1785.

FIELD'S CASE.

Act of Parliament is not described by the charge in the indictment, that he transposed four sixpenny stamps only.

THIRDLY, The only evidence to affect the prisoner is his selling the writs to Mr. Fryer; but the statute is silent as to uttering, vending, or exposing to sale: and in so penal a case as this, it would violate all the known rules of construction to say, that this sale was made with an intent to use the stamp in the manner which the Act describes.

THESE objections were answered by the Counsel for the Crown; and the learned Judge left it with the Jury to consider, First, Whether the bill of Middlesex against Higgins was ever legally stamped? Secondly, If it was, whether the prisoner ever took off that stamp? Thirdly, If he did, whether he took it off with intention to use it on a bill of Middlesex or a latitat? And fourthly, If they thought the prisoner guilty, whether he took the stamp off and sold it with intention that it should be used by himself or others, for the purposes stated in the indictment?

THE Jury found the prisoner guilty; that "he took off the stamp from the bill of Middlesex mentioned in the indictment, and affixed it to a piece of parchment, purporting to be another process of the same kind, which he sold with others to Fryer, with intent that the same should be used by such persons as should purchase the same, but not with intent of using it himself.”

On this verdict the judgment was arrested; and the prisoner, after laying a long time in gaol, was at length discharged.

CASE CLXXXI.

THE KING against LOCKHART.

A person who OLD BAILEY June Session 1785. The prisoner was in

is discovered

(though by

means of an improper confession) to

have pur

dicted for stealing a number of diamonds and pearls, the

property of Ewen Bailey, Esq. in the dwelling-house of Narcissa Mascall,

chased stolen property, is a competent witness to prove that fact. See 2 East, 658.

THE prisoner had made a full confession of the fact, by which it was discovered that part of the property had been disposed of to a Mr. Grant; and the Counsel for the prosecution called Mr. Grant as a witness to prove that he had received the property from the prisoner.

BUT the confession having been obtained by such promises of favour as rendered it inadmissible evidence; it was contended, that as the discovery of Mr. Grant resulted from the illegal confession which had been obtained from the prisoner, he, Mr. Grant, was not a competent witness.

1785.

LOCKHART'S

CASE.

of Jane Wa

BUT the COURT said, that the law was clearly settled, that See the Case although a confession improperly obtained cannot be given rickshall, ante in evidence, yet it can never go to the rejection of the evi- page 263, dence of other witnesses, which are got at in consequence of such a confession.

Case 131.

THE KING against RICHARDSON AND ANOTHER.

CASE CLXXXII,

AT the Old Bailey in June Session 1785, Daniel Richard- If two men are indicted, son and Samuel Greenow were indicted before MR. JUSTICE and one of BULLER for a highway robbery on John Billings.

them appear to be innocent

tify them respectively,

both must be acquitted.

Ir åppeared in evidence, that the two prisoners accosted and the other guilty, but the the prosecutor as he was walking along the street, by asking prosecutor him, in a peremptory manner, what money he had in his cannot idenpocket? that upon his replying that he had only two-pence half-penny, one of the prisoners immediately said to the other, "If he really has no more do not take that," and turned as if with an intention to go away; but the other prisoner stopped the prosecutor, and robbed him of the twopence half-penny, which was all the money he had about him. But the prosecutor could not ascertain which of them it was that had used this expression, nor which of them had taken the half-pence from his pocket.

THE COURT. The point of law goes to the acquittal of both the prisoners; for if two men assault another with intent to rob him, and one of them, before any demand of

1785.

RICHARD

SON'S CASE.

money, or offer to take it be made, repent of what he is doing, and desist from the prosecution of such intent, he cannot be involved in the guilt of his companion who afterwards takes the money; for he changed his evil intention before the act, which completes the offence, was committed. That prisoner therefore, whichever of the two it was who thus desisted, cannot be guilty of the present charge; and the prosecutor cannot ascertain who it was that took the property. One of them is certainly guilty, but which of them personally does not appear. It is like the Ipswich Case, where five men were indicted for murder; and it appeared, on a special verdict, that it was murder in one, but not in the other four; but it did not appear which of the five had given the blow which caused the death, and the Court thereupon said, that as the man could not be clearly and positively ascertained, all of them must be discharged.

THE two prisoners were accordingly acquitted.

CASE CLXXXIII.

If a loaded

pistol be fired

from the land at a distance

water one

THE KING against george cOOMBES.

AT the Admiralty Session held at the Old Bailey in the month of June 1785, George Coombes, who was indicted with William Perrot, Jonathan Edwards, Edward Voss, and of one hundred yards three others, was found guilty on an indictment which from the sea, charged, That they, on the 15th July 1784, with force and and a man is maliciously arms, upon the high sea, within the jurisdiction of the Adkilled in the miralty of England, about the distance of half a mile from hundred yards Christ Church harbour, in the county of Southampton, in and upon William Allen, feloniously, wilfully, and of their shore, the offender shall malice aforethought, did make an assault; and that the said be tried by the Admiralty William Perrot, a certain gun, charged with gunpowder and Jurisdiction; one leaden bullet, did discharge and shoot off against and for the offence is committed upon him, the said William Allen, &c. thereby giving him, the said William Allen, one mortal wound, &c. upon the pens, and not at the place from whence the cause of the death proceeds. S. C. 1 East,

from the

where the death hap

867.

1785.

CASE.

tute 43 Geo.

high sea aforesaid, within the jurisdiction aforesaid, of which said mortal wound he, the said William Allen, afterwards died. AND that the said Jonathan Edwards, George Coombes, COOMBES'S &c. at the time of committing the felony and murder aforesaid, then and there, upon the high sea aforesaid, within the jurisdiction aforesaid, feloniously, wilfully, and of their See the stamalice aforethought, were present, aiding, abetting, com- III. c. 113. forting, assisting, and maintaining the said William Perrot s. 5. as to the trial of accesto kill and murder the said William Allen in manner and saries before form aforesaid; and so the Jurors say, the said Jonathan the fact. Edwards, George Coombes, &c. then and there upon the high seas aforesaid, within the jurisdiction aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder the said William Allen.

It appeared in evidence, that the prisoners were supposed smugglers belonging to two luggers which lay in Christ Church harbour. The deceased was master of his Majesty's sloop The Orestes. On the afternoon of the 15th July 1784, William Allen, not being able to get into the harbour with The Orestes, manned his boat for the purpose of seizing the smuggling luggers, but in rowing into the harbour they struck upon a sand-bank opposite to the house of one Sellon. Perrot, Coombes, and the other prisoners quitted the luggers, ran on shore with loaded muskets in their hands, concealed themselves behind a wall near Sellon's house, and from thence fired at the King's boat, as they were pushing her from the sand-bank, by which firing Allen, who was on board the boat, was killed. The sand-bank was in the sea, about one hundred yards from the shore; and Sellon's house was about two hundred yards, or more, from the sea.

UPON this evidence the prisoner Coombes was found Guilty, but several points were raised in his favour, and it was the inclination of his Counsel to have a special verdict: but it was at length agreed to take a case; and the questions reserved were afterwards appointed to be argued before ALL THE JUDGES OF ENGLAND in the Exchequer Chamber.

THE Questions were, Whether, under the circumstances 1 Shower

339.

1785.

COOMBES'S

CASE.

of this case, the prisoner had been properly tried by the Admiralty Jurisdiction? or, Whether he ought not to have been tried by the Common Law?

THIS case was argued by Counsel twice; first, on the 24th November 1785, in the Exchequer Chamber, and afterwards on the 20th January 1786, at Serjeants'-Inn, before all the JUDGES, except LORD LOUGHBOROUGH; and they were of opinion, that the prisoner was tried by a competent jurisdiction.

MR. JUSTICE WILLES delivered this opinion on the following day, at the Old Bailey, before SIR JAMES MARRIOT, Judge of the Admiralty Court, who pronounced sentence of death upon the prisoner; and he was executed pursuant to the sentence.

CASE

CLXXXIV.

person who is

and receives

THE KING against AICKLES.

Old Bailey September Session 1785.

Qu.Whether a JOHN HENRY AICKLES had been convicted in Januconvicted of ary Session 1784, of simple grand larceny; and in the July a single felony, Session following, received judgment of transportation to America, for seven years: but in consequence of strong injudgment of transportation tercession in his favour, he afterwards received his Majesty's to America, but is pardon- pardon, "on condition of transporting himself beyond the 66 seas for the same term of years, within fourteen days from "the day of his discharge, and of giving security to the self, and giv-satisfaction of the RECORDER so to do (a).” He gave the ing security

ed on condition of transporting him

so to do, can be convicted of the capital felony, or ought to be remitted to his former sentence on his

(a) One of the points made by MR. GARROW for the prisoner was, that the several statutes upon this subject would not authorize a conviction for a capital offence. By 6 Geo. I. c. 23. if any felon ordered to be transported to America, shall be afterwards at large within Great Britain without some lawful excuse, before his term is expired, he is guilty of a breaking the capital offence. By 16 Geo. II. c. 15. persons convicted of single felonies, subsequent con- and ordered to be transported to America, who shall have agreed on cerditions on which the tain conditions to transport themselves to America, are also guilty of a capital offence, if they are afterwards illegally at large. By 8 Geo. III.

pardon was granted?