to be called upon, at so distant a period, to account for the possession of the deceased's property, which he might have purchased, or otherwise fairly acquired, without being able to prove it by evidence. The accused, when no longer in danger, acknowl

60. LOOKER'S CASE.

Amer. ed. 1905. p. 242.)

edged that he had robbed the deceased, whom he found lying drunk on the road, as he believed; but that he had concealed the watch, on learning that it was supposed that he had been murdered, in order to prevent suspicion from attaching to himself.

A farmer was tried under the special commission for Wiltshire, in January, 1831, upon an indictment which charged him with having feloniously sent a threatening letter, which was alleged to have been written by him. That the letter was in the prisoner's handwriting was positively sworn by witnesses who had had ample means of becoming acquainted with it, while the contrary was as positively asserted on the part of the prisoner by numerous witnesses equally competent to speak to the fact. But the scale appears to have been turned by the circumstance that the letter in question, and two others of the same kind sent to other persons, together with a scrap of paper found in the prisoner's bureau, had formed one sheet of paper; the ragged edges of the different portions exactly fitting each other, and the water-mark name of the maker, which was divided into three parts, being perfect when the portions of paper were united. The jury found the prisoner guilty, and he was sentenced to be transported for life. The judge and jury having retired for a few minutes, during their absence the prisoner's son, a youth about eighteen years of age, was brought to the table by the prisoner's attorney, and confessed that he had been the writer of the letter in question, and not his father. He then wrote on a piece of paper from memory a copy of the

61. REGINA v. CLEARY.

contents of the anonymous letter, which on comparison left no doubt of the truth of his statement. The writing was not a verbatim copy, although it differed but little; and the bad spelling of the original was repeated in the copy. The original was then handed to him, and on being desired to do so, he copied it, and the writing was exactly alike. Upon the return of the learned judge the circumstances were mentioned to him, and he had the prisoner tried upon a second indictment for sending a similar letter, when the son admitted in the witness box writing and sending all the three letters in question, and the father was at once acquitted. The son was subsequently indicted for the identical offense which had been imputed to the father: he pleaded guilty, and was sentenced to transportation for seven years. It appeared that he had had access to the bureau, which was commonly left open. The correspondence of the fragment of paper found in the prisoner's bureau with the letter in question, and with the two others of the same nature sent to other persons, was simply a circumstance of suspicion, but foreign, as it turned out, to the factum in question; and considering that other persons had access to the bureau, its weight as a circumstance of suspicion seems to have been overrated.

...

1862. 2 F. & F. 850.)

Houghton, at Chichester.

The case for the prosecution was, that the prisoner had shot the deceased by mistake for one of his officers. The deceased, a student in the college at Chichester, had been shot in a lane leading thereto, and also leading to the barracks, a few minutes before twelve, on the night of the 16th of October. He uttered a loud shriek, which was heard at some distance, and he was immediately after found by a policeman and another man, named Bedford. He was shot just under the breastbone, and was writhing in pain, and said to Bedford something which showed he was in dread of imminent death; but this the policeman did not hear him say. He said to the policeman, "Remove me, or I shall die of cold." He then said something else as to who shot him. He was removed into the college, where the principal spoke to him, and he seemed sensible, but did not speak. He died soon afterwards. The prisoner, on the night of the 15th, the day before the murder, had been told that he was ordered for drill next day, and had uttered some angry words, saying he would not go, and would know who ordered it, and would go to the battalion order room to find out, and that he would "drill some one." That night, after going to bed, he left the barracks, and there was strong evidence that he had taken a rifle and ammunition with him. In about half an hour a shot was heard near the college, and some one, by the light of the flash, saw a man dressed in what seemed a soldier's greatcoat and cap running away. There was no other evidence as to who fired the shot, but the theory of the prosecution was, that it was an attempt by the prisoner to shoot one of his officers. There was no evidence, however, of any of them having been walking near the spot at the time. He had not returned to barracks, and a man, described as dressed like him, in a soldier's coat and cap, with a musket, had been

seen by more than one witness next night, near the place where the deceased was shot, standing under the hedge. And this man was so seen there just before the shot was fired. Not far off from the spot the prisoner's rifle was found, loaded, laid down half covered up under a hedge. The prisoner was seen next day, the 17th, three or four miles off, without his rifle. And when arrested on that day he was at some distance from Chichester, going towards Petworth. He ran away when he saw the officer, and said he was a deserter, and had left Chichester two days ago. When told of the murder, he said, "I had nothing to do it with." When told that there had been a rifle found, he said, "How do they know it was taken out of the barracks? Have they found one?" When told that it had been found, he said, "It is not mine." After his arrest, he said he had applied in August to Major Bush, the commanding officer of his company, for a 'pass" to see his brother, and had been refused; and on another occasion said he doubted not the major would hang him if he could, and that he hoped the major would have him drummed out. also said that the major had been shot at twice before in China, and that he knew who did it. It came out that several soldiers were out of barracks the night before the murder, but on the night of the murder it did not appear that any other soldier than the prisoner was out, or that more than one rifle was missing. There was, however, no evidence that the major or any other officer would be likely to be in the lane about the time of the shot, or that any of them had been there.

66

He

At the close of the case, ERLE, C. J. (to the jury).—There are two questions for you: First, was the deceased murdered? Secondly, was he murdered by the prisoner?

On the first question there can be little doubt, for if the shot was

fired by accident, and with no intent to kill any one, the person who fired it, and who must have heard the shriek uttered by the deceased, would have gone to his assistance. It is plain that whoever fired the shot meant to kill some one, and to leave his victim to die.

Then the second question arises, was the prisoner the person who fired the shot? Now there is no express evidence that he was, and it is only to be inferred from circumstances, partly from the evidence of identity; partly from the suggested motive or intent of the prisoner to kill some other person. As to the evidence of identity, it is doubtful and slight, and no one speaks clearly to having seen the prisoner near the spot at the time, but only to a person dressed like him, i.e. in the common dress of a soldier. It is true that one or two speak to having seen a man dressed like a soldier, and with a gun. And if you are satisfied that the prisoner took a gun with him, then that would bear strongly against him, not only as to the identity, but as to the falsity of the statement he made that he had not a gun with him, and also as to the finding of a gun near the spot in the way he took. But even assuming that he had a gun, that would not be conclusive that he was the man who fired the fatal shot. It is suggested that it is to be inferred that he was so from the fact that he had uttered angry words or threats against any one who had to do with his being ordered to drill next day. But there is no evidence that he had found out who had had to do with it, or that he had conceived enmity against any particular person, or that any person against whom he might be supposed to have an enmity was or would be likely to be at the spot at or about the time of the fatal shot. . . . The question comes to this: on the whole of the evidence, are you satisfied that he fired that shot? That is, fired it intentionally, for the the

ory of accidental firing seems (for the reason I have given) untenable.

Verdict, not guilty.

[Reporter's Note.] A verdict which met the approval of all lawyers, although great doubt and dissatisfaction was expressed among laymen. It was said that there was no moral doubt of the man's guilt. Nor was there, if all the facts were taken as clearly proved on which the theory of the prosecution was based. But then the great fact it required, that the prisoner had fired the shot, was not clearly proved; even assuming that it was proved that he took a gun with him. For whether that was the gun fired, and he was the man who fired (which no doubt may be taken as facts in substance the same), must depend, as the Lord Chief Justice pointed out, partly on evidence of identity, which was doubtful, and partly on the assumed or suggested theory of motive and intent, as to which, not only was there doubt, but there was an utter blank and defect in the evidence; for it was not proved that any officer who had had to do with the order to drill, or who might be supposed to have had to do with it (Major Bush, for instance), was or would be likely to be on the spot at the time the shot was fired. The case for the prosecution went upon the theory that one man had been shot by mistake for another, and the evidence of identity was so doubtful, that though, if it had been clearly proved that the prisoner had fired the shot willfully at any one, it would not have mattered whether he fired at the deceased; yet, as the evidence of identity was so doubtful, and it was sought to eke it out by a presumption that the prisoner was the man who fired the shot, because he had a design to shoot some one, it was essential to prove that the man whom he meant to shoot was or might be supposed to have been on the spot, otherwise, it is obvious.

stances.

Abraham Thornton. Saith that he is a bricklayer; that he came to the Three Tuns' at Tyburn about six o'clock last night, where there was a dance. . Exami

nant stayed until about twelve o'clock. He then went with Mary Ashford. . . . They then turned to the right and went along a lane until they came to a gate and stile on the right-hand side of the road; they went over the stile and into the next piece, along the fore drove; they continued along the foot road four or five fields, but cannot tell exactly how many. Examinant and Mary Ashford then returned the same road . . . and whilst they stood there a man came by. . . That examinant and Mary Ashford stayed at the stile a quarter of an hour afterwards; they then went straight up to Mr. Freeman's again, crossed the road and went on towards Erdington till he came to a

grass field on the right-hand side of the road, within about 100 yards. of Mr. Greensall's, in Erdington. Mary Ashford walked on, and examinant never saw her after she was nearly opposite Mr. Greensall's. It was then four o'clock, or ten minutes past four o'clock. Examinant went by Shilley's in his road home, and afterwards by John Holden's where he saw a man and woman with some milk cans, and a young man driving some cows out of a field who he thought to be Holden's son. He then went towards Mr. Twamley's mill where he saw Mr. Rotton's keeper taking the rubbish out of the nets at the floodgates. asked the man what o'clock it was; he answered near five o'clock or five. He knew the keeper. Twamley's mill is about a mile and a quarter from his father's house with whom he lives. The first person he saw was Edward Teck, a servant of his father, and a boy.”

He

W. Jennings. "I am a milkman and live at Birmingham. I buy milk of Mr. Holden, of Erdington; myself and wife were at his house on the morning of the 27th of May. I remember seeing the prisoner coming down the lane which leads