REG. v. FROST. 1855. Indictment the year of our Lord, 1854, in the night time, to wit, about the hour of twelve in the night of the same day, William Frost and John Russell were unlawfully upon certain land in the occupation of one George William Frederick Charles Duke of Cambridge, situate at the parish of Kingston-upon-Thames, in the county of Surrey, armed with a gun and with certain bludgeons and sticks, Amendment. and other offensive weapons, for the purpose of then and by night as aforesaid, unlawfully taking and destroying game, and that the said William Frost and John Russell were then so being upon the said land by night as aforesaid, armed with the said gun, bludgeons and sticks and other offensive weapons for the purpose aforesaid, by one Henry Edson, the servant of the said George William Frederick Charles Duke of Cambridge, the said Henry Edson then having lawful authority to seize and apprehend the said William Frost and John Russell found, and that he the said Henry Edson being then about to seize and apprehend the said William Frost and John Russell for the offence aforesaid, the said Henry Edson then having lawful authority so to do, they the said William Frost and John Russell with the gun aforesaid, and with the bludgeons and sticks and other offensive weapons aforesaid, which they the said William Frost and John Russell in their hands then held, did then unlawfully assault and beat the said Henry Edson; against the form of the statute in such case made and provided, and against the peace of our said Lady the Queen, her crown and dignity." At the trial none of the witnesses were able to prove the christian names of the Duke of Cambridge as laid in the indictment, and found by the grand jury. One witness only swore that George William were two of the christian names of the said Duke, that he believed the said Duke had some other christian names, but he could not say what they were. Upon this it was moved by the counsel for the prisoners, upon the authority of Reg. v. Earl of Cardigan, that as the christian. names of the Duke of Cambridge had not been proved as laid in the indictment, the court should direct an acquittal of the prisoners. On the other hand it was moved by the counsel for the prosecution, that the court should amend the indictment under statute 14 & 15 Vict. c. 100, by striking out the words "Frederick Charles." The court refused to amend the indictment because no sufficient evidence was offered to enable it to so, and the court also refused to direct an acquittal, but left it to the jury to say whether they were satisfied by the evidence of the identity of the said Duke of Cambridge as occupier of the land in question, and as master of the said Henry Edson, in which event the jury would consider the case upon its merits generally, and give their verdict accordingly. The jury thereupon, after a short consultation, brought in a verdict of guilty generally against both prisoners, alleging at the same time, that they were satisfied with the evidence of the identity of the said Duke. REG. v. FROST. 1855. The court reserved the following two points for the consideration. of the Justices of either Bench and Barons of the Exchequer :First, Whether it was bound to amend the indictment upon the insufficient evidence above mentioned, by striking out the two Christian names of the said Duke of Cambridge, viz. Frederick and Charles, which had been found by the grand jury, and respecting which no evidence whatever was given at the trial. And secondly, Whether, having refused to amend, the court acted properly in submitting the case to the jury in the manner above mentioned. The court postponed the judgment, and committed the said William Frost and John Russell to prison until such questions shall have been considered and decided. Charnock (for the prisoners) having quoted the Earl of Cardigan's case, which he contended was precisely in point, was stopped by the court. Robinson, B. C. (for the prosecution) said, that that case was decided before the passing of the 14 & 15 Vict. c. 100. By the 24th section of that act it was declared that no indictment should be held insufficient, for that any person mentioned in the indictment is designated by a name of office or other descriptive appellation. The court below would therefore have been clearly justified in striking out all the names, leavingmerely the words, the "Duke of Cambridge"; but even as the indictment stood there was still the descriptive appellation, and the rest of the names were mere surplusage. In R. v. Graham (2 Leach, 547) the prosecutor was described as James Hamilton, Esq., commonly called Earl of Clanbrassil, in the kingdom of Ireland, and it was held that the latter words "commonly called Earl of Clanbrassil," &c., might be treated as surplusage. So in R. v. Sull (2 Leach, 861) the prisoner was indicted for stealing property belonging to Victory Baroness Turkheim. It appeared the prosecutrix's real name was Selina Victoire, but that she was usually called by her foreign title of Baroness Turkheim, and the court held that she was properly described. In that case the name in the indictment was not the true name, nor was it a name gained by reputation. The same remark applied to R. v. Elliot (8 C. & P. 772); there Lord Segrave was described as the Right Honourable William Fitzhardinge Lord Segrave, and Mr. Justice Erskine held the description sufficient, although the proper designation was William Baron Segrave, and there was nothing to show that the other was gained by reputation. The question here was properly left to the jury, whether the person mentioned in the indictment was the same as the evidence referred to. Substantially that was the decision in R. v. Davis (2 Den. C. C. 231), where the prosecutor being described as Darius Christopher, his real name being Tryus, the court said it should have been left to the jury to say whether the two names were idem sonantia. The stringency required in these cases was in order that persons accused might be enabled to plead autrefois REG. v. FROST. 1855. acquit and autrefois convict; but after the way in which the question was left to the jury in this case, there could be no difficulty in establishing such a plea. At the trial abundant evidence was given that the Duke of Cambridge had acquired the names of George William by reputation, whatever other names Indictment— he might have, and therefore it was that the court was asked to Amendment. strike out the other two names, but such evidence being omitted it could scarcely be contended that as the case stood they would have been justified in striking out the two last names. Another question might arise whether the court had not now power to amend where the point had been raised at the trial; at all events, such a course was pursued in R. v. Sturge, 23 L. J. 172, M. C., which was a road indictment, and an amendment was made in the description of the highway. PARKE, B.-That was done by consent. Robinson submitted that in criminal cases no additional power could be given to the court by assent of the accused. POLLOCK, C.B.-We are all of opinion that in this case the prisoners must be discharged, the conviction being wrong. It is a general rule that whatever is averred as matter of description must be proved. The Duke of Cambridge was described as having four names, and no one was able to prove that those names belonged to his Royal Highness. The Earl of Cardigan's case is precisely in point, and therefore the names not having been proved, the question proposed to us is, whether the court below was bound to amend by striking out two of them. We think the court ought not to have amended without striking out all four. PARKE, B.—I am entirely of the same opinion as my lord. It seems that under the sect. 24, of the 14 & 15 Vict. c. 100, the titles of the Duke of Cambridge would have been sufficient as a descriptive appellation, and the justices might therefore have struck out every other description. It is useless asking us now whether they ought to have amended in the way the case suggests. They are not bound to amend in any case, and if they refuse to do so, we have no power to do so after the verdict. R. v. Sturge is an exceptional case. It was agreed at the trial that the amendment should be made, if required, and authorized, and that agreement was acted upon. The rest of the court concurred. B. C. Robinson for the prosecution. Conviction quashed. VOL. VI. 2 N CENTRAL CRIMINAL COURT. MAY SESSION, 1855. May 8. (Before Mr. JUSTICE CRESSWELL.) REG. v. FREWIN. (a) Confession-Indictment-Person having authority. Semble, where a confession is induced by the promise of a person not, in fact, having authority or power with respect to the prosecution to show any favour to the accused, such confession is admissible. although the prisoner from his knowledge of the position of the promiser may reasonably suppose he has such authority. THE prisoner was indicted for unlawfully placing a piece of iron upon the rails of the London and South Western Railway. A witness, who was in the service of the company as a platelayer, was called on the part of the prosecution to prove a statement made to him by the prisoner. CRESSWELL, J. (there being no counsel for the prisoner), having interrogated the witness as to whether he had held out any inducement to the prisoner to confess, he said that he first asked the prisoner how he came to put the iron upon the rail, at first, the latter denied it; the witness then told him he had better tell the truth, it would be a good deal better for him if he owned to it. The witness stated that he was not employed by any of his superiors to see the prisoner, but the latter knew he worked upon the line. CRESSWELL, J.-I am disposed to think the statement of the prisoner is receivable, notwithstanding the observations made to him by the witness, he not being a person having any authority to make any promise; still, he was in a position that might reasonably lead the prisoner to suppose that he had. Ballantine (for the prosecution) said that, after such an observation from his lordship, he should decline to pursue the examination of the witness further. Ballantine for the prosecution. (a) Reported by B. C. ROBINSON, Esq., Barrister-at-law. COURT OF CRIMINAL APPEAL. April 28, 1855. (Before POLLOCK, C.B., PARKE, B., WIGHTMAN, CROMPTON, and CROWDER, JJ.) REG. v. JANE PERRY. (a) Concealment of birth-Temporary disposal of the body In order to complete the offence of endeavouring to conceal the birth of a child by secretly disposing of the dead body, under s. 14 of 9 Geo. 4, c. 31, it is not necessary that the body should be placed in any final place of deposit. And where the mother, with the intention of concealing the body from a surgeon, placed it under a bolster, upon which she laid her head. Held (POLLOCK, C.B., dissentiente), that she was properly convicted under the above section; though it was assumed that she meant to remove it elsewhere when an opportunity occurred. THE following case was reserved by MARTIN, B.:— Jane Perry was indicted for the murder of her bastard child. There was no evidence of the murder, but it was proved by a surgeon that he was sent for by the members of the family where the prisoner lived as servant, in consequence of her illness; that upon seeing her he suspected she had just given birth to a child, and examined her person and found she had been recently delivered, and asked her several questions on the subject, but could get no satisfactory answer. He then went out of the room, leaving the prisoner alone lying on the bed. He immediately heard the door being locked, and returned to it and insisted upon its being opened, which the prisoner did and was returning to the bed as the surgeon entered. When he arrived at the bed-side she laid down her (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. |