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only that the prisoner had been convicted of felony, were insufficient; and the prisoner was remitted to his former sentence.(d)
Where an indictment stated the condition upon which the royal mercy was extended to have been general, whereas it appeared not to have been general but specific, viz., that the prisoner should be transported to places specified, the variance was held to be fatal. (e)
Where the prisoner had received a pardon on condition of trans- Evidence of porting himself beyond the seas, within fourteen days from the the
prisoner's disday of his discharge, and it was incumbent on the prosecutor to charge. prove the precise day on which the prisoner was discharged, it was holden that the daily book of the prison, containing entries of the names of the criminals brought to the prison, and the times when they were discharged, though generally made from the information of the turnkeys, or from their endorsements on the backs of the warrants, was good evidence to prove the time of the prisoner's discharge. (w) And it was held, that though, if a convict on his trial for returning from transportation before his time was expired should confess the fact, and acknowledge that he is the man, the court would record such confession; yet, no such confession being made, it was necessary to produce the record of conviction, and give evidence of the prisoner's identity. (x)
When a convict was sentenced to transportation for seven Evidence of a years, and received a sign manual, promising him a pardon, “ on sign manual. “ condition of his giving a security to transport himself for that “ period within fourteen days," and upon his giving such security was discharged from prison, but neglected to trarsport himself within the fourteen days : it was holden that he could not be indicted for being unlawfully found at large before the term for which he had received sentence of transportation had expired, on the ground that such sign manual, and the recognizance entered into in consequence of it, were good evidence that he was lawfully at large; although he had not substantially performed the condition on which the promise of pardon was granted. (y)
(d) Rex v. Watson, Mich. T. 1821. and that though the king might reRuss. and Ry. 468.
voke his intended grace on account (e) Rex v. Fitzpatrick, Russ. and of this apparent fraud; yet, as he had Ry. 512.
not in fact revoked it, and as the (W) Aickle's case, I Leach 391, 392. prisoner had literally complied with
(*) I Hawk. P. C. c. 47. Return the condition, he ought not to have from Transportation, s. 21. The late been convicted upon an indictment statole, 5 Geo. 4. c. 84. s. 24. makes a for being found at large, without any certificate of the conviction, &c. suffi lawful cause, before the expiration of cient evidence. Ante, 398.
his term. With respect, however, to (y) Miller's case, i Hawk. P. C. c. a condition being considered precedent 47. Return from Transportatian, s. 22. or subsequent, it has been holden that Cas. C. L. 69. 1 Leach 74. 2 Blac. no precise technical words are requiK. 797. It appears that the Judges site for that purpose ; that it does not considered, that the sign manual was depend upon its being prior or posteimproperly worded by nuistake of the rior in the deed, but that it depends officer: that it should have heen, upon the nature of the contract, and * upon condition of the said Miller the acts to be performed by the par" transporting himself, &c. and of bis ties. Robinson v. Comyos, Cas. temp. "giving security to the satisfaction, Talb. 166. Hotham v. the East India ** &c." and not merely “ upon condi- Company, I T. R. 645. “ lion of his giving security, &c."
As to the of- In the last case, the prisoner was referred to his original senfender being to his tence of transportation, as not having performed the condition
+ original sen- upon which his pardon was to be granted; that is, he was partence of trans- doned on condition of transporting himself within fourteen portation.
days. (z) And in another case it was holden, that a prisoner con-
(2) Miller's case, I Leach 76. the court gave their opinion that, as
(a) Madan's case, Old Bailey, 1780. he had broken the condition of the 2 Leach 223. In 1 Hawk. P.C. c. 47. pardon, he remained in the same state Return from Transportation, s. 23 (re- in which he was at the time the parferring to Cas. C. L. 197 ) this case is don was granted, viz. under sentence cited as having decided that the pri- of death, with a respite of that sensoner was so referred back to his ori- tence during his majesty's pleasure. ginal sentence, on his being indicted The report further states, that after. for returning from transportation, wards it was submitted to the Judges, and acquitted. But in the report whether the prisoner would not have in Leach, it is said that no indictment been liable to suffer death without bewas ever preferred against the pri- nefit of clergy, if he had been indicted soner for the new fclony; but that, and convicted under a statute then being in custody, a notice was served existing, namely, the 8 G. 3. c. 15., or upon him to shew cause why execu- whether he had been properly referred tion should not be awarded against to his original sentence. No opinion him on his former sentence: that af- of the Judges is stated: but it apter this notice he was put to the bar, pears, that at the Old Bailey, April and his identity and the record of his Sess. 1782, the prisoner was informed former conviction proved ; and he not by the court that it was bis majesty's being prepared to prove the truth of pleasure that he should be transported certain facts alleged in his defence, to Africa for life.
and that it was not within another statute, namely, 19 G. 3. c. 74. because that act related only to pardons granted to offenders who had been convicted of felonies by which they were excluded from clergy.(d) In the last mentioned case, one point was clearly agreed upon, Poverty and
ill health namely, that as the prisoner had, at the time of his discharge, a amo
189, a amount to a real intention to quit the kingdom within the time, but had been lawful excuse prevented from carrying it into execution by the distress of for not having
quitted the poverty and ill health, these impediments amounted to a lawful Lin Excuse. (e)
(1) Aickles's case, Old Bailey, 1785. ed beyond the seas. But he thought, cor. Gould, J., Hotham, B., and Adair, that when the condition of the king's Recorder. The Recorder thought, pardon was broken, the pardon was that the indictment was perfectly sup- gone. There being, however, a difported under the clause of the 16 G. ference of opinion, it was intended to 2. c. 15. adopted by 19 G. 3. c. 74. have submitted the case to the opinion which made it a capital felony to be of the twelve Judges, if the prisoner found at large in Great Britain within had been found guilty. the term for which a convict, who was (e) Aickles's case, I Leach 396.; and liable to be transported to America, sce Thorpe's case, id. ibid. note (a). had received sentence to be transport
CHAPTER THE THIRTY-SIXTH.
person for busin but a person guiltyted for it at comes of the ca
sorteo Cards, dice; soned acceence. (a) Wisance
Playing at It seems that by the common law, the playing at cards, dice, &c., cards, &c. as when practised innocently and as a recreation, the better to fit a a recreation,
For moorde person for business, is not at all unlawful, nor punishable as any rate sums, is sort of offence : but a person guilty of cheating, as by playing with not any of- false cards, dice, &c. may be indicted for it at common law, and fence. But otherwise as
fined and imprisoned according to the circumstances of the case, to gaming.
and heinousness of the offence. (u) We have seen that common gaming-houses are considered as nuisances in the eye of the law; (b) and that lotteries have been declared to be public nuisances, except as they may have been authorized by parliament.(c) And when the playing is, from the magnitude of the stake, excessive, and such as is now commonly understood by the term gaming, it is considered by the law as an offence, being in its consequences most mischievous to society. In most cases, however, the party is subjected only to pecuniary penalties, recoverable by information, or by summary or civil proceedings : but some offences may be mentioned, which, by statutable enact
ments, may be prosecuted by indictment.(d) 9 Ann. c. 14. The statute 9 Ann. c. 14. s. 5. enacts, that any person who shall s. 5. Persons at any time or sitting, by playing at cards, dice, tables, or other losing 101. at
game or games whatsoever, or by betting on the sides or hands of a sitting may sue for it a such as do play at any of these games, lose to any one or more gain; and if person or persons so playing or betting in the whole the sum or the loser does
value of ten pounds, and shall pay the same, or any part thereof, not sue, any other person he may sue for it again within three months, and recover it, with may recover costs, by action of debt; and in case the loser shall not bona fide the same, and treble the va
sue, any other person may sue for and recover the same, and treble lue.
the value thereof, with costs of suit, against the winner. (e) The
(a) 3 Bac. Abr. Gaming (A) 2 Roll. (d) As to the penalties imposed upon Abr. 78,
persons gaming. or keeping gaming (0) Ante, 299.
houses, &c. and the proceedings for (c) Ante, 304. And a late statute the recovery of them, sec 1 Hawk P.C. 42 Geo. 3. c. 119. declares all games c. 92. 3 Bac. Abr. Gaming. 2 Burn. or lotteries, called Little Goes, to be Just. Gaming. 4 Blac. Com, 172, 173, public nuisances, and provides for 174, and the notes (10) (11), and the their suppression; and also imposes statutes 2 Geo. 2. c. 28. 12 Geo. 2. heavy penalties upon persons keeping c. 28. 25 Gco. 2. c. 36. s. 5. and 16 offices, &c. not authorized by parlia. Car. 2. c. 7. ment.
(e) S. 2.
statute then further enacts, that “ if any person or persons what- Any person by
deceit, &c. “ soever do or shall, by any fraud or shift, cousenage, circumven
winning any “ tion, deceit, or unlawful device, or ill practice whatsoever, in monies, &c. “ playing at or with cards, dice, or any the games aforesaid, or in or at any one or by bearing a share or part in the stakes, wages, or adven
ning above “ tures, or in or by betting on the sides or hands of such as do or 101. shall for “ shall play as aforesaid, win, obtain, or acquire to him or them- feit five times
the value, and, “ selves, or to any other or others, any sum or sums of money, or in “ other valuable thing or things whatsoever, or shall at any one ill practice be “ time or sitting win of any one or more person or persons what- deemed infa“ soever, above the sum or value of ten pounds, that then every
suffer the pu“ person or persons so winning by such ill practice, as aforesaid, nishment of
or winning at any one time or sitting above the said sum or perjury.
value of ten pounds, and being convicted of any of the said “ offences, upon an indictment or information to be exhibited “ against him or them for that purpose, shall forfeit five times the
value of the sum or sums of money, or other thing so won as 6 aforesaid; and in case of such ill practice as aforesaid, shall be “ deemed infamous, and suffer such corporal punishment as in “ cases of wilful perjury; and such penalty to be recovered by “ such person or persons as shall sue for the same by such action “ as aforesaid.”
By the 18 Geo. 2. c. 34. s. 8. “ If any person shall win or lose 18 Geo. 2. c. “ at play, or by betting, at any one time, the sum or value of ten 34. s. 8. Any
person win“pounds, or within the space of twenty-four hours, the sum or mi “ value of twenty pounds, such person shall be liable to be at any one “indicted for such offence within six months after it is com. time 101., or “mitted, either before the justices of the King's Bench, assize, hours 201.,
within 24 “ gaol delivery, or great sessions; and being thereof legally con- may be in“ victed, shall be fined five times the value of the sum so won or di “ lost; which fine (after such charges as the court shall judge times the va
fined five “ reasonable allowed to the prosecutors and evidence out of the lue. “ same) shall go to the poor of the parish, or place where such “ offence shall be committed.” There is then a provision, that if Offender disany person so offending shall discover any other person so offend- Com
other offender ing, so that such person be thereupon convicted, the person .so to be disdiscovering shall be discharged and indemnified from all penalties, charged. if such person so discovering has not been before convicted thereof, and shall be admitted as an evidence to prove the same. (f)
It has been decided that a foot race, whether the race be upon a Cases upon given distance, or against a certain time, is a game prohibited by the construc
tion of the 9 Ann. c. 14. (g) And a wager that a person did not find within
statute of 9 such a time a man who should carry on foot twenty-four stone Anne, c. 14. weight ten miles in fifteen hours has been holden to be within the same principle.(h) But where A. betted B. that one C. would not run four miles in twenty-one minutes, it was adjudged not to be within the statute, because as C. was not playing at such game, there could be no betting on his side within the statute; for C. might be running for his amusement, and not to win any bet. (i)
(f) 18 Geo. 2. c. 34. s. 9. And by 36. s. 10. the act is not to repeal or inva- (h) Browo- v. Beckley, Cowp. 282. lidate the 9 Anp. c. 14.
(i) Lynall v. Longbolhain, 2 Wils. (8) Lynall v. Longbotham, 2 Wils. 36.