1786. WYNNE'S fare, and said that he had only driven the coach two days. The parcel, however, was traced to the prisoner's possession, and it appeared that it had been opened and three yards taken off from the piece of calico. The prisoner on his defence acknowledged that he had driven the prosecutrix from Manchester-Buildings to the linendraper's, and back again, but he denied that she ever desired him to deliver the parcel to her servant. Upon this evidence he was convicted of FELONY, and received sentence of imprisonment for six months, by virtue of the statutes of 5 Anne, c. 6. and 19 Geo. III. c. 74. s. 3.-To this case may be added the Case of Rex v. Lamb, at the Old Bailey in the year 1694, where a gentleman left a trunk in a hackney-coach, and the coachman took and converted it to his own use, and it was held felony; for he must have known where he took up the gentleman and his trunk, and where he set him down, and therefore he ought to have restored it to him. 2 East, c. 16. s. 99. from the MS. of Mr. Serjeant Forster. CASE CXCII. A variance on the 13 between a THE KING against CHARLES LEE. OLD BAILEY May Session 1786. This was an indictGeo.III.c. 56. ment on the statutes 12 Geo. II. c. 26. s. 8. 31 Geo. II. c. 32. s. 14. 24 Geo. III. c. 53. s. 16 (a). for removing from one silver knee-buckle to another silver knee-buckle certain stamps, marks, and impressions; to wit, the King's head and the Lion rampant; with intent to defraud the King, against the statute, &c. Lion rampant and a Lion passant held fatal. ON producing the silver knee-buckle in evidence, it ap peared, that the mark was a Lion passant (b), instead of a Lion rampant; and THE COURT held the variance fatal. (a) See also 38 Geo. III. c. 69. and the 52 Geo. III. c. 149. s. s. by which last statute the transposing of silver stamps is made a capital offence. (b) The 12 Geo. II. c. 26. s. 5. forbids the selling of gold or silver wares until it is stamped with the marks of the Goldsmiths' Company, viz. the leopard's head, the lion passant, and a letter to denote the year, and the 24 Geo. III. c. 53. s. 5. requires on such wares the mark of the King's Head. 1786. THE KING against JAMES GASTINEAUX. CASE CXCIII. AT the Old Bailey in May Session 1786, James Gastineaux On an indictwas tried before MR. SERJEANT ADAIR, Recorder, on the ment for maliciously shootstatute of 9 Geo. I. c. 22. for wilfully and maliciously shoot- ing at another, ing at Robert Parry, in the dwelling-house of Joseph Gur-must be comney, with a loaded pistol, on the 3d May 1786. the offence mitted under such circum if death had stances, that, ensued, the homicide P. C. 412. 207. PARRY, servant to a brandy-merchant in Bishopsgate street, was ordered by his master to take five gallons of brandy to the house of Mr. Gurney, a publican. The pri- would be soner, an excise-officer, perceiving Parry passing with a five- murder. gallon keg along the street, near to Gurney's house, and See 1 East, imagining it to contain a seizable commodity, stopped Parry, 4 Black. Com. and desired to see the permit. Parry on his part insisted on seeing Gastineaux' deputation. A violent altercation arose between them, and they walked on quarrelling with and aggravating each other, until they reached Gurney's house. Parry refused to take the keg from his shoulder, and soon afterward a scuffle ensued between them, during which the brandy fell on the ground. The prisoner was at this time standing close to Parry, when some person cried out, Mind! mind! and the prisoner immediately fired the pistol at Parry; but it missed him, and wounded one of Gurney's servants. THE COURT. The offence charged in this indictment is described by the statute on which it is framed in very few and very clear words; which are, "that if any person or persons shall wilfully and maliciously shoot at any person in any dwelling-house or other place, he shall be adjudged guilty of felony, without benefit of clergy." The word maliciously is made to constitute the very essence of this crime; no act of shooting therefore will amount, under this statute, to a capital offence, unless it be accompanied with such circumstances as in construction of law would have amounted to the crime of MURDER, if death had ensued from such act. This proposition most clearly and unavoidably results from 1786. GASTI NEAUX'SCASE. the legal interpretation of the word maliciously, as applied to this subject; for there is no species of homicide in which malice forms any ingredient but that of murder (a); and it follows, that neither an accidental shooting, nor a shooting in the transport of passion, excited by such a degree of provocation as will reduce homicide to the offence of manslaughter, are within the meaning of the statute; for from both of these cases the law excludes every idea of malice. THE learned JUDGE then recapitulated all the circumstances of the evidence, and explained the nature of the several species of homicide, with the degrees of guilt annexed to each by the laws of England. THE JURY being of opinion, that if death had ensued from the act of shooting in the present case, it would have been a malicious homicide, they found the prisoner Guilty. (a) See the statute 43 Geo. III. c. 58. by which the offence of maliciously shooting at another is extended; but it is expressly enacted that the offence must amount to murder if death had ensued, to bring it within the penalties of the Act. CASE CXCIV. THE KING against WILLIAM HASLAM. A principal OLD BAILEY May Session 1786. The statute 22 Geo. felon is a com- III. c. 58. recites, that the pernicious practice of buying on the statute and receiving stolen goods had become a great evil, by rea petent witness 22 Geo. III. an accessary for receiving stolen goods. S. C. 2 East, 782. c. 58. against son of the difficulty of discovering the persons guilty of the same, and of the insufficiency of the laws in being for the punishment of such offenders; and therefore it enacts, "That in all cases whatsoever where any goods or chattels (except lead, iron, copper, brass, bell-metal, and solder,) shall have been feloniously taken or stolen, every person who shall buy or receive any such goods and chattels, knowing the same to have been so taken or stolen, shall be guilty of, and may be prosecuted for, a MISDEMEANOR, although the principal felon be not before convicted of the felony, and whether such felon be amenable to justice or not: and if the felony amount to grand larceny, or some greater offence, and the principal felon shall not have been convicted, such offender shall be exempted from being punished as an accessary, if the principal shall be afterwards convicted." Ar an adjourned Session held at the Guildhall of London on the 12th of June 1786, William Haslam was tried upon this statute for receiving a piece of printed callico, the property of Messrs. Eyre and Acton, he well knowing the same to have been stolen; the person who had stolen the same not having been convicted. RICHARD ROGERS, the principal felon, was produced as a witness. The question was, Whether the principal could, in this case, be legally admitted as a witness against the accessary? and the point was debated by SHEPHERD for the prisoner, and by SILVESTER for the Crown. : THE COURT received the evidence, and the Jury found the prisoner Guilty but the judgment was respited, and the case submitted to the consideration of the TWELVE JUDGES, who were unanimously of opinion, That a principal felon may be admitted as a witness against his accessary, under this Act of Parliament: and on the 6th January 1787, the prisoner was sentenced to pay a fine of five pounds, and to be imprisoned four years in the gaol of NEWGATE (a). (a) And at the Old Bailey in July Session 1786, on the trial of Hugh Price for stealing, and William Collins for knowingly receiving a quantity of paper, the property of Edward Cox, MR. JUSTICE HEATH said, "There is a determination lately made on the statute 22 Geo. III. c. 58. by the TWELVE JUDGES, that ought to be publicly known, viz. That the principal may be admitted as a witness against the accessary under this statute." And in Patram's Case, Bridgewater Summer Assizes 1787, before MR. JUSTICE GROSE, the principal, on a prosecution under 22 Geo. III. c. 58. was admitted a witness against the receiver, and approved before all the JUDGES, 2 East, C. L. 782. See also Jonathan Wild's Case, who was indicted as a receiver on 4 Geo. I. c. 11. and the principal felon was examined as a witness on the part of the Crown. 4 Bl. Com. 2 East, C. L. 770. 132. 1786. HASLAM'S CASE. 1786. CASE CXCV. THE KING against MAJOR SEMPLE. An indictment AT the Old Bailey in July Session 1786, J. G. Semple quashed be cause the ad- was put to the bar, to be arraigned on an indictment of lar dition was placed after the alias dictus, and not after the first name. 2 Inst. 669. Cro. Eliz. 583. Dyer, 88. Macnamara's Case, 1790, contra. Staund. 68. 2 Hale, 177. 2 Hawk. 328. ceny. THE indictment stated, "That James George Harrold, otherwise Semple, otherwise Kennedy, LABOURER, one chaise, called a post-chaise, of the value of fifty pounds, the goods and chattels of John Lycett, feloniously did steal, take, and carry away, &c." BEFORE the prisoner had pleaded (a), it was moved to quash the indictment on the ground of informality; the addition being placed after the alias dictus, and not after the first name. THE COURT, upon the authority of Staundforde, Hale, and Hawkins' Pleas of the Crown, directed the indictment to be quashed, and the prisoner to be detained till the next Session. (a) At the Old Bailey in September Session 1787, Joseph Hannam, otherwise Moore, late of the parish of St. Dunstan's, LABOURER, was tried for robbing Mary Delew. It was moved to quash the indictment on account of the addition being placed after the alias dictus and not after the first name. But the prisoner, on his arraignment, having pleaded to the indictment, the Court held, that although this would otherwise have been a clear and manifest error, yet that it was thereby cured. See also Cro. Jac. 482. and 610. CASE CXCVI. Obtaining a post-chaise by hiring, with a felonious intent to convert it to THE KING against JAMES GEORGE SEMPLE. AT the ensuing Session the prisoner, J. G. Semple, was again indicted for the same offence, before ADAIR, Recorder, present MR. JUSTICE Gould. the use of the hirer, is felony, although the contract of hiring was not for time. S. C. 2 East, 691. |