Littledale, J., and Holroyd, J., differed from the other Judges, and thought the indictment invalid*.

S. C. 2 R. & M. 97.

Kelly's Case.

LANCASTER Sum. Assizes, 1825.

Prisoner was charged with murder. The indict- Means of

death not

ment alleged, that he with a certain piece of brick, truly stated. 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. Upon the evidence, it appeared that the prisoner struck the deceased with his fist, and that, in consequence of the blow, the deceased fell upon a piece of brick, and that the fall upon the brick produced his death.

The indictment contained no allegation that the prisoner threw the deceased down.

The prisoner was convicted of manslaughter. But Bayley, J., being of opinion that the evidence did not support the charge, reserved the point for the consideration of the Judges, who were unanimously of opinion that the means of death were not truly stated. A pardon was recommended.

S. C. R. & M. C. C. 10.

'Vide Tremaine's Ent. 10; Staundf. 786; 4 Co. 40 b, 41; 3 Co. 120, 121 b, 122; Cro. Jac. 95; Starkie's Crim. Law, 375,380; Archb. Crim. Law, 211.

K

LANCASTER Sp. Assizes, 1826.

Cause of

death not

Henry Thompson's Case.

Prisoner was charged with murder.

The indicttruly stated. ment stated that prisoner assaulted the deceased, and struck and beat him on the head, and thereby then and there gave the deceased divers mortal blows and bruises, of which, &c., he died. It appeared in evidence, that the prisoner knocked the deceased down by a blow on the head, and that, by falling to the ground, the deceased received a mortal wound. It was not alleged, that the prisoner knocked the deceased to the ground, and that the mortal wound was produced by the fall.

Bayley, J., thought the case was essentially the same as that of Rex v. Kelly*. But he reserved the point for the consideration of the Judges, and in the mean time discharged the prisoner on his own recognizances.

The Judges were of opinion, that the cause of death was not truly stated, and a pardon was recommended.

* S. C. R. & M. C. C. 139.

LANCASTER

Sp. Assizes, 1830.

A party not cognizant of

Duffey's and Hunt's Case.

Prisoners were indicted for cutting with intent to

the intention disfigure, and do some grievous bodily harm.

of his compa

nion to com- It appeared in evidence, that the injury was done

mit murder,

is not liable,

though in his by one of them; and the question was, how far the

company, to

do an unlaw. other was cognizant of the intent and concurring in

ful act.

the act.

* Ante, p. 193.

Park, J., told the jury, that, "if three persons go out to commit a felony, and one of them, unknown to the other, puts a pistol in his pocket and commits a felony of another kind, such as murder, the two who did not concur in this second felony will not be guilty thereof, notwithstanding it happened while they were engaged with him in the felonious act for which they went out."

HORSE-STEALING.

Adam Armstrong's Case.

YORK Sum. Assize 8,

1823.

borrowed

The prisoner borrowed a pony from the prose- If a horse be cutor to ride a short distance and return, but he did

years

with a preconcerted design of stealing it, it is a felony.

case, 1 Leach, 212; Tannard's case, Id.

214, n; Major

not return, nor did he send the pony. Nine after, the prosecutor met the prisoner by accident See Pear on the Carlisle mail, and took him into custody. Per Holroyd, J.-"If the prisoner obtained the pony with a preconcerted fraudulent design in spect of stealing, it is a felony. If he did not do it with a fraudulent design originally, it is not a felony." Prisoner was convicted.

re

Semple's case, 1 Leach, C.C.

420 st. lit.

Larceny."

Hutchinson's Case.

Prisoner was indicted for horse-stealing.

YORK Sum. Assizes, 1828.

The Appropriating a horse which is

facts were as follow:-A little girl, from curiosity,

found stray

ing on the highway.

opened a stable-door, and a mare which happened to be in the stable immediately rushed out.

The prisoner found it straying in the public road and took possession of it; but there were no circumstances to shew that he did so with a felonious intent; and he was acquitted.

In the course of the trial, a doubt was suggested as to whether a person, appropriating a horse to his own use under such circumstances, could be guilty of a felony. Per Hullock, B.-"I will not say it would not be felony, I think it would."

CARSLLIE Sp. Assizes, 1829.

Horse stolen

in Durham,

Moses' and Another's Case.

Prisoners were indicted for horse-stealing. It ap

seen in pri- peared in evidence that the horse was stolen at Dar

soner's possession in Cumberland, and found

with him in Scotland,

where he was apprehended. See Rez v. Parkin, R. & M. C. C. 45.

lington, in the county of Durham; that the prisoner

was seen with it at Brampton, in the county of

Cumberland, and was apprehended with it at San-
quhar in Scotland.
The indictment was preferred
in Cumberland.

Hullock, B., was of opinion that it was a continuing felony, and that the possession in Cumberland was a stealing in Cumberland, sufficient to sustain the indictment.

Note.-Hullock, B., informed the bar that a person who had stolen goods in Dumfrieshire, in 1763, was tried at Carlisle for larceny, having been found with the goods in his possession in Cumberland.

But the Judges held, that it was not an offence by the common law of England*.

Spence's Case.

Prisoner was indicted for horse-stealing.

LANCASTER Sp. Assizes, 1829.

It ap- Obtaining a

horse under

hiring, is

peared in evidence that the prisoner came to prose- pretence of cutor's house, and asked him if he let horses out to stealing. See

hire, and if he could have one. The prosecutor answered, Yes! He had a little mare which he could have, and asked him what distance he was going. He replied to Stockport, a distance of between six and seven miles. The prosecutor then saddled and bridled the mare, and asked prisoner for his address. Prisoner wrote on a slate which prosecutor kept for that purpose, as follows:-" Mr. Pope, Cannon-street, 24." Prisoner then begged the prosecutor to accompany him to the Crown Inn, which he did, and then prisoner mounted the mare and rode away. Prosecutor did not know whether a person of the name of Pope lived in Cannon-street

or not.

Semble, that the original stealing not having been a felony cognizable by the common law, it could not be a continuing felony cognizable by that law; and non constat, that, by the law of Scotland, it was a felony at all; but, even if so, it was not cognizable here. See Rex v. George Prowes, 1 M. C. C. 349, (1832), where it was held, that, "if a larceny be committed out of the kingdom, though within the king's dominions, bringing the things stolen into this kingdom will not make it larceny here."

Armstrong's case, ante, p. 195.