1784.

HUTCHIN

"be exported, or the carrying off such goods in order to "such exportation, or in running, landing, or carrying away "prohibited or uncustomed goods, or goods liable to pay SON'S CASE. 66 any duties, which have not been paid or secured, or in the illegal relanding of any goods whatsoever which have been

66

shipped or exported upon debenture or certificate, or in rescuing or taking away the same, after seizure, from any "Officer or Officers of the Customs or Excise, or other his Majesty's revenue, or other person or persons employed by "him or them, or assisting him or them, or from the place "where they shall be lodged by him or them, or in rescuing

66

66

any person who shall be apprehended for any of the offences "made felony by this or any other Act relating to the re❝ venues of Customs or Excise, or in preventing the appre"hending any person who shall be guilty of any such of"fence, every person so offending shall suffer death without "the benefit of clergy."

SECONDLY, " Or in case any persons to the number of "three or more, so armed as aforesaid, shall be so aiding "or assisting, they shall suffer death without benefit of ❝ clergy."

THIRDLY, "Or if any person shall have his face blacked, ❝or wear any vizard, mask, or other disguise when passing "with such goods."

FOURTHLY, "Or shall forcibly hinder, obstruct, assault, 66 oppose or resist any of the Officers of the Customs.or Ex❝cise, or other his Majesty's revenue, in the seizing or se❝curing any such goods."

FIFTHLY, "Or if any person or persons shall maim or "dangerously wound any Officer of the Customs or Excise, "or any other his Majesty's revenue, in his attempting to 66 go on board any ship or vessel within the limits of any ❝of the ports of this kingdom, or shoot at, maim, or dan"gerously wound him when on board such ship or vessel, "and in the due execution of his office or duty; then every "person so offending shall be adjudged guilty of felony, and "shall suffer death without benefit of clergy."

THE COURT. The third branch of the Act of Parliament apparently has no regard to the number of persons, nor to their being armed with offensive weapons; and therefore an individual, passing disguised with uncustomed goods, would in all probability be deemed within the penalties of the Act. The fourth branch also, being coupled by the word "OR" to the preceding sentence, seems to be a clause that would reach any individual who shall forcibly hinder or obstruct a Revenue-Officer in the execution of his duty. On this clause the third count in the present indictment is founded, and undoubtedly there is evidence to prove the fact; but by the statute of 19 Geo. III. c. 69. s. 10. this offence is reduced to a misdemeanor, punishable by corporal punishment, and the felony thereby virtually repealed. This point was settled by the TWELVE JUDGES, in the case of the King v. Davies, reserved by MR. JUSTICE GOULD from the Home Circuit (1). The second count does not appear to be supported by any of the clauses in the statute; and on the first count, which is framed on the first branch of the Act, there does not appear to be sufficient evidence to convict the prisoners. To bring offenders within the penalties of this clause, they must be armed with offensive weapons (a); and the assembling must

(a) In B. R. Trinity Term, 15 Geo. II. it appeared in a special verdict on an indictment for this offence, that all the company had fire-arms, except the defendant, who had only a common horsewhip; and THE COURT SO strongly inclined that the defendant was not guilty, that the Attorney and Solicitor-General declined to argue it; for the Act must be taken strictly; and it is a material circumstance in each man's case, that he shall be armed with an offensive weapon. 2 Strange, 1166. Fletcher's Case.-At Old Bailey May Session 1784, MR. JUSTICE WILLES and MR. BARON PERRYN inclined to think that a person catching up a hatchet accidentally, during the hurry and heat of an affray, is not being armed with an offensive weapon within the meaning of this Act. The Case of Cornelius Rose. -At the Old Bailey February Session 1785, large sticks, about three feet long, with large knobs at the end, with several prongs, the natural growth of the stick, arising out of them, were held not to be offensive weapons; and the COURT (MR. J. GOULD, MR. B. PERRYN, and Mr. Recorder,) said on reading the preamble of the statute, that they must be such weapons as the law calls dangerous weapons. Ince's Case-In the Case of George Cosans, Old Bailey May Session 1785, it was contended, upon the

be deliberate, and for the express purpose of assisting in the
rescue of the goods (a). In the present case it is quite the
reverse. A set of drunken fellows come from an ale-house,
and hastily set themselves to carry away the geneva, but whe-
ther with arms or without is not proved.
It seems very
questionable, whether the object which the Legislature had in
view can be extended to the present case. The goods are
found concealed in a vault; and the words of the statute ma-
nifestly allude to the circumstance of great multitudes of
persons coming down upon the beach of the sea, for the pur-
pose of escorting uncustomed goods to the places designed
for their reception.

THE COURT offered Mr. Attorney-General a special verdict upon this case; but he declined to take it, and the prisoners were acquitted.

authority of Ince's Case, that very large club sticks, such as people ride
with to defend themselves, are not offensive weapons; and on its being
left to the Jury, the prisoner was acquitted: but THE COURT said, that
although it was difficult to say what should or should not be called an
offensive weapon, it would be going a great deal too far to say, that no-
thing but guns, pistols, daggers, and instruments of war should be so con-
sidered; but that bludgeons, properly so caled, clubs, and any thing
that is not in common use for any other purpose but a weapon, are clearly
offensive weapons within the meaning of the Legislature. And in the Case
of one Franklyn, who was committed to Norwich gaol for that he, with
others, armed, had assisted in rescuing smuggled goods, it was said by
LORD MANSFIELD, on the prisoner's being brought up to be bailed, on the
ground that he himself was not armed, that it is not necessary, to con-
stitute a FELONY under this Act, that every individual assembled should be
armed. See post and Cald. Decisions,
page 246.

(a) Old Bailey December Session 1785, MR. JUSTICE WILLES and MR. BARON HOTHAM adopted the same opinion, and the prisoner was acquitted. The Case of B. Spice.-And at July Session Thomas Gray was tried before MR. JUSTICE HEATH, and acquitted upon the same construction of the statute.

1784.

HUTCHINSON'S CASE

1784.

CASE CLXVIII.

clerk be sent

to the money room for

money on a

THE KING against WILLIAM MURRAY.

If a banker's AT the Old Bailey October Session 1784, William Murray was indicted for stealing one canvas bag value 2d. and nine hundred and fifty-two guineas, value 999l. 12s. Od. and eight shillings in monies numbered the property of Robert, Henry, casion, and he and George Drummonds, Esqrs. and Andrew Barclay, Esq. takes that opportunity of in their dwelling-house. There was a SECOND COUNT for secreting stealing the same in the house of the said George Drummond. money for

particular oc

his own use, he is guilty of felony.

S. C. 2 East,

638.

Mr. Pigott.

THE prisoner was a clerk to Messrs. Drummonds the bankers, and his department was to keep the cash book; but he had nothing at all to do with the strong room where the money is kept. The keys however of this strong room were deposited in the shop, and all the persons concerned in the house had access to the keys, and were occasionally employed to bring bags of money from the strong room. On the 5th April a bag of 1000l. was discovered to be missing from the strong room; and from some circumstances relating to some leaves which were found to have been torn from the waste book, a suspicion fell on the prisoner, and he at length confessed that he had taken the bag of 1000l. from the iron chest in the strong room, in the month of March, and also other sums at different times. It appeared that he might have been intrusted with the keys to fetch money from the strong room for the use of the shop.

Ir was contended on the part of the prosecution, that a clerk or servant to a banker or merchant who embezzles his master's property is guilty of felony, and not, as it was generally conceived, of a breach of trust only. In the present case the prisoner was employed to keep the cash-book only, and was not trusted with either the receipt or payment of money. He had no charge whatever of the money of the house, or even the care and oversight of it. He may have been sent occasionally to the strong room to deposit writings or plate, or to fetch a bag of money when wanted for a particular purpose, but that will not alter the nature of his guilt, for where a clerk has only the care of or access to money for particular and special pur

poses, as paying a bill, and at the time he secretly and clandestinely converts it to his own use, he is as much guilty of a felony as if he had no access to that drawer. If I send my servant to my library for one book, and he takes another; or if I send him for my hat and sword, and he steals my cane, he is guilty of felony. In all such cases there can be no question of his guilt.

1784.

MURRAY'S

CASE,

THE Counsel for the prisoner admitted that the law had Mr. Fielding. been correctly stated by the counsel for the Crown; and

THE COURT, directing the Jury to the same effect, the pri- Lord Loughsoner was found Guilty.

borough.

THE KING against RICHARD MARSH.

AT the Old Bailey in October Session 1784, Richard Marsh was indicted for stealing seventeen guineas and a half, and a twenty-five pounds bank-note from Alexander Jack.

Alexander Jack, who resided with his brother at Richmond in Surry, having a bill for 437. 7s. 6d. on Boldero and Co. opposite the mansion house, which became due on 14 August 1784, came to town on the preceding day with a view to receive it early on the ensuing morning. As he was passing from the city on his way to the house of a friend in Berkley Square where he proposed to sleep that night, the prisoner went up to him on Holborn Hill and asked if he came from the country, and on his replying that he did, he said, "why I am come from the country also, and am going to receive some money;" to which the prosecutor replied, "I also ari come to receive money, but I have come a day too soon," but before they had walked three hundred yards further, the prisoner stooped suddenly towards the pavement and picked up a purse, and exclaiming that he had found a prize, invited the prosecutor into an adjacent public-house, to see what it was their good fortune had produced. The prosecutor, who had seldom been in London before, accepted the invitation, and went into the house, in the tap-room of

CASE CLXIX.

To obtain money by the practice of ring-dropping is felony.