« ForrigeFortsett »
The words of reference in that count cannot, perhaps, be con- Reg. strued to incorporate the whole of the 5th count (R. v. Waters,
MARTIN. 1 Den. C. C. 356; 3 Cox C. C. 300; R. v. Martin, 9 Car. & P. 217); but the law as to receivers of stolen property is much altered by Indictment11 & 12 Vict. c. 46 ; of which sect. 2 authorizes the trial of the bene
Venuereceiver, on the substantive charge, in any county in which the principal might be tried. Then the reference to the 5th count is sufficient to show that the receiver was tried with the principal. [WILDE,C.J. -We must see either a jurisdiction at common law, by the commission of the offence within the county, or a jurisdiction given by statute. It is clear that this count does not state anything done by any person in the county of Dorset; but there is a statutory jurisdiction to try in any county where the prisoner has the property in his possession, and also to try the receiver anywhere where the thief may be tried : but this count does not show that the thief could be tried in Dorsetshire. How, then, does any jurisdiction appear ? Nobody appears to have done anything in Dorsetshire.] If the whole of the 6th count is imported, it shows that the thief was indicted at the same place. [WIGHTMAN, J.The 7th count does not show even who the principals were.] It says that the property was the same. [ROLFE, B.- It does not follow from that.] The stat. 7 & 8 Geo. 4 authorizes a trial in any county in which possession of the stolen property is shown; and the effect of these statutory provisions is that, in point of law, for Argument for the purpose of trial the county in which the offence is committed the prosecution. is extended ; and therefore it is unnecessary in the indictment to set out the special jurisdiction. (CRESSWELL, J.-Does the 7th count show to whom the defendant, Martin, was accessary ?] I cannot say that it does. [CRESSWELL, J.-Then how can you rely upon the argument that the accessary may be tried wherever the principal may be tried ?] It is enough that there was jurisdiction in fact. In R. v. James (7 Car & P.553), where a prisoner was tried in the county in which he was in custody, by virtue of 1 Will. 4, c. 66, s. 24, it was held that the indictment need not aver the custody in that place. Loader's case (Talf. Dickenson, 5th edit., 188; 2 Russ. on Crimes, 122), is to the same effect. That was a case of simple larceny, committed in a parish of Somersetshire entirely detached from it and surrounded by Dorsetshire. The prisoner was committed by a Dorsetshire magistrate to the gaol of that county. The indictment laid the offence to have been committed in the parish of Somersetshire, stating it to be surrounded by Dorsetshire, but did not state that the prisoner was in Dorsetshire, or committed by a Dorsetshire magistrate. It was objected that that should have appeared upon the face of the indictment, in order to bring the case within 2 & 3 Vict. c. 82, . 1 ; but Rolfe, B., overruled the objection, and the prisoner was convicted, And in R. v. Mitchell (2 Q. B. 636), it was expressly stated, in the judgment of the court, that the statute, authorising the trial within a county of offences committed within 500 yards of the border (7 Geo. 4, c. 64, s. 12), did not affect the statement of
venue in the indictment. Frazer's case (1. Moo. C. C. 407), which
seems an authority the other way, was not argued, and is at
* variance with the general current of authorities. If the venue is Indictment - only defective, the defect is cured by 7 Geo. 4, c. 64, s. 20; and it
must, for this purpose, be assumed that the court has jurisdiction Practice.
until the contrary be shown : (R. v. O'Connor, 5 Q. B. 16, 23, per Patteson, J.) [ROLFE, B.—Here the court appears not to have jurisdiction. WILDE, J.-You cite that case to show that the jurisdiction may be proved aliunde ; but we know nothing except what appears on the count.] In R. v. Goff (Russ. & Ry. C. C. 179), it was held that it need not appear in the indictment that Hants was the adjoining county to Southampton, although the jurisdiction to try, under 38 Geo. 3, c. 52, depended upon that fact. The prisoner cannot be prejudiced, because, if again indicted in the other county, he must plead autrefois convict : (11 & 12 Vict. c. 46, s. 2.) [ROLFE, B.—If he had been duly tried the first time; but not otherwise. Platt, B.-It is very difficult for us to conclude that this prisoner was tried by the proper tribunal, when facts have been industriously introduced for the
purpose of showing that there was no jurisdiction.] Judgment of WILDE, C. J.-It does not appear to me that there is any reasonWilde, C. J.
able doubt in this case, that this count cannot be supported. It is necessary that the count should, on the face of it, show the jurisdiction of the court by which it is tried; and that does not mean that all the facts, appearing aliunde, which may, in the particular case, be necessary to give jurisdiction in fact, should be stated in the indictment. For the sake of illustration take the case of R. v. James. The indictment stated a forgery committed in the county of the city of Gloucester, and it was found by a grand jury of that county; so that, on the face of it, the indictment clearly showed jurisdiction. Then the evidence proved that, in fact, the offence was not committed in Gloucester, but the trial in Gloucester was authorised by a statute, which provided that, under the circumstances, the case was the same as if the offence had been committed in Gloucester. The count showed jurisdiction, but the evidence only supported the count by reason of the effect of the statute ; and the court held that the special circumstances need not be averred. In the present case, the indictment charges the prisoner, who was tried in the county of Dorset, with having feloniously received a sheep in the county of Somerset, it not appearing who the thief was, or where the sheep was stolen, or that the prisoner had ever had it in his possession in the county of Dorset, and the acts of Parliament stating only that the receiver of stolen property may be tried in the county where the original theft was committed, or in any county where he may have had possession of the stolen property, or originally received it. Now we have to decide upon a motion in arrest of judgment. We know nothing of the facts; and here an indictment, charging an offence in Somersetshire, is tried in Dorsetshire, without any averment of facts showing jurisdiction in
Dorsetshire. Can we give judgment on such a count? I apprehend that we cannot. The cases which have been cited do not
MARTIN. appear to me to touch the point; and as to the argument that the trial would appear to be proper if certain facts were before us, we Indictment
tion of may treat those facts as if they existed only in the imagination of
Practice. the learned counsel who presents them. For these reasons I think the judgment ought to be arrested.
Rolfe, B.-I am of the same opinion. Mr. Ffooks suggested some doubt whether this court had jurisdiction in this case, because the question arose subsequent to the trial and after conviction ; Judgment of but I think there is no ground for that doubt. The word trial Rolfe, B. ought to be taken in a liberal sense; and, in my opinion, includes all the proceedings in the court below. The statute authorises the court, amongst other things, to amend or arrest the judgment. As to the other point I entirely concur in the judgment already pronounced. Mr. Ffooks alluded to a case tried before me in Dorsetshire several years ago : (R. v. Loader.) I have no very distinct recollection of the case; but my impression is, that there I thought it unnecessary to aver a commitment for trial in Dorsetshire, because that was only rendered necessary by the facts appearing in evidence, and jurisdiction sufficiently appeared on the face of the indictment. The other learned judges concurred.
CROWN CASE RESERVED.
April 30, 1849.
(Before WILDE, C. J., ALDERSON, B., WICHTMAN, J.,
CRESSWELL, J., and Platt, B.)
Reg. v. Beeton. (a)
Stat. 11 f. 12 Vict. c. 46, 8.3—Joinder of several counts for receiving,
with counts for stealing. An indictment containing counts for stealing as well as receiving, under
sect. 3 of 11 & 12 Vict. c. 46, may have as many counts for receiving as for stealing ; and the prosecutor is not bound to elect upon which of the counts for receiving he will rely. TOHN BEETON was charged at the General Quarter Sessions U of the Peace for the county of Suffolk, held by adjournment at Bury St. Edmunds, on the 17th of March, 1849, upon an indictment containing sixteen counts.
(a) Reported by A. BITTLEston, Esq., Barrister-at-Law.
receiving thext five countage of the dx and larcer
The first nine counts alleged a breaking into and stealing from the dwelling-house, the property being laid differently in each
count. Indictment The tenth count stated the breaking and larceny in respect of a for Larceny- building within the curtilage of the dwelling-house.
receiving receiving the stolen property, each of the latter counts being and stealing. varied to meet the allegations in the first five counts.
The sixteenth count stated a previous conviction.
After the prisoner had pleaded not guilty, and before the case for the prosecution was opened, the counsel for the prisoner objected, that under sect. 3 of 11 & 12 Vict. c. 46, it was made lawful to add one count only for receiving, and that the counsel for the prosecution should therefore be called upon to select upon which of the counts for receiving he would proceed. The court thought that the said section made it lawful to add as many counts for receiving as there were counts charging a stealing, and refused to put the counsel for the prosecution to his election, but reserved a case upon that point for the consideration of this court.
The prisoner was found guilty upon the eleventh count of the indictment and acquitted upon the other counts, and was sentenced to seven years' transportation ; execution being respited until the question reserved should have been considered and decided.
Bulwer appeared for the prosecution.
ALDERSON, B.-Is there any doubt about this? Why may there not be as many counts for receiving as stealing? One offence only is stated, but the different counts contain different descriptions of the property.
WILDE, C. J.-We are ready to hear you with great patience; but I believe we are all clearly of opinion that there is nothing in the point.
CROWN CASE RESERVED.
April 30, 1849.
REG. v. Wood.(a)
Larceny—Animus furandi—Finding and appropriation of lost goods.
supposes to have been lost, and takes possession of them, intending to
1 of Huntingdon, 1848, for stealing a promissory note for the payment of 51., the property of Samuel Brown. The facts proved were, that the governess of the prosecutor dropped the note in question, which was a country bank note,on the road to Somersham, where the prisoner lived; that the loss being very soon discovered, search was made for it, but in vain; and on the following day the prisoner changed the note, and stated that he had found it. On the evening of the loss, and also on the following morning, before the prisoner changed it, the fact of the loss and the particulars of the note were communicated to the prisoner and others.
The jury found that the prisoner did not know, when he picked up the note, who the owner was, but that he did know who the owner was when he changed it. The learned judge (Baron Parke) directed a verdict of guilty to be entered, but discharged the prisoner upon his own recognizance, in order that the opinion of the judges might be taken upon the case.
The case was set down for argument in Hilary Term, and was considered by the judges who then composed the court ;(b) but no counsel were instructed to argue it.
Cur, adv. vult.
PARKE, B., now delivered the judgment of the court. -The Judgment of prisoner was tried before me at the last summer assizes for the the county of Huntingdon for stealing a bank note. It appeared that
(a) Reported by A. BITTLESTON, Esq., Barrister-at-Law.