1784.

MOORE'SCASE.

something which she did not chuse to repeat, immediately snatched hold of this ornament, and tearing it away, together with part of her hair, ran instantly away. Mrs. Jeffries immediately screamed out, "Oh! my diamonds, "my diamonds!" and upon Count Dillon, whose arm she had hold of, turning round, he observed the prisoner's hand coming down from her head, and saw him push through the crowd to make his escape; but the Count immediately pursued him, without his being able to get out of sight, and at length seized him by the collar, but not until after he had reached a man who stood near a coach at five or six yards distance from the Palace Gates, holding a white handkerchief in his hand, into which the prisoner threw the diamond pin, and with which this coadjutor immediately slipped under the coach and got clear away. The prisoner however was secured, and delivered into the custody of the Police Officers from Bow Street, who immediately searched him, but on whom nothing was found; nor was the pin afterwards recovered.

The question was whether this was a taking with sufficient force and violence to constitute the crime of robbery. And THE COURT being of opinion that it was,

THE Jury found the prisoner guilty of the whole charge.

CASE CLXIV.

THE KING against ANN POPE.

An indictment ANN POPE was indicted at the Old Bailey in July Seson the s Will. sion 1784, on the statute 3 and 4 Will. and Mary, c. 9. for and Mary, c. 9. omitting to that she on the 15th June, &c. three blankets of the value of the lodgings state by hom three shillings, and one pair of linen sheets of the value of

were let, is bad. five shillings, of the goods and chattels of one John Webber S. C. 2 East, (the same goods and chattels being in a certain lodging-room

587.

in the dwelling-house, which by contract and agreement she the said Ann was to use, and which was let to the said Ann with the lodging aforesaid), then and there being found, feloniously did steal, take, and carry away.

THE statute of 3 Will. and Mary, c. 9. s. 5. enacts, "That

"if any person or persons shall take away with intent to "steal, embezzle, or purloin any chattels, bedding, or fur"niture, which by contract or agreement he or they are to

66

use, or shall be let to him or them to use, in or with such

lodging, such taking, embezzling, or purloining, shall be "to all intents and purposes taken, reputed, and adjudged "to be larceny and felony."

1784.

POPE'S CASE.

THE COURT. This indictment is not drawn in proper Adair R. form; there is a material omission in it: it does not state by whom the goods or the lodgings were let to the prisoner; and this is such an omission, that the prisoner cannot be convicted upon this indictment.

THE Jury accordingly found a verdict of Not Guilty.

THE KING against GEORGE DRUMMOND.

CASE CLXV.

tion of A CON

AT the Old Bailey in September Session 1784, George The declaraDrummond was indicted before MR. BARON EYRE, present VICT at the MR. JUSTICE GOULD, for robbing the Earl of Claremont of moment of exea gold watch, chain, seals, and trinkets.

cution, cannot

be given in evidence as

DURING the trial, the prisoner's Counsel informed the the declaraCourt, that a young man of the name of Edwards, very much tion of a dying man; for be resembling the person of the prisoner, had been recently ex- ing attainted, ecuted for a highway robbery, and that immediately previous his testimony to the awful moment of his fate, he had communicated some- been received on oath. thing to the Rev. Mr. Villette, the chaplain in ordinary of the prison, touching the commission of the identical robbery notis. then under consideration. He therefore submitted to the Court, that as Mr. Villette's knowledge upon this subject had proceeded from the solemn declaration of a dying man, it was admissible evidence in favour of the prisoner.

1 East, 353

THE COURT. It would be inconsistent with the rules of See the Case of Henrietta evidence, which are rules of justice, to examine a witness to Radburne, the declaration of a person dying under the circumstances post. Old described. The principle upon which this species of evi- Session 1787, Bailey, July and Woodcock's Case, post. Old Bailey January Session 1789.

1784.

DRUMMOND'S
CASE.

dence is received is, that the mind, impressed with the awful idea of approaching dissolution, acts under a sanction equally powerful with that which it is presumed to feel by a solemn appeal to God upon an oath. The declarations therefore of a person dying under such circumstances, are considered as equivalent to the evidence of the living witness upon oath. But to examine a witness to the declarations of an attainted convict, would be carrying the rule of evidence beyond its possible extent, even if the person were alive; for, as an attainted convict, he could not have been admitted to give testimony upon oath, and the dying declarations of such a person cannot, consistently with the principles of justice, be considered as better evidence than his testimony on oath would have been if he had been alive. The fact, however, that a man resembling the person of the prisoner was executed, may be given in evidence, provided it is confined within such time as to make it probable that he was the person who committed this robbery.

THE prisoner's Counsel did not venture to call any witness to establish that fact; and the Jury found the prisoner Guilty.

CASE CLXVI.

THE KING against THOMPSON AND MACDANIEL.

The penalties AT the Old-Bailey September Session 1784, Elizabeth on stealing in a dwellingThompson and Mary Macdaniel were indicted on the 12 Ann. house, do not c. 7. for stealing seven guineas, the monies of Thomas Clifcase of a pri- ford, in the dwelling-house of the said Mary Macdaniel. soner stealing the property of another in

extend to the

his own dwellinghouse.

2 East, 644.

THE statute recites, "Forasmuch as divers wicked and "ill-disposed servants and other persons are encouraged "to commit robberies in houses, by privilege of demand"ing the benefit of their clergy;" and therefore enacts, "That all and every person or persons that shall feloniously "steal any money, goods or chattels, wares or merchandises, "of the value of forty shillings or more, being in any dwel"ling-house or out-house thereunto belonging, although "such house or out-house be not actually broken by such.

"offender, and although the owner of such goods, or any "other person or persons, be or be not in such house or "out-house, or shall assist or aid any person or persons to "commit any such offence, shall be debarred from the be"nefit of clergy."

It appeared in evidence, that the house in which the larceny was committed, was in fact the house of Mary Macdaniel; and the COURT held, that the meaning of the Legislature did not extend to the case of a person stealing in his own house (a).

(a) In January Session 1780, Ann, the wife of John Gould, was tried before MR. JUSTICE NARES, present L. C. B. SKYNNER, MR. J. AshHURST, and MR. S. ADAIR, Recorder, for stealing a leathern purse, containing six guineas, &c. the property of William Herring, in the dwellinghouse of the said John Gould.-THE JUDGES were unanimously of opinion, that the prisoner could not be convicted of the capital part of the charge, inasmuch as the felony was committed in the dwelling-house of her husband, which must be construed to be her dwelling-house, and the statute evidently means the house of another. The prisoner was therefore found guilty of the simple larceny only. This point was afterwards mentioned to MR. JUSTICE GOULD, who concurred with THE JUDGES in this opinion. MS.

THE KING against HUTCHINSON AND OTHERS.

1784.

THOMPSON'S

CASE.

CASE CLXVII.

tive clauses of the Smuggling Act

AT the Old Bailey September Session 1784, William Hut- The substanchinson, Thomas Lewis, and Daniel Wilkinson, were tried before MR. BARON EYRE, present MR. JUSTICE GOULD, on the statute 19 Geo. II. c. 34. upon an indictment containing three counts.

enumerated.

There must

be a deliberate assembling to bring the

offenders

within the

statute.

THE first count charged that the prisoners, with divers other persons, with fire-arms, and other offensive weapons, feloniously did assemble themselves together in order to be penalty of the aiding and assisting in rescuing and taking away from W. T. and C. S. two of the Officers of the Excise, in the due execution of their office, 150 gallons of foreign geneva, being uncustomed goods, and liable to pay duties, &c. after seizure of the same by the Officers of the Excise as aforesaid.

The second count charged, that, being thus assembled, they

1784.

HUTCHINSON'S CASE.

assaulted the Officers of the Excise in the due execution of their office (a).

THE third count charged, that they hindered, obstructed, opposed, and resisted the Officers, &c.

THE Officers of Excise, in consequence of an information, went to search Hutchinson's house, where they found a quantity of geneva in tubs concealed in a vault under the yard. Two of the prisoners struck the Officers, beat them from the vault after they had entered it, and prevented them from taking the tubs away. The Officers went in search of Constables and other assistance: but on their return, twelve or fourteen people had come drunk from an adjacent alehouse, and were carrying some of the tubs away. There was a great noise and riot, many brickbats were thrown at the officers, and one of them was knocked down and wounded, but the Smugglers were not seen to use any offensive weapon. THE statute upon which the present indictment is founded

contains five branches.

FIRST, it enacts, "That if any persons, to the number of "three or more, armed with fire-arms or other offensive "weapons, shall be assembled in order to be aiding and "assisting in the illegal exportation of goods prohibited to

(a) In July Session 1784, John Shelley was indicted at the Old Bailey on this statute, and the indictment stated, as in the present case, that the prosecutors were Excise Officers, and the goods seized uncustomed goods. No evidence was given to prove these averments, but what was to be collected from the testimony of the prosecutors themselves; and it was submitted to the Court, that being facts positively alleged, they ought to be directly and substantially proved. In answer to the first point, the statute 11 Geo. II. c. 30. s. 22. was produced, by which it is enacted, that Excise Officers acting in the execution of their duty shall be taken to be Excise Officers until the contrary shall be made appear, for that in all cases of this kind the onus probandi is thrown upon the prisoner. As to the second point, it was admitted, that reasonable proof ought to be given of their being uncustomed goods, and that the circumstances under which they were seized were sufficient for the Jury to exercise their judg. ments upon with respect to the fact.-See, as to the first point, the Gordons' Case, Northampton Spring Assizes 1789, post, and the case of Berryman v. Wise, Trinity Term, 31 Geo. III. 4 Term Rep. 366.