1787. STERNE'S CASE. Beaufort; for if it were taken by the man in black, and handed over by him to the prisoner, as is usual in larcenies of this description, although the prisoner in that case is equally guilty of the common larceny with the person who actually took it, yet he cannot, in construction of law, be considered guilty of the privately stealing, because that particular species of guilt can only be fixed on the person who did the act; and the inference of law arising from the possession of the stolen property will be rebutted and destroyed. THE Jury, under these directions from the Court, retired for some time, and returned with a verdict of Not Guilty on the first count; Guilty of stealing, but not privately, on the second. THE prisoner was transported for seven years. CASE CCXVIII. THE KING against THOMAS DEAN. In what man- THE prisoner was indicted by the name of Thomas Dean ner a misnomer at the Old Bailey in September Session 1787, for putting off may be counterfeit money, contrary to the provisions of 8 and 9 Will. III. c. 26. s. 6. pleaded and tried, and a convict de. prived of his clergy by means of a counter-plea. ON being put to the bar to be arraigned, he pleaded by Counsel ore tenus, that his name was John and not Thomas Dean (a). THE Clerk of the Arraigns on behalf of the Crown replied, that he was as well known by the name of Thomas as by the name of John Dean; and upon this replication the issue was joined. THE Sheriff returned a Jury instanter to try this issue, and it was found for the Crown; upon which the prisoner pleaded over to the felony, Not Guilty. (a) A misnomer of a surname may also be pleaded to an indictment, as that he was always called and known by the surname Shakespeare and not by the surname Shakepear. 10 East's Term Rep. 83. He was immediately arraigned upon the indictment, and put upon his trial; and the Jury found him Guilty. ON being asked by the Clerk of Arraigns, what he had to say why judgment of death should not be passed upon him according to law, he prayed to be allowed the benefit of clergy. Against this plea the Counsel for the prosecution filed a counter-plea, which alleged that the prisoner was not entitled to the benefit of the statute, because it had been before allowed to him. THE COURT gave the prisoner time till the ensuing Session to frame a replication to this counterplea; but he died in Newgate in the intermediate time. 1787. DEAN'S CASE. THE KING against ANDREW REDMAN AND Others. AT the Old Bailey in September Session 1787, before MR. JUSTICE GROSE, John Cooper was indicted for grand larceny; AND Thomas Upton, Farrel Kernan, and Andrew Redman, were charged in the same indictment, on the statutes of 3 Will. and Mary, c. 9. s. 4. and 5 Ann. c. 31. s. 5. as accessaries after the fact. THE charge in the indictment against Andrew Redman was in these words: "And the Jurors, &c. do further present, that Andrew Redman, late of the parish of, &c. six cotton shirts, of the value of twenty-five shillings, being other part and parcel of the goods and chattels so aforesaid feloniously stolen, taken, and carried away, feloniously did receive and have (he the said Andrew Redman then and there well knowing the said goods and chattels to have feloniously stolen, taken, and carried away) against the form of the statute," &c. THE words of the statutes are, "That if any person or persons shall buy or receive any goods or chattels that shall be feloniously taken or stolen from any other person, knowing the same to be stolen, he or they shall be taken or deemed an accessary or accessaries to such felony after the fact," &c. CASE CCXIX. A bad indict made good by ment may be rejecting, as insensible and useless, such words as obstruct the sense of it. 2 Roll. Abr. 247. 1787. CASE. It was objected, before MR. SERJEANT ADAIR, Recorder, in arrest of judgment, that in that part of the indictment REDMAN'S which should have imputed to the accessary a knowledge of the felony before committed, the framers of it had used the present tense of the infinitive mood of the active auxiliary To HAVE, viz. “to have feloniously stolen," instead of the past time passive of the neuter verb TO BE, viz. " to have been feloniously stolen.” THE RECORDER upon this objection respited the judgment, and submitted the case to the opinion of the TWELVE JUDGES. İN October Session 1787, the prisoner was put to the bar, and informed by MR. JUSTICE HEATH, that upon mature consideration the JUDGES were of opinion, That the indictment might be supported by rejecting as insensible the words which obstruct the sense, viz. the words "to have;" and then the indictment would run thus, "the said Andrew Redman, then and there well knowing the said goods and chattels fe(1) See 4 Geo. loniously stolen, taken, and carried away (1).” 1. c. 11. THE prisoner upon this determination received sentence to be transported for the term of fourteen years, to commence from the time of his conviction. CASE CCXX. The practice of not calling upon a pri sonerto defend himself against THE KING against DURHAM AND CROWDER. OLD BAILEY December Session 1787, the prisoners were tried before MR. BARON PERRYN for burglary in the dwellinghouse of Hannah More, and stealing therein a great quantity the single un- of wearing-apparel. corroborated testimony of is rather a mat THE only evidence which affected the prisoners arose from an accomplice, the testimony of one Francis Fleming, a pawnbroker, who ter of discretion had been in the habit of receiving stolen goods for a series than a general of years, but who had impeached a great number of the prinrule of law; cipal offenders, and been bound over by the Justices of the Peace to give evidence against them as a witness for the with the Court and a prisoner may be con- testimony, if the Jury believe the witness. 1787. CROWDER'S THE prisoners' Counsel, by an examination of Fleming on the voir dire, endeavoured to prove him an accomplice in the burglary, in order to form an objection against the com- DURHAM AND petency of his evidence, on the ground that no previous testimony of the prisoners' guilt had been given, and that under such circumstances the uncorroborated testimony of an accomplice could not be received. BUT THE COURT said, that Fleming was to be considered rather as an accessary after the fact than as an accomplice in the fact: but even admitting that he had been an accomplice, the objection would only go to his credit, and not to his competency. This matter was determined by all the JUDGES on the first day of the present Michaelmas Term. MR. JUS- Atwood's TICE BULLER had tried a prisoner for felony, and he was con- Summer AsCase, at the victed on the evidence of the accomplice only: he referred sizes at Bridgewater, the case to the TWELVE JUDGES; and the TEN JUDGES who 1787. were present were unanimously of opinion, That the circum- Ante, p. 464. stance of his being an accomplice went to his credit only, and that his evidence might be left with the Jury, although it was entirely uncorroborated by any other testimony (1); and that (1) There was the practice of rejecting an unsupported accomplice, is rather this case that a matter of discretion with the Court than a rule of law. THE COURT accordingly told the Jury, that the case depended entirely on the evidence of Fleming; and after some deliberation, they found the prisoners GUILTY. THE matter was afterwards mentioned to the JUDGES, and the prisoners at the end of the Session received sentence of death (a). (a) At Old Bailey January Session 1784, Smith and Davis were tried for robbing George Hunter. During the night the prosecutor was attacked by four ruffians, whose persons he was unable to identify; but during the scuffle he had torn a piece of the coat which one of them had on, who, on being discovered by this mean, turned King's evidence and implicated the two prisoners. But the Court, though it was admitted as an established rule of law that the uncorroborated testimony of an accomplice is legal evidence, thought it too dangerous to suffer a conviction to take place under such unsupported testimony, and the prisoners were acquitted. Case 214. evidence in a felony had been com mitted. 1787. CASE CCXXI. A prisoner is not entitled is felony, not expressed THE KING against WYER. THE defendant was brought before the Court of King's Bench, in Michaelmas Term 1787, under a writ of Habeas Corpus, and prayed that he might be admitted to bail. On reading the return, it appeared that he had been committed on a charge of receiving part of the cargo belonging to a vessel in the river Thames, he well knowing the same to be stolen. IT is enacted by the statute 2 Geo. III. c. 28. s. 12. for preventing thefts and frauds by persons navigating boats on the river Thames, That every person who shall buy or receive any part of the cargo or loading of, or any goods, stores, or 28. Sed quare, things of or belonging to any ship or vessel in the river S. C. 2 East, Thames, knowing the same to be stolen or unlawfully come S. C. 2 Term by, or shall privately buy or receive any such goods, stores, Rep. 77. 2 Geo. III. c. 753, 754. or things, or any part of such cargo or loading by suffering any door, window, or shutter to be left open or unfastened between sun-setting and sun-rising for that purpose; or shall buy or receive the same at any time in any clandestine manner from any person or persons whomsoever, shall, being thereof convicted by due course of law (although the principal felon or felons has or have not been convicted of stealing or unlawfully procuring the same) be transported for fourteen years, according to the laws in force for the transportation of felons." FIELDING and GARROW for the prisoner contended that the offence described by the statute was a misdemeanor only, and not a felony; for that as the Legislature had not expressly enacted that it should be a felony, it could not be made so by construction and implication; and that the concluding words of the clause were merely explanatory of the time and manner of punishment, and not descriptive of the kind of. offence. SHEPHERD for the prosecution contended that the offence for which the prisoner was committed was felony, and therefore the Court would not admit him to bail. By the 3 and 4 |