HOUSEBREAKING.

JURY.

ing and entering a dwelling-house
and stealing therein certain goods,
specified in the indictment, the
property of the prosecutor. At
the time of the breaking and enter-
ing the goods specified were not
in the house, but there were other
goods there the property of the
prosecutor. The jury acquitted the
prisoner of the felony charged,
but found him guilty of breaking
and entering the dwelling-house
of the prosecutor, and attempting
to steal his goods therein. Held,
that the conviction was wrong, as
there was no attempt to commit
the "felony charged" within the
meaning of section 9 of 14 & 15
Vict. c. 100. Regina v. Andrew
M'Pherson,
197

of murder, brought error on the
judgment. The record set out an
award of venire to the sheriff
which required him to impannel
and return a jury "of good and
lawful men of the county," and
then proceeded to state that the
sheriff, for the purpose aforesaid,
impannelled and returned certain
persons and arrayed them in one
panel; but the sheriff's return did
not state that the persons so im-
pannelled were good and lawful
men of the county.

The panel contained fifty-four
names. Eighteen, when called, were
peremptorily challenged by the
prisoner; one came not; fifteen
were, on the prayer of the counsel
for the Crown (the prisoner's coun-
sel objecting and praying that
cause of challenge should be shown),
ordered to stand by; and nine
were elected and tried to be sworn.
There were only twelve other
persons on the panel and they
were at that time absent deli-
berating upon their verdict in
another case. The name of W. I.
(one of the persons so ordered to
stand by and being the first who
was so ordered on the prayer of
the Crown) was then again called,
and the counsel for the Crown
again prayed that he might be
ordered to stand by, upon which
the counsel for the prisoner prayed
that the cause of challenge should
be shown forthwith. Thereupon,
and before any judgment was
given, the twelve persons who sat
as a jury in the other case came
into Court and gave their verdict;
and the counsel for the Crown
then prayed that W. I. should be
ordered to stand by until such
twelve persons should be called;
but the counsel for the prisoner

demanded that W. I. should be
sworn unless cause of challenge
were shown. The Court ordered
that W. I. should stand by; and
three persons (being the number
required to complete the jury)
were taken from the said twelve
jurors, and elected and tried to be
sworn, although the prisoner's
counsel objected that such persons
ought to be called in their proper
order with other persons in the
panel, and that J. J., the
person
whose name stood in the panel
immediately after that of W. I.,
ought to be next called.

The

J. P., one of the said three last
mentioned jurors, then, without
being sworn, said, that he had con-
scientious scruples against capital
punishments; and thereupon the
counsel for the Crown prayed that
he should be ordered to stand by.
The counsel for the prisoner
prayed that the Crown should
show cause of challenge.
Judge then told J. P., that if he
felt that he could not do his duty
he had better withdraw; the said
J. P. then withdrew himself, and
thereupon it was ordered by the
Court that he should stand by.
Several others out of the said
twelve jurors were then, on the
prayer of the Crown, ordered to
stand by; one was peremptorily
challenged by the prisoner, and
another was then elected and tried
to be sworn in the place of the
said J. P., thus completing the
jury of twelve by whom the
prisoner was tried.

Held by the Court of Queen's
Bench and affirmed by the Court
of Exchequer Chamber: 1. That by
reasonable intendment the record
showed that the persons named in
the panel were good and lawful
men of the county.

2. That the statement in the
record that the Court ordered jury-
men to stand by meant that the

jurymen, being challenged by the
Crown, the consideration of such
challenge was postponed till it
should be seen whether a full jury
could be made without them; but
that, if the expression that jury-
men should stand by had no legal
meaning, error could not be
assigned upon it.

3. That notwithstanding the sta-
tute 33 Edw. 1. st. 4. (re-enacted
by 6 Geo. 4. c. 50. s. 29.) the Crown
need not show cause of challenge
till the whole panel be gone
through, and it appears there will
not be a full jury without the
persons challenged.

4. That the panel is not to be
considered as gone through, so as
to require the Crown to assign
cause of challenge, until the panel
is not only once called over but
exhausted that is until, according
to the usual practice of the Court
and what may reasonably be ex-
pected, the fact is ascertained that
there are no more jurors in the
panel whose attendance may be
procured; and, therefore, that W.
I. was properly ordered to stand
by the second time, and the three
persons then required to complete
the jury were properly taken from
the twelve persons who, having
sat upon another case, came into
Court before the formation of the
jury was completed.

5. That it is not necessary that
the names of the jurors should be
called over in the order in which
they stand on the panel, and that
course may be departed from when
convenience requires; that the
order in which the names were
called in this case was convenient,
and did not become illegal from
having been suggested by the
counsel for the Crown.

6. That the Court (without at-
taching any weight to what the
said J. P. had said) was bound, on
the prayer of the counsel for the

Crown, to order him to stand
by, as he was in fact challenged
by the Crown without assigning
cause, and the challenge was not
too late.

Semble, by the Court of Queen's
Bench and by the Court of Ex-
chequer Chamber, that there may
be cases in which it would be the
duty of the Court, even where
there is no challenge or objection,
either by the Crown or the pri-
soner, to excuse a juryman on the
panel when he is called, or to
order him to withdraw if he is
palpably unfit to perform his
duty, through physical or mental
infirmity.

Held, by the Court of Exchequer
Chamber, that where a person
convicted of felony brings error
from the Court of Queen's Bench
to the Exchequer Chamber, the
general rules for governing the
proceedings in error in civil cases
under the Reg. Gen. of H. T.,
4 Wm. 4., and under the Common
Law Procedure Act, do not apply;
but the prisoner must be brought
up to the Court of Exchequer
Chamber and must there pray
oyer of the record and assign er-
rors by delivering them in writing
to the officer of that Court and
must be present during the ar-
gument and the delivery of the
judgment; and that the Attorney
General or the counsel represent-
ing him for the Crown may, im-
mediately on the assignment of
errors being so delivered, orally
join in error.

Quære, by the Court of Exche-
quer Chamber, whether the objec-
tions taken were matter of error.
Mansell v. Regina in Error, 375

2. On a trial for murder the panel
of petit jurors, returned by the
sheriff, contained the names of
J. H. T. and W. T. The name of
J. H. T. was called from the panel

as one of the jury, and J. H. T., as
was supposed, went into the box,
and was duly sworn as J. H. T.
without challenge. The prisoner
was convicted. The following day
it was discovered that W. T. had
by mistake answered to the name
of J. H. T., and that W. T. was
really the person who served on
the jury.

Held, by Lord CAMPBELL C. J.,
COCKBURN C. J., COLERIDGE J.,
MARTIN B. and WATSON B., that
there had been a mistrial, and that
the Court for the Consideration of
Crown Cases Reserved had juris-
diction to set aside the verdict and
judgment; and (dubitante COLE-
RIDGE J. and MARTIN B.) that
the Court ought to order a venire
de novo to issue.

Held, by ERLE J., CROMPTON J.,
CROWDER J., WILLES J., CHAN-
NELL B., and BYLES J., that there
was no mistrial.

Held, by POLLOCK C. B., Erle
J., WILLIAMS J., CROMPTON J.,
CROWDER J., WILLES J. and
CHANNELL B., that this was not a
question of law arising on the trial
over which the Court had juris-
diction.

Query, whether the objection
made would be matter of error.
Regina v. Aaron Mellor, 468

LARCENY.

1. The prisoner was convicted of
stealing certain articles which
were stolen from the prosecutor's
house on November 2, and sold by
the prisoner on the night of
November 4 in a room in a public
house in which there were about
thirty persons. The prisoner told
the constable that C. and D.
brought the goods to his house
and that E. would say so, and that
being on the spree he (the pri-
soner) sold the goods and spent
the money. C. was subsequently

3. The prisoner was convicted on an
indictment charging him with
stealing certain articles the pro-
perty of the prosecutor. It ap-
peared that the prisoner, who
lodged in the house of the prose-
cutor, agreed with his wife that
they should go away and live
together in adultery. The prisoner
left the house and the wife of the
prosecutor followed him, and they
were overtaken on the road in
company together, the prisoner
carrying a band box containing
the articles mentioned in the in-
dictment, being in fact part of the
wearing apparel of the prosecu-
tor's wife. Held, that the convic-
tion was wrong. Regina v. Charles
Fitch,

187

4. The prisoner was convicted of
larceny from T. J. It appeared
that T. J., the owner of a watch,
sent it, to be regulated, to A.,
(the person from whom he had
bought it), who had no authority
to deliver it to any one except the
owner. The prisoner fraudulently

induced A. to believe that T. J.
desired that the watch should be
sent by post to the postmaster at
B. in a letter; and, the watch
having been so sent, the prisoner
personated T. J. and induced the
postmaster to deliver it to him as
T. J. Held, that on the receipt
of the watch by the postmaster
the special property of A. ceased,
and the general property of the
owner becoming unincumbered
drew to it the possession; that
the postmaster, for the purpose
of delivering the watch to the
owner, was his servant, and
the postmaster's possession being
the possession of the true owner,
that the prisoner was rightly con-
victed of larceny from T. J. Re-
gina v. William Kay,
231

The prisoner was charged with
stealing a number of articles laid
as the property of the Bishop of
Peterborough, the county in which
the things were stolen being in
that diocese.

To prove the intestacy of the
person to whom the property had
belonged, and that the property was
in the Ordinary, it was shown that
a search for a will had been un-
successfully made in the drawers
and boxes of the deceased, and that
no letters of administration had
been taken out in the proper local
Court.

As to some of the articles men-
tioned in the indictment, it was
shown that they were in the pos-
session of the deceased at the time
of her death; but as to the majority
of the articles there was no evidence
to show whether they were taken
before or after her death, except
that many of them were, on the
day of the funeral, taken by the
prisoner to the house of a witness.
The Court, on the trial of the
prisoner, refused to confine the
case to the things shown to have

6. The prisoners were convicted of
stealing gloves the property of
their master. The prisoners were
in the prosecutor's employ as
glove finishers, and the practice
was to take the finished gloves
into an upper room on the prose-
cutor's premises and lay them on
a table in order that the workmen
might be paid according to the
number they had finished. The
prisoners took aquantity of finished
gloves out of a store-room on the
same premises, and (without re-
moving them from the premises
of the prosecutor) laid them on
the table in the said upper room
with intent fraudulently to ob-
tain payment for them as for so
many gloves finished by them.
Held, that the conviction was
wrong. Regina v. Holloway, 1
Den. C. C. 370, approved. Regina
v. John Poole and John Yeates,
345

7. The prisoner was convicted upon
an indictment charging him with
stealing a cheque. It was proved
that the prisoner was clerk to a
savings bank, and received the
cheque from a manager of the
bank upon a false representation
that one of the depositors had
given notice of withdrawal, and
for the purpose of handing it over
to the depositor. It was found
that, according to the usual course
of business, if a depositor could

The prisoner was employed by a
banking company to conduct a
branch bank, and the whole of the
duties of that branch bank were
discharged by him alone. His
salary not only included payment
for his services, but also for pro-
viding an office in his own house
(where he carried on another
business) for the purposes of the
bank. In this office was an iron
safe, provided by the bank, into
which it was the duty of the pri-
soner to put at night money which
had been received by him during
the day, and which had not been
required for the purposes of the
bank. The manager of the bank
kept one key of this box and the
prisoner another. The prisoner
furnished weekly accounts of
monies received and paid by him,
showing the balance in his hands
and of what notes, cash or secu-
rities that balance consisted. In
September 1855 the prisoner's
accounts were audited and his cash
found correct; but, although for
two years afterwards he furnished
the usual weekly accounts, no
examination was during that time
made of the balances appearing
from those accounts to be in his
hands. In September 1857, the
manager having appointed a time
for examining the cash in the
hands of the prisoner, he said he
was about 3000l. short in his cash,
and handed over to the manager
7557. 10s. which he said was all
the cash he had left, and which
sum he took from a drawer in the
counter and not from the safe.