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ther confirmed, if it appear that they were purchased at considerably less tban their real value, concealed in places not usually employed for keeping such articles, as under beds, in coal cellars, or up chimnies; if their marks be effaced, or false or inconsistent stories told as to the mode of their acquisition. And it is a still further ingredient towards inferring guilty knowledge, if they have been received from a notorious thief, or one from whoin stolen goods have on previous occasions, been received.” Alison's Princ. Cr. Law of Scotl. 330.
Where it was a verred that the prisoner, “ Francis Morris the goods and chattels, &c. feloniously did receive and have; he the said Thomas Morris then and there well knowing the said goods and chattels to have been feloniously stolen," &c., it was moved in arrest of judgment, that the indictment was bad, for that the fact of receiving, and the knowledge of the previous felony, must reside in the same person, whereas this indictment charged them in two different persons; but the judges held that the indictment would be good without the words “the said Thomas Morris,” which might be struck out as surplusage. Morris' case, 1 Leach, 109.
The intention of the party in receiving the goods is not material, provided he knew them to be stolen. Where it was objected that there was no evidence of a conversion by the receiver, Gurney, B., said, if the receiver takes without any profit or advantage, or whether it be for the purpose of profit or not, or merely to assist the thief, it is precisely the
Davis' case, 6 C. and P. 178 (a). If a receiver of stolen goods receive them for the mere purpose of concealment, without deriving any profit at all, he is just as much a receiver as if he had purchased them. Per Taunton, J., Richardson's case, 6 C. and P. 335 (b).
The rule by the law of Scotland is the same. If the prisoner once re[ *813) ceive the goods into his keeping, it is immaterial upon what *footing this is done, whether by purchase, pledge, barter, or as a mere depository for the thief. Nay, though he buy them for full value, the crime is the same, because he knowingly detains them from the true owner ; but the fact of a fair price having been paid is an important circumstance to outweigh the presumption of the guilty knowledge (1). Alison's Princ. Crim. Law of Scotl. 329; Hume, 113; Burnett, 155, 156.
Proof where the prisoner is charged as principal and receiver in different counts.] A person may be legally charged in different counts of the same indictment both as the principal felon and as the receiver of the same goods. Galloway's case, 1 Moody, C. C. 234 (c). But the judges, on a case reserved, were equally divided in opinion whether the prosecutor should in such case be put to his election. They all agreed, however, that directions should be given to the respective clerks of assize not to put both charges in the same indictment. Id. The latter point again arose in a subsequent case, and after discussion, a great majority of the judges were of opinion that the rule laid down in Galloway's case, (supra) should be adhered to. Madden's case, 2 Moody, C. C. 277 (d).
(1) Where a person suffered a trunk containing stolen goods to be put on board a vessel in which he had taken his passage, as part of his baggage, it was held, that this was such a receipt of the goods, as purchaser or bailee, as justified a conviction for receiving stolen goods. State v. Scovel, 1 Const. 274.
(a) Eng. Com. L. Rep. xxv. 342. (6) Id. 427. () 2 Eng. C. C 234. (d) 2 Ibid. 277.
. Where the prisoner was indicted for stealing, and the second count charged him with a substantive felony in receiving, Vaughan, B., ruled that the prosecutor must elect upon which of the counts he would proceed. Flower's case, 3 C. and P. 413 (a) ; sec Austin's case, ante, p. 216; Hartall's case, and Wheeler's case, ante, p. 810.
Proof by the prisoner of innocence of principal felon.] The party charged as receiver may controvert the guilt of the principal felon, even after his conviction, and though that conviction is stated in the indictment. For, as against him, the conviction is only presumptive evidence of the principal's guilt, under the rule that it is to be presumed that in the former proceeding every thing was rightly and properly transacted. It being res inter alios acta, it cannot be conclusive as to him. Foster, 365. If, therefore, it should appear, on the trial of the receiver, that the offence of which the principal was convicted did not amount to felony, (if so charged), or to that species of felony with which he is charged, the receiver ought to be acquitted. Id. Thus where the principal had been convicted, and on the trial of the receiver the conviction was proved, but it appeared on the cross-examination of the prosecutor, that, in fact the party convicted had only been guilty of a breach of trust, the prisoner, on the authority of Foster was acquitted. Smith's case, 1 Leach, 283; Prosser's case, Id. 290 (n).
Witnesses-competency of principal felon.] The principal felon, though not convicted or pardoned, is a competent witness for the crown to prove the whole case against the receiver. Haslam's case, 1 Leach, 418; Price's case, Patram's case, Id. 419, (n); 2 East, P. C. 732. But the confession of the principal felon is not, as it *has been al- [ *814
] ready stated, evidence against the receiver. Turner's case, 1 Moody, C. C. 347 (b), ante, p. 50.
Venue.] By the 7 & 8 Geo. 4, c. 29, s. 76, (after providing that nothing contained in the act shall extend to Scotland or Ireland, except as follows,) it is enacted, “ that if any person in any one part of the United Kingdom shall receive or have any chattel, money, valuable security, or other property whatsoever, which shall have been stolen, or otherwise feloniously taken in any other part of the United Kingdom, such person knowing the said property to have been stolen or otherwise feloniously taken, he may be dealt with, indicted, tried, and punished for such offence, in that part of the United Kingdom, where he shall so receive or have the said property, in the same manner as if it had been originally stolen or taken in that part (1).”
And by sec. 56, “ if any person shall receive any chattel, money, valu- · able security, or other property whatsoever, knowing the same to have been feloniously or unlawfully stolen, taken, obtained, or converted, every such person, whether charged as an accessary after the fact to the felony, or with a substantive felony, or with a misdemeanor only, may be dealt with, indicted, tried, and punished in any county or place in which he
(1) An indictment for receiving stolen goods lies against one, who receives the goods in one state, though stolen in another. Commonwealth v. Andrews, 2 Mass. 14. But see ante, p. 590, n.
(a) Eng. Com. L. Rep. xiv. 374. (b) 2 Eng. C. C. 347.
shall have, or shall have had, any such property in his possession : or in any county or place in which the party guilty of the principal felony or misdemeanor may by law be tried, in the same manner as such receiver may be dealt with, indicted, tried, and punished, in the county or place where he actually received such property."
Nature of the offence
815 | Panishment Proof of the eustody of the party rescued 815 Aiding a prisoner to escape Proof of the rescue
816 Offence under various statutes
. 816 • 816 · 816
Nature of the offence.) The offence of rescue nearly resembles that of prison breach, which has already been treated of, ante, p. 794.
Where the party rescued is imprisoned on a charge of felony, the rescuing is felony also. 1 Hale, P. C. 606. Where the offence of the former is a misdemeanor, that of the latter will be a misdemeanor also. Hawk. P. C. b. 2, c. 21, s. 6.
If the party rescued was imprisoned for felony, and was rescued before indictment, the indictment for the rescue must surmise a felony done, as well as an imprisonment for felony, or on suspicion of felony, but if the party was indicted and taken upon a capias and then rescued, there needs only a recital that he was indicted prout, &c. and taken and rescued.] Hale, P. C. 607.
Though the party rescuing may be indicted before the principal be convicted and attainted, yet he shall not be arraigned or tried, before the principal is attainted. Id. In such case, however, he may, as it seems, be indicted and tried for a misdemeanor, though not for a felony. Hale, P. C. 599.
Proof of the custody of the party rescued.] To make the offence of rescuing a party felony, it must appear that he was in custody for felony or suspicion of felony, but it is immaterial whether he was in the custody of a private person, or of an officer, or under a warrant of a justice of the peace, for where the arrest of a selon is lawful, the rescue of him is felony. But it seems necessary that the party rescuing should have knowledge that the other is under arrest for felony, if he be in the custody of a private person, though if he be in the custody of a constable or sheriff, or in prison, he is bound to take notice of it. ' i Hale, P. C. 606. If [ *816 ] the imprisonment be so *far irregular that the party imprisoned would not be guilty of prison breach by making his escape, a person rescuing him will not subject himself to the punishment of rescue. Hawk. P. C. b. 2, c. 21, s. 1, 2; 1 Russell, 383.
A warrant of a justice to apprehend a party, founded on a certificate of the clerk of the peace, that an indictment for a misdemeaner had been
found against such party, is good; and therefore if apon sach warrant the party be arrested, and afterwards resched, those who are guilty of the rescue may be convicted of a misdemeanor. Stokes's case, 5 C. and P. 148 (a).
Proof of the rescue.] The word rescue, or some word equivalent thereto, must appear in the indictment, and the allegation must be proved by showing that the act was done forcibly, and against the will of the officer who had the party rescued in costody. Burridge's case, 3 P. Wms. 483. In order to render the offence of rescue compiete, the prisoner must actually get out of the prison. Hawk. P. C. b. 2, c. 18, s. 12.
Punishment.] The offence of rescuing a person in custody for felony was formerly punishable as a felony within clergy at common law. Stanley's case, Russ. and Ry. 432. But now, by the 1 and 2 Geo. 4, c. 88, s. 1, "if any person shall rescue, or aid and assist in rescuing, from the law. ful custody of any constable, officer, headborough, or other person whomsoever, any person charged with, or suspected of, or committed for any felony, or on suspicion thereof, then if the person or persons so offending shall be convicted of felony, and entitled to the benefit of clergy, and be liable to be imprisoned for any term not exceeding one year, it shall be lawful for the court by or before whom any such person or persons shall be convicted, to order and direct, in case it shall think fit, that such person or persons, instead of being so fined and imprisoned as aforesaid, shall be transported beyond the seas for seven years, or be imprisoned only, or be imprisoned and kept to hard labor in the common gaol, house of correction, or penitentiary house, for any term not less than one and not exceeding three years."
Aiding a prisoner to escape.) Under the head of rescue may be classed the analogous offence of aiding a prisoner to escape. This, as an obstruction of the course of justice, was an offence at common law, being a felony where the prisoner was in custody on a charge of felony, and a misdemeanor in other cases. See Burridge's case, 3 P. Wms. 439.
Aiding a prisoner to escape-offence under various statutes.] The offence of assisting a prisoner to escape has, by various statutes, been subjected to different degrees of punishment.
By the 25 Geo. 2, c. 27, s. 9, if any person or persons whatsoever shall by force set at liberty, or rescue, or attempt to rescue, or set at liberty, any person out of prison who shall be committed *for, or found *817 1 guilty of murder, or rescue, or attempt to rescue any person convicted of murder, going to execution, or during execution, every person so offending shall be deemed, taken, and adjudged to be guilty of felony, (and shall suffer death without benefit of clergy.]
Now, by the 7 Wm. 4 and 1 Vict. c. 91, the punishment of death.is abolished, and parties guilty of the offences mentioned in the above sec
(a) Eng. Com. L. Rep. xxxiv. 249
tion, are liable to be transported for life, or for not less than fifteen years, or to be imprisoned for any term uot exceeding three years.
By 4 Geo. 4, c. 64, s. 43, the conveying any disguise or instruments icto any prison with intent to aid or assist a prisoner to escape is made a felony, punishable by transportation for fourteen years. And the assisting any prisoner in attempting to make his escape from any prison, is subject to the same punishment. See ante, p. 796. Similar provisions are contained in the 16 Geo. 2, c. 31, with respect to the King's Bench and Fleet prisons, and the other prisons not comprised in the 4 Geo. 4, c. 61.
Upon the 16 Geo. 2, c. 31, it has been held, that the act is confined to cases of prisoners comınitted for felony, expressed in the warrant of commitment or detainer, and therefore a commitinent on suspicion only is not within the act. Walker's case, 1 Leach, 97; Greenift's case, I Leach, 363. It was likewise held on the construction of this statute, that it does not extend to a case where the escape has been actually effected, but only to the attempt. Tilley's case, 2 Leach, 662. The delivering the instrument is an offence within the act, though the prisoner has been pardoned of the offence of which he was convicted, on condition of transportation ; and a party may be convicted, though there is no evidence that he knew of the specific offence of which the prisoner he assisted had been convicted. Shaw's case, Russ. and Ry. 526 (a).
Where the record of the conviction of the person aided is set forth, and is produced by the proper officer, no evidence is admissible to contradict that record. Shaw's case, Russ. and Ry. 526 (b).
By the 52 Geo. 3, c. 156, aiding and assisting prisoners of war to escape is felony, punishable with transportation for life, or fourteen or seven years. See Martin's case, R. and R. 196 (c).
As to aiding and assisting persons convicted by a military or naval court martial to escape, see the 6 Geo. 4, c. 5, s. 13; 6 Geo. 4, c. 6, s. 14.
As to rescuing returned transports, see post, p. 870.
[ *818 ] *RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES.
Proof of riot-nature of in general-pun. Proof of the guilt of the defendants 820 ishment
- 818 Proof upon prosecutions under the riot Proof of the unlawful assembling • 818
820 Proof of the violence or terror
818 Proof of demolishing buildings, &c.(7& Proof of the object of the rioters-pri- 8 G. 4, c. 30.)
822 vate grievance 819 Proof of a rout
823 Proof of the execution of the act for which Proof of an unlawful assembly
823 the rioters are assembled".
Proof of riot-nature of in general.] A riot is defined by Hawkins to be a tumultuous disturbance of the peace, by three persons or more,
(a) 1 Eng. C. C. 526. (6) Id. 526. (c) Id. 196.