that the goods were not stolen, will of course be entitled to an acquittal (e). Venue.]-By 7 & 8 G. IV. c. 29, s. 56, (given at length, ante, p. 182,) receivers, whether indicted as accessories after the fact, or for a substantive felony, or for a misdemeanour only, may be indicted in any county or place where they shall have the property in their possession, or in any place where the principal may by law be tried for the original felony, in the same manner as they may be tried in the county in which the property was actually received; and by section 76 (ante, p. 161) property stolen in one part of the united kingdom be received in another, the receiver may be indicted in that part of the united kingdom in which the property was received. Indictment against Receiver as Accessory jointly (f) with Principal. Frame indictment against the original felon, A. B. in the common form, then add And the jurors, &c. that C. D. late of, &c. on, &c. at, &c. the said gold ring, &c. [describing the property as in the former part of the indictment] of the value afore (e) R. v. Smith, 1 Leach, 323; Foster, 365. (f) Charging same person with larceny and receiving in several counts of one indictment; and Election by prosecutor.] In point of law, no objection can be taken on demurrer, or in arrest of judgment, to the charging the same party with more than one felony of the same nature and degree in the same indictment (see 2 Hale, 173; 1 Stark. Cr. Pl. 36, &c. and ante, p. 189). A practice had accordingly obtained in cases where the depositions left it doubtful whether the prisoner was in fact the thief or the receiver only, to indict him in one count for the stealing, and in another for receiving the goods, knowing them to be stolen; subject, as it would seem, to a discretionary power which had, in some cases, been exercised by judges of quashing such indictments if the circumstance appeared to them before plea was pleaded, or the jury charged with the prisoner, or of putting the prosecutor to elect on which count he would proceed if the joinder was not discovered till after plea (Stark. Crim. Pl. 36, quoted 2 Leach, 1105, n. and see post, Ch. VII). The reason for thus dealing with an indictment charging separate felonies was, lest it should confound the prisoner in his defence, or prejudice him in his right of challenge, as he might object to a juryman trying one offence, though not to his trying the other. However, on a case reserved, the judges differed in opinion, whether the prosecutor of such an indictment should even be put to his election, R. v. Galloway, 1 Moo. C. C. 234, though they agreed in directing that in future both charges should not be inserted in the same indictment, ibid.; and adhered to that resolution in R. v. Madden, 1 Moo. C. C. 277; R. v. Flower, 3 C. & P. 413. Still where such an indictment is, in point of fact, found, it is always a matter of prudence and discretion to be judged of by the court only, whether the prosecutor should be put to such election, R. v. Madden; and whenever it is clear that there is only one offence, and the joinder of the counts cannot prejudice the defence, he should not, R. v. Austin, 7 C. & P. 796. In that case one of the five prisoners was indicted under 7 & 8 G. IV. c. 29, s. 54, for receiving goods from the other prisoners knowing them to be stolen; and in another count, for the substantive felony of receiving stolen goods from a certain ill-disposed person; and it was said, the goods and chattels above mentioned so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive, he the said C. D. then and there well knowing the said goods and chattels to have been (g) feloniously stolen, taken, and carried away, as aforesaid, against the form of the statute, &c. and against the peace, &c. Indictment against a Receiver of stolen Goods as for a Substantive Felony (h). That A. B. late of, &c. at, &c. one gold ring of the value of one pound, [the words of the act are "chattel, money, valuable security, or other property whatso held by Bolland, B., and J. Parke, J., not such a misjoinder as to afford ground for a demurrer or quashing the indict ment. Frequently the prosecutor is not put to his election till after his evidence is closed. This appears a proper course. The above practice of charging a prisoner with larceny and receiving in the same indictment, where it was doubtful which of the charges will be sustained in *proof, was probably rendered the more necessary, as the course of preferring two separate bills for the same offence, to the same grand jury, characterizing it in one as felony, in the other as misdemeanour, was strongly disapproved by Eyre, C. B., at the Old Bailey, in 1790, on the ground that the grand jury could not, with propriety, be called on to do so, and that the continuance of such a course might produce other inconveniences, R. v. Doran, 1 Leach, 538. In that case, indeed, one indictment was for a statutable felony, and the other for a misdemeanour at common law, yet the judgment was general. It is not carried further; Reg. v. Stockley, 3 Q. B. R. 238. Possession of goods recently stolen.] It is often very difficult for a jury to decide to which charge, of larceny, or feloniously receiving, the possession of goods recently stolen may be most properly and safely referred, as it is equally consistent with either. Finding a shovel in the prisoner's possession six months after it was stolen is not enough to call on him for his defence, R. v. Partridge, 7 C. & P. 551. The evidence of recent possession is in itself conclusive unless the party having it in his power to account for the possession, either refuses to do so, as giving an account which is proved to be false, see 1 Stark. Ev. 2nd ed. 512. It has been usual for judges to state to juries, that the possession of goods very shortly after they have been stolen, if unexplained by the accused, justifies the inference that he stole them; and this direction has, no doubt, often been followed, when in truth his guilt was that of a receiver. An indictment charged two with stealing in a dwelling-house, and the prisoner and four others with receiving the goods, knowing them to be stolen (viz. as accessories after the fact, since 7 & 8 G. IV. c. 29, s. 54.) Of this latter charge the prisoner and three others were acquitted. That acquittal was held a good defence to an indictment charging the prisoner singly with a substantive felony in receiving, R. v. Dann, 1 Moo. C. C. 424. seems (g) The omission of "been " fatal, R. v. Kernon, 2 Russ. C. & M. 259. (h) The above is the form now used in the central criminal court. It is not necessary to state by whom the principal felony was committed, R. v. Jervis, 6 C. & P. 156, Tindal, C. J. But if the statement is made, it must be proved as laid, R. v. Woolford, 1 M. & Rob. 384, though this may be doubtful, see R. v. Jervis. So, if the indictment alleges a joint act of receiving by two, it must be proved accordingly; for showing that one received in the absence of the other, and afterwards delivered to him, will not suffice, each receiving being separate, and indictable accordingly, R. v. John and Mary Messingham, 1 Moo. C. C. 257. See R. v. Walkeley, 4 C. & P. 122, and other cases, ante, p. 187 et seq. In Reg. v. Hayes, 2 M. & Rob. 155, four prisoners were indicted jointly; two for stealing a sheep, and two others separately, in distinct counts, for re ever,"] of the goods and chattels of one C. D. feloniously did receive and have of a certain evil-disposed person (i); which said last-mentioned goods and chattels had been then lately before, there, to wit, on, &c. at, &c. feloniously stolen, taken, and carried away, he the said A. B. then and there well knowing the said goods and chattels to have been feloniously stolen, taken, and carried away, against the form of the statute, &c. and against the peace, &c. A count for a substantive felony in receiving stolen goods may be joined with a count charging principals with stealing, and the same receiver with receiving the same goods or portions of them (k). Receivers so charged may be convicted on the count for the substantive felony, though all the principals are acquitted of stealing the goods received (1). ceiving separate parts of the mutton of the sheep so stolen and killed, in order to obviate R. v. Messingham. Parke, B., held, that no objection could be taken in arrest of judgment, the utmost being to put the prosecutor to elect. Before 7 G. IV. c. 64, s. 9, an indictment was found against A. for burglary and stealing, and against B. for receiving. This indictment was abandoned against A., and at the same assizes, another was found against B. for receiving, which alleged the original felony "as committed by a person or persons to the jurors unknown." The judges held these facts no objection to the second indictment, R. v. J. Bush, R. & Ry. 372. But in R. v. Walker, 3 Campb. 264, where the indictment laid a larceny by a "person unknown," and an inciting him to that offence by the prisoner, Le Blanc, J., directed an acquittal, when the principal felon, who was on the back of the bill, was called to prove his own and the receiver's guilt. See R. v. Robinson, Holt, C. N. P. 595. If an indictment charges a receiving as a substantive felony, and names the party by whom the original larceny was committed, his confession is not admissible to prove the receiver's guilt, which must be proved aliunde, especially if the principal is alive, and could be called, R. v. Turner, 1 Moo. C. C. 347; nor comm. semb. would a conviction of the principal, on a plea of "guilty," or "not guilty," have been evidence, for the indictment charges not his conviction, but his guilt, S. C.; but qu. see 2 Stark. Ev. (2nd ed. 7.) If the prisoner assisted another in stealing the goods, he may still be convicted both of stealing and receiving, being felonies; and a theft by several, is a theft by each. See R. v. Dyer, 2 East's P. C. 767; R. v. Atwell, id. 768. Guilty knowledge may be proved by the principal felon, or inferred from proof of the small price given, 1 Hale, 619; of denial of having the goods, &c., or of other instances of receiving, R. v. Dunn, 1 Moo. C. C. 146; even though made subjects of indictment, R. v. Davis, 6 C. & P. 177. See Reg. v. Mansfield, Car. & Mar. 140. (i) If the indictment does not here subjoin the name of the principal felon, or "to the jurors unknown," it will suffice; for the statute makes the offence consist in receiving of goods knowing them to have been stolen, and not in receiving stolen goods from any particular person, R. v. Jervis, 6 C. & P. 156, Tindal, C. J. (k) R. v. Wheeler, 7 C. & P. 171; R. v. Hartall, id. 475; R. v. Austin, id. 796; Reg. v. Pulham and others, 9 C. & P. 280. (1) Reg. v. Pulham and four others. Three were charged with stealing a bag, and several articles therein, the property of J. D., and the two others with receiving separately certain of the goods so stolen. There were also two counts, one of which charged each of the lastmentioned two with a substantive felony in separately receiving portions of the same goods (omitting to state the receipt to be from the principal, R. v. Jervis.) SECTION XIII. OF KILLING, MAIMING, OR WOUNDING CATtle. THE felony of unlawfully and maliciously killing, maiming, or wounding any cattle, was by 7 & 8 G. IV. c. 30, s. 16, subjected, at the discretion of the court, to transportation for life, or for not less than seven years, or to imprisonment for any term not exceeding four years, with the additional punishment, if committed by a male, of being once, twice, or thrice, publicly or privately whipped, if the court should so think fit; but by 7 W. IV. and 1 V. c. 90, s. 2, is punished with transportation for not exceeding fifteen nor less than ten years, or to imprisonment for not exceeding three years. Indictment for killing, maiming, or wounding Cattle. That A. B. late of, &c. labourer, on, &c. at, &c. one gelding (m) of the price of ten pounds, of the goods and chattels of J. N. then and there being, feloniously, unlawfully, and maliciously did kill, [or maim (n), or wound, as the case may be,] against the form of the statute in such case made and provided, and against the peace, &c. SECTION XIV. OF FELONIES RARELY PROSECUTED AT SESSIONS. We have seen that even before 5 & 6 V. c. 38, (ante, p. 157,) capital felonies were in practice seldom, if ever, prosecuted at the quarter sessions. There are many other felonies of a less aggravated kind, which, however, from the nicety of the questions likely to arise at their trials, are most usually and properly sent to the assizes by the committing magistrates in the first instance, or if indicted at the quarter sessions, are (m) The particular species of cattle killed, maimed, or wounded, must be specified. An allegation that the prisoner maimed "certain cattle" is not sufficient, R. v. Chalkley, R. & R. 258, though "cattle" be the only word used in the act. See the rule of criminal pleading, stated ante, p. 222. The word "cattle" is the only word used in the statute; and this word in former statutes upon this subject, e. g., the black act, 9 G. I. c. 22, s. 1, and 4 G. IV. c. 54, s. 2 (now repealed), has been held to include horses as well as oxen, &c. R. v. Paty, 2 W. Bl. 721; pigs, R. v. Chapple, R. & R. 77, and asses, R. v. Whitney, 1 Moo. C. C. 3. (n) The injury to be within the act must be permanent, Reg. v. Jeans, 1 C. & Kir. 539, and pulling off part of tongue is held not such injury. Semb. some instrument must be used to make a "wounding," R. v. Owens, Mood. C. C. 205; R. v. Hughes, 2 C. & P. 420. transmitted from thence to the assizes by the magistrates, who recommit the prisoner to take his trial there, and respite the recognizances accordingly (o). Among the felonies thus alluded to, were sending letters containing menacing demands of money, or threatening to impute offences, breaking into and stealing in any church or chapel (viz. of the established church) (p), stealing, destroying, or secreting letters sent by post, or their contents, which had been capital before 5 & 6 W. IV. c. 81 (q), together with those other offences to which transportation for life was attached as the extreme penalty by 7 & 8 G. IV. c. 29; 2 & 3 W. IV. c. 62; 4 W. IV. c. 44; and 5 & 6 W. IV. c. 81, but which are visited now with transportation for various shorter terms, or other minor punishments (r). The modern alterations in criminal law seem to have been made more to mitigate the weight of sentences than to encourage an exercise of power by minor jurisdictions in that great variety of cases which involve intricate proofs, or guilt of a deeper or more complicated kind, than that to which with much propriety they had formerly confined their inquiries. Progressive diminution of punishments for serious offences to a penalty below transportation for life (s), taken as the only test of a wise exercise of their jurisdiction of a sessions of the peace, may often lead them to the trial of cases better reserved for higher courts, e. g. sending threatening letters, &c. If such a course has been sometimes prompted by an anxious fear of expense, it cannot be dignified with the title of a just economy, when it shuts out that opportunity for trial by the higher tribunals, which on serious charges is alike the interest of the accused, the prosecutor, and the public. It is remarkable, however, that while the power of quarter sessions to try those offences against the game laws, which involve the punishment of transportation for fourteen years only, was taken from them by express enactment (t), many serious crimes, for instance, house-breaking, cattle-stealing, assaults with intent, &c., have been still left open to their jurisdiction. If, indeed, the prosecutor of any of the above offences which includes larceny thinks fit to confine his charge to that of simple larceny at common law, he may do so with the concurrence of the magistrate, so as to try the case at the sessions. But the pro (0) See R. v. John Wetherell, R. & Ry. 381. (p) See per Gaselee and Vaughan, Js. R. v. Warren, 6 C. & P. 335, n., on 7 & 8 G. IV. c. 29, s. 10; 7 & 8 G. IV. c. 30, s. 2, and 6 V. c. 18, s. 23, mention dissenting chapels in terms. See Chap. X. s. 5. (q) Viz. 7 & 8 G. IV. c. 29, s. 10, and 52 G. III. c. 143. &c. (r) 7 W. IV. & 1 Vict. cc. 86, 87, 90, (s) 7 W. IV. & 1 Vict. cc. 84, 85, 86. (t) 9 G. IV. c. 69, s. 9, post. |