1787. CASE. made, was considered by the law to be made under a sanction more awful and impressive than that of an oath itself. SECONDLY, that if the circumstances of her health at the time RADBOURNE'S. were such as would not render the deposition admissible on this ground, it was admissible as an information taken by a regular magistrate, under the statutes of Philip & Mary; for it had been given in the presence and hearing of the prisoner, upon an oath lawfully administered to Mrs. Morgan, who had thereby called God to witness that what she said was true, and who had in the presence of the prisoner, made an additional attestation of its truth, by putting her signature thereto; for that any thing that was said, either by a prosecutor, a prisoner, or a witness, in the presence and hearing of each other, although said in common conversation and under no solemnity, was admissible evidence in all Courts both criminal and civil; and the circumstance of Mrs. Morgan's testimony before the magistrate, in the presence of the prisoner, having been reduced into writing, instead of destroying its admissibility rendered it more eligible, inasmuch as what was said was thereby rendered more certain, and less liable to be mistaken. THE COURT received the deposition in evidence (1); but (1) See the the fact having been committed at the dead of night, there case of W. Woodcock, was no positive evidence, either by the contents of this in- post. Dec. formation, or by the several witnesses who were examined viva voce, that the prisoner was guilty. THE evidence, however, though entirely circumstantial, was extremely strong; but as there was not any set of circumstances proved by two witnesses, the learned Judge thought the prisoner could not be legally convicted of the charge of petit treason (a), the statute 1 Edw. 6. c. 12. s. 22. providing, that no person indicted for treason, petty treason, or misprision of treason, shall suffer any pain of death unless the offender be accused by two sufficient and lawful witnesses; and this being confirmed by the statutes 5 & 6 Edw. 6. c. 11. (a) It is said that many of the JUDGES, on consulting on this case, observed that the statutes of Philip and Mary do not extend to treason,, Sess. 1788. 1787. RADBOURNE'S CASE. See Cro. Car. 532. 1 Com. Dig. 366.368. s. 12. which not only requires, that no person shall be condemned of petty treason, unless he be thereof accused by two lawful accusers; but that the said accusers shall, if then living, be brought in person before the party so accused, and avow what they have to say against him; and these statutes not being repealed by the 1 & 2 Phil. and Mary, c. 10. which orders that all trials of treason shall be according to the course of the common law (a). THE JURY found the prisoner guilty, both on the indictment and inquisition, of the murder only; and the verdict was entered upon the record, "Jury say GUILTY of the wilful "murder, but NOT GUILTY of the treason.” THE judgment was respited upon this conviction, and three questions were submitted to the consideration of the TWELVE JUDGES. FIRST, Whether a prisoner can be convicted of murder upon an indictment or inquisition for petty treason? THAT IS, whether the acquittal for the petty treason does not involve in it an acquittal of the murder also? SECONDLY, Whether the information of Hannah Morgan, the deceased, authenticated by one witness only, was legally received in evidence on an indictment for petty treason? THIRDLY, Whether the information of Hannah Morgan was admissible in evidence, she not appearing, at the time she gave it, to be apprehensive of her approaching dissolution? MR. RECORDER, on the first day of the December Session following, reported, that it was the unanimous opinion of ELEVEN JUDGES, Lord Mansfield being absent, that the learned Judge did right in admitting the information of Hannah Morgan to be received in evidence, and that the prisoner was legally convicted of murder on the indictment and inquisition for petit treason (b). (a) The statute of 7 & 8 Will. 3. c. 3. s. 2. requires two witnesses in high treason, or the misprision of such treason only; but see Hawk. P. C. Bk. 2. ch. 46. s. 6. (6) Mr. Justice Foster, in considering the question, whether it may be THE prisoner accordingly received sentence of death, and was executed. 1787. RADBOURNE'S THE KING against FORSGATE. CASE CCXII. Robert An indictment wearing appafor stealing the stealing AT the Old Bailey in October Session 1787, Forsgate was tried before MR. JUSTICE HEATH for a cloth coat, a linen shirt, a waistcoat, and other articles of rel of a son, wearing apparel, the property of John Wilson. It appeared in evidence, that the wearing apparel had been furnished by John Wilson to his son George Wilson; that his son George, who was nineteen years of age, was bound an apprentice to him; and that by the indentures he was bound to find his said son and apprentice in board, lodging, clothing, &c. who is an ap prentice to his father, and furnished with his clothes in pursuance of his indentures, must lay them perty of the to be the pro son, and not of the father. THE COURT. The goods being laid to be the property of See 2 East's John Wilson renders the indictment defective; they are the Pleas Crown, property of his son; for he having been furnished with them P. 654 acc. pursuant to the conditions of the indentures, they are exclusively his own. adviseable to proceed upon an indictment of murder against a person plainly appearing to be guilty of petty treason, says, "Put the case, that a person is brought to his trial upon an indictment for petit treason, and that one witness only can be produced, or that the prosecutor is not furnished with any evidence except the depositions taken before the coroner, or information taken on oath before Justices of Peace, pursuant to the statutes: and let it be supposed that these witnesses are living, but unable to travel, or kept out of the way by the procurement of the defendant. What is to be done in this case? Is the defendant to be acquitted of the whole charge? I think not. I think this evidence, though not sufficient to convict of petty treason, is still admissible evidence, and proper to be left to the Jury as upon a charge of murder; and the Jury, if they are satisfied, may find the defendant Guilty of the murder, and acquit him of the treason." Foster's C. L. 328.-See also the opinion of SIR M. HALE, 2 H. H. P. C. 292. and of MR. JUSTICE WRIGHT and MR. JUSTICE FosTER, in the case of Rex v. Swan and Jefferies. Foster's Cro. Law, 106. 10 State Trials, 96 accordant. 1787. FORSGATE'S CASE. THE Prisoner was accordingly acquitted. But he was again tried on an indictment, laying the clothes to be the property of George Wilson, and he was found Guilty and transported (a). (a) At the Old Bailey, 1701, Tracy and Turton Justices, and Lovell Recorder, doubted whether the property of a gold chain which was taken from a child's neck, who had worn it for four years, ought not to be laid to be in the father. But Tanner, an ancient Clerk of the Court, said, that it had always been usual to lay it to be the goods of the child in such case: and that many indictments which had laid them to be the property of the father had been ordered to be altered by the JUDGES; and Mr. East says that it is holden good either way. CASE CCXIV. THE KING against JAMES ATWOOD and THOMAS ROBBINS. If the Jury believe the testimony of an accomplice, they may convict of a capital offence, though such testimony stands totally uncor roborated. AT the Summer Assizes at Bridgewater in the county of THE prosecutor deposed, That on the day laid in the indictment he was met by three men, who, after using him with violence, and threatening his life, demanded his money; and that in consequence of their threats he delivered to them the property mentioned in the indictment; but that it was so dark at the time, he could not swear that the prisoners at the bar were two of the men who robbed him. AN ACCOMPLICE was, under this circumstance, admitted to give his testimony; and he deposed, That he and the two prisoners at the bar had, in the company of each other, committed this robbery. THE JURY, upon the evidence of these two witnesses, found the prisoners GUILTY; but the judgment was respited, and the case submitted to the consideration of the TWELVE JUDGES. On the first day of Michaelmas Term 1788, the JUDGES assembled at Serjeants' Inn Hall to consider of the propriety of this conviction. MR. JUSTICE BULLER at the next Spring Assizes, held at Taunton, ordered the two prisoners to be put to the bar; and addressed them, in substance, as follows: "PRISONERS, you were convicted of a highway robbery at the last Summer Assizes at Bridgewater; the material circumstances of the trial were these: The prosecutor gave in evidence, that he was robbed by three men on the day laid in the indictment, mentioning the conversation that passed during the robbery, and proving all the facts that are necessary in law to constitute that offence; but as it was dark, he could not swear to the person by whom it was committed. The accomplice was then called, who swore, That he and you had, in the company of each other, committed this robbery; and he mentioned all the circumstances that passed, which exactly corresponded with those the prosecutor had before related. On the testimony of these two witnesses the Jury found you GUILTY; but on a doubt arising in my mind respecting the propriety of this conviction, I thought it proper to refer your case to the consideration of the TWELVE JUDGES.-My doubt was, Whe ther the evidence of an accomplice, unconfirmed by any other evidence that could materially affect the case, was suf ficient to warrant a conviction (a)?—And the Judges are unanimously of opinion, that an accomplice alone is a competent witness; and that, if the Jury, weighing the probability of his testimony, think him worthy of belief, a conviction supported by such testimony alone is perfectly legal. The distinction between the competency and the credit of a witness has been long settled. If a question be made respecting his competency, the decision of that question is the exclusive province of the Judge; but if the ground of the objection go to his credit only, his testimony must be received and left with the Jury, under such directions and observations from the Court as the circumstances of the case (a) See the case of Durham and Crowder, Post Old Bailey December Session 1787. 1788. ATWOOD AND CASE. |