3rd. Have you already voted at this election?

Then follows-" And if any person shall wilfully make a false answer to any of the questions aforesaid, he shall be deemed guilty of a misdemeanour, and may be indicted and punished accordingly."

All the four first counts state, that the defendant, upon delivering in a voting-paper in the name of one John Holden, a burgess entitled to vote at the said election, was asked by the presiding officer (who was duly required by two competent burgesses to put them) the three questions, in the terms of the act of Parliament above set forth; and then the statement in all those four counts (that in truth being the statement of the offence) is in the same words, and as follows:-"to which questions (each of the two first) the defendant then and there falsely and fraudulently answered, 'I am."" But the words of the 34th section, as has been already shewn, are, "if any person shall wilfully make a false answer to any of the questions aforesaid, he shall be deemed guilty of a misdemeanour;" and the question is, whether the omission of the word "wilfully," in the said four first counts, vitiates those counts, and I am of opinion that it does. Now, Lord Coke, in his reading upon the statute of the 5th Eliz., the words of which are, "If any person shall wilfully and corruptly commit any manner of wilful perjury," mentions two cases, in which a statement that the thing was done "falsely and corruptly," without adding wilfully, was held to be vicious and insufficient (e). In the case of Rex v. Davis (ƒ), the indictment was upon the Black Act, which makes it felony for any person "wilfully and maliciously to shoot at another." The indictment charged, that the prisoner "unlawfully, maliciously, and feloniously did shoot at A. B.;" and was held ill, for the omission of the word "wilfully." In a note to the latter case, others are referred to, which are to the like effect.

(e) 3 Inst. 167. The cases are, Meller's case, 27 Eliz., and Anon.,

Mich., 29 & 30 Eliz.

(f) 2 Leach, 556.

So, also, is the language of the Judges in Cox's case (g), as to the importance of the word "wilfully" in the said statute of 5th Eliz. against perjury. Whether the words “falsely and fraudulently" be equivalent to "falsely and wilfully," is an inquiry into which I decline to enter. That the expression "wilful" is, in general, sufficiently significant, cannot be doubted, when it is recollected that the definition of murder by Hawkins is, "The wilful killing a man of malice aforethought," and, moreover, that "wilfully" is to be found, as well as "of malice aforethought," in every indictment for murder that I ever saw or heard of. But beyond all this, "wilfully to make a false answer to the questions" proposed is the definition of the offence by the Legislature itself; quod voluit dixit, and whether any other language must have the same meaning as that which I find used, cannot but be doubtful, and is a question which I am not able or willing to decide. That the words of the statute must be pursued, is a safe and certain rule; an inquiry whether other words bear the same meaning must be precarious and uncertain. I think, therefore, that, both upon principle and authority, these four first counts are defective. The two last counts, after stating the incorporation of the borough of Great Bolton, with most of the particulars contained in the four first counts, and referring to certain provisions in the 5 & 6 Will. 4, c. 76, which it is not necessary to set out, as no objection or question arises thereon, contain an allegation, that, on the 1st of November, in the ninth year of Queen Victoria, an election of two councillors for a certain ward in the said borough took place, and then state the offence. In this (the material) part both counts are the same, and to this effect: "that defendant, well knowing the premises, but intending deceitfully and fraudulently to contravene the said provisions of the said act of Parliament, and to prevent a fair election of councillors from taking place for

(g) 1 Leach, 82.

1846.

REGINA

v.

BENT.

1846.

REGINA

v.

BENT.

the said ward, and wrongfully and deceitfully wishing to make it appear that A. and B., who were then and there respectively candidates for the office of councillor of and for the said ward, were duly elected councillors thereof, on &c., at &c., at the election aforesaid for the said ward, falsely, fraudulently, deceitfully, and contrary to and in fraud of the provisions of the statute aforesaid in that behalf, did personate one John Holden, (the name of the said John Holden being then on the said burgess-roll of the said borough, and on the ward list of the said ward, which were then and there in force); and the defendant then and there, as and in the name of the said John Holden, did give his vote for the said A. and B., (then follow allegations negativing the identity of defendant with said John Holden, and the pretended qualifications of defendant to give him a right to vote), in contempt of the provisions of the said statute, in contempt of our said lady the Queen and her laws, to the evil example &c., against the form of the statute in such case made and provided, and against the peace" &c. And, first, with respect to the conclusion, "against the form of the statute," that may be disposed of at once, by observing, that there is no such offence as "false personation" (so described) in the act of Parliament, nor are the words "personation" or "personate" to be found in it. It is true, that wilfully giving a false answer to the three allowable questions has acquired the popular appellation of the "false personation" of a voter, but in the statute itself there is no language in any degree resembling that which has been used in describing the supposed offence contained in those two last counts. The question, therefore, arises, do these counts contain the description of an offence at common law? No case to maintain the affirmative was cited, nor is it believed that any such can be found. The precise case, indeed, is not very likely to have occurred, because, until the recent act, no election of councillors for a borough could have been held; but none in principle resembling it was produced. The

analogy is all the other way. In certain instances false personation, as of soldiers, sailors, and bail, for fraudulent purposes, is made an offence. And this case does not resemble one where a statute enjoins or prohibits some particular act, without any penalty being attached to the breach of its provisions; for the supposed offence intended to be described in those two last counts is expressly provided for by the said 34th section, upon which the four first counts are framed, but, as I have already said, in my opinion, defectively. The consequence is, that the judgment must be arrested."

Judgment arrested.

Brandt and Cross, for the prosecution.

Joseph Pollock, for the defendant.

[Attornies-J. Cross, and J. Gordon.]

1846.

REGINA

v.

BENT.

BEFORE R. B. ARMSTRONG, ESQ., Q. C.

REGINA V. BIRCH and HARDY.

ROBBERY.-The indictment charged, that the prisoners, on the 17th day of January, 1846, at Manchester, together, "in and upon one Charles Dailey, in the peace of God and our lady the Queen, did make an assault ;" and it then went on in the usual form to charge the prisoners with robbing him of a watch and watch-guard and twelve shillings, his property.

An indictment charged that A. and B. to

for robbery

gether as

saulted C., and

robbed him of

his watch. At the trial C. did

not appear, and there was no evidence of the

witness saw C. on the ground on the night in

The prisoners pleaded "not guilty ;" and, as the prose- felony; but a cutor, Charles Dailey, did not appear, the proof of the felony failed; but a witness was called who saw the pro- question, and

several persons

round him abusing him, and this witness saw A. strike C. The jury convicted A. of an assault, but said that they were not satisfied that A. had any intent to rob C. The fifteen Judges held the conviction right, and held that the 11th section of the stat. 1 Vict. c. 85, applies wherever the indictment charges an assault, and the jury, negativing the felony, find guilty of the assault : provided always, that the finding be in respect of that very same act which the Crown seeks to make felonious; identity being the question, and not the intention of the prisoner to commit a felony.

VOL. II.

N. P.

1846.

REGINA

v.

BIRCH.

secutor on the ground on the night in question, and several persons about him abusing him very much, and, among others, distinctly recognized the prisoner Birch, and saw him strike the prosecutor several times whilst he was so lying on the ground; but this witness could not identify the prisoner Hardy.

The jury found both prisoners not guilty of the felony, and found the prisoner Birch guilty of an assault, and acquitted the prisoner Hardy altogether (a).

Mr. ARMSTRONG asked the jury whether they found that the assault was with intent to rob; and they replied, that the evidence did not satisfy them on that point, and that they found the prisoner Birch guilty of a common assault.

Mr. ARMSTRONG having conferred with Mr. Justice Patteson, his Lordship reserved the case for the consideration of the fifteen Judges.

Joseph Pollock, for the prosecution.

Atkinson, for the prisoners.

THE case was afterwards considered by the Judges, who unanimously held the conviction right; and their Lordships also held, that the 11th section of the stat. 1 Vict. c. 85, applies wherever the indictment charges an assault, and the jury, negativing the felony, find guilty of the assault: provided always, that the finding be in respect of that very same act which the Crown seeks to make felonious; identity being the question, and not the intention of the prisoner to commit a felony; otherwise the statute would not apply in the ordinary case of wounding with intent &c.

(a) See the cases of Regina v. Ellis, 8 C. & P. 654, and Regina

v. Boden, antè, Vol. 1, p. 395, and the authorities there referred to.