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WESTERN CIRCUIT.

SOMERSET SPRING Assizes, 1849.

Taunton.

(Before Lord Denman, C. J.)

Reg. v. MARK CLEEVES AND WILLIAM CHIVERS. (a)

PracticeIndictment for a felony, including an assaultPleading guilty to

the assault only. Semble, that upon an indictment for a felony, which felony includes an

assault, it is not competent to the prisoner to plead guilty to an assault

and not guilty to the felony. The two prisoners were indicted for a robbery, with violence, and having

pleaded not guilty to the entire charge, afterwards, with the consent of the prosecutor's counsel, who stated that he was willing to offer no evidence of the felony, wished to withdraw their plea and plead guilty to

a common assault. Held, that the proper course, under such circumstances, would be for the

prisoners to plead not guilty generally, and for the prosecutor to offer evidence only of the assault, and for the jury to return a verdict accord

ingly of guilty of a common assault only. THE two prisoners were indicted for assaulting the prosecutor

1 and robbing him of fivepence halfpenny, to which indictment they had, at an earlier period of the day, pleaded not guilty. The indictment contained only one count, which was the ordinary one for a robbery with violence. Upon the case coming on,

Edwards, for the prisoners, applied for leave to withdraw the plea of not guilty, and for permission for them to plead guilty to a common assault.

T. W. Saunders, for the prosecution, said, that having carefully considered the case, he was of opinion that the charge of robbery could not be supported, and that the facts would only warrant a verdict for an assault; and that if, therefore, it was competent on the present indictment to take a plea of guilty of a common assault, he thought the ends of justice would be sufficiently answered by such a proceeding, and he would offer no evidence of the higher offence. (b) (a) Reported by E. W. Cox, Esq., Barrister-at-Law.

6) By the 7 Will. 4 & 1 Vict. c. 85, s. 11, it is enacted, " that on the trial of any person for any of the offences thereinbefore mentioned, or for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding," &c.

VOL. III.

2K

Reg.

CLEEVES

AND CHIVERS.

LORD DENMAN, C. J.-I think upon this indictment the proper course, in order to carry out the proposed arrangement, will be for the prisoners to plead not guilty, and for some evidence of an assault only to be given, and the jury to return a verdict of guilty of a common assault, under the statute.

Evidence of an assault was then given, whereupon his lordship directed the jury to find a verdict of guilty of a common assault.

Verdict accordingly. (a)

NORTHERN CIRCUIT.

LIVERPOOL SPRING Assizes, 1848.

(Before BARON ALDERSON.)

REG. v. ABRAHAM.

EvidencePrisoner's statement.
Where a prisoner had made a statement which had accounted for the posses-

sion of stolen property before search made, or any suspicion excited :
Held, to be admissible for him.
TNDICTMENT for burglary.
1 Monk for the prosecution.

J. Pollock for the prisoner.

The evidence was, that some glass jars, which had been taken from the prosecutor's shop, were found in the prisoner's house, not concealed. The prisoner had said, before any suspicion was excited, that he had found them in a field.

J. Pollock, on behalf of the prosecution, had urged this upon the attention of the jury.

ALDERSON, B., in summing up, said, that if it was proved that the prisoner had given such an account of his possession of the stolen property to his neighbours, before suspicion existed, or search made, he had not the slightest doubt that valeat quantum, it would be good evidence for the prisoner.

Guilty. (a) See Reg. v. Jones, 441, post.

OXFORD CIRCUIT.

BERKSHIRE SPRING ASSIZES, 1848.

Reading, March 1.
(Before MR. JUSTICE PATTESON.)

REG. V. ARLETT.

Practice-MisdemeanorQuarter SessionsJurisdiction. Upon a bill for a misdemeanor, found at the Quarter Sessions, the defendant

traversed. Held, that the traverse was to the next Quarter Sessions, and not to the

assizes which preceded them; and that, although the defendant was in prison, the judge would not permit him to be discharged on his own recognizances. The Commission of Gaol Delivery extends only to prisoners in the gaol, and

not to prisoners in the house of correction. The judge of assize will discharge, upon his own recognizance, a prisoner

committed to the gaol for trial at the Quarter Sessions (where such sessions are to be held after the assizes), if an indictment be not preferred against him at such assizes. A N indictment had been found against the defendant at the A Berks Quarter Sessions for poaching, under stat. 9 Geo. 4, c. 69, s. 1, which was a misdemeanor triable at the sessions. Upon the bill so found, the defendant was committed for trial at the next Quarter Sessions, but he availed himself of the right to traverse, given by stat. 60 Geo. 3 & 1 Geo. 4, c. 4, and had continued in prison in default of bail; but the assizes having come on before the sessions,

J.J. Williams, for the defendant, applied that he may be discharged on his own recognizances. He knew only of one case that bore any resemblance to this. In the Spring Circuit of 1838 some prisoners had been committed to the Quarter Sessions that followed the assizes, and Baron Gurney, being of opinion that he was bound to deliver the gaol, under his commission, sent for the prosecutors, all of whom attended and prosecuted at the assizes, save one, and in that case the prisoner was discharged on his own recognizance.

Carrington, for the prosecution, was not called upon.

PATTESON, J.-The question in this case is whether a person who has chosen to traverse, upon a bill found at the sessions, REG. traverses to the next sessions or to the assizes, if they are held V.

before the sessions. Clearly he must traverse to the sessions. ARLETT.

The indictment is not here. I have no jurisdiction. I know Practice— nothing of the case ; it is not before me. The sessions have already Misdemeanor

e dealt with it, there the defendant has pleaded, and they have -Quarter Sessions. permitted him to traverse. Baron Gurney rightly dealt with the

cases of the prisoners committed over the assizes to the next sessions; but it is an error to suppose that the Commission of Gaol Delivery requires that all untried prisoners should be tried, for, in fact, the commission is applicable only to prisoners in the county gaol and not to such as are confined in a house of correction. In Yorkshire, for instance, the judges deliver York Castle, but they do not try the prisoners committed to the Wakefield House of Correction for trial at the Quarter Sessions held after the assizes.

Application refused.

OXFORD CIRCUIT.
BERKSHIRE SPRING Assizes, 1848.

(Before Mr. JUSTICE CRESSWELL.)

Reg. v. BARNETT, O'BRIEN AND WHITNEY.

Robbery-Assault.
Upon an indictment of three prisoners for robbery, with violence, it was

proved that A. knocked the prosecutor down, and B. and C. took his

property from his pockets. Held, that if A. took no part in the robbery, he could not be convicted of an

assault, inasmuch as the assault was unconnected with the robbery, and

therefore an independent offence.
Held, also, that it was competent to the jury to find all the prisoners guilty

of an assault, if they were of opnion that the prosecutor had not been
robbed by either of them, but only assaulted by all of them.
THE prisoners were indicted for robbery with violence.

Turner for the prosecution.
Carrington for Barnett.
J. J. Williams for O'Brien and Whitney.

It was proved that, at midnight, the prosecutor was knocked down in a street in Reading by prisoner Barnett; then, missing his watch, he complained of the loss, and the two other prisoners, pretending to search for it, cut off the pocket of his trowers, and carried it away with the money it contained. Then prisoner Barnett assisted him to a house to wash the blood from his face.

v. BARNETT, O'BRIEN,

AND

Upon these facts, it was contended by

REG. Carrington, for prisoner Barnett, that he had not participated in the robbery, and if so the assault was an independent offence, for which he could not be convicted under this indictment. J.J. Williams for the other prisoners.

WHITNEY. CRESSWELL, J., to the jury. If you are of opinion that all the Robbery with prisoners were parties to the robbery, all should be found guilty violence. of the crime charged in this indictment, even although it was not by Barnett's own hand that the money was taken. If you are of opinion that Barnett had no part in it, but only the other two, you will acquit him and find them guilty. You cannot convict him of the assault only, because the assault, which he undoubtedly committed, was an independent assault, and not a part of or connected with the crime charged in the indictment. If you are of opinion that robbery was not committed by either of the prisoners, you may find them all guilty of an assault, for the charge in the indictment includes a joint assault.

Guilty of an assault.

OXFORD CIRCUIT.

Stafford, March 12, 1848.

STAFFORDSHIRE GRAND JURY.(a)

Practice-Grand jury.
The number of jurors sworn upon the grand inquest is not nccessarily

limited to twenty-three-Sed quære.
U PON calling over the names of the grand jurors returned to

J serve at the Stafford Assizes, the officer of the court marked off twenty-three as having answered to their names. The oath was duly administered to the foreman and his twenty-two fellows, and Platt, B., was about to charge them, when two grand jurors who were in the grand jury box said they had not been sworn. On being interrogated it appeared that their names were not among those marked as having answered when called upon, although duly summoned to serve, but that they had answered to their names, though not sufficiently audibly to be heard by the clerk of assize, who had consequently passed them over. Under these circumstances, the learned judge directed them to be sworn. His lordship's attention was called to a passage in Chitty's Crim. Law, but

in (a) Reported by J. E. Davis, Esq., Barrister-at-Law.

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