1740. DRINKWA TER'S CASE. (1) See 6 Geo. I. c. 23. s. 9. by which a 66 money or reward as aforesaid, (unless such person doth apprehend, or cause to be apprehended, such felon who "stole the same, and cause him to be brought to trial for "the same, and give evidence against him,) shall be guilty "of felony, and suffer the pains and penalties of felony, "according to the nature of the felony committed in steal"ing such goods; and in such and the same manner as if "such offender had himself stole such goods, in the manner "and with such circumstances as the same were stolen." The punishment therefore to be inflicted upon an offender against this Act must be precisely the same as that which the principal offender would have suffered on conviction. The crime charged against the principal by this indictment is privately stealing, which by 8 Eliz. c. 4. is a capital offence; but the Jury might have acquitted her of the capital offence, and found her guilty of grand larceny; or, if they thought it proper, of petty larceny only (1). These different ways of finding the verdict would have made an equal difference in reward of 401. the nature of the present case; and as the principal was found is given to whoever shall guilty of a capital offence, or of grand larceny, or of petty convict any larceny, so an offender against this act, who stands exactly person of felony without in the light of an accessary after the fact, ought to be indicted. benefit of cler- It is impossible to know what kind of offence the prisoner has gy, for the id offence of committed, until the conviction of the principal has ascertaking money tained the nature and degree of his guilt; for the Act exor other repressly requires the same judgment in this case, as should be given against the first offender: but as the first offender has not been convicted, non constat whether the crime be petty larceny, single felony, or a capital offence. This case tallies exactly with the doctrines concerning principal and accessary. At the common law the receiving of stolen goods was not feW. & M. lony, but a misdemeanor only. It was made felony by a particular Act of Parliament, exactly as in the case now before the Court; and yet it was never known that an accessary was tried for felony till the principal had been convicted; and when the principal could not be found, the accessary could not be indicted for the felony, but for the misdemeanor only. ward to help any person to their stolen goods. c. 9. 5 Ann. c. 31. 1 Hawk. 252. 2 East, P. C. 743. On the part of the prosecution it was said, that if this ob 66 is 1740. DRINKWA (2)2 vol.c. 29. S. 45. (3) 9 Hen. 4. 3. Sum. 222. F. Cor. 77. B. app. 28. S. P. C. 46. jection were suffered to prevail, the whole effect of the Act would be frustrated; for it went the length of contending, that if the principal were even indicted, and died, or broke gaol, at any TER'S CASE. time before trial, the offender must be discharged. This case has no analogy to the doctrine which prevails in the case of principal and accessary; but if it had, it will be found that Lord Hale says (1), though the principal do not appear, yet (1) 1 Hale, the accessary may be put to answer by way of defence. And 619, 623. 2 Hale, 200. Mr. Serjeant Hawkins (2) says, " that notwithstanding the 224. numerous authorities in the old books (3), that an access"ary shall not be compelled to answer before the principal "has appeared and answered, the contrary opinion is settled "in a great measure at this day." But the present case extremely distinct from the case of principal and accessary. The fact charged upon the prisoner in the present indictment, is an independent fact; and whether he be guilty of it or not, must be determined by the Jury on all the circumstances of the case. The statute says, he shall suffer pains and penalties, according to the nature of the felony committed; but it does not mention a word of the principal being first convicted. It is therefore sufficient, if it be first proved that the watch was stolen, and then that the prisoner received the eight guineas to restore it. Suppose the charge had been upon that branch of the Act which makes it felony to take money upon pretence of helping another to stolen goods; in that case, though it might have been necessary to state that the goods had been stolen, and to have proved that the larceny was committed, yet it cannot be imagined that it would be necessary previously to convict the thief, before the prisoner could be tried for the felony. In the case of Jonathan Wild (a), the principal felon was not convicted when Wild (a) Jonathan Wild was tried at the Old Bailey in May Session 1725, on the statute 10 and 11 Will. III. c. 23. for privately stealing a box of lace in the shop of Catharine Statham; but it appearing from the testimony of Henry Kelly, the principal felon, who had actually stolen the lace, and who was admitted an evidence for the Crown, that Wild was not in the shop at the time, but only waited at the corner of the street to receive the goods, he was acquitted on this indictment. Wild however was immedi 1740. DRINKWA TER'S CASE. suffered; and all that has been held necessary upon these indictments, is to prove by witnesses, the guilt of the principal, before proof is adduced of the guilt of the prisoner. The production of the record of the conviction of the principal is not in this case necessary. The offence of the prisoner is certainly coupled to that of the principal; but if both parts of the indictment are proved by vivú voce testimony, the Court can be under no difficulty what punishment to inflict. THE prisoner's Counsel replied, That it was impossible to prove guilt upon a dead body, which could not possibly be heard in its own defence. It is averred positively in the indictment, that Catharine Kaylock stole the watch; and if she were alive, she might produce evidence which would go to her acquittal; what punishment could then be inflicted on the prisoner? This is apparently casus omissus in the Act; but the Court will not supply that which the Legislature ought to have done. Death, in many instances, stops the arm of Public Justice, and disables it from striking at the evil it was raised to punish. As to the instance of taking money upon a mere pretence of restoring stolen goods, the indictment in such a case must not only allege that goods were stolen, but the particular manner of the stealing must be proved, and the record of the conviction of the principal be produced, before the prisoner can be convicted of the felony; though he may for the fraud or misdemeanor. As to the citations from Hale and Hawkins, both those authorities say, the accessary may be put to answer, yet his trial is never proceeded on till the principal is convicted; and in Jonathan Wild's Case the exceptions were never taken. THE COURT Conceived this to be a case of very great importance, and of the first impression; and it was therefore reserved for the opinion of the Judges. The prisoner was ac ately arraigned, tried, and convicted on the statute 4 Geo. I. c. 11. S. 4. for receiving ten guineas from Catharine Statham, as a reward for helping her to the box of lace so stolen by Henry Kelly, who was also examined as a witness on the part of the Crown on this second indictment. See Haslam's Case, Old Bailey, 1786, post; and Patram's Case, Bridgwater Assizes, 1787, 2 East, 782. cordingly detained, and after remaining some time in gaol he was discharged; but the opinion of the Judges upon this question was never publicly communicated (a). (a) Mr. East, vol. II. p. 770, suggests with great reason, that the point raised by the prisoner's Counsel, namely, that the principal was not convicted, could not have been the ground of the prisoner's discharge; for that the very terms of the statute preclude the supposition of a conviction of the principal being a necessary preliminary to the trial and punishment of the offender under this statute; for it states that the offender shall be guilty of felony, &c. " unless he doth apprehend, or cause to be apprehended, the felon who stole the goods, and cause such felon to be brought to his trial for the same, and give evidence against him;" and therefore he conceives that the true ground of the doubt was, because by the death of the principal the stipulated condition had become impossible to be performed without any default of the defendant: and in the case of Jonathan Wild, who was convicted on this very statute, it appears, that the principal felon was not previously indicted, but was examined as a witness against him. 2 East, Pl. Crown, ch. xvi. s. 155. See also 6 Geo. I. c. 23. s. 9. 1740. DRINKWA TER'S CASE. THE KING against PETER PARFAIT. CASE VIII. AT the Old Bailey December Session 1740, Peter Parfait On 7 Geo. II. was indicted on 7 Geo. II. c. 22. before LORD CHIEF JUS- c. 22. there must be a deTICE WILLES, MR. JUSTICE CHAPPLE, MR. BARON CARTER, mand, as well and SIR JOHN STRANGE, Knt. Recorder, for assaulting as an assault, to constitute Thomas Weston on the King's highway, with a pistol, with the offence. an intent to rob him. Ir appeared by the evidence, that the prosecutor, a coachman, was driving his coach along the road leading to Pancras, and that the prisoner presented a pistol at him while he sat on his box, and called out to him to stop; but it did not appear that he had made any demand of money. S. C. 1 East, 416. THE COURT. This is not a case within the meaning of the Act of Parliament; for a demand of money or other property must be made to constitute this offence. A demand, howe- 1 Hawk. ver, may be made by action as well as by speech; as if a man who is deaf and dumb stop a carriage on the highway, and 250*. 1740. PARFAIT'S CASE. (1) See the Case of Wil put his hat into the carriage with one hand, while he holds a pistol offensively in the other, or the like; but then the action must be plain, and unequivocally import a demand. In the present case, no motion or offer to demand the prosecutor's property was made (1). liam Thomas, post, Old Bailey, July 1784, and the Cases of Christopher Trusty and Thomas Howard, convicted Old Bailey Session July 1783, before Thomas Harrison, Esq. Deputy Recorder, on 7 Geo. II. c. 22. on evidence of their having stopped a chaise and presented a pistol, without making any express demand of money, and they were transported, 1 East's P. C. 418, 419. 1741. CASE IX. Signing a Wrong Christian name of the person whose will a false instru THE KING against FITZGERALD AND LEE. AT the Old Bailey in September Session 1741, Dominick ment purports intent to defraud the King. S. C. 2 East, 953. The musterbook of the Navy-Office is admissible evidence. See Rhodes's Case, post. THE will began: "In the name of God, Amen. I Peter His "Perry, &c." and ended "John Perry." The prisoner, Mark. Fitzgerald, carried the will to the office of the Deputy Register, who, on observing the difference of the Christian names, told him, that he must produce the person who had written the will, or the person who was present when it was executed, in order to account for this error, before the probate could be granted. Fitzgerald accordingly produced the other prisoner Lee, who, in the name of Welsh, swore that he was one of the subscribing witnesses; that the name of the deceased was Peter Perry; that the said Peter Perry did make his mark to, and deliver the said will; and that he (Welsh) had by mistake written the name John Perry instead of Peter Perry. Upon this, a probate of the will was granted. It was also proved by the muster-book, transmitted by the officers of the ship to the Navy-Office, and which was produced by the Clerk of the Tickets from the Navy-Office, that Peter Perry belonged to the ship Lancaster; that at the time of his decease there were 421. 16s. due to him; and that a |