punishment, that the charge in the first count for the second utterance was uncertain, being laid on the said 14th of Febru ary, instead of following the words of the statute and laying it "on the same day;" inasmuch as evidence of an utterance at any time before the indictment found would (it was said) support the first part of the charge; and therefore that it did not necessarily appear on the face of the indictment that the utterings were both on the same day. The question was thereupon reserved for the Judges, Whether, as the case was proved, the charge of the second utterance in the first count were well laid? At a conference on the 5th of June 1801, to which time Vide Carlisle v. the case was adjourned, the Judges were of opinion that the Trears, Cowp. 671. Johnson v. indictment was good; for that on the face of it the utterings Pickett, E. appeared to be on the same day and though when the day 25 Geo. 3. Pope v. Foster, was not material, the fact might be proved on a day different 4 Term Rep. from the day laid; yet where it was not indifferent the precise 590. time laid must be proved: and that in this case it must be taken that it was proved that the Defendant uttered counterfeit coin at two different times of the same day. O. B. Feb. 1802. An indictment charged that heretofore, viz. at the general Michael's case, quarter sessions of the peace, &c. holden at Guilford, &c. on, MS. Jud. &c. viz. the 15th of July, 40 Geo. 3. before, &c. justices of An indictment our Lord the King assigned to keep the peace, &c., the De- Defendant was charging that the fendant, by the name and description of Michael Michael of, before that time indicted for utter&c. was in due form of law tried and convicted by a certain jury ing base coin, of the county, duly taken and sworn between our said Lord the knowing it to be King and the said M. M. in that behalf, on a certain indict-false and counterfeit, and having ment then depending against him the said M. M.; for that about him at the the said M. M., on the 10th of July, 40 Geo. 3., with force time in his custoand arms at, &c. one piece of false and counterfeit money other base coin, on dy and possession made and counterfeited to the likeness and similitude of a piece which he was of good, lawful, and current money and gold coin of this realm in due form of called an half guinea, as and for a piece of good, lawful, and AND CONVICTcurrent money and gold coin of this realm called an halfED, and adjudged by the Court guinea, unlawfully, unjustly, and. deceitfully did utter to there to be imprione Js. Senior; he the said M. M. at the time when he soned for a year so uttered the said piece of false and counterfeit money for two years and find sureties then and there well knowing the same to be false and more; and then counterfeit and that he the said M. M. at the time when averring that he so uttered the said piece of false and counterfeit money so CONVICTED as law TRIED HAVING BEEN AS A COMMON other base money, JUDGED HIM TO BE A COM OF FALSE MO NEY; though the that such a person the first indict ment SHALL BE DEEMED AND FALSE MONEY as aforesaid, viz. on the said 10th of July, 40 Geo. 3. at, &c. he afterwards had about him the said M. M., in the custody and pos→ knowingly uttered session of him the said M. M., one other piece of false and is good; without counterfeit money, made and counterfeited to the likeness and averring that the Court before similitude of a piece of good, lawful, and current money and whom he was silver coin of this realm, called an half crown, he the said M. tried and convicted for the M. then and there well knowing the said last-mentioned piece first offence AD- of false and counterfeit money to be false and counterfeit; in contempt, &c. and against the form of the statute, &c. and MON UTTERER against the peace, &c.; and thereupon it was considered and adjudged by the said court that the said M. M., for the misdestat. 15 & 16 G. meanor and offence aforesaid in the indictment above specified, 2. c. 28. says, should be imprisoned in the common gaol of the county aforeas is described in said for the space of one year, and until he found sureties for his good behaviour for two years, to commence from the expiration of the first year, himself to be bound in 40%. and two Sureties to be bound in 201. each; as by the record thereof doth more fully appear. And further, &c. that the said M. M. late of L., labourer, having been so convicted as a common utterer of false money, afterwards, viz. on, &c. with force and arms at, &c. one piece of false and counterfeit money, made and counterfeited to the likeness and similitude of a piece of good, lawful, and current money and gold coin of this realm, called a seven-shilling piece, as and for a piece of good, lawful, and current money and gold coin of this realm called a seven-shilling piece, unlawfully, unjustly, deceitfully, and feloniously did utter to one T. L., he the said M. M. at the time when he so uttered the said last-mentioned piece of false and counterfeit money, then and there well knowing the same to be false and counterfeit, in contempt, &c. and against the form of the stat. &c. and against the peace, &c. There was a second count differing from the first, in charging the prisoner with having been so convicted as aforesaid, instead of the words, "having been convicted as a common utterer of false money." TAKEN TO BE [ xxi ] The prisoner being convicted on this indictment before Mr. Common Serjeant (Silvester), the following objection was taken in arrest of judgment, which was reserved for the opinion of the Judges. That in stating the original record and judgment of the court of quarter sessions, it is not stated that the Court ADDENDA. Court did adjudge the Defendant to be a common utterer; but only that they considered and adjudged the prisoner to be imprisoned twelve months, and to find surety for his good behaviour for two years more. On the 5th of May 1802, the Judges on a conference held the conviction right; and that it was not necessary that the Court should adjudge the Defendant to be a common utterer; though the stat. 15 & 16 Geo. 2. c. 28. says he shall be deemed and taken to be a common utterer; that being a conclusion of law: and it being sufficient for the Court, before whom a Vide Tandy's Defendant is convicted of an offence within the statute, to adjudge him to suffer the punishment inflicted by law on the Smith's case, post. ch. 4. s. 29. offence. case, and Graham B. to charge him with an unnatural on the threat John Jackson, and William Shipley, together with one Jackson, and John Morris, were charged with robbing W. S. in the dwel- Shipley's case, Nottingham ling-house of S. Rowe, in the parish of Gidling, in the coun- Spring assizes, ty of Nottingham. The prosecutor proved that while he was 1802, cor. threshing in his father's barn in the afternoon of the 8th of MS. Jud. February, at Gidling, Shipley and Morris came and asked To constitute robbery by taking if W. S. lived there; being told by the prosecutor that he money from anowas the man, they asked him if he remembered being with ther upon a threat two soldiers a-while back, and lying with them, and being answered in the affirmative, they told him that one of the crime, the money soldiers named Jackson had said that he (the prosecutor) had must be taken immediately upabused him; that Jackson had come over to Carlton, and that if the prosecutor did not come and make it up with Jackson made, and not after the parties the latter would certainly follow the law; but that if he went have separated, there and made it up with him there would be no more of it. and time for the The prosecutor answered that he knew nothing of the sort, prosecutor to deliberate and probut that he would go and hear what Jackson had to say. cure assistance, Shipley and Morris then went away, and the prosecutor fol- and especially af lowed them to a public house kept by S. Rowe at Carlton, ed a friend who where he also found Jackson and another soldier. They there was even present at the time when had some conversation in a private room, in which Jackson the money was preferred the same charge against the prosecutor of his hav-paid: though the ing unnaturally abused him, which the other positively de-prosecutor parted nied; and at last Jackson told the prosecutor that if he would from fear of lospay him the expenses there should be no more of it. The ing his character. (Post. ch. 16. prosecutor said he was willing to pay any thing in reason; s. 130.) and Jackson left it to Morris and Shipley to make up the account; when they set down in writing these articles, as men tioned ter he had consult with his money [ xxii ] tioned by Jackson. "Doctor 17. 118. 6d. For abusing me 17. 88. Morris 108. Shipley 5s. The other soldier 2s. 6d. (Cast up and making together) 31. 178." They asked however four guineas in all of the prosecutor, who said he had no such money, unless they would trust him. Morris said they must have the money with them. The prosecutor told them he had none unless he could get it of his parents, and he asked one of them to go out with him, and Shipley accordingly went with him. The prosecutor swore that he was much frightened and hurried, and did not know what best to do. He with Shipley went to his mother's, where under pretence that a soldier had been hurt he obtained from her four guineas; and in their way back to the public house, the prosecutor stopped at the house of one W. Shelton, whom he desired and finally prevailed upon to go along with him. Shelton inquired what was the matter, and being informed by Shipley of the nature of the charge against the prosecutor, declared his disbelief of it, and that if it were his case he would not pay the money. Shipley said, that if the prosecutor did not pay it, it would cost him 50%, or 100%, or perhaps his neck; that he himself was a constable and should go for a warrant the next morning. This language frightened the prosecutor very much. He returned to the public house, together with Shipley and Shelton, where he found Jackson, Morris, and the other soldier in the room where he left them. After seating himself a minute or two he laid the money, amounting to four guineas, on the table, and asked who would take it; they all said Jackson, but Shipley took it up; and amongst them they returned back six shillings to the prosecutor, half-a-crown of which was said to be for his friend's expenses (meaning Shelton). The prosecutor asked for a receipt, but was told by Morris that his friend would do as well. Shelton inquired what doctor Jackson had applied to, but only received evasive answers. The prosecutor then swore to the falsehood of the charge; but said that he was scared at it, and that was the reason why he parted with his money. It appeared on the cross examination that Jackson had first made the charge on the 4th of February, the morning after the night they had lain together; but he did not repeat it then, and they continued eating and [ xxiii] drinking together for several hours after. That after this, the prosecutor prosecutor had heard of his having repeated it in several companies, which had caused him much agitation of mind in the interval. Shelton confirmed the prosecutor's account as to what happened in his presence; and swore further, that as they were going into the public house he called the prosecutor back, and advised him not to pay the money. He added, that the prosecutor was quite scared out of his wits. From the whole of the evidence it seemed highly probable that the charge was false, and had been fabricated by Jackson for the purpose of extorting money. Shipley's defence was, that he knew nothing of the matter but from Jackson, who had persuaded him of the truth of the charge. Graham B. in summing up the evidence observed, that the felonious and violent taking from the person money to any amount, by putting him in fear, constituted robbery; and that in law it amounted to such a taking if the party delivered his money under the pressure of great terror. And he pointed out to the jury the several circumstances of the case, which shewed that the prosecutor was strongly impressed not only with a fear of shame, but of a prosecution that might endanger his life. After conviction, sentence was passed on the prisoner; but execution was respited on a doubt conceived by the learned Judge whether this case did not go somewhat further than others of the kind which had been decided, and was still further removed from the common acceptation of robbery; the principal circumstance of difference being the presence of the prosecutor's friend during the transaction. In Easter term 1802 the Judges met to consider this case, and a majority of them were of opinion that it was not robbery; though the money were taken in the presence of the prosecutor, and the fear of losing his character were upon him at the time. Most of the majority thought that in order to constitute robbery the money must be parted with from an immediate apprehension of present danger upon the charge being made, and not as in this case after the parties had separated, and the prosecutor had time to deliberate upon it, and apply for assistance, and had applied to a friend, by whom he was advised not to pay it, and who was actually present at the very [ xxiv ] |