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other articles mentioned in the indictment, “of John Powell, then being in a lodging room in his dwelling house, let by contract by Elizabeth his wife" to the prisoner, to be used by him with the said lodging, against the statute, &c.
The stealing and the letting of the furnished lodging were proved as stated in the indictment, the letting being in fact by Elizabeth, after her marriage to John Powell, at which letting her husband was not present, but he afterwards agreed thereto.
It was objected that this was in law, the letting of the husband and should have been so laid and not as a letting by the wife (a), and therefore that the indictment was not proved, or if proved, that it was bad in arrest of judgment; especially as according to Ann Pope's case, 2 East. P. C. 587. S. C. 1 Leach. C. C. 336, 4th edit., it was held by ADAIR, Recorder, that the indictment must set forth by whom as well as to whom the goods or lodgings were let; and consequently it was urged, that it must state the contract correctly in that respect according to its operation in law.
The jury convicted the prisoner; but the learned Judge respited the judgment in order to take the opinion of the Judges whether the indictment was not sufficiently supported by the proof, and was not valid in law; and whether the allegation was not immaterial, and might not even be rejected on the principle of the doctrine of BULLER J. in Hickman's case, 2 East. P. C. 593. (b)
(a) Sec Pike's case, 2 Russ. 1298, 9.
(b) The prisoner stole lead from Hendon church, and was convicted on the 4 G. 2; one count stated the lead to be the property of the vicar, all the Judges held the conviction right, but many of them thought it would have been better to have described the lead as fixed to the church, without stating whose property it was. BULLER, J., thought, that charging it to be property was absurd and repugnant, property (in this respect) being only applicable to personal things; and that it should only be charged
Nota. The above statute of the 3 & 4 M. & W. in describing the offence takes no notice of the person by whom the goods or lodgings may have been let, as it does of the person to whom let; a difference not adverted to in the case of Ann Pope.
In Hilary Term, 1824, eleven of the Judges met and considered this case: they were inclined to think it was unnecessary to state by whom the lodging was let, and they were unanimously of opinion that the letting might be stated either according to the fact or the legal operation.
REX v. JAMES WHITNEY.
Asses are “ cattle" within the meaning of the 9 G. 1, c. 22. See 4 G. 4, c. 54, s. 2. (a)
THE prisoner was tried before RICHARDS, Ld. C. B. at the summer assizes for the county of Northampton, in the year 1823, and convicted upon the following indictment. The indictment charged "that he, James Whitney, certain cattle, to wit, two asses of the price of 17. 10s. of the goods and chattels of Robert Jeffery, then and there feloniously, wilfully, maliciously, and unlawfully
to be lead affixed to the church, or to a house belonging to such a person, and that the allegation as to property in this indictment should be rejected as surplusage.
(a) By the 4 G. 4, c. 54, s. 2, so much of the 9 G. 1, c. 22, as takes away clergy from persons killing and maiming cattle is repealed, except as to offences committed before the passing of that act, and enacts, that if any person shall unlawfully and designedly kill, maim, or wound any cattle, whether from malice conceived against the owner or otherwise, being thereof convicted, shall be adjudged guilty of felony, and shall be liable at the discretion of the Court, to be transported beyond the seas for life, or for such term not less than seven years as the Court shall adjudge, or to be imprisoned only, or to be imprisoned and kept to hard labour in the common gaol or house of correction for any term not exceeding seven years.
did maim and wound to the great damage of the said Robert Jeffery against the form of the statute and against the king's peace.
This indictment was framed on s. 1 of the 9 G. 1, c. 22, commonly called the Black Act. The words of that statute are (inter alia), "If any person or persons shall unlawfully and maliciously kill, maim, or wound, any cattle, &c." (a)
The jury found the prisoner guilty, but the learned Lord Chief Baron reserved the case for the consideration of the Judges on the following question.
Whether asses were cattle within the Black Act?
In Hilary term, 1824, eleven of the Judges met and considered the case: they held that asses were cattle within the meaning of the 9 G. 1, c. 22, (b) and that the conviction was therefore right.
(a) Though this enactment is now repealed by the 4 G. 4, c. 54, s. 2, the meaning of the word "cattle" is important under the provisions of the recent statute.
(b) Vide Rex v. Chapple, Russ. & Ry. C. C. R. 77, where the judges held that pigs were "cattle" within the meaning of the act.
REX v. DALE and Others.
Murder. Ast atement in the indictment that the prisoners "with certain stones" in and upon the deceased cast and threw, and that they with the said stones so cast and thrown struck the deceased, then and there giving him by the casting and throwing of the said stones a mortal wound, &c. sufficiently shows that the death was occasioned by stones which the prisoners threw.
THE prisoners were tried before CHARLES WARRen, Esq., Chief Justice of Chester, at the summer assizes for Chester, in the year 1823, upon the following indict
Cheshire. The jurors for our lord the king upon their oath present that Joseph Dale, late of, &c. labourer, John Platt, late of &c. labourer, and Charles Taylor, late of &c. labourer, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the 16th July, 4 G. 4, with force and arms, at Whaley aforesaid, in the county aforesaid, in and upon one William Wood in the peace, &c. then and there being, feloniously did make an assault, and that the said Joseph Dale, John Platt, and Charles Taylor, with certain stones of no value, which they the said Joseph Dale, John Platt, and Charles Taylor in their right hands then and there had and held, in and upon the back part of the head of him the said William Wood then and there feloniously, wilfully, and of their malice aforethought did cast and throw, and that the said Joseph Dale, John Platt and Charles Taylor with the stones aforesaid, so as aforesaid cast and thrown, the aforesaid William Wood in and upon the back part of the head of him the said William Wood then and there feloniously, wilfully, and of their malice aforethought did strike, penetrate, and wound, feloniously, wilfully, and of their malice aforethought,
then and there giving to the said William Wood, by the casting and throwing of the stones aforesaid in and upon the back part of the head of him the said William Wood one mortal wound, bruise, fracture, and contusion of the breadth of one inch and of the depth of half an inch, of which said mortal wound, bruise, fracture, and contusion, he the said William Wood then and there instantly died; and so the jurors aforesaid, upon their oath aforesaid, do say that the said Joseph Dale, John Platt, and Charles Taylor, him the said William Wood in the manner and by the means aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder, against the peace, &c.
On this indictment Joseph Dale was tried and convicted. Jones moved in arrest of judgment.
First. That after the words, "certain stones" there should have been a videlicet mentioning the number.
Secondly. That it was not expressed in what hand the stones were held by each.
Thirdly. The mode of causing the death was not properly stated.
Judgment was respited, and the above points reserved for the consideration of the Judges.
In Hilary Term, 1824, this case was argued in the Exchequer Chamber before eleven of the Judges, by D. F. Jones for the prisoners; J. Parke (who appeared for the Crown was not heard). The Judges were unanimously of opinion that the conviction was right. The Judges held that the cause of the death was sufficiently stated, it being clear the "stones," were what was cast and thrown at the deceased, and the word "with" might be rejected, or the words "cast and throw" might be considered as used as neuter verbs.