A TREATISE

ON

CRIMES AND MISDEMEANORS.

BOOK THE FIRST.

OF PERSONS CAPABLE OF COMMITTING CRIMES, OF PRINCIPALS AND ACCESSORIES, AND OF INDICTABLE OFFENCES.

CHAPTER THE FIRST.

GENERAL PROVISIONS.

Rules for Interpretation of Criminal Statutes.

By the Interpretation Act, 1889 (52 & 53 Vict. c. 63), which repeals 7 & 8 Geo. 4, c. 28, s. 14, 'In this Act and in every Act passed after the year one thousand eight hundred and fifty, whether before or after the commencement of this Act, unless the contrary intention appears, words importing the masculine gender shall include females, and words in the singular shall include the plural, and words in the plural shall include the singular. The same rules shall be observed in the construction of every enactment relating to an offence punishable on indictment or on summary conviction when the enactment is contained in an Act passed in or before the year one thousand eight hundred and fifty.' By sec. 2, 'In the construction of every enactment relating to an offence punishable on indictment or on summary conviction, whether contained in an Act passed before or after the commencement of this Act, the expression "person" shall, unless the contrary intention appears, include a body corporate.

'Where, under any Act, whether passed before or after the commencement of this Act, any forfeiture or penalty is payable to a party aggrieved, it shall be payable to a body corporate in every case where that body is the party aggrieved.'

The expression 'month' means calendar month. (a)

(a) 52 & 53 Vict. c. 63, s. 3. A person sentenced to a month's imprisonment is entitled to be discharged on the day in the next month immediately preceding the day -1

VOL. I.

corresponding to the one on which his sentence takes effect. Migotti v. Colvill, 4 C. P. D. 233.

Vexatious Indictments Acts. (b)

No indictment for certain offences to be preferred without previous authorization. - By 22 & 23 Vict. c. 17, s. 1, no bill of indictment for any of the offences following; viz.,

Obtaining money or other property by false pretences,
Keeping a gambling house,

Keeping a disorderly house, and

Any indecent assault,

shall be presented to or found by any grand jury, unless the prosecutor or other person presenting such indictment has been bound by recognizance to prosecute or give evidence against the person accused of such offence, or unless the person accused has been committed to or detained in custody, or has been bound by recognizance to appear to answer to an indictment to be preferred against him for such offence, or unless such indictment for such offence, if charged to have been committed in England, be preferred by the direction or with the consent, in writing, of a judge of one of the superior courts of law at Westminster, or of Her Majesty's attorney-general or solicitor-general for England, or unless such indictment for such offence, if charged to have been committed in Ireland, be preferred by the direction or with the consent, in writing, of a judge of one of the superior courts of law in Dublin, or of Her Majesty's attorney-general or solicitor-general for Ireland, or (in the case of an indictment for perjury) by the direction of any court, judge, or public functionary authorized by an Act of the session holden in the fourteenth and fifteenth years of Her Majesty, chapter one hundred, to direct a prosecution for perjury.

Where prosecutor desires to prefer an indictment, justice to take his recognizance to prosecute. Sec. 2 provides that where any charge or complaint shall be made before any one or more of Her Majesty's justices of the peace that any person has committed any of the offences aforesaid within the jurisdiction of such justice, and such justice shall refuse to commit (d) or to bail the person charged with such offence to be tried for the same, then in case the prosecutor shall desire to prefer an indictment respecting the said offence, it shall be lawful for the said justice, and he is hereby required to take the recognizance of such prosecutor to prosecute the said charge or complaint, and to transmit such recognizance, information, and depositions, if any, to the court in which such indictment ought to be preferred, in

(b) See R. v. Heane, 33 L. J. M. C. 115. (c) By 32 & 33 Vict. c. 62 (The Debtors Act, 1869), s. 18, every misdemeanor under the second part of this Act shall be deemed to be an offence within and subject to the above Act, 22 & 23 Vict. c. 17; and when any person is charged with any such offence before any justice, he must take into consideration any evidence adduced before him tending to shew that the act charged was

not committed with a guilty intent. See vol. ii. By 44 & 45 Vict. c. 60, s. 6, 'Every libel or alleged libel and every offence under this Act shall be deemed to be an offence within and subject to the provisions' of 22 & 23 Vict. c. 17.

(d) Or dismisses the case for want of evidence. R. v. Lord Mayor of London, 16 Cox, C. C. 77.

the same manner as such justice would have done in case he had committed the person charged to be tried for such offence.(e)

It seems that this section is confined to offences committed in

England. (ƒ)

It is a matter for the discretion of the judge to whom the application is made, under sec. 1, to decide what materials ought to be before him, and it is not necessary to summon the party accused, or to bring him before the judge in any way. Therefore, where some time after the trial of an action, upon which perjury was alleged to have been committed, the accusing party appeared before the judge who tried the action, and, producing a newspaper report of the trial, applied for a consent to a prosecution being commenced, and the judge wrote upon the newspaper report, I consent to a prosecution in this case,' it was held, that he had rightly exercised the jurisdiction given by the above section.(g) Where an indictment contained two counts, one for obtaining a shawl by false pretences on the 26th September; and another for obtaining another shawl by false pretences on the 29th of the same month, and the prisoner had been only committed for obtaining the shawl on the 26th of September, it was held, on a case reserved, that the second count ought to have been quashed.(h)

Where three defendants were charged with a conspiracy before a justice and bound by recognizances to appear at the next session of the Central Criminal Court, to plead to such indictment as might be found against them in respect of such conspiracy; and the prosecutors and witnesses were in like manner bound to prosecute and give evidence; and at the next session of the court an indictment for conspiracy was found against them; but the trial was postponed, and the recognizances respited, till the next sessions; and before that session the solicitor-general directed an indictment to be preferred against another person for the same conspiracy; and at that session another indictment was found against all four defendants; it was held that the three first mentioned defendants were rightly tried, and convicted on the second indictment, as the 22 & 23 Vict. c. 17, had been sufficiently complied with, the second indictment being for the same conspiracy, with which those defendants had been charged before the magistrate; and that the indictment need not allege that they had been bound over by the magistrate.(i)

By 30 & 31 Vict. c. 35, after reciting that it is found that delay and inconvenience are frequently caused by the provisions contained in the first section of the Act 22 & 23 Vict. c. 17, in cases not within the mischief for remedy whereof the same Act was made and passed, and it is expedient to restrict the operation thereof, it is enacted:

Sec. 1. That the said provisions of the said first section of the said Act shall not extend or be applicable to prevent the present

(e) The 22 & 23 Vict. c. 17, s. 1, does not apply to the offence of attempting to obtain money or other property by false pretences.' R. v. Burton, 13 Cox, C. C. 71. The Act applies to prosecutions under the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69), see sec. 17, and to prosecutions under the Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28 s. 13).

(f) R. v. Heane, 33 L. J. M. C. 115.

(g) R. v. Bray, 32 L. J. M. C. 11; 3 B. & S. 255.

(h) R. v. Fuidge, 9 Cox, C. C. 430; 33 L. J. M. C. 74; L. & C. 390; R. v. Davies, ibid. note.

(i) R. v. Knowlden, 9 Cox, C. C. 483; 33 L. J. M. C. 219.

ment to or finding by a grand jury of any bill of indictment containing a count or counts for any of the offences mentioned in the said Act, if such count or counts be such as may now be lawfully joined with the rest of such bill of indictment, and if the same count or counts be founded (in the opinion of the court in or before which the same bill of indictment be preferred) (j) upon the facts or evidence disclosed (k) in any examinations or depositions taken before a justice of the peace, in the presence of the person accused or proposed to be accused by such bill of indictment, and transmitted or delivered to such court in due course of law; and nothing in the said Act shall extend or be applicable to prevent the presentment to or finding by a grand jury of any bill of indictment, if such bill be presented to the grand jury with the consent of the court in or before which the same may be preferred.

Costs of unreasonable prosecution. By sec. 2, whenever any bill of indictment shall be preferred to any grand jury under the provisions of the Act 22 & 23 Vict. c. 17, against any person who has not been committed to or detained in custody, or bound by recognizance to answer such indictment, and the person accused thereby shall be acquitted thereon, it shall be lawful for the court before which such indictment shall be tried, in its discretion to direct and order that the prosecutor or other person by or at whose instance such indictment shall have been preferred shall pay unto the accused person the just and reasonable costs, charges, and expenses of such accused person and his witnesses (if any) caused or occasioned by or consequent upon the preferring of such bill of indictment, to be taxed by the proper officer of the court; (7) and upon nonpayment of such costs, charges, and expenses within one calendar month after the date of such direction and order, it shall be lawful for any of the superior courts of law at Westminster, or any judge thereof, or for the justices and judges of the Central Criminal Court (if the bill of indictment has been preferred in that court), to issue against the person on whom such order is made such and the like writ or writs, process or processes, as may now be lawfully issued by any of the said superior courts for enforcing judgments thereof.

Offences committed near Boundaries of Counties and during a
Journey or Voyage.

Some general provisions have been made with respect to offences committed near the boundaries of counties, and during a journey through several counties.

Offences committed on boundaries of counties may be tried in either county. The 7 Geo. 4, c. 64, s. 12, for the more effectual prosecution of offences committed near the boundaries of counties, or partly in one county and partly in another, enacts, 'that where any felony

(j) The leave of the court is not a mere formality. See R. v. Bradlaugh, 15 Cox, C. C. 156.

(k) See R. v. Bell, 12 Cox, C. C. 37.

() As to the costs to be paid by the director of public prosecutions in such a case, see 42 & 43 Vict. c. 22, s. 7, and Stubbs v. Director of Public Prosecutions, 24 Q. B. D.