The Sun.
London, England, 1844-09-05 00:00:00

°Pin-lon upon the goodness of the counts before the k /livery of a verdict. No inconvenience could arise; I
on the contrary, he thought great good would be pro-
duced from their adoption of the practice. In his
opinion there could not be a greater grievance
and oppression than these endless, unintelligible,
unwieldly, voluminous indictments. An indictment
extending over fifty-seven pages was itself a grievance ;
many prisoners could not afford to pay the clerk of
the peace for a copy, and, when they got
it, the most learned persons could not find out with
what the prisoners were charged. The words were
so ambiguous, that it might be that the
pleader who drew it up might mean one thing, the
Jury another, the judge a third, and the court of
error a fourth, if they did not overthrow the whole
judgment. There was also a mistake as to the prac-
tice of the Court of Queen's Bench in this country.
It was said that when an arrest of judgment was
moved on one count, the court was in
the habit of refusing if there was an-
other count which would support the verdict.
Had that been so in the case of Feargus O'Connor ?
He had been convicted on two counts. The Court
had heard the argument on one count in arrest of
judgment, and had granted it, and then had proceeded
to hear arguments on another count, which was so full
of verbosity and ambiguous expressions, that the At-
torney-General discovering the great doubt which the
court entertained, had never pressed for judgment.
No inconvenience could arise from adopting the cor-
rect practice. In a case of conspiracy which he had
tried at Guildhall, objection had been made to a count.
He said it was immaterial, as he was not going to pass
judgment then, but had he been going to do so, he
should have considered the goodness of the count, also
where there were several counts on each, saying, " We
apportion such and such a punishment to such a count,
and such and such a punishment to others."
And thus it would be reserved for the after-considera-
tion of the court how far the objections affected that
judgment. Such was the practice of the Court of
Queen's Bench, and the proper mode, as it seemed to
him, of proceeding. But his Noble and Learned
Friends said that the objections were merely technical,
and that no injustice could arise from the course that
had been followed by the Court below. Now he
must say that he thought there would be the greatest
injustice. The case was not the same as if some irre-
event stuff had been inserted which imputed
offences. But it was impossible not to see
that if there had been three or four indictments, some
of them bad, and the court had passed judgment on
all these, the case would be the same, and there would
he the greatest injustice, for the court might pass
its judgment on the strongest clauses, and then the
bad ones. The first case, which was relied on by his
Noble and Learned Friend was, that of the King v.
Powell, where the defendant was indicted for two
offences—assault with a certain intent, and with a
common assault. The jury foun I a verdict generally,
and a writ of error was brought on the ground that the
defendant was found guilty on two indictments. Now,
there was one remark which fell from Mr. Justice Taun -
ton, to which he (Lord Denman) wished to direct atfee-
tion. That learned judge said that there were not
two indictments, that there was but one act charged,
and that the defendant was found guilty of only one
offence. The words " misdemeanour" and " offence"
comprised both the counts, and formed, in fact, a
siomen conjunctium applying to one act. He thought
that the decision of the judge separated that case frcen
this appeal. The next case relied on was that of the
" King v. Rhodes" for subornation of perjury. Some
of Le counts were deemed bad, because there were no
assignments of perjury in them. The view taken of
that case by the Lord Chief Justice Holt was, that
there was only one offence, that of perjury, and
that it was no matter what were the assign-
ments. Now to him Lord Denman) that answer
completely removed the case from the present argu-
ment. The next case was an indictment against a man
and his wife for assault. There the objection was
somewhat of a grammatical nature. In the first put
of the indictment the singular number was used in the
words " vulneravit et verberavit." But on the hitter
part the error was corrected, " vulneravesunt et
verberaverunt." In that case Mr. Justice Parker held
that there was only one count, and that the verdict
was rightly found. These were the only cases which
were relied on, and these were all the authorities on
which the state of the English law before Lord Mans•
field was affirmed to be in support of his Noble
and Learned Friend. But they relied further on cases
which occurred since. Let them first, however, consider
what was the weight of Lord Mansfield's general
dictum. His Learned Brother, Baron Parke, with more
doubt than his subsequent argument seemed to war-
rant, had shown their Lordships that it was not of
great weight as applied to this case. He (Lord
Denman) concurred in that view. He would come
now to the causes which were afterwards cited. The
first was the "King v. Hill," Ist Powell and Ryan; that
case was relied on, but he could not see what bearing
it had on the present case. There were several
counts; they all charged one offence and some of the
counts were objected to. The judge said that he
would reserve the objections, but in the meantime
would pass sentence, and if all the counts were found
bad judgment would be arrested; but if one
was good the sentence would be carried into
effect, but that it was the practice of
the Court of King's Bench to take care
that no verdict should be taken for Crown on a
bad count. The next case was that of the " King v.
Mason," an indictment for obtaining money under
false pretences, for which the punishment was dis-
cretionary—either pillory with imprisonment, or
transportation. Now it was admitted that in the
indictment two of the counts were bad; but it was
evident that there was great want of distinctness in
the case as an authority, for the learned reporter
himself said in his marginal note that judgment was
arrested. That case, however, was very different
from those in which the successive counts contained
cumulative charges, which would lead to greater
punishment in the discretion of the court. Now he
thought that in those cases, where there were bad
counts, the discretion might be ill exercised, and he
thought the court was bound to arrest the
judgment, lest it should appear to have been
awarded on the bad counts. The " King v.
Young" was no authority on the point, although it
was relied on by his Noble and Learned Friends. But
there the court only refused to arrest the judgment
in the way stated, because there were good counts in
the indictment, but it is relied on that because no
writ of error was brought the decision of the court
must be taken as conclusive. Yet, there was actually
no means of trying in what way the judgment was
entered upon the record, nor was there anything
whatever to show whether a writ of error could or
could not be brought. His Noble and Learned Friend
said that the point had never been decided by a
court of error, and, therefore, it was only difficult to
make out any authorities upon this very doubtful,
very loose, and (he would say) very censurable
practice. His Noble and Learned Friend said
this was purely technical in its nature, and
that the effect of it would be, that if a party
were found guilty, not generally upon such an indict-
ment, but upon the good counts only, he would
not be able to defend himself in case of any
other charges being brought against him, by
pleading that he had been already punished ; for
the answer would be "No," because he had
not been punished on the imperfect counts.
What was the answer given by one of the most acute
and learned persons he had ever the good fortune to
meet with in an argument ?—let him observe not
stated with any doubt—it was stated by Mr. Justice
Coltman, whcse plain and manly understanding
brought the question before them in a way that
could not be doubted. He said it was an injustice
that a person should be punished who could not plead
that punishment against being punished a second
time on the same state of facts. What was the
answer of Mr. Justice Patteson to that ? He said
that the proceedings would be estopped. Why were
they not estopped now, a conviction having taken
place on this indictment ? Now, again, there would
be a difficulty in calling on the judge to decide at
the assizes whether a count was good or bad; and
they were to assume that he did so decide,
and they were to get rid of that question,
whether the decision was good, because he did not so
decide. They were to have it both ways. They
were to assume it was too difficult for him to give his
mind to the subject at all, and they were to say that
he had apportioned the judgment on those counts
which were good in point of law. He thought when
they got rid the
indista'kensuapnpdosedf authorities, the dicta
founded on a
aun unfortunate observation of
Lord Mansfield, that the principle would a earp
altogether unsatisfactory, and he thought whenPtheg
looked at the record itself, without at all adverting
to the other circumstances of the case, it would be
found that judgment was pronounced on counts
stating no offence, as well as on counts stating
that there had been offences upon which there were
erroneous findings entered up, and that therefore
the judgment of the court below had been incorrectly
passed. He stated again that this point overpowered
him not only with its novelty, but with the clear and
demonstrated force upon which, when he came to the
examination of the arguments, it rested, and he took
up, therefore, the principle on which he thought they
could only set aside the Judgment of the court below,
namely, that what had been done by the court below
was not properly, done. He regarded the Court of
Queen's Bench in Dublin with the greatest possible
respect, and he had the highest opinion of the talents
and endowments of the learned judges of that court.
He had still a greater veneration for the opinions of
his learned brethren here, with whom he acted,
._ and for whom he entertained the greatest pos-
sible respect. He acted there, however, as a
judge for himself, and he felt bound in duty to ex-
ercise his judgment on the reasons brought before him.
He thought that the reasoning in support of the judg-
ment was not good in point of law, and it was his
duty to vote
again t the motion of his Noble and
Learned Friend.