1866 V. SCHMIDT. ERLE, C.J. My own opinion is that the company were the innocent agents of the thieves, and that the female prisoner was THE QUEEN rightly convicted; but, as the majority of the Court are of a different opinion, the conviction must be quashed. I also think that the company had such a property in the goods as to support the indictment. MARTIN, B. I am of opinion that this conviction is wrong. The property is either wrongly or rightly laid in the indictment; if rightly laid, there was a delivery by the owners after the goods had been returned to them. KEATING, J. I agree with my Brother Martin. If the goods got back into the possession of the owner, then, according to Reg. v. Dolan (1), the conviction is wrong. In this case, the property is laid in the railway company; and they must be taken to be the owners. Then the property is stolen from them, and subsequently gets back into their possession. The felonious transitus was then at an end. MELLOR, J. I agree with the Lord Chief Justice. The property is rightly laid in the company, because at the time of the larceny there was a bailment to them by the true owners. I concur in the propriety of the decision in Reg. v. Dolan (1); but there the goods got back into the possession of the true owner. In this case the policeman merely looked at the goods, and did not take possession of them. LUSH, J. I agree with my Brother Martin. The goods were brought back into the possession of the company by the thief; and, if they had then carried them in the usual course, I should agree with the Lord Chief Justice. But, while the goods are in their possession, they are discovered to be the stolen property; and after that the railway company did not intend to carry them on in the usual course, but made a mere pretence of doing so, and really held them to the order of the true owner. Conviction quashed. Attorneys for prosecution: Faithfull & Coode. (1) Dears. C. C. 436; 24 L. J. (M. C.) 59. 1866 Jan. 20. THE QUEEN v. CALEB SHERLOCK. Constable-Refusal to aid in the execution of his duty—Indictment. An indictment for refusing to aid a constable in the execution of his duty, and. to prevent an assault made upon him by persons in his custody with intent to resist their lawful apprehension, need not show that the apprehension was lawful, nor aver that the refusal was on the same day and year as the assault, or that the assault which the defendant refused to prevent was the same as that which the prisoners made upon the constable; neither is it any objection that the assault is alleged to have been made with intent to resist their lawful apprehension by persons already in custody. THE following case was stated by the chairman of Quarter Sessions for the county of Sussex :— At the general Quarter Sessions, holden at Lewes, on Monday, the 2nd of July, 1865, Caleb Sherlock was tried on an indictment of which the following is a copy :— Sussex to wit-"The Jurors for our Lady the Queen upon their oath present that, heretofore and before the committing of the offence hereinafter mentioned, to wit, on the twenty-fifth day of May, in the year of our Lord One thousand eight hundred and sixty-five, Isaac Brown and James Brown were in the custody of James Newnham and George Parsons, constables of the East Sussex County Constabulary, and James Baldwin, a peace-officer in the parish of Rotherfield in the said county of Sussex, upon a charge of felony; and the said Isaac Brown and James Brown committed an assault upon the said constables and breach of the peace, with intent to resist their lawful apprehension. And the jurors further present that the said constables, there being a reasonable necessity for them to do so, called upon Caleb Sherlock, the defendant, for assistance, in order to prevent the said assault and a breach of the peace. And the jurors aforesaid further present that the defendant, Caleb Sherlock, did unlawfully, wilfully and knowingly refuse to aid and assist the said constables in the execution of their duty, or to prevent an assault and breach of the peace, against the peace of our said Lady the Queen, her Crown, and dignity." The defendant's counsel submitted that the indictment was bad upon the following points: 1. That the record did not shew a lawful apprehension of the two Browns. 2. That there could not have been an assault to prevent their apprehension, the Browns being already apprehended. 3. That the record did not state that the refusal to assist was on the same day and year as the assault, or that it was the same assault; and that the merely stating a refusal was not sufficient, without an allegation that he did not aid and assist. The Chairman did not withdraw the case from the jury; and the defendant was convicted, and ordered to pay a fine to Her Majesty of five pounds, which amount the defendant deposited with the deputy clerk of the peace, pending the decision of the Court for Crown Cases Reserved. The opinion of the Court for Crown Cases Reserved is requested whether the defendant was lawfully convicted upon the above indictment. This case was considered on the 20th of January, 1866, by ERLE, C.J., MARTIN, B., and KEATING, MELLOR, and LUSH, JJ. No counsel appeared on either side. The Court affirmed the conviction. 1866 THE QUEEN v. SHERLOCK. Conviction affirmed. THE QUEEN v. PETER RICE AND MARY WILTON. Disorderly house. The defendants, as master and mistress, resided in a house to which men and women resorted for the purpose of prostitution, but no indecency or disorderly conduct was perceptible from the exterior of the house : Held, that the defendants were guilty of keeping a disorderly house. THE following case was stated by the Deputy Recorder of the city of Chester: These defendants were tried before me at the quarter sessions for the city of Chester, on the 14th of July, 1865. The indictment upon which they were tried stated that they "unlawfully did keep and maintain a certain common ill-governed and disorderly house, and in the said house, for the lucre and gain of them, the VOL. I. E 4 Jan. 20. 1866 v. RICE AND WILTON. said Peter Rice and Mary Wilton, certain persons, as well men as THE QUEEN Women, of evil name and fame and of dishonest conversation, then and there unlawfully and wilfully did cause and procure to frequent and come together; and the said men and women, in the house of them, the said Peter Rice and Mary Wilton, at unlawful times, as well in the night as in the day, then and there to be and remain, drinking, tippling, whoring and misbehaving themselves, unlawfully and wilfully did permit, and yet do permit, to the great damage and common nuisance of all the liege subjects of our said Lady the Queen there inhabiting, being, residing, and passing, to the evil example of all others in like case offending, against the peace, &c." It was proved that the prisoners acted as master and mistress of a house at Chester; that the house was frequented by prostitutes, who were constantly in the habit of bringing men there for the purposes of prostitution; and that this was done with the knowledge and assent of the prisoners. It was further proved that, when a prostitute brought a man to the house for such purpose, such prostitute and man were allowed by the prisoners to have the use of a bedroom in the house, either for a whole night or for a shorter period; that, when such prostitute and man occupied the room for a whole night, the sum of 5s. was charged by the defendants, and paid by the prostitute or man to the defendants for the use of the room; but that, when occupied for a shorter period, the sum of 2s. 6d. was charged by and paid to them. There was no evidence that any indecency or disorderly conduct was perceptible from the exterior of the house. It was contended, by the counsel for the defendants, that there was no proof that the house was so conducted as to be a common nuisance, and consequently that the indictment was not proved. He declined to address the jury, stating that he could not contest the truth of the facts above stated. I directed the jury to find a verdict of Guilty; and a verdict of Guilty was entered. But I postponed judgment, until the opinion of the Court for Crown Cases Reserved upon the above case should be obtained; and the defendants were discharged on recognizance of bail to appear and receive judgment. The question for the consideration of the Court is, whether |