The Sun.
London, England, 1844-07-05 00:00:00

THE STATE TRIAL-S.

WRIT OF ERROR.
MOUSE OF LORDS, July 4.
THE QUEEN AGAINST O'CONNELL AND OTHERS.

•

Sir T. WILDE (in continuation from our Afternoon
Edition ofyesterday) said—What is the foundation of the
difficulty here? Cannot s different judgment be given on
different counts, even.on parts of a count and parts of a
plea, supposing the judgment to be dissimilar, in a ques-
tion of this description, where Sentence. is passed, and
which still may or may not be supposed applicable to
each of the counts? That a judgment ever passed which
was applicable to all the counts upon which it was
entered, I very much doubt. But most extraordinary it
is that a
.prisoner is to suffer under sentence, which, as
appears in the record, is applicable to three or four
several offences, and that he was to be told when he ap-
pealed against that sentence, that a surmise would be
made tliat it was intended to be 'entered on that which it
wasnot. Suppose there be three counts in the indictment,
anti that the Court of Queen's Bench holds the first to
be good and the others bad—that the Curt of Ex-
ch•qu7 r buds one to be good, which the Court
Queen's 13,!neh has pronounced bud, and that your Lord-
snips dt,eitie that that count is good which they both
pr. mounce co he ba 1, tr.nd that the oth,,r two are bad.
What is to he 111, inteochment? It is perfectly
e that there should be any intendment at all. It
wolld ne.pt.r:ectly at surd that if a man was eonvt:ted on
eleven counts, and suffered sentence, and that a Court
of Error found possibly one of the counts to be good,
Ow he, sh..add suffer under the accumulated sentence of
the eleien counts, ,etch contai:,ing ,riff: rent offences,
'F is no f•aniatioa for it; and no authority can be
pro:ltfori f,r ,t. Whenever a court cif law has refused a
motion for at rest-of judgment on bad counts, it assigned
for a reason that judgment was given on the good counts.
Lord CAMPBELL said, is there no case of an error after
judgment ,?

Sir THOMAS WILDE—No, my Lord, we have sent to
the Crown-office, and we believe there is not one. What-
ever be the intendment it cannot be doubted that there
may be indictments for several distinct offences, that
some of them may not legally subject the party to pu-
nishment, and sentence be given on the whole.
At this period of the argument, the Lord Chancellor
and some of the Judges retired for the purpose of refresh-
ment. On their return
Sir T. WrLuc re,umed his argument as follows—l
-was stating to your Lordships that I was certain no au-
thority could be . introduced for the extraordinary
proposition, that, where judgment was entered
upon ate - indictment in which a writ of error
would issue, it was shown that some of the counts
were good and some 'of them were bad, the
judgments should be considered as entered upon the
good counts, and not upon the bad ones? Suppose your
Lordships should decide that the sentence passed
WAS applicable only to some of the counts, and
suppise Mr. O'Connell to be again indicted upon
the counts which were decided to be bad how
could he plead autrefois convict—a autrefois convict ?
On this point I will draw your Lordships' attention to
the case of the " King v. Wolf."- In that case a jury had
been allowed,, to separate, in a case of misdemeanour.
In the morning the defendant's counsel had objected to a
'continuance of the proceedings. Lord Tenterden, who
presided, said he would not stop the case, but that he
would take care to have the fact stated upon the record.
The defendants were convicted and sentenced to two
years' imprisonment, and a fine of 10,000 L A writ of
error was brought, and Sir Charles Wetherell appeared
to argue the case before your Lordships. The indict-
merit was produced, and on the postea it was entered that
the Court had been duly adjourned. Lord Eldon imme-
diately stopped the case, saying that he could look only
to the record----that whether the jury separated or not,
w
as a qtr stion they could not enter into, as the record
stated that the Court was duly adjourned. The writ
was dismissed, and the parties suffered the imprisonment.
I mention this to show hoW implicitly your Lord-
shill hold to the record even when it may be
equivocal as to the purpose for which an entry wasmade.
Now, I ask, how would your Lordships deal with a plea
of autrefois convict if put in by Mr. O'Connell, with
regard to one of these bad counts ? How would you deal
With suca a plea if it were brought before you on writ of
erro.. and the record showed a conviction on that count?
Why, a counsel would be unworthy to stand before your
Lora-hips who should attempt to argue such a plea in
the lace of such a record. Suppose an indictment for
perjury and assault—an indictment on two counts—sup-
pose the party convicted and again indicted for one of
the offences. He would plead autrefois convict.
By aad ny the man produces-the record of his, conviction
of perjury and assault, he suffers the punishment—
thl House, in such a case, deal with it otherwise
than stated in the record ? The truth is, the record
must be dealt With as it ' was found. I cannot
produce it in order to show that in point of
fact the Court pronounced a judgment of a
particular kind, because that was not admissible. If it
was tnund that the counts were good which we say are
bad, the intendment will be the same. There is no case
which. an intendment is given, except upon the state
thetas of the record, and your Lordships cannot give
judgment -in this case, except upon the statements in the
record In the case of the King and Fuller, that was an in-
-dietment charging the defendant with attempting to get
seamen front the service; there were several counts in that
indictment and several objections. There was an objec-
tion made to onecount in particular, and upon that a mo-
. tion was made in arxest, ofjudgrnent, but it did not succeed.
Now•ztljthe Present caseitisUbmit that the several counts
have ri,cbsegteti to are noingcrod in point of law. Ido
11000esn to admit that the• other counts are good, be-
cause apprehend the objections I have urged to
the„ othi, r :,Counts -will equally apply to them.
I have •now. lladdressed your Imrdships as to
the effect of the general judgment -upon the good and
the bad counts ; and I will now refer the House to some
authorities, to show that counts in indictments of such a
general nature have been continually held to be bad.
The Learned Gentlemen then referred to Hawkins's
Pleas of the Crown, Curwood's edition, and the
3d Institute, in order to show that general counts
in an indictment were held to be bad. In the
case of' the " King v. Richardson," in Ist Moody
and Robinson. the parties were indicted for a conspiracy
against Sir Henry Parley. The case was tried in the
county of Somerset. The indictment charged that the
defendants did conspire, confederate, and agree
to cheat the said Henry Parley, and certain overt
acts were also stated. The overt acts not being
proved, at the close of the case for the pro-
secution counsel for the defendant observed that the
count could not be sustained, inasmuch as the count was
too general, and stated no specific act by which the
Court could judge whether the conduct of the defendant
was unlawful or not. Lord Denman said, "My opinion
is that the indictment it: bad in point of law. The alle-
gation is too general, and it does not convey any
specific idea which the mint can lay hold of to judge
whether any unlawful act has been done or not."
My Lords, my great objection to this indictment is, that
it constantly introduces terms such as those which the
Noble Lord here refers to as indefinite, and having no
legal and precise meaning. Reforence was made in the
case I have just cited to the case of the "King v. Gill," 2,1,
Barnewall and Alderson, a 'case which is so often
referred to on account of its laxity, that
it is hardly to be considered an existing authority.
The Learned Counsel then referred to the case of " The
Queen v. Parker," tried in the Central Criminal Court. In
that case the object of the conspiracy charged had been
accomplished. The indictment charged that the parties al-
tered into a conspiracy with each other and with ether per-
sons, by divers means, to acquire and obtain goods from divers
liege subjects of her Majesty, and to cheat and di:fraud her
! Majesty's subjects by false representations, and that the
defendants received the goods which had been obtained
by false pretences. The jury said that the parties
had, by means aforesaid, unlawfully, gained possession of the
goods, and cheated and defrauded their owners. Now, in the
present case there is no mention of the persons to be in-
timidated ; there is entire silence as to the means by which
certain ends, and those not ordinary ones, are to be accom-
plished, and the generality is infinitely' greater here than in
any of the cases to which I have referred. • In the " King
r. Cooper," 2d Strange, there is the case of a person in-
dicted for stirring up strifes, quarrels, and disturbances
against his Majesty's subjects. That was held to be a
bad indictment. The indictment in this case was for stirring
up Irish subjects against English subjects. In the " Queen
v. Rowell" a number of per Sons were indicted for conspir-
ing wal agreeing with one another to do certain indecent acts
in a public place and in the presence of her Majesty's liege sub-
jects. Mr. J ustice Patteson said "he could nut admit an indict-
ment f r treas9nable, or for indecent or other bad practices
to b,+ co.iveyucl iu such loose terms. Front such words used
in co,n,non p.triatice the specific offifrice flight ,be inferred,
but those loose words could not be admitted into a legal do-
cument." Mr. Justice Williams and the other Judges con-
curred wi h Mr. Justice Patteson, and their judgment was
respited.
Lord -BROEGHAM—What are the words of the indictment
—I mean what are the adjectives used to describe the in.
decency ? •
Sir T..WiLnE—My Lord, the words are very offensive. They
are " to do certain indecent, lewd, nasty, and unnatural acts."
' But, notwithstanding all these words, the Court held that the
indictment was -too loose, and could not be sustained. Such,
my Lord is the general doctrine, and there are, a great
many, other cases similar to those which I have referred to;
but I will not now trouble your 'Lordships with them, i
stated to your Lordships that, in the case of the;,
Fuller," it was argued that the Court would give t 4
upon a good count, although the other Onhtlta worts bad. In
the case of the
," Queen v. Ingram, The Court held that time fine
could not be inflicted upon good counts, the Others being too
general. That case Is reported in Salty. I will now beg to
refer your Lordships to the case of " Grant v. Astell," Ist
Cooper, page 776, in which the decision was the same, The
position which I wish to present to your Lortiallipa Is that
the indictment consists of several counts which are bad by
means of their vagueness. Sonie cf these counts do hot
chary, nor any pretence te-i. legal
stitute any legal_ con
charge.
Other ceauta are expressed in too general terms to must auto a
isglileharge, and the judgment Which 9s_pilissed LT.. .11 these
t
counts cannot be sustained in pointho nt`olfaoy,,
nT judgment
has been passed for a greater
charged in the fth ces than were
4.l4ictlfletl6-ir grilleatrer number of offences
than the 404114;14111s had pleaded guilty to. I must call your
14oisiships' attention again to the first count. It first sets out
some overt acts, omitted in the next, although in respect to
oneral charges the first and second counts were the same.
ow, I must call your Lordships' attepM9,4l 1a this first count.
The charge is that the defvtle,.-Aia. oonspired and agreed with
each other and yi:ith divers hiller persons unknown to raise
eoitte ilikontent and dissatisfaction amongst her Ma-
jesty's liege subjects stir up hatred and curl;
tempt of her • Majesty's Government—to ko,vcd
I\ll4e
and jealousy in the minds of key, -sty's Irish
subjects towards their Ff.,ngliA Atilo;nr,Flefes, amid v., -
discontent ill tlvi Atto.: -1.4,-(.t „,„;,
tfiw, 0,111-4 which • chairs on. .-
acts, and to aeompllsh-
doubt, .mv t - *