OPINION of the JUDGES,

On the Case of Humphy Moore, who was tried in April Sessions last, delivered by Mr. Justice WILLES.

88. HUMPHRY MOORE proceedingsdefend , you was indicted last April sessions, for feloniously stealing twenty guineas and four doubloons, value 14 l. 8 s. the property of John Field < no role > , in the dwelling house of John Brown, it appeared in evidence, that a person unknown joined company with the prosecutor John Field < no role > , in the street, and soon after picked up a purse, and persuaded the prosecutor to go to a publick house with him, telling him he was intitled to half; the person took out a receipt, and whilst they were looking at it, you came into the room, and asked if there was any thing extraordinary, and being told by the unknown person, you said, which of you picked it up? and the prosecutor said he had forty or fifty pounds, at his lodgings at Chelsea; upon which you said we will call a coach and go there, and you all three went to Chelsea, and drank a shilling's worth of punch, that they found you afterwards at the Cheshire-cheese, and in your presence, the prosecutor put down the money twenty guineas, and four doubloons, which the person unknown took up and carried away, leaving the ring with the prosecutor; and appointed to meet him the next day, to have the money returned, and one hundred pounds for his share of the ring; that the person unknown, and you went away together, and the prosecutor went to the place of appointment, but neither you nor the person unknown came; the ring was proved to be of very small value, and the jury were of opinion you was confederating with the person unknown, for the purpose of obtaining money, and sharing the value of the ring, and therefore, that you did aid and assist the person unknown, to obtain the money of the prosecutor John Field < no role > ; and the jury found you guilty - Subject to the opinion of the Court.

This matter was submitted to the opinion of all the Judges the first day of last Michaelmas term, except Lord Mansfield, who was absent, and they all agreed in the distinction between the parting with the possession, and the parting with the property; that in the first case it was felony, and in the last case it was not; nine of the Judges were of opinion, that in this case possession only was parted with, it being only a pledge, till the supposed value of the ring was delivered; two of the Judges thought that the doubloons were the same as money, and were of opinion it was a loan, and was a parting with the property, but nine of the Judges were of opinion it was felony; and the Judges could not distinguish this from the case of the King and Patch, that case was this; the prisoner was indicted for stealing a watch, and some money, the prisoner picked up a ring and purse in the street, the prisoner pretending he found it, offered to divide the money with the prosecutor, and opening the purse, there was a ring, and bill of parcels, stating the ring to be a diamond one, of one hundred and forty seven pounds value, and a receipt for that sum different modes were proposed for the distribution, at last the prisoner asked the prosecutor if he would give him his money and watch, and take the ring; two other men that were in company took up the watch and money, and the prisoner got the prosecutor out of the room under pretence he had something particular to say to him, and the two men ran away with the watch and money; the person was uneasy, and the prisoner said he knew the two men: The prisoner was apprehended, and the ring was found to be of the value of ten shillings only: It was objected by the councel, for the prisoner that was not a felony, but Mr. Justice Gould, Mr. Baron Perryn < no role > , and Mr. Justice Buller, held it should be left to the Jury to say, what was the intention of the prisoner, to get the money and watch, for if the whole was a scheme of the three men, it was felony, according to the case of the King and Peers, where a horse was hired for the day, by two men, who went directly and sold him: and Mr. Justice Gould left it to the Jury, whether the prisoner, and the other two men were not all in concert together; upon the whole therefore, of your case the majority of the Judges are of opinion that you are guilty of the felony, and not merely of a fraud, and that judgment must be passed upon you accordingly.

Mr. Recorder. Humphry Moore, when upon your trial I reserved this case, it was not from any doubt of your guilt, but doubting whether your guilt was of that kind to support the indictment, that doubt has been submitted to the opinion of all the Judges, and a great majority of them have concurred in opinion, that the indictment was sufficiently supported, by the circumstances given in evidence against you; I never entertained any doubt, that the offence of which you was clearly proved to be guilty, was deserving of as high a punishment, as any felony committed under similar circumstances, if therefore no doubt in point of law had occured, I should have passed sentence upon you, to be transported for seven years; no reason occurs now, for changing that opinion of your offence, but as the necessity of laying your case before the Judges, has occasioned some delay, and a considerable time has elapsed since your conviction, I shall take care the term of your transportation shall be computed from the time of your conviction, therefore the sentence of the court is, that you Humphry Moore, be transported beyond the seas, for the term of seven years, from the time of your conviction, to such place or places, as his Majesty by the advice of his privy council shall thing fit to direct or appoint .