1867 v. JARVIS. you you will answer truthfully." Pausing at these words, they would seem to operate as a warning rather than a threat, as advice THE QUEEN given by a master to a servant. What follows?" So that, if you have committed a fault, you may not add to it by stating what is untrue.” These words appear to have been added on moral grounds alone; there was no inducement of advantage. Under these circumstances, putting no strain one way or the other, the words amount only to this: "We put certain questions to you; I advise you to answer truthfully, only that you may not add a fault to an offence committed, if any has been committed." With reference to the last words, "Take care; we know more than you think we know”-these amount only to a caution. The words, "You had better tell the truth," seem to have acquired a sort of technical meaning importing either a threat or a benefit; but they were not used in this case. The words that have been used import only advice on moral grounds. WILLES, J. The case would have been different, if it had appeared that the words used were, "It is better for you to tell the truth." BRAMWELL, B., and BYLES and LUSH, JJ., concurred. Conviction affirmed. Attorneys for the Crown: Humphreys & Morgan. THE QUEEN v. RYLAND. Parent-Neglect to Provide for Infant-Indictment. The prisoner was convicted on an indictment which charged him with neglecting to provide food and clothing for his child, but omitted specifically to allege his ability to do so: Held, that the ability to provide was implied, and therefore sufficiently averred, in the use of the word "neglect." THE following case was stated by the Chairman of Quarter Sessions for the county of Surrey :— At the general quarter session of the peace holden at Guildford Nov. 23. 1867 THE QUEEN v. RYLAND. in and for the county of Surrey, on Tuesday, the 2nd of July, 1867, Henry Blucher Ryland was tried and convicted upon the following count of an indictment :— "The jurors for our Lady the Queen, upon their oath, present that, before the time of committing of the offence hereinafter in this count mentioned, Henry Blucher Ryland was the father of a certain male child of tender age, to wit, of the age of seven years, called and known by the name of Frederick George Ryland, and that Hannah Ryland, before the time of the committing the offence, and during all the time hereinafter in this count mentioned, was the wife of the said Henry Blucher Ryland, and as such wife living with the said Henry Blucher Ryland, and during all that time the said child was living under the care and control of the said Henry Blucher Ryland and the said Hannah Ryland, and during all that time it was the duty of the said Henry Blucher Ryland and the said Hannah Ryland to provide for, give, and administer to the said child wholesome and sufficient meat, drink, food, and clothing, for the sustenance, support, nourishment, and healthful preservation of the said child, the said child, by reason of his tender age, being then wholly incapable of providing for himself. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Henry Blucher Ryland and the said Hannah Ryland, on the fifth day of March, in the year of our Lord One thousand eight hundred and sixty-seven, and on divers other days and times between that day and the day of the taking of this inquisition, and whilst the said child was of such tender age as aforesaid and wholly incapable of providing for himself as aforesaid, unlawfully and contrary to the said duty of the said Henry Blucher Ryland and the said Hannah Ryland in that behalf, did omit, neglect, and refuse to provide for, give, and administer to the said child clothing, meat, drink, and food, in any sufficient quantity for the sustenance, support, nourishment, and healthful preservation of the said child, by means whereof the said male child became and was weak and ill and greatly disordered and debilitated in his body, to the great damage of the said child, and against the peace of our said Lady the Queen, her crown, and dignity." After the jury were sworn and the defendant given in charge to them, his counsel objected that the indictment was bad, as it did v. RYLAND. not allege that the defendant had the means of providing his child 1867 with wholesome and sufficient meat, drink, food, and clothing, for THE QUEEN. the sustenance, support, nourishment, and healthful preservation of the said child. It was replied that such allegation was unnecessary in the indictment, and that it was sufficient to prove such ability at the trial; but that, even if such allegation were necessary, the objection was too late, as, being for a formal defect apparent on the face of the indictment, it ought to have been taken by demurrer before the jury were sworn, as provided for by 14 & 15 Vict. c. 100, 8. 25. The Court overruled the objection, and, proof having been given of the ability of the said Henry Blucher Ryland to provide the necessary food and clothing for his child, left the case to the jury, who found the said Henry Blucher Ryland guilty; but the Court reserved the two points above mentioned for the determination of the Court for the consideration of Crown Cases Reserved, viz. : 1st. Whether an allegation of the ability of the said Henry Blucher Ryland to provide the necessary food and clothing for his child was requisite in the indictment? And 2ndly. Whether the objection to the indictment was not too late? J. Thompson, for the defendant. As to the point that the objection to the indictment was taken too late, the 14 & 15 Vict. c. 100, s. 25, only applies to formal defects. This is a substantial, not a formal, defect. [WILLES, J. There can be nothing in this point; it is as much as to say that there never can be a motion in arrest of judgment.] As to the first point, the indictment ought to have alleged that the defendant had the means of supporting the child. In Reg. v. Chandler (1) the indictment alleged that the defendant had the means; but there was no evidence to support the allegation, and the conviction was quashed. In this case evidence was given that the defendant had the means; but there was no allegation that he had in the indictment. It was material for the defendant to know that evidence of ability was going to be given; and he may have been prejudiced in his defence by the absence of a proper aver(1) Dears. C. C. 453; 24 L. J. (M.C.) 109. 1867 ment of that fact. In Reg. v. Vann (1) it was held that, if a THE QUEES parent has not the means of burying his child, though by remaining unburied it becomes a nuisance to the neighbourhood, he cannot be indicted, for he is not bound to incur a debt. v. RYLAND. [KELLY, C.B. Although there is no substantive allegation of the defendant's ability to provide for his child, is it not involved in the language of the indictment, namely, that the defendants wholly neglected to perform that duty ?] Lilley, for the crown. This indictment shews an offence on the face of it. It is the duty of every parent to support his child; and a neglect of that duty constitutes an offence. Proof of ability was given at the trial. It was want of such proof which was fatal to the conviction in Reg. v. Chandler. (2) That proof having been given here, the offence was proved. In Reg. v. Mabbett (3) it was held that, if parents have not the means of providing proper food for their infant children, it is their duty to apply for the assistance provided by the poor laws; and that, if they wilfully neglect to do so, and such neglect causes death, they are guilty of manslaughter. [WILLES, J. In Reg v. Pelham (4), which was an indictment for ill-treatment of a lunatic, it was alleged that the defendant had the means for the comfortable support and maintenance of both, and that thereupon it became her duty to take proper care of him.] J. Thompson, in reply. In Reg. v. Hogan (5) the indictment alleged that the prisoner abandoned and deserted her bastard child without providing any means for its support, intending to burthen the parish with its maintenance, and it was held to be bad, because there was no averment that the prisoner had the means of supporting the child. KELLY, C.B. The majority of the Court (6) are of opinion that the word "neglect" in the indictment sufficiently alleges the special matter of the ability to provide. Attorneys for the Crown: Shaen & Roscoe. (1) 2 Den. C. C. 325; 21 L. J. (2) Dears. C. C. 453; 24 L. J. (M.C.) 109. (3) 5 Cox. Crim. Cas. 339. Conviction affirmed. (4) 8 Q. B. 959. (5) 2 Den. C. C. 277. (6) Kelly, C.B., Willes, J., Bramwell, B., Byles and Lush, JJ. THE QUEEN v. ELWORTHY. Evidence-Notice to Produce. The prisoner, a solicitor, was indicted for perjury in having sworn that there was no draft of a certain statutory declaration made by a client. No notice to produce the draft had been given to the prisoner; and upon his trial, it was proved to have been last seen in his possession. Secondary evidence having been given of its contents: Held, that, in the absence of such notice, secondary evidence was inadmissible. THE following case was stated by Willes, J. :— Elworthy was tried for perjury before me at the Old Bailey. The perjury was alleged to have been committed at the trial of Thomas Cannon for making a false statutory declaration. The assignment of perjury relied upon was in a statement made by Elworthy that there was no draft of that statutory declaration. It appeared that Elworthy was one of a firm of attorneys who were employed to lend money for a client. They were applied to by Cannon for a loan, which they agreed, on behalf of their client, to make upon the security of some property belonging to Mrs. Cannon, and also of a newspaper in which Mr. Cannon was interested. Elworthy's firm required of Cannon, as a condition of the loan, a statutory declaration, which he made, and which stated, amongst other things, that he was the registered proprietor of the newspaper unencumbered. This declaration he made and signed; and, it being untrue, he was indicted for making a false declaration. Upon the trial of that indictment, Elworthy was called as a witness against Cannon; and, upon his cross-examination, with a view to excuse or palliate the falsehood of the statutory declaration, it was sought on behalf of Cannon to prove that there was a draft of the statutory declaration, that Cannon had seen it and corrected it, and that the statutory declaration which he in fact made had been improperly drawn, not shewing the corrections so made in the draft, and had been incautiously adopted by Cannon upon Elworthy assuring him it was all right. Upon that crossexamination, Elworthy denied that there had been a draft of the statutory declaration; and he explained a passage in his depositions in which a draft was referred to as a mistake for a draft of the assignment by way of security for the loan, in which there 1867 Nov. 23. |