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

jeartse they had given their verdict upon both counts.
iWhat, then, became of the case ? Supposing the
:ury 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 eases. But what did his friends pal‘opost in
criminal Bales? Why, that the record *bald be eent
back to Ireland. The analogy would be to ask :the.
court of error to send the record back to the CeUrt.be
low to pronounce judgment upon the entitle thit; WaS
good. But his Learned Friends did not auk their Urd-
ships to do that; they asked them to reverse the judgment
altogether, and to set the parties free. Ise would.
now state the reason why, in his "opinion,l the
Principle which was admitted in civil_' tta'sCPS-
not apply in criminal eases. The jury breeglit
verdict, guilty or not guilty ; they aseesed 4.emeges
they awarded no punishment. If he were chrtegel on
an indictment with two offences, if one count Was'bacl,
the jury who had found him guilty had found hire 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.wouldolow
call their Lordships' attention to a few eases in the
books in which this point had been adverted to. When
his Learned Friend said that they found no distinct
ease in point, his answer was, that no one had ever
thought of raising the question. There was not an
assia:s—not an Old Bailey seasiens—not a quarter ses-
sions, in which cases did not occur in which this point
arose. There would have been an infinity of write 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 Grant
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 ik writ of error.' It
was a writ of error to the King's Bench in Englandfrom
the King's Bench in Ireland, in an action to recover
copy hold 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, via., that where in several
counts one was bad the judgment should be set aside,
had ever been admitted ; more especially upon snchan
absurd fiction as that when the jury assessed the da-
mages, they assessed them on all the counts, which wai
not the caae; and Lord Mansfield went on to state that what
made the rule the more absurd was, that it did not hold
goodin criminal prosecutions, for thatwhen the verdiCt of
eeilty was once returned, one good count was sufficient
Ie 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 eases 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
(mite as common to have indictments for felony with
,everal counts as for tnisdemeanour • 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 caseof the King v. Rose, ed 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
Bolt and the whole court gave it as their opinion that if
all the assignments were wrong but one, that one Would
he sufficient to authorise the court to give its judgment.
Then there was the case of " the King v., Powell," 2d
Barnewall tlnd 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
raid indictment specified as 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
his opinion that the judgment ought to be affirmed, inas-
much as the verdict warranted the judgment.
Lord Caatessee—lf the second count had been for
perjury the same reason would apply.
The ATTORNEY-GENERAL—It is impossible to make
the distinction.

Lord BROUGHAM—Had tho party, in the case you put,
boos 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 ATTORNIIT-GENERAL—The verdict of guilty
was guilty of both; the second must 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
arse 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
braes, 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
judgment if one count was good. Then there was the
case of the King le Connor, which was argued in the
ghteen's Bench m Ireland in 1839, in which it was
stated, in the argument of counsel, that if one
ount were good judgment could not be re-
, ersed, and cited several cases on that point.
It was quite impossible for the court of error to inquire
into the nature of the judgment of the court below. It
,eirely was a fallacy to say that the judgment was made
up o a number of counts ; that was not so in point of
practice, nor, he apprehended, could it be considered so
in any 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
artteunt of the punishment was discretionary with the
court. The court of error had only to see whether the
judgennt was one which the law allowed.
Lord BROCOHAM—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 a judgment had been given which was not war-
ranted by law.
Lord BROCTGIIAN—The presumption you say is, that
the court below gave judgment upon the right count,
but it is just possible thttjudgee in the court below may
have given judgment on the wrong count, may have
theught the e rong count right.
The ATTORNEY-GENERAL—NO doubt it was possible,
ut the presumption of law gas, that the jutment of
the court urns a judgment warrwed by law, and if
lerought up to a court of error, theTourt would presume
that it was warranted by law.
-Lord CAMPBELL—In that case a writ of error is a
very imperfect remedy.
The ATTORNEY-GZNERAL said, he spoke only of the
presumption of law. If the law were not right, the
proper course would be to make it so by Act of Parlia-
ment. Let him take any of the ordinary cases which
came before the assizes. He 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 between the same two men to burn a house
and murder the inhabitants. He supposed that the
parties wore tried, and that, on their being tried
by the jury, and the filets being investigated, the
defendants were found guilty of both the offences.
Here was a case in which two persons were
convicted, on trial by jury, of a conspiracy to burn
down a horse and to murder the inhabitants. Well, then,
be would suppose that, in the second count of the in-
dictment there was a defect. According to his Learned
Friend, in order to do complete justice, they must allow
these men to go free by reversing the judgment. If this
argument amounted to anything at all, it went to show
that the Legislature should pass some law to prevent the
giving of different counts in the same indictment.
Surely, 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
Leeislateire. 'fake the csse of a man, named
Good, tried for murdering a women. In that
ease, it was necessary to have ten or twelve
onunts in the indictment. The jury found the prisoner
guilty generally upon the indictment, and the
evidence warranted the finding on six or eight of the
counts. Should they, because there was a defect in one
of the count*, suffer such a party to commit murder with
impunity? Surely it would not be improving the law of
England, to pass an Act declaring that where there were
several counts upon an indictment. and the jury had
and the party guilty of all, ho should, if one were bad,
he discharged?

Lord Cs,st 2naLL—Where there is only one murder,
the proper mode would ba to find. the prisoner guilty
upon one count.
The ATTORNEY-GENERAL said he believed in the
ecitninal court the verdict and the sentence were always
ecterei generally. In the case of the King v. Fuller,
there WAS a verdict upon both counts in the indictment.
The Lent) Cit.t NCF,I.I.OIt said Ito rceollectod
(Igo of this kind. A policeman waa indicted fur
committing a rape upon a young g;rl in his cus-
tody. He got off upon a misnomer ;f the girl.
Ile was indicted a ,Fec.-;nd time. There was a plea
of autrefois acquit, and the answer was " went by
ore name as well as the o'her," and he was acquitted a
st cond time. The case was tried at the Norfolk Assizes,
More Mr. Justice Patteson.

The ArronNEY-GRNEnai. challenged his Learned
Friends to produce any case in which the record and the
verdict warranted a judgment, and that judgment had
been set aside. When he said the record, he did not
mean every count in the indictment; but what he main-
tained WM, that whfa one count in the indictment was
good, and a verdict of guilty had beck returned upon