on next

farms and seteres [lettings] which you are *in possession of, without you [*936] day release that Ann Wood which you put in confinement. Sir, we mention in a few lines, and we hope if you have any regard for your wife and family, you will take our meaning without anything further; and if you do not, we will persist as far as we possibly can; so you may lay your hand at your heart, and strive your uttermost ruin. I shall not mention nothing more to you, until such time as you find the few lines, a fact, with our respect. So no more at this time from me.

"R. R."

It was proved that this was in the handwriting of one of the prisoners, and that it was thrown by the other prisoner into the prosecutor's yard, whence it was taken by a servant, and delivered to the prosecutor. The prosecutor swore that he had had a share in a mill three years before this letter was written, but had no mill at that time; that he held a farm when the letter was written and came to his hands, with several buildings upon it. On a case reserved, it was agreed by the judges, that as the prosecutor had no such property at the time as the mill which was threatened to be burnt, that part of the letter must be laid out of the question. As to the rest Lord Kenyon, C. J., and Buller, J., were of opinion, that the letter must be understood as also importing a threat to burn the prosecutor's farm-house and buildings, but the other judges, not thinking that a necessary construction, the conviction was held wrong, and a pardon recommended. Jepson and Springett's case, 2 East, P. C. 1115.

The prisoners were charged in one count with sending a letter to the prosecutor, threatening to kill and murder him, and a second count with threatening to burn and destroy his houses, stacks, &c. The writing was as follows: "Starve Gut Butcher, if you don't go on better great will be the consequence; what do you think you must alter an (or) must be set on fire; this came from London. i say your nose is as long rod gffg sharp as a flint 1835. You ought to pay your men.' The jury negatived the threat to put the prosecutor to death, but found that the latter threatened to fire his houses, &c. Lord Denman, C. J., had some doubt whether the question ought to have been left to the jury, and whether the latter could be, in point of law, a threatening letter to the effect found. On the case being considered by the judges, they held the conviction good after verdict. Tyler's case, 1 Moo. C. C. 428.b

b2 Eng. C. C. 428.

The offence of accusing, or threatening to accuse of unnatural crimes, whereby property has been extorted, has already been treated of under the title Robbery, see ante, p. 903. Under the present head the offence of accusing, as well of such crimes, as of the other crimes specified in the 7 & 8 Geo. 4, c. 29, s. 8, with a view to extort money, &c. will be considered.

Statute 7 and 8 Geo. 4, c. 29.] By the 7 and 8 Geo. 4, c. 29, s. 8, (the 9 Geo. 4, c. 55, I.) if any person shall accuse, or shall knowingly send or deliver any letter or writing, accusing, or threatening to accuse, any person of any crime punishable by law with death, transportation, or pillory, or with any assault with intent to commit any rape, or of any attempt or endeavour to commit any rape, or of any infamous crime as hereinafter defined, with a view or intent to extort or gain from such person any chattel, money, or valuable security, every such offender shall be guilty of felony; and being convicted thereof, shall be transported for life, &c.; see ante, p. 929.

Section 9, defines what shall be an infamous crime, viz., buggery, committed either with mankind or beast, and every assault with intent to commit that crime, and every intent or endeavour to commit the crime, and every solicitation, persuasion, promise, or threat, offered or made to any person, whereby to move or induce such person to commit or permit such crime.

On a prosecution upon this statute, the prosecutor must prove, 1, the accusing or threatening to accuse, or the knowingly sending or delivering of the letter, or writing, accusing, or threatening to accuse; 2, that the accusation is of the nature specified in the statute; 3, the view or intent to extort or gain; 4, that the matter intended to be extorted or gained, was some chattel, money, or valuable security.

[*938] *Proof of the accusing or threatening to accuse, &c.] The accusation under this statute may either be by word or mouth or in writing, and an actual accusation before a competent authority or otherwise, or a mere threat to make such an accusation, will be sufficient. But if the party has been already accused, threatening to procure witnesses to support that accusation, is not within the statute. "It is one thing to accuse, and another to procure witnesses to support a charge already made; this is at most a threat to support it by evidence." Per Bailey, J., Gill's case, York Sum. Ass. 1829, Greenwood's Stat. 191, (n.), 1 Lewin, C. C. 305. An indictment upon the 4 Geo. 4, c. 54, s. 5, (which used the words "threaten to accuse,") charged the prisoners with "charging and accusing J. N., and with menacing and threatening to prosecute J. N." Upon an objection taken, that the indictment had not pursued the statute, Garrow, B., (after consulting

Burrough, J.,) was of that opinion. If, he said, the indictment had followed the statute, and it had been proved that the prisoner threatened to prosecute, J. N., I should have left it to the jury to say whether that was not a threatening to accuse him. Abgood's case, 2 C. & P. 436.

It was held that the threatening to accuse under the 7 and 8 Geo. 4, c. 29, s. 7, (now repealed, see ante,) in which the same words "accuse or threaten to accuse,' were used as in the 8th section, need not have been a threat to accuse before a judicial tribunal, a threat to charge before any third person being enough. Robinson's case, 2 Moo. & R. 14.

If the accusation or threat to accuse was contained in a letter or writing, the knowingly sending or delivering of such letter or writing must be proved in the manner already pointed out. Vide ante, p. 931.

Proof of the nature of the accusation.] It must be shown that the accusation, made or threatened, was of the nature of those specified in the statute. Where the meaning is ambiguous, it is for the jury to say whether it amounts to the accusation or threat imputed.

Declarations subsequently made by the prisoner are also admissible to explain the meaning of a threatening letter. The prisoner was indicted for sending a letter, threatening to accuse the prosecutor of an infamous crime. The prosecutor meeting the prisoner, asked him what he meant by sending him that letter, and what he meant by "transactions five nights following," (a passage in the letter.) The prisoner said that the prosecutor knew what he meant. The prosecutor denied it, and the prisoner afterwards said, "I mean by taking indecent liberties with my person." This evidence having been received, and the point having been reserved for the opinion of the judges, they unanimously resolved that the evidence had been rightly received. Tucker's case, 1 Moody, C. C. 134;1 see also Kain's case, ante, p. 910. And see as to the necessity of particularising in the indictment the specific charge to which the accusation or threat refers, and as to the evidence necessary to support such indictment, R. v. Middleditch, 1 Denison, C. C. 92.

Proof of the view or intent to extort money.] It must appear that the accusation or threat was made, or the letter or writing sent *or delivered, with [*939 ] the view or intent to extort or gain from some person some chattel, &c. If the accusation or threat were merely made in passion, and with no view of gain, it would not be within the statute.

Proof of the thing intended to be extorted, &c.] The matter intended to be gained or extorted must be some chattel, money, or valuable security, and it must be proved as laid in the indictment.

Eng. Com. Law Reps. xii. 209.

b2 Eng. C. C. 134.

By the 5 Geo. 4, c. 84, s. 22, ❝ if any offender who shall have been, or shall be so sentenced or ordered to be transported or banished, or who shall have agreed, or shall agree, to transport or banish himself or herself on certain conditions, either for life or any number of years, under the provisions of this, or any former act, shall be afterwards at large within any part of his majesty's dominions, without some lawful cause, before the expiration of the term for which such offender shall have been sentenced or ordered to be transported or banished, or shall have so agreed to transport or banish himself or herself, every such offender so being at large, being thereof lawfully convicted, [shall suffer death as in cases of felony, without the benefit of clergy]; and such offender may be tried either in the county or place where he or she shall be apprehended, or in that from whence he or she was ordered to be transported or banished; and if any person shall rescue, or attempt to rescue, or assist in rescuing, or in attempting to rescue, any such offender from the custody of such superintendent or overseer, or of any sheriff, or gaoler, or other person, conveying, removing, transporting, or reconveying him or her, or shall convey, or cause to be conveyed, any disguise, instrument for effecting escape, or arms, to such offender, every such offence shall be punishable in the same manner as if such offender had been confined in a gaol or prison in the custody of the sheriff or gaoler, for the crime of which such offender shall have been convicted; and whoever shall discover and prosecute to conviction any such offender so being at large within this kingdom, shall be entitled to a reward of 201., for every such offender so convicted."

By s. 23, in any indictment against any offender for being found at large, contrary to that or any other act now or thereafter to be made, it shall be sufficient to charge and allege the order made for the transportation or banishment of such offender, without charging or alleging any indictment, trial, conviction, judgment, sentence, or any pardon or intention or mercy, or signification thereof, of or against or in any manner relating to such offender.

By s. 24, "the clerk of the court, or other officer having the custody of the records of the court where such sentence or order of transportation or banishment shall have been passed or made, shall at the request of any person, on his majesty's behalf, make out and give a certificate in writing, signed by him, containing the effect and substance only (omitting the formal part) of every indictment [ *941] and conviction of such offender, and of the sentence or order for his or her transportation or, (not taking for the same more than 6s. 8d.) which certificate shall be sufficient evidence of the conviction and sentence, or order for the transportation or banishment of such offender; and every such certificate, if made by the clerk or officer of any court in Great Britain, shall be received in evidence, upon proof of the signature and official character of the person signing the same; and every such certificate, if made by the clerk or officer of any court out of Great Britain, shall be received in evidence, if verified by the seal of the court, or by the signature of the judge, or one of the judges of the court, without further proof."

Upon a prosecution for this offence, the prosecutor must prove, 1, the conviction of the offender, by producing a certificate according to the above section of the statute; 2, the sentence or order of transportation, in like manner. The signature and official character of the person signing the certificate must be proved. If the certificate is made by the clerk or officer of a court out of Great Britain, it is admissible when verified by the seal of the court or the signature of the judge. The "effect and substance" of the former conviction must be stated in the certificate; merely stating that the prisoner was convicted "of felony" is not sufficient. Sutcliffe's case, Russ. & Ry. 469,"(n.); Watson's case, Id. 468; 3, proof must then be given of the prisoner's identity; and 4, that he was at large before the expiration of his term.

Punishment.] By the 4 and 5 Wm. 4, c. 67, reciting the 22d section of the 5 Geo. 4, c. 84, it is enacted "that every person convicted of any offence above specified in the said act of the 5th year of the reign of his late majesty king George 4, or of aiding or abetting, counselling, or procuring the commission thereof, shall be liable to be transported beyond the seas for his or her natural life, and previously to transportation shall be imprisoned, with or without hard labour, in any common gaol or house of correction, prison, or penitentiary, for any term not exceeding four years."

Reward to prosecutor.] The judge before whom a prisoner is tried for returning from transportation has power to order the county treasurer to pay the prosecutor the reward under the act. R. v. Emmons, 2 Moo. & R. 279.

The Irish statutes relative to the offence of returning from transportation are the 11 Geo. 3, c. 7, s. 2, and the 9 Geo. 4, c. 54, ss. 16, 17, 18, the punishment being modified, as in the above statute of the 4 and 5 Wm. 4, c. 67, by the 5 Vict. st. 2, c. 28, s. 12, (I.)

*GENERAL MATTERS OF DEFENCE.

[ *942 ]

There are certain general matters of defence, the evidence with regard to which it will be convenient to comprise under the three following heads:-Infancy, Insanity, and Coercion by Husband.