The Sun.
London, England, 1832-08-17 00:00:00

(PRICE 7D.)

CRIMINAL COURT OF APPEAL

Every day furnishes fresh proofs of the abso-
lute necessity of a Court of Appeal, in those
criminal cases more especially in which the sen-
tence is deprivation of life. The most trum-
pery causes can be carried through Court to
Court, and hung up for years ; but a fellow-crea-
ture's life is deemed an object of too little mo-
ment to admit of a reconsideration of a sentence,
however partial and unjust. A few individuals,
for whom Sheriffs and Aldermen may interest
themselves, may succeed in obtaining atten-
tion to their cases by the Home Secre-
tary ; but here there is as much danger of an
improper decision in favour of the prisoner as
there is of an unjust decision against him, if
the decision of the Judge is to be final. The
evidence presented to the Home Secretary is
ex parte evidence ; and who knows, if it could
stand the test of cross-examination in an open
Court ? We arc led to this all-important sub-
ject at present, by the perusal of an able pam-
phlet, the production, as we are informed, of a
most respectable Magistrate, entitled " Obser-
vations on the case of David Gulliford and Ben-
jamin Bartlett, executed on the 2d of May,
1832, at Ilchester, pursuant to their sentence at
the late Assizes of Somerset, held at Taunton,
for assaulting and robbing Hannah Richards."
The name of the Judge is not mentioned in the
course of the observations; but we learn that
the Judge was Mr. Justice Parke. The facts
of the case are thus amply and clearly related by
the writer:—
" Hannah Richard•, the prosecutrix, aged about 19 or
20, had given evidence against a friend and connection of
the prisoners Gulliford and Bartlett, and he was in conse-
quence convicted of an offence at the Quarter Sessions,
and sentenced to be transported. Fur this they bore her
enmity, and, with two more men, having met her one
night, they used her extremely ill, pulled or threw her over
a wall, dragged her about, by which she was severely
scratched and bruised, put her into a pond up to her
breast, exposed her person, and insulted her in language
gross and revolting. Finding some money upon her, one
of them said—' We will have the money she has in her
pocket, as it belonged to Bartlett (prisoner's brother).'
They took the nine shillings and five pence halfpenny out
of her stays pocket. They took off her cloak or pelisse, but
did net, it appears, carry it away wth them. I was all
wet, and quite exhausted : I called murder all the while !'
" The account of the outrage was confirmed by a boy
named John Hostler, who was in company with the pro-
secutrix till they fell in with the four men. He also bad
given testimony against their friend Bartlett, and dreaded
their vengeance. He ran off and left his companion in
their hands. He remained near enough to witness the ill-
usage she received, and be came back to her after they
desisted.
" Parsons, a constable, deposed to the state of the pro-
secutrix. She had several bad bruises and wounds, some
as large as a sixpence, some as large as a shilling. The
skin was off her arm in several places.
" The prosecutrix was sent to prison by the Magistrate,
and was detained in custody till the trial, which took place
a few days afterwards, at Taunton. She was thereby
prevented from compromising the affair, which it was
supposed and stated by the prosecutrix that the accused
and her friends wished her to do.
" The two men, Gulliford and Bartlett, being convicted
of robbery, a capital offence, were sentenced to die, and left
for execution. They were accordingly hanged at Echo-
ter, on Wednesday, the 2d instant (May).
" Great efforts were made to obtain a mitigation of the
sentence passed upon these two men. A number of the
most respectable inhabitants of Shepton Mallet, and its
vicinity, sent a petition, through the Sheriff of the County,
to the Judge. Several of the Jury signed a petition to
the same effect, recommending the men to mercy. Other
applications were made for mercy, we are informed, to the
Secretary of State."
Somerville, the soldier, committed a breach of
military duty, at a time of political excitement,
and wrote a letter to a newspaper. He was tried
for a breach of military duty, but was sentenced
to receive 200 lashes, and actually did receive
100, because lie wrote a political letter. It so
happened, that at the time when these two coun-
trymen were tried, intimidation of witnesses was
common in Ireland, and the Judge convicted the
men of the robbery, but sentenced them to death,
to deter men from intimidating witnesses.—
In England, a man is seldom punished for the
crime of which he is convicted, but for some
other. That the men were executed, not for
the robbery, but in accordance with certain
notions of the Judge regarding the evils of inti-
midation, is evident from the following circum-
stances, stated by this respectable Magistrate :
Alluding to another case, No. 208 of tile
Calendar, for an offence of a very odious nature,
in which the prisoner had every assistance, in
which the Judge warned the Jury that death
must infallibly ensue if their verdict should be
unfavourable, but in which the evidence was
strong, and scarcely admitted of a doubt :
" A doubt, however (he observes), was raised, and the
Jury acquitted the prisoner of the capital part of the
charge, and found him guilty of the minor offence. But
in one case of assault and robbery, none of this extreme
caution and solemnity were observed ; none of this assist-
ance and these chances were given to the prisoners. There•
was no warning and no apprehension of a fatal termina-
tion; the Jury did not hesitate, and did not recommend
to m,rcy. But of the Jurymen, as could be collected,
seven in number, signed some days afterwards a petition to
the Judge, imploring him to spare the lives of the con-
victed men, and stating that they were not aware when
they delivered their verdict, that the penalty of death
would, under these circumstances, have been inflicted.
They say, ' If we had anticipated such would be the pro-
bable result of our verdict, we should, in a hope of in-
ducing your Lordship to recommend them to his Majesty',
mercy, have expressed our wish that such mercy might
be extended to them. In discharge, therefore, of a so-
lemn duty, aced in justice to our own feelings, we beg now
most humbly to express our hope that the lives of the
wretched men may still be spared.' To this application
the Judge replied in a tone of reproof, and said he could
attend to no recommendation of the Jury, except when
given in open Court, where he could ask them the ground
of their recommendation.

And in reply to the petition for mercy from Shepton
Mallet, transmitted with a letter from the Sheriff, the
Judge replied, through the Sheriff's solicitor, in these
terms : 6 He considers it a very gross case on the part of
the prisoners, and sees no points for commiseration. He
said distinctly that he cannot recommend the convicts to
mercy. He laid considerable stress upon the malicious
vindictiveness against the prosecutrix, and said it resem-
bles what is now passing in Ireland, where witnesses
and juries are intimidated, and justice and the laws oh
structed by their being afraid of their lives!' Such was
the find determination of the Judge, and the men were
executed.

" The Judge, in summing up the evidence at the
trial, adverted very shortly to the act of robbery. In
passing sentence, he intimated to the culprits that it was
their gross and unfeeling conduct which excluded them
from all hope of mercy. He did not say, This is a
dreadful robbery—we must punish these robbers—roh-
beries are becoming frequent.' But seeing clearly what
the Jury, and the auditors of the trial, and people of Shep-
ton Mallet did not perhaps see, that they bad, by the act
of robbery, become obnoxious to a capital punishment;
and perceiving, what we certainly did not perceive, the
painful necessity of this severe example, the Judge, we
find, taking a clear, sober, and discreet view of these thing.,
eagerly seized the opportunity presented to him of the
conviction for robbery, to attain that salutary object, !hi-
capital punishment of these men for the act of maltreating
a witness."

There' are even legal doubts whether both

men were guilty of robbery, because, though it
may be true, as laid down by Hale, that " if
several persons come to rob, and they are all
present, and one actually take the money, this is
robbery on all ;" yet here 7701Ze of the persons
came to rob, for the design was sudden and mo-
mentary. However, the accused being ignoran
and helpless, offered no argument, and we see
what sort of a Counsel for the prisoner a Judge
is, when he is determined to put down what
he conceives a dangerous crime. The outrage
of itself is sot a capital offence, and the man in
all England who most yearns for the blood of
his fellow-creatures, would not say that for this
trifling robbery, two men ought to have been
hanged. Had there been a Court of Appeal,
and the case been properly argued, the sentence
of this Judge must have been reversed.
" Here (observes this able magistrate) is a verdict—.
Guilty'_' Death'—sentence passed, and the nien hanged,
nominally and ostensibly for robbers;, but in truth the case
tried and proved, that which mainly occupied the minds
of the Jury, and may we not add of the Judge, was net
the act of robbing, but the assault—the assault or outrage,
which alone contains anything of malice prepense or of
serious injury ; whereas the robliing or taking of the
money, by persons well known to the prosecutrix, living
in her neitihbourhood, and immediately identified by her,
does not comprise anything of premeditation, nor touch of
malice, nor does it constitute a great, or by any means an
irreparable injury. As a mere robbery, it is d fficult to
conceive a case more slight and insignificant. It barely
satisfies the law. There is here no deliberation, no fore-
sight whatever. Had the men looked to consequences—
tad they been aware of the Etal precedents to ;-.e quoted
against them—had they followed the Irish ex a:loes, they
had abstained from the act of rum bery, and tie prosecutriz
had then indeed been afraid, not for btr shillings, but for
her life. We are inclined to persist iii eur notion, that
we are warranted in considering the case a, ono of assault,-
although, in deference to high authority, we as,ome the
robbery to be clearly made out. not we cannot !ook
upon it as that sp,cies of ralikery which in practice usually
incurs the penalty of death."
But the Judge has a particulsr o!)ject—he
looks beyond the case beliue Win to Irel
and determines that the intimidation so mischie-
vous in Ireland shall be nips in the bud here.
Here even (although we shall always protest
against Judges being governed in their judg.
tnents by circumstances beyond the immediate
case) the Judge, so far from promoting the ob-
ject he aimed at, has produced a result diametri-
cally opposed to it. " These careless, uncalcu-
lating men," says the worthy Magistrate,'' when
their victim fell into their hands, did not avail
themselves of their power to do their worst : they
spared life at least. And we take the liberty to
add, supposing the protection of witnesses to he
the object in view, that this severe example has
no tendency in its effect to render mete secure
the life of a witness who might NI into the
power of desperate unfeeling ruffians. It is
not, we repeat, any violation of the rules of law
that we feel entitled to complain of on this occa-
sion. It would be enough fbr the law and
for the Judge that these men, in prosecution of
an illegal act, did perpetrate a capital felony :
and robbery without .aggravation is a capital
felony. Let us for a moment throw aside the
robbery as not belonging to the subject under
consideration. ** * The penalty of death
does not seem well adapted to restrain the
evil-disposed from the commission of this par-
ticular species of gross outrage. The evil-.
disposed, who are chiefly interested in ascertain-
ing the probable consequences of their criminal
acts, will study to defeat or to evade the penalties.
They will seek, and they will find, a mode of
committing gross outrages without running the
risk of forfeiting their lives; or, if disposed to
incur that risk, they will be impelled to the com-
mission of worse outrages—even the worst sort of
outrages—and worse oft'ences than outrages, that
is to say, to treat the object of their malignity as
we are told (we fear, on good authority) has been
frequent in Ireland, to murder them. * *
Among the general objects of justice, the redress
of injuries should not, even in criminal proceed-
ings, be wholly overlooked. The loss and in-
jury sustained by the prosecutrix had, probably
in this instance, been compensated, and full re-
paration made to her, because the parties were
neighbours and well known to each other. But
Felony must not be conencunded. She was
compelled to prosecute, and the course pursued
has reduced her to a condition very deplorable.
The reluctance of the prosecutix to come for.
ward, the strongly-expressed opinion of the
Jurymen, the importunity of the petitioners for
mercy, the general opinion of the community, as
tar as we can ascertain it, all indicate that some
obstacle may occur to another conviction for
this effence. We may take the liberty to
add, that Hannah Richards is, it seems, exposed
to annoyance and persecution by the friends of
• he culprits, and lives in constant dread of them.
l'he two remaining men concerned in the out-
rage are known to be lurking about, and being
in distress and incautious, may probably be
taken and brought to trial. In that event, it will be
seen whether this girl can again be induced to
come forward, and by the repetition of berevidenee
strengthen the hands of justice, and help to
snsure the protection of witnesses." Such are
the mischievous consequences of leaving eaten-
,ive discretionary power to Judges, from whose
sentence there is no appeal. The law in this case
is to be found in the temperament or in the in-
tellect of the Judge. If the intellect be weak,
;dorm and apprehension lead to a sentence,
,vhich not being expected, instead of detT,rtpii
rum
who
le,
ng
will no el,lgsetri obceksacacnedsstalrisygttoi ttsh
ethe x
execution
if a law which they abhor. In this way undue
‘eaenty always lead to impunity, We wish the
ease so forcibly stated by this able Magistrate, who
evidently deeply skilled both in the science of
aw in genet al and the laws of England in par-
ictair, were singular. We wish we could say
fiat these two men, thus sentenced to death by
Judge Parke, were the only lives taken a, ay of
late years which ought to have been spared. We
must not leave it to Judges to take life, or to
spare it, according to their caprice. We muss
cot allow them to punish nominally for one
_rime but really for another. But, above all, the
life of a human being must not be deemed of
'mess consequence than a cow's hide. Shame to
he nation which tolerates in a Legislature such
barbarity, as to limit and circumscribe discretion
in Judges on all controversies for a pound or
two, by opening appeals on the ground of mis-
decision, and yet leave to a single being
to uneireumseribed power over human life
One would suppose that life in England was yet
00 more regarded than in the days when the
only protection for life was the paltry price to be
paid for taking it by the murderer. Judge
Parke may be a very good and well-meaning
man, but it is too much to demand for him an
uncontrolled power over life, to be exercised ac-
cording to his notions or caprices. The Ma-
s;istrate of Somersetshire has performed a val:ai-
hie service to the community in thus exposing
the deformity of our most capricious Code.—
MOriling Chronicle.

As a proof that cholera is not confined to
row and damp situations, it is stated th it two re.•idents on
the highest part of the Mendip hills, in Somersetsbire,
have lately died of the malady.