REX v. BURNETT.

KING'S BENCH. 1815.

[Reported 4 Maule and Selwyn, 272.]

THE defendant, an apothecary, was indicted by that addition at the Middlesex Sessions that he, on, etc., in the fifty-fourth year, etc., and on divers other days between that day and the 29th of July, with force and arms at, etc., unlawfully and injuriously did inoculate one A. S. an infant of seven months, one W. M. an infant of one year, and divers other infants of tender years, whose names are unknown, with a certain contagious and dangerous disease called the small pox, by means of which the said A. S., W. M., and the said other infants on the said day and on the other days, etc., at, etc., became and were dangerously ill of the said contagious disease; and the defendant, well knowing the premises, after he had so inoculated them, and while they were so dangerously ill of the said contagious disease on, etc., at, etc., did unlawfully and injuriously cause the said A. S., W. M., and the said other infants, to be carried into and along a certain public street and highway, called, etc., in and along which divers subjects were then passing, and near to divers dwelling-houses, etc., to the great danger of infecting with the said contagious disease all the subjects who were on those days and times in and near the said street and highway, dwelling-houses, etc., who had not had the disease, and ad commune nocumentum, etc.

The indictment being removed into this court, the defendant pleaded not guilty, and was found guilty.

And now it was moved by W. Owen, in arrest of judgment, that this was not any offence. And he said that this indictment differed materially from that in Rex v. Vantandillo, 4 M. & S. 73; for by this indictment it appears that the defendant is by profession a person qualified to inoculate with this disease, provided it be lawful for any person to inoculate with it. Therefore unless the court determine that the inoculating with the small pox has now become of itself unlawful, there is nothing in this indictment to show it unlawful; for as to its being alleged that he caused them to be carried along the street, that is no more than this, that he directed the patients to attend him for advice instead of visiting them, or that he prescribed what he might deem essential to their recovery, air and exercise. And in Rex v. Sutton, which was an indictment for keeping an inoculating house, and therefore much more likely to spread infection than what has been done here, the court said that the defendant might demur.

Lord ELLENBOROUGH, C. J. The indictment lays it to be unlawfully and injuriously, and to make that out, it must be shown that what was done was in the manner of doing it incautious, and likely to affect the health of others. The words unlawfully and injuriously preclude all

fegal cause of excuse. And though inoculation for the small pox may be practised lawfully and innocently, yet it must be under such guards as not to endanger the public health by communicating this infectious disease.

DAMPIER, J. The charge amounts to this, that the defendant, after inoculating the children, unlawfully exposed them, while infected with the disease, in the public street to the danger of the public health.

LE BLANC, J. in passing sentence observed that the introduction of vaccination did not render the practise of inoculation for the small pox unlawful, but that in all times it was unlawful, and an indictable offence, to expose persons infected with contagious disorders, and therefore liable to communicate them to the public, in a public place of resort. 1 The defendant was sentenced to six months' imprisonment.

LORD ELLENBOROUGH, C. J., in Williams v. East India Co., 3 East 192, 200. That the declaration in imputing to the defendants the having wrongfully put on board a ship, without notice to those concerned in the management of the ship, an article of an highly dangerous combustible nature, imputes to the defendants a criminal negligence cannot well be questioned. In order to make the putting on board wrongful the defendants must be conusant of the dangerous quality of the article put on board; and if being so, they yet gave no notice considering the probable danger thereby occasioned to the lives of those on board, it amounts to a species of delinquency in the persons concerned in so putting such dangerous article on board, for which they are criminally liable, and punishable as for a misdemeanor at least.

REGINA v. PARDENTON.

CENTRAL CRIMINAL COURT. 1853.

[Reported 6 Cox C. C. 247.]

Richard Pardenton and Joseph Woods were indicted for unlawfully and negligently driving a certain railway engine in an incautious, careless, and negligent manner, and without regarding a certain signal of danger, whereby the life and limbs of divers persons were greatly endangered. Three other counts varying the manner of stating the charge.

1 See Reg. v. Henson, Dears. 24; Reg. v. Lister, Dears. & B. 209 (but see People . Sands, 1 Johns. 78); U. S. v. Hart, 1 Pet. C. C. 390. ED.

The indictment was founded upon the 13th, 14th, and 15th sections of 3 & 4 Vict. c. 97. A difficulty occurred on the first three counts, founded on the 13th section, as to the jurisdiction of this Court; it being directed that upon the magistrate declining to act summarily, the complaint should be removed to the Quarter Sessions.1

Chambers [for the prosecution] admitted that there was no act which placed the Central Criminal Court in the same position as a Court of Quarter Sessions. But still the question would arise whether, although the offence was alleged to be against the form of the statute, the indictment did not disclose an offence at common law, where it charged acts endangering the lives of Her Majesty's subjects.

CRESSWELL, J. Do you mean to argue that if a man were to gallop a horse furiously through the public streets without hurting any person, that he would be guilty of a misdemeanor because he might be convicted of manslaughter if any one were knocked down by him and killed?

Without hearing the evidence, I think this case is now ripe for decision. Whatever construction may be put upon the 13th and 14th sections of the act referred to as regards the first three counts, I have no difficulty in saying that these counts do not disclose any offence at common law.

MISDEMEANOR.

[Reported 7 C. & P. 795.]

The first count of the indictment charged the prisoner with unlawfully knowing a child under the age of twelve years. Second count, for attempting so to do. Third count, for a common assault.

F. V. Lee, for the prisoner, objected that an attempt to commit a statutory misdemeanor was not a misdemeanor.

Godson, for the prosecution, cited the case of Rex v. Butler, 6 C. & P.

368.

PARKE, B. If this offence is made a misdemeanor by statute, it is made so for all purposes. There are many cases in which an attempt to commit a misdemeanor has been held to be a misdemeanor; and an attempt to commit a misdemeanor is a misdemeanor, whether the offence is created by statute or was an offence at common law.

Verdict, guilty.

1 This short statement is taken from the report in 38 Cent. Crim. Ct. Rep. 691. Only so much of the case as discusses the offence at common law is given. — ED.

CASE reserved for the opinion of this court by the Deputy-Assistant Judge at the Middlesex Sessions.

The prisoners were tried before me at the Middlesex Sessions on an indictment which stated that they unlawfully did attempt to commit a certain felony; that is to say, that they did then put and place one of the hands of each of them into the gown pocket of a certain woman, whose name is to the jurors unknown, with intent the property of the said woman, in the said gown pocket then being, from the person of the said woman to steal, &c.

The evidence showed clearly that one of the prisoners put his hand into the gown pocket of a lady, and that the others were all concerned in the transaction.

The witness who proved the case said on cross-examination that he asked the lady if she had lost anything, and she said "No."

For the defence it was contended that to put a hand into an empty pocket was not an attempt to commit felony, and that as it was not proved affirmatively that there was any property in the pocket at the time, it must be taken that there was not, and as larceny was the stealing of some chattel, if there was not any chattel to be stolen, putting the hand in the pocket could not be considered as a step towards the completion of the offence.

I declined to stop the case upon this objection; but as such cases are of frequent occurrence, I thought it right that the point should be determined by the authority of the Court of Criminal Appeal.

The jury found all the prisoners guilty, and the question upon which the opinion of your Lordships is respectfully requested is, whether under the circumstances the verdict is sustainable in point of law? The prisoners are in custody awaiting sentence.

JOSEPH PAYNE, Deputy-Assistant Judge. Poland, for the prisoners. The conviction is bad. It is not an indictable offence to put a hand into an empty pocket with intent to steal, but an offence punishable only under the Vagrant Act. It is not alleged in the indictment that there was any property in the pocket. This is very like the case of Reg. v. M'Pherson (1 Dears. & B. 197; 7 Cox Crim. Cas. 281), where it was held that a man who was charged with breaking and entering a dwelling-house and stealing certain specified goods, could not be convicted unless the specified goods were in the house, notwithstanding other goods were there. [COCKBURN, C. J. That case proceeds on the ground that you must prove the property as laid.] In the course of the argument BRAMWELL, B., put this very case, and said: "The argument that a man putting his hand

into an empty pocket might be convicted of attempting to steal, appeared to me at first plausible; but supposing a man, believing a block of wood to be a man who was his deadly enemy, struck it a blow intending to murder, could he be convicted of attempting to murder the man he took it to be?" So in R. v. Scudder (3 C. & P. 605) it was held that there could not be a conviction for administering a drug to a woman to procure abortion, if it appeared that the woman was not with child at all. That case was before the Consolidation Act (24 & 25 Vict. c. 96). [BRAMWELL, B. You may put this case: Suppose a man takes away an umbrella from a stand with intent to steal it, believing it not to be his own, but it turns out to be his own, could he be convicted of attempting to steal?] It is submitted that he could not.

Metcalfe, for the prosecution. The fallacy in the argument on the other side consists in assuming that it is necessary to prove anything more than an attempt to steal. The intent to steal, it is conceded, is not sufficient; but any act done to carry out the intent, as putting a hand into the pocket, will do. [CROMPTON, J. Suppose a man were to go down a lane armed with a pistol, with the intention to rob a particular person, whom he expected would pass that way, and the person does not happen to come, would that be an attempt to rob the person?]

COCKBURN, C. J. We are all of opinion that this conviction cannot be sustained, and in so holding it is necessary to observe that the judgment proceeds on the assumption that the question, whether there was anything in the pocket of the prosecutrix which might have been the subject of larceny, does not appear to have been left to the jury. The case was reserved for the opinion of this court on the question, whether, supposing a person to put his hand into the pocket of another for the purpose of larceny, there being at the time nothing in the pocket, that is an attempt to commit larceny? We are far from saying that if the question whether there was anything in the pocket of the prosecutrix had been left to the jury, there was not evidence on which they might have found that there was, in which case the conviction would have been affirmed. But, assuming that there was nothing in the pocket of the prosecutrix, the charge of attempting to commit larceny cannot be sustained. This case is governed by that of Reg. v. M'Pherson; and we think that an attempt to commit a felony can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the felony completed of the attempt to commit which the party is charged. In this case, if there was nothing in the pocket of the prosecutrix, in our opinion the attempt to commit larceny cannot be established. It may be illustrated by the case of a person going into a room, the door of which he finds open, for the purpose of stealing whatever property he may find there, and finding nothing in the room, in that case no larceny could be committed, and therefore no attempt to commit larceny could be committed. In the absence, therefore, of any finding by the jury in this case, either di