1822. Foals and cluded in the indictment for stealing a mare. REX v. WILLIAM WELLAND. THE mare. The fact of stealing was clearly established, and the prisoner was convicted. But a point was made in the course of the trial, upon which the learned JUDGE respited the judgment in order to take the opinion of THE JUDGES. All the witnesses proved, and the jury expressly found that the animal was a filley; and it was contended, that as THE JUDGES had held, in the case of Rex v. Beaney (a), that upon-an indictment for stealing a colt, not stating whether it was horse or mare, clergy was not taken away, notwithstanding the statutes of Edw. 6.; so, by parity of reasoning, the same rule would apply to an indictment charging the stealing of a filley. It was urged that if a man would not lose his clergy when indicted for stealing a colt or foal, or a filley, it ought not to be in the power of a prosecutor, by calling an animal a mare in the indictment, which term is never commonly applied to a filley (though a female of the horse species), to deprive a prisoner of that benefit, which, if the indictment had correctly denominated the animal, he would have had. Upon this point the opinion of THE JUDGES was requested. And in Michaelmas term, 1822, THE JUDGES decided that foals and fillies are within the statutes 2 & 3 Edw. 6., and are included in the words "horse, gelding, or mare," and therefore that the evidence of stealing a mare filley would support this indictment for stealing a mare. (a) Ante, p. 416. REX v. JAMES WESTWOOD. 1822. THE a HE prisoner was indicted before Mr. JUSTICE PARK, at the summer assizes for the county of Surrey, in the year 1822, for burglary in the dwelling-house of John Bailey at Epsom, and stealing various articles. Of the existence of the usual circumstances to constitute a burglary, and also to constitute the grand larceny, there was no question, and the prisoner was capitally convicted. But a doubt arose in the mind of the learned JUDGE (there being no counsel for the prisoner) whether the place in which the felony was committed could be considered as a parcel of the dwelling-house of Mr. Bailey, the prosecutor; and the learned JUDGE respited the judgment till the following assizes. The house of the prosecutor was in the High Street, at Epsom. There were two or three houses there, insulated like Middle Row, Holborn. At the back of the house was a common passage or street, through which all the king's subjects, by day or night, passed, being, in fact, the footway, and of the width of nine feet. Across this passage, opposite to the dwelling-house, were several buildings and rooms used by Mr. Bailey for the purposes of his house; namely, one for a kitchen, another for a coach-house, adjoining to which were a larder and brewhouse. Over the brewhouse a servant boy always slept, but no others of Mr. Bailey's family ever slept there; and this was the room, by breaking into which the offence was committed. There was no communication between the dwelling-house and these buildings, nor any thing to connect them, except that there was a kind of canopy or awning reaching over the common passage or footway to prevent the rain from falling on the victuals in their conveyance from the kitchen to the dwelling-house, but not at all obstructing the highway. The question submitted to the learned JUDGES was, whether, under these circumstances, the place in question could be considered as part of the dwelling-house of the prosecutor. A building separated from the dwellinghouse by a public road, however narrow, will not be parcel of the dwellinghouse, if there is no common fence or roof to connect them, though it be held by the same tenure, and though some of the offices necessary to the dwellinghouse adjoin it, and though there be an awning extending from it to the dwel ling house. But if it is made a sleeping place for any of the dwellinghouse, it may be deemed a servants of the distinct dwelling house. 1822. WESTWOOD'S Case, In Michaelmas term, 1822, a great majority of THE JUDGES were of opinion that the room in question was not parcel of the dwelling-house in which Mr. Bailey dwelt; because it did not adjoin it, was not under the same roof, and had no common fence. GRAHAM B. was of opinion that it was parcel of that house. But all THE JUDGES, except PARK J. (RICHARDSON J. being absent) were of opinion that it was a distinct dwellinghouse of Mr. Bailey's; and the indictment having described it as his, that the conviction was right. 1822. Forgery. the form of a promissory note held not to be the subject of an indictment for forgery at common law. REX v. BURKE. Ar the Lancashire summer assizes, in the year 1822, Thomas Burke was indicted and found guilty, as for a misdemeanor, upon the second count of an indictment, which second count was to the following effect: That the said Thomas Burke on, &c., with force and arms, at, &c., unlawfully and fraudulently did dispose of and put away to one Joseph Hadfield, a certain false, forged, and counterfeited, promissory note; which said last-mentioned false, forged, and counterfeited promissory note, was as follows: that is to say, "I promise to take this as thirty shillings on demand in part for a two pound note, value received. with intention to defraud the said Roger Cunliffe the elder, John Cunliffe, William Brooks, Roger Cunliffe the younger, James Cunliffe, and Samuel Brooks; he the said Thomas Burke, at the said time he so disposed of and put away the said last-mentioned false, forged, and counterfeited, promissory note as aforesaid, then and there, to wit, on &c., at &c.; well knowing the same to be false, forged, and counterfeited, to the great damage of the said Roger Cunliffe the elder, John Cunliffe, William Brooks, Roger Cunliffe the younger, and Samuel Brooks, and against the peace of our said lord the king, his crown and dignity." The prisoner was acquitted of all the other counts in the indictment; and it was stated by the counsel for the prosecution, not to be a case within any of the statutes against forgery. It was objected by the counsel for the prisoner, that the instrument, or writing forged and uttered, could not, in any legal sense, be denominated a promissory note as charged in the count. This point the learned JUDGE reserved. And it also struck the learned JUDGE that there was a great doubt whether the genuine instrument or writing, supposed to be forged and uttered, had any legal validity, and whether it was not a mere nullity, for the forgery of which no indictment could be sustained; and the LORD CHIEF JUSTICE concurred in that doubt. The case was therefore submitted to the consideration of THE JUDGES, in Michaelmas term, 1822; and they decided that judgment should be arrested. (a) 1822. BURKE'S Case. REX v. JAMES EDWARDS AND WILLIAM WALKER. 1823. Ar the gaol delivery for the county of Hertford, in the year Larceny. 1823, the prisoners were convicted before Mr. JUSTICE BAYLEY, dictment for Upon an inupon an indictment, which charged them with stealing four live stealing a live animal, evitame turkies. It appeared that they stole them alive in the dence cannot county of Cambridge, and killed them there, and then brought be given of stealing a dead one. An indictment for stealing a dead animal should state that it was dead; for upon a general statement that a party stole the animal, it is to be intended that he stole it alive. (a) It is to be observed of the instrument stated in the indictment, that it was not payable to the bearer on demand; that it was not payable in money; that the maker only promised to take it in payment; and that the requisitions of the statute 17 G. 3. c. 30. were not complied with. K K 1823. EDWARDS'S Case. them into the county of Hertford; so that the character of live turkies was never applicable in the county of Hertford. The learned JUDGE doubted whether he could consider the word "live," which was a description of the quality of the thing stolen, as surplusage, and he saved the case for the consideration of THE JUDGes. In Hilary term, 1823, the case was considered by THE JUDGES, who held that the word "live", in the description, could not be rejected as surplusage; and that, as the prisoners had not the turkies in a live state in Hertfordshire, the charge as laid was not proved; and that the conviction was wrong. And HoLROYD J. observed, that an indictment for stealing a dead animal should state that it was dead; for upon a general statement that a party stole the animal it is to be intended that he stole it alive. 1823. Dwellinghouse, If the owner of a house suffer a person to live in it rent free, it may be stated to be that per REX. JOHN COLLETT, WILLIAM SAWYER, AND THE prisoners were convicted before Mr. JUSTICE BAYLEY, at the special gaol delivery at Kingston, in January, 1823, of breaking in the day-time into the dwelling-house of Ann Pemberton; and a point arose whether the house in question could properly be called her dwelling-house. The house belonged to Lord Spencer, who had let it to Mr. son's house: Stephens; and it was occupied by a Mr. Cook, Stephens's son-insuch person is tenant at will. law, until November, 1821. Cook then failed, and his wife and family left it, and nobody resided in it but Ann Pemberton, who had been servant to Cook. Stephens paid her 15s. a week till he died, which was in February, 1822. From that time Ann Pemberton received no payment, but continued in the house. At Michaelmas the house was given up to Lord Spencer, but Ann Pemberton was still permitted by Lord Spencer's steward to remain in it, and there was no furniture in it but her's. The house was a large house. |