R v Caspar and Others
| Jurisdiction | England & Wales |
| Judgment Date | 19 June 1839 |
| Date | 19 June 1839 |
| Court | High Court |
English Reports Citation: 173 E.R. 839
IN THE COURTS OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
9 DAB. * P. 286. BEGINA V. CASPAR 839 [289] central criminal court. June Session, 1839, before Mr. Justice Littledale June 19th, 24th, 1839. regina v. caspar and others. (An indictment stated that a certain evil-disposed person stole certain goods ; that L. C. incited him to do so , that E. C. did the same ; that E. M. received a portion of the property knowing it to have been stolen ; it also charged A. A. and the before-mentioned E. C. as receivers All the prisoners having been found guilty by the jury, the conviction was held good against all except L. C who was merely charged as accessary before the fact, and judgment was given upon the charges of receiving only ) [Subsequent proceedings with annotations, 2 Mood C. C. 101.] The first count of the indictment stated that a certain evil-disposed person, on the 25th of March, stole 102 pounds weight of gold-dust of the value of £5000, two wooden boxes of the value of 2s., and two tin boxes of the value of 2s , of the goods of James Hartley and others-against the peace, &c The second count stated that Lewm Caspar, before the said felony and larceny was done and committed, to wit, on the 10th of March, feloniously and maliciously did incite, move, procure, counsel, and command the said evil-disposed person to commit the said felony, against the form of the statute, &c. The third count charged Ellis Caspar with being an accessary before the fact, and was similar in form to the second The fourth count stated that Emanuel Moses, on the 30th of March, received the said 102- pounds weight of gold-dust, value &c , of the goods &c , '' before then feloniously stolen, taken, and carried away in manner and form aforesaid," well knowing them to have been stolen. The fifth count contained a similar charge in a similar form against Isaac Isaacs (a)1, except that it stated him to [290] have received the wooden boxes and the tin boxes as well as the gold-dust. The sixth count charged Alice Abrahams with receiving all the articles mentioned ib. the indictment, and was similar in form to the fifth count. The seyenth count stated that the said Elks Caspar (a)2, on the 30th of March, the Dowi. P. C. 593) ; and, after argument, a rule for the payment of the costs was made absolute; Mr. Justice Williams being of opinion, on the authority of the case of Rex v. Inhabitants of Upper Papworth (2 East, 413), that " the Court before whom such indictment shall be [288] preferred," meant the Court of Queen's Bench, when the indictment was removed by certwran. In that case the provisions of the 95th section as to costs do not appear to have been referred to The case of Regina v. E&rl of Radnor (in Q. B., May 12, 1840) was an application for a mandamus to magistrates, commanding them to convict the surveyors of the highways of a parish in a penalty not exceeding £5, for non-repair of a highway, and to order the repair of the road. It appeared that the magistrates had directed a surveyor to make a report on the state of the road, and that he made a report in writing that the road was out of repair, but that he was further orally examined by the magistrates, who tefuaed to convict the surveyor or make any order. In support of the application it was contended, that if the justices appointed a viewer, they were bound by his report; and that if he reported the road to be out of repair, the office of the justices was merely ministerial, and they were bound to convict the surveyor in a penalty not exceeding £5, and to order the road to be repaired. Mr. Justice Coleridge, after observing, that the magistrates were called upon, not only to act ministerially in ordering the road to be repaired, but also to act ministerially in convicting the surveyor in a penalty, said, that the terms of the statute being in effect, that if it should appear to the magistrates that the road was out of repair, they should convict the surveyor ; he could not but think that the magistrates were to exercise a discretion on the subject, and that the words " shall convict " would of themselves import a judicial act on the part of the magistrates ; and the rule for the mandamus was discharged with costs. (a)1 This party was not in custody, and was not tried. ( z)2 This was the same person as in the third count was charged with being an accessary before the fact to the felony. 840 REGINA V. CASPAR 9 CAB. & P. 901. said 102 pounds weight of gold-dust, &c., &c , before then feloniously stolen, taken, and carried away in manner and form aforesaid, feloniously did receive and have, he the sai(J Ellis Caspar then and there well knowing the said goods and chattels to have been feloniously stolen, &c , against the statute, &c., fec There were seven other counts similar to the fir^t seven, only stating the goods to be the property of George Hathom ; and there were fourteen other counts, which stated the property stolen to be gold instead of calling it gold-dust When Ciaikson, for the prosecution, had stated the case to the jury, Bompas, Seijt., wko was counsel for Emanuel Moses, submitted that (Jlarkson ought bo elect which of the prisoners he would proceed against Clarkson, contra, contended that it was a case in which he was not bound to elect. Littledale, J., was of opinion that it was a case of principal and accessaries, and that what were called the first seven counts of the indictment were substantially only one count against one principal and several accessaries, and, therefore, that the prosecutor was not bound to elect. [291] The case proceeded, and a person named Henry Moss was called and examined, on the part of the prosecution, as the person who stole the gold-dust, or rather it was made a question for the jury, on the whole of the evidence, whether he or Lewin Caspar was the person who committed the robbery His name was an the back of the indictment as a witness (a). When the evidence for the prosecution had closed, On the part of the defence, generally, it was contended that there was no case to go to the jury. The substance of the argument was as follows .-There are two ways of framing an indictment against an accessary-either by indicting the principal with the accessary, or if the accessary be indicted alone, you must either shew that the principal has been convicted, which you can only do by proving the record of his conviction, or you must shew that the principal has been outlawed. Moses is charged as an accessary after the fact by receiving the stolen goods, and as the prosecutor has not proved that the principal has been convicted, the accessary is entitled to an acquittal. The accessary cannot be convicted until the principal has either been convicted or outlawed. If the principal be attainted, and the attainder be reversed, the accessary escapes ; and the same doctrine applies to cases where the principal and accessary are tried together. If the principal pleads not guilty, and the accessary does so also, then the trial of both shall go on, and the jury are to inquire first of the guilt of the principal, and if they find him guilty, then they are to inquire as to the accessary; but if both are found guilty, the judgment must be first given against the principal; for if anything obstruct judgment, as clergy,, a pardon, &c., the accessary is to be discharged ; and if the principal does [292} not plead not guilty, brut pleads a plea in bar or in abatement, or autrefmn acquit, the accessary shall not be put to answer till that plea be...
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R v O'Connor, Feargus (seditious conspiracy)
...the offence of receiving stolen goods without knowing the circumstances of the theft; therefore in lieg'ma v. Caspar (2 Moo. C. C. 101. 9 Car. & P. 289), where the indictment stated that "a certain evil-disposed person " stole, and certain of the defendants feloniously received, they were h......