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1809.

Row's Case.

evidence for the opinion of THE JUDGES, in consequence, as he stated, of the obscurity and discordance of the cases upon the subject that are in print. (a)

1809.

REX v. GILBERT HOLDEN, and five others.

The offence of THE prisoners were severally indicted, tried, and convicted bedisposing and fore Mr. JUSTICE CHAMBRE, at the Lancaster summer assizes, putting away forged bank in the year 1809, for knowingly disposing of forged bank notes is comnotes. (b) plete though

the person to whom they were disposed of was an agent for the Bank to detect utterers, and applied to the prisoner to purchase forged notes, and had them delivered to him as forged notes for the purpose of disposing of them. An indictment inde, need not state to whom the note was disposed of, it is sufficient to state the prisoner disposed of the note with intent to defraud the Bank, he knowing it at the time to be forged. S. C. 2 Taunt. 334. 2 Leach. C. C. 1019.

(a) See Warrickshall's Case, 1 Leach, C. C. 263. See the cases collected, Phillipps on Evidence, 112. 4th edit. Starkie on Evidence, Part IV. p. 49. (b) The first section of 45 G. 3. c. 89. enacts, That if any person shall falsely make, forge, counterfeit or alter, or cause or procure to be falsely made, forged, &c. or willingly act or assist in the false making, forging, &c. any deed, will, testament, bond, writing obligatory, bill of exchange, promissory note for payment of money, indorsement or assignment of any bill of exchange or promissory note for payment of money, acceptance of any bill of exchange, or any acquittance or receipt either for money or goods, or any accountable receipt for any note, bill, or other security for payment of money, or any warrant or order for payment of money or delivery of goods, with intention to defraud any person or body politic or corporate whatsoever, or shall offer, dispose of, or put away any false, forged, counterfeited or altered deed, will, &c with intention to defraud any person, body politic or corporate, knowing, &c shall be deemed guilty of felony without benefit of clergy.

By s. 2. it is enacted, That if any person shall forge, counterfeit or alter any bank note, bank bill of exchange, dividend warrant, or any bond or obligation under the common seal of the Governor and Company of the bank of England, or any indorsement thereon; or shall offer or dispose of or put away any such forged, counterfeit or altered note, bill, &c. or demand the money therein contained or pretended to be due thereon, or any part thereof, of the said company, or any of their officers or servants, knowing such note, bill, &c. to be forged, counterfeited or altered, with intent to defraud the said Governor and Company, or their successors, or any other person, body politic or corporate whatsoever, every person so offending shall be deemed guilty of felony withou benefit of clergy.

The form of the indictment was the same in each case.

The first and third counts in each (upon which no evidence was given) charged actual forgery. The second count in each charged, that the prisoner on the 15th day, &c. with force and arms at R. in the county of Lancaster, "feloniously did dispose of and put away a certain false forged and counterfeit bank note, the tenor of which said last-mentioned forged and counterfeit bank note is as followeth; (setting it forth) with intent to defraud the Governor and Company of the Bank of England; he (the said prisoner) at the time of his so disposing of and putting away the said last-mentioned forged and counterfeit bank note, then and there, to wit, on the said 15th day, &c. in the 49th year aforesaid, at R. aforesaid, in the said county of Lancaster, well knowing such last-mentioned note to be forged and counterfeited" against the form of the statute, &c.

The fourth count, differed from the second, only in describing the forged instrument to be "a promissory note for the payment of money" instead of calling it a bank note.

In the course of the evidence, it appeared, that the notes in question were disposed of, to James Shaw, and James Whitehead, the principal witnesses against the prisoners, who in consequence of a great number of forged bank notes having been circulated in the neighbourhood, were employed by the magistrates with the approbation of the agents for the bank, to detect those who were suspected to be utterers.

The prisoners did not pay the notes to Shaw and Whitehead, as genuine, but these persons for the purpose of detection, applied to the prisoners, as supposed dealers in forged bank notes to purchase them, and the prisoners accordingly procured them, and sold them as forged notes.

Shaw and Whitehead were not deceived or defrauded in any of the instances, nor were any of the prisoners the first movers in the transactions they had with the witnesses; neither did it appear by any direct evidence that any one of the prisoners, when first applied to, had any of the notes in his actual possession; but they respectively produced them at meetings which took place subsequent to the first applications made by the witnesses.

The rest of the evidence was full and satisfactory, and four of the prisoners were convicted without any objection being taken

1809.

HOLDEN'S
Case.

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to the form of the indictment, or to the insufficiency of the act of disposal to constitute the offence created by the statute; but upon the trial of one of the prisoners of the name of Draper, it was objected in his behalf,

First. That the indictment was insufficient, as being too general, neither stating in what manner, or to whom, the notes were disposed of and put away.

Secondly. That the disposition of the notes established by the evidence was insufficient, inasmuch as the prisoners were solicited to commit the act proved against them by the bank themselves, by means of their agents. On this point the prisoners' counsel referred to the case of M'Daniel and others, 10 St. Tr. 417.

The learned JUDGE overruled the objections, and all the prisoners received sentence; but he thought it proper to respite execution, in order to take the opinion of THE JUDGES upon these objections.

In Michaelmas term 11th November, 1809, at a meeting of ALL THE JUDGES, in the Exchequer Chamber, this case was argued by YATES for the prisoners, and LAMBE for the Crown, when THE JUDGES were unanimous in their opinion that the conviction was right.

That as to the first objection, the statute makes it felony without benefit of clergy to put away or dispose of generally without saying "to any person," or "to any of the King's subjects,” and this form has been used as well in indictments for putting off, as in indictments for uttering, for a long course of years.

As to the second objection the offence was the same, although the party for the purpose of detection caused the application to be made to the prisoners to sell the notes; if the prisoner puts them off with the intent to defraud, the intent is the essence of the crime which exists in the mind, although from circumstances which he is not apprised of, the prosecutor cannot be defrauded by the act of the prisoner.

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1809.

REX v. JAMES CALLAN.

THE prisoner was tried before LORD ELLENBOROUGH, at the The prisoner Old Bailey sessions, November, 1809, on an indictment charging him with having stolen three glass bottles and five pints of wine the property of one Dennis Mahony, in his dwelling-house, and with having after committing such felony, burglariously broken out of the said dwelling-house.

The only question in the case (for the larceny, time of night, and all the other circumstances necessary to be proved in such a case were clearly made out) was whether there was a sufficient breaking to constitute the crime of burglary.

The wine was stolen from a bin in the cellar belonging to the dwelling-house of Mahony, the prosecutor, who kept a publichouse, and had been removed by the prisoner from thence to the flap by which the cellar was closed on its outside next to the street.

The flap had bolts belonging to it by which it might have been bolted within, but whether it was so bolted on the night of the burglary did not appear; but it was clearly proved that the flap was down. It did not appear whether the prisoner had entered by the flap of the cellar or not, as a door which communicated with the cellar in another direction and which the prosecutor had left locked was found broken open. The probability therefore was that the prisoner had entered that way; but if he had entered by raising up the flap it would (unless prevented) have closed after him by its own weight, and in order to get out after it had so closed, it would have required the degree of force necessary to lift up such a flap to be applied to it. The flap was a large one, being made to cover the opening of a cellar through which the liquors consumed in the public-house were usually let down into the cellar. The prisoner when first discovered had his head and shoulders out of the flap of the cellar, and upon being seized made a spring and got out and ran away; he was immediately pursued, caught and brought back, and the flap through which he had got was found fallen down and closed.

broke out of a cellar by lifting up a heavy flap by which the cellar was closed on the out

side next the street. The

flap was not bolted, but it had bolts. Six of the learned

JUDGES were of opinion that there was a

sufficient breaking to

constitute

burglary; the remaining six

were of a contrary opinion.

1809.

CALLAN'S
Case.

Upon this evidence the jury found the prisoner guilty; but LORD ELLENBOROUGH reserved the question as to the sufficiency of the breaking out in this case to constitute burglary for the consideration of the JUDGES.

In Michaelmas term, 1809, ALL THE JUDGES met, when LORD ELLENBOROUGH, MANSFIELD C. J., HEATH J., GROSE J., CHAMBRE J., and Wood B. thought this was a sufficient breaking because the weight was intended as a security, this not being a common entrance; but the other JUDGES, viz. MACDONALD C.B., BAYLEY J., GRAHAM B., LE BLANC J., LAWRENCE J., and THOMSON B. thought the conviction wrong. (a)

1809.

for seducing an artificer was found at the general sessions of Oyer

and Terminer and general session of the peace for Middlesex, and was

REX v. JAMES HEWITT.

An indictment THE prisoner was tried before NEWMAN KNOWLYS, Esquire, COMMON SERJEANT, at the general sessions of gaol delivery of Newgate, holden for the county of Middlesex, at the Old Bailey, in September 1809, on an indictment preferred and found at the general sessions of oyer and terminer and general session of the peace, held at the Sessions House on Clerkenwell Green, for the said county, in the said month of September, charging him with enticing and persuading one Thomas Hutchinson, he being a manufacturer, workman, and artificer in cotton, being a manufacture of Great Britain, to go out of Great Britain into a certain foreign country called America, such foreign country not being G.2.c.13.gave within the dominions of or belonging to the crown of Great no authority to prefer such Britain, against the statute, &c.

tried at the Old Bailey. The JUDGES held, that the statutes 5 G. 1.

c. 27. and 23

an indictment

at such a sessions, and judgment arrested accordingly. See now the 5 G. 4. c.97.

(a) Vide William Brown's Case, 2 East, P.C. 487. before BULLER J. The only difference between the two cases seems to be, that in Brown's Case there were no interior fastenings, in this there were; but in neither case were any in fact used, but the compression, or fastening such as it was, was produced by the mere operation of natural weight in both cases.

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