. 10, and therefore in effect it is declared not to be a misdemeanor. But even if the doctrine of the merger should be held to be applicable, where the corpus delicti is single, it does not apply in the present case. To establish the charge of conspiracy, no acts need be proved, and how, then, can that which is done subsequently alter the nature of the offence already committed? [LORD DENMAN, C.J.-If indicted for the conspiracy, is the defendant to purge himself by committing a felony?] That must be contended if the conspiracy in this instance is to be held to be merged. [PATTESON, J.-Suppose A., B., and C., were indicted for conspiring to murder D., and there was the evidence of some one who overheard them consent to the murder; and that they afterwards were seen to commit the murder; could they be convicted of the conspiracy? LORD DENMAN, C.J.What would be the form of application to prevent the conviction? Is it a matter for the jury who are empanelled to decide aye or no whether a particular offence has been committed, that another offence of a higher nature has been committed?] There is no such plea as that the conspiracy gave rise to a felony being committed. The party may be convicted of the conspiracy before the felony was committed, and could the felony then merge the prior offence? It is submitted, therefore, that the defendants were properly convicted of the conspiracy. The second objection is, that the indictment does not show an offence. The 17 Geo. 3, c. 56, s. 17, after reciting that journeymen dyers and apprentices and servants frequently abused the trust reposed in them, by dyeing goods for their own profit, or without the consent of their masters, REG. v. JAMES BUTTON AND OTHERS. provides, that "if any person employed as a journeyman dyer, or as servant or apprentice in dyeing any felt or woollen, &c., shall, without the consent of his master, &c., wilfully dye any of the said materials, or shall without such consent wilfully receive any such materials for the purpose of dyeing the same," he shall be subject to certain penalties. It is objected, that it is not alleged that the goods were not the goods of the defendants themselves, or of Misdemeanor. Lewis; but this is an allegation of an overt act, which may be rejected altogether; but even if the goods were the goods of the defendants themselves, the defendants used them for purposes for which they had no right to use them. It is also objected that there is no duty of the defendants alleged, but this is quite unnecessary (Rex v. Gill, 2 B. & Ald. 204, was cited.) January 18. Merger of Allen, Serjt., and Huddleston, contrà.-This is an indictment Argument for for conspiracy; but the overt acts set out in the indictment show the prisoners. that the defendants were guilty of larceny. If those acts had been done in pursuance of their duty, it would have been embezzlement. [ERLE, J.-Each man was authorized to dye goods of his own, and the goods fraudulently dyed were represented to be their own.] That would only make the proof of the larceny more difficult; the question of fact would be whether the articles dyed were the property of the servant? If not, then it would be the case of a fraudulent appropriation by a servant of his master's property to his own use, which is larceny; it makes no difference that there was a limited permission to use the dye if the limits of that permission are overstepped. Persons who conspire to steal are accessories before the fact to felony, and therefore felons. In Foster's Crown Law, 126, it is said "The best writers on the Crown Law agree that persons procuring, or even consenting beforehand, are accessories before the fact." That being so, the rule is here applicable, that where on an indictment for misdemeanor the evidence necessarily proves a felony, the misdemeanor is merged in the felony. That rule applies in every case where the evidence necessary to prove the misdemeanor proves the felony; it perhaps does not apply where incidental and extraneous evidence, not necessary to prove the misdemeanor, discloses that a felony has been committed. The same state of facts must prove both the felony and the misdemeanor. R. v. Cross (1 Ld. Raym. 711), the principle that a misdemeanor merges in a felony was not questioned either at the bar or by the bench; and, indeed, in all the old cases the question appears to have been, not whether the doctrine was sound, but whether it was applicable to the particular case. The case of Sir S. Procter v. Darnbrook (Hob. 138) is quite in point. That was a proceeding in the Star Chamber for riot, and the court refused to entertain it, because it appeared that one hurt in the riot died within three months, and ordered an indictment for murder to be preferred. It is true that an acquittal of the felony would be no answer to a In REG. v. JAMES BUTTON AND OTHERS. Argument for the prisoners. subsequent indictment for the misdemeanor; but that does not affect the principle; because in that case the assumption is that no felony has been committed; but the smaller offence of misdemeanor may have been committed. No question of merger arises. In Foster's Crown Law (p. 373, c. 3, s. 6 of the Merger of 3rd Discourse), it is said, "by the 3 & 4 Will. & M., and by Misdemeanor. 5 Ann., receivers of stolen goods knowingly are made accessories after the fact; and by the 4 Geo. 1, they are liable to be transported for fourteen years, Before the statute of King William, receivers, unless they likewise received and harboured the thief, were guilty of a bare misdemeanor, for which they were liable to fine and imprisonment, or other corporal punishment. But that act having made them accessories and consequently felons, the prosecuting them as for a bare misdemeanor was holden by all the judges at a conference about the latter end of King William's reign to be improper and illegal; for the misdemeanor was merged and absorbed in the crime of felony; just as felony at common law, when made high treason by statute, which hath been done in a few cases, is merged and absorbed in the treason." And Isaac's case (2 East, P. Č. c. 21, s. 8, p. 1031), supports the same principle. It is an express decision in the point by Buller, J. In Rex v. Story (Russ. & Ry. 81) it was assumed that if the prisoner's offence amounted to forgery, he could not have been convicted of the lesser offence. Hence the necessity of considering whether he had or had not committed forgery. Rex v. Evans (5 Car. & P. 553), was a similar case; and the prisoner was acquitted by Taunton, J., because he had obtained the goods by means of a forged request, and ought, therefore, to have been indicted for forgery. (a) So the same course was adopted for the same reason by Parke, B. and Coltman, J., in Reg. v. Anderson (2 Moo. & Rob. 469), although there the same argument in effect was urged as here; and it was said, "Even admitting that the prisoner has been guilty of a felony by forging this instrument, the offence for which he is now indicted is distinct. The felony is complete when the instrument is counterfeited; the misdemeanor is not committed until the money is obtained by means of it; it is a subsequent independent offence, and would not merge in the antecedent felony." It is said that the authorities in support of this doctrine are few; but the reason is that it has never been questioned. The general acknowledgment of the principle is proved by the proviso to s. 53 of 7 & 8 G. 4 c. 29 (the statute of False Pretences), which is in these words: "Provided always, that if upon the trial of any person indicted for such misdemeanor it shall be provided that he obtained the property in question in any such manner as to amount in law to larceny, he (a) In Russell on Crimes (ed. Greaves), vol. 2, p. 309, it is thus laid down on the authority of the passage from Foster (p. 373), "Where the goods are obtained by a forged instrument, which falls within the class of instruments, the forging of which is made felony by statute, the indictment must be for forging the instrument, as the misdemeanor is merged in the felony." REG. v. JAMES BUTTON AND OTHERS. Merger of shall not by reason thereof be entitled to be acquitted of such misdemeanor." The object of that provision being to avoid the consequences of the doctrine, for which these defendants now contend. It has been asked, upon what reason or principle does the doctrine rest? The reason mentioned in R. v. Cross, and the true reason is, that no man is to be harrassed by frequent prosecutions for the same offence. Nemo debit bis puniri pro uno delicto; and Misdemeanor. that might be the case unless the misdemeanor is merged in the felony; because a conviction of the misdemeanor could not be pleaded to a subsequent indictment for the felony. The reason of which, given by Hawkins (2 Pl. Cr. c. 35, s. 5; c. 36, s. 7) is, that the judgments are different. The case of a conspiracy to murder, and a murder in pursuance of the conspiracy has been suggested. That would involve four distinct offences-1st, the conspiracy 2nd, an attempt to commit murder: 3rd, an assault: and 4th, murder; but would a conviction or acquittal of the conspiracy or the attempt or the assault be pleadable in answer to the charge of murder? Clearly not. Public policy requires that the judge should interfere to stop a prosecution for misdemeanor when the facts prove a felony. Misdemeanors may be compromised; and if the argument on the other side should be upheld, a murder might be indicted as a misdemeanor and compromised; and then the conviction afterwards pleaded in answer to a charge of murder. In civil Argument for actions the plaintiff cannot recover unless the form of his declara- the prisoners. tion is strictly correct; because judgment recovered in a wrong form of action could not be pleaded in answer to a subsequent action in the right form. The principle is stated in Luttrell's case (6 Mod. 77), which is thus shortly reported: "By Holt, C.J., at nisi prius, ut audivi, this difference was taken; if a civil action be brought, as trover for goods, after recovery, you may indict him for trespass or felony for the same taking, because the offences or causes of action are of a different nature, the one civil and the other criminal; but if the first prosecution had been criminal, as an indictment for trespass, &c., and the crime appears to be felony, then you cannot have verdict or judgment on the indictment for trespass, it being the inferior. And this he said had been adjudged in Mr. Luttrell's case." The case of Reg. v. Neale (1 Den. C. C. 36; 1 Car. & K. 591), is mainly relied upon by the other side; but in the first place that case was not argued; and in the second it is distinguishable from the present. The evidence which proved the felony was not necessary to prove the misdemeanor. Something extraneous was elicited by cross-examination after the case for the prosecution had been clearly proved; and it was only in consequence of that extraneous piece of evidence that any felony appeared to have been committed. Besides the offence there was a misdemeanor created by a particular statute, which in effect excluded the operation of the doctrine of merger. [ERLE, J.— Then do you say that the prisoner might have been convicted of the misdemeanor first and afterwards of the rape, and punished for both ?] Yes; that seems to be the effect of the particular statute REG. V. JAMES BUTTON AND OTHERS. Argument for the prisoners. (9 Geo. 4, c. 31, ss. 16, 17.) [ERLE, J.-Is not an assault with intent to commit a rape a statutable misdemeanor? And would you say that there might be a double conviction, first, of the misdemeanor, and then of the rape ?] No; because the assault is an offence at common law, and is included in the rape. When the Merger of minor offence is a necessary constituent of the larger, then the Misdemeanor. former is merged in the latter. In the present case the defendants were accessories before the fact to a felony, and therefore felons by the very same act, which is the misdemeanor charged. In R. v. Neale, more evidence was necessary to convict of the felony than of the misdemeanor. [PATTESON, J.-And different evidence; the age of the girl was necessary to be proved upon the indictment for misdemeanor; it would not be necessary in an indictment for the felony.] How would it be possible for the prisoner in that case, to have pleaded autrefois convict to a charge of rape. On the face of them the two indictments would be quite different. In the first indictment there would be no statement that the act was done against the will of the child. Upon these grounds it is submitted, that the judge at the trial ought to have directed an acquittal. Secondly, in arrest of judgment, the 3rd and 4th counts disclose no offence. 1st. They do not negative that the material dyed belonged to the defendants; and as it appears that the defendants had the right of dyeing materials belonging to themselves, that negative averment is essential. The word "fraudulently" will not help it: (Reg. v. Peck, 9 Ad. & Ell. 686; R. v. Seward, 1 Ad. & Ell. 706; 1 Burn's Justice, 973; Fletcher v. Calthrop, 6 Q. B. 880; R. v. Richardson, I Moo. & Rob. 402.) [ERLE, J.-The offence charged is a conspiracy to dye materials not belonging to themselves; and it is not necessary to set out overt acts to make a valid charge of conspiracy.] Not if the charge is by itself sufficient (King v. The Queen, 7 Q. B. 795); but it is not sufficient here. A good charge of conspiracy must be, either to commit an illegal act or a lawful act by illegal means: (R. v. Seward, per Ld. Denman, C. J., 1 Ad. & E. 713.) Here there is no allegation that the means were illegal, the question therefore is, whether the act was illegal. 17 Geo. 3, c. 56, s. 17, is referred to; but that is repealed by 6 & 7 Vict. c. 40, s. 1. [ERLE, J.-Sect. 34 of that act explains the manufactures, trades, occupations, and employments, to which the act is to extend; and dyeing is not amongst them.] But s. 35 (the interpretation clause) applies the word "manufacture" to all "operations and employments connected with or incidental to the manufacture of any of the said materials, or any parts, branches, or processes thereof." Even if the 17 Geo. 3, c.56, s. 17, is not repealed, that section is not followed in either of the counts, for the term "wilfully wilfully" is omitted. It is said, that in the 4th count the relation of master and servant is shown; and that an implied duty arises from that relation, which sufficiently shows the act of the defendants to have been unlawful; but the particular duty ought to be distinctly stated in the indictment, to lay the foundation of the offence subsequently charged. |