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Kelsey's Case.X

NEWCASTLE

Sp. Assizes, 1838.

Per Patteson, J.-"I think an approver should in what an

be confirmed, not only in some facts generally, but in some particularly, which affect the prisoner at the bar*."

approver

should be

confirmed.

303, 4, 5;

Robin's case,

Leach, C. C.

* It is laid down by high authority, that the jury may 1 Hale, P. C. convict upon the testimony of an accomplice alone without Attwood & confirmation, if they believe that he has spoken the truth; 1 Leach, C. C. but this is, to say the least of it, a dangerous doctrine, which 464; R. v. Durham & the practice of modern and better times has practically set Crowder, i at nought; for judges now-a-days invariably direct the jury 478. to acquit, unless such testimony is confirmed as to some material fact," the truth or falsehood of which goes to prove or disprove the offence charged against the prisoner."-Per Patteson, J., in Rex v. Addis, 6 C. & P. 388.

The admitting an accomplice as a witness at all is regarded Lord Mansfield, C. J. as a necessary evil; and it is never allowed but in cases where ante, 42, n. the main facts necessary to a conviction cannot be proved

without his testimony.

Fletcher &

others, Cent.

Cr. Ct., Nov. 1838, Alderson,

B., told the jury, that an it approver ought to be confirmed as

His general credit, therefore, being gone, the confirmation [In R. v. ought to be of such a character as to shew that he is speaking the truth as regards those particular facts. It is his only medium of credit, and it is particular and not general. Mere consistent evidence is not confirmatory evidence, only establishes that the accomplice may be speaking the truth; where, however, there are two pieces of evidence, each prisoners.] consistent when taken alone with the accomplice's testimony, but which would be inconsistent with each other if the accomplice's evidence were false, it follows, that if they be both true, the accomplice's testimony must be true also: and thus assuming them to be true, the truth of the accom

to each of the

ARSON.

CARLISLE Sum. Assizes, 1838.

What is a dwellinghouse at com

mon law.

M'Donald's Case.

The prisoner was charged upon the following indictment with arson.

The jurors &c. present, that W. M., late of &c., labourer, on the 20th day of July, in the 2nd year of the reign of our sovereign lady, Queen Victoria, with force and arms at Thornthwaite, in the county aforesaid, feloniously, unlawfully, and maliciously set fire to a certain dwelling

plice's testimony is negatively established. Confirmatory evidence necessarily varies in degree from mere consistent evidence down to proof positive. In some cases it is so strong as to be almost sufficient without any aid from that of the accomplice; but where it is so slight that, standing by itself, it would have no moral force, the testimony of an accomplice ought to be received with "a sober degree of jealousy and precaution."-EDIT.

"The acknowledged turpitude of the witness," (observes an enlightened commentator on our laws of evidence), "necessarily stamps his testimony with suspicion; and it is to be the more carefully watched since such a witness is under a strong temptation to substantiate the account which he has already given in the hope of a pardon, and is likely to suppose that his object will be gained by a conviction, and may be frustrated by an acquittal."-2 Starkie on Ev. 11. 2nd edit.

See, also, the judicious observations of Mr. Phillips in his learned work on the law of evidence.

house, a certain out-house, and a certain stack of turf, of one Isaac Walker, there situate, against the form &c., and against the peace &c.

The evidence was, that the dwelling-house and out-house were under the same roof, but there was no communication between them. The fire was kindled in the dwelling-house.

Alderson, B., held that this evidence was sufficient to sustain the charge of setting fire to a dwelling-house.

He observed, that the recent statute for amending the law of burglary, which determined what should be considered a dwelling-house, and what not, did not apply to arson*; that, under the old law, a breaking or entering into this outhouse in the night-time, would have sustained a charge of burglary †.

c. 29.

• 7 & 8 Geo. 4, c. 29, s. 13, enacts, "that no building, 7 & 8 G. 4, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed to be part of such dwelling-house for the purpose of burglary, unless there shall be a communication between such building and dwelling-house, either immediate or by means of a covered and inclosed passage, leading from the one to the other." See Somerville and others' case, post, tit. Burglary.

† At common law it was sufficient if the building adjoined the dwelling-house, and it appeared to the jury that it was occupied as parcel of the dwelling-house, although there was no common curtilage and inclosure, or internal communication (Brown's case, E. P. C. 493), such as a barn,

YORK Sum. Assizes, 1836.

A party struck

at, may strike

vent a repe

tition,

ASSAULT.

Anonymous.

Per Parke, B.-"If a party raise up a hand

again, to pre- against another, within a distance capable of the latter being struck, the other may strike in his own defence to prevent him; but he must not use a greater degree of violence than is necessary.

“Where a man strikes at another, within a distance capable of the latter being struck, nature prompts the party struck to resist it, and he is justified in using such a degree of force as will prevent a repetition *."

stable, cow-house, dairy-house, or the like, or a back-house, eight or nine yards distant from the dwelling-house, and connected only by pale extending between them: Castle's case, 1 Hale, 558: so held by all the judges (1665), 2 Starkie on Ev. 196; 4 Pl. Com. 225; see also Garland's case, 1 Leach, 145, and the cases there referred to.

* An indictment for an assault is supported by evidence of an attempt with force and violence to do a corporal hurt to another.

An indictment for a battery is sustained by evidence of the smallest injury done to the person of a man in an angry, rude, revengeful, or violent manner; (1 Hawkins, P. C. 62); or by spitting upon him: "This," said Holt, C. J., " is a battery; and though one cannot justify a battery by son assault demesne, yet he may give it in evidence upon a not guilty,' and he may be thereupon acquitted."-Rex v. Cotesworth, 6 Mod. 172.

ATTEMPTS.

Sinclair's Case.

YORK Sum. Assizes, 1837.

By the 9 Geo. 4, c. 31, s. 11, it is enacted, semble, that

in an indictment for an attempt to

necessary to

prove an

assault in fact.

"That if any person, unlawfully and maliciously, shall attempt to drown any person, with intent drown, it is to murder such person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof shall suffer death as a felon *."

But in order to make this a good justification, it seems that it ought to appear that the striking by the defendant was in his own defence, and was in proportion to the attack made; and that if A. gave B. a slight blow, it will not justify B. in maiming A., or in beating him violently and outrageously, and without a view to his own defence. 2 Starkie on Ev. 41, citing Cockroft v. Smith, 2 Salk. 642, where Holt, C. J., said "that for every assault he did not think it reasonable that a man should be banged with a cudgel; and that the meaning of the plea of son assault demesne was, that he struck in his own defence; that if A. strike B., and B. strike again, and they close immediately, and in the scuffle B. maims A., that is son assault demesne; but if, upon a little blow given by A. to B., B. give him a blow that maims him, that is not son assault demesne."

This enactment is repealed by 1 Vict. c. 85, s. 1; and by 1 Vict. c. 85. sect. 3, it is re-enacted; and the offence is made punishable by fifteen years' transportation, or imprisonment for not exceeding three years, with or without hard labour.

D

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