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"And the jurors aforesaid upon their oath do further present, that the said Thomas Hickman being such wicked and evil disposed person as aforesaid, and not regarding the laws and statues of this realm, after the passing of the said act of parliament made and passed in the fourth year aforesaid, to wit on the said 6th day of May in the year aforesaid with force of arms to wit at Melton Mowbray aforesaid in the county of Leicester aforesaid, knowingly, wilfully, and feloniously did send to the said John Fabling a certain other letter with the name and signature following, that is to say, "Thomas Hickman," subscribed thereto, directed as followeth, that is to say, "Mr. Fabling, Stapleford, Melton, Leicestershire, speed," threatening to accuse the said John Fabling of the offence of making overtures to him the said Thomas Hickman to commit sodomy with the said John Fabling, being an infamous offence and crime, he the said John Fabling, then and still being a subject our said lord the king, the tenor of which said letter is as followeth (setting out the letter as before) with a view and intent to extort money from the said John Fabling, being the person so threatened to be accused, against the form of the statue, and against the peace of our said lord the king, his crown and dignity."

The only evidence offered was proof by the prosecutor, that he had received the letter set out in the indictment in the county of Leicester, and that it was in the handwriting of the prisoner.

The learned Judge told the jury that they could not convict the prisoner, unless they were satisfied that the letter imported that the prosecutor had endeavoured to prevail on the prisoner to permit him to commit with him the crime of sodomy, and that the letter was written for the purpose of extorting money from the prosecutor, One of the questions reserved for the consideration of

the Judges was, whether, the jury having found that the letter was written with a view to extort money, the count for demanding money was supported. Vide Robinson's case, 2 East, P. C. 1110. S. C. Leach C. C. 749, 4th edit.

A further question reserved for the consideration of the Judges was, whether in the count last set out, it should have been averred, that an overture by the prosecutor to commit sodomy with the prisoner is an infamous crime.

Secondly, If it be necessary to aver, that the overture to commit this offence is an infamous crime, whether the words "being an infamous offence and crime," must not be considered as relating to the words describing the complete offence, which immediately precede them, and not to the overtures to commit that crime.

In Michaelmas term 1824, the Judges met and considered this case, they were of opinion, that a charge of making overtures to commit sodomy, was not an infamous crime within this act, and the Judges held, that they were bound to take the word "infamous" in its legal sense, and that such overtures, however they would disgrace and expose to detestation, would not subject the person making them to an infamous punishment, or prevent his being a witness; and that therefore the conviction on the second count was wrong. The Judges, all of whom were present, were equally divided upon the question, whether the first count was supported by the evidence, and a pardon was recommended.

REX v. GARRET HARLING, ROBERT HOWES SHAW, ROBERT THURLOW BALLS, JOHN ANDERSON, JAMES NEWTON, and ROBERT THOMSON.

In grand larceny, if the sentence be imprisonment without burning in the hand, whipping, or hard labour; fining is also necessary, otherwise the prisoner will not be restored to his competency when he has suffered his punishment.

THESE prisoners were tried before JUSTICE GASELEE, at the summer assizes for the city of Norwich, in the year 1824, the prisoner Garret Harling, for a burglary and stealing silk to the value of 5007., the five other prisoners for receiving separate parts of the property. three first were convicted; but the parish being misnamed, the principal was convicted of grand larceny only. The three last were acquitted.

The

On the trial, a witness of the name of John Balls, who had been employed to dispose of the property to the several parties indicted for receiving, was examined as a witness and an objection was made to his competency, on the ground of his having been, at the October sessions for the city of Norwich, in the year 1818, convicted of grand larceny, and imprisoned for two months, without burning, fine, whipping, or hard labour.

A copy of the conviction was put in, which was of three persons; and after the prayer of clergy, the adjucation part was as follows:-"It is considered and adjudged by the Court here, that the said Francis Allman "be transported to such place or places beyond the seas "as his Majesty, by the advice of his privy council shall

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"order and direct, for the space of seven years, and the "said Thomas Garrod is committed to the bridewell and "house of correction of this city, there to remain for two "months, and be publickly whipped in the market place "in this city on Saturday next; and the said John Balls "otherwise called John Lane, is committed to the said "bridewell and house of correction of this city, there to "remain for two months, and then be delivered."

The learned Judge, understanding that it had been the practice to omit the imposition of a fine since the passing of the 53 G. 3, c. 162, stopped the argument and admitted the evidence, stating, that if the prisoners were convicted, he would submit the point to the consideration of the twelve Judges.

Upon looking minutely into the several acts of parliament, upon the opening of the Court on the next day, and finding that the 53 G. 3, c. 162, mentioned imprisonment with hard labour, and not simple imprisonment only, the learned Judge respited the judgment until the Judges should have been consulted.

There was sufficient evidence against the convicted prisoners, without the testimony of Balls. In the cases of the two receivers there were confessions.

See statute 18 Edward, c. 7, (a) 5 Anne, c. 6, (b)

(a) The 18 Eliz. c. 7, s. 2, enacts that every person which shall be admitted and allowed to have the benefit or privilege of clergy, shall not thereupon be delivered to the ordinary as hath been accustomed, but after such clergy allowed, and burning in the hand according to the statute in that behalf provided, shall forthwith be enlarged and delivered out of prison by the justice before whom such clergy shall be granted, that cause notwithstanding.

(b) The 5 A. c. 6, s. 1, repeals so much of the 10 & 11 W. 3, c. 23, as relates to burning of offenders in the cheek, and by s. 2, it is enacted, that in all cases where any person shall, from and after the 14th of February, 1706, be convicted of any theft or larceny, and shall have the benefit of this act allowed thereupon, or ought by the

19 George 3, c. 74, section 3, (c) 53 George 3, c. 162. (d)

laws in force before the making the said act, to be burned in the hand for such offence shall be burned in the hand as formerly they should or ought to have been, before the making of the said act, and the Judge before whom such offender shall be tried and convicted, shall at his discretion commit such offender to some house of correction, &c. for not less than six months, nor more than two years, &c. By s. 6, it is enacted, that if any person be convicted of such felony for which he ought to have had the benefit of his clergy, if this act had not been made, and shall pray to have the benefit of this act, he shall not be required to read, but without any reading, shall be allowed, taken and reputed to be and punished as a clerk convict, which shall be as effectual to all intents and purposes, and as advantageous to him, as if he had read as a clerk.

(c) By the 19 G. 3, c. 74, s. 3, it is enacted, that when any person shall be lawfully convicted of any felony within the benefit of clergy, for which he shall be liable by law to be burned or marked on the brawn of the left thumb, it shall and may be lawful for the Court before which any person shall be so convicted, if such court shall think fit, instead of such burning or marking, to impose upon such offender such a moderate pecuniary fine as to the Court in its discretion shall seem meet, or otherwise it shall be lawful, instead of such burning or marking, in any of the cases mentioned in the said act, except in the case of manslaughter, to order and adjudge that such offender shall be once or oftener, but not more than three times, either publicly or privately whipped, &e., and such fine or whipping so imposed or inflicted, instead of such burning and marking, shall have the like effects and consequences to the party on whom the same or either of them shall be so imposed or inflicted, with respect to any discharge to the same, or other felonies, or any restitution to his estates, capacities, or credits, as if he had been burned or marked as aforesaid.

(d) The 53 G. 3, c. 162, enacts, that so much of the 52 G. 3, c. 44, s. 47, as enacts, that in all cases where any Court shall think fit to sentence any person convicted before such Court of felony without benefit of clergy, to imprisonment as or for the punishment or part of the punishment for such offence, such Court may, if they shall think fit so to do, moreover direct, that the person so convicted during such imprisonment be kept to hard labour; shall be and the same is thereby repealed, &c., and that from and after the passing of this act, it shall and may be lawful for any Court to pass upon any person who shall be lawfully convicted before any such Court of felony with benefit of clergy, or of any grand larceny, or of any petit larceny, the sentence of imprisonment to hard labour, either simply and alone, or in addition to any other sentence which such Court may or shall be authorized by law to pass upon any person lawfully convicted of any of the offences aforesaid, as to such Court shall seem fit, and such person shall thereupon suffer such other sentence, and be moreover imprisoned and kept to hard labour, or be simply imprisoned and kept to hard labour, in such place and for such time as such Court shall think fit to direct, not exceeding the time for which such Courts may now imprison for such offences.

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