The Sun.
London, England, 1844-09-02 00:00:00

Mee had taken----'Anse., place, and, therefore, he felt bound to
tie, r,_that question in the negative. The Bth qi,ies-
ther Ipthil'' °'Y their Lordships to the judges was, " \\ he-
the ; ",,ere as any sufficient ground to reverse or vary
eithJea"gnient on account of the sentences, or any, or
zegarrd" them, passed on the respective defendants,
<Nu been had particularly to the recognizances re-
on 411' and to the period of imprisonment dependent
on „,e entering into Isuch'recognisances ?" Now,
iivacnoirs question Judges saw no ground for vary-
'eateoce the judgment on account of the
Iti,ei,. s pronounced. The defendants had, under
,zite ' sentences, the power to enter into their recogni-
:andee.sT and thereby shorten the term of their sentence,
pa3,1,,t was to be presumed that at the time the Court
flay:',. judgment, it took care the defendants should
Ail „Lune enough to enter into their recognizances.
the Judges concurred in agreeing, therefore, that
es, 'til question must be answered in the negative.
t49,tb :question was, "Whether there was any suf-
the " grOlind to reverse the judgment on account of
nobiludgMents in the assignments of error coram
statesd e.;l. any or either of them, or of the matters
,of then such assignments of error, or any or either
be ot:'"
ewer? Now upon this question it was to
were s.,
that the error assigned in the writs
the e' wlt4 the exception of Steele's, the same. In
that ,e,Se of Steele, however, the error assigned was
it cue indictment was not properly found, because
had not been stated on the back of the bill by the
• ruts that the witnesses had been sworn. Now,
ith respect to the error of fact alleged by all the
Gel • ,reee
, rsers, the answer the judges returned to
in thr kaordships was this, that the statute of Victoria,
coq
~at respect, repealled the former one, and that the
IteCae,Pursued by the Court of Queen's Bench in
ltes t 2", with respect to the swearing of witnesses,
IN this accordance with the opinion of the judges.
46„uls Point they thought the decision of the Irish
it ages was correct. From the preamble of the Act,
tial6t he expected that the alteration about to be
.tiset',,,,,ted would be generel, and without exception, and
ied.-"facting words accordingly were, that in cases of
jaricjaent where bills were to be laid before a grand
the•Wn Ireland, the Clerk of the Crown at assizes, and
Iv 'jerk of the Peace at the sessions, should make
_lna
its i ",ersenient thereon directly, to give this enactment
thesi force that was to make it applicable to all cases,
etil e particulars officers must be taken to be named
tita
Le tY4,1,3Y way of example or instances, and not that the
44 was applicable to those courts only, of which
12.1,,5e Persons were the proper officers. It would be a
of Tel mode ~,
''' introducing a restriction in the words
Thiel medialre Act, to confine it to those courts only.
t... Clerk of the Peace at sessions and the Clerk of the
ftwn at assizes held offices and performed duties anal-
crs to each other, and that construction of the Act re:
sef. ed further confirmation from that part of it which
tieeirred to the oath, for the latter part of the statute
not treci that the foreman of the grand jury should
ahe ave the power of examining witnesses on oath
lact7 names Were not indorsed on the back of the
of trnent by the Clerk of the Crown, not the Clerk
ae assizes. Upon a reasonable construction of
asstatute, they thought that this ground of objection
faet.4nsWered. And as to the assignment of error in
ea . assigned by Thomas Steele, it was founded
Nv..' Part of the Act which was direc-
aft4 and not essential. He did not think
stet a Witness had been fully sworn and examined,
del) , trite bill returned on his evidence, that it would
ha an an Act of its legal operation that the foreman
Thelleglected to comply with certain of its directions.
that it question they all concurred in agreeing
lilestiell' nnist be answered in the negative. The tenth
or ~,Put was this—" Is there any sufficient ground
taini.eversing the judgment by reason of its not con-;
Afteepg any entry as to the verdicts of acquittal ?"
itieta* a careful search made at the Crown-office, no
Ns tiee-0f such an entry could be found where a party
ea hush
guilty of one part of the indictment
they f"Lleh he received judgment, and this practice
Peas rt,!glit was in conformity with law, for it ap-
heirie,-„,Lruln Lord Hale that an entry of acquittal
NI -.7, *le die might be entered for the defendant
Were -`er a writ of error had been brought. They
Ras to
of
ii , opinion, therefore, that the 10th question
and -,ue answered in the negative. Upon the 11th
delire,ast question upon which he was
anse,,;;eg his ' opinion only, he had in
l'atier;ng the third question, anticipated those obser-
istated- which would otherwise apply. He had already
lived that the opinion at which they had already ar-
tecerciWas) that a general judgment upon the whole
reason wtas not to be reversed upon a writ of error by
!!_atedicp one or more counts being bad. He had also
'flat th,2s °Pinion that it would make no difference
Portion' PUnishment was discretionary. The only
the entry therefore, to be considered was, whether
for
tily ~_
, uu the record, being " that the defendantsd,
W 33 : c'aences aforesaid be fined and imprisone
That to itself a ground for reversing the
,Judgment.
that f-e° which their attention had been called to
~f. was,
ht the word should be thei the defei.dant, or
The -oenees as aforesaid," IN.: fined n:ld imprisoned..
such Plain interpretatior of these words was this—
el' d". offences as were 'set out in those. counts. of the
wh,letment that were free from objection, and of
pteh the defcrida:nts had been found guilty by a pro-
t il, andirg of the jury. That was the offences in the
ie:euliGth, and all, subsequent counts, and he saw no ob-
A:At-pi to 'the word offences in the plural number.
the "id not think that, in point of law, the words, as
isj, Qi'Peared in the record, formed a ground of ob-
ils 'en. Ile, therefore, thought that this question
e"--but he offered it as his own humble opinion—
Ito be answered altogether in the negative.
Isf;r: Justice PATTESON, in delivering his judgment,
the: that there was no difference of opinion amongst
ue'r Lordships, except with regard to the 3d and 11th
atiet,lens• The 3d question was whether there was any
of anent ground fur reversing the indictmentby means
Nen/ defect in the indictment, or of the finding or
tatli:ll,,,g of the findings of the jury upon the said
of te-;,""t• This question appeared to him to consist
11,43TILParts—the first related to the consequence of
`lste,-,',Lect in the indictment itself; the second to any
reka-,",,n1 the finding of the jury on the trial. With
of to to the first he would take the liberty
ltieC'sw,,ering it, together with the 11th ques-
4st ii; which he took to be in effect the same,
~attl -9,,,0n1y defect in the indictment was in the 6th
4d Question.
.'"
Counts, which were bad with regard to the
Ittlid-ersti". He thought that the consequences of
fits defect in the findings of the jury were cured, so
e,f eo-i,they related to the 4th count, in consequence
lefeJr'ng a nolle prosequi with regard to one of
.the
thei.'e ants, the Rev. Mr. Tierney. He did not think
\‘ithlYvas any ground for reversing the indictment
defe ,:egard to the Ist and 2d counts, by reason of any
lippre‘ktu the findings with regard to those counts. He
of 4 re,"etided it was competent to find the parties guilty
,Was-heasPiracy to do a part of a thing, and that there
N.-4),„v,ariance between such a finding and the count
the ...-1-bis appears to have been the opinion held in
vre-'e of the King v. Hallibany, 4 Barnewell and
4eds•swell. With regard to the other portions of the
httlet:ag on those counts, he thought it might be re-
ad ,-;,as surplusage. He would now proceed to the
alteo:4int, with which he would connect the 11th
Tho'l'n, as he thought they were nearly identical.
in "
of counts
was whether, in an "indictment consist-
atiorieinecroaryt: A, B, C, where the verdict is guilty of
and the counts A B are good and the
antsy C is bad, the judgment being that the defend-
adis for the offences aforesaid, be fined and imprisoned,
is cell Judgment would be sufficient in point of law,
I;!,itit°ll,ned expressly to counts A and B, ca??,
This Judgment be reversed on a writ of error..
41 1,0,1",t,as a question which would be likely to arise
tiee -1. eases in the administrAtion of criminal jus-
in .; 1... t seemed to be argued that they should act
it el cases upon the practice which_ took place
Con...vti eases, in which, if a verdict was given in a
jacle.'„,whieh' was bad, the Court could not pronounce
eitl-,. ent in consequence of the uncertainty, and
tlioiT;, there was an arrest of judgment, or upon the au-
In ,12 of a late case there would be a venire de novo.
or o-„ln'inal proceedings the verdict was merely guilty
anal guilty, and there was in such cases nothing
fosn,"RPls to an assessment of damages. The Court
llee:eu its own opinion as to the judgment, and no
fore taints intv could arise. This reasoning, there-
Was) "id` not apply in criminal cases. Butit
RA contended that on general principles the
that ilti.!at must be held to apply to each count, and
aeveicir sentence must be held to be the aggregate of
Was
foot
separate sentences, one to each count. This
11100,","e first instance in which such a notion had been
klef7. It had been the custom in criminal courts
'nea's to pass judgment as a whole. It was
11f r, Only judgment. He was not aware
an case in which a writ of error had
that nunr°llght in any case of felony on the ground
1144 • e of the counts in the indictment was bad ;
teld,in, cases of misdemeanor such a case should
Pa, rate arise, because where separate counts laid se-
nis;enr
offences, the prosecutor was generally put to
offences
lieted • - I°n•The defendant might, indeed, be con-
aratnli On separate counts, but the judgment was
Pavati,Yi Passed on such separate classes of counts se-
ofeen''3', but that was not always the case. If an
the ee were stated in various ways in various counts,
ePintsentence was general, and it was the universal
Nt 'en) that in such cases one good count
auld
of sustain a general sentence. In the time
1, Lom ~
,-,efqr, the-- Mansfield, a motion had been made
e- •
that the Lind in arrest of judgmhenadt, on the ground
court indictmenthadi contained one count, but the
cases . always declined to interfere. Now, in those
teeer).l7 Court must have given its judgment in a
lest 0./.l°ln, for as it did not admit the motion in ar-
oad ft; JudgMent, it did not decide if the count was
ter ft; asZt• Nothing could be inferred from the man-
ease ha uich judgment was passed at assizes. One
eitic.„,,,arisen in which the superior Court had de-
hair that one count in an indictment on which judgment
did nee.en passed at the assizes was bad, but the count
donee recommend that the prisoner should be par-
?' ~' which it would have recommended if the fact
,i4,l%coctnt lieitnif bad was sufficient to
as vitiatenight the

passed on any one count, the Court of Error could
not interfere, because it could not tell that the judg-
ment hud net been passed upon the good
count. This must be the case in cepital of-
fences, and must also be the case when the
amount of punishment was fixed by law; and he
could not see why it might not be so in cases
where the punishment was discretionary. They were
called upon to assume that judgment had been passed
in respect to each count, and then to suppose that each
count bad been properly constructed—that was the
meaning of the words this psesent judgment fur his
offences aforesaid. It had been said that a hardship
would be inflicted on the defendants, beeause they
could not, if again indicted, plead autrefois acquit or
autrefois convict. With the good counts that could
create no difficulty, and it was a fallacy to suppose it
would create any difficulty with the bad ones. It did not
he in the mouth of the prosecutor to take advantage
and as long as the conviction remained, that
would be considered as good, be the counts never so
bad. Something had been said about the possibility
of a pardon for some of the offences, and not for
others. That argument went too far, for it went to
show that a general sentence was always bad, even
although all the counts should be good. There was
the case of the Queen v. Young, and a still stronger
case the Queen v. Powell, reported in 3 Barnewall and
Adolphus. In this case there had been two counts in the
indictment, one for an assault with intent to commit a
rape, and another for a common assault. The verdict
was, we find the prisoner guilty of the Misdemeanour
and offence of which he is accused. The point to be
decided was whether these were nomina collective,
and if not to which of the two counts they applied,
because if they applied to the second only the judg-
ment which included hard labour was illegal. The
Court held that they were nomina collectiva, and
applied to both counts. That was a strong presump-
tive argument in favour of the judgment being good,
provided there were one good count. Assuming the
judgment to be bad on the Ist, 2d, 3d, 6th, and 7th
counts of the indictment, still it remained an entire
and good judgment on the other counts of the indict-
ment, and could not be reversed.
Mr. Justice 11Iaunn then proceeded to read his
judgment. In cases in which the law had fixed the
limits of the judgment, and had left no discretion to
the Court, the Court in passing judgment could look
to nothing beyond the law and the record, but in
cases in which the law had left a discretionary power
to the Court as to the amount of punishment the
Court would and must look beyond the record, for if
it did not there would be no reason for the discretion
which had been left to it by law. It was moreover
the practice to look beyond the record in such
cases, and it was usual in passing judg-
ment to consider the evidence which had
been given at the trial. In cases, also, in which the
law only showed the kind of punishment—such, for
instance, as fine and imprisonment—and left the
amount of such fine, and the duration of such im-
prisonment, to be awarded by the Court, it was usual
for the Court, in deciding on its judgment, to consider
circumstances which did not appear upon the record.
With respect to the question whether the record found
any offence, and what the judgment should be, as no
more was necessary to determine those questions than
a right construction of the record, and a knowledge
of law, they were fit subjects for a writ of error, by
which the record was brought before a superior court
of law. But the question of the amount of
punishment was not the subject of a court of
error, which had not before it the evidence
given at the trial, or the other matters
which determined the amount of punishment. It ap-
peared to him, therefore, that when the record showed
that the defendant had been convicted of an offence
for which he was liable to pay a fine, and to be impri-
soned and find sureties, there was no ground for re-
versingthe judgment, but there were other parts of the
record upon which, if they stood alone, the judgment
could be passed. If it were otherwise, it might well
be that a judgment would be reversed by
a Court, of error, which, in the case of
the Court below, would have subjected the de-
fendants to the very same species and amount of
punishment. He thought, therefore, that upon the
record, neither in the case supposed by the third
question, nor in that supposed by the 11th, could the
judgment be reversed by a writ of error.
i\lr. Justice COLTMAN said the Lord Chief Jus-
tice of the Common Pleas having delivered
the unanimous opinions of their Lordships ex-
cept as to the third question, and the 11th,
it was unnecessary that he should advert to
any other than these two. The third question had
already been read, and therefore he should not repeat
it ; and to that question he answered that, in his
humble opinion, there was sufficient ground for re-
versing the judgment by reason of the defects of the
indictment, and by reason of the defects of the find-
ing of the jury, and the judgment thereupon.
And he grounded his opinion on the reason
which would be given at length in the answer to the
11 th question, which reason had been referred to,
and which appeared to him to apply to all the defects
to which the question referred. To the 11th ques-
tion he answered that, in his humble opinion, where
an indictment consisted of three counts, A B and C,
and counts A and B were goOd, and count C bad,
and judgment were given against the defen-
dant for the offences charged, that he be
fined and imprisoned, such judgment was insufficient
in point of law, if confined expressly to the counts A
and B, and ought to be reversed on error. He was
well aware that a contrary opinion had existed gene-
rally among the members of the legal profes-
sion. But there was, he thought, no difficulty
in seeing what was the reason of this ge-
neral impression ; and when they looked for
any authority to support it, there seemed
to him to be little or none. The authorities relied on
arose on motions in arrest of judgment. The expres-
sions used referred to the state of things before judg-
ment was pronounced. They were quite true as ap-
plied to criminal proceedings in that stage, but the case
might be different after judgment was given.
The authorities relied on were the Queen v.
Ingram, Grant v. Aspen, and the King
v. Bedrick. His opinion was, that though
the principle was true, with reference to that stage of
the question, it was not true with respect to the case
of a writ of error after judgment had been recorded.
The for Mer had been made to the case of Young
and others, in which two counts were good and two
bad ; and in which the judgment was held to be good,
notwithstanding the badness of two of the counts.
But the objection raised to these counts was
noticed in that judgment as groundless, nor
did it appear to have been at all insisted upon in
argument. Therefore it was to be considered, not as
a decision, but as a precedent only ; and in a Court of
Error, where-the question now arose for the first time,
it could not, he thought, be considered as a binding
authority. If they considered the question on
principle, the argument in support of the
sufficiency of the punishment seemed to him
to stand thus—when there was but a single count in an
indictment, as was the case in old times, although it
contained several idle and superfluous allegations, yet
if it contained sufficient pertinent matter to sustain a
criminal charge, the Court was warranted in passing
judgment on the whole count, and passing by the idle
matter ; and in like manner, now that it had become
usual to insert many counts in an indictment, if there
were one good count and others which were bad,
the Court might treat the bad count as idle and
superfluous matter, and passing it by without regard,
give the appropriate judgment which was united to
the good count. The practice at the assizes was in
conformity with this view of the case, when it was
not customary to do more than give a general judg-
ment in the indictment without stopping to consider
whether any counts were bad in point of law. But
to this view of the case he should answer, that he did
not consider the case of an indictment in a single
count, containing some idle and superfluous allegations,
could be placed on a footing with an indictment con-
taining superfluous counts—some good and some bad.
For in the former case, the indictment professed to
contain one criminal charge only ; in the latter, it pro-
fessed to contain several distinct charges in each count,
as in the nature of a separate indictment. And he
contended that the defendant was entitled to know on
which count he was sentenced ; and the reason why
he was entitled to claim that right was, that if con-
victed of an offence on an insufficient indictment, and if
judgment was passed against him, he might plead the
conviction to any other indictment as the same
charge. In the case supposed, if the defendant were
indicted for the same offence, and that it were in-
sufficiently charged in count C, how was the Court
to deal with the case—how were they to know
whether the party had suffered the sentence of the
law or not ? It might be said that the Court had•
only to look to the original record, and that they
must be aware that the Court below, in passing
sentence, was aware of the defect in the count, and
did not pass any portion of the sentence with respect to
it. That reasoning might be justif the Court were always
infallible; but the presumption that the Court had
not committed an error was not a safe one to act upon,
and might be directly at variance with the fact.
Surely there ought to • be some more safe ground on
which to judge of what the Court had done. Every
record ought to state expressly and explicitly what
had been done, in order that the party might not lose
the benefit of the plea which he was entitled to, and
that the Court of Error might be enabled to see whether
there had been an error committed, and to redress it
if it existed. Lord Coke said, in the Third Institutes,
p. 214, that in the case of an acquittal the Judges
ought before judment to look into the old record, and
upon due consideration thereof to cause it to be en-
tered. It was said by Lord Hale, p. 293, vol. h.,
that where the indictment was insufficient it was
reason to have quod eat sine die special in the cause,
and then the acquittal was applicable only to the in-
sufficiency of the indictment. The remarks of these
two eminent judges were made with reference
to the entry of a judment insufficient in fact.

The judgment must, perhaps, have been free from
error if it had been expressly confined to the good
counts, and no judgment had been given on the bad
counts; but where the judgment was, as in the case
supposed general, it must be supposed that it had
been given cn all the counts, and it had indeed ex-
pressly been said to be so, and one of the counts being
bad, the judgment seemed to him to be erroneous.
If they supposed a case which must be allowed to be
possible, that the Court below, mistaking the law,
passed judgment with reference to a count which con-
tabled no legal charge, and the party was sentenced
under that count, his punishment would be manifestly
unjust. It might be said that the Court, by whom
the cause was first tried, knew that count C was bad;
still the Court must have given judgment with refer-
ence to the bad count, and there would be introduced
an inconsistency of a strange nature if the Court
of Error, in looking to the record of the judg-
ment, held that it must be presumed that the
Court below passed no judgment on the bad count.
Such an inconsistency ought not to be admitted if the
whole were to be considered as anything in the nature
of a science, or anything more than a rude collection
of arbitrary rules. It might be said that the rule
was sufficiently established. It seemed to him that
it was neither consistent with the dignity of the law
as a science, nor, what was more important, did it
tend to promote the ends of substantial justice if a
judgment in such a case were reversed, and the
defendants still remained liable to be pu-
nished on an indictment properly framed.
In reply to the latter part of the 11th question, it
appeared to him that if counts A and B were cer
tain, and the judgment were that for his said offences
he be imprisoned for a year, the same rule would ap-
ply, though partially only. And though the probabi-
lity in that case would be greater that judgment was
given with respect to the counts A and B, and not
with respect to count C, yet he thought it ought to
appear distinctly on which count judgment was given.
The judgment would be substantially correct, al-
though technically imperfect, which would not be the
case under the former supposition.
Mr. Justice WILLIAMS then read his opinion, to the
effect, that although there were differences amongst
the Judges upon the 3d and 11th questions, yet that
the material difference was in respect to the
latter. Before he should go to consider those
differences he would premise, that on the merits
of the case, properly so considered, there was
no difference amongst his Learned Brethren, and that
in the opinion of the Judges these were good counts
which would sustain the judgment. There had, also,
been no difference in the Court below upon the plea
of abatement, that the finding was complete in point
of law, and that the motion to arrest the judgment
must be refused, because there were some good
counts in the indictment. The objections were purely
of a technical nature, and were to be examined in the
spirit of exact and minute inquiry. He had said that
the differences amongst the judges arose on the last
question submitted to them by their Lord-
ships, and, in observing upon that question,
he would draw the attention of their
Lordships to this point—that there was no difference
between this case and any other criminal case in
which the verdict of guilty was recorded, one of the
counts in the indictment being bad and another good.
The Lord Chief Justice (Tindal) had told their
Lordships that there was no difference of opinion
amongst the judges, that some of the counts were
good, and that the verdict was unexceptionable, and
the sentence rightly recorded. He would come
therefore to the 11th question, the last and most
important. In answer, his opinion was that
the finding was right throughout, and there remained
only the question whether, upon an indictment in
which there were good and bad counts, and a sentence
of fine and imprisonment had been recorded, that
sentence was to be reversed on account of the defi
ciency of some of the counts. Now the constant
opinion had been that where the finding was sustained
by one perfect count, the sentence was not to be re-
versed. Perhaps, as some of his learned brethreen seemed
to think, that was an old error, but if so it ought to be
shown and not presumed. He was disposed to take
the dicta of Lord Mansfield in the case of Grant and
Assop, and in that quoted from Cooper 175, by the
Lord Chief Justice. That Learned Lord held that
in criminal cases, where one count was good, the ver-
dict was good. Surely that was entitled to some
weight, being the deliberate and repeated opinion of
an eminent Judge, not given as an ori-
ginal opinion, but as a statement of what
had been decided. and acted upon by the
Courts. The Learned Judge then cited
two cases from Barnewall and Adolphus, in which the
defendants were found guilty generally, and the Court
of Queen's Bench decided that the badness of some
of the counts did not vitiate the verdict, other counts
being good. In the case of the King against Rhodes
and another (Lord Raymond's Reports, 786), which
was an indictment for subornation of perjury, the
defendants were found guilty, and were sentenced to
transportation; whereupon motion was made in the
Court of King's Bench for arrest of
judgment, on th►e ground that the assign-
ments of perjury were wrong in all the counts
but one, and that, as the Judge had the discretion of
awarding either transportation or imprisonment, and
had chosen the severer punishment, he might have
done so upon some of the counts in which
; the assignments of perjury were wrong. But,
, in that case, it was ruled that if all the
counts were bad but one, that was sufficient

for the judgment of the Court. In another case, that
of an indictment for obtaining money under false pre-
tences, there were four indictments, only two of which
set forth the pretences, the defendants were found
guilty and sentenced to transportation, and a writ of
error was
_brought. That case followed in point of
time the case of the King against Mason, which esta•
blished the rule, that were the pretences were not set
forth the counts were bad in law. In the other case
the badness of some of the counts was established, but
the judgment was held good. Here he differed from
his Learned Brother Coltman, and considered these
cases in point, as the badness of the counts were placed
beyond doubt, and the defendants were found guilty
generally, the punishment being discretionary. It
might have been imprisonment or transportation, and
it was argued, as in the present case, that the Court
might be influenced in its sentence by the bad counts.
On these points he agreed with his Learned Brother
Maule, who had before addressed their Lordships.
Here he begged leave to state his opinion that the matter
for the Court of Error was whether the Court
below had acted according to law. The Court of
Error could not say what the Court below might or
might not have done, but whether what they hid
done was lawful or not. There might be something
on the part of the Court below to justify ani-
madversion. There might have been something un-
constitutional, but still that might not be illegal
If the Court had sentenced the defendants to trans-
portation, that would be an illegal sentence; because
transportation was not the sentence assigned by law
to the offence. But as the sentence was justified by
some of the counts, the sentence would not be af-
fected by the consideration whether there were not other
counts which, if not bad, would justify a heavier punish-
ment. Itw as his opinion that it was of no moment whether
the punishment was discretionary, or fixed by statute,
the judgment must be considered as founded on those
counts which sustained the verdict, and not on those
which did not sustain it. The judgment could not
be supposed to proceed upon those counts which were
vague, and amounted not to any charge at all—nor on
the finding of the jury which was bad in law,
but on such finding as the Court might legally
pronounce its judgment upon. What was there to
make their Lordships think that the judgment was
given on the erroneous part of the record, when the
Judges of the Court below had declared upon the
motion for arrest of judgment that it was not so. His
answer, therefore, to the 11th question was in the
negative.
Mr. Baron GURNEY then rose to deliver his judg-
ment, but he read it in such an extremely low tone
of voice as to be all but inaudible in the reporters'
gallery. He said that he and his Learned Brethren
were of opinion that the sth, Bth, 9th, 10th, and
11th counts in the indictments were good counts.
The judgment of the Court of Queen's Bench in
Ireland he thought might be well sustained. He was
of opinion that the finding of the jury in the first
count, which was a good count, was a defective
finding. He could not distinguish between a bad
finding in a good count, or a good finding in a bad
count. They appeared to him to amount to the same
thing. It had been contended, at their Lordship's
bar, that inasmuch as some of the counts were bad,
no judgment could be pronounced on the good ones.
This argument was grounded upon the analogy which
was supposed to exist between civil and criminal
cases. It was much to be regretted that the rule
existed with respect to civil cases, inasmuch as j us-
tice was frequently thereby defeated. But, in
criminal cases, it always had been held that one
good count in an indictment could support a judgment.
It had been contended at their Lordships' bar that
the judgment of the Court ought to have been to
award so much punishment to one kind of offence,
and so much to another. This was contrary to all
principle of law. The Court before which any case
was tried, always ascertained if there was one good
charge, and then considered, in awarding punishments,
the whole circumstances of the case. But this was
not matter for consideration by a Court of Error.
They had no means of judging whether the punish-
ment was proper or not. All they had to do was to
consider whether the law authorised the proceed-
ing in the case.
Mr. Baron ALDERSON next rose to deliver his
judgment, and said, he felt that if their Lordships
were to reverse the judgment in this case it would be
productive of great inconvenience, and would involve
a failure of justice in criminal cases for the future.
It was with great satisfaction he found that this was
merely a technical question, and upon its merits he
agreed with a great portion of his learned brethren.