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Upon that and the other evidence given at the trial, the defendants George Shaw and Thomas Percival were convicted, and received judgment of transportation for seven years, and the defendant Sarah was acquitted.

This conviction proceeded upon evidence, applicable only to the first count; there being no evidence of an actual aiding or assisting Hewitson to escape, or to attempt to escape (the charge made in the second count), unless the conveying and delivering of the instruments, in manner and with the intent stated in the first count, could be deemed an aiding or assisting him to attempt to escape within the intent and meaning of the first section of the statute: an attempt which it was proved he afterwards had ineffectually made, by means of some of those instru

ments.

Several objections were made, partly in the course of the trial, and partly afterwards in arrest of judgment. Those objections were, that this was not a case within the statute; the indictment showing that Hewitson had been pardoned of the capital felony of which he had been convicted; that the conveying and delivering of the instruments might have been within the consent or privity of the underkeeper of the gaol; and that there was no evidence that the defendants knew of what particular offence Hewitson had been convicted. And a further objection was taken as to the defendant Percival; namely, that the offence with which he was charged being made a felony, the acts which he was proved to have done made him only an accessary before the fact, and not a principal; and that if such accessaries were within the statute, he ought to have been indicted as an accessary and not as a principal.

Notwithstanding these objections, judgment was given upon the conviction, with a direction to prevent its being carried into execution, until the opinion of THE JUDGES should be obtained.

remaining amongst the records of the same court, in the county aforesaid, more fully appears." As to the principle upon which the objection proceeded, see Bull. N. P. 226. 228. 1 Phil. Evid. 387,388; and Adamthwaite v. Synge, 4 Campb. 372. S.C. 1 Stark. N. P. 183. And a question might be made in the case of a writing being fraudulently altered or stolen before filing it, or depositing it amongst the records, viz. Whether an indictment would lie for forgery or stealing a record against the statute 8 Hen. 6. c. 12. s.3. See 2 East, P. C.

596.865.

1823.

SHAW'S Case.

M M

1823.

It was proved upon the trial, that Hewitson was closely conSHAW's Case. fined on the felon's side of the gaol, and that the defendant Shaw was a prisoner on the debtor's side; that the defendant Percival, by the desire of Shaw, procured the instruments and conveyed them into the gaol, with the criminal intent alleged, by the means of Shaw's wife, who was privy to the design; but that Percival was not present, or in the gaol, when they were delivered either to Shaw or to Hewitson. The keeper of the gaol stated, in his evidence, that there was no underkeeper, but that he had a boy of the age of seventeen years to assist him in keeping the gaol, which boy, however, had no authority to do any thing but what the keeper specially directed him to do. At the time of the trial the boy was absent at some distant place, and was not called as a witness on either side.

It further appeared, that neither the extension of the royal mercy, nor the signification thereof, nor the order of transportation thereon, were made during the continuance of the assizes at which the conviction took place, but afterwards: and therefore an order of that court for transportation ought not to have been made according to the statute 56 G. 3. c.27. (a) The order produced and proved was made and issued after those assizes by the clerk of assize, which was, as he informed the learned JUDGE, agreeable to the usual practice: but it seemed to the learned JUDGE that it ought to have been the order of THE JUDGE before whom the felon had been convicted, or of a JUDGE of one of the courts of Westminster, pursuant to the directions of that statute.

No proof of the extension of mercy, or of the signification thereof was given, except by the record above mentioned, and by the recitals in the order of court; and it further seemed to the learned JUDGE, that unless it could be considered that Hewitson (notwithstanding the allegations of the extension of mercy, and the signification thereof, and the order of transportation) was still remaining in custody, in execution of or under the judgment for the capital offence, and that those allegations were surplusage, objections might arise, either as to the want of legal proof of those allegations, or as to the manner and form

(a) Continued by 1 & 2 G. 4. c. 6.

in which those allegations were made, with respect to the requisite certainty of time, place, &c.

It also seemed to the learned JUDGE, that it might be proper for THE JUDGES to consider whether any and what alteration should be made in the present practice of issuing the orders in question, after the termination of the assizes.

The case was considered by THE JUDGES in Michaelmas term, 1823, when they were unanimous that the record, coming from the proper custody, must have full credit and could not be impeached; and that Shaw and Percival were properly convicted of having caused the instruments to be delivered. As to the objection of there not being any evidence that the prisoners knew of what offence Hewitson had been convicted, THE JUDGES were of opinion that this was immaterial.

1823.

SHAW's Case.

REX v. SAMUEL VOKE.

1823.

dictment for

THE prisoner, Samuel Voke, was tried before Mr. JUSTICE Upon an inBURROUGH, at the Somerset summer assizes in the year 1823. maliciously The first count of the indictment charged, that the said Samuel shooting, if it be questionVoke on, &c., at, &c., one Thomas Pearce feloniously, wilfully, able, whether maliciously, unlawfully, and of his malice aforethought, did as- the shooting was by accisault, and with a certain gun loaded with gunpowder and divers dent or design, leaden shot, then and there feloniously, &c. did shoot at the said proof may be given that the Thomas Pearce, and that the said Samuel Voke with the said gun prisoner at again loaded with other gunpowder and other shot, feloniously, intentionally &c., then and there again did shoot at the said Thomas Pearce, shot at the with intent in so doing (that is to say) in so as aforesaid shooting at the said Thomas Pearce, and by means thereof, feloniously, wilfully, and of his malice aforethought, to kill and murder him the said Thomas Pearce, against the statute, &c.

The second count varied from the former only in stating the intent to be to maim and disable, omitting malice aforethought. The third count was, with intent to do him some grievous bodily harm.

another time

same person.

1823.

VOKE's Case.

The fourth count charged, that the prisoner at, &c., afterwards (to wit) on the day and year aforesaid, in and upon the said Thomas Pearce, with force and arms feloniously, wilfully, maliciously, and unlawfully did make an assault, and with a certain other gun then and there loaded with gunpowder and divers leaden shot at the said Thomas Pearce feloniously, wilfully, maliciously, unlawfully, and of his malice aforethought, then and there did shoot, with intent in so doing (that is to say) in so shooting at the said Thomas Pearce as aforesaid, and by means thereof, wilfully and feloniously, and of his malice aforethought, to kill and murder him the said Thomas Pearce, against the statute, &c.

The fifth and sixth counts varied from the fourth as the second and third from the first, omitting malice aforethought.

Thomas Pearce proved, that on the 3d July last, he was gamekeeper to Lord Glastonbury, for the manor of Compton Dunden, in the county of Somerset. On that day he went to the said manor; he was on horseback, but left his horse in some furze, because he saw a man with a gun; he went to the man who was the prisoner, and asked him what he was about, and told him he was doing a wrong thing, and giving him a great deal of trouble; and asked him why he did so. Pearce had known the prisoner for several years. He then asked him if he had taken out a certificate, and being answered that he had not, he asked him why he went about so; upon which the prisoner said, "You can pardon me, can't you?" Pearce told him he could not; upon which the prisoner said he would go any where with him. Pearce then proposed that the prisoner should go down to Mr. Ryal, Lord Glastonbury's steward, and said that if Mr. Ryal would pardon him, he should have no objection; and the prisoner assented to go with him. Pearce observed that the ramrod of the prisoner's gun was broken short off in the middle. They walked along together, until they came near to the horse which was about sixty yards off, when Pearce went on before him towards the horse, and when he was at a short distance from the prisoner, the prisoner fired at his back, but said nothing. Pearce attempted to turn round and saw the prisoner running, and attempted to run after him, but his back seemed to be broken, and he could not get on at all. Pearce then turned back to the horse, and after getting upon it, was making his way home to a place called Butley, about two miles off, and

1823.

had got about half a mile on his road, at a place where there was a hedge on each side, when he saw the prisoner again in VOKE'S Case. the lowest part of one of the hedges, and, the moment he looked round at him, the prisoner again fired his gun, the discharge from which beat out one of Pearce's eyes and several of his teeth, but did not cause him to fall from his horse. Between the first and second firing was about a quarter of an hour: and when the prisoner fired the last time, he was not at a greater distance from Pearce than three or four yards.

In the course of the trial it was suggested that the prosecutor ought not to give evidence of two distinct felonies. But the learned JUDGE thought it unavoidable in this case; as it seemed to him to be one continued transaction in the prosecution of the general malicious intent of the prisoner. Upon another ground also the learned JUDGE thought such evidence proper. The counsel for the prisoner, by his cross examination of Pearce, had endeavoured to shew that the gun might have gone off the first time by accident: and although the learned JUDGE was satisfied that this was not the case, he thought the second firing was evidence to show that the first, which had preceded it only one quarter of an hour, was wilful, and to remove the doubt, if any existed, in the minds of the jury.

At the close of the evidence, the prisoner's counsel objected that the first three counts were bad, because each contained charges. of two distinct and separate felonies: and that each of the first three counts was bad also, on the ground of uncertainty, there being two shootings in the first count, and the reference by the words, "with intent in so doing, (that is to say) in so as aforesaid shooting," not sufficiently extending to both shootings.

The prisoner's counsel also objected that the second and third counts were bad for not referring distinctly to the shootings in those respective counts, but to the shooting" as aforesaid," which extended to all the shootings before mentioned, and not to the shooting "last aforesaid," in the usual form: and he urged that the latter objection extended also to the last three counts.

The learned JUDGE thought it unnecessary to give any opinion as to the first objection to the first three counts, because each of the last three counts contained a charge of one felony only.

As to the other objections the learned JUDGE thought that they were unfounded, because it seemed to him that the words " with

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