The Sun.
London, England, 1844-07-04 00:00:00

ebtrb 1511ttion

SUN OFFICE, Seven o' Clock

THE STATE TRIALS

WRIT OF ERROR.

HOUSE OF LORDS.--(THIS DAY

THE QUEEN AGAINST O'CONNELL AND OTHERS.
Sir T. WILDE (in continuation from our Afternoon
Edition) said—Cannot a different judgment be given on
different counts, even on parts of a count and parts of a
plea, supposing the judgment to be dissimilar, in a ques-
tion of this description, where sentence is passed, and
which still may or may not be supposed applicable to
each of the counts? That a judgment ever passed which
was applicable to all the counts upon which it was
entered, I very much doubt. But most extraordinary it
is that a prisoner is to suffer under sentence, which, as
appears in the record, is applicable to three or four
several offences, and that he was to be told when he ap-
pealed against that sentence, that a surmise would be
made that it is intended to be entered on that which it
was. Suppose there be three counts in the indictment,
and that the Court of Queen's Bench bolds the first to
be good and the others bad—that the Court of Ex-
chequer holds one to be good, which the Court of
Queen's Bench has pronounced bad, and that your Lord-
ships decide that that count is good which they both
pronounce to be bud, and that the other two are bad.
What is to be the intendment? It is perfectly impos-
sible that there should be any intendment at all. It
would be perfectly absurd that if a man was convicted on
eleven counts, and suffered sentence, and that a Court
of Error found possibly one of the counts to be good,
that he should suffer under the accumulated sentence of
the eleven counts, each containing different offences.
There is no foundation for it; and no authority can be
produced for it. Whenever a court of law has refused a
motion for arrest of judgment on bad counts, it assigned
for a reason that judgment was given on the good counts.
Lord CAMPBELL said, is there no case of an error after
judgment ?
Sir THOMAS WILDE—No, my Lord, we have sent to
the Crown-office, and we believe there is not one. What-
ever be the intendment it cannot be doubted that there
may be indictments for several distinct offences, that
some of them may not legally subject the party to pu-
nishment, and sentence be given on the whole.
At this period of the argument, the Lord Chancellor
and some of the Judges retired for the purpose of refresh-
ment. On their return
Sir T. WILDE resumed his argument as follows—l
was stating to your Lordships that I was certain no au-
thority
could be introduced for the extraordinary
proposition, that where judgment was entered
upon an indictment in which a writ of error
would issue, it was shown that some of the. counts
were good and some of them were bad, the
judgments should be considered as entered upon the
good counts, and not upon the bad ones? Suppose your
Lordships should decide that the sentence passed
was applicable only to some of the counts, and
suppose Mr. O'Connell to be again indicted upon
the counts which were decided to be bad -- how
could he plead autrefois convict--a autrefois convict ?
On this point I will draw your Lordships' attention to
the case of the "King v. Wolf." In that case a jury had
been allowed to separate, in a case of misdemeanour.
In the morning the defendant's counsel had objected to a
continuance of the proceedings. Lord Tenterden, who
presided, said he would not stop the case, but that he
would take care to have the fact stated upon the record.
The defendants were convicted and sentenced to two
years' imprisonment, and a fine of 10,0004 A writ of
error was brought, and Sir Charles Wetherell appeared
to argue the case before your Lordships. The indict-
ment was produced, and on the postea it was entered that
the Court had been duly adjourned. Lord Eldon imme-
diately stopped the case, saying that he could look only
to the record—that whether the jury separated or not,
was a question they could not enter into, as the record
stated that the Court was duly adjourned. The writ
was dismissed, and the parties suffered the imprisonment.
I mention this to show how implicitly your Lord-
ships hold to the record even when it may be
equivocal as to the purpose for which an entry wasmade.
Now, I ask, how would your Lordships deal with a plea
of autrefois convict if put in by Mr. O'Connell, with
regard to one of these bad counts ? How would you deal
with such a plea if it were brought before you on writ of
error and the record showed a conviction on that count ?
Why, a counsel would he unworthy to stand before your
Lordships who should attempt to argue such a plea in
the face of such a record. Suppose an indictment for
perjury and assault—an indictment on two counts—sup-
pose the party convicted and again indicted for one of
the offences. He would plead autrefois convict.
By and by the man produces the record of his conviction
of perjury and assault, he suffers the punishment—
will the House, in such a case, deal with it otherwise
than stated in the record ? The truth is, the record
must be dealt with as it was found. I cannot
produce it in order to show that in point of
fact the Court pronounced a judgment of a
particular kind, because that was not admissible. If it
was found that the counts were good which we say are
bad, the intendment will be the same. There is no case
in which an intendment is given, except upon the state-
ments of the record, and your Lordships cannot give
judgment in this case, except upon the statements in the
record. In the case of the King and Fuller, that was an in-
dictment charging the defendant with attempting to get
seamen from the service; there were several counts in that
indictment and several objections. There was an objec-
tion made to onecount in particular, and upon that a mo-
tion was made in arrest ofjudgment, but it did not succeed.
Now in the present case I submit that the several counts
I have adverted to are not good in point of law. Ido
not mean to admit that the other counts are good, be-
the other counts will equally apply to them.
objections I have urged to
cause I apprehend the
I have now addressed your Lordships as to
the effect of the general judgment upon the good and
the bad counts ; and I will now refer the House to some
authorities, to show that counts in indictments of such a
general nature have been continually held to be bad.
jneecst's.
In
the
"Queen
The Learned Gentlemen then referred to Hawkins's
Pleas of the Crown, Curwood's edition, and the
3d Institute, in order to show that general counts
in an indictment were held to be bad. In the
case of the " King V. Richardson," in Ist Moody
and Robinson. the parties were indicted for a conspiracy
against Sir Henry .Parley. The case was tried in the
county of Somerset. The indictment charged that the
defendants did conspire, confederate, and agree
to cheat the said Henry Parley, and certain overt
acts were also stated. The overt acts not being
proved, at the close of the case for the pro-
secution counsel for the defendant observed that, the
count could not be sustained, inasmuch as the count was
too general, and stated 110 specific act by which the.
Court could judge whether the conduct of the defendant
was unlawful or not. Lord Denman said, "My opinion
is.that the indictment it bad in point of law. The alle-
gation is too :general, and it does not convey any
specific idea which the mind can lay hold of to judge
whether any unlawful act has been done or not."
My Lords, my great objection to this indictment is, that
it constantly introduces terms such as those which the
Noble Lord here refers to as indefinite, and having no
legal and precise meaning. Reference was made in the
case I have just cited to the case of the "King v. Gill," 2d,
Barnewall and Alderson, a case which is so often
referred to on account of its laxity, that
it is hardly to be considered an existing authority.
The Learned. Counsel then referred to the case of " The
Queen v. Parker," tried in the Central Criminal Court. In
that case the object of the co:annsdpierahctyainchgaeregdeisdfrehmaddibveeerns
ali
ta that
nt
dh e
defraud parties
hener-
tered into a conspiracy with each other and with ether per-
sons,t''tions, and that the
accomplished. The indictmen,irreteapcnrhaeastreegneetdah
idl‘elei afgejee sbdsubjects
rbesjcoenefe: received her
rs
goods;llttlhoajfeaaelessrietyu
by false pretences. The jnry said that the parties
had, by means aforesaid, unlawfully gained possession of the
goods, and cheated and defrauded their owners. Now, in the
Present case there is no mention of the persons to be in-
timidated ; there is entire silen9e as toevrtehde. mlenantshbey,,wKliiincgli
greater are
to
herebe thanac'eo nil in
the case of a person in-
ve.erctoaoinpeevn;di s 2,
(t and
St
t rt
all
no
gs those ot
ht
vovregdliinsahrys u
dap
nil
dieted for
fheaern de
sat:
il
eiresr i
ntog generality
wuhpi c
strifes,h i sha infinitelyquarrels
u rae
rrels, and disturbances
ofpEernsons were indicted for conspir-
against his Majesty's subjects. That was held to be a
bad indictment. The indictment in this case was for stirrin
tu,
.p
Rlorli
vs he
ils„u subjects encut againstsmbe r
ing and agreeing with one another to do certain indecent acts
in a public place and in the presence,, of her Majesty's liege sub-
jects. Mr. Justice Patteson said he could not admit an indict-
ment for treasonable, or for indecent or other bad practices
to be conveyed in such loose terms. From such words used
in common parlance the specific offence might be inferred,
but those loose words could not be admitted into a legal do-
cument." Mr. Justice Williams and the other Judges con-
curred with Mr. Justice Patteson, and their judgment was
respected.
Lord Beouonasi—What are the words of the indictment
—I mean what are the ad;ectives used to describe the in-
decency ?
Sir 'l'. WILDS—My Lord, the words are very offensive. They
are " to do certain indecent, lewd, nasty, and unnatural acts."
But, notwithstanding all these words, the Court held that the
indictment was too loose, and could not be sustained. Such,
my Lords, is the general doctrine, and there are a great
many other cases similar to those which I have referred to;
but I will not now trouble your Lordships with them. I
stated to your Lordships that, in the case of the "King v.
Fuller," it was argued that the Court would give judgment
in Salty. I will now beg to
upon a good count, although the other, counts were bad. In
ctal:eedecision was the same. The
the case of the "Queen v. Ingram, the Court held that the fine
could not be inflicted upon good counts, the
a:lt others eArsstbeeliln;
.tlosot
general. That case is reportedCreofoeir)e3r•rpragLeor(7ls7h6i,pisntlovith
position which I wish to present to your Lordships is that
the indictment consists of several counts which are bad by
means of their vagueness. Some of these counts do not con-
stitute any legal charge, nor any pretence for a legal charge.
)t1 er counts are expressed in too general terms to constitute a