The Sun.
London, England, 1844-09-05 00:00:00

opinion upon the goodness of the counts before the
delivery of a verdict. No inconvenience could arise;
oil the contrary, he thought great good would be pro-
duced from their adoption of the practice. In his
opinion there could not be a greater grievance
And oppression than these endless, unintelligible,
univieldly, voluminous indictments. An indictment
extending over fifty-seven pages was itself a grievance ;
many prisoners could not afford to pay the clerk of
the peace for a copy, and, when they got
it, the most learned persons could not find out with
what the prisoners were charged. The words were
so ambiguous, that it might be that the
['leader who drew it up might mean one thing, the
jury another, the judge a third, and the court of
error a fourth, if they did not overthrow the whole
judgment. There was also a mistake as to the prac-
tice of the Court of Queen's Bench in this country.
It was said that when an arrest of judgment was
/swed on one count, the court was in
• e habit of refusing if there was an-
;.. r count which would support the verdict.
that been so in the case of Feargus O'Connor?
Ile had been convicted on two counts. The Court
had heard the argument on one count in arrest of
judgment, and had granted it, and then had proceeded
to hear arguments on another count, which was so full
of verbosity and ambiguous expressions, that the At-
s,ey-General discovering the great doubt which the
entertained, had never pressed for judgment.
I:,convenience could arise from adopting the cor-
rect practice. In a case of conspiracy which he had
tried at Guildhall, objection had been made to a count.
He said it was immaterial, as he was not going to pass
judgment then, but had he been going to do so, he
should have considered the goodness of the count, also
e..!iere there were several counts on each, saying, " We
apportion such and such a punishment to such a count,
as.d such and such a punishment to others."
And thus it would be reserved for the after-considera-
tion of the court how far the objections affected that
judgment. Such was the practice of the Court of
Queen's Bench, and the proper mode, as it seemed to
him, of proceeding. But his Noble and Learned
Friends said that the objections were merely technical,
and that no injustice could arise from the course that
been followed by the Court below. Now he
niust say that he thought there would be the greatest
1-ajustice. The case was not the same as if some irre-
levant stuff had been inserted which imputed
offences. But it was impossible not to see
thet if there had been three or four indictments, some
of them bad, and the court had passed judgment on
all these, the case would be the same, and there would
be the greatest injustice, for the court might pass
its judgment on the strongest clauses, and then the
bad ones. The first case, which was relied on by his
Noble and Learned Friend was, that of the King v.
Powell, where the defendant was indicted for two
offences—assault with a certain intent, and with a
common assault. The jury found a verdict generally,
and a writ of error was brought on the ground that the
defendant was found guilty on two indictments. Now,
there was one remark which fell from Mr. Justice Taun-
ton, to which he (Lord Denman) wished to direct atten-
tion. 'fat learned judge said that there were not
two indictments, that there was but one act charged,
and that the defendant was found guilty of only one
offence. The words " misdemeanour" and "offence"
comprised both the counts, and formed, in fact, a
nomen conjunctium applying to one act. He thought
that the decision of the judge separated that case from
this appeal. The next case relied on was that of the
" King v. Rhodes" for subornation of perjury. Some
of She counts were deemed bad, because there were no
assignments of perjury in them. The view taken of
that case by the Lord Chief Justice Holt was, that
there was only one offence, that of perjury, and
that it was no matter what were the assign-
ments. Now to him (Lord Denman) that answer
completely removed the case from the presentargu-
ment. The next case was an indictment againsta man
and his wife for assault. There the objection was
somewhat of a grammatical nature. In the first part
of the indictment the singular number was used in the
words " vulneravit et verberavit." But on the latter
part the error was corrected, " vulneravesunt et
verberaverunt." In that case Mr. Justice Parker held
that there was only one count, and that the verdict
was rightly found. These were the only cases which
were relied on, and these were all the authorities on
which the state of the English law before Lord Mans-
field was affirmed to be in support of his Noble
and Learned Mend. But they relied further on cases
which occurred shone. Let them first, however, consider
w hat was the weight of Lord Mansfield's general
dictum. His Learned Brother, Baron Parke, with more
doubt than his subsequent argument seemed to war-
rant, had shown their Lordships that it was not of
great weight as applied to this case. He (Lord
Denman) concurred in that view. He would come
now to the causes which were afterwards cited. The
fiat was the "King v. Hill," Ist Powell and Ryan; that
case was relied on, but he could not see what bearing
it had on the present case. There were several
counts; they all charged one offence and some of the
counts were objected to. The judge said that he
would reserve the objections, but in the meantime
would pass sentence, and if all the counts were found
bad judgment would be arrested; but if one
was good the sentence would be carried into
feet, but that it was the practice of
the Court of King's Bench to take care
Ll.at, no verdict should be taken for the Crown on a
b count. The next case was that of the "King v.
Aleson,' an indictment for obtaining money under
false pretences, for which the punishment was dis-
cretionary—either pillory with imprisonment, or
transportation. Now it was admitted that in the
indictment two of the counts were bad; but it was
evident that there was great want of distinctness in
the case as an authority, for the 'learned reporter
himself said in his marginal note that judgment was
arrested. That case, however, was very different
front those in which the successive counts contained
cumulative charges, which would lead to greater
punishment in the discretion of the court. Now he
thought that in those cases, where there were bad
counts, the discretion might be ill exercised, and he
thought the court was bound to arrest the
judgment, lest it should appear to have been
awarded on the bad counts. The " King v.
Yeung" was no authority on the point, although it
;v-is relied on by his Noble and Learned Friends. But
T i ere the court only refused to arrest the judgment
in the way stated, because there were good counts in
the indictment, but it is relied on that because no
writ of error was brought the decision of the court
must be taken as conclusive. Yet, there was actually
no means of trying in what way the judgment was
entered upon the record, nor was there anything
whatever to show whether a writ of error could or
could not be brought. his Noble and Learned Friend
said that the point had never been decided by a
court of error, and, therefore, it was only difficult to
make out any authorities upon this very doubtful,
very loose, and (he would say) very censurable
practice. His Noble and Learned Friend said
this was purely technical in its nature, and
that the effect of it would be, that if a party
were found guilty, not generally upon such an
indict-
ment, but upon the good counts only, he would
n.,,t be able to defend himself in case of any
tler charges being brought against him, by
pA Aing that he had been already punished ; for
answer would be "No," because he had
es- been punished on the imperfect counts.
vk .r was the answer given by one of the most acute
a, ' .;arned persons he had ever the good fortune to
eo with in an argument ?—let him observe not
s'se with any doubt—it was stated by Mr. Justice
(~. ;!I.ln, whose plain and manly understanding
9! .ieit the question before them in a way that
ssaild not he doubted. He sail it was an injustice
that a person should be punished who could nut plead
that punishment against being punished a second
time on the same state of facts. IVhat was the
an ewer of Mr. Justice Patte:on to that ? lie said
that the proceedings would be estopped. Why were
:11T not estopped now, a conviction having taken
ryi.ee on this indictment ? Now, again, there would
be a difficulty in calling on the judge to decide at
the assizes whether a count was good or bad ; and
they were to assume that he did so decide

and they were to get rid of that question:
whether the decision was good, because he did not so
ifcide. They were to have it both ways. They
were to assume it was too difficult for him to give his
mind to the subject at all, and they were to say* that
he had apportionedthe • 1
judgment on those counts
which were good in point of law. I-Ie thought when
twhey got rid of the supposed authorities, the dicta
founded on afirenitistaken and unfortunate observation of
Lord MAllus
Unsatisfactory, isr.tthtat the principle would appear
altogether
looked at the recocriel?iry'tsel and he thought when they
to the, other circumstanc,,,el
f, without at all adverting
of the case, it would be
found that judgment
wesllpronounced on counts
stating no offence; as
that there had been offences on counts stating
u fi a 3op n,
and which there were
erroneous findings entered
thate therefore
the judgment of the court below hapibnet been incorrectly
passed. He stated again that this
him not only with its novelty, but with theltwered
, and he took
demonstrated force upon which, when he came troatnhde
examination of the arguments, it rested
ur, therefore, the principle on which he thought they
could only set aside the Judgment of the court below,
namely, that what had been done by the court below
was not properly done. He regarded the Court of
Queen's Bench in Dublin with the greatest possible
respect, and he had the highest opinion of the talents
and endowments of the learned judges of that court.
He had still a greater veneration for the opinions of
,tiA learned brethren here, with whom he acted,
and for whom he entertained the greatest pos-
,iMe respect.. He acted there, however, as a
juage for himself, and he felt bound in duty to ex-
ercise his judgment on the reasons brought before him.
He thought that the reasoning in support of the judg-
ment was not good in point of law, and it was his
Tduty to.
_vote against the motion of his Noble and
Adealluia Knead.