1787. COOGAN'S CASE. is punishable by the statute 5 Eliz. c. 14; the words of which are the same to this purpose as those of the 2 Geo. II. c. 25. In the year 1753, Timothy Murphy (1) was tried in this Court, for forging a Seaman's Will; and though the man (1) Reported, whose Will was forged was alive, he was convicted and exe- 10 St. Tr. 183. cuted. In the year 1773, John Stirling (2), a student in the (2) Ante, p. Temple, was tried in this Court for forging a Will in the 99, Case 57. name of his Laundress, by which means he obtained a considerable sum of money which was invested in her name in the public funds; and he was convicted and executed, though 116. the Laundress was then alive. In the year 1754, Anne Lewis (3) (3) Reported in Foster, p. was indicted upon this statute for uttering and publishing as true a forged Power of Attorney from Elizabeth Tingle, Administratrix of her father Richard Tingle, deceased, a Marine on board the Hector: It appeared that Richard Tingle had died childless; and a doubt was conceived, Whether, since there never was such a person as Elizabeth the daughter of Richard Tingle, the offence was forgery within the meaning of the statute: and ELEVEN of the JUDGES were of opinion, See the Case That as the instrument forged wore the appearance of a Power of Attorney, it was within the Act, notwithstanding the deed Case 32. which she had published was impossible to be true. There is also another case, The King v. Bolland (4), an indictment in (4) Ante, p. 83, Case 47. this Court for forging the indorsement on a promissory note in the name of "James Banks," whom he represented as a Wine and Brandy Merchant, living in Rathbone-place; but in fact no such person ever existed: and, upon the opinion of the JUDGES being taken, Bolland was executed. THE prisoner, in consequence of this determination, received judgment of death. of Eliz. Dunn, ante, page 57, THE KING against ELIZABETH STEEL. CASE CCX. mute by the AT the Old Bailey in May Session 1787, the Grand Jury A prisoner found a bill of indictment against Elizabeth Steel for simple visitation of grand larceny. On her arraignment she refused to plead. God, may be arraigned, tried, sentenced, and transported. 1787. The Court directed the Sheriff to return a Jury instanter, and they were sworn to inquire whether she stood mute of malice, STEEL'S CASE. or by the visitation of God (a). The Jury returned a verdict, "Mute by the visitation of God." The prisoner was remanded, and the question referred to the consideration of the JUDGES, Whether, under these circumstances, she could be tried upon the indictment? Bro. Cor. 101. 217. Cromp.J.290. 1 Hale 34, 35. 2 Hale 317. MR. JUSTICE GOULD in the September Session following, said that THE JUDGES in Trinity Term had assembled at Ser8 Hen. 4. pl. 2. 43 Ass. pl. so. jeants'-Inn Hall to consider of this case, and that they were of opinion, That the verdict finding the prisoner to be "mute by the visitation of God" was not an absolute bar to her being tried upon the indictment; for although a person surdus et mutus à nativitate is, in contemplation of law, incapable of guilt, upon a presumption of ideotism, yet that presumption may be repelled by evidence of that capacity to understand by signs and tokens, which it is known that persons thus afflicted frequently possess to a very great extent; That great diligence and circumspection, however, ought to be exercised in so critical a case; and that if all means to convey intelligence to the mind of such a prisoner respecting the nature of the arraignment should prove ineffectual, the Clerk of the Arraigns may enter the plea of NOT GUILTY for the prisoner: and then it becomes the duty of the Court to inquire touching all those points of which the prisoner might take advantage herself; to examine all the proceedings (a) See the Case of Francis Mercier, Old Bailey, December Session 1777, ante page 183, case 92. and the 12 Geo. III. c. 20. (b) At the Old Bailey in December Session 1778, Thomas Jones was tried before MR. JUSTICE BLACKSTONE for stealing five guineas in the dwelling-house of John Goldwell on his being put to the bar for arraignment he appeared to be quite deaf and dumb; and on a Jury being sworn he was found “mute by the visitation of God" but, it appearing that he was in the daily habit of receiving and communicating information with a Fanny Lazarus by means of certain signs and tokens, she was sworn well and truly to interpret, &c. and he was arraigned, tried and convicted of the simple larceny and received sentence of transportation for seven years. against her with a critical eye; and to render her every possible service consistent with the rules of law. In the October Session following the prisoner was again put upon her arraignment before Mr. JUSTICE HEATH. On being asked by the Clerk of the Arraigns, Whether she was Guilty or Not Guilty? she replied," You know I cannot hear." MR. JUSTICE HEATH, upon a supposition that she could hear, said:-Your case has been considered by all the JUDGES, and they are of opinion that, even if you cannot hear, you ought to be tried upon the indictment; it will therefore be in vain for you to attempt to elude arraignment by pretended deafness; for as you must at all events be tried for the felony, you will lose, by such pretence, the advantage of asking proper questions of the witnesses." But all endeavours proving ineffectual, a Jury was again returned, and sworn "well and truly to inquire, whether Elizabeth Steel, the prisoner at the bar, stands mute through wilfulness and obstinacy, or by the visitation of God." And the Jury again found a verdict, "Mute by the visitation of God." The same Jury were immediately sworn in chief, and charged to try the indictment; and, after hearing the evidence, which was very clear, they found the prisoner GUILTY; and at the close of the session she received sentence of transportation for the term of seven years (a), (a) Lord Hale says, "But what if all this be found against the pri soner, what shall be done? Whether judgment of death shall be given against him, though he never pleaded, seems yet undetermined." 2 vol. 317. See also Sir Will. Blackstone's Commentaries, 4 vol. 325, and the statute 12 Geo. III. c. 20. by which it is enacted, that if any person, being arraigned on any indictment for felony or piracy, shall stand mute, or will not answer directly to the felony or piracy, such person shall be convicted of the charge, and the Court shall thereupon award judgment and execution. 1787. STEEL'S CASF. 1787. CASE CCXI. the 31 Geo.II. a false oath, THE KING against THOMAS REILLY. A convict on THE statute 31 Geo. II. c. 10. s. 24 (a). enacts, "That c.10.fortaking whosoever shall willingly and knowingly take a false oath, or procure any other person to take a false oath, to obtain &c. who is pardoned before the probate of any will or wills, or to obtain letters of admijudgment, is a nistration in order to receive the payment of any wages, pay, competent witness against or other allowances of money, or prize-money, due, or that the person who suborned were supposed to be due, to any officer, seaman, or other him to take such oath; for person intitled, or supposed to be intitled, to any wages, pay, by the allow or other allowances of money, or prize-money, for services done on board any King's ship or vessel, who has really restored to his served, or was supposed to have served on board any King's ship or vessel, every such person so offending shall be deemed guilty of felony, and shall suffer death as a felon, without benefit of clergy." ance of the pardon he is former com petency and credit. AT the Old Bailey in July Session 1787, John Macdaniel was CONVICTED on this statute before MR. SERJEANT ADAIR, Recorder, for taking a false oath, "That one James Lewis, a Seaman on board his Majesty's ship the Hannibal, died a bachelor, intestate, and without a parent, and that he, John Macdaniel, was his lawful brother, and next of kin," with intent to obtain letters of administration to the goods and chattels of the said James Lewis, &c. In the course of the trial it was discovered, that a person of the name of Thomas Reilly, who appeared as a witness, had taken advantage of the prisoner's ignorance, and had suborned him to commit. the offence. Thomas Reilly was accordingly committed to take his trial at the next Session, and no judgment was passed upon the prisoner, John Macdaniel. IN the September Session following, on the trial of the indictment against Reilly, for procuring John Macdaniel to take the said false oath, John Macdaniel was produced as a witness on the part of the Crown. (a) See 32 Geo. III. c. 33. s. 23. 32 Geo. III. c. 54. s. 8 & 29. 32 Geo. III. c. 67. 1787. REILLY'S CASE: THE Counsel for the prisoner produced the record of Macdaniel's conviction in the July Session preceding, and submitted to the Court, that his competency was thereby destroyed, notwithstanding the conviction had not been yet Mr.Shepherd, followed by a judgment. (2) But the Counsel for the Crown Mr. Garrow. waived the argument upon this point; and on Macdaniel's Mr. Silvester, being called upon to say why the Court should not give him (2) See Cowjudgment to die, according to law, he pleaded his Majesty's per's Rep. 3. pardon in bar, and it being regularly allowed, he was admitted to give evidence, and the prisoner was convicted (a). THE question therefore was, Whether a special pardon granted after a conviction on this statute, but pleaded and allowed in bar of the judgment, restored the witness to his competency? or, Whether it only remitted him from the punishment to which he would have been liable in consequence of an attainder? Mr. Fielding. IN favour of the prisoner it was contended, that as a par- 5 Mod. 15. don, by the particular manner in which it is penned, merely imports an intention on the part of the King to discharge the party from future punishment, it was to be considered as a charter of remission only; and could not, by consequence and deduction, be considered as a charter of restoration, so as to remove the disability to which the witness had once been rendered liable, and enable him thereby to prejudice the interests of third persons, by giving evidence against them. 33. s. 132. On the part of the Crown it was contended, that the King's 4 Hawk. ch. pardon not only remits the punishment, but restores the convict to his plenam et liberam legem (b). (a) It was contended on the part of the crown that the bare production of the record of Macdaniel's conviction was of itself sufficient evidence that he had in fact taken the false oath as alleged in the indictment. But it was insisted for the prisoner that the record was not of itself sufficient evidence of the fact; that the Jury had a right to be satisfied that such conviction was right; that Reilly had a right to controvert the guilt of Macdaniel; and that the evidence given on Macdaniel's trial ought to be submitted to the consideration of the present Jury: and THE RECORDER obliged the counsel for the crown to go through the whole case in the same manner as if the Jury had been charged to try Macdaniel. (b) It is said by Lord Hale that if the King pardon these offenders they |