person.

[*597

*The 27 & 28 Vict. c. 91, s 12, as we have seen(h) makes the possession of any other person the possession of the prisoner if he knowingly has them in the actual possession of such other Where an indictment charged that one T. Cole, on the 28th of January, 1801, unlawfully, willingly, and knowingly did receive and have in his custody, possession, and keeping, certain naval stores of the King, being all marked with the broad arrow, he not being a contractor, &c., against the statute; with a second count, charging him with concealing naval stores, &c.; and the jury found the prisoner guilty on the first count, but acquitted him on the second, and said that they did not find that he received the stores after the 28th of July, 1800, but only that he had them in his possession after that day; the judgment was respited in order to take the opinion of the judges upon the point A majority of the judges were inclined to think that the statute was to be construed in the disjunctive, and the word or (receive or have) not to be taken as and, but, because of the disagreement of some, and that the case was not likely to occur again, the prisoner, on the finding of the jury, was recommended to mercy.(i)

It appears to have been agreed that the foregoing case was not within the 9 & 10 Will. 3, c. 41, because the goods were not charged to have been found in the prisoner's possession.(j)

In a case upon the 9 & 10 Will. 3, c. 41, s. 2, an exception was taken to the indictment, in arrest of judgment that no indictment lay because it was a new offence, and a particular penalty inflicted of forfeiture of the goods and £200; but the exception was overruled because the forfeiture accrues by the conviction on an indictment for the offence.(k)

Though the having in possession new stores, or stores not more than one-third worn, is subject to transportation for fourteen years, by the 39 & 40 Geo. 3. c. 89, s. 1, and the having in possession stores not new, or more than one-third woru, is, by the second section of that statute, subjected to a different punishment, yet counts for both these offences may be included in the same indictment.() It is said to have been agreed that, although an indictment state that the prisoner, "then or at any time before, not being a contractor with or authorized by the principal officers or commissioners of our said lord the King, of the navy, ordnance, &c., for the [*598 use of our said lord the King, to make any stores of war, &c. ;" yet, that it is not incumbent on the prosecutors to prove this negative averment, but that the defendant must show, if the truth be so, that he is within the exception in the statute.(m)

In one case, it was held that the informer was an interested witness, and therefore incompetent.(n) But, in a subsequent case, it was held that the objection

goods have been parted with, as in this case, the time has ceased for finding the prisoner guilty. Had I been the judge I should have directed an acquittal, on the ground that the stores were not in the prisoner's possession." Crompton, J.: "The statute requires that the goods should be found in the possession of the offender; yet the prisoner might be rightly convicted if the stores were found in the possession of some other person, as for instance his servant;" and he had some doubts on the point on the facts of the case. Willes, J., regretted the opinion that had been given, as the point had not been argued, and said, "I cannot concur in what has been said on that point. Possession does not consist merely in manual detention. Suppose I request a bystander to hold anything for me, still remains in my possession. So also possession may be acquired or retained over goods which are in the manual detention of a third person." Cockburn, C. J.: “I certainly understood that the point as to the possession was not now to be adjudicated upon. As, however, an opinion has been expressed upon the point, lest I should be held by my silence to concur in it, I think it right to say that I hold a directly opposite opinion. The same point was submitted to this court two years ago, and it was held that it was sufficient if possession could be traced to the prisoner," i. e., in Reg. v. Sunley. (h) Ante, p. 589.

(1) Cole's case, 1801, MS., and 2 East P. C. c. 16, s. 153, p. 767. The date of the stat. 39 & 40 Geo. 3, c. 89, is the 28th July, 1800.

(j) Id. Ibid.

(k) Reg. v. Harman, 2 Lord Raym. 1104.

(4) By Lord Ellenborough, C. J., in Rex v. Johnson, 3 M. & S. 550.

(m) Willis's case, 1 Hawk. P. C. c. 89, s. 17.

(n) Rex v. Blackman, 1 Esp. R. 93, Lord Kenyon, C. J.

went to the credit, not to the competency, of the witness, and that therefore his evidence was admissible.(o)

It appears to have been holden that, where a peace officer, in searching for other goods, discovered naval stores, and in consequence of such discovery by him an information was filed against the offender, such peace officer was to be deemed the informer.(p) But where a witness stated that, though no information respecting the stores in question had been given to the admiralty until the time of the seizure, yet that he made the seizure in consequence of information given to him by another person of the stores being in the defendant's possession, it was ruled that the witness was not to be considered as the informer, and that the informer was the person upon whose information the seizure had been made, not he who had made the seizure in consequence of such information. (q)

With respect to the power of the court to inflict corporal punishment, under the authority of the 9 & 10 Will. 3, c. 41, s. 2, 9 Geo. 1, c. 8, s. 4, and 17 Geo. 2, c. 40, s. 10, it was contended, in a case where the defendant had been convicted on an indictment charging him in one count with concealing naval stores, and in another with having them in his custody, that no such power existed under either of those statutes, where the defendant was ready and offered to pay the penalty of £200; but the Court of King's Bench said it was impossible to raise any serious doubt upon the point, for that the words of the statutes were in the disjunctive, enabling them either to impose a penalty, or to punish the offender corporally.(r) In another case where the defendant was brought up for judgment for a similar offence, it was moved on the part of the prosecution, that he should be adjudged to pay the whole penalty of £200 and the costs, and submitted that the court had the power of awarding costs under the words of the 9 & 10 Will. 3, c. 41, s. 2. And the court adjudged the defendant to pay the penalty of £200, together with the costs, which were taxed at £12.(s)

But the 39 & 40 Geo. 3, c. 89, took away the power of the court to sentence to hard labor. A defendant was brought up for judgment, after conviction on the 9 & 10 Will. 3, c. 41, s. 2, for unlawfully having in his possession the King's naval stores, marked with the King's mark, and judgment was about to be *pro

*599] nounced that he should be imprisoned in the house of correction for the

county of Surrey, and there kept to hard labor for three calendar months, and be once during that time publicly whipped. This would have been warranted by the 17 Geo. 2, c. 40, s. 10, reciting the 9 & 10 Will. 3, c. 41, and 9 Geo 1, c. 8; but a doubt occurring how far the power of sentencing to hard labor was taken away by the 39 & 40 Geo. 3, c. 89, s. 2, the court, upon further consideration, and compar ing the different provisions of these statutes, were of opinion that the power of sentencing to hard labor was taken away by the latter statute, and therefore pronounced judgment that the defendant should be imprisoned in the house of correction for the county of Surrey for three calendar months, and be once during that time publicly whipped.(t)

The 39 & 40 Geo. 3. c. 89, s. 1, enacts that persons convicted of unlawfully having certain naval stores in possession shall be deemed receivers of stolen goods, and transported for fourteen years, as other receivers of stolen goods are directed to be, but empowers the court by sec. 7 to commute the punishment by ordering the offender to be imprisoned, &c.; and the Court of Queen's Bench held that the 3 Geo. 4, c. 114, did not extend to cases within the 39 & 40 Geo. 3, c. 89, s. 1, so as to warrant a sentence of hard labor for offences under it. And that, even assuming this to have been otherwise, the 3 Geo. 4, c. 114, was repealed by the 7 & 8 Geo. 4, c. 27, s. 1, not being so incorporated with the 39 & 40 Geo. 3, c. 89, as to be kept alive by sec. 2 of the 7 & 8 Geo. 4, c. 27, which excepts from the repeal statutes relating to the public stores.(u)

(0) Rex v. Cole, 1 Esp. 169, Lord Kenyon, C. J., and see now the 6 & 7 Vict. c. 85, and 16 & 17 Vict. c. 83, post, vol. 3, in Evidence.

(p) Rex v. Blackman, 1 Esp. 5.

(9) Rex v. Banks, 1 Esp. R. 145.

(r) Rex v. Bland, 5 T. R. 370; 2 Leach 595; 2 East P. C. c. 16, s. 148, p. 760. And the 39 & 40 Geo. 3, c. 89, s. 2, expressly exacts as to corporal punishment: ante, p. 582. (8) Chapple's case, 5 T. R. 371, note (a). (t) Rex v. Bridges, 8 East 53. (u) Reg. v. Silversides, 3 Q. B. 406 (43 E. C. L. R.).

An indictment under the 39 & 40 Geo 3, c. 89, s. 1, alleged that the defendant unlawfully had in his custody certain naval stores, he "not being a contractor with the principal officers or commissioners" of the navy, &c., and the Court of Queen's Bench held that the allegation of the defendant's not being a contractor could refer to no time but the time at which the defendant was in possession of the stores, and thereupon the indictment was good.(v)

Upon the trial of any indictment for any offence mentioned in this chapter, which is capable of being attempted to be committed, the jury may, under the 14 & 15 Vict. c. 100, s. 9.(w) convict the prisoner of an attempt to commit the same, and thereupon he may be punished in the same manner as if he had been convicted upon an indictment for such attempt.

The preceding position is limited for this reason. There are some offences which may be attempted to be committed, whilst there are others which cannot be so attempted. It is obvious that wherever an offence consists in an act that is done, there may be an attempt to do that act, which will be an attempt to commit that offence. But where an offence consists in an omission to do a thing, or in such a state of things as may exist without anything being done, it should seem that there can be no attempt to commit such offence. Thus if an offence consist in [*600 omitting or neglecting to turn the points of a railway, it may well be doubted whether there could be an attempt to commit that offence. And a very nice question might perhaps be raised on an indictment on the 9 & 10 Will. 3, c. 41, s. 2, for having possession of marked stores, where the evidence failed to prove that the stores actually came into the prisoner's possession, though an attempt to get them into his possession, as in Reg. v. Cohen.(x) and knowledge of their being marked might be proved; for in order to constitute the offence of having possession of anything, it is not necessary to prove any act done,(y) and, therefore, it would be open to contend that there could not be an attempt to commit such an offence. It is to be observed, however, that the 27 & 28 Vict. c. 91, s. 7,(z) has the words "receives, possesses," &c.; and on a count charging the receiving of stores, there seems no reason to doubt that there might be a conviction of an attempt to receive; for receiving clearly includes an act done. Thus in a case already mentioned (a) where the prisoner went to a coach-office, and endeavored to get possession of stolen fowls which had come by coach, there seems no reason why she might not have been convicted of an attempt to receive the fowls.

*CHAPTER THE THIRTY-FIRST.

[*601

OF UNLAWFULLY RECEIVING TACKLE OR GOODS CUT FROM OR LEFT BY SHIPS; AND OF RECEIVING GOODS STOLEN ON THE RIVER THAMES.

THE 1 & 2 Geo. 4, c. 75, contained various provisions relating to the unlawfully receiving tackle or goods cut from or left by ships, but this Act was repealed by the 9 & 10 Vict. c. 99, s. 2, and this Act contained provisions by which persons, who, with intent to defraud the owners, purchased or received any boat, anchor, cable, goods, or merchandise which had been obtained as therein mentioned, were made guilty of receiving stolen goods, and other provisions by which persons conveying, &c., any vessel, boat, anchor, chain, cable, or other article, to any foreign port, and there selling. &c., the same, were made guilty of felony; but this Act was repealed by the 17 & 18 Vict c. 120. The 17 & 18 Vict. c. 104, introduces new provisions. (a)

(v) Reg. v. Silversides, supra. See Rex v. Somerton, 7 B. & C. 463 (14 E. C. L. R.) ; Reg. v. Page, 9 C. & P. 756 (38 E. C. L. R.); 2 M. C. C. R. 219, ante, vol. 1, p. 132. (x) Ante, p. 594.

(w) Ante, vol 1, p. 1.

(y) See the cases collected in vol. 1, pp. 85, 86. (z) Ante, p. 589.

(a) Reg. v. Whiley, ante, p. 565.

(a) These provisions do not appear to be equally extensive with those in the repealed

Act.

Sec. 478. "Every person who does any of the following Acts (that is to say): "(1.) Wrongfully carries away or removes any part of any ship or boat stranded or in danger of being stranded or otherwise in distress on or near the shore of any sea or tidal water, or any part of the cargo or apparel thereof, or any wreck; or "(2.) Endeavors in any way to impede or hinder the saving of such ship, boat, cargo, apparel, or wreck; or

"(3.) Secretes any wreck, or obliterates or defaces any marks thereon;— shall, in addition to any other penalty or punishment he may be subject to under this or any other Act or law, for each such offence incur a penalty not exceeding fifty pounds; and every person, not being a Receiver or a person hereinbefore authorized to take the command in cases of ships being stranded or in distress, or not acting under the orders of such Receiver or person, who, without the leave of the master, endeavors to board any such ship or boat as aforesaid, shall for each offence incur a penalty not exceeding fifty pounds; and it shall be lawful for the master of such ship or boat to repel by force any such person so attempting to board the same."

*602]

Sec. 479. "If any person takes into any foreign port or place any ship or boat stranded, derelict, or otherwise in distress on or near the shore of the sea or of any tidal water situate within the limits of the United Kingdom, or any part of the cargo or apparel thereof, or anything belonging thereto, or any wreck found within such limits as aforesaid, and there sells the same, he shall be guilty of felony, and be subject to penal servitude for a term not exceeding four The 2 Geo. 3, c. 28, which contained various provisions relative to persons unlawfully receiving or having in possession ropes, materials, &c., of any vessel on the river Thames, is wholly repealed by the 2 & 3 Vict. c. 47, s. 24.

years."(b)

The 39 & 40 Geo. 3, c. 87, made further provisions for the more effectual prevention of depredations on this river and its vicinity, and recited that the said offences not being declared by the 2 Geo. 3, c. 28, to be felony, the trial might be traversed, and provided that the parties indicted under the 2 Geo. 3 should not

traverse.

From this section of the statute, it appears to have been the opinion of the Legislature that the offence of receiving, under the former Act, 2 Geo. 3, c. 28, s. 12, was only a misdemeanor. But a different construction was put upon the former statute, by the Court of King's Bench, in a case where a motion was made to bail a defendant, committed for receiving part of a cargo belonging to a vessel in the Thames, knowing it to have been stolen. The motion was opposed on the ground that the offence was a felony. And it was argued that by the 3 & 4 W. & M. c. 9. s. 4 (now repealed), receivers of stolen goods might be prosecuted as felons; and by the 1 Anne, st. 2, c. 9, s. 2 (also now repealed), might be punished as for a misdemeanor, where the principal felon was not convicted; that the statute under which the prisoner stood committed must be considered as in pari materiâ; and that although the twelfth section of it did not, in express words, declare that such offenders should be felons, yet it was evident they were intended by the Legislature to be so considered; for by the fourteenth section it was enacted, that any person stealing, or unlawfully receiving stolen goods, knowing the same to be stolen, should, on discovering two other offenders, be entitled to a pardon for all such felonies ; and the court was of opinion that it was a felony. (c) And upon this point it is observed, that the statute seems only to have made the receiving of the goods under such circumstances evidence of their having been received by the party, knowing them to have been stolen. (d) But the words of the statute appear to be very general in their expression, if in fact they were intended only to apply to the evidence of a receiving.

By the 2 & 3 Vict. c. 47, s. 26, "every person who within the metropolitan police district shall knowingly take in exchange from any seaman or other person, not being the owner or master of any vessel, anything belonging to any vessel lying in (b) See sec. 520, ante, vol. 1, p. 964, as to where the offence may be tried. (c) Rex v. Wyer, 1 Leach 480; 2 T. R. 77; 2 East P. C. c. 16, s. 145, p. 753. (d) 2 East P. C. c. 16, s. 145, p. 753.

the river Thames or in any of the docks or creeks adjacent thereto, or any part of the cargo of any such vessel, or any stores or articles in charge of the owner or master of any such vessel, shall be deemed guilty of a misdemeanor."

By sec. 27. "every person who shall unlawfully cut, damage, or destroy any of the ropes, cables, cordage, tackle, headfasts, or other the furniture of or belonging to any ship, boat, or vessel lying in the river Thames or in any of the docks or creeks adjacent thereto, with intent to steal or otherwise unlawfully obtain [*603 the same or any part thereof, shall be deemed guilty of a misdemeanor.

By sec. 28, it shall be lawful for any constable to take into custody every person who, for the purpose of preventing the seizure or discovery of any materials, furniture, stores, or merchandise, belonging to or having been part of the cargo of any ship, boat, or vessel lying in the river Thames or the docks or creeks adjacent thereto, or of any other articles unlawfully obtained from any such ship or vessel, shall wilfully let fall or throw into the river, or in any other manner convey away from any ship, boat, or vessel, wharf, quay, or landing place, any such article, or who shall be accessory to any such offence, and also to seize and detain any boat in which such person shall be found or out of which any article shall be so let fall, thrown, or conveyed away; and every such person shall be deemed guilty of a misdemeanor." The provisions contained in the 24 & 25 Vict. c. 96, relating to the plundering shipwrecked vessels, have been already noticed, (e) and the receiving property so plundered, where the stealing of it amounts to felony, is punishable under sec. 91 of that Act.(f)

*CHAPTER THE THIRTY-SECOND.

OF CHEATS, FRAUDS, FALSE TOKENS, AND FALSE PRETENCES.

[*604

WHERE the possession of goods was obtained, in the first instance, without fraud upon a contract or trust, a subsequent dishonest conversion of them, while the privity of contract continued undetermined, was in general formerly only a breach of trust or civil injury, not the subject of a criminal prosecution. (a) But where the party obtaining the goods has recourse to fraudulent means in the first instance, and thereby succeeds to the extent of inducing the owner not only to deliver the possession of the goods to him but absolutely to part with the property in them, though such a taking will not, as we have seen, be considered as felonious and amounting to larceny,(b) yet if effected by means of a false pretence, it will come within the 24 & 25 Vict. c. 96, s. 88, and be punishable as a misdemeanor. And that statute provides that if, upon the trial of any person indicted for such misdemeanor, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted of such misdemeanor. There are also other statutes which relate to particular cheats and frauds therein specified. And besides the offences of this kind punishable by statute, the common law also provides for the punishment of any of such cheats and frauds as may affect the public welfare. It was decided that, in order to constitute a cheat properly so called, there must be a prejudice received, both at common law and under the statutes (now repealed) of 33 Hen. 8, c. 1, and 30 Geo. 2, c. 24.(c)

In treating of these offences we may consider: I. Of cheats and frauds punishable at common law. II. Of cheats and frauds by means of false pretences, within the 24 & 25 Vict. c. 96, s. 88. And III. Of some of the cheats and frauds punishable by other statutes.

(e) Ante, p. 379.

(f) Ante, p. 542.

(a) 3 Inst. 107; 2 East P. C. c. 16, s. 113, p. 693; Ibid. c. 18, s. 1, p. 816. But see now the 24 & 25 Vict. c. 96, s. 3, ante, p. 247.

(b) Ante, p. 196, et seq. And see Pear's case, 2 East P. C. c. 16, s. 112, p. 689, note (a). (c) Ward's case, 2 Lord Raym. 1461; 2 Str. 747; 2 East P. C. c. 179 s. 7, p. 860.