SHEPHERD said offence until the 13th January. Subsequently, on the 9th AND TURNER January, the appellant, John Turner, was apprehended, and charged (apps.) with setting fire to the letters in the pillar-box at Dresden, and THE POSTMAS- bailed to appear at a petty sessions to be held at Longton, on the TER-GENERAL 13th January, to answer for the said offence. v. (resp.) 1864. At the said petty sessions holden at Longton on the said 13th January, 1864, the said appellant Henry Shepherd was brought in custody, and the said appellant, John Turner, being surrendered by Substitution of fresh charge his bail, appeared to answer the charge so made against them, and Jurisdiction. thereupon one John Adams Stevenson appearing as attorney in support of the said charge, and George Hulme Hawley, as attorney on behalf of the said Henry Shepherd, and certain witnesses having been examined by the said respective attorneys, application was made by the said J. A. Stevenson, on behalf of the said A. Becke, to remand the said appellants for one week that the said A. Becke might obtain the directions of the Postmaster-General as to the precise charge to be preferred against the appellants upon the evidence as aforesaid, and the appellants were accordingly remanded upon bail to appear on the 20th January to further answer the said charge. And at the petty sessions holden at Longton, on the said 20th January, 1864, the said appellants surrendered and appeared to further answer the said charge, and the said respective attorneys also appeared, and thereupon the said J. A. Stevenson stated that he should proceed against the said appellants under the 52nd section of the stat. 24 and 25 Vict. c. 97, for having wilfully and maliciously committed damage, injury, and spoil, to and upon the said pillar letter-box, and upon the letters and property being therein; and the said respective attorneys, on behalf of the said appellants, were asked by the said J. A. Stevenson whether they would plead guilty to such charge, or whether further evidence should be offered in support of the same; and the said respective attorneys for the said appellants having retired from the court to consult together thereupon, after a lengthened absence returned into court and informed the said J. A. Stevenson that he must go on and prove the case, but this was in the nature of a private communication between the said attorneys; and certain other witnesses were then called and examined in support of the said charge, and were crossexamined by the respective attorneys on behalf of the said appellants; and after the examination and cross-examination of the said witnesses were finished, and the case on behalf of the said prosecutor was closed, the said respective attorneys, on behalf of the said appellants, objected that, inasmuch as no information on oath had been taken, as required by the 62nd section of the said Act, 24 and 25 Vict. c. 97, and the appellants were not found committing the offence, they were not legally in custody, and therefore the said Justices had no jurisdiction to convict the appellants of the said offence then charged against them; but it appearing to the Justices that the said appellants were lawfully apprehended and taken into custody upon a charge, made on oath, of having committed an offence upon and with respect to the said pillar letter AND TURNER v. TER-GENERAL (resp.) box, and the letters and property therein, within the meaning of SHEPHERD the 10th section of the said Act, 24 & 25 Vict. c. 97. The Justices (apps.) overruled the objection, and the said respective attorneys, without waiving the objection, and without prejudice thereto, proceeded THE POSTMASto address them on the merits of the said case, on behalf of the said appellants, and having called no witnesses in denial of, or in answer to the said charge, the Justices convicted the said appellants under the 52nd section of the said Act, and committed each of them, the said Substitution of appellants, to the house of correction at Stafford, to be imprisoned fresh chargeand kept to hard labour for the space of one calendar month for the Jurisdiction. said offence. It was found as a fact that the appellants were, upon the merits, guilty of the charge and offence of which they were so convicted as aforesaid. The question of law for the opinion of this Court is, whether the appellants were, under the before-mentioned circumstances, legally and properly convicted of the said offence. The following sections of 24 & 25 Vict. c. 97, were referred to in the course of the argument: Sect. 10.-Whosoever shall unlawfully and maliciously place or throw into any building any gunpowder or other explosive substance, with intent to destroy or damage any building, or goods, or chattels, shall be guilty of felony and be liable to be kept in penal servitude for any term not exceeding fourteen and not less than three years, or to be imprisoned for any term not exceeding two years. Sect. 52.-Whosoever shall wilfully or maliciously commit any damage. upon any real or personal property whatsoever, for which no punishment is hereinbefore provided, shall on conviction thereof before a justice of the peace at the discretion of the justice be imprisoned in the common gaol for any term not exceeding two months, or else shall pay a fine not exceeding 51. and a reasonable compensation for the damage done. Sect. 61 enacts: Any person found committing any offence against the statute, whether the same be punishable on indictment or summary conviction, may be apprehended without a warrant. Sect. 62 provides: Where any person shall be "charged on the oath of a credible witness before any justice of the peace," with any offence under the Act punishable by summary conviction, the justice may summons the person charged to appear at a time and place to be named in such summons, and in default of appearance may either hear the case or issue his warrant, or the justice before whom the charge is made may issue such warrant if he thinks fit without any previous summons. The Solicitor-General (Poulden with him) for the respondent.The charge of felony under sect. 10 could not be sustained, as it was difficult to establish that a pillar letter-box was a building within the meaning of that section. But the offence came clearly within sect. 52, and accordingly that was the charge proceeded with before the magistrates, who determined it and sentenced the appellants to one month's imprisonment. The appellants did not object until the case for the complainant had been closed, and it was then too late. It was not material then that there had been no 1864. AND TURNER v. THE POSTMAS SHEPHERD information and summons under sect. 52, for the parties were (apps.) present and allowed the case to be proved before they raised any objection to its being proceeded with. But, in point of fact, there Was an information on oath as to the facts of the case, although at first the nature of the offence was mistaken. The conviction was therefore valid: (Paley on Convictions, 80; Wilkinson v. Dutton, 32 L. J. 152, M. C.; 8 L. T. Rep. N. S. 276.) TER-GENERAL (resp.) 1864. Substitution of Harington for the appellants.-The appellants were apprehended fresh charge for an indictable offence, and the jurisdiction of the magistrates was Jurisdiction. only preliminary, to commit for trial, and they had no power to alter the charge so as to give themselves jurisdiction to convict summarily. [COCKBURN, C.J. referred to Ex parte Thompson, 3 L. T. Rep. N. S. 294, where the evidence amounted to a rape and the justices convicted for an assault, and this court refused to interfere.] The appellants were before the court on a charge of felony, but they were convicted of another offence. This was wrong: (Martin v. Pidgeon, 28 L. J. 179, M. C.; Reg. v. Brickhall, 33 L. J. 156, M. C.; 10 L. T. Rep. N. S. 385.) There should have been an information to ground the conviction: (Sunders' case, 1 Wms. Saun. 262.) [MELLOR, J.-Here there was an information. The statute does not require an information in writing.] The procedure is different in cases of felony and on summary convictions. If an information is not essential, then the 11 & 12 Vict. c. 42, s. 17, was unnecessary. COCKBURN, C.J.-I am of opinion that the conviction was right. The case was fairly heard upon the merits with the assent of the attorneys who appeared for the appellants. All that the appellants could have asked for was, that an information should be laid upon the alteration of the charge, and even if they had demanded that, it would only have amounted to this, that on the new charge the same evidence would have been taken over again. This was substantially done. At first it was supposed the appellants had committed a felony under sect. 10, but upon investigation before the Justices it turned out to be only a misdemeanor under sect. 52. The facts alleged in proof of the latter charge were the same as those alleged in support of the other charge. No doubt, in strictness, the appellants might have demanded to be called on to answer to the charge that was proceeded with, and that the evidence should be gone through again on the charge of misdemeanor. But they waive all right to have that done by their conduct by allowing the charge of misdemeanor to be proceeded with. I therefore think the appellants were legally convicted. CROMPTON, J.-I am of the same opinion. The objection to the conviction is really that there was no information and no summons, as required by sect. 62 of 24 & 25 Vict. c. 97. An information and summons are not necessary in all cases, for under sect. 61, if a man is found in the act of committing an offence against the statute, he may be apprehended at once. Here the defendants were in custody, upon a charge of felony, and being so, a new charge for the misdemeanor was preferred against them. AND TURNER v. If they had applied, it may be that the magistrates would have SHEPHERD adjourned the case. But no such request was made; on the (apps.) contrary, their advisers chose to go on with the new charge and cross-examine the witnesses. Then they object that their clients THE POSTMASwere not properly in custody, there not having been any infor- TER-GENERAL (resp.) mation or summons to ground the charge of misdemeanor. I think that we may assume that a proper minute was made of the 1864. charge at the time, and that would be a sufficient information or Substitution of complaint; and the want of a summons would be cured by the fresh chargedefendants being present. I therefore think that the conviction Jurisdiction. ought to stand. MELLOR, J.-I am of the same opinion. Although the appellants may have been irregularly taken into custody as for a felony, that did not prevent the magistrates proceeding with the case of misdemeanor if the appellants did not object. SHEE, J. concurred. Conviction affirmed. Attorney for the respondents, the Solicitor to the Post-office. CENTRAL CRIMINAL COURT. May 11, 1864. (Before WILLIAMS, J.) REG. v. BATSTONE AND ANOTHER. (a) Indictment under 24 & 25 Vict. c. 97, ss. 7 and 8—Malicious injuries to property. Wilfully throwing a light into a post-office letter-box in a house with the intention of burning the letters but not the house is not a felony within the 24 & 25 Vict. c. 97, ss. 7, 8. THE HE prisoners were charged with feloniously setting fire to twenty-one post letters, in a building, other persons being therein. Metcalfe (Putteson with him) for the prosecution. W. Cooper for the prisoners. The indictment was as follows: ourt} Central Criminal Court The jurors for our Lady the Queen, upon their to wit. oath present, that Albert Batstone, late of the parish of Paddington, in the county of Middlesex, labourer, and Warren Batstone, late of the same place, labourer, on the 11th day of April, in the year of our Lord 1864, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, unlawfully, maliciously, and feloniously did set fire to certain matters and things, to wit, twentyone post letters, the property of Her Majesty's Postmaster-General, then being in a certain building, to wit, the dwelling-house of one Samuel Sharman, there situate, the said Samuel Sharman, Elizabeth Sharman, his wife, Robert Smith, and divers other persons then, to wit, at the time of the committing of the felony aforesaid, being in the same dwelling-house, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Second count.-For unlawfully, maliciously, and feloniously setting fire to certain matters and things, the property of Her Majesty's Postmaster-General, to wit, twenty-one post letters, being in a certain building, to wit, a house there situate in the possession and occupation of Samuel Sharman, with intent to injure and defraud, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. (a) Reported by ROBERT ORRIDGE, Esq., Barrister-at-Law. |