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![handle is hein.slavery/ssactsengr0536 and id is 1 raw text is: 1 DEN. 103. THE QUEEN V. SERVA, ETC. 169
goods and chattels of one Samuel Fryer, from the person of one Mary Fryer then
feloniously did take, steal and carry away against the form of the statute in such
case made and provided, and against the peace of our lady the Queen, her crown
and dignity.
And the second count only differed in alleging that the felony was against the form
of the statutes.
The felony charged was proved to have been committed by the prisoners on board
a Liverpool steamer out at sea, and within the jurisdiction of the Admiralty.
It was objected that the indictment was bad for not [103] averring that the alleged
offence was committed within the Admiralty jurisdiction, and that this defect was
not averred by the second section.
The learned Baron inclined to think the objection was good, but respited the
judgment and bound the witnesses over to prosecute at the next assizes, in case
the Judges should be of opinion that the indictment is bad.
This case was considered by the Judges, and all present held the allegations in
the indictment to be sufficient, without adding within the jurisdiction of the
Admiralty.(a)
Parke B., Patteson J., Coleridge J., Cresswell J., and Platt B., were absent.
[1041 1845.
THE QUEEN V. SERVA, MAJAVEL, ALVES, RIBEIRO, FRANCISCO, MARTINOS,
JOACHIIM, SANTOS, MANUEL ANTONIO, AND JOSE ANTONIO.
(On 26th Feb. 1845, the Felicidade, a Brazilian schooner, fitted up as a slaver,
surrendered to the armed boats of H. M. ship Wasp. She had no slaves on
board. The captain and all his crew, except Majavel, and three others were
taken out of her and put on board the Wasp. On the 27th Feb., the three
others were taken out and put on board the Wasp also. Cerqueira, the
captain was sent back to the Felicidade, which was then manned with sixteen
British seamen, and placed under the command of Lieut. Stupart. The
lieutenant was directed to steer in pursuit of a vessel seen from the Wasp,
which eventually turned out to be the Echo, a Brazilian brigantine, having
slaves on board, and commanded by Serva, one of the prisoners. After a chase
of two days and nights, the Echo surrendered, and was then taken possession
of by Mr. Palmer, a midshipman, who went on board her, and sent Serva, and
eleven of the crew of the Echo to the Felicidade. The next morning Lieut.
Stupart took command of the Echo, and placed Mr. Palmer and nine British
seamen on board the Felicidade in charge of her and of the prisoners (charged
in the indictment). The prisoners shortly after rose on Mr. Palmer and his crew,
killed them all, and ran away with the vessel. She was recaptured by a British
vessel, and the prisoners brought to this country to take their trial for murder.
The jury found them guilty. On a case reserved for the opinion of the Judges,
several points were taken by'the counsel for the prisoners : the conviction was
held wrong.)
[S. C. 2 Car. & Kir. 53; 6 St. Tr. N. S. 197; 10 J. P. 134; 1 Cox C. C.
292; sub nomine R. v. Majavel, 6 L. T. 0. S. 188. Followed, R. v. Keyn, 1876,
2 Ex. D. 63. Referred to, Shea v. R., Dwyer v. R., 1848, 3 Cox C. C. 141; The
Princess Royal, 1870, L. R. 3 A. & E. 41.]
The prisoners were tried before Mr. Baron Platt, at the Summer Assizes for
(a) Chancy v. Payne, 1 Q. B. Rep. 722, a conviction under the Pilot Act, 6 Geo. IV.
c. 125, was in the form given in the 81st sec. of the statute. It was objected that
although the conviction stated the consent of the Corporation of the Trinity House
to have been given to the prosecutor (as required by the Act) yet it contained no
averment that the offence was committed within the jurisdiction of the Trinity House,
and that, therefore, the consent of the Lord Warden of the Cinque Ports (and not
that of the Trinity House) might have been that which the Act required.
Lord Denman.- The answer is, that although the Act requires such consent,
yet the form of conviction does not contain any allusion to it ; it was necessary to
prove it, but wholly unnecessary to state it in the conviction. Assuming, therefore,
that the statement is defective for the reason suggested, it is of no consequence, for
utile per inutile non viaiatur.
CR. CA. 11.-6*](ViewImageLocal?handle=hein.slavery/ssactsengr0536&div=1&collection=&method=preview&ext=.png&size=3)