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![handle is hein.slavery/ssactsengr0566 and id is 1 raw text is: 138
REX V. BUTCHER
FEAKE 220.
[226] AFTER HILARY TERM, 33 GEORGE III. 1792.
Saturday, Feb. 16th. At Westminster.
REX v. BUTCHER AND OTHERS.
(Bail above put in by the sheriff (who had discharged the defendant without
a bail bond) may surrender the defendant.)
These defendants were indicted for the rescue of one Philip Evans from his bail,
when they were going to surrender him in their discharge.
A writ on the Lottery Act requiring bail for £500 had issued out of the Court of
Common Pleas against Evans, and he was arrested thereon by a sheriff's officer of
the name of Coulson. Coulson discharged the defendant without taking any bail
bond ; and after the return of the writ, fearing that the sheriff might be called on,
prevailed on Purnel and Dennis to become bail above. They immediately went to
take Evan; into their custody for the purpose of surrendering him. Purnel and
Dennis had never seen Evans on the subject of their becoming bail, nor did they
even know him. Evans on being thus suddenly seized, opposed [227] Purnel and
Dennis, and the defendant assisted him in making his escape.
Marryat, for the defendants, contended that the sheriff's officer having voluntarily
permitted Evans to escape, could not surrender him after the return of the writ,
either by taking him himself, or in a circuitous way by putting in bail above, and
causing them to surrender him.
Lord Kenyon.-The bail had a right to surrender the defendant. They were
his bail, and whether with or without his consent was immaterial ; they had still
the right, and they told him they were come for the purpose of surrendering him.
If he resisted them it was at his peril : it would be so even in the case of death,
and had either of the bail been killed, all the defendants would have been guilty of
murder. They should have submitted, and not taken the law into their own hands.
The defendants were convicted. (Vide Berchere et atl v. Colson, 2 Stra. 876,
accord.)
Tuesday, Feb. 19th. At Guildhall.
REX v. DOWLIN.
(Though to support an indictment for perjury committed on a former trial the
prosecutor must in general prove the whole of the defendant's examination,
yet when the perjury was committed in swearing to a fact not connected with
the general merits of the cause, proof of the cross-examination only is sufficient.)
[Subsequent proceedings, 5 T. R. 311. Referred to, R. v. Rowley, 1825, Ry. & M.
299; Dunn v. R., 1848, 18 L. J. M. C. 41; R. v. Dunning, 1871, L. R. 1 C. C. R.
290.]
This was an indictment for perjury, committed on the trial of John Kimber,
for the murder of a [228] negro girl on board a slave ship, of which Kimber was
commander.
Amongst other questions asked the defendant on his cross-examination, one
was, whether he had not declared to Mr. Jacks that he would be revenged of
Kimber, and work his ruin. He swore he had made no such declaration, and upon
that answer perjury was assigned. There were also assignments of perjury on the
evidence given by the defendant as to Kiiber's treatment of the girl.
The short-hand writer could not prove the whole of the examination in chief,
as he had only taken down particular parts of it, but he proved all that was sworn
on the cross-examination.
Lord Kenyon said, that to convict a defendant of perjury, he should always
require the whole of his evidence to be proved, for a man might explain by one
part of his evidence what he had sworn in another ; and therefore as to the perjury
in evidence for collateral purposes, as in R. v. Pendleton, 14 East, 449, where it was
held, that the Court of Quarter Sessions might look into unstamped articles of
agreement to serve for a certain period, for the purpose of seeing when they ceased
to operate ; and in Gregory v. Frazer, 3 Camp. 454, where Lord Ellenborough held,
that an unstamped promissory note might be looked at by the jury for the purpose
of examining whether it appeared to be written by a man in a state of intoxication,
and vide Edgar v. Bick, 1 Stark. 464; Rambert v. Cohen, 4 Esp. 213 ; Holland v.
DujJln, ante, 81; fR. v. Pearce, ante, 106 ; Dover v. Mestall, 5 Esp. 93; Mauley v.
Peele, ib. 121 ; Forsyth v. Jervis, 1 Stark. 437.](ViewImageLocal?handle=hein.slavery/ssactsengr0566&div=1&collection=&method=preview&ext=.png&size=3)