1785.

"head of him the said Samuel Gillham near his right tem"ple, giving to him the said Samuel Gillham then and there, "with the leaden bullet aforesaid, by means of shooting off TAYLOR AND "and discharging the said gun, so loaded, to, at, and against "the said Samuel Gillham, and by such striking, pene

66

66

trating, and wounding the said Samuel Gillham as afore"said, one mortal wound in and through the head of him "the said Samuel Gillham, of which said mortal wound the "said Samuel Gillham did then and there instantly die; and "that the said Alexander Shaw then and there feloniously, wilfully, and of his malice aforethought, was present, aiding, helping, abetting, comforting, assisting, and maintaining the said John Taylor in the felony and murder "aforesaid, in manner and form aforesaid, to do and com"mit: AND THE JURORS aforesaid, upon their oath afore"said, do say, that the said John Taylor and Alexander "Shaw him the said Samuel Gillham, in manner and form "aforesaid, feloniously, wilfully, and of their malice afore

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thought, did kill and murder, against the peace of our " said Lord the King, his crown and dignity."

THE JURY were of opinion, that the shot by which the deceased was killed was fired by the prisoner Alexander Shaw, whom they found Guilty, and acquitted John Taylor.

A MOTION was made in arrest of judgment, upon the ground, that this indictment charged the prisoner Taylor as a principal in the murder, and the other as aiding and assisting; and that as the principal was acquitted, he that aided and assisted ought to be acquitted also.

THE learned JUDGE thought the indictment was defective, and that there ought to have been a count charging Shaw with the murder.

THE sentence was thereupon respited, in order to take the opinion of the TWELVE JUDGES.

AT the Summer Assizes 1785, at Lewes, LORD MANSFIELD was the Judge on the Crown side; but he delivered no opinion on this case.

SHAW'S CASE.

ALL THE JUDGES, however, except BARON PERRYN, who

1785.

SHAW'S CASE.

was ill of the gout, did assemble to consider of this case; and a majority of them were of opinion, that the conviction TAYLOR AND was right; the indictment concluding that both the prisoners murdered Gillham, and the verdict finding that the prisoner Shaw did the fact. But no express determination was made on the case, MR. BARON PERRYN thinking, under all the circumstances, it was a proper case for a pardon (a). The prisoner, accordingly, received a free pardon soon after the Assizes, and he was discharged.

(a) On an appeal of murder, in which A. was charged as having given the stroke, and B. as having been present, aiding and abetting, it appeared in evidence that it was B. who gave the stroke, and that A. was present, aiding and abetting. It was contended that as A. did not give the stroke, he could not be convicted, although the Jurors had concluded, " And so they murdered the deceased." But the Court said there was no force in the objection; for that in this respect there was no difference between an indictment and an appeal; and that if an indictment charge one with having given the stroke, and another with having been present, aiding and abetting, they are both principally and equally guilty. Benson v. Offley, 2 Show, 510. 3 Mod. 121. and see the Coalheavers' Case, ante, page 64, Case 35, to the like effect. So in Wallis's Case, the indictment charged A. with having given the mortal blow, and Wallis and E. with having been present, assisting, aiding, and abetting A. therein. But it appeared that E. first drew his sword, and with divers others, to the number of forty persons, fell upon a party of constables in May-fair, and made an affray, which lasted an hour, and in the end one of the constables was killed, but by whose hand it did not appear. A. was tried on this indictment and acquitted, and afterwards Wallis was tried on it, and by HOLT, C. J. and other JUDGES, at the Old Bailey, 14th October 1703. Though the indictment be against Wallis for aiding, assisting, and abetting A. who was acquitted, yet the indictment and trial of Wallis is well enough; for who actually did the murder is not material: the matter is that a murder was committed, and the other is but a circumstance, and all are principals in this case: therefore if a murder be proved it is well enough. Salk. 334. See also 4 Co. 42. b. 2. Hawk. c. 23. s. 89. and the Case of Winifred and Thomas Gordon, Spring Assizes 1789, post.

1784.

THE KING against WILLIAM GREENIFF.

not

CASE CLXXVI.

An indictment for facilitating the escape of a prisoner contrary to the

16 Geo. II. s. 31. cannot be

maintained, if

lony.

THE indictment set forth, That on the 17th October 1784, Joseph Pasmore, a Constable of Saint Paul, Deptford, had the lawful charge of John Hill, a prisoner then in the custody of the said Pasmore, to convey him to the county gaol of Kent by virtue of a warrant of commitment for FELONY, being petit Larceny, expressed in the said warrant; that is to say, by virtue of a warrant of commitment under the hand the commitand seal of John Russel, Esq. a Justice of Peace, &c. dated ment of such prisoner was the 16th October 1784, directed to all and every Constable, only on sus&c. and to the Keeper of the Gaol at Maidstone, command-picion of feing them safely to convey and deliver into the custody of the said Keeper the said John Hill, being charged before the said Justice by oath of Sarah Channer, on a strong suspicion of burglary in the dwelling-house of John Tilton, at Greenwich, and stealing thereout two shirts, &c. and the said Keeper was required by the said warrant to receive, &c. the said John Hill ; that the prisoner Greeniff feloniously assaulted the said Pasmore as aforesaid, having the lawful charge, &c. by virtue of the said warrant of commitment, by means whereof the said Hill attempted to escape from the custody of Pasmore; and that the said prisoner Greeniff did feloniously aid and assist the said John Hill to attempt to make his escape from the custody of the said Pasmore, the Constable aforesaid, against the statute.

JOSEPH PASMORE produced and proved the warrant of the 16th October 1784, which corresponded with that set forth in the indictment. As to the fact it was fully proved, and the prisoner found Guilty.

BUT as the Act of Parliament 16 Geo. II. c. 31. which makes the felony, says, "treason or felony," not "petit lar"ceny," expressed in the warrant, the inclination of the learned Judge was, that this case, the warrant being only on suspicion of felony, was not a felony within the Act; he therefore respited the judgment, in order to lay the point before the Twelve Judges.

Ar the Summer Assizes 1785, at Maidstone, immediately after the Grand Jury were sworn, &c. the prisoner was put to the bar, and MR. BARON EYRE, the Judge who presided on the Crown side, stated to the prisoner the above case verbatim; and then observed, that as the statute uses the words treason or felony expressed in the warrant of commitment, doubts had arisen among the Judges, whether the warrant of commitment, having the words on suspicion of felony only in the body thereof, authorizes the above conviction to be right; and it was ruled by ALL THE JUDGES, that this case must be governed by that of Rex v. Walker at the Old Bailey in 1774 (1), which was an indictment upon the second section of the statute for supplying a prisoner with instruments, where the commitment had the words on suspicion; therefore it was unanimously determined a commitment on suspicion was not within the statute, and that the prisoner was intitled to his discharge: and he was immediately discharged, with an admonition from the Baron.

CASE CLXXVII.

though it is

66

THE KING agains! JOHN AND PATRICK WELSH.

A counterfeit AT the Lent Assizes for the County of Hartford, in the shilling produced in evi. year 1785, John Welsh and Patrick Welsh were indicted, for dence, althat they, on the 10th day of August 1785, at the parish of quite smooth, Hatfield, &c. " one piece of false, feigned, and counterfeited money and coin of the likeness and similitude of the good, "legal, and current money and silver coin of this realm, called cernible on it, a shilling, falsely and deceitfully, feloniously and traitorously an indictment" did forge, counterfeit and coin, against the form of the "statute in such case made and provided." There was a second count in like manner for coining a sixpence.

and no impression of any sort dis

will support

for counter

feiting to the
similitude of
the legal
coin, &c.

87, 164.

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It appeared in evidence, that every implement necessary S. C. 1 East, for coining shillings and sixpences was found under the floor of the room where the prisoners were apprehended; and one of the prisoners was found at work upon a piece of base metal. Several counterfeit shillings and sixpences were also found in the room, and in the prisoner's pockets, in a state fit for circulation; and it was proved, that some of the same

kind with those found had in fact been circulated. But no impression of any sort or kind was discernible upon those produced in evidence.

1785.

JOHN AND
PATRICK

WELSH'S

CASE.

HUNTER, the prisoner's Counsel, submitted to the Court, that this evidence did not support the indictment, because it 1 Hale, 148. had not been proved, that the supposed counterfeit shillings 215. and sixpences had any impression on them; and therefore 129. they were not counterfeited to the likeness and similitude of the good and legal coin of the realm.

MR. BARON PERRYN thought there was nothing substantial in the objection, and the Jury found the prisoners Guilty; but as Mr. Hunter pressed him to reserve the point, the judgment was respited, and the case referred to the consideration of the TWELVE JUDGES.

MR. BARON EYRE, at the subsequent Summer Assizes, without stating the reason upon which the Judges had formed their opinion on this case, delivered the result of their deliberations by shortly stating the case and declaring, that the Judges, under all the circumstances of it, were of opinion, that the conviction was right (a).

THE PRISONERS afterwards received sentence of death, and were executed pursuant to the sentence.

(a) The JUDGES were of opinion that it was a question of fact, whether the counterfeit monies were of the likeness and similitude of the lawful current silver coin, called a shilling. And the Jury having so found it, the want of an impression was immaterial; because from the impression being generally worn out or defaced, it was notorious that the currency of the genuine coin of that denomination was not thereby affected: the counterfeit therefore was perfect for circulation, and possibly might deceive the more readily from having no appearance of an impression; and in the deception the offence consists. S. C. 2 East, 164.-See Rex v. Varley, York Assizes 1771, ante, page 76, Case 42, Rex v. Wilson, Old Bailey October Session, 1783, ante, page 285, Case 139.

5. Bac. Abr.

129.