REG. v. JOHN STEELS. 1867. False pretences the coat, offering to repay the 14s. 6d. to him, neither of which the prisoner did, saying he had no money and that he had got a receipt, and they could not hurt him (but which latter statement was not made by either witness at the time of commitment), and the next day the charge was made. At the close of the case for the prosecution, it was objected by the prisoner's counsel that the facts did not support in law the charge of false pretences as laid in the indictment, but the Court directed him to address the jury, which he did, after which the chairman summed up, drawing the jury's attention to the facts as proved in evidence, and they found the prisoner guilty, and he was sentenced to twenty-one days' imprisonment. Immediately after verdict and sentence, which was duly recorded, defendant's counsel applied to the Court for a case for the opinion of the Court of Criminal Appeal on the objection before mentioned, and that the indictment did not in law allege an offence under the statute. It was thereupon urged by the prosecution that it was then too late to make such application, and that the objection to the indictment ought to have been taken on demurrer, or on motion for an arrest of judgment. The Court of Quarter Sessions, however, decided to grant the case upon the terms that if the Court of Criminal Appeal should be of opinion that the course contended for on the part of the prosecution could only have been taken by the defendant's counsel, the judgment and sentence of the Court of Quarter Sessions should stand; but if it were competent for the defendant's counsel to make such objection when he did, and the said Court of Criminal Appeal should be of opinion that the indictment was sufficient in point of law, then the judgment and sentence should be reversed. The prisoner was discharged, on recognisance of bail to surrender and abide his sentence in the event of the judgment that day passed upon him by the said Court of Quarter Sessions being confirmed by the said Court of Criminal Appeal. Dated the 23rd Oct. 1867. JOHN TROLLOPE, Chairman of the said Court of Quarter Sessions. Besley, for the prisoner. The real question is, whether there was any evidence of a false pretence. No doubt, on the face of the case, there is prima facie some evidence, but none of a false pretence made at the time of the delivery of the coat to the prisoner. The bill of parcels was, in fact, a receipt. [KELLY, C.B. But it did not cease to be a bill of parcels, because it was also a receipt for cash on account.] The conduct of the defendant is the main thing to be looked at. It does not appear that the 22s. coat was to be a cash transaction, and that was parted with to the defendant before any pretence was made to the prosecutor. The coat was given to him before the defendant handed the half REG. V. sovereign and bill of parcels, and before he said there is 10s. to pay. [KELLY, C.B.-The statement in the case is contradictory JOHN STEELS. on this, for at a later part of it it is said that the prosecutor said, 1867. "that, believing the bill of parcels to be a genuine bill, and that it referred to the 22s. coat, he parted with that coat on payment False pretence s of 10s., which otherwise he should not have done."] It was not -Evidence. until the coat was in the possession of the defendant that anything was said about payment of the balance. In Reg. v. Brooks (1 F. & F. 502), where the prisoner, a carrier, having ordered a cask of ale, and after he got possession of it said, "This is for W.," Wightman, J., held that an indictment for obtaining it by falsely pretending that he was sent for it by W. could not be sustained. [BYLES, J.-Would this have amounted to larceny of the coat?] No, for possession of it was given to him. [BYLES, J. -Possession was given, as I understand the case, on a misapprehension of the receipt, which misapprehension the defendant adopted. KELLY, C.B.-If the defendant had the coat in his possession, though for a moment only before the defendant uttered any false pretence, can possession be said to have been obtained by the false pretence? WILLES, J.-The possession was only for the purpose of trying the coat on. BYLES, J.-If the prisoner obtained the coat in such a way as to amount to larceny he is not to be acquitted on the trial of the misdemeanor for obtaining it by false pretences (24 & 25 Vict. c. 96, s. 88).] But if the prosecutor knew the pretence to be false when he parted with the coat an indictment for false pretences will not lie: (Reg. v. Mills, 7 Cox Crim. Cas. 263.) Moreover, to sustain a conviction for larceny, the indictment for false pretences must set out the facts: (Reg. v. Bulmer, 9 Cox Crim. Cas. 492.) And in this case the evidence does not sustain the false pretences alleged in the indictment. Metcalfe, for the prosecution.-The conviction was right. Though the defendant may have had manual possession of the coat at the moment the false pretence was made by him, yet that possession was not such as would deprive the prosecutor of his lien for the price of it. It was only put into the defendant's hands to try on, and in taking it out of the shop under the circumstances the defendant was liable to be indicted as a fraudulent bailee under 24 & 25 Vict. c. 96, s. 3. [KELLY, C.B.Is there any case where a man going into a shop to buy an article, and having got it into his possession, pays for it with a forged cheque or bill? It seems a misapplication of terms to say that the article was obtained by a false pretence.] Besley replied. KELLY, Ĉ.B.-The majority of the Court are of opinion that there was evidence to go to the jury in support of the prosecution, and that the conviction must, therefore, be affirmed. Conviction affirmed. COURT OF CRIMINAL APPEAL. November 23 and 27, 1867. (Before KELLY, C.B., WILLES, J., BRAMWELL, B., BYLES, J., and LUSH, J.) REG. v. GEORGE SMITH. (a) Perjury-Evidence-Affiliation case-Summons. On the trial of an indictment for perjury, committed on the hearing of an affiliation summons, under 7 & 8 Vict. c. 101, s. 2, it was proved that an information was duly made, which was put in evidence and read, and that the putative father appeared at the petty sessions, and that upon the hearing of the information the perjury assigned was committed. The summons was not produced, nor service of it proved, but in all other respects the proceedings on the hearing of the information were proved and appeared to have been regular: Held, that it was not necessary that the summons should have been produced to sustain a conviction for perjury on the above evidence. CASE reserved for the opinion of this Court by Cockburn, C.J. This was a case tried before me at the last assizes for the county of Leicester, on an indictment for perjury alleged to have been committed by the defendant on the hearing of an information before two justices, on an applicatiou by one Louisa Harrison, the mother of an illegitimate child, against one Tom Mee, for an order of affiliation. The indictment alleged that an information was exhibited before two justices by Louisa Harrison, against Mee, charging him with being the father of her illegitimate child; and that application was made by her to the said justices for a summons against Mee to answer the said complaint; that a summons was accordingly issued by the said justices, and that in obedience to the said summons Mee appeared at a petty sessions to answer the charge. The indictment went on to state the proceedings on (a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law. the hearing of the summons, and alleged in due form that perjury had been committed by the prisoner Smith. On the trial before me, evidence was given that an information was duly made by the applicant, Louisa Harrison, against the defendant Mee; and the information itself was put in and read. It was proved that Mee appeared before the justices, and that upon the hearing of the information the evidence, which was the subject-matter of the present indictment, was given by Smith, who was called as a witness by Mee. But the summons was not produced on the trial of Smith, nor was secondary evidence given. of its contents, nor was it proved that such summons had been served on Mee. It appeared that it was the practice to give duplicate summonses to the police constable, whose duty it was to serve the summons. The police constable who served the summons in question not being present at the trial, no evidence of the service of any summons could be given. In all other respects the proceedings before the justices on the hearing of the information were duly proved and appeared to have been regular and correct. On the close of the case for the prosecution, it was objected, on the part of the prisoner, that the want of proof of a summons, as required by the 7 & 8 Vict. c. 101, having been served on the defendant in the information, was fatal to the present prosecution, inasmuch as the summons formed the basis of the magistrate's jurisdiction. I declined to stop the case in that stage, and witnesses having been called for the defence, and the case having gone to the jury on the merits, the prisoner was found guilty. The question which I have reserved, and on which I desire the decision of the Court, is whether the information having been duly proved, as well as the proceedings upon it at the hearing at the petty sessions, the absence of proof of the summons with which the defendant in the information ought, under the statute 7 & 8 Vict. c. 101, to have been served in order to give the justices jurisdiction to hear the information in bastardy, was fatal to the prosecution on this indictment for perjury. November 23. A. E. COCKBUrn. Metcalfe for the prisoner.-The conviction ought not to be affirmed, for the summons should have been produced. That was the foundation of the proceedings, and by the 7 & 8 Vict. c. 101, s. 2, the application of the mother of a bastard child is to be for a summons to be served on the putative father. [LUSH, J.-The case states that a summons was issued, and that in obedience to it Mee appeared at the petty sessions. WILLES, J.-Is it not a general rule that the magistrates have a right to proceed to hear the case if the defendant appears, although there is no summons ?] REG. v. GEORGE SMITH. 1867. Perjury- REG. v. GEORGE SMITH. 1867. Perjury- The production of the summons was necessary to show what the issue was before the magistrates, and so to test the materiality of the perjury assigned. [KELLY, C.B.-Here the information was put in and read.] The information was simply the ex parte evidence given on the application for a summons, and is in the nature of a præcipe for a writ of summons in a civil action. It is not a substitution for the summons. The summons is a quasi record, and the record should be produced to show the materiality of the perjury. Reg. v. Carr (supra, p. 564) was referred to. In Reg. v. Newall (6 Cox Crim. Cas. 21), the defendant was indicted for perjury committed on the hearing of a summons against him as the putative father of an illegitimate child, and it was held necessary to give evidence of the charge either by production of the original order made thereon, or by secondary evidence of the summons after notice to produce it, and that the minutes of the proceedings by the justices' clerk were held not sufficient. So in Reg. v. Whybrow (8 Cox Crim. Cas. 439) it was held necessary to produce the summons; and so also in Reg. v. Hurrell (2 Fos. & Fin. 271). No counsel appeared for the prosecution. November 27. Cur. adv. vult. KELLY, C.B.-We are all of opinion that the conviction ought to be affirmed. This was an indictment for perjury alleged to have been committed on the hearing of an information under the Bastardy Act. It was objected on the trial of the indictment for perjury that there was no evidence of the summons on which the proceedings were founded. We are of opinion that the objection cannot be sustained. A case of Reg. v. Carr (decided at these sittings) was referred to, where, by reason of the want of any evidence of the summons or information, or other proceeding which constituted the charge on which the materiality of the alleged perjury was founded, the Court decided that the conviction ought to be quashed; but in this case, although there was no evidence of the summons, yet the information was put in, and it was proved that the defendant appeared at the hearing, when evidence was given on one side and on the other, and the proceedings appear to have been regular. The only question now is, whether, under these circumstances, it was necessary to give evidence of the summons. The summons is merely to bring the defendant into Court; and in this case it appears that the defendant did appear on the hearing of the information. Nothing took place on the hearing of the indictment for perjury which rendered it necessary to refer to the summons, and there having been an information, and the proceedings appearing to have been regular, it was unnecessary to give evidence of the summons. The conviction must therefore be affirmed. Conviction affirmed. |