§ 223. Writing on Stamped Paper. — In R. v. Allday,1 the defendant William Allday was indicted at the instance of the stamp office under these circumstances: He was the father of Mr. William Thomas Bissell Allday, who was a farmer of the post-horse duty of the district No. 5, which included the county of Leicester, and the defendant was in the habit of acting for his son in the duties of this situation; and in the year 1833, Mr. Joseph Hinckley took out a license to let post-horses. This license was granted by the defendant, and bore a 7s. 6d stamp. This license was renewed in 1834, and in the year 1835 Mr. Hinckley applied for a further renewal, when the defendant desired him to bring his former license; and on his taking his license, dated in the year 1833, to the defendant, the latter, instead of granting a new license as he ought to have done, altered the date of the old license from 1833 to 1835, and the time of its expiration from 1834 to 1836. On the part of the prosecution Mr. Hinckley was called: He said, "In the year 1833 I applied to the defendant, who assisted his son as farmer and collector of the post-horse duty, for a license to let post horses. I received the license, and at the expiration of that year I applied for a renewal of the license. I received another license and at the expiration of that year I applied for a third license. The defendant desired me to fetch my former license, and I took him the license dated in 1833. The defendant took his pen and altered the date from 1833 to 1835, and the period from 1834 to 1836, and returned the license to me; I paid 7s. 6d. on each of the three occasions." It was proved by Mr. Buckley, of the comptroller's office in the stamp office, that blank post-horse licenses are sent down from the stamp office to the farmers of post-horse duty, who are in the first instance charged with the whole at 7s. 6d. each, but are afterwards allowed for what they return not issued. The license was put in. It had been a license to let post-horses from the 1st of February, 1833, to the 1st of January, 1834, and the date was the 1st of February, 1833. The license was produced, the word "six" had been evidently substituted for the word "four" in the term for which the licese was granted, and the figure five in the date was also substituted for the figure three. Talfourd, Serjeant, for the defendant. I submit that this indictment is bad: (1) Because the writing of this word and this figure should have been charged to have been fraudulently done. (2) I submit that the instrument, which is the subject of the indictment, should have been set out, and (3) that these alterations are not within the meaning of the statute 12, George III.,2 which are, "If any person shall write or engross, or cause to be written or engrossed, either the whole or any writ, mandate," etc. And I submit that they refer to some independent writing of some new instrument, and not the mere altering of a word or figure in an old one. A. M. Skinner, for the defendant, referred to the case of Regina v. Page. LORD ABINGER, C. B. I consider that no fraud is proved. To come within the mere words of the act, it is not necessary that it should have been done fraudulently; still I am of opinion, that if a person innocently, and without any intent to defraud, wrote anything on this paper, it could not be an offense. Whether fraud was intended is a question for the jury. Talfourd, Serjeant, addressed the jury, and submitted, that no fraud had been proved; and the learned serjeant also argued, that if the sum of 7s. 6d., received of Mr. Hinckley, had not been accounted for by the defendant, the stamp office could very easily have proved that fact. LORD ABINGER, C. B. Suppose a person had made a perfect deed, which was executed, and afterwards it was found necessary to alter the date and some of the terms, and the parties altered the original deed, intending to send it to the stamp office, to have new stamps put upon it, would they be liable to be transported? The enactment on which this case is founded is general, and makes it a felony to write upon any stamped document anything which makes it liable to a new stamp before such new stamp is put upon it. Ludlow, Serj. By the terms of the act any person thus writing upon a stamped document is within its provisions, even if he has no intent to defraud. LORD ABINGER, C. B. (in summing up). The act of Parliament does not say that an intent to deceive or defraud is essential to constitute this offense; but it is a serious question whether a person doing this thing innocently and intending to pay the stamp duty, is liable to be transported. I am of opinion, and I hope I shall not be found to be wrong, that to constitute this offense there must be a guilty mind. It is a maxim older than the law of England, that a man is not guilty unless his mind be guilty. If a person through mistake, thought he could alter this license, and sent the 7s. 6d. to Somerset House, that would be no felony in law any more than it would be reason in justice, or common sense. If the defendant meant to defraud the government of 7s. 6d. he is guilty; but as it could have been easily proved if the duty had not been paid on Mr. Hinckley's license, and no such evidence has been given, I think you should presume in favor of innocence. You will say whether you think that the defendant intended to commit any fraud. You may find that he made the alterations in the license, but that he did so without any fraudulent intent, and I can put the matter in a train of investigation; or you may (and you have a right if you think proper to do so) find a verdict of not guilty. Verdict, not guilty. CHAPTER VIII. DURESS. DURESS- MOB COMPELLING PRISONER TO COMMIT CRIME. [5 C. & P. 133.] Before Mr. Justice PATTESON (Berkshire Assizes), 1831. Malicious Destruction of Property - Duress.-C. was indicted for destroying a threshing machine. It appeared that a mob had compelled C. and others to join them and afterwards to assist in breaking threshing machines. C. was acquitted. Indictment on statutes 7 and 8 George IV.1 for destroying a threshing machine, the property of a person, named Austin. There were other counts for damaging it with intent to destroy it, and for damaging it with intent to render it useless. It appeared, that, about ten o'clock in the night of the 22d of November, 1830, a mob came to the farm of Mr. Austin, and broke his threshing machine to pieces. It was proved that the prisoner was with this mob, and that he gave the threshing machine a blow with a sledge hammer. Mr. Justice PATTESON allowed the witnesses for the prosecution to be asked, in cross-examination, whether many persons had not been compelled to join this mob against their will, and whether the mob did not compel each person to give one blow to each threshing machine that they broke. For the defence William Davis was called. He was the gamekeeper of Mrs. Bainbridge, in whose service the prisoner was as an underkeeper. He stated that being on the watch, at Mrs. Bainbridge's preserves, the mob laid hold of himself and the prisoner, and compelled both to go with them, for the purpose of breaking threshing machines. Mr. Justice PATTESON allowed this witness to state, that before the prisoner and himself had gone many yards with the mob, they agreed to run away from the mob the first opportunity. 1 ch. 30, sec. 4. The witness stated that he ran away from the mob in about ten minutes, and that the prisoner joined him in about a quarter of an hour after that time, and that they then returned to their watching at the preserves. Verdict, not guilty. NOTES. § 224. Duress - Is an Excuse for Crime. It is laid down by the writers on criminal law that duress not only avoids contracts, but relieves from responsibility for crime. The adjudged cases on the subject are few, that of R. v. Crutchley, being the case most cited in this connection. § 225. Duress - Excuses Treason. In East's Pleas of the Crown,3 it is said: "If the joining with rebels be from fear of present death, and while the party is under actual force, such fear and compulsion will excuse him. It is incumbent, however, on the party setting up the defence to give satisfactory proof that the compulsion continued during all the time that he staid with the rebels. It may, perhaps, be impossible to account for every day, week, or month; and, therefore, it may be sufficient to excuse him, if he can prove an original force upon him, that he in earnest attempted to escape and was prevented, or that he was so narrowly watched, or the passes so guarded, that an attempt to escape or to refuse his assistance would have been attended with great difficulty and danger; and, if the circumstances will admit of it, that he quitted the service as soon as he could; so that upon the whole he may fairly be presumed to have continued amongst them against his will, though not constantly under an actual force or fear of immediate death. This is agreeable to the rule in Oldcastle's Case; where those who were charged as his accomplices in rebellion were acquitted by the judgment of the court, because the acts were found to be done pro timori mortis, et quod recesserit quam cite potuerint. In this respect there is no distinction between serving as an officer or private man further than the accepting a commission in a rebel army is a stronger evidence of willingness than the other. But an apprehension, though ever so well grounded, of having property wailed or destroyed, or of suffering any other mischief, not endangering the person of the party, will be no excuse for joining or continuing with rebels; otherwise it would be in the power of any leader of a rebellion to indemnify all his followers. It was so ruled in the case of McGrowther, and of many of the Scotch prisoners, on the special commission, in Surrey, in 1746. In McGrowther's Case, besides the threat of burning his property, it appeared that he and twelve other tenants of the Duke of Perth, being summoned to meet him, appeared on the summons, on the 28th of August, when the Duke proposed to them to take arms and follow him into the rebellion; they all refused to go; whereupon they were told that they should be forced, and cords were brought by the Duke's party (about twenty) in order to bind them; 1 Archbold, 52; 1 Hale P. C. 56; 1 East P. C. 70. 2 Ante, p. 635. 3 vol. 1, p. 70. and that then the prisoner and about ten more went off surrounded by the Duke's party. Lord C. J. Lee, observed to the jury that the only force pretended to by the prisoner was on the 28th of August, and that he continued with the rebels and bore a commission in their army, till the 30th of December following. He was convicted, but not executed. In all the like cases of the Scotch rebels, the matter of fact, whether force or no force, and how long that force continued, with every circumstance tending to show the practicability or impracticability of an escape was left to the jury on the whole evidence." Several early cases in the American courts hold that duress is a good plea on an indictment for treason, and that a person compelled by force to enlist with rebels is not guilty.1 § 226. Duress-Plea of Guilty Extorted by. In Sanders v. State, recently decided by the Supreme Court of Indiana, it was held that where a plea of guilty had been extorted from a prisoner by threats or fear of lynching, the judgment given on his plea would be reversed and a new trial awarded him. The facts stated and proved were these: "In April, 1878, Josephine Sanders, the wife of the appellant, was slain by a pistol shot; at the time she was in a room alone with her husband, and he did not and could not give any account of her death; he was then, and had been for many years addicted to the use of alcholic liquor and opium to such an extent that he had probably become insane; he was arrested shortly after the death of his wife; his case came on for trial; his counsel and many witnesses of unquestioned veracity testify that at the time of his trial he was insane; the homicide had aroused an intense feeling in the vicinity of the county seat, where the killing was done, and the case put to trial; threats were made of lynching by a mob; counsel prepared an affidavit for delay, but feared to present it less the mob should seize and hang the accused; the sheriff of the adjoining county came to the county seat of Clay county and warned the sheriff of that county of imminent danger from an armed mob; a jury had been empanelled and a plea of not guilty entered, but so great was the threatened danger that counsel, to save, as they believed, their client's life, withdrew the plea of not guilty, entered a plea of guilty, on which without evidence the jury returned a plea of guilty, and a life sentence was immediately pronounced upon the verdict by the court; the accused was at once hurried to the train and conveyed to the State's prison. For the purpose of clearly exhibiting the situation at the time the plea of guilty was entered, we quote from the testimony of the gentlemen who were then appellant's counsel, and who are men of high character and undoubted integrity. One of them says: 'As one of counsel, I urged and demanded of him a plea of guilty, with which I pledged myself to save his life; his counsel all concurred; Sanders always denying any knowledge of the homicide; that they were responsible for the act of pleading guilty, believing at the time that it was the only course by which his life might be saved.' Another one of the counsel says that'the accused was bewildered and refused, but finally seemed to consent, and at last appeared to acquiesce in letting counsel take their own course, that the court was agitated and alarmed, and recommended and advised the plea of 1 Respublica v. McCarthy, 2 Dall. 86 (1781); U. S. v. Vigol, 2 Dall. 346 (1795); U. S. v. Haskell, 4 Wash. C. C. 406 (1823). 2 16 Cent. L. J. 473 (1883). |