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REG.

U. Ion.

1852.

Eridence.

that the prosecutor, James Dwyer, was a money lender, that one James Gillard had applied to him for a loan of money, and had proposed the prisoner as a surety for the amount; that, thereupon, the prosecutor proceeded to the house of the prisoner for the purpose of

satisfying himself as to the prisoner's responsibility, and, with this FurgeryUtering object, required the production of the prisoner’s receipts in respect

of that house; that the prisoner, with a view to causing the money to be advanced to Gillard, who was found to be a man of no responsibility, upon their joint security produced to Dwyer, and placed in his hands (but for the purpose of inspection only), three documents purporting to be receipts for poor rates in respect of the said house, one of which was the forged receipt in question. The prosecutor inspected these documents, the prisoner remaining present during such inspection. He then received back the documents from the prosecutor, and placed them upon a bill file. The foregoing facts comprised the uttering, disposing of, and putting off mentioned in the indictment.

It was objected upon the trial that these facts did not amount to an uttering, disposing of, or putting off sufficient to support the indictment. I, however, ruled the contrary; and, as the other necessary facts were proved to the satisfaction of the jury, they found the prisoner "guilty.” The jury also found, expressly in answer to a question put to them by me, that the prisoner placed the receipts in the hands of the prosecutor for the purpose of fraudulently inducing him to advance the money to Gillard. Considering it doubtful whether I was correct in my ruling, I have postponed judgment upon the indictment, and committed the prisoner to the gaol of Newgate in order that your lordships' opinion and decision might be taken upon a case to be stated ; and the foregoing is the case upon which your lordships' decision is requested.

This case had been previously argued, on the 24th January, before Jervis, C. J., Alderson, B., Coleridge, J., Wightman, J., and Cresswell, J., but they having expressed a wish that it should be re-discussed,

Metcalfe, for the prisoner, now contended that the conviction could not be sustained. There was no uttering, disposing of, and putting off within the meaning of 11 Geo. 4 & 1 Will. 4, c. 66, s. 10. The merely putting a document in the hands of a person for the purpose of inspection, was clearly neither a disposing of, nor a putting off: (R. v. Woolridge, 1 Leach, 344 ; R. v. Varley, 2 W. Bl. 682.) With respect to an uttering there must be an intent to put the instrument or coin into circulation : (R. v. Harris, 7 C. & P. 428.) There it was held that the engraving of a forged note, given to a person as a specimen of skill, could not be thereby taken to be uttered. R. v. Wavell (1 M. C. C. 224), established the same principle.

ALDERSON, B.—I do not see how you can utter a receipt except by showing it and declaring that it is one. It is not like coin or a bank note, which must be transferred to become available. A receipt is never intended to be parted with or transferred.

REG

Ion.

1852

Forgery-
Uttering
Evidence.

Metcalfe.-In Webster's Dictionary the word “utter” is defined to be “to put or send into circulation;" in Richardson's Dictionary it is “to put forth.” To constitute a sufficient uttering, there must be an intention to obtain money or credit upon the instrument itself. It cannot be pretended here that the money was advanced upon this document operating as a receipt. It was shown for a collateral purpose, viz., to induce a belief that the defendant was a respectable and responsible person : it was strictly to raise the character of the defendant in the mind of the prosecutor, and not for the purpose of directly obtaining money. In Reg. v. Shukard (R. & R. 200,) the prisoner was indicted under 13 Geo. 3, c. 79, for uttering a forged promissory note; and the evidence was that, in order to persuade an innkeeper that he was a man of substance, he showed him a pocket-book containing notes which were forged, and delivered it to him to take care of, and it was held that this was not sufficient as an uttering with intent to defraud, since there was no intention to get money or credit upon the notes. In Reg. v. Radford (1 Den. C. C. 59; S. C. 1 C. & K. 707), an alleged receipt was produced to a person who came to receive the amount which was the subject matter of it, and this was held evidence of an uttering with intent; but there, by the production of the instrument, the person producing it intended to get credit upon the instrument itself, by its operating as a receipt. That case differs in all essential particulars from this, in which there is no necessary connection between a receipt for rates and the advance of money to a third person.

Parry, for the prosecution.—To represent a forged instrument to be genuine, by producing it with intent to defraud, is an uttering within the meaning of the statute. The intent to defraud is a presumption of law wherever the facts are such that the natural consequence would be that a person would be defrauded. But here the intent to defraud is clear, and is found by the jury. Whether the money is to be obtained for the defendant himself or for any other person, is quite immaterial: it is sufficient that the prisoner intended that the prosecutor should part with money in consequence of the act which he committed. Reg. v. Shukard is quite distinguishable from this case. There the forged notes were produced out of mere bravado. It could scarcely be said that they were uttered, and there seems to have been no specific intent to obtain either money or credit. (He quoted R. v. Birkett, R. & R. 86; R. v. Cook, 8 C. & P. 582; and R. v. Welsh, 2 Den. C. C. 78; S. C., 20 L. J. 101, M. C.) Metcalfe replied.

Cur. adv. vult.

LORD CAMPBELL, C.J., in giving judgment.-- We are of opinion that this conviction ought to be affirmed. Upon consideration, there appears to us to have been an uttering of a forged receipt within the meaning of the 11 Geo. 4 & 1 Will. 4, c. 66, s. 10. If it had been used in the manner stated, for the direct purpose of gaining credit for the payment which it purports to vouch, there

REG.

lox.

1852.

Forgery-
Uttering-
Evidence.

can be no doubt, since the case of Reg. v. Radford, that there would have been a sufficient uttering. But the prisoner's counsel contended that there cannot be an uttering of a forged receipt unless it be used directly to get credit upon it by its operating as a receipt, so that the merely using this receipt for the purpose proved—to induce a belief that he had paid the money, and, therefore, was a man of substance, did not amount to an uttering within this act of Parliament. Reg. v. Shukard, which was mainly relied on for that distinction, does not seem to us to support it. That case is entitled to the highest respect, and on similar facts we shall submit to its authority; but the learned judges there did not proceed upon

the distinction that to make the using of a forged instrument a felonious uttering, the intention of the prisoner must be to get credit upon it by making it operate as such. They appear to have thought that there the evidence was not sufficient to show an intention in the prisoner to induce the prosecutor to advance anything or to obtain credit upon it. The doctrine supposed to be established by that decision is that, in order to make it an uttering, it should be parted with, or tendered, or used in some way to get money or credit upon it. The words “upon it” we consideras equivalent to "by means of it;" otherwise there could hardly be an uttering of Court Rolls and other instruments enumerated in the statute. In the present case it is expressly found that the prisoner placed the receipt in the hands of the prosecutor for the purpose of fraudulently inducing him to advance the money to Gillard. This was a using of the forged receipt to get money upon it, or by means of it, as much as if the prisoner himself had been the borrower of the money, and the receipt had purported that he had paid his rates, and the prosecutor had thereupon advanced him a sum of money and had been cheated out of that money by him. We, therefore, think the conviction was right, according to the decided cases, and, therefore, that it should be affirmed.

Conviction affirmed.
Parry for the prosecution.
Metcalfe for the prisoner.

CENTRAL CRIMINAL COURT.

JUNE SESSION, 1852.

June 18.

(Before the COMMON SERJEANT.)

Reg. v. JAMES. (a)

Practice Witness giving evidence without being sworn. On an indictment for felony, after the jury had delivered a verdict of guilty, it was discovered that one of the witnesses for the prosecution

had given his evidence without having been previously sworn. Held, that the proper course to pursue was, to direct the jury to recon

sider the case, dismissing from their minds the evidence of that parti

cular witness. THE THE prisoner was indicted for larceny, and the jury returned

a verdict of guilty. It was then discovered that one of the witnesses for the prosecution had given his evidence without having been previously sworn.

The Common Serjeant, after having consulted one of the learned judges in the adjoining court, stated that the proper course to pursue was to direct the jury again to deliberate upon the case, and entirely to dismiss from their consideration the evidence that had been given by the unsworn witness.

The jury again found the prisoner guilty.

(a) Reported by B. C. ROBINSON, Esq., Barrister-at-Law.

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(Beforc LEFROY, C. J., MONAHAN, C. J., CRAMPTON, J.,

MOORE, J., and GREENE, B.)

Reg. v. JOHN AHEARNE. (a)

Practice-Conspiracy to murder— Trial of one conspirator separately

Judgment.
One of several prisoners indicted for a conspiracy may be tried separately,

and, upon conviction, judgment may be passed on him, although the
others, who have appeared and pleaded, have not been tried. Rex v.
Cook and Others approved of, and the principle of that case applied to

the present cuse. Where three prisoners have been jointly indicted for a conspiracy to

murder, and severally pleaded not guilty, but have severed in their challenges, and the Crown has, consequently, proceeded to try one of

such prisoners : Held, that, upon conviction of such prisoner, judgment must follow,

although the others have not been tried, and that the possibility of the other prisoners being found not guilty (although such a verdict would be a ground for reversing the judgment), is not a sufficient reason for holding such judgment, and all the legal consequences of such conviction

of such prisoner, irregular. THE WHE following case was stated by Mr. Justice Moore, for the

opinion of the court:“ The prisoner, John Ahearne, was tried and convicted before me, at the Waterford Assizes, on a charge of conspiring to murder one James Troy, and which murder was effected on the 27th day of October last. The indictment charged that the prisoner, John Ahearne, Maurice Ahearne, and Patrick Power conspired with each other, and with others unknown, to murder the said James Troy.

“The three prisoners named in that indictment were in custody, and were arraigned, and severally pleaded not guilty ; but, having refused to join in their challenges, the counsel for the Crown said they would first put the prisoner, John Ahearne, on his trial, and he was accordingly given in charge to the jury sworn to try him.

(a) Reported by P. J. M.Kenxa, Esq., Barrister-at-Law.

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