Star. — London, England, 1814-06-21 00:00:00

in sn far as regarded as h tad hi Ca eat 13ri vback LO enable them to ht they nut to see his plan, beioie proceeding t lory it duty in Ireland. of ti7e spirts,, instead.of . . nothi4T like axecipro. to t:.e Engl,,h distiller. t'acture.l for Irelu - .1, and spiriti for this country L d intercourse be. they were on a I)oting s at a loss to understand 1s rcciprnCity, that one conform to the system of fight to dem.inti frbmdiTe; from that sy :cm which of the Union, and sanc. : Ent:li.h disti:lerti had no r continuance of the Sus. tot wish to interfere with firing of spirits. -H. 1i ~1 took into (onside: tntity of the - spirits, there f this was approxirnm,d iuld not object to it ; but the English distiller was Ty thing in his poster to nullity of carrying on a said, as far as be could e English Distillers, but in so far as regarded the :e was sorry not to see a Ord Castlereagh). That lat in a conversation with he clause regarding the 3, that he was aware Ire- England by this clause, as a compensation for a :h would bi injured by lerefore, was foreseen by of Union ; and-if it was Parliaments were in exist nder any pretext, to do Le had heard it stated, ritain, in it Committee up id had such a right under ed, but she was bound le advantage of the Eng- He felt himself called on :ountry of which he was A was inadequately repre he Act of Union should liould he feel as one.who which he had in so doing, ;land. 'H said it was unparlia ations with Mr. Pat four- Pitt state in conversation :hat House ? And it he that with reveet •to the t irncilirtance to the reve of the country, he meant age over England, how from one end to another !nts used in•behalt of the ssed ad jestitiam, but those were addressed _aiti slid he would not cum.. rdia of Great 'imam, or le d globe. hen leave was given to he Intercourse of spirits Ireland. LIGENCE. BENCH, JUNE 20. t, LORD COCHRANE, MID RS. he judgment of the Court • ►e. ailed on, when Random 4 , one. R. Cithorne Butt. ph SAndon, and Henry names; and the Ho-i. ie, and AlexandockA,Rac informed the Court that occasion, only for Mr. ted to them a motion in vrit , proper to observe e b on the trial to adduce u in the indictment, in a counts in the indictment for two years and op )etween his Majesty and nd Bonaparte, toe Rokr ;tuned that too many sta breaking'out of the war ranee, to make the ex s r requiring proof. ned, however, that this to our Allies : they hail 44C. ye afforded much oppor.- us in the contest against many statutes. the observation had been the consideration et the stated this objection, st of juigment on the , he had been informei,. Serjeant ti►en appeared iid defendants on the nowmcrely for Mr. Butt, uiaz-J on the two . first rved, thlt it was rather ace any of the parties )11 the trial, the Court inconvenience of hear• nt separately. authorised on the part an arrest of judgment, such 'utconvenleacY as d alluded. He prom- then to state the grounds on whieli he moved to I have judgment arrested. The third count in the in dictment charged the offence to . consist in this, that to produce a great rise in the funds and Government securities, the persons indicted did conspire and com bine to raise false reports among his Majesty's liege subjects in Kent, &c. and in London, thereby causing an increase and rise in the price of the funds, with a view to irjure all his Majesty's subjects, who, on the 91st of February, should purchase any part of such funds. His objection was two-fold :-Ist. That there was no crime stated in this count of the indict. ment, known to the law ; and, secondly, If the in. *dictment did specify a crime known to the law, the persons against whom such crime was charged to )lave been committed, were not so particularized as they ought to have been. In the first place, he sub ini!:e.l that there was no body of crime stated in the in.t.c•tnent : and, secondly, if there was a crime 4t.tttd, that it was too generally laid. He had, be these, a third objection. The intent was stated to be, to raise the price of the public funds of this kingdom. • Now, since the union with Ireland, the two countries had become one kingdom ; and yet the funds in question were no more than the Govern ment securities of that part of the United Kingdom called Great Britain. He was aware of the length to %liich the doctrine of conspiracy had by degrees been carried : but this, he thought, he might notwithstand ing advance, as an inference not to be disputed—that unless to raise the price of the funds was a crime, to conspire to raise the price of them could not be a crime ; and that to make it so, there ought to be something averred which was criminal per se. Mr. Justice LE BLANC said, the intent was charged to be, to raise the price on a particular day. Lord EateNcoitouctt—And that with this intent the defendants had spread false reports. • Mr. Serjeant lie.sr submitted that the raising the price of the funds might be • meritorious, or it might be otherwise. But of itself, he contended, it could neither be one thing nor another. There was nothing on the record to strew that the defendants meditated anyfraud, and if such was meant to be charged, he submitted, it must be stated on the record. To make a case, even where a conspiracy was charged, crimi nal, the end mist be unlawfuh He had carefully looked into the cases, and with confidence, averred that none could be found in which the end was not averred to be me.claievous to the public, or to a speci fied class of individuals. The ancient law contem plated only two suhjects of conspiracy, namely, that of a criminal prosecution against an innocent person, or the keeping of retainers in the country. In more Modern times, he admitted the doctrine hid travelled on a great deal farther, but still it never had been carried the length of contravening this principle, that to form a charge of this kind the end must be unlaw till. In support . of this position he acferred to the cases of the King and Edwards, the King and Star:. ling, and the King and Best. It it had been averred, in this case, that the parties had conspired to raise the price of the funds with the intent to defraud or injure personsspecific ally named, he admitted the case would be different. Lord ELLENtioneunn asked how it was hi the nature of things that they could have named persons, who, by possibility, might purchase ? Mr. Serjeant Beer contended, that the difficulty of framing an indictment which might bring the case within the law, was not an answer to his objection. Lord ELLENIinItOIIGII said, the impossibility of the thing was some answer to it, both in point Of law Ind in point of fact, Mr. Setjeant BEST submitted, that if the court gave countenance .to indictments so framed, they sraglit by possinility protest in the person'of a prose cetor, onl gambler against another. The names of tie parties ainjured, he submitted, should in all such eases be stated. Lord Eet.e.Nummucit—" That n'ould be to make the consequential injury the crime, which it is not." Mr. !.;erjeant Besz wits aware that the offence was complete without the act charged to have followed ; but still there must be an intention averred. Mr. Jusece D.AI4II , IEIt said, the act was complete on the very day on which the conspiracy was put in practice. Mr. Justice BAILEY said, if no individual had pur chased on that day, srid the crime would have been complete on the part of the conspirators, just as if an unlawful conspiracy had been entered into on a nrar let day to retie the puke of any particular ammo tiny, so that no one purchaser offered, but ali were deterred from purchasing. • Lord ELLENBOROUGII observed, that where the case was multitudinous, there was no occasion for stating the namei of individuals. Steant Beer, on the third point, submitted that the funds, which were limited to the service lit Great Britain, could nor, with any propriety, since the union with Ireland, be laid as being the funds of dais kingdom, which now comprehended Ireland as bell as Great Britain. Lord ELLENBOHOLCII said, in a larger sense, the funds of Great B.itain and Ireland were equally tilt f r onds of this kingdom, being equally applicable to the 4er:ice of the whole kingdom. Mr. Patric, on the part the defendant De Beren ger supported a similar line of argument: Mr: Serjeant Peea, on the part of Holloway, Lyte, and Sandell, did not feel disposed to trouble die Court or, this pent. Lord Cochrane being asked if he had any thing to si!y, en this point, stated, that wfAt he had to submit to their L , rdships woe, totally distinct from all idea of arrest i f judgment. The Com t then seriatim delivered their opinions, "that where was nothing in any of the three objections urged by the Learned Counsel for the - defendants. Lot d Et..a.eseanoncti then read the report of the esieetiee on the uiicl. Tie Report being 'gone through, the reading of wive!' occupied his Lordship several hems, Lord CC:CI-MANE addressed the Court to the follow ing effect ;•‘‘ It has been my very great misfortune to be apparently implicated in the guilt of others, with wit: m I never had any connection, except in transactiens, so far as I was apprised of them, entirely blameless. I had met Mr. De Berenger in public company, but was on no teams of intimacy with him. With Mr. Cochrane Johnstone I had the intercourse natural between such near relatives. Mr. Butt had voluntarily offered, without any reward, to carry .on Stock transactions, in which thousands, as well as my self, were engaged, in the face of day, without the •• • • smallest imputation of any thing incorrect, I'he other four defendants were wholly unknown to me, nor have I ever ) directly or indirectly, held any com munication with them. Of Mr. De BerenTer's con cern in the fraud, I have no information , ertept sueii as arises out of the late trial. With regard to Mr. Johnstone and Mr. Butt, I am willing to hope that they are guiltless. They repeatedly protested to me their innocence. They did not dare to communicate any such plan to me, if midi was projected by them, or either of them. Be they guilty then, or be they, one or both, erroneously convicted,' I hive only to lament, that without the most remote suspicion of their proceedings, if they, or either of them, were con cerned in the fraud, 1 have, through my blameless in tercourse with them, been subjected to imputations, which relight, with equal justice, have beeti cast Upon any mln who now hears me. Circunistanced as I am, I must keep myself wholly unconnected with those whose innocence cannot be so clear to the as my awn. Well had it been for me had I made this distinction sooner. " I do not stand here to commend myself—up happily I must seek only for exculpation ; but I can not exist under the load of dishonour which even an unjust judgment has flung upon me.—My life has been too often in jeopardy to make me think much about it ; but my honour was never yet breathed up on : and I now hold my existence only in the deter mination to remove an imputation as groundless as it T it; intolerable. 4 "fhe evidence which I now tender to your L”rd ship, will aid me in performing this duty towards my self, my rank, and my profession. 1 first offer the affidavit, which I have repeated at a risk which I had formerly no opportunity of encountering. I have been told that I then incurred the moral guilt of per jury without exposing myself to the legal penalties. I know nothing of such distinctions: I have repeat ed the statement-upon oath—and I am now answer able to the laws it I have falsely sworn., The affida vits of three persons, who saw Mr. De Berenger at my house on the 21st of February, fully confirm my statement, and I have only been prevented from bringing•forward a fourth by his sailing to a distant situation, before I could possibly stop him for this purpose. " The grounds upon which I have been convicted are these :—That notes were found in Berenger's pos session which had been Changed for others, that had once been in mine. That Berenger came to . my house, after returning from his expedition : and that my account of what passed at this visit is contradicted t r evidence. " The first ground has been clearly explained away; it amounts to nothing more than that which may happen to any man who has money transactions. Mr. Butt voluntarily made purchases and sales of Stock fur me, and having received a small loan of money Irons him, I repaid him with Bank notes, which he used for his own purposes. He says that he ex changed these notes, and that a part of the notes which he received in exchange he paid to Mr. Cochrane Johnstone, who states that he gave them to Berenger, in payment of some diawings ; but with this story, whether true rr false, I have no manner of concern, and Consequently no wish to discuss it. In what way seiver the notes which were received in exchange for mice Leached De Berenger, I can only say that mine were given to Mr. Butt in discharge of a Lonajrie debt; and have no . knowledge whatever of the uses to which he applied them. Berenger's coming to my house I before account. ed for upon the supposition of his belle: unconcerned in the fraud ; but is it lint obvious MAL he might have come there to facilitate his escape, by going immediately on board . of my ship, with the additional prospect of obtaining employment in America ? It has been said teat there was a suspitious degree of familiarity in his treatment of me and my house.— I can only observe, that over his con Ana 1 had iso ' cootroul. But he knew, it seems, of my change o; abode, which had occur' ed within a few days. I trust it will be recollected that be is proved to have lest town three days after such change and that though not intimate with me, he had the means of knowing where I resided, even if he should not have inquired at my former lodgings, where my address was left. Indeed, if taking refuge in my ship in order to facili tate his escape was part of his scheme, it was very likely that he would .have ascertained the pikeise place of my abode previous to his quitting London.— Again, I am said to have left the tinman's ( where I think I should hardly have g one had I expected such a messenger) as soon as 1 heard of the officer's ar rival. I was in apprehension of fatal news respecting my brother theiein Fiance, from whom Y had re ceived a letter but three days before, with the intelli gencemf his being dangerously ill ; and I now tender you his affidavit, with the surgeon's certificate, dated the 12th of February, which he brought home with him. And therefore, on receiving the note from Be renger, whose name I was unable to decypher, and as lit e. note announced that the writer, whom I learnt from my servant had the appearance of an officer in the army, who was desirous of seeing me, I hastened to learn intelligence so anxiously expected ; nor had 1 the least douut that it related to my brother. When, however, I found that the person was De Berenger, and that lie had only to speak of hisown private affairs, the apparent distress he was in, and the relief it gave my mind to know that he was not the bearer of the news I dreaded, prevented me from feeling that dis pleasure which I might otherwise have telt at the liberty he had taken or the interruption ft . had occa sioned. Comments have been made on my saying so little *to the servant who brought that note ; but, the fact is, 1 did ask him several questions,'as appears by his affidavit. • That I did not learn the name of the writer from the note itself 1 have truly accounted for, by its being written so close to the bottom of the paper that 1 could not read it. This assertion is said to be contradicted by the circumstance of the writer having found room to add a postscript, as if there wa.s only one side to the paper. Of the pustcript I have no recollection, but it might have been written even opposite the signature. That I did not collect from the hand-writing that it was addressed to me by De Berenger is nothing extraordinary.; my acquaintance with that pei son was extremely slight ; and till that day I had never received More than.oue pr two notes from him, which related to din...Wilk& of a lamp. I was too deeply impressed with the 06 . 4 that the note was addressed to me by en officer who had route with intelligence of mg brother to.apprehend that it wits written by De Berenger, frosi whit* I. exPccte4 no communication, and with whose handimnung t was not familiar. All that I could aftermirds recol lect of the note more than what is Stated in my daiiit is, that he had something to communicate which would affect my feeling mind, or words to that effect, Which confirmed my apprehenSions that the writer was the messenger of fatal !leis" of My btutber. Berenger hid really been my agent in thi; • nefarious transaction, how I should have acted or Where I should hare chosen to receive him, it is impossible for me to say : but I humbly apprehend that mrown house ivas mot the place I should have selected for that purpose. The pretended Du 133urg, if I had chosen him for my instrument, instead of his'rriaking me his convenience, should have terminated . his et- . pedition and have found a change of dress elsewhere. He should not have come immediately and in open day to my hotise. I should not so rashly have invit ed detection and its concomitant ruin. ttit thii; is got the only eitravag:tnce of which t am accused. What supp.sition short °limy absolute insanity will account for my having voluntarily in ide the affidavit i•Aticli has been so much canvassed, if I really knew the plot in which Berenger appears to have heat engaged ? Let me entreat Yonr Lordships' consideration i f the situation in which I stood at the moment in which that affidavit was made ; I was sits:. petted of being connected with the pretended Du Bourg; if I had known that Berenger wai the per son who had assumed that matte, coati(' I possibly have betrayed hiM, end consequently myself. more completely than by publishing such a detail to the world ? The name of Berenger was never mentioned till.brought forward in my affidavit which affidavit was made, ai sworn by Mr. Wright, a Witness on the trial, with the circumstasece preS.mt to me, and re marked by me at the time I deliveted it to him to be printed, that if De Berenger should happen to be Du Bnurg, I had furnished a clue to his detection. The circumstante of lds.obteining a change of dress at my house never could have been kno en it I had not vo luntarily discovered it : and fiats I am represeeted as having brought him publicly to my own house, of being the first to disclose his name, and of menticining a circumstance, which, of all others, it scas the mast easy to conceal, and, if divulged 4 the :nest certain to excite suspicion ! Is it not next to impossible, that a man, conscious of guilt, should have been so careless of his most imminent den et ? My adversaries dwell upon sorreesarticulars of this ailidevit, which they pretend to find contradicted in the evidence. The prihcipal one is my assertion that Berenger wore a green coat. I have repeated this assertion upon oath, under all the risks el the law ; and I also solemnly affirm upon my honour, which 1 regard as an obligation no leis sacred, that I only saw him in that dress. The witnesses on the part of the prosecution have asserted, that he wore a red coat when he arrived in town. Granted. But may he not have changed it in the coach, on his way to Green-street ? Where was the difficulty, and fir what purpose was the pea troantemi ? My own fixed opinion is that he changed his dress in the coach, be. cause I believe that he dared not can the risk of ap pearing in my presence till he had se eh-tiled it. I' tender affidavits of these who SAW him, as I did, in his green coat, at my house. That he sh , mid have changed his dress before I saw him is most natural, upon the supposition of his wishing to conceal from me the work he had been about ; but it is like many other confirmations of my innocence, rated to excite no attention in the minds of those who only seek food! for their suspicions. Much is said of the star and other ornaments, as it any proof had been given of his wearing them in my presence. lie to k especial care, I . d.mht not, to lay them aside on his way, when he had divested himself of his official capacity, long before I saw him. The small portmanteau before mention , al, which it is admitted he brought with him, in all probability lurnished him with the green coat, and received the red coat and its or naments, and very possibly for this reason no remark has been made upon it. A good deal of observation has been bestowed upon Dc Berenger's unwillingness to appear before L iral YarmOuth in uniform, and the inference was, that this uniform could not have eeri the green dress of his corps, otherwise he must have felt the reverse of uneasy at being seen in it by his Colonel. Does any Volunteer Offices go out of a morning to make calls in his regimentals? Could ,so unusual a circumstance have failed to excite re mark from Lord Yarmouth ? To me, indeed, he had explained himself—he had of necessity told me his nearly desperate state, is asking Me to receive him on board my ship ; but is there any thing so very in credible in theetetement that he was unwilling to tell his whole case to every body ? It may now doubtless be perceived that he might have had other reasons for disliking to go out in a green dress. " Let it, however, be recollected, that my state ment was, that he only asked s me for a hat.in lieu of his military cap, apd that the black coat was my own voluntary offer. The idea of applying to Lord Yarmouth, or to any other of his friends, originated With me, and I proposed it in consequence of his rcalling to my recollection the certificates he had re ceived from them. I then had no suspicion awake, and I believed what he told me. In what manner the disguise was ultimately disposed of I can only, conjecture, as any one else might, from the evidence given on the trial. He presented himself to me in a grey great coat, and a green under coat ; and if the persons whose affidavits I now tender had been exa mined on the trial, and they did attend for that pur pose, I do feel persuaded that s e very different impres sion would have been made on the Jury and the world at large, than that which they 'appear to entertain and that your Lordships might have been disposed to take an opposite view of the case as it affected me. Those witnesses would have corroborated the particu lars of my affidavit relative to De Berenger's dress, when I first saw him et my house, namely,. a grey great coat, and a green under coat and jacket. -Un fortunately, through some mistake or miscoaception, not on my part, they were letc unnoticed, and, of course. were not examined. I have now to offer their. several affid avits to your Lordships. ar I would further submit to your Lordships, that my affidavit was made at the impulse of the moment, as soon as I heard that placsuds had been ,posted; stating that the pretended Colonel Du Bourg had' gone to my house ; and in the conscious rectitude of my own conduct, I not only introduced the name of the only effi.er I saw at my house on the day stated, but merreteal every ocetirrence that took place, and all the cosaversition thm wok place at the interview, to• I 4. -r. eq. •- ." • he bed of thy recollection. f f m a cen tvted having faetC'd toe ;tenuous in, thy eonstiutnieation,l tilik it Will be admitted, that as ingenuodsnesi i dis claims all connection with guilt, it is ndieatiie only of my innocence: , •• If your Lordships will be pleased to reflect on all that I hive offered respecting. De Berenger, and td bear in mind the avowed intercourse which t had ' with two other defendants, respecting whose Candela I have been compelled to speak at last, upon top position of their guilt, I am confident you will per. ceive how easily any Man living. so circumstanced might have been placed iii the very situation* But waiving the supposition of De l3erenger acting under the direction of either rat the other defendants, I, do still contend, that aty man who hid stock Concerns, and was slightly known to De Bereriger, ran the same risk with me of being driven into the rein which, Undeservedly* at I inn still willing to hope; has be fallen the others. The artifices which have been used to eacite so Much prejudice against the, I unfeignedly despise; in spite of the injury they haie done nit. I know it must subside, and I 1, , ,k forward to justice being rendered My character sooner or later i it will come most speedily, as well as Most gratefiilli, if I Shall receive it at your Lordships' hands. I am not un. used to injury I . & late I have known pertketitidn : the indighity of coMpaision I am n , ,t yet able to bear.. —l'o escape what is vulgarly tailed punishnient; *mild hate been art easy thing ; but I mtist have belied thy feelings by acting as it . I were eonsc i i , us of dishonour. There are ways even of rettiosang be. etind the reach of ignOtriinv, but I cannot feel dis; graced white I knoW that lam goiltless: tinder the influence of this sentiment, I persi s t in the defence of my character. I have often befit in situations where I had an oppertnnity tit skewing it. This if the first time, thank Goo, that I was ever called Upon to defend it." .• Hai Lordship then handed in three afiliatrits, one by himself, in %%hid) he asserts the truth df his affi davit sworn before Mr. Caltharti, the Magistrate; another by his servant, Thomas Dnmani in which Fyne supplies an omission in his examination on the trial, las to the cnieur of the military under coat Worn by the stranger who called for his Lordship at No. 11% Greetostreet, on the :'lst Felt-tette t and tat) affide• . vies to the same effect by the two female tertants then in his Lor.ishio's house, but who had dot beet% at all, examined on the trial of the cause. The Court, however, objected to the receiving of these tine*: last-mentioned affidavits. • The first they . . rejected on the ground that the witness had been etaa r , mined on the trial, and could not now be allowed ID • add ta, or contradict that lie had then sworn ; and.. as to the other witnesses , no rule was better estab lished than this, that if witnesses might have been adduced . on a trial, but, from motives of prudence, are ndt called, such witnesses cannot afterwards be brought' forward to state, in the shape of an affidavit, what theP know of the transaction. Lord COCHRANE s iid, lie had tendered these a& davits in the confident hope that their Lordships would have granted hiln a new trial, on which these witnesses might have been etatnined. An Affidd,Vit was then put in, sworn by. Majpc Erskine Cochrane, brother to Lord Cochrane, in which he states the tact of his haeing, early in tho mouth of February last, communicated to Lota . Cochrane, by letter, an account of his bad state of health. 'rne.affidavit was acconipanied by a state meat to the above effect, by the surgeon of M eke Coctiranebs regiment, dated the 12th February ; but Lord 4LLENBOROUGH remarked that there was no evidence to show it had been in Lord Cochrane's pos session previ o us to the 2lst February ; though, if it Was so, that Was a circumstance that would satisfac curtly account for his Lordship's going on that day, from King's shop, to meet a strange officer, whom he might expect to bring him mare recent tidings of the state of hit brother's heal h. Mr. BUTT then addressed the Chourt to the following effect I MY Lonns—l have been tried for conspiring with other person's to raise the price of the Public Go vernment Funds, and also fur promoting assistance to those measures, by the changing Of notes, and va rious other circuristances. I beg lea te to assure your Lordships, that I do not address you on the idea or wish of a mitigation of any puhishment you may think proper to inflict upon me—it is merely to express to you, thht my sole wish and desire is to claim the indulgence of the Court in permitting me to have a new and distinct trial, that I may clear my character from the cloud with which it is now depressed, and which had previously been without a blemiah,as ,am confluent if my case was separated from other perions in the indictment, it would be the means of my acquittal. •• it was my intention to have appeared in Court some days since, to have made the same request which I now do of your Lordships, had it not bt'en for my Counsel informing me, that I should have been com mitted directly I entered the Court, and that the de. fendants should all appear belt re the Court would grant my request. Ties I tounctiMposstble to . atcom• Oise, and I declare that the defendauts,Sandon, Lyle, Holloway, and M‘Rae, are all perfectly unknown to me ; that f never directly or indirectly had any know. ledge or communication,.or ever saw them in my de ,- neitherer did I ever . tee Mr. De Berenger more than two or three times. : 4 " ‘‘, I beg also to aegniint your Lordships,..thai the Ba4li notes which have been stated to have pass e d through my hand s, must unavoidably so have dom. as I permitted, 'without thinking it any crime, at the solicit:no i s of my friends, that all drafts connected with the Stock Exchange business should be paid in my name, whether I w.is in London or not, and I did at any time change notes, or laud Mr. Johnstone money, as a temporary accommodation, when he wished it : and yet it is a fact, that I had never seen Mr. Johnstone till the of January last. But it is impossible for me, and certainly a vase of hardship, that I should be answerable for the 'manner in which those notes might be 'disposed of afterwards. There appears no one witness on the trial that can give any einsarndinary . reas°fourmyer I having notes alluded to by Mr . jn ,i,ston, fo dreds of times, have paid notes to an equa l amount migphati, paid the n. to him or any other man. to my it, instructed my C and Connell 4. My own conscience c s i o e n f c a e r w clears asi m fr e o of m a di v e oi o din ifen g ce ive laid ne ligation, that courted not to take advantage of any flaw, mould theta op. pear one in the indictment, but to force the trial to P