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

THE WRIT OF ERROR.
O'CONNELL AND OTHERS V. THE QUEEN.
j the ?pinions delivered yesterday by the Learned
eundfideserianti,n
the House Ilouse of Lords give rise to a variety of
amongst which the following may be
no
oticed as particularly important :
I. In the case of an appeal, or writ of error, is any
Presumption to be made either in favour of; or against
e legal validity of the judgment appealed from, or is
non
the proper judgment to be given as much open to be
Court below upon the original hearing?
Where the verdict is guilty of all generally, and the
count C .
Is bad, a judgment that the defendants for the
'epees aforesaid be fined and imprisoned cannot. be re-
verted On a writ of error, upon the ground that the judg-
lao
f, at Would have been sufficient if confined expressly to
.°lllats A and B, and that a Court of Error must pre-
!llEae that the Court below passed such judgment upon
'e good counts only—is there any mode of rebutting
Stil presumption, and of bringing to the knowledge of
he Court of Error the fact that the Court below had,
rfore they gave such judgment, held upon motion in
rest of judgment that the count was good ; nod if not,
w can the act upon a presumption which cannot be
rebutted ?
i° 3' Would it make any difference if the Court in pass-
g sentence, should have actually commented upon the
ell'"rulitY of the offences charged in count C, and the
!I:Fat dantrer in which the public would be if such
°fleeces shouldb be allowed to go unpunished, and should
then h
re aye proceeded to pass the sentence upon the de-
udant—therefore, for the offences of which you have
rebAo found guilty you be imprisoned, &c. ? or could such
"'"gaient, if in writing or print, be judicially brought
t° the knowledge of the Court of Error ?
Would it make any difference if the writ of error
v!• e brought on the judgment of a criminal Court, in
%Lad' the presidinc, judge had been a Peer of the realm,
id it were admittede' by that Peer in his place in Parlia-
"at, that he had entirely, or in part, given the judg-
wen
:--and passed the sentence upon the bad count ; or
.euld the effect of the legal presumption now under
makussion be such as to constrain him to adopt the pre-
shatuPtion that he had rejected that count, when in fact
%had acted upon it ?
hal* Suppose jt to have been founded on the
Ce.eelints in an English Court, would it be the duty of
vt, Judges who had given such judgment to advise the
"ause of Lords to presume that they had not founded
thei judgment% on these counts ?
in; would the same doctrine of presumption be made
or ease of a judgment of a Court of Quarter Sessions,
any inferior Court of record ?
after is a motion in arrest of judgment made before or
c the sentence is passed ? Is it a motion to the
count
to review its own judgment, given upizT a bad
1, or an application to, the Court to abstain from
Passingjudgment for the offence charged in such count ?
ar. The following appears to be the form of the entry
:albarrest of judgment in a civil case :
tionr t because it appears to the Court that the declara-
kir,a not sufficient in law for the plaintiff to have or
tn"ta in his action against the defendant, therefore.
is Zang to give.judgment upon the verdict aforesaid, it
the to the parties by the said Court, that they go
reot without delay."
there not also a proper form of entry in a cri-
angeal ease, where the Court holds the indictment, or any
th of e counts, bad in law ?
io.n9: Is not the form of judgment given by Lord Hale,
" Pleas of the Crown," vol. ii. pp. 394, 395, the
fil• lor which ought to be adopted in such case. Ale says,
the . where the prisoner excepts to the insufficieny of
tile indictment, or the Court does it ex officio, the judg-
er:it is special, quod indictamentum ob insufficientiam
lit ?r, et quod the prisoner eat znde ad prcesens sine die?
do 4 ;48 not a motion in arrest of judgment an aptalica-
ker,,`° the Court, calling on it to decide that no judg-
ttli; eau be given upon the indictment, without regard
or r, e, form of the judgment, whether on all the counts
wh'n'Y on some ? Is not the question on a writ of error
be :„ther the judgment, in the form actually given, can
jud—stained ? If so, can cases on motions in arrest of
on P'aient throw any light on the questions to be decided
°f error ?
Mier if there is a form of entry in a criminal ease,
eour„.° the Court holds an indictment, or any count or
the C' bad in law, can a Court of Error presume that
enan,-ourt below gave judgment only upon the good
that ttt. where there is no entry upon the record to show
aidere "a Court below, upon due consideration, have con-
hiseaUtr any of the counts insufficient in law ; but, on the
„,a._l7, have given judgment that the defendant, for
'l37,.flees aforesaid, be fined and imprisoned, &c.
lion would it make any difference es to the presutnp-
hare." he made by the Court of Error, if the jury should
• eelttally found by their verdict, that as to the pre-
-4:8 Charged in the count C (the bad count), the de-
Petir444 are guilty thereof; and such finding should ap-
reen,,,uPeri the same record on which the Court below is
that'd to have given judgment, or passed sentence,
rod • the defendant, for his offences aforesaid, be fined
fineprisoned, &c., without saying anything as to such
Ltug upon the bad count ?
623 rill the case of the King v. Holland, 5 Term Rep.
ap‘.,•'-dord Kenyon is reported to have said, Mr. Adam
kit,ar that three things ought to concur in every en-
he a Proceeding—first, that the party accused should
P
thQ ?rised of the charge he is to defend ; second, that
hnh—ourt
might know what judgment was to be pro-
according to law ; and thirdly, that posterity
44010 what 17410 is to be derived from the record.
if tVe are,general propositions, to which I assent." Now,
Is be the law, how can posterity derive any know-
liage from the record of the Court below as to the va •
ty of the count .C, and whether it charges an offence
knot?
o_ls. If the presumption of a Court of Error is that the
j'-'oll.ltrt gave judgment upon the good count only, and the
h„a_elnent be affirmed upon that presumption, how will
Z4erity derive their knowledge of the law from the re-
the of affirmance ? Will the record of affirmance by
rho Court of Error specify' the counts which are good and
that Which are bad, or will the judgment be general that
itatigglent below be affirmed
jret'. As the record of the Court of Queen's Bench in
els:ald how stands, can Mr. D. O'Connell, or any one
ttle?l,artY for what offence he is now suffering imprison-
been' a,niess it is for all the offences with which he has
bed enarged by the indictment, and of which he has
found guilty by the jury ?
SURREY ZOOLOGICAL GARDENS.
e • .
gad visited these delightful Gardens lest evening,
ketZere highly gratified at the manner in which
titide "en's " Battle Symphony" was performed
Piee the able direction of Mr. Godfrey. This noble
c'f music should be heard in the open air, in
t° have its effect properly appreciated. These
ati4t4 Were admirably brought out last evening. The
volii,g of the cannon, and the frequent discharges of
Deres of musketry, gave a vraisemblance to the
140t;t1lance, which must be wanting under less
al", bible circumstances. So perfect was the illu-
Nis, that we could almost fancy ourselves jin the
°f a heav fight. The manner in which the
attie
treat Symphony" has been got up reflects the
the' est credit on Mr. Godfrey. As last night was
distltliversary of the Fire of London, the pyrotechnic
ltatpr during the conflagration was of a more than
Pre'Y brilliant character, in commemoration, we
dice e, of the anniversary. The gardens were, as
Ix4ll;ave been every night this season, crowded to

d-
-1444,1'1E1,D 01' BARLEY' SET ON FIRE.—On
tritius'y forenoon, at a quarter past ten, as the first down-
the
- was Passing through a cutting of about five feet
itt4tParish of Rivenhall, half a mile from the Witham
ley till' a Spark from the engine set fire to a field of I:Tr-
ti-T:cl'ging to Mr. Upson. The barley was very ripe
Lot iZeut, and a heavy crop both of s. raw and grain,
'et% ss
than seven quarters per acre. The flames passed
by a!' the field with great rapidity. till they were stopped
%sae hedge or bottom of the enclosure, which fortu-
tity/ was a distance of only eighteen rods. The quan-
tlichS,°asurned was about two acres, and altogether, in-
-404 -1 ~the straw, the damage sustained is not less than
'''QBBex Herald.
Iraq. °a-r STORY, WITH A MORAL.—A young
rich-c,e had formed an attachment for a daughter
hoonfniae
Iliasi:4l farmer, und, after agreeing with h •
the ' Went to the old fellow to ask consent, and during
110 ceremony, which was an awkward one for Jonathan,
41,Whittled away at a stick. The old man watched the
titlZtitleuts of the knife, at the same time continued to
%tip 1113011 the prospects of his future son-in-law, as he
_
therl;csed, until the stick dwindled down to nought 1-.1
hitl7,,Pqke as follows :—" You have fine property, you
bay; steady habits, good enough looking, but you can't
tset; taY daughter ! had you made something, no
Ilsv;ekr What, of the stick you whittled away, you could
to her ; as it is, you cannot. Your property will
your i.the stick did, little by little, until all is gone, and
qieLittraily reduced to want. I have read your true
liThter you have my answer." Jonathan conveyed
getts-gaPPY news to his anxious fair one, who, after
Yoia-flt the story, burst out'a crying, saying, " Why,
litter 'aroal fool you, why did'nt you say you'd made
ha
4stf.°l4,'t, if nothing more ! Git out ! I'll marry t
...„4
w that points his eye at me—l will, so boo-o-o-o.
17,14erican Paper.
tlieha4ll I)IEMEN'S LAND.—At Hobart Town, Van
away 11 Land, on the 29th of April, Mr. Gregson was
Kr, beg, 5,0001, damages by the Supreme Court, against
;.14trp,;),°'80n, both merchants of the colony, for falsely
"elni."-D"g the plaintiff by letter to the Governor, Sir
Atto,.' rattklin, with perjury and forgery. Mr. Welsh,
Qov„;rltY-General of the colony, was suspended by the
-,112r, fur fi.hting a duel with Mr. Macdowell, also
itt r. [They -manage these matters differently
kith •reiaro.
and. Here an Attorney-General may
State perfect; impunity, whilst conducting a solemn
defend Prosecution, challenge the counsel for the
the.4rtt to mortal combat, even in the presence
'lthi "art, and whilst that counsel was engaged
Illtt his
to the jury on the part of his clients !
111,48",:, !he Antipodes, although we hear much of the
~slthdl,„tte, of manners, no such license is permitted ; and
in
this distant colony there is no State Gave' an an Attorney-General is at once suspended by the
GeN-r:uer for doing that for which the Irish Attorney-
atsaiirvVls lauded by the Tory faction. It is likely
"ha Franklin had not heard of Tom Smith's
17Ni and of his being allowed to continue in office,
-"'bot••
It:susPeoded his own Attorney-General.]—Dublin
19 ost.
ITnin,„LWAY.--Measures are in active progress for
I•wil, a communication through Bury, from the
kilthd Eastern Brandon line, at Thetford, to the Northern
thinZorunt zstitxtilefiwport: This line will place Bury
sixty-fire miles of London,"and be shorter
tn 1113rwich th by about tent -two miles, and
qiiitehester byanitlal:uEt Ely
ight(Tn miles.) A prospectus
o„isatted without any unnecessary delay, but not
11111,4,,Ythin folk connexion with it is fully and finally
'''""No Chronicle.