The Sun.
London, England, 1844-07-09 00:00:00

:rause they had given their verdict upon both manta.
tWhat, then, became of the case ? Supposing the
:ury had given that verdict, and the writ of error
-was brought, it would award a venire de novo, so
that the case would be sent back to the jury to assess
the damages on the count that was good. That was the
course in civil cases. But what did his friends propose in
criminal Oa. e ? Why, that the record thiiuld be Sent
back to Ireland. The analogy would be to ask "the
court of error to send the record back to 'the 'eVitft. be
how to pronounce judgment upon the mint_ that Wise
good. But his Learned Friends did not ask their -L4Td-
ships to do that; they asked them to reverse thejudgment
altogether, and to set the parties free. e would.
now state the reason why, in his 'opinion,l the
principle which was admitted in civil tea'ses- stlid
not apply in criminal cases. The jury breieghlt
verdict, guilty or not guilty ; they as.esed tie annexes ;'
they awarded no punishment. If he were chtteged 'on
fat indictment with two offences, if one notint Wass'had;
the jury who had found him guilty had round. him guilty
upon each count. So, if one count was. good, that
would support the verdict and the record.. , Judgment
followed the record ; the record followed the verdict ;
and if the record and the verdict were warranted, how
could the judgment be erroneous ? That was the prin-
ciple in civil as well as in criminal cases. He woukl'now
call their Lordships' attention to a few macs in the
books in which this point had been adverted to. When
his Learned Friend said that they found no distinct
ease in point, his answer was, that no one had ever
thought of raising the question. There was not an
assikes—not an Old Bailey sessions—not a quarter ses-
sions, in which cases did not occur in which this point
arose. There would have been an infinity of write of
error, and it was impossible that the question could
have been left so long without being brought
under the notice of the courts, if the law had
not been clear. No sitting's could have taken
place in which the point did not occur. He would now
advert to the principal cases which had been litoted on
the other side. The first was the case of Grant v.
Aspland, which his Learned Friend said hail no
reference to a writ of error, although the judge had
made an extra judicial observation on the point. Now,
it so happened that the case was on e writ of error. It
was a writ of error to the King's Bench in Englandfrom
the King's Bench in Ireland, in an action to recover
cepyhold tithes. There were several counts, one o.
which was defective, and Lord Mansfield, in giving
judgment, said, that he exceedingly regretted
.that
so ill-founded a rule as this, via., that where in. several
counts one was bad the judgment should be set aside,
had ever been admitted ; more especially upon stich.an
absurd fiction as that when the jury assessed the- da-
mages, they assessed them on all the counts, which was
not the case; and Lord Mansfield went on to state that what
made the rule the more absurd was, that it did not hold
goodin criminal prosecutions, for thatwhen the verdiCt of
%nilty was once returned, one good count was sufficient
lo support it. There was a case in Cooper's Reports, in
which Lord Mansfield had said the same thing. Then
tin-re was the case of the King v. Fuller. His Learned
Friend, in referring to that case, seemed to imagine that
this question could only arise in cases of misdemeanour,
and that there sould be no such thing as an indictment
for felony with different counts. If his Learned Friend
had had as much experience in the criminal as he had
had in the civil courts, he would have known that it was
quite as common to have indictments for felony with
everal counts as for misdemeanour ; and that the same
question would arise if the punishment were discre-
tionary or fixed by law ; and the general rule in indict-
ments for felony was, that if the record warranted the
verdict, it was not erroneous because one of the counts
on the instetment might be defective. Then there was
the case of the King v. Rose, 2d Lord Raymond's Reports,
p. 886. This was an indictment for perjury, and some
of the assignments were defective, and on that ground 1
the court was moved in arrest of judgment. But Lord
Bolt and the whole court gave it as their opinion that if
all the assignments were wrong but one, that one Would
be sufficient to authorise the court to give its judgment.
Then there was the case of " the King v., Powell," 2d
Barnewall sled Adolphus, p. 535. This. was a writ of
error to the Court of Queen's Bench, and that established
the principle that if one count of one indictment was suf-
ficient to support a judgment, and the verdict supported
that judgment, the judgment was not erroneous. It was
a case that was tried at the Surrey October Sessions, and
there were two counts in the indictment. The first was
fur an assault with intent to ravish, and the second
was for a common assault. Now the first count
would warrant judgment of imprisonment with
hard labour—the second would not. The jury re-
turned this verdict—" The said Henry Powell
is guilty of the misdemeanour and offence in the
:aid indictment specified as alleged against him." He
was sentenced to two years' imprisonment, with hard
labour. The verdict was brought before the Queen's
Bench on writ of error, as the terms of the verdict could
apply only to one count, and it did not specify which,
and therefore it was contended that the judgment to
hard labour was erroneous. Lord Tenterden, gave it as
his opinion that the judgment ought to be affirmed, inas-
much as the verdict warranted the judgment.
Lord Cameesix—lf the second count had been for
perjury the same reason would apply.
The ATTORNEY-GENERAL—it is impossible to make
the distinction.

Lord BROUGHAM—Had the party, is the case you put,
been guilty of an assault to commit a rape, and guilty of
perjury, and one of the counts had been bad, the judg-
ment of the court would have been passed, not upon
the count which was bad, but upon the count which
was good.

The ATTORNST-GENERAL—The verdict of guilty
was guilty of both; the aecond must be defective, but
the first warranted the judgment of the verdict. His
Learned Friend had stated that there was no instance of
a court of error acting upon that rule. The 'case of
Powell was a direct authority for it, for that was a
case in error. Then there was the case of the King v.
Brady, which came before the Court of Queen's Bench
in Ireland, which was reported in the 2d of Jeff and
Fyntes, p. 643, in which the Court of Queen's Bench
laid it down that if, in a case of judgment being given
one count was bad, that was not enough to vitiate the
judgment if one count was good. Then there was the
case of the King v, Connor, which was argued in tha
Queen's Bench in Ireland in 1839, in which it was
stated, in the argument of counsel, that if one
, nuns were good- judgment could not be re-
, ersed, and cited several cases on that point.
It was quite impossible for the ciurt of error to inquire
into the nature of' the judgment of the court below, It
•airely was a fallacy to say that the judgment was made
up of a number of counts ; that was not so in point of
practice, nor, ho apprehended, could it be considered so
In any way. If the judgment were a judgment which
the law authorised, the writ of error could know nothing
of the motives or inducements of the court below ; and
if any presumption was to be male, surely it must be
that the court below, in affixing punishment, affixed it
only upon counts which warranted it. No doubt the
artaunt of thz punishment was discretionary with the
court. The court of error had only to see whether the
judgment was one which the law allowed.
Lord BROCOHAN—The admission of a writ of error
seems to admit that the judges may by possibility have
given judgment on a wrong count.
The ATTORNEY-GENERAL—No doubt ' • but what he
said was, that a court of error would look to see whe-
ther a, judgment had been given which was not war-
ranted by law.
Lord Beourcuax—The presumption you say is, that
the court below ga.va judgment upon the right count,
but it is just p)ssihle th 'apt lees in the court below may
have given judgment on the wrong count, may have
thought th•• rortg count right.
The ATTORNEY-GENERAL—No doubt it was possible,
ut the presumption of law aa,‘, that the judgment of
the court was a judgment warrated by law, and if
isrought up to a court or error, theTourt would presume
that tt was warranted by law. _

Lord CAMPBELL—In+ that case a writ of error is a
very imperfect remedy.
The ATTORNET-GZNERAL said, he spoke only of the
presumption of law. If the law were not right, the
proper course would be to make it so by Act of Parlia-
ment. Let him take any of the ordinary cases which
came before the assizes. He would take the case
which his Learned Friend had put. He sup-
posed a conspiracy on ens day of two men to steal
a loaf, and he supposed a conspiracy on a second
day between the same two men to burn a house
and murder the inhabitants. He supposed that the
parties wore tried, and that, on their being tried
by the jury, and the ficts being investigated, the
defendants were found guilty of both the offences.
Hero was a case in which two persons were
convicted, on trial by jury, of a conspiracy to burn
down a house and to murder the inhabitants. Well, then,
lie would suppose that, in the second count of the in-
dictment there was a defect. According to his Learned
Friend, in order to do complete justice, they must allow
these mon to go free by reversing the judgment. If this
argument amounted to anything at all, it went to show
that the Legislature should pass some law to prevent the
giving of different counte in the same indictment.
Surely, it was arguing all on one side to say that justice
was not done, because in one particular case the punish-
ment might have been increased by a defective count.
The occurrence was not a probable one, and if they
wanted theoretical perfection, they must go to the
Legislature. 'rake the case of a man, named
Good, tried for murdering a woman. In that
ease, it was necessary to have ten or twelve
oounts in the indictment. The jury found the prisoner
guilty generally upon the indictment, and the
evidence warranted the finding on six or eight of the
counts. Should they, because there was a defect in one
of the count*, suffer such a party to commit murder with
impunity? Surely it would not be improving the law of
Bngiaad, to pass an Act declaring that where there were
several counts upon an indictment, and the jury had
-und the party guilty of all, ho should, if one were bad,
be discharged?

Lord CA3I22I3LL—WhIro there is only one murder,
the proper mode would ba to find. the prisoner guilty
urea one count.
The ATTORNEY-GENERAL said he believed in the
criminal court the verdict and the sentence were always
optered generally. In the case of the Icing v. Fuller,
there was a verdict upon both counts in the indictment.
The LORD CHANCELLOR said ho recollected a
else of this kind. A policeman was indicted fur
committing a rape upon a young g:rl in his cus-
tody. He got off nowt a misnomer of the girl.
He was indicted a Feccad time. There was a plea
of autrefois acquit, arid the answer was " went by
ore name as well as the wher," and he was acquitted a
stcand time. The case was tried at the Norfolk Assizes,
More Mr. Justice Patteson.

-•
The ATTORNEY-GENERAL challenged his Learned
Friends to produce any cage in which the record and the
verdict warranted a judgment, and that judgment had
been set aside. When he said the record, he did not
mean every count in the indictment; but what lie main-
tuned was, that when one count in the indictment was
pod, and verdlot of guilty had bed returned upon