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ACCUSING OF INFAMOUS CRIMES, &c.
Statute 7 and 8 Geo. 4, c. 29
868 | Proof of the view or intent to extort moProof of the accusing or threatening to ney
870 869 Proof of the thing intended to be extortProof of the nature of the accusation 869 ed
The offence of accusing, or threatening to accuse of unnatural crimes, whereby property has been extorted, has already been treated of under the title Robbery, see ante, p. 845. Under the present head the offence of accusing, as well of such crimes, as of the other crimes specified in the 7 & 8 Geo. 4, c. 29, s. 8, with a view to extort money, &c. will be considered.
Statute 7 and 8 Geo. 4, c. 29.) By the 7 and 8 Geo. 4, c. 29, s. 8, if any person shall accuse, or threaten to accuse, or shall knowingly send or deliver any letter or writing, accusing, or threatening to accuse, any person of any crime punishable by law with death, transportation, or pillory, or with any assault with intent to commit any rape, or of any attempt or endeavor to commit any rape, or of any infamous crime as hereinafter defined, with a view or intent to extort or gain from such person any chattel, money, or valuable security, every such offender shall be guilty of felony; and being convicted thereof, shall be transported for life, &c.; see ante, p. 863.
Section 9, defines what shall be an infamous crime, viz., buggery, committed either with mankind or beast, and every assault with intent to commit that crime, and every intent or endeavor to commit that crime, and every solicitation, persuasion, promise, or threat, offered or made to any person, whereby to move or induce such person to commit or permit such crime. [ *869 ) *On a prosecution upon this statute, the prosecutor must prove, i, the accusing or threatening to accuse, or the knowingly sending or delivering of the letter or writing accusing or threatening to accuse; 2, that the accusation is of the nature specified in the statute; 3, the view or intent to extort or gain ; 4, that the matter intended to be extorted or gained was some chattel, money, or valuable security.
Proof of the accusing or threatening to accuse, &c.] The accusation under this statute may either be by word of mouth or in writing, and an actual accusation before a competent authority or otherwise, or a mere threat to make such an accusation, will be sufficient. But if the party has been already accused, threatening to procure witnesses to support that accusation, is not within the statute. “It is one thing to accuse, and another to procure witnesses to support a charge already made ; this is at most a threat to support it by evidence.” Per Bayley, J., Gill's case, York Sum. Ass. 1829, Greenwood's Stat. 191, (n.), i Lewin, C. C. 305. An indictment upon the 4 Geo. 1, c. 54, s. 5, (which used the words “threaten to accuse,”) charged the prisoners with “charging and accusing J. N., and with menacing and threatening to prosecute J. N.” Upon an objection taken, that the indictment had not pursued the statute, Garrow, B., (after consulting Burrough, J.,) was of that opinion. If, he said, the indictment had followed the statute, and it had been proved that the prisoners threatened to prosecute J. N., I should have left it to the jury to say whether that was not a threatening to accuse him. Abgood's case, 2 c. and P. 436 (a).
It was held that the threatening to accuse under the 7 and 8 Geo. 4, c. 29, s. 7, (now repealed, see ante, p. 854,) in which the same words,
accuse or threaten to accuse,” were used as in the 8th section, need not have been a threat to accuse before a judicial tribunal, a threat to charge before any third person being enough. Robinson's case, 2 M. and R. 14.
If the accusation or threat to accuse was contained in a letter or writing, the knowingly sending or delivering of such letter or writing must be proved in the manner already pointed out. Vide ante, p. 863.
Proof of the nature of the accusation.] It must be shown that the accusation, made or threatened, was of the nature of those specified in the statute. Where the meaning is ambiguous, it is for the jury to say whether it amounts to the accusation or threat imputed.
Declarations subsequently made by the prisoner are also admissible to explain the meaning of a threatening letter. The prisoner was indicted for sending a letter, threatening to accuse the prosecutor of an infamous crime.
The prosecutor, meeting the prisoner, asked him what he meant by sending him that letter, and what he meant by “transactions five nights following,” (a passage in the letter.) The prisoner said that the prosecutor knew what he meant. The prosecutor denied it, and the prisoner afterwards said, “I mean by taking indecent liberties with my per
This evidence having been received, and the point having been reserved for the opinion of the judges, *they unanimously resolved [ *870 ] that the evidence had been rightly received. Tucker's case, 1 Moody, C. C. 134 (6); see also Cain's case, ante, p. 845.
Proof of the view or intent to extort money.] It must appear that the accusation or threat was made, or the letter or writing sent or delivered, with the view or intent to extort or gain from some person some chattel, &c. If the accusation or threat were merely made in passion, and with no view of gain, it would not be within the statute.
Proof of the thing intended to be extorted, &c.] The matter intended to be gained or extorted must be some chattel, money, or valuable security, and it must be proved as laid in the indictment.
By the 5 Geo. 4, c. 84, s. 22,"if any offender who shall have been, or shall be so sentenced or ordered to be transported or banished, or who shall have agreed, or shall agree, to transport or banish himself or herself on certain conditions, either for life or any number of years, under the provisions of this or any former act, shall be afterwards at large within any part of his Majesty's dominions, without some lawful cause, before the expiration of the term for which such, offender shall have been sentenced or ordered to be transported or banished, or shall have so agreed to transport or banish himself or herself, every such offender, so being at large, being thereof lawfully convicted, (shall suffer death as in cases of felony, without the benefit of clergy); and such offender may be tried either in the county or place where he or she shall be apprehended, or in that from whence he or she was ordered to be transported or banished; and if any person shah
rescue, or attempt to rescue, or assist in rescuing, or in attempting to rescue, any such offender from the custody of such superintendent or overseer, or of any sheriff, or gaoler, or other person conveying, removing, transporting or reconveying him or her, or shall convey, or cause to be conveyed, any disguise, instrument for effecting escape, or arms, to such offender, every such offence shall be punishable in the same manner as if such offender had been confined in a gaol or prison in the custody of the sheriff or gaoler, for the crime of which such offender shall have been convicted; and whoever shall discover and prosecute to conviction any such offender so being at large within this kingdom, shall be entitled to a reward of 201. for every such offender so convicted.” [ *871] *By s. 23, in any indictment against any offender for being found at large, contrary to that or any other act now or thereafter to be made, it shall be sufficient to charge and allege the order made for the transportation or banishment of such offender, without charging or alleging any indictment, trial, conviction, judgment, or sentence, or any pardon or intention of mercy, or signification thereof, of or against or in any manner relating to such offender.
By s. 24, "the clerk of the court, or other officer having the custody of the records of the court where such sentence or order of transportation or banishment shall have been passed or made, shall at the request of any person, on his Majesty's behalf, make out and give a certificate in writing, signed by him, containing the effect and substance only (omitting the for'mal part) of every indictment and conviction of such offender, and of the sentence or order for his or her transportation or banishment, (not taking for the same more than 68. 8d.) which certificate shall be sufficient evidence of the conviction and sentence, or order for the transportation or banishment of such offender; and every such certificate, if made by the clerk or officer of any court in Great Britain, shall be received in evidence, upon proof of the signature and official character of the person signing the same ; and every such certificate, if made by the clerk or officer of
any court out of Great Britain, shall be received in evidence, if verified by the seal of the court, or by the signature of the judge, or one of the judges of the court, without further proof.”
Upon a prosecution for this offence, the prosecutor must prove, 1, the : conviction of the offender, by producing a certificate according to the above section of the statute; 2, the sentence or order of transportation, in like manner. The signature and official character of the person signing the certificate must be proved. If the certificate is made by the clerk or officer of a court out of Great Britain, it is admissible when verified by the seal of the court or the signature of the judge. The “effect and substance” of the former conviction must be stated in the certificate ; merely stating that the prisoner was convicted "of felony" is not sufficient. Sutcliffe's case, Russ. and Ry. 469 (n.) (a); Watson's case, Id. 468 (6). 3, proof must then be given of the prisoner's identity; and 4, that he was at large before the expiration of his term.
Punishment.]. By the 4 and 5 Wm. 4, c. 67, reciting the 22d section of the 5 Geo. 4, c. 84, it is enacted, “ that every person convicted of any offence above specified in the said act of the 5th year of the reign of his late Majesty king George 4, or of aiding or abetting, counselling or procuring the commission thereof, shall be liable to be transported beyond the seas for his or her natural life, and previously to transportation shall be imprisoned, with or without hard labor, in any common gaol, house of correction, prison, or penitentiary, for any term not exceeding four years.
*GENERAL MATTERS OF DEFENCE.
There are certain general matters of defence, the evidence with regard to which it will be convenient to comprise under the three following heads: Infancy, Insanity, and Coercion by Husbands.
872 In cases of capital offences .872 Insanity
873 Cases in which the prisoner has been
held not insane
874 Cases in which the prisoner has been held insane
876 Cases of insanity caused by intoxication
- 878 Coercion by husband
An infant is, in certain cases, and under a certain age, privileged from punishment, by reason of a presumed want of criminal design (1).
(1) Wheeler's C. C. 231.
In cases of misdemeanors and offences not capital.] In certain misdemeanors an infant is privileged under the age of 21, as in cases of nonfeasance only, for laches shall not be imputed to him. 1 Hale, P. C. 20. But he is liable for misdemeanors accompanied with force and violence, as a riot or battery. Id. So for perjury. Sid. 253.
Sid. 253. So he may be convicted of a forcible entry, 4 Bac. Ab. 591 ; but must not be fined (1). See ante, p. 436.
In cases of capital offences.) Under the age of seven years, an infant cannot be punished for a capital offence, not having a mind doli capax ; i Hale, P. C. 19; nor for any other felony, for the same reason. Id. 27. But on attaining the age of fourteen, he is obnoxious to capital (and of course to any minor) punishment, for offences committed by him at any time after that age. î Hale, P. C. 25.
With regard to the responsibility of infants, between the ages of seven and fourteen, a good deal of doubt formerly prevailed, but it is now quite clear, that where the circumstances of the case show that the offender was [*973 ] capable of distinguishing between right and *wrong, and that he acted with malice and an evil intention, he may be convicted even of a capital offence; and accordingly there are many cases, several of them very early ones, in which infants, under the age of fourteen have been convicted and executed (2). Thus in 1629, an infant between eight and nine years of age was convicted of burning two barns in the town of Windsor, and it appearing that he had malice, revenge, craft, and cunning, he was executed. Dean's case, 1 Hale, P. C. 25, (n.)
So Lord Hale mentions two instances to the same effect, one of a girl of thirteen, executed for killing her mistress, and another of a boy of ten, for the murder of his companion. i Hale, P. C. 26; Fitz. Ab. Corone, 118. In the year 1748, a boy of ten years of age was convicted of murder, and the judges, on a reference to them were unanimously of opinion that the conviction was right. York's case, Foster, 70.
An infant under the age of fourteen years is presumed by law unable to commit a rape, and though in other felonies, militia supplet ætatem, yet as to this fact, the law presumes the want of ability, as well as the want of discretion. But he may be a principal in the second degree, as aiding and assisting, though under fourteen years, if it appear that he had a mischievous discretion. i Hale, P. C. 630; Eldershaw's case, 3 C. and P. 396 (a); see further ante.
It is necessary, says Lord Hale, speaking of convictions of infants between the years of seven and twelve, that very strong and pregnant evidence should be given to convict one of that age. i Hale, P. C. 27; 4 BI. Com. 23. And he recommends respiting of judgment till the king's pleasure be known. Ibid.
See Wood o. The Commonwealth, 3 Leigh, 743.
Comm. o. Keagy, 1 Ashmead, 248. State o. Aaron, 1 Southard, 231. Comm. o. Krouse, 0. and T. Philad. Sept. 1835, before Judge King.
(@) Eng. Com. L. Rep. xiv. 367.