LAW REPORTS.

New Zealand Police Gazette, Volume XXXVI, Issue 27, 12 July 1911, Page 325

LAW REPORTS.

(“ Times Law Reports,” Vol. xxvii, page 402.)

[Court or Criminal Appeal — (Lord Alverstone, C.J., Bray and Coleridge, JJ.)— loth April, 1911.]

Rex v. James Birtles

Criminal Law — Bigamy — Evidence — Identification

On the trial of the appellant for bigamy the evidence by the prosecution to prove the first marriage consisted of the marriage certificate, the fact that he cohabited as her husband with the woman he was alleged to have married, and the fact that he spoke of her as his wife. Held, That there was sufficient identification of the appellant with the man who was married to the woman named in the certificate. This was an appeal against conviction on law. Mr. Hoare appeared for the appellant; and Mr. T. P. Perks appeared for the Crown. The appellant was tried at Leeds Assizes before Mr. Justice Horridge on 18th March last on a charge of bigamy, and, being found guilty, was sentenced to twelve months’ hard labour.

Mr. Hoare submitted that the case ought never to have been left to the jury, as there was no evidence that the appellant had been married on the first occasion. The evidence against the appellant was a marriage certificate describing him, the fact that he had cohabited with the woman whom he was alleged to have married, and that he spoke of her as his wife. But a marriage certificate was no evidence as to the identity of the person described in it, and cohabitation was no evidence that the parties cohabiting had gone through the marriage service at a particular church on a particular date. He referred to Rex v. Simpson (15 Cox Grim. Cas., 323) and Rex v. Lindsay (66 J.P., 505), and submitted that to prove bigamy the strictest evidence must be produced, which was not done here. Further, the oase was not properly left to the jury. The prosecution were not called upon. Mr, Justice Coleridge in delivering judgment said that it was essential to prove the real marriage of the appellant with his real wife. The register had been produced proving that she had married a man of the prisoner’s name, but that by itself was not enough to prove that the appellant was the man so married. Then there was evidence that the appellant had acknowledged the woman as his wife, but that again by itself would not be enough. It was urged that the certificate and acknowledgment coupled with cohabitation were no evidence of identification of the appellant with the man named in the certificate, but the Court could not go so far as that. They thought that though the acknowledgment was not evidence of the marriage having taken place on the particular day, it, in conjunction with the cohabitation and other facts, was evidence of the identification of the appellant with the man who was married on that day to the woman named in the certificate. The appeal must, therefore, be dismissed. [Solicitors —The Registrar ; Director of Public Prosecutions.]

(“ Times Law Reports,” Vol. xxvii, page 421.)

[K.B. Div.— (Lord Alverstone, C.J., Bray and Bankes, JJ.)— lst May, 1911.]

Moran and Another v. Jones

Criminal Law—Rogue and Vagabond “Found” upon Premises for Unlawful Purpose—Vagrancy Act, 1824 (5 Geo. IV, c. 83), s. 4. S. 4 of the Vagrancy Act, 1824, provides (inter alia) that every porson “found in or upon any dwellinghouse . • . . for any unlawful purpose ” shall be deemed a rogue and vagabond.

Held, That to constitute the offence created by those words the accused must be discovered upon the premises doing the acts or things which of themselves constitute the unlawful purpose, but that actual apprehension upon the premises is not necessary. This was an appeal by way of special case from a decision of the Justices of Southampton. Sir F. Low, K.C., and Mr. Valetta appeared for the appellants ; and Mr. S. H. Emanuel appeared for the respondent. It appeared that a man named Englander, who was travelling to America by way of Southampton, stayed for a night on the way at the Terminus Hotel at Southampton Docks. The appellant Moran and the other appellant, one Devine, came into the hotel office at the same time as Englander and

said they also might require a room for the night. Moran then gave his name as Gordon. During the evening the appellants had a number of drinks with Englander, and a chambermaid saw them in his room. They did not sleep at the hotel, but went to another hotel in Southampton, where they asked to be called at 5.30 a.m., saying they were going to America. They did not go to America, but were traced to Bournemouth and were there arrested, having in their possession a number of dollar bills which were alleged to be the property of Englander. They were prosecuted under 5 Geo. IV, c. 83, section 4, for having been found on premises for an unlawful purpose, and were convicted.

Sir F. Low now contended that there was no evidence of any unlawful purpose, and also that the appellants were not “ found ” anywhere until their arrest at Bournemouth, where they were doing nothing wrong. He referred to R. v. Howarth (1 Moo. C.C. 207) ; Griffiths v. Taylor (2 C.P.D., 194); Clark v. The Queen (14 Q.8.D., 92) ; and Horley v. Rogers (29 L.J., M.C.. 140). Mr. Emanuel, for the respondent, referred to Kirkin v. Jenkins (32 L.J., M.C., 140), and submitted that the words in the Act “ being found on premises ” simply meant “ being proved to have been on ” the premises for the purpose of committing a felony. Sir F. Low, in reply, submitted that that construction would take all meaning out of the word “ found,” and if it were right a man on his own premises with an unlawful purpose would be a rogue and vagabond within the Act. The Act was obviously intended to prevent persons skulking about the premises of other persons. The word “found” in the Act must mean “found and apprehended” on the premises.

At the conclusion of the argument, which took place on the 7th April, the Court reserved judgment.

The Lord Chief Justice, in the course of his judgment, which was delivered to-day, after stating the facts, said there was no evidence of the circumstances under which either of the defendants became possessed of the money except that it was not handed over by Englander in respect of gaming or other debts. They were not charged under section 4 of the Act of George IV until the 21st December. In his opinion the words “ found in or upon any dwellinghouse, warehouse, coach-house, stable, or outhouse, or in any enclosed yard, garden, or area for any unlawful purpose ” ought not to be construed too strictly, and if a charge had been made against the defendants under that section on the night of the 11th, or on the next day, the fact that they were not arrested until late the following afternoon would not, in his judgment, prevent the Magistrates from convicting.

On the other hand, there was not, in his opinion, any evidence that they were supposed on the 11th to have been in or upon the dwellinghouse for any unlawful purpose. It was to be noted that section 6 of the same Act gave any person a right to apprehend a person so found offending without warrant, and to take him before a Justice of the Peace ; and his Lordship’s present view was that there must be a charge brought against the accused of an offence under the section m respect of which he is taken before the Justice, and the Act did not contemplate such a charge being preferred after a considerable interval of time, and particularly after he had been arrested upon another charge, and was not originally arrested on suspicion of an offence under the section. This view was supported by the decision in the case of Rex v. Howarth (supra).

For these reasons he thought the appeal must be allowed, and the conviction quashed. Mr. Justice Bray, on reading the judgment of Mr. Justice Bankes, said he desired to adopt it. The answer to the question whether the Justices have come to a correct decision in point of law depends, said his Lordship, on what is the true construction to be put upon the words of the section under which the appellants were charged and which defines the offence as “ being found in or upon any dwellinghouse, warehouse, coach-house, stable, or outhouse, or in any enclosed yard, garden, or area for any unlawful purpose.” In order to be found upon premises a person must be upon those premises, and the offence, therefore, consists in being upon premises for an unlawful purpose and being found there. It is not, in my opinion, sufficient for a person to be upon the premises for an unlawful purpose unless he is also found there. What constitutes a finding within the meaning of the section ?

The simplest case would be a case of apprehension upon the premises. Actual apprehension upon the premises is, however, in my opinion, not necessary to constitute the offence. I think that there may be many cases in which a person is found upon'the premises within the meaning of the section although he is not apprehended until after he has quitted the premises. To constitute the offence a person must, in my opinion, be discovered upon the premises doing the acts or things which of themselves constitute the unlaw-

ful purpose. It may be that evidence is admissible of what a person did before he entered the premises or after he left them to explain the nature of the acts or things which he was discovered doing upon the premises themselves ; such evidence must, however, in my opinion, be strictly confined to this purpose. In my opinion there was no evidence before the Justices upon which they could properly come to the conclusion that these acts by themselves or as explained by the previous or subsequent conduct of the appellants (so far as it was admissible in evidence) constituted an unlawful purpose, aud for these reasons I come to the conclusion that the appellants were not found upon the hotel for an unlawful purpose and that the case must, therefore, be remitted to the Justices with a direction to that effect.

The appeal was accordingly allowed, with costs, and the conviction was quashed, the Lord Chief [Justice saying it was unnecessary that the case should be remitted to the Justices. [Solicitors —Pfahl and Causton ; Church, Adams, and Co., for R. R. Linthorne, Southampton.]