No indictment will lie for a conspiracy to kill game or to commit any other civil trespass (R. v. Turner, 13 East, 228; or for a con spiracy to sell a man an unsound horse by false warranty (R. v. Pywell, 1 Stark. 402); or for a conspiracy to exonerate one parish from the charge of a pauper, and to throw it on another, or for that purpose to cause a male pauper to marry a female pauper Merger of (Rex v. Seward, above cited); not for a conspiracy to cheat and Misdemeanor. defraud a party of the fruits of a verdict. These cases illustrate the sort of unlawful act, which must be the object of the conspiracy. Here there may have been a contention between the master and the servants as to the extent of the permission which he had given them. Again, the statute 17 Geo. 3, c. 56, s. 17, applies only to dyers of certain particular materials; and these counts are bad for not showing that Mr. Lewis, the prosecutor, was a dyer within the act. The dye and instruments are not Argument for alleged to be the property of Lewis ; nor are the defendants tho delen described as “journeymen dyers,” which is the term used in the statute. The counts charge the defendants with using the dye and implements of trade of Lewis; but they do not negative that they paid him for them, nor allege that it was done with intent to defraud him. [ERLE, J.-The 3rd and 4th counts charge that the defendants were retained as the servants of Lewis; and that without his consent, and at his expense, they dyed with his dye various materials for their own profit.] The allegation that they were retained as his servants is without time or place. At the date of the conspiracy they may not have been his servants. The words“ fraudulently” and “ without consent,” will not supply the want of positive allegations; and it is consistent with all the averments here, that they may have paid over to the master any money which they received. In R. v. Peck, it was expressly decided that a count which charged a conspiracy to defraud persons of their debts, and, in pursuance of that conspiracy, the execution of a false and fraudulent deed, was bad for omitting to show in what respect it was false and fraudulent. Lastly, the counts ought to have concluded contra formam statuti, as the word “wilfully” is omitted.

Cur. adv. vult.

On a subsequent day judgment was delivered by

Judgment. LORD DENMAN, C. J.—The indictment charged, that the defendants, being in the employ of the prosecutor, a dyer, conspired to use the dyeing materials on articles not entrusted to them for dyeing, and not belonging to themselves or their families, and so to defraud their employer of profit. The evidence showed that the prosecutor permitted his servants to dye any articles belonging to themselves or their families, but not things belonging to others; and that the defendants had takenin articles not belonging to themselves or their families, and had dyed them for profit with the materials of their employer, and passed them off for articles within the prosecutor's permission. Several objections to the indictment and the




evidence were made at the trial, and in support of the rule for

arresting the judgment or for a new trial, and have been disposed JAMES BUTTON of; but the objection, that the misdemeanor charged formed part

of a felony, and was merged therein, and that, therefore, either the

judgment should be arrested, or a verdict of acquittal entered, was Merger of reserved for consideration. With respect to arresting the judgMisdemeanor. ment, it is clear that the essential part of the indictment is the

charge of a conspiracy; so that if the evidence proved the conspiracy, and did not prove the overt act alleged, viz. that the conspiracy was carried into effect, the indictment would have been sufficiently proved. The point, therefore, is not raised by the indictment. With respect to the evidence, we do not propose to examine the correctness of the opinion of the learned judge at the trial, that it did not prove a larceny, and that it tended rather to prove the obtaining of goods by false pretences than theft; but, assuming that the evidence to prove the conspiracy would have been sufficient to warrant a conviction, upon a charge of larceny, against principles and accessories, and that the point contended for by the defendants' counsel was raised, we have to decide whether

the defendant had, therefore, a right to claim a verdict of acquittal. Judgment. The main reliance was placed on Rex v. Cross (1 Lord Raym. 711),

where the defendant was convicted of a misdemeanor, in receiving stolen goods knowing them to have been stolen ; and the court decided to arrest the judgment, because the offence was a felony created by the 3 & 4 Will. & M. c. 9, s. 4, and was not indictable as a trespass; and Holt, C. J., adds, if the proceeding had been at common law, the fact charged would have been evidence that the defendant was accessory after the fact to a felony. But that case is irrelevant to the present question, which arises only in respect of felonies composed of a series of facts, where a part of the series is a complete misdemeanor. The receipt of stolen goods knowingly does not of necessity comprise any series of acts; on the contrary, that offence is not committed at all, unless the receipt and the knowledge are simultaneous; in which case, by the common law, they might be evidence of the defendant's assisting a felon, and so of being guilty of a felony as an accessory after the fact; and by the statute then in force, those facts constituted a felony. The offence was a felony, and a felony only; and, therefore, an indictment charging it to be a misdemeanor was held wrong in law. The case does not show that a criminal, who has been guilty of a complete misdemeanor, and also of a felony comprising a misdemeanor, may set up his felony as a bar to the prosecution for the misdemeanor. The case of Procter v. Darnbrook and others (Hob. 138), gives no support to the defendant's case, but serves to explain the principle upon which judges have acted, in the exercise of their discretion, in some cases of misdemeanor. The plaintiff was suing the defendants, in the Star Chamber, for riots, and for felling of woods : and his proof went to show, that the defendants, in the course of their riotous acts, had committed murder ; and the judges think it fit that the plaintiff should prefer a bill for murder to the grand inquest, and adjourn the further hearing of the plaintiff's suit for the riots till the question of murder should be disposed of by the proper tribunal. The jurisdiction, here exercised, by the judges of the Star Chamber, is exercised now by the justices of oyer and terminer, who may direct one indictment to be quashed or suspended, and another preferred, as public justice may require. But the court, Merger of by making the plaintiff prosecute for the felony before he went on Misdemeanor with his suit, gave no sanction to the notion that the defendant has any right so to interfere, and to demand an acquittal for a manifest minor offence, upon the pretext that he has a right to direct himself to be prosecuted for a graver crime. The passage cited from Foster, Discourse iii., c, 3, s. 6, relates solely to the offence of knowingly receiving stolen goods; and the observations above made upon Rex v. Cross (1 Lord Raym. 711), apply equally to show this passage to be irrelevant here. In Isaac's case (2 East, P. C. c. 21, s. 8), the prisoner was indicted for the misdemeanor of setting fire to his own house, whereby adjoining houses were in danger of being burnt; the evidence was, that he had set fire to his own house to defraud the insurance company, and that the adjoining houses had been burnt down. The judge directed Judgment. an acquittal for the misdemeanor, stating, that, upon these facts, the prisoner was guilty, if at all, of felony. By the law at that time the mere setting fire by a man to his own house was no offence; but, if his house was so situate that other houses were endangered, it was a misdemeanor, being in the nature of an attempt to set them on fire. If they were burnt, it was a felony; it was a setting fire to them, every man being taken to intend the obvious consequences of his act : (see the cases in 2 East, P. C. c. 21, s. 7.) The learned judge who directed the acquittal may have considered that the crime of arson consists in the one act of setting fire unlawfully; and that, after the fire has been so set, the party is responsible for its progress until it is extinguished, and that the progress decides whether such setting on fire is a felony or a misdemeanor : and that a prisoner who has committed a felony, and no other offence, cannot properly be charged with the misdemeanor of an attempt to commit it; and also he may have considered that public justice required a more signal example in a case of such guilt. On both or either of these grounds, the case is distinguished from the present. In Rex v. Evans (5 C. & P. 553), and Reg. v. Anderson (2 M. & Rob. 469), the misdemeanor of obtaining goods by false pretences was charged, and the evidence showed the false pretence to be a felony, namely, the uttering of a forged instrument. In the first case the judge, in the last the prisoner, objected, that as the evidence thus showed a felony to have been committed, therefore the charge of misdemeanor failed; and two judges supported the prisoner's objection, declaring that the proper way of proceeding was by indictment for felony. It is clear, that if a misdemeanor is by statute made a felony, the indictment ought to be for felony, and these cases may have been taken to come within this rule, the first step in the misdemeanor charged




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being created a felony, and, if so, they are here irrelevant. But, it should be observed, that the misdemeanor of obtaining goods by false pretences consists of a series of acts—the false pretence and

the obtaining of the goods—and that the first step in the series

· may also be a felony. Where that is the case, there appears no Merger of reason why the prisoner should be allowed to defeat the charge of Misdemeanor. the lesser offence, by alleging his own guilt in respect of the greater

offence. The same act may be part of several offences; the same blow may be the subject of inquiry in consecutive charges of murder and robbery. The acquittal on the first charge is no bar to a second inquiry, where both are two charges of felony; neither ought it to be where the one charge is of felony and the other of misdemeanor. These being the authorities cited for the defendants, there appear none directly in their favour; and there is a decision against them. In Reg. v. Neale (Den. C. C. R. 36; 1 C. & K. 591), where a charge of misdemeanor, in having intercourse with a female child between the age of ten and twelve, was held proved, and the conviction maintained by the judges, although the evidence

showed that the very act charged as misdemeanor was also the Judgment. felony of rape; the argument for the prosecution being, that every

material allegation of the indictment was proved, and that the verdict ought to be according to truth. This is a direct adjudication that a misdemeanor, which is part of a felony, may be prosecuted as a misdemeanor, though the felony has been completed; and the attempt, on the argument, to make a distinction between misdemeanors by statute and those by common law, was not successful, as the incidents to a misdemeanor, are not affected by the origin in law from whence it was obtained. It was further urged for the defendants, that, unless this defence was sustained, they might be twice punished for the same offence. But this is not so; the two offences being different in the eye of the law. If, however, a prosecution for a larceny should occur after a conviction for a conspiracy, it would be the duty of the court to apportion the sentence for the felony with reference to such former conviction. If the position contended for by the defendant was true, its application would be subject to much uncertainty; for it is not within the province of the judge, in general, to decide on the credibility of the witnesses, or the weight of the facts tending to prove a felony ; but according to the present contention, the duty of acquitting, on his own opinion, is cast upon him; and this conclusion of fact, in which probably the jury would not have concurred, is to be subject to no review. Also, if he should be satisfied that a felony is proved, and should direct an acquittal of the misdemeanor, it is obviously uncertain whether the same evidence would be given upon a prosecution for felony, or would be satisfactory to the jury, or would be left without answer. The felony may be pretended to extinguish the misdemeanor, and then may be shown to be but a false pretence; and entire impunity has sometimes been obtained, by varying the description of the offence according to the prisoner's interest; and he has been liberated on both charges


solely because he was guilty upon both. Upon this review, we are of opinion that this conviction for a misdemeanor ought to be sustained, although the evidence proving it proved also that it was part of a felony, and that such felony had been completed.

Rule discharged.




January 20, 1849.





Larceny by servant.--Removal of master's goods.--Animus furandi. A person employed in a tannery got clandestine access to a warehouse, which was part of the tannery, and in which dressed skins were kept, and took from it certain skins dressed by other workmen. They were afterwards seen and recognized at the porch or place in which he worked, and he was indicted for the larceny of them. The jury found that he had not intended to remove the skins from the tannery and dispose of them elsewhere, but that his intention in taking them was, to deliver them to the foreman and to get paid for them as if they were his own work, and that in this way he intended the skins to be restored to

the possession of his master.
Held, that he was not guilty of larceny.

THE prisoner, William Holloway, was indicted at the General

1 Quarter Sessions, holden in and for the borough of Liverpool, on December 4th, 1848, for stealing within the jurisdiction of the court, 120 skins of leather, the property of Thomas Barton and another.

Thomas Barton and another were tanners, and the prisoner was one of many workmen employed by them at their tannery, in Liverpool, to dress skins of leather. Skins when dressed were delivered to the foreman, and every workman was paid in propor. tion to, and on account of the work done by himself. The skins of leather were afterwards stored in a warehouse adjoining to the workshop. The prisoner, by opening a window and removing an iron bar, got access clandestinely to the warehouse, and carried away the skins of leather mentioned in the indictment, and which had been dressed by other workmen. The prisoner did not remove these skins from the tannery; but they were seen and recognized the following day at the porch or place where he usually worked in the workshop. It was proved to be a common

(a) Reported by A. BITTLESTON, Esq., Barrister-at-Law.


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