CROWN CASE RESERVED. April 30, 1849. (Before WILDE, C. J., WIGHTMAN, J., ROLFE, B., REG. v. MARTIN. (a) Indictment-Venue-Practice. An indictment found by a grand jury of Dorsetshire contained two counts, one (the 5th) charging A. with sheep stealing in Dorsetshire; and another charging B. with feloniously receiving in Somersetshire a sheep before then feloniously stolen, &c., "being the same property as mentioned in the 5th count." Held, that the 2nd count was bad, for not showing jurisdiction to try in Dorsetshire; the words of reference to the 5th count not being sufficient for that purpose. A question of law raised by motion in arrest of judgment after the conviction of the prisoner may be reserved under 11 & 12 Vict. c. 78. This court will hear counsel in support of the conviction, though no counsel are instructed on the part of the prisoner. THIS HIS was a case reserved by the Court of Quarter Sessions for Case. the County of Dorset. The prisoner, John Martin, was tried, with two other prisoners named Geo. Eades and Charles Eades, at the last Dorset Epiphany Sessions, upon an indictment for sheep stealing, with counts for receiving, &c. The following were the material counts of the indictment : 5th count. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Geo. Eades and Charles Eades, on the said 18th day of December, in the 12th year of the reign aforesaid, with force and arms, at the parish of Sherbourne afore- Indictment. said, in the county of Dorset aforesaid, one wether sheep, of the price of 20s., of the cattle, goods, and chattels of the said Henry Ensor, then and there feloniously did steal, take, and drive away, against the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her crown and dignity. 7th count.-And the jurors aforesaid, upon their oath aforesaid, do further present that the said John Martin, on the said 18th day of December, in the 12th year of the reign aforesaid, with force and arms, at the parish of Trent, in the county of Somerset, one wether sheep, of the price of 20s. (being the same property as is mentioned in the 5th count of this indictment), of the cattle, goods, and chattels of the said Henry Ensor, before then feloniously (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. REG. v. MARTIN. stolen, taken, and carried away, feloniously did receive and have, he, the said John Martin, then and there well knowing the said cattle, goods, and chattels last aforesaid, to have been feloniously Indictment stolen, taken, and carried away, against the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her crown and dignity. VenuePractice. Case. Argument for the prosecution. The two Eades were found guilty upon the 5th count of the indictment for stealing, and sentenced each to seven years' transportation. The prisoner Martin was found guilty on the 7th count for receiving, and thereupon the learned counsel for the prisoner Martin moved in arrest of judgment, upon the ground that the count on which the prisoner was convicted was bad upon the face of it, for several reasons-1. For a total want of venue; or, 2, for a wrong venue; or, 3, for a venue so deficient and imperfect as not to be cured by statute. 4. That the defect is not to be cured by reference to the venue in the margin; 5, or by reference to any other venue in the indictment; 6, or by the parenthesis in such 7th count. 7. That the property is insufficiently laid and described in such 7th count. 8. That such insufficient description is not cured by the parenthesis aforesaid. 9. That it in no way appeared in the said 7th count that the property the prisoner was charged with receiving was stolen in the county of Dorset so as to give the court jurisdiction. 10. And generally, that as such 7th count is a distinct and separate charge of a substantive felony in its terms, of which the prisoner (Martin) might be convicted, although an acquittal of the principals had taken place, it must be taken per se as if it had constituted the whole indictment; and if bad cannot be cured aliunde. The court overruled the objections, considering the defect cured by the 7 & 8 Geo. 4, c. 29, s. 56, and by the late stat. 11 & 12 Vict. c. 46, s. 2, and thereupon sentenced the prisoner to seven years' transportation, but respited the execution of the judgment until the opinion of Her Majesty's judges should have been received upon the case reserved. Ffooks for the prosecution. ROLFE, B.-Can we hear you, no counsel being instructed for the prisoner? Carrington, amicus curiæ, mentioned that this court had done so in Reg. v. Masters (I Den. C. C. 332; 3 Cox's C. C. 178.) WILDE, C. J.-The statute provides for the case; you are entitled to be heard: (sect. 3 of 11 & 12 Vict. c. 78.) Ffooks. There is a preliminary objection to hearing of this case, which is, that the question reserved did not arise "on the trial," but after the conviction of the prisoner; and that, therefore, the court had no power to reserve the case: 11 & 12 Vict. c. 78, s. 1. [ROLFE, B.-Surely it arises on the trial.] No; after the trial is over. The trial concludes with the conviction. [PLATT, B. -The statute says expressly that the judgment may be arrested by this court. ROLFE, B.-The words "on the trial" ought to receive a liberal construction.] Then the 7th count is sufficient. REG. V. MARTIN. Venue Practice. The words of reference in that count cannot, perhaps, be construed to incorporate the whole of the 5th count (R. v. Waters, 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 receiver, 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, s. 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 REG. v. MARTIN. VenuePractice. 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 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 The WILDE, C. J.-It does not appear to me that there is any reasonable 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. 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 REG. v. MARTIN. Dorsetshire. Can we give judgment on such a count? I apprehend that we cannot. The cases which have been cited do not 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 Indictmentmay 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 Venue 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. Judgment arrested. CROWN CASE RESERVED. April 30, 1849. (Before WILDE, C. J., ALDERSON, B., WIGHTMan, J., REG. v. BEETON. (a) Stat. 11 & 12 Vict. c. 46, s. 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. JOHN OHN BEETON was charged at the General Quarter Sessions 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. |