each in a dif statute. December, 39 Geo. 3. uttered to one G. S. a counterfeit half- the same day, crown, knowing it to be so, and in the second count with having ferent count, on the said 15th December, &c. uttered another counterfeit half- the court cancrown to the same person: and the prisoner was convicted on not pronounce the greater both counts. The question was raised whether, the uttering the punishment counterfeit money twice on the same day being stated in two of the third counts, the court could pronounce the greater punishment in- section of the flicted by the third section of the statute, or must give only the smaller punishment inflicted by the second section; and, upon reference to the Judges, they held that this indictment was not sufficient to subject the prisoner to the larger penalty, as for uttering two pieces of counterfeit coin on the same day, there being no distinct averment of that fact. (y) But where two utterings are charged in one count of the indictment, on a certain day therein named, the day will be held to be material, and the fact of an uttering twice on the same day to be sufficiently averred. As where the indictment charged that the prisoner on the 14th of February, &c. uttered base coin to W. C.; and that on the said 14th February, &c. he uttered to J. L. other base coin, it was held sufficient to warrant the higher punishment of the third section of the statute; the utterings, on the face of the indictment, appearing to be on the same day. And the Judges held, at a conference upon this case, that though, when the day is not material, the fact may be proved on a day different from the day laid, yet where the day is not indifferent, the precise time laid must be proved: and that in this case it must be taken that it was proved that the defendant uttered counterfeit coin at two different times of the same day. (2) When the former of these cases was considered by the Judges, it appears that some doubt was entertained whether a count in an indictment, charging two utterings on the same day, should not, in order to bring an offender within the third section, conclude with an averment that the offender was a common utterer of false money, as that clause declares him to be. But this point was disposed of in a case, which occurred shortly afterwards, where the prisoner was indicted for uttering false money knowingly, and having about him, at the time of such uttering, other false money; without any averment that he was a common utterer of false money. Upon conviction, judgment was respited to take the opinion of the Judges upon the question, whether, in order to bring the case within the third section, the indictment should not have concluded with a distinct averment that the defendant was a common utterer of false money, or whether that were not the necessary conclusion of law from the facts stated. And the Judges, upon search of precedents for many years back, finding that judgment had been given for the greater punishment upon (y) Tandy's case, 2 Leach 833. 1 East. P. C. c. 4. s. 29. p. 182, 183. Eyre, C. J. Buller, J. and Heath, J. were absent when this opinion was given, viz. Hil. T. 1799. The Judges also thought it advisable to give judgment of imprisonment for six months singly, and not on each of the counts. (2) Martin's case, Derby Lent Ass. But where two utterings on a certain day named are charged in one count, the fact eatly averred. will be suffici The indict meat need not offender was a common utterer of false state that the money to warrant the greater pubishment of tion of the statute. the third scc In an indictment for a second of fence against the 15 Geo. 2. c. 28. s. 3. it is not necessary to state on the former trial, did ad fendant to be a common utterer. indictments drawn in this form, although some were to be found containing the averment in question, held that such averment, though it would not hurt, was not necessary in order to warrant the greater punishment. (a) Consistently with this determination it was held, in a subsequent case, not to be necessary, in an indictment for a second offence against this statute, to state that the court, before which the former trial was had, did adjudge the defendant to be a common utterer. The indictment charged that the defendant was before that time in due form of law tried and convicted at the that the Court, Guildford Quarter Sessions, on a certain indictment against him for uttering false and counterfeit coin, knowing it to be such; judge the de- having about him at the time, in his custody and possession, other false and counterfeit money; and that it was thereupon adjudged by the Court that he should be imprisoned for a year, and until he found sureties for his good behaviour for two years more; and then averred, that, having been so convicted as a common utterer of false money, he afterwards uttered other false and counterfeit money. The objection taken in arrest of judgment, and which was reserved for the opinion of the Judges, was this, that in stating the original record and judgment of the Court of Quarter Sessions, it is not stated that the Court did adjudge the defendant to be a common utterer, but only that they considered and adjudged the prisoner to be imprisoned twelve months, and to find surety for his good behaviour for two years more. But the Judges held that it was not necessary that the Court should adjudge the defendant to be a common utterer, though the statute says he shall be deemed and taken to be a common utterer; that being a conclusion of law: and it being sufficient for the Court before which a defendant is convicted of an offence within the statute to adjudge him to suffer the punishment inflicted by law on the offence. (b) Indictment upon s. 2. of the felony must set out the former convictions and judgments with a prout patet per recordum. An indictment upon the second section of this statute, 15 Geo. 15 Geo. 2. for 2., for feloniously uttering counterfeit money after two convictions, and judgments for misdemeanors on the same statute, must set out the former convictions, and judgments, with a prout patet per recordum; and judgment for a misdemeanor cannot be given upon an indictment for felony, bad for want of such an averment. The prisoner was tried and convicted before Holroyd, J. for feloniously uttering a false and counterfeit shilling, well knowing the same to be false and counterfeit, contrary to the statute, &c. having been twice before convicted of similar utterings, as misdemeanors, contrary to the same statute. It was objected after the trial in arrest of judgment, that the present indictment, in setting forth the trial, conviction, and judgment, upon the second indictment for the second offence, (and which were essential to constitute the crime a felony as charged in the present indictment,) was defective in not stating or alleging a prout patet per recordum in respect of those (a) Rex v. Smith, Hil. T. 1800. 2 Leach 858. 2 Bos. and Pul. 127. 1 East. P. C. c. 4. s. 29. p. 183. Russ. and Ry. 5. The same judgment was given on another case of Benjamin Levi, reserved at the same time. (b) Rex v. Michael, East. T. 1802. 2 Leach. 938. 1 East. P. C. Addend. xix. Russ. and Ry. 29. S. P. Rex v. Booth, Russ. and Ry. 7. proceedings, as appeared to have been done in the second indictment, in stating the proceedings had under the first indictment. It was also objected that there ought to have been an allegation that the former convictions and judgments remained in force unreversed, &c. And further, it was objected that the present indictment did not allege as facts the actual committing of the two former offences, or even the trials, convictions, and judgments upon both of them, but only the trial, conviction, and judgment, upon the second indictment, whereas the second indictment appeared to have alleged a trial, conviction, and judgment, upon the first. Upon these objections judgment was respited by the learned judge, who submitted to the Judges whether the judgment should be arrested, or whether, in case the indictment should be deemed defective, as an indictment for felony, it would warrant a judgment for the offence as for a misdemeanor. The Judges held that the indictment was bad for want of a prout patet per recordum in the statement of the conviction and judgment for the second offence; and that no judgment could be given for the misdemeanor upon this record. And the judgment was therefore arrested. (b) By the fifth section of the 15 Geo. 2. c. 28., it is provided that Trial and evioffenders shall be indicted, arraigned, tried, and convicted, by such dence. like evidence and in such manner as counterfeitors of the coin; with a proviso that the prosecution be commenced within six months next after the offence committed. ledge. For the purpose of proving the act charged in the indictment to Evidence of a have been done knowingly, it is the practice to receive proof of more guilty knowthan one uttering committed by the party about the same time, though only one uttering be charged in the indictment. This is in conformity with the practice upon indictments for disposing of and putting away forged bank notes, knowing them to be forged; (c) upon one of which, the counsel for the prisoners, objecting to such evidence, contended that it would not be allowed upon an indictment for uttering bad money; and stated that the proof in such case was always exclusively confined to the purticular uttering charged in the indictment. But Mr. Baron Thomson said, that he by no means agreed in the conclusion of the prisoner's counsel, that the prosecutor could not give evidence of another uttering on the same day to prove the guilty knowledge. "Such other utter (b) Rex v. Turner, Mich. T., 1824. Ry. & Mood. C. C. R. 47. And see Rex v. (c) Rex v. Whiley and Haines, 2 Leach 983. 1 New R. 92. Tattershall's case, cited in Whiley & Haines. And see Ball's case, 1 Campb. 325., where upon an indictment at Lewes, Sum. Assizes, 1807, against the prisoner for knowingly uttering a forged bank note, the note in question was proved to have been uttered by the prisoner on the 17th of June; and evidence was then given of his having uttered another forged note of the same manufacture on the 20th March preceding; and that there had been ❝ing," he observes, "cannot be punished until it has become the "subject of a distinct and separate charge; but it affords strong "evidence of the knowledge of the prisoner that the money he "uttered was bad. If a man utter a bad shilling, and fifty other "bad shillings are found upon him, this would bring him within "the description of a common utterer: but if the indictment do "not contain that charge, yet these circumstances may be given "in evidence on any other charge of uttering, to shew that he "uttered the money with a knowledge of its being bad.” (d) Associate not An associate, not present nor co-operating at an uttering of bad co-operating. money, is not liable to be convicted with the actual utterer, merely on the ground that he is an utterer also, and has other bad money about him for the purpose of uttering. And it appears not to be a sufficient ground for convicting a person of the second offence, of having other bad money in possession at the time, that such person was associating with another, not present at the uttering, who had large quantities of bad money about him for circulation; or that such person on the day after the uttering had in possession a small number of pieces of bad money. The prisoners, Job and Sarah Else, were indicted for uttering a bad shilling, having other bad shillings in their possession at the time. Upon the evidence it appeared that the uttering was by the woman alone, on the 30th of January, in the absence of the man; that they both slept together on the 29th and 31st; and that on the 30th the man offered for sale a large quantity of bad shillings and sixpences; and also that they were both searched on the 3ist; when upon the man was found a large quantity of bad shillings, and upon the woman were found six bad shillings. The prisoners were upon this evidence both convicted of the double offence, on the ground that both being engaged in the same illegal traffic, the act of one was the act of both : but, upon the case being reserved, the Judges held the woman alone liable to be convicted, and that of the single offence only. (e) In prosecu cond offence, 66 By the ninth section of the 15 Geo. 2. c. 28., it is enacted, that tions for a se- " if any person be convicted of uttering or tendering any false or counterfeit money as aforesaid, and shall afterwards be guilty of "the like offence in any other county or city, the clerk of the "assize, or clerk of the peace of the county or city, where such "conviction was had, shall, at the request of the prosecutor, or a transcript of the former conviction shall be evidence. any other on His Majesty's behalf, certify the same by a tran"script, in a few words, containing the effect and tenor of such "conviction, for which certificate two shillings and sixpence, and no more, shall be paid; and such certificate, being produced in court, shall be sufficient proof of such former conviction. (ƒ) (d) Rex v. Whiley and Haines, 2 Leach 983. (e) Rex v. Else, East. T. 1808. MS. Bayley, J. and Russ. & Ry. 142. And see Rex v. Soanes and Others, (uttering a forged note;) Russ. & Ry. 25.; and other cases, post, Book IV. Chap. xxvii. s. 4. (f) By this it seems that the justices of the peace in sessions have power to try such offenders: otherwise this direction to the clerk of the peace to certify the conviction is incongruous; for he is not the proper person to certify what is done in another court, where he is not necessarily supposed to be present: but no power is given to the sessions by any express words in this statute to hear and determine such offences. 66 66 SECT. II. Of Uttering, Tendering, &c. Foreign Counterfeit Coin. 37 G. 3. c. 126. THIS offence, particularly with respect to the gold coin called Louis d'Or, and silver dollars, is stated, in the statute 37 Geo. 3. c. 126, to have greatly increased; and the third section of that statute makes the following provision against it :-" That if any Six months' person or persons shall, from and after the passing of this act, imprisonment, utter, or tender in payment, or give in exchange, or pay or put and sureties off to any person or persons, any such false or counterfeit coin for six months. "as aforesaid (namely, by the second section, coin not the proper "coin of this realm, nor permitted to be current within the same) "resembling, or made with intent to resemble or look like any gold or silver coin of any foreign prince, state, or country, or to pass as such foreign coin, knowing the same to be false or coun"terfeit, and shall be thereof convicted, every person so offend"ing shall suffer six months' imprisonment, and find sureties for "his or her good behaviour for six months more, to be computed "from the end of the said first six months; and if the same per(6 son shall afterwards be convicted a second time for the like "offence of uttering or tendering in payment, or giving in exchange, or paying or putting off any such false or counterfeit "coin as aforesaid, knowing the same to be false or counterfeit, "such person shall for such second offence suffer two years' imprisonment, and find sureties for his or her good behaviour for "two years more, to be computed from the end of the said first "two years; and if the same person shall afterwards offend a third "time, in uttering or tendering in payment, or giving in exchange, or paying, or putting off any such false or counterfeit coin as "aforesaid, knowing the same to be false or counterfeit, and shall "be convicted of such third offence, he or she shall be adjudged "to be guilty of felony without benefit of clergy." 66 For a second offence two years' imprisonment, and sureties for two years. For a third offence felony, without benefit of clergy. former convic A certificate of a former conviction is made sufficient evidence Evidence of upon the trial of an offender for a further offence. The fifth sec- tion by means tion of the statute enacts, that if any person shall be convicted of of a certificate. uttering or tendering any such false or counterfeit coin as aforesaid, and shall afterwards be guilty of the like offence in any other county, city, or place, the clerk of the assize, or clerk of the peace for the county, city, or place where such former conviction shall have been had, shall, at the request of the prosecutor, or any other on His Majesty's behalf, certify the same by a transcript, in few words, containing the effect and tenor of such conviction; for which certificate two shillings and sixpence, and no more, shall be paid; and such certificate, being produced in court, shall be sufficient proof of such former conviction. Persons hav Having in custody a greater number than five pieces of counter-ng in custody feit foreign coin, whether current here or not, makes the party above a cer |