1812.

taken ill so as to be incapable of attending through

REX v. WILLIAM EDWARDS.

year 1812,

If a juryman is At the Lent assizes and general gaol delivery for the county of Monmouth, held before Mr. BARON WOOD, in the during the trial of William Edwards for a capital felony, in maliciously shooting at Lewis Roberts, one of the jury was seized with a fit and obliged to be carried out of court, and a surgeon was sent for to attend him.

the trial, the

jury may be discharged and the prisoner tried de novo,

or another

be added to the eleven; but in that

After a considerable interval, the learned JUDGE sent for the juryman may surgeon into court, and examined him upon oath, as to the ability of the juryman to return into court and attend the remainder of the trial, and the surgeon said he had been put to bed and was in a state of insensibility, and incapable of returning into court that day.

case the prisoner should be offered his challenges over again, as to the eleven,

and the eleven should be

S. C. 4 Taunt.

C. C. 621. in

The prisoner's counsel objected to any other juryman being sworn, and urged that the prisoner should be discharged.

WOOD B. overruled the objection, and ordered another of the sworn de novo. jury returned in the panel to be ballotted, telling the prisoner 309. 2 Leach, that he might object to any one that was called and appeared. A notis. 3Campb. person being called and appearing, the prisoner was asked if he bad any objection to him, and he said "No;" whereupon he was sworn upon the jury in the place of the absent juryman, and the other eleven were all sworn over again, and they were all twelve charged over again with the prisoner, in the usual manner.

207.

The examination in chief of the first witness being gone through before the juryman was taken out, that witness was re-sworn to give evidence as he had done at first, and then the learned JUDGE told the counsel for the prosecution as well as for the prisoner, that the witness must be examined over again; but they said if the learned JUDGE read his notes over, that would be sufficient, accordingly he read his notes over to the witness, asking him at the end of every sentence if it was right, to which he answered in the affirmative.

The counsel for the prisoner then cross-examined the witness, and the trial was gone through in the usual manner and the prisoner was convicted, and received sentence of death, but was reprieved; and at the request of the prisoner's counsel, the

question was reserved as to the regularity of the proceedings for the opinion of The Judges.

In Easter term, 25th of April, 1812, this case was argued by CLIFFORD for the prisoner, and TAUNTON for the Crown, before THE JUDGES, (except LAWRENCE J.) when ALL THE JUDGES were clearly of opinion that Mr. BARON WOOD had the power of discharging the jury in the manner above stated, and of charging a new jury with the prisoner.

There appeared some doubt at first, whether the prisoner had had an opportunity afforded him of again challenging the eleven jurymen who had been sworn on the first jury; but, on inquiry, it came out that he had been asked whether he had any objection to any of them, and he said "No, he liked them all very well;" and the conviction was held right. (a)

1812.

EDWARDS'S

Case.

REX v. PHINEAS ADAMS.

1812.

THE prisoner was tried before Mr. JUSTICE CHAMBRE, at the If the ownerLent assizes held at Taunton, in the year 1812, for a grand larceny

ship of goods parted with is no felony, though the owner has been

it

induced to
by a fraudulent
part with them

in stealing a hat, stated in one count to be the property of Robert Beer, and in another count to be the property of John Paul. The substance of the evidence was, that the prisoner bought a hat of Robert Beer, a hat maker at Ilminster. That on the 18th of January he called for it, and was told it would be got ready representafor him in half an hour, but he could not have it without paying for it.

While he remained with Beer, Beer showed him a hat which he had made for one John Paul; the prisoner said he lived next

tion. Property cannot be laid in a personwho has never had either actual or constructive possession.

(a) The correct way, in such case, seems to be to discharge the jury, and order the clerk of assize to make an entry of their being so discharged, with the reason of it, and then to call over the jury again and give the prisoner his challenges again. Mss. JUD. Vide Kinloch's Case, Fost. 16. Wedderburn's Case, ibid. 23., and the authorities there cited, and the argument of Mr. JUSTICE FOSTER. See also Rex v. Scalbert, 2 Leach, C. C. 620. cor. LawRENCE J., and 2 Hale, P. C. 295.

Q

1812.

ADAMS'S Case.

door to him, and asked when Paul was to come for his hat, and was told he was to come that afternoon in half an hour or an hour. He then went away, saying he would send his brother's wife for his own hat.

Soon after he went he met a boy to whom he was not known, the prisoner asked the boy if he was going to Ilminster, and being told that he was going thither, he asked him if he knew Robert Beer there, telling him that John Paul had sent him to Beer's for his hat, but added that as he the prisoner owed Beer for a hat which he had not money to pay for, he did not like to go himself, and therefore desired the boy (promising him something for his trouble) to take the message from Paul and bring Paul's hat to him the prisoner; he also told him that Paul himself, whom he described by his person and a peculiarity of dress, might perhaps be at Beer's, and if he was the boy was not to go in.

The prisoner accompanied him part of the way, and then the boy proceeded to Beer's, where he delivered his message, and received the hat, and after carrying it part of the way for the prisoner by his desire, the prisoner received it from him, saying he would take it himself to Paul.

The fraud was discovered on Paul's calling for his hat at Beer's, about half an hour after the boy had left the place; and the prisoner was found with the hat in his possession and apprehended.

From these and other circumstances, the falsity of the pri soner's representation and his fraudulent purpose were sufficently established; but it was objected on the part of the prisoner, that the offence was not larceny, and that the indictment should have been upon the statute for obtaining goods by false pretences.

The prisoner was convicted, but the leaned JUDGE forbore to pass sentence, reserving the question for the opinion of THE JUDGES.

In Easter term, 25th of April, 1812, ALL THE JUDGES were present (except LORD ELLENBOROUGH, MANSFIELD C. J., and LAWRENCE J.,) when they held that the conviction was wrong, that it was not larceny, but obtaining goods under a false pretence. (a)

(a) See Pear's Case, 2 East, P. C. 685. Coleman's Case, ibid. 672." Atkinson's Case, ibid. 673.

1812.

REX v. JAMES HARVEY.

that 4.B. had dum importing paid a sum to importing any acknowledg

C. D., but not

THE HE prisoner was tried before MACDONALD C. B., at the Lent A memoranassizes for the county of Essex, in the year 1812, upon an indictment, stating, that William Chinnery, Esq. was indebted to Thomas Thompson the younger, in seven pounds for goods sold, and that the prisoner at Waltham Holy Cross, on the 23rd of February, 1812, did forge a receipt and acquittance (setting it forth) to defraud Thomas Thompson, against the statute, &c. The second count was for uttering and publishing the said receipt, and the third count for offering and disposing of the

same.

There were three other counts, charging it to be with intent

to defraud Mr. Chinnery.

The prisoner was convicted upon clear evidence, but a doubt arose whether the instrument charged to be forged, could be considered as a receipt, that instrument being in the following

terms:

"Wm. Chinnery, Esq. paid to x tomson, the som of 8 pounds, feb. 13, 1812.”

It was not subscribed in the name of Thomas Thompson, but was uttered by the prisoner as a genuine receipt, and taken as such by Mr. Chinnery's housekeeper. It had the proper stamp.

The learned CHIEF BARON forbore to pass sentence, and reserved the case for the opinion of the Judges.

In Easter term, 25th of April, 1812, at a meeting of ALL THE JUDGES (except LORD ELLENBOROUgh, Mansfield C. J., and LAWRENCE, J.) this conviction was held wrong, THE JUDGES being of opinion that this could not be considered as a receipt; it was an assertion that Chinnery had paid the money, but did not import an acknowledgement thereof. (b)

(a) 2 G. 2. c.25. s. 1.

(b) See Hunter's Case, 2 East, P. C. 928. S. C. 2 Leach, C. C. 624.

ment from

c.D. of his
having receiv-
ed it, is not
such a receipt
asthe sta
tute (a) makes
it capital to

forge or utter.

1812.

REX v. THOMAS LONGDEN.

If A. stands with an offen

sive weapon in

the door-way wrongfully to prevent I. S. from leaving it and others from entering, and C., who has a right in the room, struggles with

of a room

him to get his weapon from

THE prisoner was tried and convicted before Mr. JUSTICE BAYLEY, at the Lent assizes for the county of Northampton, in the year 1812, for stabbing Joseph Richardson, with intent to murder, disable, or do him some grievous bodily harm.

Judgment was respited, in order that the opinion of THE JUDGES might be taken on the following case.

The prisoner was a private in the army, and one Chambers was a drummer in the same regiment; they stopped with a deserter they had taken at an inn kept by Richardson's father, and whilst they were there, one James Martin pressed them to inlist him. They at first refused, but Chambers at last gave him a shilling for that purpose. Martin's brother afterwards joined them 4.'s stabs C., it in the room they were in, and soon afterwards James Martin will be murder wanted to go away, but Chambers and the prisoner would not let

him, upon which D., a comrade of

in D. if C.

dies.

him, unless he would tell his name, which he refused. Their altercation produced a crowd, and Chambers drew his sword, stood in the door-way of the room they were in, and swore he would stab any one that offered to enter. Richardson, the innkeeper, contrived to get by Chambers, and his son Joseph seized the arm in which Chambers held his sword, and was wresting the sword from him, when the prisoner who had been struggling with James Martin to prevent his getting away, came behind Joseph Richardson, and stabbed him in the back with his bayonet.

It was insisted for the prisoner, that Chambers had authority as a drummer to inlist Martin, that they were warranted in detaining Martin, and that they acted merely to prevent Martin's

rescue.

The learned JUDGE did not think Chambers had any such authority, or that they were warranted in detaining Martin, but he respited the judgment till the point should have undergone further consideration.

In Easter term, 25th of April, 1812, at a meeting of ALL THE JUDGES (except LORD ELLENBOROUGH, MANSFIELD C. J., and LAWRENCE J.) the conviction was held right, that neither the