V. GOMPERTZ and OTHERS. THE QUEEN devising and contriving as aforesaid, afterwards, to wit, on the 1st day of July, in the year aforesaid, with force and arms at Gray's Inn aforesaid, in the county of Middlesex aforesaid, unlawfully, falsely, fraudulently, and deceitfully did conspire and combine, confederate and agree together by divers false pretences and subtle means and devices to cheat and defraud the said G. P. Rose of divers large sums of money of the proper moneys of the said G. P. Rose. And the jurors aforesaid, upon their oaths aforesaid, further present that in pursuance of the said last mentioned conspiracy, combination, confederacy, and agreement so as aforesaid, had and made, they, the said H. Gompertz, C. Lewis, W. Witham, R. Witham, and F. Witham, to wit, on the same day and year last aforesaid, and on other days and times between that day and the day of the taking of the inquisition at Gray's Inn aforesaid, in the county of Middlesex aforesaid, did by divers false pretences and expressions, and subtle devices and contrivances, obtain and acquire to themselves from the said G. P. Rose divers large sums of money, amounting in the whole to a large sum of money, to wit, the sum of 10,050. of the moneys of the said G. P. Rose, and did then and there defraud and cheat the said G. P. Rose of the same, to the great fraud, damage, and deception of the said G. P. Rose, to the evil example of all other persons in the like case offending, and against the peace of the Queen, her said crown and dignity." The sixth count was as follows: "And the jurors aforesaid, upon their oaths aforesaid, further present that the said H. Gompertz, C. Lewis, W. Witham, R. Witham, and F. Witham being such evil disposed persons as aforesaid, and contriving and intending fraudulently, and by indirect means to cheat and defraud the said G. P. Rose of his money afterwards, to wit, on the 1st day of July, in the year aforesaid, with force and arms aforesaid, at Gray's Inn aforesaid, in the county of Middlesex aforesaid, unlawfully, &c., did conspire, combine, confederate, and agree together by divers false pretences, and subtle means and devices to cheat and defraud the said G. P. Rose of divers large sums of money of the proper moneys of the said G. P. Rose; and the jurors aforesaid, upon their oaths aforesaid, further present that in pursuance of the said last mentioned conspiracy, combination, confederacy, and agreement so had and made as aforesaid, they, the said H. Gompertz, C. Lewis, W. Witham, R. Witham, and F. Witham afterwards, to wit, on the said day and year, and on divers other days and times between that day and the day of the taking of this inquisition, with force and arms at Gray's Inn aforesaid, in the county of Middlesex aforesaid, did by divers false pretences and representations, and by divers subtle stratagems, means, and devices procure, obtain, acquire, and get into their hands and possession of and from the said G. P. Rose divers bills of exchange accepted by him, the said G. P. Rose, and respectively payable at a future day of great amount and value, to wit, to the value of 10,050/., and did then and there cheat the said G. P. Rose of the same, and of the proceeds thereof, to the great fraud, damage, and deception of the said G. P. Rose, to the evil example of all other persons in the like case offending, and against the peace of our said Lady the Queen, her crown and dignity." The seventh count was as follows: THE QUEEN v. OTHERS. "And the jurors aforesaid, upon their oaths aforesaid, present that the said H. Gompertz, C. Lewis, W. Witham, R. Witham, and F. GoMPERTZ and Witham, being such evil-disposed persons as aforesaid, devising and contriving as aforesaid, afterwards, to wit, on the said 1st day of July, in the year aforesaid, with force and arms, at Gray's Inn aforesaid, in the county of Middlesex aforesaid, unlawfully, falsely, and fraudulently and deceitfully did conspire, combine, confederate, and agree, by divers false pretences and false reports, and by divers subtle and indirect means, stratagems, contrivances, and devices, to obtain and acquire and get into their hands and possession of and from the said G. P. Rose divers other bills of exchange accepted by the said G. P. Rose, and respectively payable at a future day, for divers large sums of money, amounting in the whole to a large sum of money, to wit, the sum of 10,0501., and to cheat and defraud the said G. P. Rose of the same, and of the proceeds thereof respectively, to the great damage of the said G. P. Rose, to the evil example of all other persons in like case offending, and against the peace of our said Lady the Queen, her crown and dignity." The eighth count was as follows: "And the jurors aforesaid, upon their oaths aforesaid, further present that the 'said H. Gompertz, C. Lewis, W. Witham, R. Witham, and F. Witham, being such evil-disposed persons as aforesaid, and devising and contriving as aforesaid, afterwards, to wit, on the said 1st day of July, in the year aforesaid, with force and arms, at Gray's Inn, in the county of Middlesex aforesaid, unlawfully, fraudulently, and deceitfully did conspire, combine, confederate, and agree together, by divers false pretences and indirect means to cheat and defraud the said G.P. Rose of his moneys, to the great damage, fraud, and deceit of the said G. P. Rose, to the evil example of all other persons in the like case offending, and against the peace of our said Lady the Queen, her crown and dignity." Before the trial, which took place at the sittings after Trinity Term, 1844, Francis Witham died. The defendant Charles Lewis was, by consent, acquitted at the commencement of the trial. The other defendants were acquitted upon the first and second, but found guilty upon the remaining counts. In the course of the trial, the counsel for the prosecution offered in evidence a warrant of attorney, given by the defendant Gompertz to the prosecutor, to induce him to accept certain bills, to the amount of 6,000l., drawn by Gompertz, and which was conditioned to secure the payment thereof. It appeared to be unstamped, and was objected to by Kelly on that ground; it was, however, admitted. It appeared in evidence, that the acceptances which the defendants were charged with having conspired to defraud the prosecutor of, were bills drawn by Gompertz, and remaining in the defendants' hands; and that the signature of the prosecutor, as acceptor, only was wanted. It appeared, also, that all the parties knew that the prosecutor had no money. In Michaelmas Term, 1845, Peacock, on behalf of defendant Gompertz, had obtained a rule nisi for a new trial, or in arrest of judgment; and Watson, on behalf of Robert Witham, had also obtained THE QUEEN บ. GOMPERTZ and a rule nisi for a new trial upon affidavits, and because the verdict was against the evidence as to him. Against the former, Cockburn, with whom was Poulden (Nov. 9), shewed cause.-The objections in arrest of judgment may be conveniently considered first. It is said that the 3rd and 4th counts do not shew directly that the bills were the property of the prosecutor. In Rex v. Anonymous (1 Chit. R. 698) the Court refused to quash an "indictment for a conspiracy to defraud J. W. of divers goods, and, in pursuance of the conspiracy, defrauding him of divers goods, to wit, of the value of 100%." The gist of the offence is the conspiracy, and even if the bills did not belong to the party, the confederation to obtain them might be criminal. (He referred to Reg. v. Peck, 9 A. & E. 686.) The 5th and other counts are said to be too general. But Rex v. Gill (2 B. & Ald. 204) is a direct authority in favour of counts as general as these. (a) There the indictment charged that the defendants conspired, by divers false pretences and subtle means and devices, to obtain from A. divers large sums of money, and cheat and defraud him thereof; and it was held sufficient, without setting out the specific pretences. In the recent case of Reg. v. Blake (6 Q. B. 126), a count for conspiracy charged that T. and B. conspired to cause certain goods, which had been and were imported and brought into the port of London, from parts beyond the seas, and in respect whereof certain duties of customs were then and there due and payable to the Queen, to be carried away from the port, and delivered to the owners, without payment of a great part of the duties, with intent thereby to defraud the Queen; not further describing the goods or means of effecting the objects of the conspiracy, and was held sufficient. 2. The evidence was admissible. The instrument had been used by the party to further a criminal intention, and was therefore admissible without a stamp. (Rex v. Fowle, 4 C. & P. 592.) An unstamped instrument is clearly admissible in cases of forgery. (Rex v. Pooley, 3 B. & P. 311.) It would be monstrous if it were not so; and the same principle applies wherever the instrument is used for the purpose of committing the offence. Here, these memoranda and this warrant of attorney were given by Gompertz, to delude Captain Rose in the course of the negotiation for raising the money. In Keble v. Payne (8 A. & E. 559) Patteson, J. says, "Whether against the person accused of the fraud or a third party, the principle must be the same, if the question turn on the fact of fraud. If it were necessary in a civil action to shew that there had been a felony, or an obtaining by false pretences, the evidence would be as admissible as if the case were that of an indictment for the felony or fraud." It was not sought here to set up the instrument as valid, for, whether valid or not, the offence was the same. (Coppock v. Bower, 4 M. & W. 361, was also cited.) Thirdly, as to the new trial. It is objected, that the defendants are found guilty of various conspiracies, and that that cannot be. The inference is not supported by O'Connell's case, for there the judgment was arrested because punishment had been awarded upon good and bad counts collectively. Here no judgment has yet been given. [WIGHTMAN, J. (a) See The Queen v. Kenrick (5 Q. B. 62). -The objection is to their being found guilty of all.] There is THE QUEEN nothing inconsistent in that, the evidence may have satisfied the jury upon each count. He then commented upon the evidence as to Robert Witham. M. D. Hill and Peacock, contrà (Tuesday, Nov. 10).-1st. The warrant of attorney was not admissible in evidence, for want of a stamp. It is true that, upon the trial of an indictment, an instrument requiring a stamp may be received in evidence, though unstamped, if it be a part and parcel of the crime charged, as in the cases cited on the other side, where, upon indictments for forgery, the forged instrument has been received, though unstamped, because it was part of the crime. (Rex v. Reculist, 2 Leach, 703.) So, an unstamped instrument is receivable for a collateral purpose, quite independent of its validity in point of law; as in Rex v. Pooley (3 Bos. & P. 311, 316; 2 Leach, 900), where an unstamped draft was admitted in order to identify the prisoner as the person who had stolen a letter. Another class of cases in which unstamped instruments are considered admissible, is when the instrument upon the face of it appears to be illegal. In that case the want of a stamp will not prevent its reception, when offered for the purpose of proving its illegality. (Coppock v. Bower, 4 M. & W. 361.) All the cases cited on the other side are referable to one or other of the above-mentioned classes. In Rex v. Fowle (4 Car. & P. 592), an unstamped written agreement was received in evidence as part of the crime charged, it being offered, not to shew a subsisting valid agreement, but as evidence of the criminal intention of the parties. It is not necessary, in order to give rise to the objection that a contract is inadmissible for want of a stamp, that it should be put in for the purpose of being enforced as a contract between the parties; the objection equally arises when it is offered for a collateral purpose, if it be part of that purpose to treat it as a valid instrument. (Buxton v. Cornish, 12 M. & W. 426, 429, per Lord Abinger, C. B.) Upon the same principle, in Rex v. Hall (3 Stark. N. P. C. 67), upon a charge of embezzlement, an unstamped receipt, given by the prisoner on his master's account, was held by Bayley, J., not to be admissible against him. There it was necessary, in order to prove the case, that the receipt should be given in evidence as such; and therefore, not being stamped, it was rejected. In the case of a forged bill there is this difference, that within the meaning of the Stamp Act it is not a bill at all; and so of a cheque drawn by a person who knew that it would be dishonoured. (Keble v. Payne, 8 A. & E. 555.) Here, however, the purpose with which the warrant of attorney was offered in evidence was not to support a charge that it had been forged, or to shew that it was void, or to connect the defendants with the fraudulent transaction charged in the indictment, but to prove the fact that such a warrant of attorney had been given. [WIGHTMAN, J.-The warrant of attorney was one of the fraudulent means charged. ERLE, J.-The indictment charges a conspiracy to cheat by fraudulent devices, and this was one of them.] It was no more than a corroboration of Captain Rose's statement, that the bills were accommodation bills. [LORD DENMAN, C. J.-Suppose, instead of the warrant of attorney, in บ. GоMPERTZ and OTHERS. D. GOMPERTZ and THE QUEEN structions for a warrant of attorney had been given in evidence?] Instructions would not require any stamp. [LORD DENMAN, C. J. -Nor does the warrant of attorney, for this purpose.] It falls within the case of Rex v. Hall, where the unstamped receipt was rejected, and Rex v. Gibson (2 Leach, 1007; Russ. & Ry. C. C. 138), which was the case of an indictment for feloniously setting fire to a house, with intent to defraud an insurance-company. In that case a policy of insurance was given in evidence on the part of the prosecution, by which the prisoner's goods, in a house therein described, were insured against fire, and upon which a memorandum was indorsed, stating the removal of the goods to another house, wherein the felony was charged to have been committed. The policy was properly stamped, but the memorandum had no stamp; and the judges held that the memorandum could not be given in evidence, or be good or available at all. (a) Rex v. Smyth (5 Car. & P. 201) has been cited, but it has no material bearing on the present case. In the second place, the evidence did not support any of the counts of this indictment. The first and second were abandoned. The third and fourth alleged a conspiracy to obtain from G. P. Rose certain bills of exchange accepted by him, and to cheat and defraud him of the proceeds of the said bills of exchange; but the evidence proved that the bills in question never were in the possession of Captain Rose at all; the defendant Gompertz bought the stamps, and Rose wrote his name upon them, but they never were his property or in his possession; and the arrangement was, that Gompertz should receive the proceeds of the bills. Captain Rose parted with no money; and, indeed, it appeared to be perfectly well known to all the parties that he had none to part with. The statement of the transaction is, therefore, wholly misconceived; the conspiracy was not to defraud Captain Rose of any thing, but (if at all) to cheat him into certain liabilities, and to defraud the discounters of the bills out of their money. These parties could not have been indicted for stealing the bills. (Phipoe's case, 2 Leach, 673.) [ERLE, J.-Is it an available acceptance unless the bill be delivered to the acceptor and returned?] If it be not an available acceptance, the count is not proved. (Rex v. Hart, 6 Car. & P. 106; Rex v. Edwards, 6 Car. & P. 521.) The 5th count charged a conspiracy to cheat Captain Rose out of his money, and is therefore even more clearly misconceived than the 3rd and 4th. The 6th count contained, first, a general allegation of conspiracy to cheat Captain Rose of his money; and then set out, as overt acts, the cheating him of the bills and the proceeds thereof. The generality, therefore, of the first allegation of conspiracy was restricted by the overt acts, and they were not proved; because Captain Rose never had the bills, and the arrangement was that Gompertz should receive the proceeds; or if this general allegation was not so restricted, then this count is the same as the 5th. The 7th and 8th counts were not proved, for the same reasons as have been stated with regard to the 3rd and 4th. Thirdly, the verdict cannot be sustained; because it finds the defendants guilty of six different conspiracies upon evidence which proved only one. This (a) See Smart v. Nokes (7 Scott, N. R. 786); Williams v. Gerry (10 Mee, & W. 296). |