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

cause they had given their verdict upon both counts.
What, then, became of the case ? Supposing the
jury 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 cases? Why, that the record should be sent
back to Ireland. The analogy would be to ask the
court of error to send the record back to the court be-
' low to pronounce judgment upon the count that was
good. But his Learned Friends did not ask their Lord-
. ships to do that; they asked them to reverse the judgment
altogether, and to set the parties free. He would
now state the reason why, in his opinion, the
principle which was admitted in civil cases did
not apply in criminal cases. The jury brought in a
verdict, guilty or not guilty ; they assesed no damages ;
they awarded no punishment. If he were charged on
an indictment with two offences, if one count was bad,
the jury who had found him guilty had found 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 would now
call their Lordships' attention to a few cases in the
books in which this point had been adverted to. When
his Learned Friend said that they found no distinct
case in point, his answer was, that no one had ever
thought of raising the question. There was not an
assizes—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 writs 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 sittings could have taken
place in which the point did not occur. He would now
advert to the principal cases which had been quoted on
the other side. The first was the case of Grant v.
Aspland, which his Learned Friend said had 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 a writ of error. It
was a writ of error to the King's Bench in England from
the King's Bench in Ireland, in an action to recover
copyhold 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, viz., that where in several
counts one was bad the judgment should be set aside,
had ever been admit ted ; more especially upon such 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
good in criminal prosecutions, for thatwhen the verdict of
guilty was once returned, one good count was sufficient
to support it. There was a case in Cooper's Reports, in
which Lord Mansfield had said the same thing. Then
there 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 could 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
several 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 indictment 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
the court was moved in arrest of judgment. But Lord
Holt 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 and 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
- for 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
said indictment specified a 9 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
Ids opinion that the judgment ought to be affirmed, inas-
much as the verdict warranted the judgment.
Lord CAMPBELL—If the second count had been for
perjury the same reason would apply.
The Arronner-GENERAL--It is impossible to make
the distinction.
Lord BaocrouAm—Had the party, in 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 ATTORNEY-GENERAL—The verdict of guilty
was guilty of both; the second mu;t 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
Symes, 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
indgment if one count was good. Then there was the
ca.'e of the King v. Connor, which was argued in the
Que sn's Bench in Ireland in 1839, in which it was
stated, in the argument of counsel, that if one
count were good judgment could not be re-
versed, and cited several cases on that point.
Jt was quite impossible for the court of error to inquire
into the nature of the judgment of the court below. It
surely 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, he apprehended, could it be considered so
in 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 made, surely it must be
that the court below, in affixing punishment, affixed it
only upon counts which warranted it. No doubt the
amount of the punishment was discretionary with the
court. The court of error had only to see whether the
judgment was one which the law allowed.
Lord BROUGHAM—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
.s judgment had been given which was nut war-
ranted. by law.
Lord ..`iitOUGHAM—The presumption you say is, that
the court below gave judgment upon the right count,
but it is just.` possible that judges in the court below may
have given lodgment on the wrong count, may have
• thought the wrong count right.
The ATTORNET-GENERAL—No doubt it was possible,
but the presumption of law was, that the judgment of
the .'court was a judgment warranted by law, and if
brougi;,t up to a court of error, the court would presume
that it u'as warranted by law.
Lord CAMPBELL—In that case a writ of error is a
very imper feet remedy.
The ATTORNEY-GENERAL said, he spoke only of the
presumption of Jaw. If the law were not right, the
proper course would be to make it so by Act of Parlia-
ment. Let hica take any of the ordinary cases which
came before the assizes. lie would take the case
which his Learned Friend had put. He sup-
posed a conspiracy on one day of two men to steal
a loaf; and he supposed a conspiracy on a second
day .betweeti the same two men to burn a house
and in artier the inhabitants. He supposed that the
parties wei-e tried, and that, on their being triad
b y the jury, And the facts being investigated, the
defendants were found guilty of both the offences.
Here was a mice in which two persons were
convicted, on trial .by jury, of a conspiracy to burn
down a house and to incrder the inhabitants. Well, then,
he would suppose that, li3 the second count of the in-
dictment there was a defed. According to his Learned
Friend, in order to *do cornp.iote justice, they must allow
these men to go free by reversiv,g the judgment. If this
argument amounted to anything at all, it went to show
ghat the Legislature should pass soma law to prevent the
g:ving of different counts in the same indictment.
Su.-ely, 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. Take the case of a man, named
Good, tried for murdering a woman. In that
case, it was necessary to have ten or twelve
counts in the indictment. The jury found the prisotier
guilty generally upon the indictment, and the
evidence warranted the finding on six or eight of the
counts. Shoulid they, because there was a defect in one
of the counts, suffer such a party to commit murder with
impunity? Surely it would not be improving the law of
England, to pines an Act declaring that where there were
several counts .upon an indictment, and the jury had
found the party guilty of all, he should, if one were bad,
be discharged?
Lord CA•mpnce.u.—Where there is only one murder,
the proper mode would be to find the prisoner guilty
upon one count.
The A'rroxiskrnr-GENEakx. said he believed in the
criminal court the verdict and the sentence were always
elitered generr My. In the case of the King v. Fuller,
there WAS a ver diet upon both counts in the indictment.
The LORD CIIA.NCELLOR said he recollected a
case of this kind. A policeman was indicted for
committing a ;rape upon a young girl in his cus-
tody. He got; off upon a misnomer of the girl.
lie was indict (Rd a second time. There was a plea
of autrer "quit' and the answer was " went by
lis
one name a is wall as the other," and he was acquitted a
The case was tried at the Norfolk Assizes,
second time.
. 4.1 ..,Rsrtice Patteson.
a__,_ he'''. rag- GENERAL challenged his Learned
j. _• , - . , a any case in which the record and the
Al*
tt;c47 ffe#9 -
~ _ 104na judgment,. and that judgment
. hadt
t -ep -4etyo4.e. yy hen he said the record, he did not
l i liiiiilo4*ty cop, it ire the indictment; but what he main-
kr,l4•6llol artia, that; when one count in the indictment was
c, Iniial,Tthd it vet Inllct of guilty had been returned upon