A TREATISE

ON

CRIMES AND MISDEMEANORS.

BOOK THE FIRST.

OF PERSONS CAPABLE OF COMMITTING CRIMES, OF PRINCIPALS AND ACCESSORIES, AND OF INDICTABle offences.

CHAPTER THE FIRST.

GENERAL PROVISIONS.

THERE are certain general enactments applicable to many offences, which are collected in this chapter in order that, instead of being frequently repeated at length, and thereby increasing the size of the work, they may be referred to in this place whenever it may be necessary.

By the 14 & 15 Vict. c. 100, s. 9, "if on the trial of any person charged with any felony or misdemeanor it shall appear to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the said indictment; and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried."

Under this clause the defendant can only be convicted of the attempt to commit the very offence with which he is charged. Upon an indictment for breaking and entering the house of M. Fowler, and stealing therein eight spoons, one dress, &c., it appeared that the prisoner broke and entered the house, but that all the articles mentioned in the indictment had been stolen from the house before the time when the prisoner so broke and entered it; there were, however, other goods of the prosecutor's in the house at that time; and it was held that the prisoner [*2 could not be convicted of an attempt under this clause; for such an attempt must be to do that which if successful would amount to the felony or misdemeanor charged in the indictment; and here the attempt could not have succeeded, as the things which the indictment charged the prisoner with stealing had been previously removed. (a)1

(a) Reg. v. M'Pherson, 1 D. & B. 197.

1 The principle that to make a crime of an attempt to commit a crime, there must have been a present ability to perpetrate the crime intended, applies only to the act itself. If the act is in itself efficient to produce the effect intended, the offence is complete, although the effect be defeated by something extrinsic to the act: State v. Wilson, 30 Conn. 500. See People ». Lawton, 56 Barb. 126.

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Upon a trial for felony the jury can only convict of an attempt which is a misdemeanor, and not of an attempt which is made felony by statute. Thus, on an indictment for murder with poison, the prisoner cannot be convicted of feloniously administering poison to the deceased with intent to murder him.(b)

Each of the Consolidation Acts 24 & 25 Vict. c. 96, s. 115; c. 97, s. 72; c. 98, s. 50; c. 99, s. 36; and c. 100, s. 68, contains the following clause :

"All indictable offences mentioned in this Act which shall be committed within the jurisdiction of the Admiralty of England or Ireland shall be deemed to be offences of the same nature and liable to the same punishments as if they had been committed upon the land in England or Ireland, and may be dealt with, inquired of, tried, and determined in any county or place in England or Ireland in which the offender shall be apprehended or be in custody, in the same manner in all respects as if they had been actually committed in that county or place; and in any indictment for any such offence, or for being an accessory to such an offence, the venue in the margin shall be the same as if the offence had been committed in such county or place, and the offence shall be averred to have been committed on the high seas: Provided that nothing herein contained shall alter or affect any of the laws relating to the government of Her Majesty's land or naval forces." The Coin Act, c. 99, which extends to Scotland, in sec. 36, adds Where any of the crimes and offences or high crimes and offences mentioned in this Act, shall be committed at sea, and the vessel in which the same shall be committed shall be registered in Scotland, or touch at any part thereof, the Courts of Criminal Law of Scotland may inquire, try, and determine the same in the same manner as if such crime and offence, or high crime and offence, had been committed in Scotland.”

These enactments were framed on the similar clauses contained in the 7 & 8 Geo. 4, c. 29, s. 77; 7 & 8 Geo. 4, c. 30, s. 43; 9 Geo. 4, c. 31, s. 32; 9 Geo. 4, c. 55, s. 74 (I.); 9 Geo. 4, c. 56, s. 55 (I.); and 10 Geo. 4, c. 34, s. 41 (I.); together with the 7 & 8 Vict. c. 2. Some of these enactments simply provide for the trial of offences committed within the jurisdiction of the Admiralty; whilst others provide in addition, that the offences mentioned in the Act, which shall be committed within the jurisdiction of the Admiralty, shall be deemed to be offences of the same nature, and liable to the same punishments as if they had been committed upon the land in England or Ireland. It seems clear that, wherever an Act creates new offences, this is the proper enactment; for, though in the case of offences against the laws of nature and nations, such as murder or piracy committed *on the seas, the general course of legislation has been simply to provide for *3] their trial, and no doubt correctly, because, in the eye of the law of England, they were offences of the same nature as if they had been committed on land in England, yet it may well be doubted whether that be sufficient in the case of newly created offences; and it is certainly much safer to have the provision with which this clause commences.

The 39 Geo. 3, c. 37, s. 1, no doubt provides generally, that every offence committed upon the high seas shall be of the same nature, &c., as if it had been committed on shore, but it is by no means clear that that enactment applies to any offence created by a subsequent statute, and it was much better not to leave the matter open to any such question.

Under these clauses the Court of Quarter Sessions has authority to try any offender apprehended or in custody within their local jurisdiction for any offence committed on the sea, which they might have tried if it had been committed within that jurisdiction. A prisoner committed a larceny on board the British vessel Candia whilst on the high seas, and was apprehended within the borough and county of Southampton, and it was held that the Court of Quarter Sessions for that borough and county had authority to try him for that offence. (c)

By the 7 & 8 Geo. 4. c. 28, s. 8, "every person convicted of any felony, for which no punishment hath been or hereafter may be specially provided, shall be deemed to be punishable under this Act, and shall be liable, at the discretion of the Court, to be transported (cc) beyond the seas for the term of seven years, or to (b) Reg. v. Connell, 6 Cox C. C. 178, Williams and Talfourd, JJ. (c) Reg v. Peel, 1 L. & C. 231.

(cc) Penal servitude. See the next page.

be imprisoned for any term not exceeding two years, and if a male, to be once, twice, or thrice publicly or privately whipped (if the Court shall so think fit) in addition to such imprisonment."

By sec. 9, "where any person shall be convicted of any offence punishable under this Act, for which imprisonment may be awarded, it shall be lawful for the Court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labor, as to the Court in its discretion shall seem meet."

that

But by the 1 Vict. c. 90, s. 5, "it shall not be lawful for any Court to direct any offender shall be kept in solitary confinement, for any longer periods than one month at a time, or than three months in the space of one year."

Where a prisoner is sentenced to solitary confinement under these clauses, the sentence should specify the time at which such confinement is to commence as well as the term for which it is to last.

An opinion at one time prevailed that it was expedient to award to certain offences fixed terms of transportation or imprisonment, and many statutes were passed containing such fixed terms. That opinion afterwards was abandoned, and in consequence the 9 & 10 Vict. c. 24, s. 1, was passed, which, after *reciting that "in certain cases of felony the Court is not empowered by law to award [*4 sentence of transportation for a less period than the term of the offender's life or some long term of years, or sentence of imprisonment for any shorter term than two years; but it is desirable that some such offenders should suffer transportation or imprisonment for a shorter period respectively, at the discretion of the Court before which they are convicted," enacts that "in all cases where the Court is now (26th June 1846) empowered or required to award a sentence of transportation exceeding seven years, it shall be lawful for such Court, at its discretion, to award a sentence of transportation for a term of years, not less than seven years, or to award such sentence of imprisonment for any period not exceeding two years, with or without hard labor, as shall to the Court in its discretion appear just under all the circumstances."

By the 16 & 17 Vict. c. 99, penal servitude was introduced in lieu of transportation in certain cases and under certain regulations; but sec. 1, 2, 3, and 4 of that Act which made these provisions were repealed by the 20 & 21 Vict. c. 3, s. 1, and by sec. 2 of this Act, "no person shall be sentenced to transportation; and any person who [if the 16 & 17 Vict. c. 99, and 20 & 21 Vict. c. 3, had not been passed] might have been sentenced to transportation, shall be liable to be sentenced to be kept in penal servitude for a term of the same duration as the term of transportation to which such person would have been liable if the said [Acts] had not been passed; and in every case where at the discretion of the Court one of any two or more terms of transportation might have been awarded, the Court shall have the like discretion to award one of any two or more of the terms of penal servitude which are hereby authorized to be awarded instead of such terms of transportation : Provided always, that any person who might at the discretion of the Court have been sentenced either to transportation for any term or to any period of imprisonment shall be liable at the discretion of the Court to be sentenced either to penal servitude for the same term or to the same period of imprisonment; and in any case in which before the passing of the (16 & 17 Vict c. 99) sentence of seven years' transportation might have been passed, it shall be lawful for the Court at its discretion to pass a sentence of penal servitude of not less than three years."

The 27 & 28 Vict. c. 47 recites the 16 & 17 Vict. c. 99, and 20 & 21 Vict. c. 3, and by sec. 1, "this Act shall be construed as one with the above mentioned Acts." Sec. 2. "No person shall be sentenced to penal servitude in respect to any offence committed after the passing of this Act for a period of less than five years; and where under any Act now in force a period of less than five years is the utmost sentence of penal servitude that can be awarded, a period of five years shall, in respect to any offence committed after the passing of this Act, in such Act be substituted for the less period; and where under any Act now in force a period of