TH REX v. ROBINSON. Where pro perty is stated in one count to belong to certain persons, naming them specifically, count to be sons unknown, cutor, by de fect of evi dence, cannot prove the names of the persons as de HE prisoner was indicted upon the statute of 26 Geo. III. c. 19. for plundering a vessel which was wrecked. On the 29th of December, 1816, the brig Anne was stranded near Shields. The prisoner, with two other persons, but in another went by night to the vessel, whilst she was lying long to perupon the sands, and cut down part of her rigging and the prose and furniture. There were two counts in the indictment. In the first count the property of the ship was laid in persons who were therein named; and the second count laid the property to be in persons unknown. On the part of the prosecution, evidence was offered of the ownership of the vessel as laid in the indictment; but the witness describes the could not recollect the Christian names of some belonging to of the owners. The counsel then relied on the persons unsecond count, which laid the property to be in persons unknown. There was a provision in the act of parliament, that a prisoner might be convicted, where the names of the owners could not be ascertained. Williams, for the prisoner.-Evidence of owner scribed in the first count, he cannot recur to the second count, which property as known. 1817. ship might have been easily given. The present case cannot be within the meaning of the clause in the act of the 26th Geo. III. This vessel cannot ROBINSON. be said to be the property of persons unknown. REX v. RICHARDS, Lord C. B.-I think the prisoner must be acquitted. The owners, it appears, are known; but the evidence is defective on this point. How can I say that the owners are unknown. I remember a case at Chester before Lord Kenyon, where the property was laid as belonging to a person unknown; but, upon the trial, it was clear that the owner was known, and might easily have been ascertained by the prosecutor. Lord Kenyon directed an acquittal. Prisoner acquitted. Losh and Grey for the prosecution. Williams for the prisoner. REX v. JOHN WILSON. 1817. Aug. 5. TH There nation of a The exami prisoner be fore a magis trate, who examines such witness, al prisoner as a though he holds out no threat or in against him. HE prisoner was indicted for uttering forged notes, knowing them to be forged. was nothing particular in the immediate act of uttering; and the question was, as to the prisoner's knowledge. An accomplice was the principal witness; and to confirm his evidence, the counsel for the prosecution produced the prisoner's ex- ducement, amination before the Magistrate who committed cannot be used him. It was not tendered as a confession, but as containing facts which appeared upon the prisoner's examination, confirmatory of the testimony of the accomplice. The magistrate being examined, stated, that he held out no hopes or inducement to the prisoner, employed no threats, but that he had examined him at a considerable extent, in the same manner as he was accustomed to examine a witness. The prisoner, however, was not sworn. RICHARDS, Lord C. B.-I think I am not at liberty to suffer this examination to be read. No matter whether a prisoner be sworn or not. An examination of itself imposes an obligation to speak the truth. If a prisoner will confess, let him do so voluntarily. Ask him what he has to say? But it is irregular in a magistrate to examine a prisoner in the same manner as a wit But The examination of a prisoner ought to be without oath. Bull. N. P. 242. And the whole of the confession must be taken together, when it is offered in evidence. if only the material parts of the confession are taken down in writing, and they are afterwards read over in the presence of the prisoner, and by him admitted to be true, that admission will make them evidence. 4 Esp. 171. It has been determined by all the Judges that, although confessions, improperly obtained, are not admissible, yet that any facts which had been brought to light in consequence of such confessions may be properly received in evidence. Thus, where a prisoner was charged, as accessary after the fact, with having received property, knowing it to be stolen, proof was admitted of the property being found concealed in the prisoner's lodgings, although the knowledge of that fact had been gained from an inadmis sible confession, 1 Leach, 300, Warwickshall's case. Some, indeed, have thought, that the circumstance of the fact being known in consequence of information received from the prisoner, ought not to be shewn at the trial. But a different practice appears to be established by later authori ties; and, on a prosecution for receiving stolen goods, evidence has been admitted, that the prisoner described the place where the goods were concealed, and that afterwards they had been found there; but that part of the confession in which he acknowledged that he himself had concealed them must be rejected, as it was improperly drawn from him, 2 East. Pl. Cr. 658. There is good reason for this distinction: for what the prisoner has said, respecting the concealment of the property, is ascertained to be true by the fact of discovery; but the other part of the confession, in which he charges himself with having concealed it, may have been made untruly, and entirely under the influence of the threat or promise. See Phillips on Evidence, p. 52. The extent to which an examination is to be admitted, appears by the following Case: York Spring Assizes, 1814. REX v. Forbes. Indictment for murder. The deposition of the deceased was offered in evidence. The constable who produced it said, that the prisoner was not present until a certain part of the deposition, distinguished by a cross, at which period he was introduced, and heard the remaining part of the examination. When it was concluded, the whole of the depositions was read over to the prisoner, that is to say, both the matter preceding and subsequent to the mark. Hardy, for the prisoner, objected to the reading of any part. Chambre, Justice.-The intention of the statute of Philip and Mary is sufficiently plain. It is, that the prisoner shall be present whilst the witness actually delivers his testimony; so that he may know the precise words he uses, and observe throughout the manner and demeanour with which he gives his testimony. I shall not admit that part of the deposition previous to the mark which was unheard by the prisoner; but that subsequent to the mark may be read. Sykes, for the prosecution. Justices of the Peace are enabled and directed to take the depositions of witnesses in cases of felony, by the statutes 1 and 2 Ph. and M. c. 13. s. 4.; and 2 and 3 Ph. and M. c. 10. 1 Hale, Pl. Cr. 305. Kel. 19. Paine's case. 1 Salk. 281, Woodcock's case. 2 Leach, Cr. C. 565. By the first of these statutes, "Justices of the Peace, when any person is brought before them for manslaughter or felony, or suspicion of manslaughter or felony, being bailable by law, shall before any bail. ment, take the examination of the prisoner, and the examination of them who bring him, of the fact and circumstances thereof, and the same, or as much as may be material to prove the felony, shall put in writing before they make the bailment; which examination, with the bailment, the said justices shall certify at the next general gaol delivery, to be holden within the limits of their commission." 1817. REX v. WILSON. |