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set forth; for what comes by way of proviso in a statute must be insisted on by way of defence by the party accused; but where exceptions are in the enacting part of a law, it must appear in the charge that the defendant does not fall within any of them. R.v. Jarris, 1 East, 616, 6+7. n.
And it seems that, although in the latter case the exceptions must need in neither be negatived in the statements of the information, it is not neces- case be nega
tived in the sary to negative them in the eridence given and stated in support of the charge. (See post, p. 711.)
evidence. Whereupon the said E. F., after being duly summoned.] It must Statement of be averred in the information, that the party charged has been summons. summoned (see antè, p. 686.) Yet, if he be stated to be present at the time of the proceeding, and to have heard all the witnesses, and not to have asked for any further time to bring forward his defence, if he had any, this at all times has been deemed sufficient. R. v. Stone, 1 East, 619. (See also 1 Str. 261.)
The date of the summons must not be stated to be on an earlier day than that of the information ; if it be, it will vitiate the conviction. R. v. Kent, 2 LI. Raym. 1516.
Nor on an impossible day. In Reg. v. Dyer, 1 Salk. 181., it was stated, that the defendant was summoned to appear, and did appear, on Tuesday the 17th of April 1802, &c. In fact, the 17th of April fell on a Friday; and it being objected that the time of the summons being impossible, it was the same as if there had been no summons, the court quashed the conviction on this ground, saying, “ There could be no such day, and therefore he could not appear thereupon; and when the day is not set forth, his appearance on another cannot be intended." (See R.v. Picton, 2 East, 196. post, p. 708.)
It has been held, that if the conviction be by default, upon nonappearance of the defendant, it must be clearly shewn on the face of the conviction that he had been personally served with the summons. R.v. Hall, 6 D. &. R. 84. (See antè, p. 687.)
But now, pursuant to the above general form given by the stat. 3 G.4. c.23., it will be sufficient to state, that the defendant has been “ duly summoned.” (See antè, p. 695.)
It is evident, that if the defendant appear and make defence, it must be taken that he was duly summoned ; therefore in such case it is unnecessary to say more, and the statement of his appearance cures any defect in the statement of the summons, or even the total want of one. 1 Str. 261. 1 Salk.383. 3 Burr. 1785. (See antè, p.687.)
Whereupon I [or, we, &c.] the said justice or justices, did proceed Witness to be to examine into the truth of the charge contained in the said inform- named. tion, and on the
aforesaid, at the parish aforesaid, one credible witness, to wit, A.W. of
in the county of :) It is requisite to name the witness, that he may appear to be a different person from the informer (see antè, p. 691.), as the statutes generally give the latter a share of the penalty, and therefore he cannot be a witness, excepting where the act shall specially so direct. 2 Ld. Raym. 1545. 1 Str. 316. Andr. 18. 240. Bosc. 69.
On his oath deposeth and saith, [if E. F. be present, say) in the Magistrate's presence of the said E. F. at -, in the county of
authority to ad
minister the (State the evidence, &c.] It is sufficient to set forth in a convic
oath need not tion, that the witness was examined on oath, without adding that be set forth.
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the magistrate had authority to administer the oath, if the statute
give such authority. R. v. Picton, 2 East, 195. Witness must
The witness must be stated to have been sworn and examined be stated to in the defendant's presence, even though he appear to have been
sworn when the information was taken. R. v.Crowther, 1 T. R. 125. sworn; and ex
(see antè, p. 691.) R. v. Selway, 2 Chitt. Rep. 522. amined in the defendant's
Ex parte Aldridge, 2 B. & C. 600. In a conviction under 3G. 4. presence.
c. 110. (repealed by 6 G.4. c. 105.) it was held necessary that the offence should appear to have been proved on the oath of one or more credible witnesses ; and therefore, where the conviction stated “ that R. A. was convicted of carrying brandy liable to seizure," (without saying upon oath,) and proceeded, and it is this day in like manner also proved on the oath of J. H. that the brandy was taken from R. A., and that he was detained by an officer of the navy,” &c. it was held, that carrying the brandy was the offence, and as that was not stated to have been proved on oath, the conviction was bad ; and that R. A. (having been committed to prison) was entitled to be discharged.
Where a conviction merely stated, that the defendant on such a day appeared before the magistrate on a summons, and that the magistrate proceeded to examine into the offence, and that it appeared to him on the oath of the witnesses that the offence was
committed, it was held bad. R. v. Selway, 2 Chitt. Rep. 522. What is a suf- R. v. Vipont and others, 2 Burr. 1163. The conviction was, that ficient state- the defendants having heard the charge (of conspiring to advance ment of the their wages in the woollen manufacture), and being called upon by defendant's
the justices to shew cause why they should not be convicted, and presence :
having nothing to say whereby to defend themselves, are therefore
though the evidence ought to be given in the presence of the defendant, if the appearance of the defendant and the examination of the witness are both stated to have been on the same day, the court will presume that the witness was examined in the presence of the defendant, though it be not expressly so stated. 3 Burt
. 1786. Cowp. 241, 242. 2 T.R. 23., and R. v. Lovet, 7 T. R. 152.
Even though it be stated that the appearance was at A. and the
evidence was given at B. R. v. Swallow, 8 T. R. 284. (a) and of the
R. v. Glossop, 4 B. & A. 616. A conviction stated, that after the oath being administered in appearance and plea of defendant, divers credible witnesses, to the presence of wit, J. S., &c. came before the justices upon their several oaths, to the justice.
them severally and respectively, and in the presence of the said J. S. &c. duly administered : it was held that, taking it altogether, it did substantially appear that the oath was administered to the
witnesses in the presence of the magistrates. Evidence to be It is fully settled, that in all convictions the evidence must be set forth suffi.
set out particularly, not merely the result of it; and that sufficient cient to warrant proof must appear upon the face of the record to sustain every
(a) In R. v. Stone, 1 East, 648. note (a), Lord Kenyon expressed his dis satisfaction with this presumption. However, the principle has been acted upon since, on more than one occasion. (See R. v. Crisp, 7 East, 392. R. v. Glasses 4 B. & A. 616.)
material part of the charge, and to warrant the adjudication. And Evidence for when the witnesses have been heard, the justice should call upon also be set out. the offender for his defence, and he is bound to hear the evidence
(See post, offered by him, that he may state it in the conviction, if he should
p. 711.) give judgment against him. R. v. Lovet, 7 T. R. 152.
It is laid down by Ld. Mansfield (1 Burr. 1163.) as an undoubted maxim, that on a conviction the evidence must be set out, in order that the superior court may judge of it. It has been likewise solemnly recognized as a known distinction between orders and convictions, that in the former it is allowed to state the result only of the evidence, whereas the same mode of stating it would be undoubtedly bad in a conviction. R. v. Lloyd, 2 Str. 999. In a very early case (Reg. v. Green, 10 Mod. 215.), the conviction was quashed, because the evidence was not set forth. It was only laid that the witnesses were sworn de veritate præmissorum, and that it did not appear, from what was sworn, that the defendant was guilty ; but, it was said, it ought so to have appeared to the court.
Again, a conviction for taking pilchards contra formam statuti was quashed, and the reason assigned was, because the witness swore generally that the defendant was guilty of the premises ; for that is taking the law upon himself. Likewise a conviction on the Candle Act was set aside, because the evidence was not set out, it being only alleged that the offence was fully and duly proved. R. v. Baker, 1 Str. 316., R. v. Theed, 2 Str. 919. 2 Barnard. 16. 73.
In the latter cases, where the necessity of setting out the evidence has been discussed, the judges have uniformly expressed their wish that it should be fully set forth ; and the stat. 3 G. 4. c. 23. (suprà, p. 695.) expressly requires the evidence given by each witness to be stated. (See also Nash's case, 4 B. & A. 295., tit. Habeas Corpus, and In re Rix, post, p. 711.)
If a conviction state in the words of the statute the deposition of the witness to the fact, it is sufficient; but if the magistrate endeavour to shelter himself from detection by merely stating the fact of the offence in the terms of the act of parliament, as if it were the legal effect of the evidence, when the evidence itself would not warrant the conclusion, he subjects himself to a criminal information, upon a proper case laid before the court. R. v. Pearse, 9 East, 358.
The evidence, when set forth, must contain sufficient to warrant the conviction. Therefore it must be of a fact existing at the time of the information ; and so it must appear. In R.v. Fuller, 1 Ld. Raym. 509., a conviction on stat. 8 & 9 W.3. c. 19., for keeping two concealed washbacks, was quashed, because, though the information, which was given on the 30th of March, charged the defendant with then having the washbacks, the evidence, which was not given until the 3d of April, was merely that the defendant habet et custodit eadem duo et concelata vasa ; confining it to the time when the evidence was given, and of course subsequent to the day of the information.
The time of committing the offence must also be stated in that Time of compart of the conviction in which the evidence is set forth. Paley, 132. mitting offence For if that be not shewn, either by positive proof of the
day, or by must be stated
; express reference in the evidence to a date previously mentioned, the conviction cannot be supported; as is exemplified in this
and the place where committed.
case :-A conviction on the Malt Act, 42 G. 3. c. 38. § 30. (re. pealed by stat. 46 G. 3. c. 139.), stated an information to have been exhibited on the 29th of May 1805, charging " that the defendant, within three months now last past, did wet certain corn," &c.
The evidence stated was, that the witness on the 22d of May (without mentioning the year) found a floor of malt then in the operation, &c. (so proceeding to state the fact of the offence). The conviction was quashed, on account of the defective manner in which the date was alleged in the evidence.—Ld. Ellenborough C. J. “ The evidence ought to appear to support the information, and the justices should either have stated the evidence of the witness to be that the offence was committed on the 22d May 1805, if they really so understood the witness to mean ; or, if they had any doubt of that, they should have inquired of him more particularly as to the date of the fact. But here the date of the year neither appears expressly by the evidence, nor by any words of reference to any other date which is certain. And if they have done their business slovenly, we cannot supply their omission. As it stands on the conviction, the offence does not appear to have been committed within three months before the prosecution commenced, which is necessary to give them cog. nizance." R. v. Woodcock, 7 East, 146.
So, it should appear that the fact was proved to have been committed in some place within the jurisdiction of the magistrate. R. v. Jeffries, 1 T. R. 241.
In R. v. Edwards, 1 East, 278., a conviction on stat. 5 G. S. c. 14. (repealed by stat. 7 & 8 G. 4. c. 27.) for fishing, without consent of the owner, “in part of a certain stream which run. neth between B. in the parish of K, in the county of W. and C. in the same parish and county," was quashed, because it did not appear that the intermediate course of the stream, between the two termini, in which the offence was alleged to be committed, was in the county of W., and within the jurisdiction of the committing magistrate. For in R. v. Inhab. of Stepney, Burr. S.C. 23., it was held that those who act under a jurisdiction given by act of parliament must shew their jurisdiction.
Again, the stat. 12 C. 2. c. 24. § 45., giving summary jurisdiction, in offences against the excise, to two or more justices of peace residing near to the place where such offence shall be committed, must be understood to be confined to justices of the county wherein the of fence was committed. Therefore, where a defendant was convicted by two resident justices, on stat. 19 G. 3. c.50. $ 2., for having in his custody and possession a private and concealed still for illicit distillation ; and the evidence only shewed that his house was in the county, and that the still was found concealed in the garden of the said house, such garden not appearing to be in the said county, the conviction was held bad. R. v. Chandler, 14 East, 267. (See antè, p. 697.)
So also, in a conviction for illegally insuring lottery tickets, against stat. 22 G. 3. c. 47., the information laid the offence in Great Queen Street, in the parish of St. Giles, &c. The evidence was as follows: T. J. deposeth, “That on the 10th of March last he insured personally (not stating where) with the said Jefferies
, the defendant, No. 18,433, and paid 2s. 9d., to receive one guinea if drawn blank or prize on the 30th day of drawing.” It was objected, that the evidence did not prove the offence to be com
mitted in the place laid in the information, which it ought to have done ; for wherever the jurisdiction of the magistrates is local, the offence must be proved to have been committed within their jurisdiction. And of this opinion were the court. Therefore the conviction was quashed. R. v. Jefferies, 1 T. R. 241.
The strictness with which this proof is required, is exemplified Strictness as by the following case :
to stating loR. v. Hazell, 13 East, 139. Paley, 129. This was a convic, cality in evition on 41 G. 3. (G. B.) c. 38., (repealed by stat. 5 G. 4. c. 96.)
dence. against a manufacturer for combining to refuse work.
The act gives a general form for the conviction, in which it is merely required to state
the offence, without anything pointing to the date or place. The offence was in substance stated in the following manner, viz. “ That the defendant on a certain day (he being then employed by G. S., &c. of Wallington in the county before mentioned, in the trade of a calico-printer, carried on by them at Wallington aforesaid ; and whilst he was such workman, and so employed as aforesaid,) refused to work with one S. B., then also employed by G. S., &c., in the said manufacture carried on by them at Wallington aforesaid.” This conviction was quashed, because it was not expressly averred where the refusal was given, so that it did not appear to be within the jurisdiction of the magistrate.-Ld. Ellenborough C. J., in delivering the judgment, observed, that the words then and there were not to be ex. ploded altogether, and they had sometimes more meaning than was commonly imagined.- A conviction not stating the place where the offence was committed was held to be bad. R. v. Webb, E. 46 G.3. MS.
In those cases where the offence is created in a section in a As to the differstatute, which section contains particular exceptions, though it ence between is necessary to negative every one of those exceptions in the in- negativing ex: formation, Dougl. 331. (see antè, p. 705.), it has been doubted ceptions, &c. in whether or not it be necessary also to negative them in the and in the evidence given in support of the charge. In R.v. Jarvis, 1 Burr. evidence. 154., Mr. J. Denison said it was necessary to negative by the evidence and adjudication that the defendant had any of the particular qualifications to kill game; that being a conviction on the game laws. But it has recently been determined by the court of K. B. (R. v. Turner, 5 M. & S. 206. 2 Phill. Ev. 25. 189.), that a con- Not necessary viction which specifically negatives the several qualifications men- in the evidence. tioned in the statute, is sufficient, without stating evidence to negative those qualifications. Lawrence and Le Blanc Js. were of this opinion, in R. v. Stone, 1 East, 653. (See tit. Evidence.)
In re Rix, 4 D. & R. 352., a rule had been obtained calling Mandamus to upon two justices of the county of Surrey to shew cause why å compel justices
to set out the mandamus should not issue to them, commanding them to insert
evidence on in the record of a conviction under the Building Act, 14 G.3. c.78., both sides. the evidence given on the hearing of the information upon which the conviction was founded, as nearly as possible in the words used by each of the witnesses examined upon the said hearing, in pursuance of the 3 G.4. c. 23. (antè, p.695.), it being suggested that they had omitted many parts of the evidence material to the defendant's case.—After argument, Abbott C.J.said, “I am clearly of opinion that the direction in the statute embraces the evidence both in support of the information and for the defence. The justices are not bound to set out all the irrelevant matter which may happen to be