the points upon both counts of the indictment for the consideration of the Judges.

In Michaelmas Term, 1825, THE JUDGES met, and considered this case; and were of opinion that the second count was supported, and not the first, a removal whilst alive being essential to constitute larceny; and nine of THE JUDGES held, that the offence of intending to steal a part was part of the offence of intending to steal the whole, and that the statute meant to make it immaterial whether the intent applied to the whole, or only to part.

1825.

WILLIAMS'S

Case.

REX v. SAMUEL ROWLEY.

THE prisoner was tried before Mr. JUSTICE LITTLEDALE, at the summer assizes at Bridgewater in the year 1825, for perjury committed in giving evidence on the part of the defendant, in a cause of Gibbs V. Ford, which was tried at the preceding summer assizes for Somerset.

The evidence given by the prisoner related to an accident, alleged by the prisoner to have happened to the plaintiff in that cause, by his falling out of a gig

which was overturned.

The witness called on the indictment for perjury, to prove the evidence, which was given by the prisoner on the trial of the cause, stated, that he heard and attended to the evidence given by the prisoner, and that the prisoner swore that, &c. &c., what the prisoner swore on the former trial. The witness on the indictment afterwards said, that

he took no note of the evidence at the trial;

I 3

stating

that he

1825.

ROWLEY'S
Case.

was confident these were the words; that it was his duty to pay particular attention to the evidence, and he did so because he was clerk to the plaintiff's attorney; that he attended to the defence; that he had not mentioned all that the prisoner said; that no other evidence was given by the prisoner which qualified this; that he had stated all that was material to this inquiry; that he had mentioned all the evidence of the prisoner relative to this accident to the best of his recollection. The witness would not swear that he had stated all that fell from the prisoner, but he would swear that there was nothing said to qualify what he stated.

The counsel for the prisoner objected, that this was not sufficient proof of the evidence given by the pri soner on the former trial, and that the whole of the evidence given by the prisoner ought to have been proved; and that though the witness had said that he had stated all that related to the accident, and that it was not qualified by any thing else that the prisoner said, yet that was only the judgment of the witness; and that the whole of the evidence should be proved, that the Jury might judge whether any thing else which was said by the prisoner related to the subject; and they referred to 2 Chitty's Cri. Law, 312. who refers to the King v. Jones, Peake's N. P. C. 37., and to the King v. Dowling, ibid. 170.; and also stated that Lord Gifford had, in a cause tried before him as Recorder of Bristol, laid down the law to the same effect as Lord Kenyon.

The learned JUDGE thought, the evidence given by the witness was prima facie sufficient to prove that part of the indictment which stated what the prisoner swore on the former trial; and that if there was any any thing else material, sworn by the prisoner on

the former trial, the prisoner might prove it on his part.

No evidence was given on the part of the prisoner to vary this, and the prisoner was convicted, and the learned JUDGE passed sentence upon him of a year's imprisonment, as he had no doubt upon the point ; but he thought it right to submit the case to the consideration of THE JUDGES, as there seemed to be authorities the other way.

In Michaelmas Term, 1825, THE JUDGES met and considered this case; and held that the evidence was sufficient for the Jury; and they having found the defendant guilty, the conviction was right.

1825.

ROWLEY'S
Case.

REX v. MATTHEW KELLY.

1825.

for murder or

THE prisoner was tried before Mr. JUSTICE BAYLEY, In an indictat the summer assizes for the county of Lancaster in manslaughter, the year 1825, for the murder of John Warn; but the case upon the evidence was a clear case of manslaughter only.

The charge both upon the indictment and the inquisition, was, that the prisoner, with a certain piece of brick, which he then and there held in his right hand, struck and beat the deceased, thereby giving to him with the piece of brick aforesaid, one mortal wound and fracture, of which he died.

It appeared probable upon the evidence, not that the prisoner struck with the piece of brick, but that the prisoner struck with his fist, and that the deceased

when the

cause of death

is knocking a

person down with the fist

or other sub

upon a stone stance, and the mortal such stone or substance, the charge should be accordingly; a charge

wound is from

that the pri soner with a which he held in his right hand, gave and

stone, &c.

struck a mortal blow, will not be sufficient, especially if there be no statement that the prisoner knocked the deceased down on the ground,

1825

KELLY'S
Case.

fell from the blow upon the piece of brick, and that the fall upon the brick was the cause of the death. The Jury found that this was the case.

As neither the indictment nor the inquisition contained any charge of throwing the deceased down, the learned JUDGE inclined to think the evidence did not correspond with the charge; but as the point might arise again in a more serious case, he thought it desirable to submit it to the consideration of THE JUDGES, and made an order for bailing the prisoner.

In Michaelmas Term THE JUDGES met and considered this case, and were unanimously of opinion that the means of death were not truly stated, and a pardon as to that charge was recommended. (a)

1825.

the offence of

poison, or other noxious substance,

under 43 G. 3. c. 58. s. 1., some of the poison or noxious sub

REX v. WILLIAM CADMAN.

To constitute THE prisoner was tried before Mr. JUSTIce Jervis, administering acting for the Chief Justice Mr. WARREN, and also before Sir GIFFIN WILSON, Knight, the Chief Justice's deputy at the great sessions for the county of Montgomery, on the 8th of August, 1825, on an indictment founded on the 43 G. 3. c. 58., for having on the 1st of July, 6 G. 4., administered white arsenic and sulphate of copper to Elizabeth Davies, single woman, with applied to the intent to murder her, against the form of the statute. The indictment consisted of six counts; the three first of which stated, that the prisoner administered to and caused to be administered to and taken by the said Elizabeth Davies the said poison, which was

stance must be taken by or

person to

whom it is administered:

merely giving it, if no part

is taken or ap

plied, is not sufficient; but if any part is taken, it is not necessary that it should be swallowed.

(a) Rex v. Thompson, infra, p. 139.

differently described in the several counts; and the three last counts differed from the three first, only as far as is here material, in stating that the prisoner administered the said poison to the said Elizabeth Davies, omitting to state that he caused it to be administered to and taken by her.

The substance of the case was as follows:- The prosecutrix, Elizabeth Davies, had, in September 1823, a child by the prisoner, who had, contributed to its support till March 1825, when he ceased to do so, in consequence of which the prosecutrix went before two magistrates, to swear to the father of the child. The prosecutrix did not see the prisoner from that time till Sunday the 26th June, when he called her out of her bed about twelve o'clock at night, under pretence that he wanted to tell her that he would get the banns for their marriage put out to be published on the following Sunday, and he then gave her a small sweet cake, and five or six cherries, telling her to give them to the child, and not to let any one see them, and said that he would call again about the same hour on the following Friday, and desired that she would let him in when he knocked. She took the cake and cherries, and put them on a cupboard, by the side of her bed, until the following morning, when, observing something white like flour on the cherries, she put her tongue to one of them, and found that it tasted very nauseous, and as if it was salted; she also she also put her tongue to the cake, which was wet throughout, and found that it had the same bad taste; she therefore did not give them to the child, but immediately afterwards buried them in a dunghill.

On Friday the 1st of July, about twelve o'clock at night, the prisoner came again, according to his appointment, to the house of the prosecutrix, and after

1825.

CADMAN'S

Case.