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Woolwich, Eltham, Plumstead, St. Nicholas Deptford, that part of St. Paul Deptford which is within the said county of Kent, the liberty of Kidbrook and the hamlet of Mottingham in the county of Kent; and the borough of Southwark, the parishes of Battersea, Bermondsey, Camberwell, Christchurch, Clapham, Lambeth, St. Mary Newington, Rotherhithe, Streatham, Barnes, Putney, and that part of St. Paul Deptford which is within the said county of Surrey, Tooting, Graveney, Wandsworth, Merton, Mortlake, Kew, Richmond, Wimbledon, the clink liberty, and the district of Lambeth palace in the county of Surrey.
By s. 3, the district situated within the limits of the jurisdiction therein[ *236 ] before established is to be deemed one county for all *purposes of venue, local description, trial, judgment and execution not therein specially provided for; and in all indictments and presentments the venue laid in the margin shall be “ Central Criminal Court to wit," and all offences and material facts are to be laid to have been committed and averred to have taken place “ within the jurisdiction of the said court.”
Where an indictment for misdemeanor was preferred at the Central Criminal Court, and the marginal venue was, “Central Criminal Court to wit," and in the body of the indictment the facts were stated to have taken place “at the parish of St. Mary, Lambeth, Surrey, within the jurisdiction of the said court.” The indictment being removed by certiorari, it was held that the trial must be at the assizes for Surrey. Connop's case, 4 A. and E. 942 (a).
Want of a proper venue, when cured.] By stat. 7 Geo. 4, c. 64, s. 20, no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of a proper or perfect venue, where the court shall appear by the indictment or information to have had jurisdiction over the offence.
Change of venue.) Where a fair and impartial trial cannot be had in the county where the venue is laid, the Court of King's Bench (the indictment being removed thither by certiorari) will, upon an affidavit stating that fact, permit a suggestion to be entered on the record, so that the trial may be had in an adjacent county. Good ground must be stated in the affidavit, for the belief that a fair trial cannot be had. Clendon's case, 2 Str. 911. Harris's case, 3 Burr. 1330. 1 W. Bl. 378. Archb. C. L, 26, 4th ed. The suggestion need not state the facts from which the inference is drawn, that a fair trial cannot be had. Hunt's case, 3 B. and A. 444 (b). This suggestion when entered, is not traversable. 1 Chitty C. L. 201. And the venue in the indictinent remains the same, the place of trial alone being changed. Ibid.
It is only, however, in case of misdemeanor, that the Court of King's Bench will, in general, award a venire to try in a foreign county, though cases may occur in which the court would change the venue in felony. Holden's case, 5 B. and Ad. 347 (c); 2 Nev. and M. 167. And even in cases of misdemeanor, the court has not exercised its discretionary power, unless there has been some peculiar reason, which made the case almost one of necessity. Per Cur. Ib.
(a) Eng. Com. L. Rep. xxxi. 231. (b) Id. v. 342. (c) Id. xxvii. 96.
Upon an indictment for a misdemeanor, the application to change the venue ought not to be made before issue joined. Forbes' case, 2 Dowl. P. C. 440.
*EVIDENCE IN PARTICULAR PROSECUTIONS. [ *237 ]
At cominon law
239 By statute 237 | Abduction of girls under sixteen
239 Proof of the taking away or detaining Proof of the taking of the girl out of the against the will 238 possession of the father, &c.
240 Proof of the woman's interest
238 Proof of the want of consent of the fa. Proof of the motive of lucre 238 ther, &c.
240 Proof of the intent to marry or defile 239
At common law.] It is stated to be the better opinion, that if a man marry a woman under age, without the consent of her father or guardian, that act is not indictable at common law; but if children be taken from their parents or guardians, or others intrusted with the care of them, by any sinister means, either by violence, deceit, conspiracy, or any corrupt or improper practices, (as by intoxication) for the purpose of marrying them though the parties themselves may be consenting to the marriage, such criminal means will render the act an offence at common law. 1 East, P. C. 458, 459; 1 Russell, 569. So, seduction may take place under such circumstances of combination and conspiracy, as to render it an indictable offence. Lord Grey's case, 3 St. Tr. 519; 1 East, P. C. 460; 1 Russ. 570.
By statute.] The offence of abduction was provided against by statutes 3 H. 7, c. 2, 39 Eliz. c. 9, 4 and 5 P. and M. c. 8, and i Geo. 4, c. 115: but these statutes are now repealed, and their provisions consolidated in the 9 Geo. 4, c. 31.
By the 19th section of that statute, it is enacted, that where any wo man shall have any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate ; or shall be an heiress presumptive, or next of kin to any one having such interest, if any person shall from motives of lucre, take away or detain such woman against her will, with intent to marry or defile her, or to cause her to be married or defiled by any other person ; every such of fender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and *being convicted thereof, shall be [ *238 1 liable to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned with or without hard labor, in the common gaol or house of correction, for any term not exceeding four years.
Upon an indictment under this statute, the prosecutor must prove-1, the taking away or detaining of the woman against her will. 2, that the woman had such an interest as is specified in the statute. 3, that the taking away or detaining, was from motives of lucre. 4, the intent to marry or defile, &c.
Proof of the taking away or detaining against the will, &c.] The statute 3 H. 7, c. 2, like the statute 9 Geo. 4, uses the words, take against her will," and upon those words, it has been held, that getting a woman inveigled out by confederates, and detaining her, and taking her away, is a taking within the statute of H. 7. Thus, where a confederate of the prisoner inveigled a girl of fourteen, having a portion of 5000l. to go with her and a maid-servant in a coach into the Park, where the prisoner got into the coach, and the two women got out, and the prisoner detained the girl while the coach took them to his lodgings in the Strand : where, the next morning, he prevailed upon her, by threatening to carry her beyond the seas, in case she refused, to marry him, (though there was no evidence that she was deflowered) the prisoner was convicted, and executed. Brown's case, 1 Ventr. 243; 1 Russell, 571. So it is said, that it is no manner of excuse that the woman at first was taken away with her own consent, because, if she afterwards refuses to continue with the offender, and be forced against her will, she may, from that time, as properly be said to be taken, against her will, as if she had never given any consent at all; for till the force was put upon her, she was in her own power. Hawk. P. C. b. 1, c. 41, s. 7 ; 1 East, P. C. 454. This would probably be now considered as a “detaining” within the statute 9 Geo. 4, c. 31. See also Wakefield's case, Murray's ed.
Proof of the woman's interest.] The prosecutor must prove that the woman was interested in real or personal estate, according to the allegation in the indictment, or that she was the heiress or next of kin to some one having such interest. Evidence of this fact must be given in the usual way, and possession either of real or personal estate will be prima facie evidence of interest. To prove that the party is heiress, or next of kin, one of the family, or some one acquainted with the family
may be called.
Proof that the offence was committed from motives of lucre. That the party was guilty of the offence from motives of lucre, will in general be gathered from the whole circumstances of the case. Proof that there was little or no previous intercourse between the parties, will tend to establish this part of the case. So, that the offender was in needy circumstances, or that he has made declarations tending to show the object with [*239 ] which he committed the *crime. Thus, in Lockart Gordon's case, 1 Russell, 575, it was proved that the prisoner was pressed for money, and backward in his payments; and that he had admitted to one of the witnesses that he was in distressed circumstances.
Proof of the intent to marry or defile.] Under the statute 3 H. 7, it was necessary that there should be a marriage or defilement, the taking alone not being sufficient; And. 115. Cro. Car. 486. 1 Russell, 571; and it was not necessary to aver an intent to marry or defile; Fulwood's case, Cro. Car. 482; nor was it material whether the woman was at last married or defiled with or without her consent, if she were under force at the time of the taking, for such construction was equally within the words and meaning of the statute, (3 Hen. 7,) which was to protect the weaker sex from both force and fraud. Upon an indictment under the 9 Geo. 4, c. 31, however, it is not necessary to prove either a marriage or defiling, but only an intent to marry or defile, which, like the averment of "motives of lucre," will in general appear, from the whole circumstances of the case.
Venue.] Under the statute of 3 Hen. 7, it was held, that where a woman was taken away forcibly in one county, and alterwards went voluntarily into another county, and was there married or defiled with her own consent, the offender was not indictable in either county, on the ground that the offence was not complete in either. Gordon's case, 1 Russ. 572, This point cannot, however, arise upon the statute 9 Geo. 4, c. 31, the offence under that statute being complete, by the taking or detaining, with intent, &c. And, morcover, by 7 Geo. 4, c. 64, s. 12, an offence begun in one county, and completed in another, may be tried in either county.
Abduction of girls under sixteen.] The offence of taking away a maid or woman child unmarried, under the age of sixteen, from the custody of her father, &c. was formerly provided for by statute 4 and 5 P. and M. c. 8, s. 2 and 3, (now repealed) and was likewise, as it seems, an offence at common law. Hawk. P. C. b. 1, c. 11, s. 8. And by statute 9 Geo. 4, c. 31, s. 20, it is enacted, that if any person shall unlawfully take, or cause to be taken any unmarried girl, being under the age of six teen years, out of the possession, and against the will of her father and mother, or of any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to suffer such punishment by fine or imprisonment, or by both, as the court shall award.
Upon an indictment for this offence, the prosecutor must prove—1, the taking of the girl (and that she is under sixteen) out of the possession of her father, &c. ; 2, that it was against the will of the father, &c. It will be observed, that neither motives of lucre, nor an intent to marry or defile, are made constituent parts of this offence, as in the preceding section of the act.
*Proof of the taking of the girl out of the possession of the [ *240 ] father, &c.] It has been held that an illegitimate child is within the protection of the statute 4 and 5 P. and M. Cornforth’s case, 2 St. 1162. Hawk. P. C. b. 1, c. 41, s. 14. And the same would be held under the new statute. The taking away may be effected either by force or fraud, or by obtaining the consent of the girl herself to leave her father, &c. Thus it is said by Herbert, C. J., that the statute (of P. and M.) was made to prevent children from being seduced from their parents or guardians by flattering or enticing words, promises or gists, and married in a secret way to their disparagement Hicks v. Gore, 3 Mod. 81. So it is no excuse that the defendant being related to the girl's father, and frequently invited to the house, made use of no other seduction than the common blandishments of a lover, to induce the girl secretly to elope and marry him, if it appear that it was against the consent of the father. Twisleton's case, 1 Lev. 257; 1 Sid. 387; 2 Keb. 432; Hawk. P. C. b. 1, c. 41, s. 10; 1 Russell, 579.
Proof of the want of consent of the father, &c.] The prosecutor must prove the want of consent of the father or mother, or other person having the lawful care or charge of the girl. Upon the death of the father, the mother retains her lawful authority over the child, notwithstanding a second marriage, and the consent of the second husband is immaterial. Ratcliffe's case, 3 Rep. 39. Whether where a girl under sixteen is placed by the father and mother under the temporary care of another, by whose collusion, and with whose consent she is taken away and married, it will be an offence within the statute, does not appear to be well decided. The following case arose upon the statute of Philip and Mary. A widow fearing that her daughter, a rich heiress, might be seduced into an imprudent marriage, placed her under the care of a female friend, (Lady Gore) who sent for her son from abroad, and married him openly in the church, and during canonical hours, to the heiress, before she had attained the age of sixteen, and without the consent of her mother, who was her guardian. It was held by Herbert, C. J., that in order to bring the offence within the statute, it must appear that some artifice was used ; that the elopement was secret, and the marriage to the disparagement of the family. Hicks v. Gore, 3 Mod. 84; Hawk. P. C. b. 1, c. 41, s. 11. In this case it is to be noted, says Mr. East, that the mother had placed the child under the care of Lady Gore, by whose procurance the marriage was effected; but nothing is stated in the report to show that the chief justice laid any stress on that circumstance. And in truth, it deserves good consideration before it is decided, that an offender acting in collusion with one who has the temporary custody of another's child for a special purpose, and knowing that the parent or proper guardian did not consent, is yet not within the statute; for then every schoolmistress might dispose of the children committed to her care, though such delegation of a child for a particular purpose be no delegation of the power of disposing of her in marriage; but
*241 ] *the governance of the child in that respect, may still be said to remain in the parent. 1 East, P. C. 457. There must be a continuous want of consent on the part of the parent, for if the consent be once given, it cannot, it is said, be revoked. Calthorpe v. Axtell, 3 Mod. 169. Hawk. P. C. b. 1, c. 41, s. 13.
Offence at common law
242 Statute law-7 Wm. 4 and 1 Vict. c. 85, Proof of the nature of the thing admins. 6 241 istered
242 Proof of the intent
Offence at common law.] A child en ventre sa mere, cannot be the subject of murder, vide post, “ Murder." At common law an attempt to