ther, who lived at some distance, and that it was apparent to other women. No female was present at the delivery; one had been sent for at the commencement of the labour, about twelve at night, but was so ill she could not attend. There were no clothes prepared, or other provision made, but the parties were in a state of the most abject poverty and destitution.

The prisoners' counsel contended, upon the authority of Peat's Case, before the late Mr. JUSTICE HEATH, at Exeter; The King v. Higley, 4 Carr. and P. 366. and other cases which will be found in 1 Russell, 475., and Roscoe, 295, 296., that she could not, under these circumstances, be convicted of concealment; but it being doubted whether these cases would be now considered law, it was agreed that the opinion of the jury should be taken upon the fact, and if it should be adverse to the prisoner, the sentence should be respited, and the question reserved.

The jury found her guilty of endeavouring to conceal the birth. The questions for the opinion of THE JUDGES were,

1st, Whether there was evidence to convict her as a principal.

2dly, Whether, in point of law, the conviction was good.

This case was argued at a meeting of all THE JUDGES, except PARK J., in Michaelmas term, 1836, by

Clarkson for the prisoner.

The evidence of concealing the birth was not sufficient to have been left to the jury against the female prisoner. It is important to attend to the alteration of the terms used in the different acts of parliament relating to this subject. The 21 Jac. 1. c. 27. enacts, "that if any woman be delivered of any issue of her body, male or female, which being born alive should, by

481

1836.

DOUGLAS'S

Case.

1836.

DOUGLAS'S
Case.

the laws of this realm, be a bastard, and that she endeavour privately, either by drowning or secret burying, or any other way, either by herself or the procuring of others so to conceal the death thereof, she shall suffer death, as in case of murder," &c. The 43 G. 3. c. 58. repeals that act, and makes the offence to be, to endeavour, by secret burying or otherwise, to conceal the birth of the child. And in 9 G. 4. c. 31. s. 14., the words are, "shall by secret burying or otherwise disposing of the dead body of the said child, endeavour to conceal the birth thereof." If it appear that the attempt was to conceal the death, the birth not having been concealed, as the law stands now that is no offence. Here the whole evidence goes to shew that the birth was not concealed, and the act of the accomplice in burying the child, which undoubtedly may be taken to be the act of the prisoner, only goes to shew an endeavour to conceal the death. After the case of Rex v. Cornewall, Russ. & Ry. 336., it must be allowed that the knowledge and presence of an accomplice merely will not exonerate a party of the charge of concealing. But in that case the prisoner denied the birth. In this case the birth was never denied. The pregnancy was palpable; the mother was communicated with, and a neighbour sent for in the time of parturition. The evidence, therefore, applies only to an endeavour to conceal the death.

PARKE B. Must not the fact be taken that she secretly disposed of the body? If she did so, not from inability to procure Christian burial, but with intent to conceal one of the proofs of the birth, that would be evidence of the offence within the statute.

ALDERSON B. It is impossible to contend there is not some evidence, however slight, and if so, how can we set aside the verdict of the jury? That would be converting this into a court for granting new trials

in criminal cases-a practice which I, for one, will protest against.

Clarkson was proceeding in his argument, when LORD DENMAN C. J., after communicating privately with the other JUDGES, stopped him.

THE JUDGES were of opinion that the communication made to other persons was only evidence but no bar, and that the conviction was good; but they recommended a pardon.

1836.

DOUGLAS'S
Case.

REX v. PETER MARTIN.

THIS was an indictment tried before Mr. JUSTICE A count in PATTESON at the Summer assizes, 1836, for Glouces- forgery setting tershire.

The 2d count charged the prisoner with uttering (knowing it to be forged) the following acquittance

for money, viz. :—

out as an ac

quitance an invoice of

goods sold settled at the

with the word

foot and signed with a name in full is good,

May 4. Mr. Martin,-Bought of Laing and Son, without any "Wholesale Druggists, Bristol.

"6 Quarts of settledated striking acid.

"Settled £4:0:0.

Saml. Hughes Welsh."

averment of the meaning of the word

settled.

A count char-
ing a forged
ging the utter-
receipt simply
is good.
If a person
gives his em-
ployer a forged

The 4th count was for uttering a forged receipt for 41., with like intent (not setting out the instrument). The prisoner was the manager of a tanning business in Gloucester, belonging to Miss Elizabeth Welsh, which she had been induced to purchase by the re- receipt for presentations of the prisoner, that he could conduct intent to make it for her so as to yield her a good profit, and main- believe that the employer tain himself and his family. He was her servant, at money already weekly wages. She knew nothing whatever of the been applied

money with

obtained has

in a certain

way he is guilty of uttering, though there is no such person as that whose receipt it purports to be.

VOL. I.

K K

1836.

MARTIN'S
Case.

nature or conduct of the business, and trusted entirely to him.

It appeared that on the 3d of May the prisoner told Miss Welsh that the trade was bad, and that there was so much money going out, and so little coming in, that he was ashamed to ask for any, but if she would let him have 41. he could procure a liquid which would save a great deal of money in bark; that there was a person going to Bristol, and it could only be procured there or in London. She let him have the 41. On the 5th of May the prisoner gave her the document in question, and said it was the receipt for the essence he had purchased in Bristol.

The words in Italics were printed, the rest written. It was proved that no such firm as Laing and Son existed, nor any such person as Hughes, connected with any druggist at Bristol, nor any such article as settledated striking acid; and the document was proved to have been printed in Gloucester, the manuscript being taken to the printer by the prisoner's daughter, a child whom he called, and who swore that she was sent by a gentleman whom she did not know, in her father's presence. The handwriting to the receipt was not proved, so that the 1st and 3d counts (for forging) were not sustained. Several objections were taken by Busby and Graves for the prisoner.

1st, That there is no averment in the 2d count as to the meaning of the word " settled," for which they cited Rex v. Thompson, 2 Leach, 910., 2 Russ. 464., which was decided on the words of 2 G. 2. c. 25., being the same which are used in the present statute, 11 G. 2. and W. 4. c. 66. s. 10. They also said that the word "settled," if it means any thing, means a receipt, as was held in 2 Esp. 621., Spawforth, q. t. v. Alexander, on the Stamp Act, 35 G. 3. c. 55. s. 7. Now, as the legislature must be taken to mean

different things by "receipt" and "acquittance," it 1836. could not be an acquittance; but the Court cannot say it is a receipt, for want of an averment, according to Thompson's Case. They cited also Rex v. Barton, supra, 141.

2dly, That the 4th count did not cure the defect, for that count is framed on 2 & 3 W. 4. c. 123. s. 3., which enacts, that the document may be described in such a manner as would sustain a count for larceny ; it applies, therefore, to such things only as are the subjects of larceny. Now, a receipt is not the subject of larceny, either at common law or by the words of any statute.

3dly, They objected that there was no evidence of intent to defraud Miss Welsh; she had already parted with her money under a false representation, and the offence, if any, was that of obtaining money under false pretences. They distinguished Rex v. Sheppard, Russ. & Ry. 169., because there the money was given at the same time that the receipt was produced: here nothing was ever said about a receipt at the time of obtaining the money; and the giving it afterwards was the mere voluntary act of the prisoner, and could not in any way defraud Miss Welsh.

It was answered, that the prisoner was accountable to Miss Welsh for the application of the 41. to the purpose for which he had obtained it, and therefore that the forged receipt was part of the fraud.

The learned JUDGE was of that opinion, and told the jury that if they believed the prisoner to have uttered the forged receipt for the purpose of deceiving Miss Welsh into a belief that he had applied the 41. to the purpose for which he had obtained it, such purpose being a mere pretence and fraud, they might find him guilty of uttering it with intent to defraud her.

MARTIN'S
Case,