The Sun.
London, England, 1844-09-03 00:00:00

passed on any one count, the Court of Error couq
not interfere, because it could not tell that the judg-
ment bad not been passed upon the goad
count. This must be the case in capital of-
fences, and must also be the case where tie
amount of punishment was fixed by law; and he
could not see why it might not be so in cases
where the punishment was discretionary. They were
called upon to assume that judgment had been passed
in respect to each count, and then to suppose that each
count had bee'i properly constructed—that was the
meaning of t'ne words this present judgment for his
offences aforesaid. It had been said that a hardship
would be inflicted on the" defendants, because they
could riot, if again indicted, plead autrefois acquit or
autrcitbis convict. With the good Count'; that could
create no difficulty, and it was a fallacy to suppose it
wouldcreate any difficulty with the bad ones. It did not
lie in the mouth of the prosecutor to take advantage
'of it, and as long as the conviction remained, that
would be considered as good, -be the counts never so
bad. Something had been said about the possibility
of a pardon for some of the offences, and not for
others. That argument went too far, for it went to
show that a general sentence was always bad, even
although all the counts should be good. There was
the case of the Queen v. Young, and a stijt stronger
case the Queen v. Powell, reported in 3 Bar-newel' and
Adolphus. In this case there had been two counts in the
indictment, one for an assault with intent to commit a
rape, and another for a common assault. The verdict
,was, we find the prisoner guilty of the misdemeanour
and offence of which he is accused. The point to be
decided was whether these were nomina collective,
and if not to which of the two counts they applied,
because if they applied to the second only the judg-
ment which included hard labour was illegal. The
Court held that they were nomina collective, and
applied to both counts. That was a strong presump-
tive argument in favour of the judgment being good,
provided there were one good count. Assuming the
judgment to be bad on the Ist-, 2d, 31, Gth, and 7th
counts of the indictment, still it remained an entire
and good judgment on the other counts of the indict-
ment, and could not be reversed.
Mr. Justice Niacin': then- proceeded to read his
judgment. In cases in which the law had fixed the
limits of the judgment, and had left no discretion to
the Court, the Court in passing judgment could look
to nothing beyond the law and the record, but in
'cases in which the law had left a discretionary power
to the Court as to the amount of punishment the
Court would and must look beyond the record, for if
it did not there would be no reason for the discretion
which had been left to it by law. Jt was moreover
the practice to look beyond the record in such
'cases, and it was usual in passing judg-
ment to consider the evidence which had
been given at the trial. In cases, also, in which the
law, only showed the kind of punishment—such, for
instance, as fine and imprisonment—and left the
amount of such fine, and the duration of such im-
prisonment, to he awarded by the Court, it was usual
for the Court, in deciding on its judgment, to consider
circumstances which did not appear upon the record
Wit;irespect to the question whether the record found
4ny offence, and what the judg.nent should be, as no
seore was necessary to determine those questions than
z right construction of the record, and a knowledge
.of law, they were fit subjects for a writ of error, by
which the record was brought before a supefior court
of. law. But the question of the amount of
punishment was not the. subject of a court of
error, which had not —l7o,re it the evidence
given at the trial, or the other matters
which determined the amount of punishment. It ap-
peared to him, therefore, that When the record showed
that the defendant had been convicted of an offence
1()r which he was liable to pay a fine, and to be impri-
soned and find sureties, there was no ground for re-
versing the judgment, but there were other parts of the
record upon which, if they stood alone, the judgment
could be passed. If it were otherwise, it might well
ba that a judgment would be reversed by
a Court, of error, which, in the case of
the Court below, would have subjected the de-
fendants to the very same species and amount of
punishment. He thought, therefore, that upon the
record, neither in the case supposed by the third
question, nor in that supposed by the 11th, could the
judgment be reversed by a writ of error.
air. Justice COLTMAN said- the Lord Chief Jus-
€ce of the Common Pleas having delivered
the unanimous opinions Of their Lordships ex-
cept as to the third question, and . the 1 1 th,
it was unnecessary that he should advert to

any other than these two. 'the third-question had
already been read, and therefore he should not repeat
it ; and to that question he answered that, in 1-1;s
bumble opinion, there was sufficient ground for re-
verting the judgment by reason of the defects of the
indictment, and by reason of the defects of the find-
ing. of the jury, and the judgment thereupon.
And he grounded his opinion on the reason
which would be given at length in the answer to the
11th question, which reason had been referred to,
and which appeared to him to apply to all the defects
to which the question referred. To the llth ques-
tion he answered that, in his humble opinion, where
an indictment conz,isted of three counts, A B and C,
and counts A and B were good, and count C bad,
and judgment were given against the defen-
dant for the offences
....charged, that he be
fined and imprisoned, such judgment was insufficient
in pint of law, if confined expressly to the counts A
and B, and ought to be reversed on error. He was
well aware that a contrary opinion had existed gene-
rally among the members of the legal profes-
sion. But there was, he thought, no difficulty
in seeing what was the reason of this ge-
neral impression ; and when they looked for
any authority to support it, there seemed
to him to be little or none. The authorities relied on
arose on motions in arrest of judgment. The expres-
sions used referred to the state of things before judg- '
ment was pronounced. They Were quite true as ap-
plied to criminal proceeding:A in that stage, but the case
might be different after judgment was given.
The authorities relied on were tEe Queen r.
Ingrain, Grant r. Aspen, and the King
r. Bedrick. llis opinion was, --that though
the principle was true, with reference to that stage of
the question, it was not true with respect to the case
of a writ of error after judgment had been recorded.
The former had been made to the case of Young
and others, in which two ciunts were gOod and two
bed; and in which the judgment was held to be goad,
notwithstanding the badness of two of the counts.
But the objection raised to th, se counts was
noticed in that judgment groundless, nor
did it appear to hsre been at all insisted upon in
argument. Therefore it was to he considered, not as
a decision, but as a precedent only ; and in a Court of
Error, where the question now arose for the first time,
it could not, he thought, be considered as a binding
authority. If they considered the question on
principle, the argument in support of the
sufficiency of the punishment seemed to him
to stand thus—when there was but a single count in an
indictment, as was the case in -old times, although it
contained several idle and superfluous allegations, yet
if it contained sufficient pertinent matter to sustain a
criminal charge, the Court was warranted in passing
judgment on the whole count, and passing by the idle
matter ; and in like manner, now that it had become
usual to insert many counts in an indictment, if there
were one good count and others which were bad,
the Court might treat the bad count as idle and
superfluous matter, and passing it by without regard,
give the appropriate judgment which was united to
the good count. The practice at the assizes was in
conformity with this view of • the case, when it was I

riot customary to do more than give a general judg-
ment in the indictment Vtithout stopping to consider
whether any counts were bad in point of law. But
to this view of the case he should answer, that he did
not consider the case of an indictment in a single
count, containing some i lle and superff uous
could be placed on a footing with an indictment con-
taining superfluous counts—some good and some bad.
For in the former case, the indictment professed to
contain one criminal charge only ; in the latter, it pro-
fessed to contain several distinct charges in each count,
as in the nature of a separate indictment. And he
contended that the defendant was entitled to know on
which count he was sentenced ; and the reason why
he was entitled to claim that right was, that if con-
victed_ ofan offence on an insufficient indictment, and if
judgment was passed against him, he might plead the
conviction to any other indictment as the same
charge. In the case supposed, if the defendant were
indicted for the same offence, and that it were in-
sufficiently charred in count C, how was the Court
to deal with t
whether the partinyi.cilastae_—how were they to know
bsuffered the sentence of the
law or not ? It
sssid that the Court had
only to look to the originalCourrtecord and that they
must be aware that te
in passing
sentence, was aware of the defect in below,t and
did not pass any portion of the sentence Ahcoruesnflt';‘ct
to
it. That reasoning might be j ustythe Court were
infallible; but the presumption that the Court had
not committed an error was not a safe one to aat upon,
and might be directly at. variance with the fact.
Surely there ought to be some snore safe ground on
which to judge of what the Court had done. Every
record ought to state expressly and explicitly what
had been done, in order that the party might not lose
the benefit of the plea which he was entitled to, and
that the Court of Error might be enabled to see whether
there had been an error committed, and to-redress it

if it ex"sted. Lord Coke said, in the Third Institutes,
p. 214, that in the case of an acquittal the Judges
ought before judment to look into the old record, and
upon due consideration thereof to cause it to be en-

tired. It was said by Lord Hale, p. 293, vol. ii.,
that where the indictment was insufficient it was

reason to have quod eat sine die special in the cause,
and then the acquittal was applicable only to the in-
sufficiency of the indictment. The remarks of these
two eminent judges were made with reference
to the entry of a judment insufficient in fact.