The Sun.
London, England, 1834-11-20 00:00:00

MOODY V. GEARY.

Mr. PEMBERTON applied this morning upon motion on the
behalf of Mrs. Geary for an order that the ledger and books of
account of the partnership of Moody and Geary, of Milford,
might remain in the hands of the examiner, where they had
been deposited during the examination of her witnesses, or
that they might be placed in the hands of the clerk in Court.
His HoNoua, however, thought, after hearing counsel, that
the books ought to go down to Milford in order to afford the
plaintiff and his solicitor an opportunity of examining them,
and ordered accordingly, upon the understanding that they
were to be brought back again to London, in order that they
might be in Court at the hearing of the cause on the sth of
next month.

MOTIONS.

In the interval between the 27th of November and the 4th
of December, the Master of the Rolls will sit for as many days
Eti. may be necessary to dispose of motions remaining unheard
at the end of the Term.

COURT OF KING'S BENCH.-(THIS DAY.)

THE MURDERERS OF MR. ASHTON.-THE KING V. GARSIDE

AND MOSLEY.

The prisoners Garside and Mosley were again brought up
this morning, in custody of the Newgate and Chester Castle
officers, pursuant to the order of the Court made on Tuesday
last. At an early hour all the avenues leading to the Court
were thronged with persons anxious to witness proceed.
ings which have not taken place in this Court for the last
century and a half. The prisoners were placed in the centre
of the bar, in the same position they occupied on Tuesday ;
and independently of the gaol officers immediately beside them,
a very strong body of police were stationed in the various ave-
nues and entrances leading to the Court. As soon as their
Lordships had taken their seats—
The ATTORNEY-GENERAL said that, on the part of the
Crown, he had now to move that the prisoners be asked if
they had anything to say why execution should not be awarded
against them.
Mr. J. DUNN, on behalf of the prisoner. Garside, moved
that the return to the writ of habeas corpus, and the record
of conviction, be first read.—(These documents having been
read by the officer of the Court, Mr. Dunn resumed.') My
Lords, it is now my duty to submit to your Lordships, that
you cannot now award sentence of execution against the pri-
soner Garside, because, by virtue of the King's proclamation,
he is of legal right entitled to his pardon. I also contend that
the prisoner is entitled to make this plea ore tenus, and not by
a written plea.
Lord DENMAN—It is for the prisoners to plead that, if they
think fit. _ _

Mr. DrNN-I plead it for them. The Learned Gentle-
man then rend the proclamation, dated at Whitehall the
6th of January 1831, declaring that his Majesty was gra-
ciously pleased to grant a free pardon to any person (except
the individual who had actually fired the shot) who would
give such evidence as would lead to the conviction of the
parties concerned in the murder of Mr. Ashton. That infor-
mation had been given by the prisoner James Garside, who
avers that he was not the person who actually fired the shot,
and that in consequence .of such information William and
Joseph Mosley were apprehended, and the latter convicted. It
might be contended that Garside had only a promise of pardon
and not a free pardon ; but it was a good and well-established
rule of law that where there was any doubt in penal cases the
prisoner was entitled to the benefit of it. The same rule held
good with respect to the Acts of Grace, and it was laid down
by a statute passed early in the reign of Charles 11., that if
there be any question of doubt it be constructed favour-
ably to the prisoner and against the Crown. In the case
of " the King v. Margaret Caroline Rudd," ( Cooper's
Reports), who gave information by which two persons
named; Carew were convicted of forgery, be had the authority
of Lord Mansfield in his favour. Mrs. Rudd applied to be ad-
mitted to bail, which was granted—his Lordship having laid
down that there were three ways which gave an accomplice a
legal right of pardon first, in case of approvement ; second,
in cases where persons came under the provisions of the Sta-
tute 10th and 11th William 111. ; and third, when the King,
by special proclamation, published in the Gazette, or other-
wise, promises his pardon. The present case came strictly
within the last-named provision ; and on these grounds he
submitted that the Court had no right to award the sentence
of execution.

The ATTORNEY-GENERAL apprehended that the facts stated
by the Learned Counsel would be of no avail now. Had these
facts been proved, most indubitably the prosecution of Garside
would have been improper, and those who advised it would
have incurred great responsibility and blame.
Lord DENMAN—Do you demur to the plea, Mr. Attorney?
The ATTORNEY-GENERAL—I do, my Lords. If the pri-
soner has been pardoned by Act of Parliament, it must be
pleaded. If he is pardoned under the great seal it mit be
pleaded, but I contend that a promise of pardon is of no avail
in bar of the indictment. The law laid down in Blacksfne's
Commentaries, 4th vol., as to the mode of pardoning, provides
that it must be under the sign manual, and that a warrant
under the great seal is not a complete irrevocable pardon.
The King's charter of pardon must be specially pleaded, and
that at the time of arraignment ; for if a man is indicted, and
has the King's pardon in his pocket, and afterwards pleads the
general issue, and puts himself upon his trial, he has waived
his right. But the question was submitted to the Jury at the trial
as to whether Garside had actually fired the pistol, and the
verdict returned was—" Both Guilty—the blow inflicted by
James Garside." The plea could, therefore, have been of no
avail, as it was by his hand the murder was committed.
Mr. DUNN said, such a plea was never intended in bar of
the indictment. It would have been perfectly useless to plead
the King's pardon until after the conviction of one of the ac-
complices, as it might be answered—wait until you are en-
titled to such a plea by the conviction of some of your accom-
plices. He contended, however, that he had now a right to
urge that plea in bar of execution.
Lord DENMAN having referred to the record of the con-
viction, observed that the verdict was " Guilty," and that
the record was indorsed in the special terms stated by the At-
torney- General.
Mr. DUNN contended that if a promise of pardon by his
Majesty was not considered a free pardon, the consequences
would be most dreadful, fOr no man would be so silly as to give
information of a murder, if the King could turn round on him
and say, " You have done what you ought, but I do not mean
to pardon you." He urged nothing in favour of a merciful con-
sideration of Garside's case, for he feared the circumstances
did not warrant him in so doing, but he contended that in strict
point of law he was entitled to plead the King's pardon. In
the case of the " King v. Hunt and Thurtell," it had been
urged by Mr. Thessiger in bar of the indictment in that
Court, that Hunt had given evidence which led to the finding
of the body, and the answer was that the time for such a plea
had not arrived. When the proper time did arrive the pri-
soner's life was spared on such terms as the Crown thought fit.
He submitted, therefore, that execution should not be awarded
until the Crown could take the circumstances into its consi-
deration, and he now left the matter in the hands of the Court.
The prisoner Mosely was then asked if he had any thing to
say ? and replied in a firm voice that lie was innocent of the
crime, and had been brought there by the malice of Garside.
He threw himself on the mercy of the Court.
Lord DENMAN then said, the two prisoners James Garside
and Joseph Mosely have been brought before us on a writ of
habeas corpus, in custody of the Constable of Chester Castle,
and accompanied by the record of their conviction for murder.
They had been called upon to say why execution should not
be awarded against them, and Garside pleads the King's pro-
clamation of pardon, which he says he is entitled to by legal
right. Reference has been made by the learned Counsel, in
support of this plea, to the law as laid down, in 1775, by
Lord Mansfield ; and the third case where persons gave infor-
mation under the faith and promise of a pardon, is relied upon
as giving the prisoner a legal right. But it is quite clear that
such a plea can furnish no defence against an indict-
ment, nor no reason why execution should not be award-
ed. The case referred to Wag merely for the purpose of
admitting a party to trial. In the case of the King v.
Thurtell, the learned Judge did delay execution, in or-
der that application might be made to the Secretary of
State. But in both these cases the Learned Judge was giv-
ing effect to no legal right, but with that extreme caution
which should be observed towards persons under sentence of
death, an opportunity was afforded the Crown of fulfilling their
contract, if such had been made with the prisoner. They
were not to presume that the King would not perform his pro-
mise ; there was no doubt that he would perform most strictly
and faithfully every thing that had been guaranteed to the
meanest and most criminal of his subjects. As the application
had been made in the present instance, time enough would be
granted to renew and consider that application, although he
( Lord Denman) was bound to state candidly, that any hope of
their lives being spared would only lead to the most dreadful
disappointment. The Court would now proceed to award
execution in accordance with the course always pursued.
The ATTORNEY-GENERAL said it was now his painful duty
to pray that execution might be awarded.
Mr. HILL, after apologizing for interrupting the Court at
such a time, submitted on behalf of the Sheriff of Middlesex,
that the award of execution should not be directed to him.
He was prepared with authorities, if the Court thought fit to
hear him.
Lord DENMAN said that the Court had power to order any
Sl:eriff in England to do execution ; and the Court did not
think it was competent to hear any arguments against the ex-
erci: e of its jurisdiction in such cases.
.11r. Justice TAUNTON then pronounce' tie order of the
Court, in pursuance of the conviction and judgment already

passed upon the prisoners. The order was; that exeetrion be
done upon the prisoners on Tuesday next, by the Marsha( of
that Court, and that the Sheriff of the county of Surrey do
assist the said Marshal in execution of said judgment.
The prisoners, who appeared quite unmoved during the pro-
ceedings, were then removed in custody of the officers.