1785. AICKLES'S CASE. farther evidence, it appeared that the prisoner had, at the time of his discharge, a real intention to quit the kingdom within the time, but that he had been prevented from carrying it into execution by the distress of poverty and ill health; and the Court being of opinion, That these impediments, if true, amounted to a lawful excuse, the Jury found a verdict, Not Guilty (a). (a) At the Old Bailey September Session 1785, George Thorpe was indicted before ADAIR, Recorder, for returning from transportation. He had been convicted in the January Session preceding, and sentenced to transportation. On 25 March he received a pardon on condition of transporting himself, and, on giving the security it required, was discharged by the Recorder's warrant on the 9 April, but was found at large on 9 August following. It appeared that he had used various endeavours to procure a passage to America, but that he had been prevented from going by poverty and sickness. The Recorder thought that his having given security to perform the condition of the pardon, was a full and sufficient performance of the condition; and that his not leaving the kingdom was a forfeiture of the recognisance he and his bail had entered into; but that in Aickles's Case, which was exactly similar, the Court had differed with him in opinion upon this subject. He then left it with the Jury to consider whether his endeavours to transport himself having been prevented by poverty and ill health were a sufficient excuse: and he was acquitted. CASE CLXXXV. THE KING against BALLIE. Aperson com- OLD BAILEY September Session 1785. This was a case mitted as a rogue and va reserved by MR. SERJEANT ADAIR, Recorder, for the opinion gabond under of the TWELVE JUDGES. the 23 Geo. III. c. 88. who THE prisoner had been apprehended on the statute 23 Geo. breaks gaol, III. c. 88. by which it is enacted, "That if any person shall and on being committed as "be found in or upon any dwelling-house, warehouse, coachan incorrigible" house, stable, or out-house; or in any inclosed yard, or 17 Geo. II. c. "garden, or area, belonging to any house, with intent to 5. breaks gaol « steal any goods or chattels, he shall be deemed a rogue and then com- " AND A VAGABOND, within the meaning of the statute of 17 rogue under a second time, mits a new act of vagrancy as a rogue and vagabond, may be indicted for felony, and transported under the Vagrant Act, "Geo. II. c. 5. usually called The Vagrant Act ;" and having been committed to the House of Correction till the then next ensuing Session, the Justices, on examination of the circumstances, had adjudged him to be a ROGUE And a vagaBOND within the meaning of the Act; and ordered him to be detained in the House of Correction for six months, by virtue of 17 Geo. II. c. 5. s. 9. Before the six months had expired, the prisoner made his escape; but he was again apprehended, and, at an adjournment day of the same Session, he was committed by a warrant of two Justices, under the 4th section of the Vagrant Act, as an INCORRIGible rogue, and ordered to be detained in the same House of Correction for two years. Before this term of imprisonment expired, he again broke gaol and was again apprehended, on another clause of the statute 23 Geo. III. c. 88. by which it is enacted, "That any person having upon him any picklock-key, crow, jack, bit, or other implement, with an intent feloniously "to break and enter into any dwelling-house, ware-house, "coach-house, stable, or out-house; or shall have upon him "any pistol, hanger, cutlass, bludgeon, or other offensive 66 weapon, with intent feloniously to assault any person, shall "be deemed a rogue and Vagabond as aforesaid." UNDER these circumstances, the prisoner was now indicted on the statute 17 Geo. II. c. 5. s. 9. by which it is enacted, that if any person committed as AN INCORRIGIBLE ROGUE shall break out or make his escape, or shall offend again in like manner, he shall be guilty of FELONY, and be transported for seven years. THE indictment accordingly stated, that the prisoner had been committed by a Justice, and convicted by the Sessions, as A ROGUE AND VAGABOND under the 23 Geo. III. c. 68. and having been committed for six months had escaped, &c. THAT afterwards he had been convicted for that escape, and committed as AN INcorrigible roguE, and had again broke gaol before the expiration of the time, &c. And then it charged that the said George Ballie, on such a day, did offend again in like manner as a ROGUE AND VAGABOND, in having upon him a certain offensive weapon called a pistol, with intent 1785. BALLIE'S CASE. 1785. feloniously to assault some person or persons, against the peace, &c. BALLIE'S CASE. THE records of his former convictions were produced, his identity, and the fact of his having the pistol for felonious purposes, were fully proved, and he was found Guilty; but the judgment was respited, and the case referred to the consideration of the JUDGES on the two following questions: FIRST, Whether the offence for which the prisoner was convicted, being created by the statute 23 Geo. III. c. 88. could be maintained under an indictment on the statute of 17 Geo. II. c. 5.? SECONDLY, Whether the words " shall offend again in like manner," in the statute of 17 Geo. II. c. 5. do not refer to such offences only as bring the offender under the description of AN INCORRIGIBLE ROGUE? and if so, Whether the present indictment is good in charging the prisoner with having offended in like manner as A ROGUE AND VAGABOND, instead of having offended in like manner as an incorrigible ROGUE? MR. JUSTICE GOULD in February Session 1786, after stating the proceedings above mentioned, delivered the opinion of the JUDGES to the following effect: THIS case was reserved by MR. RECORDER, upon two objections raised by the Counsel for the prisoner. On the first day of last Hilary Term, the JUDGES assembled to consider of this case; and they are unanimously of opinion, That there is no foundation in law for either of the objections. As to the first objection,-The title of an Act of Parliament, although it is not considered as any part of the Act, yet it may serve to explain the intent and meaning of the Legislature; and the title of the 23 Geo. III. c. 88. is " An "Act to extend the provisions of an Act, &c. [setting out "the title of the 17 Geo. II. c. 5.] to cases not therein men❝tioned." It enacts, that every person under the circumstances in which the prisoner is described in the indictment to have been found, shall be deemed a rogue and vagabond within the meaning of the 17 Geo. II. c. 5. The JUDGES are therefore of opinion, That the 23 Geo. III. c. 88. is to have the same operation as if the offences described in it had been originally inserted in the Vagrant Act, in continuation of the offences therein described; and that it is in every respect to be considered as incorporated into, and making a part of, that Act. As to the second objection,-The JUDGES, upon weighing the several provisions of the 17 Geo. II. c. 5. as far as they apply to the case of the prisoner, are of opinion, That the indictment is right both in form and substance. The statute divides the offences into three classes: First, IDLE AND DISORDERLY PERSONS, who, on conviction by one witness, before one Justice, may be committed to the House of Correction, not exceeding one month. Secondly, ROGUES AND VAGABONDS, who are to be examined by the Magistrate, and publicly whipped, or ordered to be sent to the House of Correction (1) till the next Session, or for any less time, as such Justice shall think proper. Thirdly, INCORRIGIBLE ROGUES, who it seems must be committed till the next Session, and cannot be punished by the Magistrate. It appears that the prisoner escaped from his commitment as a rogue and vaga. bond, upon which escape he immediately became an incorrigible rogue; and on being brought before the Session, he was so adjudged, and sentenced to be detained in the House of Correction for two years, and afterwards made his escape. These facts are introduced into the indictment; and it then goes on to state the offence which he had committed against the statute 23 Geo. III. c. 88. and concludes by averring in the words of the 17 Geo. II. c. 5. that he had "offended again in like manner." The statute of 23 Geo. III. c. 88. declares, that the persons therein described shall be considered as rogues and vagabonds within the meaning of the 17 Geo. II. c. 5. It is enacted by the 17 Geo. II. c. 5. s. 4. "That all rogues and vagabonds who shall break or escape "out of any House of Correction before the expiration of "the term for which they were committed: and all persons "who, after having been punished as rogues and vagabonds, "and discharged, shall again commit any of the said offences, "shall be deemed incorrigible rogues." The Act then goes 1785. BALLIE'S CASE. (1) Or by 27 Geo. III. c. 11. to the common gaol. 1785. BALLIE'S on in sect. 9. to authorize the Justices in Sessions to detain such rogue and vagabond in the House of Correction for any time not exceeding six months; and such incorrigible rogu for any time not less than six months, nor exceeding two years; and then follows the clause on which the present question arises: "And if such incorrigible rogue, so ordered by "the Sessions to be detained in the House of Correction, "shall break out or make his escape, or shall offend again in “like manner, he shall be guilty of felony, and be trans"ported for seven years." The context of this clause of the Act which adopts the words " in like manner," refers to the next antecedent words, " shall break out or make his escape;" recourse therefore must be had to the other parts of the Act, to find out what the Legislature mean by these words: and the JUDGES are of opinion, That the words "in like manner” must necessarily refer to the offences described in the fourth section before mentioned. What then is the situation of the prisoner? He is committed to the House of Correction for six months as a rogue and vagabond: by breaking gaol he is guilty of a new act of vagrancy, and is adjudged and committed for two years as an incorrigible rogue: from this imprisonment he again makes his escape before the two years are expired, and commits another act of vagrancy as a rogue and vagabond, against the 23 Geo. III. c. 88. By this escape he becomes an incorrigible rogue a second time; and he afterwards offends again " in like manner" as a rogue and vagabond. All these facts are disclosed in the indictment. technical terms or words of art are made necessary to the description of this offence. The law therefore must draw this inference from the words, viz. that by having offended again in like manner as a rogue and vagabond, he becomes an incorrigible rogue a second time, and thereby incurs the guilt of felony. It is therefore the unanimous opinion of the JUDGES, That the indictment is proper, and that the prisoner is in the predicament which the Legislature has said shall be punished with transportation. No He was accordingly ordered to be transported for the term of seven years. |