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that he did not know that the ring was false, he being employed, as he said, by Roberts to pawn the ring, and believing his assertion that it was a diamond ring.

REG.

v.

FRANCIS.

1874.

False

Evidence.

Evidence was then offered, in order to prove guilty knowledge in Francis, that he had shortly before offered other false articles to other pawnbrokers. I admitted the evidence, but as the cases Pretencesrelied on for the prosecution were all cases either of forgery, or uttering counterfeit coin, I reserved the question whether, on such a charge as this, such evidence was admissible for the purpose of proving guilty knowledge.

A witness was called who proved that on the 6th of January, 1873, at Bedford, the prisoner Francis obtained 35s. from a pawnbroker of the name of Lazenby on the pledge of a chain represented by him to be a gold chain, and that he then gave a false name and address. The chain was produced in Court and evidence was given that it was silver coated with gold, and not worth 358.

On the same day the 6th Jan. Francis, at Leicester, offered to a pawnbroker called Stowe, who was called as a witness, in pledge a watch and a cluster ring, consisting as he said of diamonds, and asked for an advance of 15l. upon them. The pawnbroker refused to advance anything, telling him the ring was not a diamond ring.

On the same day Francis offered in pawn to Taylor, also called as a witness, the son of a pawnbroker in Leicester, a watch and a cluster ring which he said was a diamond ring, and asked 131. on them. Taylor thought the ring not a diamond ring, but did not say so to the prisoner. He told him he could not advance so much in the absence of his father, and desired the prisoner to come again next day. He did not do so.

The cluster ring mentioned by these two witnesses was not produced in Court, and the only evidence that it was false was the opinion of Stowe and Taylor that it was so.

There was no sufficient evidence against Roberts, aud I directed his acquittal and a verdict of not guilty on the counts for a conspiracy.

I left to the jury the case against Francis on the counts for an attempt to obtain money, by false pretences, telling them that it was of the essence of the charge not only that Francis attempted to obtain the advance on the ring as a diamond ring when it was not, but also that he then had guilty knowledge that it was not. And I left to them as evidence of that guilty knowledge the previous transactions. The jury found him guilty. I have no doubt that the evidence admitted had much weight with them, and therefore if the evidence was improperly received the conviction should be quashed.

I sentenced the prisoner to nine months' imprisonment, but respited the execution of the sentence till the point of law was determined, directing that he should be admitted to bail if he could find two securities in 501. each.

The question for the opinion of the Court is,

REG.

v.

FRANCIS.

1874.

False Pretences

Whether the evidence above mentioned was properly received for the purpose of proving guilty knowledge.

(Signed)

COLIN BLACKBURN.

Hensman for the prisoner.-The evidence in question ought not to have been received, for it was calculated merely to introduce Evidence. prejudice against the prisoner, and to embarrass him in his defence by importing a number of other charges into the case without notice, and which the prisoner had not a fair opportunity of defending himself against. By the Prevention of Crime Act, 1871 (34 & 35 Vict. c. 112), s. 19, evidence of other stolen property having been found in the possession of a person proceeded against for having received goods knowing them to be stolen may be given, but that is limited to the period of twelve months previously. But here the principle upon which it is proposed to admit the evidence in question has no limit in point of time. [BLACKBURN, J.-Yes, it must be reasonably near the time to the case before the Court, to afford a presumption of the prisoner's innocence.] Evidence of this kind has heretofore been usually confined to cases of passing counterfeit coin and forged bank notes. In 1 Rus. on Crimes, 127 (3rd edit.), it is said "For the purpose of proving the act charged in the indictment to have been done knowingly, it is the practice to receive proof of more than 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 on trials for disposing of and putting away forged bank notes, knowing them to be forged." In Reg. v. Oddy (5 Cox C. C. 110), where, before the 34 & 35 Vict. c. 112, it was held that, on an indictment for receiving stolen goods, evidence that the prisoner had, at a time previous to the receipt of the prosecutor's goods, had in his possession other similar goods stolen from another person was held inadmissible. Lord Campbell, C.J. said "that the evidence went to show that the prisoner was a very bad man and a likely person to commit such offences as those charged, but that the law of England does not allow one crime to be proved in order to raise a probability that another crime has been committed by the same person; that the evidence which was received at the trial did not tend to show that the particular goods in the indictment were stolen at the time that he received them; that the rule which had prevailed in the case of indictments for uttering forged bank notes of allowing evidence to be given of the uttering of other forged notes to different persons had gone to great lengths, and that he should be unwilling to see the rule applied generally in the administration of the criminal law." So in Reg. v. Holt (8 Cox C. C. 411) it was held that, upon an indictment for obtaining a sum of money from a customer of the prosecutors by a false pretence, evidence that the prisoner had obtained, within a week previously, another sum of money from another customer by a like false pretence, was inadmissible.

[Lord

REG.

v.

FRANCIS.

1874.

False

Evidence.

Coleridge, C. J., referred to Reg. v. Gray (4 F. & F. 1102), where the prisoner was indicted for arson with intent to defraud an insurance company, and in order to prove that the fire was the result of design and not of accident, evidence was admitted that the prisoner had previously occupied two houses in succession both of which had been insured, that fires had broken out in Pretences both, and that the prisoner had been paid by the insurance companies in respect of such fires. Again in Reg. v. Geering (18 L. J. 215, M. C.) where upon an indictment of a woman for poisoning her husband by arsenic, in order to show that his death was not accidental, evidence was admitted that arsenic had been taken by three of the sons a few months after their father's death, and that the husband and the three sons who died all exhibited the same symptoms and that the woman had been in the habit of preparing their meals.] In those cases the evidence seems to have been admitted on the ground that it was evidence of one continuing transaction. In Reg. v. Oddy, Alderson, B. said "One reason why such evidence had been held to be admissible in charges of uttering might be that one act of uttering a forged note or bill might be said to be similar to another act of uttering a forged note or bill. And so it is clear that the act received in evidence is of the same nature as that which it is admitted to explain." A man has no right to be in possession of forged notes. but he has a right to be in possession of false diamonds. Again the evidence received was of offences against different persons. The cases of Rex v. Millard (Rus. & Ry. 245), Reg. v. Forbes (7 C. & P. 224) and Reg. v. Cooke (8 C. & P. 582) were then referred to. However it may be with respect to the admission of evidence of the acts themselves, what was said and done by the prisoner and the pawnbrokers at the time was not receivable. Evidence only of the fact of pawning and attempting to pawn false jewellery was admissible: (Rex v. Phillips, 1 Lew 106; Reg. v. Fudge, 9 Cox C. C. 430.)

No counsel was instructed to argue for the prosecution.

Cur. adv. vult.


May 8.-The judgment of the Court was this day delivered by
Lord COLERIDGE, C.J.-In this case the question reserved for the
Court is, whether the evidence mentioned in the case was properly
received for the purpose of proving guilty knowledge. No ques-
tion is reserved as to the weight of that, evidence, the Judge who
tried the case not entertaining any doubt that, if the evidence was
properly received, the verdict was justified. It seems clear upon.
principle that, when the fact of the prisoner having done the
thing charged is proved, and the only remaining question is
whether, at the time he did it, he had guilty knowledge of the
quality of his act, or acted under a mistake, evidence of the class
received must be admissible. It tends to show that he had been
pursuing a course of similar acts, and thereby it raises a presump-
tion that he was not acting under a mistake. It is not conclusive;

REG.

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FRANCIS.

1874.

False

Evidence.

for a man may be many times under a similar mistake or may be many times the dupe of another. But it is less likely he should be so oftener than once, and every circumstance which shows that he was not under a mistake on any one of these occasions strengthens the presumption that he was not on the last. This is amply borne Pretences out by authority. In the case of Rex v. Tattersall, mentioned by Lord Ellenborough in Rex v. Wylie (1 N. R. 93), the question reserved by Chambre, J., was "Whether the prisoner had not furnished pregnant evidence, and whether the jury, from his conduct on one occasion might not infer his knowledge on another." The opinion of the Judges was that the jury were at liberty to make such an inference. The cases in which this had been acted on are most commonly cases of uttering forged documents or base coin, but they are not confined to those cases. Now, in the present case the prisoner was tried on two charges of attempting on the 8th of January, at Northampton, to obtain money from two different pawnbrokers by the false pretence that a worthless piece of jewellery consisted of real stones, and evidence that he, on the 6th of January, at Bedford, obtained money from another pawnbroker on the pledge of a chain which he represented to be gold when it in fact was not gold, was surely matter from which the jury might infer that he was pursuing a course of cheating pawnbrokers by knowingly passing off on them false articles under the pretence that they were genuine; and that inference was greatly strengthened by the fact that he at that time gave a false name. And though the charge on which he was tried was for attempting to pass off a false ring, the inference that he had a guilty knowledge is as legitimate as if it had been a second false chain. It was objected that the evidence of what took place at Leicester was not properly received, because the cluster ring which he there attempted to pass was not produced in Court, and that the evidence of two witnesses who saw it, and swore to its being false, was not admissible. No doubt, if there was not admissible evidence that this ring was false, it ought not to have been left to the jury. But though the non-production of the article may afford ground for observations more or less weighty, according to the circumstances, it only goes to the weight, not to the admissibility of the evidence, and no question as to the weight of this evidence is now before us. Where the question is as to the effect of a written instrument, the instrument itself is primary evidence of its contents, aud until it is produced, or the non-production is excused, no secondary evidence can be received. But there is no case whatever deciding that when the issue is as to the state of a chattel, e.g., the soundness of a horse or the quality of the bulk of goods sold by sample, the production of the chattel is primary evidence and no other evidence can be given till the chattel is produced in Court for the inspection of the jury. The law of evidence is the same in criminal and in civil suits. The conviction therefore should be confirmed.

Conviction affirmed.

SUPREME COURT OF ILLINOIS, U.S.

October 3, 1873.

RAFFERTY V. THE PEOPLE.

Murder-Police Officer acting on a Void Warrant-Manslaughter. If the process under which a Police Officer arrests is so defective as to be an absolute nullity, or if the Officer exceed his authority, the killing of him by the party arrested, if there be no malice, is manslaughter only, and not murder.

A

POLICEMAN, named Scanlan, had arrested the prisoner upon a warrant which was one of a number signed by the magistrate in blank. The name of the prisoner was written therein by Police Sergeant Hood in the absence of the magistrate, as was also the date, which was made Aug. 5 instead of being Aug. 4, which was Sunday. Scanlan had no other authority to arrest the prisoner than this warrant. There was resistance by the prisoner to the arrest, and in the conflict the policeman Scanlan was killed.

The prisoner Rafferty was indicted for murder. The facts as to the imperfect warrant were proved, and it was contended on his behalf that although where officers have authority to arrest and are assaulted and killed in the proper exercise of such authority, it is murder-if the arrest is illegal the offence is reduced to manslaughter. The Court had refused to allow the warrant to be put in evidence in order to show its illegality, and it was contended for the prisoner that the Court had no right to exclude the warrant inasmuch as it was competent to the accused to show that the homicide was manslaughter only and not murder. The jury found the prisoner guilty of murder, and he brought his writ of error, upon which, after argument, the Court now gave judge

ment.

The opinion of the Court was delivered by MCALLISTER, J.

The plaintiff in error having been found guilty upon an indictment for the murder of Patrick O'Meara, and sentenced to suffer the penalty of death, has caused the evidence, together with the rulings of the Court and exceptions taken, to be preserved in a bill of exceptions, and brought the record to this court for review upon writ of error. Various errors have been assigned, among which is the exclusion of proper evidence, and overruling his motion for a new trial. We propose to consider but one question

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