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prove the defendant to be guilty of the offence charged against him, before the latter can be called upon for his defence. Even where an offence consists wholly or partly of an omission or negative, the prosecutor must prove the negative. And therefore where, upon an indictment for coursing deer in inclosed ground, without the consent of the owner, the question was, whether the onus lay upon the prisoner to prove that he had the consent of the owner: Lawrence, J., held, that it did not, but that it was incumbent on the owner to prove the negative; and the owner not being in attendance, the prisoner was acquitted. R. v. Rogers, 2 Camp. 654. So, where, upon an indictment for lopping and topping trees in the night time, without the consent of the owner, it was proved that the prisoners had committed the offence in the night time, and when detected, had run away; that the owner, after the offence was committed, had given orders for the apprehension of the prisoners, but died before the trial; and the land-steward proved that he himself never gave consent, and he believed his master never did: Bayley, J., told the jury that they must be satisfied that the prisoners did not obtain the consent of the owner, but left it to them to say whether the facts proved did not furnish reasonable evidence of want of consent; and the jury found the prisoners guilty. R. v. Hazy & Collins, 2 Car. & P. 458. But where an offence is created by statute, and an exception is made, either by another statute, or by another and substantive clause of the same statute, it is not necessary for the prosecutor, either in the indictment or by evidence, to show that the defendant does not come within the exception; but it is for the defendant to prove the affirmative, and which he may do under the plea of not guilty. See R. v. Pemberton, 1 W. Bl. 230. See ante, p 86.

As to the facts, &c., to be proved: it is a general rule, that all the facts and circumstances stated in the indictment, which cannot be rejected as surplusage, must be proved; as to what facts must be stated, I have already treated of that subject, ante, p. 86. But where a felony is made additionally penal by statute, if committed at a particular time or place, or under particular circumstances, then, if the time or place or circumstances be not proved, the offender may still be convicted of the simple felony: as, for instance, if upon an indictment for stealing from a dwelling house to the value of five pounds, if the prosecutor prove the larceny, but fail in proving the value, or that the stealing was from the dwelling house, the defendant may be found guilty of the simple larceny. If upon an indictment for breaking and entering a house, &c. and stealing therein, you prove the larceny, but fail to prove the breaking and entering, the prisoner may still be convicted of stealing in the dwelling house, or of the simple larceny. So, in all cases of offences which, either at common law or by

statute include others of a less degree of enormity, if you fail to prove the greater offence, but prove the less, the defendant may be convicted of the latter: as, for instance, upon an indictment for murder, if you fail to prove the malice prepense, express or implied, the defendant may be found guilty of manslaughter; if upon an indictment for burglary and larceny, you prove the larceny, but fail in proving the breaking or entering, or that it was in the night time, &c., the defendant may be found guilty of stealing in the dwelling-house, or of the simple larceny; if upon an indictment for a felony or misdemeanor, you fail in proving the offence completed, but prove an attempt to commit it, the defendant may be found guilty of the attempt; 14 & 15 Vict. c. 100, s. 9; if upon an indictment for robbery, you fail in proving the offence, but prove an assault with intent to commit it, the defendant may be convicted of the assault with intent to rob. Id. s. 11. And on the other hand, if the indictment contain a statement of any facts or circumstances not included in the definition of the offence, and which need not to have been stated, they may be rejected as surplusage, and need not be proved; and this, as well in an indictment on a statute, as in an indictment for an offence at common law. R. v. Jones, 2 B. & Ad. 611.

The time need not be proved as laid, unless where it is of the essence of the offence. Ante, p. 85.

Place is immaterial, unless where it is matter of local description, such as the parish, &c., where the house or building is described to be in an indictment for burglary, or for breaking and entering a house, shop, warehouse, or a building within the curtilage, &c., in which cases the local description must be proved as laid. Ante, p. 86. Upon an indictment for treason or conspiracy, if you prove one good overt act in the county where the venue is laid, you may prove the others to have taken place in any other part of England. 2 Hawk. c. 46, s. 184-189. And upon an indictment against an accessory before or after the fact, he may be indicted in any place and before any court where his principal may be tried, no matter where the offence of accessory was committed. Ante, p. 15. 18.

Where the intent with which an act is done forms a material ingredient in an offence, we have seen (ante, p. 88) that it must be laid in the indictment; and it must be proved as laid. There is some difficulty naturally in proving this; for no man can tell what passes in the mind of another; he can only judge of it from the other's admissions or overt acts. Where there is an admission of the intent, and the party proving it is believed, it is of course conclusive evidence of it. But where there is no admission, the prosecutor is then allowed to give in evidence any acts of the defendant, indicating his intention, or from which it can be presumed. Another mode of judging of

the intent, is by presuming that the party intended that which
he effected, or that which is the natural consequence of the
act with which he is charged if the natural consequence of
his act would be the death of another, a jury may fairly infer
from the act that it was done with intent to kill such other
person; if the natural consequence of the act would be to
defraud another, a jury may fairly infer from it an intent to
defraud. In forgery formerly, the act was laid to be done with
intent to defraud the party who was actually defrauded, or who
would have been defrauded by it if the forgery had succeeded.
In obtaining or attempting to obtain money or goods by false
pretences, the act was laid to have been done with intent
to defraud the party actually defrauded or attempted to be
defrauded by it. But now, we have seen (ante, p. 88), that it
is sufficient, in indictments for forgery, and for obtaining goods
or money by false pretences, to allege the act to be done" with
intent to defraud," without stating it to be to defraud any
particular persons; 14 & 15 Vict. c. 100, s. 8; and no doubt
the jury would be satisfied, from the nature of the act itself,
that it was done for the purpose of defrauding some person.
It may also often be material to prove that the act charged in
the indictment was done wilfully, and did not occur merely
by accident; and in such a case, other acts of the defendant
may be given in evidence, from which the jury may fairly
infer that it was done wilfully. Where a man was indicted
for setting fire to a stack of straw, and it appeared that
it had been set on fire by the prisoner's having fired a gun
very near to it; the prosecutor having proved this, then
proposed to prove that the stack had also been set fire to the
day before, and that the prisoner was seen at the same time
very near it with his gun: this was objected to, as being
evidence of another felony; but Maule, J., held it to be
admissible; he said that although it may be proof of another
felony, that circumstance does not render it inadmissible, if the
evidence be otherwise receivable: if a person were charged
with having wilfully poisoned another, and it were a question
whether he knew a certain white powder to be poison, evi-
dence would be admissible to show that he knew what the
powder was, because he had administered it to another person
some short time before, who had died. R. v. Dossett, 2 Car.
& K. 306. So, where upon an indictment for maliciously
shooting at the prosecutor, it became a question whether it
happened by accident or was done wilfully; and the prosecutor,
to show that it was done wilfully, was allowed to give in
evidence that the prisoner had intentionallly shot at him some
time before; and the judges held that the evidence was rightly
received. R. v. Voke, R. § Ry. 531.

Malice is often a material ingredient in an offence, and expressed particularly in the definition of it. When this is the case, the indictment must state the act to have been mali

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ciously done, and the malice as well as the act must be proved. Malice is proved in the same manner as intent,-from the admissions or the overt acts of the offender. It may generally be inferred from the nature of the act itself: if a man do an act, which cannot be of any benefit to himself, or to those with or for whom he is acting, and which must necessarily be of injury to another person,-as if he wilfully set fire to the house of another, or to his manufactory, or to his ships, or to his stacks or crops of corn, or if he destroy or damage his trees, plants, fences, &c., not meaning to steal them,-or if he kill or wound his cattle, &c., not meaning to steal them,-in these and the like cases the jury will be warranted in inferring that the act was done from malice to the owner or party injured. Such are the whole class of offences comprised in the stat. 7 & 8 G. 4, c. 30 (Peel's Act), relating to malicious injuries; but as that act comprised the offences of killing or wounding cattle, &c., and from some previously decided cases it appeared that such offences were sometimes committed out of malice to the animal, it was thought necessary to provide that in all offences within that statute, it is immaterial whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise. 7 & 8 G. 4, c. 30, s. 25. Malice may also be implied, where no malice against any particular person in fact existed. Even in murder, which is the highest offence of this class, in which malice forms a most material ingredient, and where the malice must be preconceived, malice may in this way be implied, although none actually existed as against any particular person. As if a man, being on a horse which he knows to be used to kick, ride him amongst a crowd of persons, and the horse kick a man and kill him, the rider is guilty of murder, although he had no malice against any particular person, nor any other intention than that of diverting himself by frightening the persons around him. 1 Hawk, c. 31, s. 68. So, where a person fires a loaded pistol among an assembly of persons, or in the public streets where many persons are passing, and thereby kills a man, or the like, he is guilty of murder. See R. v. Bailey, R. & Ry. 1. So, in all other cases, where a man wilfully does an act, which he knows must or probably will cause the death of another, whom he knows not, and a man is thereby killed, he is guilty of murder, in the same manner as if he had preconceived malice against the individual killed.

Also, if a guilty knowledge form a material ingredient in the offence charged, it can only be proved from the admissions or the overt acts of the offender; and in the absence of admissions, the prosecutor may give in evidence any facts from which the jury may infer it. For instance, upon an indictment for knowingly uttering a forged bill of exchange, evidence

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that the prisoner gave a false account of the parties to it, and, when he was apprehended, had other forged bills of exchange, all drawn upon the same parties, upon his person, this was holden to be properly received in proof of his guilty knowledge that the bill he was charged with uttering, was a forgery. R. v. Hough, R. & Ry. 120. So, upon an indictment for forging and uttering a bank of England note, which appeared to have been done with a camel hair pencil, the prosecutors, for the purpose of proving guilty knowledge, tendered in evidence another note, forged in the same manner, with the same materials, uttered by the prisoner about three months before, and two 107. notes, and thirteen 17. notes of the same fabrication, from the files of the bank, (but when received by them did not appear), all of which had the prisoner's handwriting on the back: the judge received the evidence, subject to the opinion of the judges as to its admissibility; and the judges afterwards held that it was admissible for the purpose, subject however to observations as to the weight of the evidence, which would be more or less considerable, according to the number of the other notes, the distance of time at which they were put off, the situation in life of the prisoner, so as to make it more or less probable that so many notes should pass through his hands in the regular way of business. R. v. Ball, R. & Ry. 132.

Also, where several offences of the same nature form parts of one entire transaction, it is in the discretion of the judge to confine the prosecutor to the proof of one, or to allow him to give evidence of the others also: as for instance, where a shopman being suspected of stealing from his employer's till, marked money was put into the till, and, being watched, he was observed going to the till, immediately after which some of the money was missed; at this part of the evidence at the trial, it was objected for the prisoner that the prosecutor should be confined to this instance, but the judge overruled the objection; it was then proved that shortly after, he was observed to go again to the till, that he took his hand out of it, clenched, and put it into his waistcoat pocket, and that the till being immediately examined, it was found that more of the money was gone from it; the prisoner was then apprehended and searched, and six shillings of the marked money found upon him: upon motion to stay the judgment, on the ground that evidence of another offence had been received, the court held that it was in the discretion of the judge to allow it; the two felonies were so connected, as to form parts of one entire transaction, and the one was evidence to show the character of the other. R. v. Ellis, 6 B. & C. 145. So, in other cases, there can be no objection that the evidence of one offence, proves the defendant to be guilty of another offence also. R. v. Moore, 2 Car. & P. 235. And now by stat. 14 & 15 Vict.

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