1730. CASE II. Accidental homicide may be murder, if it happen in the prosecution of an illegal act. 463. 534. Moor, 86. Cromp. 34. 1 And. 116. 2 Hale, 344. THE KING against HODGSON AND OTHERS. THIS was a special verdict upon an indictment for MURDER, found at the Session-House in the Old Bailey, to the following effect: THE prisoners, together with several others, were hired by one J. S. to assist him in carrying away his houshold furniture, in order to avoid its being distrained for rent. They 1 Hale, 437. accordingly assembled for this purpose, armed with bludgeons and other offensive weapons. The landlord of the house, accompanied on his part by another set of men, came to prevent the removal of the goods, and a violent affray ensued. The constable was called in, and he produced his authority, but could not induce them to disperse. While they were fighting in the street, one of the company, to the Jurors unknown, killed a boy, who was standing at his father's door looking on, but totally unconcerned in the affray. Holt, C. J. (1) See 11 Geo. II. c. 19. (2) See also 1 Hawk. P. C. 6th Edit. p. 127. s. 46. THE question was, Whether this was murder in all the company? In order to avoid the expence which attends the drawing up and arguing a special verdict, the Counsel agreed to submit the point to the consideration of the Judges in the shape of a reserved case. THE Judges accordingly met; and the two Chief Justices were of opinion, that it was murder in all the company, because they were all engaged in an unlawful act, by proceeding in the affray after the constable had interposed, and commanded them to keep the peace, especially as the manner in which they originally assembled, viz. with offensive weapons and in a riotous manner, was contrary to law, though the purpose for which they assembled, viz. to carry away the goods was justifiable (1); and cited Stamf. 17. 40. Fitz. Cor. 350. Cromp. 244 (2), where divers go to commit a disseisin, and one of them kill a man, the rest are principal felons. BUT the majority of the Judges held, that as the boy was found to be unconcerned in the affray, his having been killed by one of the company could not possibly affect the rest; for the homicide did not happen in prosecution of the illegal act; and therefore the persons, though constructively present, could not be said to be aiding and abetting (3) the death of one who was totally unconcerned in the design for which the parties had assembled. And they cited Plumer's Case, Kely. 3. 12 Mod. 629 (a); and two Cases before Lord Chief Justice Holt, the one at Hertford, and the other at Sarum assizes (b). (a) HOLT, Chief Justice, in delivering the judgment of the Court in Plumer's Case, cites the following case as having happened at the Old Bailey in December Session, 1664: "The Secretary of State, made his warrant to apprehend divers suspected persons, directed to the messengers: the messengers having notice of their being in such a house, took several soldiers with them to assist them to apprehend the said persons, but took no civil officer with them; neither did they make any demand to have the door opened, as they ought by law to do, but broke open the door; and when they had broke open the door, some of the soldiers fell a plundering, and stole away some goods, and THE QUESTION WAS, Whether this was felony in them all?" "That they were all," continues his Lordship, 66 engaged in an unlawful act, is plain; for they could not justify breaking a man's house without making a demand first; and in that case all those who were not guilty of the stealing were acquitted; notwithstanding their being engaged in one unlawful act of breaking the door; and the reason was, because they knew not of any such intent, but it was a chance opportunity of stealing, whereupon some of them did lay hands." See also Rex v. Thompson, Kely, 66, and an Anonymous Case, 8 Mod. 165. (b) These two cases are mentioned by Mr. Justice Foster; 3 Dis. p. 353. See also Keilwey, 161. and Bothwick's Case, Douglas, 202. 1730. HODGSON'S See 8 Mod. 1731. THE KING against BAYNES AND OTHERS. CASE III. the second AT the Old Bailey April Session 1731, Henry Baynes, Susan There are no Thompson, Hannah Randal, and Thomas Blower, were in- principals in dicted on 8 Eliz. c. 4. before LORD CHIEF JUSTICE RAYMOND, degree in privately stealing present MR. BARON COMYNS, and MR. JUSTICE DENTON, from the perfor privately stealing a bank-note of one hundred pounds, son. S. C. 2 East, 700. 1731. BAYNES AND 1 And. 195. Dyer, 99. 183. 1 Hale, 529. 2 Hawk. 444. 480, 481, 489. Foster, 355, 358. payable to William Lord Malton, or bearer, from the person of John Innis. UPON the evidence it appeared, that the note was lost during a drunken scuffle at the Prince William Tavern, Charing-cross, and it became impossible to ascertain which, if any, of the prisoners had stolen this note. THE COURT.-The statute upon which this indictment is founded, takes away the benefit of clergy from those who shall be found guilty of privately stealing from the person; and as it is totally silent respecting aiders and abettors, it must be construed to extend only to principals in the first degree. It follows, therefore, that the hand alone which takes the property can be guilty of the offence; and as it is uncertain which of the prisoners took the note, it is impossible to find any of them guilty of the capital charge (a). (a) See Sterne's case, Old Bailey, Sept. 1787, post. The case of Mary and Bridget Murphy, Old Bailey, April 1783, post." 1737. CASE IV. The person whose name is forged is not a compe tent witness to prove the forgery. THE KING against Russel. AT the Old Bailey February Session 1737, William Russel was indicted before MR. JUSTICE PAGE, present MR. BARON CARTER, and SIMON URLIN, Esq. Deputy-Recorder, on the 2 Geo. II. c. 25. for forging an acquittance and receipt under a certain account, in the words and figures following: "Guinen AGAINST Bancillion. "Bill l. 23:4 : 1. viz. l. 12:10:5. and l. 10:13:8. "Half profit, l. 5:6:10. "Costs out of purse, l. 12:10:5. "My dividend, l. 5:6:10. }1. 17:17:3. "Received l. 4:4. Due to me l. 13: 13:3. "RECEIVED the above contents, "R. GATELEY," with intent to defraud Roger Gateley, one of the Solicitors of the High Court of Chancery. THE Counsel for the prisoner observed, that neither Mr. Gateley's testimony, nor any affidavit made in his name, could be admitted in evidence, for that it was determined in the Case of the King v. Whiting (1) by Lord Chief Justice Holt, that where a person is concerned in interest, he cannot be a witness. 1737. RUSSEL'S CASE. (1) Salk. 283. 728. On the part of the prosecution it was contended, that Gateley's evidence was admissible, for it went to establish the defendant's guilt; and as the consequence of his conviction would be an immediate forfeiture to the Crown of all the property he possessed, Gateley's evidence would tend to deprive himself of the possibility of ever receiving satisfaction for the sum due to him upon this account. The objection of incompetency arises from the sort of interest which the witness may have in the nature of the question, or the event of the trial; and if any advantage may accrue to him from giving his testimony, the law, in consideration of the frailty of the human mind, renders his evidence inadmissible. But when the effect of a testimony tends to deprive the witness of a sub- (2) See Newstantial benefit, the law allows his evidence, upon the concep- land's Case, tion that he will not untruly charge himself, or say any thing 2 Hawk. 611. wrongfully to his own disadvantage (2). postea, and 4 Burr. 2256. 3 Wils. 262. THE COURT were of opinion, that Mr. Gateley was not an 1 Term Rep. admissible witness (a). 153. a cash memo tute 2 Geo. II. THE COURT were also of opinion, that the instrument A receipt to charged to be forged was not a receipt or acquittance for randum is not money, within the meaning of the Act of Parliament; they within the staconsidered it as a confused memorandum, from which it was impossible to collect with any certainty whether the word received referred to the item of costs, or to any of the immaterial items of which the note was formed. Ir also appeared that the indictment was defective, in not having properly pursued the words of the statute; and for these causes the defendant was acquitted. (a) It is an established rule, that no person who can derive any advantage from the conviction, can be a witness for the King. Watts's Case, Hard. 331. 3 Salk. 172. Rhodes's Case, 2 Stra. 728. East, 995. Caffy's Case, 2 c: 25. 1738. CASE V. indictment against a bankrupt for secreting his effects. Second notice. THE KING against FRITH. An erroneous AT the Old Bailey October Session 1738, Edward Frith was indicted before LORD CHIEF JUSTICE LEE, (present LORD CHIEF JUSTICE WILLES, and SERJEANT URLIN, Deputy-Recorder) on 5 Geo. II. c. 30. s. 3. for that he being indebted to George Hatfielde in the sum of 1001. became a bankrupt, and a commission of bankruptcy being awarded against him, he was by the Commissioners declared a bankFirst notice. rupt, and notice in writing was left at his dwelling-house, that he had been declared a bankrupt; and that he was required to surrender himself to the Commissioners at Guildhall, and submit to be examined, and to conform to the directions of the said Act. And that afterwards notice was published in the Gazette for the said Edward Frith to surrender himself at Guildhall, and make a disclosure of his effects, &c. That afterwards Lord Talbot, then Lord High Chancellor, did enlarge the time for the said Edward Frith's surrendering and discovering his effects, for fifty days, to be computed, &c. Third notice. That notice was given in the Gazette, that the Lord High Chancellor had enlarged the time for the said Edward Frith to surrender, &c. and he, the said Edward Frith, was therein required to surrender himself to be examined, &c. but that he, the said Edward Frith, lightly regarding the laws, &c. feloniously made default, and neglected to surrender himself to be examined, &c. against the form of the statute. THE prisoner's Counsel raised four objections against the validity of this indictment. FIRST OBJECTION.-The statute enacts, that "If any person against whom a commission of bankrupt hath been "awarded and issued out, &c. shall not, within forty-two "days after notice thereof in writing, surrender, &c." The indictment therefore should have not only stated that the commission was awarded, but that it had duly issued; for there is a material difference in the meaning of these words; the word |