1837.

and the counsel for the prosecution will be entitled to the reply upon it.

3. That the witness cannot, in cross-examination, be compelled to answer, whether he did or did not make such or such a statement before the magistrate, until after his deposition has been read, and it appears that it contains no mention of such statement. In that event the counsel for the prisoner may proceed with his cross-examination; and if the witness admits such statement to have been made, he may comment upon such omission, or upon the effect of it upon the other part of his testimony; or if the witness denies that he made such statement, the counsel for the prisoner may then, if such statement be material to the matter in issue, call witnesses to prove that he made such statement. But in either event, the reading of the deposition is the prisoner's evidence, and the counsel for the prosecution will be entitled to reply.

4. If the only evidence called, on the part of the prisoner, is evidence to character, although the counsel for the prosecution is entitled to the reply, it will be a matter for his discretion whether he will use it or not. Cases may occur in which it may be fit and proper so to do.

5. In cases of public prosecutions for felony, instituted by the Crown, the law officers of the Crown, and those who represent them, are, in strictness, entitled to the reply, although no evidence is produced on the part of the prisoner.

INDEX

TO

THE PRINCIPAL MATTERS.

ABORTION.

It is an answer to an indictment in the second section of
43 G. 3. c. 58., for the single felony, that the woman
was pregnant. Rex. v. Scudder.

ACCEPTANCE.

See FORGERY, 7, 16. UTTERing, 3.

Page 216

An indictment under 11 G. 4. and 1 W. 4. c. 66. s. 3., for
uttering a forged bill of exchange, is not supported by
proof of uttering a bill of which the acceptance only is
forged. The indictment must charge the uttering the
forged acceptance. Rex v. Horwell.

ACCESSARY.

See PRINCIPAL and ACCESSARY. FELO DE SE.

ACCOMPLICE.

See FELO De Se.

ACCOUNT, CREDIT IN.

See FALSE PREtences, 1.

ACQUITTANCE.

See FORGERY, 15.

AFFIRMATION.

See QUAKER, 2.

405

A quaker is not a good juryman on his affirmation.

Rex v. Robert Channens.

AGISTMENT.

See LARCENY, 18.

374

SLAUGHTER, 1. WARRANT.

1. If a man be found attempting to commit a felony in
the night, any one may apprehend and detain him,
until he can be carried before a magistrate.

Hunt.
Page 93
2. If a constable take a man without a warrant, upon a
charge which gives him no authority to do so, and
the prisoner runs away and is pursued by J. S., who
was with the constable all the time, and charged by
him to assist, and the man kill J. S. to prevent his re-
taking him, it will not be murder, but manslaughter
only, because the arrest was illegal, and J. S. ought to
have known it was, and then his attempt to retake
was illegal also; and that, though the prisoner, whilst
in custody of the constable, struck the man by whom
charge was given, because a blow, whilst he was under
the influence of the provocation from the illegal arrest
caused by such man, would not justify the constable
in detaining him; at least it will make no difference if
the blow was not likely to be followed with dangerous
consequences nor made a new and distinct ground of
detainer. Rex v. Curvan.

132

3. A man may be arrested without warrant under
3 G 4. c. 40. s. 5., as a person found in a dwelling-house,
and with intent to commit a felony, if he is seen in the
dwelling-house, but gets out of it, and is taken on fresh
pursuit. And it makes no difference that he was not
seen getting out of the house, and was found conceal-
ing himself to avoid being apprehended upon other
premises near.

To make such an arrest legal, it is not necessary that the

person should have at the time he is arrested a con-
tinuing purpose to commit the felony; he may be ar-
rested though that purpose is wholly ended.
Where the circumstances are such, that a man must
know why a person is about to apprehend him, he
need not be told, and the arrest will be legal, and the
resistance illegal, as much as if he had been told.
Rex v. Howarth.
Page 207
4. Attempting illegally to arrest a man is sufficient to
reduce killing the person making the attempt to man-
slaughter, though the arrest was not 'actually made,
and though the prisoner had armed himself with a
deadly weapon to resist such attempt; if the prisoner
was in such a situation that he could not have escaped
from the arrest; and it is not necessary that he should
have given warning to the person attempting to arrest
him before he struck the blow. Rex v. Thompson. 80

ARSON.

See CHALLENGE TO THE PANEL.

INDICTMENT, 23.

SHIP. THREATENING LETTERS, 3. MALICE.

1. A house, in part of which a man lives, and other
parts of which he lets to lodgers, may be described as
his house, though he has taken the benefit of the In-
solvent Debtor's Act, and executed an assignment
including the house, if the assignee has not taken pos-
session; at least no objection can be made if in other
counts it is stated as the house of the assignee, and in
others of the lodger, whose room was set fire to.
Rex v. Ball.

3.

30

2. It is not within 7 & 8 G. 4. c. 30. s. 2., for a wife to
set fire to her husband's house. Rex v. March. 182
An open building in a field, at a distance from, and
out of the sight of the owner's house, though board-
ed round and covered in, is not an out-house within
7 & 8 G. 4. c. 30. s. 2. Rex v. Ellison and another. 336
4. It is no objection on not guilty, that there is no such
place in the county as that in which the offence is
stated to have been committed.

ARSON- continued.

On an indictment for setting fire to a stack of pulse, a
mistake as to the name of the place where the offence
was committed is immaterial: the charge is transitory,
not local.

Upon a statute which makes it capital to set fire to a
stack of pulse, it is sufficient to state that the prisoner
set fire to a stack of beans. The judges will take no-
tice that beans are pulse. Rex v. Woodward. Page 323
5. An open shed in a farm-yard, composed of upright
posts supporting pieces of wood laid across them, and
covered with straw as a roof, is an outhouse within
the meaning of 7 & 8 G. 4. c. 30. s. 2. To consti-
tute a setting on fire, it is not necessary that any flame
should be visible. Rex v. Stallion.

398

6. An Indictment for firing a stack of straw is not sup-
ported by proof of firing a stack of hauln.
Tottenham.

ASPORTATION.

Rex v.

See COUNTY, 1. 3. LARCENY, 1. STEALING from the
PERSON. SHEEPSTEALING, 1.

If a larceny be committed out of the kingdom, though
within the King's dominions, bringing the things
stolen into this kingdom, will not make it larceny
here. Rex v. Prowes.

ASSAULT.

349

Making a female patient strip naked under the pretence
that the defendant, a medical man, cannot otherwise
judge of her illness is, if he himself takes off her
clothes, an assault. Rex v. Rosinski.

ASSES.

See CATTLE, 1.

AUTRE FOIS ACQUIT.

19

1. Plea by one prisoner, indicted singly for receiving stolen
goods, of autre fois acquit, under an indictment
against him and four others, on which one was con-
victed, and the prisoner and the three others were
acquitted, held good. Rex v. Dann.

424

2. An acquittal on an indictment for having been pre-