COURT OF APPEAL.

New Zealand Times, Volume XXX, Issue 4426, 27 May 1875, Page 3

COURT OF APPEAL.

Monday, May 24. rrvfore their Honors tho Chief Justice and '■ j uf)tice Johnston) REGINA V. WAKNE. Tho following judgment was delivered by tho Chief Justice: — In this case the jury found the prisoner K'nlty of „«wc charged against him in tho indictment, J h f n for forging and uttering an indorsement to (wll ™mhrnry note, with intent to defraud ) but aea promisao Y. " u vcr( ] ict w itli a recommendation to companied forth ; n the case stated. unnecessary in this case to decide whether a iury has found a verdict of guilty without wh uflrntioi/but has accompanied that verdict with a qualiflcitio . mercy on grounds inconsistent vLri ™ suclf recommendatlon and grounds W ‘ rcatcd OT part of tho verdict, and as qualifying ffn In case (1 Dearsly and Kell p. 457), wi.cre tho jury found the prisoner guilty of stealing, > the verdict hy a recommendation to tjut accoinj , „ roum \a the judgment of the fSt was given mainly on tho ground that the nf tno recommendation in that case were not grounds of tno qualify, the verdict. Inconsistent 'Vdi anum thought that a Lord Camp * j 'mercy and “ ttio grounds thereof recommendation to Campbo i l> f-I save "ddiatls no part of tlie verdict, the jury tondThe Prisoner guUty without qualification, They

"Now. I doubt whether'what the jury say, in giving recommending the prisoner to meicy,m to he con Adored as wart of their finding ; and Martin, u., says • “ The recommendation to mercy, and the words which accompanied it, were no part of the verdict, and had nothing to do with it, and when the• P’rt sal ‘‘ ‘ guilty,’ there was an end of the matter, so far as the verdict was concerned." . , n The case of R. v. York (1 Dennison s Crown Cases, p 335), is not in point. There was no recommendation to merev in that case, but the verdict of guilty was qualified by what the jury found as part of the verdict. „ . , In R. v. Maloney (0 Cox’s C. C., v. 6), on an indictment for murder, the jury found the prisoner but recommended him to mercy, on the ground that there was no evidence of tho act being premeditated. Byles, J., nevertheless, sentenced the prisoner to In Regina v. Cranston (S Cox's C. C., p. 375), where the jury found tho prisoner guilty, but recommended him to mercy, on the ground that, perhaps he did not know that he was acting contrary to law. Lrle, C. J., decided that tho ground did not qualify the verdict; lie, however, did not advert to the objection that the recommendation formed no part of tne ' e ][n*the present case the jury, in their recommendation to mercy, assume that the verdict is correct, and that the prisoner, had committed the forgeryihey speak of the note as " forged." and of the prisoners belief that he would "condone the forgery, by repaying the note when it fell due. •, . . . The first ground of the recommendation which is as follows—" With no intent to defraud, believing from his showing that at the time the promissory note fell due he should have received money>from Home to meet it’’—is not, taken as a whole, inconsistent with tho verdict. The jury does not say absolutely that there was no intent to defraud, but that he had no intent to defraud, because he believed that he would have means to pay the note when due. It is unnecessary to cite authorities to show that such a belief, even if found as a fact by the jury, and as part of a special finding, would form no ground of defence. However, taking together all the grounds of recommendation by the jury, it is clear that such grounds are based on the assumption of the guilt ol the prisoner, and that the Jury did not intend by the recommendation to mercy, to qualify the unqualified verdict of guilty which they had already returned. The conviction, therefore, is affirmed.

BEGINA V. CASS, Judgment in this case was delivered by the Chief Justice as follows : In this case tho prisoner was indicted for breaking into a warehouse with intent to commit felony, under the 57th section of the Larceny Act, 1807, which piovides that whosoever shall break and enter any warehouse shall be guilty of felony. The la []? the usual form, except that it charges that the breaking and entering was done " burglariously as well. question is whether, the jury having found specially that the prisoner feloniously broke and entered the warehouse with felonious intent to steal, and not having found that the* act was done burglariously. the words "and burglariously in the indictment may be treated as and rejected. We think they may on the authority of Holme s case (East. P.C. p. 1023. Kelyg 29.) and that this case is distinguishable from R. v. Bennett (1 Court of Appeal Reports, p. 309), by reason of the special finding, and that finding being inconsistent with the existence of a burglary. Any objection founded upon the introduction of tho words in question, could not have been met by amendment under the 14_ and 15 Victoria c 100 s. 1, nor does section 25 of the same Act seem’ to apply to the case, that section providing that formal defects apparent on the face of the indictment must be taken by demurrer or motion to quash the indictment before the jury are sworn, and not afterwards. It does' not clearly appear what kind of defects were intended to be included within the expression " formal defects apparent on the face of the indictment." , , . , It has been suggested that only such defects as aie amendable under section 1 of the same Act, intended to be included within the provisions of section (see Eosooe’s Criminal Evidence, p. 207). However, this mar be the objection, if the defect is_ formal, within the meaning of section 25, not having been taken before the jury were sworn as by cannot be considered now. Nor is the objection founded upon the introduction of the words m question. met by the provisions of tho >. G.. iv. c. o*. 20 which provides that judgments shall not be reversed for certain specified the present not being specified therein. If the introduction of the words does constitute a substantial detect, such defect does not seem to bo cured or amendable, by or under any of the legislative provisions passed for such purposes. . The objection seems to be that the indictment charges the act to have been done burglariously, when on the face of the indictment, it is evident that no burglarv is charged. It is clear that no burglary is charged, for the building is not alleged to be a dwell-ing-house, and the breaking, &c. t is not alleged to have been in the night, though it seems open to question whether the word burglariously does not of itself import that the act was done by night. R. v. Ihompson, (2 Cox’s C.C.,p. 445, per Patteson); thoogh see E. v. Waddington [2 East P.C. 518), which is the other way. It cannot be said, therefore, that the indictment is objectionable as charging two offences burglary at common law, and house-breaking under the statute. t j iat au indictment for burglary must charge the act to have been done "burglariously; but it does not thence follow that in an indictment which, stating all the facts and circumstances of house-breaking under the statute, charges that the acts wore done burglariously, Is, therefore, bad as an insufficient charge of burglary. If all the facts and circumstances constituting an offence, whether by common law or statute, are alleged in the indictment, and found by tbe jury, that is sufficient; subject to this, that in the case of treason, murder, burglary, and felony, certain terms of act must be used. A burglary must be alleged to have been done " burglariously." and a felony " feloniously. But it has been held that if an indictment states all the fact* and circumstances constituting a misdemeanor, but alleges that the act was also done‘feloniously and those facts arc found by the jury, the introduction of that allegation is surplusage, and does not vitiate the indictment. (SeeHolmes’s case above, and Scofields case post.) If that is so in the case of offence of a different class, as in felony and misdemeanor, there seems to be no reason why the rule should be otheiwise in the case of a felony charged to have been done burglariously, burglary being itself a felony. In Holmes’s case the prisoner was indicted for feloniously, maliciously, &e.. burning bis own house, with intent feloniously, wilfully, &c., to burn, &c.: being convicted and the record moved into the Queen’s Bench, it was held by three Judges against C’roke that it was not felony to burn his own house The prisoner was not convicted of the felony, but of misdemeanor on tills indictment, and the explanation given is that, though the indictment charged the act to have been done feloniously, yet all the matter being laid in the indictment, and the defendant found guilty of the charge as laid, and that charge being in law no felony but a misdemeanor, lie was properly found guilty of the misdemeanor. In Scofield’s case, (East P.C. 1026.) an act, constituting a misdemeanor, was charged to have been committed with a felonious intent, and in arrest of judgment it was urged that as the indictment charged the offence to have been done feloniously, it could only be sustained by showing it to-be felony. The Court took time to consider, and Lord Mansfield, giving the judgment of the Court on the point, said: v* r rh | n to the first objection, urged against tho first count, it was certainly true that it would be no felony in the defendant, to burn a house of which he was in possession; and that fact appearing upon the face of the indictment, by which the Court must see that the offence charged was not a felony the word feloniously was repugnant to the legal import of the offence charged, and must be rejected as surplusage : and then judgment ought to be pronounced against the defendant, as for the offence of which he stood convicted, according to the precedent in Holmes’s case, which was an authority ox■pressly in point.” , . In F., v. Oxley (3, C. and K. 317), in an indictment for perjury it was charged that the prisoner swore feloniously, corruptly, &c., but omitted falsely. Tho objection to the indictment—which objection was sustained—was that tho word " falsely ” was omitted ; it was not suggested that the introduction of the word feloniously vitiated the indictment. But in B. v, Wright (2 F. and F., 320), Hill J. refused to strike out the word “ feloniously" in an indictment for forgery, and thereby to convert tho charge into a misdemeanor, tho case being one where the document given in evidence to sustain the charge of forgery would not sustain the charge of felony though evidence of a common law misdemeanor, If, however, in that case the document and all tho circumstances showing that the misdemeanor and no felony had been committed, had appeared on the face of the indictment, then, on the authority of the cases of Holmes and Scofield, no amendment was necessary—the word feloniously might have been roJC Xt e fs to be observed that tho Court had no power to strike out the word feloniously, for if indeed the Indictment did in law charge a felony, the Court could not change tho indictment found by the Grand Jury from a felony to a misdemeanor. It is, no doubt, true that on an indictment, sufficiently charging a felony, the prisoner cannot {except in certain ca&s, and by virtue of certain legislative provisions, not applicable to the present case), bo convicted of a misdemeanor, as for instance, on an indictment charging a felonious assault, the prisoner cannot bo convicted of a common assault, B. v. Wilkes (12 Cox’s C. C. 240). And an indictment which mav apply to either of two different definite offences is bad.—(See B. v. Marshall, M. C. C. 138.) But tho principles of those cases do not apply to the present, for a burglary is itself a felony ; and, moreover, in this case a burglary is not sufficiently charged. Tho jury has found that tho building was a warehouse, and do not find that the breaking was burglarious, and must, wo think, he taken to have negatived by their finding that the building was a dwelling house, or that the entry was burglarious. It Is a rule that every fact and circumstance laid in the indictment not forming 'part of the legal description of an offence may bo rejected as surplusage. Wo think, therefore, that a verdict of guilty of the felony of breaking into a warehouse was properly entered on the special finding, and that tho conviction can bo sustained. REGINA V. DEE AND HENNESSY, His Honor tho Chief Justice delivered the following judgment in this case : In this case ono Charles Deo was charged on an indictment with stealing a valuable security of tho goods and chattels of a person named. In the same Indictment tho prisoner John Henncssy was charged with receiving " tho goods and chattels aforesaid so as aforesaid feloniously stolen, &c.,” ho knowing tho said goods and chattels to have been feloniously Btolcn, Ac.” _ _ r Deo was acquitted of the larceny, and Henncssy convicted of tho receiving. The learned Judge who tried tho case reserved for tho opinion of this Court the question whether the conviction can bo sustained. , . t The question Intended to be raised seems to bo, whether the words in the count for receiving so as aforesaid feloniously stolen” nro descriptive and

material, or may bo treated as surplusage ; for the prisoner John Hennessy is charged with receiving certain goods "so as aforesaid feloniously stolen, and the first count, or former part of the indictment, charged the goods to have been stolen by Dec, who was acquitted. , , _ . , , In Regina v. Woolford and Lewis (1 Moody and Robinson, p. 381), Woolford was indicted for stealing a gelding, and Lewis for receiving it " knowing it to have been so stolen as aforesaid.” The indictment is not set out in the report. However, it is stated in the report that— , 4 ... Patterson J. held at the trial that Lewis could not be convicted upon that indictment which charged him with receiving the gelding " so feloniously stolen as aforesaid,” and directed an acquittal, and that another indictment should be preferred against Lewis charging him with having received the gelding knowing it to have been stolen by ‘‘some person unknown.” At the trial of that indictment, it was objected on behalf of the prisoner that he had been tried on the former indictment. The learned Judge overruled tho objection, on the ground that the charge was different. , ... , From the report it would seem that he entertained some doubt of the correctness of his direction to the jurv on the previous indictment. . In the case now before the Court the indictment differs from that in E. v. Woolford and Lewis in this, that the indictment does not charge that Hennessy received the goods with knowledge that Dec had stolen them, but generally that he received goods knowing "the. said goods to have been feloniously stolen not stating knowledge from whom stolen. InR. v. Craddock (4 Cox’s Criminal Cases, p. 409). Craddock was indicted in one count for stealing certain goods of one Harvey, and in a subsequent count Craddock was charged for that "he the goods aforesaid, so as aforesaid feloniously stolen, feloniously did receive, knowing the said goods last aforesaid to nave been feloniously stolen, See.” Craddock was acquitted of the stealing, and convicted of the receiving. It was contended, on behalf of the prisoner in that case, in arrest of judgment, that as the count tor receiving stated that he had received tho goods so as aforesaid feloniously stolen,” he could not be convicted on the count so worded, he having been acquit? ted of the stealing. For the prosecution it was contended that tho words "so as aforesaid we \f sui plusage and might be rejected. Judgment and the question stated for the °D l^ lol , l - of J 1 '® *T On behalf of the prisoner, R. v. Woolford and Lewis was cited. During the argument, Wightman. J. said. "Do the words ‘so as aforesaid stolen nccessauly mean stolen by the prisoner? May not the waning be merely that they were stolen? Because, if so. wo are bound to construe them so as to avoid repugna poUock C. B. giving the judgment of the Court affirming the conviction, said: ‘borne of us think that the words in that count [the count for receiving], ‘so as aforesaid feloniously stolen, do not necessarily import that the goods were stolen by Craddock ; but even if that be the meaning, other members of the Court are of opinion that the conviction is nevertheless right, inasmuch as the jury must be taken upon that count to have found all the material facts alleged.” Craddock's case was followed by R. v. Huntley (Bell. C. C., p. 238). Huntley was charged, in the first count of tho indictment, with stealing certain goods, and in the second count ‘ the goods aforesaid so as aforesaid feloniously stolen, &c., feloniously did receive, .he knowing the said goods last aforesaid to have been feloniously stolen. Before plea on motion made to quash the count for receiving, it was contended that os that count referred to the first count it’ must be taken to charge the prisoner with receiving the goods stolen by himself, ine objection was reserved for consideration of the Judges. The prisoner was acquitted of the stealing, and convicted of the receiving. . .. , Erie C. J., in giving the judgment of the Comt, said "Wo are all of opinion that the words in the second count‘sons aforesaid feloniously stolen’may be construed to mean simply ‘stolen goods ; and, therefore, such goods as the prisoner might be convicted of receiving. ‘So as aforesaid is an immaterial averment, tho conviction therefore can be Sl lif Huntley's case the Court arrived at the same conclusion as' in Craddock’s case, but for different reasons. However, from both cases it is cleai tuat the conviction in the case now before this Court ought to be sustained. It is to be observed that though the case of R. v. Woolford and Lewis is cited in Russell by Greaves, vol. 11. P- 55G as an authority for the position that if the indictment allege that the goods were received from a particular person, it must be proved that they were received from such person. So far as R. v. Woolford and Lewis can be cited in support of an argument against the validity of the conviction in the case now before the Court, it is plainly overruled by the decisions in the cases of Craddock and Huntley. There is no distinction to be drawn between the language of the indictment in this case and in tho cases of Craddock and Huntley. Though the question raised in Huntley’s case was that the same person could not be charged with receiving goods which are described as stolen by hun* self, yet the question decided was that on an iiulict ment framed like that now before the Court—the first count for stealing, the second count for receiving, and referring in the second count to the goods—‘so as aforesaid feloniously stolen,” such words arc surplusage and may be rejected. The fact that in the present case the person charged as the receiver is not the person charged as the thief, as in Craddocks case, ana Huntley’s case makes no difference. The principle of both cases applies to the present. The conviction is, therefore, affirmed.