OXFORD CIRCUIT. Gloucester, April 3, 1849. REG. v. JOHN BROWNING. (a) Evidence-Pawnbrokers Act-False declaration. To prove the making of a false declaration under the Pawnbroker's Act (39 & 40 Geo. 3, c. 99), it is not absolutely necessary to call the magistrate before whom it was made, or some one present at the time. It is sufficient to show such facts as necessarily lead to the conclusion that the defendant made it, and had a knowledge of the contents. quære. Sed To prove that such a declaration is false in fact, it is necessary to negative the defendant's statement by the oath of two witnesses, in the same manner and to the same extent as the proof of an assignment for perjury. THE defendant was indicted for having, at Stroud, in the county of Gloucester, on the 15th of December, 1846, wilfully and corruptly made a false declaration before Edmund Gilling Hallewell, Esq., one of Her Majesty's justices of the peace for the said county, that he had lost a certain note or memorandum, being a pawnbroker's ticket, whereas, in truth, he had not lost it, but had sold it to one Charles Bingle. (b) Grey, for the prosecution, in stating the case to the jury, sought the opinion of the learned judge (PLATT, B.) as to the sufficiency of (a) Reported by J. E. DAVIS, Esq., Barrister-at-Law. (b) By stat. 39 & 40 Geo. 3, c. 99, s. 16, it is enacted that in case any note or memorandum delivered by a pawnbroker of goods pledged to him, shall he lost, mislaid, destroyed, or fraudulently obtained from the owner, then the pawnbroker "shall, at the request and application of any person, &c., who shall represent himself, &c., to the pawnbroker as the owner, &c., of the goods and chattels in pledge as aforesaid, deliver to such person, &c., a copy of the note or memorandum so lost, mislaid, &c., with the form of an affidavit of the particular circumstances attending the case, printed or written, &c., on the said copy, as the same shall be stated to him or her by the party applying as aforesaid, &c.; and the person, &c., having so obtained such copy of the note or memorandum and form of affidavit as aforesaid, shall thereupon prove his, her, or their property in, or right to, such goods and chattels, to the satisfaction of some justice of the peace, &c., and shall also verify, on oath or affirmation, as the case may be, before the said justice, the truth of the particular circumstances attending the case mentioned in such affidavit or affirmation to be made as aforesaid, the caption of such oath or affirmation to be authenticated by the handwriting thereto of the justice before whom the same shall be made, and who shall, and is hereby required so to authenticate the same, whereupon the pawnbroker shall suffer the person, &c., proving such property to the satisfaction of such justice as aforesaid, and making such affidavit or affirmation as aforesaid, on leaving such copy of the said note or memorandum and the said affidavit or affirmation with the said pawnbroker, to redeem such goods or chattels." The 5 & 6 Will. 4, c. 62, s. 12, substitutes a declaration in lieu of the affidavit above mentioned; and sect. 21 enacts that any person "who shall wilfully and corruptly make and subscribe any declaration substituted for an oath by that statute, knowing the same to be untrue in any material particular, shall be deemed guilty of a misdemeanor." REG. v. JOHN Act the evidence which he was prepared to offer in support of the case. The defendant had pledged certain articles to a pawnbroker at BROWNING Stroud, for which he received a memorandum or duplicate, and had subsequently gone to him and stated that he had lost the ticket or Pawnbrokers duplicate. The pawnbroker told him he must make a declaration Evidence. of the loss before a magistrate, and for that purpose handed the prisoner a copy of the ticket, and a form to be filled up, according to the provisions of the 39 & 40 Geo. 3, c. 99. The defendant took the form and paid for it, saying he would go to a magistrate. He returned the same day with the form properly filled up, and with his name and that of Mr. Hallewell attached. Upon his presenting it, the pawnbroker gave him the articles pledged; another person afterwards applied for the things with the original duplicate, when it appeared that the prisoner had sold that duplicate in a public-house on the day that he produced the declaration and obtained the second in lieu of it. The magistrate was not in attendance to prove the fact of the declaration having been made by the defendant; the fact being that he had no recollection of the circumstance one way or the other. The pawnbroker, however, identified the declaration, and a witness was present to prove the sale and transfer of the ticket in the public-house, as alleged. PLATT, B.-As regards the proof of the declaration having been made by the defendant, I think there may be sufficient evidence to support the indictment, if you can bring home to him a knowledge of the contents; but I am of opinion that the falsity of that declaration must be proved by the oaths of at least two witnesses, as in a case of perjury, otherwise there would be merely oath against oath. I understand that there is only one witness to prove this part of the case, and therefore I think the prosecution cannot be supported. No evidence was offered, and the defendant was acquitted. [There can be no doubt as to the correctness of the learned baron's ruling on the last point, but the very analogy of the proof in a charge of perjury leads to the inference that the fact of the declaration having been made must be proved with the same strictness as in an indictment for perjury. The making a false declaration is made a misdemeanor by the act of Parliament, which substitutes a declaration in lieu of the oath in this and certain other cases; and it could never be contended that an indictment for perjury could be sustained by evidence of the above description.-J. E. D.] NORFOLK SPRING CIRCUIT, 184. Bury St. Edmunds, March 19. (Before Mr. BARON ROLFE.) REG. v. LONGBOTTOM AND ANOTHER. (a) Manslaughter-Negligence of deceased. Wherever death ensues from injuries inflicted by parties engaged in any illegal act, an indictment for manslaughter will lie, even though it appear that the deceased had materially contributed to his death by his own negligence. THE HE indictment charged, that the two prisoners feloniously killed and slew John Truman, by driving over him with a gig. O'Malley and E. Rodwell, for the prosecution, proved that the two prisoners, who lived in Ipswich, had gone to Bentley on the day named in the indictment in a gig, and that on their return at night they were observed to be in a state of partial intoxication. At several places they drove along the high road at a very rapid pace, and when they got within two miles of Ipswich they met three men. At that time they were laughing and driving rapidly down a hill, the top of which was thickly shaded with trees. When the three men got to the trees they found a man lying insensible in the middle of the road, presenting all the appearance of having been just run over by some vehicle. They took up the man, who shortly afterwards died. On inquiry it turned out that the deceased was a man who had been deaf from childhood, but had, in spite of his infirmity, contracted an inveterate habit of walking at all hours in the middle of the road. Against the probable consequences of an indulgence in this habit he had been frequently warned, but without effect. D. D. Keane, for the prisoner Longbottom, submitted, at the close of the case for the prosecution, that he ought to be acquitted, inasmuch as it appeared that the deceased had contributed in a great measure, if not altogether, to his own death by his own. obstinacy and negligence. There was, moreover, no proof that the prisoners were driving at any extraordinary pace; while it appeared that they were in the middle of the road, and that the deceased was walking just where he ought not to have been, reference being had to the lateness of the hour, the darkness of the place, and his peculiar infirmity, which ought to have induced him to refrain from the selection of the most frequented part of the high road, (a) Reported by J. B. DASENT, Esq., Barrister-at-Law. v. Manslaughter. REG. as that on which alone he would walk. No accident could posLONGBOTTOM Sibly have occurred to the deceased, if he had been at the side of AND ANOTHER. the road where foot passengers always walked. He had, therefore, contributed to his own death, and the question was, whether that fact did not exonerate the prisoners from such a charge as the present. This might be tested by analogy with a civil action under Lord Campbell's Act. Under that statute the representatives of the deceased could not maintain an action for compensation against the prisoners, as he had himself been guilty of negligence, so, in this prosecution, it was contended that the prisoners could not be convicted of the crime of manslaughter. ROLFE, B.-I cannot stop the case; for whatever may have been the negligence of the deceased, I am clearly of opinion that the prisoners would not be thereby exonerated from the consequences of their own illegal acts, which would be traced to their negligent conduct, if any such existed. I am of opinion that if any one should drive so rapidly along a great thoroughfare leading to a large town, as to be unable to avoid running over any pedestrian who may happen to be in the middle of the road, it is that degree of negligence in the conduct of a horse and gig which amounts to an illegal act in the eye of the law; and if death ensues from the injuries then inflicted, the parties driving are guilty of manslaughter, even though considerable blame may be attributed to the deceased. I do not at all recognize the analogy which has been put with regard to an action under Lord Campbell's Act and a charge of felony; and I abstain from giving any opinion as to the question whether, under the circumstances here proved, the representatives of the deceased would be precluded from maintaining an action for compensation against the prisoners. But there is a very wide distinction between a civil action for pecuniary compensation for death arising from alleged negligence and a proceeding by way of indictment for manslaughter. The latter is a charge imputing criminal negligence, amounting to illegality; and there is no balance of blame in charges of felony, but wherever it appears that death has been occasioned by the illegal act of another, that other is guilty of manslaughter in point of law, though it may be that he ought not to be severely punished. If the jury should be of opinion that the prisoners were driving along the road at too rapid a pace, considering the time and place, and were conducting themselves in a careless and negligent way in the management of the horse entrusted to their care, I am of opinion that such conduct amounts to illegality, and that the prisoners must be found guilty on this indictment, whatever may have been the negligence of the deceased himself. Sentence-eight months' imprisonment. D. Power was counsel for the other prisoner. Verdict, guilty. CENTRAL CRIMINAL COURT. JANUARY SESSION, 1848. January 8. (Before Mr. JUSTICE PATTESON.) REG. v. JONES. (a) Wounding, with intent-7 Will. 4 & 1 Vict. c. 85. Evidence of a violent kick in the private parts of a woman, which caused a flow of blood mingled with urine for some time afterwards, is not a wounding within the statute, no proof being given as to the precise part whence the blood originally came. On such an indictment a prisoner cannot plead guilty to a common assault. THE HE prisoner was indicted for wounding, with intent to do grievous bodily harm. Bodkin (for the prosecution), in opening the case, stated the nature of the wound to have been as follows:-The prisoner had come behind the prosecutrix and given her a violent kick in the private parts, and that had been followed by an occasional discharge of blood, mingled with urine, but the surgeon could not undertake to say from what precise vessels the blood originally flowed. PATTESON, J.-Then I do not think the more serious charge in this indictment sustainable. There may have been no lesion of any of the vessels at all. Blood may be discharged from those parts simply from natural causes. Parry (for the prisoner), then offered on his behalf to plead guilty to the common assault. PATTESON, J.-He cannot do that; he may be found guilty of the assault under 1 Vict. c. 85, s. 11; but that statute gives me no authority to receive such a plea. (b) (a) Reported by B. C. ROBINSON, Esq., Barrister-at-Law. |