The Express.
London, England, 1848-05-27 00:00:00

71r1Iw•MW

Attorney-General. Messrs. Henn, Whiteside, Baldwin,
Smelt, and Pt rein. On the pert of the prisoner Sir Colman
O'Leghlen, Mr. Holmes, and Mr. Pigott.
Their lordships, Baron Leroy and Mr. Justice Moore ap.
peered upon the bench at half-put 10 cm, and the panel
was then called.
Sir Colman O'Loghlen having ascertained that the sheriff
had signed the panel, challenged the array for partiality and
unfairness. The challenge was read by Sir Colman, and
alleged that the array had been made contrary to the usual
practice in that court ; that certain names whom it was sup-
posed would be unfavourable to the prisoner were put on
the panel, and others supposed to be favourable were omitted;
and alleeing other unfair arrangements
The Alt rney-General asked • few moments to consider
the challenge, which being allowed, all the counsel for the
crown retiree, and alter some time again entered, when the
Attorney General said that he joined, as the panel was
peered) fair, equal, and impartial.
Mr. Holmes repeated • m mon be made yesterday. As
evidence must be had, ho desired to produce • witness—the
brother of the Attorney-General.
The Attorney-Gent eel opposed the roteption of the affida-
vit offered by Mr. Holmes.
Mr Holmes said it must be the desire of the crown to
prove the panel not only chaste, but above suspicion. They
had served a subpcona on Mr. Monahan, who it appeared
had proceeded to Galway to attend a fair, and he had lett
town meet unexpectedly. They had used all the diligence
they could, and it would be most fatal to them to p
toroceed
in his absence. There was • suggestion that he left avoid
giving evidence.
The Attorney. General read a letter from Surgeon Mona-
ban, brother of the absent gentleman, who negatived the
suggestion of leaving town to avoid being served with any
summons. He contended that they ought not to get any
further time, because if they had given notice to the Crown
Solicitor on Tuesday, the day the trial was fixed, it would
have been possible to have Mr. Monahan present that day.
Mr. Holmes said it was not for him to observe on the re-
fusal of the Attorney-General to consent to postponement,
but really it was very hard.
Baron Leroy.—The application now made to us must be
dealt with as any other cue. It was an application quite
ordinary—the gaestion being, had the prisoner made • case?
Many thought that the application was founded on grounds
sufficient but the court, even in capital cases, requiredsome-
thing more. The court required that due diligence should
be used to discover the witness, and that the witness should
have sufficient time to be in attendance. No doubt, if
a prisoner satisfied the court, even on the day of trial,
that the witnesa could give evidence material to the
defence that would oblige the court to postpone the trial
for the appearance of that witness. But it was the duty of
the court to see that no encouragement was given by the
court to the delay or obstruction of justice. His lordship
thee eaid tee bills were sent into court in this case on Satur-
day—notice was given that it would be proceeded with.
The court sideresed the grand jury on the subject. The
bills were sete up in the course of Monday, and the grand
jury sent down the bills. Various preliminary matters were
di.cussed, and ifit Tuesday an application was made by
the kturney-General to tit Wednesday. His lordship
reviewed the otter proceeding preliminary, and stated that
they had no evidence to show that they had recently become
aware of the materiality of the testimony of the witness, or
of any due diligence being used to secure his attendance. On
the contrary, if they had to judge of the question whether it
was not intended to abuse the rule of the court, the abstain-
ing from giving due notice to the parties who would have
kept the witness in town, they would doubt the boon fides
of the application, and the court were bound to refuse the
application.
Mr. Justice Moore said he would not enter further into
thecae, than to say that sufficient grounds in liw were not
laid fur the application.
Mr, Thomas J. Quinton and Me.Worthineton, the former
foreman of the county grand jury, and the letter another
grand juror, were sworn as triers.
Mr. Peter Cassaday, an attorney, was the first witness ex-
amined. He deposed that ke practised as an attorney for
six years constantly in that court. Was acquainted with the
clan of jurors generally in attendance. Examined the
present panel. Thee were not the same class of jurors as
usually attended They were rather • more respectable
class of persons on the present panel—he meant more
wealthy iu circumstances—that; was the only difference he
saw.
Mr. Peter Slevin, an officer of the corporation, was next
called on. He deposed that he was very frequently employed
in registrring proceedings, and knew the city well.
Sir Colman O'Loghlen then asked him did he know how
many Roman catholic, were on the panel ?
The Attorney-General objected. lle did not see what
that bat to do with the panel.
Sir Colman O'Loghlen said he thought it would he found
relevant. For whereas the catholic jurors were to the
Protestant on the juror.' boek as four to one, the number of
catholic did not on the panel bear to the protset•res the
proportion of one to six. Sir Colman quoted the case at the
Queen's County special conimis.ivn before the late Chief
Justice Bushe an the year 1837.
Mr. Henn, Q.C., was heard contra. The sheriff was at
perfect liberty to place upon the panel in any position be
pleased and in any numbers as to any Tarty he pleased, and
the only challenge could be whether he hail done so cor-
ruptly or not.
Baron Lefroy—Suppose it should occur that a poor man
DM on his trial and that the sheriff should place on the
panel • large number of rich men, would you think that
was uninditferent I
Mr. nolauss—l think it would.
Baron Lefroy—Lord Teoterden has decided contrary.
Mr. Holmes.—l have often differed from high judges.
Judge Moore thought that at present the evidence ought
not to be excluded. It might not be found relevant by and
by. At present there was act sufficient materials to satisfy
him that it was not so. Suppose it should appear that the
sheriff t ad asked what religion certain persons were of, and
had then left them off?
The Attorney-General contended the sheriff was bound to
select the panel, and un:esa it could be shown it was done
with a corrupt view it was not objectionable.
Mr. Slevin then continued his evidence. There were upon
the panel about 24 or 2S catholic.
The witless was next asked whether he had examined the
jurors' book.
The Attorney-General objected. They must produce the
jury book.
Mr. Holmes.—My lord, we eked for the book, but it was
refused. lam really surprised at this technical objection.
Mr. Dowling was then produced, and be proved that he
compared a book then in court, and he wee sure that the
names in that book were a transcript on that of the recorder
at the jury revision in October last. (To the AttornerGe •
ueral) : Did not compare the book after the recorder had
signed it.
Mr. Holmes said it was settled law that copies of public
record being proved as such should be received as evidence,
buatee records of that nature might he in any distant part
et the country at any assizes.
The court held that as the book then produced was a copy
of a list taken before the recorder had signed the jurors'
book, it could not be received in evidence.
Mr. Holmes said there could not be • doubt the book was
a true copy, and though not to be pressed as a matter of
law, he would put it to the Attorney-General whether he
would, as a matter of justice, press its exclusion? The
public would not be satisfied at such a proceeding.
Mr. Ilene deprecated personal references to the Attorney-
General. All his brethren concurred with him.
John Brouuhton was then called, and stated that on the
13th of May he was served with a summons to attend there
an a juror. His name did not appear on the panel.
He was asked of what religion he was.
The Atterney General objected.
Sir Colman O'Lsghlen said their reject was to show that
Roman catholic summoned before the arrest of Mr. Mitchel
had t ceo lift off the panel after. That would be • consi-
deration for the triers.
Anne Broughton, wife of the last witness, was called and
proved that the summons had been banded to her by • man
whom she had never seen before. Did not know him.
Mr. Ponder, sub-sheriff of the city of Dublin, deposed that
the summons was issued by his officer when he Rot the
panel. Ile (witness) had ordered • person named Wheeler
to issue those summonses. It was his (Mr. Ponder's) duty
to prepare panels. He did not interfere with this panel; did
not see it until the day before the commission. Did not see
the list before the engrossment. Had no conversation about
the panel with anybody. Some of the summonses for the
present commission were issued before the calendar was
made out. Proved a summons to Mr. Resaborough, also in'
Wheeler's handwriting.—To the Attorney-General: He
does not know of any interference with the panel by the
crown or anybody on their part.
Mr. Roesborough was then called, and preyed the receipt
of his summons. The question whether he was • catholic
was objected to.
Mr. B. J. Milliken was then called. Ito was on the pre.
sent panel; was summoned on Friday last.
Mr. French ( high sheriffs —He prepared the present
panel at Mr. Hamilton's house, his sub-sheriff. Can't say
on what day. There were persons going in and out of the
room. Thinks the whole panel was made out on one occa-
sion. It was about the 13th it was made out, and all on one
occasion. Gate the copy of the panel to Mr. Hamilton, his re-
turning officer, and asked him as to the position of parties as to
respectability. When the list was made out, gave it to Mr.
Hamil'oo. Had not any consideration of religion or politics
in making it out ; religion et politics might have been men-
tioned, but he cannot say. To Mr. Henn : To the best of
his knowledge, he arranged that panel fairly. No one had
suggested to him anything as to the arrangement of the
panel.
Mr. N. A. Hamilton, returning officer of the high sheriff,
was present at the arranging of the panel. It was done in
his office. Did not select the names by chance, but men
whom he knew as to their character and respectability.
Some he took by chance, but cannot say how many. Thinks
respectability partly consists in not being capable of robbing
a man • but he did not judge hom that
_• he
had no knowledge of their religion or politics Never heard
them convene upon any Italic question. Knows Mr.
Wheeler, and asked him to give him a list of parties who
were respectable, and who were generally placed on juries.
Mr. Holmes: But these were generally not on panels.
Witness, in continuation : Wheeler had given him a list,
and he took some from that list, and others from the jury
book. Wheeler had given him a list of about 100 names.
Baron Lefroy, in addressing the jarers very briefly, said in
the opinion of the court there was no evidence whatever to
sustain the charge.
The jams then returned as their finding, " That the
panel had been fairly and impartially made out by the sheriff
endk his officers, and thereto» we find against the chat-
wi°
The following jury was then sworn, after the primate bad
exhausted his challenge', and a large number had been
ordered by the crown to " stand b ." John Whitty, woollen
; W. Fletcher; Hobert • William Horatio
; Fredmisk Sambaed ; i Haywood