1775.

for, it would be almost impossible to convict any prisoner, whatever might be his crime, or however certain his guilt. Suppose the prosecutor, in a case of robbery or larceny of RUDD'S CASF. any kind, were asked, "Do you not, Sir, if the prisoner "should be convicted, expect the restoration of your pro"perty?" and he were to answer, as it is most likely he would do, "Yes, I do expect to have my property again," he would, if the argument on the other side were to prevail, be thereby rendered an incompetent witness; but was ever such a question suffered to be answered for such a purpose? In cases where the prosecutor is intitled to a reward, the reward is dependent on the conviction; and therefore a prosecutor is in such case interested in the conviction of the prisoner; but it is a decided point, that no objection can be made to his competency on that ground; and indeed the daily practice of examining such a witness shews that it cannot be taken. An accomplice is not sure of his pardon in many cases, notwithstanding he has given his evidence fairly and fully against the companions of his guilt; it is only from the favour of the Crown that he can hope to receive it; but hope it he must, and yet such accomplices are considered as competent witnesses for the Crown. pose in a case where a statute gives a pardon to an accomplice if he convicts two persons of the offence therein described, and he only gives evidence against one person, or even against two persons and neither of them are convicted, he is not intitled to his pardon as a matter of right, becausehe has not performed the condition on which it was promised him; but having done upon such an occasion all that truth and justice enabled him under the circumstances of the case to perform, he may entertain a rational and well-founded hope of being pardoned; but this hope has never been held to preclude him from being a witness. So though Mrs. Perreau hopes that her husband will be pardoned, whether Mrs. Rudd be or be not convicted, it is only through the favour of the Crown that he can receive that mercy, and therefore the interest she may feel in giving her testimony is not that direct and immediate interest which must exist

Sup

1775.

RUDD'S CASE.

and clearly appear before the competency of a witness can be destroyed.

THE COURT. The reason assigned by Mrs. Perreau for her hope that the conviction of the prisoner might tend to procure her husband's pardon appears to be substantially founded on an idea that such facts may appear in evidence on the trial as will shew that her husband is innocent, and induce the Crown to extend its mercy to him. She apprehends that Mrs. Rudd's guilt will be manifested; but it does not follow that, if the Jury should be of opinion that Mrs. Rudd is guilty of the present charge, Robert Perreau must be innocent of the charge of which he has been convicted, or that her conviction will so soften the complexion of his guilt, as necessarily to induce the Crown to pardon him; and therefore the hope she has expressed is not sufficient to render her an incompetent witness; for the bond, for the uttering of which Robert Perreau was convicted, is not the same bond for the forging of which Mrs. Rudd is now to be tried. The observation that if Robert Perreau were a co-defendant with the prisoner, Mrs. Perreau's evidence would be inadmissible, is certainly well founded; for a wife cannot directly or indirectly give evidence either for or against her husband; but it does not apply to the present case. The cases put by Mr. Lucas are very apposite to the present case. The accomplice hopes for a merciful interference of the Crown in his favour; but he is not intitled to it, nor does it necessarily follow from his disclosing the guilt of his companions; for he may, notwithstanding such disclosure, be indicted and convicted. In prosecutions where there are rewards, although the reward can only be the effect of the conviction, the prosecutors are competent witnesses; yet every man that comes as a witness under the idea of having a reward on the conviction of the prisoner may be said to be interested in point of property in the event of the cause. So the case of criminals admitted witnesses under the statutes of King William and Queen Anne are clearly within the objection now made, because they are not intitled to pardon unless their evidence is a means of conviction; and therefore where the legislature

has held out that as a reward, by way of inducement for criminals to convict and make a discovery, it would have been acting against the rules and principles of law, if in consequence they were, by giving their testimony, considered as interested in the event of the prosecution. They are in the same situation, in appearance, who, although they do not convict, are intitled to a pardon. But the case that has been put of a prosecutor declaring that he hoped by the conviction of the prisoner to obtain restitution of his property, is precisely parallel to, and decisive of, the present point. Whatever therefore Mrs. Perreau's hopes may be, yet as the satisfying of them does not necessarily follow upon the conviction of Mrs. Rudd, the Court is of opinion that she cannot be considered as interested in the event of the prosecution so as to exclude her from giving her testimony therein; for that although the objection goes very strongly to affect her credit, of which the prisoner will have all advantage, it leaves her competency undestroyed.

AFTER a very long trial the Jury brought in their verdict, "According to the evidence before us, NOT GUILTY."

DANIEL PERREAU and ROBERT PERREAU were executed at Tyburn on Wednesday 17th January 1776.

1775.

RUDD'S CASE.

THE KING against BEECH.

IN the King's Bench, Michaelmas Term 15 Geo. III. the defendant had been convicted of perjury in an affidavit; and a rule had been obtained to shew cause why the judgment should not be arrested.

of perjury.

MR. BULLER and MR. DUNNING, in support of the rule, an indictment relied upon a variance between the indictment and the affidavit. In the affidavit the defendant swore, that "he un"derstood and believed," &c. The assignment of the per- Cowper, 229. jury in the indictment was, that " he had falsely sworn that Douglas, 194. 1 Term Rep. "he undertood and believed," &c. omitting the letter s; and they insisted that this being a variance in the material part

237.

1775.

BEECH'S

CASE.

of the charge, viz. in the assignment of the perjury itself, was fatal and could not be cured by verdict, and cited 2 Salk. 660. Hutton, 56. Cro. Jac. 133. 5 Co. 45. Ld. Raym. 1224.

LORD MANSFIELD, C. J. trial in an indictment for

This is an application for a new perjury, upon the ground of a material variance between the affidavit and the indictment;. the letters being left out in the word understood. We have looked into all the cases on the subject; some of which a great degree of nicety indeed, particularly the case in Hutton, where the word indicari was written for indictari; but that case is shaken by the doctrine laid down in 2 Hawkins, P. C. p. 239. The true distinction seems to be taken in the case of The Queen v. Drake, 2 Salk. 660. which is this: That where the omission or addition of a letter does not change (1) As “air" the word, so as to make it another word (1), the variance is for "heir." not material. To be sure, a greater strictness is required in Hart's Case, criminal prosecutions than in civil cases; and in the former a defendant is allowed to take advantage of nicer exceptions. But this is a case where the matter has been fairly tried, and where the omission of the letter s certainly does not change the word. Therefore we are all of opinion, That the Jury did very right in reading it "understood,” and the rule for arresting the judgment must be discharged.

And see

Worcester
Assizes 1776,

post.

Douglas, 194.

NOTE, The introductory words in the indictment in this case were, "to the TENOR and EFFECT following."

CASE LXXII.

The Jury cannot be charged at the same time to try the two

THE KING against CAPTAIN ROCHE.

AT the Old Bailey December Session 1775, David Roche was tried before MR. BARON BURLAND, on a special commission, present MR. JUSTICE ASTON, and MR. SERJEANT issues of Au- GLYNN, Recorder, for the wilful murder of John Ferguson, trefois acquit at the Cape of Good Hope, on the coast of Africa. and Not guilty.

See 33 Hen.
VIII. c. 23.

To this indictment Captain Roche pleaded Autrefois acquit before OLAFF MARTINI BERG, provincial Fiscal of the suIII. c. 113.8. 6. preme Court of Criminal Jurisprudence there.

and 43 Geo.

MR. SERJEANT DAVY for the prosecution moved, that the Jury might be charged at once with this issue, and that of Not guilty.

THE COURT. In pleas in abatement there are two issues, and they are always tried upon separate charges to the Jury. Besides, charging them with both issues at once would lead to this absurdity, that being charged with both, they would be obliged to find upon both: and yet if the first finding was for the prisoner, they could not go to the second, because that finding would be a bar (a). They are distinct issues, and the Jury must be separately charged with them.

THE Counsel for the prosecution was therefore ordered to put in a replication; but the prisoner withdrew the plea in bar, and the case was tried on the general issue.

THE prisoner was acquitted.

(a) It is a bar, because a final determination in a Court having com. petent jurisdiction is conclusive in all Courts of concurrent jurisdiction: therefore if A., having killed a person in Spain, were there prosecuted, tried and acquitted, and afterward were indicted here, at Common Law, he might plead the acquittal in Spain in bar. Bull. N. P. 245, as in the case of Mr. Hutchinson, who had killed Mr. Colson in Portugal, and was acquitted there of the murder: and being afterwards apprehended in England for the same fact, and committed to Newgate, he was brought into the Court of King's Bench by Habeas Corpus, where he produced an exemplification of the Record of his acquittal in Portugal; but the King being very willing to have him tried here for the same offence, it was referred to the consideration of the Judges, who all agreed, that as he had been already acquitted of the charge by the law of Portugal, he could not be tried again for it in England. See Beak v. Thyrwhit, 3 Mod. 194. S. C. 1 Show. 6. And the statute 33 Hen. VIII. c. 23.

THE KING against HARRIS AND MINION.

CASE LXXIII.

cessary to

THE JUDGES met at Serjeants'-Inn Hall on the first day of What eviHilary Term 1776, to consider the following case, which dence is nehad been reserved by MR. JUSTICE ASHHURST at the Old support an Bailey during the then next preceding session.

indictment for High

Treason on 8 & 9 Will. III. c. 26. s. 4. 1 East, 164.