R v Higgins
| Jurisdiction | England & Wales |
| Judgment Date | 11 November 1801 |
| Date | 11 November 1801 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 269
IN THE COURT OF KING'S BENCH.
Referred to, R. v. Brailsford [1905], 2 K. B. 745.
[5] the king against higgins. Wednesday, Nov. llth, 1801. 'To solicit a servant to steal his master's goods is a misdemeanor, though it be not charged in the indictment that the servant stole the goods, nor that any other act was done except the soliciting and inciting. And such offence is indictable.at the, sessions, having a tendency to a breach of the peace. [Referred to, B. v. Braikford [1905], 2 K. B. 745.] The defendant was indicted for a misdemeanor at the Quarter Sessions for the county of Lancaster, and was convicted on the second count of the indictment, charging, " That he on, &c. at, &c: did falsely, wickedly, and unlawfully solicit and incite one James Dixon, a servant of J. Phillips, &c. to take, embezzle, and steal a quantity of twist, of the value of three shillings, of the goods and chattels of his masters J. P., (a) On that occasion Bond and Pell argued in support of the rule for setting aside the nonsuit: and Gibbs and Dampier contra. The following eases were referred to in the course of their arguments. Layton v. Pearce, Dougl. 15. Churchill v. Wilkins, 1 Term Rep. 447. Tate v. Wettings, 3 Term Rep. 531. White v. Wilson, 2 Bos. & Pull. 116, and a case of SJiipham v. Scmnders, East. T. 1783, where the contract in effect was to deliver goods within 14 days, or as soon as a certain vessel arrived : the vessel arrived after the fourteen days; and on breach of the contract by nondelivery, the plaintiff declared in one count on a contract by the defendant to deliver within 14 days, and in another count to deliver on the arrival of the ship ; but there being no count laying the contract in the alternative, the Court held the variance fatal. 270 the king v. biggins 2 east, e, &c. aforesaid, fro the great damage of the said J. P., &c. to the evil example, &e. and against the peace," &c. After judgment of the pillory and two years' imprisonment, a writ of error was brought, and the following causes assigned for error; 1. That the said count does not set forth any misdemeanor or offence which the justices Of peace at their Quarter Sessions had jurisdiction to determine. 2: That it does not appear that J. Dixon, the principal, was ever convicted of the felony wherewith the defendant appears to be charged, as accessary before the fact. 3. The general error. The case was twice argued; first, in Trinity term last by Scarlett for the defendant, and Cross for the Crown ; and now by Topping for the defendant, and Christian for the Crown. For the defendant it was urged, 1st, that the count in question contained no charge of any matter indictable at common law. It is not every act, immoral in itself, or of evil example, which is indictable, although it may [6] subject the party to find sureties of the peace. A bare solicitation or incitement of another to commit an offence is not indictable, unless it be accompanied by some overt act towards carrying the intent into execution; but if no such act be done either by the inciter or the party solicited, it is nothing more, as Mr. Justice Foster observes, than a mere fruitless ineffectual temptation. Now here it is not stated how or by what means the defendants solicited Dixon to commit the felony; nor that any act was done by the defendant, such as offering money or the like, to forward such solicitation ; nor that any act by Dixon followed thereupon. It must therefore be presumed that nothing of this sort happened, as there can be no latitude of intendment in criminal cases to include any thing more than is charged (a)1. It stands therefore as a mere wish or desire of the defendant to do an evil act. If indeed any evil consequence ensue on such a solicitation, the party is answerable; but there is a locus penitentise between the solicitation and the act, and if he countermand the act before it be done, he is absolved from the consequences. An argument may be derived from analogy to cases of slander; for if no action would lie for imputing such a bare solicitation to another, it follows that the solicitation itself cannot be indictable. In Bray v. Andrews(b)1 the words were, "My master was not content to take my living from me, but sent his man Andrews to kill me." Two of the Judges thought the action lay, though no effect followed upon the command: but the other two held otherwise; because no action lies for slander-except on the imputation of such things as are punishable by law; and it was never seen that any punishment was appointed ei-[7]-ther by the common or statute law, if no effect ensued thereupon. So in 1 Eoll. Abr. 50, Q, pi. 2. If a man say of another, " that he lay in wait to rob him," an action lies; for there is the imputation of an evil act done. But in the same book, pi. 4, where the words were, "that he keepeth men to rob me," it is said no action lies; because they only impute a bare intention without any act. - The same principle is clearly laid down in Murrey's ease (of, and in Crofts v. Brown (J)2, and in Eaton v. Allen (c). Bracton, lib. 3, fo. 128, pi. 13, observes, " Ubi factum, ibi poterit esse forcia quandoque, sed nunquam forcia sine facto;" (which word forcia, says Lord Coke (d), is a word of art, signifying the furnishing a weapon of force to do the fact, by force whereof it is committed, the party furnishing the weapon not being present at the fact:) " quiaubi principale non consistit, nee ea qua sequuntur locum habere debent: sicut dici poterit de prsecepto, conspiratione, et consimilibus, quamvis hujusmodi esse possunt etiam sine facto; et quandoque puniuntur si factum subsequatur, sed sine facto non, &c. nee etiam obesse debent preeceptum, &c. nisi factum subsequatur." Vaughan (e) was indicted for persuading an apprentice to withdraw himself from his master, so that he should not be taken upon a warrant; and Houghton J. excepted to the indictment because no venue appeared, nor that the apprentice did hide himself from the warrant; for if he did not so, the persuasion was nothing. In R. y. Daniel (f) the indictment charged that he inticed away an apprentice from his master, and seduced him to take and carry away certain goods of his master from his house, and that the [8J defendant knowingly received the same. It was objected, that this was but a private and not a public injury; that case only lies, and not trespass for inticing away, a man's servant; that no fact was laid to be done in pursuance of such inticing, (a)1 R.v. Wheatley,^ Burr. 1127. (b)1 Moor. 63. (a)2 2 Bulstr. 206. (J)2 3 Bulstr. 167. Sed vi. Dean v. Eaton, 1 Bulstr. 201. (e) 4 Co. 16 b. (d) 2 Inst. 182. - (e) Popb. 134. (/) 1 Salk. 380. 2 EAST, 9. THE KING U HIGGINS 271 except as to the latter part of the charge respecting the carrying away the goods, as to which that no venue was laid where the goods were taken away : for which reasons the judgment was arrested. The same case is reported in 3 Salk. 1915 (a)1, where the indictment is said to have been holden naught by all the Court for not averring that the apprentice did absent himself: for though the words absentare causavit imply that he did absent himself; yet the indictment must not only shew the cause but the effect which followed. The same case is most fully reported in 6 Mod. 99, where Lord Holt says, that advising one to rob or kill, without something be done thereupon, is not indictable. And he agreed, that a...
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