[There was further argument on the question of the verdict being against evidence, which is not now material.] Crump, Q.C. and Macaskie for the defendant, in support of the rule, were not called upon. REG. v. BERGER. 1894. Practice CAVE, J.-This is a motion for a new trial in the case of an indictment preferred in this court against the defendant for New trialobstructing the highway. It was first of all contended on behalf Conviction for of the prosecutors that such a motion as this could not be made obstructing highwayupon the grounds upon which it was sought to be substantiated; Evidencebut it is laid down in text-books of undoubted authority that Admissibility such a motion may be made on those grounds, and our attention of Inclosure Award map. has not been called to any case in which that law has been doubted. It has no doubt been laid down that such a motion cannot be made where there has been a verdict of acquittal; but that proceeds upon a principle which is applicable to cases of acquittal alone. That principle is that where a man has once been put in peril upon a criminal charge, he cannot be put in peril again upon the same grounds. But that doctrine, which is particularly a doctrine in favour of the accused party, does not apply where the application for a new trial is made after a conviction, and the prosecution here are unable to show us any authority which alleges that it does. I am therefore of opinion that it is open to the defendant to make this motion upon the grounds which have been put forward. When we come to the merits of the case, it appears to me that the learned judge went somewhat too far in admitting the map of 1814 for the purposes for which it was admitted. The evidence without that map went strongly in favour of the defendant. Part of the evidence showed undoubtedly that there were on either side of the defendant's premises inclosures which went up to the footpath as subsequently laid out by the highway authority, and that state of things would have been eminently favourable to the defendant, because it is quite possible that the defendant or his predecessors in title should have allowed this spot of land to have remained open and unfenced from the public way for the more easy access of people to their property and to the houses and shops which were in existence there, and it is very unlikely that he should have dedicated this little inlet as a portion of the high road to be used by the public to the exclusion of himself and his successors in title for ever. That was a great difficulty in the way of the prosecution; but it was met by the production of the Inclosure Award map, and especially by the production of an enlarged drawing of a portion of it, and, undoubtedly, looking at that map, there would seem to have been-if that map is accurateno inclosures to the south of the defendant's property, and an inclosure to the north much less than those which were proved by one witness to have existed much more recently than the date of that map. It seems to me that with that map the prosecution had a strong case to make, because, if that map was reliable, there were no such inclosures in 1814, and consequently it would REG. v. BERGER. 1894. Practice highway Award тар. follow that all those inclosures were encroachments subsequent to 1814, and that none of them would be entitled to remain, and that was the contention of the prosecution. The difficulty, then, arises that the learned judge at the trial admitted this map for for which it was not admissible. purposes It seems to me that, New trial inasmuch as the map was made by one of the public, it could Conviction for not have been excluded upon a question of reputation as to obstructing whether the Great North road was a public highway or not; Evidence- but that point was not for a moment in dispute. On the other Admissibility hand, it seems to me that as a proof, or even as evidence, that of Inclosure there were in 1814 no inclosures south of the defendant's property, this map was entirely inadmissible, and it was for that purpose, and that purpose only, that it was sought to be proved. The authorities establish this, that, although hearsay is good evidence of reputation in matters of public and general interest so far as the general question is concerned, hearsay is not good evidence of any particular fact from which the general fact is sought to be drawn. An old map, no matter, apparently, by whom made, so long as the man is shown to be dead-which may be inferred in this case-would be evidence of reputation that there was a road in the particular direction shown upon the map, if the contest had been whether there was a public highway or not. But it was not evidence for the purpose of showing what exactly were the boundaries of that particular highway, and that appears to have been the main use, and the very conclusive use, to which that map was put in the hands of the prosecution, and was the purpose for which it was admitted by the learned judge. It seems to me that he went beyond what the cases warrant in admitting the map for that purpose, and one cannot doubt for a moment the very great effect which that map must have produced upon the jury. It seems to me, therefore, that under those circumstances there was a wrongful admission of evidence of a kind which was very effective and likely to have very strong weight indeed with the jury, and that consequently the case ought to go down for a new trial. WRIGHT, J.-I am of the same opinion, and for the same reasons. Rule absolute for a new trial. Solicitors for the prosecutors, Stevens and Parkes; for the defendant, V. I. Chamberlain. CROWN CASES RESERVED. Saturday, April 21, 1894. (Before Lord COLERIDGE, C.J., HAWKINS, MATHEW, CAVE, and GRANTHAM, JJ.) REG. v. SOWERBY. (a) Practice-False pretences-Indictment - Necessary avermentPerson to whom pretence made-24 & 25 Vict. c. 96, s. 88. An indictment for obtaining or attempting to obtain money, &c., by means of a false pretence which does not state to whom the pretence was made, nor from whom the money, &c., was obtained or attempted to be obtained, is bad. The form of indictment in Rex v. Douglass (1 Camp. 212) followed, and the form in Reg. v. Hunter (10 Cox C. C. 642) disapproved of. CASE ASE stated by the quarter sessions for the county of Durham, as follows: 1. At the general quarter sessions held before me at the city of Durham in and for the county of Durham on Monday, the 1st day of January, 1894, defendant was arraigned on an indictment of which the following is a copy: The jurors for our Lady the Queen upon their oath present that William Marr and Obadiah Blenkinsopp on the 28th day of Sept., A.D. 1893, were in the employ and service of the Butterknowle Colliery Company Limited, at the Quarry Pit of the Butterknowle Colliery, in the county of Durham, as hewers of coal, and were entitled to payment from their said employers of the sum of fivepence for every tub of coal wrought and filled by them; and the jurors aforesaid upon their oath aforesaid do further present that Joseph Sowerby the younger, on the day and year aforesaid, unlawfully, knowingly, and designedly did by placing a token upon a certain tub of coals in the said pit falsely pretend that the said Joseph Sowerby the younger had wrought and filled the said tub of coals, by means of which said false pretences the said Joseph Sowerby the younger did unlawfully attempt to obtain the sum of fivepence of the moneys of the said Colliery Company Limited with intent to defraud, whereas in truth and in fact the said Joseph Sowerby the younger had not wrought or filled the said tub of coals as he then well knew, against the form, &c. 2. Defendant's counsel submitted that the indictment was bad upon the following points: (a) That it was not stated to whom the false pretence was made. (b) That it was not stated from whom the money was attempted to be obtained. 8. I was of opinion that the indictment contained sufficient particulars of the offence charged, and I overruled the objection, but reserved the above points for the consideration and opinion of this Court. (a, Reported by R. CUNNINGHAM, GLEN, Esq., Barrister-at-Law. REG. v. SOWERBY. 1894. PracticeFalse pre tences Indictment Necessary averment Person to whom pre tence made24 & 25 Vict. c. 96, s. 88. 4. Defendant thereupon pleaded not guilty to the said indictment, and was tried by a jury duly sworn, who returned a verdict of guilty. I postponed sentence until next session, and the defendant was liberated on bail pending the decision of the Court. 5. The opinion of the court is requested whether the said indictment was good and sufficient in law, and whether the defendant was lawfully found guilty on such indictment. J. Strachan, on behalf of the prisoner, submitted that it was necessary in an indictment for false pretences to allege that the pretence was made to a particular person, and to state from whom the article obtained by the false pretence had been obtained. This was the form in Rex v. Douglass (1 Camp. 212), which form had been followed ever since, except that in Reg. v. Hunter (10 Cox C. C. 642) the indictment was similar to the present, but there no objection was taken to its form. No one appeared on behalf of the prosecution. Lord COLERIDGE, C.J.-I have, though with reluctance, come to the conclusion that this conviction must be quashed. It is very important in criminal matters that we should follow the old precedents and authorities; and no case decides that an indictment for obtaining money by false pretences is good which does not state what the false pretence was. Now, a pretence means the holding out to some other person. The person to whom the pretence is held out must therefore be stated. The old form of indictment states that the defendant falsely pretended to a person named, and alleges that by means of such false pretence the prisoner obtained from the prosecutor, &c. Here there is no such statement, and neither the person to whom the pretence was made nor the person from whom it was attempted to obtain the money is stated. I do not know why the old form, which has lasted for nearly a hundred years, and which is known to all lawyers, was not followed here. This indictment, however, has not been drawn in that form, with the result that two essential parts of the charge are omitted. It is true that the indictment contains an averment that the moneys were the property of the Butterknowle Colliery Company; but that averment is rendered unnecessary by the statute which creates the offence, and an averment which is unnecessary cannot supply the place of an averment which is necessary. In my opinion, therefore, this conviction should be quashed. HAWKINS, MATHEW, CAVE, and GRANTHAM, JJ. concurred. Conviction quashed. Solicitors for the defendant, Field and Roscoe, for Maw, Teale, and Tomlinson, of Bishop Auckland. APPENDIX. STATUTES AND PARTS OF STATUTES AFFECTING THE CRIMINAL LAW, PASSED IN THE SESSION OF PARLIAMENT OF 1890. LUNACY ACT, 1890. 53 VICT. CAP. 5. An Act to consolidate certain of the Enactments respecting Lunatics.[29th March, 1890.] Employment of Males in care of Females. 53. It shall not be lawful to employ any male person in any institution Males not to for lunatics in the personal custody or restraint of any female patient, and be employed any person employing a male person contrary to this section shall be liable in personal custody of to a penalty not exceeding twenty pounds. Provided that this section females. shall not extend to prohibit or impose a penalty on the employment of male persons on such occasions of urgency as may in the judgment of the manager of the institution render such employment necessary, but the manager shall in each case report the employment to the visiting Commissioners or visitors at their next visit. 220. If a licensee receives into his licensed house any patients beyond Penalty for the number specified in the licence, or fails to comply with the regulations infringing of the licence as to the sex of the patients or the class of patients, he shall licence. for each patient received contrary to his licence forfeit fifty pounds. 222. If after the lapse of two months from the expiration or revocation Detention of of the licence of any house, there are in the house two or more lunatics, lunatics after every person keeping the house or having the care or charge of the lunatics expiration or therein, shall be guilty of a misdemeanour. revocation of a licence a misdemeanour. PART XI.—PENALTIES, MISDEMEANOURS, AND PROCEEDINGS. 315. (1.) Every person who, except under the provisions of this Act, Lunatics not receives or detains a lunatic, or alleged lunatic, in an institution for to be detained lunatics, or for payment takes charge of, receives to board or lodge, or except in detains a lunatic or alleged lunatic in an unlicensed house, shall be guilty with Act. of a misdemeanour, and in the latter case shall also be liable to a penalty not exceeding fifty pounds. (2.) Except under the provisions of this Act, it shall not be lawful for any person to receive or detain two or more lunatics in any house unless the house is an institution for lunatics or workhouse. accordance |