Quarterly Notes
| Date | 01 October 1931 |
| DOI | 10.1177/0032258X3100400414 |
| Published date | 01 October 1931 |
| Subject Matter | Article |
QUARTERLY
NOTES
AUTRJXOIS CONVICT
IN
the case of
R.
v.
Kendrick
and
Smith,
23
Criminal Appeal Reports, page
I,
both appellants were convicted on counts of an indictment charging them
with threatening to publish photographs with intent to extort money, con-
trary
to Section
3
I,
sub-section
2
of the Larceny Act
1916.
On further counts
charging them with uttering letters demanding money with menaces, con-
trary
to sub-section
I
of Section
29
of the same Act, the Jury disagreed. The
appellants were subsequently re-tried on these latter counts and convicted.
It
was
contended on their behalf that the maxim
‘
Autrefois convict
’
applied and that the convictions under Section
29
were accordingly bad.
Mr. Justice Swift, in delivering the judgment of the Court of Criminal
Appeal said,
‘
It
is
quite clear that to enable an accused person to rely upon
that plea, the offence with which he is charged on the second occasion must
be the same offence or practically the same offence
as
that with which he
was
charged on the first occasion.
It
is not enough to say that the evidence
tendered on the second char e was the same evidence
as
that offered to prove
grounds the plea, but the offence which is charged.’
He went on to refer to the Judgment of Lord Reading
in
R.
v.
Barron,
10
Criminal Appeal Reports
88,
and said that it was impossible to contend
that a charge of uttering a letter demanding money with menaces, a felony
punishable by penal servitude for life, was the same or substantially the same
as
a charge of threatening to publish certain matters with intent to extort
money, which is a misdemeanour punishable by
two
years’ imprisonment.
‘
It
may well be,’ he said,
‘
that the evidence before the Court shows that
both these offences have been committed, but that does not make them the
same offence. The fact that the evidence
is
the same or that the facts proved
are the same, does not make the
two
offences identical.’ In the result, the
appeal
was
dismissed.
JOINDER
OF
CHARGES
IN
ONE
INDICTMENT
the
first
charge.
It
is not
t
i
e evidence which is material to the charge that
BEFORE
the Indictments Act
1915
was passed, it was not permissible to join
a misdemeanour and a felony in the same indictment, although in different
counts, but it was permissible to join several felonies or several misdemeanours
in
separate counts
of
the same indictment, subject to the power of the judge
to order separate trials where
it
was felt that the accused was likely to be
prejudiced by the joinder. Since the Act was passed, felonies and
mis-
demeanours may be charged in separate counts in the same indictment, but
where a felony
is
joined with a misdemeanour the accused has the same right
of challenging Jurors
as
if all the offences charged were felonies.
In
the case of
R.
v.
Smith,
reported in
19
Criminal Appeal Reports, page
151,
four char
es
of burglary were contained in four separate indictments. In
623
delivering ju
d
gment the Lord Chief Justice expressed himself strongly
as
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