579 by reason only of such person being, as the inhabitant of any parish or township, rated or assessed, or liable to be rated or assessed to the relief of the poor, as for and towards the maintainance of church, chapel, or highways, or for any other purpose whatever." By sec. and for any parish, township, or union, or any person rated or assessed, or liable to 2, "no churchwarden, overseer, or other officer in be rated or assessed as aforesaid, shall be disabled or prevented from giving evidence on any trial, appeal, or other proceeding, by reason only of his being a party to such trial, appeal, or other proceeding, or of his being liable to costs in respect thereof, when he shall be only a nominal party to such trial, appeal, or other proceeding, or of his being liable to costs in respect thereof, when he shall be only a nominal party to such trial, appeal, or other proceeding, and shall be only liable to contribute to such costs in common with other the rate payers of such parish, township, or union." M. C. 9. See R. v. East Adderbury, 13 Law J. R. The inhabitant of a hundred also cannot be called to prove any fact in favour of the hundred, though so poor, as upon that account to be excused from the payment of taxes, "for though," says Chief Justice Parker, "poor at present, become rich." R. v. Hornsey, 10 Mod. 150; Woolrych on Ways, 265. By the he may 7 and 8 Geo. 4, c. 31, s. 5, inhabitants are made competent witnesses in any action brought by them under that act against any hundred or other like district. Particulars of the highways obstructed, &c.] On an indictment for obstructing divers horse and carriage ways, and footpaths, Parke, B., upon the production of an affidavit from the attorney for the defendant, that he was unable to understand all the precise tracks indicted, made an order for the delivery of particulars of the ways in question, which were nine in number, seven described, generally, as highways, and two described as footways. R. v. Marquis of Downshire, 4 A. & E. 699.5 Costs, &c.] By the 5 and 6 Wm. 4, c. 50, s. 98, the court before whom any indictment for not repairing highways is preferred, may award costs to the prosecutor, to be paid by the party so indicted, if it shall appear to the said court that the defence made to such indictment was frivolous and vexatious. By sec. 99, presentments on account of highways or turnpike roads, being out of repair, are abolished. See as to costs, Reg. v. Inhab. of Hickling, 1 Cox, C. C. 243; R. v. Clarke, 5 Q. B. 887, 1 New Sess. Cases, 143. See Reg. v. Inhab. of Yarkhill, 9 C. & P. 218; Reg. v. Inhab. of Chedworth, 9 C. & P. 285; and 1 Russ. by Grea. 374(n.); Reg. v. Inhab. of Preston, 1 C. & K. 137; Reg. v. Merionethshire, 6 Q. B. 343, 1 New Sess. Cases, 316; Reg. v. Inhab. of Heanor, 1 New Sess. Cases, 466; Reg. v. Inhab. of Pembridge, 3 Q. B. 901; 3 G. & D. 5; Reg. v. Inhab. of Paul, 2 Moo. & R. 307, and Reg. v. Inhab. of Chilicombe, therein cited, p. 311; Reg. v. Inhab. of Great Broughton, 2 Moo. & R. 444. See further, title Bridges. *In Ireland, the 8 Anne, c. 5, s. 4, made perpetual by 4 Geo. 3, c. 9, [ *580 ] provides that if any indictment or presentment be against any person or persons for not repairing any highways, causeways, pavements or bridges, and the right and title to repair the same, shall come in question; upon a suggestion to that effect and an affidavit made of the truth thereof, a certiorari may be granted to remove the same into the Court of Queen's Bench, provided that the party or i Id. 123. B Eng. Com. Law Reps. xxxi. 169. h Id. xxxviii. 88. parties prosecuting such certiorari shall find two manucaptors to be bound in a recognizance with condition as aforesaid. The statutes in Ireland which authorize the making and repairing of roads and bridges at the expense of the respective counties are the 19 and 20 Geo. 3, c. 41; 36 Geo. 3, cc. 36 and 55; 37 Geo. 3, c. 35; 45 Geo. 3, c. 43; 46 Geo. 3, c. 96; 49 Geo. 3, c. 84; 50 Geo. 3, c. 29; 53 Geo. 3, cc. 77 and 146; 59 Geo. 3, c. 84; 6 Geo. 4, c. 101; 1 and 2 Wm. 4, c. 33; 3 and 4 Wm. 4, c. 78. See also, on the subject of highways in Ireland, Gabbett's Crim. Law of I. Book 1, c. 39. HOMICIDE. Those homicides which are felonies, viz. murder and manslaughter, will, for the convenience of reference, be treated of under separate heads; but as the shades between the various kinds of homicide, are in many cases very faint, and require the circumstances to be stated at large, it has been thought better to collect all the decisions under one head, viz. that of murder, in order to avoid repetition, and to this part of the work, therefore, the reader is referred on the subject of homicide in general. It will be useful, however, in this place, to distinguish the nature of the different kinds of homicide, not amounting to felony. Homicides not felonious, may be divided into three classes, justifiable homicide, excusable homicide, and homicide by misadventure. Justifiable homicide is where the killing is in consequence of an imperious duty prescribed by law, or is owing to some unavoidable necessity induced by the act of the party killed, without any manner of fault in the party killing. 1 East, P. C. 219; Hawk. P. C. b. 1, c. 28, s. 1, 22. Excusable homicide is where the party killing is not altogether free from blame, but the necessity which renders it excusable, may be said to be partly induced by his own act. Formerly in this case it was the practice for the jury to find the fact specially, and upon certifying the record into Chancery, a pardon issued of course, under the statute of Gloucester, c. 9, and the forfeiture was thereby saved. But latterly, it was usual for the jury to find the prisoner not guilty. 1 East, P. C. 220. And now by the 9 Geo. 4, c. 31, s. 10, (the 10 Geo. 4, s. 13, I.), no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune or in self-defence, or in any other manner without felony. [*581 *Homicide by misadventure, is where a man doing a lawful act, without any intention of bodily harm, and after using proper precaution to prevent danger, unfortunately kills another person. The act upon which the death ensues, must be lawful in itself, for if it be malum in se, the case will amount to felony, either murder or manslaughter, according to the circumstances. If it be merely malum prohibitum, as (formerly) the shooting at game by an unqualified person, that will not vary the degree of the offence. The usual examples under this head, are-1, where death ensues from innocent recreations; 2, from moderate and lawful correction in foro domestico; and 3, from acts lawful or indifferent in themselves, done with proper and ordinary caution. Homicide by chance-medley is, strictly, where death ensues from a combat between the parties upon a sudden quarrel; but it is frequently confounded with misadventure or accident. 1 East, P. C. 221. INCITING TO MUTINY. By 37 Geo. 3, c. 70, s. 1, (E.), and the 37 Geo. 3, c. 40, s. 1, (I.), which acts were revised and made perpetual by the 57 Geo. 3, c. 7, (U. K.), after reciting that divers wicked and evil disposed persons, by the publication of written or printed papers, and by malicious and advised speaking, had of late industriously endeavoured to seduce persons serving in his Majesty's forces by sea and land, from their duty and allegiance to his Majesty, and to incite them to mutiny and disobedience; it is enacted, "that any person who shall maliciously and advisedly endeavour to seduce any person or persons serving in his Majesty's forces, by sea or land, from his or their duty and allegiance to his Majesty, or to incite or stir up any such person or persons to commit any act of mutiny, or to make, or endeavour to make, any mutinous assembly, or to commit any traitorous or mutinous practice whatsoever, shall, on being legally convicted of such offence, be adjudged guilty of felony, [and shall suffer death, as in cases of felony, without benefit of clergy."] S. 2, provides and enacts, "that any offence committed against this act, whether committed on the high seas or within that part of Great Britain called England, shall and may be prosecuted and tried before any court of oyer and terminer, or gaol delivery for any county of that part of Great Britain called England, in such manner and form as if the said offence had been therein committed." By the 7 Wm. 4 and 1 Vict. c. 91, (U K.) s. 1, after reciting (inter alia) the above statutes, it is enacted, "that if any person shall, after the commencement of this act, be convicted of any of the offences herein before mentioned, such person shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." *By s. 2, hard labour and solitary confinement may be awarded in cases [*582] of imprisonment; see a similar provision, ante, p. 372. The annual mutiny acts make it a misdemeanor for every person who shall, in any part of her Majesty's dominions, directly or indirectly persuade any soldier to desert. KIDNAPPING. Kidnapping, which is an aggravated species of false imprisonment, is the stealing and carrying away or secreting of any person, and is an offence at common law, punishable by fine and imprisonment. 1 East, P. C. 429. By the habeas corpus act, 31 Car. 2, c. 2, s. 12, the sending prisoners out of England is made punishable as a præmunire, and by the 11 and 12 Wm. 3, c. 7, masters of vessels, forcing their men on shore or leaving them behind, were subjected to three months impri sonment. This statute is repealed by the 9 Geo. 4, c. 31, which enacts, s. 30, "that if any master of a merchant vessel shall, during his being abroad, force any man on shore, or wilfully leave him behind in any of his Majesty's colonies or elsewhere, or shall refuse to bring home with him again all such of the men whom he carried out with him, as are in a condition to return when he shall be ready to proceed on his homeward-bound voyage, every such master shall be guilty of a misdemeanor, and being lawfully convicted thereof, shall be imprisoned for such a term as the court shall award; and all such offences may be prosecuted by indictment or by information, at the suit of his Majesty's attorney-general, in the court of King's Bench, and may be alleged in the indictment or information to have been committed at Westminster, in the county of Middlesex; and the said court is hereby authorized to issue one or more commissions, if necessary, for the examination of witnesses abroad; and the depositions taken under the same shall be received in evidence on the trial of every such information." By the 7 and 8 Vict. c. 112, (U. K.) s. 47, "if the master of any ship belonging to any of her Majesty's subjects, or the mate or other officer of such ship, shall wrongfully force on shore, and leave behind, or shall otherwise wilfully and wrongfully leave behind on shore or at sea, in or out of her Majesty's dominions, any person belonging to his ship or crew, before the completion of the voyage, for which such person was engaged, or the return of the ship to the United Kingdom, such master, mate, or other officer, shall be guilty of a misdemeanor; and every misdemeanor mentioned or created by this act shall and may be prosecuted by information at the suit of his Majesty's attorney-general, or by indictment or other legal proceeding in any court having criminal jurisdiction in her Majesty's dominions at home or abroad, and the offence may be laid and charged in the said information, indictment, or other legal proceeding, to have been committed in the county or place where the offender shall happen to be, who, being convicted thereof, shall be *583] liable to fine or imprisonment, or *both, as to the court before whom he is tried shall seem meet; and every court is hereby authorized to issue a commission or commissions for the examination of any witness or witnesses who may be absent or out of the jurisdiction of the court; and at the trial and the depositions taken under such commission or commissions, if such witness or witnesses shall be then absent, shall be received in evidence." By s. 48, "if any master shall, contrary to the provisions of this act, discharge, abandon or leave behind any seaman or other person belonging to the ship or crew, with or without his consent, it shall be incumbent on such master on any information, indictment, or other proceeding against him, to produce or prove such sanction or respective certificate as aforesaid, (see s. 46,) or prove the impracticability of obtaining such certificate." As to abducting females and children, see ante, Abduction and Childstealing. Proof of the taking with reference to the possession of the goods 595 Original taking not felonious Cases of bailees. 596 Proof of the taking; distinction between larceny and false pretences-cases of larceny No intent to part with the property by the prosecutor-original felonious intent on the part of the prisoner-cases of hiring horses, &c., larceny Various cases amounting to larceny, where goods have been obtained by false pretences-ring-dropping, &c. 605 606 607 610 Cases of pretended purchases-larceny 613 Proof of the taking; distinction between larceny and false pretences-cases of false pretences 615 Intent to part with the property by the prosecutor-original felonious intent on 615 Pretended purchases 615 Cases of obtaining goods, &c., by false pretences Proof of the things stolen-things savouring of realty at common law 616 618 619 619 620 622 624 625 626 627 627 628 629 629 630 Animals kept for pleasure only, and not fit for food Dogs, pigeons, &c. Proof of the thing taken Identity. Value 630 631 633 633 633 Proof of the ownership-cases where it is unnecessary to allege or prove ownership |