Philip Bertie Petrides.

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chief clerk that he had paid 2s. 3d. for kitchen stuff which he
had bought for his masters, and demanded to be paid for it.
The clerk on this paid him 2s. 3d. out of money which his
masters had furnished him with to pay for the kitchen stuff.
The prisoner applied the money to his own use.

Helt/, that as the clerk had delivered the money to the
prisoner with the intention of parting with it altogether, the
prisoner was not liable to an indictment for stealing the
money, but that he might have been indicted for obtaining it
by false pretences.



Bl GAM )'.



The offence of Bigamy is committed even though the Second
Marriage is not valid on grounds other than that of the Bigamy.

1.'. v. ALLEN. [187-2]

(-11 L. J. M. C D7 : L. R. 1 C. C. 367 ; 26 L. T. 664; 20 AW E. 7.56 ;

12 Cox, C. C. 193.)

The prisoner, who was indicted for bigamy, married his first
wife, Sarah Cunningham, who died in L866, leaviug a niece
named Harriet Crouch.



BLASPHEMOUS LI15EL. 329

In the year 1S07 he married his second wife, Ann Gntteridge,
Tiring of her, he went through the form of marriage with his
first wife's niece, Harriet Crouch.

Such a marriage, coming withiu the prohibited degrees of
affinity, was null and void to all intents and purposes what-
soever by 5 & b' Will. IV. c. o4, s. 2.

Held , that bigamy had been committed by the prisoner, as
the validity of the second marriage did not affect the
question, and that the offence vjas committed when the
prisoner went through the form and ceremony of marriage
with Harriet Crouch.



BLASPHEMOUS LIBEL.

Honest denial of the Christian Religion does not constitute a
blasphemous Libel. There must be a wilful intention to
insult and mislead others by means of licentious and contu-
melious Abuse applied to sacred subjects or by wilful mis-
representations.

E. v. EAMSAY AND FOOTE. [1883]

(48 L. T. 733 ; 1 Cab. & E. 126 ; 15 Cox, C. C. 231.)

The defendants were charged with the publication of a blas-
phemous libel by means of the publication of certain cartoons in
a newspaper called " The Freethinker."

Coleridge, L. C. J., directed the jury that an honest
denial of the truth of Christianity does not constitute a
blasphemous libel. The criterion and test of guilt is whether
there is a wilful intention to pervert, insult, and mislead
others by means of licentious and contumelious abuse applied
to sacred subjects, or by wilfid misrepresentations or artful
sophistry calculated to mislead the ignorant and unwary.



:;:;<) criminal law.



RIOT AND UNLAWFUL ASSEMBLY.



Where persons assemble together for a purpose which, if
executed, would constitute Riot, yet separate without having
executed it, they are only guilty of Unlawful Assembly.

R. v. BIRT AND OTHERS. [1831]
(5 Car. & P. 154.)

The prisoners were indicted for riot on one count and on
another for unlawful assembly. The prisoners assembled for the
purpose of breaking down the fences of the enclosure of the
Forest of Dean, and destroyed more than a mile of the fences.

Held f per Pattewn, J., the difference between a riot and
an unlawful assembly is this : If the parties assemble in a
tumultuous manner and actually execute their purpose with
violence, it is a riot ; but if they merely meet upon a pur-
pose which, if executed, would make them rioters, and,
having done nothing, they separate without carrying their
purpose into effect, it is an unlawful assembly.
Verdict — guilty.



PUOVIN'CK OF JUDGE AND JUKY. 331



EVIDENCE.



PROVINCE OF JUDGE AND JURY



The function of the Jury is to decide on the Facts, subject to
this, that it is for the Judge to decide whether there is any
Evidence on which the Jury could reasonably act. Questions
of Law are for the Judge.
METROPOLITAN RAILWAY CO. v.. JACKSON. [1877]
(47 L. J. C. P. 303; 3 App. Cas. 103; 37 L. T. 670;
26 W. R. 175— H.L.)

While Jackson was travelling on the Metropolitan railway in
a carriage, all the seats of which were occupied, three more
persons got in and remained standing until the train arrived at
the next station, where there was a crowd of persons, some of
whom tried to enter the carriage just as the train was starting ;
Jackson rose from his seat and tried to prevent more passengers
from getting in ; after the traiu had started Jackson fell
forward and put his hand on one of the hinges of the door to
save himself ; at the same moment a porter pushed away the
persons who were trying to get in and slammed the door,
crushing Jackson's thumb. Jackson brought an action to
recover damages for the injury so caused.

The action was tried before Brett, J., and a special jury.
The learned judge ruled that there was evidence of negligence
for the jury, who found a verdict for Jackson with 50/.
damages.

Held, by the House of Lords reversing the decision of the
Court of Appeal, that there was no evidence of negligence
proper to be left to the jury.

In actions for negligence the rule is that from any given
state of facts the judge must say whether negligence can



332 EVIDENCE.

reasonably be inferred, and the jury must say whether it
ought to be inferred.

It is of the greatest importance in the administration of
justice that those separate fuur-lions should be maintained
distinct. It would be a serious inroad on the province of a
jury if in a case ivhcre there are facts from which negligence
may reasonably be inferred, the juelge were to withdraw the
case from the jury upon the ground that in his opinion negli-
gence ought not to be inferred ; and it would, on the other
hand, place in the hands of the jury a power which might be
exercised in the most arbitrary manner if they were at liberty
to hold that negligence might be inferred from any state of
facts ivhatcver. To take the instance of actions against
railway companies, a, company might be unpopular, un-
punctual anil irregular in its service, badly equipped as to
its staff, unaccommodating to the public, notorious perhaps
for accidents occurring on the line, and ivhcn an action was
brought for the consequences of an accident, a jury if left to
themselves might upon evidence of general carelessness find
a verdict against evidence.



The Admissibility of Evidence is for the Judge ; the Facts upon
which that Admissibility depends are to be determined by
him and not by the Jury.

BAETLETT v. SMITH. [1842]
(12 L. J. Ex. 287 ; 7 Jur. 44 S ; 1 1 M. & W. 483 ; 63 E. E. 664.)

In an action by the indorsee of a lull of exchange against the
drawer, the declaration stated that the defendants made their
bill of exchange and directed it to Mr. John Butcher, Dublin
(payable in London), and thereby required the said J. E.
Lutcher to pay to the order of the defendants the sum of 17/.



PROVINCE OF JUDGE AND JURY. 333

At the trial before the under-Sheriff of Middlesex the de-
fendants objected to the bill being read on the suggestion that,
although the bill purported to be drawn in Ireland, it was in
fact drawn in London, and being merely an inland bill required
a 2s. stamp, instead of the foreign bill stamp of Is. 67/., and they
tendered evidence to prove that the bill was drawn in London.
The under-sheriff refused the evidence at that stage of the case,
and allcwed the bill to be read. The defendants afterwards, as
part of their case, gave evidence of the bill having been drawn
in London, whereupon the under-sheriff left it to the jury to say
whether the bill had been drawn in this country or in Ireland.
The jury found a verdict for the plaintiff.

Held., by the Exchequer Chamber, the under-sheriff having
refused the evidence that was tendered by the defendants,
there must be a rule absolute for a neiv trial.

All facts which are necessary to be proved, ivith a view to
the reception of evidence, are for the consideration of the
judge, and he is to receive evidence respecting them for his
own satisfaction. He might, indeed, if he pleased, ask the
opinion of the jury , but still the decision ought to be his oivn.
A judge should receive evidence as to the competency of a
witness or the sufficiency of a stamp, which is good upon the
face of it, and ought to determine those questions for himself
instead of submitting them to the jury. In the present case
the under-sheriff was wrong in alloiving the bill to be read
in the first instance, and in afterwards submitting to the
jury evidence as to its admissibility. He ought to have
admitted the evidence at the time it wets tendered, and have
determined upon its effect at that time.

This is one of the many cases in which a judge ought to
receive evidence for his oivn satisfaction, and ought not to
submit it to the jury.



334 EVIDENCE.

The construction of written Documents is for the Court ; if they
be explained by extrinsic facts they are for the consideration
of the Jury.

MORRELL v. FRITH. [1838]
(7 L. J. Ex. 172 ; 3 M. & W. 402 ; 49 R, R. 659.)

At the trial of this action before Gurney, B., and a jury, it
appeared the defendant was indebted to the plaintiffs, who
were bankers at Oxford, in a sura of 479/., which had been due
for more than six years. The plaintiffs relied on the following
letter, written by the defendant to the plaintiffs' solicitor, as a
sufficient acknowledgment of the debt to take the case out of
the Statute of Limitations : —

"28th July, 1837.
" Sir — Since the receipt of your letter (and, indeed, for some
time previously) I have been in almost daily expectation of
being enabled to give a satisfactory reply to your first applica-
tion respecting the demand of Messrs. Morrell against mo. I
propose being in Oxford to-morrow morning, when I will call
upon you on the matter.

" I am, Sir, &c,

" W. C. Frith."

The learned judge was of the opinion that the letter was not
sufficient to take the case out of the Statute of Limitations, and
although requested by the plaintiffs' counsel to leave that
question to the jury, lie declined to do so, and directed a non-
suit.

Held, on appeal, by the Court of Exchequer, that (he
appeal mubt fail. This teller contained not/tine/ that could
be construed into an acknowledgment of the dell ; I he utmost
that could be -made of it was that it was evasively worded
so as to avoid any direct acknowledgment Then the next
question was whether it ought /<> hare hern lift to the jury.
One case in ivhich the effect of a written document must be



RELEVANCY TO THE ISSUE. 335

left to a jury is where it requires parol evidence to explain
it, as in the ordinary case of mercantile contracts, in which
peculiar terms and abbreviations arc employed. So., also,
where a series of letters form part of the evidence in the
cause they must be left, tvith the rest of it, to the jury.
But where the question arises on the construction of one
document only, without reference to any extrinsic evidence
to explain it, it is the safest course to adhere to the ride,
that the construction of written documents is a question of
laiv for the Court. The intention of the parties is a question
for the jury, and in some cases, in case of 'libel, for instance,
the meaning of the document is part of that intention, and,
therefore, must be submitted to the jury. But where a legal
right is to be determined from the construction of a written
document which either is unambiguous, or of which the
ambiguity arises only from the words themselves, that is a
question to be decided by the judge.



RELEVANCY TO TEE ISSUE.



Anything said or done by Conspirators in execution or further-
ance of the common object, but not otherwise, is admissible
in Evidence.

R. v. BLAKE. [1844]

(13 L. J. M. C. 131 ; 8 Jur. 667 ; 6 Q. B. 126 ; 66 E. R. 311.)

Blake and Tye were indicted for conspiring to cause goods
which had been imported to be carried away from port without
payment of revenue duties.

Upon the trial Blake only was present, Tye, the other
defendant, having absconded. It was proved to be the duty of



336 EVIDENCE.

Tye, as agent of the importer, to make certain entries called
" sight entries,'' upon which entries warrants would be granted
for the examination of the goods hy Blake, whose duty it would
be to enter the actual contents of the ca^es in a book called
the " Blue Book," the examination being made in the presence
of Tye, who would thus also become aware of the actual
contents, and should make therefrom what is called " a perfect
entry " and transmit it to Blake, whose duty it would be to
compare it with the " Blue Book," and if the "perfect entry "
and "Blue Book" corresponded to write the word " correct "
across the " perfect entry," when upon payment of the duty
thus ascertained the goods would be delivered.

Evidence was given of thirteen different transactions of
passing goods through the Custom House in which both Blake
and Tye had been concerned, the " sight entries " and " perfect
entries " in all of them being proved to be in the handwriting
of Tye and the entries in the " Blue Book," with the word
" correct " written across the " perfect entries " being proved to
be in the handwriting of Blake. All the entries were proved to
bo false.

The prosecution put in evidence against Blake (1) a day-book
of Tye containing entries in his handwriting relative to the
thirteen several transactions and showing the amount of duties
actually paid as the importer's agent, and (2) the counterfoil of
Tye's bank cheque-book, which purported to show that part of
the moneys of which the Customs had been defrauded in these
transactions had been paid to Blake.

Held, by the Court of Common Pleas, on an application for
a new trial, that on a trial for conspiracy il is an admitted
principle that evidence of acts or declarations bij one of the
conspirators is not receivable against another conspirator
unless the acts or declarations tend to the advancement of
the common object. That assumes lite object not to be then
completed. If it had been accomplished, the act or state-
ment is not receivable,



RELEVANCY TO THE ISSUE. 337

The day-book was admissible on this principle, bat the
counter/oil ivas not, for the entry therein ivas no act done
in pursuance of the conspiracy, so as to make the entry
evidence against Blake, and ivas no more than a declaration
or statement by a co -conspirator to a third party as to the
result of the conspiracy.

The rule for a new trial ivas accordingly made absolute.



Evidence may be given of Motive, preparation for a Crime, and
subsequent conduct of a Prisoner.

E. r. PALMER, [1856]
(Stephen, History of Criminal Law, III. 389.)

Lord Campbell in his charge to the jury told them that in a
case of that sort it was impossible to obtain direct evidence of
the mixing up or administration of the poisons. Only circum-
stantial evidence could be reasonably expected, and it was of
great importance to ascertain if there was any motive, however
inadequate, for the crime.

It was also necessary to bear in mind the fact that according
to the witnesses for the prosecution the prisoner had procured
the very poison used, and it was for the jury to ask themselves
for what purpose it was obtained.

It was necessary to pay attention to the conduct of the
prisoner subsequent to the murder — how eager he was to have
the coffin nailed down ; how he tried to bribe a postboy to
upset the cart containing a jar which was to be analysed in
search of poison ; how he tampered with a postmaster, and ob-
tained a letter from a Dr. Taylor who had analysed the contents
of the jar ; and how he had done his best to tamper with the
coroner's jury to induce them to give a verdict which would
amount to an acquittal.

The prisoner was found guilty, sentenced to death, and
hanged.

J. z



388 EVIDENCE.

A Statement to be adnrssible as part of the res gestae must have
been made by the Deceased at the time of the acts complained
of. A Dying Declaration, which is only admissible in cases
of Homicide, must be made by Declarant in belief that he is
dying.

R. v. BED1NGFIELD. [1879]

(14 Cox, C. C. 311.)

The prisoner was charged with the murder of a woman at
Ipswich. The deceased, with her throat cut, had rushed out of
a room in which she left the prisoner, whose throat was also cut.
On meeting one of the witnesses she said something and
pointed to the house. A few minutes later she died. The
prisoner's defence was that the deceased had first cut his throat
and then her own.

Held, that the statement was not admissible as a dying
declaration, as the deceased did not appear to be aware that
she was dying, nor as part of the res gestae, for it was not
part of anything done, or something said while something

was being done. Anything uttered by the deceased at the
time the act tvas being done would be admissible, as, for
instance, if she had been heard to sag something as u Dorft,
Harry!" But here it tvas something stated by her after
it tvas all over, whatever it was, and after the act tvas
completed.

Note.— In the case of R. v. Jenkins (1869), 1 0. C. E. 187,
a statement was made by the deceased and taken down in
writing. The deceased then said : "I make the above statement
with the fear of death before me, and with no hope at present of
my recovery." Thirteen hours later the deponent died.

Held, the statement was not admissible.



RELEVANCY TO THE ISSUE. 339

In cases of Indecent Assault only, statements by way of complaint
made by Prosecutrix, in absence of Prisoner, are admissible
as Corroboration of Prosecutrix's credibility if made at the
first opportunity.

R. v. OSBORNE. [1905]

(74 L. J. K. B. 31 1 ; (1905) 1 K. B. 551 ; 92 L. T. 393 ;
53 W. E. 494; 09 J. P. 189.)

The prisoner was charged with indecently assaulting a girl
twelve years of age. Evidence was admitted as to what the
girl said when she was met by some girl friends as she was
running away from the prisoner's shop where the assault had
taken place. The prisoner was convicted, but sentence was
postponed pending the decision of the Court for Crown Cases
Reserved as to whether this evidence was admissible.

Held, by that Court, that the prisoner teas rightly con-
victed, as the evidence was admissible.

In support of a charge of rape or an offence of a similar
class, hut only in such cases a statement in the nature of a
complaint made by the prosecutrix to a third person, not in
the presence of the accused, may be given in evidence, whether
proof of non-consent is or is not a material element in the
charge under investigation, provided such statement is shown
to have been made at the first opportunity which reasonably
offered itself after the commission of the offence, and has
not been elicited by questions of a leading and inducing or
intimidating character. The judge ought, however, to inform
the jury that the statement is not evidence oj the facts com-
plained of, and must not be regarded by them, if believed,
as other than corroboration of the prosecutrix 1 s credibility,
and, where consent is in issue, of the absence of consent.

Where the statement has been made in answer to a
question — and the fact that it has been so made docs not of
itself render it inadmissible as a complaint — it is for the

z2



- i t<> EVIDENCE.



judge in each case to determine whether the character of the
question put, as well as other circumstances, such as the
relationship of the prosecutrix, is such as to render the
s ta temen I inadm iss ib le .



FACTS SHOWING SYSTEM.



Evidence of Offences similar but subsequent to the Charge may be
given to show connected Scheme of Fraud. Judge has a
Discretion to comment on Prisoner's Failure to give Evidence
at trial.

EEGINA v. EHODES. [1899]

(68 L. J. Q. B. 83 ; L. E. (1899) 1 Q. B. 77 ; 79 L. T. 360 ; 4 7
W. E. 121 ; 62 J. P. 774 ; 19 Cox, C. C. 182.)

The prisoner was indicted for obtaining goods by false pre-
tences. At the trial at Quarter Sessions evidence was given of
several other cases where he had obtained goods in the same
way, although he was not charged with those offences. In
summing up to the jury, the Chairman commented upon the
prisoner's failure to give evidence at the trial.

Held, hi/ the Court for Crown Case* Reserved, that where
on the trial of an indictment for obtaining goods by false
'pretences there is evidence that at dates subsequent to the
offence charged the prisoner obtained goods from other
persons by similar false pretences, such evidence is admissible
when it points directly to one and the same system of fraud
ami a connected scheme of dishonesty.

A Judge at the trad has the rigid to comment on a
prisoner's fa Hare to give evidence on Ids own behalf under
the Criminal Evidence Act, 1898; but the right of com-
ment rests solely on the judge's discretion, ami its exercise
depends agon the circumstances of each particular ease, (aid
is one as to which no general ride can be laid down.

Note. — Counsel may not comment on the prisoner's failure to
give evidence at trial.



FACTS SHOWING SYSTEM. :}41

The Declaration of a Deceased Person is admissible where made
in the usual course of business and where it was the duty of
the deceased to make the whole of it. A letter posted in
the ordinary course of business is presumed to have been
duly received. Secondary Evidence of its Contents may be
given where not produced after notice.

TEOTTER v. MACLEAN. [1879]
(13 Ch. D. 574; 42 L. T. 118; 28 W. R. 244.)

In this action it was sought to put in evidence an entry in a
diary kept by an agent who had since died in order to prove a
certain interview which was alleged to have taken place between
the parties.

Held, by Fry, J., that the entry, in order to be admissible
as a dying declaration, must have been made by the deceased
in the usual routine of business, and it must be proved that
it ivas his duty to make the whole of it. The evidence must
be rejected, as it was not proved that it ivas any part of
the agent's duty to make the ivhole of it.

The original of a letter written by the defendant to the
plaintiff, of which notice to produce had been given, was
declared by the plaintiff never to have been received by him.

A witness for the defendant produced a copy of this letter,
which he said had been made at the time, and although he did
not remember having posted it, he had no doubt that that was
done in the usual course of business.

The plaintiff objected to the admission of this copy, as he
had no such letter in his possession, and he contended it ought
to be strictly proved.

Held, per Fry, J. : " It appears to me that there is
some evidence of the posting of the letter, though it is weak.
The witness says that in the ordinary course of business he
would post the letter. I must therefore admit the copy? 1



;',42 EVIDENCE.



HE A USA Y E V1DENCE.



Hearsay Evidence is not generally admissible.

STOBAET v. DEYDEN. [1836]

(5 L. J. Ex. 218 ; 1 M. & W. 615 ; 2 Gale, 146 ; 1 Tyr. & Gr. 899 ;

46 E. E. 424.)

This was an action on a covenant in a mortgage deed to
which there was a plea of non erf factum. A man named
M'Cree, who on the face of the instrument appeared to be the
subscribing witness, being dead, the execution of the deed was
proved in the usual way by proof of his handwriting. Mr.
Cresswell, a witness for the defendant, offered in evidence
declarations of M'Cree of facts tending to prove that the deed
was a forgery. At the trial this evidence was rejected.

Held, on appeal, by the Court of Exchequer Pleas, that
the evidence ivas properly rejected.

The (jenered rule is that hearsay evidence is not admissible
as a proof of a fact which has been stated by a third per son.
There "re certain exceptions to this rule, based on con-
venience or necessity, but this case docs not constitute an
exception to that rule.

If any declarations at any time from the mouth of sub-
scribing witnesses who are dead arc to be admit led in evidence
the result would be thai the security of solemn instruments
vould be much impaired.



HEARSAY EVIDENCE. 343



Admissions by a Servant do not bind his Principal unless made
within the scope of the Servant's Authority.

THE GEEAT WESTERN BAILWAY CO. v. WILLIS. [18G5]

(34 L. J. C. P. 195 ; 18 0. B. (N. S.) 748.)

In an action against the railway company for not delivering
within a reasonable time cattle which had been sent by their
railway, the plaintiff gave evidence at the trial of a conversation
which had taken place a week after the transaction between
himself and the company's night inspector, who had charge of
the night cattle trains at a station through which the trucks
containing the plaintiff's cattle would pass, and in which conver-



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 25 of 29)