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

The judgment must, perliaps, 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 on 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-
tained 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 deft
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 Barne wall 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 the ground that the assign-
ments of perjury were wrong in all the counts
but cne, 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
Manic, 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 had
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 otner
counts which, if not bad, would justify a heavier punish-
ment. Itwas 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 11 th 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 jus-
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.

11.,
was

The universal belief of the profession was, as long as
he could remember, the same as that which was con-
tained in the report of the case Grant and Astell, and as

laid down by Lord Mansfield. The invariable answer
given in Court to an application similar to that which
had been made to their Lordships was, that it was
immaterial to enter into the discussion, because there

was one good count in the indictment. If they were.
to search the reports they would find many
criminal cases in which judgment had been
pronounced upon an indictment in which
there were one or more defective counts,

and yet it had never occurred that such an objection
had been made the ground of argument in a Court of
Error. This objection had always escaped the notice
of the most acute counsel and the most astute judges.
He thought that some of the difficulties were real,

but that they were not all important in the present
case. The law proposed no perfect rule—it knew
that nothing was perfect, and it adopted the best rule
it could. The question then was, was there
any analogy between civil and criminal cases—he
thought there was not. The course pursued in civil
cases by the law was reasonable and just, but in cri-
minal cases it would be most unjust. In all cases,
the Court of Error ought to see that the judg-
ment which was brought before it in error was
right or wrong. He thought if the Court of
Error found that there were good counts in the in-
dictments upon which punishment had been inflicted,
they could not say that the Court below had made a
mistake. If such was to be the case, many defendants
who would be properly punished would escape. The
Learned Judge then referred to the case of the

King v. Young and the King -v.-111;;on' the former
of which he considered almost a decided decision on

the point. He thought there was quite sufficient to
support the judgment of the Court below on this
point. As to the second branch of the 3d question,
it depended on the reasonable construction of the
words of the judgment, which was that
the defendant was to be imprisoned. Now,
he saw no solid distinction between a
charge improperly stated, but properly found, and
a charge properly stated and improperly► found. It
must also be borne iz mind that a Court of Error
could not reverse a judgment upon the conjecture
that it was wrong. He thought, in the present
case, it was impossible to say with any certainty
that there was any error. Whether the punishment
was discretionary or not made no distinction. For
those reasons, therefore, his humble answer to their
Lordship's questions, both as to the 3d and I I th, was
in the negative.
Mr. Baron PARKS, in delivering his judgment, said
that, with regard to the 3d question proposed by their
Lordships, he regretted that, after fully considering
it, he could not bring his mind to concur with the
majority of his brethren respecting it. There
were two counts of the indictment bad, there was no
legal finding on three, the jury having found the
parties guilty of more than one offence upon counts
which charged them with one only, and the judgment
was that the defendant for his offences aforesaid be
fined and imprisoned. But it could not be said
how much of the punishment was awarded
for the offences of which the parties were not legally
guilty. There were two modes by which apparently
this error might be rectified—the first was, that the
court below had awarded punishment only upon the
good counts ; the second was, that the same punihment,
the same impri-onment, and the same fine was inflicted
for each and every offence. With regard to the first,
it appeared to him that the Court must be taken to
have given judgment on the counts which were good,
and on those counts only. With regard to the second,
it could not be supposed, from the language of
the record, whatever might be said of the sentence
and of the imprisonment, that the same fine was in-
flicted for each and every offence. Prima facie parts
of the sentence was given for one offence and part for
another, and the Court of Error could not
apportion it, as they did not know the
facts for which the fine was imposed.
There was a prevailing opinion that one good count
in an indictment would support a judgment. No
doubt, in practice, judgment was often passed
without adverting to the counts, and the
judgment was never entered on the record,
unless where it was required for a special plea.
or for a writ of error. That opinion appeared to him
to have grown up without adequate grounds. The
rarity of writs of error in criminal cases was the reason
why the attention of the profession had not been much
called to these cases, and hence the opinion bad been
suffered to pass unquestioned. The dicta of Lord
Mansfield and of Chief Justice Eyre had been al-
luded to, but in his opinion, after giving the matter
the most anxious consideration, the utmost that the
opinions of those Learned Judges went to was
this, that when a general verdict was re-
turned it was sufficient to enable the Court
at once to proceed to pass sentence. In the
case before Chief Justice Eyre, as the punishment
was a capital one, he was never called on to consider
the point. In case of the King v. Young
the objection which had been taken in the
present case was not available, because in
that case the defendant had been sentenced
to a punishment in accordance with the provisions of
the statute, and no part of that sentence could
be ascribed to the bad counts. He doubted,
therefore, if the received opinion was so
established by usage as to compel its adop-
tion. Allusion had been made to the inconvenience
which would arise if that opinion were decided to be
erroneous. He could not see in what that incon-
venience would consist. The only result would be
this, that the defendants being entitled to an acquittal
on all bad counts, the counsel for the prosecution
would have to examine the record to see that judg-
ment was not entered upon the bad counts.
For these reasons, notwithstanding the respect which
he entertained for the opinions of his brethren, he
was compelled to differ from the majority of them on
these points, and to answer the third and eleventh
questions in the affirmative.
Lord Chief Justice TINDAL said that Mr. Justice
Coleridge (as we understood) was unavoidably absent
from illness, but that he had sent his written opinion,
in which he stated his concurrence with the majority
of the Judges.
The LORD CHANCELLOR—My Lords, I move that
the further consideration of this question be postponed
to Wednesday next.
Lord BROUGHAM—And that the opinions of the
judges be printed.
The motion, with Lord Brougham's addition, was
then put and agreed to, and their Lordships adjourned
till Wednesday.
The galleries and the space below the bar were
crowded during the whole of the proceedings. The
seats at the foot of the Throne were completely occu-
pied by the eldest sons of Peers, and the attendance
of Peers was very numerous. There was a crowd
waiting outside the doors, anxious to hear the result.

LLOYD'S SHIPicIiNG.—(THIS DAY.)
LONDON, SEPT. 2.—Wind this day at noon, westerly,
fresh breeze, and fine.

•
POBTSMOTJTII, AUG. 31—Wind, E.S.E.—SId. Gipsy,
South Seas ; Harwich, New York. SEPT. I.—Prince
of Wales, Calcutta ; Wellington, New York.
DEAL, AUG. 31: AND SEPT. I.—Wind, E. to E.N.E.
—Arrd. boning, Willem, and Ceraur, for Batavia, and
proceeded. Sld. Diana and Scotia, Madras ; Ocean and
glebe, Ichaboe ; William Woolley, Valparasio ; Janet
Willis, Demerara; Florence, Madeira ; Cecops, Quebec ;
Seymour, Cardiff and Valparaiso. Arrd. Elizabeth,
Quebec.
SHOREHAM, AUG. 31.—Arrd. Matthew Thompson,
St. Andrews.
OFF DOVER, AUG. 31.—Twee, Anthony, Lucie, and
Mozambique, all from Rotterdam for Batavia.
OFF THE WIGHT—Magdalene' Havannah for
Bremen ; Condor, Mayo, Havannah for Hamburgh ;
Amphitrite, Nickie, for Rotterdam.
SOUTHAMPTON, SEPT. I.—Arrd. Lady Mary Wood
steamer, Gibralter, left 24th instant.
CARLISLE, AUG. 30.—The Sally, Detchburn, from St.
John's, New Brunswick, on leaving Gilloth Bay, went
ashore on Skinbuness yesterday and upset, but was
righted and was towed up
to P
Carlisle;
crew saved.
e CLYDE, AUG. 30.—Arrd. Arinanda, Daves, St. John's
New Brunswick. Sailed, 29th, Marion, Calcutta ; Ar-
cadian (steamer), Halifax ; Charleston, Blonde, and
Onyx, Quebec ; 30th, Vixen, Port Philip ; Sidney, De-
merara ; Jane Christie, Berbice ; Magrana, St. John's ;
ort after
cutting
Mary Allan, Montreal.
a d.
topmasts,
DUBLIN, AUG. •30 —Arrd. Trial, Kyle, St. John's,
New Brunswick.
OFF WATERFORD, PRIOR TO AUG. 31.—Emulous,

glnydian, Ichaboe.
Quebec.
31.
DARTMOUTH, Barbadoes.
CORK, AUG. 30. Sid.
Sherbroke, Quebec.
tDARTMOUTH, AUG. 31.--Sid. Malibran, Bonny.
aI.g7A,ITAGu. i
OFf PLYMOUTH, AUG. 31.—Tweed, Walker, Africa.
LIVERPOOL, AUG. 31 AND SEPT. 1....... wind, S. to
S.E., light.—Arrd. Grindley, Ichaboe; Brenda, Reed,
Porto Rico; Sisters, Williams, Laguna; Agnes, Braith-
waite, La Guayra; Sirion and Pursuit, Spence, St.
John's, New Brunswick; Hebe,
Safeguard, and Heron,
Quebec. Off, William Parker, William Rushton, Vic-
toria, and Fenella. Sld. Perseverance, St. John's, New
Brunswick; Harriet, Cape of Good Hope; minr _
y Bliss
and Harmony, Quebec; Mary Stoddart, Calcutta; Ge-
neral Wiltshire, Ichaboe; George Iv., Rio Grande;
Cameona, Monte Video; Adams, Maranharn; Malabar
and Pharsalla, New Orleans; Isabella and Montegume,
New York; Bonanza,Newfoundland.i
HULL, AUG. 31.—The Mascencomb (Wisconsin) of
Newfoundland, was fallen in with, 28th ult., about eight
miles from the Outer Elbe Light Vessel, dismasted, and
with signal of distress flying, and towed into Cuxhaven
Roads by the Leeds steamer, arrived here. The
steamer Hamburgh, hence, was passed 29th ult., towing
the schooner Fear Not, with damage. The Rambler,
Stephen from Konigsberg to London, was abandoned in
a sinking state, 26th ult. ; crew (except the master)
saved.
Arrd. Ferdinand, Mexico for
PLYMOUTH, AUG. 31.—
Havre, with rudder damaged.
JERSEY, AUG. 28.—S1d. Loyal William, Newfound-
land.
FALMOUTH, Atm. 31.—Wind, E.,1 fresh breezes.—
Arrd, Le Jeane_Franne, Viand, Manzanillo.