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The Larceny Case of THOMPSON An Adulterer 1842
The case of THOMPSON who was an adulterer with James FERIS' wife, that involves both Counties Of Fermanagh & Tyrone
*Transcriber's Note: (the wife, stole her husband's goods and gave them to Thompson)
1842 Fermanagh Summer Assizes
Where a wife elopes from the house of her husband in the County of F carrying away his goods which she takes into the County of Tyrone where she is joined by a man who cohabits with her and assists her in continuing the asportation in the latter county. Such person cannot be convicted of a larceny of the goods in the County of F.
The prisoner was indicted for the larceny of a quantity of wearing apparel and bedding, and also of a sum of 11£ the goods and chattels of James FERIS .
From the evidence for the prosecution it appeared that the wife of the prosecutor had left his house, on the night of the 8th of April 1842, and that the prosecutor, who lived at a place called Tempo in the county of Fermanagh, immediately afterwards missed several articles which he had previously had in his house. Having in consequence, gone in pursuit of his wife he found her on the 11th of April, at a place near Clogher, in the county of Tyrone, in company with the prisoner, with whom, she was then on her way to join a ship, in which they intended to proceed to America. The prisoner was then arrested, and on being taken into custody several articles of the prosecutor, which had been taken out of his house on the 8th of April, were found on the prisoner's person. But the greater part of the stolen property, was afterwards, found packed up in a box which had the initials of the prisoner's name cut upon it. This box, it was proved, the prisoner had employed a carpenter to make for him. It was also proved that the prisoner had packed up the property in this box at the inn in Fintona, where he and the prosecutor's wife had been living together since the elopement, and that he and the woman had taken the box away with them from the inn on a jaunting car, and had given it to a carrier, in whose possession it was afterwards found, to be conveyed to the place from which they intended to sail.
The case for the prosecution having closed, a witness was called for the prisoner who stated that the prisoner and he, who were weavers, and both resided at Tempo, in the county of Fermanagh, had gone together on some day, in the month of April 1842, to the town of Fintona, in the county of Tyrone, to sell their webs, that having transacted their business in the market, they were returning home, and that when they had gone a short way from the town of Fintona, but whilst still in the county of lyrone, some one came up to them and said to the prisoner, that a woman wanted to speak to him at the turn of the road, that the prisoner went to the place, and there found the prosecutor's wife, having with her the several articles for the larceny, of which the prisoner was now indicted.
This was all the evidence material to the case.
Mr James DOHERTY for the prisoner, submitted that the indictment could not be sustained. There had been no evidence to show that the prisoner had taken any part in the larceny. And although the doctrine formerly held, that even where the wife and a stranger are jointly guilty of a felonious taking of the husbands goods, the stranger cannot be convicted, has in the recent decisions been overruled; yet in all the cases in which it has been held that the stranger can be convicted, ' a joint original taking' by the wife and the party convicted, was proved "Roscoe by Grainger" 541. He would, therefore, submit that as there was evidence to show that the prisoner was not present at the taking, and that the goods had been brought some distance by the wife, before she was met by the prisoner, he could not be convicted.
Mr Alexander CURRY, for the prosecution, referred to the case of 'Regina v Tollet' (a), and contended that where the party to whom the husband's goods are delivered by the wife, is living in adultery with the wife, he may be convicted without giving any evidence of an original felonious taking by him.
Pennefather B - I cannot assent to the law, as laid down by the counsel for the prisoner. A party may be convicted of an offence of this kind, if the jury be satisfied that there was an asportation by him. It may indeed be a question whether what the wife wears or has about her person at the time she leaves her husband's house, can be the subject of larceny by her adulterer; but with regard to the other property of the husband, which he had in his house, as in this case, the jury are to consider whether the prisoner was not assisting the wife in the removal of it, and of this they are to judge from the circumstances detailed to them, as in any other case, and there is no peculiar evidence necessary to establish it. I am, therefore, of opinion, that if the jury are satisfied on this point and there was nothing else in the case, they might find the prisoner guilty. But as it appears that the woman brought the goods of her husband, from the county of Fermanagh, into the county of Tyrone, and that the prisoner first joined her, and got possession of the goods there, and does not appear ever to have had them in the county of Fermanagh afterwards. I do not think he can be found guilty in the county of Fermanagh.
The prisoner was therefore acquitted and was transmitted to the county of Tyrone to be there tried for the offence.
1842 Tyrone Summer Assizes
Where a wife elopes from her husband, carrying his property with her, and is afterwards joined by a man, who assists her in continuing the asportation, and cohabits with her. Held that such party may be found guilty of larceny of the goods, although no original taking by him was approved.
In this case, the prisoner, who was acquitted at the assizes for the county of Fermanagh (a), was indicted for the larceny of several articles, the goods and chattels of James FERIS.
The evidence on the present trial was, in all material parts, the same as on the trial in Fermanagh, the only deviation being that, on the part of the prosecution, a letter written by the prisoner to his own wife was produced and proved, in which, he stated that he and FERIS's wife, were on their way to Londonderry, to sail for America.
Mr James DOHERTY, for the prisoner contended, that the indictment could not be sustained as there was no evidence to show that the prisoner had assisted the wife in taking the goods out of her husband's house.
GREENE Serjeant- As the circumstances of this case are somewhat novel, I shall confer with Baron Pennefather, upon it.
Having done so he said
I have had the benefit of a conference with Baron Pennefather in this case, and he agrees with me that there is no solid distinction between the case of an original joint taking by the wife and a stranger that stranger, - being an adulterer with the wife - and the case of a stranger (adulterer) assisting the wife in the continuation of the asportation. The reason why Baron Pennefather directed an acquittal in this case, in the County of Fermanagh, was that he considered there was no evidence that the prisoner had participated in the asportation in that county. It appears in evidence that the wife, of the prosecutor was, at all events, a participator in the robbery. Generally speaking, a wife cannot, in point of law, be convicted of stealing her husband's goods found in her possession, for the law supposes that her husband's goods in her possession are so with the consent of the husband. And if a total stranger takes the goods of the husband with the privity and consent of the wife, who gives them to him, he cannot be convicted of larceny on such a taking, because he may fairly enough suppose that the wife has a right to dispose of the property. And the same protection which is afforded to the wife would, under such circumstances, extend to the stranger. The presumption would still be that all is done with the husband's consent. But the case is a very different one, when the party to whom the wife gives the goods of her husband is in adultery with the wife. It would be absurd to suppose, in such a case, that the husband could have consented to a taking by the prisoner or a giving by the wife; and the reason for the protection ceasing, the protection itself is withdrawn, and the jury are to form their judgment, as to the guilt of the party, from the facts proved in evidence. I am, therefore, of opinion that the indictment can be sustained.
The prisoner was found guilty
*Transcriber's note: (I cannot ascertain Thompson's sentence)
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