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so convicted shall be subject and liable to and shall suffer all such No. 4. and the same pains, penalties, and forfeitures as by any law or Act of Parl. laws now in force persons convicted of the same respectively would 12 & 13 Vic. be subject and liable to in caso such offence had been committed, and were inquired of, tried, heard, determined, and adjudged, in England, any law, statute, or usage to the contrary notwith- punishments standing.

as on conviction of like offences in England. III. And be it enacted, That where any person shall die in any Provision for colony, of any stroke, poisoning, or hurt, such person having been the trial of feloniously stricken, poisoned, or hurt upon the sea, or in any

murder and

manslaughter, haven, river, creek, or place where the Admiral or Admirals have

where the power, authority, or jurisdiction, or at any place out of such colony, death only every offence committed in respect of any such case, whether the happens in the same shall amount to the offence murder or of manslaughter, or Colony or upon

the Sea. of being accessary before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished in such colony in the same manner in all respects as if such offence had been wholly committed in that colony; and that if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the Admiral or Admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea.

IV. Provided also, and be it enacted, That nothing in this Act Jurisdiction of contained shall in any way affect or abridge the jurisdiction of the the Supreme Supreme Courts of New South Wales and Van Diemen's Land, as

Courts of New established by an Act passed in the ninth year of the reign of and Van DieKing George the Fourth, entitled “ An Act to provide for the Ad- men's Land ministration of Justice in New South Wales and Van Diemen’s preserved. Land, and for the more effectual Government thereof, and for other 9 G. 4, c. 83. purposes relating thereto.

V. And be it enacted, That for the purposes of this Act the Interpretation word “

Colony” shall mean any island, plantation, colony, domi- of terms. nion, fort, or factory of Her Majesty, except any island within the United Kingdom, and the Islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent thereto respectively, and except also all such parts and places as are under the Government of the East India Company; and the word “ President ” shall mean the officer for the time being administering the Government of any colony.

VI. And be it enacted, That this Act may be amended or re- Aet may be pealed by any Act to be passed during this present Session of amended, &c. Parliament.

South Wales

No. 5.-ORDINANCE No. 13 of 1852.

No. 5. An Ordinance for further improving the administration of Criminal Ord. No. 13.

1852. Justice. (Passed 12th November, 1852. Assented to 1st

August, 1853.) HEREAS offenders frequently escape conviction on their PREAMBLE.

trials by reason of the technical strictness of criminal pro

W

No. 5. ceedings in matters not material to the merits of the case ; and, Ord. No. 13, whereas, such technical strictness may safely be relaxed in many 1852. instances, so as to insure the punishment of the guilty with

out depriving the accused of any just means of defence ;-and whereas, a failure of justice often takes place on the trial of persons charged with felony and misdemeanour, by reason of variances between the statement in the information on which the trial is had and the proof of names, dates, matters, and circumstances therein mentioned not material to the merits of the case, and by the misstatement whereof the person on trial cannot have been prejudiced

in his defence; May it, &c. Criminal in- I. That whenever, on the trial of any information for any felony formation may

or misdemeanour, there shall appear to be any variance between the be amended at

statement in such information and the evidence offered in proof time of trial in certain cases,

thereof, in the name of any island, parish, township, or place mentioned or described in any such information, or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any oficnce charged therein; or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged, by the commission of such offence, or in the Christian name or surname, or both Christian name and surname, or other description whatsoever of any person or persons whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, it shall and may be lawful for the Court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order such information to be amended according to the proof, by some officer of the Court, or other person, both in that part of the information where such variance occurs, and in every

other part of the information which it may become necessary to And trial post- amend on such terms, as to postponing the trial to be had by the poved. same or another jury as such Court shall think reasonable; and

after any such amendment, the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects, and with the same consequences, both with respect to the liability of witnesses to be prosecuted for perjury and otherwise, as if no such variance had occurred, and the order for the amendment shall be either endorsed on the information, or shall be engrossed on a

separate piece of paper, and filed, together with the information Proviso respect- among the records of the Court: Provided that in all such cases, ing recogni- where the trial shall be so postponed, as aforesaid, it shall be

lawful for the Court to respite the recognizances of the prosecutor and witnesses, and of the defendant, and his surety or sureties, if any, accordingly; in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence, respectively, and the defendant shall be bound to attend to be tried, at the time and place to which such trial shall be postponed, without entering into any fresh recognizances for that purpose, in such and the same manner as if they were originally bound by their recognizances to appear and prosecuto, or give evidence at the time and

zances.

ment,

such case.

state how

place to which such trial shall have been postponed : Provided, No. 5. also, that where any such trial shall be to be had before another Ord. No. 13, jury, the Crown and the defendant shall respectively be entitled to 1852. the same challenges as they were respectively entitled to before the first jury were sworn.

11. That every verdict and judgment which shall be given Effect of verdict after the making of any amendment under the provisions of this after amendOrdinance, shall be of the same force and effect in all respects as if the information had originally been in the same form in which it was after such amendment was made.

III. That if it shall become necessary at any time, for any pur- As to form pose whatsoever, to draw up a formal record in any case where of Record in any amendment shall have been made under the provisions of this Ordinance, such record shall be drawn up in the form in which th information was, after such amendment was made, without taking any notice of the fact of such amendment having been made.

IV. That in any information for murder or manslaughter, pre- Unnecessary in ferred after the coming of this Ordinance into operation, it shall information for not be necessary to set forth the manner in which, or the means Murder, &c., to whereby, the death of the deceased was caused; but it shall be

eflected, &c. sufficient in every information for murder, to charge that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased ; and it shall be sufficient in every information for manslaughter, to charge that the defendant did feloniously kill and slay the deceased.

V. That in any information for forging, uttering, stealing, em- In cases of bezzling, destroying, or concealing, or for obtaining by false pre- Forgery, &c., tences any instrument, it shall be sufficient to describe such how the ininstrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac-simile thereof, or otherwise describing the same, or the value thereof.

VI. That in any information for engraving, or making the whole Proceedings or any part of any instrument, matter, or thing whatsoever, or for ou informarising, or having the unlawful possession of any plate or other tions for enmaterial upon which the whole or any part of any instrument, graving, &c. matter, or thing whatsoever shall have been engraved or made, or for having the unlawful possession of any paper upon which the whole or any part of any matter, instrument, or thing whatsoever shall have been made or printed, it shall be sufficient to describe such instrument, matter, or thing by any name or designation by which the same may be usually known, without setting out any copy or fac-simile of the whole, or any part of such instrument, matter, or thing.

VII. That in all other cases, wherever it shall be necessary to How any inmake any averment, in any information as to any instrument, strument of whether the same consists wholly or in part of writing, print, or writing may

be described, figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile of the whole, or any part thereof.

VIII. That from and after the coming of this Ordinance into Forgery, &c. operation, it shall be sufficient in any information for forging, suflicient to uttering, offering, disposing of, or putting off any instrument aver that

Defendant did whatsoover, or for obtaining, or attompting to obtain any property so with intent

to defraud,

strument

may be described.

In cases of

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No. 5. by false pretences, to allege that the defendant did the act with inOrd. No.13, tent to defraud, without alleging the intent of the defendant to be 1852. to defrand any particular person; and on the trial of any of the

offences in this tion mentioned, it shall not be necessary to prove
an intent on the part of the defendant to defraud any particular
person, but it shall be sufficient to prove that the defendant did

the act charged with intent to defraud.
On informa- IX. And whercas offenders often escape conviction, by reason
tion charging that such parties ought to have been charged with attempting to
the actual

commit offences, and not with the actual commission thereof; for commission of Crime, the remedy thereof, be it ordained that, if on the trial of any person offender may be charged with any felony or misdemeanour, it shall appear to the convicted of

jury, upon the evidence, that the defendant did not complete the the attempt

offence charger, but that he was guilty only of an attempt to com-
to commit the
offence charged. mit the same, such person shall not, by reason thereof, be entitled

to be acquitted; but the jury shall be at liberty to return, as their
verdict, that the defendant is not guilty of the felony or misde-
meanour charged, but is guilty of an attempt to commit the same;
and, thereupon, such person shall be liablo to be punished in the
same manner as if he had been convicted upon an information
for attempting to comınit the particular felony or misdemeanour
charged in the said information; and no person, so tried, as herein
lastly mentioned, shall be liable to be afterwards prosecuted for an
attempt to commit the felony or misdemeanour for which he was so

tried.
On information X. That if upon the trial of any person, upon an information for
for Robbery, robbery, it shall appear to the jury upon the evidence that the
the jury may

defendant did not commit the crime of robbery, but that he did find a verdict for assault

commit an assault with intent to rob, thc defendant shall not, by with intent to reason thereof, be entitled to be acquitted ; but the jury shall be at Rob.

liberty to return as their verdict, that the defendant is guilty of an
assault with intent to rob; and thereupon such defendant shall be
liable to be punished in the sanie manner as if he had been con-
victed upon an information for feloniously assaulting with intent
to rob; and no person so tried, as is herein lastly mentioned, shall
be liable to be afterwards prosecuted for an assault with intent to

commit the robbery for which he was so tried. If on info: ma- XI. That if upon the trial of any person

for
any

misdemeanour, tion for mis- it shall appear that the facts given in evidence amount in law to a demeanodi, it

felony, such person shall not, by reason thereof, be entitled to be appear that the defendant is

acquitted of such misdemeanour; and no person tried for such misguilty of a Felo- demeanour shall be liable to be afterwards prosecuted for felony on ny, lie shall not the same facts, unless the Court before which such trial may be be acquittel of had shall think fit, in its discretion, to discharge the jury from the Misile: Jeabui linble giving any verdict upon such trial, and to direct such person to be

prosecuted for felony ; in which case such person inay be dealt with Felony. in all respocts as if he had not been put upon his trial for such

mistlomeanour.
On iniormation XII. That if upon the trial of any person, upon any informa-
for Embezzle- tion for embezzlement, as a clerk, scrvant, or person employed for
ment, defendant the purpose, or in the capacity of a clerk or servant, it shall be
guilty of proved that he took the property in question, in any such manner
Larceny. as to amount in law to larceny, he shall not, by reason thereof, be

entitled to be acquitted ; but the jury shall be at liberty to return
as their verdict, that such person is not guilty of embezzlement,

nour,
to be tied for

the same in

but is guilty of simple larceny, or of larceny as a clerk, servant, or No. 5. person employed for the purpose, or in the capacity of a clerk or Ord. No. 13, servant, as the case may be; and thereupon such person shall be 1852. liable to be punished in the same manner as if he had been convicted upon an information for such larceny; and if upon the trial of any person for larceny it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, he shall not, by reason thereof, be entitled to be acquitted, but the jury shall be at liberty to return as their verdict, that such person is not guilty of larceny, but is guilty of embezzlement, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an information for such embezzlement; and no person so tried for embezzlement or larceny, as aforesaid, shall be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts. XIII. That if

upon

the trial of two or more persons prosecuted Persons charged for jointly receiving any property, it shall be proved that one or with jointly more of such persons separately received any part of such pro

receiving perty, it shall be lawful for the jury to convict such of the said property. persous as shall be proved to have received any part of such property.

XIV. And whereas it frequently happens that the principal in Several aca felony is not in custody, or amenable to justice, although several cessaries may

be charged in accessaries to such felony, or receivers at different times of stolen property, the subject of such felony may be in custody, or ame- formation. nable to justice, for the prevention of several trials; be it ordained, that any number of such accessaries or receivers may be charged with substantive felonies, in the same inforination, notwithstanding the principal felon shall not be included in the same information, or shall not be in custody, or amenable to justice.

XV. That it shall be lawful to insert several counts in the same Three acts of information against the same person, for any number of distinct stealing from acts of stealing, not exceeding three, which may have been com

one person may

be included in mitted by him against the same person within the space of six

one information, calendar months' from the first to the last of such acts, and to if committed proceed thereon for all or any of them.

within six XVI. That if upon the trial of any information for larceny, it mouths.

Information shall appear that the property alleged in such information to have for Larceny, been stolen at one time was taken at different times, the prosecu- of property tor shall not, by reason thereof, be icquired to elect upon which stolen at taking he will proceerl, unless it shall appear that there were

several times. more than three takings, or that more than the space

of six calendar months elapsed between the first and last of such takings; and in either of such last-mentioned cascs, the prosecutor shall be required to elect to proceed for such number of takings, not exceeding three, as appear to have taken place within the period of six calendar months from the first to the last of such takings.

XVII. That in every information in which it shall be neces- Mode of desary to make any avowment as to any moncy, or any note of the scribing money, Bank of England, or any other bank, it shall be sufficient to de- &c., in an incribe such money or bank-note, simply as money, without specify

formation. ing any particular coin or bank-note; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank-note, although the particular species of coin of which such amount was composed,

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