POLLOCK, C.B. We are all of opinion that a crowbar is included under the words "or any other article or thing." Conviction affirmed. 1866 THE QUEEN v. PAYNE. Attorney for prosecution: Smallpeice. Attorney for prisoner: Neale. THE QUEEN v. CARPENTER. Embezzlement-Assistant Overseer. A person who is nominated and elected assistant overseer under the 59 Geo. 3, c. 12, s. 7, by the inhabitants of a parish in vestry, and who is afterwards appointed assistant overseer by the warrant of two justices, and performs the duties of an overseer, is well described in an indictment for embezzlement as the servant of the inhabitants of the parish. THE following case was stated by Montague Smith, J. :— The prisoner was indicted before me at the last assizes for the county of Gloucester for embezzlement, and found guilty. He had been assistant overseer of the poor of the parish of Oddington, and was charged in one count of the indictment as the servant of John Ledgeley, Henry Collett, George Foden, and Henry Lyne, who were the churchwardens and overseers of the said parish. In another count he was alleged to be the servant of the churchwardens and overseers of the said parish. In a third count he was alleged to be the servant of the inhabitants of the said parish. The prisoner was nominated and elected assistant overseer by the inhabitants in vestry, who determined that the duties to be executed and performed by him should be "all such duties as appertain and are incident to the office of an overseer," and fixed the yearly salary of 37. 10s. for the execution of the office. On the 30th of March, 1865, an order of two justices reciting the election of the vestry appointed the prisoner to the said office. The prisoner, in point of fact, performed all the duties of overseer of the poor of the parish; and the churchwardens and overseers did not interfere with him. It was proved that the prisoner fraudulently appropriated to his own use moneys which he had received for poor's rate by virtue of his office as assistant overseer, under April 28. 1866 v. CARPENTER, certain rates made for the relief of the poor of the said parish. I THE QUEEN reserved for the opinion of this Court the question whether the prisoner was clerk or servant of any of the persons mentioned in the indictment, and received and took into his possession the moneys embezzled as such clerk or servant within the meaning of the statute 24 & 25 Vict. c. 96, s. 67. This case was argued on the 28th of April, 1866, before Pollock, C.B., Bramwell, B., Byles, J., Pigott, B. and Lush, J. No one appeared for the prisoner. Harington for the prosecution. The prisoner was appointed under the 59 Geo. 3, c. 12, s. 7 (1); and the question in the case is decided by Reg. v. Watts (2), in which Lord Denman, C.J., says of an assistant overseer, "He is not the servant of the churchwardens and overseers of the parish, but of the vestry, from whom he directly receives his authority." That dictum was quoted with approbation in Points v. Attwood. (3) By the 12 & 13 Vict. c. 103, s. 15, it is enacted that assistant overseers appointed by the guardians under the authority of the Poor-law Board shall (1) That section is as follows:-"It shall be lawful for the inhabitants of any parish in vestry assembled to nominate and elect any discreet person or persons to be assistant overseer or overseers of the poor of such parish, and to determine and specify the duties to be by him or them executed and performed, and to fix such yearly salary for the execution of the said office as shall by such inhabitants in vestry be thought fit; and it shall be lawful for any two of his Majesty's justices of the peace, and they are hereby empowered, by warrant under their hands and seals, to appoint any person or persons who shall be so nominated and elected to be assistant overseer or overseers of the poor, for such purposes and with such salary as shall have been fixed by the inhabitants in vestry; and such salary shall be paid out of the money raised for the relief of the poor at such times and in such manner as shall have been agreed upon between the inhabitants in vestry and the respective persons so to be appointed; and every person to be so appointed assistant overseer shall be, and he is hereby authorized and empowered to execute all such of the duties of the office of overseer of the poor as shall in the warrant for his appointment be expressed, in like manner and as fully, to all intents and purposes, as the same may be executed by any ordinary overseer of the poor; and every person or persons so appointed shall continue to be an assistant overseer of the poor until he or they shall resign such office, or until his or their appointment shall be revoked by the inhabitants of the parish in vestry assembled, and no longer." (2) 7 Ad. & E. 461, 469. (3) 6 C. B. 38, 49. See also the judgment of Byles, J., in Baker v. Locke, 34 L. J. (C.P.) 49. be described as the servants of the inhabitants of the parish, 1866 which seems a valid reason for holding that that is the proper THE QUEEN description of an assistant overseer appointed by the vestry. POLLOCK, C.B. We are all of opinion that the conviction is good. Attorneys for prosecution: Dyne & Harvey; for A. W. & v. CARPENTER. THE QUEEN v. REARDON AND BLOOR. Receiving-Joint indictment-Separate receipt-24 & 25 Vict. c. 96, s. 94. The 24 & 25 Vict. c. 96, s. 94, which enacts that, "If, upon the trial of any two or more persons indicted for jointly receiving any property, it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict, upon such indictment, such of the said persons as shall be proved to have received any part or parts of the said property," extends to cases where, upon an indictment for a joint receipt, it is proved that the prisoners separately received the whole of the stolen property. THE following case was stated by Lush, J. :— The prisoners were jointly indicted before me at Manchester for receiving stolen goods, knowing them to have been stolen. There was no evidence of a joint receipt; but Reardon, who kept a house of her own, was in the practice of receiving stolen property from the thief or his accomplice, and of selling it to Bloor, who also had a place of business of his own. The jury found each guilty. I sentenced Bloor; but, an objection having been taken that upon the indictment a conviction of both could not stand, I respited the sentence against Reardon, and reserved for the opinion of the Court of Criminal Appeal the question whether the conviction against her is sustainable upon this indictment. This case was argued on the 28th of April, 1866, before Pollock, C.B., Bramwell, B., Byles, J., Pigott, B., and Lush, J. Cottingham, for the prisoner Reardon. The question in this case is whether, upon an indictment of two persons for a joint receipt, both can be convicted, when no joint receipt, but only a separate receipt at different times, is proved. Before the 14 & 15 Vict. April 28. 1866 THE QUEEN V. REARDON AND c. 100, if two or more persons were jointly indicted for receiving, and no joint act of receiving was proved, the prosecutor was put to his election, and could only convict one of them: R. v. Messingham. (1) The 14 & 15 Vict. c. 100, s. 14, remedied this inconvenience to some extent; and, although that section is now repealed, it has been re-enacted by the 24 & 25 Vict. c. 96, s. 94, which provides that, "if, upon the trial of any two or more persons indicted for jointly receiving any property, it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict upon such indictment, such of the said persons as shall be proved to have received any part or parts of such property." That section, however, only applies to a separate receipt of different parts of the stolen property at the same time, leaving the old law to operate where there has been a separate receipt of the whole at successive times. [POLLOCK, C. B. A man who receives the whole of the stolen property receives a part; for the whole embraces all the parts. BRAMWELL, B. The old-fashioned indictment would have alleged that the two prisoners "then and there" (i.e., at the same time and place) received the goods; and in this case that averment could not have been proved.] This point was raised in Reg. v. Dring (2), but was not decided. By the 24 & 25 Vict. c. 96, s. 93, any number of receivers at different times of the stolen property, or of any part thereof, may be charged with substantive felonies in the same indictment; but the proper mode of carrying out that enactment is to indict them for separate receipts in different counts, and not, as was done here, to indict them for a joint receipt in a single count. Sowler, for the prosecution, was not called upon. POLLOCK, C.B. The object of the enactment in question was to do away with certain technical objections which prevailed previously. By the 93rd section any number of receivers of the same stolen property, or of different parts of it, may be indicted together, although there has been no joint receipt; and it is clear that, under that section, no distinction is made between separate receipts at the same time and separate receipts at (1) 1 Moo. C. C. 257. (2) Dears. & B. C. C. 329. v. BLOOR. different times. That section throws light on the 94th; and, 1866 although there is some colour for the objection, we are all of THE QUEEN opinion that no distinction can be made for the purposes of that REARDON AND section between a separate receipt of the whole and a separate receipt of part of the stolen property. It would be absurd to convict both prisoners, if it were proved that each separately received a part, and to acquit one, if it were proved that each separately received the whole. Conviction affirmed. Attorney for prosecution: Talbot, Manchester. THE QUEEN v. WHITEHEAD. Witness-Incompetency-Withdrawal of evidence from jury. The evidence of an incompetent witness may be withdrawn from the jury upon the incompetency appearing during his examination-in-chief, although he has been examined previously on the voir dire and pronounced to be competent. THE following case was stated by the Chairman of quarter sessions for the hundred of Salford, in the county of Lancaster:Holinrake Whitehead was tried before me at Salford, upon the 27th of October, 1865, upon an indictment charging him with an assault upon one Harriet Pugh, with intent the said Harriet Pugh to ravish and carnally know. There were two other counts in the indictment, one of them charging an indecent assault, and the other a common assault. The said Harriet Pugh is about seventeen years old, and has always been deaf and dumb. At the trial it was proposed by the counsel for the prosecution to examine her through the medium of her father. It was stated that he and her sister could hold communication with her by means of arbitrary signs and motions, but that she had not been instructed in the deafand-dumb alphabet, or in any institution, or by any person skilled in communicating with persons labouring under the deprivation with which she is afflicted. The father was sworn truly to interpret in the case, and was requested by the counsel for the prosecution to explain to her the oath about to be administered to May 5. |