1871 WILLES and HANNEN, JJ., CHANNELL and PIGOTT, BB., con Coining-Having possession of Coining Tools-Lawful Authority or Excuse24 & 25 Vict. c. 99, s. 24-Felony-Guilty Intent. 24 & 25 Vict. c. 99, s. 24, enacts that "whosoever without lawful authority or excuse (the proof whereof shall lie on the party accused), shall knowingly make or mend, or begin or proceed to make or mend, or buy or sell, or have in his custody or possession," any die impressed with the resemblance of either side of any current coin, shall be guilty of felony. Indictment under this section that the prisoner "knowingly and without lawful excuse feloniously " had in his possession dies impressed with the resemblance of the sides of a sovereign. The prisoner ordered dies, impressed with the resemblance of the sides of a sovereign, of the maker. The maker gave information to the police, who communicated with the authorities of the Mint. The latter authorities, through the police, gave the maker permission to give them to the prisoner. He did so, and they were found in the prisoner's possession :— Held, first, that it was necessary in the indictment to negative lawful authority or excuse, notwithstanding that the burden of proof lay upon the accused: secondly, that the word "excuse" includes "authority," and therefore the indictment was good: thirdly, that there was no evidence to go to the jury of lawful authority or excuse: fourthly, that the prisoner being knowingly in possession of the dies, had a sufficient guilty knowledge to constitute felony, whatever his intention as to their use might be. CASE stated by Bramwell, B. Indictment under 24 & 25 Vict. c. 99, s. 24, that the prisoner "knowingly and without lawful excuse feloniously" had in his custody and possession a die impressed with the resemblance of the obverse side of a sovereign. Second count for having possession of a die for the reverse side of a sovereign. The prisoner was tried at the last Winter Commission for Warwick. 1871 v. It was proved that the prisoner ordered of a die-sinker two dies having an apparent resemblance to the two sides of a sovereign; THE QUEEN that they were made for him and paid for by him; that he received them from the maker; and that when taken into custody they were found on him. Besides other evidence, the following was given :— The maker of the dies said, that on the order being given he communicated with the police, with a police-officer named Glossop. On cross-examination he said, "Two days after the prisoner came I told the police. They said they would inform the people in London. Glossop told me to go on. I obtained permission of Manson (another police-officer) or Glossop to give them to the prisoner. I should not have given them up without that permission." A police-officer deposed: "Glossop was spoken to first, and spoke to me. I communicated with Gem. He is an attorney, and conducts this case. I have received communications from Gem. Gem told me he had communicated with the Mint in London. Bartram had his orders from Glossop. I gave Bartram permission to give the dies to the prisoner. This was in consequence of orders from London." It was contended that the judge ought to rule, or leave to the jury to say that this constituted lawful cause or excuse. It was also contended that the prisoner ought not to be convicted unless he had a guilty mind, and that if he had no guilty intention in reference to the possession and use of the dies (as to which there was evidence both ways) he was not guilty, and that this ought to be left to the jury. It was further contended that the indictment was bad, on the ground that it did not negative lawful authority as well as lawful excuse. The judge refused to direct an acquittal, or to leave to the jury any other questions than whether the dies were found on the prisoner, and whether they had an apparent resemblance to the two sides of a sovereign. The jury found the prisoner guilty. The question was, whether the judge ought to have ruled that the prisoner had, or left it to the jury to say if the prisoner had, HARVEY. 1871 lawful authority or excuse, or ought to have left to the jury the THE QUEEN question of whether he had a guilty intention in reference to the possession or use of these dies; and whether the indictment was bad. v. HARVEY. The case was argued before Bovill, C.J., Willes and Hannen, JJ., Channell and Pigott, BB. Dugdale, for the prisoner. The indictment is bad. The offence onsists in having possession of coining tools "without lawful authority or excuse." (1) And the indictment negatives only excuse. An indictment must negative all the exceptions contained in the same section which creates the offence, per Bailey, J.; Steel v. Smith. (2) The earlier enactment, s. 10 of 2 Wm. 4, c. 34, spoke of the two offences separately which in the present section are treated together. It made it felony to make without authority, or to have possession without excuse. But now both authority and excuse apply to each offence, and the words cannot be without meaning. [PIGOTT, B. Can you suggest an authority which would not be an excuse? WILLES, J. Excuse is either an authority or a reasonable belief in authority.] The indictment must in every case follow the statute. In Lembro v. Hamper (3), an indictment for perjury was held bad because it omitted the word voluntarie. In Rex v. Davis (4), under the Black Act, which made it felony "wilfully and maliciously" to shoot at any person, an indictment which used the words "unlawfully, maliciously, and feloniously " was held bad. Under (1) 24 & 25 Vict. c. 99, s. 24, enacts that, "whosoever without lawful authority or excuse (the proof whereof shall lie on the party accused), shall knowingly make or mend, or begin or proceed to make or mend, or buy or sell, or have in his custody or possession, any puncheon, counter puncheon, matrix, stamp, die, pattern, or mould, in or upon which there shall be made or impressed, or which will make or impress, or which shall be adapted and intended to make or impress, the figure, stamp, (2) 1 B. & A. 94, 99. v. HARVEY. a statute which used the words "wilfully and maliciously," 1871 the words "feloniously, voluntarily, and maliciously," in the THE QUEEN indictment, were held insufficient in Rex v. Turner (1); and under a statute which used the words "unlawfully and maliciously," the words "feloniously, wilfully, and maliciously," in Rea v. Ryan. (2) Secondly, the evidence shews that the authorities of the Mint authorized the maker of the dies to deliver them to the prisoner; he therefore had possession of them by lawful authority. Reg. v. Bannen (3), which will be cited on the other side, is no authority on the point. That was an indictment for making a die; the prisoner employed a die sinker to make the die; the maker communicated with the authorities of the Mint, and under their directions made the die for the purpose of detecting the prisoner. The question was whether the prisoner could be convicted as a principal; and it was held that, having acted through an innocent agent, he could. The question did not and could not arise whether he had lawful authority or excuse to possess. Thirdly, there cannot be a felony without a guilty mind, and as the case states that on this point there was evidence both ways, the question ought to have been left to the jury. The word "feloniously " is necessary in an indictment for felony: Hawkins P. C., Bk. 2, c. 25, s. 55; Reg. v. Gray. (4) And, this being so, the word must have a meaning. Felony must be "felleo animo perpetratum:" Co. Litt. 391 a.; Jacob's Law Dict. sub. voc. In Reg. v. Sleep (5) Cockburn, C.J., says, "To constitute an offence there must be a guilty mind." J. C. Carter, for the prosecution. The indictment is good. It is true that the words " without lawful authority or excuse occur in the same section which creates the offence. But as the burden of proof is expressly thrown on the accused, they are rather of the nature of a proviso than an exception. The only reason why a proviso need not be negatived is because the proof lies on the accused. But, even if it be otherwise, the word excuse includes authority. (1) 1 Moo. C. C. 239. (2) 2 Moo. C. C. 15. (3) 2 Moo. C. C. 309. (4) Leigh & Cave, C. C. 365; 33 L. J. (M.C.) 78. (5) Leigh & Cave, C. C. 44, 54; 30 L. J. (M.C.) 170, 173. 1871 Equivalent words are always sufficient. In Grevil's Case (1) the THE QUEEN Words of a statute were "shall command, hire or counsel;" and the fv. HARVEY. indictment, which charged that the accused "excitavit, movit, et procurabat," was held good. In Elsworth's Case (2) the words of the statute were, "shall falsely make, forge, or counterfeit," and the indictment, which charged the prisoner with "falsely making, forging, and adding, &c.," was held good. Secondly, the prisoner had no lawful authority or excuse for his possession of the dies. Reg. v. Bannen (3) is an authority to this effect. There, as here, the innocent agent was authorized to do what he did, and there was as much an authority to the accused to make in that case as to possess in this. Thirdly, the intention of the prisoner as to the use of the die is no ingredient in the offence: Bell's Case. (4) BOVILL, C.J. The first question is as to the sufficiency of the indictment. To make an indictment good under the section in question, it must sufficiently describe that which is made an offence by the section; and that is, not simply having possession of coining tools, but having them "without lawful authority or excuse." It is true there are words throwing upon the accused the burden of shewing lawful authority or excuse; but these words only alter the rules of evidence, they do not alter the rule as to the description of the offence in an indictment. It being necessary, then, to negative "lawful authority or excuse," the words of the present indictment are, "without lawful excuse," nothing being said of authority. If the word " excuse necessarily includes authority, the indictment will be good; if not, it will be bad. Under the older Act, 2 Will. 4, c. 34, s. 10, two distinct offences were mentioned separately, namely, making or mending coining tools without lawful authority, and having possession of them without lawful excuse. In the present Act the two offences are spoken of together, and the words "without lawful authority or excuse " applied to the whole. This is sufficient to account for the introduction of both words without supposing that in the case of possession both are necessary; and we have been (1) 1 And. 194. (3) 2 Moo. C. C. 309. |